One interesting recent case, which I consider a useful launching pad for a consideration of justiciability, is Guergis v. Novak, 2012 ONSC 4579. Ms. Guergis is a former minister in the federal cabinet: you can read some articles about her here.
Ms. Guergis resigned from her ministerial position in 2010 and was expelled from the Conservative Party caucus, amidst allegations of criminal offences. These allegations turned out to be unfounded.
In her claim against Prime Minister Stephen Harper and others, she alleged that there had been a conspiracy to oust her from cabinet, and that ultimately, she jumped only because she feared she would be pushed.
Colourful stuff. Unsurprisingly, the defendants moved to strike the claim, on the basis that there was no cause of action.
From the perspective of justiciability, the interesting portion of the case was the assertion by the Prime Minister and his advisers that decisions about appointing and dismissing ministers are aspects of the prerogative and non-justiciable. The leading case in Canada, Black v. Canada (Prime Minister) (2001), 54 OR (3d) 215, distinguishes between rights and privileges, holding that exercises of the prerogative relating to the latter are non-justiciable. Only where a legal right of some sort is at issue can exercises of the prerogative be reviewed in court.
Against this backdrop, it was unsurprising that Hackland J. rejected the plaintiff's claim out of hand:
I am no fan of non-justiciability: you can read my article on political questions here; and in chapter 7 of A Theory of Deference in Administrative Law, I take some potshots at Laskin J.A.'s reasoning in Black. I am of the opinion that the plaintiff’s contentions are wrong and, if sustained, would render meaningless this important privilege. The Prime Minister would be required to answer, in court, for the political decisions he makes, as to the membership of his cabinet. Crown privilege is an important principle of our legal system and it cannot be displaced or attacked collaterally by way of allegations of tortious conduct. There is no authority that would support the proposition that Crown prerogative is waived or is inapplicable if the otherwise protected decisions are alleged to be tortious. On the contrary, the result must be that when Crown privilege applies, the court lacks the jurisdiction to review the acts protected by the privilege. In this case, I find that it is plain and obvious that the actions of the Prime Minister, in relation to the removal of the plaintiff from cabinet, fall within Crown prerogative and this Court lacks the jurisdiction to review the tort allegations related to the Prime Minister’s actions. These actions are pleaded to be taken on the advice of the Prime Minister’s two senior advisors, Mr. Giorno, Chief of Staff, and Mr. Novak, Principal Secretary, whose conduct in the circumstances alleged must also be protected by Crown prerogative.
The nub of my criticism is that to say that certain categories of decision are non-justiciable is to carve out whole areas of immunity from judicial oversight. This is unwise. Far better to say, as Hackland J. could have in the present case, that the Prime Minister's discretion is very broad, and that even on the facts alleged by the plaintiff, his decisions were within his authority. Or even that significant deference is owed to the Prime Minister and that on the pleadings, his actions were eminently defensible.
Consider the following hypotheticals.
1. The Prime Minister and his advisers are approached by a wealthy venture capitalist who has just won election to the House of Commons. In return for healthy bribes, a minister is sacked and replaced by the venture capitalist. Are the Prime Minister's nefarious deeds non-justiciable in an action for conspiracy?
2. The Prime Minister and his advisers formulate a policy that only white males will be appointed to cabinet. An incriminating copy of an email from the Prime Minister confirming the policy is leaked and finds its way into the hands of a high-profile backbench member of Parliament who was passed over for promotion. Is the Prime Minister's racist and sexist policy non-justiciable on judicial review (an action in tort presumably not being available)?
3. Scurrilous rumours circulate about a venerated investment banker who is being considered for nomination to the Order of Canada. Whispers of a website with incriminating photos abound. One of the decision-makers voices public concern about the appropriateness of nomination in the circumstances. If the banker asked to make written submissions addressing the rumours but was refused, would this refusal be non-justiciable?
These are obviously extreme hypotheticals. But we really would lose nothing if we were to think about non-justiciability not in terms of absolute categories, but in terms of deference. The claims of a future Ms. Guergis should not get past the pleadings stage, but no sweeping claims of immunity would be available either. Absolutes and formal categories should be treated with suspicion.