Cabinet’s black hole

Canada’s laws protecting cabinet secrets are by far the most severe of the Westminster-style governments with whom we are often compared, that is, Australia, New Zealand and the United Kingdom. Even the provinces are more open about cabinet confidences.

A recently published book examines how this legal cloak came to be, and why it is almost certainly unconstitutional.

The central paradox is that these secrecy provisions were the deliberate choice of one man, Pierre Trudeau, who at the same time had championed the Access to Information Act and the Constitution itself.

Yan Campagnolo, associate professor of law at the University of Ottawa, lays out the story in Behind Closed Doors: The Law and Politics of Cabinet Secrecy (UBC Press, 2021), just out in paperback.

Pierre Trudeau’s government introduced Bill C-43 in 1980, which contained the prototype of the current Access to Information Act. Among other things, the bill protected so-called cabinet confidences from disclosure, partly from the argument that cabinet ministers needed such assurance to speak with candor. But the protection was not absolute: a Federal Court judge and the information commissioner of Canada, for example, could inspect documents to ensure a government claim of cabinet confidence was genuine.

Later, in 1981, Trudeau testified before the McDonald Commission into law-breaking by the RCMP Security Service. The prime minister was confronted with excerpts of cabinet minutes that he claimed were in error, not vetted by him and which attributed to him comments made by another minister. He was livid.

“This just proves I was right in saying: don’t circulate these God-dammed minutes everywhere,” Campagnolo quotes Trudeau as saying. “… what the hell are they doing in the files of the RCMP?” That same year, two court cases in Alberta and British Columbia claimed right of access to cabinet confidences, further annoying Trudeau. “Either we put nothing in writing and we destroy all the minutes which have been accumulated … or we prevent the courts from having access to them,” he declared.

Against the wishes of Francis Fox, the communications minister responsible for Bill C-43, Trudeau ordered the proposed legislation tightened to give cabinet confidences near-absolute protection for 20 years. No precise definition of these confidences was provided. So the law that was passed in 1982 swept up a broad range of purported cabinet records, and prevented the courts and information commissioner from independently reviewing the material.

The only crack in the secrecy fortress was a provision to release factual background papers presented to cabinet, typically after four years. But even this shaft of light was cut off by Trudeau’s 1984 decision to stop producing background papers. (See my blog for more on this side saga.)

Campagnolo argues that cabinet secrecy can be self-serving, and violates principles of justice meant to ensure judges, not politicians, control legal processes, including deciding what evidence may be introduced in court. He calls the cabinet secrecy provision a “black hole.”

Accepting the need to protect accounts of ministers’ discussions around the cabinet table, Campagnolo says these “core secrets” must nevertheless be distinguished from other cabinet material that does not reveal closed-door debates. For example, Treasury Board letters of decision should be made available in the same way as Orders-in-Council, which are routinely published soon after a decision is made. Right now, “non-core” secrets are locked away for 20 years even though they do not reveal information about internal deliberations and are often merely factual.

Campagnolo concludes his book with six well-argued recommendations for tearing down absolute secrecy surrounding cabinet confidences. They include restoring the ability of the courts and the information commissioner to independently examine secrecy claims, just as the original version of Bill C-43 proposed. But he’s highly doubtful about seeing changes implemented soon.

“[W]hy would the government modify a statutory regime that gives it complete control over the disclosure of its political secrets?” he writes in conclusion, looking instead to the courts for help. “A judicial declaration of unconstitutionality would open the way for Parliament to modernize the statutory regime,” Campagnolo says, apparently inviting such a challenge.

Critics of the Access to Information Act have complained for years about the black hole that was created to keep cabinet confidences secret. Campagnolo, who once worked for the Privy Council Office, is a welcome addition, someone with a sharp legal mind, reasoned solutions and a clear sense of the public good.

June 29, 2022