Debates About Cabinet Secrecy Are Far From Over

By Mel Cappe* and Yan Campagnolo**

 

For those who had doubts about the legitimacy of Cabinet secrecy and the confidential nature of mandate letters,[1] the Supreme Court of Canada (SCC) has dispelled them. In Ontario (Attorney General) v Ontario (Information and Privacy Commissioner),[2] the SCC put an end to the judicial saga pitting the Canadian Broadcasting Corporation against Doug Ford’s government by ruling that mandate letters are immune from disclosure. While this outcome is justified, the breadth of the SCC’s ruling could disrupt the delicate balance between government effectiveness and accountability.

In this case, the SCC overruled a string of decisions from the Information and Privacy Commissioner (IPC),[3] the Divisional Court,[4] and the Court of Appeal for Ontario (except for a strong dissent from Justice Lauwers).[5] These review bodies had found that mandate letters were not covered by the Cabinet exemption to the right of access to information under subsection 12(1) of the Freedom of Information and Protection of Privacy Act[6] because they were not specifically listed in that provision and did not otherwise reveal the substance of Cabinet deliberations.

The Constitutional Dimension of Cabinet Secrecy

This SCC decision is significant because it has elevated Cabinet secrecy to the status of parliamentary privilege (which protects the autonomy of legislatures) and deliberative secrecy (which guards the independence of courts). The SCC held that these three doctrines all flow from the separation of powers and are central to the ability of the executive, legislative, and judicial branches to fulfill their respective constitutional functions.[7]

By describing Cabinet secrecy as a doctrine of constitutional importance, the SCC has sent the message that it must be taken seriously. Indeed, the Westminster system of responsible government could not function properly without some degree of Cabinet secrecy—a point at times overlooked by freedom of information advocates and journalists—which explains why this secrecy has long been protected by constitutional conventions.

The SCC has also recognized the premier’s role as head of Cabinet, which includes determining the membership of Cabinet, designing its internal structure, and setting its priorities (through the mandate letters the premier issues to ministers). For this reason, the premier’s deliberations “cannot be artificially segmented from those of Cabinet” and enjoy the same level of secrecy.[8]  Cabinet secrecy applies where the premier is acting as head of Cabinet but not where they are acting in another capacity—for example, exercising their personal prerogatives independently of Cabinet.

Furthermore, the SCC has clarified the rationales underpinning Cabinet secrecy by recognizing that “Cabinet secrecy promotes candour, solidarity, and efficiency, all in aid of effective government.”[9] While these rationales are well documented in scholarly literature, the SCC has now clearly acknowledged them.[10] This alone is a valuable contribution.

The rationale at issue in this case was the last one: the efficiency rationale. First judicially recognized in 1968 by the House of Lords in Conway v Rimmer,[11] this rationale embodies the idea that the Cabinet decision-making process must remain confidential until a final decision is made and announced. This confidentiality is necessary to prevent undue external interference and partisan criticism, which could undermine or even paralyze Cabinet decision-making.

The SCC quashed the IPC’s decision owing to its failure to consider the impact of prematurely disclosing the mandate letters—which were written with the intention that they remain confidential—on the efficiency of the Cabinet decision-making process. The SCC was quite right that subsection 12(1) of FIPPA should have been interpreted in light of the well-established constitutional conventions upon which it is based.

This part of the ruling is particularly convincing, as it is supported by relevant authorities and shows a deep understanding of how the Cabinet decision-making process works. Yet, unexpectedly, the SCC took judicial notice of political science studies that were neither cited by the parties nor part of the record.[12] The SCC may have felt justified in considering facts not established by formal proof because two of its members—the decision’s author, Justice Karakatsanis, as well as Justice Rowe—held positions as Cabinet secretaries and therefore had intimate knowledge of the subject matter.

While the outcome of the ruling (the fact that mandate letters are covered by the Cabinet exemption) and the reasoning supporting it (the constitutional significance of Cabinet secrecy and the rationales underpinning the doctrine) stand on solid ground, two aspects of the decision are more controversial: the broad interpretation of the term “substance of deliberations” and the choice of “reasonableness” as the standard of review.

