PHOTO: Prime Minister Justin Trudeau's government has presided over a rise in the number of secret orders-in-council. (Justin Tang/The Canadian Press)
Prime Minister Justin Trudeau’s government has adopted 72 secret orders-in-council — hidden from Parliament and Canadians — since coming to office, CBC News has learned.
A review by CBC News of nearly 8,900 orders-in-council (OICs) — or cabinet decrees — adopted by the federal government shows the number of secret or unpublished OICs has been rising since Trudeau came to power in 2015.
The only outside indication that a secret OIC even exists is a missing number in the Privy Council’s orders-in-council database. OICs have a wide range of applications, from stopping a foreign company from buying a Canadian business to outlining who is authorized to give the order to shoot down a commercial airliner hijacked by terrorists.
More than half of the secret orders-in-council adopted by the Trudeau government have arrived since April 2020, a month after the COVID-19 pandemic began. Eleven have been adopted so far this year.
While the Liberals criticized the Conservatives in 2015 for the number of secret OICs they adopted, Trudeau’s government has adopted more than twice as many over its years in office.
The Trudeau government adopted five secret orders-in-council in 2016, seven in 2017, eight in 2018 and 12 in 2019. It adopted none in 2015. The number of new secret OICs spiked at 21 in 2020 before dropping to eight in 2021.
The four secret OICs adopted in 2015 were adopted by Prime Minister Stephen Harper’s government.
The government can cite a small number of reasons for exempting an order-in-council from publication — such as national security or military operations, or because the OIC in question is related to national security reviews of proposed foreign investments in Canadian companies.
Opposition critics say there can be legitimate reasons for adopting secret OICs — but they’re concerned by the large number of them adopted by the Trudeau government. They say they also fear that the government’s refusal to reveal anything about the secret OICs could fuel misinformation or conspiracy theories.
Some of the secret OICs were adopted under the Investment Canada Act. It allows the government to avoid publishing cabinet orders related to national security reviews of certain transactions, such as a foreign company’s purchase of a Canadian business.
Laurie Bouchard, spokesperson for Industry Minister François-Philippe Champagne, said 32 of the secret OICs adopted between November 2015 — when the Trudeau government came to power — and March 31, 2021 were related to the Investment Canada Act.
The government adopted 55 secret OICs during that time period.
Bouchard said the number of secret OICs specifically related to the Investment Canada Act is not yet available for the period of March 31, 2021 to the present. During that period, the government adopted 17 secret orders-in-council.
During a six-year period under former Prime Minister Stephen Harper, eight secret orders-in-council were introduced that were related to the Investment Canada Act, said Bouchard. During that period — April 1, 2009 to March 31, 2015 — the Harper government adopted 22 secret orders-in-council.
But the Investment Canada Act would only explain a portion of the secret OICs that have been adopted.
The Privy Council has refused to release at least two of the secret OICs adopted this year, citing a section of federal access to information law that allows the government to keep secret documents which, if revealed, “could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, or the detection, prevention or suppression of subversive or hostile activities.”
One of those two OICs was adopted between Jan. 28 and Feb. 1, 2022. The second was adopted on Feb. 18.
The first of those two OICs was adopted around the time the convoy protest began to occupy downtown Ottawa. The second was adopted as police began arresting protest leaders and were about to launch an operation to clear protesters from the streets.
That second secret OIC also appeared a few days before Russia invaded Ukraine on Feb. 24. COVID-19 was also continuing to spread at the time.
The Privy Council Office refused to reveal any details of the OICs or their subjects.
Four more secret orders-in-council were adopted around May 6 — the day before Trudeau’s surprise trip to Ukraine. The one OIC in that sequence that was published added Russian individuals and entities to Canada’s sanctions list.
The Prime Minister’s Office won’t say whether those OICs were related to the conflict in Ukraine.
The five remaining secret OICs of 2022 were adopted between March and May.
