Reconciling Cabinet Secrecy with the Rule of Law
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RECONCILING CABINET SECRECY WITH THE RULE OF LAW By Yan Campagnolo A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Yan Campagnolo, 2018 P a g e | ii Reconciling Cabinet Secrecy with the Rule of Law Doctor of Juridical Science, 2018 Yan Campagnolo Faculty of Law University of Toronto ABSTRACT This dissertation explores the tension between government openness and secrecy. It focuses on Cabinet secrecy, that is, the doctrine protecting the confidentiality of the collective decision-making process at the top of the executive branch in Westminster jurisdictions. I argue that Cabinet secrecy is crucial to the proper functioning of the system of responsible government as it fosters the candour of ministerial discussions, protects the efficiency of the decision-making process, and enables Ministers to remain united in public notwithstanding any disagreement they may have in private. Yet, excessive secrecy can hamper government accountability by depriving citizens, parliamentarians and judges of the information needed to hold public officials responsible for their decisions and actions. An important question is who should have the final authority over the disclosure of Cabinet secrets when a dispute arises, the Government or the Courts? Under the common law, Courts in the United Kingdom, Australia, New Zealand and Canada (at the provincial level) asserted the authority to review and overrule Cabinet immunity claims to prevent abuses of power. In Canada, at the federal level, by the enactment of sections 39 of the Canada Evidence Act and 69 of the Access to Information Act , Parliament deprived the Courts of the power to inspect and order the disclosure of Cabinet secrets. An examination of the relevant cases shows that the absence of meaningful judicial review has led to an overbroad application of Cabinet immunity by P a g e | iii public officials. Based on David Dyzenhaus’ theory of law as justification, I argue that the statutory regime offends the rule of law and the Canadian Constitution because it violates the requirements of procedural fairness (the right to an independent and impartial decision- maker and the right to reasons) and the separation of powers principle (the Courts’ authority to control the admissibility of evidence and the legality of executive action). Then, in the light of the best practices in Westminster jurisdictions, I make policy recommendations with the objective of reconciling Cabinet secrecy with the rule of law, especially by narrowing the scope of Cabinet immunity and ensuring that such claims are subject to meaningful oversight and review. P a g e | iv ACKNOWLEDGEMENTS The idea for this doctoral dissertation arose while I was working as legal counsel for the Privy Council Office (PCO) in Ottawa. I would not have been able to write this dissertation without the support of several institutions and individuals. First, I would like to acknowledge the Social Sciences and Humanities Research Council, the University of Toronto and PCO for providing financial support throughout the years. I am grateful to Yvan Roy, Isabelle Mondou and Hélène Dorion from PCO for recognizing the importance of the research proposal and giving me the means and freedom to pursue it. I am also indebted to Luc Longpré, who helped me navigate PCO’s archives to identify the relevant primary sources. Second, I would like to thank the members of my doctoral committee at the University of Toronto, Kent Roach, David Dyzenhaus and Hamish Stewart, for their intellectual guidance and critical comments. Kent Roach was an ideal supervisor, allowing me to pursue my own intellectual path while gently steering me in the right direction. I was fortunate to have a supervisor who was always available when needed and who offered me timely and insightful feedback. David Dyzenhaus’ inspiring work on the theory of law as justification provided the theoretical framework for the argumentation presented in Chapter 4 of the dissertation. Hamish Stewart was always kind, positive and encouraging, and I greatly benefited from his masterful knowledge of evidence as well as constitutional law. Third, I am very much obliged to the friends and colleagues who helped me sharpen my arguments and develop the cursus for a new course on Cabinet secrecy at the University of Ottawa’s Common Law Section. Special thanks to: Peter Oliver of the University of Ottawa; Vincent Kazmierski of Carleton University; Anne-Marie Smith of the Office of the Auditor General of Canada; Diane Therrien of the Office of the Information Commissioner of Canada; Christopher Rupar of the Department of Justice Canada; and Jurica Capkun of PCO. I am also grateful to the Revue juridique Thémis , the Alberta Law Review , the Revue générale de droit and the McGill Law Journal for reviewing and publishing my work.