Thread by @tim4hire

Having now read the decision of Romaine J. on this issue, I have a few additional points to note.

TL;dr: IMO, there are reversible errors made, and so I would predict that Alberta will appeal and prevail when it does so.

1/

https://twitter.com/CGriwkowsky/status/1519103375656202240

The principle of Cabinet confidences is part of the common law, and like any common law rule, it can be modified or superseded by statute. Romaine J. determined that the Alberta Evidence Act does not modify the substantive common law, but instead only provides the procedure.

2/

In making this conclusion, Romaine J. seems to rely on Alberta conceding that the statute “*likely* does not oust the common law” [emphasis added]. Unfortunately, the context for Alberta’s concession isn’t provided—was this perhaps an off-the-cuff response to a question?

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Notably, the only decision cited on this is of very questionable value in that it predates the leading case law on Cabinet confidences and other public interest privileges. So, this may be a possible grounds of appeal (although not necessarily the strongest one).

4/

This matters. For instance, the Canada Evidence Act entirely displaces the common law rule. If the Clerk of the Privy Council certifies that something is a Cabinet confidence, it cannot be produced, period. Under the common law, the protection isn’t as absolute.

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As Romaine J. decided the common law rule applies, she then proceeded to see if the public interest in keeping the information confidential outweighs the public interest in disclosure. It is here where I think she has made clearly reversible errors.

6/

First, Romaine J. concludes that these three “narrower and more focused questions” are relevant. In particular, she holds that they would go towards a section 1 justification arguments in a Charter challenge. Respectfully, this is incorrect.

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A component of a section 1 analysis is whether or not the impugned measure is “minimally impairing” of the Charter right. In other words, among a range of options that would achieve some valid purpose, the one that least impairs Charter rights should be taken.

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Romaine J. seems to conclude that if Dr Hinshaw had ever recommended less stringent measures than the ones taken, this would be relevant in deciding if the measures taken were minimally impairing. While this may make sense on a first glance, it’s overly simplistic.

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Minimal impairment is weighed against a range of other options that the government reasonably *could* have considered. Whether or not Cabinet considered a specific alternative is irrelevant; what matters is if that alternative would have worked with less impairment of rights

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In any event, it is up to the government to prove justification under a section 1 analysis. The government needs to show that alternatives would not have worked or would not have been less impairing. The claimants aren’t prejudiced if the evidence are Cabinet confidences.

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Romaine J. also held that the questions are okay because they don’t reveal the views of individual ministers or the specifics of any recommendations. However, they would reveal to some extent of Cabinet concurred with Dr Hinshaw’s recommendations. IMO, this would be wrong.

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Cabinet accountability under our Westminster system means Cabinet takes all the blame and all the credit for decisions. To do this, Cabinet must be free to accept or reject advice given to it as it sees fit. Confidentiality is essential to this process.

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Cabinet can and should reject good advice at times. This is especially so when there are multiple public interests at stake and the advice doesn’t encompass all of them. The response to the pandemic is very much such an example.

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Each public health intervention not only had ramifications for reducing transmission, but also affected the economy, the ability of people to do the things they wanted, etc., etc. The list probably includes things I can’t even guess.

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Some of those ramifications could also depend in turn on additional measures (e.g., financial supports), which would be outside the purview of Dr Hinshaw. So, Cabinet’s decisions could be based on complicated factors well beyond what she advised.

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However, if ministers fear that some parts of the advice they received could then be revealed, even in part, they may become more reluctant to engage in the weighing of competing public interests and exercising their best judgment at what best serves the public good.

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So on these points, I feel that, respectfully, Romaine J. erred. I do not agree with her reasoning, and I would expect that Alberta will appeal, and will be able to overturn her decision upon appeal.

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That said, it is curious that the claimants have not pursued alternative arguments that might be based on more sound principles for them prevailing in their challenges. I see two possible arguments that I think could succeed.

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First, s. 29 of the Public Health Act provides that 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.

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This is something @Lorian_H and @UbakaOgbogu have noted before. It is a problem with that Act because the CMOH is given a power without the functional independence to be able to exercise it. But it could be very relevant to the litigation.

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As the Legislature has, by statute, conferred the power to the CMOH, there are legal principles that provide that she must be the ultimate decision maker. By only doing what Cabinet directs, she is unduly fettering her discretion or unlawfully sub-delegating her authority.

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In this context, Dr Hinshaw can (and should) consider Cabinet’s views but must still be able to decide differently. One can then argue that Cabinet decisions, as well as her own analyses and any other information that she relied upon in making the s. 29 orders, are relevant.

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While what Dr Hinshaw provided to Cabinet would technically continue to be confidential, the information she used in making the s. 29 Orders would not, and there would likely be a lot of overlap of that information.

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The other argument is that the Government has already waived Cabinet confidences. On numerous occasions, the Premier and other ministers have stated that the actions taken were what the CMOH recommended. One can say that this revealed the advice, waiving confidentiality.

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Caveat lector: the litigation counsel will have invested many more hours to this than I have. So while I stand by my huge ego, it has been alleged that I may have been wrong at least once in my lifetime.

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The decision, for anyone still awake (so, not @jiminthecage), can be found here. It might even be shorter and easier to follow than this 🧵.

albertacourts.ca/docs/default-s…

/fin