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Evidence - Cabinet Confidences [CEA 39]

. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)

In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (SCC, 2023) the Supreme Court of Canada considers the balance between freedom of information law and cabinet secrecy, here in a Crown-successful appeal from an Ontario FIPPA JR of the CBC's request for cabinet 'mandate letters':
I. Introduction

[1] Freedom of information (FOI) legislation strikes 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. This appeal concerns the balance between these two foundational principles.

[2] Access to information promotes transparency, accountability, and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to “improve the workings of government” by making it “more effective, responsive and accountable” to both the legislative branch and the public (Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403, at para. 63).

[3] However, in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is “essential to good government” (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, at pp. 658-59).

[4] All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees. The interpretation of “substance of deliberations” by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.

[5] The access to information dispute in this appeal arises out of a Canadian Broadcasting Corporation (CBC) journalist’s request to access 23 letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018 (Letters). These Letters, commonly called “mandate letters”, set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the Letters were exempt from disclosure under s. 12(1) of FIPPA.

[6] The CBC appealed to the IPC, who found that the Letters were not exempt and ordered their disclosure (Order PO-3973, 2019 CanLII 76037). On judicial review, the Ontario Divisional Court found that the IPC’s decision was reasonable and a majority of the Ontario Court of Appeal agreed (2020 ONSC 5085, 93 Admin. L.R. (6th) 1; 2022 ONCA 74, 160 O.R. (3d) 481). In dissent, Lauwers J.A. would have found that the decision was unreasonable for several reasons, but mainly because it eroded the sphere of Cabinet privilege that s. 12(1) is designed to preserve.

[7] As I shall explain, I conclude that the IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.

[8] Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the Premier’s deliberative process did not account for the broader context of the Cabinet’s deliberative process. For one, as head of Cabinet, the Premier’s deliberations cannot be artificially segmented from those of Cabinet. And far from being mere “topics” like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.


III. Analysis

[14] Section 12(1) protects the confidentiality of records that “would reveal the substance of [Cabinet] deliberations”. Similar exemptions are found in FOI legislation across the country.[1] The opening words of s. 12(1) provide that “[a] head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations” of Cabinet or its committees. The paragraphs of the provision protect listed records, which need not meet the standard set out in s. 12(1)’s opening words to qualify for protection. Section 12(1) is reproduced in full in the attached Appendix. Only the opening words of the provision are at issue.


[26] The legislative context shows FIPPA’s Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality (see Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 21, 1st Sess., 33rd Parl., July 12, 1985, at pp. 753-55 (Hon. Ian G. Scott) (recognizing that FIPPA required “balanc[ing]” of competing interests and that the Cabinet records exemption protected “central institutions of representative government”)). In contemplating the enactment of FOI legislation in Ontario, the official report of the Williams Commission recognized that changes to access to government information practices had to be compatible with the province’s traditions and the constitutional conventions related to the effective functioning of Cabinet (Commission on Freedom of Information and Individual Privacy, Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy (1980) (Williams Report), at pp. 83 and 85).

[27] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution (A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 5; see also Reference re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at p. 880). Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1).

[28] In our constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility. Responsible government is a fundamental principle of our system of government (OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at p. 38) and the “most important non-federal characteristic of the Canadian Constitution” (P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 9:3). Government is “responsible” in that the executive is accountable to, and must maintain the confidence of, the legislative assembly (§ 9:1; Heard, at p. 90). Cabinet ministers are both individually responsible for their own conduct and respective departments, and collectively responsible for government policy and action (G. White, Cabinets and First Ministers (2005), at pp. 15-16).

[29] Cabinet secrecy derives from the collective dimension of ministerial responsibility (Y. Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017), 51 R.J.T.U.M. 51, at p. 59). Collective ministerial responsibility requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny (IPC reasons, at paras. 86-87 and 97). This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced. These purposes are referred to by scholars as the “candour” and “solidarity” rationales for Cabinet confidentiality (see Campagnolo (2017), at pp. 66-72). At base, Cabinet confidentiality promotes executive accountability by permitting private disagreement and candour in ministerial deliberations, despite public solidarity (ibid.; see also N. d’Ombrain, “Cabinet secrecy” (2004), 47 Can. Pub. Admin. 332, at p. 336).

