File Nos. 33300, 33296, 33297, 33299
SUPREME COURT OF CANADA (ON APPEAL FROM A JUDGMENT OF THE FEDERAL COURT OF APPEAL)
File No. 33300
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
APPELLANT (Appellant)
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THE MINISTER OF NATIONAL DEFENCE
RESPONDENT (Respondent)
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File No. 33296 BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
APPELLANT (Appellant)
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THE MINISTER OF TRANSPORT CANADA
RESPONDENT (Respondent)
(Style of cause continues inside cover)
APPELLANT’S FACTUM - 2 -
File No. 33297
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
APPELLANT (Respondent)
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THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
RESPONDENT (Appellant)
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File No. 33299
AND BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
APPELLANT (Appellant / Respondent on Cross-Appeal)
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THE PRIME MINISTER OF CANADA
RESPONDENT (Respondent / Appellant on Cross-Appeal)
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Mr. Laurence Kearley Ms. Diane Therrien Information Commissioner of Canada 7th Floor – Tower B 112 Kent Street Ottawa, Ontario K1A 1H3
Tel.: 613 943-2577 Tel.: 613 996-3234 Fax: 613 947-5252 [email protected] [email protected]
Ms. Marlys A. Edwardh Ms. Jessica R. Orkin Marlys Edwardh Barristers Professional Corporation Suite 1100 20 Dundas Street West Toronto, Ontario M5G 2G8
Tel.: 416 597-2801 Tel.: 416 597-6573 Fax: 416 597-0070 [email protected] [email protected]
Counsel for the Appellant
Mr. Christopher M. Rupar Attorney General of Canada Room 1212 – East Tower 234 Wellington Street Ottawa, Ontario K1A 0H8
Tel.: 613 941-2351 Fax: 613 954-1920 [email protected]
Counsel for the Respondents
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TABLE OF CONTENTS
PART I – STATEMENT OF FACTS ...... 1 (A) Overview ...... 1 (B) The access to information requests from which these appeals arise ...... 1 (C) The Records at Issue ...... 2 (i) The Records at Issue in the DND case (SCC File No. 33300) ...... 2 (ii) The Records at Issue in the PMO/PCO case (SCC File No. 33299) ...... 5 (iii) The Records at Issue in the DoT case (SCC File No. 33296) ...... 6 (iv) The Records at Issue in the RCMP case (SCC File No. 33297) ...... 8 (D) Ministers and Ministers’ offices, including the Prime Minister and the Prime Minister’s Office ...... 9 (E) Previous practice under ATIA involving Ministers’ offices ...... 11 (F) The Information Commissioner’s investigative findings culminating in the applications for judicial review from which these appeals stem ...... 12 (G) The Judgments Below ...... 13 (i) The Federal Court ...... 13 (ii) The Federal Court of Appeal ...... 14 PART II – STATEMENT OF THE QUESTIONS IN ISSUE ...... 16 PART III – STATEMENT OF ARGUMENT ...... 16 The standard of appellate review ...... 16 (A) A contextual and purposive analysis of the Access to Information Act with respect to the roles of Ministers, Ministers’ offices and departments ...... 17 (i) The overarching purposes of the Access to Information Act: Democratic accountability and participation, through access to records concerning the machinery of government ...... 18 (ii) Executive/administrative government in Canada: The legal framework of responsible government maintained by constitutional conventions, framed and supplemented by legislative and common law rules ...... 22 The constitutional framework governing the powers and practices of executive government ...... 26 The organization of the executive/administrative arm of government ...... 31 Reconciling individual ministerial responsibility with modern government: The legal doctrines relating to the devolution of executive powers and public service neutrality .... 39 The Access to Information Act as a statutory, quasi-constitutional accountability mechanism ...... 46 ii
(iii) Permissible use of expert evidence concerning the legal framework of executive/administrative government ...... 49 (iv) There is no evidence of the Court of Appeal’s “well understood convention” ...... 52 (B) Ministers, as “heads” presiding over departments, are part of these “government institutions” when exercising departmental functions ...... 57 (i) The statutory scheme of ATIA: Named “government institutions” with designated “heads” ...... 59 (ii) The Minister cannot in law exercise departmental functions or conduct departmental business within an institution that is legally distinct from the department ...... 67 (iii) This interpretation is harmonious with the purpose and statutory scheme of ATIA and the federal statute book as a whole ...... 73 (iv) The records at issue were generated on behalf of the Ministers in the exercise of the Ministers’ departmental functions ...... 80 (C) In the alternative, the correct test for determining whether records are “under the control of a government institution” for the purpose of s.4 of ATIA ...... 82 (D) Ministers, as heads of government institutions, are also “officers” of those institutions for the purposes of the definition of “personal information” ...... 87 (i) The grammatical and ordinary sense of the word “officer” or «cadre» includes Ministers and the Prime Minister ...... 88 (ii) The objects of the Acts and of the s.3(j) carve-out ...... 92 (iii) The intent of Parliament: The functions of Ministers, including the Prime Minister, make them officers ...... 93 PARTS IV & V – COSTS AND ORDERS REQUESTED ...... 94 TABLE 1 - VARIATION IN DEGREE OF MINISTERIAL CONTROL ACROSS INSTITUTIONS ...... 95 TABLE 2 - COMPARISON OF THE INSTITUTIONAL CATEGORIES OF THE FINANCIAL ADMINISTRATION ACT AND THE SCOPE OF ATIA ...... 97 TABLE 3 - GOVERNMENT INSTITUTIONS LISTED IN SCHEDULE I OF ATIA BUT NOT LISTED IN THE FAA SCHEDULES ...... 100 PART VI – TABLE OF AUTHORITIES ...... 101 PART VII – STATUTORY PROVISIONS ...... 119 - 1 -
PART I – STATEMENT OF FACTS
(A) Overview [1] In these appeals, this Court must determine whether records located in the office of a Minister of the Crown are subject to the Access to Information Act (ATIA). In addition, this Court must decide whether Ministers of the Crown should to be treated as private citizens or as “officers” of the government institutions over which they preside, for the purposes of the access to information and privacy regimes. In a narrow sense, this Court must interpret ss.4 and 19 of ATIA. More broadly, this Court’s interpretation of those provisions will have profound and far- reaching consequences for the right of Canadians to access government information, and thus their ability to participate meaningfully in the democratic process and hold their representatives to account.
[2] If the lowers courts’ conclusion that ATIA does not to apply to a Minister’s departmental office is permitted to stand, a Minister will be able to remove entire classes of records relating to departmental business from the reach of the access to information regime by the simple expedient of mandating that they be held within the confines of the minister’s office. This would significantly frustrate the purpose of ATIA and fly in the face of Parliament’s express intention.
(B) The access to information requests from which these appeals arise [3] These appeals have their genesis in access to information requests that were submitted approximately a decade ago to four different bodies included as “government institutions” under ATIA, which provides a right of access to records under their control.1 Specifically, requests were made under ATIA: a) to the Department of National Defence (“DND”) for records relating to “M5 meetings” – that is meetings of the Minister, the Deputy Minister, the Chief of the Defence Staff and three members of the minister’s exempt staff – that took place in 1999;2 b) to the Department of Transport (“DoT”) for the then-Minister of Transport’s itinerary and/or meeting schedule for a five-month period in 1999;3 c) to the Privy Council Office (“PCO”) for copies of the then-Prime Minister’s agendas for a period of over four years, from 1994 to mid-1999;4 and
1 Reasons for Judgment of the Federal Court in T-210-05, T-1209-05, T-210-05, T-1211-05, ¶5, 11, 19, 24, AR, Vol. 1, p.6, 9, 11, 13 [“FC Reasons”]; Access to Information Act, R.S.C. 1985, c.A-1, Schedule I [“ATIA”]. 2 Exhibit 1 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.66. 3 Exhibit 1 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.146. 4 Exhibits 1-6 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. 14, p.16-27. - 2 -
d) to the Royal Canadian Mounted Police (“RCMP”) for copies of the then-Prime Minister’s agendas for a period of nearly four years, from 1997 to late-2000.5
(C) The Records at Issue [4] The records ultimately identified as responsive to these requests can be divided into two categories: those held exclusively within the Minister’s departmental office or by his exempt staff, and those found within the government institution and outside the Minister’s office.
[5] With respect to the first category of records, which are recognized as being under the de jure or ultimate control of the relevant minister, the fundamental question is whether they are under the control of the government institution over which the minister presides and thus subject to ATIA. If so, the subsidiary question then arises in relation to certain of those records whether they are exempt from access pursuant to s.19 of ATIA, which prohibits disclosure of records containing “personal information” as defined in s.3 of the Privacy Act. With respect to the second category of records, there is no dispute that they are under the control of the government institution. The only question in relation to those records is the applicability of s.19 of ATIA.
(i) The Records at Issue in the DND case (SCC File No. 33300) [6] The records sought in this case relate to the 1999 meetings of “M5”, a group convened by then-Minister of National Defence Art Eggleton and consisting of himself and five others: the Deputy Minister, the Chief of the Defence Staff, and the Minister’s Executive Assistant, Director of Operations, and Director of Communications, the latter three of whom were members of his exempt staff.6 While the Minister’s status is a matter of controversy,7 it is clear that two of the six persons in attendance – the Deputy Minister and the Chief of Defence Staff – were officers of the DND and Canadian Forces, respectively.8
[7] M5 meetings were intended to facilitate the flow of information between the Minister, the Deputy Minister, and the Chief of the Defence Staff.9 M5 was the only senior-level committee of
5 Exhibit 1 to Lanthier Affidavit sworn Dec 21, 2005; AR, Vol. 11, p.91. 6 FC Reasons, ¶5, AR, Vol. 1, p.6-7; Transcript of evidence of the Hon. A. Eggleton on Apr 25, 2001, p.62, L1-L11, Exhibit I to Confidential O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 4, p.206 [“Eggleton Transcript”]. 7 See discussion infra at Part III, Section D. 8 See National Defence Act, R.S.C. 1985, c. N-5, s.7 (“There shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure”) and s.18(1) (“The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribed and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces”). 9 FC Reasons, ¶132, AR, Vol. 1, p.62; Eggleton Transcript, p.61, L18 – p.62, L3, AR, Vol. 4, p.205-206. - 3 -
National Defence and the Canadian Forces attended by the Minister,10 and the primary forum in which he would meet with the Deputy Minister. Outside of M5 and formal, widely-attended briefings, the Minister and Deputy met only infrequently.11 The frequency of M5 meetings varied depending on the Minister’s availability and travel schedule, but on average meetings took place at least once a week.12 In 1999, there were approximately 100 M5 meetings.13
[8] There is no dispute that the subject matter of M5 meetings was related and in fact limited to departmental matters.14 M5 meetings were not a forum for discussion of the Minister’s personal, partisan, or constituency affairs, or matters arising from his non-portfolio responsibilities as a member of the government. Instead, they provided an opportunity for the Minister to obtain information and clarification about departmental matters, specifically in areas of current operational and administrative interest.15
[9] While M5 meetings were relatively informal and at times focused simply on the exchange of ideas, a request made by the Minister during an M5 meeting for a more formal briefing or report “would be interpreted by the CDS or the Deputy as triggering an official tasking protocol for a standard briefing note…or…a SED report or what have you”.16 Moreover, the Chief of the Defence Staff, General Baril, testified that there were “some pretty difficult decisions that will start, originate or finish” during M5 meetings.17
[10] Although DND initially denied that there were any records relating to M5 meetings, a subsequent investigation by the Information Commissioner identified some 1,413 pages of relevant records.18 Of those, 765 pages were located within the department but outside of the Minister’s departmental office, and were ultimately processed and disclosed subject to applicable
10 Eggleton Transcript, p.123, L 9 - L23, AR, Vol. 4, p.267. 11 Transcript of evidence of Jim Judd on Oct 27, 2000, p.11, L-19 – p.13, L21, Exhibit G to Confidential O’Donnell Affidavit, sworn Dec 20, 2005, AR, Vol. 4, p23-25 [“Judd Transcript”]. 12 Eggleton Transcript, p.70, L14- p.71, L6, AR, Vol. 4, p.214-215; Transcript of evidence of General M. Baril on Oct 27, 2000, p.10, L12-L19, Exhibit H to Confidential O’Donnell Affidavit, sworn Dec 20, 2005, AR, Vol. 4, p.121 [“Baril Transcript”]. 13 Transcript of evidence of E. Onuoha on April 26, 2001, p.31, L15-34, Exhibit J to Confidential O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 5, p.33 [“Onuoha Transcript”]. 14 FC Reasons, ¶136, AR, Vol. 1, p.63-64; Baril Transcript, p.15, L19 – p.16, L4, AR, Vol. 4, p.126-127. 15 Eggleton Transcript, p.62, L1 – p.65, L11, AR, Vol. 4, p.206-208. 16 Onuoha Transcript, p.110, L8-L14, AR, Vol. 5, p.112. 17 FC Reasons, ¶135, AR, Vol. 1, p.63; Baril Transcript, p.28, L12-L13, AR, Vol. 4, p.139 . 18 FC Reasons, ¶7, AR, Vol. 1, p.7; O’Donnell Affidavit sworn Dec 20, 2005, ¶7, AR, Vol. 2, p.57. - 4 -
exemptions and exclusions.19 Another 648 pages of records were located within the confines of the Minister’s departmental office or in the possession of his exempt staff. The Federal Court held that certain of those records – 82 pages of agendas and 39 of miscellaneous documents previously provided to the Deputy Minister and/or the Chief of the Defence Staff – were under the control of the department and thus subject to disclosure. In contrast, 185 pages of notes taken by the Minister’s staff in the course of M5 meetings and 342 pages of email correspondence concerning those meetings – including both exchanges among members of the exempt staff and between exempt staff and departmental staff – were held not to be under the control of the department.20 It is those records that are at issue in this appeal.
[11] Despite the evident significance of M5 meetings no formal minutes were produced, and the Minister, Deputy Minister, and Chief of the Defence Staff rarely made notes of what was discussed.21 Instead, the Minister relied on notes taken by the members of his exempt staff to ensure that any concerns he raised or requests he made for further information were appropriately addressed.22 The notes taken by exempt staff therefore identify those issues that, following discussion, the Minister identified as being of sufficient concern or importance that he required follow up. Those notes are also the best means by which to discern what transpired at M5 meetings.23 Indeed, it appears on the facts of this case that the notes taken by exempt staff were often the only means of identifying the subjects discussed at M5: many of the other records ultimately found to be responsive in this case could not have been identified and located except by reviewing exempt staff’s notes.24
[12] The email correspondence comprises over 500 exchanges. Of those, only one-fifth or so are between members of the Minister’s exempt staff exclusively. The great majority consists of exchanges between exempt staff and non-exempt staff in the Minister’s office, or exchanges
19 FC Reasons, ¶6-7, AR, Vol. 1, p.7. 20 FC Reasons, ¶146, 148, AR, Vo.. 1, p.68. 21 FC Reasons, ¶139-140, AR, Vol. 1, p.65; Eggleton Transcript, p.84, L22 – p.85, L14, AR, Vol. 4, p112-113; Judd Transcript, p.30, L15-L21, AR, Vol. 4, p.42; Baril Transcript, p.12, L22 – p.13 L23, AR, Vol. 4, p.123-124; Onuoha Transcript, p.111, L16-L22, AR, Vol. 5, p.113. 22 FC Reasons ¶140, AR, Vol. 1, p.65; Eggleton Transcript, p.85, L12 – p.86, L5, AR, Vol. 229-230. 23 Onuoha Transcript, p.111, L13-L23, AR, Vol. 5, p.113. 24 O’Donnell Affidavit, sworn, Dec 20, 2005, ¶10, AR, Vol. 2, p.58; Revised s.37 letter to the Minister of National Defence, p.15, 16, 52, Exhibit 30 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 3, p.291, 292, 328 [“Information Commissioner’s Report in DND case”]. - 5 -
forwarded or copied to DND or CF employees.25 The correspondence was exchanged for the purpose of communicating about the Minister’s schedule in relation to M5 meetings.26
[13] There is no suggestion that these records contain personal information. The only issue in relation to these records is whether they are under the control of a government institution.
(ii) The Records at Issue in the PMO/PCO case (SCC File No. 33299) [14] The PCO received six access requests for the daily agenda books of the former Prime Minister, the Right Honourable Jean Chrétien, which together covered the period between January 1994 and June 25, 1999.27 Initially, the PCO denied that there were any records responsive to five of the six requests. With respect to the sixth, the PCO neither confirmed nor denied the existence of records, but advised that if they did exist they would be exempt as personal information under section 19 of ATIA.28
[15] A subsequent investigation by the Commissioner identified 2,006 pages of the Prime Minister’s daily agenda for the relevant period. Of those, 2,002 pages were found archived in electronic form within the PMO, while the remaining four pages were hard copies located in the office of the Executive Assistant to the Clerk of the PCO.29
[16] The agendas consist of a listing of all of the Prime Minister’s daily appointments, including social engagements and family events, as well as those relating to his official functions. There is no reference in the agendas to the subject matter of the meetings or engagements listed.30
[17] The agendas were created by the Prime Minister’s Executive Assistant, Bruce Hartley, and Mr. Hartley’s assistants, and shared among the PMO.31 During the relevant period, an edited copy was sent daily by fax to the Clerk of the Privy Council, to facilitate meetings between the Clerk and the Prime Minister.32 There is no archived version of the edited copy provided to the
25 FC Reasons, ¶8, 128, AR, Vol. 1, p.7, 61. 26 FC Reasons, ¶146, AR, Vol. 1, p.68. 27 FC Reasons, ¶11, AR, Vol.1, p.9; Exhibits 1-6 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol.14, p.16-27. 28 FC Reasons, ¶12, AR, Vol.1, p.9; Exhibits 7-8 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol.14, p.28-32. 29 FC Reasons, ¶14, 149, AR, Vol. 1, p.9, 69; Lanthier Affidavit sworn Dec 22, 2005, ¶8, 13, AR, Vol. 14, p.8, 9. 30 FC Reasons, ¶150, AR, Vol. 1, p.69; Information Commissioner’s s.37(1) report issued to Prime Minister Martin, p.6, Exhibit 29 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. 14, p.194 [“Information Commissioner’s Report in PCO case”]. 31 FC Reasons, ¶151-153, AR, Vol. 1, p.70; Affidavit of B. Hartley sworn Oct 25, 2006, ¶5-7, AR, Vol. 17, p.2 [“Hartley affidavit”]. 32 FC Reasons, ¶155, AR, Vol. 1, p.71; Transcript of evidence of Bruce Hartley on Mar 30, 2001, p.130, L7-L13, p.131, L9-13, Exh D to Conf. Lanthier Affidavit sworn Dec 22, 2005, AR, Vol.15, p.181, 182 [“Hartley Transcript”]. - 6 -
Clerk of the PCO.33 In the ordinary course, it was PCO’s practice to destroy these agendas as they became out of date,34 though no explicit instructions to do so had been given.35 Once the PMO learned, as a result of the access request in this case, that some copies of agendas had been located in the PCO, the Prime Minister’s Chief of Staff ordered that the practice of providing the PCO Clerk’s office with edited copies of the agendas be stopped; thereafter, the Clerk of the PCO was to receive only oral notification of the PM’s schedule.36
[18] With respect to the 2,002 pages located within the PMO, the question on this appeal is twofold: first, whether they are under the control of the PCO and thus subject to a right of access under ATIA; second, and if so, whether they are nevertheless exempt from disclosure as “personal information.” With respect to the 4 pages found in the PCO, there is no dispute that they were under the control of the PCO, and therefore engage only the second of those questions.
(iii) The Records at Issue in the DoT case (SCC File No. 33296) [19] The records sought in this case are copies of the Minister’s itinerary and/or meeting schedules for a period in 1999.37 The Department initially denied that there were any records in its files that were responsive to the request, stating, “the Minister’s itinerary/meeting schedules are prepared and maintained by his political staff, and are not considered departmental records”.38
[20] A subsequent investigation by the Commissioner identified 46 pages of records responsive to the initial request, each of which contained the Minister’s agenda for a one-week period during the relevant timeframe.39 These records consist of the weekly agendas of the former Minister of Transport, David Collenette, for the period of May 30 to November 6, 1999.
[21] These responsive pages comprise two different versions of the Minister’s agenda, both of
33 FC Reasons, ¶163, AR, Vol. 1, p.75. 34 FC Reasons, ¶157, AR, Vol. 1, p.73; Information Commissioner’s Report in PCO case, p.6, AR, Vol. 14, p.194; Transcript of evidence of M. Cappe on June 21, 2001, p.222, L5-L12, Exhibit F to Confidential Lanthier Affidavit, sworn Dec 22, 2005, AR, Vol. 16, p.288 [“Cappe Transcript #2”]; Hartley Transcript, p.138, L5 – p.139, L16, AR, Vol. 15, p.189-190. 35 Hartley Transcript, p.138, L11 – p.139, L16, AR, Vol. 15, p.189-190; Cappe Transcript #2, p.222, L1-L4, AR, Vol. 16, p.288; Information Commissioner’s Report in PCO case, p.6, AR, Vol. 14, p.194. 36 FC Reasons, ¶158, AR, Vol. 1, p.73; Information Commissioner’s Report in PCO case, p.7 AR, Vol. 14, p.195; Cappe Transcript #2, p.225, L23 – p.227, L12, AR, Vol. 16, p.291-293; Hartley Transcript, p.134, L3 – p.138, L8, p.141, L14 – p.142, L4, AR, Vol. 15, p.185-189, p.192-193. 37 FC Reasons, ¶24, AR, Vol. 1, p.13; Exhibit 1 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.146. 38 FC Reasons, ¶24, AR, Vol. 1, p.13; Exhibit 2 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.148. 39 FC Reasons, ¶26, 188, AR, Vol. 1, p.15, 83. - 7 -
which were archived in electronic form in the Minister’s office.40 The first consists of original agendas, which contain both daytime and evening entries relating to the full range of the Minister’s affairs, including political and constituency activities, Cabinet and caucus responsibilities, and personal appointments or engagements in addition to his departmental duties.41 The second, entitled “Agenda sent to the Deputy Minister for the period of May 30, 1999 to November 6, 1999” consists of abridged copies of the same documents, which were at one time provided to the Deputy Minister’s office.42 Both versions are at issue in this appeal.
[22] The original agendas were created by the Minister’s private secretary and Executive Assistant, both of whom were members of his exempt staff.43 Others had full access to the originals, including a departmental employee working in the Minister’s office.44 Edited copies were provided to the Deputy Minister’s office. Although the process of editing was subjective and did not follow any fixed rules,45 the details removed in the editing process “concerned private or political matters usually unrelated to departmental business”.46 Once edited, paper copies of the agendas were sent to the Deputy Minister’s office for each upcoming four-week period. Updated versions were provided two or three times per week to reflect scheduling changes.47
[23] The abridged agendas were provided to the Deputy Minister’s office to aid in the administration of the Department.48 For example, the Ministerial Affairs Co-ordinator, a departmental public servant, would refer to the abridged agenda to ensure that appropriate
40 FC Reasons, ¶26-27, AR, Vol. 1, p.13. 41 FC Reasons, ¶26-27, 189, AR, Vol. 1, p.13, 83; Lanthier Affidavit sworn Dec 21, 2005, ¶8, AR, Vol. 9, p.142. 42 FC Reasons, ¶26-27,190, AR, Vol.1, p.13,84; Lanthier Affidavit sworn Dec 21, 2005, ¶9-10, AR, Vol.9, p.142-143. 43 FC Reasons, ¶191, AR, Vol. 1, p.84; Transcript of evidence of Sue Ronald on May 15, 2001, Exhibit C to Confidential Lanthier Affidavit sworn Dec 21, 2005, p.61, L16 – p.62, L7, AR, Vol. 10, p.153-154, 107-108 [“Ronald Transcript”]. 44 Ronald Transcript, p.63, L1-L10, AR, Vol. 10, p.155. 45 FC Reasons, ¶195, AR, Vol. 1, p.86, Ronald Transcript, p.150, L6 – p.151, L8, p.153, L25 – p.154, L18, AR, Vol. 10, p.104-105, p.107-108; Letter dated Jan 14, 2005 from the Information Commissioner to the Minister of Transport, p.5, Exhibit 18 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.232 [“Information Commissioner’s preliminary Report in DoT case”]; Information Commissioner’s s.37(1) report to the Minister, p.1, Exhibit 20 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.270. 46 FC Reasons, ¶195, AR, Vol. 1, p.86, Ronald Transcript, p.151, L9 –p.153, L19, AR, Vol. 10, p.105-107; Information Commissioner’s preliminary Report in DoT case, p.5, AR, Vol. 9, p.232; Information Commissioner’s s.37(1) report to the Minister, p.1, AR, Vol. 9, p.270. 47 FC Reasons, ¶196, AR, Vol. 1, p.86; Transcript of evidence of Margaret Bloodworth on Aug 4, 2000, p.26, L6- L11, p.63, L12 – p.63, L17, Exhibit C to Confidential Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 10, p.33, 70- 71 [“Bloodworth Transcript”]; Ronald transcript, p.67, L20 – p.68, L7, AR, Vol. 10, p.159-160. 48 FC Reasons, ¶193-194, AR, Vol. 1, p.85; Bloodworth Transcript, p.22, L24 - p.24, L4, AR, Vol. 10, p.30-31; Ronald Transcript, p.68, L8 - p.69, L9, AR, Vol. 10, p.160-161. - 8 -
departmental officials attended meetings with the Minister and to determine which briefing notes and speaking notes on matters of departmental business the Minister would require.49
[24] There was no practice in the Deputy Minister’s office of archiving copies of the abridged agendas received from the Minister’s office. Once the timeframe to which an agenda applied had passed or an updated version had been provided, the dated copies were discarded by departmental staff.50 The dated copies were not treated as confidential and were disposed of in a casual manner: the evidence of then-Deputy Minister Margaret Bloodworth was that she simply placed her copies in the recycling bin.51
[25] Had any copies of these agendas remained in the Deputy Minister’s office, they would indisputably have been under the control of a government institution, as was the case for the four pages of the Prime Minister’s agenda located in the PCO. As no copies were kept in the department, the questions of both control and exemption are engaged in relation to these records.
