Canadian Broadcasting Corporation v. Nova Scotia (Attorney General)

Canadian Broadcasting Corporation v. Nova Scotia (Attorney General) Court Supreme Court Date 2010-06-24 Citation 2010 NSSC 295 Docket Hfx 319522 Judge/Registrar/Adjudicator Moir, Gerald R. P. (Honourable Justice) Document Type Decision Relations Library Sheet - Canadian Broadcasting Corporation v. Nova Scotia (Attorney General) - 2010 NSSC 295 - 2010-06-24 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Canadian Broadcasting Corporation v. Nova Scotia (Attorney General) 2010 NSSC 295 Date: 20100727 Docket: Hfx No. 319522 Registry: Halifax Between: Canadian Broadcasting Corporation Applicant and The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia Respondent DECISION on PRELIMINARY ISSUES Judge: The Honourable Justice Gerald R. P. Moir Date of Hearing: June 24, 2010 Counsel: Brian P. Casey, counsel for the applicant Alex M. Cameron, counsel for the respondent Moir, J.: Introduction [1] The CBC filed a notice for judicial review of "the failure of the provincial court to index its records of search warrants". The notice claims that the failure is a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms, which provides for "freedom of the press and other media" as one of the fundamental freedoms. [2] The relief requested is "an order directing the provincial court to index its records of search warrants", but the only named respondent is the Attorney General. The Attorney General says this fails to recognize the independence of the Provincial Court of Nova Scotia and that such a failure is so fundamental that the proceeding cannot stand. [3] The Attorney General also says that there is no dispute for this court to resolve, that the proceeding is more in the nature of a reference, which only the Governor in Council can seek. [4] The motion for directions was interrupted for a determination of these preliminary objections. If they are wholly sustained, I will dismiss the proceeding. Otherwise, I may give directions arising from the objections and order resumption of the motion for directions. [5] Mr. Cameron and Mr. Casey provided succinct written and oral submissions, for which I am most grateful. [6] I conclude that the proceeding is flawed because it identifies the Provincial Court with the executive branch of government. However, I am of the view that the flaw can be cured. Furthermore, there is a dispute within the authority of this court to resolve. Issues [7] Mr. Casey argues that the Provincial Court "is not a suable entity". Mr. Cameron does not argue that it should be joined. However, Mr. Casey's argument leads me to deal firstly with how the Provincial Court could have independent status in this proceeding. Then, I will turn to the main issue about judicial independence. Finally, I will deal with the question of this court's authority to provide the requested relief. [8] So, the issues are: 1. Whether the Provincial Court of Nova Scotia could have status in this proceeding independent of the Attorney General? 2. Does the principle of judicial independence preclude proceeding against the Attorney General rather than the Provincial Court? 3. Was there a decision that is reviewable under Rule 7 - Judicial Review and Appeal? Status of Provincial Court [9] Mr. Casey refers me to authorities, such as Brown & Evans at p. 4-3 and 4-6, that suggest that, without incorporation or provisions in their constituting statute, "independent administrative agencies" are not legal entities and have to be brought into a proceeding through the Attorney General or the Crown. [10] Brown & Evans immediately qualifies what it says at p. 4-6. The text points out that legislative reforms of judicial review processes in Ontario, British Columbia, and Prince Edward Island permit unincorporated agencies to be named as respondents. The text also discusses the position of the Federal Court of Canada on this issue, which takes a broader approach based on its legislated mandate to supervise "federal boards, commissions or other tribunals". [11] This court does not require legislation for its authority to supervise "boards, commissions or other tribunals", including the Provincial Court. It is part of the inherent jurisdiction, and it is not restricted to "federal" or "provincial" bodies. It is arguable that we do not need legislation in order to take the same flexible approach as does the Federal Court of Canada. However, it is not necessary to decide that question because the Nova Scotia Civil Procedure Rules provide the required flexibility. [12] The Civil Procedure Rules are legislative because they are subordinate legislation under the Judicature Act (They are arguably also an exercise of the independent, inherent jurisdiction of this court to make general orders about procedure.) and because the legislature chose to give the 2008 Rules the force of statute law: S.N.S. 2008, c. 60. [13] The word "decision" and the phrase "decision-making authority" are defined in Rule 7 - Judicial Review and Appeal. [14] Rule 35 - Parties contains special provisions on joining a decision-making authority in a proceeding for judicial review. Rule 35.03, on parties to an action or application, consistently uses the word "person", which usually means a repository of enforceable rights, one who is sui juris. Rule 35.04 provides for joining interested "persons" as respondents in a proceeding for judicial