Date: 20040325
Docket: T-582-01
Citation: 2004 FC 431
BETWEEN:
THE ATTORNEY GENERAL OF CANADA and
BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-606-01
THE ATTORNEY GENERAL OF CANADA,
and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1640-00
THE ATTORNEY GENERAL OF CANADA
and BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1641-00
THE ATTORNEY GENERAL OF CANADA,
MERIBETH MORRIS, RANDY MYLYK and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA and
DAVID PUGLIESE
Respondents
and
Docket: T-792-01
THE ATTORNEY GENERAL OF CANADA
and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-877-01
THE ATTORNEY GENERAL OF CANADA
and RANDY MYLYK
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-878-01
THE ATTORNEY GENERAL OF CANADA,
and THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-883-01
THE ATTORNEY GENERAL OF CANADA
and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-892-01
THE ATTORNEY GENERAL OF CANADA
and MERIBETH MORRIS
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1047-01
THE ATTORNEY GENERAL OF CANADA
and SUE RONALD
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1254-01
THE ATTORNEY GENERAL OF CANADA
and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1909-01
THE ATTORNEY GENERAL OF CANADA,
THE HONOURABLE ART C. EGGLETON,
GEORGE YOUNG and JUDITH MOONEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-684-01
THE ATTORNEY GENERAL OF CANADA and BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-763-01
THE ATTORNEY GENERAL OF CANADA and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-880-01
THE ATTORNEY GENERAL OF CANADA and RANDY MYLYK
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-895-01
THE ATTORNEY GENERAL OF CANADA and MERIBETH MORRIS
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-896-01
THE ATTORNEY GENERAL OF CANADA and EMECHETE ONUOHA
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1049-01
THE ATTORNEY GENERAL OF CANADA and SUE RONALD
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1255-01
THE ATTORNEY GENERAL OF CANADA and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1448-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1910-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-2070-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-801-01
THE ATTORNEY GENERAL OF CANADA and JEAN PELLETIER
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-891-01
THE ATTORNEY GENERAL OF CANADA and
THE HONOURABLE ART C. EGGLETON
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
Docket: T-1083-01
THE ATTORNEY GENERAL OF CANADA and MEL CAPPE
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
[1] These 25 applications for judicial review raise significant issues relating to the conduct of investigations by the Information Commissioner ("Commissioner") pursuant to the Access to Information Act, R.S.C. 1985, c. A-1 ("Act"). Specifically, various applicants put in issue: the jurisdiction of the Commissioner to put certain questions to individuals summoned by subpoena to give evidence before the Commissioner; the jurisdiction of the Commissioner to copy documents he has obtained pursuant to the issuance of a subpoena duces tecum; the scope of the Commissioner's power to review documents which are the subject of a claim for solicitor-client privilege; the jurisdiction of the Commissioner to make confidentiality orders prohibiting persons who have given evidence before the Commissioner from revealing any information disclosed during his or her testimony; and whether records under the control of the Prime Minister's Office and the office of the Minister of Defence are records "under the control of" respectively, the Privy Council Office or the Department of National Defence, within the meaning of that phrase as found in the Act.
[2] These reasons are lengthy. In them I:
(i) accept the submissions of the parties that the issue of the propriety of the disputed questions is moot, and accept the further submissions of the Commissioner that this is not a proper case for the Court to exercise its discretion to decide an issue which is moot;
(ii) accept the submission of the Commissioner that the Act by implication authorizes the Commissioner to make copies of documents provided to him pursuant to his power to subpoena documents;
(iii) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to require production of a specific legal memorandum, notwithstanding the claim that it was the subject of solicitor-client privilege. I further accept the Commissioner's submission that it was not necessary for his delegate to conclude that the memorandum was "absolutely required" for the investigation before requiring its production;
(iv) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to impose confidentiality orders upon witnesses who appeared before him to give evidence. However, I also accept the submission of the applicants that the confidentiality orders in question breached the right of the individual applicants to freedom of expression, and that the orders were over-broad and so were not a reasonable limit prescribed by law so as to be valid pursuant to section 1 of the Charter. In the result, I order that the confidentiality orders be set aside, but on the condition that the orders will remain in effect for 30 days. This period will protect the ongoing status of the Commissioner's investigation by affording the Commissioner the opportunity to consider the need for confidentiality orders and, if required, to issue orders which are not over-broad and which are justified on the evidence before the Commissioner; and
(v) accept the submission of the Commissioner and Mr. Pugliese that it is premature to adjudicate upon the request for a declaration that records under the control of the Prime Minister's Office or the office of a minister are not under the control of a government institution and are not subject to the Act. This issue should only be determined by the Court after the Commissioner has been allowed to complete his investigation and report.
[3] For ease of reference, the following is an index of the headings and sub-headings pursuant to which these reasons are organized, and the paragraph numbers where each section begins.
INDEX
1. Background Facts [5]
(i) The Requests [6]
(ii) The Responses to the Requests [7]
(iii) The Complaints [8]
(iv) The Commissioner's Investigations [10]
(v) The Status of the Commissioner's Investigations [11]
(vi) These proceedings [13]
2. Organization of the 25 Applications for Judicial Review [14]
3. The Applicable principles of Statutory Interpretation [16]
4. The Legislative Context
(i) The purpose of the Act [22]
(ii) The right of access and requests for access [24]
(iii) The exemptions from access [26]
(iv) The complaint and investigative process [27]
(v) Reports to Parliament [33]
(vi) Review by the Federal Court [36]
(vii) The confidentiality provisions [39]
(viii) Material not subject to the Act [40]
(ix) The Regulations to the Act [41]
(x) Summary [42]
5. Group A: The Control of Records Applications
(i) Additional Relevant Facts [43]
(ii) The Positions of the Parties and the Issues to be Determined [54]
(iii) Analysis
(a) Should the Commissioner be named as respondent in Court files T-1640-00 and T-1641-00? [61]
(b) Court file T-606-01: Is it moot and is the Commissioner a proper respondent? [63]
(c) Should the Court exercise its discretion to grant the requested declarations? [70]
- The nature of the question of control and the character of the evidence relied upon by the applicants [73]
- Relevant Factors in the Exercise of Discretion [76]
1. The statutory scheme [78]
2. The adequacy of the statutory scheme [83]
3. Control as a question of jurisdiction for the Commissioner [93]
4. The state of the evidentiary record [96]
5. The existence of prejudice to the applicants if the declarations are not granted [118]
(iv) Conclusion re Group A [121]
6. Group B: The "Confidentiality Order" Applications
(i) Additional Relevant Facts [125]
(ii) The Issues to be Determined [141]
(iii) Analysis [142]
(a) The nature and extent of any statutory obligation of confidentiality upon a witness before the Commissioner. [143]
(b) Was there jurisdiction to issue the confidentiality orders?
- Standard of Review [164]
- The Issue of Jurisdiction [172]
(c) Do the confidentiality orders breach the right of freedom of expression guaranteed by section 2(b) of the Charter? [185]
(d) Were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?
- Applicable principles of law [191]
- Contextual Considerations [193]
- Does the infringement achieve a constitutionally valid purpose or objective? [205]
- The Rational Connection [210]
- Minimal Impairment [214]
(iv) Conclusion re Group B [245]
7. Group C: Copying of Records Applications
(i) Additional Relevant Facts [246]
(ii) The Issues to be Determined [253]
(iii) Analysis
(a) Should the Commissioner be named as respondent? [254]
(b) Is the application for judicial review in relation to the Black documents requests moot? [257]
(c) The Standard of Review [260]
(d) Does the Commissioner have jurisdiction to photocopy documents delivered pursuant to a subpoena duces tecum issued pursuant to paragraph 36(1)(a) of the Act? [264]
(iv) Conclusion re Group C [291]
8. Group D: The Propriety of Questions Applications
(i) Additional Relevant Facts [292]
(ii) The Issues to be Determined [296]
(iii) Analysis
(a) Should the Commissioner be named as respondent in this group of applications? [297]
(b) Should the Court exercise its discretion to grant the requested declarations? [298]
1. The statutory scheme. [305]
2. The nature of the challenge to the propriety of the questions. [309]
3. The general principles which apply to such a challenge. [313]
4. The likelihood of the issue of the propriety of the questions recurring, and the extent that this is a brief transitory issue, and thus likely to evade review. [317]
(iv) Conclusion re Group D [325]
9. Group E: The Solicitor-Client Application
(i) Additional Facts [327]
(ii) The Issues [335]
(iii) Analysis
(a) Should the Commissioner be named as respondent in this application? [336]
(b) Is the application for judicial review not justiciable, premature and unnecessary with respect to the Schedule A documents? [337]
(c) Is this application for judicial review not justiciable, moot and unnecessary with respect to the July 30, 1999 memorandum? [340]
(d) Is the July 30, 1999 memorandum subject to solicitor-client privilege? [342]
(e) The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum. [345]
(f) Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum? [351]
(iv) Conclusion re Group E [364]
10. Conclusion as to Costs [366]
[4] These issues arise in the following context. It should be noted that significant information and evidence has been filed with the Court on a confidential basis. The facts and matters disclosed in these reasons all appear on the public record.
1. BACKGROUND FACTS
[5] These proceedings have their genesis in a number of requests made in 1999 for disclosure of records pursuant to the Act.
(i) The Requests
[6] The relevant requests were:
1. On June 23 and June 25, 1999, requests were made to the Privy Council Office seeking access to documents relating to the question of whether Conrad Black, then a Canadian citizen, should be appointed to the British House of Lords ("Black documents requests").
2. On June 28, 1999, six requests were made to the Privy Council Office seeking access to the Prime Minister's1 daily agenda book for 1994 through 1999 ("Prime Minister's agenda requests").
3. On September 22, 1999, a request was made to the Department of National Defence for copies of all records since January 1, 1998 of the M5 group meetings ("September 22 M5 documents request"). "M5" is the term used to describe informal meetings between the Minister of National Defence, the Deputy Minister of National Defence, the Chief of the Defence Staff and senior exempt staff in the Minister's office. "Exempt staff" are persons appointed by a minister or the Prime Minister to his or her staff and they hold office at the pleasure of the person who appointed them. Exempt staff are not public servants.
4. On November 5, 1999, a request was made to the Department of Transport seeking a copy of the Minister of Transport's itinerary and/or meeting schedule for the period from June 1, 1999 to November 5, 1999 ("Minister of Transport agenda request").
5. On November 12, 1999, a request was made to the Department of National Defence for copies of the minutes or documents produced from the M5 management meetings for 1999 ("November 12 M5 documents request").
The Privy Council Office, the Department of National Defence and the Department of Transport are government institutions to which the Act extends.
(ii) The Responses to the Requests
[7] The following responses were made to each request.
1. With respect to the Black documents requests, on September 7, 1999 both requesters were provided with some documents in response to their respective requests. However, some records or portions thereof were not provided to the requesters because the Privy Council Office claimed certain exemptions and exclusions pursuant to relevant provisions of the Act.
2. In response to the Prime Minister's agenda requests, the Privy Council Office advised the requester on July 13, 1999 that in respect of five of the six requests for the Prime Minister's agendas, there were no records under the control of the Privy Council Office which were responsive to the requests. With respect to the sixth request, the requester was advised on August 11, 1999 that the Privy Council Office would neither confirm nor deny the existence of any records relating to the request but that should any such records exist, they would be exempt from disclosure pursuant to subsection 19(1) of the Act as being personal information.
3. With respect to the September 22 M5 documents request, on October 18, 1999 the Department of National Defence responded that their search failed to uncover any relevant records.
4. In response to the Minister of Transport agenda request, the requester was advised on December 22, 1999 that no records existed in Transport Canada's files responsive to the request. It was noted that the Minister's itinerary/meeting schedules were prepared and maintained by his political staff and were not considered to be departmental records.
5. With respect to the November 12 M5 documents request, on February 15, 2000 the Department of National Defence advised that a search failed to uncover any documents such as those requested.
(iii) The Complaints
[8] Four of the five requesters made complaints to the Commissioner in respect of the responses received to their requests. No complaint was made with respect to the September 22 M5 documents request. The requesters complained about the exemptions and exclusions applied by the Privy Council Office in response to the Black documents requests. The balance of the complaints were that the requesters had not been provided with the documents requested.
[9] Subsequently, in the course of investigating the complaint arising from the November 12 M5 documents request, the Commissioner received information which satisfied him that there were reasonable grounds upon which to investigate the response to the September 22 M5 documents request. Accordingly the Commissioner proceeded with a self-initiated complaint with respect to that request.
(iv) The Commissioner's Investigations
[10] On receipt of the complaints, as the Commissioner was obliged to do under the Act, he began to investigate the complaints. Pursuant to those investigations, conducted by his delegate, the Deputy Information Commissioner, the Commissioner issued subpoenas duces tecum to witnesses, copied records which were produced pursuant to such subpoenas, examined under oath witnesses who had been subpoenaed, and at the outset of some of those examinations made confidentiality orders, all as discussed in more detail below.
(v) The Status of the Commissioner's Investigations
[11] The Commissioner's investigations of the complaints about access refusals stemming from the requests for the Prime Minister's agendas, the September 22 and November 12 M5 documents, and the Minister of Transport's agendas remain ongoing.
[12] The Commissioner has completed his investigation of the complaints based on the refusal of the Privy Council Office to grant access to the Black documents. After the complaints were received, the Coordinator for Access to Information and Privacy for the Privy Council Office conducted a re-examination of the records. As a result of that re-examination, additional information was provided to the requesters/complainants. Subsequently, the Commissioner concluded in the Black documents requests investigation that the exemptions and exclusions were properly claimed and that the remaining Black documents ought not to be disclosed. The Commissioner argues that issues arising from this concluded investigation are not justiciable as being moot and unnecessary. Those arguments are addressed below.
(vi) These proceedings
[13] The proceedings in this Court are of an unusual nature. Generally, proceedings relating to the Act are brought in this Court only after the results of the Commissioner's completed investigation have been reported to both the person who made the complaint about a refusal of access and to the head of the government institution which has refused access. The present applications for judicial review, except those arising out of the Black documents requests, all are brought during the currency of the Commissioner's investigation. Those applications therefore impact upon the right of the Commissioner to conduct investigations under the Act.
2. ORGANIZATION OF THE 25 APPLICATIONS FOR JUDICIAL REVIEW
[14] As noted at the outset, these reasons are in respect of 25 applications for judicial review. Pursuant to an order of the case management judge, the applications were divided into five groups with the applications contained within those groups to be heard serially. The applications contained in each group were consolidated within that group.
[15] Counsel have described these groups as groups A, B, C, D, and E. They will be referred to as such in these reasons. What follows is a listing of which applications fall within each group together with a brief description of the issue raised in each group.
Group A: A declaration is sought that certain records under the control of the Prime Minister's Office or the office of the Minister of National Defence are not under the control of, respectively, the Privy Council Office or the Department of National Defence, and so are not under the control of a government institution. These applications are called the "Control of Records Applications". There are three applications in this group: T-606-01, T-1640-00 and T-1641-00.
Group B: A declaration is sought that the Commissioner lacks jurisdiction to make confidentiality orders. Consequential relief quashing the confidentiality orders made by the Commissioner is also sought. These are called the "Confidentiality Order Applications". There are nine applications in this group: T-582-01, T-792-01, T-877-01, T-878-01, T-883-01, T-892-01, T-1047-01, T-1254-01 and T-1909-01.
Group C: A declaration is sought that the Commissioner may not photocopy materials delivered to him pursuant to a subpoena duces tecum. Consequential relief is sought requiring the return of copies made and the prohibition of further copying. These are called the "Copying of Records Applications". There are 10 applications in this group: T-684-01, T-763-01, T-880-01, T-895-01, T-896-01, T-1049-01, T-1255-01, T-1448-01, T-1910-01 and T-2070-01.
Group D: A declaration is sought that the Commissioner lacks jurisdiction to require two named parties to answer certain questions on examination under oath. These are called the "Propriety of Questions Applications". There are two applications in this group: T-801-01, and T-891-01.
Group E: A declaration is sought that the Commissioner has no jurisdiction to require the production of certain documents in respect of which a claim for solicitor-client privilege is made. This is called the "Solicitor-Client Application". There is one application in this group: T-1083-01.
3. THE APPLICABLE PRINCIPLES OF STATUTORY INTERPRETATION
[16] Resolution of the issues before the Court turns largely upon the proper interpretation to be given to a number of provisions in the Act.
[17] The starting point for the interpretation of the Act is the following well-known and accepted statement of principle:
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.
See: E.A. Driedger in Construction of Statutes (2nd ed. 1983) at page 87 as cited in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 27.
[18] This approach requires a court to attribute to a legislative provision the meaning that best accords with both the text and the context of the provision. While neither can be ignored, as the Federal Court of Appeal observed in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2003 FCA 180 at paragraph 13, the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.
[19] The Act is to be interpreted in a purposive and liberal manner. See: Canada Post Corporation v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.) at paragraph 33 and Canada (Privacy Commission) v. Canada (Labour Relations Board), [1996] 3 F.C. 609 (T.D.) at paragraph 47.
[20] The Act has been held to strive to balance what has been characterized as a quasi-constitutional right of access with the necessity of having a government able to function efficiently and with the requisite candor. The quasi-constitutional status of legislation is a factor to be considered in interpreting the legislation in that it recognizes the special purpose of the legislation. That status does not, however, operate to alter the traditional approach to the interpretation of legislation. (See: Lavigne v. Canada (Office of the Commission of Official Languages), [2002] 2 S.C.R. 773 at paragraph 25).
[21] Given the need to view the relevant provisions of the Act in the context of the Act as a whole, I now turn to review generally the regime prescribed by the Act.
4. THE LEGISLATIVE CONTEXT
(i) The purpose of the Act
[22] In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 61, Mr. Justice LaForest writing in dissent, but not dissenting on this point, wrote that the "overarching purpose of access to information legislation [...] is to facilitate democracy". The legislation does this by insuring that citizens are properly informed so as to be able to participate meaningfully in the democratic process and by insuring that politicians and bureaucrats remain accountable to citizens.
[23] In subsection 2(1) of the Act, Parliament expressly articulated the purpose of the legislation. The Act is stated to "extend the 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."
(ii) The right of access and requests for access
[24] Subsection 4(1) of the Act provides that every person who is a Canadian citizen or a permanent resident (as defined) "has a right to and shall, on request, be given access to any record under the control of a government institution". The word "record" is broadly defined in section 3 of the Act. The term "government institution" is there defined as "any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I." Requests for access are to be made in writing to the government institution that has control of the record in question (section 6). The general rule (subject to specific exceptions found in sections 8, 9, and 11 of the Act) is that within 30 days of receipt of the request, the head of the government institution to which the request is made shall give written notice to the requester as to whether access to all or part of the record will be given and, where access is to be given, give access to the record or a part thereof (section 7).
[25] Where the head of a government institution refuses to grant access to all or part of a requested record, he or she is required by section 10 of the Act to state in the notice given under section 7 either that the record does not exist or to provide the specific provision of the Act on which the refusal is based or on which a refusal could be reasonably expected to be based if the record existed. This latter provision reflects that the head of a government institution may, but is not required to, indicate whether a record exists. The notice provided to the access requester must also advise of the requester's right to make a complaint to the Commissioner about a refusal of access. Failure to provide a record requested within the time limits set out in the Act is deemed to be a refusal of access (subsection 10(3)).
(iii) The exemptions from access
[26] Sections 13 to 26 of the Act contain provisions that either prohibit the disclosure of certain types of records or grant a discretion to the head of a government institution as to whether a record is disclosed. Illustrative of the prohibitions on disclosure are paragraph 13(1)(a) of the Act which prohibits disclosure of a record containing information obtained in confidence from a foreign state unless that state consents to the disclosure of the record or itself makes the information public, and section 19 of the Act which prohibits disclosure of a record that contains personal information (as defined in the Privacy Act, R.S.C. 1985, c. P-21) unless the information is publicly available, or the disclosure is authorized by the individual to which it relates or is otherwise permitted by section 8 of the Privacy Act. Examples of circumstances where discretion is granted regarding the disclosure of a record are found at section 14, which applies to a record containing information which if disclosed could reasonably be expected to be injurious to the federal government's conduct of federal-provincial affairs, and paragraph 21(1)(b) of the Act which applies to a record that contains an account of consultations or deliberations involving a Minister of the Crown, or the staff of a Minister of the Crown, or government officers or employees.
(iv) The complaint and investigative process
[27] The Commissioner is obliged to receive and investigate complaints made to him (subsection 30(1)). Those complaints may be made in a number of specified circumstances. For example, a complaint may be made where a person has been refused access to all or part of a requested record, and a complaint may be made in respect of any other matter relating to requesting or obtaining access to records under the Act. The Commissioner may also initiate a complaint at his own behest where he is satisfied that there are "reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act" (subsection 30(3)). These powers transcend the simple obligation and right to investigate a specific refusal to give access to a specific requested record.
[28] Before commencing an investigation of a complaint, the Commissioner must notify the head of the concerned government institution of his intent to investigate and also inform the head of the substance of the complaint (section 32). The Commissioner is also obliged to afford to a complainant and to the head of the relevant government institution a reasonable opportunity to make representations (subsection 35(2)).
[29] Section 34 of the Act provides that, subject to the Act, the Commissioner "may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act". Specific powers in relation to the conduct of investigations are reposed in the Commissioner by section 36 of the Act. Examples of these powers are that the Commissioner may summon and enforce the appearance of persons before him, and compel them to give oral or written evidence on oath and to produce such documents as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record (paragraph 36(1)(a)). The Commissioner may receive and accept such evidence or other information as the Commissioner sees fit, whether the evidence or information is, or would be, admissible in a court of law (paragraph 36(1)(c)). The Commissioner may enter into premises occupied by any government institution and may examine or obtain copies of or extracts from relevant books or records found in such premises (paragraphs 36(1)(d) and (f)).
[30] Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Commissioner may during his investigation examine any record to which the Act applies that is under the control of the government institution and "no such record may be withheld from the Commissioner on any grounds" (subsection 36(2)). Subsection 36(5) provides that any document or thing produced pursuant to this section shall be returned by the Commissioner within ten days of a request being made for such return, but nothing in the subsection precludes the Commissioner from again requiring production of the document. The Commissioner is obliged to conduct his investigation in private (subsection 35(1)). Except in the case of prosecutions and court proceedings under the Act, evidence given by a person in proceedings under the Act, and evidence of the existence of such proceedings are inadmissible against a person in a court or in any other proceedings (subsection 36(3)).
