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If federal government was open, Norman case wouldn’t be about disclosing secrets

The following op-ed, by Democracy Watch Co-founder Duff Conacher, was published in shorter, edited form on June 1, 2017 by Troy Media and on June 19, 2017 by the Hill Times.

In addressing the issues raised by the situation involving Vice-Admiral Mark Norman, some commentators, and the Trudeau Cabinet, are confusing the duty of loyalty and ethical behaviour that all federal public officials owe to the Canadian government with the much more limited duty to keep Cabinet secrets. While requiring loyalty to legal Cabinet decisions, and integrity, help ensure democratic government, the excessive secrecy the Liberals are now demanding (in contrast to their open government election promises) is undemocratically dangerous.

Based on the evidence that has been made public, Vice-Admiral Norman’s actions of communicating with an executive from the Federal Fleet Services company (sister company to Chantier Davie Canada Inc. shipyard), in what seems to be an attempt to help the executive thwart a possible Cabinet decision to cancel a contract with those companies, could cross the line as a breach of trust under the Criminal Code. Generally though, the courts have ruled in the past that, to be convicted of breach of trust, public officials must benefit personally or be trying to benefit personally from their actions. That does not seem to have been Norman’s intent, and no evidence has been disclosed that he did benefit personally.

Even if Vice-Admiral Norman is not prosecuted or convicted of breach of trust, he could still be found guilty of violating the Royal Canadian Navy Code of Conduct which, along with the Department of National Defence and Canadian Armed Forces Code of Values and Ethics, requires everyone in the navy to uphold high ethical standards. Helping one bidder on a contract win or keep the contract, in defiance of a legal Cabinet decision, would clearly violate rules in those codes (especially, as in this case, when the Cabinet decision is to re-examine the very questionable previous government’s decision to change contracting rules in order to hand out a sole-source contract to one company).

However, the duty of loyalty to legal Cabinet decisions, and the duty to uphold ethical standards, do not mean that any federal public official is 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 Vice-Admiral Norman shared with the Federal Fleet executive really was secret, and therefore whether sharing that information should be included as evidence of his alleged breach of trust.

It is well known in Ottawa, and provincial capitals, that “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.

For example, in this situation letters from executives at the Irving Shipbuilding company, and the Seaspan company, to the Cabinet are not secret because they are not government documents (in fact, lobbying activities concerning contracts are required to be disclosed under the federal Lobbying Act).

And the Trudeau Cabinet may consider its decision to re-examine the contract with Federal Fleet/Chantier Davie a Cabinet secret but that doesn’t mean anyone else, including the courts, have to agree.

Some commentators have argued that the reasons Cabinet ministers give for making decisions must be kept secret by public officials so that ministers can have a frank discussion amongst themselves. That is debatable but, in any case, even if we required open Cabinet meetings ministers would likely just not say anything at those meetings that they think the public would not like to hear (as we have seen during the very few, usually one-off, open Cabinet meetings that have been held by governments in Canada).

However, after a Cabinet decision is made, why would it be kept secret? The only good reasons are if it needs to be kept secret to protect national security, an investigation into wrongdoing, a company’s actually 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 good, legal reasons apply in this situation. In fact, in the RCMP affidavit about Vice-Admiral Norman, Treasury Board Minister Scott Brison is quoted as saying 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 the Trudeau Cabinet not to cancel the contract. However, Cabinet still had full power to re-examine the contract. And it should have given the Conservatives ignored rules in handing out the sole-source contract and, as a result, the public was likely paying more than it should for the ships. Instead, the Cabinet rolled over because of political pressure, and the possibility of being sued for breach of contract.

According to the Trudeau Cabinet, when would it have been ok 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, discretionary Cabinet secrecy. It allows Cabinet to make decisions without input from everyone who may be interested in the decision — to push its agenda forward without resistance because no one knows until it’s too late to resist.

So yes, hold public officials across the country to account when they do not loyally implement the legal decisions of elected politicians, and when they do not uphold high ethical standards, but don’t require them to keep Cabinet secrets except for good, legal reasons.

And, as the Trudeau Liberals promised in the last election, also 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 Trudeau Liberals are practising dishonest, secretive, unethical politics as usual. Canadians deserve better, especially from a government that promised better.

Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
[email protected]

Democracy Watch’s Open Government Campaign