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

Canada (Information Commissioner) v. Canada (National Defence)
Court (s) Database
Federal Court Decisions
Date
2008-06-19
Neutral citation
2008 FC 766
File numbers
T-1209-05, T-1210-05, T-1211-05, T-210-05
Notes
Reported Decision
Decision Content
Date: 20080619
Dockets: T-210-05
T-1209-05
T-1210-05
T-1211-05
Citation: 2008 FC 766
Ottawa, Ontario, June 19, 2008
PRESENT: The Honourable Mr. Justice Kelen
Docket: T-210-05
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
THE MINISTER OF NATIONAL DEFENCE
Respondent
Docket: T-1209-05
AND BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
THE PRIME MINISTER OF CANADA
Respondent
T-1210-05
AND BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
Respondent
T-1211-05
AND BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
THE MINISTER OF TRANSPORT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Does the public have the right to examine the Prime Minister’s appointment book? Does the public have the right to examine the hand-written notes of a Cabinet Minister’s Executive Assistant with respect to a departmental matter?
[2] This case involves four applications for judicial review filed by the Information Commissioner of Canada (the Commissioner) pursuant to section 42 of the Access to Information Act, R.S.C. 1985, c. A-1 (the Access Act or the Act). The applications concern whether records located within the Prime Minister’s Office, the Office of the Minister of National Defence, the Office of the Minister of Transport, and the Royal Canadian Mounted Police are subject to disclosure under the Act. The documents in question include the daily agenda books of the former Prime Minister, agendas and documents originating from meetings involving the former Minister of National Defence, and the itinerary and meeting schedules of the former Minister of Transport.
[3] 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.
TABLE OF CONTENTS
Paragraph
I. FACTS................................................................................................................................... 4
II. ISSUES................................................................................................................................. 32
III. RELEVANT LEGISLATION............................................................................................... 33
IV. STANDARD OF REVIEW................................................................................................... 34
V. BURDEN OF PROOF.......................................................................................................... 39
VI. ANALYSIS.......................................................................................................................... 41
Issue No. 1: Are the Prime Minister’s Office, the Office of the Minister of Transport, and the Office of the Minister of National Defence “government institutions” under subsection 4(1) and Schedule I of the Access Act?............................................................................. 41
Paragraph
Issue No. 2: What constitutes a record “under the control of a government institution” as stated in subsection 4(1) of the Act?.................................................................................. 78
Issue No. 3: What is the meaning and scope of the following exemptions under the Act?......... 101
VII. APPLYING THE LAW TO THE FACTS OF EACH APPLICATION.............................. 127
1) Minister of National Defence (Docket T-210-05)............................................................ 127
2) Prime Minister (Docket T-1209-05)................................................................................ 149
3) Commissioner of the RCMP (Docket T-1210-05)........................................................... 179
4) Minister of Transport (Docket T-1211-05)...................................................................... 188
VIII. GENERAL CONCLUSIONS OF THE COURT................................................................ 211
IX. LEGAL COSTS.................................................................................................................. 212
JUDGMENT.......................................................................................................................... Page 95
I. FACTS
[4] The facts with respect to each application follow. The records at issue have been underlined for ease of reference.
1. Minister of National Defence (Docket T-210-05)
[5] On October 29, 1999, an access to information request was made to the Department of National Defence (the DND) for “the minutes or documents produced from the M5 management meetings for 1999.” The term M5 was used to describe the informal meetings among former Minister of National Defence, Art Eggleton (the Minister), senior exempt staff from the Minister’s office, the Deputy Minister of Defence, and the Chief of the Defence Staff.
[6] The DND’s initial response was that a search failed to uncover any documents related to the request. On February 26, 2000, the requester complained to the Commissioner, stating in part that “personally I find it very hard to believe that no records whatsoever are produced from these management meetings.” Thereafter, the Commissioner commenced an investigation as required under section 30 of the Act.
