Canada (Information Commissioner) v. Canada (Minister of National Defence)

Canada (Information Commissioner) v. Canada (Minister of National Defence)
Collection
Supreme Court Judgments
Date
2011-05-13
Neutral citation
2011 SCC 25
Report
[2011] 2 SCR 306
Case number
33296, 33297, 33299, 33300
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Federal Court of Appeal
Subjects
Access to information
Notes
SCC Case Information: 33299, 33296, 33297, 33300
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306
Date: 20110513
Dockets: 33300, 33299, 33296, 33297
Between:
Information Commissioner of Canada
Appellant
and
Minister of National Defence
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Prime Minister of Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Minister of Transport Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Commissioner of the Royal Canadian Mounted Police
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 75)
Concurring Reasons :
(paras. 76 to 112)
Charron J. (McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)
LeBel J.
Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306
Information Commissioner of Canada Appellant
v.
Minister of National Defence Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Prime Minister of Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Minister of Transport Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Commissioner of the Royal Canadian Mounted Police Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
Indexed as: Canada (Information Commissioner) v. Canada (Minister of National Defence)
2011 SCC 25
File No.: 33300, 33299, 33296, 33297.
2010: October 7; 2011: May 13.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Access to information — Access to records — Request for Ministers’ records located in ministerial offices — Whether records “under control of government institution” as provided in legislation — Access to Information Act, R.S.C. 1985, c. A‑1, ss. 3 , 4(1) .
Access to information — Exemptions — Privacy — Personal information — Request for Prime Minister’s agenda — Whether agenda constitutes “personal information” as defined in legislation — If so, whether agenda should nonetheless be disclosed because Prime Minister is “officer” of government institution — Access to Information Act, R.S.C. 1985, c. A‑1, s. 19(1) — Privacy Act, R.S.C. 1985, c. P‑21, s. 3 .
These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records, requested almost a decade ago, under the Access to Information Act . The first three applications concern refusals to disclose records located within the offices of then Prime Minister Chrétien, then Minister of Defence Eggleton, and then Minister of Transport Collenette, respectively. The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the RCMP and PCO. The applications judge refused disclosure on the first three applications, but ordered it on the fourth. The Federal Court of Appeal overturned his decision on the fourth application only.
Held: The appeals should be dismissed.
Per McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.: Any refusal to disclose requested documents is subject to independent review by the courts on a standard of correctness. In turn, the standard of appellate review of the applications judge’s decision on questions of statutory interpretation is also correctness. However, the standard of review of his decision on whether the requested documents were in fact under the control of the government institution is one of deference, provided the decision is not premised on a wrong legal principle and absent palpable and overriding error.
On the first three applications, the applications judge’s reasons demonstrate that he conducted a full analysis of the statutes guided by well‑established principles of statutory interpretation. At the conclusion of his analysis, the applications judge held that the words in s. 4(1) of the Access to Information Act mean that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. The Federal Court of Appeal rightly held that the applications judge’s analysis contains no error. The meaning of “government institution” is clear. No contextual consideration warrants the Court interpreting Parliament to have intended that the definition of “government institution” include ministerial offices.
The question then becomes whether the requested records held within the respective ministerial offices are nonetheless “under the control” of their related government institutions within the meaning of s. 4(1) of the Act. The word “control” is an undefined term in the statute. As the applications judge made clear, the word must be given a broad and liberal meaning in order to create a meaningful right of access to government information. While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry. Rather, this is the point at which a two‑step inquiry commences. Step one acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. If the record requested relates to a departmental matter, however, the inquiry into control continues. Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. There is no presumption of inaccessibility for records in a minister’s office. Further, this test does not lead to the wholesale hiding of records in ministerial offices. Rather, it is crafted to answer the concern. In addition, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct an individual’s right to access.
Applying this test to the material before him, the applications judge concluded that none of the requested records was in the control of a government institution. The conclusions he reached on the issue of control were open to him on the record and entitled to deference.
