Cabinet of Curiosities: The SCC on Cabinet Secrecy

In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 [IPC], the Supreme Court of Canada (“the SCC”) held that mandate letters issued by Premier Doug Ford to his ministers shortly after the formation of his government in 2018 are protected from disclosure. In doing so, the SCC overturned the Court of Appeal’s (2022 ONCA 74) judicial review of the Information and Privacy Commissioner of Ontario (“IPC” or “Commissioner”), who had previously deemed the letters exempt. Karakatsanis J delivered the Court’s decision, with concurring reasons given by Côté J.

The appropriate balance between state transparency and governmental effectiveness is at the heart of this case. Problems related to Canadian constitutional convention, the appropriate standard of judicial review, and sound statutory interpretation are additionally implicated throughout the Court’s decision.

Background

A CBC journalist filed a freedom of information request in 2018 seeking access to 23 mandate letters from the recently formed Ford government. Mandate letters “set out the Premier’s views on policy priorities for the government’s term in office” (IPC, para 5). This request was denied by the Cabinet Office on the basis of Section 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 (“FIPPA”), which bars disclosure of records that “would reveal the substance of deliberations of the Executive Council or its committees.”

The Cabinet Office offered three principal reasons for denying disclosure of the letters pursuant to the s. 12(1) exemption: (1) they were an important feature of the Cabinet’s agenda for its initial meeting and revealed “the Premier’s key messages on policy initiatives”; (2) they were inextricably linked and therefore revelatory of the “deliberative process of Cabinet”; and (3) they “would reveal the substance of future Cabinet deliberations” (IPC, para 10). The Cabinet Office argued that their early disclosure would jeopardise Cabinet’s ability to engage in “free and frank discussion.” It further asserted that the “manner and timing” of such disclosure remains the Premier’s prerogative (IPC, para 10).

The IPC, in assessing the exemption under s. 12(1), considered the provision’s purpose. He identified ministerial candour and solidarity as its two principal rationales. The Commissioner made a crucial distinction between “deliberative communications,” which are protected under s. 12(1), and their “outcomes,” which are not. Nevertheless, the Commissioner suggested that topics or subject matter could fall within the purview of s. 12(1) if “context or other additional information would permit the reader to draw accurate inferences” about the deliberative process (IPC, para 12).

Decision

Majority Reasons

Relying on the authority of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], the SCC adopted the reasonableness standard of judicial review to conclude that the Commissioner’s interpretation of s. 12(1) and its application to the facts was unreasonable. A reasonableness review examines both the “decision maker’s reasoning process and the outcome” (IPC, para 17, citing Vavilov, paras 83-84), which are examined in the light of the decision maker’s expertise, as well as “the parties’ arguments and the context of the proceedings” (IPC, para 18).

The reasonableness of a decision in large part rests on its fidelity to the modern principle of statutory interpretation, which accounts for a statute’s text, context, and purpose (IPC, para 23, citing Vavilov, paras 117-22). While the Court acknowledged the Commissioner’s sound textual analysis (IPC, para 24), it nevertheless found his reasoning insufficiently attuned to the provision’s purpose and context. That the IPC failed to “adequately grapple” (IPC, para 21) with constitutional conventions and traditions related to Cabinet confidentiality was for Karakatsanis J a fatal defect of his analysis. With this context in mind, the SCC held that the letters did reveal the substance of Cabinet’s deliberations. For the Court, the safeguarding of Cabinet’s deliberative process is a key feature of Canadian constitutional democracy. Insofar as it “enables collective ministerial responsibility” it is “a precondition to responsible government” (IPC, para 28). Responsible government is made possible only when Cabinet members, free from “public scrutiny,” enjoy candour (IPC, para 29).

The SCC provided a third rationale not contemplated by the IPC: efficiency. The Court stated that efficiency works in service of effective government and is a rationale supported by the Court’s earlier jurisprudence (e.g., Carey v. Ontario, [1986] 2 SCR 637). Overlooking the efficiency rationale led the Commissioner to too narrowly interpret s. 12(1) and to disregard significant aspects of the Cabinet Office’s arguments. This includes the importance of Cabinet’s prerogative to decide “how and when to announce policy priorities” (IPC, para 39). The IPC’s characterization of the mandate letters as “non-exempt outcomes of the Premier’s deliberative process” erroneously distinguished between the Premier and his Cabinet (IPC, para 51). Furthermore, the SCC found that the IPC was not alive to the “realities of the deliberative process” in requiring that the letters were linked to specific Cabinet meetings (IPC, para 54).

