Canada (Information Commissioner) v. Canada (Minister of Environment)

Canada (Information Commissioner) v. Canada (Minister of Environment)
Court (s) Database
Federal Court Decisions
Date
2001-04-02
Neutral citation
2001 FCT 277
File numbers
T-1125-99
Notes
Reported Decision
Decision Content
Federal Court Reports Canada (Information Commissioner) v. Canada (Minister of the Environment) (T.D.) [2001] 3 F.C. 514
Date: 20010402
Court File No. T-1125-99
Neutral citation: 2001 FCT 277
Ottawa, Ontario, this 2nd day of April, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
THE INFORMATION COMMISSIONER
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT CANADA
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, filed by the Information Commissioner of Canada ("the Information Commissioner") pursuant to section 42 of the Access to Information Act[1] (hereinafter the "Access Act") to review the decision of the Minister of Environment Canada, on the advice of the Privy Council Office ("PCO"), denying the applicant access to four documents which both the Minister and the PCO determined are Cabinet confidences. For ease of reference, the decision under review in the case at bar will be referred to as the decision of the PCO.
FACTS
[2] On September 22, 1997, Josephina D. Erzetic, on behalf of Ethyl Canada Inc. ("Ethyl"), made a request to the respondent under the Access Act for access to Cabinet documents dealing with a fuel additive known as "MMT". The request was worded as follows:
Discussion Papers, the purpose of which is to present background explanations, analysis of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Managenese Tricarbonyl (MMT)
[3] In response to the request, the respondent identified four documents dealing with MMT. The Access to Information and Privacy Secretariat of Environment Canada reviewed the four documents and concluded that they are Cabinet confidences. One document was not released pursuant to paragraph 69(1)(a) of the Access Act, and the other three were not released pursuant to paragraph 69(1)(e) of the Access Act.
[4] The Access to Information and Privacy Secretariat then consulted with the PCO to confirm that the documents are excluded from the Access Act. The PCO confirmed that the documents are Cabinet confidences within paragraphs 69(1)(a) and (e) of the Access Act. The Access to Information and Privacy Secretariat of Environment Canada informed the requirant of the existence of four documents excluded from access under paragraphs 69(a) and (e) of the Access Act.
[5] On March 17, 1998, Ethyl complained to the Information Commissioner. On March 30, 1999, the Information Commissioner reported the results of his investigation, that Ethyl's complaint was well founded, to the Minister of the Environment.
[6] Before examining the basis of the Information Commissioner's conclusion, it is useful at this point to outline the historical evolution of Cabinet confidences from the common law to the passage of the Access Act. The history of Cabinet confidences has been fully reviewed in a number of cases[2] which generally begin with the House of Lords decision in Duncan and Another v. Cammell, Laird & Co. Ltd.[3] The House of Lords held in that case that an affidavit of a Minister stating that disclosure of documents would harm the public interest was taken as absolute, without review by the courts. The Duncan and Another case described the common law position until 1968 when the House of Lords revised the common law with the Conway v. Rimmer and Another[4] decision. In that case, the Court held that it could examine documents which the Minister claimed would injure the public if disclosed. The Court held that while deference should be shown to the Minister's position, the final decision should lie with the courts.
[7] After the Conway v. Rimmer decision, Parliament enacted subsection 41(2) of the Federal Court Act.[5] Subsection 41(2) followed the position of the House of Lords in Duncan and Another. As described by Justice Strayer in Smith, Kline:[6]
Subsection 41(2) however followed the Cammell, Laird approach and it applied to a large and somewhat amorphous group of documents. That subsection provided that wherever a Minister by affidavit claimed that the production or discovery of a document would be injurious to international relations, national defence or security, or to federal-provincial relations, or that it would disclose a confidence of the Queen's Privy Council for Canada, then discovery or production "shall be refused without any examination of the document by the court." In other words, all that was required was an affidavit that the document came within one of these categories and the Court was precluded from examination of the document. [emphasis added]
Subsection 41(2) of the Federal Court Act therefore recognized a process whereby the Government could maintain the confidentiality of a document as a confidence of the Queen's Privy Council for Canada by simply declaring it to be such.
