Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. The SCC is releasing its decision in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) on Friday, February 2, 2024. At issue is whether the public is entitled to access the mandate letters provided to Cabinet ministers by the Premier of Ontario following the formation of the new government.
  2. Last week the SCC released its decision in R. v. Brunelle, 2024 SCC 3. The Court dismissed the appeal and confirmed that 31 persons who were granted of stay of proceedings must be given a new trial. The trial judge erred by only looking at a small group of the accused and by not determining whether each accused person’s right under section 10(b) of the Charter had been infringed.
  3. Brunelle was the first decision of the new season and 94% correctly predicted the outcome. Off to a good start!

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Case to Predict: Cabinet Secrecy Over Mandate Letters

Appeal by leave from Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74

SCC factums & webcast of hearing

What Happened?

Background: A CBC journalist made an application under the Freedom of Information and Protection of Privacy Act for disclosure of the mandate letters addressed from the Premier of Ontario to each minister setting out the Premier’s policy priorities. The Cabinet Office opposed the disclosure on the basis of s. 12(1) of the Act, the introductory language of which provides that a government head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees.

Administrative Challenge: The Information and Privacy Commissioner of Ontario ordered disclosure of the mandate letters to the CBC. He determined that a record not listed at subparagraphs (a) to (f) will qualify under the opening words of s. 12(1) if the context or other information would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting. The words do not encompass the outcome of the deliberative process, such as policy choices. The Commissioner found that the Cabinet Office must provide sufficient evidence to establish a linkage between the content of the record and the actual substance of Cabinet deliberations and concluded that neither the content and context of the letters nor the evidence and representations of the Cabinet Office met the test under section 12(1).

Appeals: The Divisional Court dismissed the appellant’s application for judicial review, and the Court of Appeal dismissed the appeal. Justice Lauwers in dissent wrote: “The purpose of the exemption is to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively, one that is consistent with the established conventions and traditions of Cabinet government. I conclude that the Commissioner’s interpretation was unreasonable because the effect of his order, contrary to the legislature’s intention, was to breach, erode, or undermine those traditions.”

What Was Argued at the SCC?

Appellants: Ontario argued that the mandate letters contain policy priorities and will be discussed further in Cabinet. They were also distributed to each Cabinet minister at a Cabinet meeting. Their disclosure would reveal the substance of deliberations and deliberative process of the Premier and Cabinet.

Respondent: The IPC argued that to qualify for an exemption to disclosure, it must be shown that disclosure of the records would reveal the substance of Cabinet deliberations or would permit the drawing of accurate inferences. The Cabinet Office did not provide sufficient evidence linking the content of the Letters with the substance of deliberations at Cabinet’s initial or future meetings. CBC, the other respondent, also emphasized that this is a sufficiency of evidence case.

What Else Should You Know Before Making a Prediction?

The hearing started out on an interesting note with the judges concerned about the standard of review even though all the parties were in agreement it should be reasonableness. That to me hints that the Court is looking at ways of getting around deference to the IPC’s findings regarding evidence. Justice Rowe’s first comment was that the IPC’s reasons showed a “medieval scholasticism” and was the antithesis of a purposive approach. Justices Rowe and Karakatsanis both have extensive government-related experience and would be very familiar with the almost absolute nature of Cabinet secrecy. I’m leaning towards appeal allowed but with a split decision.

Previous Predictions: Stay of Proceedings for Large Groups

On January 26, 2024, the SCC released its decision in R. v. Brunelle, 2024 SCC 3.

Held (7:0): Appeal allowed. New trial for all 31 accused that were granted a stay of proceedings.

Key Points:

  • All of the accused had standing to apply for a stay of proceedings under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness.
  • However, the first instance judge erred in failing to determine whether each accused’s right under s. 10(b) of the Charter had been infringed.
  • Two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”). Here, a determination had to be made in order to decide whether the allegation of abuse of process in the residual category was well founded.
  • The first instance judge also erred in entering a stay of proceedings for all of the accused without first considering whether there were less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that he thought he had identified.

Predictions: 94% of players correctly predicted this one.

-Tom Slade

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