review, but it also requires the applicant to name "the decision-making authority" as a respondent. [15] The Rule is written with so much abandon for the concept of sui juris that it even provides for separately joining an "arm" of a decision-making authority when the arm has a separate function, such as prosecution: Rule 35.04(2) and (3). [16] A "decision" includes "an omission to take action required, or purportedly required, by legislation": Rule 7.01(ii). The premise of the CBC's notice for judicial review is that the Provincial Court omits to index its search warrant records although that is required by the Constitution Act. (The Constitution Act is within the meaning of "legislation" in Rule 94.10.) [17] Therefore, it would have been permissible for the CBC to have named the Provincial Court of Nova Scotia as a respondent, if the decision at issue were one for the Provincial Court to independently make. A more convenient approach might have been to name the Chief Judge of the Provincial Court as a representative party under Rule 36.02. He speaks for the court on administrative and political subjects, but he does so in collaboration with his colleagues who, for all practical purposes, make up the Provincial Court of Nova Scotia as an institution outside of its sittings. Judicial Independence: Positions of the Parties [18] Mr. Cameron's submissions are premised on the principle of judicial independence in the Judges' Remuneration Case, [1997] S.C.J. 75. He sums up the government's position by writing: The Attorney General is the Crown's representative to answer for the Crown - the executive - in Court...The Attorney General does not answer for the judiciary. For example, an order in the nature of mandamus against the Attorney General, "directing the Provincial Court to index its records" would be a futility. The Attorney General is not the representative of the Provincial Court. Such an order would have no effect whatsoever in binding a Judge of that Court. Those Judges are constitutionally separate from and independent of the Attorney General. They would rightly ignore such an order with impunity. For the very same reason, a declaratory order against the Attorney General cannot bind the Provincial Court. [19] Mr. Casey's submission on this issue emphasizes the limits on administrative independence, as opposed to the other two "core characteristics" of judicial independence, security of tenure and financial security: Judges' Remuneration Case, para. 143. The line between acceptable governmental administration of courts and unconstitutional intrusion on court administration is marked by the words "These matters 'bear directly and immediately on the exercise of the judicial function.' ", para. 251. [20] For the CBC, telling a court officer, in this case Ms. Gail Wilson, to index search warrant records does not "bear directly and immediately on the exercise of the judicial function". A Demur on Administrative Independence [21] A brief observation about the role of the demarcation, "bear directly and immediately on the exercise of judicial power", will help put in perspective a longer discussion of its meaning and application. [22] As will be seen, we have travelled from almost absolute control of judicial administration by the executive to a hybrid in which some aspects of court administration are exclusively in the control of the judiciary, with the government having a constitutional obligation to fund those aspects. It remains to be seen whether we are settling comfortably into the hybrid or will move more toward the American model of greater judicial control. [23] The authorities do not exclude further travel. The demarcation does not divide exclusive government control and exclusive judicial control. It works one way only. It marks the point past which the government cannot tread. The judiciary is free to accept more control, and the authorities do not tell us what happens then. [24] So, the demarcation tells us nothing about whether the decision in this case was made on behalf of the executive or the judiciary. And, the question of the proper party could remain even if the decision about indexing search warrants falls to the government side of the demarcation line. Evolution of Institutional Independence [25] In my assessment, this case is more about institutional independence than individual independence, for which the demarcation was fashioned. As will be seen, that opens onto a broader inquiry. [26] I will contrast the American position on administrative independence with a view expressed by scholars on the Canadian position just before the Charter came into effect. For me, that historical vantage helps explain the doctrine of judicial independence as it developed over the past three decades. The Charter was the catalyst, but by no means the only constitutional ground, for the development. [27] It seems that American courts would have little difficulty with an assertion that the executive can exercise control over a court's records. There, each court "has supervisory power over its own records and files": Nixon v. Warner Communications, 435 U.S. 589 at 598 (1978). [28] The Supreme Court of Florida went so far as to read down a statute requiring that certain court records be expunged, so that they were merely required to be sealed: Johnson v. State, 336 So. 2d 93 (Fla. 1976). The majority said, at p. 95, To permit a law to stand wherein