‘A broader zone of protection’: The CBC’s lawyer on Supreme Court cabinet secrecy ruling

Earlier this month, the Supreme Court of Canada finally issued its long-awaited decision in the yearslong freedom of information dispute between the CBC and Ontario’s Ford government.

Before we go any further, some background: The saga began in 2018, when CBC reporter Nicole Brockbank filed an FOI request for the mandate letters Ontario Premier Doug Ford handed to his cabinet. Mandate letters are essentially political marching orders, laying out a minister’s priorities and key projects for the coming term. The government declined to release the letters, citing cabinet secrecy provisions. (These kinds of exemptions aren’t unique to Ontario – every FOI jurisdiction in Canada has some language about cabinet confidentiality.) 

The CBC appealed and won at the Information and Privacy Commissioner of Ontario, the provincial body that handles access disputes. The Ontario government took that decision to Divisional Court, lost, appealed to the Court of Appeal and lost again. Mr. Ford finally prevailed at the Supreme Court, however, in a resounding 7-0 ruling that allows the province to keep the mandate letters secret. (In theory, anyway: They were leaked to Global News last year.)

Vincent Gogolek, a retired lawyer and expert on freedom of information issues, told me that the heart of the court’s argument lay in a section halfway through the decision, in which Justice Karakatsanis wrote that the Ontario IPC “did not engage with a core purpose of Cabinet secrecy to promote the efficiency of the collective decision making, nor with the ultimate goal of this constitutional convention: effective government.”

The ruling was met with disappointment, to put it lightly. David Loukidelis, a former B.C. information commissioner, called it an “ill-founded setback,” and another expert said it was a “horrible, horrible decision” and “the worst-case scenario.” Experts on administrative law have also raised concerns about the court’s decision.

Last week I sat down with the CBC’s lead lawyer for the case, Justin Safayeni of Stockwoods LLP, to discuss the fallout from the ruling. The interview has been edited and condensed.

What do you make of the decision?

I think there’s two key takeaways more broadly for FOI requests of this nature, and I think both of them point towards it being harder to get access.

The first is overlaying this idea of the cabinet secrecy convention and its rationales over the language of the cabinet records exemption, Section 12. It creates this additional, nebulous zone where we're not talking about the language of the provision anymore – it isn’t the substance of deliberations or not. Now we're worried about, does it somehow engage this kind of ill-defined cabinet secrecy convention, does it engage this cabinet efficiency rationale? What are the contours of that? Where does that start and stop? And it seems to just really expand the scope of that provision, certainly beyond how the IPC’s been interpreting it for 30-plus years now. It's an Ontario statute, but other provinces have similar statutes, and I think there may be a reticence from other IPCs to take a different approach.

My understanding is that while they ruled on Ontario’s law and Section 12 specifically, this would have broader implications for every IPC and every law in the country.

I think that's probably fair to say. So the first problem is how this additional overlay of the cabinet secrecy convention takes us away from the text and into a broader zone of protection for the documents.

The second problem, which may be a bit too inside baseball for your readers, is the reasonableness-correctness problem. That’s a problem, because whatever the majority says they’re doing – it doesn't matter if we're in “reasonableness” or “correctness,” at the very least – if it's reasonableness, it's a pretty exacting form of reasonableness.

And I think you'll find commentators that are probably more sympathetic with Justice Côté’s view that what's really happening here is they're interpreting this from scratch, on a correctness standard, according to how they consider it should be interpreted. The consequences of that are basically that courts are going to be more exacting, more intrusive  when they review IPC decisions involving cabinet records. And instead of affording a measure of deference to those determinations, I think there's an argument that following the Supreme Court's model, they will be emboldened to take a more searching review.

That's troubling for access in the final scheme of things, because if you get an IPC that's willing to put themselves out there and make a decision granting access – and governments haven't been shy from challenging those decisions anyway – but they know a court is going to take a harder look at it rather than being more deferential, it's even more likely that those things are gonna end up years in court, and, at the end of the process, perhaps with a review in court that's more willing to say, “We simply don't agree with this.”

Both of those in terms of the trend line for access raise serious concerns, at least for me.

Can you explain this distinction between “reasonableness” and “correctness”?

This is a debate that's been going on in Canadian law well outside of cabinet records, well outside of the IPC, for decades. And the U.S. is having the same thing – the U.S. Supreme Court is about to issue a case that’s essentially going to burn the house down over there. 

This struggle between correctness and reasonableness, it comes down to: When you have a non-judge expert decision-maker making some kind of call and it gets reviewed by a court, how much is the court going to defer to the person, that expert, who made the initial decision? In a correctness world, there's no deference. The court is just going to say: “The expert did what the expert did. We're the court, we're gonna do what we think is right. It may line up with what the expert did, it may not line up with what the expert did. We're gonna call it as we see it. Period.”