[8] The Access Act was enacted in 1982, repealing subsection 41(2) of the Federal Court Act. Section 69 of the Access Act and s. 39 of the Canada Evidence Act[7] formed part of the same Bill and were enacted together. These two provisions have similar effects, s. 69 excludes from the application of the Access Act documents and records which are considered Cabinet confidences, and s. 39 excludes from the application of the Canada Evidence Act information which is considered a Cabinet confidence.
[9] The Information Commissioner concluded that Ethyl's complaint was well founded based on the evolution of the Cabinet Paper System since the passage of the Access Act. When the Access Act was first passed in 1982, the Cabinet Paper System produced two records: the Memorandum to Cabinet and the "discussion paper" containing background explanations, analyses of problems and policy options. In 1983, an Official of the PCO,[8] was asked to propose reforms to the Cabinet Paper System. The Official of the PCO recommended that supporting background information and analysis be put in appendices to the Memorandum to Cabinet, and that "discussion papers" be understood as papers prepared by government departments as part of a planned communications strategy. The Cabinet Paper System recommended by the Official of the PCO was adopted by the PCO in early 1984.
[10] The format of the Memorandum to Cabinet was changed slightly in 1986 and remains in place today. The Memorandum to Cabinet is now divided into two sections: the ministerial recommendations section and the analysis section. The analysis section now contains the background information and analysis formally found in "discussion papers" as understood when the Access Act was first passed in 1982.
[11] Based on the evolution of the Cabinet Paper System, the Information Commissioner recommended that the relevant information relating to background explanations, analyses of problems or policy options be severed pursuant to s.25 of the Access Act from records which are Cabinet confidences, and disclosed as per paragraph 69(3)(b) of the Act. On April 20, 1999, the Minister of the Environment informed the Information Commissioner of her decision not to follow the Information Commissioner's recommendation. The Information Commissioner then filed an application for judicial review pursuant to paragraph 42(1)(a) of the Access Act.
[12] On proceedings preparatory to the hearing of this application, in response to questions on the cross-examination of Mr. Michael Bogues, Chief of the Access to Information and Privacy Secretariat of Environment Canada, the Clerk of the Privy Council issued a certificate under paragraphs 39(2)(a) and (e) of the Canada Evidence Act certifying that the four documents are Cabinet confidences, and objecting to their disclosure.
ISSUES
(1) Does the Access Act apply to the four documents determined by the Minister of Environment and the PCO to be Cabinet confidences under s. 69 of the Act?
(2) Is the certificate of the Clerk of the PCO under s. 39 of the Canada Evidence Act subject to judicial review?
LEGISLATIVE FRAMEWORK
[13] It is useful, at this point, to reproduce the relevant sections of the Access Act which will
be relied on throughout these reasons. Section 42 of the Access Act states the following:
42.(1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record; [emphasis added]
42.(1) Le Commissaire à l'information a qualité pour :
a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document; [je souligne]
Section 69 of the Access Act states the following:
69. (1) This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,
69.(1) La présente loi ne s'applique pas aux documents confidentiels du Conseil privé de la Reine pour le Canada, notamment aux :
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
a) notes destinées à soumettre des propositions ou recommandations au Conseil;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
b) documents de travail destinés à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;
(c) agenda of Council or records recording deliberations or decisions of Council;
c) ordres du jour du Conseil ou procès-verbaux de ses délibérations ou décisions;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
d) documents employés en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
e) documents d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'object des communications ou discussions visées à l'alinéa d);
(f) draft legislation; and
f) avant-projets de loi ou projets de règlement;
(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).
g) documents contenant des renseignements relatifs à la teneur des documents visés aux alinéas a) à f).