[30] Scholars also refer to a third rationale for the convention of Cabinet confidentiality: it promotes the efficiency of the collective decision-making process (see Campagnolo (2017), at p. 68). Thus, Cabinet secrecy promotes candour, solidarity, and efficiency, all in aid of effective government. This objective is also reflected in the jurisprudence of this Court. In Carey, this Court observed that the very purpose of the confidentiality is the proper functioning of government (pp. 664, 670-71 and 673). In Babcock, McLachlin C.J. stated: “Cabinet confidentiality is essential to good government” (para. 15). And in John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, this Court noted that exposure of policy priorities at an early stage of the deliberative process to journalists or political opponents “is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness” (para. 44, quoting Canadian Council of Christian Charities v. Canada (Minister of Finance), 1999 CanLII 8293 (FC), [1999] 4 F.C. 245, at para. 31).

[31] Cabinet confidentiality is therefore “not just a convenient political dodge; it is essential to effective government” (see White, at p. 139; see also p. 138). Our jurisprudence focuses broadly on the value of deliberative secrecy to the effective operation of government institutions, including Cabinet. It also recognizes that too much openness can impair that aim (see Babcock, at para. 18; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 (Criminal Lawyers’ Association 2010), at para. 40; B.C. Judges, at para. 96; see also John Doe, at para. 44; Williams Report, at p. 235).
The court continues at [paras 23-57] to explain how the tribunal and lower court erred when they found that CBC was entitled to the mandate letters:
C. Conclusion

[58] In sum, the IPC 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. The IPC’s lack of appreciation for the contextual constraints bearing upon its decision led him to unreasonable interpretive approaches and conclusions. He characterized the Letters as outcomes of the Premier’s deliberative process; found they were mere topics that did not permit accurate inferences as to Cabinet deliberations; and required evidence from Cabinet Office to show that disclosure of the Letters would permit accurate inferences to be drawn as to “actual Cabinet deliberations at a specific Cabinet meeting” (para. 100; see also paras. 116-17). As a result, the IPC’s narrow interpretation of the “substance of deliberations” was unreasonable. And even on his understanding of the provision, his application of the provision to the Letters was unreasonable. The Letters, along with the representations of Cabinet Office, were clearly sufficient to establish the Letters fell within s. 12(1). The IPC’s decision ordering disclosure must be set aside.

[59] I would add this. There can be no doubt that, as the CBC submits, public access to government-held information is vital to our democratic process (see R.F., at para. 49, citing John Doe, at para. 41). As this Court noted in Dagg, “without an adequate knowledge of what is going on”, neither legislators nor the public can hope to hold government accountable or contribute to the policy-making process (para. 61, quoting D. C. Rowat, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480). Still, FIPPA contemplates that, where engaged, other weighty public interests — whether national security, personal privacy, or the confidentiality of Cabinet deliberations — are important enough to outweigh the public’s interest in access to information (see FIPPA, ss. 16, 20 and 21).

[60] Given the key role Cabinet confidentiality plays in the proper functioning of our Westminster system of government, cases about its proper scope raise important issues for the stability and legitimacy of our democracy. Cabinet confidentiality both enables the proper functioning of responsible government by promoting collective ministerial accountability to the legislature and affords the executive the operational space it needs to function effectively (B.C. Judges, at paras. 65-67 and 96; Carey, at p. 659; see also Criminal Lawyers’ Association 2010, at para. 40). These functions are crucial both to the principle of responsible government and to the separation of powers. Spheres of confidentiality insulated from “undue external interference” are essential to the executive’s ability to “perform its constitutionally-assigned functions” (B.C. Judges, at paras. 66 and 96).

[61] In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive not only to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity. They must also be attentive to the dynamic and fluid nature of executive decision making, the function of Cabinet itself and its individual members, the role of the Premier, and Cabinet’s prerogative to determine when and how to announce its decisions.

