Thank you very much, Chair. I am glad to be here again.
The last time we went straight into questions, but given the subject matter, I do have a statement to begin with, which I hope will be helpful. It has been provided to the committee in the two official languages.
I was asked to discuss generally the cabinet confidence exclusions to public disclosure. I intend to lay out the fundamental principles underlying cabinet confidentiality.
As you know, democracies similar to ours have long recognized the need to safeguard the confidentiality of what is said at cabinet and what comes before cabinet, and the documents prepared for those discussions. The reasons are clear. The process of governance in a cabinet-style democracy works best when cabinet members charged with government policy and decision-making are free to express themselves around the cabinet table unreservedly, free to discuss all aspects of the problems that come before them, and to express all manner of views. Confidentiality ensures candour in cabinet discussions and full and frank exchange.
Deliberations among ministers of the Crown and the documents that reflect the content of those deliberations are protected by the constitutional convention of cabinet confidentiality. It performs a vital role in our cabinet-style democratic system of responsible government. In a system of responsible government, cabinet is openly and collectively accountable to Parliament for the decisions it makes during the time it governs.
If ministers are to make decisions collectively, the privacy of their opinions and views in developing government policy must be protected. Otherwise, the collective responsibility of ministers to Parliament, which is essential to cabinet government, would be difficult to maintain.
Along with other constitutional conventions, cabinet confidentiality also serves to uphold the constitutional principle of the separation of powers between the three branches of the state. In doing so, it protects the integrity of our constitutional structure.
Canadian constitutional law has long acknowledged that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state. Although there are limited areas of overlap, each branch plays a fundamentally distinct role.
In a recent unanimous decision, the Supreme Court of Canada reasserted that each branch must be able to perform its constitutionally assigned functions without undue interference by the others. Several doctrines work to prevent undue interference by one branch into another. This includes the secrecy afforded to judicial deliberations and the recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies.
In August the Supreme Court reaffirmed that the executive, too, benefits from a degree of protection against undue interference. The court specified that the deliberations among ministers of the Crown, and the records supporting and reflecting those deliberations, are protected by the constitutional convention of cabinet solidarity and confidentiality.
Of course, the constitutional convention protecting the confidentiality of cabinet deliberations does not exist just for the cabinet of the day. It exists for all cabinets: for those that came before it, and for those cabinets that will come after it. The constitutional convention and the protection it affords is for the benefit of our system of democratic governance, both the concept of cabinet solidarity in responsible government and the ability of the executive branch to do its job.
Recognizing this importance, Parliament resolved that access to cabinet confidences is extraordinary. Parliament chose to exclude cabinet confidences from a right of access under the Access to Information Act and the Privacy Act. It did not grant to its agents of Parliament a statutory right of access to cabinet confidences; nor, as a matter of federal law, did Parliament allow our courts access to cabinet confidences.
The committee's July 7 motion stipulated that cabinet confidences were to be excluded from the production of documents. This is in keeping with the House of Commons' long-standing practice of respecting the confidentiality of cabinet decision-making. The former Speaker of the House of Commons, the Honourable Roland Michener, said in November 1957:
...the decision of the government is one and indivisible. Inquiry into how it is arrived at and particularly inquiry into the cabinet process is not permitted in the house.
It is also the way the Supreme Court understands the practice of the House of Commons, as noted in the fundamental decision of Babcock.
The Prime Minister and members of cabinet appeared before committees of the House to provide answers to questions about their decisions on the Canada student service grant. The Prime Minister and cabinet chose to make public their confidences on the CSSG because of the questions raised about the delivery of the program. This is a recognized exception in law to maintaining cabinet confidentiality.
As the Clerk of the Privy Council and custodian of cabinet confidences, I directed that a principled approach be taken to the treatment of cabinet confidences in this case, to ensure a non-selective application of the protection of cabinet confidentiality. As a result, and in keeping with the public disclosures made by members of cabinet, considerable information on the grant, which otherwise would have constituted cabinet confidences, was provided to the committee.
This was one case, Mr. Chair, in the context that I have attempted to lay out, of the doctrine of cabinet confidences. I hope this is useful to the members of the committee.
Thank you very much.
