The British North America Act of 1867 said Canada would have “a constitution similar in principle to that of the United Kingdom,” and cabinet confidentiality is part of the bedrock upon which the unwritten British Constitution and therefore Canada’s Parliamentary government rests.
This may seem like pretty esoteric stuff, but since in 1982 the BNA Act became the Constitution Act, 1867, and hence a key component of Canada’s modern written constitution, it’s no small thing when a judge rules that cabinet confidentiality is not in the public interest and therefore can be tossed aside.
Yet that is essentially what happened yesterday when a Calgary judge ruled that the public interest in disclosing answers about COVID-19 public health restrictions by Chief Medical Officer of Health Deena Hinshaw to the provincial cabinet “outweighs the public interest in keeping the evidence confidential.”
So this is a serious constitutional matter, despite the fact the case that led to this ruling is part of an effort by a group of churches and businesses that argue Alberta’s public health measures should be declared unconstitutional, the effect of which would be in effect to make suppression of infectious disease in the age of online misinformation all but impossible.
Court of Queen’s Bench Justice Barbara Romaine was certainly right that it would be in the public interest for Albertans to know what advice Dr. Hinshaw gave to Premier Jason Kenney and his cabinet, even though common sense suggests it was the opposite of what the plaintiffs claim.
That is to say, it is far more likely that the premier and cabinet imposed less severe restrictions to prevent the spread of COVID-19 than Dr. Hinshaw recommended, rather than more severe restrictions, as the plaintiffs hope to show.
To think about what has suddenly become an important case – despite the frivolous foundation of the plaintiffs’ views on how Canadian governments should have responded to the pandemic – we need to pay attention to the traditional arguments for the constitutional convention that cabinet discussions must always be secret and confidential.
This is because Parliamentary government is cabinet government, and the cabinet must work collectively to develop policy. So, by custom – cynical or practical, you be the judge – a decision made by cabinet must be made by all the members of cabinet, and a minister who is not prepared to defend a collective decision must resign.
So if cabinet discussions were not confidential, goes the logic, ministers couldn’t defend their collective decision in public if they were known to have spoken against it in private.
This, by the way, is why the oath sworn by all Alberta cabinet ministers says, “you will keep close and secret all such matters as shall be treated, debated and resolved in Executive Council without publishing or disclosing the same, or any part thereof, by word, writing, or any otherwise, to any person out of the same council, but to such only as be of the council.”
Now, Justice Romaine was obviously aware of this when she made her ruling, as yesterday’s CBC story summarized it, because she noted that the questions she proposed asking Dr. Hinshaw and the answers given to them “do not reveal disagreements among ministers, the views of individual ministers or the specifics of her recommendations.”
Nevertheless, it is very hard to argue that the judge’s questions for Dr. Hinshaw – including, “Did cabinet ever direct you to impose more severe restrictions on particular groups such as churches, gyms, schools and small businesses than you had recommended to them?” – would not seriously undermine the constitutional principal of cabinet secrecy.
Still, as law professor Shaun Fluker wrote in the University of Calgary’s legal blog back in 2020, “once it enters the realm of law, cabinet confidence does not provide absolute immunity from disclosure.”
But the logical implication of Justice Romaine’s ruling is that cabinet confidentiality is not of much utility in the 21st Century, an age of instant Internet communication and pervasive social media whether we like it or not.
Does it make any sense, anyway, to pretend that there are no differences in cabinet meetings, when human nature means there are, always were, and always will be?
Moreover, it is a fact that Canadian governments have already tossed the related parliamentary convention of ministerial responsibility – that is to say, that the minister who heads any government department must be responsible for the conduct of every single civil servant employed by that department, and so in serious cases of wrongdoing must resign.
Since Canadian governments of all political stripes now ignore this unwritten but nevertheless commonly understood constitutional rule, it certainly weakens the argument that the need for that other one, cabinet secrecy, is still essential.
So, dear readers, if you have to pick between the right of the public to full disclosure or the right of cabinets to make collective decisions in secret, which would you choose?
The Alberta government and parliamentarians of more than one party will certainly choose the right of cabinets to decide things in secret.