[7] As a result of the Commissioner’s investigation, 1413 pages of records were identified as relevant to the initial request. Of those 1413 pages, 765 pages were found to be located within the DND itself, and outside the Minister’s office. Accordingly, these records were processed and disclosed subject to any applicable exemptions and exclusions as identified in the Act.
[8] The remaining 648 pages of records, which have become the subject of this application, pertain to the M5 meetings and were located within the physical confines of the Minister’s office. These records include:
1. 185 pages of notes regarding the M5 meetings extracted from the notebooks of members of the Minister’s exempt staff;
2. 342 pages of e-mail correspondence containing approximately 539 exchanges. Of these, approximately 101 e-mails are exchanges exclusively between members of the Minister’s exempt staff, while approximately 438 are exchanges between exempt staff and non-exempt staff in the Minister’s office or exchanges forwarded or copied to non-exempt staff;
3. 82 pages of meeting agendas listing the items to be addressed at the M5 meetings; and
4. 39 pages of miscellaneous documents, including memoranda and briefing notes for the Minister and the other attendees of the M5 meetings.
[9] After formally inviting the Minister to make representations as to why portions of the records should be withheld, the Commissioner found the access complaint to be well-founded – i.e., the Commissioner found that the records at issue were “within the control of a government institution” as required under section 4 of the Act – and recommended that the records be released to the requester, save for the portions exempted under the Act or otherwise excluded as Cabinet confidences.
[10] By letter dated November 15, 2000, the DND advised that it would not abide by the Commissioner’s recommendation on the basis of its legal position that the records at issue were not “under the control of a government institution” and, therefore, not subject to the Act. In response, and with the consent of the requester, the Commissioner commenced this application for judicial review in accordance with section 42 of the Act.
2. Prime Minister (Docket T-1209-05)
[11] On June 28, 1999, the Privy Council Office (the PCO) received six access requests for the daily agenda books of the former Prime Minister, the Right Honourable Jean Chrétien (the PM). The requests, taken together, cover the period between January 1994 and June 25, 1999.
[12] On July 13, 1999, the PCO advised the requester that, with respect to five of the requests, there were no records that were under the control of the PCO. With respect to the sixth request, the requester was advised on August 11, 1999 that based on subsection 10(2) of the Act, the PCO neither confirmed nor denied the existence of any records relating to the subject matter of the request and, should such records exist, they would be exempt as personal information under section 19 of the Act.
[13] On August 24, 1999, the requester lodged a complaint with the Commissioner, whereupon an investigation was commenced as required under section 30 of the Act.
[14] During the course of the Commissioner’s investigation, 2006 pages of the PM’s daily agendas were found to be responsive to the request. Of these, 2002 pages were located within the Prime Minister’s Office (the PMO) itself. The remaining four pages of records, which were responsive to one of the requests, were located in the office of the Executive Assistant to the Clerk of the PCO. Those records included the PM’s agenda for July 23, 1999, and weekly copies of the agenda covering the period between May 23 and June 12, 1999.
[15] Hard copies of the agendas were shared with senior officials employed within the PMO. Until approximately the fall of 1999, it was the practice of the PMO to fax a copy of the next day’s agenda to the Clerk of the PCO. It was understood that this copy was for the sole information of the Clerk and his Executive Assistant. In addition, a copy of the agenda showing only the locations to be visited by the PM was made available to the Royal Canadian Mounted Police (the RCMP).
[16] The practice of providing the RCMP with copies of the PM’s agenda was discontinued in December 2001. Thereafter, the PMO continued to fax a timetable indicating departure times and destinations of the PM’s intended travel in Ottawa, but included therein a directive to “please read and destroy.”
[17] The respondent acknowledges that some portions or pages of the records at issue were found in government institutions, specifically within the PCO and the RCMP. However, it is the respondent’s position that to the extent that those copies are “under the control” of a government institution, they are subject to exemptions and exclusions in the Act and are not to be released to the requester.
