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EDITORIAL: Cabinet confidentiality rules being used to thwart police in SNC-Lavalin scandal

— Reuters file photo

Hog-tying the RCMP

First, it was the federal ethics commissioner.

Now, according to a story from by the Globe and Mail, the RCMP is finding that they can’t fully investigate whether obstruction of justice took place in the SNC-Lavalin scandal, because the Clerk of the Privy Council will not lift cabinet confidentiality restrictions on potential witnesses.

It’s worth stopping for a moment and actually looking at what “cabinet confidentiality” is all about.

According to the federal Justice Department, “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.”

The RCMP presumably wouldn’t be interested in the frank talk of cabinet ministers, whatever that frank talk happened to be. What they are interested in is whether a crime has been committed, and whether there is enough evidence that charges could be laid.

That’s a sentiment echoed in the Supreme Court of Canada’s decision in a case known as Babcock, from 2002: “If cabinet members’ statements were subject to disclosure, cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect.… The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the cabinet room, and documents and papers prepared for cabinet discussions. 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…”

Pretty clear, then: cabinet members are responsible for their decisions, and the way those decisions are reached can be far-ranging and potentially unpopular.

All that being said, though, there’s a lingering question: what could be so damning that, not only can the public not know it, but the police can’t investigate it, either?

It’s not, after all, a situation where the public would be receiving the information; it’s the RCMP conducting an investigation, and the RCMP is not in the habit of releasing investigative details holus-bolus. The RCMP presumably wouldn’t be interested in the frank talk of cabinet ministers, whatever that frank talk happened to be. What they are interested in is whether a crime has been committed, and whether there is enough evidence that charges could be laid.

We should stress again at this point, especially because the federal election has begun, that withholding the information is not Prime Minister Justin Trudeau’s call, but the Clerk of the Privy Council’s.

But the legislation surely is meant to protect cabinet confidences from public examination, not to protect cabinet members from investigation.

Or prime ministers, for that matter.


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