Procedure and House Affairs Committee on March 16th, 2011

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Walsh, the government, as you said, during the Afghan detainee debate, claimed national security as a reason, and today they're claiming cabinet confidence in terms of their refusal to provide the costing information of these justice bills to Parliament.

Do you see a difference between cabinet confidence as used to protect information, including cost information, when a piece of legislation is still being discussed by cabinet prior to it being introduced to the House and tabled in the House and cabinet confidence used to deny the House the information on the cost once that legislation has been tabled in the House by the government?

[The Chair, Conservative, Joe Preston]

Mr. Walsh, you have 15 seconds.

[Rob Walsh]

The obvious difference is, of course, before the legislation arrives, the House may never ask for that information. So when the legislation arrives, that's the occasion on which the House seeks the information, and it's understandable, I suppose, that it would do so and expect to receive the information from the government.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much.

[The Chair, Conservative, Joe Preston]

Mr. Brison, thank you.

Mr. Young, for seven minutes.

[Terence Young, Conservative, Oakville, ON]

Thank you, Mr. Chair.

Thank you for being here today, Mr. Walsh.

Cabinet responsibility for confidentiality is defined under several acts: the Access to Information Act, the Privacy Act, and the Canada Evidence Act. Cabinet confidences are specifically exempt from the Access to Information Act and the Privacy Act. The Canada Evidence Act authorizes the Clerk of the Privy Council to ensure that cabinet confidences are not disclosed. Under those acts, is there a clear definition of cabinet confidence?

[Rob Walsh]

Under the Canada Evidence Act—and I believe you're referring to section 39—there's no definition of what is a cabinet confidence, I don't believe.

If memory serves, the act does not actually define it because it doesn't have to define it. It simply operates on the certification by the Clerk of the Privy Council. Once that certification is given, then the information is not subject to disclosure to the courts.

[Terence Young, Conservative, Oakville, ON]

Is it fair to say the definition is defined by usage?

[Rob Walsh]

By usage or by tradition. The court has had occasion to talk about cabinet confidence. There was a case in the Supreme Court of Canada—I'm not sure what the year was; I think it was 1992, but I'm not sure. But it's tradition, practice.

If you go to the oath that persons entering the Privy Council, i.e., cabinet, take, that's an indication of what might be a cabinet confidence, where the person taking the oath says, “I shall keep secret all matters committed and revealed to me in this capacity”, as a member of Privy Council, “or that shall be secretly treated of in Council”. That's probably a good indication of what cabinet confidence is meant to cover: all those matters that are committed and revealed to the members of cabinet in the deliberations of cabinet.

[Terence Young, Conservative, Oakville, ON]

Are there any penalties provided for breaches of those rules? Perhaps you can describe what penalties there have been in practice for anyone who breached those rules.

[Rob Walsh]

I think one of your witnesses later today, Mr. Cappe, might be able to answer this question better than I can. I'm not aware, historically, of anyone being prosecuted or subject to a penalty for breach of that oath. I would think the usual consequence is removal from cabinet for breach of that confidentiality.

[Terence Young, Conservative, Oakville, ON]

What are the historical reasons for cabinet confidence?

[Rob Walsh]

Historically, going back to when the king or queen was an active player in government, I understand historians would say that when the king announced a decision, it would be unbecoming and unseemly for there to be any evidence of dissent or divided opinion among the king's advisers, and it would undermine his authority for there to be made known that there was a division of opinion because then he would have chosen one side over the other.

More recently, we get to a more principled and responsible government. Fundamentally, the government is accountable to Parliament and the government speaks with one voice. The government is accountable on the whole, not just in parts, so cabinet solidarity and cabinet confidentiality are all part of that system that calls upon the government to speak with one voice and to be accountable to the House as a government.

[Terence Young, Conservative, Oakville, ON]

If the government feels that the requested information is a matter of confidence, what is the challenge to explaining why something is a matter of confidence without revealing what that information is?

