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Legislature - Conflict of Interest Act. Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Strathas JA) considered another interlocutory issue in a larger politically-charged judicial review of decision-making by the Conflict of Interest and Ethics Commissioner. The immediate interlocutory issue here was the applicant's request that a full Commissioner record by available in the face of "bar(s) against raising certain grounds of review" [Conflict of Interest Act, s.66], whether the court should respect (or not) this immunity as a privative clause, and associated practical preservation of confidentiality concerns:[7] Democracy Watch’s disclosure request places the Commissioner in an untenable position. The Commissioner is being asked to disclose confidential documents in support of a ground that might be barred under section 66. If ultimately the panel hearing the application finds that section 66, as a partial restriction on judicial review, applies to bar some or all of the grounds raised in this application, then confidential material that never should have been disclosed will have been disclosed.
[8] Democracy Watch proposes protections to ensure that any material disclosed remains confidential as much as possible. For example, it proposes that confidential material will be disclosed only to its counsel and the panel and that both will be operating under strict prohibitions against disclosure.
[9] But this is not a full answer to the Commissioner’s concern. Confidentiality will no longer be all-encompassing: some, albeit very few, will have access to the material, arguably contrary to the expectations and legal rights of those who supplied evidence during the Commissioner’s investigation.
[10] The confidential material sought by Democracy Watch is relevant to only one ground for review: an alleged error of fact. The other two grounds concern statutory interpretation, a purely legal issue requiring the Court to examine the text, context and purpose of the Act. The confidential material is irrelevant to that task.
C. The solution
[11] The conundrum posed by this disclosure motion can be solved by Rule 107 of the Federal Courts Rules. Under Rule 107(1), the Court can order that “issues in a proceeding be determined separately”.
[12] Rule 107(1), which applies to a “proceeding”, applies here. An application for judicial review is “proceeding”: see Rule 2 (definition of “application”); see also Lukács v. Swoop Inc., 2019 FCA 145 at para. 9.
[13] Thus, the Court has the power under Rule 107 to order that an issue in this application for judicial review be determined separately. Here, the issue is the conflict in the Court’s jurisprudence about whether section 66 of the Conflict of Interest Act bars the grounds the applicant raises in its application: see paragraph 5 above.
[14] If the Court decides that section 66 bars the grounds, the Court must dismiss the application. If the Court decides that section 66 does not bar the grounds, in particular the ground of error of fact raised by Democracy Watch, the Court will have to consider the merits of the application. In that case, the first item of business will be whether the Commissioner has to disclose confidential material and, if so, under what conditions.
[15] Proceeding in this way ensures that disclosure under strict protective conditions—if it happens at all—will be only as a very last resort. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered a motion to strike a judicial review by a public interest litigant of decisions of the Conflict of Interest and Ethics Commissioner involving the Prime Minister. The case is interesting for it's review of portions of the Conflict of Interest Act, including a privative clause:[2] The Commissioner concluded that the Prime Minister did not contravene three sections of the Conflict of Interest Act: subsection 6(1) (participating in the making of a decision that would be a conflict of interest), section 7 (giving preferential treatment to a person or organization) and section 21 (failing to recuse from a matter in which there would be a conflict of interest).
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[11] Section 66 of the Act provides that every decision of the Commissioner is final and shall not be reviewed unless the grounds in paragraphs 18.1(4)(a), (b) or (e) of the Federal Courts Act, R.S.C. 1985, c. F-7, apply. Those grounds are that the decision-maker, here the Commissioner:"“acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction”" (paragraph 18.1(a)),
"“failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe”" (paragraph 18.1(b))
"“acted, or failed to act, by reason of fraud or perjured evidence”" (paragraph 18.1(e)).
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