On the fourth application, it is agreed that the Prime Minister’s agendas in the possession of the RCMP and the PCO were under the control of a “government institution”. Records under the control of these institutions must be disclosed, subject to certain statutory exemptions. Section 19(1) of the Access to Information Act prohibits the head of a government institution from releasing any record that contains personal information as defined in s. 3 of the Privacy Act . However, s. 3(j) creates an exception by allowing for the disclosure of personal information where such information pertains to an individual who is or was an officer or employee of a government institution and where the information relates to the position or function of the individual. The applications judge held that the Prime Minister was an officer of PCO. In doing so, he relied upon the definitions of public officer found in the Financial Administration Act and the Interpretation Act . The Federal Court of Appeal rightly held that the applications judge erred in relying upon these definitions. It would be inconsistent with Parliament’s intention to interpret the Privacy Act in a way that would include the Prime Minister as an officer of a government institution. Had Parliament intended the Prime Minister to be treated as an “officer” of the PCO pursuant to the Privacy Act , it would have said so expressly. Thus, the relevant portions of the Prime Minister’s agenda under the control of the RCMP and the PCO fall outside the scope of the access to information regime.
Per LeBel J.: Ministers’ offices are not listed in Schedule I of the Act, and accordingly they should not be considered “government institutions”. Nonetheless, this conclusion cannot be the basis for an implied exception for political records. The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head of the government institution must facilitate access to it on the basis of the two‑part control test as stated in the reasons of Charron J. If the record holder is the Minister, the fact that his or her office is not part of the government institution he or she oversees may weigh in the balance. The reality that Ministers wear many hats must also be taken into account. A Minister is a member of Cabinet who is accountable to Parliament for the administration of a government department, but is usually also a Member of Parliament in addition to being a member of a political party for which he or she performs various functions and, finally, a private person. It is conceivable that many records will not fall neatly into one category or another. The head of a government institution is responsible for determining whether such hybrid documents should be disclosed. The first step in the assessment is to consider whether the records fall within the scope of the Act. If they do, the head must then perform the second step of the assessment process: to determine whether the records fall under any of the exemptions provided for in the Act. Depending on which exemption applies, the head may or may not have the discretion to disclose the document.
A presumption that a Minister’s records are beyond the scope of the Act would upset the balance between the head’s discretionary powers and the Commissioner’s powers of investigation. Such an interpretation of the Act would effectively leave the head of a government institution with the final say as to whether a given document was under the institution’s control and would run counter to the purpose of the Act, according to which decisions on the disclosure of government information must be reviewed independently. This is crucial to the intended balance between access to information and good governance.
In the circumstances in which the records at issue in the first three applications were created and managed, a government institution would not have a reasonable expectation of obtaining them. These documents were therefore not under the control of a government institution. As for the records in the possession of the RCMP and PCO, even though they were under the control of a government institution, the heads of those institutions had an obligation to refuse to disclose them.
Cases Cited
By Charron J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Tele‑Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305; Francis v. Baker, [1999] 3 S.C.R. 250; Bristol‑Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; Privacy Commissioner (Can.) v. Canada Labour Relations Board (2000), 257 N.R. 66; Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440, 204 F.T.R. 313; Canada (Attorney General) v. Information Commissioner (Can.), 2001 FCA 25, 268 N.R. 328; Canada Post Corp. v. Canada (Minister of Public Works), 2004 FCA 286, 328 N.R. 98; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
By LeBel J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Rubin v. Canada (Clerk of the Privy Council), [1996] 1 S.C.R. 6; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1, ss. 2 , 3 “government institution”, “head”, 4, 6, 7 to 9, 10, 13 to 26, 30(3), 35, 36, 37, 41, 42, 48, 49, 73.
Canadian Charter of Rights and Freedoms, s. 2 .
Federal Accountability Act, S.C. 2006, c. 9 .
Financial Administration Act, R.S.C. 1985, c. F‑11, s. 2 “public officer”.
Interpretation Act, R.S.C. 1985, c. I‑21, ss. 2 “public officer”, 3(1), 24, 35.
Library and Archives of Canada Act, S.C. 2004, c. 11, s. 2 “government record”, “ministerial record”.
