Supreme Court of Canada **Between:** Attorney General of British Columbia — *Appellant* and Provincial Court Judges' Association of British Columbia — *Respondent* — and — Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Saskatchewan, Attorney General of Alberta, Canadian Superior Courts Judges Association, Canadian Bar Association, Canadian Association of Provincial Court Judges, Canadian Taxpayers Federation and Canadian Civil Liberties Association — *Interveners* --- **Indexed as:** British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia **Citation:** 2020 SCC 20 **File No.:** 38381 **Heard:** December 9, 2019 **Judgment Rendered:** July 31, 2020 **Coram:** Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. **Reasons for Judgment (paras. 1 to 121):** Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ. concurring) --- ## Parties and Counsel **Solicitors for the appellant:** Gudmundseth Mickelson, Vancouver. **Solicitors for the respondent:** Arvay Finlay, Vancouver. **Solicitor for the intervener the Attorney General of Canada:** Attorney General of Canada, Toronto. **Solicitor for the intervener the Attorney General of Ontario:** Attorney General of Ontario, Toronto. **Solicitor for the intervener the Attorney General of Quebec:** Attorney General of Quebec, Québec. **Solicitor for the intervener the Attorney General of Saskatchewan:** Attorney General of Saskatchewan, Regina. **Solicitor for the intervener the Attorney General of Alberta:** Attorney General of Alberta, Edmonton. **Solicitors for the intervener the Canadian Superior Courts Judges Association:** Norton Rose Fulbright Canada, Montréal. **Solicitors for the intervener the Canadian Bar Association:** Borden Ladner Gervais, Toronto. **Solicitors for the intervener the Canadian Association of Provincial Court Judges:** Goldblatt Partners, Toronto. **Solicitors for the intervener the Canadian Taxpayers Federation:** McCarthy Tétrault, Toronto. **Solicitors for the intervener the Canadian Civil Liberties Association:** Paliare Roland Rosenberg Rothstein, Toronto. --- ## Headnote **On appeal from the Court of Appeal for British Columbia** Constitutional law — Judicial independence — Judicial remuneration — Judicial compensation commission making recommendations to provincial Attorney General about remuneration, allowances and benefits of provincial judges — Attorney General making submission to Cabinet concerning commission's recommendations and government's response — Legislative Assembly passing resolution rejecting commission's recommended increase in salary — Judges petitioning for judicial review of Legislative Assembly's resolution — Whether Cabinet submission should form part of record on judicial review. In October 2016, the British Columbia judicial compensation commission recommended an 8.2 percent increase in the salary of provincial judges in 2017‑18. The Attorney General made a submission to Cabinet concerning the commission's recommendations, and then tabled the government's proposed response to the commission's report and proposed a resolution rejecting the commission's recommended salary increase and adopting a 3.8 percent increase instead. The Legislative Assembly passed the resolution. The Provincial Court Judges' Association petitioned for judicial review of the resolution and sought an order to require the Attorney General to produce the Cabinet submission relied on in preparing the government's response. The master hearing the motion ordered the Attorney General to produce the Cabinet submission. Appeals by the Attorney General from the master's decision to the Supreme Court of British Columbia and then to the Court of Appeal were dismissed. **Held:** The appeal should be allowed and the master's order for production of the Cabinet submission quashed. A government must give specific reasons justifying any departure from the recommendations of a judicial compensation commission. The government's response to the commission's recommendations is subject to a limited form of judicial review as described in [Bodner v. Alberta, 2005 SCC 44](https://www.canlii.org/en/ca/scc/doc/2005/2005scc44/2005scc44.html), [2005] 2 S.C.R. 286. Bodner review is the mechanism for ensuring that the government respects the commission process and for safeguarding the public confidence in the administration of justice that process serves to protect. The standard of justification to uphold the government's response is that of rationality. Bodner sets out a three‑part test for determining whether a government's decision to depart from a commission's recommendation meets this standard: (1) whether the government has articulated a legitimate reason for departing from the commission's recommendations; (2) whether the government's reasons rely upon a reasonable factual foundation; and (3) whether the commission process has been respected and its purposes — preserving judicial independence and depoliticizing the setting of judicial remuneration — have been achieved. The limited nature of Bodner review, the role of the reviewing court and the purpose of the process have implications for the evidence considered by the reviewing court. The rules of evidence and production must be applied in a manner that reflects the unique features of Bodner review, and respects both judicial independence and the confidentiality of Cabinet decision making. The record on Bodner review necessarily includes any submissions made to the commission by the government, judges and others; the commission's report, including its recommendations; and the government's response to the recommendations. Certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met, including evidence aimed at calling into question the reasonableness of the factual foundation relied on by the government, the government's lack of meaningful engagement with or respect for the commission process or whether the government's response was grounded in an improper or colourable purpose. To those ends, the party seeking review can ask that the government produce evidence in its possession. Since a Bodner review often concerns decisions in which Cabinet plays a part, a party seeking review may request the production of a confidential Cabinet document. Generally, what is in issue in a Bodner review is whether a government failed to meet its constitutional obligations flowing from the principle of judicial independence in its response to a commission's recommendations. The relevance of any proposed additional evidence must therefore be tested in relation to the issues that the court must determine on such a review. To be relevant, the proposed evidence must contain something that tends to address a fact concerning one of the steps of the test established in Bodner. However, something more than relevance is needed to strike the appropriate balance between respecting Cabinet confidentiality and maintaining the overall integrity of Bodner review. Although any inspection of a confidential Cabinet document undermines Cabinet confidentiality to some extent, judicial inspection of a document that concerns Cabinet deliberations about the judiciary would undermine it more significantly. Accordingly, special considerations arise when the party seeking Bodner review asks the government to produce a document related to Cabinet decision making. The party seeking review must point to something in the record, including otherwise admissible evidence, that supports its view that the document may tend to show that the government response failed to meet one or more parts of the Bodner test. It is not enough to simply say that the document was before the decision‑maker or that it would provide additional background or context for the reviewing court. If the party seeking review makes the requisite showing — 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 — the government must produce it for the court's examination. The reviewing court must then examine the document in private to determine whether it, in fact, provides some evidence which tends to show that the government failed to meet one of the parts of the Bodner test. The document must be of assistance in challenging the legitimacy of the government's reasons, the reasonableness of the factual foundation it relied on, the respect it has shown the commission process or whether the objectives of the process have been achieved. Even if the document meets this test, its production remains subject to any other rule of evidence that bars its disclosure, such as public interest immunity. This doctrine prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure. Public interest immunity requires a careful balancing of these competing public interests, which must be weighed with reference to a specific document in the context of a particular proceeding. The government has the burden of establishing that a document should not be disclosed because of public interest immunity. In the case of confidential Cabinet documents, since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant disclosure. The main factors relevant to balancing the public interests in confidentiality and disclosure are identified in [Carey v. Ontario, 1986 7 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), [1986] 2 S.C.R. 637: the level of the decision‑making process; the nature of the policy concerned; the contents of the documents; the timing of disclosure; the interests of the administration of justice; and whether the party seeking the production of the documents alleges unconscionable behaviour on the part of the government. In the Bodner review context, various factors will often weigh in favour of keeping a document confidential. The Cabinet decision‑making process is among the highest levels of decision making within the executive. Judicial remuneration is an important and sensitive area of public policy. The contents of a document concerning Cabinet deliberations may well reflect the views of individual ministers of the Crown and reveal disagreement among ministers; as a result, its contents will frequently be highly sensitive. Depending on the contents of the document, the timing may also weigh in favour of keeping the document confidential. The interests of the administration of justice encompass a broad set of considerations, including the importance of the case and the need or desirability of producing the document. In the Bodner review context, these considerations cut both ways. Although such reviews are of great importance, the fact that a party seeks production of a relevant confidential Cabinet document in this context is not itself a general basis for disclosure. When considering the interests of the