[31] After the Commissioner completes his investigation, if he finds that the complaint is well-founded he is required to provide a report to the head of the government institution that has control of the record. The report shall contain the findings of the investigation and any recommendations that the Commissioner considers appropriate. The Commissioner may also request that he be given notice, within a specified period of time, of any actions taken or proposed to be taken in order to implement the Commissioner's recommendations. Alternatively, the Commissioner may request that he be advised of the reasons why no such action has been taken or is proposed. The Commissioner shall also make a report to the complainant. Where the government institution fails to respond to the Commissioner within the time specified, or any action to be taken described by the government institution is inadequate in the view of the Commissioner, the Commissioner shall so advise the complainant and the Commissioner "may include in the report [to the complainant] such comments on the matter as he thinks fit". The Commissioner shall also inform the complainant of his or her right to apply to this Court for a review of the matter investigated (section 37).
[32] The Commissioner can not order that any record be released. His powers are limited to making recommendations to the relevant government institution.
(v) Reports to Parliament
[33] The Commissioner is required to report annually to Parliament on the activities of his office (section 38). Additionally, he may at any time make a special report to Parliament "referring to and commenting on any matter within the scope of his powers, duties and functions" where, in his view, the matter is of such urgency or importance that such report should not be delayed (subsection 39(1)).
[34] This obligation is mirrored in section 72 of the Act which requires the head of each government institution to report annually to Parliament with respect to the administration of the Act within the institution each year.
[35] Section 75 of the Act requires that the administration of the Act be reviewed on a permanent basis by such committee of the House of Commons, the Senate, or of both Houses of Parliament as may be designated by Parliament for that purpose.
(vi) Review by the Federal Court
[36] Section 41 of the Act allows a person who has been refused access and who has made a complaint to the Commissioner in respect of the refusal, to apply to this Court for a review of the matter. Such application is to be made within 45 days of the Commissioner's report to the complainant and is a further independent review of a decision of government as to whether government information should be disclosed.
[37] The Commissioner may, with the consent of the complainant, initiate such application. The Commissioner may also appear before the Court on behalf of any person who has brought such application and, with the Court's leave, may appear as a party to any review (section 42).
[38] On such application, the Court is given the same access to records as the Commissioner is given on his investigation (section 46).
(vii) The confidentiality provisions
[39] The Commissioner and persons acting on his behalf who receive or obtain information relating to an investigation shall, with respect to that information, satisfy the security requirements and take any oath of secrecy required of persons who normally have access to that information (section 61). The Commissioner and those acting on his behalf are prohibited from disclosing any information that comes to their knowledge in the performance of their duties (section 62) and must take every reasonable precaution to avoid the disclosure of and shall not disclose information which the head of a government institution would be authorized to refuse to disclose, or any information as to whether a record exists where the head of a government institution has not indicated whether it exists (section 64). The Commissioner and those acting on his behalf are not competent or compellable in respect of a matter coming to their knowledge as a result of performing duties or functions under the Act, except in cases of prosecutions for offenses under the Act or for perjury, and except with respect to review proceedings in this Court under the Act and appeals therefrom (section 65). Disclosure is, of course, permitted for the purpose of carrying out investigations under the Act and in order to establish grounds for findings and recommendations contained in any report under the Act (section 63).
(viii) Material not subject to the Act
[40] The Act does not apply to certain specific and limited materials. Section 68 provides that the Act does not apply to certain described material which is in the public domain. The Act also does not apply to confidences of the Queen's Privy Council for Canada (as defined) except where such confidences have been in existence for more than 20 years or where they are contained in certain specifically described discussion papers (section 69). Finally, the Act does not apply to information which is the subject of a certificate issued under section 38.13 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (section 69.1). Section 38.13 of the Canada Evidence Act relates to protecting information obtained in confidence from or in relation to a foreign entity and to protecting national defence or national security.
(ix) The Regulations to the Act
[41] Regulations have been enacted pursuant section 77 of the Act. Section 3 of the Access to Information Regulations, SOR/83-507 provides that for the purpose of subsection 4(3) of the Act (which applies to access to records produced from machine-readable records) a record that does not exist, but which can be produced from a machine-readable record may not be produced where its production would unreasonably interfere with the operations of the institution. This reflects the proper concern that the Act not interfere with the operation of government.
(x) Summary
[42] In sum, the Act enshrines a right of access to government information and exceptions to that general right are to be limited and specific. The Act should be interpreted to provide a meaningful right of access. Fundamental to the structure of the Act is that government itself is not to decide whether information is exempt from disclosure. There is an independent review mechanism and the Commissioner's investigation is the first step in that process. The Commissioner is, however, never the decision-maker. At first instance, he or she provides advice to the head of the government department who makes the initial decision about disclosure. Ultimately, in the event of dispute, it is a matter for this Court to determine.
5. GROUP A: THE CONTROL OF RECORDS APPLICATIONS
(i) Additional Relevant Facts
[43] In the course of investigating the complaints arising out of the Prime Minister's agenda requests, the November 12 M5 documents request and the Black documents requests, the Commissioner's delegate caused subpoenas duces tecum to be issued to five individuals who are applicants in these proceedings. In chronological order the following subpoenas duces tecum were issued:
(a) On August 11, 2000 directed to Mr. Bruce Hartley, the Executive Assistant to the Prime Minister with respect to the Prime Minister's agenda requests. The subpoena ordered Mr. Hartley to bring with him:
All records under the control of the Prime Minister of Canada containing information with respect to and including any copy of:
The Prime Minister's Agendas in any format, whether electronic, printed or other format, from January 1, 1994 to June 25, 1999.
(b) On August 11, 2000 directed to Mr. Emechete Onuoha, then the Executive Assistant to the Minister of National Defence; Ms. Meribeth Morris, then the Director of Operations to the Minister of National Defence; and Mr. Randy Mylyk, then the Director of Communications to the Minister of National Defence, all with respect to the November 12 M5 documents request. The subpoenas ordered each person to bring:
All records generated, used or obtained during your duties, whether in your possession or not, containing information with respect to any and all DND M5 management meetings held from January 1, 1999 to October 29, 1999, and including any notes, notebooks, minutes, agendas, e-mails, files whether electronic, printed, handwritten or in any other format.
(c) On March 8, 2001 directed to Mr. Jean Pelletier, the Prime Minister's Chief of Staff, with respect to the Black documents requests. Mr. Pelletier was ordered to bring with him six documents or things as specifically described in the confidential affidavit of C. Lévesque sworn April 11, 2003.
[44] The applicants in Court files T-1640-00 and T-1641-00 (Messrs. Hartley, Onuoha and Mylyk and Ms. Morris) moved for an order prohibiting the Commissioner from proceeding to enforce the subpoenas duces tecum. While initially successful, on appeal the Federal Court of Appeal held that the subpoenas should not have been set aside. See: Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25 ("the interlocutory appeal"). Following the release of the decision of the Federal Court of Appeal a further subpoena duces tecum was issued to Mr. Pelletier. Thereafter, all of these applicants attended before the Commissioner's delegate and produced records in compliance with the subpoenas.
[45] In these applications the applicants seek the following relief:
T-1640-00: a declaration that the records which are copies of the Prime Minister's daily agenda books for fiscal or calendar years 1994 to June 25, 1999 and are under the control of the Office of the Prime Minister are not records under the control of the Privy Council Office within the meaning of that phrase in subsection 2(1) of the Act.
T-1641-00: a declaration that personal notes made by the applicants in their notebooks, being notes of some things said during the M5 management meetings for 1999, are not records under the control of the Department of National Defence, within the meaning of that phrase in subsection 2(1) of the Act.
T-606-01: a declaration that the subject documents relating to the Black documents requests are under the control of the Office of the Prime Minister and are not records under the control of the Privy Council Office within the meaning of that phrase in subsection 2(1) of the Act.
[46] During the course of the oral argument of these applications, the applicants in T-1641-00 withdrew their request for a declaration that the records which are copies of minutes or documents produced from the M5 management meetings for 1999 under the control of the Office of the Minister of National Defence are not records under the control of the Department of National Defence.
[47] In support of their claims for declaratory relief, the applicants have sworn affidavits which describe generally the documents at issue, how the documents were created and maintained and who has access to the documents. The applicants also describe their positions as members of the "exempt staff" of either the Prime Minister or the then Minister of National Defence. The applicants swear that they are not members of the Public Service nor are they employees of either the Privy Council Office or the Department of National Defence. They hold office at pleasure.
[48] The applicants also rely upon the affidavit of Nicholas d'Ombrain, a former Deputy Secretary of Cabinet and Assistant Secretary to the Cabinet for Machinery of Government. Mr. d'Ombrain provided his opinion with respect to the functioning of a minister's office and the relationship between a minister and his or her department.
[49] David Pugliese is an added party respondent in Court file T-1641-00. Mr. Pugliese is a journalist with The Ottawa Citizen who has voluntarily disclosed that he was the access requester in the November 12 M5 documents request and that he complained to the Commissioner as a result of not receiving the documents he requested. In his affidavit filed in Court file T-1641-00, Mr. Pugliese attached certain documents received from the Department of National Defence after his complaint was made.
[50] Mr. Pugliese also relies upon the affidavit of Michael Whittington, Distinguished Research Professor, Department of Political Science, Carleton University. Mr. Whittington responds to the affidavit of Mr. d'Ombrain and describes a minister's role and responsibility as the head of a government institution. Mr. Whittington also explains the day-to-day relationship among a minister, his or her office, and the government department over which the minister presides.
[51] Finally, Mr. Pugliese relies upon the affidavit of Mr. Bruce MacLellan who was the Chief of Staff to the Honourable Perrin Beatty during Mr. Beatty's tenure as Minister of National Defence. Mr. MacLellan's affidavit describes the nature and responsibilities of his former position and the type of subject matter he dealt with as Chief of Staff to the Minister of National Defence.
[52] The investigation into the complaints arising from Black documents requests was concluded in June of 2002. The Commissioner dismissed the complaints on the basis that even if the records were found to be under the control of the Privy Council Office, disclosure of the records could properly be denied under the exemption provisions of the Act. No application for judicial review was brought in respect of the decision of the Privy Council Office refusing to disclose further records.
[53] The Commissioner has filed the affidavit of a paralegal assistant employed by his office. The paralegal assistant swears that the investigations into the Prime Minister's agendas requests and the November 12 M5 documents request are ongoing.
(ii) The Positions of the Parties and the Issues to be Determined
[54] It is the position of the applicants that the Prime Minister's Office and the office of a minister of the Crown are separate and distinct from the Privy Council Office or the department for which that minister is responsible. This is said, by the applicants, to be a long-standing controversy between the government of the day and the office of the Commissioner. Because of this long-standing dispute, the applicants say that the requested declarations should issue in order to make it clear that documents under the control of the Prime Minister's Office or a minister's office are not subject to the Act.
[55] It is the position of the Commissioner that the Court should exercise its discretion and dismiss the applications as being premature, unnecessary and improper. The Commissioner argues that the question of control is a question initially to be determined by the Commissioner following completion of his investigations.
[56] With respect to Court files T-1640-00 and T-1641-00, the Commissioner argues that his investigations into the underlying complaints are ongoing. It follows, the Commissioner argues, that his role as a neutral fact-finder will be fundamentally impaired if he is required to take a position on this question while his investigation is ongoing. Therefore, in order to maintain his neutrality and integrity, the Commissioner has taken no position in these applications on the control issue.
[57] With respect to Court file T-606-01 relating to the Black documents requests, the Commissioner argues that the application is moot because his investigation has been completed, there is no pending application for judicial review and the matter is therefore at an end.
[58] Mr. Pugliese opposes the applicants' request for declaratory relief on two bases. First, he argues that Parliament intended the phrase "under the control of a government institution" as used in subsection 4(1) of the Act to be interpreted broadly in order to make the right of access to government information meaningful. He argues that there exists no exemption from the application of the Act for records in the control of a minister's office and that in the absence of such an exemption the declarations would effectively "carve out" important repositories of government information from the scope of the Act. Second, Mr. Pugliese argues that the requests for declaratory relief should be dismissed because they are improper and premature.
[59] A further procedural dispute exists between the applicants and the Commissioner with respect to whether the Commissioner is a proper respondent to the Group A applications. The applicants assert that he is, while the Commissioner asserts that he is not.
[60] Accordingly, I frame the issues to be decided in this group of applications as follows:
1. Should the Commissioner be named as respondent in Court files T-1640-00 and T-1641-00?
2. Is the issue raised in Court file T-606-01 moot and should the Commissioner be named as respondent in this application?
3. Should the Court exercise its discretion to grant the requested declarations?
4. If so, are the records in question under the control of the Prime Minister's Office or the office of the Minister of National Defence and not under the control of the Privy Council Office or the Department of National Defence within the meaning of subsections 2(1) and 4(1) of the Act?
(iii) Analysis
(a) Should the Commissioner be named as respondent in Court files T-1640-00 and T-1641-00?
[61] By order dated October 19, 2000, Mr. Justice McKeown granted the applicants' motion for an order authorizing the Commissioner to be named as respondent in Court files T-1640-00 and T-1641-00. Mr. Justice McKeown's order was never varied on this point. Notwithstanding, the Commissioner now states that circumstances have changed since the order was made. The Commissioner particularly relies on the fact that since Mr. Justice McKeown made the order on October 19, 2000, the applicants have abandoned their claims for all substantive relief other than their claims for declaratory relief. It follows, the Commissioner asserts, that he is entitled to take the position that he has been improperly made a respondent with respect to the Group A applications.
[62] In my view, Mr. Justice McKeown's order is dispositive of this issue. In the absence of a motion brought to vary or set aside the October 19, 2000 order it is not appropriate for the Commissioner to now assert that he is not a proper respondent in these two applications.
(b) Court file T-606-01: Is it moot and is the Commissioner a proper respondent?
[63] The Commissioner, as noted above, has concluded his investigation into the complaints arising out of the refusal of the Privy Council Office to grant access to the Black documents. The complaints were dismissed on the basis that the relevant records would qualify for exemption under the Act and it was therefore unnecessary for the Commissioner to make a finding as to whether or not the records were subject to the Act. The requesters did not bring proceedings in this Court to review the decision not to disclose further documents to them.
[64] In that circumstance, there is no dispute between the applicants in Court file T-606-01 and the Commissioner in the sense that the relief sought in that application will have no practical effect with respect to the requests for the Black documents. This is so because the Commissioner has concluded that the requesters received all of the records to which they were entitled under the Act, and the requesters have not pressed the matter further. This application is therefore moot.
[65] Notwithstanding, the applicants argue that the Commissioner has in effect "skirted" the issue, and that unless the Court renders a decision on the control issue it will continue to confront the parties. The applicants therefore submit that the Court should nonetheless grant the declaratory relief sought in Court file T-606-01.
[66] Where a case has become moot, the Court does retain discretion to hear the case if circumstances warrant. The factors to be considered in the exercise of that discretion are first, the existence of an adversarial context, second, judicial economy and the conservation of judicial resources and third, the need for the Court to demonstrate awareness of its proper function. See: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[67] In my view, the determinative circumstance with respect to the exercise of this discretion is that the control issue asserted in Court file T-606-01 remains a live issue in Court files T-1640-00 and T-1641-00. Given that, and the conclusion I have reached with respect to those applications, I am satisfied that there is no need for the Court to exercise its discretion to allow the control issue raised in Court file T-606-01 to proceed. No benefit would result from allowing the issue to go forward in Court file T-606-01.
[68] As to whether the Commissioner is a proper respondent in that court file, given that the Commissioner appeared and argued that the application for declaratory relief is moot, and given that I have accepted that submission, I am satisfied that the Commissioner is a proper respondent.
[69] The alternative to naming the Commissioner as respondent would be for the applicants to have named the Attorney General of Canada as respondent, pursuant to Rule 303(2) of the Federal Court Rules, 1998. However, as Mr. Justice McKeown noted in his reasons accompanying his October 19, 2000 order, this would lead to the absurd result that the Attorney General would be both applicant and respondent. To avoid that result and because the Commissioner appeared and argued the mootness issue, I grant leave as requested in the notice of application for the Commissioner to be the respondent in this application.
(c) Should the Court exercise its discretion to grant the requested declarations?
[70] The Court, without doubt, has jurisdiction under section 18.1 of the Federal Courts Act, R.S.C. 1985, c F-7 to grant the relief requested. This was confirmed by the Federal Court of Appeal in its reasons arising from the interlocutory appeal. The Court of Appeal further confirmed, however, that such relief was discretionary so that the judge hearing the application for judicial review retained discretion to refuse relief if, for example, he or she was persuaded that it would be premature for the Court to intervene. See: Canada (Attorney General) v. Canada (Information Commissioner), supra at paragraphs 8 and 9.
[71] As to when courts exercise discretion not to grant declaratory relief, courts will generally refuse relief where an adequate alternative remedy exists, where the claim is not ripe for determination, or where the declaration is sought to settle a dispute which is contingent upon a future event which may not occur. This list is not exhaustive. Declaratory relief is available on a preventative basis where there is a cognizable threat to a legal interest. See: Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at pages 456 to 458; Brown and Evans, Judicial Review of Administrative Action in Canada, Canvasback Publishing, Toronto, 1998, Looseleaf Edition, pp 1-68 to 1-71.
[72] In order to properly consider the exercise of discretion, in my view it is necessary to ascertain whether the issue of control poses a question of law, mixed fact and law, or fact alone and, to the extent that it is not a pure question of law, to assess the character of the evidence required in order to answer the question.
The nature of the question of control and the character of the evidence relied upon by the applicants.
[73] The applicants argue that the question of whether records within the control of a minister's office are records "under the control of a government institution", within the meaning of that phrase as used in subsection 4(1) of the Act, has never been addressed by a court of competent jurisdiction. The applicants therefore rely on jurisprudence from Ontario and British Columbia which deals with provincial access legislation.
[74] From cases such as Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.), British Columbia (Ministry of Small Business, Tourism and Culture) v. British Columbia (Information and Privacy Commission) (2000), 7 C.P.R. (4th) 301 (B.C.S.C.) and Greater Vancouver Mental Health Service Society v. British Columbia (Information and Privacy Commissioner), [1999] B.C.J. No. 198 (B.C.S.C.), the applicants argue that the indicia of control are factors such as: whether the individuals in possession of the relevant documents were employees or officers of a government institution; whether there is evidence that the documents are, in fact, controlled by a government institution; whether the content of the record relates to the government institution's mandate and functions; and whether the record is closely integrated with other records held by a government institution. The applicants, conceding that control is "not a matter of geography", then point to the evidence adduced on their behalf in order to argue that the documents at issue are not "under the control" of a government institution because:
(a) The records sought are not in the possession of any government institution;
(b) The records sought are not in the possession of any employee, officer, consultant or contractor of any government institutions;
(c) No government institution has a statutory, contractual or other legal right to dictate how the relevant documents should be created, used, maintained or disposed of;
(d) No government institution has any property rights in the records sought;
(e) No government institution has any lawful right to possession of the records sought;
(f) No government institution has any right to inspect, review, possess or copy the records sought; and
(g) No government institution purports to have nor has exercised any control over the records sought.
[75] From these submissions, I take that in the view of the applicants the question of control is not a pure question of law, but rather is a question of mixed fact and law. This is a position accepted in oral argument by counsel for the Commissioner. It follows on the basis of the submissions of the applicants and the Commissioner that in order to determine whether records are under the control of the government institution questions of fact will have to be resolved.
Relevant Factors in the Exercise of Discretion.
[76] Having situated the nature of the question posed and the character of the evidence relied upon by the applicants, I turn to consider the submission of the Commissioner, supported by Mr. Pugliese, that the Court ought to exercise its discretion to refuse the requested declarations because they are premature, unnecessary and improper. In my view in order to address the issue of prematurity, the relevant factors to consider are:
1. The statutory scheme.
2. The adequacy of the statutory scheme.
3. Control as a question of jurisdiction for the Commissioner.
4. The state of the evidentiary record
5. The existence of prejudice to the applicants if the declarations are not granted at this time.
[77] I shall consider each factor in turn.
1. The statutory scheme
[78] The regime or scheme prescribed by the Act with respect to access requests has been reviewed in some detail, commencing at paragraph 22 of these reasons. Features of particular relevance to the arguments of prematurity, lack of necessity and impropriety are the requirement that decisions on disclosure should be reviewed independently of government, the provision of a two-tiered independent review process wherein the Commissioner provides the first level of independent review, the statutory obligation on the part of the Commissioner to investigate all complaints made to him, and the obligation of the Commissioner to report to a complainant after the completion of the Commissioner's investigation. The investigation the Commissioner is required to conduct has been described as the "cornerstone" of the access to information scheme. See: Canada (Information Commissioner) v. Canada (Minister of National Defence), (1999) 240 N.R. 244 (F.C.A.) at paragraph 27.
[79] Parliament's view of the importance of the Commissioner's investigation and report is demonstrated in section 41 of the Act which provides that a person who has been refused access and who wishes to challenge such refusal in court must first have complained to the Commissioner and, as a general rule, must wait for the Commissioner to report to the complainant as to the results of the Commissioner's investigation.
[80] The importance of the Commissioner's investigation is further illustrated in Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341, where the Federal Court of Appeal held (under the parallel provisions of the Privacy Act) that a government institution can not invoke new discretionary exemptions after the Commissioner's investigation is complete because to do so would deprive the complainant of the benefit of the Commissioner's investigation. The Court of Appeal noted that while this Court has adequate powers of review, it lacks the investigative staff and the flexibility of the Commissioner.
[81] The relevance of the statutory scheme and the importance of the Commissioner's investigation to the issue of prematurity is that while the Court has the jurisdiction to grant the relief requested, to do so would circumvent Parliament's general intent that the Court is to exercise its independent review after the Commissioner has completed his investigation and after the head of the affected government institution and the complainant have had the benefit of the Commissioner's investigation.
[82] It is also significant when considering this scheme to note that in the present application the Commissioner has, legitimately I believe, concluded that he is unable to take a position on the merits of the control issue because to do so would impair his role as a neutral fact-finder in ongoing investigations. Thus, the application is opposed on its merits only by Mr. Pugliese. While ably represented by counsel, Mr. Pugliese lacks the expertise and resources of the Commissioner. Mr. Pugliese himself asserts that this proceeding deprives him of his statutory right to the full investigation of his complaint by the Commissioner.
2. The adequacy of the statutory scheme
[83] The adequacy of the statutory scheme is an important factor because the declarations should only be refused as being premature if recourse to the statutory scheme will provide an adequate remedy to the applicants.
[84] The statutory scheme protects the applicants from the risk that the records in question will be released by the Commissioner. This is because the Commissioner has no jurisdiction to order disclosure of any of the records at issue. Disclosure can only be ordered by the Federal Court in the event that, after the Commissioner concludes his investigation, either the requester or the Commissioner seeks, pursuant to section 41 or 42 of the Act, judicial review of any subsequent refusal to disclose a record. In such case, the Court will have the benefit of the Commissioner's investigation and report. Both this Court and the Federal Court of Appeal have held that the considered opinion of the Commissioner is a factor to be considered on judicial review in this Court. See, for example: Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.) at paragraph 14; 3430901 Canada Inc. v. Canada (Minister of Industry) (2001), 14 C.P.R. (4th) 449 (F.C.A.) at paragraph 42 and Rubin v. Canada (Canada Mortgage and Housing Corporation), [1989] 1 F.C. 265 (C.A.) at page 272.
