Duhaime's Law Dictionary


Deliberative Secrecy Definition:

The intentional concealment of the process of cogitating, consulting or other private methods of arriving at a judicial decision.

Related Terms: Administrative Tribunal, Deliberative, Deliberative Process Privilege

In order to protect courts of law and administrative tribunals, a principle of deliberative secrecy applies to shield those decision-makers from having to make transparent or provide information in regards to the intellectual or other process by which they may have arrived at their decision except as may stand on the record within their reasons for judgment or opinion.

In Cherubini, Justice Cromwell of the Nova Scotia Court of Appeal wrote:

"The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. This protection is necessary to help preserve the independence of decision-makers, to promote consistency and finality of decisions and to prevent decision-makers from having to spend more time testifying about their decisions than making them.

"At the core of the principle is protection of the substance of the matters decided and the decision-maker’s thinking with respect to such matters.

"Deliberative secrecy also extends to the administrative aspects of the decision-making process - at least those matters which directly affect adjudication – such as the assignment of adjudicators to particular cases....

"[D]eliberative secrecy is the general rule for administrative tribunals. However, the Court has also made it clear that administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals."

 

Deliberative secrecy can also shield injustice. In a case I was personally involved in 15 years ago, on a public service secondment, I was subjected to a summary decision by a member of the British Columbia Labour Relations Board. There was no rationale basis for the decision. When I made inquiries, it turned out that the adjudicator had a private labour arbitration practise. Was the other side of the case a private client of his? I was never able to determine this: the Board would not answer my question, blocking it by the principle of deliberative secrecy.

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