(iv) The Records at Issue in the RCMP case (SCC File No. 33297) [26] The records at issue in this case are 386 pages of the Prime Minister’s agenda located within the RCMP Protection Detail following an investigation by the Information Commissioner.52 The pages of these agendas are edited copies of the original agendas prepared by the Prime Minister’s Executive Assistant, and were shared by the PMO with the RCMP to facilitate their provision of 24-hour protection for the Prime Minister.53 The practice of providing the RCMP with copies of the Prime Minister’s agenda was discontinued in December 2001, subsequent to the RCMP’s receipt of the access request for the PM’s agendas. Thereafter, the PMO continued to fax a timetable indicating the Prime Minister’s departure times and
49 FC Reasons, ¶193-194, AR, Vol. 1, p.85; Information Commissioner’s preliminary Report in DoT case, p.5, AR, Vol. 9, p.232; Information Commissioner’s s.37(1) report to the Minister, p.1, AR, Vol. 9, p.270; Bloodworth Transcript, p.22, L24 – p.23, L13, AR, Vol. 10, p.29-30. 50 FC Reasons, ¶197, AR, Vol. 1, p.86; Bloodworth Transcript, p.26, L19 – L23; p.28, L24, p.30, L10 – p.31, L10, AR, Vol. 10, p.37-38. 51 FC Reasons, ¶197, AR, Vol. 1, p.86; Bloodworth Transcript, p.26, L11-L13, p.67, L10 – p.68, L11, AR, Vol. 10, p.23, 67-68. 52 FC Reasons, ¶20, AR, Vol. 1, p.11; Lanthier Affidavit sworn Dec 21, 2005, ¶6, 10, AR, Vol. 11, p.86-87; Information Commissioner’s s.37(1) report to the RCMP, p.2, Exhibit 19 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.178. 53 FC Reasons, ¶180, 182, AR, Vol. 1, p.80, 81; Transcript of evidence of Guiliano Zaccardelli on Feb 14, 2003, p.399, L8-L18, p.401, L7-L15, p.404, L7 – p.405, L15, Exhibit B to Confidential Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 12, p.12, 14, 17-18 [“Zaccardelli Transcript”]. - 9 -
destinations within Ottawa, with a direction to “please read and destroy”.54
[27] The edited agendas provided until December 2001 were intended to facilitate the RCMP’s transportation and protection of the Prime Minister.55 In general, therefore, they indicate only the locations to be visited by the Prime Minister and contain no information regarding the subject matter of any meetings or events listed.56 Former RCMP Commissioner Giuliano Zaccardelli characterized the contents of the edited agendas as “bare bones … information”.57
[28] Initially, the RCMP took the position that the edited agendas were exempted from disclosure pursuant to sections 17 and 19 of ATIA, which respectively address security concerns and personal information.58 The RCMP also submitted that portions of the edited agendas were excluded pursuant to section 69(1) of ATIA, which applies to Cabinet confidences.59 At the Federal Court level, the section 17 (security) claim was abandoned due to the passage of time,60 and the section 69(1) exclusion was found not to apply because the edited agendas did not disclose the subject matter of any meetings or any substantive facts, and therefore did not contain Cabinet confidences.61 No appeal was taken from that finding.
[29] These records are acknowledged to be under the control of the RCMP. Therefore, the only question remaining in relation to these agendas is whether they are exempt from disclosure as “personal information”.
(D) Ministers and Ministers’ offices, including the Prime Minister and the Prime Minister’s Office [30] The Minister of National Defence and the Minister of Transport preside over and have management and direction of their departments, and are heads of those departments for the
54 FC Reasons, ¶184, AR, Vol. 1, p.82; Letter from counsel for Commissioner Zaccardelli, dated March 13, 2003, p.1-2, Exhibit 12 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.129-130. 55 Zaccardelli Transcript, p.400, L21 – p.401, L12, AR, Vol. 12, p.13-14. 56 FC Reasons, ¶180, AR, Vol. 1, p.80; Affidavit of B. Hartley sworn Oct 25, 2006 [in PCO/PMO case], ¶10, AR, Vol. 17, p.3. 57 Zaccardelli Transcript, p.481, L2-L5, AR, Vol. 12, p.31. 58 FC Reasons, ¶185, AR, Vol. 1, p.82; Letter from Mr. Picard to Mr. McGregor, p.1, Exhibit 5 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.102. 59 FC Reasons, ¶185, AR, Vol. 1, p.82; Letter from Mr. Picard to Mr. McGregor, p.1, Exhibit 5 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.102. 60 FC Reasons, ¶186, 187(b), AR, Vol. 1, p.82, 83. 61 FC Reasons, ¶187(d), AR, Vol. 1, p.83. The Federal Court made similar pronouncements about the four pages of the Prime Minister’s agenda located within the PCO: see FC Reasons, ¶170-176, AR, Vol. 1, p.77-79. - 10 -
purposes of ATIA.62 Similarly, the Prime Minister has roles and functions in relation to the PCO and is the head of that institution for the purposes of ATIA. In addition to being the heads of government institutions, the Minister of National Defence, the Minister of Transport and the Prime Minister are also members of Cabinet, Members of Parliament, and members of a political party, and have duties and functions related to each of those roles.63
[31] One of the tools provided to Ministers, including the Prime Minister, to fulfill their various functions is the means to maintain and staff three offices: a Parliamentary office, a constituency office, and a departmental office. Both the Parliamentary and constituency offices are funded from House of Commons appropriations, while the departmental office is funded from the appropriations of the Department over which the Ministers preside.64 The records at issue in this appeal are ones that relate to the discharge of the ministers’ duties as heads of government institutions and are held either in those institutions or the ministers’ departmental offices. All subsequent references to the (Prime) Minister’s or ministers’ office(s) should be understood to refer to the departmental office(s).
[32] Ministers’ offices typically include both political or “exempt”65 and departmental staff.66 At the time of the Information Commissioner’s investigation, the Minister of National Defence’s departmental office was staffed by 35 individuals, of whom only 12 were exempt staff; the other 23 were employees of the department or of the Canadian Forces.67 Of the 17 to 20 persons staffing the Minister of Transport’s departmental office, only half were exempt staff, while nine were departmental staff, some of whom were supervised by exempt staff in their day-to-day activities.68 The PMO was composed primarily of exempt staff, though administrative and support services, pay and provisioning, information technology, the correspondence unit, and the
62 National Defence Act, R.S., c. N-4, s.3, 4; Department of Transport Act, R.S., c. T-15, s.3. 63 Affidavit of N. D’Ombrain sworn May 3, 2001, ¶15, Exhibit 3 to White Affidavit #2 sworn Oct 27, 2006, AR, Vol. 9, p.117-118; [“d’Ombrain Affidavit”]; Transcript of evidence N. d’Ombrain on Feb 11, 2002, p.28 L11 – p.29, L5, Exhibit 24 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.339-340 [“d’Ombrain Transcript #1”]. 64 Eggleton Transcript, p.106, L20 – p.108, L13, AR, Vol. 4, p.250-252; Privy Council Office’s 1999-2000 Estimates Report on Plans and Priorities, Exhibit 17 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. 14, p.76, 77, 89. 65 See discussion, infra, at paragraphs 98-100. 66 Treasury Board Secretariat, Guidelines for Ministers’ Offices, July 2004, p. 15-18; Prime Minister’s Office, Accountable Government: A Guide for Ministers and Ministers of State 2008 (Ottawa: Her Majesty in Right of Canada, 2008), http://pm.gc.ca/grfx/docs/guidemin_e.pdf at 38 [“Accountable Government”]. 67 Baril Transcript, p.23, L14 - L24, AR, Vol. 4, p134.; Eggleton Transcript, p.99, L13 - p.100, L3, AR, Vol. 4, p.243- 244; Onuoha Transcript, p.67, L15 - p.69, L1, AR, Vol. 5, p.69-71. 68 Onuoha Transcript, p.73, L2 – L8, AR, Vol. 4, p.75; Ronald Transcript, p.40 L14 – p.41, L9, p.43, L18 - p.44, L16, AR, Vol. 10, p.132-133, 135-136; p.50, L15 – p.52, L1, AR, Vol. 10, p.142-144. - 11 -
PM’s switchboard, were staffed by full-time public servant employees of PCO.69
(E) Previous practice under ATIA involving Ministers’ offices [33] The refusals by the DND, DoT and PCO to release the records requested of them under ATIA marked a shift in how government institutions assessed whether records were subject to the right of access. Starting shortly after the Act came into force in 1983, government institutions had focused on the contents of the records rather than their location in a minister’s office when determining whether they were “under the control of a government institution”.70
[34] Up until these access requests were made, the practice generally followed by departments when an access request was received was to task the minister’s office, just as they would any other part of the department. If that office had relevant records which were not political or personal in nature, but related to the department, it would generally provide them.71 Despite some challenges in a few isolated instances, the Information Commissioner was thus able to investigate and determine without the need of litigation requests that involved ministerial offices.72 This changed with these access requests and the ensuing investigations by the Commissioner; in 2000, the Deputy Clerk of the Privy Council sent a notice to deputy heads stopping this 17-year practice by stating the government’s position that records held exclusively in a minister’s office were not under the control of a government institution.73 At that point, the issue became the location of the record requested, regardless of the content of the record.
[35] In keeping with this new approach to the issue of control, DND maintained that notes of discussions that had taken place during the only senior-level committee meetings between the Deputy Minister of DND, the Chief of the Defence Staff and the Minister of DND (“M5 meetings”) were not under its control, and DOT and PCO maintained, inter alia, that the itineraries and agendas of the heads of their departments were beyond the right of access.74
69 Hartley Transcript, p.106, L15 – p.107, L6; p.180, L21 – p.182, L8; p.183, L4 - L19, AR, Vol. 15, p.157-158, 231- 233, 234 ; Cappe Transcript #2, p.210, L2 – p.211, L15, AR, Vol. 16, p.276-277. 70 Circular from the Secretary of the Treasury Board to Deputy Heads dated Sept 1, 1983, Exhibit 20 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.196-200. 71 See, e.g., Exhibits 5 & 6 to Lanthier Affidavit sworn Dec 21, 2005 (Mr. Murray’s request to Agriculture and Agri- Food Canada dated June 10, 1999 and Agriculture and Agri-Food Canada’s response), AR, Vol. 9, p.156-159. 72 Information Commissioner’s Annual Report 1992-1993, p.26-27; Annual Report 1993-1994, p.23; Annual Report 1994-1995, p.51-52, Exhibits 1-c – 1-e to McCullough Affidavit sworn Sept 1, 2000, AR, Vol. 8, p.253-262. 73 Memorandum, dated Sept 13, 2000, from the Deputy Clerk of PCO to Deputy Heads, Exhibit 21 to O’Donnell Affidavit, sworn Dec 20, 2005, AR, Vol. 2, p.201-203. 74 FC Reasons, ¶24, AR, Vol. 1, p.13. - 12 -
Although these itineraries and agendas had been provided to senior departmental officials and used by them to administer the departments, at the time the requests were made some of these records survived only in archived electronic form in the offices of the respective ministers. As a result, they too were said not to be under the control of a government institution and, therefore beyond the scope of ATIA.
(F) The Information Commissioner’s investigative findings culminating in the applications for judicial review from which these appeals stem [36] The Information Commissioner’s investigations of these complaints were interrupted by some 25 judicial review applications challenging his jurisdiction. These judicial review applications were largely resolved in the Information Commissioner’s favour.75 Among these applications were a group the Federal Court termed “the Control of Records Applications”, in which various applicants sought declarations that the Prime Minister’s agendas under the control of the PMO were not records under the control of the PCO. The court refused to grant such declarations, finding it premature to do so. The court determined that the question of whether certain records are under the control of a government institution is a question of mixed fact and law,76 and held that it was “unsafe” to make the requested declaration under the circumstances, particularly as the Commissioner’s investigations had not been completed.
[37] The Information Commissioner subsequently completed the investigations and found that the records at issue were, in his view, under the control of a government institution. Pursuant to s.37 of ATIA, the Commissioner issued reports to the heads of the respective government institutions, which set out his findings and recommended that the records be disclosed, subject to the proper application of the Act’s exemptions.77 The heads of these government institutions rejected the Commissioner’s recommendations.78 With the consent of the requesters, the
75 Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431, [2004] 4 F.C.R. 181 [“Canada (Attorney General) FC#2”]; appealed on one point and reversed by Canada (Attorney General) v. Canada (Information Commissioner), [2005] 4 F.C.R. 673, 2005 FCA 199; leave to appeal refused (2005), 349 N.R. 196. 76 Canada (Attorney General) FC#2, supra at ¶75. 77 Information Commissioner’s Report in DND case, AR, Vol. 3, p.277-328; Letter dated Nov 22, 2004 from the Information Commissioner to Mr. Elcock, Exhibit 33 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 3, p.333- 335; Information Commissioner’s Report in PCO case, AR, Vol. 14, p.188-249; Information Commissioner’s preliminary Report in DoT case, AR, Vol. 9, p.227-264; Information Commissioner’s s.37(1) report to the Minister, Exhibit 20 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.269-271; Information Commissioner’s s.37(1) report to the head of the RCMP, AR, Vol. 11, p.176-198. 78 Deputy Minister of National Defence’s response dated Nov 15, 2004, Exhibit 32 to O’Donnell Affidavit, sworn Dec 20, 2005, AR, Vol. 3, p.330-332; Letter from the Clerk of the Privy Council Mr. Himelfarb, Exhibit 30 to Lanthier Affidavit, sworn Dec 22, 2005, AR, Vol. 14, p.250-252; Deputy Minister’s responding correspondence on - 13 -
Commissioner instituted judicial review proceedings of the heads’ decisions to refuse to disclose records requested under the Act.
(G) The Judgments Below (i) The Federal Court [38] The issues before the Federal Court were: first, whether the Prime Minister or a Minister, and their respective departmental offices, are part of the departments over which they preside; second, whether the records sought were under the control of a government institution and thus subject to a right of access under s.4 of ATIA; and third, and if so, whether certain of those records were exempt or excluded from disclosure pursuant to some other provision of ATIA.
[39] The Federal Court found that Ministers and their departmental offices are institutions separate from the departments over which the Ministers preside. The Federal Court held that the determination of whether a record in the possession of a Minister or the Minister’s exempt staff was under the control of the department over which the minister presides depended on the answer to two questions: (i) Does the content of the record relate to a departmental matter? (ii) Would a departmental official have a reasonable expectation of obtaining a copy of the record upon request? [40] Applying that test to the records at issue in the DND, DoT, and PCO cases, the Federal Court held as follows: DND • The agendas and miscellaneous records prepared for M5 meetings were under the control of the DND. Their content relates to departmental matters and they would have been provided to all of the attendees, including the Deputy Minister and the Chief of the Defence Staff. A request for those records by a senior departmental official would therefore most likely have been complied with (paras. 147-148). • The notes taken by exempt staff at M5 meetings were not under the control of the DND. Their content does relate to departmental matters, but they were not intended for any third person and were incoherent to anyone other than their author. They would not in their original form have been produced to a senior official of the DND upon request (paras. 144-145). • The email correspondence was not under the control of the DND. The exchanges related to the Minister’s schedule and not substantive information about departmental matters behalf of the Minister, Exhibit 21 to Lanthier Affidavit, sworn Dec 21, 2005, AR, Vol. 9, p.272-273; RCMP’s response dated Mary 20, 2005, Exhibit 20 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.197-198. - 14 -
(para. 146). DoT • Neither the original nor the abridged agendas were under the control of the DoT. The content of both related to departmental matters, but no copy of the former was ever provided to a departmental official, and no replacement copy of the latter would be provided on request (paras. 201-203). PCO • The 2,002 pages of the Prime Minister’s agenda found exclusively within his office were not under the control of the PCO. They did relate to departmental business, but were provided in edited form to the Clerk of the Privy Council only on the basis that they would be destroyed at the end of each day. No replacement or archived version would have been provided on request (paras. 162-165).
[41] The Federal Court then considered whether the “personal information” exemption under s.19 of ATIA applied to the agendas of the Prime Minister and Minister of Transport.79 Section 19 provides that the head of a government institution shall refuse to disclose any record requested under ATIA that contains personal information as defined in s.3 of the Privacy Act. Section 3 of the Privacy Act defines “personal information” as “information about an identifiable individual that is recorded in any form”; ss.3(j) clarifies that for purposes of s.19 of ATIA, “personal information” does not include “information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual…”.
[42] The Federal Court concluded that the Prime Minister and the Minister of Transport were “officers” of the PCO and DoT, respectively, and that information contained in their agendas that related to their duties and functions as Ministers responsible for those institutions was not exempt from disclosure under s.19 of ATIA.
(ii) The Federal Court of Appeal [43] The interpretation of ATIA adopted by the Court of Appeal was based predominantly, if not exclusively, upon a purportedly context-based analysis of the statutory regime. Both of the Court of Appeal’s judgments in these appeals proceeded by first acknowledging the interpretation suggested by the ordinary meaning of the statutory text, and then rejected this interpretation solely on the basis of a “well understood convention” asserted to be part of the “context” of the
79 The Federal Court also considered and rejected the application of s.21(1) of ATIA to both the Minister of Transport and PM’s agendas, and of s.69 of ATIA and s.39 of the Canada Evidence Act to the PM’s agendas. - 15 -
statute. Thus, on the issue of whether the Minister of National Defence, the Minister of Transport and the Prime Minister were respectively part of the listed “government institutions” they headed, the Court of Appeal’s analysis consisted of the following:
6. We acknowledge the force of the legal arguments made by the Information Commissioner, particularly the argument that the head of a government institution is, as a matter of common sense and in accordance with the ordinary meaning of words, a part of that government institution. 7. However, it appears to us that the Access to Information Act was drafted on the basis of a well understood convention that the Prime Minister’s office is an institution of government that is separate from the Privy Council Office, and that the offices of Ministers are institutions of government that are separate from the departments over which the Ministers preside. In our view, that understanding of the structure of the government forms an important part of the factual context in which the Access to Information Act was drafted and should be interpreted. It also explains Justice Kelen’s reliance on the expert evidence to which he referred when engaged in the exercise of statutory interpretation.80
[44] Similarly, on the issue of whether the Prime Minister is an “officer” of the government institution he heads for the purposes of the Privacy Act, the Privy Council Office, the Court of Appeal reasoned:
6. The Information Commissioner argues that, because the Prime Minister presides over the PCO, the Prime Minister is an “officer” of the PCO (or, in French, un «cadre» du Bureau du Conseil privé). There would be considerable force in this argument if paragraph (j) of the definition of “personal information” in the Privacy Act were read literally and in isolation from the rest of the Privacy Act. 7. However, as this Court found in three related appeals delivered orally yesterday… the Access to Information Act was drafted on the basis of a well understood convention that the Prime Minister’s office is an institution of government that is separate from the PCO. It was for that reason that this Court agreed with Justice Kelen that the Prime Minister’s office is a government organization that is separate from the PCO. 8. The same understanding about the special role of the Prime Minister would have formed part of the foundation for the drafting of the Privacy Act. It follows, in my view, that if Parliament had intended the Prime Minister to be treated as an “officer” of the PCO for the purposes of the Privacy Act, it would have said so expressly. It also follows that it would be inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase “officer of a government institution” as used in paragraph (j) of the definition of “personal information” in section 3 of the Privacy Act.81
80 Reasons for Judgment of the Federal Court of Appeal in cases A-378-08, A-379-08 and A-380-08, ¶6-7, AR, Vol. 1, p.121-122 [“FCA reasons #1”]. 81 Reasons for Judgment of the Federal Court of Appeal in cases A-413-08 and A-379-08, ¶6-8, AR, Vol. 1, p.130- - 16 -
PART II – STATEMENT OF THE QUESTIONS IN ISSUE
[45] The Appellant submits that the following four issues arise in these appeals:
(A) How should a contextual and purposive analysis of the Access to Information Act proceed in respect of the roles of Ministers, Ministers’ offices and departments? In particular, did the Court of Appeal err in law in basing its interpretation of the Access to Information Act exclusively upon an alleged “well understood convention” that the offices of Ministers are institutions of government that are separate from the departments over which the Ministers preside? (B) Did the Court of appeal err in law in concluding that the Ministers who preside over and head departments, and the Ministers’ departmental offices, are not part of the “government institution” for the purposes of the Access to Information Act? (C) Did the Court of Appeal err in law in adopting the test for “control” of records articulated by the Federal Court? What is the correct test for determining whether records are “under the control of a government institution” for the purpose of s.4 of ATIA? (D) Did the Court of Appeal err in law in concluding that Ministers, as heads of government institutions, are not also “officers” of those institutions for the purpose of the definition of “personal information” within the Privacy Act and the Access to Information Act?
PART III – STATEMENT OF ARGUMENT
The standard of appellate review [46] At their core, these appeals involve questions of statutory interpretation. The main question fuelling these appeals may be simply stated: in granting a right of access to records under the “control” of specified “government institutions”, did Parliament intend to grant access to records under the control of the designated “head” of the institution? Alternatively, in respect of certain government institutions headed by members of the Privy Council, did Parliament intend to limit the right of access to exclude the head and his or her departmental office?
[47] Subsidiary questions of interpretation flow from the resolution of this central issue. For example, if Ministers are not part of the departments they head for the purposes of ATIA, what is the appropriate test for determining whether a record located in a Minister’s departmental office and under the control of the Minister is also “under the control of a government institution” within the meaning of s.4 of ATIA? In addition, for the purpose of the definition of “personal information”, are Ministers “officers” of the departments over which they preside?
[48] The first question involves the overall construction of a statutory provision, including the
131 [“FCA reasons #2”]. - 17 -
determination of the legal meaning and legal effect to be given to certain words, such as “government institution” and “head”. The standard of review for this issue is therefore correctness.82 The subsidiary questions involve both the interpretation of the legal standard to be applied in relation to particular statutory terms, such as “control” or “officer”, and the application of that legal standard to the particular facts of these cases, and thus constitute questions of mixed fact and law. Matters of mixed fact and law lie along a spectrum: where, as in these cases, an erroneous conclusion resulted from the application of an incorrect legal standard and a failure to consider required elements of the legal test, the error is properly characterized as an error of law, and is also subject to appellate review on a standard of correctness.83
(A) A contextual and purposive analysis of the Access to Information Act with respect to the roles of Ministers, Ministers’ offices and departments [49] This Court has consistently affirmed its preference for the modern approach to statutory interpretation: “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”.84 A consideration of context is thus central, based on the recognition that “words, like people, take their colour from their surroundings”.85 An interpretation that relies solely upon the apparent plain meaning of a specific provision risks frustrating the object and intention of the legislature.86 Statutory interpretation thus properly involves an interplay of competing considerations, which must be allocated differing weights in different circumstances:
The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play[s] a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.87
[50] While context properly plays a significant role within the modern approach to statutory
82 Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at ¶9, 26. 83 Ibid. at ¶8-9, 26-28, 31, 33, 36. 84 Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at ¶21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at ¶26; Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601 at ¶10. 85 Bell ExpressVu, supra at ¶27. 86 Rizzo, supra at ¶21-23, 27. 87 Canada Trustco, supra at ¶10. - 18 -
interpretation, the Appellant submits that the Court of Appeal erred fundamentally in its identification and consideration of the contextual factors relevant to the question of statutory interpretation at issue in these appeals, by disregarding entirely the purpose of the legislation at issue, adopting an unjustifiably and artificially narrow view of the relevant context, and erroneously treating questions relating to the organization and operation of the executive branch of government as matters of empirical fact, largely if not entirely divorced from overarching constitutional principle or legal regulation.
[51] The Appellant’s submissions in this regard, which are developed in this section, may be briefly summarized:
(1) The question of statutory interpretation at issue in these appeals must be approached with reference to the legislative purpose underlying the enactment of ATIA, namely to promote democratic accountability and participation, through the creation of a comprehensive legislative scheme to recognize and balance the competing interests of access, privacy and the protection of sensitive government information. (2) Regard must be had to the body of legal rules and conventional practices that govern the organization of and exercise of powers by the executive/administrative arm of government, upon which the scheme of ATIA relies and to which it implicitly refers. (3) When this legal framework is appropriately borne in mind, it is apparent that the central issue of these appeals – the scope or contour of a “government institution” – is largely a question of law, and not a question of fact as the courts below mistakenly assumed. The reliance by the courts below on expert evidence was therefore misplaced. (4) In light of the legal framework set out under (1) and (2), it is apparent that as a matter of law, there can be no “well understood convention” in relation to ministerial offices, as such a convention has never before been recognized, the evidence in these appeals is insufficient to establish it, and such a convention conflicts with and undermines well- established, foundational legal rules regarding the organization and functioning of the executive branch of government. Ultimately, the Appellant submits that when the broader context is appropriately incorporated into the modern approach to statutory interpretation – as the analysis by the courts below neglected to do – it is clear that a contextual and purposive construction of ATIA yields an interpretation that is entirely consistent with that suggested by the common-sense, ordinary meaning of the legislative text.
(i) The overarching purposes of the Access to Information Act: Democratic accountability and participation, through access to records concerning the machinery of government [52] The identification of the purpose of a given legislative enactment is an essential step in the modern approach to statutory interpretation. Purposive analysis is applicable in all cases - 19 -
involving questions of statutory interpretation, not only those in which the legislative text is ambiguous: under the modern approach, an interpretation that would tend to frustrate or defeat the legislature’s purpose should be rejected if there is a plausible alternative.88 The court is required to consider the total context of the provisions to be interpreted, no matter how plain the disposition may appear upon initial reading.89 The Appellant submits that in adopting an interpretation of ATIA that relied exclusively upon the purported “well understood convention”, the Court of Appeal failed entirely to consider – let alone give appropriate effect to – the statutory text, its legislative purpose and the wider context of this statutory regime.