[85] I am satisfied that recourse to the statutory scheme would provide an adequate remedy to the applicants because in the event that the Commissioner, after the conclusion of his investigation, does recommend disclosure of any of the records at issue any refusal of access may be reviewed in this Court.
[86] With respect to the Black documents requests, I have considered the applicants' submission that in the investigation into the complaints, the Commissioner in effect "mooted" the control issue so that there is a need for resolution of the control issue as it is framed by the applicants.
[87] The applicants in their notices of application frame the issue of control as follows:
There has been a longstanding dispute between the Information Commissioner and responsible officials of the Government of Canada with respect to whether documents under the control of the office of a Minister of the Crown, or under the control of an employee of an office of the Minister of the Crown, are "under the control" of the department or other government institution for which that Minister is responsible. The Information Commissioner asserts the position that documents under the control of a Minister of the Crown are under the control of the department or other government institution for which that Minister is responsible. Officials of the Government of Canada do not accept that position. [underlining added]
The issue is similarly framed by the applicants in their written argument.
[88] However, counsel for the Commissioner argues that this is not a fair statement of the Commissioner's position. Rather, it is said that the current and previous Commissioners have taken the position that records held in the offices of Prime Ministers or ministers are not immune from access by the Commissioner for the purpose of making an independent determination as to whether records withheld from an access requester are under the control of a government institution for the purpose of section 4 of the Act. Counsel for the Commissioner advised that it is the position of the Commissioner that records held in the office of the Prime Minister or a minister do not automatically fall outside the control of the government institution over which the minister or Prime Minister presides. Rather, the issue of control must be decided on a case by case basis, considering all relevant factual and legal contextual elements.
[89] In support of this submission, counsel for the Commissioner pointed to page 52 of the "Annual Report Information Commissioner 1994-1995" and to the following statement:
Lessons Learned
When a search is made for records related to an access request, the record holdings in the minister's office must also be considered. Some records may of course be exemptible under the Act. Others may be purely personal records or records relating to constituency affairs and, hence, not covered by the Act. Still others may be cabinet confidences which are excluded from the Act. And, so, while not all records in a minister's office (or anywhere else in a department) may be discloseable, records do not cease to be subject to the Act simply by virtue of being held in a minister's office.
[90] This approach is said by the Commissioner not to differ from that advocated by the applicants, namely that the issue of control should be treated as a question of mixed fact and law to be considered on a case by case basis.
[91] Given the applicants' legal characterization of the control issue in this proceeding, and the statement of the Commissioner through his counsel as to his position on the control issue (as confirmed in the 1994-1995 Annual Report), I am persuaded that allowing the Commissioner's investigation to continue will provide an adequate remedy to the applicants. While the applicants argue that they should know now whether documents are within the control of a government institution so that provisions such as paragraphs 5(1)(b) and 70(1)(a) of the Act may be complied with, there is no evidence that this is a pressing need. Further, those paragraphs apply to government institutions and the Commissioner is not arguing that the Prime Minister's Office or a minister's office is a government institution. I have therefore not been satisfied on proper evidence that any prejudice will arise as a result of the further delay that will be caused by dismissing these applications so that the Commissioner's investigations may continue.
[92] Finally, having regard to the excerpts from Annual Reports of the Commissioner in evidence, I am not persuaded that the issue of control is one which will be "skirted" indefinitely by the Commissioner so as to improperly forestall any required adjudication upon the issue by this Court.
3. Control as a question of jurisdiction for the Commissioner
[93] No challenge is brought by the applicants to the jurisdiction of the Commissioner to investigate the complaints at issue. It follows from subsection 4(1) of the Act that, as part of that investigation, the Commissioner must necessarily determine whether in his view the relevant records are under the control of a government institution. Thus the question of control may be seen as a threshold question going to the Commissioner's jurisdiction to investigate.
[94] The scheme of the Act as described above is sufficiently comprehensive that I conclude that the Commissioner has the authority to initially determine whether records are within the control of a government institution. The correctness of such a determination is then reviewable by this Court in a proceeding brought pursuant to sections 41, 42 or 44 of the Act. See also: Canada Post Corp. v. Canada (Public Works) (1993), 68 F.T.R. 235 (T.D.) at paragraph 7.
[95] The relevance of this conclusion is that, generally, it is preferable to allow a tribunal to determine initially whether matters fall within its jurisdiction. The Federal Court of Appeal has held (in the context of the Canadian Human Rights Commission) that the Court should not intervene to prevent a tribunal from carrying out a statutorily mandated duty to inquire into matters which may arguably fall within its jurisdiction, unless the Court can say with confidence that those matters are not within the tribunal's jurisdiction. See: Singh (Re) (C.A.), [1989] 1F.C. 430 (C.A.) at paragraphs 4 through 11.
4. The state of the evidentiary record
[96] Having determined that the issue of control is not a pure question of law, but is one of fact and law, it is relevant to consider the state of the evidentiary record. Any need to resolve factual issues or any uncertainty about the completeness of the required record will weigh strongly against granting declaratory relief.
[97] The applicants argue that the onus is upon the Commissioner to show that there are factual issues which need to be resolved and which make these declaratory proceedings premature. The applicants further assert that there is no evidentiary basis upon which the Court can conclude that there are outstanding factual issues.
[98] In order to assess whether there is a satisfactory evidentiary record, it is relevant to consider the nature of the evidence relied upon by the applicants, the extent to which the evidence of the applicants' expert impacts upon that evidence, the extent to which Mr. Pugliese has adduced evidence which raises factual issues or concerns and the applicants' failure to put in evidence the records in question, on a confidential basis, for the Court's review.
[99] As noted above, the applicants have sworn affidavits which describe their positions as members of the "exempt staff" and which describe generally the documents at issue, and how they were created and maintained. Typical is the affidavit of Mr. Onuoha. With respect to the records at issue in his possession, his notebooks, he swears that:
22. The notebooks are kept by me for my own personal use to record things that occur and people to whom I speak in my day to day activities. I use them to refresh my memory of items done and to do, including items discussed with the Minister.
23. I treat these notes as transitory and only useful so long as follow up is required with respect to anything noted therein. Once the follow up is done, I no longer consult the notebooks.
24. I have in my possession four notebooks described in the subpoena: one dated January 19 to March 17, 1999; one dated March 18 to May 17, 1999; one dated May 18 to September 2, 1999; and one dated September 3, 1999 to December 15, 1999. I also have a notebook from late 1998 that includes January 1 to 18, 1999. However, there is nothing in this book relating to M5 for January 1 to 18, 1999.
25. My notebooks also contain information relating to my duties in support of the Minister, such as internal staff meetings, personal thoughts, notes made during seminars or other events and meetings that I have attended, and matters that the Minister has briefed me on.
26. My notebooks also contain information about the Minister's various roles and duties, and my involvement in them. In particular, they include:
(a) notes of the Minister's dealings with his responsibilities in respect of the Department of National Defence;
(b) notes of the Minister's dealings with other Ministers and his responsibility as a member of the Cabinet;
(c) notes about Liberal Party policy matters;
(d) notes about the Minister's role as Vice Chair of the Economic Union Committee of Cabinet; and
(e) notes of my discussions with counterparts in other Minister's offices, including the Prime Minister's Office.
Because the notes made are not intended to be a permanent official departmental record, I could not attest to their accuracy in every instance.
27. The notebooks also contain personal information like personal contacts and family-related information.
28. These notebooks are not part of the records management system of the Minister's Office. As the Minister's Office is separate from the Department of National Defence, these notebooks have not been included in the departmental records management system.
29. I have always considered these notebooks to be personal to me. They are not shared with anyone in the Minister's Office.
30. No official of the Department of National Defence has ever asked to look at these notebooks. No such official, up to and including the Deputy Minister or the Chief of the Defence Staff, has authority to compel me to produce them.
[100] The applicants were not cross-examined upon their affidavits. However, the applicants' views as to whether the notebooks are producible to the Department of National Defence is not determinative. Whether production of the records can be compelled is, at least in part, a question of law. As the Court of Appeal noted in its reasons given in respect of the interlocutory appeal, it is not for an individual applicant to decide where control lies for the purpose of the Act.
[101] The applicants' evidence must also be viewed in the light of the evidence of their expert, Mr. d'Ombrain. In dealing with the nature of the office of a minister Mr. d'Ombrain swore, among other things, that "exempt staff" provide a minister with support across the range of the minister's responsibilities. I take from this that exempt staff assist a minister with respect to departmental issues and this is consistent with Mr. Onuoha's evidence in paragraph 26(a).
[102] On cross-examination Mr. d'Ombrain stated that:
i) A minister presides over a department and has the management and direction of the department;
ii) While his affidavit dealt with the "traditional ministerial office", "as a practical matter, we also know that in the last 30 years ministers' offices have had in them public servants who provided administrative support services of various sorts, principally in relation to records and the flow of paper between the department and the minister and so on";
iii) Mr. d'Ombrain was not provided with access to the actual set up of the departments involved in these proceedings, so that he did not know how the records of the Minister of National Defence's office were set up in relation to information coming either under the Minister's role as Member of Parliament, the Minister's role as having politically partisan concerns or the Minister's departmental concerns. Notwithstanding, Mr. d'Ombrain agreed that:
164. Q. But do you agree with me that as a matter of practice the exempt staff will handle all three of these types of information?
A. I do.
165. Q. And that they will either obtain or generate documents which contain information relevant to either one or a combination of these three functions, or these three hats?
A. Among others. I wouldn't restrict it to those three categories.
166. Q. There may be personal matters also?
A. Yes. As I also said, there will be other responsibilities that the minister has where they will have information.
iv) Mr. d'Ombrain agreed that ministerial and departmental staff work together on a day to day basis. A minister is accompanied by one or more exempt staff when he or she confers with the Deputy Minister. So long as the working relationship between the minister's staff and the senior people in the department is good, the actual day to day working relationships may extend far down into the department; and
v) Finally, Mr. d'Ombrain agreed that there is an inevitable overlap of functions in the office of a minister, and that one document could contain information on departmental matters as well as political and constituency matters. In Mr. d'Ombrain's words:
187. Q. So there is an inevitable overlap, is there not -
A. Absolutely.
188. Q. - - within the minister's office between departmental functions, ministerial functions and constituency functions?
A. The short answer is yes, but just to define that for a moment; departmental is clear, constituency clear; ministerial, that includes all these other responsibilities that the minister has. So yes, with that definition of the term "ministerial functions", I agree, yes.
189. Q. Now, is it not also the reason why in your affidavit you recognize the fact that the deputy minister, although non-partisan, must be politically sensitive in his relationships with the minister?
A. It is a fact, yes.
190. Q. That is one of the reasons why, even when there's a new government, the non-partisan public service staff will take great care in analyzing and understanding the policital will of the new government?
A. That's correct.
191. Q. And that would again explain why there's an overlap between what I will call the governance issues and the political issues that are germane to the minister's position?
A. There certainly is an overlap, and the answer is yes.
192. Q. And that at any given time one will find in the minister's office information and documents which contain briefings of a political nature, constituency nature and departmental nature?
A. Yes, and other things.
193. Q. And other things?
A. Right; agencies and so forth.
194. Q. And one document may contain information from each one of these areas?
A. Yes, I can certainly foresee that.
195. Q. And the only way to make the distinction between these documents would be to look and see what they contain?
A. Yes, evidently.
[103] The Court of Appeal noted in the interlocutory appeal of this matter that control under the Act is not a defined term. The Court, at paragraph 28, quoted with approval the following from Canadian Post Corp. v. Canada (Minister of Public Works), supra:
The notion of control referred to in subsection 4(1) of the Access to Information Act (the Act) is left undefined and unlimited. Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or "de jure" and "de facto" control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen's right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government.
[104] Therefore, control is not to be given a limited meaning, but rather a broad meaning so as to confer a meaningful right of access. Things such as the content of a record may shed light on control as could a right of partial or transient or de jure access.
[105] In Greater Vancouver Mental Health Services Society, supra, (one of the authorities relied upon by the applicants) one of the indicia of control was found to be the extent that the content of a record related to the institution's mandate and functions.
[106] At the least, the effect of Mr. d'Ombrain's evidence is to suggest that, to the extent that the staffers notebooks record the Minister's dealings with respect to his responsibilities as head of the Department of National Defence, the notebooks may contain information that casts light upon whether the notebooks or portions thereof are accessible under the Act.
[107] Turning to the evidence adduced by Mr. Pugliese, his affidavit attaches some of the documents released to him pursuant to his access request. One document is a letter dated August 6, 1999 from the Chief of the Defence Staff to the Minister of National Defence with respect to a Board of Inquiry commenced to investigate whether members of the Canadian Forces serving in Croatia during 1993 through 1995 were exposed to sufficient quantities of environmental contaminants as to pose a health hazard. Controversy had arisen with respect to the president of the Board of Inquiry and four options to deal with the controversy were set out in the letter. The letter concluded by stating that the Chief of the Defence Staff looked forward to discussing the matter with the Minister and the Deputy Minister at the next M5 meeting.
[108] This letter reflects the Minister's involvement in the affairs of the Department of National Defence and that the Minister's office received government information that is otherwise subject to disclosure under the Act. To the extent that staffers attend M5 meetings and make notes about departmental affairs, the jurisprudence relied upon by the applicants suggests that it is at least arguable that some of the contents of the notebooks may be in the control of a government institution.
[109] Professor Whittington's affidavit makes the point that while ministers have diverse roles and responsibilities, "it is impossible to disaggregate most of these from the role played by a minister as the head of a government department, and the person ultimately responsible for its mandate". Professor Whittington further notes that in practice ministerial staff and departmental officials often work very closely together and that increasingly departmental employees are seconded to minister's offices in order to facilitate the flow of information between a department and the responsible minister's office.
[110] With respect to the functioning of the Minister of National Defence's office under Mr. Beatty, Mr. McLellan's evidence was that, among other things, his responsibilities included:
1. Taking direction from the Minister on how departmental matters were to be handled, and ensuring that the Minister's directions were implemented;
2. Accompanying the Minister of National Defence throughout meetings of the senior management group of the Department of National Defence;
3. Being the primary contact person in the Minister's office for the National Defence Operations Center which monitored all ongoing operations of the Department of National Defence and kept personnel in Ottawa informed as required; and
4. Meeting regularly with senior departmental officials in order to assist in developing recommendations for the Minister and to ensure that the Minister's views and interests on policy and political issues were addressed within the Department. On occasion, Mr. McLellan gave instructions to senior departmental officials on behalf of the Minister. In this regard, Mr. McLellan worked regularly with the Deputy Minister, the Assistant Deputy Minister for policy and procurement, and the Chief of the Defence Staff. The Minister's office was staffed to provide parallel contact and coordination between exempt staff and officials in the Department in areas including procurement, policy, legislation, communications, search and rescue, and Cabinet document preparation.
[111] Mr. McLellan said that as Chief of Staff to the Minister he was involved in virtually all matters falling within the mandate of the Department of National Defence. As examples, he cited:
1. He worked with other exempt staff and with departmental officials on a number of procurement matters including the procurement of frigates, coastal patrol vessels, and nuclear-propelled submarines;
2. He worked with other exempt staff and departmental officials on policy formulation relating to Canada's defence policy, NATO and NORAD issues, peace-keeping, Department of National Defence property issues, and base operations; and
3. He participated in the review of access to information requests and operated under the assumption that records generated by him and all others in the Minister's office were subject to the Act.
[112] Neither Professor Whittington nor Mr. MacLellan were cross-examined on their affidavits. Their evidence, and the contents of the documents in evidence which were disclosed to Mr. Pugliese, raise, in my view, a real issue as to whether the role of a minister or Prime Minister can be easily or finely parsed in order to put beyond doubt the mixed question of fact and law of whether the records in question are outside the control of a government institution.
[113] When this evidence is viewed together with Mr. d'Ombrain's cross-examination, I am persuaded that it may well be the case that a decision as to whether a record is in the control of a government institution must be made on a record by record basis having regard to a number of factors, including the content of the record.
[114] This brings me to consideration of the fact that the applicants did not put the records in question in evidence on a confidential basis. The applicants submit that this is unnecessary because the Commissioner has seen the documents and because the documents have been sufficiently described. Without concluding that this is necessarily fatal, the absence of the records is a matter of concern. Had the records been placed before the Court, the Court would have been able to assess whether or not the records were related to the departmental functions of the Minister or Prime Minister. The jurisprudence cited makes this a relevant factor.
[115] Further, while the Commissioner has examined the individual applicants in the course of his investigations, I accept that the Commissioner is unable to challenge the contents of their affidavits on the basis of their testimony before the Commissioner. This is because of the provisions of subsection 36(3) and sections 62 and 63 of the Act. The applicants in oral argument accepted that limitation, but submitted that the Commissioner could nonetheless have cross-examined the applicants in this proceeding asking them the same questions put to them in their examination before the Commissioner's delegate. In my view, the need for such a cumbrous procedure supports the view that the present applications are premature.
[116] To conclude on this factor, the onus is on the applicants as moving parties in these proceedings to satisfy the Court that there is a proper evidentiary basis upon which the Court can make the necessary finding as to whether the records are under the control of either the Privy Council Office or the Department of National Defence. The evidence adduced by the respondents, including the cross-examination of Mr. d'Ombrain has raised doubt as to the completeness of the evidentiary record.
[117] In sum, given that the question of control is not a pure question of law, but a question of mixed fact and law, the whole of the evidence taken together is such that I am concerned that it would be unsafe to make the declarations requested on the evidentiary basis before the Court.
5. The existence of prejudice to the applicants if the declarations are not granted
[118] The final relevant factor is whether the applicants will suffer prejudice if the applications are dismissed at this time as being premature. In my view, they will not. As the respondent Commissioner argues, if the Commissioner is allowed to complete his investigation there will be one of four possible outcomes. They are:
1. The Commissioner may agree with the refusal and the Commissioner's resulting report may satisfy the requester(s) that the refusal is lawful, in which case the matter ends;
2. The Commissioner may recommend disclosure of all or part of the requested records, and the head of the government institution may accept that recommendation, in which case the matter ends;
3. The Commissioner may agree with the refusal, but the requester may choose to seek review before the Court under section 41 of the Act; or
4. The Commissioner may recommend disclosure, and the head of the government institution may reject that recommendation, and the matter may come before the Court under either or both of sections 41 and 42 of the Act.
[119] The evidence does not establish that any of those scenarios would result in prejudice to the applicants. Judicial review would remain available should the requester(s) and or the Commissioner challenge the lawfulness of any refusal of access.
[120] Moreover, the issue of prejudice has already been addressed in these proceedings by the Federal Court of Appeal in the interlocutory appeal. There the Court found that no irreparable harm would arise if the Commissioner pursued his investigation by enforcing a subpoena duces tecum. See: Canada (Attorney General) v. Canada (Information Commissioner), supra at paragraphs 10 through 23.
(iv) Conclusion re Group A
[121] The foregoing analysis leads me to conclude that:
i) Parliament and the Court have recognized the importance of the Commissioner's investigation and independent review where access rights are in dispute. While the Court has jurisdiction to grant the relief requested, the Court should be cautious because to do so will deprive the applicants, the complainants and the Court of the benefit of the Commissioner's investigation and report;
ii) Following the statutory scheme will afford an adequate remedy to the applicants;
iii) The issue of control can be seen as a threshold question of jurisdiction. The Court has generally held that such questions are best initially resolved by the affected tribunal, in this case the Commissioner;
iv) A real issue has been raised as to the completeness of the evidentiary basis before the Court. Should the Commissioner's investigation be concluded and the matter then come before this Court pursuant to an application brought pursuant to section 41 or 42 of the Act, the Court would benefit from the Commissioner's ability to disclose information to establish the grounds for the findings and recommendations contained in his report as permitted by subparagraph 63(1)(a)(ii) of the Act; and
v) The evidence does not support the conclusion that the applicants will suffer any prejudice if the applications are dismissed as being premature.
[122] Therefore, in the exercise of the Court's discretion, I conclude that these applications are premature and unripe and should be dismissed on that ground.
[123] Because the declarations are refused on the ground that they are premature, it follows that the Commissioner's investigations will in all likelihood continue. The Court in that circumstance should refrain from any comment upon the merits of the control issue.
[124] Accordingly, an order will issue confirming that the Commissioner is a proper respondent in Court files T-1640-00, T-1641-00 and T-601-01. The order will dismiss the application brought in Court file T-606-01 on the ground that it is moot, and dismiss the remaining applications in this group on the ground that they are premature and unripe.
6. GROUP B: THE "CONFIDENTIALITY ORDER" APPLICATIONS
(i) Additional Relevant Facts
[125] In the course of investigating the five complaints (the four complaints made to the Commissioner and the self-initiated complaint with respect to the September 22 M5 request) the Commissioner's delegate caused subpoenas duces tecum to be issued to individuals who are applicants in these proceedings. In chronological order the following subpoenas duces tecum were issued:
(a) On August 11, 2000 directed to Mr. Bruce Hartley, the executive assistant to the Prime Minister, with respect to the Prime Minister's agenda requests;
(b) On August 11, 2000 directed to Mr. Emechete Onuoha, then the executive assistant to the Minister of National Defence; Ms. Meribeth Morris, then the director of operations to the Minister of National Defence; and Mr. Randy Mylyk, then the director of communications to the Minister of National Defence, all with respect to the November 12 M5 documents request;
(c) On March 8, 2001 directed to Mr. Jean Pelletier, then the chief of staff to the Prime Minister, with respect to the Black documents requests;
(d) On April 6, 2001 directed to the Honourable Art Eggleton, then the Minister of National Defence, with respect to the November 12 M5 documents request;
(e) On April 23, 2001 directed to Ms. Sue Ronald, then the executive assistant to the Minister of Transport, with respect to the Minister of Transport agenda request;
(f) On May 17, 2001 directed to Mr. Mel Cappe, then the clerk of the Queen's Privy Council for Canada and secretary to the Cabinet, with respect to the Prime Minister's agenda requests;
(g) On August 9, 2001 a second subpoena to Mr. Eggleton with respect to both the September 22 and November 12 M5 documents requests.
[126] All of the applicants are represented by the same lawyers: Messrs. David Scott, Peter Doody, Lawrence Elliot and Guy Pratte, of the law firm Borden Ladner Gervais LLP. These counsel represented each individual applicant before the Commissioner's delegate when each gave evidence as a result of the service of the subpoena duces tecum. At the same time Borden Ladner & Gervais LLP represented, and continues to represent, the Government of Canada, the Attorney General and the Prime Minister.
