1 Const. F. 1 (1989-1990)

handle is hein.journals/consfo1 and id is 1 raw text is: Volume 1, Number 1                    Edmonton, Alberta

AUDITOR GENERAL LOSES BATITLE AGAINST FEDERAL CABINET
David Schneiderman*

Auditor General v. Minister of Energy. Mines and Resources
The tension between public accountability and political
secrecy has not slackened as result of a recent Supreme
Court of Canada decision denying the Auditor General of
Canada access to confidential federal Cabinet documents.
For close to seven years, Auditor General Kenneth Dye has
been seeking access to material considered by Cabinet
regarding the $1.7 million purchase of Petrofina by Petro-
Canada in 1981. In the absence of specific authority in the
legislation to compel the production of confidential Cabinet
documents, the Supreme Court of Canada would not
consider Mr. Dye's request.
The Auditor General is charged with the responsibility of
auditing the government's finances. He is also responsible for
determining whether money had been expended with due
regard to economy or efficiency'. In order to determine
whether sufficient regard was paid to economy and efficiency
in the purchase of Petrofina, the Auditor General wished to
review the material that the Trudeau Cabinet had relied
upon in authorizing Petrofina's purchase by Petro-Canada.
These requests were mostly denied by Petro-Canada and
successive  Federal Governments, both   Liberal and
Conservative.
To accede to this request, the Government argued, would be
to ignore the principle that Cabinet deliberations remain
confidential. The principle operates so as to make Cabinet
speak in one collective voice, through the Government of the
day.  Moreover, argued the Government, the Auditor
General had no business second-guessing political decisions
that had been duly authorized by Parliament, namely the
appropriation of public funds to Petro-Canada in order to
purchase Petrofina.
In the face of these denials, the Auditor General commenced
litigation in the Federal Court, arguing that the Cabinet was
obliged by law to disclose the documents. The Auditor
General Act, he argued, required compliance, even by
Cabinet, with a request for the production of documents.

The Government, in response, filed a certificate under the
Canada Evidence Act certifying that the documents sought
were confidential Cabinet documents. The intended effect
of the certificate was to preclude the Court from considering
whether the documents were, in fact, confidential Cabinet
documents and whether, in fact, any harm to Cabinet would
flow from their disclosure to the Auditor General.
Chief Justice Jerome of the Federal Court, Trial Division,
agreed with the Auditor General's arguments and ordered
disclosure, notwithstanding the filing of the Canada Evidence
Act certificate. This decision was reversed on appeal to the
Federal Court of Appeal. Mr. Justice Heald, one of the
Federal Court of Appeal judges in the majority, held that the
effect of the lower court's order would be to allow the
Auditor General to audit the political process. On further
appeal to the Supreme Court of Canada, the appeal was
dismissed. In the Supreme Court's view, the statutory
authority to inspect and audit Parliament's books did not
entitle the Auditor General to enforce that authority in the
courts.
(Continued on Page 2)

II

Centrem dmi61ude

CONTENTS
Auditor General ..................... 1
The Nature of Equality ................ 3
AGTv. CNCP .....................5
Nelles v. The Queen  ..................  7
Black v. The Queen  ..................  9
The Person's Case  ................... 11

II

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October 1989

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