[53] As Justice La Forest noted in Dagg, “[t]he idea that members of the public should have an enforceable right to gain access to government-held information…is relatively novel”.90 The enactment of the Access to Information Act in 1982 represented a fundamental and intentional reversal of the prior legal regime of unfettered executive discretion with respect to the release of government information, and a deliberate check against the practice of government secrecy that was deeply ingrained within the British parliamentary tradition.91
[54] The purpose of ATIA is expressly set out in subsection 2(1), which provides:
The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.92 With the inclusion of this clause, Parliament explicitly indicated its intention to confer a broad right of access, subject only to limited exceptions, and strengthened by independent oversight. The express purpose clause also underscores Parliament’s clear expectation that ATIA be afforded a broad, liberal and purposive interpretation. Parliament’s stated purpose is relevant at all stages
88 Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Toronto: Lexis Nexis Canada Inc., 2008) at 255- 259, 281; Interpretation Act, R.S.C. 1985, c. I-21, s.10; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at ¶57 (per La Forest J., dissenting but not on this point); R. v. Hinchey at ¶12, 50-51 (per L’Heureux-Dubé J. for the majority); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 7. 89 ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140 at ¶54 (per Bastarache J. for the majority). 90 Dagg, supra at ¶59 (per La Forest J., dissenting but not on this point), ¶1 (per Cory J. for the majority, agreeing with dissent’s interpretation). 91 See House of Commons Debates, Vol. VI (29 January 1981) at 6690 (Hon. Francis Fox). 92 ATIA, s.2(1). - 20 -
of the interpretation of the legislation, and not only in interpreting its exemption provisions.93
[55] ATIA has been described as “quasi-constitutional”, in recognition of its special purpose. The “quasi-constitutional” status of ATIA does not operate to alter the traditional approach to statutory interpretation.94 Rather, the term highlights the foundational importance and societal value of the purposes served by the legislation, and the breadth of the considerations that will appropriately inform its purposive interpretation.95 In Dagg, this Court explained that
61. The overarching purpose of access to information legislation…is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. As Professor Donald C. Rowat explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can J. of Econ. and Pol. Sci. 479, at p. 480: Parliament and the public cannot hope to call the Government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view. 62. Access laws operate on the premise that politically relevant information should be distributed as widely as reasonably possible…96 This Court has thus recognized the intimate connection, both in theory and practice, between ATIA and such fundamental constitutional principles as democracy, responsible government and the rule of law. As stated in Dagg, “[r]ights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable”.97
[56] ATIA was considered and enacted by Parliament in conjunction with the Privacy Act and certain amendments to the Canada Evidence Act (CEA) relating to public interest immunity and
93 Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 at ¶17 (referring to purpose clause in interpreting the standard of review under ATIA) [“Information Commissioner v. RCMP”]; Communauté urbaine de Montréal (Société de transport) v. Canada (Minister of Environment), [1987] 1 F.C. 610 at 613, 616 (T.D.) (referring to purpose clause in interpreting the power of the designated head to delegate discretionary decision-making under ATIA); Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 at ¶23-24 (F.C.A.) (referring to purpose clause in interpreting exemptions under ATIA); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at 441 (T.D.). 94 Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 at ¶23-25. 95 H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441 at ¶28. Whether the right of access also includes a constitutional aspect is a question this Court has been asked to consider in the appeal from the decision of the Court of Appeal for Ontario in Criminal Lawyers’ Association v. Ministry of Public Safety and Security (2007), 86 O.R. (3d) 259 at ¶26-63 (C.A.), currently under reserve (appeal heard on December 11, 2008). 96 Dagg, supra at ¶61-62 (per La Forest J. dissenting but not on this point), ¶1 (per Cory J. for the majority, agreeing with dissent’s analysis). 97 Dagg, supra at ¶63 (per La Forest J. dissenting but not on this point), ¶1 (per Cory J. for the majority, agreeing with dissent’s analysis). - 21 -
cabinet confidences, within a single statute, Bill C-43.98 In pursuing these three disparate legislative policies in a single statute, Parliament signalled its simultaneous commitment to the competing interests in access to information, privacy and the protection of sensitive government information, and its intention to provide a legislative framework to resolve the clashes between these interests in particular cases in a coherent and regulated manner. Independent oversight, through administrative or judicial mechanisms or both, is a central aspect of Parliament’s response in relation to each of these areas, which previously had been characterized by largely unfettered executive discretion and fluid common law rules.
[57] In relation to the competing values of access and privacy, this Court has noted the “tightly interlaced legislative histories” of ATIA and the Privacy Act, and concluded that these statutes represent a “seamless code”, intended to provide “a coherent and principled mechanism for determining which value should be paramount in a given case”.99 The Appellant submits that this reasoning also applies in relation to the competing values of access and the regulated protection of sensitive government information, the third legislative policy of Bill C-43: these statutory provisions also evince Parliament’s intention to create a coherent scheme to regulate the inevitable clash of these competing interests and determine which would prevail in a given case.
[58] The statutory scheme under ATIA proceeds on the basis of a general right of access, subject to and qualified by limited exemptions related to the substance of the information and its objective sensitivity from the perspective of the government. The permitted bases for withholding government information – and the intentional bounded specificity of these exceptions – are thus articulated as an integral part of the right of access.100 At the same time, many of the categories of mandatory and discretionary exemptions within ATIA correspond to the common law classes of public interest privilege, which were made subject to restrictive codification and more stringent judicial oversight pursuant to the Bill C-43 amendments to the CEA. Moreover, like the interlocking privacy-related provisions of ATIA and the Privacy Act, the legislative provisions within the CEA and ATIA in respect of cabinet confidences constitute a cohesive framework: the
98 An Act to enact the Access to Information Act and the Privacy Act, to amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof, S.C. 1980-81-82-83, c.111. Schedule I enacted the Access to Information Act, Schedule II enacted the Privacy Act, and Schedule III added provisions concerning government information to the Canada Evidence Act. 99 Dagg, supra at ¶45, 47; Heinz, supra at ¶22-24 (per Deschamps J. for the majority), ¶68 (per Bastarache J. concurring); Information Commissioner v. RCMP, supra at ¶21-22. 100 Information Commissioner v. RCMP, supra at ¶21. - 22 -
boundaries of protection for cabinet confidences under the CEA are largely congruent with the exclusion under ATIA, so records containing cabinet confidences generally become subject to ATIA at the same point that CEA protection ceases. In general, this interlaced legislative history confirms Parliament’s intention that the balancing of competing values relating to access, privacy and protection of sensitive government information occur with reference to and within – rather than outside – the substantive structures and procedural framework created by Bill C-43.
(ii) Executive/administrative government in Canada: The legal framework of responsible government maintained by constitutional conventions, framed and supplemented by legislative and common law rules [59] The principles of responsible government and democratic accountability lie at the core of the legal framework of government in Canada, and the strengthening of these principles has been recognized as the overarching purpose of access to information legislation. As these principles frame and regulate the functioning of executive government in Canada, “[a]n exploration of the[ir] meaning and nature…is not merely of academic interest. On the contrary, such an exploration is of immense practical utility.”101 The Appellant respectfully submits that both courts below failed to appreciate the extent to which practices related to the organization and functioning of the executive/administrative branch are regulated by enforceable legal rules of constitutional importance, upon which the scheme of ATIA relies and to which it implicitly refers. ATIA’s reliance upon this external legal framework was overlooked by the courts below, and has a direct bearing on the issues raised in these appeals.
[60] The body of law that applies to regulate the workings of executive government in Canada draws on many sources – written and unwritten, common law and statutory, constitutional conventions and constitutional law. The interaction between these sources is informed by a set of common law interpretive presumptions derived from the principles of Parliamentary sovereignty and constitutional supremacy.102
[61] The constitutional law of Canada consists in part of written rules, contained in a variety of statutes and other instruments.103 Canadian constitutional law also consists of certain rules of the
101 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at ¶1 [“Secession Reference”]. 102 These include the presumptions against changing the common law and against implicit alteration of the law, the presumption of constitutional validity and the presumption of coherence. 103 Pursuant to s.52(2) of the Constitution Act, 1982, the Constitution of Canada “includes” the Canada Act 1982, the Acts and orders referred to in the schedule, and any amendments thereto. See also Reference Re Resolution to Amend - 23 -
common law, for example in relation to the prerogatives of the Crown104 and the privileges of federal and provincial legislative bodies.105 In addition, our constitutional law embraces certain unwritten constitutional principles, which have been described as “the vital unstated assumptions upon which the text is based”, the “principles [that] dictate major elements of the architecture of the Constitution itself and are as such its lifeblood”.106 The unwritten constitutional principles that have been enforced by this Court include constitutionalism and the rule of law,107 federalism,108 democracy,109 respect for minorities,110 judicial independence,111 and the separation of powers.112 While these unwritten constitutional principles do not displace the primacy of the written text, they form a necessary foundation for the interpretation of the written constitution, and represent the basic principles which are given effect by the written constitution.113 As a result, unwritten constitutional principles have been recognized to give rise in certain circumstances to substantive legal obligations, which constitute substantive limitations upon government action and are binding upon both courts and governments.114
the Constitution, [1981] 1 S.C.R. 753 at 876 [“Patriation Reference”]; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 375-378 (per McLachlin J. for the majority); Secession Reference, supra at ¶32. 104 Patriation Reference, supra at 876-877; Ontario Public Service Employees’ Union v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at 37-38 [“OPSEU”]. 105 Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667 at ¶29; New Brunswick Broadcasting, supra at 377- 379, 382-385 (per McLachlin J. for the majority); Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Scarborough, Ont.: Carswell, 2007) at 1-12 – 1-15. 106 Secession Reference, supra at ¶49, 51. 107 Secession Reference, supra at ¶70-78; Reference re: Manitoba Language Rights, [1985] 1 S.C.R. 721 at 748-752 [“Manitoba Language Rights Reference”]; British Columbia v. Imperial Tobacco Ltd., [2005] 2 S.C.R. 473 at ¶57- 67; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at ¶99 [“Provincial Judges Reference”]; R. v. Campbell and Shirose, [1999] 1 S.C.R. 565 at ¶1, 18; Roncarelli v. Duplessis, [1959] S.C.R. 121 at 142, 144. 108 Secession Reference, supra at ¶55-60; Patriation Reference, supra at 905-906. 109 Secession Reference, supra at ¶61-69; Imperial Tobacco, supra at ¶66; OPSEU, supra at 57; Provincial Judges Reference, supra at ¶100-103. 110 Secession Reference, supra at ¶79-82. 111 Provincial Judges Reference, supra at ¶105-109; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at ¶32-47; Beauregard v. Canada, [1986] 2 S.C.R. 56 at 70-73. 112 Provincial Judges Reference, supra at ¶108, 138-141; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at ¶33-34 (per Iacobucci and Arbour JJ. for the majority), ¶94, 105-111 (per LeBel and Deschamps JJ., dissenting); Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455 at 469-470; New Brunswick Broadcasting, supra at 354 (per Lamer CJ concurring), 389 (per McLachlin J. for the majority); Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn of Public and Private Employees, [2004] 3 S.C.R. 381 at ¶104-106, 116; Vaid, supra at ¶20-21, 24. 113 Provincial Judges Reference, supra at ¶90-95, 104; Secession Reference, supra at ¶53; New Brunswick Broadcasting, supra at 377-378 (per McLachlin J. for the majority). 114 Secession Reference, supra at ¶54; Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 at ¶54; Imperial Tobacco, supra at ¶60. - 24 -
[62] The Canadian constitution also includes certain conventions, which “prescribe the way in which legal powers shall be exercised”.115 Many of the most important practices underpinning responsible government and the workings of cabinet are purely matters of convention. They include the appointment of the Prime Minister and the practice that the person occupying this position should have the support of the legislature; the practice that ministers are appointed by the Crown on advice of the Prime Minister, and must be or become members of the legislature; the rule that ministers must maintain the confidence of the legislature, both individually and collectively, and if they lose it must resign or ask the Crown for a dissolution of the legislature and the holding of a general election; and the rule that the Crown’s powers are exercised only on advice either of the ministers collectively or of a particular minister, often the Prime Minister.116 Conventions are often in conflict with the rules set out in the written constitution. For example, by convention the Governor General cannot refuse to assent to a bill that has been properly passed by both Houses of Parliament;117 this convention, however, conflicts directly with the constitutional rules set out in sections 17 and 55 of the Constitution Act, 1867, and if a Governor General chose to disobey the convention, the courts could provide no remedy.118
[63] Not all practices will qualify as constitutional conventions.119 This Court confirmed in the Patriation Reference that to establish a convention, “[p]recedents and usage are necessary but do not suffice. They must be normative”.120 The Court adopted Sir Ivor Jennings’ definition:
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.121 All three aspects of the definition must be satisfied. Identifying whether a conventions exists is
115 Hogg, supra at 1-21. 116 Patriation Reference, supra at 878, 881-882; Attorney General (Quebec) v. Blaikie, [1981] 1 S.C.R. 312 at 320; Reference Re Canada Assistance Plan, [1991] 2 S.C.R. 525 at 546-547; Arseneau v. The Queen, [1979] 2 S.C.R. 136 at 148-149; Hogg, supra at 9-8 – 9-15, 9-23 – 9-33; Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Oxford: Oxford University Press) at 16-75; Halsbury’s Laws of England, 4th ed. (Reissue), Vol. 8(2) (London: Butterworths, 1996) at 30-32. 117 Hogg, supra at 9-20, 9-24 – 9-33. 118 Patriation Reference, supra at 881-882; Reference re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71 at 95; Manitoba Languages Reference, supra at 753-754. 119 Reference re: Amendment of Canadian Constitution, [1982] 2 S.C.R. 793 at 803 [“Quebec Veto Reference”]. 120 Patriation Reference, supra at 888. 121 Patriation Reference, supra at 888, citing Sir Ivor Jennings, The Law of the Constitution, 5th ed., 1959 at 136. - 25 -
therefore not merely a matter of empirical investigation to determine, as a matter of fact, what the major participants in the political process did or believed was required of them; the identification of conventions also has a normative aspect, relating to the rules that the political actors ought to feel obliged by, once the precedents and reasons are properly considered.122
[64] Constitutional conventions often serve to delineate practices that reconcile the written framework of the constitution with the unwritten constitutional principles. Thus, conventions give effect to the foundational principles of our constitutional system of government: The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. For example, the constitutional value which is the pivot of the conventions…relating to responsible government is the democratic principle: the powers of the state must be exercised in accordance with the wishes of the electorate…123 The Appellant submits that it is this link to the unwritten constitutional principles that supplies constitutional conventions with their critical normative force, and permits one to “distinguish a constitutional rule from a rule of convenience or from political expediency”.124
[65] Both constitutional law and constitutional conventions form part of the Canadian constitution and of our constitutional system of government: “constitutional conventions plus constitutional law equal the total constitution of the country”.125 Both conventions and constitutional law are “positive rules the existence of which has to be ascertained by reference to objective standards”.126 However, unlike the laws of the constitution, which are directly administered and enforced by the courts, constitutional conventions are not enforceable unless they are incorporated into legislation, and our legal system does not contemplate formal sanctions for their breach.127 At the same time, courts have on occasion noted and defined the contours of certain conventions, when this was relevant to clarifying the existing law.128 Marshall provides a helpful summary of three ways in which conventions have been noted by the courts in the course
122 Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford: Clarendon Press, 1984) at 11-12. 123 Patriation Reference, supra at 880. See also Marshall, supra at 210 (“Conventions have as their main general aim the effective working of the machinery of political accountability.”); Heard, supra at 14-15. 124 Quebec Veto Reference, supra at 815-816. 125 Patriation Reference, supra at 883-884. 126 Quebec Veto Reference, supra at 816. 127 Patriation Reference, supra at 774-775, 784, 880-881, 883; Secession Reference, supra at ¶98; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at 87; Hogg, supra at 1-21; Marshall, supra at 12-18; Halsbury’s Laws, supra at 29-30. 128 Hogg, supra at 1-22 – 1-23; Marshall, supra at 13-15. - 26 -
of applying the existing law, without treating the conventions as directly enforceable law: 1. By being part of the material that was enacted into law. 2. By helping to elucidate the background against which legislation took place, thus providing guidance as to the intention of the legislature where the meaning of a statute has come into question. 3. By constituting a practice or set of facts that fell under an existing legal doctrine.129
[66] In the cases at bar, the interpretation of ATIA turns upon an analysis of the relationship between Ministers (or the Prime Minister) and the government institutions over which they preside, and an assessment of the relevant legal rules and conventional practices that govern the exercise of powers by these members of the cabinet. The Appellant submits that understanding these legal rules and conventional practices is essential, as they form a necessary contextual backdrop without which ATIA cannot be coherently interpreted.
The constitutional framework governing the powers and practices of executive government [67] The powers and practices of executive/administrative government in Canada are rooted in and delineated by written and unwritten constitutional law, as well as constitutional conventions. In some aspects, the relevant constitutional common law rules or constitutional conventions have been codified, modified or supplemented by express statutory enactment.130 For the purposes of analysis, two hierarchical relationships may be identified amongst these various constitutional sources that define the powers and practices of the executive/administrative branch. First, entrenched constitutional sources generally prevail over statutory sources, and statutory sources generally prevail over the common law.131 Second, one can distinguish between written and
129 Marshall, supra at 15. 130 For example, executive powers rooted in the prerogatives of the Crown, which consist of the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown” (Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269 at 272, quoting A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915) at 420), are displaced by statute to the extent that the latter limits the scope of the prerogative, either expressly or by necessary implication: see Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816 at ¶54. The exercise of the prerogative is subject to review for compliance with the Charter and other constitutional norms: see Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at 464; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at ¶36-37. The common law constitutional rules of parliamentary privilege at the federal level are also subject to statutory codification, pursuant to section 18 of the Constitution Act, 1867; however, since parliamentary privilege is itself of constitutional status, statute-law relating to parliamentary privilege is immune from Charter review: see Vaid, supra at ¶33-34. When a constitutional convention is incorporated into legislation, it is transformed into ordinary statutory law, and is subject to Charter scrutiny: see Osborne v. Canada (Treasury Board), supra at 87. 131 This hierarchy is subject to exceptions, to the extent that both common law and conventions, as well as certain parts of the written constitution, may be supplanted or amended by statute. In relation to the written constitution, see, for example, sections 12, 18, 40 and 41 of the Constitution Act, 1867, and section 44 of the Constitution Act, 1982. See Sullivan, supra at 351-352. - 27 -
unwritten laws of the constitution, common law and statutory sources, which are enforceable by the courts, and conventions, which are not.
[68] The written constitution provides surprisingly limited guidance with respect to the powers and practices of executive government. The preamble to the Constitution Act, 1867 indicates that Canada is to have “a constitution similar in principle to that of the United Kingdom”, thereby incorporating by reference the conventions of responsible government (also known as cabinet or parliamentary government) in the Westminster tradition as well as certain fundamental common law aspects of the United Kingdom’s constitutionalism, including democratic institutions, the rule of law and Crown prerogatives.132 Under s.9 of the Constitution Act, 1867, the “executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen”; s.10 contemplates that the Queen’s powers may be exercised by a Governor General, and s.11 creates the Queen’s Privy Council for Canada, “to aid and advise in the Government of Canada”. Further provisions specify certain powers of the Governor General relating to the operation of Parliament and the enactment of legislation,133 but the powers and practices of the executive receive no further attention.
[69] Given the paucity of guidance from the written constitution in relation to executive powers and practices, reference must be had to unwritten constitutional principles, constitutional conventions and the common law. At common law, the prerogatives of the executive had been progressively confined well before 1867, as a result of the doctrine that most executive action which infringed the liberty of the subject required the authority of a statute, as well as the rule that the prerogative could be abolished or displaced by statute.134 Today, most executive governmental power in Canada is exercised under statutory authority, and not the common law prerogative.
[70] The Appellant submits that three unwritten constitutional principles are of particular significance in structuring and sustaining the legal framework within which executive powers and practice operate: the separation of powers, democracy, and the rule of law. These principles
132 Patriation Reference, supra at 805-806; Secession Reference, supra at ¶44, 53; New Brunswick Broadcasting Co., supra at 375; Manitoba Language Rights Reference, supra at 750; Provincial Judges Reference, supra at ¶104; Fraser, supra at 462-63. 133 See, for example, Constitution Act, 1867, ss.12, 13, 24, 34, 38, 50, 54-57. 134 Entick v. Carrington (1765), 95 E.R. 807 (K.B.); Hogg, supra at 1-19; Halsbury’s Laws, supra at 244-245; Peter Hogg and Patrick J. Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) at 15-21; Ross River, supra at ¶54. - 28 -
operate in an interlinked manner, and are given effect in practice by the constitutional conventions relating to responsible government.
[71] While the Canadian constitution does not expressly provide for a general separation of powers,135 the principle has been recognized as a “defining feature of our constitutional order”:136 Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the workings of government as a whole that all of these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.137 The functions of each branch of government were summarized by this Court in Fraser: “In broad terms, the role of the judiciary is…to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement the policy”.138 The separation of powers also includes the notion that “the different branches of government only interact, as much as possible, in particular ways”, and that “the relationships between the different branches of government should have a particular character”.139
[72] Under our parliamentary system of government, an overlap between the executive and legislative branches is a structural feature: the members of the executive are drawn from the legislative branch, and the cabinet largely controls Parliament.140 This approach is to be contrasted with a congressional system, in which power is strictly divided between non- overlapping executive and legislative branches. Under the parliamentary system, constitutional controls on the exercise of executive power are instead exerted through doctrines regarding the legal relationship between the legislative and executive branches: [T]here is a hierarchical relationship between the executive and the legislature, whereby the executive must execute and implement the policies which have been enacted by the legislature in statutory form…In a system of responsible government, once legislatures have made political decisions and embodied those decisions in law, it is the constitutional
135 Reference re: Residential Tenancies Act 1979 (Ontario), [1981] 1 S.C.R. 714 at 728. 136 Newfoundland (Treasury Board), supra at ¶104. 137 New Brunswick Broadcasting, supra at 389 (per McLachlin J. for the majority), quoted with approval in Vaid, supra at ¶24. 138 Fraser, supra at 469-470. 139 Provincial Judges Reference, supra at ¶139. 140 Hogg, supra at 9-20; Privy Council Office (Canada), Responsibility in the Constitution (Ottawa: Minister of Supply and Services Canada, 1993) at 80-85. - 29 -
duty of the executive to implement those choices.141 Adherence to the hierarchical relationship between the legislature and the executive ensures appropriate respect for democracy, as only the legislature is a representative institution directly accountable to the electorate.142
[73] The maintenance of an appropriate separation of powers between the branches of government ultimately sustains the rule of law, which has also long been recognized as “a fundamental postulate of our constitutional structure”.143 The rule of law has three aspects: [F]irst…the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second…“the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”…A third aspect of the rule of law is…that “the exercise of all public power must find its ultimate source in a legal rule”. Put another way, the relationship between the state and the individual must be regulated by law.144 The principle of the rule of law is of particular relevance in constraining the actions of the executive and judicial branches of government.145 Adherence to the rule of law requires that all exercises of executive power be founded upon legal authority, and that “official actions must flow from statutory authority clearly granted and properly exercised”.146 This well-established doctrine can also be understood as an application of the parliamentary separation of powers principle, in that executive practices must conform to the limits set by the legislature in granting the power in question.
[74] As a matter of constitutional law, every Minister – as a member of the executive branch of government – is legally responsible for every act of the Crown in which he or she takes part or that is done in his or her name, and every executive act of the Crown must in law be traceable back to a responsible individual Minister or the Ministers acting collectively as the Governor-in- Council.147 The practices of collective and individual ministerial responsibility maintain the
141 Provincial Judges Reference, supra at ¶139. 142 Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 at ¶24 (per Lamer CJ concurring), cited with approval by the majority in Provincial Judges Reference, supra at ¶139. 143 Roncarelli, supra at 142. 144 Secession Reference, supra at ¶71 [citations omitted]. 145 Imperial Tobacco, supra at ¶60. See also Campbell and Shirose, supra at ¶29. 146 Babcock, supra at ¶25, 39; Roncarelli, supra at 137, 140-143. 147 A.V. Dicey, Introduction to the Study of the Constitution, 10th ed. (MacMillan & Co Ltd.: London, 1965) at 325- 327; Geoffrey Marshall and Graeme C. Moodie, Some Problems of the Constitution, 5th revised ed. (London: Hutchinson & Co, 1971) at 65; Responsibility in the Constitution, supra at 11-19, 55-69; Treasury Board Secretariat - 30 -
constitutional accountability of the executive to the legislature, by ensuring that the executive collectively retains the confidence of the legislature, and that Ministers individually and collectively answer to the legislature regarding the exercise of executive powers.148
[75] While many of the Parliamentary conventions of responsible government are not directly enforceable, they form an unstated yet indispensable foundation for numerous statutory and common law rules that determine the organization and practice of the executive/administrative arm of Canadian government. To the extent that these statutory and common law rules implement fundamental unwritten constitutional principles, it is appropriate that the legal rules be applied in a purposive manner, aimed at protecting the overarching principles they serve.149 In Responsibility in the Constitution, the Privy Council Office summarized the intertwined nature of Ministers’ legal responsibilities and the conventional practices of responsible government: Our system of government, deriving from British and pre and post confederation practice, is ministerial in character. Ministers, in their capacity as advisers of the Crown, are individually and collectively responsible for most activities of government. Their individual responsibilities are mainly legal in character. Principally, they exercise powers bestowed upon them by the Crown in Parliament and hold office at the pleasure of the Crown. The exercise of these powers, for which ministers are constitutionally responsible to Parliament, provides the foundation of responsible government. The collective responsibility of ministers is, on the other hand, primarily conventional rather than legal, providing the stability and unity essential to the conduct of ministerial government. Individual ministerial responsibility, i.e. the personal responsibility of the minister, derives from a time in history when in practice and not just in theory the Crown rather than ministers provided the government, and ministers merely advised the sovereign and were legally responsible to the Crown for their actions. Today, this legal individual responsibility of ministers reflects the theory and law of the constitution and remains a practical force because of the conventional responsibility of ministers to the House of Commons and the statutory basis on which ministers are charged with the administration of the public service. The individual responsibility of ministers also provides the basis for accountability throughout the system. Collective ministerial responsibility, a complex arrangement involving the personal responsibility of each minister and of ministers as a group, is of recent vintage in our constitution, dating back not much more than 100 years. It evolved as a means of providing stable government within the framework of the existing structure of ministerial government
(Canada), Meeting the Expectations of Canadians: Review of the Responsibilities and Accountabilities of Ministers and Senior Officials (Ottawa, Treasury Board Secretariat, 2005) at 11. 148 Hogg, supra at 9-8 – 9-15; Meeting the Expectations of Canadians, supra at 3-5, 9-13; Responsibility in the Constitution, supra at 11-19, 71-88. 149 This approach has been adopted by this Court in several cases in which constitutional conventions relating to responsible government were used as an interpretive aid in applying rules of positive law. See, for example, Arseneau, supra at 149; Blaikie, supra at 320-321; OPSEU, supra at 41-43. - 31 -
after the Crown had ceased itself to be the motive force of government. Ministers replaced the sovereign as the decisionmakers of government, and collective responsibility made effective the collective leadership of ministers. However, because collective responsibility is conventional and recent rather than legal and ancient, its significance in terms of accountability in the system is indirect, though nonetheless essential.150 [76] Two aspects of this legal framework are of particular relevance to the disposition of these appeals: first, the legal rules concerning the organization and reorganization of the executive/administrative branch; and second, the legal doctrines through which the legal requirements of individual ministerial responsibility are reconciled with the administrative needs of modern government. The Appellant submits that in each of these areas, enforceable legal rules exist to structure and constrain the exercise of executive power. These legal rules are an important part of the context within which ATIA was enacted, and upon which it implicitly relies, and thus directly affect the resolution of the questions at issue in these appeals.
The organization of the executive/administrative arm of government [77] The executive/administrative arm of the federal government consists of more than 200 institutions of various kinds, many of which are listed in the schedules to the Financial Administration Act (“FAA”).151 These represent only a portion of the entities associated with the federal executive/administrative branch, as many organizations with even more tenuous connections to the political centre of the executive are not listed in the FAA. For the most part, the central institutions of executive/administrative government are today authorized by statute. However, statutory underpinnings are by no means universal. While the institutional organization of contemporary executive/administrative government in Canada is largely specified in statutes, the apex of the executive branch – the Prime Minister, the cabinet and the Privy Council – exists and functions almost entirely according to convention. Many other institutions of executive/administrative government were not established in a formal, statutory manner, but rather exist at an administrative level within other bodies, or have been designated by Order in Council only. In some cases – although not invariably – legislation is later enacted to give the already-functioning entity a statutory foundation.
