Annual Report: 2002-2003

In the final days of committee hearings, before the Access to Information Act was put to a final vote in Parliament, the then Liberal Government of Pierre E. Trudeau made two changes to the Access to Information Bill. First, the government withdrew the provision of the Bill which created a reviewable exemption from the right of access for cabinet confidences. Instead, the government included in the Bill a section providing that "this Act does not apply to" cabinet confidences. Second, the government changed the sections of the Act governing the authority of the Information Commissioner and the courts to examine records. These changes removed the authority of the courts and the Information Commissioner to examine cabinet confidences in the course of their reviews of denials of access. The new provisions limited these review bodies to examining only records "to which this Act applies".

At the same time, the government amended the Canada Evidence Act to provide a mechanism by which the government could assert the cabinet confidence privilege before any court or body having the power to compel the production of records. The mechanism set out in the Canada Evidence Act was a certificate issued by a minister of the Crown or the Clerk of the Privy Council which certificate, once issued, would prevent the court or body from examining or compelling production of the information covered by the certificate.

With the passage in 1983 of the Bills containing those changes, the government took the position that it is under an obligation to assert the cabinet confidence privilege in every case where it arose. As well, the government took the position that a decision by a minister, or Clerk of the Privy Council, to assert the cabinet confidence privilege, is unreviewable by any court or by the Information Commissioner. Since 1983, it has been the position of governments that there is no legal choice but to take the word of the asserting official, that withheld information qualifies for the cabinet confidence privilege. It must be acknowledged that some jurisprudence supported the government's broad interpretation of its unrestricted authority and responsibility to assert the cabinet confidence privilege.