administration of justice, the focus must remain on the degree to which the document bears on what is at issue in the litigation. If the document tends to establish that the government set out to provide misleading public reasons for its response to the commission's recommendations, relied on a fundamentally flawed factual foundation, acted with an improper or colourable purpose, or was indifferent or disrespectful towards the commission process, this bears so directly — and so determinately — on the outcome of the Bodner review that to exclude the document would be contrary to the interests of the administration of justice. By contrast, if a Cabinet document's impact on the Bodner review would be limited, and if its exclusion from the record could hardly keep the reviewing court from adjudicating the issues on their merits, the probative value of such evidence might not weigh heavily enough to warrant disclosure. In the instant case, the Association did not meet the threshold necessary to compel production of the Cabinet document for judicial inspection. The Association failed to provide any evidence or point to any circumstances that suggest that the Cabinet submission may indicate that the government did not meet the standard required by Bodner. There is nothing on the face of the record that indicates the Cabinet submission may contain some evidence which tends to show that the government failed to meet a constitutional requirement. Furthermore, it is not sufficient to point to prior litigation in which the government relied on an inappropriate consideration — as revealed in a past Cabinet submission produced as part of the record — in order to make the Cabinet submission in the present case relevant. Something more would be required for there to be reason to believe that the submission may contain evidence that would tend to show that the government failed to meet a requirement described in Bodner. Since the Association has failed to make the requisite threshold showing, the Attorney General need not produce the document for examination by the Court. It is unnecessary to determine whether any other rule of evidence, such as public interest immunity, would apply so as to permit the Attorney General to refuse to produce the Cabinet submission. --- ## Cases Cited **Explained:** [Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44](https://www.canlii.org/en/ca/scc/doc/2005/2005scc44/2005scc44.html), [2005] 2 S.C.R. 286; [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii317/1997canlii317.html), [1997] 3 S.C.R. 3; [Carey v. Ontario, 1986 7 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), [1986] 2 S.C.R. 637; **referred to:** [Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21](https://www.canlii.org/en/ca/scc/doc/2020/2020scc21/2020scc21.html), [2020] 2 S.C.R. 556; [Stonechild, Re, 2007 SKCA 74](https://www.canlii.org/en/sk/skca/doc/2007/2007skca74/2007skca74.html), 304 Sask. R. 1; [Beauregard v. Canada, 1986 24 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii24/1986canlii24.html), [1986] 2 S.C.R. 56; [Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21](https://www.canlii.org/en/ca/scc/doc/2014/2014scc21/2014scc21.html), [2014] 1 S.C.R. 433; [Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39](https://www.canlii.org/en/ca/scc/doc/2016/2016scc39/2016scc39.html), [2016] 2 S.C.R. 116; [Ell v. Alberta, 2003 SCC 35](https://www.canlii.org/en/ca/scc/doc/2003/2003scc35/2003scc35.html), [2003] 1 S.C.R. 857; [Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13](https://www.canlii.org/en/ca/scc/doc/2002/2002scc13/2002scc13.html), [2002] 1 S.C.R. 405; [Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC)](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii74/1991canlii74.html), [1991] 2 S.C.R. 525; [Wells v. Newfoundland, 1999 657 (SCC)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii657/1999canlii657.html), [1999] 3 S.C.R. 199; [Delios v. Canada (Attorney General), 2015 FCA 117](https://www.canlii.org/en/ca/fca/doc/2015/2015fca117/2015fca117.html), 100 Admin. L.R. (5th) 301; [Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41](https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca41/2016bcca41.html), 80 B.C.L.R. (5th) 243; [R. v. White, 2011 SCC 13](https://www.canlii.org/en/ca/scc/doc/2011/2011scc13/2011scc13.html), [2011] 1 S.C.R. 433; [Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56](https://www.canlii.org/en/ca/scc/doc/2011/2011scc56/2011scc56.html), [2011] 3 S.C.R. 535; [Provincial Court Judges' Assn. of British Columbia v. British Columbia (Attorney General), 2012 BCSC 1022](https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1022/2012bcsc1022.html), 39 Admin. L.R. (5th) 130; [Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 73 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii73/1989canlii73.html), [1989] 2 S.C.R. 49; [Fraser v. Public Service Staff Relations Board, 1985 14 (SCC)](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii14/1985canlii14.html), [1985] 2 S.C.R. 455; [New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii153/1993canlii153.html), [1993] 1 S.C.R. 319; [Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62](https://www.canlii.org/en/ca/scc/doc/2003/2003scc62/2003scc62.html), [2003] 3 S.C.R. 3; [Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43](https://www.canlii.org/en/ca/scc/doc/2013/2013scc43/2013scc43.html), [2013] 3 S.C.R. 3; [MacKeigan v. Hickman, 1989 40 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii40/1989canlii40.html), [1989] 2 S.C.R. 796; [Canada (House of Commons) v. Vaid, 2005 SCC 30](https://www.canlii.org/en/ca/scc/doc/2005/2005scc30/2005scc30.html), [2005] 1 S.C.R. 667; [Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39](https://www.canlii.org/en/ca/scc/doc/2018/2018scc39/2018scc39.html), [2018] 2 S.C.R. 687; [Reference re Resolution to Amend the Constitution, 1981 25 (SCC)](https://www.canlii.org/en/ca/scc/doc/1981/1981canlii25/1981canlii25.html), [1981] 1 S.C.R. 753; [Reference re Secession of Quebec, 1998 793 (SCC)](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii793/1998canlii793.html), [1998] 2 S.C.R. 217; [Babcock v. Canada (Attorney General), 2002 SCC 57](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), [2002] 3 S.C.R. 3; [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1998 833 (SCC)](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii833/1998canlii833.html), [1998] 1 S.C.R. 3; [Quebec (Commission des droits de la personne) v. Attorney General of Canada, 1982 161 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii161/1982canlii161.html), [1982] 1 S.C.R. 215; [R. v. D.L.W., 2016 SCC 22](https://www.canlii.org/en/ca/scc/doc/2016/2016scc22/2016scc22.html), [2016] 1 S.C.R. 402; [R. v. Ahmad, 2011 SCC 6](https://www.canlii.org/en/ca/scc/doc/2011/2011scc6/2011scc6.html), [2011] 1 S.C.R. 110; [Smallwood v. Sparling, 1982 215 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii215/1982canlii215.html), [1982] 2 S.C.R. 686; [Bisaillon v. Keable, 1983 26 (SCC)](https://www.canlii.org/en/ca/scc/doc/1983/1983canlii26/1983canlii26.html), [1983] 2 S.C.R. 60; [Ainsworth Lumber Co. v. Canada (Attorney General), 2003 BCCA 239](https://www.canlii.org/en/bc/bcca/doc/2003/2003bcca239/2003bcca239.html), 14 B.C.L.R. (4th) 302; [Telezone Inc. v. Canada (Attorney General) (2004), 2004 36102 (ON CA)](https://www.canlii.org/en/on/onca/doc/2004/2004canlii36102/2004canlii36102.html), 69 O.R. (3d) 161; [Michaud v. Quebec (Attorney General), 1996 167 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii167/1996canlii167.html), [1996] 3 S.C.R. 3; [R. v. Barros, 2011 SCC 51](https://www.canlii.org/en/ca/scc/doc/2011/2011scc51/2011scc51.html), [2011] 3 S.C.R. 368; Somerville v. Scottish Ministers, [2007] UKHL 44, [2007] 1 W.L.R. 2734; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531; Conway v. Rimmer, [1968] A.C. 910; [Nova Scotia Provincial Judges' Association v. Nova Scotia (Attorney General), 2018 NSSC 13](https://www.canlii.org/en/ns/nssc/doc/2018/2018nssc13/2018nssc13.html), 409 C.R.R. (2d) 117; [Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2018 NSCA 83](https://www.canlii.org/en/ns/nsca/doc/2018/2018nsca83/2018nsca83.html), 429 D.L.R. (4th) 359; [Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66](https://www.canlii.org/en/ca/scc/doc/2004/2004scc66/2004scc66.html), [2004] 3 S.C.R. 381; Commonwealth v. Northern Land Council (1993), 176 C.L.R. 604; Air Canada v. Secretary of State for Trade, [1983] 2 A.C. 394. --- ## Statutes and Regulations Cited Attorney General Act, R.S.B.C. 1996, c. 22, s. 2(j). Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 37 to 39. Canadian Charter of Rights and Freedoms, s. 11(d). Code of Civil Procedure, CQLR, c. C‑25.01, art. 283. Constitution Act, R.S.B.C. 1996, c. 66, s. 10(3). Constitution Act, 1867, preamble, ss. 11, 18, 54, 90 to 92, 96 to 101, 100 to 102, 106, 126. Constitution Act, 1982, s. 42(1)(d). Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 13(2). Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 9. Judicial Compensation Act, S.B.C. 2003, c. 59, ss. 2, 5(1), (3), (5), (5.1), (5.2), 6(1), (2), (3), (4), 7.1, 8(1). O.C. 213/2017. Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 11. Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 22‑1(4)(c). --- ## Authors Cited d'Ombrain, Nicholas. "Cabinet secrecy" (2004), 47 Canadian Public Administration 332. Forcese, Craig, and Aaron Freeman. *The Laws of Government: The Legal Foundations of Canadian Democracy*, 2nd ed. Toronto: Irwin Law, 2011. Heard, Andrew. *Canadian Constitutional Conventions: The Marriage of Law & Politics*, 2nd ed. Oxford: Oxford University Press, 2014. Royer, Jean‑Claude, et Catherine Piché. *La preuve civile*, 5e éd. Montréal: Yvon Blais, 2016. --- APPEAL from a judgment of the British Columbia Court of Appeal (Bauman C.J.B.C. and Harris and Dickson JJ.A.), [2018 BCCA 394](https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca394/2018bcca394.html), 19 B.C.L.R. (6th) 188, 430 D.L.R. (4th) 660, 48 Admin. L.R. (6th) 279, [2018] B.C.J. No. 3445 (QL), 2018 CarswellBC 2776 (WL Can.), affirming a decision of Hinkson C.J.S.C., [2018 BCSC 1390](https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1390/2018bcsc1390.html), 19 B.C.L.R. (6th) 168, [2018] B.C.J. No. 2995 (QL), 2018 CarswellBC 2158 (WL Can.), affirming an order of Master Muir, [2018 BCSC 1193](https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1193/2018bcsc1193.html), [2018] B.C.J. No. 1410 (QL), 2018 CarswellBC 1891 (WL Can.). Appeal allowed. Stein K. Gudmundseth, Q.C., Andrew D. Gay, Q.C., and Clayton J. Gallant, for the appellant. Joseph J. Arvay, Q.C., and Alison M. Latimer, for the respondent. Michael H. Morris and Marilyn Venney, for the intervener the Attorney General of Canada. Sarah Kraicer and Andrea Bolieiro, for the intervener the Attorney General of Ontario. Brigitte Bussières and Robert Desroches, for the intervener the Attorney General of Quebec. Thomson Irvine, Q.C., for the intervener the Attorney General of Saskatchewan. Doreen C. Mueller, for the intervener the Attorney General of Alberta. Pierre Bienvenu, Azim Hussain and Jean‑Simon Schoenholz, for the intervener the Canadian Superior Courts Judges Association. Guy J. Pratte, Ewa Krajewska and Neil Abraham, for the intervener the Canadian Bar Association. Steven M. Barrett and Colleen Bauman, for the intervener the Canadian Association of Provincial Court Judges. Adam Goldenberg and Stephanie Willsey, for the intervener the Canadian Taxpayers Federation. Andrew K. Lokan and Lauren Pearce, for the intervener the Canadian Civil Liberties Association. --- ## Reasons for Judgment The judgment of the Court was delivered by **Karakatsanis J. —** [ 1 ] This appeal arises in litigation that implicates the relationship between two branches of the state. It requires this Court to balance several constitutional imperatives relating to the administration of justice and the separation of powers between the executive, legislative and judicial branches of the state: the financial dimension of judicial independence; the shared responsibility of the executive and legislature to make decisions about public money; and the public interest in ensuring the executive can conduct its internal business in confidence. [ 2 ] This appeal, along with its companion appeal, [Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21](https://www.canlii.org/en/ca/scc/doc/2020/2020scc21/2020scc21.html), [2020] 2 S.C.R. 556, asks whether a Cabinet submission concerning a government's response to a judicial compensation commission's recommendations is properly part of the record on a judicial review of the government's response. If so, the further issue arises whether the Attorney General of British Columbia should nevertheless be permitted to refuse to produce the submission on grounds of public interest immunity. [ 3 ] The British Columbia courts found that the confidential Cabinet document requested by the Provincial Court Judges' Association of British Columbia was relevant and not protected by public interest immunity, and ordered that the Attorney General produce it. [ 4 ] In my view, they were wrong to do so. [ 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](https://www.canlii.org/en/ca/scc/doc/2005/2005scc44/2005scc44.html), [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. [ 7 ] Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant the document's disclosure. In the Bodner context, the strength of the public interest in disclosure will often depend on the importance of the document to determining the issues before the court in the Bodner review. [ 8 ] Here, the Provincial Court Judges' Association did not meet the threshold necessary to compel production of a confidential Cabinet document for judicial inspection. While this is not a high bar, it is not met simply by showing that the government considered the Cabinet document before making its response. I would allow the appeal and quash the order for production of the Cabinet submission. --- ## I. Background ### A. Judicial Compensation Act, S.B.C. 2003, c. 59 [ 9 ] In the [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii317/1997canlii317.html), [1997] 3 S.C.R. 3 (*Provincial Judges Reference*), this Court set out the constitutional baseline for making changes to judicial remuneration. The Judicial Compensation Act implements that baseline in British Columbia. [ 10 ] The Judicial Compensation Act provides for the appointment of a triennial judicial compensation commission to make recommendations about the remuneration, allowances and benefits of provincial judges and judicial justices: ss. 2 and 5(1). The commission must consider a prescribed set of factors and may consider other factors, provided it justifies their relevance: s. 5(5), (5.1) and (5.2). The commission communicates its recommendations in a final report to the Attorney General: s. 5(3).[^2] [ 11 ] Upon receipt of the commission's report, the Attorney General must then lay the report before the Legislative Assembly of British Columbia within a statutory timeline: s. 6(1). The Attorney General must also advise the Assembly that if it does not reject the commission's recommendations within a statutory timeline, the recommendations will go into effect: s. 6(1) and (3). The Assembly can then pass a resolution rejecting one or more recommendations and set judicial remuneration, allowances and benefits: s. 6(2). The resolution has binding legal effect: ss. 6(4) and 8(1). --- ### B. Judicial Compensation Commission's Recommendations and Government's Response [ 12 ] In October 2016, the Judicial Compensation Commission submitted its final report to the Attorney General and made recommendations for the 2017‑20 period. The commission recommended an 8.2 percent increase in the salary of provincial judges in 2017‑18 and a 1.5 percent increase in both 2018‑19 and 2019‑20.[^3] The commission also recommended that the Provincial Court Judges' Association be reimbursed for the entirety of its costs of participating in the commission process. [ 13 ] At some point after the commission submitted its report, the Attorney General made a submission to Cabinet concerning the commission's recommendations and the government's response. The Cabinet submission is not in the record before this Court and was not put before the courts below. Moreover, there is no evidence in the record about what the submission might contain. [ 14 ] Having laid the commission's report before the Legislative Assembly in September 2017, the Attorney General tabled the government's proposed response to the commission's report in October 2017. The Attorney General did not table the Cabinet submission and there is no indication in the record that any member of the Legislative Assembly other than those serving in Cabinet was aware of the contents of the submission. [ 15 ] The Attorney General moved to pass a resolution rejecting the commission's recommended increase in the salary of provincial judges and adopting a 3.8 percent increase in 2017‑18 and a 1.5 percent increase in both 2018‑19 and 2019‑20.[^4] The Attorney General also proposed reducing the recommended reimbursement for the Provincial Court Judges' Association's costs of participating in the commission process from approximately $93,000 to about $66,000 in accordance with the formula established by s. 7.1 of the Judicial Compensation Act. With the support of government and opposition members, the Legislative Assembly passed the resolution. [ 16 ] The Provincial Court Judges' Association petitioned for judicial review of the Legislative Assembly's resolution. Among other things, the Provincial Court Judges' Association asked to have the resolution quashed and sought a declaration that the government's response and the resolution were inconsistent with the Judicial Compensation Act and with the constitutional principle of judicial independence. [ 17 ] In anticipation of the hearing of their petition on the merits, the Provincial Court Judges' Association asked the Attorney General to produce the Cabinet submission relied on in preparing the government's response. The Attorney General refused, so the Association sought an order to require the Attorney General to produce the submission: see Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 22‑1(4)(c). --- ## II. Procedural History ### A. Supreme Court of British Columbia, 2018 BCSC 1193 (Master Muir) [ 18 ] The Provincial Court Judges' Association's motion was initially heard by a Supreme Court of British Columbia master. The master noted that the Attorney General did not contest that the government's response was informed by a detailed submission to Cabinet: para. 9. [ 19 ] Turning to relevance, while acknowledging that the government had not referred to or relied on the submission to Cabinet in making its decision, the master concluded that the submission was relevant to the Bodner review and specifically to whether the government relied on a reasonable factual foundation in developing its response to the commission's recommendation, and whether its response demonstrates meaningful engagement with the commission process: paras. 9 and 18‑21. [ 20 ] Regarding public interest immunity, the master explained that the Attorney General did not provide any specific evidence of harm that would result from the production of the Cabinet submission: para. 23. The importance of review of the government's response and the need for transparency outweighed the public interest in its remaining confidential: paras. 23 and 27. The master ordered the Attorney General to produce the Cabinet submission: para. 28. --- ### B. Supreme Court of British Columbia, [2018 BCSC 1390](https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1390/2018bcsc1390.html), 19 B.C.L.R. (6th) 168 (Hinkson C.J.S.C.) [ 21 ] The Supreme Court of British Columbia dismissed the appeal from the master's decision. Like the master, the court did not examine the Cabinet submission: para. 45. [ 22 ] Hinkson C.J.S.C. found no error in the master's conclusion that the Cabinet submission was relevant, agreeing that the submission was relevant to the issue whether the government respected the commission process such that the overall objectives of the process were achieved: paras. 34‑35. [ 23 ] The court found no error in the master's conclusion that public interest immunity did not apply based on the factors identified in [Carey v. Ontario, 1986 7 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), [1986] 2 S.C.R. 637. The court emphasized that the submission related to the subject matter of the litigation and that the Attorney General did not offer in any evidence that any particular harm would flow from disclosure: para. 46. --- ### C. Court of Appeal for British Columbia, [2018 BCCA 394](https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca394/2018bcca394.html), 19 B.C.L.R. (6th) 188 (Bauman C.J.B.C., Harris and Dickson JJ.A.) [ 24 ] The Court of Appeal for British Columbia dismissed the Attorney General's further appeal from the Supreme Court's decision. Writing for the Court of Appeal, Bauman C.J.B.C. explained that although the Legislative Assembly is the decision‑maker under the Judicial Compensation Act, the Attorney General prepares the government's draft response for approval by Cabinet before presenting it to the Legislative Assembly: para. 9. Cabinet is thus directly involved in the decision‑making process. [ 25 ] The Court of Appeal concluded that the Cabinet submission was necessarily relevant given that it informed the government's response to the commission's recommendations: paras. 