[18] Upon completing his investigation, the Commissioner determined that the complaint was well-founded and recommended that the records at issue be released, save for portions validly withheld under the Act’s exemptions and exclusions. The PCO responded that it would not adopt the Commissioner’s recommendations and maintained that the records warrant exemption in their entirety based on section 17, which relates to the safety of individuals; that the records contained personal information pursuant to subsection 19(1); that the records were excluded as Cabinet confidences under section 69; and that severance under section 25 was not possible. In response, and with the requester’s consent, the within application for judicial review was commenced pursuant to section 42 of the Act.
3. Commissioner of the RCMP (Docket T-1210-05)
[19] On November 14, 2000, the RCMP received a request “for all copies of the Prime Minister’s daily agendas provided to the Royal Canadian Mounted Police by the Prime Minister’s Office, from Jan 1, 1997 to the present.” By letter dated December 7, 2000, the RCMP responded that it had conducted a search of its records, that it did not receive copies of the PM’s daily agenda, and that such information was held by the PMO.
[20] On December 19, 2000, the requester complained to the Commissioner that information provided in related proceedings before this Court confirmed that the RCMP routinely received copies of the PM’s daily agenda. During the Commissioner’s subsequent investigation, 386 pages of records, entitled “Agenda du Premier Ministre,” were found to be located at the RCMP in the branch known as the “PM’s Protection Detail.”
[21] In a letter dated April 4, 2002, the RCMP revised its response to the requester. While the RCMP acknowledged having located the records, it stated that they were denying access to them based on the exemptions contained in sections 17 and 19 of the Act, which deal with security concerns and personal information, respectively. In addition, the RCMP also stated that portions of the records were being excluded under subsection 69(1) of the Act, as they contained Cabinet confidences. By letter dated April 12, 2002, the requester made a further complaint to the Commissioner on the basis that it was improbable that the entirety of the information contained in the records located in the PM’s Protection Detail would fall under sections 17, 19(1), and 69(1) of the Act.
[22] A second “Summary of Complaint” was provided to the RCMP on May 31, 2002. The RCMP Commissioner responded by letter dated July 8, 2002, stating that the refusal to disclose the agendas was based on security concerns for the PM and his security detail. The agendas provide clear and distinct patterns of the PM’s daily departures from his residence, arrivals at Parliament Hill, and other personal habits, such that the information, if disclosed, would provide invaluable information to any individual intending to harm the PM. The Commissioner responded on July 26, 2002, stating that the representations made on behalf of the RCMP were insufficient to discharge the burden by which access to records under the Act can be denied and that, as a result, the Commissioner’s investigation would continue.
[23] On May 3, 2005, the Commissioner concluded that the requester’s complaint was well-founded and recommended that portions of the requested records be disclosed. The RCMP Commissioner, on May 28, 2005, responded that the RCMP maintained its position and therefore would not comply the Commissioner’s recommendations. As a result, and with the consent of the requester, the Commissioner commenced the within application for judicial review pursuant to section 42 of the Act.
4. Minister of Transport (Docket T-1211-05)
[24] On November 3, 1999, an access to information request was made to the Department of Transport (the DOT) for a copy of all of the Minister of Transport’s (the Minister’s) itinerary and/or meeting schedules for the period from June 1 to November 5, 1999. After consideration, the DOT provided an initial response to the requester on December 22, 1999, stating: “No records exist in Transport Canada’s files which respond to your request. It should be noted, however, that the Minister’s itinerary/meeting schedules are prepared and maintained by his political staff, and are not considered departmental records.”
[25] On February 1, 2000, the requester complained to the Commissioner, stating in part that the schedules prepared for the Minister “regarding the department are records of the department” and failure to disclose such records is a “circumvention” of the Act. Thereafter, the Commissioner commenced an investigation as required under section 30.
[26] As a result of the Commissioner’s investigation, 46 pages of records were identified as relevant to the initial request. Each page of records contained the Minister’s agenda for a one week period during the relevant timeframe. Of those 46 pages, 23 pages were found to be archived in electronic form within the Minister’s office.
