Could a Canadian PM do what Trump seems to have done: Spill secrets to a hostile foreign power?
Tuesday, May 16, 2017 at 9:51AM
Craig Forcese in Chapter 10: Secrecy, pm, prerogative, secrecy, security of information act

As most people who would ever bother to read this blog know, the Washington Post reported last night that Donald Trump spilled a major classified bean in his (already) bizarre White House meeting with the Russian foreign minister and ambassador.  The information in question originated from an allied intelligence service, most likely in the Middle East.

Early indications suggest this was patented Trump braggadocio (“Oh, I have the best intelligence services. And Trump Tower makes the best taco bowels”).  But undisciplined disclosure is almost scarier than malevolent disclosure, and it will raise inevitable questions about whether allied sharing services can possibly hope for originator control with Trump in the White House.

Some in the Five Eyes may be feeling particularly righteous, given past US objections to disclosure of US origin material. (The British case of Binyam Mohamed being the poster child).  But such schadenfreude is not likely to be shared within the intelligence services. Stephanie Carvin does a good job identifying key policy issues.

In terms of legal implications, Lawfare (in its blog and emergency podcast) notes that there are few criminal law implications for Trump.  Basically, the US president owns the classification system as part of his constitutional executive powers, and therefore has lawful authority to waive it.

Thought Experiment: Prime Minister Trump

But as is my wont, I can’t help but transpose the US events onto a Canadian legal context, to perform a legal thought experiment: If a Canadian PM were to disclose top secret (and probably compartmentalized) information to a hostile foreign power, could he or she go to jail?

In truth, no one can say for certain, since this is so novel an issue. But speculation is terrifically fun and I am going to go with “yes”, for reasons that follow. (And thanks to the several people on twitter who bandied around thoughts with me on this issue.  In full disclosure, not all will agree with this analysis.)

Starting Point: Crimes

We will assume that the PM has access to this sort of sensitive information, with this degree of sensitivity. If he or she disclosed it, two statutes contain crimes that might be applicable: the Security of Information Act (SOIA) and the Criminal Code (CC).  The most likely provisions boil down to SOIA s.16 “communicating safeguarded information”, SOIA s.17 “communicating special operational information”, CC s.46(2)(b) “treason” and CC s.122 “breach of trust”.  (Other SOIA crimes limited to “persons permanently bound by secrecy” would be inapplicable, because the PM is not such a person.)

No Executive Immunity

In Canadian law, there is no executive branch immunity. That is, the PM is not above the law, and is subject to the regular criminal rules.  The PM, as an MP, does enjoy parliamentary privilege.  And parliamentary privilege should immunize statements made during parliamentary proceedings from being questioned anywhere outside of Parliament (for example, through a prosecution in court).  But that privilege is confined to official proceedings in, most likely, the House or committee of the House – indeed, it does not even reach statements made in the precinct of Parliament, but outside of formal proceedings.

In our hypothetical, the PM would be conversing with the representatives of a hostile foreign power in his or her executive office, and so parliamentary privilege is irrelevant.

“Lawful Authority”

The much thornier issue is whether the PM would have “lawful authority” to disclose (unilaterally) classified information in this setting.  The SOIA and treason offences apply only where the person acts without such “lawful authority”. 

Breach of trust is more difficult to describe.  Not every administrative error by a public official (a category in which the PM falls) is a breach of trust – in the Supreme Court’s words, it “must represent a ‘marked’ departure from the standards expected of an individual in the accused’s position of public trust.” In determining whether there is such serious misconduct, one takes into account “the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities” (citing with approval Shum Kwok Sher at paras. 53 and 54).

Would a PM have “lawful authority” to act in the manner proposed?

My answer is “no”.

“Lawful authority” is not a defined term, and so requires a further inquiry into the way information security is maintained by the Government of Canada.  Information classification is not governed directly by statute, but by Treasury Board policy. Originally, this policy derives from royal prerogative over the management of the public service, not displaced by the Public Service Employment Act. (This is a reasonable inference from the Supreme Court’s decision in Thomson).

Security of information was governed by a 1956 Privy Council Office document called “Security of Information in the Public Service of Canada”, while security clearances were governed by Cabinet Directive 35 (1963).  These instruments were replaced in 1987 by the “Security Policy of the Government of Canada”, issued by Treasury Board under authority of the Financial Administration Act (FAA).  

