When I was in graduate school, a nervous classmate began a presentation saying, “I'm going to begin by defining ‘definition,’” leading the instructor to comment, “It's going to be a very complete presentation.” Likewise, Behind Closed Doors is a very complete treatment of the arcane but important topic of access to cabinet documents in Canada, at least at the federal level. It offers only a few brief sojourns into provincial cabinet secrecy regimes and makes reference to practices and important cases in Britain, Australia and New Zealand.
Campagnolo accepts cabinet secrecy as a necessary evil underpinning good governance— indeed an indispensable element of responsible government. At the same time, “cabinet secrecy is essential [but] cannot be absolute” (11). And yet, to his dismay, Canada is not just intransigent about disclosing cabinet secrets but is notably more protective of them than the other Westminster jurisdictions he surveys, including several provinces. For Campagnolo this is unacceptable.
The book examines the law and the courts’ interpretation of the law in extensive detail, ending with recommendations for moving toward a more open regime. The analysis is well done —at least so far as a non-lawyer can determine—and for deep legal analysis is remarkably clearly written, though more than a little repetitive. However, readers of the Journal are unlikely to be drawn to Behind Closed Doors, since, the subtitle notwithstanding, it is far more about law than about politics. “Constitutional Conventions,” the first of four long substantive chapters, does deal extensively with the rationale and the politics of cabinet secrecy, and politics enters the discussion occasionally in subsequent chapters, but overall, the book is primarily concerned with case law and legal reasoning. On the political side, particularly interesting is Campangolo's explanation for the federal government's unusually restrictive regime surrounding release of cabinet documents. The author asserts this regime is the result of Prime Minister Pierre Trudeau's unhappy experience with the McDonald Commission on Royal Canadian Mounted Police (RCMP) activities, which meant Trudeau “did not trust the courts to properly handle sensitive political secrets” (227) and imposed an all-but-total prohibition, realized through provisions in the Canada Evidence Act and the Access to Information Act.
Campagnolo is far more confident of the courts’ ability to deal with “cabinet confidences” than was Trudeau. He argues persuasively that currently, judicial review of government claims to immunity when cabinet documents are sought, especially in litigation, is woefully inadequate, extending only procedural propriety (and offering the government a do-over if found lacking), ignoring substantive issues. The nub of the problem is that the judges are usually not even permitted to review the documents in question, whereas this is common in various other Westminster systems, including some provinces. For Campagnolo, the key question is “whether the interest of justice outweighs the interest of good government” (200). He doesn't offer a definitive answer—who could?—but he makes it clear that he believes the scales are tilted too far in the government's direction.
A useful distinction, which the author utilizes effectively, is the difference between “core” cabinet secrets, which include views expressed by ministers in the decision-making process, and “non-core” secrets, such as background information, procedural documents, draft legislation and the like, which do not reveal ministers’ views. The rationale for tight, long-term prohibition against openness is much less compelling for non-core documents, but they are generally no more available than those containing core secrets. In part, this prohibition is a function of Supreme Court of Canada (SCC) decisions that effectively blur the core/non-core distinction. Ironically, given his trust in the courts in matters of cabinet secrecy, he is sharply critical of certain SCC decisions, which he sees as just flat-out wrong and overly deferential to government.
Early on, Campagnolo notes that his book seeks to reconcile cabinet secrecy with the rule of law (17). This he does through application of a legal theory that sees the rule of law as “a culture of justification.” From this perspective, the prohibition against courts being able to review cabinet documents when government seeks immunity for them is simply unsupportable. Extended—very extended—analysis of cases and practices relating to section 39 of the Canada Evidence Act, which authorizes the restrictive regime, is brought to bear in arguing the need for greater openness.
Behind Closed Doors makes a strong case that the prevailing protections against the release of federal cabinet documents are, even accepting the basic imperative of cabinet secrecy, unnecessarily restrictive. The author's recommendations for reform, set out in very general terms in the conclusion, are definitely worth considering. However, those interested in cabinet processes, as opposed to legal analyses of cases and wording of statutes, will want to read the book selectively.