[127] Each of the 10 applicants was the subject of a confidentiality order issued by the Commissioner's delegate at the commencement of the examination conducted by the Commissioner's delegate. As to the terms of those orders, each confidentiality order:
(a) required each applicant not to reveal "any information disclosed during my confidential testimony in this matter including the evidence given by me";
(b) authorized each applicant to disclose to Messrs. Scott, Doody, Elliott and (later) Pratte information disclosed during his or her confidential testimony, once each of those lawyers had executed an undertaking not to reveal to any person information disclosed during that particular applicant's confidential testimony; and
(c) required each applicant to acknowledge that the confidentiality order would apply until such time as the applicant was released from the terms of the order by the Commissioner.
[128] Some of the applicants requested that they be allowed to communicate information disclosed during their testimony to specific individuals.
[129] Mr. Pelletier asked to be allowed to communicate information disclosed during his testimony to the Prime Minister. Mr. Pelletier's counsel advised the Commissioner's delegate that if Mr. Pelletier was allowed to communicate this information to the Prime Minister, the Prime Minister would be prepared to execute an undertaking of confidentiality on the basis that the Prime Minister would be permitted to communicate the confidential information to members of his Cabinet. The confidentiality order issued to Mr. Pelletier provided that Mr. Pelletier could disclose the confidential information to the Prime Minister, but only if the Prime Minister entered into an undertaking by which the Prime Minister agreed not to disclose the information to anyone, including his Cabinet. The Prime Minister was not prepared to execute that undertaking.
[130] Counsel for Mr. Cappe requested that the confidentiality order issued to Mr. Cappe be amended in order to allow Mr. Cappe to communicate information to the Prime Minister. That request was denied by the Commissioner's delegate.
[131] The confidentiality order issued to the Honourable Art Eggleton allowed him to disclose the confidential information to the Prime Minister, on condition that the Prime Minister undertake not to reveal that information to any other person. The Prime Minister did not execute that undertaking.
[132] Counsel for Mr. Cappe requested that the confidentiality order issued to him be amended to allow information disclosed during Mr. Cappe's testimony to be shared with a further lawyer from the Borden Ladner & Gervais law firm who was assisting with the case. That request was denied by the Commissioner's delegate.
[133] Counsel for the Honourable Art Eggleton, Mr. Onuoha, Ms. Morris and Mr. Mylyk requested that those four witnesses, who had all testified, be permitted to communicate with each other and with the Attorney General of Canada. That request was denied by the Commissioner's delegate.
[134] A further request was made as set out at page 32 of the transcript of the confidential proceedings before the Commissioner's delegate filed in Court file T-582-01, and that request was denied.
[135] As for the effect of the confidentiality orders, counsel for the Commissioner in oral argument characterized the orders as precluding a report by a witness of what transpired in an in camera process. The wording used (which precluded revealing "all information disclosed during the confidential testimony of [the witness] including the evidence of [the witness]") would, in my view, prohibit disclosure of the questions asked, the answers given, the nature and content of any documents shown to the witness, any could well prohibit disclosure of objections made to questions asked and any rulings given in response to objections. A relevant statement as to the intended scope of confidentiality order was made by the Commissioner's delegate at page 243 of the confidential examination of Mr. Cappe conducted on June 21, 2001.
[136] Mr. Cappe swore in an affidavit filed on the public record in these proceedings that:
29. At the time I appeared before the Information Commissioner's delegate in response to the subpoena, the Government was considering whether to introduce before Parliament amendments to the Access to Information Act. Until the Confidentiality Order was made, the Prime Minister and I had frequently discussed issues arising under the Access to Information Act, relating to both the policy in respect of the statute and its administration. These discussions which sometimes included Mr. Jean Pelletier, then the Prime Minister's Chief of Staff, were frank and candid.
30. I would have liked to be able to tell the Prime Minister about the manner and substance of the proceedings before Mr. Leadbeater. They were relevant to the policy issue of whether amendments ought to be made to the Act. After the Confidentiality Order was issued, and Mr. Pelletier was subject to a similar Confidentiality Order in respect of his own evidence, we had to be more cautious in our discussions.
[137] On cross-examination upon his affidavit Mr. Cappe testified that the confidentiality order precluded him from discussing the body language of his inquisitor and his tone of voice. Mr. Cappe said that to start talking about any element, including describing the seating arrangements, the distance between himself and the investigator, the placement of counsel and whether his counsel was allowed to speak, would be to start disclosing information which had been disclosed during his testimony. Mr. Cappe was of the view that the order inhibited his ability to discuss or make reference to his experience and limited his ability to raise issues that came up in the course of his testimony. To enter into a discussion of some issues of administration of the Act would result, in Mr. Cappe's view, in engaging in a conversation about matters he was not aware of before his testimony to the Commissioner's delegate.
[138] The reasons provided by the Commissioner's delegate for issuing the confidentiality orders were as follows:
(a) The Commissioner has a statutory obligation to insure the privacy of his investigations.
(b) The Commissioner is obliged to protect the integrity of his investigations by encouraging the candour of witnesses. In order to encourage candour the Commissioner must provide an environment which assures privacy so as to prevent the possible tainting of evidence, whether that tainting is conscious or unconscious.
(c) The Commissioner's ongoing investigations would be compromised if witnesses were permitted to communicate questions asked and answers given during the course of the Commissioner's private investigation to other persons, including persons who were potential witnesses in the same investigations.
(d) The Commissioner must be mindful of the potential implications of witnesses' reporting relationships. The integrity of the Commissioner's investigations are potentially compromised where witnesses are represented by counsel who simultaneously represent the witnesses' superiors and ultimate employer. Crown employees may feel embarrassed, reluctant, inhibited or intimidated when a representative of their employer is present to hear their evidence. Employees may fear recrimination and reprisal, particularly where their counsel also represents the Crown.
[139] When issuing the confidentiality orders the Commissioner's delegate also ordered that the applicant's counsel undertake not to reveal information disclosed during the individual applicant's testimony with other individuals who counsel also represented.
[140] In the investigation with respect to the Black documents requests, which is the only concluded investigation, the applicant Mr. Pelletier has not expressly requested of the Commissioner that he be relieved of his undertaking or that the confidentiality order be vacated. Mr. Pelletier has, however, challenged the validity of the order in one of the applications which is part of Group B.
(ii) The Issues to be Determined
[141] Counsel agree that the following issues are raised in the Group B applications:
(i) Does the Commissioner's delegate have jurisdiction under the Act to issue the confidentiality orders?
(ii) If so, do the confidentiality orders breach the right to freedom of expression guaranteed to each individual applicant by subsection 2(b) of the Charter?
(iii) If so, were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?
The Commissioner consents to being named respondent in these applications and the order will so provide.
(iii) Analysis
[142] The Commissioner argues that the confidentiality orders were "a limited procedural tool" used in order to "bring home to a witness" the obligations imposed upon the witness under section 35 of the Act. I therefore begin the analysis by considering whether there is, in any event, an obligation on witnesses before the Commissioner or his delegate to maintain the confidentiality of the proceeding.
(a) The nature and extent of any statutory obligation of confidentiality upon a witness before the Commissioner.
[143] The Commissioner relies upon the statutory requirement in subsection 35(1) of the Act to the effect that every investigation conducted by the Commissioner "shall be conducted in private" (in French, "sont secrètes") in order to argue that witnesses and their counsel are obliged to maintain the confidentiality of the proceedings. The Commissioner argues that this interpretation of "in private" furthers two important statutory objectives. First, this interpretation is said to operate to ensure the confidentiality of government information. This objective is best achieved, it is said, by interpreting the phrase "in private" to require both the exclusion of the public and the imposition of a duty to hold forever confidential information obtained by a witness or his or her counsel during an investigation. Second, this interpretation is said to enhance the truth finding function of the Commissioner's investigations. This is so, it is submitted, because this confidentiality obligation will operate to ensure that a witness' testimony is not tainted by knowledge of the evidence given by another witness. The confidentiality obligation is also said to promote candour by ensuring that a witness can testify without fear of reprisal. The Commissioner notes that in Rubin v. Canada (Privy Council Clerk), [1994] 2 F.C. 707; aff'd [1996] 1 S.C.R. 6 the Federal Court of Appeal recognized the importance of confidentiality to the investigative process under the Act by holding that representations made with respect to an access request must be kept confidential on a permanent basis.
[144] Reliance is also placed by the Commissioner upon the decision of my colleague Madam Justice Simpson in Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134; affirmed [2000] 3 F.C. 589 (C.A.); reversed in part [2002] 4 S.C.R. 3. At paragraph 43 of her reasons Madam Justice Simpson noted that in the context before her "an in camera proceeding is one in which those present are forever precluded from discussing the proceedings with anyone who is not in the courtroom".
[145] Counsel advise that this is the first occasion on which the Court has been required to consider what, if any, obligations are imposed upon a witness before the Commissioner in view of the requirement that the Commissioner's investigation be "conducted in private". To construe what is intended by that phrase it is necessary to consider the grammatical and ordinary sense of the words used and the scheme and object of the Act, all as described by the Supreme Court in Chieu, supra.
[146] As to the sense of the words used, in a different context the requirement under the Fatality Inquiries Act, R.S.A. 1980, c. F.6 that proceedings related to certain medical evidence "shall be in private" has been held to require that the evidence be received "in camera". See: Re Edmonton Journal and Attorney General Alberta (1983), 5 D.L.R. (4th) 240 (Alta. Q.B.); affirmed (1984) 13 D.L.R. (4th) 479 (Alta. C.A.); leave to appeal refused. The motions judge there held that the phrases "in private" and "in camera" were to the same effect.
[147] As to the extent of any obligation of secrecy imposed on a participant in an in camera hearing, in C.B. v. The Queen, [1981] 2 S.C.R. 480 the Supreme Court of Canada was required to consider what Parliament intended when it enacted in the Juvenile Delinquents Act, R.S.C. 1970, c. J-3 the requirement that "the trial of children shall take place without publicity". The Supreme Court concluded on a contextual reading of the legislation that the expression "without publicity" meant "in camera". The Court went on to note, at page 492 of its reasons, that notwithstanding the in camera nature of the proceeding, members of the media were free to solicit information from witnesses and investigators and that "any and all other sources of information concerning the events and circumstances surrounding the delinquency may be considered and reported by [the media], providing that the names or an indication of the identity of the child or its parents are not published". It follows that in that context, the Supreme Court was of the view that there was no obligation on a witness or participant in an in camera proceeding to keep private their testimony or what transpired at the hearing.
[148] These cases make clear that what is intended in any particular case by the phrase "in private" or "in camera" depends upon the context in which the phrase is used.
[149] In this regard, what I take from the scheme and object of the Act is that the Commissioner is to have access to records under the control of a government institution. In exchange for a relatively unrestricted right of access, strict confidentiality requirements are imposed upon the Commissioner. Thus, the Commissioner may not disclose what he learns, except in limited circumstances, and the Commissioner is not a competent or compellable witness with respect to what he learns in the performance of his duties (expect with respect to matters such as prosecutions for offences under the Act or perjury in respect to statements made under the Act). The Act does not expressly impose confidentiality requirements upon persons other than the Commissioner and his staff, presumably because those in government with access to confidential information are subject to an already existing government regime for the keeping of its confidences (for example, the oath of office required under the Public Service Employment Act, R.S.C. 1985, c. P-33, fiduciary or contractual obligations and legislation such as the Security of Information Act, R.S.C. 1985, c. O-5).
[150] Put another way, the confidentiality regime required by the Act is a regime that will ensure that information communicated to the Commissioner remains protected to the same extent as if not disclosed to the Commissioner. It is consistent with that scheme that the confidentiality requirements are requirements imposed only upon the Commissioner.
[151] I believe that Parliament manifested this intention in section 62 of the Act where it wrote "[S]ubject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act". [underlining added] The confidentiality obligation is only directed to the Commissioner and his delegates. Parliament could have expressly enacted a confidentiality provision which applied to witnesses, but did not.
[152] I find some support for this interpretation in the decision of the Supreme Court of Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages), supra. In that case, the Commissioner of Official Languages conducted an investigation into a complaint made by Mr. Lavigne that his rights under the Official Languages Act had been violated. In the course of his investigation the Commissioner of Official Languages interviewed a number of witnesses. Mr. Lavigne then sought release of those witnesses' statements through an application he made under the Privacy Act. Where the person interviewed consented to the release of his or her statement, that statement was released to Mr. Lavigne. However, in the absence of such consent the Commissioner of Official Languages refused to release statements to Mr. Lavigne. I find the case to be of some assistance because the statutory provisions governing the Commissioner of Official Languages are substantially identical to those governing the Commissioner. Particularly, the legislation requires that every investigation "shall be conducted in private" and the legislation contains the same confidentiality provisions as are found in sections 62, 63 and 65 of the Act. In the reasons of the Supreme Court of Canada there is no suggestion that the statutory requirement to proceed "in private" prevented witnesses from consenting to the disclosure of their statements or otherwise imposed confidentiality obligations upon anyone other than the Commissioner of Official Languages. It was the absence of such a confidentiality requirement that allowed the persons interviewed to consent to the release of their interview statement.
[153] Two further considerations, in my view, favour this conclusion.
[154] The first consideration is that as noted above and evidenced by cases such as C.B., supra and Ruby, supra, the requirement to proceed "in private" or "in camera" may place varying obligations upon witnesses. For reasons which are set out below in the context of the analysis of the Charter issue, I conclude that any blanket regime which precludes a person from communicating for all time any information touching upon their testimony and appearance before the Commissioner would infringe that person's right to free expression guaranteed by subsection 2(b) of the Charter in a fashion that could not be justified under section 1. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at page 1078, Mr. Justice Lamer, as he then was, explained that legislation that is open to more than one interpretation should not be interpreted so as to make it inconsistent with the Charter2. Interpreting the provision that proceedings be "in private" not to prohibit participants on a blanket basis forever from discussing their evidence and participation avoids interpreting the provision in a fashion which is inconsistent with the Charter.
[155] The second consideration that favours interpreting the confidentiality requirements of the Act to bind the Commissioner is the Commissioner's delegate's treatment of the confidentiality obligations of the witnesses before him. In this regard, the Commissioner and his delegate have significant familiarity and expertise with the Act and with its application to the conduct of investigations. Therefore, I consider that their actions as they reflect their interpretation of the Act, while not determinative, are entitled to some weight and can assist in interpreting the Act where there is doubt about the meaning of a particular provision. See: Nowegijick v. R., [1983] 1 S.C.R. 29 at page 37.
[156] I find the following evidence of the Commissioner's delegate's treatment of any confidentiality obligation to be relevant.
[157] First, the confidentiality orders here at issue expressly provide that they can be terminated by order of the Commissioner. Indeed, the Commissioner's delegate consistently took the position that he has jurisdiction to modify or to release a witness in part from the obligation of confidentiality. For example, on April 23, 2001 the Commissioner's delegate wrote:
Taking into account the unique relationship of loyalty and trust which must exist between a Prime Minister and his senior political adviser, I consider it appropriate to exercise my discretion in favour of permitting the witness to communicate information deriving from the confidential proceeding to the Prime Minister. However, no evidence was presented to support the request that the Prime Minister be given the authority to communicate confidential information to any or all members of his Cabinet. Given the nature of the proceeding and the requirements of s. 35, I consider that granting the request would not be consistent with my obligation to protect the confidentiality and the integrity of this investigation.
A second example is that on June 19, 2001, the Commissioner's delegate denied Mr. Cappe's request that he be permitted to communicate confidential information to the Prime Minister. The Commissioner's delegate noted that the Prime Minister was a potential witness and no "specific need" had been shown for the Prime Minister to be privy to the confidential information.
[158] Second, other confidentiality orders issued to other witnesses in the course of the investigations here at issue did not contain similar confidentiality provisions. On August 4, 2000, the Deputy Minister of Transport was examined in the investigation of the complaint arising out of the Minister of Transport's agenda request. Counsel for the Deputy Minister, Senior General Counsel in the Department of Justice, swore in an affidavit filed in one of the pending applications that no order was made requiring the Deputy Minister to keep confidential any information revealed during her testimony. Prior to the Deputy Minister giving her evidence, the Commissioner's delegate issued an order requiring her counsel to keep confidential anything revealed during the Deputy Minister's testimony. Counsel was required to undertake that he would not use information or permit it to be revealed or used for any purpose "except on the explicit instructions" of the Deputy Minister (the latter phrase being added in handwriting to the order and being initialled by the Commissioner's delegate).
[159] On October 17, 2000, the same counsel appeared before the Commissioner's delegate as counsel for an Assistant Deputy Minister in the Privy Council Office who was being examined in the investigation into the complaint arising from the Prime Minister's agenda requests. Again it appears that no order was made with respect to the Assistant Deputy Minister, but her counsel was ordered to not use or reveal any information revealed on the Assistant Deputy Minister's examination "except on the explicit instruction of, and for the purpose of protecting the interests of" the Assistant Deputy Minister.
[160] Finally, on September 19, 2002 (a date after the orders here in issue were made) an Associate Assistant Deputy Minister at the Department of Public Works was examined in the course of the investigations arising out of one of the M5 documents requests. No confidentiality order was issued to the Associate Assistant Deputy Minister, but his counsel, Mr. Doody, was ordered to undertake not to use or reveal anything revealed during the testimony of the Associate Assistant Deputy Minister "except on the instruction of" the Associate Assistant Deputy Minister.
[161] I find the actions of the Commissioner's delegate, as they reflect that officer's interpretation of subsection 35(1) of the Act, to be inconsistent with any statutory obligation upon a witness arising from that provision to forever keep confidential what transpires during an investigation. It is inconsistent with such a statutory requirement for the Commissioner or his delegate to purport to vary a statutory obligation, or to acknowledge in an undertaking that a witness has the ability to instruct his or her counsel to reveal or make use of such information.
[162] Before leaving this point, I have carefully considered Madam Justice Simpson's characterization of the nature of the in camera proceeding at issue in Ruby, supra. There, subsections 51(2) and (3) of the Privacy Act required that where disclosure of personal information was refused on the ground that material had been received in confidence from a foreign government or the like, or on the ground that international affairs or national security would be harmed, any resulting Court application should be heard in camera and that the head of the government institution could request that representations be made ex parte. That is an entirely different context and legislative scheme than is now before the Court, and I read Madam Justice Simpson's comments to be expressly limited to the specific legislative context before her.
[163] Having concluded that the confidentiality orders do purport to impose obligations other than those inherent in section 35 of the Act, so that they do more than "bring home to a witness" the witness' obligations, I turn to consider whether the Commissioner's delegate has jurisdiction under the Act to issue the orders.
(b) Was there jurisdiction to issue the confidentiality orders?
The Standard of Review
[164] Counsel did not make submissions as to the appropriate standard of review to be applied to the question of whether the Commissioner has the authority to issue a confidentiality order. However, in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 21 the Supreme Court re-affirmed that in every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review by applying the pragmatic and functional approach.
[165] Turning to the application of the four factors which underpin the pragmatic and functional approach, the first factor is the presence or absence of a privative clause or statutory right of appeal. The Act contains neither. While silence is a neutral factor not touching on the degree of deference to be afforded to the decision-maker, (see: Dr. Q., supra at paragraph 27), in Echo Bay Mines Ltd. v. Canada (Minister of Indian Affairs and Northern Development), 2003 FCA 270 at paragraph 16 the Federal Court of Appeal concluded that where review of a decision is available pursuant to section 18 of the Federal Court Act an intermediate level of review is suggested.
[166] The second factor is the expertise of the decision-maker relative to that of the Court on the issue in question. Greater deference is required where the decision-maker is more expert than the Court and the question under consideration falls within the scope of the greater expertise.
[167] Here the question of the Commissioner's authority to issue an order is a question of statutory interpretation. It is therefore a question of law, and there is nothing before the Court to suggest that the Court is not as well suited to answer the question as the Commissioner. This factor points to the need for more exacting review.
[168] The next factor is the purpose of the statute and the provision in question. The Court is required to consider the general purpose of the statutory scheme within which the decision at issue was taken. If the question before the decision-maker is one of law or engages a particular aspect of the legislation, the specific legislative purpose of that aspect must be considered.
[169] The purpose of the Act is to provide a meaningful right of access with decisions about access to be reviewed independently of government. While this purpose suggests deference, the discrete issue of investigating an access complaint is not a question of policy, but invokes the right of the Commissioner to issue a confidentiality order. The Commissioner's interest in the issue points to review on the correctness standard.
[170] The final factor is the nature of the problem. An issue of pure law and statutory interpretation, as the present issue is, favours a more searching result. Further, determination of the question will have precedential value and general application. This too points to review on the correctness standard.
[171] Balancing these factors, I conclude that the appropriate standard of review is correctness.
The Issue of Jurisdiction
[172] Section 34 of the Act confers a broad discretion upon the Commissioner to determine the procedure to be followed in the performance of any duty or function under the Act. The Commissioner argues that the confidentiality orders made in the investigations at issue in these proceedings are similar in nature to a number of procedural orders (for example, orders excluding witnesses from trials or administrative hearings and related non-communication orders). The Commissioner argues that the confidentiality orders are therefore a proper exercise of discretion pursuant to section 34 of the Act.
[173] In response, the applicants argue that the confidentiality orders are not procedural because they are intended to, and do, prohibit the individual applicants from exercising their right to communicate information. Reliance is placed upon Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256 and Canada (Attorney General) v. Newfield Seed Ltd. (1989), 63 D.L.R. (4th) 644 (Sask. C.A.) for the purpose of determining when a provision is substantive, and not procedural. The applicants also argue that in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 the Supreme Court directed that where there is doubt as to whether a matter is procedural or substantive, such doubt is to be resolved by concluding that the provision is substantive.
[174] I begin the analysis by considering the wording used by Parliament in section 34 of the Act. Section 34 is as follows:
| 34. Subject to this Act, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act.
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34. Sous réserve des autres dispositions de la présente loi, le Commissaire à l'information peut établir la procédure à suivre dans l'exercice de ses pouvoirs et fonctions.
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[175] The grammatical and ordinary sense of the words used suggests that when investigating a complaint, including when receiving such evidence and information as the Commissioner sees fit, the Commissioner has a broad discretion to determine how that is to be done. While such discretion is to be exercised subject to the Act, counsel did not argue that any express provision precludes the Commissioner from issuing a confidentiality order as part of the procedure of receiving evidence and information from a witness.
[176] Turning to a contextual analysis of the discretion conferred by section 34, I note first that there are very few procedural requirements imposed upon the Commissioner by the Act. The procedural requirements imposed upon him are limited to the obligations to:
(i) give notice of the Commissioner's intent to carry out an investigation and advise as to the substance of a complaint (section 32);
(ii) conduct investigations in private (subsection 35(1));
(iii) provide the affected parties with the reasonable opportunity to make representations (subsection 35(2)); and
(iv) make a report at the conclusion of an investigation (section 37).
