Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Vincent Kazmierski, 2008 Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto 2008 ABSTRACT In this thesis, I argue that the unwritten constitutional principle of democracy provides a foundation for the recognition of a constitutional right to access government information in Canada. More specifically, I argue that the principle of democracy can be used to fill the “access gap” in the written provisions of the Constitution. I begin by synthesizing the Supreme Court of Canada’s jurisprudence and the work of a number of academics to outline guidelines for the recognition of unwritten constitutional principles. I also attempt to construct a coherent account of the content and effect of the constitutional principle of democracy. I proceed to argue that recognition of a right of access to government information as part of the principle of democracy fits within the guidelines I identify as it is supported by “strong” pragmatic, historical and structural evidence. I then demonstrate how the constitutional right of access to government information may be applied to protect access to information in at least three different ways: through statutory interpretation, through ii the regulation of administrative discretion, and, in exceptional circumstances, through the invalidation of legislation. I rely on the work of a number of British scholars and on aspects of David Dyzenhaus’s conception of law as a culture of justification to help bridge the divide between the Supreme Court of Canada’s approach to the application of unwritten constitutional principles and the concerns raised by critics of that approach. I argue that the application of the principle of democracy respects the primary role of democratically elected representatives of the public, while establishing that the judiciary also has an important role to play in the identification and enforcement of fundamental values. I suggest that this judicial role can be effectively constrained through the guidelines sketched by the Supreme Court and more fully articulated in this thesis. Finally, I argue that the application of the principle of democracy to invalidate legislation can also be justified in exceptional circumstances where the legislation imposes substantial impediments on fundamental aspects of the democratic process. In such cases, the principle of parliamentary supremacy is properly counterbalanced by the principle of democracy. iii ACKNOWLEDGEMENTS My doctoral studies and this thesis, in particular, were supported by a number of institutions and individuals. First, I would like to acknowledge and thank the Social Sciences and Humanities Research Council and the University of Toronto, Faculty of Law for providing generous financial support. I would also like to thank the members of my committee, Sujit Choudhry, Patrick Macklem and Lorraine Weinrib for their intellectual guidance and critical commentary. In particular, I would like to acknowledge the support provided by my supervisor, Lorraine Weinrib, who combined insightful critiques with intellectual and personal support throughout my doctoral studies. Indeed, the level of support and understanding Lorraine provided as a person was as important as the guidance and commentary she provided as a supervisor. Finally, I would like to acknowledge the great debt I owe to my family. My parents, Mary Anne Kazmierski and Dr. Carl Kazmierski, have provided an ongoing model of dedication to education that has guided me in all facets of my life, but in particular in my pursuit of higher education. My children, Phoenix and Nerisse, both of whom were born during the course of my doctoral studies, provided happy diversions and necessary perspective on the task at hand. Finally, I am most indebted to my partner, Tara Connolly. She inspired and cajoled me to pursue a doctorate, she supported me during the long years of study and drafting, and, perhaps most importantly, she tolerated me when the stresses and strains of the process absented me from home in body or spirit. For her support, above all, I am thankful beyond measure. iv TABLE OF CONTENTS Introduction 1 Chapter I: Access to Government Information: Promise in Principle; Protection in Passing; Problems in Practice 13 1) The Promise of Access: Recognizing the Importance of Access to Government Information in Mature Democracies 13 2) The Protection of Access: Common Law and Statutory Protection of Access to Information in Canada 24 3) The Problems with Access: Identifying Existing and Potential Threats to Access to Government Information 36 Chapter II: The Canadian Constitution and the Principle of Democracy: From Fundamental Principles to the Fundamentals of the Principle 50 1) Fundamental Roles of the Canadian Constitution 51 2) Fundamental Principles and the Canadian Constitution 57 3) The Fundamental Principle of Democracy 68 4) Conclusion 95 Chapter III: Constitutional Gap or Judicial (Clap) Trap? Identifying and Justifying the “Access Gap” in the Constitution 98 1) How Does the Supreme Court of Canada Identify a “Gap” in the Constitution? 99 2) What Concerns are Raised by the Supreme Court’s Approach to Identifying Gaps in the Constitution? 106 3) The “Access Gap” in the Canadian Constitution 111 4) Conclusion 122 v Chapter IV: The Method and the Madness of Recognizing Unwritten Constitutional Principles: The Supreme Court of Canada and its Critics 124 1) Factors considered by the Supreme Court of Canada when Recognizing Unwritten Constitutional Principles 125 2) Guidelines for Recognizing Unwritten Constitutional Principles 128 3) Concerns Raised by the Supreme Court of Canada’s Method of Identifying and Applying Unwritten Constitutional Principles 135 4) Response to the Concerns Raised by Academics 150 5) Conclusion 155 Chapter V: Applying the Method While Avoiding the Madness: Recognizing a Right to Access Government Information as an Aspect of the Constitutional Principle of Democracy 160 1) Pragmatic Evidence 160 2) Historical Evidence 164 3) Structural Evidence 186 4) Conclusion 228 Chapter VI: Democracy and the Limits of Administrative Discretion: Limiting the Discretion of Government Officials to Restrict Access to Government Information 230 1) Applying Constitutional Principles as Limits on Administrative Action 235 2) Statutory Interpretation 242 3) Exercise of Administrative Discretion 253 4) Conclusion 275 vi Chapter VII: Democracy and the Limits of Parliamentary Sovereignty: Limiting the Power of Parliament to Restrict Access to Government Information 277 1) Statutory Interpretation 278 2) Invalidation 284 3) Hypothetical Scenarios: Applying the Principle of Democracy to Invalidate Legislation That Restricts Access to Government Information 320 4) Conclusion 336 Chapter VIII: Democracy and Theories of Judicial Review: A Theoretical Justification for Applying the Principle of Democracy as a Limit on Government Action 339 1) The British Debate Concerning the Limits of Parliamentary Sovereignty 340 2) David Dyzenhaus and the Culture of Justification 351 3) Implications and Concerns Raised by Dyzenhaus’s approach 359 4) Jeffrey Goldsworthy and the Defence of Parliamentary Sovereignty 366 5) Conclusion 373 Table of Cases 377 Bibliography 383 vii 1 INTRODUCTION Access to government information has become a foundation of modern democratic governance. Over the past fifty years, both courts and legislatures in Canada have increasingly recognized the importance of access to government information in maintaining the openness and accountability that is crucial for our democratic order. In the judicial realm, developments in the common law have eroded the power of governments to shield documents from disclosure in litigation. In the legislative realm, laws have been introduced by all levels of government to facilitate access to government information. In the process of interpreting such access to information legislation, courts have steadfastly insisted that limitations on access must be narrowly construed in order to promote the primary purpose of these acts, namely protecting the access to information necessary to ensure government accountability and the political participation of citizens. Notwithstanding the near universal recognition of its importance as a cornerstone of effective democratic governance, the protection of access to government information remains tenuous in Canada. Bureaucratic resistance, unscrupulous (and unsupervised) exercise of administrative discretion and regressive legislative amendments have all been identified as potential threats to our existing (theoretical) levels of access to information concerning government activity. This thesis explores the degree to which these threats may be countered by constitutionally-grounded protections. More specifically, the thesis examines the way in which the Canadian Constitution’s multi-faceted protection of the democratic process, as embodied in the constitutional principle of democracy, may be extended to protect a constitutional right to