Prime Minister Stephen Harper’s government has made more than two dozen secret cabinet decisions, hiding any trace of them from Parliament and Canadians, iPolitics has learned.

A review by iPolitics of more than 21,000 orders-in-council published on the Privy Council’s website since 2004 found that 25 OICs adopted by the Harper government are missing. Only three OICs adopted by the previous Liberal government between 2004 and 2005 aren’t in the database.

Eight orders-in-council issued since last September are missing.

Privy Council officials confirm that the missing OICs are not published, saying they deal with areas such as national security, defence or commercially sensitive information.

The decisions are so secret that they are kept in a safe, separate from other orders-in-council — and cabinet ministers are only briefed on them in rooms without wireless devices.

Beyond the number of OICs missing from the database, Parliament and the public have been given no indication these orders exist. The Harper cabinet hasn’t indicated the nature of these decisions or the reasons for keeping them secret.

David Elder, a longtime public servant, said 25 secret orders-in-council is a cause for concern — but it’s difficult to know what to be worried about, since the government has revealed so little about the nature of the secret OICs.

“I’m not one that likes to think of conspiracy theories but this is frightening,” said Elder, who oversaw the Privy Council’s Machinery of Government section from 1996 to 2003/04 and who now works with Queen’s University’s School of Policy Studies.

Elder said he only knows of one occasion when cabinet decided to adopt an order-in-council while also ordering that it not be published. That was the decision by Joe Clark’s Progressive Conservative government in 1980 to issue Canadian passports to a group of American diplomats it planned to help smuggle out of Iran.

“I cannot recall, in all of the years that I was in machinery, in all of the years that I had contact with the orders-in-council people or with the legislation people, that there were orders that were kept secret.”

Assistant clerk of the Privy Council Jurica Capkun, who oversees the handling of orders-in-council, said “less than a dozen” OICs each year are kept secret.

“It is really rare that we do not post OICs on our website,” said Capkun. “There are only a handful per year.”

But what may have been rare under previous governments appears to have become much more common under the Harper government.

In some years — like 2008, 2009 and 2012 — no orders-in-council were withheld from publication. The number of secret OICs jumped to seven in 2010, six in 2014 and four in 2013.

Since forming a majority government in 2011, 14 orders-in-council have been held back from publication.

Orders-in-council, also known as governor-in-council decisions, are cabinet decisions that can be made without having to go to Parliament. They can cover anything from minor appointments, regulatory changes and housekeeping items to major decisions such as authorizing the signing of a treaty, weapons sales and questions of national defence or national security.

By convention, four ministers have to sign the documents for an order-in-council before it is brought to the governor general for a signature and put into effect, said Karl Salgo, a former Privy Council official who now works with the Institute on Governance.

While cabinet typically would be made aware of major decisions, there is no legal requirement for the entire cabinet to be consulted on an order-in-council or to vote on it. Privy Council officials sometimes do a ‘walk around’ to cabinet ministers to get four signatures.

Under the Statutory Instruments Act, a government can choose not to publish an order-in-council if its “publication could reasonably be expected to be injurious” to federal-provincial affairs, 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.”