Treasury Board is a statutorily-constituted sub-committee of Cabinet whose responsibilities under s.7 of the FAA are to “act for the Queen’s Privy Council for Canada on all matters relating to … [among other things] (a) general administrative policy in the federal public administration”.

This is all a very complicated way of saying: government security classification policy has always been set by Cabinet, either directly or through the Treasury Board.

This is not one of those few instances where the PM him or herself has exercised the royal prerogative personally or where he or she enjoys a personal prerogative. At least I can find no indication that it has been.

Cabinet generally exercises prerogatives.  Sometimes individual ministers may exercise special aspects of the prerogative. And, it is sometimes said that the Prime Minister may personally exercise the prerogative, because head of government. As support for this, some authorities point to a slender statement by the Ontario Court of Appeal in Black, and the fact that in that case the PM gave direct advice to the Queen on the award of honours (See, e.g., discussion here at 13.)

But not all prerogatives are equal.  First, I am generally resistant to claims that the PM can exercise unilaterally prerogative powers typically exercised through the vehicle of Cabinet (technically, the Governor in Council). 

I am conscious that there is in the bowels of government likely some sort of trove of documents looking much like warehouse in the Raiders of the Lost Arc that might well prove me wrong.  But it is worth noting observations like the one from the Federal Court in Khadr v. Canada (Attorney General), suggesting that where Cabinet codifies the exercise of a prerogative (in that case in the Passport Order), it is for cabinet (and not an individual minister) to create any exceptions:

Having determined that the prerogative had not been exhausted or occupied by the Canadian Passport Order, the issue remains whether the Minister could exercise the prerogative given that an order in council governed the administration of passports. It seems logical that since Cabinet had devolved some aspects of the prerogative to the Passport Office under the Canadian Passport Order, only Cabinet could act to deal with exceptions to the Canadian Passport Order.

An obvious response to this is, “Yes, but the PM is a special minister”.  The PM is certainly special in being able to determine the Cabinet consensus, but I remain unpersuaded that in every instance, that specialness extends to unilateral exercise of the prerogative outside of Cabinet.

At any rate, all this is entirely academic in an entirely academic blog entry, for two reasons. First, whether or not the PM retained some sort of residual personal prerogative in this area, I think it has been usurped by statute. 

Parliament has expressly tasked the Treasury Board with establishing administrative policies, under the Financial Administration Act. It is the Treasury Board that is to “act for the Queen’s Privy Council for Canada” on such matters.  It has done precisely this in creating the government security policy. (I recognize there is a "may act" in there, suggesting that perhaps there is some residual authority in Privy Council as a whole, but that just puts us into a loop about whether in these circumstances, the PM can then exercise any residual authority.)

Botom line: there is a heck of a lot suggesting to me that the PM does not have autonomous power to determine security classifications.  That alone should decide the matter as to whether the PM has “lawful authority” to disclose.  My answer: no.

But there is a second wrinkle: The PM has access to this classified information because (and in consequence) of his or her membership in the Privy Council.  Being sworn into the Privy Council is the sine que non of being a minister.  (Note also that there is a reason why members of the Security Intelligence Review Committee are sworn in as privy councillors – as SIRC’s webpage notes “All of the Committee members must be Privy Councillors, which means that they have full access to highly classified information, a privilege which is not granted to most Parliamentarians”).

The privy councillor oath reads:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty's Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

[Emphasis added].

Leaking a secret revealed to the PM in his or her capacity as a Privy Councillor is, in my view, a breach of the oath.

That breach itself would vitiate any argument that the PM had “legal authority” within the meaning, e.g., of the SOIA.  And it would also constitute the egregious departure from standard practice, grounding a breach of trust charge.

Conclusion

All of which is to say that I do not believe the PM floats above the law in this area and can declassify on the fly without looking over his or her shoulder.  I may be totally wrong – this is one of those questions whose answer one only knows when a court tells you. 

But if I were PM and I wanted to spill a secret bean, I’d do it in Question Period to benefit from parliamentary privilege.  And boy, would that make the opposition parties happy.

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