9 and 16. Since Cabinet was "a primary actor in the impugned 'government response' . . ., the Cabinet submission is clearly 'evidence which was before the administrative decision‑maker'" and should be included in the record on judicial review: para. 19, quoting [Stonechild, Re, 2007 SKCA 74](https://www.canlii.org/en/sk/skca/doc/2007/2007skca74/2007skca74.html), 304 Sask. R. 1, cited as *Hartwig v. Saskatchewan (Commission of Inquiry)*, at para. 33. The Court of Appeal also affirmed Hinkson C.J.S.C.'s analysis on public interest immunity: para. 22. --- ## III. Issues [ 26 ] This appeal raises two issues: (a) whether the Cabinet submission in this case should form part of the record on Bodner review and (b) whether the Cabinet submission is protected by public interest immunity. --- ## IV. Analysis ### A. Judicial Independence and the Nature of Bodner Review [ 27 ] This appeal arises in the context of review of a government's response to a judicial compensation commission's recommendations. Such review aims to safeguard judicial independence. [ 28 ] The constitutional principle of judicial independence flows from the recital in the preamble to the Constitution Act, 1867 that our country is to have a "Constitution similar in Principle to that of the United Kingdom", ss. 96 to 101 of the Constitution Act, 1867, s. 11(d) of the Canadian Charter of Rights and Freedoms and s. 42(1)(d) of the Constitution Act, 1982: [Beauregard v. Canada, 1986 24 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii24/1986canlii24.html), [1986] 2 S.C.R. 56, at pp. 72‑73; *Provincial Judges Reference*, at paras. 84 and 105‑9; [Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21](https://www.canlii.org/en/ca/scc/doc/2014/2014scc21/2014scc21.html), [2014] 1 S.C.R. 433, at para. 94; [Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39](https://www.canlii.org/en/ca/scc/doc/2016/2016scc39/2016scc39.html), [2016] 2 S.C.R. 116, at para. 31. [ 29 ] These provisions and the broader principle of judicial independence serve not only to protect the separation of powers between the branches of the state and thus, the integrity of our constitutional structure, but also to promote public confidence in the administration of justice: [Ell v. Alberta, 2003 SCC 35](https://www.canlii.org/en/ca/scc/doc/2003/2003scc35/2003scc35.html), [2003] 1 S.C.R. 857, at paras. 21‑23; *Conférence des juges de paix magistrats*, at para. 31. They are fundamental to the rule of law and to democracy in Canada. [ 30 ] The overarching principle of judicial independence applies to all courts, whether of civil or criminal jurisdiction and whether their judges are appointed by federal, provincial or territorial authorities: *Provincial Judges Reference*, at para. 106; *Ell*, at paras. 21‑24; *Conférence des juges de paix magistrats*, at para. 32. [ 31 ] The three core characteristics of judicial independence are security of tenure, financial security and administrative independence: *Provincial Judges Reference*, at para. 118. The characteristic at issue in this appeal — financial security — in turn has three components"which all flow from the constitutional imperative that . . . the relationship between the judiciary and the other branches of government be depoliticized": para. 131 (emphasis in original). First, absent a "dire and exceptional financial emergency precipitated by unusual circumstances", a government cannot change judicial remuneration parameters without first seeking the recommendations of an independent body, a "commission": paras. 133 and 137. (Government can, depending on the context, mean the executive, legislature or legislative assembly.) Second, judges cannot engage in negotiations with the government over remuneration: para. 134. Finally, judicial remuneration cannot fall below the basic minimum level required for the office of a judge: para. 135. [ 32 ] More specifically, this appeal concerns the first component of financial security: the convening of a judicial compensation commission to make recommendations concerning judicial remuneration. The commission charged with making such recommendations must be independent, effective and objective: *Provincial Judges Reference*, at para. 133. [ 33 ] The effectiveness requirement means that the commission must be regularly convened, that no changes can be made to remuneration until the commission submits its report and that "the reports of the commission must have a meaningful effect on the determination of judicial salaries": *Provincial Judges Reference*, at paras. 174‑75 and 179; see also *Bodner*, at para. 29. [ 34 ] To ensure that the commission's recommendations have a meaningful effect, the government must formally respond to the commission's report: *Provincial Judges Reference*, at para. 179; *Bodner*, at para. 22. Because of the executive and legislature's shared constitutional responsibility to make decisions about the expenditure of public money,[^5] the commission's recommendations are not binding (unless the legislature so provides). The government must, however, give specific reasons justifying any departure from the recommendations: *Provincial Judges Reference*, at para. 180; *Bodner*, at paras. 18 and 20‑21; *Conférence des juges de paix magistrats*, at para. 35. [ 35 ] To hold a government to its constitutional obligations in jurisdictions where a commission's recommendations are not binding, the government's response to the commission's recommendations is subject to what this Court described in *Bodner* as a "limited form of judicial review": paras. 29 and 42. The standard of justification to uphold the government's response is that of "rationality": *Provincial Judges Reference*, at paras. 183‑84; [Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13](https://www.canlii.org/en/ca/scc/doc/2002/2002scc13/2002scc13.html), [2002] 1 S.C.R. 405, at para. 57; *Bodner*, at para. 29. Both the standard of justification and the test used to measure the government's response against that standard are "deferential": *Bodner*, at paras. 30, 40 and 43. Both the fact that the government remains ultimately responsible for setting judicial compensation and the fact that the nature of a Bodner review is limited serve to balance the constitutional interests at stake. [ 36 ] The three‑part Bodner test requires examining: (1) whether the government has articulated a legitimate reason for departing from the commission's recommendations; (2) whether the government's reasons rely upon a reasonable factual foundation; and (3) whether the commission process has been respected and its purposes — preserving judicial independence and depoliticizing the setting of judicial remuneration — have been achieved: *Bodner*, at para. 30. [ 37 ] The limited nature of Bodner review, the role of the reviewing court and the purpose of the process have implications for the evidence considered by the reviewing court. The rules of evidence and production must be applied in a manner that reflects the unique features of Bodner review, and that respects both judicial independence and the confidentiality of Cabinet decision making. --- ### B. The Record on Bodner Review [ 38 ] The record on Bodner review necessarily includes any submissions made to the commission by the government, judges and others; the commission's report, including its recommendations; and the government's response to the recommendations. [ 39 ] Additionally, certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met. The party seeking review may introduce additional evidence aimed at calling into question the reasonableness of the factual foundation relied on by the government, the government's lack of meaningful engagement with or respect for the commission process or whether the government's response was grounded in an improper or colourable purpose. [ 40 ] To those ends, the party seeking review can ask that the government produce evidence in its possession. Since a Bodner review often concerns decisions in which Cabinet plays a part, a party seeking review may request the production of a confidential Cabinet document. [ 41 ] Generally, what is in issue in a Bodner review is whether a government failed to meet its constitutional obligations flowing from the principle of judicial independence in its response to a commission's recommendations. The relevance of any proposed additional evidence must therefore be tested in relation to the issues that the court must determine on such a review. To be relevant, the proposed evidence must contain something that tends to address a fact concerning one of the steps of the test established in *Bodner*. [ 42 ] The Court of Appeal in this case reasoned, in essence, that since Cabinet was "a primary actor in the impugned 'government response'", the Cabinet submission should be treated as automatically included in the record: C.A. reasons, at para. 19. For several reasons, I cannot agree. [ 43 ] First, the Court of Appeal's reasoning reflects an understanding of Bodner review as analogous to administrative judicial review in the ordinary sense. While there are superficial similarities, as I noted earlier, Bodner review is a unique form of review. Unlike the situation in ordinary judicial review, where the record on review is often the record that was before the decision‑maker, in Bodner review the record is not the record that was before the decision‑maker. [ 44 ] Second, the Court of Appeal's reasoning, if accepted, would effectively mean that in any case in which Cabinet played a part, Cabinet documents would form part of the record on Bodner review. This would impair the confidentiality of Cabinet decision making, which I have explained is a significant concern that must be respected in the context of Bodner review. [ 45 ] Third, the Court of Appeal's automatic inclusion approach is difficult to reconcile with the limited nature of Bodner review. Bodner review focuses on the government's response to the commission's recommendations and whether the constitutional requirements flowing from judicial independence were met. The evidence that is relevant to this review need not include all the evidence that may have been before Cabinet. [ 46 ] Fourth, the Court of Appeal's approach fails to account for the special considerations that arise when the party seeking Bodner review asks the government to produce a document related to Cabinet