The Meaning of “Substance of Deliberations”

Having already found that the IPC had “failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the premier, and the fluid, dynamic nature of the Cabinet decision-making process,”[13] the SCC did not need to weigh in on the meaning of the term “substance of deliberations” in subsection 12(1) of FIPPA.

The SCC nonetheless felt compelled to address the issue in obiter, but did so without examining the relevant precedents in its reasons for judgment. The result is a notable expansion of the scope of the Cabinet exemption. According to the SCC, the term “deliberations” embraces “outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the premier, even if they do not ultimately result in government action.”[14] The SCC also insisted that “decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context.”[15]

Unlike the IPC, which had adopted an overly narrow interpretation of “substance of deliberations” (focusing on whether disclosure would permit accurate inferences “as to actual Cabinet deliberations at a specific Cabinet meeting”[16]), the SCC interpreted the expression very broadly, in a way that would capture more than mandate letters. In truth, if public officials were to start protecting “generally phrased records [that] could reveal [something] to a sophisticated reader when placed in the broader context,”[17] Cabinet secrecy would expand significantly. This standard gives considerable discretion to public officials and could be used to protect documents with a tenuous connection to Cabinet proceedings.

As a result, freedom of information advocates and journalists are understandably concerned about the SCC’s interpretation.[18] As an exception to the right of access to information, the Cabinet exemption should have been narrowly construed.[19] In fact, in a leading appellate decision from 2001, the term “substance of deliberations” had been interpreted in a way that limited the scope of Cabinet secrecy instead of expanding it.[20] Based on that interpretation, the Information Commissioner of Canada even recommended in 2017 that the term be added to the Access to Information Act[21] as a way of limiting Cabinet immunity at the federal level.[22] This now seems like a bad idea, as the SCC has just turned something intended to curb Cabinet secrecy on its head.

A more balanced interpretation would have limited the scope of “substance of deliberations” to “core secrets,” that is, “information that reveals the personal views that ministers express when deliberating on government policy and action,”[23] whether or not these views are expressed during a formal Cabinet meeting. This approach would have been broad enough to cover mandate letters (which contain the premier’s views on government priorities) without extending the exemption to documents lacking a sufficient nexus to Cabinet proceedings.

If public officials start relying on the SCC’s broad and ambiguous interpretation of “substance of deliberations” to expand Cabinet exemptions beyond what was typically protected before this decision, the legitimacy of Cabinet secrecy could be undermined. This is possible because that legitimacy rests on a careful definition of the scope of Cabinet secrecy—one that strikes a delicate balance between government effectiveness and accountability. Overbroad claims of Cabinet secrecy are harmful to democracy and the rule of law, as they decrease accountability and thus public confidence in governmental institutions.

The Standard of Review

Another controversial aspect of the SCC’s decision is its choice of the applicable standard of review. This is the issue that divided Justice Karakatsanis (writing for the majority on this issue) and Justice Côté (writing for herself). It is a technical point that will be primarily of interest to administrative law pundits.

Pursuant to the framework established in Canada (Minister of Citizenship and Immigration) v Vavilov,[24] a court considering a judicial review application must apply the standard of reasonableness and show deference to the administrative tribunal’s decision, as long as it is adequately justified. By way of exception, where a case raises certain types of issues, such as a constitutional question or a general question of law of central importance to the legal system, the correctness standard applies, and the reviewing court need not defer to the tribunal and can replace the tribunal’s interpretation of the law with its own.

In the mandate letters case, Justice Karakatsanis proceeded on the basis that the reasonableness standard applied, mainly because the lower courts had relied on that standard and the parties conceded that it was appropriate. But rather than conducting a deferential review of the IPC’s reasons for its decision, she zoomed in on one aspect of the decision—the failure to consider the efficiency rationale—to reach the conclusion that it was unreasonable. Moreover, Justice Karakatsanis offered her own interpretation of subsection 12(1) of FIPPA without considering the IPC’s reasoning holistically.