[78] At common law, Crown possessed a prerogative to organize (and reorganize) the
150 Responsibility in the Constitution, supra at 3-7. 151 Financial Administration Act, R.S.C. 1985, c.F-11. - 32 -
administrative arm of government.152 After the introduction of the conventions of responsible government, the Crown exercised its executive powers through Ministers, who were legally responsible for acts of the Crown within their portfolio areas. Thus, on July 1, 1867, the first Canadian ministerial positions were constituted by Order in Council assigning portfolio areas to certain named Ministers.153 Some of the administrative bodies thereby created by virtue of the ministerial offices were later given statutory bases as departments, and these ministerial offices were formalized.154 Other portfolios were never specifically provided with a statutory basis, but their existence was recognized in other statutes that provided for particular ministerial offices, such as the Salaries Act.155 This pattern – of organizing the executive/administrative branch by assigning responsibility for portfolio functions to particular persons designated as Ministers with titles relating to certain subject-matter areas – continues to this day.
[79] Today, as at confederation, the position of Prime Minister exists by convention, although its existence is recognized and provided for in various statutes, including the Salaries Act and the
152 Halsbury’s Laws, supra at 235; Alissa Malkin, “Government Reorganization and the Transfer of Powers: Does Certainty Matter?” (2007-2008) 39 Ottawa L. Rev. 537 at ¶1. 153 The following ministerial offices were created by Order in Council on July 1, 1867: Justice and Attorney General, Militia, Customs, Finance, Public Works, Inland Revenue, Secretary of State for the Provinces, President of the Privy Council, Marine and Fisheries, Postmaster General, Agriculture, Secretary of State for Canada, and Receiver General. During the following two years, statutory provision was made for many of these offices. See Privy Council Office (Canada), Guide to Canadian Ministries Since Confederation, “First Ministry”, available online at
Official Residence Act.156 For the first fifty years after confederation, the Prime Minister was required to occupy another ministerial portfolio in addition to assuming the duties of Prime Minister,157 and generally continued to do so until the Pearson administration took office in 1963.158 In law, therefore, the Prime Minister is a Minister like the others, but with particular duties that are almost entirely set by convention: he or she presides over cabinet, provides recommendations to the Governor General resulting in the selection of the other Ministers and if necessary their demotion or dismissal, and is personally responsible for advising the Governor General when Parliament should be dissolved for an election and when it should be summoned into session.159 In addition, certain functions are assigned to the Prime Minister by statute.160
[80] The cabinet is also a creature of convention.161 Although the cabinet is critical to the functioning of our system of government, it is not mentioned in the Constitution Act, 1867. The Privy Council was constituted by s.11 of the Constitution Act, 1867; all Ministers are members of the Privy Council, and by convention the cabinet exercises the powers of the Privy Council pursuant to s.12 of the Constitution Act, 1867.162 By convention, members of the cabinet must be or become members of the legislature.163 The determination of the size of cabinet and the distribution of portfolios falls to the Prime Minister: in law, there are certain ministerial positions that must be filled, so that the functions statutorily assigned to those offices may be exercised.
[81] By convention, the Prime Minister and the cabinet are supported in their duties by the
156 See, for example, Salaries Act, R.S.C. 1985, c. S-3, s.4.1 (providing for the Prime Minister’s salary) and Official Residences Act, R.S.C. 1985, c. O-4, s.2 (providing for the Prime Minister’s official residence). 157 The original Salaries Act of 1868 made no provision for the Prime Minister, and the first Prime Minister, Sir John A. MacDonald, also held the portfolio of Minister of Justice and Attorney General (see Canada Gazette, Vol. I, No. 2 (July 6, 1867) at 6; Salaries Act, (1869) 31 Vict. c.33). In 1873, provision was made for the “First Minister” to receive a special salary “in addition” to his ministerial salary (An Act for the Readjustment of the Salaries and Allowances of Judges and Other Public Functionaries and Officers (1873), 36 Vict., c.31, s.2). In 1920, a completely separate salary for the First Minister was provided for the first time (see An Act to Amend the Salaries Act (1920), 10-11 Geo. V, c.69, s.1). 158 See Responsibility in the Constitution, supra at 42-43, fn 6; Guide to Canadian Ministries, “The Ministries”, supra. 159 Hogg, supra at 9-11 – 9-12; Marshall, supra at 47-48; Privy Council Office, The Responsibilities of the Privy Council Office, “Cabinet Government and the Prime Minister”, February 2000, available at
PCO,164 which was “continued” by virtue of s.130 of the Constitution Act, 1867. Its organization and functions today remain largely matters of constitutional convention. Prior to 1940, the PCO was concerned solely with the formal work of Council; in 1940, it assumed duties as the secretariat for cabinet, when the Clerk of the Privy Council was for the first time also appointed Secretary to the Cabinet.165 The PCO is not formally constituted by any legislative provisions.166 The position of Clerk of the Privy Council and Secretary to the Cabinet has been recognized in the Public Service Employment Act since 1992,167 and certain statutory functions are now assigned to the Clerk, including as head of the public service and deputy minister of the PCO.168 On the whole, however, the PCO’s functions remain largely matters of convention, and include providing professional, non-partisan advice and administrative support to the Prime Minister, the other PCO ministers,169 and the cabinet.170 The PCO is legally responsible to the Prime Minister,171 and the Prime Minister is recognized as its presiding Minister.172
[82] Within cabinet, each minister is legally responsible for particular portfolio(s). While at confederation the departments were created by assigning ministerial positions, contemporary departments are now founded upon constituting legislation. Nevertheless, the Minister’s role in constituting the department remains critical and reflects the conventions of individual ministerial
164 Responsibility in the Constitution, supra at 41-52; The Responsibilities of the Privy Council Office, supra, “The Privy Council Office”. 165 Responsibility in the Constitution, supra at 42-43, fn 6 (citing P.C. 1121, 25 March 1940). 166 The PCO is, however, mentioned in the schedules of five statutes, namely: ATIA; FAA; Privacy Act; Public Sector Compensation Act, S.C. 1991, c.30; Public Service Staff Relations Act, R.S.C. 1985, c.P-35. 167 See S.C. 1992, c.54, s.26, adding s.40.1 to the Public Service Employment Act, R.S.C. 1985, c.P-33 (now repealed). Currently, see Public Service Employment Act, S.C. 2003, c.22, s.125 [“PSEA”]. 168 See, for example, PSEA, supra at s.126 (designating the Clerk as head of the public service); FAA, supra at Schedule VI, designating the Clerk as “accounting officer” for the PCO the purposes of that Act; Library and Archives of Canada Act, S.C. 2004, c.11, ss.12(3), 15 (assigning duties to the Clerk in respect of archived cabinet confidences). In particular, the Clerk of the PCO has statutory duties and functions under the Statutory Instruments Act in relation to the examination, registration and publication of all statutory instruments issued by any part of the executive/administrative branch, and the Clerk thus plays a central role in operationalizing the public notice and intelligibility requirements implicit in the constitutional principle of the rule of law. See Statutory Instruments Act, R.S.C. 1985, c.S-22, ss. 2, 3-7; R. v. Steam Tanker “Evgenia Chandris” [1977] 2 S.C.R. 97 at 107-110; R. v. Michael (1988), 30 B.C.L.R. (2d) 54 at ¶8-12; R. v. Dang, [1994] B.C.J. No. 2081 at ¶14-28 (B.C. Prov. Ct.). 169 Currently, the Ministers within the Prime Minister’s portfolio are: Leader of the Government in the Senate; Minister for Intergovernmental Affairs, President of the Queen’s Privy Council for Canada and Minister for La Francophonie; Leader of the Government in the House of Commons; and Minister of State (Democratic Reform). See Privy Council Office (Canada), The Role and Structure of the Privy Council Office (Ottawa: PCO, 2010) at 1. 170 Role and Structure of the Privy Council, supra at 1; Meeting the Expectations of Canadians, supra at 20-21. 171 Responsibility in the Constitution, supra at 41-52; Order in Council, P.C 1962-240 (February 22, 1962). 172 FAA, supra at Schedule I.1, recognizing the Prime Minister as the “appropriate minister” in respect of the PCO. See also Meeting the Expectations of Canadians, supra at 21 (“The Privy Council Office is the prime minister’s department.”) - 35 -
responsibility. For each of the twenty departments now listed in Schedule I of the FAA, there is a Minister with statutory responsibility, who “presides” over the department, “holds office during pleasure”, and “has the management and direction of the Department”. This statutory language is consistent across all twenty departments. Departments are thus distinguished in law from other types of governmental bodies, in terms of the direct legal control ascribed to the responsible minister.173 Consistent with this high degree of ministerial control and responsibility, the duties, functions and powers of departments are assigned to the Minister; without Ministers, the departments would have little if anything to do.174 The centrality of the Minister is also reflected in the established doctrine that a department does not have a legal personality, cannot hold property or assume rights or obligations, and cannot incur direct liability.175
[83] Ministerial portfolios may be created by executive action, pursuant to the Ministries and Ministers of State Act (MMSA).176 Under the MMSA, new Ministries of State can be established by the Governor in Council by proclamation, after approval by the House of Commons.177 Consistent with the conventions of responsible government and the requirements of the rule of law, the MMSA requires that new ministries created through this mechanism be organized around a “presiding” responsible minister, who is assigned the particular powers, duties and functions associated with the subject-matter portfolio and “has the management and direction” of the
173 The phrase “has the management and direction” is employed in only 23 federal statutes, and is associated with a “presiding” Minister in all these 23 occurrences. In addition to the statutes constituting the 20 departments listed in Schedule I of the FAA, the phrase is employed in only three other statutes: Ministries and Ministers of State Act, R.S.C. 1985, c. M-8, s.7(2) (permitting the creation of a Ministry of State presided over by a Minister of State); Public Health Agency of Canada Act, S.C. 2006, c.5, s.4 (directing that the Minister “has the management and direction” of the Public Health Agency of Canada, established “for the purpose of assisting the Minister in exercising or performing the Minister’s powers, duties and functions in relation to public health” (s.3)); and Northern Pipeline Act, R.S.C. 1985, c.N-26, s.5(2) (directing that the Minister “has the management and direction” of the Northern Pipeline Agency). 174 Some duties and functions in relation to departments are now assigned to Deputy Ministers as “accounting officers” under the FAA and as “deputy heads” under the PSEA: see, for example, FAA, supra at ss.16.1, 16.4(1), 62; PSEA, supra at s.15. These provisions do not, however, directly provide the Deputy Minister with any subject-matter powers to exercise. 175 Canada (Conseils des Ports Nationaux) v. Langelier, [1969] S.C.R. 60 at 70-72; René Dussault and Louis Borgeat (trans. by Murray Rankin), Administrative Law: A Treatise, 2nd ed., Vol. 1 (Toronto: Carswell, 1986) at 85; Williams v. Canada (Attorney General) (2005), 257 D.L.R. (4th) 704 at ¶18-43 (Ont. S.C.J.), varied on appeal but not on this point (2009), 310 D.L.R. (4th) 710 (Ont. C.A.), leave to appeal ref’d with costs [2009] S.C.C.A. No. 298. 176 The MMSA now structures the exercise of the royal prerogative concerning the creation of new portfolios. See Ministries and Ministers of State Act, R.S.C. 1985, c. M-8 [“MMSA”], first enacted as Part IV of the Government Organization Act, 1970, R.S.C. 1970 (2nd sup.), c.14. 177 MMSA, supra at ss.2, 6. Such proclamation is required to “state the name of the ministry, specify the matter or matters in relation to which the minister for the ministry is to formulate and develop policies; and specify the powers, duties and functions to be assigned to the minister for the ministry in relation to the formulation and development of those policies”: see MMSA, s.3. - 36 -
Ministry.178 In recent history, numerous Ministries of State have been formed and terminated using the mechanism set out in the MMSA, rather than by stand-alone legislation.179
[84] The MMSA also provides for the appointment of Ministers of State “to assist any minister or ministers having responsibilities for any department or other portion of the federal public administration in the carrying out of those responsibilities”.180 Such Ministers of State, historically referred to as “Ministers without portfolio”, are a consistent feature of most cabinets since confederation.181 Today, under the MMSA, a Minister of State is appointed by Order in Council and assigned to assist another Minister. The MMSA stipulates that in providing this assistance, the Minister of State “shall make use of the services and facilities of the department or portion of the federal public administration concerned”,182 and some departmental statutes specifically provide for delegation of the Minister’s powers, duties and functions to a Minister of State.183 In relation to the functions he or she performs to assist the Minister, a Minister of State therefore becomes legally associated with the department or government institution.184
[85] Thus, under our system of cabinet government, not all Ministers preside over departments, and ministerial functions may in practice be exercised by Ministers whose legal authority is not founded upon “ha[ving] the management and direction” of a department. Such Ministers are appointed and exercise functions through at least three different statutory mechanisms. First, a Minister may be appointed to a ministerial position created under
178 MMSA, supra at s.7. 179 For example: the Ministry of State for Social Development was created under the authority of the MMSA by virtue of Order in Council P.C. 1980-1692, under the direction of the first Minister of State for Social Development, the Hon. Jean Chrétien; the Ministry was abolished by Order in Council P.C. 1984-3037 (SOR/84-757). The Ministry of State for Science and Technology was established under the MMSA by Order in Council P.C. 1971-1965; in 1990, it was terminated by SOR/90-152 under the MMSA, and absorbed into the Department of Industry, Science and Technology pursuant to Order in Council P.C. 1990-361, also under the MMSA. Both of these Ministries of State were, during the relevant periods, subject to ATIA: see Schedule I of ATIA as originally enacted by S.C. 1980-81-82, c.111. 180 MMSA, supra at s.11. 181 Guide to Canadian Ministries, “About the Guide – Ministers without Portfolio”, supra. In the current cabinet, 15 Ministers draw their legal responsibilities in whole or in part from appointments under the MMSA. See Table A, “Responsibilities and institutional affiliation of ministers within current ministry (cabinet)”, Appellant’s Books of Authorities. 182 MMSA, supra at s.12. 183 See, for example, Bank Act, S.C. 1991, c.46, s.979, Cooperative Credit Associations Act, S.C. 1991, c.48, s.464 and Canadian Payments Act, R.S.C. 1985, c.C-21, s.48 (permitting delegation by the Minister of Finance to a Minister of State). 184 See Beauchamp v. Canada (Junior Minister of Finance) (1989), 30 F.T.R. 318 (T.D.). - 37 -
departmental legislation, but does not thereby preside over the department in question.185 Second, pursuant to the MMSA, a Minister may be appointed as a Minister of State to assist another Minister, and may even be assigned responsibility for a specific agency that falls within the portfolio of the Minister in question.186 Third, a Minister may be appointed to a position created by statute but not formally associated with a specific department.187 In each case, regardless of the mechanism employed, the Minister exercises powers, duties and functions assigned by statute and/or statutory instrument, and is legally responsibility for those functions.
[86] Within departments, a myriad of branches, divisions, sections and units exist to organize the administrative work and services of the department. In some cases, provision for a particular body is made in the departmental statute, when a degree of permanence and formalized reporting lines are considered structurally necessary.188 In most cases, however, the division or branch is established through internal policies or arrangements, and simply forms part of the department under the responsibility of the presiding Minister.
185 For example, the ministerial positions of the Minister of International Trade and the Minister of International Cooperation are created under the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c.E-22, ss.3-5, but the Minister of Foreign Affairs presides over, and has the management and control of the Department of Foreign Affairs and International Trade, pursuant to s.2 of the Act. The Minister of International Trade is specifically assigned certain duties and functions under s.12 of the Act, while the Minister of International Cooperation is not specifically assigned any duties under the Act (although other legislation does assign certain functions to this ministerial position). See also the Minister of Labour, created under the Department of Human Resources and Skills Development Act, S.C. 2005, c.34, s.18. 186 For example, the Minister of State assigned responsibility for the Federal Economic Development Agency for Southern Ontario, who assists the Minister of Industry (SI/2009-86 (P.C. 2009-1441), C.Gaz.2009.II.1776), or the Minister of State assigned responsibility for Status of Women Canada, which is a separate entity established by Order in Council under the portfolio of the Minister of Canadian Heritage (see SI/1976-44 (P.C. 1976-779), C.Gaz.1976.II.1262 and Schedule I.1 of the FAA), but is generally overseen by a Minister of State (currently the Hon. Rona Ambrose, who is also the Minister of Public Works and Government Services). Similarly, certain Ministers of State are appointed to assist the Prime Minister with respect to certain areas, and in providing this assistance make use of the resources of the Privy Council Office (for example, the Hon. Steven Fletcher, Minister of State (Democratic Reform), was appointed pursuant to the MMSA to assist the Prime Minister: see SI/2008-124 (P.C. 2008-1718), C.Gaz.2008.II.2282). 187 For example, ministerial positions created by statute but not assigned to the Minister associated with a particular line department include the Minister of the Atlantic Canada Opportunities Agency (under Atlantic Canada Opportunities Agency Act, S.C. 1985, c.41 (4th Sup.)), the Minister for the Canadian Wheat Board (under Canadian Wheat Board Act, R.S.C. 1985, c.C-24), the Minister for the Economic Development Agency of Canada for the Regions of Quebec (under Economic Development Agency of Canada for the Regions of Quebec Act, S.C. 2005, c.26) and the Minister for the National Capital Commission (under the National Capital Act, R.S.C. 1985, c.N-4). 188 For example, the National Defence Act, R.S.C. 1985, c.N-5 provides for the appointment of Judge Advocate General, and establishes the Canadian Forces and Communications Security Establishment, and provides that the Judge Advocate General, the Chief of the Defence Staff and the Chief of the Communications Security Establishment are responsible to the Minister directly (and not through the Deputy Minister): see ss. 9-10.1, ss.14-16, 18 and ss.273.62 respectively. The Office of the Inspector General of the Canadian Security Intelligence Service is established by s.30 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c.C-23, and is responsible to the Deputy Minister. - 38 -
[87] In the pursuit of particular policy goals, the executive may choose to carve out one or more pieces of existing departments, and recombine them into new institutions, or to create a new institution that functions with a degree of independence that might be unavailable or inappropriate if the institution forms part of a department. In this way, many governmental bodies are created by the executive and empowered to exercise certain functions, within the portfolio of a particular Minister, although not within a department.189 Such organizations are generally established by statute, or occasionally by Order in Council.190 They are not, however, established informally, in the way that divisions or units within a department may be organized. Constituting legislation, or a paper trail of statutory instruments, authorizes the existence and activities of such bodies, and specifies the relationship between the institution and the responsible Minister.
[88] The legal relationship between the institutions of the executive/administrative branch and the designated Ministers varies widely, in terms of the degree of control and responsibility ascribed to the Minister in question. As Table 1 shows, this variation across the continuum between ministerial control and institutional independence is in part specified through the use of particular language in the constituting legislation of the institution, through the structural features and powers of the institution (such as, for example, quasi-judicial functions), and through placement in the schedules of the FAA. In functional terms, the increasing independence of an institution is thus generally authorized by and reflected in a constellation of statutory indicia.
189 Numerous bodies of this kind are listed in Schedules I.1, II and III of the FAA, and still others exist that are even more tenuously associated with the centre of the executive branch. Examples include the Asia-Pacific Foundation of Canada (established by the Asia-Pacific Foundation of Canada Act, R.S.C. 1985, c.A-13), the International Centre for Human Rights and Democratic Development (International Centre for Human Rights and Democratic Development Act, S.C. 1985, c.54 (4th Sup.)), the Canada Millennium Scholarship Foundation (established by the Budget Implementation Act, 1998, S.C. 1998, c.21) and the First Nations Tax Commission and First Nations Financial Management Board (both established by the First Nations Fiscal and Statistical Management Act, S.C. 2005, c.9). Marshall describes this trend as a break between ministerial answerability and control: see Marshall, supra at 77-79. See also Meeting the Expectations of Canadians, supra at 4-5, 11-13, 25-26. 190 For example, the Canadian International Development Agency (CIDA) was formed by a series of Orders in Council, and its existence has never been formalized by statute: see P.C. 1962-490 (designating the External Aid Office for the purposes of the Civil Service Act); P.C. 1968-1760, 1968-923 and 1968-1028 (changing the name of that Office to CIDA and designating it for the purposes of the FAA). More recently, the Federal Economic Development Agency for Southern Ontario (FEDASO) and the Canadian Northern Economic Development Agency (CanNor) were created by Orders in Council, out of the Southern Ontario Regional Economic Development Branch of the Department of Industry and the Northern Economic Development Branch of the Department of Indian Affairs and Northern Development: see SI/2009-74 and SI/2009-80 respectively. Pursuant to SI/2009-74, the Minister of Industry presides over the FEDASO, and is assisted in this regard by a Minister of State appointed pursuant to SI/2009-86. Pursuant to SI/2009-80, the Minister of Indian Affairs and Northern Development presides over CanNor. The President of each agency was designated as “accounting officer” and “deputy head” for the purposes of the FAA and PSEA, and the agencies thus fall outside the departments: see SOR/2009-242, SOR/2009-247, SI/2009-76, SI/2009-82. - 39 -
[89] Under the Public Service Rearrangement and Transfer of Duties Act (PSRTDA),191 the FAA and the PSEA, a reorganization of the administrative institutions of the executive branch can be effected without the need for legislation, and without creating a new Ministry of State under the MMSA.192 While such reorganization is under the control of the executive, it is also very much regulated by legal rules. The Orders in Council employed to effect such a reorganization highlight once again the central role of Ministers in the institutional organization of the executive/administrative branch. Ministers function as the pivot around which the reorganization occurs: by transferring “control and supervision” of portions of a particular department from one Minister to another under the authority of the PSRTDA, the powers, functions and duties associated with that portion of the department, as well as the associated personnel, are transferred as a matter of law.193
[90] The institutional (re)organization of the executive/administrative branch is thus regulated by interlinked statutory provisions and positive legal rules, all of which depend upon ascribing certain duties, functions and powers to designated Ministers, and thereby give effect to the legal principles of ministerial responsibility and the requirements of the rule of law. The convention- based institutions at the apex of the executive branch also conform to these legal principles, in that the executive powers of the Crown are exercised by and on behalf of responsible Ministers, and any changes to the conventional responsibilities of these institutions occurs by way written legal instruments that conform to and rely upon the reorganization mechanisms set out in the MMSA, PSRTDA, FAA and PSEA. When an institution is intended to exercise powers with a degree of independence from ministerial control, this intention is specified expressly.
Reconciling individual ministerial responsibility with modern government: The legal doctrines relating to the devolution of executive powers and public service neutrality [91] The manner in which the political executive may interact with the administrative arm of government, and the manner in which functions assigned to the executive by statute are exercised, are also regulated by legal rules and restrictions. Principal among these rules are the
191 Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c.P-34 [“PSRTDA”]. The legislative history of the PSRTDA, which dates back to 1918, is discussed in Malkin, supra at ¶36-37. 192 The relevant statutory provisions are PSRTDA, supra, ss.2-3; FAA, supra, s.3; PSEA, supra, s.132. 193 See, generally, Malkin, supra. See also Public Service Alliance of Canada v. Canada (Canadian Food Inspection Agency) (2005), 343 N.R. 334 (F.C.A.); Branigan v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 305 at ¶10-15 (F.C.); Nalliah v. Canada (Solicitor General), [2005] 3 F.C.R. 210 at ¶9 (F.C.); Say v. Canada (Solicitor General), [2006] 1 F.C.R. 532 at ¶2, 23-32 (F.C.), aff’d (2005) 345 N.R. 340 (F.C.A.). - 40 -
Carltona doctrine, adopted by this Court in Harrison194 and now codified in s.24(2) of the Interpretation Act,195 and the convention of public service neutrality. As this Court has found, these principles are integral to the constitutional convention of ministerial responsibility and the principle of responsible government.196
[92] “Ministerial responsibility” incorporates three central concepts: responsibility, accountability and answerability.197 “Responsibility” refers to the “field within which a public office holder (whether elected or unelected) can act”198 and is defined by the constitutional relationship between ministers, their officials, and Parliament. “Accountability” requires an office holder to “inform and explain how and how well responsibilities or powers or authority have been exercised.” Accountability encompasses the political responsibility of ministers to Parliament for their decisions, and the decisions made by officials within their department and may require a minister to accept personal consequences for improper decisions. “Answerability”, by contrast, requires ministers to provide information to Parliament on the use of powers by those within their department, but does not involve accepting personal consequence.199 Because ministers exercise different degrees of control over the different institutions and office holders within their portfolios, the degree to which they are “responsible”, “accountable” and “answerable” is variable. For example, ministers are answerable to Parliament for independent tribunals, but they are not “accountable” for the tribunals’ decisions. This preserves both ministerial responsibility and the independence of quasi-judicial tribunals.
[93] The Carltona doctrine, arising out of a decision of the English Court of Appeal,200 was
194 R. v. Harrison, [1977] 1 S.C.R. 238; see also Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375; Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12. 195 Interpretation Act, R.S.C. 1985, c. I-21, s.24(2): “Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include… (d)…a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.” 196 Harrison, supra; Fraser, supra; OPSEU, supra; Osborne, supra. 197 Meeting the Expectations of Canadians, supra at 5. 198 Privy Council Office, Guidance for Deputy Ministers (2003) at p.3. See also James Ross Hurley, “Responsibility, Accountability and the Role of Deputy Ministers in the Government of Canada” in Restoring Accountability- Research Studies, Vol. 3 (Ottawa: Public Works and Government Services Canada, 2006) 115 at 125. 199 Hurley, supra at p. 126-128. 200 Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.). See, generally, Henry L. Molot, “The Carltona Doctrine and the Recent Amendments to the Interpretation Act” (1994) 26 Ottawa L. Rev. 257; Ann Chaplin, “Carltona Revisited: Accountability and the Devolution of Statutory Powers” (2007-2008) 39 Ottawa L. Rev. 495-535. - 41 -
the first articulation of the constitutional principle that “powers conferred on ministers within parliamentary systems of government are normally exercised by responsible departmental officials”.201 Recognizing that it would be impossible in a modern Westminster-style government to require ministers personally to make every decision authorized to them by statute, the Court held that ministers could properly devolve their decision-making authority to officials within their departments. This devolution, however, is expressly limited by principles of accountability, responsibility and answerability. In an oft-cited passage, Lord Greene held for the Court: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them…The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally the decision of such an official is, of course, the decision of the minister. The Minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that to Parliament. The whole system of departmental organization and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against him.202
[94] Lord Greene recognized that while administrative expediency required the devolution of ministerial authority to persons other than the minister, ministerial responsibility required that statutory power only be devolved to a “responsible official of the department.” More specifically, for the devolution of statutory power to be constitutionally permissible, the person exercising the Minister’s power must be (i) employed inside the hierarchy of the Minister’s department, and (ii) someone of appropriate standing within the department to competently perform the work. If the individual selected to exercise the Minister’s statutory authority is “inappropriate” – either because he or she is not in the department, or because he or she is too junior or does not have the necessary competence – that is an error for which the Minister is answerable to Parliament.