[177] The Commissioner is therefore relatively unfettered by procedural requirements. The Act also reflects Parliament's intention that the Commissioner's independent review of decisions about disclosure is to be made following a thorough investigation. For that purpose, the Commissioner is empowered to compel persons to give evidence on oath and to produce such documents and things as the Commissioner "deems requisite to the full investigation and consideration of the complaint". The Commissioner may receive and accept such evidence and information as the Commissioner sees fit "whether or not the evidence or information is or would be admissible in a court of law". The Commissioner may enter into premises occupied by any government institution and "carry out therein such inquiries within the authority of the Information Commissioner under this Act as the Commissioner sees fit". Notwithstanding the confidentiality obligations imposed upon him, the Commissioner may disclose information that in his opinion is necessary to "carry out an investigation under this Act", so long as he does not disclose specific information with respect to which an exemption can be claimed in the Act. See: Canada (Attorney General) v. Canada (Information Commissioner), supra.
[178] The object of the Act is to provide a liberal and broad right of access, and the Act is to be given a liberal and purposive construction.
[179] Having regard to the broad meaning of the words used in section 34 of the Act, the context within that section functions, the object of the Act and the need to give the legislation a liberal and purposive construction, I conclude that section 34 of the Act confers a discretion upon the Commissioner to determine in appropriate circumstances that some form of confidentiality order should be invoked and imposed upon a witness before him. Pursuant to paragraph 36(1)(a) of the Act the Commissioner is empowered to enforce the appearance of persons before him and to compel them to give oral evidence and to produce documents. The imposition of a confidentiality order is a procedure the Commissioner may follow when exercising his power to compel a person to give evidence.
[180] An example where resort to such procedure would be appropriate would be where the Commissioner had, pursuant to subparagraph 63(1)(a)(i) of the Act, in order to carry out the Commissioner's investigation found it necessary to disclose sensitive information to a witness that the witness would not otherwise know. Section 34 should, in my view, be read as enabling the Commissioner to protect the confidentiality of that information by the imposition of a confidentiality order. I am mindful that the Commissioner may not disclose information in respect of which an exemption can be claimed. Nonetheless, there may well be sensitive information that the Commissioner may be entitled to disclose which should be protected by a confidentiality order in order to ensure that the investigation is conducted in private. Examples of such sensitive information include information which might reveal the status or plan of the Commissioner's investigation, or the testimony of other witnesses before the Commissioner not covered by section 64 which testimony should be disclosed in order to further the investigation or to promote fairness.
[181] To construe section 34 otherwise would, in my view, read in limiting words not found in the Act. Had Parliament intended to limit the discretion conferred by section 34 it could have done so expressly and would not have expressed itself by conferring an almost unlimited discretion applicable to "any duty or function of the Commissioner" under the Act.
[182] With respect to the Sun Alliance and Newfield cases relied upon by the applicants, in my view the question of the Commissioner's jurisdiction to issue a confidentiality order is to be determined by a textual and contextual analysis of the Act. Little assistance is provided by Sun Alliance and Newfield where what was considered was whether a provision was substantive or procedural for the purpose of determining the retrospective application of legislation or whether a regulation was ultra vires. To the extent that Newfield suggests that the distinction between substance and procedure is functional, I conclude that nothing in the confidentiality orders touches upon the right of access or the application of any exemption under the Act. Rather, the confidentiality orders are a procedural tool used to ensure a proper and fair investigation of the right of access.
[183] The comment by Mr. Justice LaForest for the Supreme Court in Tolofson relied upon by the applicants was made in the context of private international law. After observing that in that context substantive rights are governed by foreign law while procedural matters are governed by the law of the forum, the Court quoted with approval the statement that the problem resolved into the question of "[h]ow far can the court of the forum go in applying the rules taken from the foreign system of law without unduly hindering or inconveniencing itself". Seen in this context, the statement that where there is doubt as to whether a provision is substantive or procedural, that doubt should be resolved by finding the provision to be substantive provides little assistance in the present case.
[184] Having found that the Commissioner does have jurisdiction to issue confidentiality orders pursuant to section 34 of the Act, it is not necessary for me to consider whether confidentiality orders may also be issued pursuant to the Commissioner's powers under paragraph 36(1)(a) of the Act. It is necessary, however, to consider if the orders breach the right to freedom of expression guaranteed by the Charter.
(c) Do the confidentiality orders breach the right of freedom of expression guaranteed by section 2(b) of the Charter?
[185] The parties agree that a body which exercises statutory powers, including broad discretionary powers, may not make orders which violate Charter rights. See, for example, Slaight, supra.
[186] Section 2(b) of the Charter provides that everyone enjoys the fundamental freedom of expression. The Supreme Court has held with respect to the analysis of freedom of expression that:
(i) The first step is to discover whether the activity which the applicant or plaintiff wishes to pursue properly falls within "freedom of expression".
(ii) Activity is expressive, and protected, if it attempts to convey meaning. If an activity conveys or attempts to convey a meaning it has expressive content and prima facie, falls within the scope of the Charter guarantee (unless meaning is conveyed through a violent form of expression).
(iii) The second step of the inquiry is to determine whether the purpose or effect of the government action in question is to restrict freedom of expression.
See: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, particularly at pages 967-979.
[187] In the present case, the evidence of the applicants is that they wanted to communicate to others what transpired in the inquiry chambers of the Commissioner. I am satisfied that such activity conveys or attempts to convey meaning so as to be expressive, and therefore to prima facie fall within the sphere of conduct protected by section 2(b) of the Charter.
[188] I am also satisfied on the evidence that the purpose of the confidentiality orders was to control the applicants' attempts to convey a meaning by directly restricting or prohibiting the particular content of expression.
[189] It follows that the confidentiality orders limit the freedom of expression which is guaranteed by section 2(b) of the Charter. The next inquiry therefore becomes whether the orders are justified under section 1 of the Charter.
[190] Before moving to this issue, counsel for the Commissioner referred me to Smolensky v. British Columbia (Securities Commission), [2003] B.C.J. No. 1805 (B.C.S.C.). In this case a non-disclosure provision contained in the British Columbia Securities Act, R.S.B.C. 1996, c. 418 was found not to violate section 2(b) of the Charter. Counsel for the Commissioner did not, in her words, "press" the authority upon me. Smolensky arose in a different legislative context and I am satisfied that the confidentiality orders at issue in this proceeding do limit expression protected by the Charter.
(d) Were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?
Applicable principles of law
[191] The principles to be applied when a state actor attempts to justify a limit on a right or freedom under section 1 of the Charter were enunciated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103. There are two central criteria to be met:
1. The objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. To be characterized as sufficiently important, the objective must relate to concerns which are pressing and substantial in a free and democratic society.
2. Assuming that a sufficiently important objective is established, the means chosen to achieve the objective must pass a proportionality test. To do so the means must:
a. Be rationally connected to the objective. This requires that the means chosen promote the asserted objective. The means must not be arbitrary, unfair or based on irrational consideration.
b. Impair the right or freedom in question as little as possible. This requires that the measure goes no further than reasonably necessary in order to achieve the objective.
c. Be such that the effects of the measure upon the limitation of rights and freedoms are proportional to the objective. This requires that the overall benefits of the measure must outweigh the measure's negative impact.
See also: Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519.
[192] Relevant considerations when conducting the analysis articulated in Oakes, supra are that:
1. The onus of proving that a limit on a right or freedom protected by the Charter is reasonable and demonstrably justified is upon the party seeking to uphold the limitation. See: Oakes at page 137.
2. The standard of proof is the civil standard. Where evidence is required in order to prove the constituent elements of the section 1 analysis, the test for the existence of a balance of probabilities must be applied rigorously. A "very high degree of probability will be [...] 'commensurate with the occasion'". See: Oakes at pages 137-138.
3. The analysis must be undertaken with close attention to the contextual factors. This is so because the objective of the impugned measure can only be established by canvassing the nature of the problem it addresses, and the proportionality of the means used can only be evaluated in the context of the entire factual setting. See: Thomson Newspapers v. Canada (Attorney General), [1998] 1 S.C.R. 877.
4. The context will also impact upon the nature of the proof required to justify the measure. While some matters are capable of empirical proof, others (for example matters involving philosophical or social considerations) can not. In those later cases "it is sufficient to satisfy the reasonable person looking at all of the evidence and relevant considerations, that the state is justified in infringing the right at stake to the degree it has". Common sense and inferential reasoning may be applied to supplement the evidence. See: Sauvé, supra, at paragraph 18.
5. With respect to the minimal impairment test, where a legislative provision is challenged, the Supreme Court of Canada has held that Parliament must not choose the absolutely least intrusive means to attain its objectives, but rather must come within a range of means which impair guaranteed rights as little as reasonably possible. However, where a "common law, judge-made rule" is challenged, the Supreme Court has held that there is no room for judicial deference. See: R. v. Swain, [1991] 1 S.C.R. 933 at page 983. In the context of considering the propriety of a confidentiality order imposed by a judge (i.e. an order which must be made with due regard to Charter principles) the Supreme Court has held that such orders are to be restricted as much as reasonably possible, while still preserving the interest to be protected by the order. See: Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.
Contextual Considerations
[193] Turning to the application of these principles to the evidence before the Court, I begin by considering what I believe to be relevant contextual considerations.
[194] First, the investigation is conducted in furtherance of the quasi-constitutional right of access that has as its purpose the facilitation of democracy.
[195] Second, the investigation conducted by the Commissioner is an investigation that is to be independent of government.
[196] Third, the investigation is to be conducted in private.
[197] Fourth, persons in government must be able to function candidly with one another. I accept generally the evidence of Messrs. Pelletier and Hartley that there are "no secrets" between the Prime Minister and his close advisors and "no secrets" between the Prime Minister's executive assistant and the Prime Minister's advisors. I accept the evidence of Mr. Cappe that the clerk of the Privy Council has no secrets from the Prime Minister in respect of matters of government policy and operations. I accept the evidence of Mr. Eggleton that there can be no secrets between a Minister of the Crown and the Prime Minister in respect of government policy or affairs of state and that the Prime Minister can not be prohibited from bringing to the attention of his Cabinet or his Attorney General issues which the Prime Minister feels to be relevant. Finally, I generally accept that there are no secrets between a minister and his close advisors with respect to matters that relate directly to the minister and his or her office.
[198] I accept this evidence because only Mr. Cappe was cross-examined on his evidence, and Mr. Cappe's testimony was not challenged on this point. Further, the Commissioner's delegate in his letter of April 23, 2001 acknowledged the unique relationship of loyalty and trust which must exist between a prime minister and his senior political adviser.
[199] The evidence therefore reflects the need for relationships based upon loyalty and confidence, and the need for candid communication within the executive level of government on issues of public policy.
[200] The fifth contextual factor is that there have been instances where members of a government department have taken steps to frustrate the right of access under the Act. In this regard during Mr. Cappe's cross-examination he testified as follows:
175. Q. And I'm going to suggest to you, sir, that one of the difficult issues confronting the public service is to live with both an oath of loyalty promising not to tell anybody anything on the basis of information obtained in the service of the government and, at the same time, committing itself to notions of transparency and openness and the spirit of the Access Act, and that creates a tension in government?
A. I totally agree.
176. Q. And that this is one of the areas where Mr. Tait foresaw need for important values and ethics dialogue, and perhaps later steps wherever it took them? Is that fair also?
A. Insofar as you've taken it that distance, but I think - - you know, go back to the title of this [Tait] report, "A Strong Foundation". The strong foundation are the democratic principles, and when he talks about the categorization of values, he starts with democratic values, and when he breaks them down into democratic and public service values, the democratic values are the ones that are the most important, he says. You've identified the tension, and I think that's absolutely correct, but the fundamental foundation of our system is - - and here on page 21 it says, "Canada's form of democracy is responsible parliamentary government", and you go through that principle of responsible government and you go through the democratic values that public servants have to respect, and when you challenge public servants' understanding of their accountability - - public servants are not accountable to the public; public servants are accountable to their ministers and ministers are accountable in the House. It's very, very important that we reiterate that. So that, yes, there was this tension - - I totally agree with the way you characterize it - - and the tension was partly between those democratic values and those needs for openness and confidentiality to protect the openness.
[201] Mr. Cappe also testified that:
112. Q. You can assume for the purposes of this discussion that the destruction of the records of the Canadian Blood Committee were found to be related to Access requests and the destruction of certain records at the Department of National Defence were found to be related to certain Access requests as well as requests from the commission of inquiry. Are you saying that when you undertook your role as clerk you were unaware that there had been major problems with Access from - -
A. No, I was not unaware.
113. Q. So you were aware.
A. I was aware.
114. Q. And those problems of Access related to, in general - - I'm not trying to trick you here, Mr. Cappe - - related in general to circumstances where members of a department had taken steps to frustrate a requester's right of access; fair enough?
A. Yes. Yeah.
115. Q. And that they had done so, for whatever reasons of displaced loyalty, in such a manner that it raised serious concerns throughout government. Is that also fair?
A. Sure. This happened prior to the amendment which created a criminal provision for the destruction of documents in the act, and personally I didn't think that was a very good idea to bring such an amendment, but in light of what had happened I could see that that was going to be something which proceeded, and I don't find it offensive because - - actually you used very good terminology, I think, when you talked about misplaced loyalties. The loyalty and the duty of the officer is to the truth and speaking truth to power. Honesty and truthfulness are fundamental values of public service. If I was against that provision, it was more because I didn't think it was necessary, except we had these two counter examples, unfortunately.
[202] The sixth contextual consideration is that the issue underlying the investigations other than the investigation into the Black documents request was whether records held exclusively within minister's officers are records under the control of a government institution for the purposes of the Act. As evidenced by a letter dated September 13, 2000 sent to Deputy Heads by the Deputy Clerk and Counsel of the Privy Council Office, this was viewed as an important issue of principle for the government. This litigation evidences the fact that the government has taken a strong position on the issue, as it was entitled to do. Mr. Cappe acknowledged on his cross-examination that he discussed the role of outside counsel with the Prime Minister and with the Attorney General, that eminent counsel was selected, and that Mr. Cappe's wish was to ensure that "the ensemble of the government actors here were being as well represented and that there was coherence in the presentation of the government's case".
[203] While I draw no negative or sinister inference from this evidence, the positions held by the government actors, the importance of the issue raised and the strength of the views held by both the Commissioner and the government actors form part of the relevant context in which the confidentiality orders are to be examined.
[204] Finally, the fact that almost all of the government actors were represented by the same lawyers is a further contextual factor. This is so because counsel who represent multiple entities in the same matter are generally required to share information amongst their clients. To the extent some witnesses were represented by counsel with the Department of Justice, Crown servants are generally required to waive solicitor-client privilege in favour of the Crown.
Does the infringement achieve a constitutionally valid purpose or objective?
[205] Having set out relevant contextual considerations, I move to the first step of the Oakes analysis.
[206] The Commissioner asserts that two broad objectives are met by prohibiting witnesses from revealing information disclosed during their testimony. The first objective or purpose of the confidentiality orders is to protect the integrity of the investigations. The second is to preserve the confidentiality of government information.
[207] Protecting the integrity of the investigations can be said to promote seeking and attaining the truth. This has been held to be an inherently good activity and to be a value which underlies the protection of free expression. See: Irwin Toy, supra, at page 976. Conducting a thorough and independent review in order to maximize the proper disclosure of government information to access requesters facilitates democracy.
[208] Ensuring that confidential information is not improperly disclosed promotes Parliament's intent that certain information should be protected and promotes the candid and effective functioning of government.
[209] Therefore, the objectives sought to be achieved relate to pressing and substantial concerns in a free and democratic society. I conclude that the objectives are of sufficient importance as to warrant, in some circumstances, overriding the constitutionally protected freedom of expression.
The Rational Connection
[210] The next step in the inquiry is consideration of whether the means chosen are reasonably and demonstrably justified. This analysis of the proportionality of the measure begins with consideration of the rationality of the measure at issue. The question to be asked is will prohibiting witnesses from revealing information protect the integrity of the investigations and preserve the confidentiality of government information?
[211] The reasons of the Commissioner's delegate shed light on how the orders are viewed to function in order to protect the integrity of the investigations. First, if witnesses could communicate questions asked and answers given on their examination before the Commissioner's delegate, the delegate is less likely to obtain a witness' own independent recollection of events. Second, the orders ensure that a witness may speak freely without fear of employment repercussions. Third, the automatic imposition of a confidentiality order is said to prevent any stigma attaching to a witness who is bound by such an order. The Commissioner says that there would exist a possibility of suspicion attaching to a witness who requested a confidentiality order.
[212] With respect to the object of protecting the confidentiality of government information, the confidentiality orders are said to reflect the Commissioner's obligation to take every reasonable precaution to avoid the disclosure of exempt information. The orders also allow some portion of one witness' evidence to be put to another witness for the purpose of advancing the investigation.
[213] I am satisfied on the basis of logic and common sense that there is a rational connection between the imposition of a confidentiality order and the protection of both the integrity of the investigations and the confidentiality of at least some information which might otherwise not be protected. These are the purposes of orders issued by courts which govern the confidentiality of certain information and the exclusion of witnesses.
Minimal Impairment
[214] The next stage of the Oakes, supra, analysis requires the Court to consider whether the confidentiality orders, while rationally connected to the objectives, impair the witnesses' freedom of expression as little as possible.
[215] It is to be noted at the outset that the Supreme Court has observed that it is more difficult to justify a complete ban on a form of expression than a partial ban. See Thomson, supra, at paragraph 120. The Supreme Court has, as previously noted, also observed in Sierra, supra, that confidentiality orders are to be restricted as much as is reasonably possible. For the reasons that follow, I have concluded that the Commissioner has failed to demonstrate why less restrictive confidentiality orders would not have been equally effective in preserving the integrity of the investigations and preserving the confidentiality of government information. On the basis of that conclusion, it follows that the orders fail on the issue of minimal impairment and that they should be set aside on the terms set out below.
[216] In support of his argument that the orders were demonstrably justifiable, the Commissioner filed the affidavit of Colonel (retired) Michel Drapeau. Colonel Drapeau, based upon his experience and knowledge of the culture of the Canadian Forces and Public Service in general, and the culture prevailing at National Defence Headquarters in particular, and based upon his familiarity with the Federal Access to Information regime, opined that:
1. The integrity of the Commissioner's investigative function demands that a public official, as witness, be protected from direct or indirect pressures.
2. There is a legitimate concern that public officials may feel pressure from their employers, supervisors, or co-workers, if they provide information to the Commissioner which may not conform to the "official version of events or otherwise displeases co-workers".
3. In the absence of confidentiality restrictions there would be irresistible pressure on witnesses summoned to appear before the Commissioner to be accompanied by a Crown counsel and to inform officials and senior law officers of the Crown of the content of their evidence.
4. Unless information obtained or gathered during the Commissioner's investigations remains private and confidential the public servant as witness risks being labelled as a "maverick" and risks becoming the target of direct or indirect institutional retaliation.
5. Witnesses are less likely to testify candidly and completely if they fear recriminations based on the content of their testimony.
6. For reasons of culture and ethos it is unlikely that career public servants would feel comfortable requesting a confidentiality order.
7. Even where a witness wishes to reveal the content of his or her testimony, by doing so the protection afforded to other witnesses is "potentially threatened". This is because on release of the Commissioner's report a supervisor may be able to attribute particular evidence to specific witnesses by speaking to other witnesses who are willing to share their testimony.
[217] Colonel Drapeau's opinion was contradicted by the affidavits of Suzanne Lajoie and Judith Mooney.
[218] Ms. Lajoie worked for nine years in the Access to Information and Privacy Section of the Department of National Defence. From September 1999 to December 2000, she worked first as the Acting Director of Access to Information and Policy in the Department of National Defence and then as the Deputy Coordinator for Access to Information and Privacy in the Department of National Defence. She has been interviewed on numerous occasions by investigators from the office of the Commissioner, and has appeared to give evidence before the Deputy Information Commissioner once and also once before counsel for the Commissioner. It is her evidence that she never felt pressured to tailor her evidence, and never felt pressured to be accompanied by a Crown counsel or to inform anyone of her discussions with the Commissioner's representative. Ms. Lajoie was not aware of any situation where a witness became a target of retaliation as a result of being a witness before the Commissioner. She has never felt the need to ask for a confidentiality order nor was she aware of any incident where another member of the Department of National Defence requested a confidentiality order (although she agreed on cross-examination that she would not know if someone had sought and obtained such an order).
[219] To similar effect was the evidence of Ms. Mooney who is the Director, Access to Information and Privacy Section of the Department of National Defence. She gave as a specific example her decision to release information to a journalist with the Ottawa Citizen concerning the award of an untendered contract to One World Communications by Mr. Eggleton who was at that time the Minister of National Defence. It is Ms. Mooney's evidence that at the time of the release both she and the Minister were aware of the political sensitivity of the item, but Ms. Mooney was, she said, not pressured to withhold the information.
[220] Counsel for the applicants argues that Colonel Drapeau was not qualified to express the opinions which he did because he was not an expert in the public service culture in general. Counsel for the applicants points to the evidence that Colonel Drapeau has only worked in the Public Service for 16 months and that such experience ended in 1993. Colonel Drapeau has never conducted an investigation under the Act, has never been a witness under the Act, and has never spoken to anyone who was a witness. Colonel Drapeau has never worked in the office of a minister of the Crown, the Prime Minister's Office, the Privy Council Office or in the Department of Transport. Since Colonel Drapeau was in the Department of National Defence the persons fulfilling the positions of Minister of National Defence, Deputy Minister of National Defence, Chief of the Defence Staff, and Access to Information and Privacy Coordinator have all changed. Colonel Drapeau admitted on cross-examination that he knows nothing about the investigations that underlie these proceedings.
[221] I am satisfied that Colonel Drapeau's affidavit is admissible to the extent he swears to matters he directly observed and to the extent that he has the expertise to opine on the culture of the Department of National Defence. With respect to the opinion he provides concerning the Department of National Defence, I find his evidence to be generally relevant, of assistance to the Court and that Colonel Drapeau has the necessary expertise to give such evidence. Thus, the criteria established by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 are met in so far as Colonel Drapeau's opinions relate to the Department of National Defence.
[222] I also find, however, that Colonel Drapeau does not have sufficient recent experience in order to opine on the Public Service generally. Further, his lack of experience working in an office of a minister of the Crown, the Prime Minister's Office or the Privy Council Office coupled with his lack of direct experience with respect to investigations conducted by the Commissioner, and his lack of knowledge with respect to the investigations at issue, lead me to conclude that his testimony should be given little or no weight as it touches upon the issue of whether less intrusive confidentiality provisions would have been equally effective to achieve the Commissioner's objectives.