[Rob Walsh]

It is difficult, obviously. You can't say you can't tell someone what it is or you get into that situation we laugh about: “I can tell you what it is, but then I'm going to have to shoot you.”

There's a trust element, and the legislation, in section 39, makes it clear that Parliament is saying that if the Clerk of the Privy Council so certifies, that's the end of the matter and the court cannot examine it. There are other sections of the Canada Evidence Act dealing with national security and national defence, and the courts have developed a practice of actually looking at what this sensitive or injurious information is that the government is trying to keep out of the proceedings. This occurs typically in terrorist trials or something like that. The court satisfies itself that it really is something of national security and not just something that may embarrass the government. But there's no opportunity for the court to do that under section 39, and once it's certified by the Clerk of the Privy Council, it's beyond the reach of the court.

But the House of Commons is not a court of law and the House of Commons is not subject to section 39 of the Canada Evidence Act. The certification of something as a cabinet confidence does not, in my view, trump parliamentary privilege or the right of the House to receive information from the government and to hold the government to account.

[Terence Young, Conservative, Oakville, ON]

We're all aware of the recent Speaker's rulings about the rights of parliamentarians to have access to documents, and you mentioned the Afghan information. What our friends in the media and the opposition sometimes forget is what the Speaker has also said, that parliamentarians have a responsibility to protect that information.

How do we balance those two important but sometimes contradictory principles?

[Rob Walsh]

That's a very valid and important consideration. There is always, obviously, the national interest. I'm sure every member of this committee is cognizant of the national interest in the context of national security or national defence issues. Outside of that, what the national interest is for withholding information or disclosing it, as the case may be, may be the subject of considerable debate.

What can the committee do? It might try to find ways of receiving sensitive information, at least initially, confidentially. I know there have been difficulties with committees maintaining the confidentiality of information they receive, but that's one way of doing it. Upon review of the information, the committee might then decide, as it's entitled to do, which of the information is properly not disclosed and which should be disclosed.

[The Chair, Conservative, Joe Preston]

You have about 30 seconds remaining, Mr. Young.

[Terence Young, Conservative, Oakville, ON]

You would acknowledge, Mr. Walsh, that these requests for documents and information by committees dominated by the opposition coalition is a recent phenomenon of a minority Parliament, would you not?

[Rob Walsh]

Any questions coming before a committee where the government is in a minority and where the questions come from the opposition parties are more likely to prevail, obviously, when there's a minority government. These questions are likely not to prevail when there's a majority government. In that sense, your comment is well taken. These questions come to the surface, come into effect, if you like, come into the debate and these proceedings of this committee in large part because the opposition parties have a majority in the House and a majority on the committees.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Young.

Monsieur Paquette, for seven minutes.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Mr. Chairman.

Mr. Walsh, thank you for being with us today.

I'd like to go back to what Mr. Brison said earlier. My understanding of the Speaker's ruling is that Cabinet discussions remain confidential, but once a bill is introduced in Parliament, all that information becomes available to parliamentarians, including the costs.

[Rob Walsh]

I agree.

[Pierre Paquette, Bloc, Joliette, QC]

There is one other point that I find troubling. The government started out saying that all the documentation was confidential because they were Cabinet confidences. Then, following actions taken by the Opposition, the Government Leader in the House of Commons tabled several pieces of information, still inadequate, which contradicted what the government had been saying from the outset.

I don't know whether you can comment on that, but in your opinion, what prompted the government to try and provide only a partial response to the Opposition's requests?

[Rob Walsh]

The principle, I believe, is that the government has the choice of disclosing or not disclosing the documents. Even if it is a Cabinet confidence, the government can decide that it will or will not disclose documents to Parliament. In this case, the government elected to disclose some documents, but not others. I imagine the rationale is the same—namely that they are Cabinet confidences. That is left to the government's discretion.