[27] The remaining 23 pages of records, entitled “Agenda sent to the Deputy Minister for the period of May 30, 1999 to November 6, 1999,” consisted of abridged versions of the pages described above, and were archived in electronic form in the Minister’s office, having at one point been provided to the Deputy Minister’s office for administration of the DOT.
[28] During the investigation, the Commissioner carefully examined the content of the records in question. Upon doing so, the Commissioner concluded that the agendas related to matters falling within the Minister’s responsibilities vis à vis the DOT, and were therefore under the control of a “government institution” as defined in the Act.
[29] After formally inviting the Minister to make representations as to why the records should be withheld, the Commissioner found that the access complaint was well-founded and recommended that the records be released to the requester. Further, the Commissioner also considered the DOT’s claims to exemptions under the Act, but ultimately disagreed with a number of the exemptions claimed.
[30] In a letter dated March 12, 2005, the DOT advised the Commissioner that it would not abide by his request, maintaining the same legal position as taken by the DND; namely that the records at issue were not in the control of the DOT and were, accordingly, not subject to the Act.
[31] After receiving the DOT’s letter, the Commissioner, with the consent of the requester, commenced this application for judicial review in accordance with section 42 of the Act.
II. ISSUES
[32] In deciding whether the records at issue are subject to disclosure under the Access Act, there are three legal issues to be considered by the Court:
1. Are the Prime Minister’s Office, the Office of the Minister of Transport, and the Office of the Minister of National Defence “government institutions” under subsection 4(1) and Schedule I of the Access Act;
2. What constitutes a record “under the control of a government institution” as stated in subsection 4(1) of the Act; and
3. What is the meaning and scope of the following exemptions under the Act:
i. the “personal information” exemption under section 19;
ii. the “advice or recommendations” and “account of consultations or deliberations” exemptions under paragraphs 21(1)(a) and (b); and
iii. the exclusions under section 69 of the Act and section 39 of the Canada Evidence Act, which relate to confidences of the Queen’s Privy Council.
The Court’s determination of these issues will then be applied to the evidence in each individual application to determine whether the records at issue are subject to disclosure under the Access Act.
III. RELEVANT LEGISLATION
[33] The legislation relevant to these applications is as follows:
1. Access to Information Act, R.S.C. 1985, c. A-1 (the Access Act or the Act);
2. National Defence Act, R.S.C. 1985, c. N-5;
3. Department of Transport Act, R.S.C. 1985, c. T-18;
4. Federal Accountability Act, S.C. 2006, c. 9;
5. Library and Archives of Canada Act, S.C. 2004, c. 11;
6. Privacy Act, R.S.C. 1985, c. P-21;
7. Financial Administration Act, R.S.C. 1985, c. F-11;
8. Interpretation Act, R.S.C. 1985, c. I-21; and
9. Canada Evidence Act, R.S.C. 1985, c. C-5.
The relevant provisions have been attached to these Reasons as Appendix “A.” However a limited part of the provisions have also been incorporated into the text of these Reasons for ease of reference.
IV. STANDARD OF REVIEW
[34] In assessing the appropriate standard to apply to the respondents’ refusal to follow the Commissioner’s recommendations, I am guided by the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL). In that case, the Supreme Court reconsidered the number and definitions to be given to the various standards of review, as well as the analytical process employed to determine the appropriate standard in a given situation. As a result of the Court’s decision, it is clear that the standard of patent unreasonableness has now been eliminated, and that reviewing courts must focus on only two standards, those of reasonableness and correctness.
[35] In Dunsmuir, the Court held that the process of judicial review involves two steps. As Justices Bastarache and Lebel stated at paragraph 62:
¶ 62 In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of [deference] to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
[36] In the case at bar, the parties agree that the appropriate standard of review to apply to the respondents’ refusal to disclose the relevant records is that of correctness. In support, the parties cite the decision of the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 (RCMP). In that case, the Court considered the appropriate standard of review to apply to a decision of the Commissioner of the RCMP to not disclose information relating to four officers on the ground that it was personal information, and therefore exempt from disclosure pursuant to subsection 19(1) of the Act. In that case, after conducting a standard of review analysis (formerly called a pragmatic and functional analysis), the Court held that the RCMP Commissioner’s decision should be reviewed on a standard of correctness. This jurisprudence has determined in a satisfactory manner that the Court should review the issues in these four applications on a “correctness” standard of review.