[95] Subsequent caselaw has refined the Carltona doctrine to clarify who may exercise a Minister’s statutory authority (a responsible departmental official), and also who may not do so,
201 R. v. NDT Ventures Ltd. (2001), 225 Nfld. & P.E.I.R. 181 at ¶82 (Nfld CA). 202 Carltona, supra at p.563 [emphasis added]. - 42 -
including departmental officials when they are acting in a non-departmental capacity,203 and other Ministers or officials from other departments.204 Similarly, certain ministerial powers may not be devolved at all and the Minister must exercise them personally.205 Further, where ministerial power has been improperly devolved, courts have held that the improperly-made decision is void.206 The Carltona doctrine has thus become entrenched not as a constitutional convention but as a legally enforceable rule. Where a minister improperly devolves power (or an official improperly purports to exercise ministerial authority), the minister will not only be politically accountable to Parliament, but also legally responsible in court.
[96] The Carltona doctrine therefore both enables and constrains the exercise of ministerial statutory power and the manner in which a minister’s functions are executed, all within the constitutional framework of responsible parliamentary government and ministerial responsibility.207 A corollary of Carltona, and equally integral to the constitutionally permissible exercise of ministerial power, is the convention of public service neutrality. Characterized as “central to the principle of responsible government”208, “an essential prerequisite of responsible government”209, and a “constitutional norm,”210 the existence of a neutral public service is critical to a minister’s confidence that department officials will adequately and professionally exercise his or her authority, regardless of their personal political affiliations. If the public service loses its political neutrality, “[m]inisters might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates” and might
203 See e.g. Woollett v. Minister of Agriculture and Fisheries, [1955] 1 Q.B. 103. 204 This is because “in bestowing a ministerial power, the legislative scheme conferring it is committing a specific executive function to the Minister whose portfolio is endowed with it”, NDT, supra at ¶89; see also Jackson Stansfield & Sons v. Butterworth, [1948] 2 All E.R. 558 (C.A.); H. Lavender & Son Ltd. v. Minister of Housing and Local Development, [1970] 3 All E.R. 871 (Q.B.D.). 205 In R. v. NDT, supra, the Newfoundland Court of Appeal held that the Carltona doctrine created a “rebuttable constitutional principle” which allowed for ministerial authority to be devolved, except where the construction of the enabling legislation indicates otherwise: see ¶82-88. 206 See R. v. Horne & Pitfield Foods Ltd.(1981), 30 A.R. 477, aff’d (1982), 20 Alta. L.R. (2d) 289 (C.A.), aff’d [1985] 1 S.C.R. 364. 207 R. v. NDT, supra at ¶65-66. 208 Osborne, supra at 86. 209 Ontario Public Service Employees’ Union v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at ¶86; Fraser, supra at 469-70. 210 Lorne Sossin, “Defining Boundaries: The Constitutional Argument for Bureaucratic Independence and its Implication for the Accountability of the Public Service” in Restoring Accountability-Research Studies, Vol. 2 (Ottawa: Public Works and Government Services Canada, 2006) 25. Sossin argues that the “constitutional convention of bureaucratic neutrality”, together with the rule of law, combine to create a “constitutional norm” of bureaucratic independence requiring separation between bureaucratic and political decision-making: p. 28-29. - 43 -
“select for positions of confidence only those whose sentiments were known to be in political sympathy with their own.”211 This in turn would lead to instability in the public service as the bureaucracy turned over with every change of political power. Public servants are therefore to be loyal and “sensitive to the government’s political agenda,” while nonpartisan in their political affiliations; “[p]ublic servants provide information on policies, while ministers defend these policies before Parliament and are responsible for dealing with partisan questions.”212
[97] Regulations protecting the impartiality of the public service are firmly entrenched in both the common law and statute. The Public Service Employment Act, for example, contains rules designed to prevent political patronage213 and also imposes constraints on public servants’ ability to run for public office.214 Deputy heads have specific responsibilities for safeguarding public service impartiality and must ensure that staffing activity is free from political influence.215 While the public service has a long tradition of allowing public servants to gain experience by participating in partisan work on behalf of a Minister, public servants are required to take an unpaid leave of absence in order to undertake such work.216
[98] While a neutral public service is essential to responsible government, it is also well established that ministers require the assistance of political staff to provide them with “strategic, partisan advice”, as well as assistance with parliamentary and constituency work.217 An “intermediate class of persons” who are “political rather than bureaucratic” yet “appointed rather than elected”, the existence of ministerial staff – who “operate in an area which strict
211 MacDonnell Commission as cited in OPSEU (1980), 31 O.R. (2d) 321 (C.A.), cited with approval by Dickson C.J. in Fraser, supra at p.471 and by Beetz J. in OPSEU, supra at ¶90; see also Osborne, supra at 97. 212 Public Service Commission, Public Service Impartiality: Taking Stock (Ottawa: Public Service Commission of Canada, July 2008) at ¶5.10-5.14. By contrast to the non-partisan role of public servants, a former clerk of the Privy Council described the role of exempt staff in the Prime Minister’s Office as “partisan, politically oriented, yet operationally sensitive”: Meeting the Expectations of Canadians, supra at 23. 213 See e.g. PSEA, ss. 30(1) and s.68. 214 PSEA ss.114, 115. 215 For example, if a deputy suspects political influence, he or she must report it to the Public Service Commission: Public Service Impartiality: Taking Stock, supra at ¶8.5. 216 Public Service Impartiality: Taking Stock, supra at ¶6.12-6.13. Public servants on such a leave of absence are to be distinguished from “departmental assistants” in a Minister’s office, who are public servants in the employ of their departments assigned to the Minister’s office, to assist the Minister in liaising with the department as well as to provide administrative support and general assistance to the Minister on departmental matters. See Accountable Government, supra at 38. 217 Meeting the Expectations of Canadians, supra at 22-23; René Dussault and Louis Borgeat, Administrative Law: A Treatise (2nd Ed) (Toronto: Carswell, 1985) at 86-88; J. R. Mallory, The Structure of Canadian Government (Revised Ed) (Toronto: Gage Publishing Company, 1984) at 122-123. - 44 -
constitutional theory does not recognize as existing”218 – originate in historical compromise. In return for giving up the right to patronage appointments in the public service, Ministers retained discretion to employ a personally-appointed but publicly-funded “private secretary”. This change was brought about by the 1918 Civil Service Act, which provided for the first time no civil servant should “engage in partisan work”219 but also that “any person may be appointed by a Minister…to be his private secretary.”220 Despite rapid growth in the number of ministerial staff since 1918, the ambiguous legal space occupied by “exempt staff” – so called because they are exempt from Public Service Commission of Canada staffing regulations221 – remains unresolved:
While ministerial staff operates in the above scenario as “proxy” for the Minister under an assumed authority from the Minister, Ministers cannot legally transfer their authority except through legislation. Any authority exercised by ministerial staff is therefore presumed rather than real..222 Parliament’s concerns regarding the practices of exempt staff have recently given rise to express statutory restrictions upon their activities.223 These statutory amendments, which follow upon recommendations by the Gomery Inquiry, can be understood as an attempt to reconcile through
218 J.R. Mallory: “The Minister’s Office Staff: An Unreformed Part of the Public Service” in (1967) 10(1) Canadian Public Administration 25 at 25. 219 Civil Service Act, 1918, 8-9 Geo. V, c. 12, s.32(1). The principle that civil servants should be promoted according to merit was introduced in legislation for the first time in the 1908 Civil Service Amendment Act. Both such changes arose from a Royal Commission struck in 1908 to assess political dominance in the civil service. 220 Civil Service Act, 1918, 8-9 Geo. V, c. 12, s.49(1). 221 Public Service Employment Act, S.C. 2003, c.22, s.128 [“PSEA”]; Public Service Staff Relations Act, R.S.C. 1985, c. P-35, s.2 [“PSSRA”] (note: this Act has been repealed; currently: Public Service Labour Relations Act (2003), c. 22, s.2); Commission of Inquiry into the Sponsorship Program, Who is Responsible? Fact Finding Report (Ottawa: Public works and Government Services Canada, 2005), chapter 3 at 38. Because exempt staff are not appointed by the Public Service Commission, they are not considered “employees” as that term is defined in s.2(1) of the PSEA. Exempt staff are, however, included within the scope of other legislation, such as the Public Sector Compensation Act S.C. 1991, c. 30, s.2(1) “employee”, s.3(1), s.3(2). The inclusion of exempt staff within the definition of “public service” depends on the legislative context. For example, the Public Service Superannuation Act’s definition of “public service” encompasses exempt staff, and exempt staff are subject to the Lobbying Act, R.S.C 1985, c.44 (4th Supp.) as amended (definition of “designated public office holder”) and the Conflict of Interest Act, S.C. 2006, c.9, s.2 (definition of “public office holder”). Members of ministerial staff are considered “former public servants” for the purposes of conflict of interest declaration forms created by certain government institutions. According to the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants, exempt staff are deemed “Crown servants”. ACDI-CIDA 300 (2000-11) Declaration Concerning Former Public Servant Status; Public Service Superannuation Act, R.S.C. 1985, c. P-36 , s.3(1) “public service”, ss.3(2) and 5(1); See also the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Sup.) s.2, 3 “employee” and s.4. 222 Liane Benoit, “Ministerial Staff: The Life and Times of Parliament’s Statutory Orphans, in Restoring Accountability – Research Studies, Vol. 1 (Ottawa, Public Works and Government Services Canada, 2006) 145 at 194-195. 223 As part of the Federal Accountability Act, S.C. 2006, c.9, new restrictions applicable to ministerial staff were introduced through the Conflict of Interest Act. In addition, changes were at the same time made to the Lobbying Act, rendering it applicable to ministerial staff, and certain advantages previously available to ministerial staff under the PSEA were repealed. See infra, notes 229 and 230. - 45 -
more formalized rules the needs of ministers for political staff with the constitutional limitations of legally permissible devolution of ministerial authority.
[99] Exempt staff are not part of the executive and may not exercise ministerial power: “The exercise of executive power requires legal authorization. Ministers receive this largely through legislation. Public servants receive it generally by being appointed to a position under the [PSEA] and the [FAA].”224 While, under the Carltona doctrine, ministerial authority devolves to appropriate members of the minister’s department, exempt staff cannot exercise statutory ministerial power because do not fall in the category of persons “appointed to serve, in the department or ministry of state over which the minister presides”.225 To preserve the political neutrality of public servants, ministers and their staff are instructed to respect the non- partisanship of public servants and to refrain from engaging them in work that is outside their appropriate role. Guides for Ministers, published since 2002, make clear that ministerial staff “do not have authority to give direction to public servants, but they can ask for information or transmit the Minister’s instructions”; ministerial staff also must “respect the non-partisanship of public servants and not seek to engage them in work that is outside their appropriate role”.226
[100] Despite such restrictions, ministerial staff frequently work closely with permanent departmental staff inside the minister’s office. Deputy ministers are charged with ensuring that appropriate boundaries are kept between public servants and ministers, members of Parliament and their staff.227 As Justice Gomery noted in his report on the sponsorship program, respect for and adherence to these boundaries is fundamental in upholding the constitutional structure of the
224 Meeting the Expectations of Canadians, supra at 23. 225 S. 24(2)(d), Interpretation Act, R.S.C. 1985, c. I-21, Prior to December 2006, exempt staff were entitled to a priority right appointment to public service positions. This right was eliminated as part of amendments brought about by the Federal Accountability Act, following a recommendation of the Gomery Commission: see Commission of Inquiry into the Sponsorship Program & Advertising Activities, Restoring Accountability: Recommendations (Ottawa: Public Works and Government Services Canada, 2006) at 138. 226 See Accountable Government, supra at 37-38. 227 See Accountable Government: A Guide for Ministers and Ministers of State 2008, supra. The Public Service Commission (PSC) has suggested the need to monitor the movement of exempt staff between ministers’ offices and the public service “so that they are undertaken in a transparent manner and uphold the principle of political impartiality.” In a 2007 audit of the movement of staff between the public service and ministers offices, the PSC identified a number of causes for concern, including that 44% of public servants who moved into positions in ministers’ offices occupied positions which, “because of the nature and profile of their duties…may present a greater risk (real or perceived) to political impartiality when returning to their home departments”. Among other things, the PSC recommended establishing a Treasury Board policy and clarifying PSC guidance on the movement of public servants to and from ministers’ offices: Canada, Audit of the Movement between the Federal Public Service and Ministers’ Offices (Ottawa: Public Service Commission, October 2007), URL: http://www.psc-cfp.gc.ca/adt- vrf/rprt/2007/mbmo-mecm/mbmo-mecm-eng.pdf, p. 17, 19. - 46 -
rule of law.228 Based on his recommendations, in 2006 Parliament introduced the Conflict of Interest Act,229 and amended the Lobbying Act.230 Significantly, both of these Acts now specifically apply to ministerial staff.231
[101] Combined, the Carltona doctrine and the convention of public service neutrality both enable and define the exercise of ministerial statutory power and allow for the public service to effectively carry out the political decisions of the executive within a constitutional framework. These rules for the exercise of ministerial authority define the constitutionally permissible interaction between the executive branch and administrative apparatus of government, creating a careful balance between administrative expediency and ministerial responsibility.
The Access to Information Act as a statutory, quasi-constitutional accountability mechanism [102] As discussed in the above sections, a host of enforceable legal rules exist to structure the the institutional organization of, and the exercise of powers by, the executive/administrative branch. The Appellant submits that the right of access and apparatus created by ATIA are meant to be integrated into these legal rules, and thus constitute a statutory scheme intended by Parliament to function as a supplementary mechanism to ensure accountability for the exercise of executive power.
[103] In Dagg, this Court drew a connection between access to information rights and the diffuse exercise of executive power within the modern administrative state: As society has become more complex, governments have developed increasingly elaborate bureaucratic structures to deal with social problems. The more governmental power becomes diffused through administrative agencies, however, the less traditional forms of political accountability, such as elections and the principle of ministerial responsibility, are able to ensure that citizens retain effective control over those that govern them.232
228 Restoring Accountability: Recommendations, supra at 197 229 The Conflict of Interest Act, introduced by the Federal Accountability Act, S.C. 2006, c.9, s.2, establishes conflict of interest and post-employment rules for public office holders and requires disclosure of assets by certain office holders, including Ministers and ministerial staff. 230 The Lobbying Act, R.S.C, 1985, c.44 (4th Sup.) as amended by S.C. 2006, c.9, ss.66-88.2, brings about significant changes to the prior Lobbyists Registration Act, for example by creating a Commissioner of Lobbying, restricting certain senior officer holders, including Ministers, from lobbying for 5 years, and requiring monthly disclosure of certain information from lobbyists. As part of these changes, the category of “designated public office holder” – which includes ministerial staff – was introduced, and restrictions governing the activities of this class of persons were added. 231 See s.2(1) of the Lobbying Act, R.S.C, 1985, c.44 (4th Sup.) (as amended by S.C. 2006, c.9, s.67(2)), definition of “designated public office holder” and s.2(1) of the Conflict of Interest Act S.C. 2006, c.9, definitions of “public office holder” and “reporting public office holder”. 232 Dagg, supra at ¶60 (per La Forest J., dissenting but not on this point). - 47 -
Similarly, in introducing ATIA for second reading, the sponsoring Minister emphasized that the “access legislation will be an important tool of accountability to Parliament and the electorate”.233
[104] Recent amendments to ATIA reinforce this interpretation. In 2006, amendments to ATIA were introduced as part of “An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability”, also known as the Federal Accountability Act.234 This legislation made two notable changes to ATIA. First, the broad intended meaning of “record” in the context of the right of access was confirmed.235 Second, the definition of “government institution” was amended and the scope of ATIA broadened, by extending the right of access to Crown corporations and certain officers of Parliament.236 The Federal Accountability Act thus confirmed Parliament’s intention that ATIA function to support other existing accountability mechanisms.
[105] This intention has been evident since ATIA’s enactment. Schedule I of ATIA has always included the core institutions through which federal executive/administrative power is exercised: the departments, through which most ministerial powers are exercised; the Treasury Board Secretariat, through which the powers of the Treasury Board are exercised; and the PCO, through which the powers of cabinet and the Prime Minister are exercised. When new departments or Ministries of State have been created or abolished, Schedule I of ATIA has invariably been amended at the same time, thus ensuring that the exercise of executive/administrative power at the highest levels remains subject to ATIA.237
233 House of Commons Debates, Vol. VI (29 January 1981) at 6692 (Hon. Francis Fox). 234 Federal Accountability Act, S.C. 2006, c.9. 235 See Federal Accountability Act, supra at s.141(1), wherein the definition of “record” in s.3 of ATIA was changed to “‘record’ means any documentary material, regardless of medium or form”. The previous definition, which had been remained the same since the enactment of ATIA in 1982, was as follows: “‘record’ includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof.” 236 See Federal Accountability Act, supra at ss.141(2), 142-172. For the purposes of ATIA, the definition of “Crown corporation” is that set out in s.83 of the FAA: see part (b) of definition of “government institution” in s.3 of ATIA. The latter amendment implemented recommendations made by the Gomery Commission: See Commission of Inquiry into the Sponsorship Program & Advertising Activities, Restoring Accountability: Recommendations, supra at 182; Alasdair Roberts, “Two challenges in administration of the Access to Information Act” in Restoring Accountability – Research Studies, Vol. 2 (Ottawa: Public Works and Government Services Canada, 2006) 115 at 143-149, 156. 237 For example, in 2006, pursuant to the PSRTDA, the Department of Social Development and the Department of Human Resources and Skills Development were amalgamated under one Minister, styled Minister of Human - 48 -
[106] With respect to the other institutions of the executive/administrative branch, while inclusion within Schedule I of ATIA has not historically been based upon any stated objective criteria,238 a trend can be identified, particularly since the 2006 amendments: the bodies more closely associated with ministerial powers, and more directly subject to executive direction and control, are subject to ATIA. Comparing the institutions listed in the Schedules to the FAA and those subject to ATIA is instructive in this regard. For the purposes of budgetary and program delivery oversight, as well as human resources management, the FAA creates a number of overlapping categories of institutions; institutions falling within a particular category are subject to certain regulatory and accountability mechanisms under the FAA and PSEA, while those not listed are not. These FAA categories provide a ready list of the institutions most closely associated with the federal executive, from ministerial departments through Crown corporations and separate agencies. As shown in Table 2, ATIA applies to almost all institutions most closely associated with the federal executive branch; with only a very few exceptions,239 the institutions listed in the FAA that are not subject to ATIA are all institutions directly associated with the judicial branch, which must function separate from the executive in order to comply with the constitutional principles of judicial independence and the separation of powers.240
[107] In addition to the institutions listed in the FAA, Parliament has chosen to make ATIA applicable to certain other institutions that are more tenuously associated with the executive branch. Table 3 identifies and categorizes the institutions listed in Schedule I of ATIA that are not also listed in one of the schedules to the FAA. In respect of some of the institutions named in Table 3, inclusion in Schedule I of ATIA represents a policy choice by Parliament, to subject an autonomous institution – that is either created by separate constituting legislation,241 or exists
Resources and Social Development: see SI/2006-10 (P.C. 2006-37), C.Gaz.2006.II.103. The constituting legislation in respect of these two departments has to date not been amended, and both departments are still listed in Schedule I of FAA: see Department of Social Development Act, S.C. 2005, c.35 and Department of Human Resources and Skills Development Act, S.C. 2005, c.34. However, Schedule I to ATIA and the Privacy Act were amended at the same time as the amalgamation, by Orders in Council: see SOR/2006-10 (P.C. 2006-38), C.Gaz.2006.II.79 and SOR/2006-25 (P.C. 2006-39), C.Gaz.2006.II.80. 238 See discussion in Jerry Bartram, “Report 12: The scope of the Access to Information Act – Developing consistent criteria for decisions respecting institutions”, Report prepared for the Access to Information Review Task Force, July 2001, available at
entirely separate from government242 – to the additional accountability mechanism of ATIA. For others, specific inclusion in Schedule I is arguably superfluous, as the institution forms part of a larger institution that is itself subject to ATIA.243
[108] The Appellant submits that the consistency and coherence noted above between the FAA and ATIA is meaningful, and underscores the conclusion that ATIA is intended to operate within the body of constitutional and statutory legal rules that govern the organization of and exercise of powers by the executive/administrative branch. In general, Parliament is presumed to intend to create coherent statutory schemes, and to draft new provisions with regard to the structures and substantive law embodied in existing legislation.244 In Bell ExpressVu, this Court observed that “where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive”.245 The Appellant submits that ATIA is indubitably part of a larger scheme: the legal framework of constitutional and statutory rules set out in detail above.
(iii) Permissible use of expert evidence concerning the legal framework of executive/administrative government [109] The record in these appeals includes expert political science evidence. The reliance on expert evidence originated in the Federal Court applications brought by the Respondent in 2001 in respect of three of the underlying access requests, in which the Respondent sought to forestall the Information Commissioner’s investigations, inter alia by seeking a declaration that the records in question were under the control of the PMO and Minister of National Defence, and hence not under the control of the PCO or DND respectively.246 In support of its request for declaratory relief, the Respondent filed an affidavit from Nicholas d’Ombrain, a retired senior member of the Public Service of Canada and consultant on the machinery of government and public sector management.247 The Information Commissioner met with Mr. d’Ombrain as part of statute, or certain foundations created by statute. 242 For example, the Pierre Elliot Trudeau Foundation. 243 For example, the Office of the Comptroller General. 244 R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 at ¶30, 50-51; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 at 632-635; Sullivan, supra at 223-225, 411-414. 245 Bell ExpressVu, supra at ¶27. In interpreting the Radiocommunication Act in Bell ExpressVu, this Court referred to and relied upon the broader context and objectives evidenced in the Broadcasting Act and the Copyright Act: Ibid. at ¶44-52. 246 Canada (Attorney General) v. Canada (Information Commissioner), [2002] 3 F.C. 606 at ¶4; Canada (Attorney General) FC#2, supra at ¶15. 247 Canada (Attorney General) FC#2, supra at ¶101-102. - 50 -
his investigation, and was provided with copies of the same affidavit as had already been filed with the Federal Court.248 The Information Commissioner subsequently sought advice, including with respect to Mr. d’Ombrain’s opinions, from another political science expert, Professor Donald Savoie.249 Professor Savoie ultimately also prepared a report for the Information Commissioner,250 which the Commissioner referred to in his s.37 reports.251
[110] The Appellant submits that it was entirely appropriate for expert political science evidence to be considered at the investigatory stage. Investigations by the Commissioner under ATIA are properly wide-ranging, are not constrained by the usual rules of evidence, and ultimately are intended to serve the many aspects of the Commissioner’s role as an ombudsperson providing recommendations to government.252 Different considerations necessarily apply, however, when a court is required to provide an authoritative interpretation of a statutory provision. In this latter context, two separate legal doctrines apply to constrain the permissible use that may be made by the court of the expert evidence. First, opinion evidence is inadmissible with respect to questions of domestic law, as the interpretation and articulation of domestic law lies at the very heart of the judicial function.253 Second, and related, expert evidence tendered to prove the ordinary meaning of legislative terms is generally inadmissible.254 The Appellant respectfully submits that both the Federal Court and the Court of Appeal failed to
248 D’Ombrain Transcript dated Feb 11, 2002 at p.4, Exhibit 24 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.315 [“D’Ombrain Transcript #1”]; Affidavit of Nicholas d’Ombrain sworn May 3, 2001, Exhibit B to D’Ombrain Transcript #1, AR, Vol. 2, p.411-424 [“D’Ombrain Affidavit”]. In addition, the cross-examination of Mr. d’Ombrain that was conducted as part of the Federal Court applications is included in the record of the within appeals, as this cross-examination occurred before the Information Commissioner concluded his investigation: see D’Ombrain Transcript dated July 7, 2003, Exhibit 22 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.204 [“D’Ombrain Transcript #2]. 249 Savoie Transcript dated Oct 15, 2001, Exhibit A to Affidavit of Geoffrey White (#2) sworn Oct 27, 2006, AR, Vol. 9, p.3 [“Savoie Transcript”]. 250 Affidavit of Donald Savoie sworn Sept 19, 2005, AR, Vol. 2, p.25-46. 251 Revised s.37 letter to the Minister of National Defence, Exhibit 30 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 3, p.302, 305-306, 315; Letter from the Information Commissioner to the Minister of Transport, Exhibit 18 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 9, p.243-244, 248, 257; Letter from the Information Commissioner to the head of the RCMP, Exhibit 19 to Lanthier Affidavit sworn Dec 21, 2005, AR, Vol. 11, p.183- 184; Letter from the Information Commissioner to the Prime Minister, Exhibit 29 to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. 14, p.208-209, 213, 218-219. 252 Heinz, supra at 81-87, 103 (per Bastarache J. dissenting); Canada (Information Commissioner) v. Canada (Minister of National Defence) (1999), 240 N.R. 244 at ¶27 (F.C.A.); Rowat v. Canada (Information Commissioner) (2000), 193 F.T.R. 1 at ¶28, 32 (F.C.); Canada (Attorney General) FC#2, supra at ¶27-32, 78-81, varied on appeal but not on this point [2005] 4 F.C.R. 673 (C.A.). 253 R. v. Century 21 Ramos Realty Inc. (1987), 32 C.C.C. (3d) 354 at 367 (Ont. C.A.), leave to appeal refused 38 C.C.C. (3d) vi (S.C.C.); Alan W. Bryant, Sidney Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant – The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis Canada Inc., 2009) at 832-833. 254 Sullivan, supra at 38-39. - 51 -
adhere to these principles in interpreting ATIA.
[111] The Federal Court commenced its application of the principles of statutory interpretation by inquiring into “the ordinary meaning according to the experts”, and concluded that “the evidence demonstrates that in the ordinary sense of the words in subsection 4(1) of the Act, the PMO and the relevant ministerial offices are not part of the ‘government institution’ for which they are responsible”.255 The Court of Appeal confirmed this conclusion, stating that the “well understood convention” regarding the distinction between government departments and ministerial offices constituted “an understanding of the structure of government [that] forms an important part of the factual context in which the Access to Information Act was drafted and should be interpreted”. According to the Court of Appeal, reference to this “factual context” “explains Justice Kelen’s reliance on the expert evidence to which he referred when engaged in the exercise of statutory interpretation”.256
[112] Both the Federal Court and the Court of Appeal viewed the central issue of the reach of a “government institution” as a question of fact, to be determined primarily if not entirely on the basis of expert evidence. The courts below did not at any point seek to determine what was included within a “government institution” as a matter of law, or what measure ought to be adopted in determining its scope. Rather, the courts below simply accepted the Respondent’s assertion that a ministerial office is separate from the department over which the Minister presides. This approach could only be taken by treating the organizational practices of the executive/administrative branch as matters of pure empirical fact, to be determined without regard to constitutional, statutory and common law legal rules.
[113] The Appellant submits that by proceeding in this manner the courts below erred in law. As the preceding sections have demonstrated, the organization of and exercise of powers by the executive/administrative branch are shaped and constrained by enforceable legal rules derived from constitutional and statutory sources. As a matter of law, these rules cannot simply be disregarded in favour of the experiences of public servants or the expert theory of political scientists and historians. When a court is charged with interpreting a statute, it is the legal rules that must be given priority.
