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Judges - Salaries (Bodner Reviews). Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia
In Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review regarding judicial salaries, which is governed by a 'Bodner' review established in the sister case of British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020). The procedures for a Bodner review [stemming from the SCC case of Bodner v. Alberta, 2005 SCC 44] are set out here:[28] Thus, the party seeking to have the confidential Cabinet document produced must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner, understood, as they must be, as building on Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, and the Provincial Judges Reference. Only then will the government be required to produce the document for judicial inspection. Having inspected the document, the reviewing court determines whether the document in fact provides some evidence which tends to show that the government failed to comply with a requirement described in Bodner. If the document provides such evidence, the court can order production as part of the record, subject to public interest immunity or any other applicable rule of evidence invoked by the government. . British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia
In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review over judicial salaries, which is governed by a 'Bodner' review:[5] In its judicial independence case law, this Court has consistently sought to strike a balance between several competing constitutional considerations by establishing a unique process for setting judicial remuneration, backed up by a focused, yet robust form of judicial review described in Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286.[1] In resolving this appeal, the rules of evidence and production must be applied in a manner that reflects the unique features of the limited review described in Bodner, and respects both judicial independence and the confidentiality of Cabinet decision making.
[6] For the reasons that follow, where a party seeking Bodner review requests that the government produce a document relating to Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner. Only then would the government be required to produce the document for judicial inspection. If the document does in fact provide some evidence which tends to show that the government’s response does not comply with the constitutional requirements, the court can then determine whether its production is barred by public interest immunity or another rule of evidence invoked by the government.
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[36] Building on the approach established by the Provincial Judges Reference, in Bodner, at para. 31, this Court set out a three‑part test for determining whether a government’s decision to depart from a commission’s recommendation meets the rationality standard:(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?
(2) Do the government’s reasons rely upon a reasonable factual foundation? and
(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved? [37] Under the first two parts of the test, the focus is on the reasons given by government for departing from the commission’s recommendations: Bodner, at paras. 32‑33 and 36. The government “must respond to the [commission’s] recommendations” by “giv[ing] legitimate reasons for departing from or varying them”: paras. 23 and 24. The reasons must “show that the commission’s recommendations have been taken into account and must be based on [a reasonable factual foundation] and sound reasoning”: paras. 25 and 26. The reasons must also “articulat[e] the grounds for rejection or variation”, “reveal a consideration of the judicial office and an intention to deal with it appropriately”, “preclude any suggestion of attempting to manipulate the judiciary” and “reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence”: para. 25.
[38] The third part of the Bodner test looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved: paras. 30‑31, 38 and 43. This new part of the test was added by this Court in an effort to achieve the “unfulfilled” hopes this Court had in the Provincial Judges Reference of depoliticizing the process of setting judicial remuneration and thereby preserving judicial independence: paras. 10‑12 and 31. The third step in the Bodner test requires the court to take a global perspective and ask whether the government demonstrated respect for the judicial office by engaging meaningfully with the commission process: see paras. 25, 31 and 38.
[39] However, this addition in Bodner was not intended to transform the analysis into a probing review of the process through which the government developed its response, whether it took place within the executive, the legislature or both. As a result, I cannot agree with the Provincial Court Judges’ Association that references to the “totality” or “whole of the process” in Bodner, at para. 38, were meant to expand the scope of review such that the Cabinet decision‑making process must necessarily be scrutinized in every case.
[40] There is no doubt that the Provincial Judges Reference and Bodner require that the reviewing court focus on the government’s response. In Bodner itself, this Court looked at the Alberta, New Brunswick and Ontario governments’ responses to commission recommendations to determine whether the third part of the Bodner test had been met: paras. 83, 100 and 130‑31. That said, the third part of the Bodner test is not necessarily limited to consideration of the government’s public reasons.
[41] Moreover, this does not mean that the government can hide behind reasons that conceal an improper or colourable purpose. The Provincial Judges Reference and Bodner cannot be interpreted to mean that as long as the government’s public reasons are facially legitimate and appear grounded in a reasonable factual foundation, the government could provide reasons that were not given in good faith. Indeed, it is implicit in the third part of the Bodner test itself that, presented with evidence that the government’s response is rooted in an improper or colourable purpose and has accordingly fallen short of the constitutional benchmark set in this Court’s jurisprudence, the reviewing court cannot simply accept the government’s formal response without further inquiry.
[42] This is nothing new. In Beauregard, at p. 77, this Court made clear that “[i]f there were any hint that a federal law dealing with [the fixing of salaries and pensions of superior court judges] . . . was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judges vis‑à‑vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held ultra vires s. 100 of the Constitution Act, 1867” (emphasis added). This is true of all judges to whom the constitutional principle of judicial independence applies: see Provincial Judges Reference, at paras. 145 and 165.
[43] Considerations of legitimacy and respect for the process — and conversely, considerations of impropriety or colourability — permeate the entire Bodner analysis. Indeed, in Bodner, which concerned the remuneration of provincially‑appointed judges, this Court considered whether the reasons given by the Alberta, New Brunswick, Ontario and Quebec governments were “based on purely political considerations”, “reveal political or discriminatory motivations” or “evidence any improper purpose or intent to manipulate or influence the judiciary”: paras. 66, 96 and 159; see also paras. 68 and 123.
[44] Reasons that reveal an improper or colourable purpose would fail the first step of the Bodner test which requires that a government articulate a legitimate reason for departing from a commission’s recommendations. Similarly, in reviewing whether a government had relied on a reasonable factual foundation, this Court acknowledged the possibility that the government might also rely on “affidavits containing evidence of good faith and commitment to the process, such as information relating to the government’s study of the commission’s recommendations”: Bodner, at para. 36. Finally, a government’s conduct and the adequacy of its response are also directly engaged in the third part of the Bodner test, which looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved.
[45] Thus, even if a government’s public reasons appear to satisfy the requirements of Bodner, the government’s response remains subject to challenge on the basis that it is grounded in an improper or colourable purpose.
[46] In Bodner, this Court underscored that “[t]he limited nature of judicial review [of the government’s response] dictates the choice of remedies. The remedies must be consistent with the role of the reviewing court and the purpose of the commission process”: para. 42. In my view, the limited nature of Bodner review, the role of the reviewing court and the purpose of the process also have implications for the evidence considered by the reviewing court.
B. Evidence on Bodner Review
[47] The limited nature of Bodner review implies that the record for this type of review is narrower than it would be on ordinary judicial review. It also means that relevance must be assessed in relation to the specific issues that are the focus of the court’s inquiry on Bodner review: the legitimacy of the reasons given by government, the reasonableness of the factual foundation relied on by government, and the respect for the commission process by government such that the objectives of the process have been achieved. Further, since Bodner review tends to oppose two branches of the state, special considerations arise where the party seeking Bodner review requests the production of a confidential Cabinet document. As I detail below, those considerations require that the party seeking production establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet a requirement described in this Court’s jurisprudence, including Bodner. Only then will the reviewing court examine the document to determine whether it should be produced. These considerations continue at paras. 73-87.
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