[37] Accordingly, having been guided by the standard of review analysis mandated by the Supreme Court of Canada in Dunsmuir, above, and the relevant jurisprudence, I conclude that:
1. the issue of whether the Prime Minister’s Office and other Ministerial offices fall within the meaning of a “government institution” shall be reviewed on a standard of correctness;
2. the meaning of “under the control of a government institution” shall be reviewed on a standard of correctness;
3. the issues of whether a record falls within the meaning of one of the Act’s exemptions and exclusions shall be reviewed on a standard of correctness; and
4. whether the records at issue are subject to disclosure under the Access Act shall be reviewed on a standard of correctness.
[38] In reviewing the respondents’ refusals on a standard of correctness, it is the responsibility of the Court to determine through its own analysis whether such a decision was justified or whether the documents requested should have been disclosed in accordance with the Commissioner’s recommendations. As the Court held at paragraph 50 of Dunsmuir:
¶ 50 … When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
V. BURDEN OF PROOF
[39] On judicial review, section 48 of the Act provides that the head of a government institution bears the burden of establishing that an access request was denied in accordance with law:
48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
48. Dans les procédures découlant des recours prévus aux articles 41 ou 42, la charge d’établir le bien-fondé du refus de communication totale ou partielle d’un document incombe à l’institution fédérale concernée.
[40] The onus created by this section was recognized by the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, where Mr. Justice La Forest stated at paragraph 90:
¶ 90 Section 48 of the Access to Information Act, however, places the onus on the government to show that it is authorized to refuse to disclose a record. …
Accordingly, in the review at bar the respondents must satisfy the Court, on the balance of probabilities, that the decision to refuse to disclose the relevant records was correct.
VI. ANALYSIS
Issue No. 1: Are the Prime Minister’s Office, the Office of the Minister of Transport, and the Office of the Minister of National Defence “government institutions” under subsection 4(1) and Schedule I of the Access Act?
[41] Subsection 4(1) of the Act provides for a right of access “to any record under the control of a government institution.” What constitutes a “government institution” is defined in section 3 of the Act as meaning:
1. any department listed in Schedule I;
2. any ministry of state of the Government of Canada listed in Schedule I; or
3. any body or office listed in Schedule I.
Subsection 4(1) reads:
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.
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l’accès aux documents relevant d’une institution fédérale et peuvent se les faire communiquer sur demande :
a) les citoyens canadiens;
b) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés.
Schedule I provides for an exhaustive list of the entities that are to be viewed as “government institutions” for the purposes of the Act. In relation to the case at bar, this includes the PCO, the DND, the DOT, and the RCMP.
[42] It is readily apparent from reading Schedule I that the PMO and the Offices of the Ministers of National Defence and Transport are not expressly listed therein. The question then arises whether these Offices were implicitly intended by Parliament to be included as “parts” of the government institutions listed, namely:
1. is the PMO intended to be included as a part of the PCO;
2. is the Office of the Minister of National Defence intended to be included as a part of the DND; and
3. is the Office of the Minister of Transport intended to be included as a part of the DOT?
The Court must apply the principles of statutory interpretation to answer these questions.
Principles of statutory interpretation
[43] Madam Justice Eleanor Dawson in Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431, 255 F.T.R. 56 (Attorney General) decided 25 applications for judicial review relating to the conduct of investigations by the Commissioner concerning the requests to the PCO seeking access to the PM’s daily agenda books, the request made to the DND for all records of the M5 meetings involving the Minister of National Defence, and the request to the DOT for the Minister of Transport’s itinerary and meeting schedules. In deciding these applications, Justice Dawson set out the legislative context of the Act and the applicable principles of statutory interpretation.