the Legislature requires destruction of judicial records would permit an unconstitutional encroachment by the legislative branch on the procedural responsibilities granted exclusively to this Court. [29] On the eve of the Charter, scholars were able to speak of Canada "vesting the administration of the courts in the executive branch of government". This passage appears at p. 45 and p. 45 of Perry S. Millar and Carl Barr, Judicial Administration in Canada (Kingston and Montreal: McGill-Queen's University Press, 1981): British and Canadian constitutional theory stops short of actually defining the judiciary as a third branch of government (although many judges assume it has been so defined). Consequently, the American doctrine of inherent powers has no counterpart in Canadian case law. Indeed, Canadian constitutional development has pursued a diametrically opposite course by vesting the administration of the courts in the executive branch of government. In doing so, it borrowed from and applied wholesale a more tightly circumscribed English tradition, developed with characteristic pragmatism and indifference to rigid logic, which allowed the executive branch of government to administer its magistrate's courts. The writers were, nevertheless, of the view that the doctrine of judicial independence was no less vibrant in Canada than in the United States. [30] Professors Millar and Barr expressed confidence in the Canadian version of judicial independence. They justified the difference from the American version on the basis that we emphasize "adjudicatory" independence and they said, at p. 46, that a connection between adjudicatory independence and administrative independence "has not been clearly articulated or understood". [31] The Supreme Court of Canada soon made the connection. In doing so, it recognized that there are three separate branches of government, it recognized both an individual dimension and an institutional dimension of judicial independence, and it recognized the three core characteristics to which I have already referred. The approach was developed early in R. v. Valente, [1985] S.C.J. 77 and Beauregard v. Canada, [1986] S.C.J. 50, and its mature expression is found in the Judges' Remuneration Case of 1996. [32] The meaning of "independent and impartial tribunal" in s. 11(d) of the Charter had to be considered in Valente. Justice Le Dain wrote the opinion for a unanimous court. He identified the three objective conditions that are guarantees of judicial independence, the third being administrative independence. [33] Justice Le Dain wrote of "the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function" (para. 47). While a greater degree of judicial control over administration may be desirable, it is sufficient to s. 11(d) that there is "judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function" (para. 52). As Chief Justice Lamer said at para. 117 of the Judges' Remuneration Case, Justice Le Dain defined these in "narrow terms". At para. 49, Justice Le Dain referred to "assignment of judges, sittings of the court, and court lists", "allocation of courtrooms" and "direction of the administrative staff engaged in carrying out these functions". [34] Valente is not the last word on administrative independence. It cannot be. The concept of individual independence was foremost in Valente, and the Supreme Court of Canada developed the concept of institutional independence further in later years. Indeed, Justice Le Dain's use of the phrase "institutional independence" differs from its more developed meaning: Judges' Remuneration Case, para. 117. [35] The phrase "bear directly and immediately on the exercise of the judicial function" and the examples given by Justice Le Dain show how focussed the Valente decision was on individual independence. The distinct recognition of institutional independence came in the following year with Beauregard. It was developed further in Cooper v. Canada (Human Rights Commission), [1996] S.C.J. 115 and, as I said, the mature expression of it is found in the Judges' Remuneration Case. I refer particularly to paragraphs 123 to 125, 130, and 138 to 146 of that decision. [36] Valente holds that the hybrid system of judicial administration is constitutional. A system of near exclusive judicial control, such as that enjoyed by many American courts, is not constitutionally mandated. Valente also holds that individual judicial independence precludes the executive from some elements of judicial administration, and the decision provides to us a handy demarcation with some examples. [37] The Judges' Remuneration Case holds that there is another dimension to judicial independence, institutional independence. It provides no handy demarcation for deciding cases, like the one at hand, in which institutional independence is engaged. It provides no examples except for itself, in the way it resolved the remuneration question. [38] The grounds for institutional independence discussed in the Judges' Remuneration Case are helpful for resolving the present issue. Institutional independence is grounded in constitutional requirements. The logic of the constitution, particularly the division of legislative power and the creation of rights and freedoms against the state, requires an institution in which disputes between governments of the federation or between an individual and a government are arbitrated with an absolute