Consequently, Justice Karakatsanis opened herself to the criticism that she performed a (disguised) correctness review instead of a reasonableness one. As Justice Côté pointed out in her concurring reasons, “[Justice Karakatsanis conducted] her own interpretation of the scope of Cabinet privilege under s. 12(1) and [used] her conclusions as a yardstick against which to measure the Commissioner’s decision.”[25]

Justice Karakatsanis could have avoided this criticism had she taken the position that correctness was the proper standard of review in this case. That position would have been consistent with her finding that Cabinet secrecy is constitutionally grounded, as both a constitutional convention and a central element of the separation of powers. In addition, she could have found, as did Justice Côté, that the issue was a question of central importance to the entire legal system, analogous to solicitor-client privilege and parliamentary privilege.[26]

The point is that the interpretation of subsection 12(1) of FIPPA is a critical issue: first, because that provision was intended to supersede the constitutional conventions governing Cabinet secrecy in the context of the freedom of information regime, and second, because the term “substance of deliberations” is found in several similar statutes across the country (in Alberta,[27] British Columbia,[28] Manitoba,[29] New Brunswick,[30] Newfoundland and Labrador,[31] Nova Scotia,[32] and Prince Edward Island[33]).

Final Words

While there is a lot to like about the SCC’s decision, it also raises concerns. The broad interpretation of the term “substance of deliberations” adopted by the SCC could lead to excessive claims of Cabinet secrecy and further litigation. To avoid upsetting the delicate balance between government effectiveness and accountability, public officials must show wisdom, care, and restraint in claiming Cabinet secrecy. The continued legitimacy of our governmental institutions depends on it.

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* Mel Cappe is Distinguished Fellow at the Munk School of Global Affairs and Public Policy of the University of Toronto. He served as Clerk of the Privy Council from 1999 to 2002.

** Yan Campagnolo is Vice-Dean and Associate Professor in the Common Law Section of the Faculty of Law at the University of Ottawa.

[1] See Mel Cappe & Yan Campagnolo, “Mandate Letters Should Be Kept Confidential”, Policy Options (7 April 2022), online: <policyoptions.irpp.org/magazines/april-2022/mandate-letters-should-be-kept-confidential>.

[2] 2024 SCC 4 [AG v IPC]. For other academic commentary on this decision, see Philippe Lagassé, “Yes, the Westminster System Has a Separation of Powers” (3 February 2024), online (blog): <lagassep.substack.com/p/yes-the-westminster-system-have-a>; Emmett Macfarlane, “The Influence of Conventions in the SCC’s Decision Re: Ford’s Ministerial Mandate Letters” (4 February 2024), online (blog): <emmettmacfarlane.substack.com/p/the-influence-of-conventions-in-the>; Paul Daly, “Losing Confidence: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4” (5 February 2024), online (blog): <www.administrativelawmatters.com/blog/2024/02/05/losing-confidence-ontario-attorney-general-v-ontario-information-and-privacy-commissioner-2024-scc-4>.

[3] See Cabinet Office (Re), 2019 CanLII 76037 (ON IPC).

[4] See Attorney General for Ontario v Information and Privacy Commissioner, 2020 ONSC 5085.

[5] See Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2022 ONCA 74.

[6] RSO 1990, c F.31 [FIPPA].

[7] See AG v IPC, supra note 2 at para 3.

[8] Ibid at para 8.

[9] Ibid at para 30.

[10] Ibid at paras 29–30, 36. The SCC cites three scholarly works: Yan Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (Vancouver: UBC Press, 2022) at 25–30 [Campagnolo, Behind Closed Doors]; Yan Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017) 51:1 RJTUM 51 at 66–72; Nicholas d’Ombrain, “Cabinet Secrecy” (2004) 47:3 Can Pub Admin 332 at 335–36.

[11] [1968] UKHL 2.

[12] See AG v IPC, supra note 2 at paras 48–53. The SCC cites three political science studies: Stephen Brooks, Canadian Democracy, 9th ed (Don Mills, ON: Oxford University Press, 2020); Herman Bakvis, “Prime Minister and Cabinet in Canada: An Autocracy in Need of Reform?” (2000) 35:4 J Can Studies 60; Mark Schacter & Phillip Haid, Cabinet Decision-Making in Canada: Lessons and Practices (Ottawa: Institute on Governance, 1999).

[13] AG v IPC, supra note 2 at para 58.

[14] Ibid at para 62.