Paragraph 69(3)(b) of the Access Act states:
(3) Subsection (1) does not apply to
...
(b) discussion papers described in paragraph 1(b)
(i) if the decisions to which the discussion papers relate have been made public, or
(3) Le paragraphe (1) ne s'applique pas :
...
b) aux documents de travail visés à l'alinéa (1)b), dans les cas où les décisions auxquelles ils se rapportent ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant, L.R. 1985, c. A-1, art. 69; 1992, ch. 1, art. 144 (F). [je souligne]
(ii) where the decisions have not been made public, if four years have passed since the decisions were made. R.S. 1985, c. A-1, s.69; 1992, c.1 s.144 (F). [emphasis added]
Section 25 of the Access Act states:
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorised to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. R.S. 1985, c.A-1, s.25. [emphasis added]
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. L.R. 1985, c. A-1, art. 25. [je souligne]
Section 39 of the Canada Evidence Act states the following:
39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
39(1) Le tribunal, l'organismes ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.
(2) For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in
(2) Pour l'application du paragraphe (1), un "renseignement confidentiel du Conseil privé de la Reine pour le Canada" s'entend notamment d'un renseignement contenu dans :
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(a) une note destinée à soumettre des propositions ou recommandations au Conseil;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(b) un document de travail destiné à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(c) un ordre du jour du Conseil ou un procès-verbal de ses délibérations ou décisions;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(d) un document employé en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(e) un document d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'objet des communications ou discussions visées à l'alinéa d);
(f) draft legislation
(f) un avant-projet de loi ou projet de règlement.
...
[...]
Exception
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or
Exception
(4) Le paragraphe (1) ne s'applique pas:
(a) à un renseignement confidentiel du Conseil privé de la Reine pour le Canada don't l'existence remonte à plus de vingt ans;
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made. 1980-81-82-83, c. 111, s. 4. [emphasis added]
(b) à un document de travail visé à l'alinéa (2)b), dans les cas où les décisions auxquelles il se rapporte ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant. 1980-81-82-83, c. 111, s. 4. (je souligne)
[14] Given the wording of s. 69 of the Access Act that "[t]his Act does not apply to confidences of the Queen's Privy Council for Canada", the first issue to consider is whether this Court has any jurisdiction under s. 42 to review whether a record is a Cabinet confidence under s. 69. The second issue for determination is whether the Clerk's certificate pursuant to s. 39 of the Canada Evidence Act is subject to judicial review.
ANALYSIS
[15] According to the respondent, subsection 69(1) of the Access Act excludes Cabinet confidences from the operation of the Act, including an exclusion from judicial review. The respondent argues that the Information Commissioner is seeking to turn the exclusion in paragraph 69(1) into an exemption subject to judicial review in the same way as the exemptions set out in ss. 13-24 of the Access Act are subject to judicial review. The exempting provisions of the Act permit non-disclosure of information in certain circumstances, for example, information concerning federal-provincial affairs (s. 14), international affairs and defence (s. 15), law enforcement and investigations (s. 16), among a number of other exemptions.
[16] The respondent points out that Parliament did in fact consider including s. 69 under the "exemptions" heading in the original proposal in Bill C-43, an Act enacting the Access Act. At the committee stage, however, the Bill was amended to exclude Cabinet confidences from the operation of the Access Act. The respondent argues that this change was brought about to ensure that any decision by the PCO, determining a document to be a confidence, is not subject to judicial review. When the Honourable Francis Fox, Minister responsible for the Bill, was questioned about this amendment to the Bill, he stated the following:[9]
Quite obviously there is a change from the previous situation. We spent three or four months looking at the various changes and the decision of Cabinet was to exclude Cabinet confidences from the purview of the Bill. They were already exempted from application of the bill in the sense that they would not have been made public, but, as you indicate, a judge would have had the authority to review a document in order to decide whether or not it was a Cabinet minute, and the matter would have ended there. At the moment you simply could not ask, under the bill, for a Cabinet minute or an agenda or a discussion paper.
