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Public Interest (Cabinet) Privilege

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

In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (Ont CA, 2022) the Court of Appeal, in the context of an unsuccessful Crown FOI appeal [where there is a 'cabinet deliberations' exclusion from disclosure: FIPPA s.12], extensively considers the issue of cabinet privilege [paras 37-210] (91-210 is a useful dissent).

. Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia

In Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia (SCC, 2020) the Supreme Court of Canada considered public interest immunity as it applied to Cabinet records sought in a judicial review over judge's salaries:
[61] Public interest immunity protects the confidentiality of Cabinet deliberations: Carey, at pp. 655-59 and 670-71; B.C. Provincial Court Judges, at paras. 67 and 98. The Nova Scotia legislature has not displaced the common law doctrine of public interest immunity and, indeed, in the context of proceedings against the Crown, has preserved it: Proceedings against the Crown Act, R.S.N.S. 1989, c. 360, s. 11.

[62] The common law test is whether the public interest in the document remaining confidential outweighs the public interest in its being disclosed: Carey, at pp. 653-54 and 670; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 19; B.C. Provincial Court Judges, at para. 99. The main factors relevant to balancing the competing public interests in confidentiality and disclosure of documents concerning Cabinet decision making were described in Carey, at pp. 670-73:
(1) the level of the “decision-making process”;

(2) the “nature of the policy concerned”;

(3) the “particular contents of the document”;

(4) the timing of disclosure;

(5) the “importance of producing the documents in the interests of the administration of justice”; and

(6) whether the party seeking the production of the documents “alleges unconscionable behaviour on the part of the government”.
In the companion appeal, I explained how these factors apply in the context of a Bodner review: see B.C. Provincial Court Judges, at paras. 106-19.

[63] The burden is on the government to establish that a document should not be disclosed because of public interest immunity: Carey, at pp. 653 and 678; B.C. Provincial Court Judges, at para. 102. The government should put in a detailed affidavit to support its claim of public interest immunity and it will often be helpful for the government to be as specific as possible in identifying harm that would result from disclosure: Carey, at pp. 653-54 and 671; B.C. Provincial Court Judges, at para. 102.
. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada considered public interest immunity (also referred to as public interest 'privilege', which I think is the better term as it applies to information, rather than immunity - which applies to individuals or groups of individuals) as it applied to Cabinet records sought in a judicial review over judge's salaries:
[7] Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant the document’s disclosure. In the Bodner context, the strength of the public interest in disclosure will often depend on the importance of the document to determining the issues before the court in the Bodner review.

....

C. Public Interest Immunity

[95] There is a strong public interest in maintaining the confidentiality of deliberations among ministers of the Crown: Carey, at pp. 647 and 656‑59; Babcock, at paras. 18‑19. As a matter of constitutional convention, Cabinet deliberations are confidential: N. d’Ombrain, “Cabinet secrecy” (2004), 47(3) Canadian Public Administration 332, at pp. 334‑35. Federal ministers swear an oath as Privy Counsellors to “honestly and truly declare [their] mind and [their] opinion” and to “keep secret all matters . . . secretly treated of” in Cabinet: see C. Forcese and A. Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd ed. 2011), at p. 352. Provincial and territorial ministers swear a similar oath as executive counsellors.

[96] Ministers enjoy freedom to express their views in Cabinet deliberations, but are expected to publicly defend Cabinet’s decision, even where it differs from their views: see A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at pp. 106‑7; d’Ombrain, at p. 335. The confidentiality of Cabinet deliberations helps ensure that they are candid and frank and that what are often difficult decisions and hard‑won compromises can be reached without undue external interference: see Forcese and Freeman, at p. 352; d’Ombrain, at p. 335. If Cabinet deliberations were made public, ministers could be criticized for publicly defending a policy inconsistent with their private views, which would risk distracting ministers and undermining public confidence in government.

[97] Grounded in constitutional convention as much as in practical considerations, this confidentiality applies whether those deliberations take place in formal meetings of the Queen’s Privy Council for Canada,[6] or a province or territory’s Executive Council, or in meetings of Cabinet or of committees composed of ministers, such as Treasury Board. The confidentiality extends not only to records of Cabinet deliberations, but also to documents that reflect on the content of those deliberations: Babcock, at para. 18.

