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Constitution - Conventions. Canada (Attorney General) v. Canadian Civil Liberties Association [convention of responsible government]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court considered the reality of the cabinet and Governor-in-Council relationship, here in the context of R312 FCR motions to supplement the evidence record - and as well considers the 'convention of responsible government':[103] On the AGC’s appeal of the Federal Court’s Rule 312 decision to supplement the record with additional materials, the central issue revolves around the identification of the decision-maker whose decision was under review. If, as argued by the AGC, the sole decision-maker was the GIC, only the record that was before that body was relevant and admissible on judicial review. If, on the other hand, we accept (as did the Federal Court) the argument submitted by CCLA and CCF that the powers conferred by the Emergencies Act were de facto and by convention exercised by Cabinet, then the disputed documents were properly admitted into evidence. This debate is clearly one of a legal nature, and therefore the applicable standard of review must be the correctness standard.
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[125] The AGC ... argues that the Federal Court erred in law in finding that the Cabinet was the body that exercised the powers under the Emergencies Act. Relying on the wording of subsections 17(1) and 19(1) of the Emergencies Act, the AGC claims that Parliament expressly gave the powers to make the Proclamation, the Regulations and the Economic Order to the GIC, to the exclusion of all others. On the basis of that premise, the AGC argues that the POEC evidence was inadmissible, because it includes government documents that were before the Cabinet and the Prime Minister but not before the GIC, and because it includes testimony before the POEC regarding deliberations of the Cabinet and one of its committees, the IRG, but not those of the GIC. Closely related to this argument is the submission that the Federal Court’s analysis was tainted by evidence that was not before the GIC at the time of its decision, and the Federal Court relied on “after the fact” evidence to augment or "“bootstrap”" its reasoning for the decision.
[126] With all due respect, accepting this argument would turn back the clock of our constitutional history and undo many of the constitutional conventions that have evolved over the course of more than a century, adapting the formal text of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) to the requirements of the democratic principle. Indeed, the quote from the late Professor Hogg, Canada’s most prominent constitutional lawyer, that the Federal Court cited at paragraph 36 of its reasons in Canadian Civil Liberties Association v. Canada (Attorney General), 2023 FC 118 [CCLA], provides a full answer to that argument:“[m]odern statutes […] always grant powers to the Governor General in Council […] when they intend to grant powers to the cabinet […] in the certain knowledge that the conventions of responsible government will shift the effective power into the hands of the elected ministry where it belongs”: Peter W. Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters Canada, 2021), at § 1:14, Convention and law [Hogg]. Thus, “[w]here the Constitution or a statute requires that a decision be made by the “Governor General in Council” […] [t]he cabinet (or a cabinet committee) to which routine Privy Council business has been delegated) will make the decision, and send an “order” or “minute” of the decision to the Governor General for signature (which by convention is automatically given) [”]: Hogg at § 9:5, The Cabinet and the Privy Council [emphasis added in the decision below]. [127] On that basis, the Federal Court dismissed the AGC’s argument and found that the attempt to distinguish the Cabinet from the GIC "“is dissociated from constitutional convention and the practical functioning of the executive”", adding that decisions of the GIC "“are ""de facto made by Cabinet and not by the GIC itself”" (CCLA at para. 34).
[128] In coming to this conclusion, the Federal Court relied on its earlier decision in Canadian Constitution Foundation, which dealt with a similar application filed by CCF. In its response to CCF’s request to produce records related to the Proclamation under Rule 317, the AGC had listed six documents: the Orders in Council relating to the Proclamation, the Regulations and the Economic Order, as well as the Proclamation, the Regulations and the Economic Order themselves. The submissions to the GIC and the GIC’s record of decision regarding these legal instruments were withheld on the grounds of Cabinet confidentiality under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA). The CCF then brought a motion contending that the response to its Rule 317 request was incomplete and sought an order that the AGC deliver the minutes of the meetings of the IRG on February 10, 12 and 13, 2022. Prior to the hearing of the CCF’s motion, the AGC delivered annotated and redacted agendas and minutes of the three IRG meetings, as well as minutes of the Cabinet meeting, which now form part of the Certified Tribunal Record. As a result, the Federal Court did not have to rule on CCF’s motion which, for all intents and purposes, became moot.