If you asked for an agenda of Cabinet under the bill as it now stands, with the new Clause 68, the minister would say simply, or the Clerk of the Privy Council would say, that Cabinet agendas are excluded from the application of the bill and you would not get the Cabinet agenda and the matter would not be subject to review by the court. [emphasis added]
According to the respondent, therefore, this Court has no jurisdiction to judicially review the decision of the PCO to claim that the four documents at issue are excluded from the Access Act pursuant to subsection 69(1) of the Act.
[17] In order to determine whether the respondent's interpretation of s. 69 is the proper approach to be taken, this Court must interpret the Access Act. The general approach to statutory interpretation was outlined by the Supreme Court of Canada in Verdun v. Toronto-Dominion Bank[10] where Justice Iacobucci states:
The first step in a question of statutory interpretation is always an examination of the language of the statute itself. As E.A. Driedger wrote in his text, Construction of Statutes (2nd ed. 1983), at p. 87:
Today there is only one principle or approach, namely, 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.
The proper approach to statutory interpretation, therefore, requires an examination of the words of the Act, the purpose of the Act, the scheme of the Act, and the intention of Parliament.
[18] Turning first to the words of the Act, there is a clear tension in s. 69 between the general exclusions listed in paragraphs 69(1)(a) to (g), and the exceptions to the exclusions found in paragraphs 69(3)(a) and (b). Subsection 69(1) of the Access Act states that "[t]his Act does not apply to confidences of the Queen's Privy Council" listed in subsections (a) through (g). Although the wording of paragraph 69(1) suggests that Cabinet confidences are excluded from the operation of the Access Act, it remains unclear whether confidences which contain background explanations, analyses of problems, or policy options become subject to the Access Act pursuant to paragraph 69(3)(b). In other words, although it seems clear that the Access Act does not apply to Cabinet confidences listed in subsection 69(1), it is possible that the Act does apply to "discussion papers" as defined in paragraph 69(1)(b). In order to clarify the meaning of the words in s. 69, the purpose and scheme of the Act, and the intention of Parliament will be examined.
[19] The purpose of the Access Act is clearly outlined in s. 2, which states:
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.
2.(1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
All parties agree that the purpose of the Access Act is to extend the right of access to government information. While the purpose of the Access Act is clear, does that purpose have any bearing on s. 69, which states that the Access Act does not apply to confidences of the Queen's Privy Council? The exclusions listed in paragraphs 69(1)(a) to (g) of the Access Act should be construed in a way which infringes the stated purpose of the Act, the public's right to access, the least. As the Federal Court of Appeal states in Rubin v. Minister of Transport:[11]
where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.
[20] The interpretation which infringes the public's right to access the least is one which limits the exclusions in paragraphs 69(1)(a) to (g) as much as possible, and gives full effect to the exceptions to the exclusions in paragraphs 69(3)(a) and (b). In order to give full effect to paragraphs 69(3)(a) and (b), this Court would have to hold that although the Access Act does not apply to Cabinet confidences, it does apply to "discussion papers" the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council if the provisions of subparagraphs 69(3)(b)(i) and (ii) apply. Whether this is the proper interpretation of s. 69 will now be examined in light of the history of the Access Act and the Intention of Parliament in enacting s. 69 of the Access Act.
[21] The history of Cabinet confidences from the common law to the passage of the Access Act has already been provided. In summary, however, this history reveals that Parliament revoked subsection 41(2) of the Federal Court Act which provided for the absolute confidentiality of all confidences of the Queen's Privy Council for Canada. Subsequently, Parliament enacted s. 69 of the Access Act and s. 39 of the Canada Evidence Act which no longer provided for the absolute confidentiality of documents deemed confidences of the Queen's Privy Council. In enacting paragraphs 69(3)(a) and (b) of the Access Act and paragraphs 39(4)(a) and (b) of the Canada Evidence Act, Parliament chose to create exceptions to the exclusions listed in paragraphs 69(1)(a) to (g) of the Access Act and paragraphs 39(2)(a) to (f) of the Canada Evidence Act.
