Where a party makes review requests that the government produce a document relating to Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the standard requirements . Only then would the government be required to produce the document for judicial inspection. If the document does, in fact, provide some evidence which tends to show that the government’s response does not comply with the constitutional requirements, the court can then determine whether its production is barred by public interest immunity or another rule of evidence invoked by the government.
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 determination of public interest immunity often requires the reviewing court to examine the document in question.
Accordingly, the court must, looking to the factors to determine whether the public interest in the Cabinet document’s disclosure outweighs the public interest in its remaining confidential. In such a context, at least three Carey factors — the level of decision‑making process to which the document relates, the nature of the policy on which the document bears and the contents of the document — will often weigh in favour of keeping the document confidential.
The Cabinet decision‑making process is the highest level of decision making within the executive.
The contents of a document concerning Cabinet deliberations may well reflect the views of individual ministers of the government and reveal disagreement among ministers. Cabinet documents may also reveal considerations that were put before Cabinet. As a result, their contents will frequently be highly sensitive.
Depending on the contents of the document, the timing may also weigh in favour of keeping the document confidential. A document that simply reveals that Cabinet made a decision to reject a recommendation made by a judicial compensation commission will bear little confidentiality once that decision is publicly announced. By contrast, ministers can rightly expect that a document that weighs several different possible responses to the commission’s recommendations and proposes a particular response will remain confidential for some prolonged time even after the decision is publicly announced.
Because of the strong public interest in Cabinet confidentiality, the disclosure of a Cabinet document undermines that confidentiality and is, at least to some degree, harmful. As recognized, certain Cabinet documents may, owing to their contents, raise additional concerns, as might be the case where they relate to defence or national security or refer to specific points of disagreement among ministers. The government’s failure to identify some specific harm resulting from a confidential Cabinet document’s disclosure does not automatically mean the document must be disclosed. The focus must remain on whether the public interest in the document’s disclosure outweighs the public interest in its remaining confidential.
Given the strong public interest in keeping documents concerning Cabinet deliberations confidential, a strong countervailing public interest will usually be necessary to justify their disclosure. The strength of the public interest in disclosure will often turn on the interests of the administration of justice.
Disclosure of a report is in the public interest because the government knew its response would be subject to review and because the review would focus on matters vital to the administration of justice and to the relationship between two branches of government.
The harshness or impropriety of the government’s conduct would be canvassed in assessing whether the government acted with an improper or colourable purpose. A document that demonstrates unconscionable behaviour on the government’s part would tend to establish its failure to meet its constitutional requirements in a highly probative manner and, for that reason, the public interest in its disclosure would almost certainly outweigh the public interest in its remaining confidential.
d’Ombrain, Nicholas. “Cabinet secrecy” (2004), 47(3) Canadian Public Administration 332.
Forcese, Craig, and Aaron Freeman. The Laws of Government: The Legal Foundations of Canadian Democracy, 2nd ed. Toronto: Irwin Law, 2011.
Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law & Politics, 2nd ed. Oxford: Oxford University Press, 2014.
Lindsay M. Chervinsky. The Cabinet: George Washington and the Creation of an American Institution. Belknap Press-2020
Patrick Weller.Cabinet Government in Australia, 1901-2006: Practice, Principles, Performance.University of New South Wales Press-2007.
Royer, Jean‑Claude, et Catherine Piché. La preuve civile, 5e éd. Montréal: Yvon Blais, 2016.