Beyond revealing that two orders-in-council were being kept secret under access to information law, the Privy Council refuses to explain the grounds used to justify keeping secret the other unpublished OICs, or to say whether any of the secret OICs are related to the COVID-19 pandemic or renewals of previous orders.
The Privy Council Office said in a media statement that it believes in transparency.
“The number of orders that either are, or are not, published in any given year is not a proxy measure for transparency of government,” PCO spokesperson Pierre-Alain Bujold said in the statement.
“That is because the legislative, socio-economic and national security context evolves and changes significantly year over year.”
Normally, orders-in-council are published on a Privy Council website where Canadians and parliamentarians can see them. But an exception can be made for OICs that meet a very narrow list of conditions that allow them to remain unpublished or secret.
Some cabinet ministers may not even know about them. While OICs must be signed by the Governor General, convention states that only four members of cabinet have to sign the documents first.
Former Privy Council officials say OICs are supposed to be kept secret only in rare circumstances because publicity is the only real check on their use.
In 2015, Privy Council officials said secret orders-in-council were being kept in a safe, separate from other OICs, and cabinet ministers were only being briefed on them in rooms that had no wireless access.
Privy Council officials now refuse to confirm whether those same security measures are still in place.
A review by CBC News of secret orders-in-council since 2002 found none adopted in 2002 or 2003 under then-prime minister Jean Chrétien, while three were adopted in 2004 and 2005 under then-prime minister Paul Martin.
That number began to rise under Prime Minister Stephen Harper, fuelled in part by provisions adopted in 2009 requiring that OICs stemming from national security reviews under the Investment Canada Act be left unpublished.
During its nine years in office, the Harper government adopted 29 secret orders-in-council.
Conservative foreign affairs critic Michael Chong said Trudeau promised a more open and accountable government.
“While unpublished orders-in-council are sometimes necessary, the number of unpublished orders-in-council under this government raises concerns,” he said. “It’s incumbent on the government to provide a more detailed explanation of why the number of unpublished orders-in-council [has] increased.”
NDP ethics critic Matthew Green questioned why Canada doesn’t have an arms-length, third party non-partisan review of orders-in-council.
“There is a growing propensity of this government to have everything be categorized as national security,” said Green.
Green Party Parliamentary Leader Elizabeth May said she was surprised by the number of secret OICs — particularly given the cooperation between the government and opposition parties to adopt emergency measures at the outset of the pandemic.
May said the government should give Canadians some indication of why an order-in-council has to be secret.
“I think they should provide a general descriptor if they’re not going to make an order-in-council public, say that this is a national security concern involving our use of the such-and-such act,” May said.
“But to have that many orders-in-council … without any indication as to what they were is not transparency.”
While the Trudeau government’s 72 secret orders-in-council remain cloaked in secrecy, the subjects of three of the Harper government’s secret OICs are known.
In 2017, the Department of National Defence accidentally released improperly redacted briefing records for the chief of defence staff to CBC News. It revealed that Order in Council 2010-0192, adopted between Feb. 11 and Feb. 16, 2010, was related to NORAD’s Operation Noble Eagle. It outlined who was authorized to give the order to shoot down a commercial airliner in the event of a terrorist air attack.
Order in Council 2010-1639, adopted sometime between Dec. 23 and 31, 2010, authorized the military to assist law enforcement agencies such as the RCMP in the event of “a more traditional hijacking scenario where a disgruntled individual may want to take out his aggressions on a company headquarters or specific person(s), or even the government.”
Order in Council 2015-1070 blocked a Chinese company, O-Net Communications, from buying the Montreal-area company ITF Technologies. O-Net filed for a judicial review in Federal Court, which granted the application. O-Net Communications now owns ITF Technologies.
Award-winning reporter Elizabeth Thompson covers Parliament Hill. A veteran of the Montreal Gazette, Sun Media and iPolitics, she currently works with the CBC’s Ottawa bureau, specializing in investigative reporting and data journalism. She can be reached at: firstname.lastname@example.org.