Secret, Not Sacred:

Constitutional Limitations on the Protection of Cabinet Confidences Under the Access to Information Act

Abstract

This article explores the impact of the Supreme Court of Canada’s recognition of the constitutional protection for access to government information and avenues for securing that protection more effectively. Part I considers the various sources for the constitutional protection of access to government information, especially the unwritten constitutional principle of democracy and sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms. Part II examines the limitations of the Court’s current approach to protecting access to government information under section 2(b), as set out in Criminal Lawyers’ Association v. Ontario and Toronto (City) v. Ontario. Part III proposes an alternative approach to recognizing constitutional protection for access to government information: a holistic approach that expands beyond section 2(b) to include section 3 and the principle of democracy. The holistic approach avoids the pitfalls of rooting this protection in either of sections 2(b) or 3, providing a broader justification for the right. Having considered these approaches, the article assesses whether section 69 of the Access to Information Act, which excludes “Cabinet confidences” from the scope of the Act, violates that constitutional protection. Part IV contends that section 69 infringes the Charter in a manner that cannot be justified in a free and democratic society regardless of the approach that is applied. To remedy this infringement, the article recommends that section 69 be modified to limit the range of information captured by the concept of “Cabinet confidences” and to increase supervision of Cabinet privilege claims.