decision making. [ 47 ] These special considerations flow from the unique nature of Bodner review — in particular, its focus on the government's response to the commission's recommendations and on ensuring that the government has given reasons that meet the requirements described in *Bodner* — and from the significant public interest in the confidentiality of Cabinet deliberations. [ 48 ] I now turn to the threshold that a party seeking Bodner review must meet to require the government to produce a document relating to Cabinet deliberations. --- ### C. The Threshold for Production of a Confidential Cabinet Document on Bodner Review [ 49 ] As I have said, a party seeking Bodner review may introduce additional evidence relevant to determining whether any part of the Bodner test has been met. The same principle applies to the production of documents: a party may seek the production of documents to assist in making this determination. [ 50 ] With respect to the identification of the formal decision‑maker, neither the *Provincial Judges Reference* nor *Bodner* prescribes that a particular institution must make the decision to respond to a commission's recommendations. In some cases, it may be clear that only a single institution is involved, but in a jurisdiction like British Columbia where both the executive and Legislative Assembly play a substantive role, it would be artificial to focus solely on the Legislative Assembly's part and ignore the executive's involvement. Indeed, in this case the executive's proposed reasons for departing from the commission's recommendations were incorporated by reference into the resolution passed by the Legislative Assembly. [ 51 ] More importantly, in my view, the *Provincial Judges Reference* and *Bodner* describe a unique form of review distinct from judicial review in the ordinary administrative law sense. In contrast to judicial review, Bodner review is available even when the decision‑maker is the legislature (or any part of the legislature): see [Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC)](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii74/1991canlii74.html), [1991] 2 S.C.R. 525, at p. 558; [Wells v. Newfoundland, 1999 657 (SCC)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii657/1999canlii657.html), [1999] 3 S.C.R. 199, at para. 59. Further, the grounds for a Bodner review are narrower than those for a usual judicial review. The Bodner grounds centre on the legitimacy and sufficiency of a government's reasons for departing from a commission's recommendations, whether the government has respected the commission process more generally and whether the objectives of the process have been achieved. [ 52 ] Since the basis for Bodner review is narrower than for ordinary judicial review, it follows that the record on Bodner review may be narrower than the record on ordinary judicial review. Given the unique nature of Bodner review, the question of what constitutes the record on Bodner review must be asked with the specific purposes of that review in mind. [ 53 ] Further, to require the production of documents relating to Cabinet deliberations, something more than relevance is needed to strike the appropriate balance between respecting Cabinet confidentiality and maintaining the overall integrity of Bodner review. [ 54 ] Although any inspection of a confidential Cabinet document undermines Cabinet confidentiality to some extent, judicial inspection of a document that concerns Cabinet deliberations about the judiciary would undermine it more significantly. The concern about such documents is particularly acute in the Bodner context, because what may appear to be Cabinet deliberations about a government's fiscal policy may, in substance, be Cabinet deliberations about how to respond to the judiciary about the judiciary's remuneration. Disclosing such documents risks compromising Cabinet's ability to deliberate candidly and frankly about matters that concern the relationship between the executive and the judiciary, and more generally, about matters of great importance to the administration of justice. [ 55 ] Accordingly, special considerations arise when the party seeking Bodner review asks the government to produce a document related to Cabinet decision making. The party seeking review must point to something in the record, including otherwise admissible evidence, that supports its view that the document may tend to show that the government response failed to meet one or more parts of the Bodner test. It is not enough to simply say that the document was before the decision‑maker or that it would provide additional background or context for the reviewing court. [ 56 ] This threshold is intended to prevent fishing expeditions into Cabinet deliberations, while still allowing a party seeking Bodner review to challenge the government's compliance with its constitutional obligations in cases where the evidence supports its assertion that such compliance may be in doubt. [ 57 ] Specifically, the party seeking review must demonstrate that there is some basis to believe that the document may contain evidence that tends to show that the government failed to give reasons that are legitimate, relied on a factual foundation that is unreasonable, or failed to respect the commission process or achieve the commission's objectives. [ 58 ] If the party seeking review makes the requisite showing — 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* — the government must produce it for the court's examination. The reviewing court must then examine the document in private to determine whether it, in fact, provides some evidence which tends to show that the government failed to meet one of the parts of the Bodner test. The document must be of assistance in challenging the legitimacy of the government's reasons, the reasonableness of the factual foundation it relied on, the respect it has shown the commission process or whether the objectives of the process have been achieved. [ 59 ] Even if the document meets this test, its production remains subject to any other rule of evidence that bars its disclosure, such as public interest immunity. [ 60 ] I note that in an appropriate case, the party seeking Bodner review may instead seek to introduce evidence from other sources to make the requisite showing. Such other evidence may relate to the government's lack of candour in presenting public reasons for its response to the commission's recommendations, to a pattern of inappropriate political considerations in past government responses to commission recommendations, or to other matters. This Court should not shut the door on what evidence may be sufficient to make the requisite showing in a given case. [ 61 ] The threshold I have set out does not conflict with the general principle that a reviewing court may examine a document in private to determine whether it should be admitted into evidence: see, e.g., [Delios v. Canada (Attorney General), 2015 FCA 117](https://www.canlii.org/en/ca/fca/doc/2015/2015fca117/2015fca117.html), 100 Admin. L.R. (5th) 301, at para. 42; [Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41](https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca41/2016bcca41.html), 80 B.C.L.R. (5th) 243, at paras. 59 and 68. In those cases, the examination of the document in private is one tool for the judge to use in determining whether the document should be admitted. But the decision to admit a document into evidence is distinct from the decision to require the government to produce a document. The latter decision triggers the intrusion into Cabinet confidentiality. [ 62 ] The threshold I have set out is consistent with the approach taken in other jurisdictions for the production of confidential Cabinet documents. See, for example, [R. v. White, 2011 SCC 13](https://www.canlii.org/en/ca/scc/doc/2011/2011scc13/2011scc13.html), [2011] 1 S.C.R. 433, at para. 33; [Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56](https://www.canlii.org/en/ca/scc/doc/2011/2011scc56/2011scc56.html), [2011] 3 S.C.R. 535, at para. 46. [ 63 ] I will now consider whether the Association has met the threshold in this case. --- ### D. Application to this Case [ 64 ] The question is whether the Association has established that there is some basis to believe that the Cabinet submission may contain evidence which tends to show that the government failed to meet one of the requirements described in *Bodner*. In my view, it has not. [ 65 ] There is no evidence in the record that the Cabinet submission may contain something which tends to show that the government failed to meet a constitutional requirement — that is, that the government failed to give reasons that are legitimate, or relied on a factual foundation that is unreasonable, or that the commission process was not respected or that its objectives were not achieved. [ 66 ] It may be that a party would be able to make the requisite showing where, for example, there is some evidence that the government was motivated to respond to the commission's recommendations on the basis of improper considerations, or where there is some evidence that the government's response lacked a reasonable factual foundation. But absent any evidence pointing in those directions, the mere fact that a Cabinet submission exists does not establish that the Cabinet submission may contain evidence that tends to show a constitutional failure. [ 67 ] The Association points to prior litigation in which the government relied on an inappropriate consideration — as revealed in a past Cabinet submission that was produced as part of the record in that litigation — and argues this makes the Cabinet submission in the present case relevant. I cannot agree. It is not sufficient to point to prior litigation in which a past Cabinet submission revealed the government's reliance on an inappropriate consideration, as this does not establish that the Cabinet submission in the current litigation may similarly reveal something that tends to show that the government failed to meet a constitutional requirement. Something more would be required for there to be reason to believe that the submission may contain evidence that would tend to show that the government failed to meet a requirement described in *Bodner*. [ 68 ] My conclusion is consistent with what has been held in other Canadian jurisdictions: see [Provincial Court Judges' Assn. of British Columbia v. British Columbia (Attorney General), 2012 BCSC 1022](https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1022/2012bcsc1022.html), 39 Admin. L.R. (5th) 130. This Court's jurisprudence also provides some support for my conclusion: see, e.g., [Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 73 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii73/1989canlii73.html), [1989] 2 S.C.R. 49; [Fraser v. Public Service Staff Relations Board, 1985 14 (SCC)](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii14/1985canlii14.html), [1985] 2 S.C.R. 455; [New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii153/1993canlii153.html), [1993] 1 S.C.R. 319; [Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62](https://www.canlii.org/en/ca/scc/doc/2003/2003scc62/2003scc62.html), [2003] 3 S.C.R. 3; [Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43](https://www.canlii.org/en/ca/scc/doc/2013/2013scc43/2013scc43.html), [2013] 3 S.C.R. 3; [MacKeigan v. Hickman, 1989 40 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii40/1989canlii40.html), [1989] 2 S.C.R. 796. [ 69 ] More generally, courts have recognized the importance of Cabinet confidentiality as it relates to the separation of powers and the proper functioning of government: [Canada (House of Commons) v. Vaid, 2005 SCC 30](https://www.canlii.org/en/ca/scc/doc/2005/2005scc30/2005scc30.html), [2005] 1 S.C.R. 667; [Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39](https://www.canlii.org/en/ca/scc/doc/2018/2018scc39/2018scc39.html), [2018] 2 S.C.R. 687; [Reference re Resolution to Amend the Constitution, 1981 25 (SCC)](https://www.canlii.org/en/ca/scc/doc/1981/1981canlii25/1981canlii25.html), [1981] 1 S.C.R. 753; [Reference re Secession of Quebec, 1998 793 (SCC)](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii793/1998canlii793.html), [1998] 2 S.C.R. 217. [ 70 ] Since the Association has failed to make the requisite threshold showing, the Attorney General need not produce the document for examination by the Court. It is therefore unnecessary to consider whether the Cabinet submission is independently protected from production by public interest immunity or any other rule of evidence. --- ### E. Public Interest Immunity [ 71 ] For completeness, I turn to the question of public interest immunity. While it is not strictly necessary to address this issue in light of my conclusion that the Association has not met the threshold for production, I will briefly explain how public interest immunity operates in the Bodner context. [ 72 ] Public interest immunity prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure. [ 73 ] In the Bodner review context, the doctrine of public interest immunity requires the court to balance the public interest in the confidentiality of the Cabinet document against the public interest in the disclosure of that document. [ 74 ] On one side of the balance is the public interest in the confidentiality of Cabinet deliberations. This interest is deeply embedded in constitutional convention and practical considerations relating to the proper functioning of government: [Babcock v. Canada (Attorney General), 2002 SCC 57](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), [2002] 3 S.C.R. 3, at paras. 18‑19; [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1998 833 (SCC)](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii833/1998canlii833.html), [1998] 1 S.C.R. 3. [ 75 ] On the other side of the balance is the public interest in disclosure, which in the Bodner context is tied to the importance of ensuring that the government complies with its constitutional obligations in responding to the commission's recommendations. The strength of this interest will depend on the probative value of the Cabinet document — that is, the degree to which the document bears on what is at issue in the litigation. [ 76 ] The main factors relevant to balancing the public interests in confidentiality and disclosure of documents concerning public decision making, including at the Cabinet level, are identified in [Carey v. Ontario, 1986 7 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), [1986] 2 S.C.R. 637: the level of the decision‑making process; the nature of the policy concerned; the contents of the documents; the timing of disclosure; the interests of the administration of justice; and whether the party seeking the production of the documents alleges unconscionable behaviour on the part of the government. I explain each in turn. [ 77 ] The level of the decision‑making process is highly relevant. The Cabinet level is the highest level of decision making within the executive branch of government. [ 78 ] The nature of the policy concerned is also relevant. Judicial remuneration is a sensitive and important area of public policy, involving not only the allocation of public money, but also the relationship between the executive and the judiciary, and ultimately, judicial independence. [ 79 ] The contents of the document are particularly important. A document relating to Cabinet deliberations may contain the views of individual ministers and reveal disagreement among ministers. The court cannot fully assess this factor without examining the document; this factor thus supports judicial inspection of the document. [ 80 ] The timing of disclosure may also weigh in favour of keeping the document confidential. A document that simply reveals that Cabinet made a decision to reject a recommendation may bear less confidentiality than one that weighs several possible responses and proposes a particular response. [ 81 ] The interests of the administration of justice encompass both the importance of the case and the need or desirability of producing the documents to ensure that the case can be adequately and fairly presented. [ 82 ] In the Bodner context, these interests cut both ways. Although Bodner reviews are of great importance, the fact that a party seeks production of a confidential Cabinet document in the context of a Bodner review is not itself a general basis for disclosure. The focus must remain on the degree to which the document bears on what is at issue in the litigation. [ 83 ] Finally, the factor relating to unconscionable behaviour will be pertinent in a limited set of cases. This factor is superadded to the broader considerations involving the administration of justice. [ 84 ] These Carey factors must be applied carefully in the Bodner context. In particular, the public interest immunity analysis in the Bodner context cannot be reduced to asking simply whether the government has identified a specific harm that would result from the document's disclosure: see [Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66](https://www.canlii.org/en/ca/scc/doc/2004/2004scc66/2004scc66.html), [2004] 3 S.C.R. 381, at para. 58. [ 85 ] I will now describe how these factors apply in the Bodner context, before turning to the specific facts of this case. [ 86 ] The Bodner context presents a unique situation for public interest immunity analysis. Unlike in ordinary administrative judicial review, the court has already examined the document before determining whether it is admissible into evidence. The court's earlier examination of the document means that it can assess the document's probative value — and thus the weight to give to the interests of the administration of justice factor — more accurately than it could in the ordinary administrative judicial review context. [ 87 ] Moreover, since the production analysis and the public interest immunity analysis both involve the same document, the two analyses will often lead to the same result. A document that provides highly probative evidence that the government failed to meet one or more of its constitutional requirements will almost certainly need to be admitted into evidence, and the public interest in its disclosure will almost certainly outweigh the public interest in its remaining confidential. [ 88 ] By contrast, a document that provides less probative evidence that the government failed to meet one or more of its constitutional requirements may not weigh heavily enough to warrant disclosure, and it may be that the public interest in the document's confidentiality outweighs the public interest in its disclosure. [ 89 ] In the Bodner context, certain Carey factors will often weigh in favour of keeping a document confidential. The Cabinet decision‑making process is among the highest levels of decision making within the executive. Judicial remuneration is an important and sensitive area of public policy. The contents of a document concerning Cabinet deliberations may well reflect the views of individual ministers of the Crown and reveal disagreement among ministers; as a result, their contents will frequently be highly sensitive. --- ### (1) Public Interest Immunity in the Context of Bodner Review [ 90 ] The doctrine of public interest immunity recognizes that confidentiality is essential to effective government decision‑making and to the proper functioning of democratic institutions. As this Court has recognized, the confidentiality of Cabinet deliberations is protected by constitutional convention: see [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at paras. 18‑19. [ 91 ] However, the doctrine of public interest immunity does not accord absolute immunity to any class of documents: see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at p. 670; [Quebec (Commission des droits de la personne) v. Attorney General of Canada, 1982 161 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii161/1982canlii161.html), [1982] 1 S.C.R. 215, at p. 228; [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 20. [ 92 ] Public interest immunity is instead a qualified form of protection. A document will be protected from disclosure only where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure. [ 93 ] In the Bodner review context, as I have explained, the court's public interest immunity analysis will be informed by its earlier conclusion on the nature and probative value of the document. If the court has determined that the document tends to establish that the government failed to meet one of its constitutional requirements, the public interest in disclosure will weigh heavily. If, by contrast, the document's impact on the Bodner review is limited, the public interest in disclosure may not outweigh the public interest in confidentiality. [ 94 ] The government has the burden of establishing that a document should not be disclosed because of public interest immunity: [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 653 and 678. The government should put in a detailed affidavit to support its claim of public interest immunity: pp. 653‑54. The court may, in an appropriate case, need to inspect the document to determine whether public interest immunity applies: pp. 674 and 681. [ 95 ] There is a strong public interest in maintaining the confidentiality of deliberations among ministers of the Crown: [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 647 and 656‑59; [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at paras. 