[22] Having examined the words of the Act, the purpose of the Act, and the history of Cabinet confidences, the next question is what was Parliament's intention in enacting the exceptions in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act?
[23] These exceptions are a departure from the absolute exclusion previously found in subsection 41(2) of the Federal Court Act. The exception in paragraph 69(3)(a) of the Access Act and paragraph 39(4)(a) of the Canada Evidence Act provide for the disclosure of confidences of the Queen's Privy Council that have been in existence for more than twenty years. The exception paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act allow for the disclosure of "discussion papers" described in paragraph 69(1)(b) of the Access Act and paragraph 39(2)(b) of the Canada Evidence Act, if the decisions to which the "discussion papers" relate have been made public, or where the decisions have not been made public, if four years have passed since the decisions were made.
[24] By creating exceptions, Parliament intended that certain types of information be released. The Honourable Francis Fox, the Minister who sponsored Bill C-43, stated the following about Parliament's intention:[12]
On the question of factual material, it seems to me most, if not all of the factual material, will be included in the discussion papers which are to be released, and I do not see why there should be a different rule for factual material that may surround draft legislation. It would come out in the discussion paper...
And it seems to me that the general principle here of saying that the discussion papers are going to be made public after the decision is made public is a clear indication of the desirability of this coming out... Also there is the indication that we want discussion papers to come out; that we want the factual basis on which decisions are taken to be made public. [emphasis added]
By enacting the exceptions in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act, Parliament intended that information containing background explanations, analyses of problems or policy options be released to the public, in order to increase government accountability to the public. The question is, however, who is the gatekeeper in deciding whether or not information or documents fall within one of the exceptions?
[25] There is only one case to date, Gogolek v. Canada (Attorney General)[13], dealing with whether this Court has jurisdiction to review a decision of the PCO that documents fall within subsection 69(1) of the Access Act. In that case, the PCO did not disclose records to the applicant which it determined were Cabinet confidences under s. 69 of the Access Act. The applicant argued that in order to ensure the scheme of the Access Act is not subverted, there must be independent review by courts of decisions of the Clerk of the PCO not to disclose Cabinet confidences. The applicant argued in particular that the purpose of the Access Act as stated in s. 2 is to encourage independent review of government decisions not to disclose. It is important to note that the Information Commissioner in Gogolek had found that there was no reason to doubt that the documents at issue were properly withheld. Justice Heald of the Federal Court Trial Division held that there could be no independent review of PCO decisions under s. 69:[14]
Section 69(1) employs clear and unambiguous language, wherein it states that "[t]his Act does not apply to confidences of the Queen's Privy Council for Canada", which includes the documents and material set out in ss. 69(1)(a) to (g). I agree with the respondent's counsel that there is no discretionary power vested in a governmental department that would allow that department to make such confidences accessible to the public. [emphasis added]
Mr. Justice Heald held that the exclusion of Cabinet confidences from the Access Act meant that the decision could not be judicially reviewed pursuant to s. 41 of the Act, and that the purpose of the Act as stated in s. 2 had no applicability in relation to records excluded under s. 69 of the Act.
[26] In my view, Gogolek does not stand for the proposition that the PCO has unrestricted discretion to exclude a document from disclosure by invoking s. 69 of the Access Act when information contained in the document was intended by Parliament to be releasable when the decision to which the discussion paper relates has been made public or when four years have passed under subparagraphs 69(3)(b)(i) and (ii) of the Act. The process through which a document, intended for release pursuant to paragraph 69(3)(b), comes to be characterized as a confidence should withstand scrutiny on judicial review.
