Reports in the Globe & Mail detailing how the RCMP is investigating the possible obstruction of justice in the SNC-Lavalin scandal and how their efforts to get documents from the Trudeau government has been stymied by the Clerk of the Privy Council.

The Prime Minister could, at any time, waive cabinet confidentiality on the documents sought by the RCMP with a simple Order-in-Council. 

Except that would likely expose the Prime Minister to possible prosecution and certainly members of his staff and staff at the Privy Council.

There are a few parts to all of this.  Not the least of which is Section 39 of the Canada Evidence Act, which gives Cabinet members and the Clerk of the Privy Council authority to decide what is shielded by asserting cabinet confidentiality and what doesn’t.

If confidentiality is being asserted, the Clerk of the PCO has to file a Certificate of Confidentiality outlining specifically which documents are being claimed as subject to confidentiality without revealing the contents of the document. 

The legislation allows for this certificate to be challenged which would then be reviewed by a superior court. There is no indication the RCMP has done this or has considered this. 

In looking at the Act, the government claims almost absolute authority and nowhere is the “public interest” mentioned. 

The concept of cabinet confidentiality emanates from the Westminister system of Parliament which of course forms the basis for our law through common law, the British North America Act, the Constitution Act and latterly the Charter of Rights and Freedoms. 

Ostensibly it exists to allow members of cabinet to speak their minds at meetings, in memos and in dialogue without fear that their position could later be used against them. It is also meant to keep secret discussions that could affect national security. Oddly enough, covering the Prime Minister’s butt is not mentioned anywhere.

The RCMP has been looking into the SNC-Lavalin matter since the spring. We know this because former Attorney General Jody Wilson-Raybould has admitted she was interviewed by the RCMP in April.

I have substantial difficulty with the concept that any government could frustrate an RCMP criminal investigation with the claim of privilege. How are we as citizens supposed to have confidence in our government if they are never subject to investigation, especially when the allegations relate to corruption? 

To my knowledge, the right to cabinet confidentiality and the ability to decide what can and cannot be disclosed has only been tested once in the Supreme Court in the 2002 case of Babcock v. Canada. The SCC affirmed the right of the PCO to determine what is held confidential and only left a small window of opportunity for any PCO decision to be challenged in a superior court. But that was a matter of civil litigation, not a criminal investigation.

The Criminal Code of Canada is also very clear in the authority of the police to investigate crimes and lays out specific procedures for the police to further their investigations by using an Information to Obtain a search warrant. 

In an ITO, the police lay out the case they have at that point in time and requests the search warrant to allow them to obtain certain things they anticipate finding in their search which will further their investigation. Often times, the police will use language like “we have exhausted all other avenues of investigation” and that’s why the warrant is needed. 

What might happen if the Commissioner of the RCMP would assert the independence of the Force and instruct the investigators to write an ITO and apply to the Court of Queen’s Bench, a superior court, for a search warrant? 

What might then be the position of the Clerk of the PCO when the RCMP showed up to execute that warrant? If he refused to cooperate, under the Criminal Code he would be subject to arrest and the RCMP could force the issue.  Equally, the PCO could assert privilege under the Canada Evidence Act and request that the courts sort it out.  

However this matter sorts itself out, I doubt the Commissioner of the RCMP will assert herself. She seems little more than an affirmative action appointment and a sycophant of the Prime Minister. What she should do and what she will do are likely two separate things. 

And then there are the political ramifications of all of this. How will it all play out during an election campaign remains to be seen.

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