Concurring reasons

In her concurring opinion, Côté J affirmed that the mandate letters are exempt from disclosure. She principally departed from the majority’s reasoning on the question of the appropriate standard of review. Reasonableness and correctness reviews are methodologically distinct (IPC, para 65, citing Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 [Mason], para 58). The former adopts a “reasons first” approach, focusing on the analysis and “decision the administrative decision maker actually made” (IPC, para 73, citing Vavilov, paras 15 and 83 and Mason, para 8). The latter adopts a fresh, de novo analysis. The more stringent correctness standard displaces the presumption of a reasonableness review when the rule of law is at stake (IPC, para 67, citing Vavilov, para 32). For Côté J, the “scope of Cabinet privilege” meets this high threshold.

Vavilov explicitly cites the scope of both solicitor-client and parliamentary privilege as examples of rule of law questions that require a correctness review. It was reasoned by analogy that the scope of Cabinet privilege belongs to this same category and thus ought to attract the same level of judicial scrutiny (IPC, paras 68-69, 71). Côté J additionally contended that while her colleagues purported to adopt a reasonableness review, their analysis in fact betrays the hallmarks of the correctness standard (IPC, para 74). For Côté J, the IPC was not unreasonable, but ultimately incorrect.

Analysis

Côté J’s arguments for adopting the correctness standard of review are compelling. However, the correctness analysis does not meaningfully engage with a critical context and purpose of FIPPA. While the SCC acknowledged transparency as a key to effective government, this context did not figure in its analysis.

It is worth more closely assessing Côté J’s concurring reasons and how, in her opinion, the Court engaged in a correctness review after all. Karakatsanis J identified candour, solidarity, and efficiency as the key rationales for the exemption provision, which ultimately promotes effective government. The IPC’s neglect of the last rationale led to an unreasonable decision (IPC, para 32). Côté J, however, disputed the role of the efficiency rationale:

 …this third rationale of “efficiency”, while an important tenet of Cabinet privilege, has not been articulated by our Court as such. As a result, I do not agree that it was unreasonable for the Commissioner to not address a concept that is fully expressed only in scholarly authority (IPC, para 76). 

Indeed, Côté J went to great lengths to showcase the Commissioner’s reasonableness in other aspects of his analysis. She thereby denied the principal basis on which Karakatsanis J found the IPC’s decision unreasonable. At the same time, Côté J contended that Karakatsanis J unwittingly conducted a correctness review. The result, nevertheless, was a correct interpretation of the exemption provision. While Côté J was not explicit on this point, it appears that the efficiency rationale is still essential to a correct interpretation but is not required for a reasonable one.

The SCC makes much of the efficiency rationale, whose ultimate purpose is to promote government effectiveness. At the outset of this case, the Court frames freedom of information legislation as “a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy” (IPC, para 1). According to the Court, “[a]ccess to information promotes transparency, accountability, and meaningful public participation”, all of which promote effective government (IPC, para 2). Yet these introductory insights do not figure in the Court’s analysis. The Court’s correctness analysis falters insofar as it neglects to consider how transparency might promote effective government. In failing to address this in its reasoning, the SCC leaves out important context and purpose from its statutory interpretation. The Court might have still concluded that the benefits of secrecy outweigh those of transparency when it comes to government effectiveness, but by passing over the issue in near silence it has deprived future decision makers of its guidance.

This decision has far-ranging implications for both administrative law and the public’s access to information. Regarding administrative law, Côté J’s concurring reasons demonstrate how the courts are still responding to Vavilov and applying its guidance. Questions about freedom of information likely have more immediate appeal to the Canadian public. It is notable that, at times, the Court’s language does not quite inspire the greatest confidence in our political machinery. The Court characterises the provincial executive as perhaps excessively frail, whose legitimate aims are easily frustrated when the public or political opponents know too much (IPC, para 36). The SCC supposes that public pressure and partisan criticism resulting from the early release of Cabinet deliberations would “paralyze the collective decision-making process” (IPC, para 36, quoting Yan Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (Vancouver: UBC Press, 2021) at 26). As a matter of public policy, Canadians might wonder if the appropriate solution is to further entrench secrecy or to demand less delicate public servants. In the end, we are left to speculate what curiosities Cabinet holds.