In addressing the issues raised by the situation involving Vice-Admiral Mark Norman, some commentators, and the federal cabinet, are confusing the requirements of loyalty and ethical behaviour that apply to federal public officials with the much more limited duty to keep cabinet secrets.
Based on the evidence made public, Norman’s communication with an executive from the Chantier Davie shipbuilding company, in what seems to be an attempt to help thwart a possible cabinet decision to cancel a contract with that company, could be a breach of trust under the Criminal Code.
Even if Norman is not prosecuted and convicted for breach of trust, he could be found guilty of violating the Royal Canadian Navy’s Code of Conduct, along with the Department of National Defence and Canadian Armed Forces Code of Values and Ethics, which require everyone in the navy to uphold high ethical standards.
However, these standards don’t mean public officials are required to keep secret every document and decision of cabinet that cabinet wants kept secret. Everyone should question whether the information about the cabinet’s decisions that Norman shared with the company executive really was secret, and whether sharing that information should be included as evidence of his alleged breach of trust.
“Advice to cabinet” and “cabinet confidence” are two of the most widely abused secrecy loopholes under access to information laws. Many documents are rubber-stamped “Secret” by cabinet that the public has a clear right to see under these laws.
In this situation, letters from executives at Irving Shipbuilding and the Seaspan ULC to cabinet aren’t secret because they’re not government documents (in fact, lobbying activities concerning contracts are required to be disclosed under the federal Lobbying Act).
And the cabinet of Prime Minister Justin Trudeau may consider its decision to re-examine the contract with Chantier Davie a cabinet secret but that doesn’t mean anyone else, including the courts, have to agree. Some have argued that the reasons cabinet ministers give for making decisions must be kept secret so ministers can have a frank discussion. That’s debatable but even if we required open cabinet meetings, ministers would likely just not say anything at those meetings they think the public would not like to hear.
However, after a cabinet decision is made, why would it be kept secret? The only good reasons are to protect national security, an investigation into wrongdoing, a company’s proprietary information or a person’s private information (and, in some cases, to protect relations with another government). The federal access to information law allows cabinet decisions to be kept secret for any of these reasons.
None of these reasons apply in this situation. In fact, in the RCMP affidavit about Norman, Treasury Board Minister Scott Brison says that the disclosure of the cabinet’s decision to re-examine the contract “did an awful lot to limit our ability to do what we’d intended to do and that is more due diligence on this.”
That’s not a good or legal reason to keep a cabinet decision secret. True, when the decision was made public, Quebec politicians, the companies and their unions started lobbying cabinet not to cancel the contract. However, cabinet still had full power to re-examine the contract.
And it should have, given that the previous Conservative government ignored rules in handing out the sole-source contract. As a result, the public is likely paying more than it should for the ships.
Instead, cabinet rolled over because of political pressure and perhaps because they could be sued for breach of contract.
According to cabinet, when would it have been okay to disclose its decision to re-examine the contract?After it cancelled the contract and handed it to another company?
That’s the danger of excessive cabinet secrecy. It allows cabinet to make decisions without input from everyone who may be interested in the decision, to push its agenda without resistance because no one knows until it’s too late to resist.
So yes, hold public officials to account when they don’t loyally implement the legal decisions of elected politicians, and when they don’t uphold high ethical standards. But don’t require them to keep cabinet secrets except for good, legal reasons.
And, as the Liberals promised in the last election, close all the bad loopholes in federal laws that allow for excessive cabinet and government secrecy (and make the same changes to provincial, territorial and municipal laws).
The Liberal platform pledged (among other transparency promises), that “Government data and information should be open by default, in formats that are modern and easy to use. We will update the Access to Information Act to meet this standard,” and “We will ensure that access to information applies to the prime minister’s and ministers’ offices.”
By failing (so far) to make these and other open government changes, and by aggressively hunting down the source of leaks of cabinet advice and decisions, the Liberals are practising dishonest, secretive, unethical politics – as usual.
Canadians deserve better, especially from a government that promised better.
Duff Conacher is co-founder of Democracy Watch, Canada’s leading democratic reform organization.