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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD August 14, 2002

Lifting the veil on cabinet secrecy


While government information is increasingly available to the public, cabinet discussions and documents continue to remain off-limits. Considering their oath to maintain the secrecy of cabinet deliberations don't count on too many retired cabinet ministers spilling the goods. As for our courts, they too are of little help. Despite numerous efforts by private citizens to gain access to cabinet confidences, only in very specific situations have our judges agreed. This was confirmed just last month when the Supreme Court ruled in a 9 - 0 decision that the government's right to keep the lid on cabinet documents was not unconstitutional.

Ironically, the issue was raised in a lawsuit against the government of Canada over wages by 42 staff lawyers working out the federal Department of Justice office in Vancouver. They had sued the federal Crown for breach of contract and breach of fiduciary duty on grounds that they were being paid an average of $14,000 less than their counterparts in Toronto for the past decade. The government's rationale was that it was the only way to attract and maintain their Toronto legal staff considering the higher wages in the region's private sector.

Beyond jurisdiction

In their effort to gain access to a series of government documents, the Vancouver lawyers challenged the statutory right of the Clerk of the Privy Council to certify them as confidential. They claimed that the right was beyond the jurisdiction of Parliament as it did not leave enough scope for judicial review and therefore violated the rule of law, the independence of the judiciary, and the separation of powers. The court rejected their argument on the grounds that it was still possible for the courts to review cabinet confidentiality under certain circumstances.

So what is the purpose of cabinet confidentiality and what does it apply to? The answers can be found in a series of rarely invoked articles of the Canada Evidence Act, which reflect our heritage of the many British democratic traditions. What is said in the cabinet room is as confidential as what transpires in a jury's deliberation room and for much the same reasons. Better known as the "candor argument", the process of responsible government is said to work best when cabinet members are free to express themselves around the cabinet table without constraints. Were they to worry about their discussions going public, cabinet Ministers like jurors would censure themselves and thereby avoid taking unpopular positions.

In addition to ensuring candor during cabinet discussions the Canada Evidence Act also recognizes the importance of protecting documents and papers prepared for cabinet consideration. The principal argument is the same as with cabinet discussions. Their disclosure would lead to a decrease in frankness if it were known that they could be produced.

Cabinet confientiality rules

The Act sets up the mechanism on how cabinet confidentiality is claimed before our courts. Once the information has been validly certified in writing as a "confidence of the Queen's Privy Council for Canada "by either the Clerk of the Privy Council or Minister, the Act stipulates that every "court, person or body with jurisdiction" must refuse disclosure.

Why the Clerk of the Privy Council? Because of his extremely important role within the cabinet and government. As secretary to the cabinet, Deputy Minister to the Prime Minister and Head of the Public Service of Canada, he is the most senior nonpolitical official in the Government of Canada.

As to what information falls within the statutory definition of "a confidence of the Queen's Privy Council for Canada ", the non-exhaustive list in the Canada Evidence Act refers to specific classifications of discussion papers, memorandums, records, draft legislation etc. However, documents that have been in existence for more than 20 years are excluded from the certification process as well as all discussion papers when " four years have passed since the decisions were made ". Documents that have already been made public are also excluded.

While certification is sufficient to prevent our courts from examining or hearing the disputed information, their limited review role should not be underestimated. Any private citizen can successfully challenge a cabinet certification by proving that the information does not fall within the meaning of the law. Although, far from being easy to acquire the proof, it is also possible to attack certification on grounds that the minister or Clerk failed to exercise his or her statutory power in accordance to the law. Proof that the decision was exercised for the wrong motives such as to obstruct a public inquiry or to gain some tactical advantage before the courts is sufficient for a judge to nullify the certification and render an order of disclosure.

Discretionary power

The bottom line is that the certification process places in the hands of every minister and Clerk of the Privy Council an enormous amount of discretionary power to claim secrecy and there is very little our courts can do about it. As there are no legal requirements regarding minimum standards of transparency you can bet that as Canadian citizens we know far less than what we are entitled to. As for the Access to Information Act, it is of little help. The law has remained largely unchanged since Parliament enacted it in 1982 and cabinet records are still excluded from its application.

Ironically, our courts have a much greater say when it comes to forcing the disclosure of information pertaining to national defense or security. Contrary to cabinet confidences judges are entitled to determine whether the public interest in disclosure outweighs the advantages of secrecy.

Regarding the lawsuit involving the staff lawyers in Vancouver, which is still before the court, the Supreme Court ordered the government to release some of the requested documents. Seeing that they had previously been released by the government in a distinct court procedure it was ruled that the government did not have the right to protect them from disclosure.