Annual Report: 2002-2003

C. Thorny Cases (Cabinet Confidences)

The Auditor General, this year, also found herself in a secrecy "Catch-22" caused by the government's overly broad application of the cabinet confidence privilege. During hearings by the Public Accounts Committee into the Auditor General's December 2002 Report on the costs of the Canadian Firearms Program (CFP), a dispute arose between the Auditor General and the Deputy Minister of Justice. The Auditor General informed the Committee that the CFP had been designated by Treasury Board as a "major Crown project"--a designation which should have entailed more rigorous controls. The Deputy Minister of Justice, on the other hand, informed the Public Accounts Committee that he was unaware that the CFP had been so designated. In the face of this difference of view, the Committee asked the Auditor General for additional documentation supporting her view.

It transpired that the records on which the Auditor General based her view were three submissions to Treasury Board by Justice Canada and the three decisions taken by Treasury Board Ministers in response thereto. However, the Auditor General could not provide these records to the Public Accounts Committee because the government asserted that they were cabinet confidences. The Auditor General, on February 26, 2003, wrote to the Public Accounts Committee as follows:

"Points 1 to 3 in the attachment refer to information in submissions to the Treasury Board by the Department of Justice and subsequent decisions of the Treasury Board on the Canadian Firearms Program. It is our understanding that the source documents are considered by the government to be confidences of the Queen's Privy Council. Neither my office nor departments may release these documents. However, I have paraphrased the information in them relating to the issue of whether the Canadian Firearms Program was a major Crown project. Your committee may wish to consider asking the government to release the source documents if it wants to review the exact wording."

The very same issue (was CFP a major Crown project) was the subject of a question of privilege in the House of Commons alleging that the President of Treasury Board had misled the House by asserting that the CFP was not a major Crown project. In her defence, the Minister chose not to disclose the Treasury Board submissions and decisions referred to by the Auditor General. Rather, she asserted that no records could be found confirming that Treasury Board Ministers had designated the CFP as a major Crown project. There being no records available to the Speaker contradicting the minister's assertion, he accepted her version of facts and dismissed the allegation that she had misled the House.

What legitimate governmental or public interest purpose could possibly be served by the government's insistence that the resource requests and approvals for the CFP be kept secret? Does accountability have much meaning in a system where bureaucrats and ministers may invoke cabinet secrecy to refuse to provide Parliament and the public with documentary support for their assertions and assurances? Would this incidence of secrecy pass the "smell test" described by the Supreme Court in Babcock?