Count on the government of Alberta, therefore, to appeal this ruling to a higher court if Justice Romaine orders Dr. Hinshaw’s answers to be revealed.
While it may not seem like it, this is probably a more important story than who gets to own Twitter!
I still don’t trust the UCP, as far as I can throw them. Their policies, including their abysmal looking after the Covid-19 pandemic in Alberta, hasn’t been good. There are UCP MLAs who are fueling dissent, and setting bad examples, and this isn’t helping.
Personally, now that ministers refuse to resign in the event of any kind of malfeasance in their respective ministries, then I have no problem with complete and forced disclosure of all records and activities, free of the protection of privilege. If the rascals are truly afraid on being found out, let them be found out and judged. Or, they can resign and walk away.
Back in the day of the so called Falklands Conflict, then UK Foreign Secretary, Lord Carington resigned because of gross ministerial incompetence over continuous miscommunications concerning the intentions of the British government over Argentine claims and actions in regard to the seizing of the Islands, which they regard (Rightfully) as an Argentine possession. Carington knew he blew it and broke the trust in his ministry.
BTW, that’s how it’s supposed to be done. If the minister acts like an idiot, they need to head for the exit or be frog-marched out.
Who would be left in the UCP cabinet if they resigned because of malfeasance or incompetence?
The idea of ministerial responsibility only works if the ministers, as a group, are generally competent. It works even better if the competent ministers have either a conscience or a sense of fairness. Lord Carington had, at the least, a sense of fairness. (I’m not so sure he was incompetent, though. The Thatcher government, like its predecessors, simply didn’t care about some minor colonial footnote to the problems facing no-longer-Great Britain after WW2. My opinion is based on “The Battle for the Falklands,” Max Hastings and Simon Jenkins, Pan Books 1983.)
The sad state of Oilberduh politics, and Con politics elsewhere, shows that UCP ministers are NOT competent, and they utterly LACK anything like a conscience, a sense of fairness, and maybe even a lick of sense–period.
This court case exposes the juvenile thinking (‘ it’s not my fault’) and civil disrespect (‘you ain’t in charge of me’) on both sides.
So while this is very true – “a minister who is not prepared to defend a collective decision must resign”
– the question is not about disputes amongst cabinet. Of course there were disagreements.
Rather, it is about the authority afforded to civil servants like the CMOH,
their responsibility to operate with integrity,
and
the cabinets’ desire to shirk responsibility for government decisions, because of political fallout.
“Trust us, we weren’t responsible” = an UCP 2023 campaign slogan?
I can see the line the justice is trying to dance around. The questions do not deal with the internal decision-making process of cabinet, but with Hinshaw’s advice to them and whether they followed it. But as you say, every govt in the country would fight to keep advice to cabinet confidential. Good point about ministerial responsibility!
Troyliss, I’d say Justice Romaine’s three questions were more about whether any cabinet decision was intended to damage churches and gyms, deliberately and perhaps maliciously. That’s what the plaintiffs are claiming, and why they’ve chosen to sue the guv’mint. I believe Justice Romaine’s questions were very carefully worded to address the complaints against the government by the plaintiffs.
Your point about whether cabinet followed Hinshaw’s advice is a different question. To my mind, you’re right to raise it. I’d really like to find out how many of Hinshaw’s recommendations were REJECTED by Kenney and his Klowns. That, I believe, is the simplest way to determine who’s really at fault for Oilberduh’s gong-show Covid responses.
The entire court case is about whether the health restrictions were constitutional. All 3 of the questions the judge will ask Dr. Hinshaw are variations of the same thing: did the cabinet push for more restrictions than Dr. Hinshaw recommended.
The questions in my mind are implying the judge’s inclination on her final ruling: as long as the restrictions were put in place by someone with expertise in public health, they fall under the ‘reasonable limitations’ phrase, but if the restrictions were placed by a bunch of politicians with no basis in public health, they may well be unconstitutional.
