OTTAWA—Liberal Leader Justin Trudeau says that his government provided an “unprecedented” lifting of cabinet confidence to allow former justice minister Jody Wilson-Raybould to speak about the SNC-Lavalin controversy.
Responding to news that the RCMP has been stymied in its inquiries in the affair because of cabinet secrecy, Trudeau has defended the extent of the government’s disclosures.
“We gave out the largest and most expansive waiver of cabinet confidence in Canada’s history,” Trudeau said Wednesday.
Pressed again Thursday, the Liberal leader again said his government took the “unprecedented” step of providing a waiver that allowed “all issues related to this matter to be discussed.”
Is that truthful?
No. Trudeau is overstating how much his government pulled back the curtain in this case compared to previous instances where the government has lifted cabinet confidence.
First a primer. Known properly as a “confidence of the Queen’s Privy Council for Canada,” these are among the most secret of secrets. It covers cabinet discussions as well as documents such as memos and discussion papers prepared for cabinet, record-keeping of deliberations and draft legislation.
A minister or the Clerk of the Privy Council can “certify” information as a confidence, putting it behind a wall of secrecy that stretches at least 20 years.
Yan Campagnolo, an associate professor at the University of Ottawa, has written that cabinet confidences have “near-absolute immunity.”
The Supreme Court of Canada declared in a 2002 ruling that cabinet confidentiality is “essential to good government.”
“The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny,” the court said.
The court said that it is the clerk’s function to “protect cabinet confidences, and this alone. It is not to thwart public inquiry nor is it to gain tactical advantage in litigation.”
In the controversy earlier this year, Wilson-Raybould says she was subject to inappropriate pressure by Trudeau and other officials to provide a deferred prosecution agreement to SNC-Lavalin that would allow the firm to avoid criminal prosecution.
With opposition MPs pressing for answers, the government provided a waiver authorizing Wilson-Raybould and “any persons who directly participated in discussions with her” to speak to the Commons’ justice committee and the ethics commissioner about cabinet confidences during her time in that cabinet role.
Both Wilson-Raybould and Jane Philpott, who resigned as president of the Treasury Board during the controversy, say that cabinet confidence restricts them from saying more.
Ethics Commissioner Mario Dion did his own investigation that concluded Trudeau violated ethics law in his dealings with Wilson-Raybould. But Dion said his investigation was hampered because cabinet confidences barred some witnesses from speaking freely.
The Globe and Mail revealed this week that the RCMP has also been stymied in its own inquiries into the affair by cabinet confidences.
The government said that the Mounties were given the same access to cabinet confidences as was provided the ethics commissioner and justice committee under the same waiver.
“This request for cabinet confidences was received by the Clerk of the Privy Council. It was evaluated on the merits and the decision was taken by the clerk under his authority as custodian of cabinet confidences,” Paul Duchesne, a spokesperson for the Privy Council Office, said Thursday.
So back to Trudeau’s claim. Is this the most expansive waiver ever?
No, says Donald Savoie, a professor at the Université de Moncton where he holds the Canada research chair in public administration. “I think it’s a bit rich,” Savoie said.
Get The Lead newsletter
Start getting your whip-smart guide to Canada’s 2019 federal election in your inbox.
He cited the criminal trial against Vice-Admiral Mark Norman — which involved an allegation of a cabinet leak. The government decided to let the judge review sensitive documents and decide which ones were relevant to the case.
Michael Wernick, clerk of the Privy Council Office at the time, told a Commons committee in February that he authorized the release of secret cabinet documents sought by Norman’s defence team.
“I made a decision, of my own volition, with my own authority, that the easiest way to deal with the Norman matter was to let the judge decide what was relevant,” Wernick said, adding that such a decision was an “exception and an anomaly.”
The Gomery inquiry into the Liberal sponsorship scandal in Quebec also featured evidence covered by cabinet confidences.
More than 20 million pages of documents were produced for the commission and those involved the release of an “unprecedented number” of cabinet confidences, then Liberal MP Mauril Bélanger told a Commons’ committee in 2005.
“A very significant number of cabinet confidences were requested by the commission …yet the government did manage to provide and satisfy the commission of its requirements,” Bélanger said.
That openness was acknowledged in the commission’s final report. “Ordinarily, cabinet deliberations are secret and privileged, but the government agreed to waive this privilege by two Orders in Council which permitted a full inquiry to be made,” the report said.
The inquiry into former prime minister Brian Mulroney’s dealings with Karlheinz Schreiber identified 142 documents relevant to the investigation but covered by cabinet confidence. “Mr. Mulroney consented to disclosure of all those documents, and I thank him for that,” commissioner Jeffery Oliphant wrote in his final report that was released in 2010.
As the keeper of cabinet confidences, Savoie said that the clerk made the “right call” in not granting the ethics commissioner or the RCMP more access to privileged documents related to SNC-Lavalin.
Cabinet confidence is “sacrosanct” and a critical underpinning of Canada’s democratic system and the clerk, Ian Shugart, should be wary of setting any precedents, he said.
“Ultimately, it shouldn’t be his call in this case …it’s not for the clerk to set a precedent,” Savoie said.
Yet Savoie stressed that it’s entirely within the power of the prime minister to lift the veil of secrecy.
“The prime minister and cabinet can decide to make things accessible. There’s nothing to prevent the prime minister and cabinet. Nothing at all,” he said.