[44] Justice Dawson held that the proper approach requires the Court to attribute a meaning to the Act that “best accords with both the text and the context of the provision.” She stated at paragraph 18:
¶ 18 … the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.
[45] The Act is to be interpreted in a purposive and liberal manner. Justice Dawson noted at paragraph 20 that the Act has been characterized as a “quasi-constitutional right of access,” a factor for interpreting the Act in that it recognizes the “special purpose” of the legislation. I agree with this analysis.
[46] More recently, the Supreme Court of Canada provided further guidance on interpreting statutes in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601. For the Court, Chief Justice McLachlin and Justice Major held at paragraph 10:
¶ 10 It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.
[Emphasis added.]
[47] In addition to the general guidance provided by the Supreme Court on statutory interpretation, the Court is guided by the following rules of statutory construction:
1. the presumption against tautology provides that Parliament avoids superfluous or meaningless words: Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 73;
2. courts must avoid altering the word choice selected by Parliament in drafting legislation, particularly where the constitutional validity of legislation is not at issue, as is the case here: R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735 at para. 55;
3. there is a presumption of consistent expression. That is, within a statute the same words have the same meaning and different words have different meanings: R. v. Zeolkowski, [1989] 1 S.C.R. 1378 at p. 1387. The inference to be made from this proposition is that where a different form of expression is used, a different meaning is intended: Jabel Image Concepts Inc. v. Canada (2000), 257 N.R. 193 at para. 12 (F.C.A.). Additionally, as stated by Professor Ruth Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths Canada Ltd., 2002) at p. 165: “The presumption of consistent expression applies not only within statutes but across statutes as well, especially statutes or provisions dealing with the same subject”;
4. the Supreme Court has provided that it is a basic principle of statutory interpretation “that the court should not accept an interpretation which requires the insertion of extra wording where there is another acceptable interpretation which does not require any additional wording.” Legislative silence in a statutory scheme with respect to particular issue implies that Parliament did not intend to legislate on that issue: Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94 at para. 15; and
5. the latin maxim of statutory interpretation expression unius est exclusion alterius: to express one thing is to exclude another. This widespread and important rule of interpretation is also called “the implied exclusion rule.”
[48] The legislative context of the Act is to provide a right of access to information in records “under the control of a government institution,” and that government information should be available to the public subject only to necessary exceptions.
[49] In Dagg, above, Mr. Justice La Forest, speaking for the Supreme Court, held at paragraphs 61 and 63:
¶ 61 The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. As Professor Donald C. Rowat explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480:
Parliament and the public cannot hope to call the Government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.
See also: Canadian Bar Association, Freedom of Information in Canada: A Model Bill (1979), at p. 6.
[...]
¶ 63 Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to “any record under the control of a government institution” (s. 4(1)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.
(a) The ordinary meaning according to the experts
[50] The evidence tendered from experts in government machinery, including Mr. Nicholas d’Ombrain, a consultant on the machinery of government and public sector management with over 30 years experience as an adviser to governments; the findings of Mr. Justice John Gomery, Commissioner of the Gomery Commission of Inquiry into the Sponsorship Program and Advertising Activities; and a reference relied upon by Mr. d’Ombrain from the Honourable Robert Gordon Robertson, Clerk of the Privy Council and Secretary to the Cabinet from 1963 to 1975, states that the PMO is a separate and distinct organization from the PCO. While the two entities work closely together on some matters, the PMO is responsible for many matters unrelated to the PCO. The same is true with respect to the relationship between a minister’s office and the department over which the minister presides.
[51] Accordingly, the evidence demonstrates that in the ordinary sense of the words in subsection 4(1) of the Act, the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. Mr. Robertson stated:
The Prime Minister’s Office is partisan, politically oriented, yet operationally sensitive. The Privy Council Office is non-partisan, operationally oriented yet politically sensitive. It has been established between the principal secretary to the prime minister and his senior staff on the one hand, and the clerk of the Privy Council and his senior staff on the other, that they share the same fact base but keep out of each other’s affairs. What is known in each office is provided freely and openly to the other if it is relevant or needed for its work, but each acts from a perspective and in a role quite different from the other.
