Strengthening the Access to Information Act

3. Cabinet Confidences

In Canada, responsible ministerial government is based on the individual and collective responsibility of the members of Cabinet to Parliament. Cabinet is the political forum in which Ministers meet to establish a consensus on the government's general directions and on broad governmental policies that each Minister must individually and publicly defend.

Cabinet confidences are therefore, in the broadest sense, the political secrets of Ministers individually and collectively, the disclosure of which would make it very difficult for the government to speak in unison before Parliament and the public.

The requirement to protect the confidentiality of Cabinet proceedings is a cornerstone of the Westminster system of government and is protected by convention, common law and legislative provisions. Furthermore, this principle has been widely recognized by the courts. In its 2002 Babcock decision, the Supreme Court of Canada stated that an important reason for protecting Cabinet documents was to avoid the creation of ill-informed public or political criticism. The Court further stated that:

[i]f Cabinet members' statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect…

The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly. [1]

The essence of the principle of Cabinet confidentiality is therefore to protect the collective decision-making of Ministers whereby Ministers discuss issues and arrive at decisions.

In his recommendations presented to the Committee last fall, the Information Commissioner proposed to create a mandatory exemption for Cabinet confidences. Heads of government institutions would decide what information in their institutions would fall within the definition of a Cabinet confidence, with a right of review of that information and of those decisions by the Information Commissioner and the courts.

Considerations:

It is possible that the review of sensitive Cabinet confidence information by the Information Commissioner and the courts would expose and undermine the collective decision-making of Ministers and would run contrary to the principles of collective decision-making by Ministers and their accountability for those decisions to Parliament. Collective responsibility is the principle which underlies the solidarity of the Ministry. Disclosure of this information outside the accountability framework to Parliament could lead to the weakening of the ability of the Ministry to function collectively and for Ministers to be held accountable to Parliament. It is for this reason that it may be wise to maintain the exclusion for Cabinet confidences, which is consistent with the current Government's commitment that it would subject the exclusion of Cabinet confidences to review by the Information Commissioner.

Under the current law, the Information Commissioner has no legislative right to review the decisions of the Clerk of the Privy Council as to what information constitutes a Cabinet confidence. An informal practice exists, however, by which the Information Commissioner investigates the decisions to withhold Cabinet confidences from disclosure. To this end, an option would be to legislate a certification and review process in the Access to Information Act that would closely parallel the Canada Evidence Act, whereby the certification of Cabinet confidences can only be challenged where the information for which the privilege was claimed does not on its face fall within the statutory definition of Cabinet confidences, or where it could be shown that the Clerk had improperly exercised the discretion conferred. This regime was upheld in 2002, by the Supreme Court of Canada in Babcock, and more recently in 2005 by the Federal Court of Appeal in the Vennat and Pelletier decisions. [2]

A statutory amendment could be enacted to grant the Information Commissioner a limited right of review of the issuance of certificates by the Clerk of the Privy Council, therefore ensuring the Information Commissioner's review of the Cabinet confidence exclusion.


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