Canadian Legal Scholars Advance Debate on Cabinet Confidentiality

Yan Campagnolo of the University of Ottawa Faculty of Law and Vincent Kazmierski of Carleton University’s Department of Law and Legal Studies have co-authored a forthcoming article that scrutinizes the constitutional boundaries of cabinet secrecy under Canada’s Access to Information Act. Titled “Secret, Not Sacred: Constitutional Limitations on the Protection of Cabinet Confidences under the Access to Information Act,” the paper will appear in volume 71, issue 3 of the McGill Law Journal later this summer. The work builds directly on Campagnolo’s earlier scholarship, including his 2021 book Behind Closed Doors: The Law and Politics of Cabinet Secrecy published by UBC Press, and his 2017 McGill Law Journal article examining cabinet immunity as a legal black hole.

The authors presented key findings at a Canadian Bar Association session in May 2026, highlighting how federal officials have increasingly classified routine records as cabinet confidences in responses to access requests. Their analysis draws on three decades of data from 1990-91 to 2020-21, revealing a marked rise in such designations that the scholars argue stretches the protective regime beyond its intended purpose of safeguarding collective cabinet decision-making.

Background on Cabinet Secrecy in Canadian Governance

Cabinet confidentiality has long formed a cornerstone of Westminster-style parliamentary systems in Canada. It protects the frank exchange of views among ministers during collective decision-making, a principle recognized at common law and reinforced through statutes such as section 39 of the Canada Evidence Act and provisions in the Access to Information Act. Successive governments have defended the near-absolute nature of this protection, arguing that disclosure would undermine the candour essential to effective governance. The Supreme Court of Canada has upheld aspects of this framework in cases such as Babcock v. Canada (Attorney General), emphasizing the public interest in maintaining confidentiality for certain records.

Yet critics, including legal academics and transparency advocates, contend that the regime has evolved into an overly broad shield. Over-classification of documents as cabinet confidences can impede public accountability, particularly in an era of expanded digital record-keeping where emails and briefing notes routinely enter the cabinet orbit. The new paper situates these concerns within constitutional principles, including the rule of law, freedom of expression under section 2(b) of the Charter, and emerging judicial recognition of a right of access to government information.

Key Arguments in the Forthcoming McGill Law Journal Article

Campagnolo and Kazmierski contend that cabinet confidences are “secret, not sacred.” While acknowledging the legitimate need to protect core deliberative processes, they argue that the current statutory framework lacks sufficient constitutional safeguards against overbreadth. The paper examines how the Access to Information Act’s exemptions interact with constitutional norms, proposing that courts should play a more robust role in reviewing claims of confidentiality.

The authors emphasize procedural fairness in decision-making about disclosure. They highlight concerns that the identity of the certifying official—often a minister or the Clerk of the Privy Council—creates risks of perceived bias, echoing arguments Campagnolo advanced in his 2017 analysis of section 39. The new work extends this critique to the access-to-information context, urging mechanisms for independent review and clearer justification requirements when records are withheld.

Statistical evidence forms a central pillar of the argument. The paper documents a steady increase in the proportion of records withheld or redacted on cabinet-confidence grounds over the thirty-year period studied. This trend, the authors suggest, indicates systemic expansion of the exemption that may exceed what is strictly necessary to preserve cabinet solidarity.

Implications for Access to Information and Transparency

Canada’s Access to Information Act, administered by the Treasury Board of Canada Secretariat and subject to oversight by the Information Commissioner of Canada, aims to promote government openness. Exemptions for cabinet confidences are among the most frequently invoked, yet the paper suggests these exemptions require recalibration to align with evolving constitutional expectations. The scholars note that other Westminster jurisdictions, such as the United Kingdom and Australia, employ more calibrated approaches that allow limited judicial or independent scrutiny without compromising core cabinet functions.