[27] There is no indication in the Gogolek case that the extrinsic evidence pointed towards the existence of documents which contain background explanations, analyses of problems and policy options. Further, the Information Commissioner in Gogolek agreed that the documents were properly withheld.
[28] The extrinsic evidence in this case, however, points towards the existence of documents which contain background explanations, analyses of problems and policy options. The evolution of the Cabinet Paper System indicates that the information in "discussion papers" as understood in 1982 continues to exist in the "analysis" section of a current Memorandum to Cabinet. The evidence also indicates that the PCO now understands a "discussion paper" to be a paper prepared by a government department with the intention of publishing the paper as part of a planned communications strategy. "Discussion papers" as understood in 1982 have not been produced since 1984. The result is that information the purpose of which is to present background explanations, analyses of problems and policy options, where the decision has been made public or four years have passed, is withheld by the PCO simply because the information is now included in a Memorandum to Cabinet. In other words, despite the fact that all of the criteria in paragraph 69(3)(b) of the Access Act may be met, the content of a "discussion paper" is not released because it is no longer called a "discussion paper". In my opinion, the Gogolek case never reached this stage of the analysis because the evidence did not take the Court in that direction.
[29] Unlike the circumstances in Gogolek, the Information Commissioner in the case at bar concluded that Ethyl's complaint was well founded, and that the relevant information relating to background explanations, analyses of problems or policy options should be severed pursuant to s.25 of the Access Act from records which are otherwise Cabinet confidences, and disclosed in accordance with paragraph 69(3)(b) of the Access Act.
[30] In my opinion, this Court cannot ignore the extrinsic evidence. I find this evidence in the evolution of the history of the Cabinet Paper System previously discussed in these reasons. A careful review of the Cabinet Paper System since 1982 points towards the possible existence of information relating to background explanations, analysis of problems or policy options as described in paragraph 69(1)(b) that are still found in the current Cabinet documents. Paragraph 69(3)(b) states that subsection 69(1) does not apply to discussion papers described in paragraph 69(1)(b), that is, papers the purpose of which is to provide background explanations, analyses of problems or policy options to Council. Therefore, discussion papers as understood in paragraph 69(3)(b) are not excluded from the operation of the Access Act pursuant to subsection 69(1). Following this reasoning one would necessarily conclude that the Access Act applies. Given that the Access Act applies, this Court finds its authority under s. 42 of the Act to judicially review decisions of the PCO to withhold the documents at issue in their entirety.
[31] Unlike s. 69 of the Access Act, there are a number of cases dealing with whether a court can judicially review the issuance of a certificate pursuant to s. 39 of the Canada Evidence Act. A review of the leading cases is helpful in order to clarify in what circumstances this Court may judicially review the issuance of a certificate pursuant to s. 39 of the Canada Evidence Act.
[32] In Canada (Attorney General) v.Central Cartage Co.,[15] the Clerk of the PCO objected to the disclosure of certain documents in the main proceeding, and issued a certificate pursuant to s. 36.3 (current s. 39) of the Canada Evidence Act. The applicant, in that case, not only challenged the Clerk's certificate on its face, but also challenged the constitutionality of s. 36.3. Chief Justice Iacobucci (as he then was) upheld the constitutionality of s. 36.3 and states the following about whether this Court can judicially review the issuance of a s. 36.3 certificate at 652:
It appears clear that Parliament intended by passing section 36.3 that the determination of whether any information constitutes a confidence of the Queen's Privy Council is to be made by a Minister of the Crown or the Clerk of the Privy Council. Subject only to compliance with the express requirements of the section, the decision of the Minister or the Clerk, as certified in writing by him or her, is not subject to review by any court. The court cannot go behind the certificate and examine the documents as it can under sections 36.1 and 36.2 of the Canada Evidence Act. However, it is open to a court to see whether the certificate on its face asserts a privilege within the statutory limitations on claims for privilege by the executive.