Affidavit of Nicholas D’Ombrain, sworn September 29, 2000, Application Record, Docket T-210-05, vol. 3, p. 1043 at para. 57.
[52] Moreover, Mr. Justice Gomery stated at page 31 of his fact finding report, “Who is Responsible?”:
The Prime Minister is supported politically by the PMO and bureaucratically by the Privy Council Office (PCO). Although these are separate organizations, they are expected to work closely together to ensure that consistent timely advice is provided on the subjects of greatest importance to the Prime Minister.
Gomery Commission of Inquiry into the Sponsorship Program and Advertising Activities, Phase I Report: “Who is Responsible? – Fact Finding Report” at p. 31.
(b) The Minister and Prime Minister are the head of their respective departments. Does that make them part of the respective government institutions?
[53] The Commissioner submits that a minister is part of his or her department because he or she is defined under the Access Act as being the “head” of the government institution for the purposes of the Access Act:
3. In this Act,
“head”, in respect of a government institution, means
(a) in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada who presides over the department or ministry, or
[ …]
3. Les définitions qui suivent s’appliquent à la présente loi
«responsable d’institution fédérale»
a) Le membre du Conseil privé de la Reine pour le Canada sous l’autorité duquel est placé un ministère ou un département d’État;
[ …]
[54] As well, the statutes creating the DND and the DOT both provide that their respective ministers are responsible for the management of these departments. The National Defence Act, R.S.C. 1985, c. N-5 states at sections 3-4:
3. There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.
4. The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for
(a) the construction and maintenance of all defence establishments and works for the defence of Canada; and
(b) research relating to the defence of Canada and to the development of and improvements in materiel.
3. Est constitué le ministère de la Défense nationale, placé sous l’autorité du ministre de la Défense nationale. Celui-ci est nommé par commission sous le grand sceau.
4. Le ministre occupe sa charge à titre amovible et est responsable des Forces canadiennes; il est compétent pour toutes les questions de défense nationale, ainsi que pour :
a) la construction et l’entretien des établissements et ouvrages de défense nationale;
b) la recherche liée à la défense nationale et à la mise au point et au perfectionnement des matériels.
Similarly, the Department of Transport Act, R.S.C. 1985, c. T-18 states at section 3:
3. (1) There is hereby established a department of the Government of Canada called the Department of Transport over which the Minister of Transport appointed by commission under the Great Seal shall preside.
(2) The Minister holds office during pleasure and has the management and direction of the Department.
3. (1) Est constitué le ministère des Transports, placé sous l’autorité du ministre des Transports. Celui-ci est nommé par commission sous le grand sceau.
(2) Le ministre occupe sa charge à titre amovible; il assure la direction et la gestion du ministère.
[55] Moreover, the Commissioner submits that the budgets for ministerial offices and the PMO are included in the budgets for their respective departments. The Court agrees that these facts support the interpretation that ministers’ offices and the PMO are part of their respective departments, and therefore included in their respective government institution listed in Schedule I to the Access Act.
[56] However, the Court finds that the PM and the Ministers of National Defence and Transport have many other functions unrelated to their respective departments for which they are responsible. Accordingly, while the minister is responsible for the department, and is the head of that department, that does not make the minister or his or her office a component part of the department. While budgets for ministerial offices and the PMO are included in their respective departmental budgets as a separate line item, this does not make their respective offices part of the department. Similarly, the Treasury Board has budgetary responsibility for the Office of the Information Commissioner, but the Commissioner is not part of the Treasury Board.
(c) The intention of Parliament
[57] The legislative history of the Act and the contemporaneous understanding of the intent of Parliament by the Commissioner are before the Court in evidence.
[58] In 1981, prior to the Act’s enactment in 1982, the Honourable Francis Fox, Secretary of State and Minister of Communications, the Minister responsible for this legislation, stated in the House of Commons on January 29, 1981:
The purpose of the access legislation is stated in clause 2 of schedule I – to provide a right to