[62] Such an approach reflects the opening words of s. 12(1), which mandate a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations, rather than categorically excluding certain types of information from protection. Thus, “deliberations” understood purposively can include 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. And 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. The identification and discussion of policy priorities in communications among Cabinet members are more likely to reveal the substance of deliberations, especially when considered alongside other available information, including what Cabinet chooses to do.
. China Mobile Communications Group Co., Ltd. v. Canada (Attorney General)

In China Mobile Communications Group Co., Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the adequacy in this case of the rare Crown remedy of a s.39 Canada Evidence Act (CEA) certificate in support of claims of cabinet privilege:
[33] The appellants also argue that the decisions below wrongly treated Tsleil-Waututh as the authority on the sufficiency of certificates under section 39 of the Canada Evidence Act, and because of this strayed from the Supreme Court’s guidance in Babcock. In their view, Tsleil-Waututh involved a unique, fact-driven analysis that permitted, only exceptionally, this Court’s departure from Babcock. The appellants also point to Smith, Kline & French v. Attorney General of Canada, [1983] 1 F.C. 917, 1983 CanLII 5055 (FC) [Smith, Kline], which they say establishes a higher bar for certificate sufficiency than that applied by the Associate Judge and the Federal Court. The appellants maintain before this Court that item #1 of the schedule to the certificate includes only generic descriptions of the relevant material, making it impossible for the appellants to know whether the timeline of the documents’ preparation and delivery complied with the prescribed periods required by the ICA.


[35] With respect to the section 39 certificate, the respondents say that it satisfies the requirements of Babcock. They say that the certificate on its face permits a court to ensure that the Clerk of the Privy Council (the Clerk) has withheld only those documents that fall under section 39, and has not therefore exceeded their statutory powers. According to the respondents, the Associate Judge arrived at a conclusion that was not only consistent with Babcock, but was also consistent with the later applications of that decision in Tsleil-Waututh and Volpe. The respondents argue that the appellants’ reliance on Smith, Kline is misplaced, as that decision pre-dates Babcock and involved an action with discovery instead of an application for judicial review.


B. Ground #2: The sufficiency of the respondents’ certificate under section 39 of the Canada Evidence Act

[51] Section 39 of the Canada Evidence Act establishes a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. Under subsection 39(1) of the Canada Evidence Act, the Clerk of the Privy Council may object to the disclosure of Cabinet confidences by certifying information as confidential. Subsection 39(1) also requires that, where the Clerk or a minister has validly certified the information as confidential, a judge or tribunal must refuse any application for disclosure of information without examining the information. The categories of information that fall within the scope of a confidence of the Queen’s Privy Council for Canada are enumerated in subsection 39(2).

[52] The Supreme Court has articulated the following four requirements for a valid certification of confidentiality under section 39: it must be done by the Clerk or minister, relate to information within subsection 39(2), be done in a bona fide exercise of delegated power and be done to prevent disclosure of hitherto confidential information (Babcock at para. 27).

[53] The Clerk or minister must provide a description of the withheld information sufficient to establish on its face that the information is a Cabinet confidence falling under the protection of section 39. Four indicia should normally be provided to establish that the document is in fact a confidence (Babcock at para. 28):
The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue.
[54] The appellants here dispute only the sufficiency of item #1 of the schedule to the certificate, in terms of its formal aspects and the particulars it provides. The appellants do not assert that the Clerk improperly exercised the discretion conferred by subsection 39(2).

[55] The certificate reflects the jurisprudence governing the application of section 39 of the Canada Evidence Act.

[56] In Tsleil-Waututh, this Court dealt with a description equivalent to that in issue in this appeal. The Associate Judge noted the similarity in language between item #1 of the certificate, and the second item of the certificate in Tsleil-Waututh (CMJ Reasons at paras. 63-65; see para. 29 of Tsleil-Waututh for a reproduction of the certificate in that case). The only differences between these items are those aspects that would necessarily vary depending on the factual circumstances: the date of the submission to the Governor in Council, the relevant minister, the subject matter of the proposed Order in Council, and the nature of the materials accompanying the submission. Otherwise, the descriptions are identical; they provide the same level of detail regarding the accompanying materials, describing them only in broad terms and omitting any dates related to the materials’ preparation or delivery.