Statutory Instruments Act – Regulations 20 The Governor in Council may make regulations, (a) exempting any proposed regulation or class of regulation from the application of subsection 3(1) where that regulation or class of regulation would, if it were made, be exempted from the application of subsection 5(1) or 11(1) as a regulation or class of regulation described in subparagraph (c)(ii); (b) exempting any class of regulation from the application of subsection 5(1) where, in the opinion of the Governor in Council, the registration thereof is not reasonably practicable due to the number of regulations of that class; (c) subject to any other Act of Parliament, exempting from the application of subsection11(1) (i) any class of regulation that is exempted from the application of subsection 5(1), (ii) any regulation or class of regulation where the Governor in Council is satisfied that the regulation or class of regulation affects or is likely to affect only a limited number of persons and that reasonable steps have been or will be taken for the purpose of bringing the purport thereof to the notice of those persons affected or likely to be affected by it, or (iii) any regulation or class of regulation where the Governor in Council is satisfied that the regulation or class of regulation is such that publication could reasonably be expected to be injurious to (A) the conduct by the Government of Canada of federal-provincial affairs, or (B) the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the detection, prevention or suppression of subversive or hostile activities, as defined in that subsection; (d) precluding the inspection of and the obtaining of copies of (i) any regulation or class of regulation that has been exempted from the application of subsection 11(1) as a regulation described in subparagraph (c)(iii), (ii) any statutory instrument or class of statutory instrument other than a regulation, where the Governor in Council is satisfied that the inspection thereof and the obtaining of copies thereof could reasonably be expected to have the injurious effect described in clause (c)(iii)(A) or (B), or (iii) any statutory instrument or class of statutory instrument the inspection of which or the making of copies of which is not otherwise provided for by law, in respect of which the Governor in Council is satisfied that the inspection or making of copies thereof as provided for by this Act would, if it were not precluded by any regulation made under this section, result or be likely to result in injustice or undue hardship to any person or body affected thereby or in serious and unwarranted detriment to any such person or body in the matter or conduct of his or its affairs; (e) prescribing the manner in which a regulation-making authority shall transmit copies of a regulation to the Clerk of the Privy Council; (f) prescribing the form and manner in which any statutory instrument shall be registered and the form and manner in which and the period of time for which records of any statutory instrument shall be maintained; (g) authorizing the Clerk of the Privy Council to direct or authorize publication in the Canada Gazette of any statutory instrument or other document, the publication of which, in the opinion of the Clerk of the Privy Council, is in the public interest; (h) respecting the form and manner in which the Canada Gazette shall be published and prescribing the classes of documents that may be published therein; (i) requiring any regulation-making authority to forward to the Clerk of the Privy Council such information relating to any regulations made by it that are exempted from the application of subsection 11(1) as will enable the Clerk of the Privy Council to carry out the obligation imposed on him by subsection 14(1); (j) respecting the form and manner in which any index of statutory instruments or any consolidation of regulations shall be prepared and published; (k) prescribing the persons or classes of persons to whom copies of any consolidation of regulations may be delivered without charge and prescribing the charge that shall be paid by any other person for a copy of any such consolidation; (l) prescribing the fee that shall be paid by any person for any inspection of a statutory instrument or for obtaining a copy thereof or the manner in which any such fee shall be determined; and (m) prescribing any matter or thing that by this Act is to be prescribed.

Capkun said OICs containing sensitive commercial information can also be kept secret.

In at least one case, a government order-in-council is being kept secret on the grounds of national security even though one of the parties involved has made the existence of the order public. In July 2015, O-Net communications issued a press release revealing that the Canadian government had adopted an OIC to block its planned purchase of the Montreal-area company ITF Technologies, formerly known as Avensys Inc, and force it to divest its investment.

While many details of an OIC can remain obscure, certain aspects — the fact that the OIC exists, some indication of the subject, the name of the minister who proposed the action and the date it was adopted — are supposed to be published within days, unless it is specified that it must be kept it secret.

Mel Cappe, former clerk of the Privy Council, defends the use of secrecy for effective decision-making but said preventing the publication of any information about an order-in-council is very much the exception to the rule. He said the publication of orders-in-council is one of the checks Canadians have on the power of cabinet.

“These issues about publication are fundamental to the principle of open government, of democracy.”

Donald Savoie, a professor at the Université de Moncton and an expert on Canada’s federal government, said orders-in-council are supposed to be published unless there is a very good reason to keep them secret. In the absence of more information about the orders-in-council that have been adopted, he said, it’s hard to tell whether the secrecy is justified.

“A cabinet decision, you can go to war,” said Savoie. “Does it matter? Yes, it matters. Should they be made public? In my view absolutely, unless (the need for secrecy) can be clearly demonstrated.”

Conservative party spokesman Stephen Lecce directed all questions about the secret OICs to the Privy Council Office and the Prime Minister’s Office.

A spokeswoman for the PMO referred questions to Raymond Rivet, spokesperson for the Privy Council, who defended the government’s handling of the secret OIC’s.

“Public servants in PCO are responsible for administering the SIA and deciding if approved OICs should be made public,” he said, adding that the OIC’s being kept secret don’t fall under the Statutory Instruments Act.

Additional reporting by Kirsten Smith

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