[98] The common law protects the confidentiality of Cabinet deliberations through the doctrine of public interest immunity: Babcock, at para. 60. Public interest immunity forms part of federal common law and the common law of each province and territory: see Babcock, at paras. 19, 23 and 26. As with any common law rule, Parliament or a legislature may limit or do away with public interest immunity, provided it clearly expresses its intention to do so: Quebec (Commission des droits de la personne) v. Attorney General of Canada, 1982 CanLII 161 (SCC), [1982] 1 S.C.R. 215, at p. 228; Babcock, at para. 20; see, more generally, R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21.[7]

[99] In Smallwood v. Sparling, 1982 CanLII 215 (SCC), [1982] 2 S.C.R. 686, and in Carey, this Court rejected absolute Crown privilege and instead recognized a qualified public interest immunity. Public interest immunity prevents the disclosure of a document where the court is satisfied that the public interest in keeping the document confidential outweighs the public interest in its disclosure: see Carey, at pp. 653‑54 and 670; Babcock, at para. 19; see also Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at p. 97.[8]

[100] Although this Court rejected claims of absolute Crown privilege in Smallwood and Carey, it did not “accord the individual an automatic right to discovery of sensitive and confidential documents held by the state”: Michaud v. Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 S.C.R. 3, at para. 54. Smallwood and Carey thus require a careful balancing of the competing public interests in confidentiality and disclosure: see Babcock, at para. 19; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 35. These competing public interests must be weighed with reference to a specific document in the context of a particular proceeding.

[101] In Carey, at pp. 670‑73, this Court described the main factors relevant to balancing the public interests in confidentiality and disclosure of documents concerning public decision making, including at the Cabinet level:
(1) the level of the “decision‑making process”;

(2) the “nature of the policy concerned”;

(3) the “particular contents of the documents”;

(4) the timing of disclosure;

(5) the “importance of producing the documents in the interests of the administration of justice”; and

(6) whether the party seeking the production of the documents “alleges unconscionable behaviour on the part of the government”.
[102] Although public interest immunity may be raised by any party or by the reviewing court itself, the government has the burden of establishing that a document should not be disclosed because of public interest immunity: Carey, at pp. 653 and 678. The government should put in a detailed affidavit to support its claim of public interest immunity: pp. 653‑54.

[103] As a general rule, when it is clear to the reviewing court, based on a government’s submissions, that public interest immunity applies to a document, it need not inspect the document: Carey, at pp. 671 and 681. If, however, the court has doubts about whether public interest immunity applies, the court should inspect the document in private to resolve its doubts: pp. 674 and 681; see also Somerville v. Scottish Ministers, [2007] UKHL 44, [2007] 1 W.L.R. 2734, at paras. 156 and 204; Al Rawi v. Security Service, [2011] UKSC 34, [2012] 1 A.C. 531, at para. 145. Indeed, even if the court is persuaded that public interest immunity does not apply, the court should nevertheless inspect the document in private to ensure that it does not inadvertently order the disclosure of a document which should in fact remain confidential: see Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 971. If, having inspected the document, the court concludes that the contents, or any part of the contents, are not protected by public interest immunity, the court can order production accordingly.
The case continues on the specifics of a Bodner review (judicial review regarding judicial salaries) at paras. 104-120.

. R v Cook

In R v Cook (Ont CA, 2014) the Court of Appeal took the oppourtunity to make the following salutory comments on the nature of 'public interest' privilege, which - if applicable - rendered some evidence inadmissible:
[19] I similarly conclude that public interest privilege does not apply. Public interest privilege involves a claim by a government or an official that certain information should be kept secret. Typical situations involve the need to keep police investigative techniques confidential or the protection and safety of individuals. The Crown has the burden of establishing the need to keep the identity of the author secret. The Crown attempted to satisfy this burden by alleging that the author’s mental health issues, fear of police and fear of retribution engage public interest privilege. However, there is no objective evidence underlying the author’s fears. On the record before us, the Crown’s burden has not been met.


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