[57] The applicants in Tsleil-Waututh advanced the same argument as that advanced before this Court: that the description of the materials said to have accompanied the Minister’s submission to the Governor in Council lacked specificity (Tsleil-Waututh at para. 30). This Court in Tsleil-Waututh rejected this argument (Tsleil-Waututh at paras. 40-42). This Court found that the description of the second item—the item comparable to item #1 in this case—was adequate, upon considering the alternative language available to the Clerk (Tsleil-Waututh at para. 42):
If more particularity in the descriptions were supplied, there would be a substantial likelihood that the information that lies at the heart of what section 39 exists to protect would be disclosed to some extent. Enough concerning [the second item] has been disclosed to convince me that the decision to make the certificate and the certificate itself, in the words of Babcock, “flow from statutory authority clearly granted and properly exercised.”
[58] The appellants here argue that, in dismissing the applicants’ production motion, this Court in Tsleil-Waututh considered the fact that the evidentiary record on the application for judicial review was already sufficient for a meaningful review. They argue that a similarly full evidentiary record does not exist here, and that this distinguishes Tsleil-Waututh from the present matter.

[59] The fact that the evidentiary record in Tsleil-Waututh was both expansive and growing played no role in this Court’s conclusion that the certificate was valid. This Court only commented on the state of the record in obiter to observe that the use of the section 39 certificate would not immunize the exercise of public powers as the applicants in that case suggested (Tsleil-Waututh at para. 56). Further, as the respondents point out, this Court transitioned to its discussion in obiter by clarifying that “the impact that a section 39 certificate might have on litigation is not a relevant factor for assessing the validity or sufficiency of a certificate” (Tsleil-Waututh at para. 49). The state of the evidentiary record here does not distinguish Tsleil-Waututh.

[60] I turn now to the appellants’ argument that the Federal Court erred by accepting the application of Tsleil-Waututh, instead of Babcock, to the certificate before it. According to the appellants, Babcock, as the leading case on certificates under section 39 of the Canada Evidence Act, cannot give way to any jurisprudence that merely applies its principles to a unique set of factual circumstances. I disagree with this characterization of the relationship between Tsleil-Waututh and Babcock.

[61] The principles emerging from Tsleil-Waututh are not contrary to those established in Babcock, nor do they apply only in exceptional circumstances as suggested by the appellants. Tsleil-Waututh does not diverge from Babcock. Although Babcock enumerated four indicia of identification that will generally suffice for a valid certificate under section 39, and although this Court in Tsleil-Waututh found the certificate before it to be valid even without these particular indicia, the decisions are not inherently at odds. As this Court acknowledged, the indicia listed by the Supreme Court were provided as examples only of what normally should be disclosed (Tsleil-Waututh at para. 32). The Supreme Court emphasized that the real concern driving analyses of certificates is whether the description of the information is “sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2)” (Babcock at para. 28).

[62] Tsleil-Waututh adheres to this principle. The Court asked whether it was clear that the withheld materials fell under section 39 of the Canada Evidence Act based upon the language of the certificate, and was satisfied that the application of section 39 was indeed clear on the face of the certificate (Tsleil-Waututh at paras. 34 and 38). This follows, precisely, the analysis as set out in Babcock. Babcock does not impose formalistic, rigid requirements on a certificate under section 39, absent which the certificate must necessarily be invalid or valid; instead Babcock focuses on the requirement that the certificate bring the withheld information within the ambit of section 39 for the benefit of judges and tribunals dealing with production requests and responsible for verifying the executive’s power to claim Cabinet confidentiality. The appellants’ assertion that Tsleil-Waututh cannot be considered alongside Babcock must fail.

[63] I also disagree with the appellants’ argument that Smith, Kline establishes an error in the Federal Court’s decision. Smith, Kline predates Babcock and the subsequent jurisprudence applying the Supreme Court’s guidance in Babcock. The Federal Court in Smith, Kline also does not establish the high bar for certificate sufficiency that the appellants describe. The certificate in that case listed 70 withheld documents “without giving particulars as to dates, titles, authors, addresses, etc.”, and instead described the documents with blanket terms that did not demonstrate the Clerk to have directed their mind to the criteria and limitations applicable to the assertion of Cabinet confidentiality (Smith, Kline at 928-931). Because of its place in the jurisprudence on section 39 of the Canada Evidence Act and the unique wording of the certificate at issue, Smith, Kline does not support the argument that the certificate in this case is invalid.


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Last modified: 02-02-24
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