What, then, does this say about the intelligence of the people who have launched this suit? Surely any competent lawyer would have told them that Dr. Hinshaw’s restrictions during a pandemic would not be unconstitutional. Do they really think that the provincial cabinet choose to impose more restrictions than Dr. Hinshaw recommended? It is one thing for mindless commentators (ahem) to declare something unconstitutional, it is something entirely different for people to use that suggestion as a basis for a lawsuit. If these people thought they were hurt by the restrictions, they are in for a pretty big surprise when their legal bills start to come in, especially if the judge rules they have to pay the government’s costs as well, which I hope she will. The CBC story David linked to made mention of a 206 page affidavit Dr. Hinshaw had to defend while she was being cross-examined; earlier stories talked about the hours she spent on the witness stand. This wasting of her time for a frivolous lawsuit should not come cheap.
“That is to say, it is far more likely that the premier and cabinet imposed less severe restrictions to prevent the spread of COVID-19 than Dr. Hinshaw recommended, rather than more severe restrictions, as the plaintiffs hope to show.”
It is very strange that someone can be intelligent, hardworking and accomplished enough to be a professional lawyer, yet such a clueless, willfully ignorant, delusional rube that they would expect to be able to accomplish absurdities simply because they want to.
To slightly paraphrase the great philosopher Bill Watterson, “how can one person be so smart yet so dumb?”
Disclosure, even partial, is better than “We’re not tellin’! So there!” Every time.
Well written article with an important, thought-provoking question:
“So, dear readers, if you have to pick between the right of the public to full disclosure or the right of cabinets to make collective decisions in secret, which would you choose? ”
Ever notice how, when governments want to spy on citizens, they always claims that those who have nothing to hide have nothing to fear? It’s called the “Nothing to Hide Argument.”
https://en.wikipedia.org/wiki/Nothing_to_hide_argument
I think every time someone with power tries to hide their actions, we ought to throw this argument in their face. Eventually they will be forced to rebut it (the article contains several rebuttals for anyone interested) and then it’s going to get a bit more difficult for them to weaponize it against the powerless, as (I would argue) has been the historical norm.
It’s probably a good thing that the Justice Centre for Constitutional Freedoms is a bit distracted right now, getting ready to fête Tamara Lich for her George Jonas Freedom Award.
Get your tickets to the award ceremony now. Rex Murphy is the prolix and sesquipedalian keynote speaker. Experience a shambolic oratory fantasy fest, moored in delusions that can be purchased only by copious amounts of right-wing libertarian dark money. An event not to be missed.
https://www.jccf.ca/george-jonas-freedom-award/
Application to Trudeau and the Emergencies Act inquiry?
Firstly, whattaboutism noted.
Secondly, if it can be convincingly argued that the federal government keeping secrets in this matter is against the public interest, I, for one, would completely support making them public. Sauce for goose=sauce for gander.
The issue is significant and important.
One the one hand, if there is no cabinet secrecy, then there might not be any honest debate and contrary opinions expressed within meetings. Civil servants might be reluctant to offer advice that is in the public interest, but contrary to public opinion or the prevailing views of the government, if they know that the advice is not going to be kept confidential. Cabinet is already in danger of falling into a state of dumbed-down group think, if they are not already there, with no meaningful debate taking place. Having no secrecy would just amplify that state and make it more likely that the cabinet will become more populist in its thinking to appeal to the lowest common dominator.
On the other hand, the CMOH recommendations to the government are in the public interest. On balance, I am tempted to side with the need for disclosure. Some additional reasons that might be brought to bear here are these:
1. The government could have established an advisory committee, like Ontario did, to make recommendations to the government. That provides transparency. If the government implements policies that differ from those recommendations, the electorate can see this and there is a measure of accountability that is currently lacking. It is the government that chose to make the CMOH recommendations a matter of cabinet secrecy. They should not have done this in the first place.
2. We have seen the UCP government throw the CMOH under the bus on numerous occasions to blame her for unpopular decisions or poor outcomes. But, we don’t know the recommendations that the CMOH made to cabinet, so we don’t know if the poor decisions that the government took are in fact the result of either following or rejecting those recommendations. This is something I think we should know, especially given the fact that the government has shown itself to be untrustworthy and dishonest on many occasions, so it is hard to believe anything they assert.