255 FC Reasons, ¶50-51 and accompanying heading, AR, Vol. 1, p.24-25. 256 FCA Reasons #1, ¶7, AR, Vol. 1, p.122. - 52 -
[114] Once the courts below had mistakenly concluded that organizational practices were matters of empirical fact, not legal and normative regulation, the courts below were further misled by the evidence of the participants, who had largely shaped their document-management practices to conform to their conception of the proper organizational structures which they were seeking to advance and have recognized. The Appellant respectfully submits that the courts below did not properly appreciate that they were not bound to accept this conception, and in fact were constitutionally obliged to subject it to critical interrogation. With respect, this omission alone constitutes an error of law.
(iv) There is no evidence of the Court of Appeal’s “well understood convention” [115] In interpreting statutory provisions, courts must have regard to the presumptions that apply to resolve ambiguities in legislative texts. For example, sources that enjoy entrenched constitutional status will generally prevail over other sources.257 In addition, legislation is presumed to be enacted in compliance with constitutional norms, so that any ambiguities are to be resolved in favour of an interpretation that gives effect to constitutional norms.258 Similarly, Parliament is presumed not to depart from the existing general structure or system of law without clearly expressing an intention to do so.259 These rules of statutory construction assist in interpreting legislation in a manner that respects Parliament’s intent, while also fulfilling the court’s responsibilities as guardian of the constitution.
[116] The Appellant submits that the Court of Appeal erred in principle by summarily identifying a “well understood convention”, and by permitting this purported “convention” to overshadow all other considerations. In proceeding in this manner, the Court Appeal erroneously accorded constitutional weight to a disputed, ill-defined and inconsistently followed practice, and thereby discounted other legal rules that are of established constitutional importance.
[117] As noted above,260 courts have on occasion recognized constitutional conventions in the course of applying existing law, without treating those conventions as directly enforceable. For example, in OPSEU, this Court and the Ontario Court of Appeal referred to the convention of
257 Sullivan, supra at 351-352; Vaid, supra at ¶33-34 (describing the exceptional circumstance in which federal legislation to enact parliamentary privileges is not subject to Charter review, as this legislation “enjoys the same constitutional weight and status as the Charter itself” [emphasis original].) 258 R. v. Rodgers, [2006] 1 S.C.R. 554 at ¶18-20; Sullivan, supra at 462-465. 259 Parry Sound (District) Social Services Administration Board v. Ontario Public Services Employees Union, [2003] 2 S.C.R. 157 at ¶39-41; Sullivan, supra at 453-455, 482-483. 260 See supra at paragraph 65. - 53 -
public service neutrality in determining that legislation preventing provincial civil servants from engaging in certain federal political activities was not ultra vires the province.261 Similarly, in Blaikie, this Court relied on the constitutional conventions regarding the appointment of ministers and the necessity of maintaining the individual and collective confidence of the legislature in concluding that the government of a province “has a constitutional status and is not subordinate to the legislature in the same sense as other provincial legislative agencies established by the legislature”.262 In both of these cases, it was the constitutional nature of the practice in question – its status as a convention, and not merely a common usage or a practice of convenience – that permitted it to be accorded this weight.
[118] As noted above, this Court has adopted Jennings’ three-part test for a constitutional convention: “first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?”263 All three aspects of the test must be satisfied, as these constitute “objective requirements” that serve to distinguish a constitutional convention “from rules of morality, rules of expediency and subjective rules”.264 In the appeals at bar, there is simply no evidence to satisfy any of the branches of Jennings’ test, and there is no basis upon which the purported “convention” identified by the Court of Appeal could be judicially noticed.265
[119] First, there is no evidence in the record from which one could ascertain the relevant body of precedent in relation to the establishment and organization of ministerial offices. The evidence was either directed at the specific practices in the institutions at issue in the narrow periods in question or was pitched at a level of generality that was intentionally disconnected from the facts of any particular case. The Appellant submits that the limited available evidence concerning the
261 OPSEU, supra at 40, 41-45 (per Beetz J. for the majority) (S.C.C.); Ontario Public Service Employees Union v. Ontario (Attorney General) (1980), 118 D.L.R. (3d) 661 at 667-672 (Ont. C.A.). Both courts found that the legislation gave effect to a constitutional convention that existed “at the time of Confederation and the reasoning in support of such convention has been consistent throughout the subsequent years”, and concluded that the legislation was intra vires the province under s.92(1) of the Constitution Act, 1867: OPSEU, supra at 44, quoting with approval from the Court of Appeal’s decision at 14-15. 262 Blaikie, supra at 320. 263 Patriation Reference, supra at 888; Quebec Veto Reference, supra at 802. 264 Quebec Veto Reference, supra at 803. 265 As this Court stated in R. v. Spence, [2005] 3 S.C.R. 458 at ¶60, “the permissible scope of judicial notice should vary according to the nature of the issue under consideration. For example, more stringent proof may be called for of facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery”. In these appeals, the organizational relationship between departments and Ministerial offices is at the very heart of the controversy between the parties. - 54 -
practices in the institutions at issue cannot form a reliable basis for any conclusions with respect to the first branch of Jennings’ test, as it is clear that the practices described by the witnesses related to four institutions only, and these practices were intentionally shaped and coordinated in response to the Information Commissioner’s investigations.266 Similarly, no conclusions regarding “the precedents” can appropriately be derived from the expert evidence, as this evidence was largely presented in the form of abstract theory and overarching conclusions, with concrete examples only occasionally provided for illustrative rather than inductive purposes,267 and generally without reference to or at best limited knowledge of the actual facts concerning the organization of ministerial offices in these cases.268 For example, Mr. d’Ombrain made clear that in his cross-examinations that his opinions were based upon an assumed equivalence between the Minister’s office and the Minister’s exempt staff, as well as assumptions concerning the tasks undertaken by a Minister’s office;269 the record shows, however, that these assumptions do not in fact hold true in the real cases at bar, as the physical spaces described as ministerial offices had both exempt staff and department staff working within them.270
[120] It is thus clear that no consistent body of precedent exists concerning the establishment and organization of ministerial offices or their relationship to the institutions over which the Minister in question presides. Practices have changed substantially across different administrations in recent history – including across the time period between when ATIA was debated and enacted (under the Trudeau administration), the early years of its implementation (under the Mulroney administration), and the period in which the access requests at issue in these appeals arose and were investigated (under the Chrétien and Martin administrations).271 This inconsistency was recognized by both expert witnesses.272 Some maintain that Ministers require the assistance of a private office with loyal political staff chosen from outside the public service,
266 Exhibit 21 to O’Donnell Affidavit, sworn Dec 20, 2005 - Memorandum, dated Sept 13, 2000, from the Deputy Clerk of PCO to Deputy Heads, AR, Vol. 2, p.201-203. 267 See, for example, Savoie Transcript, AR, Vol. 9, p.75-77; D’Ombrain Transcript #1, AR, Vol. 2, p.333-334, 335, 355; D’Ombrain Transcript #2, AR, Vol. 2, p.239, 247, 250-251, 264. 268 Savoie Transcript, AR, Vol. 9, p.11, 13-20, 22-24; D’Ombrain Transcript #1, AR, Vol. 2, p.320-321, 406. 269 D’Ombrain Transcript #1, AR, p.361-362, 369-371, 373-374, 388; D’Ombrain Transcript #2, AR, p.244, 282. 270 See supra paragraph 32. 271 In relation to the differing views and practices of the different federal administrations of recent history in respect of exempt staff, see Liane E. Benoit, “Ministerial Staff: The life and times of Parliament’s statutory orphans” in Restoring Accountability – Research Studies, Vol. 1 (Ottawa: Public Works and Government Services Canada, 2006) 145 at 149-164. 272 D’Ombrain Transcript #2, AR, Vol. 2, p.244; Savoie Transcript, Vol. 9, p.20-21, 52-53. - 55 -
who can provide more independent, partisan or creative advice and thereby act as a counterbalance to the bureaucracy. Others argue equally strenuously that political staff ought not to be interposed between a Minister and his or her department, as they unacceptably distort and dilute the constitutional mechanisms of accountability and responsibility.273 As Liane Benoit noted in her report prepared for the Gomery Commission, “there remains no absolute consensus, in theory or in practice, either within or outside of government, as to what constitutes the appropriate role of exempt staff in the policy development process”.274 Thus, to the extent that there are identifiable “precedents”, they do not provide evidence of the kind of consistency of practice identified in the Patriation Reference.
[121] Second, the evidence does not establish that the relevant actors believed that they were bound by a rule dictating a strict institutional separation between ministerial offices and departments. To the contrary, the evidence shows that from 1983 to 2000, the actors responded to ATIA requests in a manner that would have conflicted with the “convention”: when requests were made for ministerial records relating to departmental functions, the general practice – with some exceptions275 – was to task the Minister’s office, and any responsive records were disclosed, subject to applicable exemptions.276 This practice changed in 2000, in response to the Commissioner’s investigations in these cases; in a directive issued by the PCO, the Respondent for the first time sought to articulate its view regarding the nature of ministerial offices, and at the same time sought to impose this rule as a binding obligation.277 The fact that a directive was considered to be necessary in 2000 is a telling indicator that the relevant actors did not previously feel bound by any rule in this regard. As this Court observed in the Quebec Veto Reference, “a convention could not have remained wholly inarticulate, except perhaps at the inchoate stage when it has not yet been accepted as a binding rule”.278
[122] Moreover, in respect of the second branch of Jennings’ test, it is not enough that some
273 For contrasting views, see Mallory, “The Minister’s office staff”, supra; Paul Tellier, “Pour une réforme des cabinets des ministres fédéraux” (1968) 11(4) Canadian Public Administration 423. See also Donald Savoie, “The Minister’s staff: The need for reform” (1983) 26 Canadian Public Administration 509. 274 Benoit, supra at 236. 275 Information Commissioner’s Annual Report 1992-1993, p.26-27; Annual Report 1993-1994, p.23; Annual Report 1994-1995, p.51-52, Exhibits 1-c – 1-e to McCullough Affidavit sworn Sept 1, 2000, AR, Vol. 8, p.253-262. 276 Circular from the Secretary of the Treasury Board dated Sept 1, 1983, Exhibit 20 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.196-200 277 Memorandum from Deputy Clerk of PCO dated Sept 13, 2000, Exhibit 21 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 2, p.201-203. 278 Quebec Veto Reference, supra at 817. - 56 -
actors believed at some points in time that a particular approach was preferable; to qualify as a constitutional convention, a greater degree of normative force and consequent general acquiescence must be established.279 In this regard, the beliefs and views of those operating inside ministerial offices cannot alone be determinative: a constitutional convention of this kind cannot be established by unilateral action by the executive branch.280
[123] Third, the requisite reason for the asserted convention is absent. The reason that has been suggested by Respondent – that Ministers require a “private office” in which confidential advice may be sought and provided, candid opinions shared, and political considerations integrated with information received from other sources – is inadequate. It is apparent from a review of the established constitutional conventions that the third branch of Jennings’ test cannot be satisfied by simply any reason. Rather, the reason justifying the rule must be of an appropriate constitutional quality; as Jennings himself noted, “[p]ractices turn into conventions and precedents create rules because they are consistent with and are implied in the principles of the constitution”.281 In these cases, the purported “convention” identified by the Court of Appeal conflicts with and undermines foundational conventions of ministerial responsibility. Moreover, this damage to our existing constitutional structure is entirely unnecessary: the protection properly required by Ministers in relation to political deliberations and partisan advice can be fully accommodated by a functional conception of the ministerial office that recognizes the distinctions between Ministers’ multiple roles and responsibilities.
[124] By contrast, the Court of Appeal’s “convention” endorses an indivisible, geographically- defined conception of the ministerial office, and thereby establishes an institutional distinction between the Minister and the department over which he or she presides, which is not mirrored by any limitations upon the departmental functions and powers that may be exercised by the Minister (or by seconded departmental staff) within the protected sphere of his or her ministerial office. The institutional separation of the ministerial office thus permits the creation, through ad hoc and discretionary selection, of an entity through which some portion of the Minister’s
279 Quebec Veto Reference, supra at 814-816. 280 Similarly, in the Quebec Veto Reference, this Court noted that the beliefs of political actors in Quebec and Canada would alone be insufficient to establish a convention of a power of veto for Quebec in respect of constitutional amendment; according to this Court, “a convention such as the one now asserted by Quebec would have to be recognized by other provinces”: Ibid. at 815. 281 Ivor W. Jennings, Cabinet Government, 3rd ed. (Cambridge: Cambridge University Press, 1959) at 13. - 57 -
departmental functions and powers can be exercised, without the necessity of complying with the formal constitutional and statutory rules that govern the organization of the executive/administrative branch. When combined with the evidence282 regarding the degree of fluidity that exists in practice in respect of the functions performed by ministerial offices and the interactions that occur in practice between exempt and departmental staff with respect to departmental matters, this conception of the ministerial office severely undermines the legal framework of ministerial responsibility.
[125] The rigour of Jennings’ three-part test serves an indispensable function: it ensures that constitutional status is not too easily ascribed to practices of uncertain or undemonstrated solidity, but only to practices that are demonstrably consistent with the existing constitutional structure, both in theory and practice. In this regard, the Appellant submits that the judgments of both courts below demonstrate a failure to recognize that the concept of “government institutions” within ATIA necessarily relies upon and reflects an overarching framework of enforceable legal rules of fundamental constitutional significance, and thus the interpretation of this term in relation to departments and ministerial offices is not simply a question of empirical fact. In the judgment of the Court of Appeal, this failure was manifested in the identification of an ill-defined “convention”; in the judgment of the Federal Court, it was manifested by the adoption of a formalistic and mechanical interpretation of ATIA. The Appellant submits that a proper interpretation of ATIA must correct these legal errors, and ensure that the exercise of statutory interpretation appropriately integrates the broader legal framework governing the organization of and exercise of powers by the executive/administrative branch.
(B) Ministers, as “heads” presiding over departments, are part of these “government institutions” when exercising departmental functions [126] Under Driedger’s modern approach, statutory interpretation commences by considering the ordinary meaning of the words in question. The “ordinary meaning” is the “understanding that spontaneously comes to mind when words are read in their immediate context”283 – the
282 Ronald Transcript, p.41, L21 - p.42, L10, p.46, L4 - p.47, L20, p.49, L14 - p.52, L1, AR, Vol. 10, p.133-134, 138- 39, 141-144; Mylyk Transcript, p.6, L8 - p.8, L9, p.48, L5 - L20, AR, Vol. 6, p.8-10, 50; Eggleton Transcript, p.131, L6 - p.132, AR, vl. 4, p.275-276; Baril Transcript, p.27, L2 - L10, AR, Vol. 4, p.138; Judd Transcript, p.24, L8 - p.25, L12, p.44, L18 - p.46, L22, AR, Vol. 4, p.37, 56 - 58; Onuoha Transcript, p.73, L2 - p.83, L10, AR, Vol. 5, p.75 - 85; Hartley Transcript, p.96, L13 - p.97, L12, AR, Vol. 15, p.147-148. See also Restoring Accountability: Recommendations, supra at 135-139; Benoit, supra at 179-204. 283 Sullivan, supra at 25; Pharmascience Inc. v. Binet, [2006], 2 S.C.R. 513 at ¶30. - 58 -
“natural meaning which appears when the provision is simply read through”.284 The Appellant submits that the natural meaning or spontaneous understanding that emerges from a reading of the relevant provisions of ATIA is that a “government institution” includes the person who is in law empowered to exercise the duties, powers and functions relating to the mandate of the institution, who in law directs, supervises and manages the work and staff of the institution, and who is in law responsible for the activities of the institution. In short, a “government institution” is ordinarily understood to include “the person in charge”.
[127] As discussed above,285 in the case of line departments such as the Department of National Defence and the Department of Transport, a host of legal rules – based upon statutory and constitutional sources as well as the common law – dictate that the Minister is “the person in charge”. In the case of the Privy Council Office, constitutional conventions dictate that the Prime Minister is the person who manages and directs the work of the PCO, and is generally (with the exception of certain portfolios assigned by convention or statutory instrument to another Minister falling within the PCO286) the person responsible for the duties, powers and functions performed by the PCO.287 Within these institutions, many divisions may exist to organize the work and personnel of the institution. For operational, security, geographic or other reasons, formal restrictions may exist in respect of some of these divisions, to limit access to the physical space and/or documentary and electronic records to a specified subset of departmental personnel. Nevertheless, if the powers and functions exercised by the division are derived from the departmental powers and functions of the Minister, and no statute or statutory instrument creates the division as a separate entity, the division is clearly part of the department. The Appellant submits that the courts below adopted an interpretation of the term “government institution” that effectively divorced the organizational structures of departments from their legal underpinnings. The Appellant submits that this interpretation does not reflect the ordinary meaning of the term.
[128] As this Court noted in Montreal (City), “[w]ords that appear clear and unambiguous may
284 Canadian Pacific Air Lines Ltd. v. Canadian Air Lines Pilots Assn, [1993] 3 S.C.R. 724 at 735. 285 See supra at paragraphs 82-85. 286 Such as, for example, the President of the Queen’s Privy Council is directly assigned certain duties under the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c.3, ss.2, 13(2) and 13(3), and the Leader of the Government in the Senate has been designated as the “head” of the Northern Pipeline Agency for the purposes of ATIA, pursuant to SI/83-113. 287 See supra at paragraph 81. - 59 -
in fact prove to be ambiguous once placed in their context”.288 The courts below appear to have concluded that such “latent ambiguity”289 exists in ATIA in relation to the application of the Act to Ministers and ministerial offices.290 The Appellant submits that this conclusion is wrong in law: when the broader legal context relating to the organization of and exercise of powers by the executive/administrative branch is appropriately incorporated into the modern approach to statutory interpretation, as Parliament clearly intended, it is apparent that a contextual and purposive construction of ATIA yields an interpretation that is fully consistent with that suggested by the ordinary meaning of the legislative text.
(i) The statutory scheme of ATIA: Named “government institutions” with designated “heads” [129] In effecting its purpose of creating a right of access to government information, Parliament chose to rely entirely on the existing practices and institutional arrangements of the executive/administrative branch. With a few limited exceptions relating to the administration and operation of the Act itself,291 ATIA does not mandate the creation of any records, and does not create any government institutions; rather, the Act prescribes how otherwise existing records controlled by certain otherwise existing government institutions are to be treated in relation to the right of access.292 In this way, ATIA relies upon and implicitly invokes the existing legal framework that regulates the organization and practices of the executive/administrative branch. Initially, from the time of the enactment of ATIA through the amendments of 2006, the mechanism employed by Parliament to bring certain otherwise existing government institutions within the scope of application of ATIA was exclusively through listing in Schedule I.293 With the amendments of 2006, a substantive criteria-based mechanism was added in respect of Crown corporations, which are now subject to ATIA if the characteristics described in s.83 of the FAA are met.294
[130] The designation of “heads” under ATIA similarly relies upon existing lines of legal
288 Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141 at ¶10. 289 Ibid. 290 FC Reasons, ¶50-77, AR, Vol. 1, p. 24-38; FCA Reasons #1, ¶6-7, AR, Vol. 1, p. 121-122. 291 For example, the creation of the Office of the Information Commissioner and certain reports and publications relating to the exercise of the right of access or the administration of the Act, as well as the generation of records from electronic sources (s. 4(3) of ATIA). 292 ATIA also prevents destruction of records: see s. 67.1. 293 See ATIA, s.3 definition of “government institution”, as enacted in 1983. 294 See ATIA, s.3 definition of “government institution”, as amended by S.C. 2006, c.9, s.141(2). - 60 -
responsibility in respect of government institutions. ATIA imposes certain duties and responsibilities upon receipt of access requests, and empowers certain persons to perform certain functions and exercise certain powers. In relation to each “government institution”, under ATIA, these powers, duties and functions are imposed upon the “head”.295 Unsurprisingly, the designated “head” for the purposes of ATIA generally corresponds to the person who is in law empowered to exercise the powers, duties and functions of the institution and is in law responsible for their exercise. In the case of line departments or ministries of state, ATIA specifies that the “head” is “the member of the Queen’s Privy Council for Canada who presides over the department or ministry” – in other words, the Minister.296 In the case of other government institutions, ATIA specifies that the “head” is either the person so designated pursuant to s.3.2(2), or if no such person is designated, the chief executive officer of the institution.297 In respect of the PCO, the Prime Minister has been designated as the head for the purposes of ATIA.298
[131] In functional terms, when the Minister is made legally responsible for the activities of the institution, the Minister is generally also designated as “head” for the purposes of ATIA. As Table B shows,299 for most non-departmental institutions, the head is the president, CEO or chairperson of the institution; however, for a sizeable number of non-departmental institutions, a Minister has been designated as the head. As a comparison of Tables 1 and B demonstrates, the institutions in respect of which a Minister has been designated as “head” largely correspond to those that operate with a significant degree of ministerial control, and in respect of which the powers, functions and duties are assigned to the Minister, rather than the institution or its president or CEO. This analysis strongly suggests that the designated “head” should generally be considered part of the government institution – not merely because he or she is defined under ATIA as the head, but also because he or she is functionally integrated with the government institution.
295 See, for example, ATIA s.4(2.1) (obligation of head to make every reasonable effort to assist the access requester), s.7 (obligation of head to respond to access requests), s.8(1) (head may transfer requests when head considers that another government institution has greater interest in the record), s.9 (head may extend time limits), s.10 (obligations applicable to head, when head refuses to give access to a record or part thereof), s.11(2)-(6) (head may require payment in manner prescribed by regulation), s.13, 16.1, 16.2, 16.3, 16.4, 16.5, 19, 20, 20.1, 20.2, 20.4, 24 (obligations of head in respect of records subject to mandatory exemptions), s.14, 15, 16, 17, 18, 18.1, 21, 22, 22.1, 23, 26 (powers of head in respect of records subject to discretionary exemptions), s.25 (obligation of head to disclose portion of record that can reasonably be severed), s.28 (obligation of head to give notice to third parties). 296 ATIA, s.2, definition of “head”, paragraph (a). 297 ATIA, s.2, definition of “head”, paragraph (b). 298 See SI/83-113 as amended. 299 See Table B, “Government institutions under ATIA, organized by ministerial portfolio”, Appellant’s Books of Authorities. - 61 -
[132] The Appellant submits that both Parliament and the Governor in Council have through their actions on numerous occasions confirmed the correctness of the above interpretation. When a new institution with new lines of legal responsibility is established by statute or Order in Council, a separate Order is issued to make the institution thereby established subject to ATIA, and if necessary to designate its head. Thus, for example, in 2003, when the CBSA was created as a separate institution out of an internal division of the Department of Citizenship and Immigration, additional Orders in Council were issued to add CBSA to the schedules of both ATIA and the Privacy Act, and to name the Minister as the designated head, reflecting his legal responsibility for the powers, duties and functions of the agency. These Orders in Council were made effective at the same time as those constituting the new institution under the PSRTDA.300 The Orders in Council constituting the CBSA demonstrate that it was a new institution, in the legal sense: its establishment altered the lines of accountability and responsibility in respect of the duties, functions and powers assigned to it, which previously had been exercised by internal divisions of three separate departments or agencies.301
[133] Analogous patterns can be observed when a legally autonomous institution is absorbed into another institution, or when legal lines of accountability and responsibility for an institution are materially changed. While separate listing of an institution in Schedule I is necessary when it is legally autonomous, it is not longer necessary when the institution becomes an internal division of another institution that is itself subject to ATIA. When legal lines of responsibility are changed, this may be an indication that the designated head of the institution ought to be changed as well. Under the PSRTDA, FAA and PSEA, these changes to the legal lines of responsibility and accountability of an institution can occur by Order in Council and without formal statutory amendment.302 In this way, the degree of legal autonomy enjoyed by an entity can be changed
300 See SOR/2003-435 (P.C. 2003-2069, C.Gaz.2003.II.3165 (adding CBSA to Schedule I of ATIA) and SOR/2003- 434 (P.C. 2003-2067), C.Gaz.2003.II.3164 (adding CBSA to the schedule to the Privacy Act). With respect to the creation of the CBSA, see SOR/2003-431 (P.C. 2003-2059), C.Gaz.2003.II.3161; SOR/2003-433 (P.C. 2003-2062), C.Gaz.2003.II.3163; SI/2003-214 (P.C. 2003-2061), C.Gaz.2003.II.3230; SI/2003-215 (P.C. 2003-2063), C.Gaz.2003.II.3231 and SI/2003-216 (P.C. 2003-2064), C.Gaz.2003.II.3232 and SI/2003-217 (P.C. 2003-2065), C.Gaz.2003.II.3233. All of these instruments were made effective December 12, 2003. 301 See SI/2003-215 (P.C. 2003-2063), C. Gaz.2003.II.3231 and SI/2003-216 (P.C. 2003-2064), C. Gaz.2003.II.3232 and SI/2003-217 (P.C. 2003-2065), C. Gaz.2003.II.3233, respectively transferring to the CBSA, pursuant to the PSRTDA, control and supervision of certain portions of the Department of Citizenship and Immigration, the Canada Customs and Revenue Agency and the Canadian Food Inspection Agency. See also SI/2003-218 (P.C. 2003-2066), C.Gaz.2003.II.3234, designating the President of the CBSA as deputy head for the purposes of the PSEA. 302 See discussion supra at paragraphs 87, 89. - 62 -
without significant practical disruption of its work or personnel, and hence potentially without evident de facto signals. Nevertheless, such de jure changes to the lines of legal responsibility and accountability in relation to the powers, duties and functions of the institution are consistently reflected in changes to Schedule I of ATIA.