[223] Counsel for the Commissioner also argues that the Court may by application of reason and logic conclude that the confidentiality orders were issued on the basis of a reasonable assessment or apprehension of harm. The Commissioner's concern about the possible coercion of witnesses is said not to be speculative, but to be grounded in the observations of Colonel Drapeau and in the cross-examination of Mr. Cappe. Further, in the words of counsel for the Commissioner "when the most powerful men in government make a very public position, as they did in this case, throughout their Departments [...] it is reasonable to assume that others [...] may feel indirectly coerced into adopting positions that are less than fully open". Thus, it is submitted that at least during the currency of any investigation the objectives of preserving the integrity of that investigation "including the need to prevent the tainting of a witness' testimony and to ensure that no employment repercussions flow directly from the witness' testimony" establish that the orders in question minimally impair the right of free expression because no lesser order would be effective.
[224] I accept, as a matter of law, that where it is difficult to empirically prove harm, the Supreme Court of Canada has found it sufficient to apply logic and common sense in order to see whether there has been demonstrable justification of the infringement of a right. However, in the present case, as discussed above, the evidence is that the Commissioner did not issue confidentiality orders to every witness. This practice of the Commissioner, in my view, refutes any logical inference that in the context of these investigations confidentiality orders must be issued automatically to every witness.
[225] Further, common sense is not to be used as a cover for "unfounded or controversial assumptions" (Thomson, supra at paragraph 116). Where a Court issues a confidentiality order in a judicial proceeding, as a matter of law, the need for such order is required to be "well grounded in the evidence" (see: Sierra, supra at paragraph 54) and a judge is required to consider on the evidence whether reasonable alternatives are available. While the investigations before me are indeed at the investigative stage and are not conducted in the context of a judicial process, it remains that the need for a confidentiality order is a matter capable of being established by evidence and by the inferences which may properly be drawn from evidence. Put more simply, the potential for harm is something that can be established on evidence and therefore should be proven, not assumed.
[226] I therefore conclude that in circumstances where the Commissioner's delegate did not impose confidentiality orders on all of the witnesses who appeared before him in these investigations, and where in other contexts courts do require evidence in order to substantiate the need for a confidentiality order, I am not satisfied that the Commissioner may rely only upon the contextual factors, logic and common sense in order to meet his burden of demonstrably justifying the confidentiality orders.
[227] On the basis of the totality evidence that is before me, and having regard to logic and common sense, I conclude that the confidentiality orders are over-broad in at least the following respects.
[228] First, it was the position of the Commissioner when examining each individual applicant that the same broad orders should issue to all of these individual applicants. The applicants then bore the onus of justifying to the Commissioner any departure from that default position. The default position ordered witnesses not to reveal "any information disclosed during my confidential testimony in this matter including the evidence given by me'". The requests that were made for less restrictive orders are set out above. They were denied where the requesters failed to convince the Commissioner's delegate that communication was required. Thus, for example, the Clerk of the Privy Council's request to communicate confidential information to the Prime Minister was refused because the Commissioner's delegate concluded that no specific need had been shown for the Prime Minister to be made privy to the information.
[229] While the request of the Prime Minister's Chief of Staff that he be permitted to communicate with the Prime Minister was allowed, it was allowed on the basis that the Prime Minister must undertake not to communicate this information to his Cabinet. As noted above, the reasons of the Commissioner's delegate were:
Taking into account the unique relationship of loyalty and trust which must exist between a Prime Minister and his senior political adviser, I consider it appropriate to exercise my discretion in favour of permitting the witness to communicate information deriving from the confidential proceeding to the Prime Minister. However, no evidence was presented to support the request that the Prime Minister be given the authority to communicate confidential information to any or all members of his Cabinet. Given the nature of the proceeding and the requirements of s.35, I consider that granting the request would not be consistent with my obligation to protect the confidentiality and the integrity of this investigation.
[230] The request to add a fifth lawyer to the list of the applicants' lawyers at Borden Ladner Gervais LLP was denied because no "pressing need" for another lawyer had been demonstrated.
[231] From the evidence as to how the orders were imposed and how the requests to vary them were treated, I conclude that the Commissioner's delegate reversed the process and failed to recognize the obligation upon him to justify a measure which infringed the witness' right of free speech.
[232] Instead of justifying to the applicants why blanket orders were required, the Commissioner's delegate required the applicants to justify why they should be permitted to exercise their right of free expression. The Charter and jurisprudence of the Supreme Court of Canada establish that it is the person who wishes to impair a protected freedom who bears the onus of justifying such impairment.
[233] As well, on the basis of the evidence before me the confidentiality orders went further than was reasonably necessary in order to achieve the Commissioner's objects.
[234] In this regard there is no cogent evidence as to why the confidentiality orders were of unlimited duration in time such that they would continue, unless varied, after the Commissioner's investigation had concluded.
[235] The Commissioner argues that in Rubin (1994), supra, the Federal Court of Appeal concluded that the integrity of the investigative process requires that a complainant never be entitled to see the representations made to the Commissioner in respect of his or her complaint. This is, however, distinguishable in my view from the case where a witness wishes to speak of their own free will of their own testimony or observations. Rubin (1994) dealt with a situation where a complainant sought to learn the confidential evidence or information of another.
[236] The Commissioner also argues that the concern that a witness' testimony might result in employment repercussions justifies an order of unlimited duration. It is noted that issues around a particular access request may extend for months or years after the conclusion of the investigation. Further, it is argued that the existence of such orders provides assurances to those who may be involved in future investigations that their testimony can be protected indefinitely if necessary.
[237] I do not accept this argument as being sufficient to justify the unlimited time duration of the confidentiality orders. In my view, the concern expressed by the Commissioner is not well grounded in the evidence. None of the applicants have expressed this concern. Further, practically speaking supervisors move, employees change positions, policies evolve, ministers and prime ministers change. None of these practical considerations are reflected in an order that does not expire.
[238] To the extent that the Commissioner relies upon the need to protect future investigations, this concern has not been found sufficient to justify the exemption of information from release under the Act or under the Privacy Act. In Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219 the Federal Court of Appeal wrote at paragraph 12:
Fourth, the chilling effect disclosure might have on possible future investigations has been consistently denied as a ground for refusing disclosure (see Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (C.A.), at paragraphs [35-36]; Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, at paragraph 45; Lavigne, supra). I appreciate that these decisions were rendered in the context of paragraph 16(1)(c) of the Access Act and of paragraph 22(1)(b) of the Privacy Act, but the principles they set out with respect to investigative bodies involved in the detection of crime or law enforcement are even more applicable to informal investigations of an administrative nature such as in the case at bar. If Parliament is prepared to protect the identity of a confidential source of information only during the course of "lawful investigations" contemplated by these paragraphs, one can hardly make a policy argument that it is necessary to protect the name of a witness in an informal inquiry in order to avoid jeopardizing the conduct of such inquiries in the future. [underlining added]
I do not accept the need to protect future investigations to justify an order of unlimited duration.
[239] Aside from the duration of the confidentiality orders, the orders are, in my view, also over-broad to the extent that they contain provisions which are unnecessary in order to fulfill the objectives of the orders. In this regard:
1. The evidence establishes that communication now prohibited between some applicants and certain individuals would not give rise to any concern that the evidence of a witness or a potential witness would be tainted. See, for example, the confidential transcript of the confidential proceedings involving Mr. Pelletier at pages 55 and 56.
2. The evidence establishes that certain witnesses did not need to speak to the Commissioner's delegate in private in order to be protected from coercive influences. See, for example, the confidential transcript of the confidential proceedings involving Mr. Pelletier at pages 55 and 56. None of the applicants expressed this concern. The offices which at least some of the applicants held are such that it is not possible to presume they are susceptible to coercion.
3. The evidence does not establish that all of these applicants would improperly disclose confidential government information unless the confidentiality orders were imposed.
4. The evidence does not establish that disclosure of information concerning the manner in which the proceedings were conducted, the role counsel was permitted to play, the nature of objections made by counsel, and the rulings given in response to such objections would impair the integrity of the investigations.
[240] With respect to the Commissioner's position that it is necessary for every witness to be covered by a confidentiality order in order to avoid a stigma attaching to witnesses who were subject to such orders, it is significant that counsel for the Commissioner did not point to any occasion where the Commissioner's delegate gave this as a reason for the issuance of an order. Colonel Drapeau did not give evidence to this effect, he merely opined that public servants and members of the Canadian Forces would be unlikely to feel comfortable requesting an order of confidentiality. The Commissioner did not impose confidentiality orders upon every witness. Accordingly, the evidence does not support the argument that blanket orders were required such that nothing less would achieve the expressed objectives.
[241] To the extent confidentiality orders restricted communication in circumstances where there was no reasonable concern that such communication would impair the investigation or would result in the improper disclosure of confidential information, the orders were, in my view, an impermissible restriction on the witnesses' freedom of expression.
[242] With respect to the Commissioner's concerns of improper disclosure of government information, it is to be remembered that the Federal Court of Appeal has held that the Commissioner is not entitled to put information before a witness which may be exempt from disclosure under the Act. Further, many of the witnesses who appeared before the Commissioner's delegate were subject to confidentiality obligations independent of any imposed by the Commissioner. In consequence, the need to protect information would not arise in every examination. To the extent that it did, a confidentiality order would, in my view, be justified with respect to that specific information so long as the order went no further than was reasonably required to protect the confidential information.
[243] Two final points are to be made. First, the Commissioner argues that in lieu of applying the Oakes analysis, the analysis of the Supreme Court in Sierra, supra should be applied in order to determine whether the confidentiality orders are justified. Because Sierra was decided in circumstances where there is a presumption of open proceedings, and no such presumption attaches to the Commissioner's confidential investigation, I am not convinced that the Sierra analysis is more appropriate than the Oakes analysis. Nor am I convinced that any different conclusion would result if the Sierra analysis was applied. I am satisfied, however, that it is not wrong in law to apply the Oakes analysis and I have so proceeded.
[244] The second point is that four of the five investigations are ongoing. As counsel for the Commissioner observed, with respect to those ongoing investigations the Court does not know the Commissioner's investigational plan, what witnesses may need to be recalled, what further witnesses will be required, or what, if any, conflicts exist in the testimony given to date. In that context I am not prepared to order that the confidentiality orders be quashed with immediate effect out of concern that such an order could jeopardize the ongoing investigations. In my view, the public interest in preserving the integrity of the Commissioner's investigations justifies making an order quashing the confidentiality orders, but on terms that the operation of such order be suspended for a period of 30 days from the date of these reasons. Such date may be extended by the Court if so convinced on proper motion brought by the Commissioner. The purpose of this suspension is to permit the Commissioner to consider the need for confidentiality orders and, if still required, to issue orders which are not over-broad in scope and which are demonstrably justified. It is a term the Court may impose as contemplated by Rule 53 of the Federal Court Rules, 1998.
(iv) Conclusion re Group B
[245] On the basis of the analysis set out above, I have concluded that the confidentiality orders did more than bring home to a witness their obligations under the Act, but that the Commissioner's delegate was authorized under the Act to issue confidentiality orders. However, the orders at issue breached the right of the individual applicants to freedom of expression. Such orders were over-broad and so were not a reasonable limit prescribed by law so as to be valid pursuant to the provisions of section 1 of the Charter. In the result, the confidentiality orders should be set aside, but on condition. That condition is that the order quashing the confidentiality orders will only take effect 31 days after the date of the order embodying this decision. The 30-day period of suspension will permit the Commissioner to consider the need for confidentiality orders and, if required, to issue orders which are not over-broad and which are justified on the evidence before the Commissioner.
7. GROUP C: COPYING OF RECORDS APPLICATIONS
(i) Additional Relevant Facts
[246] The copying of records issue arises in 10 applications for judicial review that in turn arose from the investigations carried out by the Commissioner into the Black documents requests, the Prime Minister's agenda requests, the Minister of Transport agenda request and the November 12 M5 documents request.
[247] In the course of those investigations a number of subpoenas duces tecum were issued. The subpoenas relevant to this group of applications were as follows:
1. On August 11, 2000, a subpoena duces tecum was issued to Mr. Hartley in the investigation of the complaint relating to the Prime Minister's agenda requests. The subpoena is described in more detail above in that portion of the reasons relating to the Group A applications.
2. On August 11, 2000, subpoenas were issued to Messrs. Onuoha and Mylyk and to Ms. Morris with respect to the November 12 M5 documents request. These subpoenas are also described in the reasons relating to the Group A applications.
3. On March 8, 2001, a subpoena was issued to Mr. Pelletier with respect to the Black documents requests, as described in the reasons relating to the Group A applications.
4. On April 6, 2001, a subpoena was issued to The Honourable Art Eggleton then the Minister of National Defence requiring him to produce:
All records under your control containing information with respect to any and all DND M5 management meetings held from January 1, 1999 to October 29, 1999, and including any notes, notebooks, minutes, agendas, e-mails, files whether electronic, printed, handwritten or in any other format.
5. On April 23, 2001, a subpoena was issued to Ms. Sue Ronald, the Executive Assistant to the Minister of Transport. The subpoena required her to produce:
Copy of the version of the Minister of Transport's itinerary and / or meeting which was provided to the Deputy Minister of Transport in the period of June 1, 1999 to November 5, 1999.
6. On May 17, 2001, a subpoena issued to Mr. Mel Cappe the Clerk of the Privy Council requiring him to produce:
All records (as that term is defined in section 3 of the Act) under the control of the Privy Council Office containing information relating to:
i) the receipt, use and disposition by the Clerk of the Privy Council of agendas of the Prime Minister of Canada, and
ii) the cessation in 1999 of the practice of providing agendas of the Prime Minister to the Clerk of the Privy Council.
7. On August 9, 2001, a second subpoena duces tecum was issued to Mr. Eggleton which required him to produce:
All records under your control, whether in your ministerial offices or elsewhere within the Department of National Defence, containing information with respect to any and all DND M5 management meetings held from January 1, 1998 to September 22, October 29, 1999, and including any notes, notebooks, minutes, agendas, e-mails, files whether electronic, printed, handwritten or in any other format.
[248] Documents were provided in response to each subpoena duces tecum. The original documents were not provided, but rather, copies of the originals were provided.
[249] All of the documents at issue were provided under cover of correspondence from the applicants' counsel which requested that the documents be returned by the Commissioner within a specified time period. The time period varied from between 10 to 30 days from the date on which the documents were provided to the Commissioner. Additionally, in each case counsel advised that it was the position of the person providing the documents that the Act did not authorize the Commissioner to make copies of the documents provided pursuant to the subpoenas duces tecum. The Commissioner was therefore requested not to copy any document so provided.
[250] It was the position of the Commissioner that he would not be bound by any conditions imposed upon him by the applicants and that if necessary copies of the documents would be made by the Commissioner's office. For the purpose of these applications, counsel for the Commissioner conceded in oral argument that copies were made of all of the documents in issue.
[251] While the actual version of the document provided to the Commissioner was in each case returned to the person who provided the documents, the Commissioner has not returned any of the copies of those documents which were made. The Commissioner advised counsel for the applicants in correspondence directed to them that:
[...] our practice is, upon completion of the investigation, to return all originals and copies of records obtained during our investigations unless the provider authorizes us to destroy the records or unless the records are required in anticipation of litigation. If copies have been notated by us as part of our review, those copies are destroyed by us upon completion of the investigation, unless the records are required in anticipation of litigation.
[252] Three of the four relevant investigations remain ongoing. The investigation into the Black documents requests has been completed. However, the copies made of the documents provided by Mr. Pelletier to the Commissioner in response to the subpoena issued in that investigation have neither been destroyed nor returned. The Commissioner advises that the copies were not destroyed because of the existence of the application for judicial review commenced by Mr. Pelletier. The Commissioner takes the position that the documents should not be destroyed because that could "amount to the destruction of evidence relevant to the pending applications". The documents were not returned because, as set out in correspondence to counsel for the applicants:
There is simply no basis for returning copies of the records produced by Mr. Pelletier to a third party, in this instance the Prime Minister. Simultaneously, given that Mr. Pelletier no longer holds the position of Chief of Staff, returning the copies to him would potentially circumvent the protection claimed by the Head of the Privy Council in relation to these records.
(ii) The Issues to be Determined
[253] The following issues are raised in this group of applications:
1) Should the Commissioner be named as respondent in this group of applications?
2) Is the application for judicial review in relation to the Black documents requests moot?
3) What standard of review is to be applied to the Commissioner's decision that he had authority to copy documents produced pursuant to subpoena?
4) Does the Commissioner have jurisdiction to photocopy documents delivered pursuant to a subpoena duces tecum issued pursuant to paragraph 36(1)(a) of the Act?
(iii) Analysis
(a) Should the Commissioner be named as respondent?
[254] The Commissioner does not oppose being named a respondent in this group of applications. The Commissioner has appeared, through counsel, and responded to the merits of the issues raised.
[255] Further, as noted above in the reasons relating to the Group A applications, the Attorney General of Canada can not be both an applicant and respondent to the proceedings.
[256] In these circumstances, an order will issue granting leave for the Commissioner to be the respondent in these applications.
(b) Is the application for judicial review in relation to the Black documents requests moot?
[257] In his written argument, the Commissioner argues that the investigation in relation to the Black documents requests has been completed so that the application for judicial review in relation to these requests is moot. The argument was not withdrawn, but was not pursued in oral argument. For completeness, I will therefore deal briefly with the argument.
[258] It is conceded that copies were made of the documents provided by Mr. Pelletier pursuant to the subpoena duces tecum served upon him. The evidence is that those copies have neither been returned nor destroyed.
[259] In that circumstance, in my view, the dispute is not academic and the relief sought would have a practical effect with respect to the copies made and retained by the Commissioner. I am therefore satisfied that the issue is not moot.
(c) The Standard of Review
[260] As noted in the reasons relating to the Group B applications, it is necessary to determine at the outset the standard of review to be applied to the Commissioner's decision that the Act allowed him to copy records produced pursuant to subpoena. With respect to these applications, the applicants submit that the standard of review is correctness. The Commissioner makes no submission on the standard of review. In the Commissioner's view, this is a question of powers granted under the Act or the administration of the Act and is not, in the words of counsel, a "decision disposing of rights".
[261] I believe it is necessary to undertake a pragmatic and functional analysis in order to determine the appropriate standard of review. See, for example: Echo Bay Mines, supra at paragraph 16.
[262] I am satisfied, however, that the pragmatic and functional analysis undertaken with respect to the Group B applications is essentially applicable to the Group C applications. The analyses with respect to the existence of a privative clause or right of appeal, the relative expertise of the decision-maker and the nature of the question, are equally apposite to this decision. With respect to the purpose of the Act and the provision in question, the purpose of the Act is the same and is an indicator of some deference. However, where the issue is the right of the Commissioner to make copies and the Commissioner is the decision-maker, this is a factor pointing toward the correctness standard of review.
[263] Balancing these factors, I again conclude that the appropriate standard of review is correctness.
(d) Does the Commissioner have jurisdiction to photocopy documents delivered pursuant to a subpoena duces tecum issued pursuant to paragraph 36(1)(a) of the Act?
[264] The applicants submit that subsection 36(1) of the Act exhaustively codifies the Commissioner's powers during an investigation. For ease of reference, subsection 36(1) is as follows:
| 36(1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power (a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record; (b) to administer oaths; (c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law; (d) to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises; (e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Act as the Commissioner sees fit; and (f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation. [underlining added] |
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36(1) Le Commissaire à l'information a, pour l'instruction des plaintes déposées en vertu de la présente loi, le pouvoir_: a) d'assigner et de contraindre des témoins à comparaître devant lui, à déposer verbalement ou par écrit sous la foi du serment et à produire les pièces qu'il juge indispensables pour instruire et examiner à fond les plaintes dont il est saisi, de la même façon et dans la même mesure qu'une cour supérieure d'archives;
b) de faire prêter serment; c) de recevoir des éléments de preuve ou des renseignements par déclaration verbale ou écrite sous serment ou par tout autre moyen qu'il estime indiqué, indépendamment de leur admissibilité devant les tribunaux; d) de pénétrer dans les locaux occupés par une institution fédérale, à condition de satisfaire aux normes de sécurité établies par l'institution pour ces locaux; e) de s'entretenir en privé avec toute personne se trouvant dans les locaux visés à l'alinéa d) et d'y mener, dans le cadre de la compétence que lui confère la présente loi, les enquêtes qu'il estime nécessaires; f) d'examiner ou de se faire remettre des copies ou des extraits des livres ou autres documents contenant des éléments utiles à l'enquête et trouvés dans les locaux visés à l'alinéa d). [Le souligné est de moi.]
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[265] The applicants observe that paragraph 36(1)(f) is the only provision which expressly confers the power to photocopy and this power relates only to copying records in premises occupied by a government institution which are entered by the Commissioner pursuant to paragraph 36(1)(d) of the Act. From this, the applicants argue that had Parliament intended the Commissioner to have more extensive powers to copy, Parliament would have expressly set out such powers. Reliance is placed upon the maxim expressio unius est exclusio alterius.
[266] Support for this interpretation is said to be found in subsection 36(5) of the Act which provides:
| 36(5) Any document or thing produced pursuant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner from again requiring its production in accordance with this section.
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36(5) Les personnes ou les institutions fédérales qui produisent des pièces demandées en vertu du présent article peuvent exiger du Commissaire à l'information qu'il leur renvoie ces pièces dans les dix jours suivant la requête qu'elles lui présentent à cette fin, mais rien n'empêche le Commissaire d'en réclamer une nouvelle production.
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[267] The applicants submit that there would be no need to include a right on the part of the Commissioner to require a second or subsequent production of a document if the Commissioner was entitled to make photocopies of documents produced to him.
[268] Further support for this interpretation is said to be found in the fact that subsection 36(5) allows the government institution to request the return of the copy of a book or record which was obtained pursuant to paragraph 36(1)(f). The applicants argue that this provision would have no purpose if the Commissioner could simply make another copy of the book or record when it was first requested because even if the government institution reacquired the copy provided to the Commissioner, the Commissioner would retain a photocopy.
[269] The applicants also argue that interpreting the Act so as not to allow the Commissioner the right to photocopy documents delivered to him is consistent with the purposes and policy underlying the Act. This is said to be so because the Commissioner has the power, pursuant to section 36 of the Act, to require production of any document which he deems requisite to the full investigation of a complaint. This may include privileged documents, sensitive government documents and personal records. The quid pro quo for that coercive power is said to be that any entity required to produce such documents is entitled to the return of the documents "secure in the knowledge that a number of copies of potentially highly personal or sensitive documents aren't lying around the Information Commissioner's office".
[270] Finally, the applicants argue that subsection 36(5) requires that all documents produced pursuant to section 36 be returned upon request and that this obligation extends to copies made by the Commissioner of documents found in government institutions. This is said to flow from the fact that such copies are documents "produced pursuant to this section".
[271] The Commissioner argues that he has power under the Act to make copies of the documents at issue because the powers conferred on him by the Act include by implication all of the powers which are reasonably necessary for him to accomplish his statutory purpose. The Commissioner points to subsection 31(2) of the Interpretation Act, R.S.C. 1985, c. I-21 which provides:
| 31(2) Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given.
