Annual Report: 2002-2003

A. JUDICIAL GUIDANCE

1) The Assertion of Cabinet Confidence to Justify Secrecy

The appropriateness of the government's view came before the Supreme Court of Canada in this reporting year in a case involving litigation by a group of Crown lawyers against the government, alleging that lawyers in Vancouver should be paid at the same rate as lawyers in Toronto. In that case, during the pre-court stages, the government had disclosed records to the Vancouver lawyers. However, when the matter reached court, the government issued a certificate, pursuant to section 39 of the Canada Evidence Act, asserting that previously disclosed records were cabinet confidences and could not, thus, be used by the other side or examined by the court. When the Vancouver lawyers objected to the validity of the certificate in these circumstances, the government took its traditional position that the decision to assert cabinet confidence privilege was obligatory and unreviewable by the courts. The Information Commissioner intervened in the case because section 69 of the Access to Information Act parallels section 39 of the Canada Evidence Act. It was the Commissioner's position that governments are under no mandatory legal obligation to assert the cabinet confidence privilege.

In its decision, the Supreme Court of Canada agreed with the Information Commissioner's view and decided that the courts, as well as other bodies with authority to compel the production of records, have authority to review the legality of the assertion of the privilege. The only limit the Supreme Court of Canada accepted was that, in reviewing the government decision to assert the cabinet confidence privilege, the reviewing court or body may not examine the records at issue. The court also decided that there are limits on the authority of government to assert the cabinet confidence privilege.

First, Chief Justice McLachlin, for the court, agreed that "cabinet confidentiality is essential to good government". However, she went on to list other, equally important, principles in our society as being: the right to pursue justice in the courts, the rule of law, accountability of the executive and the principle that official actions must flow from statutory authority clearly granted and properly exercised.

According to the Supreme Court, the mechanism provided by Parliament for the responsible exercise of the power to claim cabinet confidentiality is the certification process set out in section 39 of the Canada Evidence Act. In the court's view, there are four requirements for a valid certification:

". . . the Clerk must answer two questions before certifying information: first, is it a cabinet confidence within the meaning of sections 39(1) and (2); and second, is it information which the government should protect taking into account the competing interests in disclosure and retaining confidentiality? If, and only if, the Clerk or minister answers these two questions positively and certifies the information, do the protections of section 39(1) come into play. More particularly, the provision that 'disclosure of the information shall be refused without examining or hearing of the information by the court, person or body' is only triggered when there is a valid certification". (paragraph 22, Babcock)

"A third requirement arises from the general principle applicable to all government acts, namely, that the power exercised must flow from the statute and 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." (paragraph 25, Babcock)

"A fourth requirement for valid certification flows from the fact that section 39 applies to disclosure of the documents. Where a document has already been disclosed, section 39 no longer applies." (paragraph 26, Babcock)

The court also elaborated on what must be disclosed by the Clerk or minister to demonstrate that the first requirement has been met. In this regard, Chief Justice McLachlin said:

". . . the first element of the Clerk's decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a cabinet confidence and that it falls within the categories of section 39(2) or an analogous category. . .The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author, and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue." (paragraph 28, Babcock)

The Supreme Court, thus, has made it clear that the validity of a section 39 certificate may be challenged on the basis that the four requirements, set out above, were not respected. These four requirements involve matters of application and interpretation of law and matters of exercise of discretion. According to the Supreme Court:

"The party challenging the decision may present evidence of improper motive in the issue of the certificate. . ., or otherwise present evidence to support the claim of improper issuance. . ." (paragraph 39, Babcock)