[15] Ibid.

[16] Cabinet Office (Re), supra note 3 at paras 94, 101, 121.

[17] AG v IPC, supra note 2 at para 62.

[18] See e.g. Aidan Macnab, “SCC Backs Ontario Government’s Position that Mandate Letters Need Not Be Disclosed to Media”, Canadian Lawyer (2 February 2024), online: <canadianlawyermag.com/news/general/scc-backs-ontario-governments-position-that-mandate-letters-need-not-be-disclosed-to-media/383365>; Canadian Civil Liberties Association, Press Release, “CCLA Reacts to Supreme Court Ruling” (5 February 2024), online: <ccla.org/press-release/ccla-reacts-to-supreme-court-ruling>; Canadian Association of Journalists, News Release, “In Wake of Dubious SCC Decision, CAJ Argues Cabinet Secrecy Dramatically Expanded Against the Public’s Right to Know” (6 February 2024), online: <caj.ca/in-wake-of-dubious-scc-decision-caj-argues-cabinet-secrecy-dramatically-expanded-against-the-publics-right-to-know-practice>; “Canada Has a Secrecy Problem. The Supreme Court Just Made it Worse”, Editorial, The Globe and Mail (12 February 2024), online: <theglobeandmail.com/opinion/editorials/article-canada-has-a-secrecy-problem-the-supreme-court-just-made-it-worse>; Tom Cardoso, “‘A Broader Zone of Protection’: The CBC’s Lawyer on Supreme Court Cabinet Secrecy Ruling”, The Globe and Mail: Secret Canada (14 February 2024), online: <secretcanada.com/news/supreme-court-cabinet-secrecy-cbc-lawyer-q-and-a>; Vincent Gogolek, “Another Blow to Freedom of Information from the Supreme Court”, Policy Options (11 March 2024), online: <policyoptions.irpp.org/magazines/march-2024/mandate-letter-court-ruling/>.

[19] See Patricia Hughes, “The Law and Democracy: The Example of Mandate Letters”, Slaw (21 February 2024), online: <slaw.ca/2024/02/21/the-law-and-democracy-the-example-of-mandate-letters>.

[20] See O’Connor v Nova Scotia, 2001 NSCA 132 at paras 90–93. Conversely, in an earlier case, the Court of Appeal for British Columbia interpreted “substance of deliberations” more broadly. See Aquasource Ltd v British Columbia (Freedom of Information and Protection of Privacy Commissioner), 1998 CanLII 6444 (BC CA) at paras 39, 41, 48 [Aquasource]. The SCC’s interpretation in AG v IPC, supra note 2 at para 62, is consistent with Aquasource and perhaps even broader.

[21] RSC 1985, c A-1.

[22] See Office of the Information Commissioner of Canada, Annual Report: 2016–2017, Catalogue No 1P1E-PDF (Ottawa: Minister of Public Works and Government Services, 2017) at 47.

[23] Campagnolo, Behind Closed Doors, supra note 10 at 24.

[24] 2019 SCC 65.

[25] AG v IPC, supra note 2 at para 76 [references omitted].

[26] In a subsequent case, the Supreme Court of British Columbia agreed with the position of Justice Côté on this issue and applied the correctness standard. See British Columbia (Minister of Public Safety) v British Columbia (Information and Privacy Commissioner), 2024 BCSC 345 at paras 58–59. See also Sara Blake, “Supreme Court Confirms Need for Cabinet Secrecy”, Law360 Canada (5 February 2024), online: <law360.ca/ca/articles/1794078/supreme-court-confirms-need-for-cabinet-secrecy-sara-blake->.

[27] See Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25, s 22(1).

[28] See Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, s 12(1).

[29] See The Freedom of Information and Protection of Privacy Act, CCSM c F175, s 19(1).

[30] See Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6, s 17(1).

[31] See Access to Information and Protection of Privacy Act, 2015, SNL 2015, c A-1.2, ss 27(2)(b), 27(3).

[32] See Freedom of Information and Protection of Privacy Act, SNS 1993, c 5, s 13(1).

[33] See Freedom of Information and Protection of Privacy Act, RSPEI 1988, c F-15.01, s 20(1).