4.3 Protecting Cabinet Confidences under Section 39 of the Canada Evidence Act

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Overview
• 3. Document Review
• 4. Challenge to a Certificate

1. Introduction

Cabinet decision-making is founded on the principle of collective responsibility. In practice, this means that a decision of the Cabinet, or one of its committees, binds all members of the Government, regardless of their personal views on the issues being decided. Cabinet and its committees constitute the forum in which Ministers collectively make decisions on government policy and initiatives. The Cabinet meetings enable Ministers, within a confidential setting, to debate issues vigorously, reconcile different perspectives, participate in and influence deliberations, and collectively reach decisions.

Section 39 of the Canada Evidence Act (CEA) constitutes the statutory means for safeguarding that Cabinet confidentiality sets out a regime which prevents the disclosure of information or documents that consist of confidences of the Queen's Privy Council for Canada.

2. Overview

Although the “Queen’s Privy Council for Canada” referred to in s. 39 of the Canada Evidence Act (CEA) has quite an expansive membership, for the purposes of litigation the concern is usually with Cabinet documents. The purpose of “Cabinet Confidence” privilege is to protect from disclosure discussions and deliberations of federal Cabinet Ministers on matters that are, or have been, the subject of discussion at Cabinet meetings or between Cabinet Ministers. Cabinet Confidence privilege exists so that Ministers can have open and frank discussions and not be concerned with public perception of their deliberations. Cabinet Confidence privilege does not extend to the day-to-day administration of federal government departments. Section 39(4) limits Cabinet Confidence privilege to 20 years.

Section 39 of the CEA acts as an absolute bar to the disclosure of Cabinet Confidences as defined in s. 39(2). Whereas a judge assesses and makes the determination regarding disclosure or protection of information under ss. 37 and 38^{Footnote 1} of the CEA, the determination of Cabinet Confidences under s. 39 is made by the Clerk of the Privy Council or a Cabinet Minister. Where a certificate is filed under s. 39 certifying that the information constitutes a Cabinet Confidence, a court must refuse disclosure of that information without examination or hearing of the information.^{Footnote 2} Objections under s. 39 must be made in writing, certifying that the information constitutes a Cabinet Confidence.

3. Document Review

Section 39(2) of the CEA, which defines “confidence of the Queen's Privy Council”, protects the following types of documents from disclosure:^{Footnote 3}

1. Final and draft forms of Memoranda to Cabinet and information or preparatory documents that discuss subject matter or input into such Memoranda (s. 39(2)(a));
2. In addition to actual agendas of Cabinet meetings, documents that discuss dates, locations, attendees and details of Cabinet meetings (s. 39(2)(c)); while Cabinet decision-making and recorded decisions are secret, the implementation of those decisions is not;
3. Any record used for or reflecting communications or substantive discussions of any kind between Ministers regarding government policy and decisions (s. 39(2)(d));
4. Final versions of briefings to a Minister on matters to be discussed with another Minister or at a Cabinet meeting (s. 39(2)(e)); drafts of these Memoranda, often called a “Briefing Note to the Minister” or “Memorandum to the Minister”, may be circulated widely for input. This wide circulation does not necessarily remove the document from s. 39 privilege; and,
5. draft legislation (s. 39(2)(f)).

Determining whether a document is a Cabinet Confidence as described in s. 39(2)(a) to (f) and thereby protected from disclosure can be challenging in some cases. Documents may also be severed or have portions redacted instead of being entirely protected.

Crown counsel working on a file that may contain Cabinet Confidence documents must identify the relevant documents and the documents must be sent to the Privy Council Office (PCO) for review. It is wise to contact PCO as soon as reasonably practicable so that PCO officials can plan to review the documents and obtain the Clerk’s Certificate. Crown counsel shall notify the Chief Federal Prosecutor who will bring the matter to the attention of the appropriate Deputy Director of Public Prosecutions. The latter will consult with the Assistant Secretary to the Cabinet (Legislation and House Planning) to allow the Minister^{Footnote 4} or the Clerk of the Privy Council to certify the documents and protect them from disclosure.

Once PCO officials have reviewed the documents and the Clerk has made a final determination of privilege, a Clerk’s Certificate will be prepared.

4. Challenge to a Certificate

The consultation process described above also applies where an accused seeks disclosure of information which has been certified as a Cabinet Confidence.^{Footnote 5} The Clerk’s Certificate produced in court simply describes the protected documents without revealing their contents. This Certificate is evidence that the listed documents are protected from disclosure. A court may not review the Cabinet documents listed in the Certificate. Although the court is not entitled to go behind a proper certificate filed under s. 39, the court can review the certificate to determine if, on its face, it complies with this section.^{Footnote 6}