* * As of November 15, 2017, the following four articles, based on my dissertation, have been accepted for publication: “The Political Legitimacy of Cabinet Secrecy” 51:1 RJT [forthcoming in 2017]; “A Rational P a g e | v Last but not least, I acknowledge the great debt I owe to my family, especially to my father, Roberto Campagnolo, and my wife, Michèle Kingsley. I benefited from my father’s intelligent advice and unwavering support throughout my life. He encouraged me to reach my potential and brought the best out of me. I am mostly beholden to my wife for her love, inspiration and positivity during the long years of research and writing. Without the support of my family, this project would not have come to fruition. For that, and much more, I will forever be grateful. Approach to Cabinet Immunity under the Common law” (2017) 55:1 Alta L Rev 43; “The History, Law and Practice of Cabinet Immunity in Canada” 47:2 RGD [forthcoming in 2017]; and “Cabinet Immunity in Canada: The Legal Black Hole” 63:2 McGill LJ [forthcoming in 2018]. P a g e | vi TABLE OF CONTENTS Acknowledgements iv Table of Contents vi Introduction 1 Chapter 1 – Cabinet Secrecy and Constitutional Conventions 18 Introduction 18 1. Conventional Justification for Cabinet Secrecy 20 1.1 Secrecy Convention 20 1.1.1 Precedents and Scope 23 1.1.2 Public Interest Rationales 27 1.2 Access Convention 32 1.2.1 Establishment of the Cabinet Secretariat 33 1.2.2 Development of the Access Convention 36 2. Conventional Limits to Cabinet Secrecy 43 2.1 Voluntary Disclosure by Former Ministers 44 2.1.1 Ministerial Resignation 45 2.1.2 Ministerial Memoirs 45 2.2 Voluntary Disclosure by the Government 50 2.2.1 Executive Institutions 51 2.2.2 Legislative Institutions 54 Conclusion 63 Chapter 2 – Cabinet Secrecy and Common Law Public Interest Immunity 67 Introduction 67 1. Judicial Review of Public Interest Immunity Claims 69 1.1 Judicial Review of Public Interest Immunity Claims in General 69 1.1.1 Two Antithetical Positions 69 1.1.2 Bringing an Unlimited Executive Power into Judicial Custody 74 1.2 Judicial Review of Cabinet Immunity Claims in Particular 81 1.2.1 Assertion and Demise of Absolute Cabinet Immunity 81 1.2.2 Scope of Cabinet Immunity in Westminster Jurisdictions 88 P a g e | vii 2. Assessment of Public Interest Immunity Claims 101 2.1 Abstract Assessment of Public Interest Immunity Claims 102 2.1.1 Discovery Stage: Identifying the Relevant Documents 102 2.1.2 Objection Stage: Assessing the Strength of the Objection 106 2.2 Actual Assessment of Public Interest Immunity Claims 114 2.2.1 Inspection Stage: Weighing and Balancing the Public Interest 114 2.2.2 Production Stage: Minimizing the Degree of Injury 126 Conclusion 128 Chapter 3 – Cabinet Secrecy and Statutory Public Interest Immunity 131 Introduction 131 1. Inception of the Federal Statutory Regime 133 1.1 Parliament’s Entrenchment of Executive Supremacy 133 1.1.1 Scope of the Absolute Immunity 134 1.1.2 Meaning of Cabinet Confidences 138 1.2 Cabinet Immunity as the Last Vestige of Executive Supremacy 139 1.2.1 Initial Version of Bill C-43 140 1.2.2 Final Version of Bill C-43 143 2. Interpretation of the Federal Statutory Regime 150 2.1 Scope of, and Limits to, Cabinet Immunity 150 2.1.1 Scope of Cabinet Immunity 151 2.1.2 Limits to Cabinet Immunity 160 2.2 Claiming and Challenging Cabinet Immunity 168 2.2.1 Claiming Cabinet Immunity 169 2.2.2 Challenging Cabinet Immunity 182 Conclusion 189 Chapter 4 – Cabinet Secrecy and the Rule of Law 193 Introduction 193 1. Defining the Rule of Law 195 1.1 The Supreme Court of Canada’s Conception of the Rule of Law 196 1.1.1 Rule of Law as Rule by Law 196 1.1.2 Rule by Law as a Normative Framework 198 P a g e | viii 1.2 An Alternative Conception of the Rule of Law 202 1.2.1 Rule of Law as Justification 202 1.2.2 Justification as a Normative Framework 207 2. Assessing the Legality of Section 39 of the CEA 212 2.1 Section 39 Is Procedurally Unfair 212 2.1.1 The Decision-Maker Is Not Independent and Impartial 212 2.1.2 The Decision-Maker Is Not Required to Give Reasons 221 2.2 Section 39 Violates the Core Jurisdiction of Superior Courts 227 2.2.1 Superior Courts Cannot Control the Admissibility of Evidence 230 2.2.2 Superior Courts Cannot Review the Legality of Executive Action 239 Conclusion 245 Conclusion 248 Appendix – Statutory Provisions 271 Bibliography 274 P a g e | 1 INTRODUCTION Political parties are often elected on the promise to foster greater openness and transparency. Yet, once in power, the veil of secrecy is rarely lifted in any significant manner.