The analysis carries practical consequences for requesters, journalists, researchers, and parliamentarians who rely on access requests to hold government accountable. Overly broad application of the exemption can obscure policy development processes, mandate letters, and the factual foundations of decisions, reducing the quality of public debate. The paper stops short of advocating wholesale abolition of the exemption, instead calling for targeted reforms that preserve necessary confidentiality while enhancing accountability.

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Scholarly Context and Institutional Affiliations

Yan Campagnolo serves as Vice-Dean and Associate Professor in the Common Law Section at the University of Ottawa Faculty of Law, one of Canada’s leading institutions for legal education and research. His prior work includes service at the Supreme Court of Canada and the Privy Council Office, lending practical insight to his academic analysis. Vincent Kazmierski is an associate professor in Carleton University’s Department of Law and Legal Studies, contributing expertise in constitutional and administrative law. Their collaboration exemplifies the cross-institutional research partnerships common in Canadian legal scholarship.

The McGill Law Journal, published by the Faculty of Law at McGill University, remains one of the country’s most respected peer-reviewed outlets for legal analysis. Its forthcoming issue will place the Campagnolo-Kazmierski paper alongside other contributions examining contemporary constitutional and administrative questions. Publication in this venue signals the work’s anticipated influence on legal practitioners, judges, and policymakers.

Connections to Legal Education and Research in Canada

The paper’s publication underscores the vital role of Canadian law faculties in shaping public policy discourse. Students and faculty at institutions such as the University of Ottawa, Carleton, McGill, and others engage regularly with questions of government transparency, administrative law, and constitutional interpretation. Research of this nature informs course offerings in administrative law, constitutional law, and access-to-information regimes, preparing the next generation of lawyers, judges, and public servants.

PhD-track scholars and early-career researchers in Canadian law programs often examine similar intersections of statute, constitution, and practice. The forthcoming article provides a timely case study of how empirical methods—here, longitudinal analysis of access-request data—can complement doctrinal analysis. Law libraries and research centres across the country, including those supported by the Social Sciences and Humanities Research Council, facilitate such work through grants and archival resources.

Stakeholder Perspectives and Ongoing Debate

Reactions to the paper’s presentation at the Canadian Bar Association session reflected the polarized nature of the topic. Government officials have historically defended expansive cabinet confidentiality as essential to effective collective responsibility. Transparency advocates and opposition parliamentarians, by contrast, have pressed for narrower exemptions and stronger oversight mechanisms. The authors’ measured approach—recognizing legitimate secrecy needs while identifying constitutional guardrails—offers a middle path that may resonate with both sides.

Former Clerk of the Privy Council Mel Cappe has contributed to related discussions, including co-authored commentary on mandate letters. Such interventions illustrate how academic work intersects with the perspectives of senior public servants who have navigated these rules in practice. The debate continues in parliamentary committees, before the Information Commissioner, and in judicial proceedings involving access disputes.

Future Outlook and Potential Reforms

The forthcoming McGill Law Journal article arrives at a moment when digital record-keeping and public expectations of openness are reshaping administrative practice. The authors’ call for constitutional limitations could influence legislative reviews of the Access to Information Act, potential amendments to certification processes, or future Supreme Court consideration of access rights. Law faculties may incorporate the findings into curricula and research agendas focused on democratic accountability.

Broader implications extend to public trust in institutions. Sustained over-classification risks eroding confidence that government decisions rest on transparent foundations. Conversely, calibrated protections can reinforce the legitimacy of cabinet processes. The paper’s emphasis on “secret, not sacred” provides a conceptual framework for balancing these imperatives as Canada’s legal and administrative landscape evolves.

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Practical Takeaways for Researchers and Practitioners

Legal researchers seeking primary sources can consult the Access to Information Act, Treasury Board policies on cabinet confidences, and decisions of the Information Commissioner. The authors’ statistical tables offer a model for empirical study of exemption usage. Practitioners advising clients on access requests may reference the forthcoming analysis when challenging broad confidentiality claims. University administrators and librarians supporting legal research will note the article’s contribution to the growing body of Canadian scholarship on government transparency.