That said, we certainly do not want to be in the situation that exists today in the US, where a single judge can overturn important health mandates for the entire country based on some dubious legal reasoning and an ideological agenda. I refer of course to Judge Mizzelle in Florida who voided the CDC mask mandate on public transit for the entire country. This AB court judgement is not as serious as the judicial overreach in the US on the part of the Florida judge, but it is a little disturbing, notwithstanding. A tough question, for sure.
Phlogiston: Personally, I think the argument that civil servants might withhold crucial information is overblown, and something of a red herring. Civil servants by nature are (over)cautious. I speak from experience. I have been one. No experienced civil servant is likely to ever say anything to cabinet that would result in trouble down the line – with or without cabinet confidentiality – no matter how controversial the topic. So the risk of this happening in a way that would result in negative outcomes, in my opinion, is extremely small. I suspect that this tradition springs from the desire of politicians to cover their collective posteriors. That said, it would be a major change, and should therefore be done thoughtfully. DJC
Real solid point-counterpoint here. I’ve been working hard lately to remember that “the power to do the things I like is also the power to do the things I don’t like.” Very important to consider the various uses that this power could feasibly be put to.
More and more, I’m reaching the conclusion that “being a reasonable adult” is not the same thing as “being an informed voter.” I don’t think that a high school education is even close to adequate to that task. I believe that this is by design – as my Dad always says, “The world is run by the people who show up.” Fewer people showing up = more power in fewer hands. It’s gone well beyond, “what we don’t know keeps the contract alive and moving,” and into “people can’t meddle in affairs beyond their ken, so let’s dumb their kids down as much as we can.” I believe that our education system (much like all of our other institutions) is structured to serve the needs of the property owning class (ie: employers) and not the needs of students, parents or society.
You’ve just also described the reverse side of the coin—that people who just don’t show up leave the lunatics to take over the asylum—uh— I mean, take over the excuses for conservative parties in Greater Anglo-Saxony.
DJC, point well taken. As I advance toward the sere and yellow leaf, I must have retained some portion of my youthful, naive idealism. I will have to defer to your experience. Although I too worked briefly as a civil servant many years ago, my station was so lowly and anonymous that no one would have solicited me for any advice on any matter, large or small. Anyway, it is, I agree, hard to avoid the conclusion that cabinet confidentiality largely serves as a CYA strategy.
I thought that Cabinet, as a whole, must be able to accept or reject the advice that is proffered to them, regardless of its merit as good or bad advice, and that cabinet confidentiality is central to that principle. Following on this, I would have thought that the CMOH would have offered the best public health guidance given the available data. But, taking your point to its logical conclusion, the CMOH, out of an abundance of caution for any negative consequences, may have been captured by the political leadership to give the advice that they wanted to hear, not necessarily that which is in the best interests of the public health for the province.
I discovered an interesting thread that brings up several cogent points about why the decision will be overturned and what alternatives are available to get information that is in the public interest.
https://threadreaderapp.com/thread/1519408285392195586.html
One of the points the author (Timothy Huyer) makes is that by following Cabinet’s direction, the CMOH may have unduly fettered her own authority and discretion because, according to section 29 of the Public Health Act, “the CMOH, not Cabinet (technically, the Lieutenant Governor in Council), issues the Orders. This would imply that the decisions on what measures should be made are her decisions alone.”
Mr. Huyer then further asserts that, while the advice that the CMOH provided to the Cabinet is confidential, the data she used to reach the conclusions contained in the advice would not be subject to confidentiality.
In any event, the government and the CMOH have not been exactly forthcoming about providing all the data available to them to justify their decisions. I know I am not alone in thinking these data are important and should have been made available all along to provide both transparency and accountability.
In this case I would go with full disclosure, simply because of the nefarious nature where we cannot trust the UCP at any level. At least the judge has some ethics, rather than the ministers. The later decisions clearly put Dr. Hinshaw on the spot and it was obvious she did not agree with the decisions but could not say anything.