Privacy Act, R.S.C. 1985, c. P‑21, s. 3 “head”, “personal information” (j).
Authors Cited
Canadian Oxford Dictionary. Edited by Katherine Barber. Toronto: Oxford University Press, 2001, “control”.
Drapeau, Michel William, and Marc‑Aurèle Racicot. Federal Access to Information and Privacy Legislation Annotated 2011. Toronto: Carswell, 2010.
Levine, Gregory James. The Law of Government Ethics: Federal, Ontario and British Columbia. Aurora, Ont.: Canada Law Book, 2007.
McEldowney, John F. “Accountability and Governance: Managing Change and Transparency in Democratic Government” (2008), 1 J.P.P.L. 203.
APPEALS from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 175, 393 N.R. 51, [2009] F.C.J. No. 692 (QL), 2009 CarswellNat 1521, affirming in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeals dismissed.
APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 181, 393 N.R. 54, 310 D.L.R. (4th) 748, [2009] F.C.J. No. 693 (QL), 2009 CarswellNat 1523, reversing in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeal dismissed.
Jessica R. Orkin, Marlys A. Edwardh, Laurence Kearley and Diane Therrien, for the appellant.
Christopher Rupar, Jeffrey G. Johnston and Mandy Moore, for the respondents.
Ryder Gilliland, for the intervener the Canadian Civil Liberties Association.
Paul Schabas, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and the Canadian Association of Journalists.
The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
Charron J. —
1. Overview
[1] These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records to a person who requested them under the Access to Information Act, R.S.C. 1985, c. A‑1 . The records, requested almost a decade ago, generally consist of agendas, notes and emails relating to the activities of then-Prime Minister Jean Chrétien, then‑Minister of National Defence Art Eggleton, and then-Minister of Transport David Collenette.
[2] The first three applications concern refusals to disclose records located within the offices of the Prime Minister, the Minister of National Defence, and the Minister of Transport, respectively. Each record holder, jointly called the “Government” in these appeals, takes the position that his office is not subject to the Access to Information Act . The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the Royal Canadian Mounted Police (“RCMP”) and the Privy Council Office (“PCO”). The record holders in this application agree that they are subject to the Act; they argue, however, that the information contained in the requested records is exempt from disclosure under s. 19(1) of the Access to Information Act , as it constitutes “personal information” within the meaning of s. 3 of the Privacy Act, R.S.C. 1985, c. P-21 .
[3] The requester has the right, under s. 4 of the Access to Information Act , to be given access to “any record under the control of a government institution”. On the first three applications, there is no issue that, by definition, “government institution” includes the PCO, the Department of National Defence, and the Department of Transport. The question is whether each government institution includes the office of the Minister who presides over it. In other words: Is the Prime Minister’s office (“PMO”) part of the PCO? Is the office of the Minister of National Defence part of the Department of National Defence? Is the office of the Minister of Transport part of the Department of Transport?
[4] Following a detailed analysis, Kelen J. of the Federal Court of Canada answered no to each question, holding that the respective entities were separate (2008 FC 766, [2009] 2 F.C.R. 86). In his view, the words of the statute read in their ordinary sense, in context, and harmoniously with the scheme of the Act and the intention of Parliament made this clear. Expert evidence on the functioning of government also supported this interpretation. He concluded that “no contextual consideration could warrant the Court interpreting Parliament to have intended the PMO to be part of the PCO for the purposes of the Act. The same is true with respect to ministers’ offices not being part of the respective government institutions” (para. 77). In a brief oral judgment, Sharlow J.A., speaking for the Federal Court of Appeal, upheld Kelen J.’s interpretation of the statute on this point (2009 FCA 175, 393 N.R. 51 (“Decision 1”)), and again in 2009 FCA 181, 393 N.R. 54 (“Decision 2”).
[5] As the ministerial entities were held to be separate, a second question arose: Are the records requested, despite being physically located in the respective offices of the Prime Minister, the Minister of National Defence, or the Minister of Transport, nonetheless “under the control” of the related government institution within the meaning of s. 4 of the Access to Information Act ?