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31(2) Le pouvoir donné à quiconque, notamment à un agent ou fonctionnaire, de prendre des mesures ou de les faire exécuter comporte les pouvoirs nécessaires à l'exercice de celui-ci.
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[272] Consideration of this issue begins with the following principles which are not in dispute. First, whether the Commissioner enjoys the power to photocopy documents produced pursuant to subpoena is a question of discerning the intent of Parliament as reflected in the Act. Second, such power must derive from the Act because the Commissioner may only exercise powers granted to him expressly or impliedly by the Act. Finally, while the Act is to be interpreted in a purposive and liberal manner, it should not be read so broadly that the Commissioner is endowed with powers Parliament never intended him to exercise.
[273] Three cases relied upon by the Commissioner consider when it is appropriate to imply a power.
[274] In Interprovincial Pipe Line Limited v. National Energy Board, [1978] 1 F.C. 601 (C.A.) the Federal Court of Appeal considered the authority of the National Energy Board to order a party to a rate hearing to file before the Board financial information which was not already in existence in the form specified by the Board. It was conceded that all of the information sought by the Board's order could be obtained in some fashion over some extended time by viva voce evidence. The Federal Court of Appeal concluded that the power to require the preparation of the information existed by necessary implication arising from the nature of the regulatory authority conferred on the Board. In so concluding, the Federal Court of Appeal quoted with approval from Halsbury's Laws of England, 3rd edition, volume 36, paragraph 657, page 436 that "the powers conferred by an enabling statute include not only such as are expressly granted but also, by implication, all powers which are reasonably necessary for the accomplishment of the object intended to be secured".
[275] In Bell Canada v. Canada (Canada Radio-Television and Tele-communications Commission), [1989] 1 S.C.R. 1722 the Supreme Court of Canada found the power to make interim orders necessarily implied the power to revisit the period during which interim rates were enforced. In so concluding, the Court wrote, at page 1756, that "the powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the Act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations or enabling statutes".
[276] The Supreme Court of Canada again considered the nature of implied powers of statutory bodies in R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575. The Court wrote at paragraph 71 that the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant a remedy sought and that "[w]hile these powers need not be absolutely necessary for the Court or Tribunal to realize the object of its statute, they must be necessary to effectively and efficiently carry out its purpose".
[277] Turning to the application of these principles, the purpose of the Commissioner's investigation is to enable him to provide his statutorily mandated report. This report is the first stage of the independent review of government decisions concerning access. As previously reviewed, the Commissioner is to conduct a thorough investigation. The result is to be reported to the complainant and to the head of the affected government institution. The Commissioner may initiate, or participate in review applications brought in this Court. Pursuant to subsection 36(3) and subparagraph 63(1)(a)(ii) of the Act the Commissioner may file with the Court evidence received during the Commissioner's investigation.
[278] Having considered the purpose of the Commissioner's investigation, the inquiry then becomes whether the power to photocopy is required as a matter of practical necessity in order for the Commissioner to conduct his investigation and further functions effectively and efficiently.
[279] In this regard, photocopying of documents carries with it the following results. Photocopying:
1. Permits there to be a comprehensive inventory of the documents produced pursuant to paragraph 36(1)(a) and returned pursuant to subsection 36(5).
2. Serves as a reasonable precaution for the purpose of section 64 against inadvertent disclosure by minimizing the need to transfer documents back and forth between the Commissioner's office and the original source of the document.
3. Enables investigators to annotate documents produced.
4. Enables a simultaneous parallel review of documents by more than one lawyer or investigator in order to make the investigation more efficient.
5. Ensures that the Commissioner has available a copy of a document to use in evidence in the course of proceedings commenced pursuant to sections 41, 42 or 44 of the Act or in the criminal proceedings contemplated in the Act.
6. Permits the preparation of exhibit books for witnesses and lawyers when the Commissioner is conducting investigations and examinations and also permits a transcript of an examination to be prepared that is complete in that copies of documents marked as exhibits are available.
[280] It may well be possible that the Commissioner could complete his investigation and report and participate in judicial proceedings without having the ability to photocopy documents provided to him, in the same manner that the National Energy Board could have obtained the information it sought by viva voce evidence. However, considering the efficiency and the benefits that derive from allowing documents to be photocopied, I am satisfied that the power to photocopy documents is required as a matter of practical necessity for the accomplishment of the Commissioner's responsibilities under the Act.
[281] In so concluding, I am mindful of the danger of unduly broadening the Commissioner's powers. However, having regard to subsection 36(3) of the Act which contemplates that the Commissioner may in a prosecution or in a review before the Court under the Act provide "evidence given by a person in proceedings under [the] Act" and having regard to subparagraph 63(1)(a)(ii) of the Act which allows the Commissioner to disclose information necessary "to establish the grounds for findings and recommendations contained in any report" made by the Commissioner under the Act, I am satisfied that it is not contrary to the scheme of the Act to imply this power. Rather, the power to photocopy facilitates the Commissioner's ability to provide evidence.
[282] This is so because the Commissioner is obliged under the Act to return documents upon request to the provider of the document. In that circumstance, allowing the Commissioner to retain a copy will ensure his ability to establish the grounds for findings and recommendations and to put before the Court evidence given in proceedings. While the applicants argued that this could be done by having the Commissioner simply request the document again, any subsequent requests would all remain subject to the right of the provider of the document to require its return on 10 days' notice. This is not a practical mode of proceeding.
[283] I have considered the applicants' argument that subsection 36(1) exhaustively codifies the Commissioner's powers with respect to the conduct of investigations and that since paragraph 36(1)(f) specifically provides for the power to obtain copies of records found in a premise occupied by any government institution and entered by the Commissioner, no other power to photocopy documents exists. However, the weight to be given to maximexpressio unius est exclusio alterius argument depends, in the words of Professor Sullivan, upon "a range of contextual factors and the weight of competing considerations. Even if an implied exclusion is not rebutted, it may be outweighed by other indicators of legislative intent". See: Sullivan and Driedger on the Construction of Statutes, 4th Edition, Butterworths, Vancouver, 2002 at page 193. In my view, the need to construe the Act in a liberal and proposive fashion weighs strongly against the implied exclusion argument.
[284] Further, the force of the implication depends upon the strength of the expectation that had Parliament meant to include a particular thing within its legislation it would have specifically referred to it. See: Sullivan, supra, at page 187. The specific power referenced at paragraph 36(1)(f) arises in the situation where the Commissioner has satisfied any security requirements and has entered premises occupied by a government institution. It is, in my view, to be expected that the powers of the Commissioner in that situation would be expressly set out. In my view, no similar expectation exists that Parliament would have specified that documents could be copied in the ordinary course of carrying out the Commissioner's investigation.
[285] With respect to the applicants' argument that there would be no need to include in subsection 36(5) a right on the part of the Commissioner to require a second or subsequent production of a document if the Commissioner is entitled to make a photocopy of the document from the outset, this argument ignores the fact that a subsequent production could be required for a number of different reasons. For example, a copy may not have initially been made of a document or the document itself may be required for forensic analysis. Thus, subsection 36(5) is equally consistent, in my view, with Parliament's intent, out of an abundance of caution, to ensure that the Commissioner is not seen to be limited to one request to have a document produced.
[286] With respect to the argument that allowing the Commissioner to copy a document renders the right to compel the return of the document nugatory, this argument is premised on the assumption that the right of return flows from the need to preserve the confidentiality of documents. In my view, other provisions of the Act are directed to ensuring the confidentiality of government information. The right to the return of a document within 10 days of requesting its return is equally consistent with operational requirements which may necessitate the return of an original document to the record keeper.
[287] I have also considered the applicants' argument that interpreting the Act so as not to allow the Commissioner to copy documents promotes the purposes and policy underlying the Act. In so arguing, the applicants again characterized the relevant purpose of the Act to be preserving the security of highly personal or sensitive documents. However, in my view, the purpose of the Act is to provide a meaningful right of access and to provide citizens with a thorough investigation of their complaints concerning access. Implying the power to photocopy documents is consistent, in my view, with those purposes.
[288] The final argument of the applicants is that subsection 36(5) requires the Commissioner to return documents upon request. This obligation is said to extend to returning copies of documents made by the Commissioner. This argument requires the Court to conclude that such copies are documents "produced pursuant to this section" as that phrase is used in subsection 36(5).
[289] In my view, subsection 36(5) is not intended to apply to copies made by the Commissioner. Rather, based on its wording, subsection 36(5) is directed to the return of the actual version of the document or thing that was produced to the Commissioner pursuant to section 36. It follows, in my view, that subsection 36(5) does not require the Commissioner to return copies he may have made of documents provided to him because those copies were not "produced" pursuant to section 36.
[290] Having found that the Act does by implication authorize the Commissioner to make copies of documents produced to him pursuant to his subpoena power, it follows that these applications for judicial review should be dismissed.
(iv) Conclusion re Group C
[291] For the reasons set out above, I have concluded that the Commissioner is properly named as respondent to these proceedings and that the application for judicial review brought by Mr. Pelletier is not moot. I have further determined that the Act, by implication, authorizes the Commissioner to make copies of documents provided to him pursuant to his power to subpoena documents. In the result, an order will issue to this effect.
8. GROUP D: THE PROPRIETY OF QUESTIONS APPLICATIONS
(i) Additional Relevant Facts
[292] This group contains two applications for declaratory relief relating to the propriety of certain questions put to Jean Pelletier and to the Honourable Art Eggleton, who each gave evidence under oath before the Commissioner's delegate pursuant to subpoenas served upon them. The subpoena to Mr. Pelletier arose out of the Commissioner's investigation into the refusal of greater access to documents in response to the Black documents requests. The subpoena to Mr. Eggleton arose in the course of the Commissioner's investigation of the complaint made with respect to the November 12 M5 documents request.
[293] The questions put to Mr. Pelletier and Mr. Eggleton by the Commissioner's delegate are contained in the confidential transcripts of the evidence taken before the Commissioner's delegate, and so can not be disclosed. What can be disclosed is that the questions put to Mr. Pelletier called for his opinion on a matter and the questions put to Mr. Eggleton called for his opinion on a matter and invited his comment on the opinion of another.
[294] When the disputed questions were put to Mr. Pelletier at his examination on April 11, 2001, his counsel objected to the questions. At the end of Mr. Pelletier's examination, the Commissioner's delegate reserved his decision on whether to compel Mr. Pelletier to answer the disputed questions and advised that he would write to counsel with respect to his decision. By letter dated June 7, 2001 the Commissioner's delegate advised that he had decided that it was unnecessary for Mr. Pelletier to answer the questions. Subsequently, the Commissioner concluded his investigation into the complaint arising from the Black documents requests. The Commissioner dismissed the complaint.
[295] The questions directed to Mr. Eggleton were put to him by the Commissioner's delegate at Mr. Eggleton's examination on April 26, 2001. His counsel objected to the questions, but the objection was overruled. Mr. Eggleton then answered the questions as ordered by the Commissioner's delegate.
(ii) The Issues to be Determined
[296] The issues raised by the parties to be determined in this group of applications are:
1. Is the Commissioner a proper respondent?
2. Should the Court exercise its discretion to grant the requested declarations?
3. Is the application for judicial review not justiciable and moot with respect to the questions put to Mr. Pelletier?
4. If the Court exercises its discretion to grant the requested declarations, what is the applicable standard of review to be applied to the decision of the Commissioner's delegate?
5. Did the Commissioner's delegate have jurisdiction to order that certain questions be asked? Alternatively, are the questions at issue appropriate and relevant to the full investigation and consideration of the complaint?
(iii) Analysis
(a) Should the Commissioner be named as respondent in this group of applications?
[297] The Commissioner does not oppose being named a respondent in this group of applications. For the reasons given in respect of the Group C applications, an order will issue granting leave for the Commissioner to be the respondent in these applications.
(b) Should the Court exercise its discretion to grant the requested declarations?
[298] In oral argument counsel for the applicants agreed that the issues raised in these applications are moot. This is so because Mr. Pelletier was ultimately not required to answer the questions at issue put to him and because Mr. Eggleton answered the questions at issue put to him.
[299] Notwithstanding, counsel for the applicants argues that the Court should apply the criteria identified in Borowski, supra and exercise its discretion to decide the propriety of the questions. Specifically, counsel for the applicants argues that there remains an adversarial relationship between the applicants and the Commissioner so as to ensure that the issues are fully argued, and asserts that the questions before the Court are of a recurring nature, but of brief duration which might otherwise evade judicial review. This is said to follow from the decision of the Court of Appeal in the interlocutory appeal in that, on the reasoning of the Court, there would be no irreparable harm, if disputed questions were to be answered. In the absence of irreparable harm interlocutory injunctive relief would not be available to restrain the Commissioner from requiring an arguably improper question to be answered. Further, the applicants acknowledge that the jurisprudence is to the effect that it is generally improper to seek review of an interlocutory ruling on an evidentiary matter. The applicants say that the consequence of these two principles is that a witness is effectively prohibited from seeking review in a timely way of the Commissioner's decision to require that a question be answered. Therefore, the Court should decide the propriety of these questions.
[300] Counsel for the Commissioner responds by arguing that if one takes into account the public policy goals of the Act, the role of the Commissioner under the Act and the powers vested in the Commissioner under the Act, these applications do not raise a proper case for the Court's exercise of discretion to grant the declaratory relief sought. Further, the Commissioner asserts that the application brought by Mr. Pelletier is moot and not justiciable because the Commissioner's investigation is at an end with respect to the Black documents requests.
[301] In my view, given the concession by counsel for the applicants that these applications are moot in the ordinary sense, the analysis should begin with consideration of the three criteria articulated by the Supreme Court of Canada in Borowski, supra to guide the exercise of the Court's discretion whether to determine issues which are moot.
[302] Turning to the first criteria, I am satisfied in this case that the necessary adversarial relationship exists. The parties have fully argued the issues before the Court.
[303] The second Borowski criteria is based upon the concern for judicial economy and requires the Court to consider whether special circumstances exist which make it worthwhile to apply scarce judicial resources to resolve the issue which has become moot. Special circumstances have been found to exist where: the decision will have some practical effect on the rights of the parties notwithstanding that the decision will not determine the controversy which gave rise to the dispute; the disputed issue arises in cases which, although moot, are of a recurring nature but brief duration so that an important question might otherwise evade review unless now resolved; and where an issue of public importance is raised that should be resolved in the public interest. See: Borowski, supra at pages 358-363.
[304] In the present case, consideration of the following factors will bring to light the existence, or non-existence of special circumstances which would justify departure from the usual practice that the Court will not adjudicate disputes which are moot. Those factors are:
1. The statutory scheme.
2. The nature of the challenge to the propriety of the questions.
3. The general principles which apply to such a challenge.
4. The likelihood of the issue of the propriety of the questions recurring, and the extent that this is a brief transitory issue, and thus likely to evade review.
Each factor will be considered in turn.
1. The statutory scheme.
[305] The purpose of the Act and the importance of the role played by the Commissioner's investigation have been previously discussed. Of particular relevance to these propriety of questions applications are the broad powers conferred on the Commissioner with respect to the investigation he is required to conduct. Specifically, the Commissioner is authorized:
a) to summon persons to give evidence on oath and to produce such documents and things "as the Commissioner deems requisite to the full investigation and consideration of the complaint" (paragraph 36(1)(a));
b) to receive and accept such evidence as the Commissioner "sees fit, whether or not the evidence is or would be admissible in a court of law" (paragraph 36(1)(c)); and
c) to determine the procedure to be followed in the performance of any duty or function of the Commissioner under the Act (section 34).
[306] These provisions manifest Parliament's intent that the Commissioner is not limited to receiving evidence which would be admissible in a court of law. Rather, the Commissioner is only limited in that the evidence must be deemed by the Commissioner "to be requisite to the full investigation and consideration of the complaint".
[307] The scope of these investigative powers, coupled with the absence of any right of appeal from the Commissioner's determination that evidence is required, the Commissioner's relative expertise in the conduct of investigations and the Commissioner's superior knowledge of the status of a particular investigation, all suggest that the Commissioner's decision that certain evidence is required should be given significant deference by the Court. In the absence of a challenge that the impugned questions go beyond the jurisdiction of the Commissioner to ask, or were motivated by bad faith or improper purpose, the Court should be slow to intervene in the Commissioner's exercise of discretion as to the procedure to be followed while soliciting and accepting oral evidence.
[308] This deference is, in my view, a factor to weigh when considering whether special circumstances exist which justify the Court's exercise of discretion to rule on a question which is moot.
2. The nature of the challenge to the propriety of the questions.
[309] As noted above, deference is not owed to the Commissioner where he has acted without jurisdiction, in bad faith, or for an improper purpose. When assessing the existence of special circumstances it is relevant, therefore, to consider the nature of the challenge to the Commissioner's rulings that certain questions should be answered.
[310] The applicants in their written argument characterize the impugned questions as going beyond the jurisdiction of the Commissioner to ask. Reliance is placed upon authorities such as Babcock v. Canada (Attorney General) (2002), 214 D.L.R. (4th) 193 at 202-203 and Carey v. Ontario, [1986] 2 S.C.R. 637 at 655-657. These cases deal generally with the protection of cabinet confidences and cabinet solidarity. However, in oral argument, counsel for the applicants confirmed that he was not submitting that the principles set out in those and other cases establish that the questions asked went beyond the jurisdiction of the Commissioner's delegate. Rather, the applicants submit that "the principles in those cases establish the potential mischief against which the question of relevance ought to be determined". Later in oral argument, counsel for the applicants reiterated that notwithstanding paragraph 36(1)(c) of the Act (which allows the Commissioner to receive evidence whether admissible in a court of law) the Commissioner is governed by issues of relevance. In the words of counsel, "if relevance was not the issue, there would be no limit".
[311] It follows that the reviewable error asserted on the applicants' behalf does not go to jurisdiction, but rather to the Commissioner's delegate's assessment of the relevance and hence the propriety of the impugned questions.
[312] Having characterized the nature of the challenge to the propriety of the questions, I turn to consider the general principles which apply to such a challenge.
3. The general principles which apply to such a challenge.
[313] The errors here asserted were committed in the course of the investigation of the complaints arising from the Black documents requests and the November 12 M5 document requests. The former investigation was concluded after the examination of Mr. Pelletier, the latter investigation has not yet concluded. The admissibility rulings were therefore interlocutory decisions of an investigative body.
[314] As a general rule, rulings made during the course of a tribunal's proceedings should not be challenged until the tribunal's proceedings have been completed. As Mr. Justice Sexton observed, writing for the Federal Court of Appeal in Zundel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 at paragraph 10, the rationale for this general rule is that challenges to interlocutory rulings may ultimately be unnecessary because the complaining party may be the successful party in the end result, thus making the challenge to the interim ruling of no value. This principle was reiterated by the Federal Court of Appeal in Bell Canada v. Canadian Telephone Employees Association, [2001] F.C.J. No. 704 at paragraph 5.
[315] This general principle, that a tribunal's rulings on the admissibility or compellability of evidence should not be the subject of review proceedings until the tribunal has completed its investigation, is a further factor to weigh when determining whether special circumstances exist to justify the exercise of discretion to decide a moot issue.
[316] I turn now to the final factor to consider.
4. The likelihood of the issue of the propriety of the questions recurring, and the extent that this is a brief transitory issue, and thus likely to evade review.
[317] The applicants argue that the confidential transcripts of the proceedings before the Commissioner's delegate reveal that the same questions were put to at least two witnesses, and that the issue will evade review because of the unavailability of injunctive relief and the general principle that evidentiary rulings should not be challenged on an interlocutory basis.
[318] There are, however, in my view, difficulties with this submission. First, I am not satisfied that any ruling on the propriety of these questions would be determinative or applicable in future cases. The question of whether a specific opinion is properly sought from a particular witness in a specific fact situation is, in my view, fact-driven and fact-specific. It is unlikely therefore to have general application.
[319] The second difficulty is that with respect to the questions put to Mr. Pelletier, the Commissioner ultimately withdrew the questions. This casts some doubt on the likelihood of the questions recurring.
[320] The final difficulty is that I am not satisfied that if improper questions are put to a witness, are answered, and are then relied upon by the Commissioner to a material extent in reaching a decision, that the propriety of the questions will evade judicial review. If the Commissioner relies, to a material extent, upon irrelevant or improper evidence or information to reach a conclusion, that would itself provide a ground for judicial review.
[321] It follows that I have not been persuaded that there is a significant likelihood of the questions recurring in circumstances where a ruling on these specific questions will determine future disputes. Further, if improper questions are asked and answered, and the improperly obtained answers are material to the Commissioner's ultimate decision, the decision would likely be reviewable on that ground.
[322] The foregoing analysis has led to the following conclusions:
i) In the absence of a challenge that the impugned questions go beyond the jurisdiction of the Commissioner to ask or were asked for an improper purpose, the Court should be slow to intervene in the exercise of the Commissioner's discretion as to what evidence he sees fit to accept;
ii) The impugned questions are not challenged on grounds of jurisdiction or improper purpose, but are challenged on grounds of relevance;
iii) As a general principle, evidentiary rulings should not be challenged until the final decision is made. In the case of the investigation into the November 12 M5 complaints, the investigation is ongoing. In the case of the investigation into the complaints arising from the Black documents requests, the investigation has been completed and Mr. Pelletier was never required to answer the questions;
iv) The applicants have failed to establish that there is a likelihood of the questions recurring in circumstances where a ruling on the propriety of these questions would be determinative of subsequent disputes; and
v) The applicants have failed to establish that the taking of improper evidence would escape judicial review if the improper evidence was material to the final decision.
[323] In light of these conclusions, I do not find that special circumstances exist which would warrant adjudication of the moot questions raised in these applications.
[324] Finally, it is necessary to consider the third criteria articulated by the Supreme Court in Borowski, supra, which is the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. In my view, the lack of precedential value of a ruling made in this dispute is dispositive. I see no public interest which would warrant determining the issues raised in these applications.
(iv) Conclusion re Group D
[325] Two of the three criteria established in Borowski weigh against the exercise of discretion to determine these applications on the merits. The fact that the necessary adversarial context exists is insufficient to justify the exercise of discretion to determine the propriety of the questions.
[326] Accordingly, an order will issue dismissing the applications for declaratory relief and reserving the issue of costs.
9. GROUP E: THE SOLICITOR-CLIENT APPLICATION
(i) Additional Facts
[327] This application for judicial review arises out of the investigation by the Commissioner into the complaints arising out of the responses by the head of the Privy Council Office to the Prime Minister's agenda requests.
