Rethinking Cabinet Secrecy
Journal of Parliamentary and Political Law, Vol. 13, No. 3, 2020
24 Pages Posted: 14 Dec 2020 Last revised: 15 Dec 2020
Date Written: March 12, 2020
This article describes the main shortcomings of the statutory framework regulating Cabinet secrecy in Canada and proposes solutions to address them. The first shortcoming is the indeterminacy of the term “Cabinet confidence” pursuant to sections 39 of the Canada Evidence Act and 69 of the Access to Information Act. Consequently, the executive has broad discretion to delineate the scope of Cabinet immunity. The second shortcoming stems from the absence of meaningful oversight and review mechanisms to prevent and correct possible abuses of this immunity by the executive. Based on the rule of law principle and an analysis of best practices in similar jurisdictions, the author makes recommendations to more clearly circumscribe the scope of Cabinet immunity and to ensure that claims of immunity are subject to meaningful review by an independent and impartial body. To that end, he proposes a narrower immunity, based on a criterion of injury, that could be justified only following an in-depth examination of the public interest. In addition, the author underscores the importance of excluding from the scope of the immunity any factual and contextual information underpinning government decisions that have been made public. Finally, he recommends that judges and the Information Commissioner of Canada be granted the power to examine Cabinet confidences when there is a dispute concerning the validity of a claim of immunity, and that judges be granted the additional power to compel production of those confidences when it is in the public interest.
Keywords: Cabinet secrecy, Cabinet immunity, Cabinet confidence, law reform, section 39 of the Canada Evidence Act, section 69 of the Access to Information Act
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