[6] After surveying the jurisprudence, Kelen J. concluded that no single factor is determinative of whether a record is under the control of a government institution. However, the relevant factors could usefully be distilled into a two-part test that asks: (1) whether the contents of the document relate to a departmental matter; and (2) whether the government institution could reasonably expect to obtain a copy of the document upon request. If both questions are answered in the affirmative, the document is under the control of the government institution. Kelen J. considered the contents of the records and the circumstances in which they were created, and concluded that none of the records requested was under the control of the related government institution. The Federal Court of Appeal agreed with the control test proposed by Kelen J. It also upheld his decision regarding the requested records, stating that it was open to him to come to this conclusion “by drawing reasonable inferences from the evidence before him, as he did” (Decision 1, at para. 9).
[7] Thus, the answers provided by the courts below on the meaning of “government institution” and “control” effectively disposed of the first three applications in favour of the Government.
[8] In the fourth application, there is no dispute that the RCMP and the PCO are government institutions and that, subject to any exemption under the Access to Information Act , records under their control must be disclosed. While a number of exemptions were at issue in first instance, the question on this appeal is whether the records requested consist of “personal information” within the meaning of s. 19(1) of the Access to Information Act . This provision prohibits the head of a government institution from disclosing “any record . . . that contains personal information as defined in section 3 of the Privacy Act ”. Under this provision, “personal information” “means information about an identifiable individual that is recorded in any form”.
[9] The parties agree that the Prime Minister’s agenda falls within the general definition of “personal information”. However, s. 3 “personal information” (j) of the Privacy Act creates an exception by excluding from the scope of protection such information which pertains to “an individual who is or was an officer or employee of a government institution” and the information “relates to the position or functions of the individual”. The exception seemingly reflects the view that federal officers or employees are entitled to less protection when the information requested relates to their position or function within the government. It is this exception that is arguably at play in the fourth application: the disclosure issue turns on the question of whether the Prime Minister is an “officer” of the PCO within the meaning of s. 3 “personal information” (j) of the Privacy Act .
[10] Kelen J. held that the Prime Minister was an “officer” of the PCO. In a separate judgment, the Federal Court of Appeal overturned his decision, finding that the conclusion reached in the related appeals about the separate nature of the PMO from the PCO governed here as well. Sharlow J.A. held that it would be “inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase ‘officer of a government institution’” in s. 3 (Decision 2, at para. 8).
[11] The Commissioner appeals from the dismissal of each application. She urges the Court to hold that, as “heads” presiding over departments, the Prime Minister and the Ministers are part of these “government institutions” within the meaning of the Access to Information Act , when exercising departmental functions. Similarly, she argues that the Prime Minister is an “officer” of the PCO. Alternatively, if ministerial offices are held to be separate entities, the Commissioner argues that any record relating to a departmental matter is presumptively under the “control” of the government institution over which the Minister presides, regardless of its creation or location within the ministerial office. Thus, any such record must be disclosed, unless it is specifically exempt under the Act.
[12] While the Commissioner raises some specific issues regarding the interpretation in the courts below in support of her position, her arguments are grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. I note at the outset that these principles unquestionably form part of the context in which the Access to Information Act operates. The position advanced by the Commissioner also reflects a policy of democratic governance which Parliament could choose to adopt. However, as Kelen J. aptly noted in the introduction to his judgment:
The question for the Court is not whether the documents should be accessible to the public under Canada’s “freedom to information” law, but whether the documents are currently accessible to the public under Canada’s existing law. The Court does not legislate or change the law; it interprets the existing law (para. 3).
[13] Much as the courts below have concluded, it is my view that the interpretation advanced by the Commissioner on the meaning of “government institution”, “control” and “officer” cannot be sustained under the existing statutes at issue. As the Government rightly argues, such interpretation would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament.
[14] I would dismiss the appeals.
