What is cabinet confidentiality? How does it restrict what a minister of the Crown can reveal in public discourse? How can a court, tribunal or parliamentary committee compel disclosure, and how can that process be blocked?
Cabinet confidentiality is a feature of Canadian constitutional law derived from Part III of the Constitution Act, 1867, in which Executive Power was modeled after the government of the United Kingdom and inherited from the U.K. Crown. U.K. government by cabinet is based on collective responsibility. All ministers, including the prime minister, are responsible for cabinet decisions and the legislative agenda tabled in parliament. Every minister of the Crown takes an oath to respect the confidentiality of cabinet deliberations. The rationale is that this will foster full and frank deliberation of issues in the same way doctor-patient confidentiality or lawyer-client privilege encourages sick people to seek treatment and people with legal problems to seek legal advice. Every cabinet minister is required to honour this confidentiality as a matter of trust. The only way for a cabinet minister to dissent publicly from cabinet decisions on points of principle is to resign from office and return to the back benches.
Confidential information can and is regularly opened up through the power of the summons. Courts and tribunals do this all the time in personal injury and commercial actions. Doctors and accountants, otherwise bound to hold their patients’ and clients’ secrets safe, can be ordered to speak about them on pain of contempt. The party whose secrets are to be divulged bears the onus of objecting to disclosure and explaining why a clinical note or a tax return should remain confidential. Apart from matters protected by lawyer-client privilege, the court or tribunal will decide whether to compel an answer or production of a document based on a balancing test known as the Wigmore Criteria. A parliamentary committee also possesses a constitutional summoning power under the legislative powers inherited from the U.K parliament, pursuant to Part IV of the Constitution Act, 1867.
If a minister of the Crown (or former minister) is asked a question or production of a document, he or she is obliged to object. At that point, s. 39 of the Canada Evidence Act takes over the process. (A similar provision under s. 70 of the Privacy Act to prevent cabinet confidences from being compelled through freedom-of-information requests.) If the summoned witness is a minister at the time of the hearing, the minister must invoke the privilege by obtaining a certificate from the Clerk of the Privy Council (the civil servant serving the cabinet) declaring information to be confidential. The procedure is slightly different in the case of a former minister, because he or she would have no right to object. However, the summoning body should notify the Privy Council office to determine whether privilege will be invoked.
If privilege is not invoked in accordance with this certification process, then the witness is free to testify and may be compelled to do so under the subopoena power. Thus, the confidentiality prohibits the minister or former minister from voluntary disclosure, but it must be certified in order to protect the information from compelled disclosure.
Waiving the cabinet privilege is possible only before it is certified, as a means of freeing the minister or former minister to speak. The decision to certify is subject to very narrow judicial review. More interestingly, once the privilege is invoked and certified, it cannot be waived as a matter of course. The privilege cannot be used to thwart genuine public inquiry or be waived for a tactical purpose when it suits the government of the day: Babcock v. Canada (Att.-Gen.), at paras. 24-44. Thus, a minister or government invoking the privilege must be mindful of the use of s. 39 in case he, she or it may later want to rely on the information.
Update: watch my panel discussion on CBC News on this topic.