[129] Much as it did in the decision that is now before us, the Federal Court not only relied on Professor Hogg’s statement quoted earlier, but also on the unacceptable consequence of the argument put forward by the AGC, which would result in effectively preventing any Court from reviewing materials relied upon by Cabinet even where confidentiality under section 39 of the CEA was never invoked. Had the AGC prevailed, the record before the Federal Court in this case would have consisted only of the instruments under review, the Section 58 Explanation, and the certificates issued by the Clerk of the Privy Council pursuant to section 39, to the effect that the information sought to be disclosed constitutes a confidence to the Cabinet. Yet, it is very clear from the legislative history of the Emergencies Act that Parliament’s intent was to ensure that Canadians would have the ability to seek judicial review of the reasonableness of the decision to invoke this exceptional measure. Indeed, Cabinet is authorized by section 17 to issue a proclamation only if it believes "“on reasonable grounds”" that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency. This is to be contrasted with the wording of the section 4 of the War Measures Act, 1914, 5 George V, c. 2, according to which the proclamation was "“conclusive evidence”" that war, invasion, or insurrection, real or apprehended, exists and had existed. This provision was interpreted in Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co., 1923 CanLII 429 (UK JCPC), [1923] 3 D.L.R. 629 (U.K. J.C.P.C.) at p. 635, [1923] A.C. 695 as conferring a broad discretion on Cabinet, and as being essentially an issue of "“statesmanship”" upon which a Court of law "“is loathe to enter”". We shall have more to say about the legislative history of the Emergencies Act in our analysis of the substantive issues.
[130] To argue, as does the AGC, that the GIC is the "“sole decision maker”" under the Emergencies Act is antithetical to the principles of democracy and to the firmly established constitutional convention of responsible government. It is well understood since the early days of the Confederation that the GIC does not act on her own, but must act on the advice of Cabinet, which is the only active part of the Privy Council. Except for a few remaining "“reserve powers”" (such as the right to dismiss a Prime Minister or dissolve the House of Commons when the government remains in office after having lost the confidence of the House), the GIC has no choice but to confirm Cabinet’s advice. The notion that the GIC was convened separately from the Cabinet and exercised the powers Parliament gave to it under subsections 17(1) and 19(1) of the Emergencies Act is therefore a fiction, as no such meeting ever took place. The same is true of the requirement that the GIC consult with the Lieutenant Governors of each province, pursuant to subsection 25(1) of the Emergencies Act. Clearly, neither the GIC nor the Lieutenant Governors were the ones attending these meetings.
[131] In the case at bar, the decision to invoke the Emergencies Act was effectively made by the Prime Minister, to whom Cabinet had delegated its powers, and he made that decision on the basis of the same information that was available to Cabinet and with the benefit of the discussions that had taken place at Cabinet meetings.
[132] These principles relating to the relationship between the GIC and Cabinet have been constantly upheld by the Supreme Court. In Att. Gen. of Can. v. Inuit Tapirisat et al., 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, 115 D.L.R. (3rd) 1 at pp. 741 and 757, the Court had to consider, on judicial review, a decision of the GIC made under section 64 of the National Transportation Act, R.S.C. 1970, c. N-17, in force at the time, which allowed appeals from decisions of the Canadian Radio-television and Telecommunications Commission to the GIC. The Court unhesitatingly treated the GIC and the Cabinet as equivalent, describing appeals to the GIC as "“Cabinet appeals”" and referring to the respondents as the Governor General and the members of Cabinet "“collectively described in the style of cause as the Governor in Council”". The Court went on to explain at pages 754 and 755 that the supervisory power of section 64 is "“vested in members of the Cabinet”", that "“[u]nder s. 64 the Cabinet, as the executive branch of government, was exercising the power delegated by Parliament”", and that the Cabinet had a broad discretion to decide appeals unless otherwise directed in the enabling statute. See also, to the same effect: British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re), 1994 CanLII 81 (SCC), [1994] 2 S.C.R. 41, 114 D.L.R. (4th) 193 at p. 119; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40 [Canadian National Railway] at para. 40.