2. The Legislative Scheme
[15] As this Court recently stated, “[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin C.J. and Abella J., at para. 1). These general principles are reflected in the federal access regime under the Access to Information Act . The purpose of the statute is expressly stated as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
[16] Thus, the statute expressly recognizes that information in the hands of government institutions “should be available to the public”, but the right to access it is subject to “necessary exceptions”. Before discussing the provisions at issue, I will briefly describe the legislative scheme.
[17] The right to “be given access to any record under the control of a government institution” is provided under s. 4(1) . This broad right of access is expressly subject to other provisions of the Access to Information Act , but supersedes “any other Act of Parliament”. What constitutes a “government institution” for the purposes of the statute is key to these appeals. The definition is set out in s. 3 and will be discussed more fully below.
[18] The process for accessing government information begins when a member of the public makes a request in writing for a record to a government institution (s. 6). The head of the government institution who receives a request must give written notice to the person who has requested the records as to whether or not access will be given in whole or in part within a reasonable time limit (ss. 7 to 9). Where the government institution refuses to give access to the records requested, it is required to provide notice to the requester that the records do not exist, or to expressly state the exemption it is relying upon in refusing to provide access to the records (ss. 10(1) to (3)). Further, the government institution must inform the requester of his or her “right to make a complaint to the Information Commissioner about the refusal” (s. 10(1)).
[19] If the requester elects to exercise this right and makes a complaint, the Commissioner is entitled to commence an investigation if she is “satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act” (s. 30(3)). Once the Commissioner commences an investigation, the Access to Information Act grants her significant investigatory powers (s. 36 ). If the Commissioner concludes that the complaint is well founded, a report is sent to the head of the government institution containing the findings of the investigation and any recommendations the Commissioner considers appropriate; the report may also include a request to be notified of any action taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (s. 37(1) ).
[20] If the government institution elects not to comply with the Commissioner’s recommendations, the individual requesting the record may apply for judicial review pursuant to s. 41 of the Access to Information Act . The Commissioner may also apply for judicial review of the government’s decision with the consent of the individual who initially requested the records (s. 42 ). The latter is what occurred here. The Government refused to disclose the information, and the requester complained to the Commissioner. Following her investigation, the Commissioner found the complaints to be well founded and made recommendations accordingly. The recommendations were not implemented by the Government, and the Commissioner brought these four applications for judicial review.
3. Judicial Review in the Courts Below
[21] The four applications for judicial review were combined in one hearing before the Federal Court. Before reviewing the relevant material, Kelen J. determined the appropriate standard of review in accordance with the principles set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Under Dunsmuir, courts may usefully first inquire whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be given to a particular category of questions. Second, where the first inquiry proves unfruitful, courts proceed to analyze the factors that make it possible to identify the proper standard of review (para. 62). Kelen J. ended the inquiry at the first step, holding that this Court’s decision in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 (“RCMP”), determined in a satisfactory manner that the questions raised in these four applications should be reviewed on a “correctness” standard (para. 36).
[22] The standard for judicial review of refusals by government institutions to disclose any requested documents under the Access to Information Act is not at issue in these appeals. Kelen J. rightly concluded that this Court authoritatively determined the matter in RCMP. Determining the appropriate standard of review requires courts to discern the intention of the legislature. Of particular note here is the fact that Parliament expressly states in s. 2(1) that one of the purposes of the Access to Information Act is to ensure that “decisions on the disclosure of government information should be reviewed independently of government”. Moreover, the burden is put on the government to demonstrate on judicial review that it is authorized to refuse to disclose the records that were requested (s. 48 ). If the court concludes that the head of the institution does not have the legal authority to refuse to disclose the relevant records, the court may substitute its own decision and order the disclosure of the documents, subject to any conditions it may elect to impose (s. 49 ).
[23] In turn, Kelen J.’s decision is subject to appellate review in accordance with the principles set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9 and 31-36. His decision on questions of statutory interpretation is reviewable on a standard of correctness. His decision on whether the requested documents were in fact under the control of the government institution, provided it is not premised on a wrong legal principle and absent palpable and overriding error, is entitled to deference. Although not expressly stated, it is apparent from reading both judgments in the Federal Court of Appeal below that Sharlow J.A. reviewed Kelen J.’s decision in accordance with the proper standard of appellate review. I will review the decisions under appeal using the same approach.