18‑19. As a matter of constitutional convention, Cabinet deliberations are confidential: N. d'Ombrain"Cabinet secrecy" (2004), 47 Canadian Public Administration 332, at pp. 334‑35. Federal ministers swear an oath as Privy Counsellors to "honestly and truly declare [their] mind and [their] opinion" and to "keep secret all matters . . . secretly treated of" in Cabinet: see C. Forcese and A. Freeman, *The Laws of Government: The Legal Foundations of Canadian Democracy* (2nd ed. 2011), at p. 352. Provincial and territorial ministers swear a similar oath as executive counsellors. [ 96 ] Ministers enjoy freedom to express their views in Cabinet deliberations, but are expected to publicly defend Cabinet's decision, even where it differs from their views: see A. Heard, *Canadian Constitutional Conventions: The Marriage of Law & Politics* (2nd ed. 2014), at pp. 106‑7; d'Ombrain, at p. 335. The confidentiality of Cabinet deliberations helps ensure that they are candid and frank and that what are often difficult decisions and hard‑won compromises can be reached without undue external interference: see Forcese and Freeman, at p. 352; d'Ombrain, at p. 335. If Cabinet deliberations were made public, ministers could be criticized for publicly defending a policy inconsistent with their private views, which would risk distracting ministers and undermining public confidence in government. [ 97 ] Grounded in constitutional convention as much as in practical considerations, this confidentiality applies whether those deliberations take place in formal meetings of the Queen's Privy Council for Canada,[^6] or a province or territory's Executive Council, or in meetings of Cabinet or of committees composed of ministers, such as Treasury Board. The confidentiality extends not only to records of Cabinet deliberations, but also to documents that reflect on the content of those deliberations: [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 18. [ 98 ] The common law protects the confidentiality of Cabinet deliberations through the doctrine of public interest immunity: [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 60. Public interest immunity forms part of federal common law and the common law of each province and territory: see [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at paras. 19, 23 and 26. As with any common law rule, Parliament or a legislature may limit or do away with public interest immunity, provided it clearly expresses its intention to do so: [Commission des droits de la personne v. Attorney General of Canada, 1982 161 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii161/1982canlii161.html), [1982] 1 S.C.R. 215, at p. 228; [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 20; see, more generally, [R. v. D.L.W., 2016 SCC 22](https://www.canlii.org/en/ca/scc/doc/2016/2016scc22/2016scc22.html), [2016] 1 S.C.R. 402, at para. 21.[^7] [ 99 ] In [Smallwood v. Sparling, 1982 215 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii215/1982canlii215.html), [1982] 2 S.C.R. 686, and in *Carey*, this Court rejected absolute Crown privilege and instead recognized a qualified public interest immunity. Public interest immunity prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure: see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 653‑54 and 670; [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 19; see also [Bisaillon v. Keable, 1983 26 (SCC)](https://www.canlii.org/en/ca/scc/doc/1983/1983canlii26/1983canlii26.html), [1983] 2 S.C.R. 60, at p. 97.[^8] [ 100 ] Although this Court rejected claims of absolute Crown privilege in *Smallwood* and *Carey*, it did not "accord the individual an automatic right to discovery of sensitive and confidential documents held by the state": [Michaud v. Quebec (Attorney General), 1996 167 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii167/1996canlii167.html), [1996] 3 S.C.R. 3, at para. 54. *Smallwood* and *Carey* thus require a careful balancing of the competing public interests in confidentiality and disclosure: see [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 19; [R. v. Barros, 2011 SCC 51](https://www.canlii.org/en/ca/scc/doc/2011/2011scc51/2011scc51.html), [2011] 3 S.C.R. 368, at para. 35. These competing public interests must be weighed with reference to a specific document in the context of a particular proceeding. [ 101 ] In [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 670‑73, this Court described the main factors relevant to balancing the public interests in confidentiality and disclosure of documents concerning public decision making, including at the Cabinet level: (1) the level of the "decision‑making process"; (2) the "nature of the policy concerned"; (3) the "particular contents of the documents"; (4) the timing of disclosure; (5) the "importance of producing the documents in the interests of the administration of justice"; and (6) whether the party seeking the production of the documents "alleges unconscionable behaviour on the part of the government". [ 102 ] Although public interest immunity may be raised by any party or by the reviewing court itself, the government has the burden of establishing that a document should not be disclosed because of public interest immunity: [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 653 and 678. The government should put in a detailed affidavit to support its claim of public interest immunity: pp. 653‑54. [ 103 ] As a general rule, when it is clear to the reviewing court, based on a government's submissions, that public interest immunity applies to a document, it need not inspect the document: [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 671 and 681. If, however, the court has doubts about whether public interest immunity applies, the court should inspect the document in private to resolve its doubts: pp. 674 and 681; see also Somerville v. Scottish Ministers, [2007] UKHL 44, [2007] 1 W.L.R. 2734, at paras. 156 and 204; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531, at para. 145. Indeed, even if the court is persuaded that public interest immunity does not apply, the court should nevertheless inspect the document in private to ensure that it does not inadvertently order the disclosure of a document which should in fact remain confidential: see Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 971. If, having inspected the document, the court concludes that the contents, or any part of the contents, are not protected by public interest immunity, the court can order production accordingly. [ 104 ] As noted in *Carey*, the determination of public interest immunity often requires the reviewing court to examine the document in question. Since in the Bodner context the court will generally have examined the document to determine whether it should otherwise be part of the record, the document will usually already be before the court. [ 105 ] Accordingly, the court must, looking to the factors identified in *Carey* and any other pertinent factors, determine whether the public interest in the Cabinet document's disclosure outweighs the public interest in its remaining confidential. In such a context, at least three *Carey* factors — the level of decision‑making process to which the document relates, the nature of the policy on which the document bears and the contents of the document — will often weigh in favour of keeping the document confidential. [ 106 ] Aside from decisions made by the Queen or her representatives, the Cabinet decision‑making process is the highest level of decision making within the executive: see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at p. 670; [Reference re Canada Assistance Plan (B.C.)](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii74/1991canlii74.html), at pp. 546‑47. [ 107 ] As the British Columbia courts acknowledged in the present case, judicial remuneration is an important and sensitive area of public policy, implicating not only the use of public money, but also the administration of justice and ultimately, judicial independence. The British Columbia courts did not find this to be a factor weighing in favour of continued confidentiality: B.C.S.C. reasons, at para. 42; C.A. reasons, at para. 22; for similar statements by the Nova Scotia courts in the proceedings that gave rise to the companion appeal, see also [Nova Scotia Provincial Judges' Association v. Nova Scotia (Attorney General), 2018 NSSC 13](https://www.canlii.org/en/ns/nssc/doc/2018/2018nssc13/2018nssc13.html), 409 C.R.R. (2d) 117, at para. 144; [Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2018 NSCA 83](https://www.canlii.org/en/ns/nsca/doc/2018/2018nsca83/2018nsca83.html), 429 D.L.R. (4th) 359, at paras. 44‑46. I cannot agree with such an approach. As this Court explained in [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 671‑72, the nature of the policy on which the document bears may weigh in favour of continued confidentiality to varying degrees depending on its sensitivity and significance. A government's decision about how to respond to a judicial compensation commission's recommendations concerns not merely a matter of implementation, but involves the "formulation of policy on a broad basis": see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at p. 672; see also [Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66](https://www.canlii.org/en/ca/scc/doc/2004/2004scc66/2004scc66.html), [2004] 3 S.C.R. 381, at para. 58. That said, as I explain below, when the policy concerns a constitutional requirement relating to the justice system, and, thus, the administration of justice, as is the case in the Bodner context, this may also weigh in favour of disclosure. [ 108 ] The contents of a document concerning Cabinet deliberations may well reflect the views of individual ministers of the Crown and reveal disagreement among ministers. Cabinet documents may also reveal considerations that were put before Cabinet. As a result, their contents will frequently be highly sensitive: see [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at para. 18. [ 109 ] Depending on the contents of the document, the timing may also weigh in favour of keeping the document confidential. A document that simply reveals that Cabinet made a decision to reject a recommendation made by a judicial compensation commission will bear little confidentiality once that decision is publicly announced. By contrast, ministers can rightly expect that a document that weighs several