A memorandum to cabinet is a cabinet document. It is part of one. However, under the Access to Information Act, section 69 stipulates that once the decision to which those discussion documents relate is made public, those discussion documents are no longer cabinet confidences and can and should and must be released publicly when so requested.
Once the proposed justice bill that cabinet is considering and the Minister of Justice is proposing to government through cabinet to adopt as its official policy, to be brought forth in public through tabling in the House, and once cabinet approves the bill and the minister or a representative of the government rises in the House to table the bill and to move first reading, this cabinet decision will have been made public. Therefore, the discussion documents relating to the issue will no longer be cabinet confidences. That is the point.
If one looks at the Ethyl case, the federal court has been clear that this analysis and background information can be severed from a protected document and be disclosed. When legislation goes to cabinet for a decision before it is introduced in Parliament, those discussion documents are privileged.
The very act of introducing government legislation in Parliament is a public declaration of cabinet's decision to support the legislation and to inform the public through Parliament that this is the government's decision. At that point, those discussion documents are no longer covered by privilege and, therefore, when the Standing Committee on Finance adopted the motion ordering government to release the cost analysis of each and every justice bill, those bills had been introduced in the House and therefore were now public. The cabinet's decision was now public and the discussion papers, which included cost analysis, were no longer covered by cabinet privilege and no longer a cabinet confidence.
We already know through O'Brien and Bosc at page 137 that:
It is well established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information. …The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest.
Should the government argue that notwithstanding the fact that, one, its first argument for refusing to provide these documents relating specifically to the justice bills is a matter of cabinet confidence failed--