[133] The convention of responsible government was also the substantive basis for the Court’s decision in Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) at pp. 546-547, that the GIC’s decisions are de facto made by Cabinet, because "“democratic principles dictate that the bulk of the Governor General’s powers be exercised in accordance with the wishes of the leadership of that government, namely the Cabinet”".
[134] It is also worth noting that this Court has similarly used the words "“Cabinet”" and "“Governor in Council”" interchangeably. In Tsleil-Waututh Nation, the Court stated (at para. 19):Mixed in with its motion are issues concerning section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the provision that allows Canada to assert that certain information considered by the Governor in Council, commonly called the Cabinet, cannot be disclosed. See also China Mobile Communications Group Co., Ltd. v. Canada (Attorney General), 2023 FCA 202, where a confidence of the Queen’s Privy Council for Canada was equated with a Cabinet confidence.
[135] Indeed, the jurisprudence of this Court is replete with cases where the GIC has been treated as the equivalent of the Cabinet, in all kinds of situations. For example, the Court stated in B’nai Brith (at para. 78) that "“[i]n practical terms, then, a statute that vests decision-making in the Governor in Council implicates the decision-making of Cabinet, a body of diverse policy perspectives representing all constituencies within government”". See also, inter alia, Dixon v. Canada (Governor in Council), 1997 CanLII 6145 (FCA), [1997] 3 F.C. 169 (C.A.F.), 149 D.L.R. (4th) 268; Alberta Wilderness Association v. Canada (Attorney General), 2013 FCA 190 [Alberta Wilderness Association]; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140; Thamotharem v. Canada (Citizenship and Immigration), 2007 FCA 198.
[136] It is quite telling that the AGC, faced with this abundance of doctrinal and jurisprudential authorities, did not see fit to refer the Court to any precedent in support of its unorthodox position. Moreover, that position appears to contradict the appellant’s own practice. The CCLA and the CCF quite properly drew the Court’s attention to a number of publicly available federal government’s manuals on public administration according to which the Cabinet is treated as the equivalent to the GIC: see the Guide to Making Federal Acts and Regulations, 2nd edition (Ottawa: Privy Council Office, 2001), CanLIIDocs 235, at pp. 3 and 7; A Guide for Ministers and Secretaries of State (Ottawa: Privy Council Office, 2002), online, at p. 32; Open and Accountable Government (Ottawa: Privy Council Office, 2015), online, at p. 66. . Canada (Prime Minister) v. Hameed
In Canada (Prime Minister) v. Hameed (Fed CA, 2025) the Federal Court of Appeal allowed a Crown/PM appeal from a partly granted JR, here respecting "an order of mandamus or, in the alternative, a declaration pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c F-7, to compel the Prime Minister and the Minister of Justice to appoint judges to fill vacancies in the Federal Courts pursuant to section 5.2 of the Federal Courts Act, and across Canada in provincial superior courts pursuant to section 96 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)".
Here the court comments on 'constitutional conventions':[57] Firstly, and trite as it may be, constitutional conventions are non-legal rules that govern relationships between political actors. They are not law, and more specifically they do not form part of the law of the Constitution. Although courts can recognize constitutional conventions, they cannot enforce them (Re: Resolution to amend the Constitution, 1981 CanLII 25 (S.C.C.), [1981] 1 S.C.R. 753 (Patriation Reference) at 774-775, 784 and 800). This has been clear since the Patriation Reference was rendered nearly 45 years ago.
