The British North America Act of 1867 said Canada would have “a constitution similar in principle to that of the United Kingdom,” and cabinet secrecy is part of the bedrock upon which the unwritten British Constitution and therefore Canada’s Parliamentary government rests.
This may seem like pretty esoteric stuff, but since in 1982 the BNA Act became the Consolidation of Constitution Acts, 1867 to 1982, and hence a key component of Canada’s modern written constitution, it’s no small thing when a judge rules that cabinet confidentiality is not in the public interest and therefore can be tossed aside.
Yet that is essentially what happened April 26 when a Calgary judge ruled that the public interest in disclosing answers about COVID-19 public health restrictions made by Chief Medical Officer of Health Deena Hinshaw to the provincial cabinet “outweighs the public interest in keeping the evidence confidential.”
This is a serious constitutional matter, despite the fact the case that led to this ruling is part of an effort by a group of churches and businesses that argue Alberta’s public health measures should be declared unconstitutional, the effect of which would be in effect to make suppression of infectious disease in the age of online misinformation all but impossible.
Court of Queen’s Bench Justice Barbara Romaine was certainly right that it would be in the public interest for Albertans to know what advice Hinshaw gave to Premier Jason Kenney and his cabinet, even though common sense suggests it was the opposite of what the plaintiffs claim.
That is to say, it is far more likely that the premier and cabinet imposed less severe restrictions to prevent the spread of COVID-19 than Hinshaw recommended, rather than more severe restrictions, as the plaintiffs hope to show.
To think about what has suddenly become an important case – despite the frivolous foundation of the plaintiffs’ views on how Canadian governments should have responded to the pandemic – we need to pay attention to the traditional arguments for the constitutional convention that cabinet discussions must always be secret and confidential.
This is because Parliamentary government is cabinet government, and the cabinet must work collectively to develop policy. A decision made by cabinet must be made by all the members of cabinet, and a minister who is not prepared to defend a collective decision must resign.
If cabinet discussions were not confidential, goes the logic, ministers couldn’t defend their collective decision in public if they were known to have spoken against it in private.
This, by the way, is why the oath sworn by all Alberta cabinet ministers says, “you will keep close and secret all such matters as shall be treated, debated and resolved in Executive Council without publishing or disclosing the same, or any part thereof, by word, writing, or any otherwise, to any person out of the same council, but to such only as be of the council.”
Now, Justice Romaine was obviously aware of this when she made her ruling, as yesterday’s CBC story summarized it, because she noted that the questions she proposed asking Hinshaw and the answers given to them “do not reveal disagreements among ministers, the views of individual ministers or the specifics of her recommendations.”
Nevertheless, it is very hard to argue that the judge’s questions for Hinshaw – including, “Did cabinet ever direct you to impose more severe restrictions on particular groups such as churches, gyms, schools and small businesses than you had recommended to them?” – would not seriously undermine the constitutional principal of cabinet secrecy.
Still, as law professor Shaun Fluker wrote in the University of Calgary’s legal blog back in 2020, “once it enters the realm of law, cabinet confidence does not provide absolute immunity from disclosure.”
The logical implication of Justice Romaine’s ruling is that cabinet confidentiality is not of much utility in the 21st Century, an age of instant Internet communication and pervasive social media whether we like it or not.
Does it make any sense, anyway, to pretend that there are no differences in cabinet meetings, when human nature means there are, always were, and always will be?
Moreover, it is a fact that Canadian governments have already tossed the related parliamentary convention of ministerial responsibility – that is to say, that the minister who heads any government department must be responsible for the conduct of every single civil servant employed by that department, and so in serious cases of wrongdoing must resign.
Since Canadian governments of all political stripes now ignore this unwritten but nevertheless commonly understood constitutional rule, it certainly weakens the argument that the need for that other one, cabinet secrecy, is still essential.
So, dear readers, if you have to pick between the right of the public to full disclosure or the right of cabinets to make collective decisions in secret, which would you choose?
The Alberta government and parliamentarians of more than one party will certainly choose the right of cabinets to decide things in secret.
Count on the government of Alberta, therefore, to appeal this ruling to a higher court if Justice Romaine orders Hinshaw’s answers to be revealed.
While it may not seem like it, this is probably a more important story than who gets to own Twitter!
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