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Supreme Court rules confidential memo can’t be used in challenge of state of emergency

Court upholds cabinet confidentiality after request to use internal government memo as evidence.
Yukon Supreme Court Chief Justice Suzanne Duncan dismissed an application on May 3 seeking more transparity on the territory’s state of emergency declaration. (Joel Krahn/Yukon News file)

Legal proceedings launched last year by a group of individuals seeking an end to the Yukon’s state of emergency have hit a setback following a May 3 Yukon Supreme Court decision.

Chief Justice Suzanne Duncan dismissed an application from the original seven litigants seeking an order for the Yukon commissioner and cabinet to produce a memorandum they consulted before deciding to extend the state of emergency on June 12, 2020. The decision was made by the commissioner and cabinet, as the legislature was not sitting at the time.

The initial petition was launched last June by a group of seven individuals, six from the Yukon and one from Atlin, British Columbia: Ross Mercer, Trent Andrew Jamieson, Douglas Craig Walker, Allan Patrick Mytrash, Martin Gregory Loos, Jan Erik Martensson and Clayton Robert Thomas.

The petition was filed to challenge the Yukon government’s response to the pandemic. It sought an order declaring that the Civil Emergency Measures Act, under which the government had declared the state of emergency, is “inconsistent with the unwritten constitutional principles of Canada.”

It also called for declarations that measures including border controls, self-isolation requirements, gathering limits and rules for businesses violated various sections of the Charter of Rights and Freedoms.

The latest phase of the legal action is a request that the memorandum be released so it can be used as evidence in the original suit.

Cabinet discussions

Responding to the application, the government told the court they relied on a memorandum to the Executive Council dated June 9, 2020, in making their decision to extend the state of emergency. They objected to producing the memorandum on the basis of public interest immunity, a legal doctrine that authorizes the non-disclosure of information on the basis that the disclosure is against the public interest.

Justice Duncan’s decision states that a determination of the public interest immunity must balance the public interest in preserving cabinet confidentiality and the public interest in administering justice.

The decision states that the memorandum contained confidential advice and a recommendation regarding the emergency extension. It was issued by the Minister of Community Services to the other ministers of the cabinet.

Duncan’s analysis of the lawsuit, presented along with her decision, notes that it is a matter of constitutional convention that cabinet deliberations are confidential in order to allow for free discussion and deliberation without fear of political repercussions. Drawing on a precedent-setting case from Ontario, Duncan’s decision notes that this confidentiality is extended to cabinet documents.

The analysis notes that courts have ruled that cabinet confidentiality is not absolute.

Lawyers responding to the suit on behalf of the government said the court can only strike down an order in council if it was made for an improper or irrelevant purpose. They said that the petitioners must show that there was no evidence for cabinet’s opinion that the pandemic continued to be an emergency in June 2020.

They go on to argue that there was publicly available information supporting cabinet’s opinion to the extent necessary for the court to review its decision.

“It is important to note that the petitioners are not claiming that the government acted unconscionably or in bad faith, or engaged in wrongdoing. If this were the case, the public interest in disclosure might very well outweigh the public interest in cabinet confidentiality, because there might be an argument that the document is being used to shield bad behaviour. This is not relevant here,” the decision reads.

In a statement included with the judgement, Stephen Mills, deputy minister of the executive council office and cabinet secretary, said that disclosure of the document will negatively affect the completeness and candour of advice and submissions to cabinet related to its ongoing decision-making and planning around the COVID-19 pandemic.

The petitioners say the argument presented in Mills’ affidavit is not sufficient.

Pandemic is ongoing

Duncan writes that the high level of government decision-making and the severity of the ongoing COVID-19 pandemic at the time of her decision are also factors in keeping the memorandum confidential. If the pandemic were over, Duncan stated the timing of the release might weigh less heavily on her decision.

The decision also notes that the information presented to cabinet in June 2020 may be out of date and its release could create or encourage ill-informed or petty political criticism.

The petitioners argue that access to the memorandum is necessary for the administration of justice in their suit. They argue that the extension of the state of emergency through an order in council was an improper shifting of power from the legislature to the executive. Duncan’s judgement notes that the legislature passed a motion in support of the state of emergency in November 2020 and then voted to extend the state of emergency the following month. Duncan writes that the support from the legislature diminishes the argument that there was an improper shift of power.

The judgement states that the petitioners will be able to argue that the commissioner and cabinet’s decision was egregious without access to the confidential memo. Duncan goes on to write that significant public information on the state of the pandemic in June 2020 is out there for them to make arguments about the extension of the state of emergency’s inconsistency with statute or unwritten constitutional principles or to argue cabinet’s possible failure to justify the decision.

Duncan wrote that she did not feel the need to view the memorandum herself and that it is clear in her view that public interest immunity applies for reasons which have much more to do with the context rather than the content of the document itself.

Contact Jim Elliot at

Jim Elliot

About the Author: Jim Elliot

I’m a B.C. transplant here in Whitehorse at The News telling stories about the Yukon's people, environment, and culture.
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