[58] In the present matter, the Federal Court nonetheless considered constitutional conventions in relation to judicial appointments as federal laws and further characterized them as "“judge-made rules”" (Decision at paras. 98 and 122). This is misconceived and contrary to the non-legal nature of constitutional conventions (Patriation Reference at 880). Furthermore, contrary to what the Federal Court suggests at paragraph 122, a recognition of a constitutional convention in a previous decision does not transform the said convention into common law as constitutional conventions cannot crystallize into laws "“unless it be by statutory adoption”" (Patriation Reference at 882; Osborne v. Canada (Treasury Board), 1991 CanLII 60 (S.C.C.), [1991] 2 S.C.R. 69 at 86-87).
[59] Secondly, the Federal Court’s declaration of a new constitutional convention, that judicial vacancies must be filled within a reasonable time, without applying the test for recognizing new conventions is also concerning (Decision at para. 20). While the Patriation Reference established that courts could recognize new constitutional conventions, it equally articulated certain requirements for the recognition of constitutional conventions by courts (Patriation Reference at 888). The Supreme Court adopted a three-part test first outlined by Sir W. Ivor Jennings in The Law and the Constitution (5th ed., 1959), which requires courts to consider three questions before declaring a constitutional convention: "“first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?”" (Patriation Reference at 888).
[60] Yet, the Federal Court makes no reference whatsoever to the test for the recognition of a new constitutional convention set out in the Patriation Reference and points to no authority to support its finding that such a convention should be declared. Rather, the Federal Court justifies its recognition of a new constitutional convention by merely stating that:... the acknowledged constitutional convention that it is the exclusive authority of the [Appellants] to advise in respect of vacancies necessarily implies the related constitutional convention that judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.
[Decision at para. 129, emphasis added] [61] As a matter of law, the Federal Court could not sidestep the normative requirements of the Jennings test confirmed by the Supreme Court in Patriation Reference in declaring a new constitutional convention that judicial vacancies must be filled within a reasonable time.
[62] No one disputes the utmost importance of filling judicial vacancies to ensure a healthy judiciary, and relatedly, a healthy democracy. But it remains that the judicial branch of government, like the other two branches of government—the executive and the legislative—fortify themselves by acting properly within their legitimate spheres of competence. In the case at hand, in deciding as it did, the Federal Court overstepped its jurisdictional bounds. (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (S.C.C.), [1993] 1 S.C.R. 319 at 389). That being said, just as the judiciary must accord respect and deference to the legislative and executive branches, so too must those branches reciprocate that respect and deference. This appeal serves as an important reminder that maintaining reciprocal respect and deference between the branches of government is a fundamental principle in a democracy under the rule of law. . Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (SCC, 2023) the Supreme Court of Canada considers the balance between freedom of information law and cabinet secrecy, here in an appeal from an Ontario FIPPA JR of the CBC's request for cabinet 'mandate letters'.
Here the court considers cabinet confidentiality and 'constitutional convention':[27] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution (A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 5; see also Reference re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at p. 880). Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1). . Democracy Watch v. Canada (Prime Minister)
In Democracy Watch v. Canada (Prime Minister) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a denied judicial review challenging the date of the last federal election, advanced by a well-known public interest group.
The quotes consider the doctrine of constitutional 'conventions':[19] Second, the changes to the factual and legal landscape alleged to have occurred since Conacher was decided are of no assistance to the appellants. Even assuming that a new constitutional “confidence convention” has emerged since Conacher, which would limit the advisory authority of the Prime Minister in the manner suggested by the appellants, it is trite law that constitutional conventions are not enforceable by courts, although courts may be called upon to recognize their existence and determine whether they have been breached.
[20] As the Supreme Court of Canada stated in Re: Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753 (the Patriation Reference), “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.” (Patriation Reference at 774-775; see also The Honourable Malcom Rowe & Nicolas Déplanche, “Canada’s Unwritten Constitutional Order: Conventions and Structural Analysis” (2020) 98:3 Can Bar Rev 430 at 444 (Canada’s Unwritten Constitutional Order)).