The salutary corollary of cabinet secrecy is that, if the executive is remiss in its duties and trusts, the judgement and verdict falls upon the lot, without exception. It’s as fair as the blade that cuts both ways—that is, without troublesome controversy whether the cutting itself is just and fair.
Cabinet confidentiality relates to the adage that, as Benjamin Franklin commented, “We must all hang together, or, most assuredly, we shall all hang separately.” The key word is “all,” which, if it were held to, would result in the same completeness —but without the trouble of sorting accusation and counter accusation of individual cabinet members as either coordinated or competing defendants. The trouble there, of course, would be the likelihood that more serious matters of national security not necessarily germane to the general charge might be coincidentally made public at trial—that is, a defendant might hold the nation’s safety ransom for cher acquittal.
It would be a sordid thing to see, indeed, if a cabinet sought immunity to public opprobrium by, say, sacrificing one of their one that the remainder may get off scot free. Anyway, while it might provide technical succour —at least theoretically—there’s always an angry electorate to contend with.
But I suppose unemployment is better than hanging (and, really, how many former cabinet ministers are left destitute when turfed from public service? Are they not valued by corporate boards precisely for the detailed wisdom they might have been privy to whilst in the public’s trust?)
But dodging the mob’s pikes and torches might be the judge’s purpose in this case, mostly because it’s easier than making public pleas through a hail of eggs and tomatoes. Way easier. The mootness of the complaint itself rather suggests that Justice Romaine was more concerned about something else. She could have dismissed the matter forthwith on at least this ground of cabinet confidentiality, but seems to have allowed the vision, if not the tantalizing possibility that Celto-Nazi-tatted goons might buffalo-head-butt into the sanctity of that sage executive chamber like a Michigan legislature or the Capitol of the most powerful nation in history.
If it ain’t a steam-whistle dodge, then it’s likely something else— and of course it won’t be the Justice who’s called to publicly explain her decision because the proper way is to boot it upstairs where whatever decision is made—even no decision at all, as appellate courts are allowed—remains safely remote from her.
In short, she could have easily dismissed the matter of constitutionality on unassailable constitutional ground, namely that whatever rights the plaintiffs claim were offended by cabinet are, in any case, constitutionally limited (re: the first sentence of the Charter of Rights and Freedoms)—but she didn’t.
A whistling dodge is one thing, a dog-whistle another, and a can of worms quite another. The lady’s decision looks ripe for overturning—‘but only her hairdresser will know for sure.’ Now THAT’s confidentiality.
Case dismissed.
An even more interesting (to me at least) aspect of this issue was co-incidentally raised by Don Braid in his Calgary Herald column today.
With Royal visits planned for Canada this summer, Braid very rightly pointed out the absurdity of cabinet ministers’ oaths of secrecy — and loyalty, that have to be made not to the people of Alberta or Canada, but to the queen and the “majesty” she emanates. The oath that Alberta ministers have to make, are the most craven in Canada to the queen.
I’d love to see a blog from you on that!
One of the principles of governance is that all members of a governing board — which is, essentially, what a Cabinet is in our Westminster system — support decisions made collectively by the board, once they have been made. That means that they don’t go out and publicly dissent from decisions made by the board; dissent, when it happens, is allowed while a decision is being debated and discussed, nor after it’s voted on. If a dissenter can’t live with a decision made by the board, they are free to resign from it. (As an aside, the Union that employs our host in his day job has just such a policy of Board support of decisions).
Now, we often see this principle violated by school boards and municipal councils, but not in provincial or federal Cabinets, nor in corporate and not-for-profit boards that subscribe to this model.
That said, does Cabinet solidarity necessitate Cabinet secrecy? Upon reflection, I don’t think it does. I think this is yet another hoary old tradition that needs to be jettisoned in the interests of transparency. I think evidence of healthy, robust debate around a Cabinet table is good for democracy: it would demonstrate that, despite the ranting of certain federal Conservative politicians, our Prime Minister is not at all a “dictator”.
Sure all Ministers must support Government policy, once it is decided, or step down. But that doesn’t mean they can’t disagree before it is decided.