Cabinet secrecy gets a boost
Supreme Court rallies to safeguard confidentiality of cabinet documents
Canada’s top court last week roundly affirmed the confidentiality of cabinet documents, in a ruling that dismissed a challenge to secrecy’s status quo.
In a unanimous 7-0 decision, the Supreme Court of Canada found that 23 mandate letters that Ontario Premier Doug Ford issued to his ministers in 2018 were properly denied to the CBC, which had asked for them in freedom-of-information requests.
The road to the high court was long. CBC had been backed by Ontario’s information commissioner, and by two levels of Ontario courts, before the Supreme Court removed the punch bowl Friday. The court even ordered CBC to pay the Ontario government’s legal costs.
Transparency activists had seen the case as a hairline crack in the armour of cabinet secrecy. Mandate letters, setting out policy priorities for ministers, are not about confidential deliberations around the cabinet table, they argued. Therefore, the documents don’t deserve protection.
The Supreme Court shot down that argument.
“The mandate letters reflect the view of the Premier on the importance of certain policy priorities and mark the initiation of a fluid process of policy formulation within Cabinet,” says the ruling, written by Justice Andromache Karakatsanis.
“The letters are revealing of the substance of Cabinet deliberations.”
Karakatsanis is a former cabinet secretary and clerk to the executive council in Ontario (2000-2002), with a ringside seat to Premier Mike Harris’s cabinet deliberations. It should also be noted that the Supreme Court has a strong institutional interest in the confidentiality of its own deliberations.
So what does the ruling mean for journalism?
The 23 mandate letters, it turns out, are already public. They were leaked to Global News in September last year, which published them online. No real bombshells there, though readers can decide for themselves.
In fact, mandate letters have morphed into public-relations tools in recent years. The Liberal government of Justin Trudeau began to release them proactively in 2015 and, for the most part, the letters are yawnfests, with mere scraps of news. Perceptive reporters can squeeze out a news nugget or two, but they’ll never go viral. The documents amount to a dull recitation of election platforms, crafted for public consumption rather than ministerial direction.
(The only mandate letter I ever encountered with hard news was a leaked June 15, 2012, missive from Prime Minister Stephen Harper to Defence Minister Peter MacKay, copy here:
Harper chided MacKay for his tepid cuts to the department’s administration, which The Canadian Press reported at the time.)
Friday’s Supreme Court decision certifies the ascendancy of cabinet secrecy. The ruling preserves the status quo for Canada’s freedom-of-information laws, provincial and federal, which carve out special protections for cabinet records that might reveal deliberations.
As Karakatsanis wrote, the carve-out is essential to good government, “which requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny.”
“This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public …”
So it’s wrong to cast the decision as some big loss of transparency. Nothing has become more secret. Things remain as secret as they ever were.
But that doesn’t mean the status quo is unassailable. Canada has the most restrictive cabinet secrecy laws of all the Westminster-style governments in the world. Records that in no way reveal cabinet deliberations are nevertheless being immunized against freedom-of-information requests. And the circle of these improperly protected documents is getting wider over time.
Smart insiders, not just journalists, have called for significant reforms to improve transparency at the apex of government, for better accountability and enlightened public discourse. Factual materials or background documents, for example, should not continue to be swept into cabinet’s black hole, they argue.
Last week’s decision is a reminder that cabinet is an excessively defended fortress, and there’s much work ahead to tear down the ramparts. That project, though, does not begin with prying loose those mandate letters.