[21] However fundamental they may be to the Constitution, constitutional conventions are not part of the law of the Constitution as “[t]hey are not based on judicial precedents but on precedents established by the institutions of the government themselves”, “[n]or are they in the nature of statutory commands which is the function of the courts to obey and enforce.” (Patriation Reference at 880). I pause to recall that constitutional conventions are not to be conflated with the underlying constitutional principles discussed in Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, which can assist in the interpretation of constitutional provisions and may, in certain circumstances, give rise to substantive legal obligations (Reference re Secession of Quebec at para. 52; see also Canada’s Unwritten Constitutional Order at 440).
[22] Here, the appellants, for all intents and purposes, are not merely seeking recognition of the existence of a new constitutional convention in the shape of a “confidence convention”. They seek instead that the convention be legally enforced through a judicial declaration that section 56.1 of the Act must now be interpreted in a manner that curtails the Prime Minister’s advising authority in election matters to the extent provided for by this convention.
[23] In the Patriation Reference at pages 880-881, the Supreme Court opined that perhaps the main reason why constitutional conventions cannot be enforced by courts is that these conventions generally conflict with the legal rules that courts are otherwise bound to enforce, stating that such conflict “results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.” For example, as a matter of law, the Governor General could refuse to assent to every bill passed by Parliament, but constitutional convention prevents her from doing that. However, if this particular convention were violated, the courts would be bound to enforce the law, not the convention, and would therefore “refuse to recognize the validity of a vetoed bill” (Patriation Reference at 881).
[24] In sum, constitutional conventions cannot be crystallized into laws, “unless it be by statutory adoption” (Patriation Reference at 882).
[25] Therefore, assuming the appellants’ allegation that a “confidence convention” has emerged since Conacher and that it has been breached by the Prime Minister in the manner described in the Application, to be “true” for the purposes of the respondents’ motion to strike and assuming it is successfully established on the merits, that breach, to use the words of Justice Rowe and Me Déplanche, would only “create [sic] a deficit in legitimacy, not legality, which is sanctioned ultimately in the political arena” (Canada’s Unwritten Constitutional Order at 433).
[26] This, in my view, is what ultimately transpired in Conacher, where this Court, consistent with its function as a court, focussed on—and enforced—the law, that is, section 56.1 of the Act, and concluded that that provision “specifically preserved” the Governor General’s powers and discretion to dissolve Parliament and, by extension, the Prime Minister’s advice-giving role. The Court perfectly understood that in order to curtail these powers, Parliament would have had to use “explicit and specific wording”, something it had not done and, I would add, something it has not done since (Conacher at paras. 4-5). Again, as long as they have not been crystallized into law through statutory adoption, constitutional conventions are not legally enforceable and their breaches can raise only legitimacy concerns.
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[36] Finally, the appellants submit that there is new evidence of the “will of Parliament”, which further supports their claim that the alleged “confidence convention” has been breached by the Prime Minister. This evidence consists of declarations made by political actors or reported in the media in the spring and summer of 2021, which opposed the calling of an election during COVID. The appellants contend that the Prime Minister, in deciding to advise the Governor General to dissolve Parliament and call an election despite maintaining the confidence of the other political parties, acted against the will of Parliament.
[37] I agree with the respondents that this “new evidence” is incapable of changing the outcome of this case, as Conacher definitively concluded that such evidence is irrelevant to the interpretation of section 56.1 of the Act. The “will of Parliament” has been formally expressed through section 56.1 of the Act. This is the “statutory command [sic] which it is the function of the courts to obey and enforce” (Patriation Reference at 880). Section 56.1 was found in Conacher not to affect the Prime Minister’s advice-giving role regarding the dissolution of Parliament and the calling of elections.
[38] It is of course always open to Parliament to amend that “statutory command” but, as mentioned previously, it has not done so. As indicated previously as well, even if a convention pointing in a different direction had emerged since the adoption of section 56.1, this convention would not be legally enforceable and could have no bearing on the interpretation of that provision.
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