assurance that the institution is not dependent on one of the parties. Whether the Notice for Judicial Review is Flawed [39] At first glance, the CBC's notice seems to concern a clerical, or mechanical, function. The CBC submits, not only that indexing search warrant records does not bear "directly and immediately on the exercise of the judicial function", but that it is a subject that would be beyond the interest of the judges of the Provincial Court. One might take a different view. One might say that a court of record needs to be in control of its record, even the mechanics of making, keeping, and accessing the record. [40] However, the mechanics of indexing is not the issue raised by the notice. The issue is whether the Provincial Court is providing sufficient access to its search warrant records to satisfy the open courts principle. It is not for me to reach any conclusion on that issue, but I cannot resolve the preliminary objections without discussing the importance of the issue. [41] The open courts principle, while it may be a basis for striking down legislation or for compelling a government official to do something, is consistently referred to as an obligation of the courts. In Edmonton Journal v. Alberta (Attorney General), [1989] S.C.J. 124, Justice Cory wrote "the courts must be open to public scrutiny and public criticism" (para. 5). This was repeated by Justice La Forest, who wrote for the whole court in Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] S.C.J. 38 (para. 20). In Vickery v. Prothonotary of the Supreme Court of Nova Scotia, [1991] S.C.J. 23, the majority said at para. 27 "justice must be administered openly" and the minority said at para. 44 "the courts must, at every phase and facet of their processes, be open to all". In the first paragraph of Named Person v. Vancouver Sun, [2007] S.C.J. 43, we find "the courts are expected to be open". [42] The Supreme Court of Canada has recognized a connection between the open courts principle and judicial independence. "Openness is necessary to maintain the independence and impartiality of the courts": Re. Vancouver Sun, [2004] S.C.J. 41 at para. 25. In Named Person v. Vancouver Sun, the majority opinion included "An open court is more likely to be an independent and impartial court" (para. 32). Adherence to the open courts principle is fundamental to the judiciary as an institution, and to each of the courts, including the Provincial Court of Nova Scotia. It comes from the same place as the principle of judicial independence, the constitution. It is part of what defines us as an institution. [43] Therefore, the proceeding brought by the CBC is flawed. It names a member of the executive, as if the executive controls access to records of the Provincial Court. The institutional dimension of judicial independence contradicts that proposition. Curing the Flaw [44] The failure to name the Provincial Court of Nova Scotia as the decision-making party under Rule 35.04 is an irregularity. No prejudice can result from now adding it, or the Chief Judge as representative of all Provincial Court judges. I would exercise my discretion under Rule 2.02 in either of those ways. [45] I would not, at this time, direct that the Attorney General be removed as a party. Under the hybrid system, it is possible that the only reason for refusing to index the search warrant records is that the executive branch refuses to allocate funds. [46] If money is not the problem, or part of the problem, I would direct that the Attorney General be removed. As Mr. Cameron points out, the Crown could still participate under the Constitutional Questions Act. Also, the Attorney General is entitled to notice under Rule 7.07. Whether There is a Reviewable Issue [47] The CBC is seeking a s. 24 remedy for an alleged s. 2(b) violation. Mr. Casey puts it this way in his brief: CBC has requested specific search warrant records. Because of the absence of an index, the provincial court has been unable to locate them. That clearly establishes the necessary lis in respect of those records. CBC argues that finding them requires an index of all search warrant records. CBC says that the provincial court is constitutionally required to index its search warrant records as part of the "open courts" principle. Without anticipating the argument which will be made when the application is heard, if the provincial court lacks the legal authority to seal all of its search warrant records, it lacks the authority to achieve that result indirectly by refusing to index them in any way. [48] In my assessment, this court's authority in relation to alleged Charter violations founds this proceeding. Conclusion [49] I resolve the preliminary issues by accepting the position of the government that the decision under review is, as a consequence of judicial independence, one for the Provincial Court to the exclusion of the executive, by rejecting the proposition that the flaw is fatal, and by rejecting the proposition that the decision is beyond the review authority of this court. [50] I direct that this proceeding cannot continue without the Provincial Court, or the Chief Judge as a representative party, being joined as a party. I am prepared to grant an order of either kind. Once such an order is issued, the motion for directions may resume. [51] I am inclined to order no costs, but I will respond to written submissions, if the parties wish. J.