[134] The Orders in Council associated with the Canadian Firearms Centre (CFC) provide an example of these processes and the corresponding effects on Schedule I of ATIA. In April 2003, by Orders in Council, the Department of Justice’s existing program known as the CFC was made a department for the purposes of the FAA and PSEA,303 and responsibility for it was transferred from the Minister of Justice to the Solicitor General.304 At the same time, Orders in Council were issued to make the newly autonomous institution subject to ATIA, with the CEO of the CFC designated as its “head”.305 Later in 2003, certain provisions of the Firearms Act creating the Commissioner of Firearms came into force306 and the Commissioner was made legally responsible for the CFC.307 Orders in Council under ATIA and the Privacy Act were issued at the same time to make the Commissioner the “head” of the CFC.308 In 2006, control and supervision of the CFC was transferred to the RCMP, and the Commissioner of the RCMP was made Commissioner of Firearms.309 As the CFC was now fully integrated into the legal framework of another institution that was already subject to ATIA, an Order in Council was issued deleting the
303 See SOR/2003-145 (P.C. 2003-555), C.Gaz.2003.II.1278 (creating the CFC as a department for the purposes of the FAA and listing it in Schedule I.1); SI/2003-97 (P.C. 2003-560), C.Gaz.II.1286 (making the CEO of CFC the deputy head for the purposes of the PSEA). 304 See SOR/2003-146 (P.C. 2003-557), C.Gaz.2003.II.1279 (changing the appropriate Minister indicated in Schedule I.1 of the FAA from the Minister of Justice to the Solicitor General); SI/2003-96 (P.C. 2003-556), C.Gaz.2003.II.1285 (transferring from the Minister of Justice to the Solicitor General, pursuant to the PSRTDA, control and supervision of, and powers, duties and functions relating to, the CFC). 305 See SOR/2003-148 (P.C. 2003-559), C.Gaz.2003.II.1281 (adding CFC to Schedule I of ATIA); SI/2003-98 (P.C. 2003-562), C.Gaz.II.1287 (naming the CEO as head of CFC for the purposes of ATIA). 306 See Firearms Act, S.C. 1995, c.39, ss.81.1-81.5, enacted by S.C. 2003, c.8, s.48; SI/2003-114 (P.C. 2003-793), C.Gaz.2003.II.1783 (fixing May 30, 2003 as the date of coming into force of certain provisions including S.C. 2003, c.8, s.48). 307 See SI/2003-115 (P.C. 2003-794), C.Gaz.2003.II.1784 (designating the CFC as a department for the purposes of the PSEA and designating the Commissioner of Firearms as its deputy head). 308 See SI/2003-116 (P.C. 2003-795), C.Gaz.2003-II.1785 (amending ATIA Heads of Government Institutions Designation Order to designate the Commissioner of Firearms as the head of CFC) 309 See SI/2006-80 (P.C. 2006-388), C.Gaz.2006.II.530 (transferring from the CFC to the RCMP control and supervision of the portion of the federal public administration known as the Canadian Firearm Centre, pursuant to the PSRTDA); SOR/2006-97 (P.C. 2006-389), C.Gaz.2006.II.486 (deleting the CFC from Schedule I.1 of the FAA); SOR/2006-98 (P.C. 2006-390), C.Gaz.2006.II.487 (deleting the CFC from Schedule IV of the FAA, as it “no longer has any employees”); SI/2006-81 (P.C. 2006-391), C.Gaz.2006.II.531 (repealing the CFC as a department and the Commissioner of Firearms as deputy head for the purposes of the PSEA); P.C. 2006-398, C.Gaz.2006.I.1371 (appointing the Commissioner of the RCMP as Commissioner of Firearms). - 63 -
CFC from Schedule I.310 This was not a signal, however, that the records relating to the exercise of the powers, duties and functions associated with the CFC were no longer subject to the right of access; rather, it simply reflected the fact that the CFC had been integrated into the RCMP, and no longer had the degree of legal autonomy necessitating separate naming within Schedule I.311
[135] Internal divisions of government institutions are not required to be separately listed in Schedule I in order to be subject to ATIA: separate listing is generally only required when there are distinct lines of legal accountability and responsibility applicable in respect of the powers, duties and functions performed by the institution. It should be noted that in relation to the exercise of departmental powers, duties or functions, there are no distinct lines of legal accountability or responsibility for ministerial offices: there is no separate statutory instrument constituting the Minister’s office and granting it certain departmental powers or functions, and Ministers’ officers therefore have no independent legal status. The Minister remains directly legally responsible and accountable for all actions on his or her behalf that relate to departmental powers, duties or functions. This is consistent with the standard approach to an internal division of a department, where all substantive powers, duties and functions are legally entrusted to the Minister, and the Deputy Minister has certain responsibilities in respect of financial and human resource management under the FAA and PSEA: the internal supervisor of the division may be internally responsible, or may exercise delegated functions and powers, but is not directly entrusted with legal responsibility or accountability.
[136] It is only when the legal framework constituting the substantive powers, duties and functions of an institution, or its lines of legal responsibility and accountability, differs from this standard approach, that a separate listing within Schedule I is required. Thus, for example, while the National Defence Act specifies the creation of a number of statutory institutions and divisions – including the Department of National Defence, the Judge Advocate General, the Canadian Forces, the Canadian Forces Grievance Board, the Military Police Complaints Commission, and
310 See SOR/2006-99 (P.C. 2006-392), C.Gaz.2006.II.488. 311 The same pattern of additions to or deletions from Schedule I of ATIA can be observed when other entities have gained or lost legally autonomous status in relation to the exercise of their substantive powers, duties and functions, such as the Public Health Agency of Canada, the Economic Development Agency of Canada for the Regions of Quebec, the Indian Residential Schools Resolution of Canada, Indian Residential Schools Truth and Reconciliation Commission, Indian Residential Schools Truth and Reconciliation Commission Secretariat, Public Service Human Resource Management Agency of Canada, Federal Economic Development Agency and Canadian Northern Economic Development Agency. - 64 -
the Communications Security Establishment312 – these institutions or divisions are not all listed separately in Schedule I of ATIA, although all are subject to ATIA. The rationale for separate listing of some entities in Schedule I can be gleaned from a review of the different legal frameworks creating the lines of accountability and responsibility in relation to the powers, duties and functions of these entities. The Department follows the standard approach. The other entities that are separately listed in Schedule I of ATIA differ from this approach: for example the Canadian Forces, which is under the control of the Chief of Defence Staff, reports directly to the Minister.313 In contrast, the Communication Security Establishment, which is not separately listed in Schedule I of ATIA, falls within the Department and operates in a manner consistent with the standard approach.314
[137] The same pattern can be observed within the Privy Council Office. Certain entities operate within the PCO and are tasked with the exercise of certain powers, duties and functions on behalf of the Prime Minister or another Minister falling within the PCO, but these entities are not separately listed within Schedule I of ATIA, although they are subject to ATIA.315 By contrast,
312 The statutory authority for each of these institutions or divisions is, respectively, s.3 (Department), s.9 (Judge Advocate General), s.14 (Canadian Forces), s.29.16 (Canadian Forces Grievance Board), s.250.1 (Military Police Complaints Commission), and s.273.62 (Communications Security Establishment). 313 The Canadian Forces is not separately listed in the schedules of the FAA, and thus falls within the standard departmental approach in relation to the lines of responsibility and accountability for financial management; however, the Canadian Forces is not subject to the PSEA in respect of human resources management, but rather is subject to the employment and enrolment structures created by and under the National Defence Act. The Canadian Forces also differs from the standard departmental approach in respect of the lines of responsibility and accountability for its substantive powers, duties and functions: pursuant to s.18, the Chief of the Defence Staff has direct control and administration of the Canadian Forces, subject to the regulations and under the direction of the Minister, and reports directly to the Minister. The Canadian Forces Grievance Board and Military Police Complaints Commission are both named in Part III of Schedule VI of the FAA, and the Chairpersons of each of these institutions are thus directly responsible for financial resource management, and enjoy a greater degree of independence from ministerial control in such matters. The National Defence Act specifies that both the Board and the Commission also enjoy a greater degree of independence from ministerial control in respect of their substantive powers, duties and functions: see ss.29.16(1), 29.16(3), 29.17(1), 29.2-29.28, 250.1(1), 250.1(3), 250.11, 250.14-250.17. 314 The Communications Security Establishment is named in Schedule V of the FAA. As a separate agency named in Schedule V and also pursuant to the Communications Security Establishment Exclusion of Positions and Employees Approval Order (C.R.C., c. 1342), the Communications Security Establishment is not subject to the PSEA procedures. However, in respect of the financial management for the purposes of the FAA, the Communications Security Establishment falls under the responsibility of the Deputy Minister of National Defence: see SI/2006-4 (P.C. 2006-18), C.Gaz.2006.II.72. 315 For example, a number of “secretariats” operate within the PCO, including the Social Development Policy Secretariat, the Communications and Consultations Secretariat, the Machinery of Government Secretariat, and the Economic and Regional Development Policy Secretariat: see Role and Structure of the Privy Council Office, supra. On occasion, through Orders in Council under the PSRTDA, control and supervision of portions of the PCO have been transferred to other departments, or portions of other departments have been transferred to the PCO: see, for example, SI/2006-45 (P.C. 2006-86), C.Gaz.2006.II.138 (transferring control and supervision of the Official Languages Secretariat from the PCO to the Department of Canadian Heritage); SI/2006-74 (P.C. 2006-361), - 65 -
certain other entities, which also operate within the PCO and exercise certain powers, duties and functions on behalf of the Prime Minister, are separately listed within Schedule I of ATIA; this list includes the Federal-Provincial Relations Office, the Security Intelligence Review Committee, and the Public Appointments Commission Secretariat. Once again, the same rationale for separate listing within Schedule I applies: those entities that have an independent statutory existence are separately listed within Schedule I, while those that are internal divisions operating within the PCO without independent statutory foundation are not.316
[138] The Appellant submits that this analysis of the patterns apparent in Schedule I of ATIA further supports the conclusion that the scope of a given “government institution” for the purposes of the right of access under ATIA is not a factual question, but rather a question of law, to be determined by reference to the legal framework that establishes and regulates the exercise of the powers, duties and functions assigned to the institution and the legal lines of responsibility and accountability in respect of the institution’s activities, resources and personnel.
[139] It is thus apparent that the Federal Court’s central conclusion – that “Parliament did not intend the PMO or ministerial offices be implicitly included as a component part of the government institutions listed in Schedule I” as “Parliament would have expressly so provided if
C.Gaz.2006.II.522 (transferring control and supervision of the Policy Research Initiative from the PCO to the Department of Human Resources and Skills Development); SI/2006-75 (P.C. 2006-362), C.Gaz.2006.II.523 (transferring control and supervision of the Regulatory Affairs and Orders in Council Secretariat, with the exception of the Orders in Council Division, from the PCO to the Treasury Board). Orders in Council under the PSRTDA has also on occasion been employed to shift legal responsibility for a PCO entity from the Prime Minister to another Minister within the PCO: see, for example, SI/2006-46 (P.C. 2006-87), C.Gaz.2006.II.139 (transferring control and supervision of the Canadian Intergovernmental Conference Secretariat from the Prime Minister to the President of the Queen’s Privy Council). 316 The Federal-Provincial Relations Office (FPRO) was formally created by S.C.1974-75-76, c.16, and by Order in Council under the FAA and PSEA, was made a department with the Prime Minister as the appropriate Minister and the Secretary to the Cabinet for Federal-Provincial Relations as the deputy head: see SI/1975-17 (P.C. 1975-250), C.Gaz.1975.II.342. The FPRO was named in Schedule I of ATIA when first enacted in 1983. In 1993, by Order in Council under the PSRTDA, the FPRO was amalgamated with the PCO under the Prime Minister: see SI/1993-126 (P.C. 1993-1493), C.Gaz.1993.II.3218. The FPRO was deleted from Schedule I.1 of the FAA by SOR/2009-273 (P.C. 2009-1608), C.Gaz.2009.II.1970, but continues to independent statutory foundation. The Security Intelligence Review Committee (SIRC) is created by s.34 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c.C-23, and pursuant to s.35 of that Act, the Chairman of the Committee is its CEO. SIRC is named as a separate agency in Schedule V of the FAA, and is also listed in Part III of Schedule VI of the FAA. SIRC is also listed in Schedule I.1 of the FAA, and the Prime Minister is named as its appropriate Minister. The Public Appointments Commission (PAC) is established pursuant to s.1.1 of the Salaries Act, R.S.C. 1985, c.S-3, as amended by the Federal Accountability Act, S.C. 2006, c.9, s.227. The Prime Minister is the presiding Minister for the PAC, and its Executive Director is its deputy head for the purposes of the FAA and PSEA: see SI/2006-62 (P.C. 2006-227), C.Gaz.2006.II.310; SI/2006-63 (P.C. 2006-229), C.Gaz.2006.II.311; SI/2006-64 (P.C. 2006-230), C.Gaz.2006.II.312; and Schedule I.1 of the FAA. - 66 -
it so intended”317 – must be subject to critical reappraisal. The Federal Court did not consider the functional scope of the scheduled institutions, but rather fixated upon the activities undertaken in practice under the banners of the ministerial offices, and thereby improperly reified a distinction between Ministers qua heads and the departments over which they preside. The Appellant submits that this constitutes an error of law, as the ambit of “government institutions” must be determined, as a matter of law, by reference to the legal framework that establishes the institution and regulates the exercise of its powers, duties and functions. Factors such as institutional titles, the geographic organization of offices and record-keeping systems, or the experiences of those who operate within the institutions, cannot be determinative, until and unless these are compared and reconciled with the overarching legal framework.
[140] This approach to the interpretation of the term “government institution” is consistent with that adopted in other areas of the law, when the need has arisen to determine the legal contours of governmental entities for the purposes of applying legal principles relating to Crown immunity, Crown agency and the liability of government entities to be sued separately from the Crown. The Appellant submits that three aspect of this jurisprudence should be noted, and can be applied by analogy to the issues before this Court in these appeals.
[141] First, when considering whether a government entity is a Crown agent and therefore enjoys Crown immunity, the common law test focuses upon the nature and degree of de jure control exercisable by the appropriate Minister or the Governor in Council pursuant to the constituting legislation; an empirical inquiry into the extent of de facto control is irrelevant to the analysis.318 Second, the question of whether a government organization is a separate entity with a distinct legal personality, which may therefore be sued and made legally liable independently of the Crown, is determined by an interpretation of the constituting legislation and a consideration of the powers, duties and functions assigned to the entity in law, and not the external appearance of the entity or the beliefs of its participants.319 Third, a function-based approach has been adopted in analyzing the availability of Crown immunity in respect of a particular act. The
317 FC Reasons, ¶60, AR, Vol. 1, p. 29. See also FC Reasons, ¶68, AR, Vol. 1, p. 33. 318 Halifax (City) v. Halifax Harbour Commissioner, [1935] S.C.R. 215 at *QL4, 6, 7; Northern Pipeline Agency v. Perehinec, [1983] 2 S.C.R. 513 at 517-521; Westeel-Rosco Limited v. South Saskatchewan Hospital Centre, [1977] 2 S.C.R. 238 at 249-250, 252-254; Fidelity Insurance Co. of Canada v. Cronkhite Supply Ltd., [1979] 2 S.C.R. 27 at 29; Hogg and Monahan, supra at 334-337; Hogg, supra at 10-4 – 10-5. 319 Northern Pipeline Agency, supra at 526-528; Hogg and Monahan, supra at 340-341. - 67 -
caselaw recognizes that a government institution may be assigned multiple functions and enjoy agency status only in respect of some of those functions,320 and that Crown agents are created for limited purposes, and are entitled to Crown immunity only when acting within the scope of the Crown purposes they are authorized to serve.321 Thus, a function-based analysis, focused upon legal lines of responsibility and accountability and the legal rules defining the powers, duties and functions of the government entity, is consistent with the approach adopted in other areas of law.
(ii) The Minister cannot in law exercise departmental functions or conduct departmental business within an institution that is legally distinct from the department [142] The Appellant submits that in order to determine the central question at issue in these appeals – whether records held by the Ministers in their ministerial offices are part of their departments, and whether records held by the Prime Minister in the PMO are part of the PCO, for the purposes of ATIA – one must first consider the functions to which the records in question relate. The Appellant submits that the errors of the courts below can be traced to their failure to conceive of “government institutions” in functional terms, and their implicit prioritization of a location-based conception of control.
[143] As discussed above, a government department cannot have a legal personality, or assume rights or obligations;322 the powers, duties and functions of the department are all entrusted to the Minister, and through the Minister are exercised by departmental personnel, consistent with the Carltona principles now codified in s.24(2) of the Interpretation Act.323 From the perspective of the department, therefore, the Minister is entirely constitutive: without the Minister, the department has no powers, duties or functions to perform. From the perspective of the Minister, however, the converse is not true. The Minister obviously and necessarily has an existence independent of the department, both personally and professionally. He or she will, pursuant to constitutional convention, also be a Member of Parliament and a member of cabinet. He or she will often have responsibilities for certain additional portfolio areas assigned by the Prime Minister. He or she will also have a personal life. These other functions of the Minister coexist with departmental functions not by accident, but by design: it is a feature of our constitutional
320 Campbell and Shirose, supra at ¶33-34. 321 R. v. Canadian Broadcasting Corp., [1983] 1 S.C.R. 339 at 343-344, 350-351; R. v. Eldorado Nuclear, [1983] 2 S.C.R. 551 at 565-566, 568, 571-576; Alberta Government Telephones v. Canadian Radio-Television and Telecommunications Commission, [1989] 2 S.C.R. 225 at 292-298. 322 See authorities supra at note 175 and accompanying text. 323 See supra at paragraphs 91-96. - 68 -
structure that the Crown can only act through servants or agents,324 that the Crown only acts on the advice of its Ministers, and that these Ministers are simultaneously members of the legislature, the executive and a political party.
[144] If, as the Appellant submits, the multiplicity of ministerial roles and functions is a structural feature of our constitutional order, it is to be presumed that Parliament intended this feature to be integrated into the statutory framework of legal rules that regulate the organization and workings of departments, unless a contrary intention has been expressly indicated.325 The Appellant submits that no such contrary intention can be found within ATIA or the broader framework of statutory rules regulating the executive branch. Rather, a review of this statutory framework supports an integrated interpretation of the roles and responsibilities of Ministers within departments. The Appellant submits that such an integrated interpretation is achieved by disaggregating the various roles and functions of the Minister; when considering the Minister’s status qua head of the department, one must focus upon the powers, duties and functions entrusted to the Minister in this role. Given the constitutional principles at stake, such an interpretation – if not expressly disavowed by the legislature – is to be preferred over one that disturbs well-established rules of constitutional and common law.
[145] An analogous approach was adopted by this Court in Campbell and Shirose, where as in these appeals, constitutional principles relating to and underpinning the rule of law informed the analysis of the legal status of entities functioning within the executive branch. In Campbell and Shirose, this Court gave effect to the constitutional principle of the independence of the police when engaged in law enforcement, and reconciled it with the statutory structure establishing the RCMP by disaggregating the roles and functions performed by the RCMP:
The Crown’s attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement. A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes... Under the authority of [the RCMP] Act, it is true, RCMP officers perform a myriad of functions apart from the investigation of crimes… Some of these functions bring the RCMP
324 Eldorado Nuclear, supra at 562. 325 Parry Sound, supra at ¶39; Canadian Broadcasting Corp. v. Ontario (Attorney General), [1959] S.C.R. 188 at 192 (per Taschereau J. dissenting but not on this point), 198 (per Rand J. for the majority), 203 (per Locke J. concurring); Sullivan, supra at 431-432, 482-483. - 69 -
into a closer relationship to the Crown than others… It is therefore possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown. In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminal investigation, and in that regard the police are independent of the executive government. The importance of this principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forces as long ago as McCleave v. City of Moncton (1902), 32 S.C.R. 106…326 Thus, on the basis of the constitutional principle, this Court interpreted the legal status of the RCMP by disaggregating its law enforcement responsibilities from its other functions.
[146] The Appellant submits that in interpreting the legal status of a Minister for the purposes of ATIA, the Minister’s departmental functions must similarly be disaggregated from other ministerial roles. In relation to his or her departmental role, a Minister is in law precluded from exercising powers, duties or functions within or by way of an institution that is legally distinct from the department. The Minister is also generally precluded from making use of departmental staff to fulfill non-departmental roles. The same reasoning ought logically to apply to the Prime Minister, who by convention (and in some circumstances, statutory authority) exercises certain powers, duties and functions qua Prime Minister, and by convention (and sometimes statutory designation) is provided with the resources of the PCO to assist in this regard. Consequently, when a Minister exercises departmental powers, duties or functions, or calls upon departmental human resources to assist him or her in this regard, or when the Prime Minister exercises certain powers of the Privy Council, or calls upon PCO resources to assist him in so doing, this must occur conceptually within the department or PCO, including for the purposes of ATIA.
[147] A number of statutory rules, constitutional principles and constitutional conventions combine to reinforce this conclusion. First, a Minister, as a part of the executive branch, may not simply create new institutions, or reassign powers, duties, and functions, without complying with the applicable statutory rules.327 Second, under the Carltona principles as codified in s.24(2)(d) of the Interpretation Act, Ministers of the Crown are permitted to devolve their powers, duties and functions, but only to persons “appointed to serve, in the department or ministry of state over which the minister presides”.328 Third, pursuant to the constitutional convention of public service neutrality, departmental staff are not permitted to become involved in political or partisan
326 Campbell and Shirose, supra at ¶27-29 [emphasis added]. 327 See discussion supra at paragraphs 83, 87-89. 328 See discussion, supra at paragraphs 94-95. - 70 -
matters.329 If ministerial offices are in law separate institutions, as the Respondent contends, all of these principles are violated on the facts of these cases.
[148] It is of course conceivable – and indeed even likely – that the Minister may at times exercise departmental powers, duties, and functions, or call upon departmental staff for assistance in this regard, while physically located somewhere outside the department – for example, in an elevator, at his or her home, or in the constituency office. This does not bring these functions outside of the department. The Minister may also conceivably rely upon his exempt staff to assist him or her in making use of the assistance of departmental staff. This too does not bring these functions on behalf of the Minister outside of the department, particularly as the legal rules concerning public service neutrality preclude departmental staff from crossing over into the realm of the Minister’s other, political roles.330 The Minister and the department may choose to organize their physical space, their institutional practices, and their record-keeping systems, to better assist the Minister in managing his multiple roles and functions, and to improve the efficiency of the necessary interactions between the Minister, exempt staff and departmental personnel. However, such arrangements cannot change the legal nature of the activities undertaken by or on behalf of the Minister in respect of the Minister’s departmental powers, duties and functions. There may be a “ministerial office” that is physically distinct from the rest of the department, and in which the Minister and his or her exempt staff may at times devote themselves to the Minister’s non-departmental functions, such as constituency work or the Minister’s other non-departmental responsibilities as a member of cabinet. Neither the physical separation, nor the multiplicity of functions performed in the ministerial office, can transform the legal nature of the Minister’s departmental powers, duties and functions.
[149] Admittedly, the dividing line between the Minister’s various legal functions may not always be bright or entirely fixed. The Appellant submits, however, that the practical challenge of dividing the political from the administrative does not undermine the constitutional utility – and indeed, the legal necessity – of the distinction. Under our constitutional structure, Ministers are intended to act as a bridge between the legislative and executive branches, and between the
329 See discussion, supra at paragraphs 96-97. 330 In this regard, see the publication of the Treasury Board, Accountable Government, supra at 38, in which departmental assistants (public servants assigned to the Minister’s office) are cautioned that they “are expected to carry out their duties in a non-partisan manner”. - 71 -
political and the administrative. Through Ministers, the political decisions of the legislature, embodied in law, are implemented by a non-partisan public service; also through Ministers, the legislature can ensure the political responsibility and accountability of the executive for the administrative actions of the public service. Therefore, under our constitutional structure, Ministers must by design constantly negotiate the line dividing their political and administrative functions. The practical difficulties associated with maintaining such a distinction do not, however, reduce its constitutional significance.
[150] This function-based analysis is easily translated into the scheme of ATIA, under which the right of access relates to otherwise existing records. The Appellant submits that a record is subject to ATIA, regardless of its physical form or location, where it was created by or on behalf of a Minister to document or give effect to a Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions. By contrast, the record is not subject to ATIA if it is created by the Minister or exempt staff for political or non-departmental purposes. Similarly, if the Minister or exempt staff receive information from departmental staff, and then generate further records for political, non-departmental purposes, the additions are not subject to ATIA. The function-based analysis of the ambit of a “government institution” is thus consistent with the content-based approach to the interpretation of “record” that has to date guided the application of ATIA, and which has been confirmed by the 2006 amendment to definition of “record”.331 In any given case, whether the particular task or decision undertaken by or on behalf of a Minister, reflected or documented in a record, falls on one side or other of the political/administrative line will be a question of mixed fact and law, to be investigated by the Information Commissioner and if necessary decided by the court on judicial review.
[151] This exclusion of political and personal records of the Minister from the right of access does not operate by way of an express statutory exemption, but rather is conceptually built into the function-based definition of the department as a “government institution”. No express exemption or exclusion is required for records held by the Minister (whether in the Minister’s departmental office or elsewhere) that do not relate to the Minister’s departmental powers, duties
331 See Heinz, supra at ¶43 (per Deschamps J. for the majority); Yeager v. Canada (Correctional Service), [2003] 3 F.C. 107 at 31-42, 46 (F.C.A.). See also Toronto Police Services Board v. Ontario (Information and Privacy Commissioner) (2009), 93 O.R. (3d) 563 at ¶43-58 (C.A.). With respect to the 2006 amendment, see supra note 235. - 72 -
and functions, as they are simply beyond the scope of the ATIA. This is in contrast to records that include, for example, personal information or cabinet confidences, that in substance do fall within the scope of ATIA, but are exempted or excluded under its provisions. The function-based analysis proposed by the Appellant provides a complete response to the Federal Court’s location- driven suggestion that the absence of an exemption or exclusion for a Minister’s political records confirms Parliament’s intention that ministerial offices not be subject to ATIA.332
[152] A function-based analysis may also be applied in respect of Ministers of State who act to assist a given Minister in respect of a particular department, or Ministers who are assigned duties under a departmental statute but do not preside over a department.333 These Ministers are not the “heads” of government institutions for the purposes of ATIA, but they make use of the resources of the department, and exercise powers, duties and functions relating to the departments that have either been delegated by the presiding Minister pursuant to s.11(2) of the MMSA, or are directly assigned by statute.334 To the extent that a Minister of State exercises the powers, duties and functions of a department, the associated records will be subject to ATIA. Thus, a function-based analysis ensures that ATIA applies to all ministerial offices, even if the Minister is not the “head” of a government institution, to the extent that the powers, duties and functions exercised therein relate to the department.
[153] In addition, the function-based analysis may be applicable in relation to government institutions other than departments that fall within the portfolio responsibilities of a given Minister (or Minister of State). As Table 1 illustrates, such entities exist along a continuum in terms of the control exercised in law by the Minister, with departments representing the legal relationship of greatest ministerial control. If a Minister in law controls a non-departmental institution in the same way as a department, then the Minister arguably should be considered part of the government institution when exercising the powers, duties and functions associated with the institution, and associated records held within the ministerial office should be subject to ATIA. In these circumstances, application of ATIA to the records held by the Minister will arise
332 FC Reasons, ¶60, AR, Vol. 1, p. 29. 333 As Table A shows, there are 15 Ministers of State in the current cabinet. In addition, certain Ministers, like the Ministers of International Trade and International Cooperation, operate from within departments presided over by other Ministers. See supra paragraphs 85 and note 169 for further discussion. 334 Pursuant to s.12 of the MMSA, Ministers of State “make use of the services and facilities of the department or portion of the federal public administration concerned”. - 73 -
by virtue of the Minister’s legal relationship of control over a non-departmental institution named in Schedule I. The degree of ministerial control necessary to bring the Minister within the ambit of the institution for the purposes of ATIA (or conversely, the degree of institutional independence required to exclude a Minister from the reach of the institution for the purposes of ATIA) will fall to be decided in future cases. The law of Crown agency, which has developed based on the logic that “if a public body is controlled by a Minister in much the same way as a government department, then the law should treat the body as if it were a government department”,335 may be of assistance in this regard. (iii) This interpretation is harmonious with the purpose and statutory scheme of ATIA and the federal statute book as a whole [154] The Appellant submits that the above analysis amply supports the conclusion that the concept “government institution” within ATIA was intended to embody the set of legal rules that organize entities of the executive/administrative branch, by assigning lines of accountability and responsibility in relation to a given set of powers, duties and functions. The Appellant further submits that in relation to departments, an analysis of the legal framework constituting the departments dictates that Ministers must be considered part of their departments when exercising the departmental powers, duties and functions that have been assigned to them under the constituting statutes. Similarly, the Prime Minister must be considered part of the PCO when exercising the powers, duties and functions of the Privy Council that have been assigned to him by convention or statute.