different possible responses to the commission's recommendations and proposes a particular response will remain confidential for some prolonged time even after the decision is publicly announced. [ 110 ] In this case, the British Columbia courts appear to have treated the government's failure to assert a specific harm that would result from the Cabinet submission's disclosure as being conclusive of the need for disclosure: see master reasons, at para. 23; B.C.S.C. reasons, at para. 46; C.A. reasons, at para. 22. [ 111 ] Because of the strong public interest in Cabinet confidentiality, the disclosure of a Cabinet document undermines that confidentiality and is, at least to some degree, harmful. As *Carey* recognized, certain Cabinet documents may, owing to their contents, raise additional concerns, as might be the case where they relate to defence or national security or refer to specific points of disagreement among ministers. It will often be helpful to the court for the government to be as specific as possible in raising the potential for such harm: pp. 653‑54 and 671. But the government's failure to identify some specific harm resulting from a confidential Cabinet document's disclosure does not automatically mean the document must be disclosed. The focus must remain on whether the public interest in the document's disclosure outweighs the public interest in its remaining confidential. [ 112 ] Given the strong public interest in keeping documents concerning Cabinet deliberations confidential, a strong countervailing public interest will usually be necessary to justify their disclosure. The strength of the public interest in disclosure will often turn on the interests of the administration of justice, a factor identified in *Carey*. [ 113 ] The notion of the "interests of the administration of justice" undoubtedly encompasses a broad set of considerations: see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 647‑48 and 671. Two stand out in the Bodner context: ". . . the importance of the case and the need or desirability of producing the documents to ensure that [the case] . . . can be adequately and fairly presented" (*Carey*, at p. 671). [ 114 ] In the companion case, the Nova Scotia Court of Appeal concluded that disclosure of the report is in the public interest because the government knew its response to the commission's recommendations would be subject to review and because the review would focus on matters vital to the administration of justice and to the relationship between two branches of government: paras. 44‑46. [ 115 ] These considerations cut both ways. Although there is no doubt that Bodner reviews are of great importance, the fact that a party seeks production of a relevant confidential Cabinet document in the context of a Bodner review is not itself a general basis for disclosure. Such an approach would effectively trump the public interest in the confidentiality of Cabinet deliberations in every Bodner review. It would also conflate the importance of the issues canvassed on such a review with the importance of the evidence provided by the Cabinet document to the disposition of those issues. [ 116 ] In the Bodner context, the reviewing court's analysis of the factors bearing on the public interest in disclosure must necessarily be informed by its conclusion on the nature and probative value of the evidence. A document may provide some evidence that the government failed to meet one of the parts of the Bodner test, but the importance of the evidence may vary widely. When considering the interests of the administration of justice, the focus must therefore remain on the degree to which the document bears on what is at issue in the litigation. [ 117 ] A document may contain information not otherwise available such that its exclusion from evidence would undermine the court's ability to adjudicate the issues on their merits: see [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at pp. 654 and 673; Commonwealth v. Northern Land Council (1993), 176 C.L.R. 604 (H.C.A.), at p. 619. A document that tends to establish that the government set out to provide misleading public reasons for its response to the commission's recommendations; that the government relied on a fundamentally flawed factual foundation; that the government acted with an improper or colourable purpose; or that the government was indifferent or disrespectful towards the commission process will be highly probative. Such a document bears so directly — and so determinately — on the issues that the reviewing court needs to resolve on Bodner review that to exclude the document would be contrary to the interests of the administration of justice: see Air Canada v. Secretary of State for Trade, [1983] 2 A.C. 394 (H.L.), at p. 435. Given the important constitutional interests at stake, the public interest in disclosure would almost certainly outweigh the public interest in the document's remaining confidential. Excluding such a document from evidence would keep the court from fulfilling its judicial role, jeopardize public confidence in the administration of justice, and ultimately threaten the rule of law. In such cases, where the probative value of the document is high, the public interest immunity analysis will lead to the same result as the production analysis set out above. [ 118 ] By contrast, the public interest immunity analysis may lead to a different result for a Cabinet document that supports the contention that the government failed to meet one of its constitutional requirements, but whose impact on the Bodner review would be limited. The probative value of such evidence might not weigh heavily enough to warrant disclosure, especially if there were strong public interest in its remaining confidential. But such a document's exclusion from the record could hardly keep the reviewing court from adjudicating the issues on their merits. The public interest in disclosure of such a Cabinet document would thus not outweigh the public interest in its remaining confidential. [ 119 ] As a general matter, the notion of "unconscionable behaviour" referred to in [Carey](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii7/1986canlii7.html), at p. 673, will only be pertinent in a limited set of cases. This factor is superadded to more general considerations involving the administration of justice. The conduct in question must be "harsh" or "improper"; though it need not be criminal, it must nevertheless be of a similar degree of seriousness: p. 673. In the Bodner context, this factor does little work independent from the factor relating to the interests of the administration of justice. The harshness or impropriety of the government's conduct would be canvassed in assessing whether the government acted with an improper or colourable purpose. A document that demonstrates unconscionable behaviour on the government's part would tend to establish its failure to meet its constitutional requirements in a highly probative manner and, for that reason, the public interest in its disclosure would almost certainly outweigh the public interest in its remaining confidential. [ 120 ] Accordingly, I disagree with the suggestion of the Attorney General of British Columbia and other attorneys general that this Court's public interest immunity case law results in routine, almost inevitable, disclosure of confidential Cabinet documents, and should thus be revisited. Properly applied in the Bodner context, public interest immunity requires a careful balancing of the public interests in confidentiality and disclosure. Since the public interest in the confidentiality of documents concerning Cabinet deliberations is often particularly strong, the public interest in their disclosure will usually need to be stronger still to warrant their disclosure. --- ## V. Disposition [ 121 ] I would allow the appeal without costs and quash the master's order for production of the Cabinet submission. The Provincial Court Judges' Association's petition can now be adjudicated on its merits without consideration of the Cabinet submission. --- **Appeal allowed without costs.** --- [^1]: Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), [2005 SCC 44](https://www.canlii.org/en/ca/scc/doc/2005/2005scc44/2005scc44.html), [2005] 2 S.C.R. 286 (*Bodner*). [^2]: The Attorney General is the minister responsible for the Judicial Compensation Act designated by O.C. 213/2017, Appendix B; see also Attorney General Act, R.S.B.C. 1996, c. 22, s. 2(j); Constitution Act, R.S.B.C. 1996, c. 66, s. 10(3). [^3]: The baseline salary used by the commission in making its recommendations was $244,112 for the 2016-17 fiscal year, but the Legislative Assembly later retrospectively increased the salary for 2016-17 by 3.4 percent to $252,290, thereby reducing the effect of the increase recommended by the commission for the 2017-20 period. [^4]: The retrospective salary increase for 2016-17 similarly reduces the effect of the increase adopted by the Legislative Assembly for the 2017-20 period. [^5]: See Constitution Act, 1867, ss. 54, 90 to 92, 100 to 102, 106 and 126. [^6]: Although the Queen's Privy Council for Canada established by s. 11 of the Constitution Act, 1867, includes members who are not ministers of the Crown, confidentiality also extends to its proceedings. [^7]: Provincial legislatures have generally preserved public interest immunity: see, e.g., Code of Civil Procedure, CQLR, c. C-25.01, art. 283; Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 13(2); Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 9; Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 11. By contrast, Parliament has partially displaced public interest immunity in ss. 37 to 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5: see [Babcock](https://www.canlii.org/en/ca/scc/doc/2002/2002scc57/2002scc57.html), at paras. 21 et seq.; [R. v. Ahmad, 2011 SCC 6](https://www.canlii.org/en/ca/scc/doc/2011/2011scc6/2011scc6.html), [2011] 1 S.C.R. 110. [^8]: The same considerations generally apply to testimony. However, ministers and former ministers serving as members of the Senate, House of Commons or a legislative assembly benefit from a limited form of testimonial immunity as a matter of parliamentary privilege: see [Vaid](https://www.canlii.org/en/ca/scc/doc/2005/2005scc30/2005scc30.html) at para. 29; [Ainsworth Lumber Co. v. Canada (Attorney General), 2003 BCCA 239](https://www.canlii.org/en/bc/bcca/doc/2003/2003bcca239/2003bcca239.html), 14 B.C.L.R. (4th) 302; [Telezone Inc. v. Canada (Attorney General) (2004), 2004 36102 (ON CA)](https://www.canlii.org/en/on/onca/doc/2004/2004canlii36102/2004canlii36102.html), 69 O.R. (3d) 161 (C.A.).