[328] In the course of investigating these complaints, the Commissioner's delegate served Mr. Cappe with a subpoena duces tecum which required him to attend to give evidence before the Commissioner's delegate and to bring with him certain records. The terms of the subpoena have previously been set out in these reasons with respect to the Group C applications, but are repeated here for ease of reference:
All records (as that term is defined in section 3 of the Act) under the control of the Privy Council Office containing information relating to:
i) the receipt, use and disposition by the Clerk of the Privy Council of agendas of the Prime Minister of Canada, and
ii) the cessation in 1999 of the practice of providing agendas of the Prime Minister to the Clerk of the Privy Council.
Upon receipt of the subpoena Mr. Cappe caused a search to be conducted at the Privy Council Office for all records which contained subject matter described by the subpoena. Among the records located were:
1. A July 30, 1999 memorandum entitled "ATIP Request-PM's Agenda" and subtitled "Legal advice". This memorandum was prepared by a lawyer in the Legislation and House Planning/Counsel Section of the Privy Council Office, which section is part of the Privy Council Office and not part of the Department of Justice. The section's functions include providing legal advice to the Prime Minister's Office, the Cabinet, and the Privy Council Office. The July 30, 1999 memorandum states on its face that it is a "memorandum for Mel Cappe". Mr. Cappe swears that the memorandum contains a discussion and analysis of the legal options available to the Privy Council Office, under the Access to Information Act, to respond to the requests for access to the Prime Minister's agendas. Those requests had not yet been responded to when the July 30, 1999 memorandum was prepared.
2. Ten further documents. They are listed in Schedule A to the notice of application filed in this proceeding ("the Schedule A documents"). Mr. Cappe swears that all of the Schedule A documents were located in the Privy Council Office and were all communications, or records of communications, or drafts of communications, between or amongst officials of the Government of Canada, including communications to the Prime Minister and the Deputy Attorney General of Canada. They were all made for the purpose of giving or communicating legal advice with respect to the issues between the Information Commissioner and the Government of Canada which gave rise to this litigation.
[329] On May 23, 2001, counsel for Mr. Cappe wrote to counsel for the Commissioner in order to clarify the scope of the subpoena issued to Mr. Cappe. Counsel for Mr. Cappe pointed out that a broad reading of the subpoena suggested that the Commissioner's delegate sought to order Mr. Cappe to provide all documents described therein, whether or not those documents were subject to solicitor-client privilege. On June 6, 2001, counsel for the Commissioner responded that Mr. Cappe was required to produce all records referred to in the subpoena and any records which were alleged to be subject to solicitor-client privilege should be identified as such.
[330] On June 8, 2001, a number of documents were delivered to the Commissioner pursuant to the subpoena under cover of a letter from counsel for Mr. Cappe. That correspondence stated that documents subject to solicitor-client privilege were not provided and a list of the documents that Mr. Cappe declined to produce was provided. Counsel for Mr. Cappe offered to sever the privileged documents so as to disclose to the Commissioner recitations of facts contained therein, but not that portion of the documents that contained legal advice and discussions of legal strategy.
[331] By letter dated June 11, 2001, the Commissioner's delegate acknowledged receipt of counsel's correspondence and the documents. In material part the Commissioner's delegate responded that:
I write to acknowledge receipt of your letter of June 8, 2001 together with 15 records relevant to my subpoena of May 17, 2001 as well as a list of 11 relevant records which your client has refused to produce in accordance with the subpoena. The refusal is based on your client's contention that the 11 records, in whole or in part, qualify for solicitor-client privilege.
In order to be in satisfactory compliance with my subpoena of May 17, 2001, I will expect your client to produce, on June 12 at 9:30 a.m., item one of the list of withheld records, being the document dated July 30, 1999. This record predates the commencement of the Commissioner's investigation and is, in my view, relevant to our investigation of whether or not the head of PCO had reasonable grounds, in fact and law, to refuse to disclose records requested under the Access to Information Act.
Paragraph 36(1)(c) and subsection 36(2) make it clear that an assertion of solicitor-client privilege does not justify your client's decision to withhold records from this office, a view endorsed by the Federal Court of Appeal in Ethyl Canada (A-762-99) - a case wherein the Crown was denied leave to appeal to the Supreme Court of Canada ([2000] S.C.C.A. No. 275). Nevertheless, I do not insist at this time on seeing the remaining ten withheld records since, from the description provided, they do not shed light on the response to the access request. Of course, I reserve the right to examine these ten records at a later date to satisfy myself that they are as you have described.
[332] On June 12, 2001, Mr. Cappe appeared before the Commissioner's delegate pursuant to the subpoenas duces tecum and was examined under oath. During that appearance Mr. Cappe's counsel made submissions to the Commissioner's delegate on the issue of whether the July 30, 1999 legal advice memorandum ought to be produced and the Commissioner's delegate reserved his decision.
[333] By letter dated June 19, 2001, the Commissioner's delegate provided Mr. Cappe's counsel with his decision. In material part that decision was:
Having carefully considered the submission made in support of your motion, I see no reason to change the position set out in my letter of June 11, 2001. In addition to the reason of relevance, set out in my letter of June 11, I am also in doubt whether or not the content of the records qualify for solicitor-client privilege, given the operational role some PCO lawyers have in the administration of the Access to Information Act.
Consequently, I consider that, at a minimum, the document, dated July 30, 1999, is required to be produced pursuant to my subpoena of May 17, 2001. I expect the document to be produced no later than 14:00 hrs, June 20, 2001. As I said in my letter of June 11, I reserve the right to examine the remaining ten records at a later date.
[334] The Commissioner was provided with a complete copy of the July 30, 1999 memorandum. The Commissioner has not to date been provided with any of the Schedule A documents.
(ii) The Issues
[335] The issues that the parties put forward are:
1. Whether leave should be given to allow the Information Commissioner to be named as respondent herein?
2. Whether the application for judicial review is not justiciable and is premature and unnecessary with respect to at least 10 of the 11 documents at issue?
3. Whether the July 30, 1999, legal advice memorandum and the Schedule A documents are subject to solicitor-client privilege of Her Majesty in Right of Canada?
4. The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum.
5. Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum?
(iii) Analysis
(a) Should the Commissioner be named as respondent in this application?
[336] The Commissioner does not oppose being named a respondent. For the reasons given in respect of the Group C applications, an order will issue granting leave for the Commissioner to be the respondent in these applications.
(b) Is the application for judicial review not justiciable, premature and unnecessary with respect to the Schedule A documents?
[337] The notice of application challenges "the decision communicated to the applicants on June 19, 2001 [...] requiring the applicant, Mel Cappe [...] to produce [...] a draft memorandum dated July 30, 1999 to Mr. Cappe", and also seeks a declaration that the July 30, 1999 memorandum and the other 10 Schedule A documents are subject to a solicitor-client privilege.
[338] The June 19, 2001 decision challenged in this proceeding only required production of the July 30, 1999 memoranda. The document was said to be required because it predated the commencement of the Commissioner's investigation, and was relevant to the investigation of whether the head of the Privy Council Office had reasonable grounds to refuse disclosure. The Commissioner's delegate had, by his letter of June 11, 2001, previously advised that, based upon their description, the Schedule A documents "do not shed light on the response to the access request". Therefore their production was not required. The Commissioner's delegate did reserve the right to examine those documents at a later date in order "to satisfy myself that they are as you have described". To date, none of the Schedule A documents have been requested from the applicants.
[339] In those circumstances, I can see no concrete and live dispute in existence between the applicants and the Commissioner with respect to the Schedule A documents. They have been determined not to "shed light on the response to the access request" subject only to the caveat that the documents have been accurately described. Similarly, in view of my conclusion that follows with respect to the Commissioner's right to access privileged documents, I can not see that a declaration as to whether solicitor-client privilege attaches to the Schedule A documents would be of any practical value. I therefore conclude that the application for judicial relief is premature and unnecessary with respect to the Schedule A documents.
(c) Is the application for judicial review not justiciable, moot and unnecessary with respect to the July 30, 1999 memorandum?
[340] While the issue of the Commissioner's ability to compel production of the July 30, 1999 memorandum may be seen to be moot in the sense that the document has already been provided to the Commissioner, an order quashing such production would have some practical value in that the memorandum would be returned by the Commissioner and presumably could not be used by the Commissioner in evidence in any subsequent proceeding. Moreover, as this dispute centres around the proper interpretation of the Act as it touches upon the ability of the Commissioner to require production of documents in respect of which a claim for solicitor-client privilege is asserted, a decision as to the scope of the Commissioner's authority to compel production would have some precedential value. I am satisfied therefore that the Court should exercise its discretion to determine the question raised by the applicants as to whether the Commissioner could properly require production of the July 30, 1999 memorandum.
[341] In so concluding, I have considered the submission of counsel for the Commissioner in oral argument that the issue is a simple matter of relevancy, and that the issue raised in Group E could equally have been merged within the Group D applications. It would follow from this submission that the Court should not intervene in a ruling made by the Commissioner at the investigative stage about relevance. However when the Commissioner sought production of a document said to be protected by solicitor-client privilege more was involved than a ruling about relevance. Solicitor-client privilege is not just a rule of evidence but has evolved into a substantive rule that is fundamental to the system of justice. See: Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraph 18. It follows that more is involved than a ruling about relevance when the Commissioner sought production of a document said to be protected by solicitor-client privilege.
(d) Is the July 30, 1999 memorandum subject to solicitor-client privilege?
[342] The applicants argue that to be subject to solicitor-client privilege, a document must consist of information communicated to or by a lawyer in order to obtain or provide legal advice. The July 30, 1999 memorandum is said to be privileged because it was drafted by a lawyer in the section responsible for providing legal advice to the Privy Council Office and because it contains a discussion and analysis of legal options available to the Privy Council Office.
[343] The Commissioner states that since his investigation with respect to the Prime Minister's agenda requests is ongoing, he must remain neutral at this juncture. On this basis the Commissioner takes no position with respect to whether any of the documents at issue are privileged.
[344] Mr. Cappe was not challenged on his evidence with respect to the description of the July 30, 1999 memorandum. For the purpose of my analysis I believe it is sufficient for me to assume, without finally deciding, that the July 30, 1999 memorandum is subject to solicitor-client privilege.
(e) The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum.
[345] For the reasons given with respect to the Group B applications, it is necessary to determine the standard of review applicable to the Commissioner's decision that the Act permitted him to compel production of the July 30, 1999 memorandum. To do so, the first step is to characterize the nature of the question decided by the Commissioner's delegate.
[346] The applicants acknowledge that the Commissioner has the prima facie jurisdiction to compel the production of all documents, privileged or not, within the control of the government institution which are relevant to a matter the Commissioner is investigating. The applicants say, however, that the Commissioner cannot invade solicitor-client privilege unless it is absolutely necessary to his investigation and that it was not absolutely necessary for the Commissioner's delegate to see the July 30, 1999 memorandum in order to conduct his investigation. Therefore it is submitted that the Commissioner erred in failing to determine that the memorandum was absolutely necessary for his investigation.
[347] In reply, the Commissioner asserts that subsection 36(2) of the Act provides that he may, during his investigation, examine any record to which the Act applies that is under the control of a government institution, and that no such record may be withheld from him on any grounds. The only conditions on the Commissioner's right to examine any record are said to be that the record is under the control of a government institution and the production of the record is deemed requisite to the full investigation and consideration of the complaint.
[348] What is at issue, therefore, is a question of law as to whether the Commissioner was obliged to apply the test of absolute necessity. For that question, the applicants argue that the appropriate standard of review is correctness. To support this contention the applicants argue that where a tribunal is applying legal principles to determine rights, less deference will be shown. The applicants also argue that the determination of an issue of pure law requires a more searching review on an application for judicial review.
[349] Counsel for the Commissioner did not address the standard of review.
[350] I agree that the applicable standard of review is correctness. I reach that conclusion taking into account the applicants' submissions and also the analysis contained in the Group B applications with respect to the standard of review. The Group B analysis is applicable to this question because both decisions under review in Group B and Group E involve the proper interpretation of the Act as it touches on the powers of the Commissioner during the course of an investigation.
(f) Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum?
[351] The applicants acknowledge that subsection 36(2) of the Act provides to the Commissioner a prima facie right of access to documents that are protected by solicitor-client privilege. Subsection 36(2) provides:
| 36(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds. [underlining added]
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36(2) Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, le Commissaire à l'information a, pour les enquêtes qu'il mène en vertu de la présente loi, accès à tous les documents qui relèvent d'une institution fédérale et auxquels la présente loi s'applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé. [Le souligné est de moi.]
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[352] However, the applicants argue that in Lavallee, supra the Supreme Court of Canada clearly stated that such a statutory authority must be interpreted restrictively, so as to allow access to documents protected by solicitor-client privilege only where absolutely necessary to the conduct of the investigation. Particular reliance is placed upon paragraph 18 of the reasons of the majority of the Supreme Court which quoted with approval the prior decision of the Supreme Court of Canada in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. At paragraph 18 the majority wrote in Lavallee:
Writing for the Court, Lamer J. (as he then was) dismissed the appeal. After briefly tracing the historical development of solicitor-client privilege as a rule of evidence, Lamer J. confirmed that solicitor-client privilege had evolved into a substantive principle, referring to this Court's decision in Solosky, supra. He stated at p. 875:
It is quite apparent that the Court in that case [Solosky] applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.
Lamer J. went on to formulate the elements of the substantive rule concisely in the following terms (at p. 875), elements which, in my view, largely govern the outcome of the appeals presently before the Court:
It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:
1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.
See also Jones, supra, at para. 49. [underlining added throughout]
[353] The applicants argue that according to these principles, the Court should interpret subsection 36(2) restrictively, so that the solicitor-client privilege is only interfered with to the extent absolutely necessary.
[354] The applicants argue further that a restrictive interpretation is particularly required where documents provided to the Commissioner may be produced as evidence in proceedings commenced under sections 41, 42 or 44 of the Act.
[355] Notwithstanding the strength of that submission, I have concluded that subsection 36(2) of the Act should not be interpreted in that restrictive fashion. I reach that conclusion for the reasons that follow.
[356] First, the jurisprudence of the Court expounds that the Act is to be interpreted in a purposive and liberal manner. To the extent that the Act specifies that decisions on the disclosure of government information should be reviewed independently of government, the applicants' interpretation of subsection 36(2) would impose a significant restriction on the ability of the Commissioner to conduct his investigation and independent review.
[357] Second, had Parliament failed to enact subsection 36(2) of the Act, the principles articulated in Lavallee might well have applied to limit the general power to compel the production of documents which is found in paragraph 36(1)(a) of the Act. However, in my view, by enacting subsection 36(2) Parliament used words that clearly evince its intent that the Commissioner is to have access to any record required by the Commissioner in the course of his investigation, notwithstanding "any other Act of Parliament or any privilege under the law of evidence". To read subsection 36(2) as the applicants submit would, to paraphrase the words of Mr. Justice Létourneau in Canada Post Corporation v. Canada (Minister of Public Works), supra at paragraph 33, read in limiting words not found there and would circumvent the intention of Parliament.
[358] Third, in my view, this interpretation is consistent with the role of the Commissioner and the whole scheme of the Act. The Commissioner has the statutory duty under the Act to protect the privileged information communicated to him under subsection 36(2) of the Act for his independent review of an access complaint. Sensitive information is to be provided to the Commissioner so that he can properly perform his functions. While in a case the Commissioner might recommend disclosure of a privileged document, he has no power to disclose documents. Where a privileged document is produced to the Commissioner that is not the subject of an access request, but is a document relevant or ancillary to that access request, the Commissioner's ability to use the document in Court in review proceedings without putting the document on the public record is facilitated by the Court's confidentiality rules and practice. The application of this practice is demonstrated in Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4th) 127 (F.C.A.) ("Ethyl case").
[359] The special position of the Commissioner is reflected in the fact that subsection 36(2) of the Act mirrors section 46. Section 46 of the Act permits the Court to examine any record "notwithstanding [...] any privilege under the law of evidence". Just as privilege and confidentiality are not lost when the Court examines a privileged document, the privilege is not lost when the document is provided to the Commissioner for his examination.
[360] Finally, I find support for this interpretation of the Act in the decision of the Federal Court of Appeal in the Ethyl case cited above. In Ethyl, one of the issues before the Court was whether the Commissioner could file, on the Court record for possible use as evidence, documents which were protected by solicitor-client privilege and that were not the subject of the relevant access request. There, as in the present case, the privileged documents were ancillary to the request. The Court concluded that the documents could be filed before the reviewing judge in the judicial review proceedings. The Court further concluded that the ancillary documents would be admissible if the reviewing judge was satisfied that the documents would be of assistance in determining the merits and legality of the refusal of access. At paragraph 14, the Court of Appeal wrote "[t]he fact that [the documents] could be privileged makes no difference since the obstacle of privilege is eliminated by the clear wording of section 46".
[361] As previously noted, subsection 36(2) mirrors section 46 of the Act, and so I take from the Ethyl case that, vis-à-vis the Commissioner, the obstacle of privilege is similarly eliminated.
[362] The applicants seek to distinguish Ethyl on two grounds. First, Ethyl predates the decisions of the Supreme Court of Canada on the scope of solicitor-client privilege in Lavallee, supra and R. v. McClure, [2001] 1 S.C.R. 445. Second, implicit in the facts of the Ethyl case was that recourse to the solicitor-client documents was absolutely necessary.
[363] I am unable to so distinguish the Ethyl decision. While Ethyl does predate Lavallee and McClure, the Federal Court of Appeal expressly adverted to the prior decision of the Supreme Court of Canada in Descôteaux where the "absolutely necessary" test was first articulated. Further, there is nothing in the Federal Court of Appeal decision which leads me to conclude that the decision was based upon the conclusion that the privileged documents were "absolutely necessary". Such conclusion is inconsistent, in my view, with the phrase "the obstacle of privilege is eliminated" and the Court expressly left for the reviewing judge the issue of the documents' relevance and admissibility.
(iv) Conclusion re Group E
[364] On the basis of the analysis above, I have concluded that the Commissioner's delegate was correct in his decision that he could compel production of the July 30, 1999 legal memorandum and that it was not necessary for him to consider whether the document was absolutely required for his investigation.
[365] In the result, an order will issue dismissing the application for judicial review and reserving the issue of costs.
10. CONCLUSION AS TO COSTS
[366] The parties agreed that the issue of costs should be reserved for further submissions. Orders will issue to that effect.
[367] In conclusion, counsel are thanked for their thoughtful and cogent written and oral submissions. The submissions were most helpful.
"Eleanor R. Dawson"
Judge
1. Where reference is made in these reasons to an office held by an individual, the reference is to the incumbent of that position at the time material to these applications.
2. While Justice Lamer dissented in the result in Slaight, he wrote for the majority on this point.
Vancouver, British Columbia
March 25, 2004
Page: 173
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: "Group A"
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA ET AL. v.
THE INFORMATION COMMISSIONER OF
CANADA ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 15 TO 25, 2003
REASONS FOR ORDER : DAWSON, J.
APPEARANCES:
DAVID SCOTT FOR THE APPLICANTS
PETER DOODY
LAWRENCE ELLIOT
MANDY MOORE
RAYNOLD LANGLOIS FOR THE RESPONDENT
DANIEL BRUNET INFORMATION
PATRICIA BOYD COMMISSIONER
RIMA KAYSSI
SCOTT LITTLE FOR THE RESPONDENT
DAVID PUGLIESE (T-1641-00)
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS LLP FOR THE APPLICANTS
OTTAWA
OFFICE OF THE INFORMATION FOR THE RESPONDENT
COMMISSIONER INFORMATION
OTTAWA COMMISSIONER
LANGLOIS KRONSTRÖM DESJARDINS
MONTRÉAL
GOWLING LAFLEUR HENDERSON LLP FOR THE RESPONDENT
OTTAWA DAVID PUGLIESE (T-1641-00)
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: "Group B"
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA ET AL. v.
THE INFORMATION COMMISSIONER OF
CANADA ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 15 TO 25, 2003
REASONS FOR ORDER : DAWSON, J.
DATED: MARCH 25, 2004
APPEARANCES:
PETER DOODY FOR THE APPLICANTS
LAWRENCE ELLIOT
MANDY MOORE
MARLYS EDWARDH FOR THE RESPONDENT
DANIEL BRUNET INFORMATION
PATRICIA BOYD COMMISSIONER
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS LLP FOR THE APPLICANTS
OTTAWA
OFFICE OF THE INFORMATION FOR THE RESPONDENT
COMMISSIONER INFORMATION
OTTAWA COMMISSIONER
RUBY & EDWARDH
TORONTO
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: "Group C"
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA ET AL. v.
THE INFORMATION COMMISSIONER OF
CANADA ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 15 TO 25, 2003
REASONS FOR ORDER : DAWSON, J.
DATED: MARCH 25, 2004
APPEARANCES:
PETER DOODY FOR THE APPLICANTS
LAWRENCE ELLIOT
MANDY MOORE
RAYNOLD LANGLOIS FOR THE RESPONDENT
DANIEL BRUNET INFORMATION
PATRICIA BOYD COMMISSIONER
RIMA KAYSSI
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS LLP FOR THE APPLICANTS
OTTAWA
OFFICE OF THE INFORMATION FOR THE RESPONDENT
COMMISSIONER INFORMATION
OTTAWA COMMISSIONER
LANGLOIS KRONSTRÖM DESJARDINS
MONTRÉAL
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
POCKET: "Group D"
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA ET AL. v.
THE INFORMATION COMMISSIONER OF
CANADA ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 15 TO 25, 2003
REASONS FOR ORDER : DAWSON, J.
DATED: MARCH 25, 2004
APPEARANCES:
PETER DOODY FOR THE APPLICANTS
LAWRENCE ELLIOT
MANDY MOORE
RAYNOLD LANGLOIS FOR THE RESPONDENT
DANIEL BRUNET INFORMATION
PATRICIA BOYD COMMISSIONER
RIMA KAYSSI
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS LLP FOR THE APPLICANTS
OTTAWA
OFFICE OF THE INFORMATION FOR THE RESPONDENT
COMMISSIONER INFORMATION
OTTAWA COMMISSIONER
LANGLOIS KRONSTRÖM DESJARDINS
MONTRÉAL
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: "Group E"
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA ET AL. v.
THE INFORMATION COMMISSIONER OF
CANADA ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 15 TO 25, 2003
REASONS FOR ORDER : DAWSON, J.
DATED: MARCH 25, 2004
APPEARANCES:
PETER DOODY FOR THE APPLICANTS
LAWRENCE ELLIOT
MANDY MOORE
RAYNOLD LANGLOIS FOR THE RESPONDENT
DANIEL BRUNET INFORMATION
PATRICIA BOYD COMMISSIONER
RIMA KAYSSI
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS LLP FOR THE APPLICANTS
OTTAWA
OFFICE OF THE INFORMATION FOR THE RESPONDENT
COMMISSIONER INFORMATION
OTTAWA COMMISSIONER
LANGLOIS KRONSTRÖM DESJARDINS
MONTRÉAL