Canada has a secrecy problem.
Look at the start of the inquiry into foreign election interference. Considerations about national security are being used as a shield to allow as little transparency as possible.
The Globe and Mail’s ongoing Secret Canada project, an investigation into the workings of the country’s freedom of information laws, has shown the many ways the systems are broken.
Then there’s the Supreme Court. One of its standard practices is to turn down potential appeals without explanation. This can result in inexplicable silences on major unanswered questions, such as last year when the court declined to hear a case that centred on private health care.
The court’s fealty to secrecy went further in 2017 when it struck an agreement with Library and Archives Canada to prevent the public from seeing records of deliberations for at least 50 years after a case is decided. “I don’t know any other constitutional democracy that puts the lid on it for so long,” an expert told The Globe at the time.
Advocating for less secrecy is not an argument to put everything on the table. There is obviously a role for confidentiality at the top levels throughout society, whether it’s judicial jousting ahead of a ruling or the inner workings of the federal cabinet. Freewheeling debates behind closed doors are a pillar of democracy.
But the fact is clear: Canada has a secrecy problem – and a Supreme Court decision in early February pushed the country further in the wrong direction.
The case goes back to 2018, after Doug Ford was elected premier in Ontario. Premiers and prime ministers had long handed “mandate letters” to their ministers. They’re basically to-do lists and usually detail what was promised publicly in a recent election campaign. But like so much in Canada, mandate letters for years were treated as top secret.
In the mid-2010s, amid a brief burst of government openness, former Ontario premier Kathleen Wynne and Prime Minister Justin Trudeau released their mandate letters. The publication of the previously hallowed documents showed how relatively ordinary they are: these are our governing priorities. Such things should be public by default.
Mr. Ford disagreed. He claimed they were confidential cabinet records, exempt from freedom of information disclosure. The CBC sought their release and Ontario’s information commissioner ordered the letters be issued. An Ontario divisional court agreed and so did the Ontario Court of Appeal.
The Supreme Court, however, did not. In a unanimous 7-0 ruling, the Supreme Court went to bat for secrecy and dealt a resonating negative blow to Canada’s already rickety freedom of information laws.
The case revolved around the question of whether mandate letters divulge the “substance of deliberations” of cabinet. Such records are not available under freedom of information. But mandate letters are the result of deliberations, in the eyes of many observers – including the top court in Ontario. The letters are the list of priorities the government has decided to undertake, not a record of what was included and left out and why and why not.
The Supreme Court had a different view. It sees the letters as “agenda-setting” and thus an early part of a decision-making process in which the public is not welcome. Yes, the Supreme Court ruled that cabinets across the country are allowed to keep their policy priorities secret, if they so choose.
The top court’s ruling is rooted in an undue veneration for the apparently all-encompassing importance of cabinet secrecy. No one doubts that cabinets need ample room to operate in private. But this ruling goes too far and comes from a court that itself too often prefers secrecy. The author of the decision, Justice Andromache Karakatsanis, had previously served in Ontario in the early 2000s as cabinet secretary and clerk of the executive council. The ruling is a paean to what Ms. Karakatsanis described as “Cabinet secrecy’s core purpose of enabling effective government.”
This decision hands governments a legal weapon with which to bat away even more information requests than before. It is a loss for all Canadians.
With the top court overturning a series of decisions that favoured transparency, it is now the duty of elected officials to do what is right. Mandate letters are just one example of a place where governments must reveal rather than conceal.