Reasonableness is supposed to be a totally different mindset. Reasonableness kind of starts from the position that this administrative decision maker who made this first-instance decision has a degree of expertise and experience in whatever sphere we're talking about. So we should defer to that decision and not interfere with it as long as it's “reasonable.” A lot of ink has been spilled on what “reasonable” means, but a short-form version of thinking about it is, maybe it's not the decision we would have reached if it was totally up to us, but they've explained themselves, there are a set of reasons that kind of walk us through their thinking, there is a justification that's been provided, and it kind of hangs together. So maybe it's not what we would have done, maybe we disagree with it, but it is reasonable – so we're not gonna interfere.

This is the whole Vavilov thing? (Editor’s note: Canada v. Vavilov was a 2019 Supreme Court of Canada case that clarified how courts should approach decisions made by non-court decision-making bodies.)

It's exactly the Vavilov issue. The lens through which a reviewing court looks at an IPC decision, whether it's correctness or reasonableness, can make a huge difference. The majority says, look, we’d reach the same decision either way. I don't want to sling mud here, but I just think there's a lot of observers who are scholars in this area – including Daly – that raise real questions about that.

You say that, but then, at the same time, it was a 7-0 decision. Côté disagreed, but just on the mechanism, not on the final decision. There was a vociferous response from access advocates. What do you make of a 7-0 ruling in favour of the government?

Personally, I'm disappointed in it. These are already some of the most difficult types of records to get. Access requests that touch on this exemption are already overwhelmingly unsuccessful, and this is just going to shut the door even further.

The one thing that strikes me with this whole affair is that we don’t get FOI fights at the Supreme Court very often. They’re very rare, they rule on this once a decade, and it sets the tone going forward. They're saying that cabinet secrecy is paramount, but at the same time, there's a whole other institution, the FOI regime, which is in the throes of chaos right now.

One of the things that, in my view, was missing in the decision – and it was recognized in the courts below and pressed by us in our submissions – is the overall purpose of the access regime. So, yes, you have exemptions that have particular things they're designed to protect. 

But we don't have a lot of attention to the overall purpose of the access regime which, as you know, is to improve accountability and the ability of citizens to participate in a democracy in an informed way. And there have been lots of previous cases – even where access requests have been denied – where at least that purpose is spotlighted. And it's kind of unfortunate that that didn't really seem to get a lot of traction in this particular decision.

And it goes to your point about getting signals from appellate courts that kind of help calibrate this balance. I mean, appellate courts can’t fix all the problems that you folks have done such a great job reporting on.

Nor should they, really.

No, it's a different institution, it's a different fix that's needed. But what they can do is send signals on the expectation, at least at a high level, of how some of these exemptions ought to be interpreted. In previous cases, courts, the Supreme Court, have said, look, generally exemptions are to be construed narrowly, because if you're going to give effect to these broad purposes, it doesn't make sense to turn around and interpret exemptions super broadly.

That’s the design of the law.

That’s the design of the law. In fact, Ontario's law says explicitly that exemptions should only be narrow and where necessary. It's in the actual purpose provision. For all the discussion about other aspects and conventions that are now infused in Section 12, that piece of it is missing. And I think that is unfortunate.

I think the optimist’s view is that the approach taken here might be peculiar to Section 12. It seems inspired by the cabinet secrecy convention, which obviously wouldn't apply to a lot – there aren’t constitutional conventions that are overlaid over all the other exemptions. So the optimistic view is that the balance that existed before this case, when it comes to the other exemptions, is not necessarily going to be upset by this. But it certainly would have been nice to see some recognition for the broader, overarching purposes of the act as part of the decision.

You're touching on something interesting there, which is that the Supreme Court kind of do two things: They decide on some cases super narrowly, like, this is the only thing we're deciding on and it has no bearing on the greater body of law. And then sometimes the Supreme Court writes new laws. They come up with Jordan, Gladue, and those are basically statutes in their own way – weirdly generated, but this does happen, right? And I wonder which side of those two approaches this decision falls on. Is it a really narrow decision that only applies to an obscure reference in an obscure law in Ontario, or does it apply broadly to the entire country, and every IPC should be taking notice, and staff in every premier's office are going to be looking at creative ways to take advantage of this?

I think that's kind of an astute way to put it. I'd say it's going to have broad ramifications within the cabinet exemption. I think it's hard to read the case as a one-off applying to these cabinet things, and after this, everything is going to go back to normal. I also don't think it's going to overhaul the entire way access to information exemptions across the board are interpreted, because I think there are bodies of law dealing with different exemptions that are established, and I also don't think that the reasoning of this cabinet secrecy convention thing applies to the other exemptions, necessarily.

But within the zone of Section 12 in Ontario, and quite possibly its sister provisions in other statutes across the country, I do think the signal is that a broader zone of protection is going to be afforded. I think it goes beyond the case in that sense.

How far that's going to be pushed is something we'll see through access requests of government positions and IPC decisions in the years to come. I'm sure there will be some wind in the sails of those who want to push the envelope in that area.

Photo of Justin Safayeni courtesy of Stockwoods LLP

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