4. Analysis
4.1 Issue 1: Is the Office of the Prime Minister, or a Minister, a “Government Institution” Within the Meaning of the Access to Information Act ?
[24] Subsection 4(1) of the Access to Information Act reads as follows:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act ,
has a right to and shall, on request, be given access to any record under the control of a government institution.
[25] Under s. 3 of the Act:
“government institution” means
(a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and
(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act ;
[26] Schedule I sets out a list of entities that are government institutions for the purposes of the Access to Information Act . This list includes the PCO, the Department of National Defence, the Department of Transport, and the RCMP. However, the PMO, the office of the Minister of National Defence and the office of the Minister of Transport are not expressly listed in Schedule I. The term “government institution” is similarly defined under the Privacy Act . The question becomes whether Parliament intended to implicitly include ministerial offices within the Access to Information Act .
[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. In addition to this general roadmap, a number of specific rules of construction may serve as useful guideposts on the court’s interpretative journey. Kelen J. instructed himself accordingly (paras. 43-49). He then conducted the following analysis:
- First, Kelen J. considered evidence from political scientists about how government actually works to determine the ordinary meaning of the term “government institution” according to the experts. He held that this evidence demonstrated that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible (paras. 50-52).
- Second, he noted that pursuant to s. 3 of the statute, the Minister is the “head” of his or her department. This fact supported the argument that the Ministers’ offices and the PMO are part of their respective departments. However, he found that the PMO and the Ministers also have many other functions unrelated to the respective departments for which they are responsible (paras. 53-56).
- Third, he considered Hansard debates from 1981, which made it clear that Parliament intended that the Access to Information Act apply to information, in any form, held by specified government institutions. While the Commissioner agrees that Parliament did not intend the Act to apply to political documents, no exemption or exclusion for such political records is provided for in the Act. Kelen J. therefore reasoned that an interpretation of “government institution” that included the PMO and offices of the Ministers would dramatically extend the right of access. Parliament would not have intended such a “dramatic result” without express wording to that effect (paras. 57-60).
- Fourth, following the enactment of the Access to Information Act , the Information Commissioner’s 1988-1989 Report to Parliament indicated that Ministers’ offices were not subject to the provisions of the Act. The Commissioner adopted the same view in 1991, and again in 1997. These original interpretations confirm that the office of the Information Commissioner itself understood the intent of Parliament was not to include the PMO or a Minister’s office in the government institutions listed in Schedule I of the Act (paras. 61-65).
- Fifth, since the time the Commissioner publicly urged Parliament to amend the legislation to clarify that the PMO and ministerial offices are subject to the Act, Parliament amended the Act several times, including recent amendments as part of the 2006 Federal Accountability Act, S.C. 2006, c. 9 , and has not chosen to make this amendment. While Parliament’s intention may not always be inferred from legislative silence, in this case, the silence is clear and constitutes relevant evidence of legislative intent: Tele-Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305, at para. 42 (paras. 66-67).
- Sixth, the Latin maxim of statutory interpretation expressio unius est exclusio alterius (“to express one thing is to exclude another”) supports the Government’s view. If Parliament had intended to include the PMO and Ministers’ offices in Schedule I, it would have referred to them expressly (para. 68).
- Seventh, the evidence at trial demonstrated that there have been many Ministers without a portfolio since Confederation. If the Access to Information Act was intended to apply to the offices of Ministers, the Act would not apply to a Minister without a portfolio because he or she would not have a corresponding “government institution” set out in Schedule I. Such a result is absurd (para. 69).
- Eighth, the internal structure of the Act also provides insight on this question. Sections 21(1) (a), (b), (2) (b) and 26 of the Access to Information Act demonstrate that Parliament distinguished between a “government institution” and “a minister of the Crown”. When drafting legislation, Parliament is assumed to have used words pr