[33] In order to determine whether a certificate on its face asserts a privilege within the statutory limitations, the Federal Court of Appeal in Central Cartage cited with approval the decision of Justice Strayer in Smith Kline,[16] in which the Court found a certificate defective because it did not track the statutory language of subsection 36.3(2). As the Federal Court of Appeal in Central Cartage expressed at 654:
Strayer, J. found the certificate in Smith Kline to be defective because it in effect did not track the language of subsection 36.3(2). Requiring it to do so admittedly may be formalistic, but, as he notes, litigants and the courts are entitled "at least to the assurance that the Clerk of the Privy Council has directed his mind to those criteria and limitations". Therefore tracking the language of the subsection is not an empty exercise. It is what is required and I see no reason why the words should not be so interpreted.
The Court in Central Cartage held, therefore, that if a certificate is proper in form, that is, if it tracks the statutory language of s. 39, it is not open for this Court to entertain a proceeding for judicial review.
[34] Most recently, the Federal Court of Appeal in Singh v. Canada (Attorney General)[17] addressed a challenge to a s. 39 certificate, principally on constitutional grounds. Although there is no constitutional challenge in the case at bar, Singh provides guidance for the manner in which this Court may judicially review a s. 39 certificate. The Court in Singh begins by noting the policy of Parliament in enacting s. 39 of the Canada Evidence Act at 200-201:
I also would observe that the appellants have made a strong argument against the policy embodied in subsection 39(1) of the Canada Evidence Act, preventing as it does the review by courts of the executive's characterization of particular documents as containing confidences of the Queen's Privy Council for Canada. That policy treats Cabinet confidences as a class of documents which can only be disclosed in circumstances permitted by the Canada Evidence Act. Further, it prevents a court from determining for itself whether such documents are in fact Cabinet confidences. The appellants argue for a policy by which there would be no immunity as a class for this type of document: instead a court should be able to examine them to determine if they are of that class and, if so, whether on balance they should be disclosed anyway. But it is not for the Court to determine the wisdom of the policy embodied in the Canada Evidence Act if it breaches no constitutional requirement. [emphasis added]
The Court in Singh acknowledged the arguments of the appellants against the policy in s. 39 of the Canada Evidence Act which excludes Cabinet confidences from the Act with a very limited possible review by courts. The Court in Singh states, however, that it is not for courts to determine the wisdom of Parliament, and goes on to affirm the limited role courts may play in the review of a s. 39 certificate at 218:
It has been held that the Court may entertain a proceeding for judicial review of the issuance of a certificate although it may not review the factual correctness of the certificate if it is otherwise in proper form.
The Court went on to state the circumstances in which a court may entertain a proceeding for judicial review. Like Central Cartage and Smith Kline, the Court in Singh held that one possible ground for review is whether the certificate on its face tracks the statutory language of s. 39. The Court also noted that improper motive on the part of the Clerk in issuing a certificate is a possible ground for judicial review[18]. There is no evidence of such improper motive on the part of the Clerk of the PCO in the case at bar.
[35] The Court in Singh cited with approval the Canadian Association of Regulated Importers v. Canada[19] decision which considered whether the existence of clear extrinsic evidence may be used to judicially review the issuance of a certificate. The Court states the following at page 7:
I am prepared to accept for the sake of argument, without deciding, that a Court might consider such evidence, where sufficiently clear, in relation to the assertions made by the certificate, but in my opinion the available evidence does not assist the appellants in the case at bar.
[36] Although the extrinsic evidence in Regulated Importers was not sufficiently clear, the
extrinsic evidence in the case at bar is clear. There is no dispute that the information in "discussion papers" is now included in the "analysis" section of the Memorandum to Cabinet. There is also no dispute that officials at the PCO understand "discussion papers" are now to be papers prepared as part of a planned communications strategy and no longer included in a Memorandum to Cabinet.
[37] I find jurisdiction to review the de