Poilievre's secrecy challenge

Will he fix cabinet secrecy rules as prime minister?

Pierre Poilievre faces a litmus test over cabinet secrecy this year, should he become prime minister of Canada, as polls since 2022 have consistently suggested.

In the Conservative opposition, Poilievre has clashed with Prime Minister Justin Trudeau over the withholding of cabinet documents from Parliament for its probes of foreign interference, the WE charity controversy, and the SNC-Lavalin affair.

Poilievre suggested cabinet secrecy was being used as a “pretext to prevent the truth from coming out.”

But once in power, Poilievre will himself have to parry demands for Conservative cabinet secrets – and the first test will come sooner rather than later.

In 2019, the Trudeau government amended the Access to Information Act to require mandate letters – that is, the to-do lists prime ministers assign to their new ministers – to be made public within 30 days of their creation.

Mandate letters have been issued by prime ministers since the 1970s. Poilievre himself received one from his boss, Prime Minister Stephen Harper, when he became minister of state for democratic reform in 2013.

Harper revised his mandate letters each year, but as cabinet documents, they were kept confidential, a secrecy convention respected by all Canadian prime ministers. That is, until Justin Trudeau’s majority Liberal government in 2015.

Soon after winning, Trudeau chose to make all his mandate letters public, to burnish his open-and-transparent brand. And in 2017, through Bill C-58, he went further, legally compelling their release within a month of their creation as part of a larger proactive-disclosure regime.

Poilievre as an MP voted against Bill C-58 as did all other Conservative members. The party’s spokesperson on the measure, Peter Kent, said the bill’s proposed amendments to the Access to Information Act were so weak as to be “beyond redemption.” Nevertheless, the Liberal majority ensured the bill became law in 2019.

And so Poilievre, who opposed the measure, would be legally compelled to disclose his own mandate letters within 30 days of issuing them to new Conservative ministers.

Mandate letters are bona fide cabinet secrets. The Supreme Court of Canada made that clear last year. The Ontario Conservative government of Doug Ford had declined to release a set of mandate letters to a CBC reporter who filed a freedom-of-information request. After a long and tortuous fight, the high court finally settled the matter in favour of secrecy.

A Poilievre government might choose to release sanitized versions of mandate letters, or might abandon them altogether as a tool of governance. Nothing in Canada’s Constitution requires them, and the document type dates back only about 50 years. A new prime minister could also ignore the law. The Access to Information Act is silent on penalties for failure to release.

But mandate-letter disclosure, in the final analysis, is a minor crack in Canada’s fortress of cabinet confidentiality, which is the most secretive of any Westminster-type government in the world. Australia, New Zealand and the United Kingdom are much less restrictive.

Poilievre’s repeated objections to the Liberal government’s secrecy over cabinet documents have a legitimacy, in that there’s no independent arbiter to determine which documents genuinely require protection and which do not. The government itself decides what to declare a cabinet confidence. It’s a system vulnerable to political abuse.

As users of the Access to Information Act know only too well, even the Information Commissioner of Canada cannot inspect cabinet material in order to make an independent assessment of what should be in and what should be out.

Access-to-info requesters are routinely rebuffed by officials invoking Section 69 of the Act. The Mack-truck section protects an breathtaking range of so-called cabinet confidences. And once a document is stamped secret, there’s little recourse.

So the real test of Poilievre’s commitment to openness and transparency will be whether as prime minister he overhauls the cabinet-secrecy regime that he found so repugnant while in opposition.

Legal scholar and author Yan Campagnolo, who once worked in the Privy Council Office, has set out a road map for just such a project. Campagnolo has called the current secrecy conventions “unconstitutional” and a “black hole,” and offers practical solutions in his 2021 book Behind Closed Doors: The Law and Politics of Cabinet Secrecy.

During Poilievre’s time in the Harper government, he showed faint interest in relaxing cabinet secrecy. His briefing book as minister of democratic reform was kept tightly under wraps as a cabinet confidence, for example, when an access-to-information request for it was shut down with Section 69.

Hopefully, Poilievre’s stint on the Opposition benches has clarified how a too-restrictive cabinet secrecy regime can erode public confidence and “prevent the truth from coming out.” He should know better than most that it needs to be fixed.