The Globe and Mail (September 11, 2019) is reporting that the Clerk of the Privy Council is refusing to waive cabinet confidence in relation to the SNC-Lavalin matter.
Cabinet confidence is not like solicitor-client privilege. Solicitor-client privilege is a substantive right (Descôteaux v. Mierzwinski,  1 SCR 860) that is designed to protect an individual’s ability to obtain legal advice. Cabinet confidence is intended to protect the candour of ministerial discussions and allow them to fully consider matters but maintain cabinet solidarity when a decision is arrived at. It has two sources of authority:
- A common law doctrine of cabinet confidence; and,
- Statutory authority under the Canada Evidence Act.
There is not much caselaw from Canada on the common law doctrine, however, it is clear from the English courts that the doctrine is not absolute and that the admissibility of evidence is a matter for the courts to decide.
If we are looking at the common law doctrine of cabinet confidence it seems that we are very close to the concept of executive privilege that is used in the United States. Executive privilege in the US is not absolute. As the US Supreme Court found in the Nixon case “The impediment that an absolute, unqualified privileged would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III [of the Constitution]…”
In Carey v Ontario (1986) the Supreme Court of Canada held that the common law doctrine of cabinet confidence was grounded in the need for candour and the fact that disclosure of cabinet deliberations “…would create or fan ill-informed or captious public or political criticism.” [para 49]. But the court also noted that Nixon represented a turning point in matters of executive privilege and that it “… must be weighed against the historic commitment to the rule of law. The integrity of the judicial system and public confidence in it depended on full disclosure of all facts within the framework of the rules of evidence, particularly in criminal matters.” [para 54]
The Court held that “…that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest.” [para 79]. In ordering disclosure, it stated:
84. There is a further matter that militates in favour of disclosure of the documents in the present case. The appellant here alleges unconscionable behaviour on the part of the government. As I see it, it is important that this question be aired not only in the interests of the administration of justice but also for the purpose for which it is sought to withhold the documents, namely, the proper functioning of the executive branch of government. For if there has been harsh or improper conduct in the dealings of the executive with the citizen, it ought to be revealed. The purpose of secrecy in government is to promote its proper functioning, not to facilitate improper conduct by the government. [emphasis added]
The statutory authority for cabinet confidence has been considered by the Canadian Supreme Court in Babcock v Canada (2002). Section 38 of the Canada Evidence Act permits the Clerk of the Privy Council to certify information as confidential. “It does not restrain voluntary disclosure of confidential information.” [para 22]
The certification, pursuant to s. 39 of the Canada Evidence Act, is an absolute protection of the document. However, the Court said that there were a number of requirements for the certification to be valid:
- The certificate must be issued by the Clerk or Minister of the Crown.
- The information must fall within the categories described in s. 39(2). And,
- The certificate must be issued “…must be issued for the bona fide purpose of protecting Cabinet confidences in the broader public interest. The function of the Clerk under the Act is to protect Cabinet confidences, and this alone. It is not to thwart public inquiry nor is it to gain tactical advantage in litigation.” [para 25]
The Court held that there were formal certification obligations that had to be fulfilled. The Clerk or minister must provide a certificate with a description of the information that is sufficiently specific that it was possible to determine that the information fell within the scope of the Act.
We can draw a number of points from Babcock.
- Staff and non-ministers do not decide what is and is not subject to cabinet confidence. They may prudently ask whether the information is subject to a certificate. But there must be a formal certification of some sort. The question for any potential witness is whether they have received a certificate from the Clerk.
- Even where there is a certificate there is a legitimate inquiry into whether the certificate is valid.
The question in the SNC-Lavalin case is exactly what information has been the subject of the certificate in this matter. The matters that are properly subject to s. 39(2) are:
(2) For the purpose of subsection (1), a confidence of the Queen’s Privy Council for Canada includes, without restricting the generality thereof, information contained in
- (a) a memorandum the purpose of which is to present proposals or recommendations to Council;
- (b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
- (c) an agendum of Council or a record recording deliberations or decisions of Council;
- (d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
- (e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
And lastly, I note that subsection 39(4) states that cabinet confidence does not apply in respect of:
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public,
My general thought is that cabinet confidence is far too widely applied within government. In my experience there is a general tendency in government to overclassify documents. This comes from a refusal to look analytically at the principles of cabinet confidence and classification and the documents in question.
Embarrassment is not a ground for confidence or classification. We must always consider the public interest in both policy development and the administration of justice.