[155] In reaching the contrary conclusion, the Federal Court referred to several specific features of the statutory regime that in its view confirmed that ATIA was not intended to apply to Ministers or ministerial offices. The Appellant submits that the Federal Court erred in its analysis of these features, and more fundamentally, erred in concluding that these features, either collectively or individually, were sufficient to constitute the requisite clear expression of Parliament’s intention that the scope and meaning of “government institutions” be interpreted differently for the purposes of ATIA than for all other purposes. The Federal Court’s analysis of these features may be summarily addressed.
[156] First, the Federal Court stated that Information Commissioner had in the past suggested that ministerial offices were not subject to ATIA, and concluded that these statements were
335 Hogg and Monahan, supra at 348-349. - 74 -
“evidence of the Commissioner’s understanding as to the intent of Parliament at the time of the enactment”.336 The Federal Court appears to suggest that in construing the statute, the court should accord weight to certain isolated statements made by Commissioner in the past regarding the scope of application of ATIA, as expressions of Parliament’s intent. It is well-established, however, that statutory construction involves questions of law, and is properly the preserve of the Court. The Court is clearly not bound by the Commissioner’s past statements with respect to the scope of application of ATIA – indeed, that interpretation is subject to review on a standard of correctness and is therefore to be accorded no deference.337 In addition, while legislative history sources such as Hansard may assist in determining the background and purpose of legislation – subject to the proviso that “the court remains mindful of the limited reliability and weight of Hansard evidence”338 – there is simply no basis to rely upon the Commissioner’s past views as evidence of Parliament’s intent.339
[157] Second, the Federal Court referred to Parliament’s failure to make explicit in recent amendments to ATIA the application of the Act to ministerial offices, despite being urged by the Commissioner to do so, concluding that “the silence is clear and relevant evidence of legislative intent”.340 The Appellant acknowledges that legislative silence may on occasion be relevant to determining Parliamentary intent,341 but submits that great care must be taken in ascribing meaning to that silence. The Appellant further submits that the Federal Court erred in interpreting Parliament’s silence in respect of the question at issue in these appeals as “clear and relevant evidence of legislative intent”; rather, this evidence is at best equivocal. Parliament’s silence must be interpreted in light of the competing recommendations it has received that have urged no
336 FC Reasons, ¶61, AR, Vol. 1, p.29-30. 337 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at ¶51-57; Canada (Information Commissioner) v. Canada (Minister of Industry), [2002] 1 F.C. 421 at ¶28-42 (F.C.A.); Canada (Attorney General) FC#2, supra at ¶164-171, an appeal confirmed on this point [2005] 4 F.C.R. 673 at ¶13. A distinction should be made between the Commissioner’s statutory interpretation and his factual assessment of whether disclosure of records would be injurious to a government interest where no legal issue arises as to what constitutes an injury. See Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265 at 272 (F.C.A.); Information Commissioner v. Prime Minister, supra at 444 (F.C.). 338 R. v. Morgentaler, [1993] 3 S.C.R. 463 at 484; Rizzo Shoes, supra at ¶35. 339 Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1991), 2 O.R. (3d) 65 at 111 (per Finlayson JA concurring) (C.A.); Ontario Teachers’ Federal v. Ontario (Attorney General) (2000), 49 O.R. (3d) 257 at ¶32-34 (C.A.). 340 FC Reasons, ¶67, AR, Vol. 1, p.32. 341 Tele-Mobile Co. v. Ontario, [2008] 1 S.C.R. 305 at ¶42. - 75 -
action be taken until the appeals at bar are resolved.342 The Appellant thus submits that an equally if not more plausible explanation for Parliament’s silence on this issue is that it is prudently awaiting the Courts’ determination of the scope of the existing Act, before considering whether any amendment is necessary.343
[158] Third, relying on the implied exclusion rule, the Federal Court held that the absence of any express reference to ministerial offices in Schedule I was evidence that Parliament did not intend to make them subject to ATIA.344 This conclusion does not withstand scrutiny. As Sullivan notes, “[a]n implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly”.345 Two such possible reasons are mentioned by Sullivan: failure to mention comparable items, and failure to follow an established pattern.346 The Appellant submits that neither reason applies in respect of Schedule I. Neither ministerial offices nor the PMO can be considered “comparable” to the institutions that are listed in Schedule I. As discussed above,347 all of the institutions listed in Schedule I constitute entities of the federal public administration that in law exercise certain statutorily assigned powers, duties and functions, and/or are established by statute or statutory instrument under the control and supervision of a particular office holder who is assigned certain powers, duties and functions; ministerial offices do not conform to these criteria. Similarly, the failure to list ministerial offices or the PMO in Schedule I cannot be considered a departure from an established pattern. As demonstrated above,348 in respect of the core powers, duties and functions of the executive/administrative branch – those most closely associated with ministerial control – the pattern in Schedule I unerringly tracks the legal lines of accountability and responsibility in respect of the powers, duties and functions in
342 See Access to Information Task Force, Access to Information: Making it Work for Canadians (June 2002) at 34 (“Since the matter is currently before the courts… there may be some benefit to awaiting the courts’ substantive ruling before proposing any amendment to the Act”); Department of Justice, “A comprehensive framework for Access to Information reform: A discussion paper” (April 2005), available at
question. The pattern also demonstrates that ministerial offices are not required to be separately listed, as the Minister is legally responsible and accountable for all the powers, duties and functions of the department. The implied exclusion rule thus has no application in these circumstances, and the Federal Court erred in relying upon it.
[159] Fourth, the Federal Court found that the existence of Ministers without portfolio rendered “absurd” the inclusion of ministerial offices within the corresponding government institutions, because “the Act would not apply to a minister without portfolio because he or she does not have a corresponding ‘government institution’”.349 The category of absurdity upon which the Federal Court appears to have relied is the presumption against irrational distinctions, that is “persons or things receiving different treatment for inadequate reasons or for no reason at all”.350 The Appellant submits that the application of this presumption is inappropriate, and indeed misapprehends the nature and functions of Ministers of State. Under the MMSA, Ministers of State exist in one of two forms: either presiding over a Ministry of State, or assigned to assist another Minister in the exercise of powers, duties or functions relating to a department or other portion of the federal public administration.351 A function-based analysis ensures that to the extent powers, duties and functions relating to a government institution are exercised by or on behalf of a Minister – whether a Minister of State, a Minister presiding over a department, or a Minister appointed to a portfolio that does not attach to a department – the records associated with the exercise of those powers, duties and functions will be subject to ATIA. The interpretation of ATIA advanced by the Appellant thus does not create any distinctions (irrational or otherwise) between categories of Ministers, but rather confers a right of access in a principled fashion, regardless of variations in institutional organization.
[160] Fifth, the Federal Court reasoned that the separate references to “government institution” and “Minister of the Crown” in ss.21 and 26 of ATIA demonstrated that “Parliament did not intend ‘government institution’ to include a minister of the Crown”.352 The Appellant submits that this interpretation erroneously overlooks the variations in institutional organization of the “government institutions” named in Schedule I of ATIA, which include departments presided
349 FC Reasons, ¶69, AR, Vol. 1, p.33. 350 Sullivan, supra at 310; see also 310-312. 351 MMSA, ss.7-12. See discussion supra at paragraphs 83-84, 152. 352 FC Reasons, ¶71, AR, Vol. 1, p.35. - 77 -
over by a Minister; departments presided over by a Minister with other Ministers assisting in the exercise of that Minister’s powers, duties and functions (such as the Department of Foreign Affairs and International Trade); separate agencies under significant ministerial control in respect of the exercise of their powers, duties and functions (such as CBSA); Crown corporations; and autonomous entities subject to very little ministerial control.353 The wording of ss.21 and 26 is designed to apply across all such institutions. In the case of government institutions subject to significant ministerial control, the Minister may indeed form part of the government institution and be designated as its “head”. However, in respect of institutions with significant legal autonomy, the Minister will not form part of the institution, although the institution will fall within a Minister’s portfolio and may wish to confer with him or her occasionally, and hence need the protection of the s.21 exemption. The Appellant submits that this institutional variation provides a far more persuasive and plausible explanation of the separate references in ss.21 and 26 than that adopted by the Federal Court.
[161] Sixth, the Federal Court emphasized that Parliament had distinguished between a “ministerial record” and a “government record” in the Library and Archives of Canada Act (LACA), and concluded that “there would be no need” for this distinction if Parliament intended a Minister’s office to be a component of a government institution.354 The Appellant submits that this analysis reveals several errors. Firstly, and most fundamentally, in its reliance on the principle of consistent expression, the Federal Court failed to consider the manner in which ATIA interacts with the broader framework of statutory rules that structure the organization of the government institutions within the executive/administrative branch, including the FAA, PSEA, MMSA, and PSRTDA. Secondly, the Federal Court failed to give due weight to the different purposes of these two pieces of legislation, and in particular the broader object and consequent scope of LACA.355 Finally, the Federal Court misconstrued the distinction between “ministerial record” and “government record” in LACA, and mistakenly concluded that “ministerial record” under LACA was necessarily equivalent to “a record physically located in a Minister’s office” under ATIA. The relevant definitions in LACA are: “government institution” has the same meaning as in section 3 of [ATIA] or in section 3 of
353 See Table 1, as well as discussion supra at paragraphs 88, 153. 354 FC Reasons, ¶74-77, AR, Vol. 1, p.36-38. 355 Andersen Consulting v. Canada, [2001] 2 F.C. 324 at ¶15 (F.C.); Rubin v. Canada (Minister of Foreign Affairs and International Trade) (2001), 204 F.T.R. 313 at ¶20 (F.C.). - 78 -
the Privacy Act or means an institution designated by the Governor in Council. “government record” means a record that is under the control of a government institution. “ministerial record” means a record of a member of the Queen’s Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is a government record.356 The interrelationships between these definitions clearly establish that Parliament understood that the category of records that “pertain[] to [a Minister’s] office” would normally include government records subject to ATIA (as well as personal and political records). Parliament’s intent in creating an additional protected statutory category of “ministerial records” was not to treat Ministers as external to government institutions even when they exercise functions related to those institutions, but rather to ensure archival protection for a particular additional type of Minister-associated record that was not caught by the category “government record”, and at the same time was not political or personal.357 Examples of such documents can easily be identified, and the importance of their archival preservation is obvious: for example, a ministerial yet non- departmental task given to the Minister as a member of the cabinet on behalf of the whole of the cabinet, such as a Minister’s regional responsibilities or the Nielsen Task Force on government spending of the 1980s.358 This alternative explanation for the existence of the category “ministerial record” within LACA was not considered by the Federal Court.
[162] In summary, the Appellant submits that the Federal Court adopted a mechanical and formalistic interpretation of ATIA, which is neither supported nor mandated by the statutory text, and which substantially frustrates the purpose of the Act and Parliament’s intention in adopting it.359 The interpretation advanced by the Respondent and adopted by the courts below creates the
356 Library and Archives of Canada Act, S.C. 2004, c.11, s.2. 357 Parliamentary and committee debates from the time of the enactment of the National Archives of Canada Act, S.C. 1985 (3rd Sup.), c.1 assist in discerning Parliament’s intent in relation to the category “ministerial record”, as this definition first appeared in that Act, and confirm that Parliament intended thereby to expand the classes of public records that were subject to archival protection, by including mandatory protection for certain Minister-related documents that were viewed as additional to the government records, personal records and political records that would be found within a typical Minister’s office. See debates at second reading of the National Archives of Canada Act (Bill C-95), House of Commons Debates, Vol. II (6 June 1986) at 14073, 14079; Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-95, 33rd Leg, 1st sess., Issue No. 1 (June 19-25, 1986) at 1:19-1:20, 1:24-1:25; House of Commons Debates, Vol. II (19 Dec 1986) at 2331-2332. 358 See Minutes of the Legislative Committee on Bill C-95, supra at 1:19-1:20. 359 In this regard, the analysis of the courts below should be compared with the purposive interpretation adopted by the Court of Appeal for Ontario in two recent cases under the provincial access to information legislation: see Toronto Police Services Board, supra at ¶44-49, 57-58; City of Toronto Economic Development Corp. v. Ontario (Information and Privacy Commissioner) (2008), 292 D.L.R. (4th) 706 at ¶34-41 (Ont. C.A.). - 79 -
ministerial office as a virtual black hole, into which the Minister may, on an ad hoc discretionary basis, absorb the exercise of departmental powers, duties and functions, as well as departmental staff, and thus remove them from the scope of ATIA. In relation to government institutions subject to ministerial control, such as departments, the right of access under ATIA would thus in significant part become subject to the Minister’s discretion as to which records ought to be held in his or her office, and which powers, duties and functions ought to be exercised under the protective cloak of the ministerial office. Ministers and ministerial staff would be able to remove whole classes of records from the purview of ATIA simply by directing that they be kept in the Minister’s office and organizing their record-keeping and -sharing practices accordingly. In relation to controversial or sensitive issues, the temptation to do so will be powerful if not overwhelming.360 This would transform the right of access into a matter of ministerial discretion – thus reinstating the discretionary regime that ATIA was adopted to reverse.
[163] Under the Respondent’s interpretation, records removed to ministerial offices in this manner would gain greater protection from disclosure than that accorded to cabinet confidences. Substantive restrictions apply with respect to when protection may be claimed for cabinet confidences,361 and the protection applies for 20 years at most.362 In contrast, it appears no limitations would apply to restrain the discretionary absorption of departmental business and records into ministerial offices, and the resulting protection against disclosure under ATIA would be permanent. The Commissioner’s investigative powers will not be sufficient to safeguard against these dangers, as the facts of these appeals clearly demonstrate.363
[164] In contrast, the interpretation advanced by the Appellant is entirely harmonious with and
360 In this regard, it is instructive to note that the temptation to remove documents from review by the Somalia Commission of Inquiry did prove overwhelming to members of the National Defence and Canadian Forces staff, whom the Commission found to have destroyed, tampered with and unduly delayed the production of large numbers of relevant documents: see Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured legacy: The lessons of the Somalia affair, Vol. 5 (Ottawa: Minister of Public Works and Government Services Canada, 1997), Chapter 39. The Gomery Commission noted concerning practices with respect to the handling of ATIA requests concerning matters viewed as sensitive and related to Ministers: see Restoring Accountability: Recommendations, supra at 43, 179; Roberts, “Two challenges”, supra at 119-124, 126-129; Benoit, supra at 227. 361 Babcock, supra at ¶20, 22-27. 362 See ATIA, s.69; Canada Evidence Act, R.S.C. 1985, c.C-5 as amended, s.39. 363 For example, in respect of the M5 access request, the only way in which many of the responsive records – including those over which there was, ultimately, no dispute regarding disclosure – could be identified and located was by recreating the M5 agendas by reviewing the notes of exempt staff: Onuoha Transcript, p.108, L11 - p.109, L7, p.110, L20 - p.112, L6, AR, Vol. 5, p.110-114; O’Donnell Affidavit sworn Dec 20, 2005, ¶10-12, AR, Vol. 2, p.58; Exhibit 30 to O’Donnell Affidavit sworn Dec 20, 2005, AR, Vol. 3, p.260. - 80 -
supportive of the overarching purpose and object of ATIA, in that it ensures that ministerial responsibility with respect to certain statutory or conventional powers, duties and functions is coupled with ministerial accountability through ATIA. Moreover, the Appellant submits that this interpretation provides ample protection for Ministers’ legitimate requirement of a private sphere, primarily by virtue of the fact that political and personal ministerial functions will fall outside the scope of ATIA, and also through the substantive exemptions available within ATIA and the time- limited exclusion of cabinet confidences under ATIA.
(iv) The records at issue were generated on behalf of the Ministers in the exercise of the Ministers’ departmental functions [165] The Appellant submits that all of the records at issue in these appeals were created to document or give effect to a Minister’s exercise of departmental powers, duties or functions, or in direct reliance upon departmental staff for this purpose, and hence fall within the ambit of the respective government institutions for the purpose of the right of access under ATIA: (a) With respect to the records relating to the Minister of National Defence, it is clear that the M5 meetings occurred for the purpose of assisting the Minister in relation to his powers, duties and functions concerning the Department and the Canadian Forces. The meetings were always attended by staff from the Department and the Canadian Forces, and indeed the purpose of the meetings was to provide a forum for the Minister to receive information from and provide direction to high-ranking officers of these two institutions.364 The notes taken by the Minister’s exempt staff at M5 meetings were used to ensure that any concerns raised by the Minister, or requests he made for further information, were followed up in a timely and appropriate fashion;365 these records were therefore kept for the purpose of assisting the Minister in making use of the assistance of the Department and the Canadian Forces, in order to fulfill the Minister’s powers, duties and functions in relation to these institutions. Similarly, the M5-related email messages were exchanged on behalf of the Minister for the purpose of (re)arranging meetings and fixing his schedule, in relation to meetings directed to the exercise of the Minister’s powers, duties and functions under the National Defence Act.366 (b) With respect to the records relating to the Prime Minister,367 the agendas maintained by the PMO related in part to the exercise by the Prime Minister of certain powers, duties and functions of the Privy Council assigned to the Prime Minister by convention. In
364 Baril Transcript, p.18, L3-L9, AR, Vol. 4, p.191; Eggleton Transcript, p.62, L1 - p.65, L11, AR, Vol. 4, p.206-208. 365 Eggleton Transcript, p.84, L17 - p.86, L5, AR, Vol. 4, p.228-230. 366 FC Reasons, ¶146, AR, Vol. 1, p.68; Conf. Exhibits C & E to O'Donnell Affidavit sworn Dec 20, 2006, AR, Vol. E-4, p.194-261, 207-374; Conf. Exhibit F to O'Donnell Affidavit sworn Dec 20, 2006, AR, Vol. E-6, p.71-177. 367 As noted above, two categories of records were found in relation to the access request concerning the Prime Minister: 2002 pages archived in electronic form within the record-keeping system of the PMO, and 4 pages located in the office of the Executive Assistant to the Clerk of the PCO. It is conceded that the latter 4 pages are “under the control of a government institution”, and the analysis in this section therefore applies only to the 2002 pages located within the PMO. - 81 -
addition, the agendas relate in part to the exercise by the Prime Minister of certain powers, duties and functions assigned by statute to the PCO, under the control and supervision of the Prime Minister. The agendas were created by the Prime Minister’s Executive Assistant, and shared among the PMO.368 During the period relevant to the access request, an expurgated version of the agendas was sent to the PCO.369 The records in question were clearly relied upon by the PCO to assist the Prime Minister in exercising his Prime Ministerial powers, duties and functions.370 (c) With respect to the records relating to the Minister of Transport, the agendas related in part to the exercise of the Minister’s departmental powers, duties and functions. An abridged version of the agendas had been provided to the Deputy Minister’s office.371 The agendas were relied upon by departmental staff to assist the Minister in exercising his departmental powers, duties and functions.372
[166] The Appellant submits that the record-keeping practices employed by the Ministers and Prime Minister – including restrictions on access to records held within ministerial offices, the provision to departmental staff of redacted versions of certain records, or requests that certain records provided to departmental staff be destroyed after a certain time – cannot transform the legal nature of the records for the purposes of ATIA. These records relate to the exercise of departmental powers, duties and functions. To the extent that some may relate both to departmental and non-departmental (political or personal) matters, they can be redacted. In addition, in respect of the portions of the records that relate to departmental matters and hence are subject to ATIA, the full range of exemptions and exclusions under ATIA apply, including the
368 Hartley Affidavit, ¶6-7, AR, Vol. 17, p.2. The records at issue are located at Confidential Exhibit A to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. E7 at p.5ff. 369Hartley Transcript, p.130, L7 - L13, p.152, L12 - L20, AR, Vol. 15, p.181, 203. With the exception of 4 pages, these expurgated versions of the agendas were destroyed by the PCO, and were not archived by the PMO. A copy of the 4 pages is located at Confidential Exhibit B to Lanthier Affidavit sworn Dec 22, 2005, AR, Vol. E12, p.180-183. 370 During the period relevant to the access request at issue, an edited copy of the agenda was sent daily by fax to the Clerk of the Privy Council, to facilitate meetings between the Clerk and the Prime Minister, and the records were relied upon by the PCO to assist the Prime Minister in exercising his powers, duties and functions: see Hartley Transcript, p.130, L7 - p.131, L13, AR, Vol. 15, p.181-182; Cappe Transcript #2, p.223, L11 - p.225, L7, AR, Vol. 16, p.289-291; Exhibits "E-A-6" to "E-A-11" – Testimonies of Executive Assistants, AR, Vol. 16, p.140ff. As a result of the access request at issue, the PMO sought to alter its record-keeping and information management practices, and began providing information about the Prime Minister’s schedule to the PCO by oral briefing only: see see Hartley Transcript, p.133, L25 - p.134, L11, p.17, L7-L24, p.141, L8 - p.144, L6, AR, vol. 15, p.184-185, 188, 191-195. The centrality of the Prime Minister’s agenda to the PCO’s activities is nevertheless demonstrated, as it is clear the PCO required access to the substance of the agenda in order to undertake its activities aimed at assisting the Prime Minister in the exercise of his Prime Ministerial powers, duties and functions: see Cappe Transcript #2, p.216, L1 – p.221, L2, AR, Vol. 16, p.282-287; Hartley Transcript, p.161, L9 – p.168, L5, AR, Vol. 15, p.212-219. 371 Bloodworth Transcript, p.81, L23 - p.82, L5, AR, Vol. 10, p.35- 36; Ronald Transcript, p.23, L2-L20, p.63, L1 - p.66, L19, AR, Vol. 10, p.115, 155-158. The redaction of the copy of the Minister of Transport’s agenda that was provided to the Deupty Minister’s office was done an ad hoc and subjective basis: see Ronald Transcript, p.14, L11ff, AR, Vol. 10, p.104ff. 372 Bloodworth Transcript, p.75, L24 - p.77, L4, p.78, L8 - p.80, L16, AR, Vol. 10, p.29-31, 32-34; Ronald Transcript, p.68, L8 - p.69, L9, AR, Vol. 10, p.160-161. - 82 -
exclusion for Cabinet confidences, and the exemptions for personal information and advice, recommendations or consultations with or for a Minister.373
(C) In the alternative, the correct test for determining whether records are “under the control of a government institution” for the purpose of s.4 of ATIA [167] If the above analysis is correct, and the ambit of a “government institution” for the purposes of ATIA is determined through a function-based analysis, the question of whether the records at issue are “under the control” of a government institutions is easily resolved: the records are clearly under the control of the departments or the PCO, because the Minister or Prime Minister, in exercising departmental functions, forms part of the government institution. If, contrary to the Appellant’s primary submission, this Court finds that a Minister is not part of the department over which he or she presides even when exercising departmental functions, this Court must go on to consider the test to be applied to determine when records held within a ministerial office and under the control of a Minister will be considered “under the control of a government institution” within the meaning of s.4 of ATIA.
[168] The Appellant submits that the control test articulated and applied by the Federal Court,374 and approved by the Court of Appeal,375 represents a fundamental distortion of the underlying legal principles that have been developed in the relevant jurisprudence – principles that in fact were reviewed by the Federal Court.376 The jurisprudence teaches: (a) The concept of “control” in ATIA is undefined and unlimited. This is reflective and indicative of Parliament’s intention that the term be given a broad and generous interpretation, consistent with the purpose of ATIA.377 (b) In determining whether a given record is under the control of a government institution, the court must consider ultimate as well as immediate control, full and lasting as well as partial
373 See ATIA, ss.19, 21, 69. On application of these exemptions, the Commissioner recommended and/or confirmed numerous severances to the records in question: see Exhibit 30 to O’Donnell Affidavit sworn Dec 20, 2005, ¶14-19, AR, vol. 3, p.292; Lanthier Affidavit sworn Dec 21, 2005, ¶16, AR, vol. 9, p.144; Exhibit 18 to Lanthier Affidavit sworn Dec 21, 2005, AR, vol. 9, p.263; Confidential Exhibit E to Lanthier Affidavit sworn Dec 21, 2006, AR, vol. E6, p.226; Exhibit 27 to Lanthier Affidavit sworn Dec 22, 2005, AR, vol. 14, p.170-182.. 374 FC Reasons, ¶93, 95, AR, Vol. 1, p.46-47. See also FC Reasons, ¶96-99, AR, Vol. 1, p.47-48. 375 FCA Reasons #2, ¶9, AR, Vol. 1, p.131. 376 FC Reasons, ¶91, AR, Vol. 1, p.45-46. 377 Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 at ¶2-4 (per Letourneau JA for the majority) [“Canada Post FCA#1”]; Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 at 335, 343, 345-347 (T.D) [“Canada Post FC#1”], aff’d on appeal in Canada Post FCA#1, supra; Canada (Attorney General) FC#2, supra at ¶104; Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609 at ¶102 (T.D.) [“Privacy Commissioner v. Labour Relations Board”]; Neilson v. British Columbia (Information and Privacy Commissioner) (1998), 80 A.C.W.S. (3d) 932 at ¶27-28 (B.C.S.C.) - 83 -
or transient control, and de jure as well as de facto control.378 (c) Parliament did not restrict the notion of control to the power to dispose of the records in question, in the sense of the legal power to destroy or lasting and ultimate legal control. Similarly, control is not limited to a legally enforceable right, and the manner in which the record came into the possession of the government institution is irrelevant.379 (d) Control cannot be reduced to mere geography, in the sense of where a record is in practice stored, or who may in practice access the location where it is stored; one must also consider the legal arrangements and obligations that exist in relation to the record.380 (e) The substantive content of a record is a relevant consideration.381 The legal structure relating to the exercise of official duties and functions by the government institution, and the legal relationship between the record-holder and the government institution (and not arrangements in practice, or the beliefs of the participants) are also relevant factors.382 (f) A substantive relationship of independence, when supported by a clear rationale and legal authority, has been found sufficient to remove private notes from the scope of the right of access. In the absence of such a substantive relationship of independence, the “private” or handwritten form of such notes has been found irrelevant.383 (g) The notion of control does not involve a balancing test: factors in favour of a finding of control are not weighed against opposing factors. Rather, consistent with the broad and generous meaning intended by Parliament, the existence of legal factors indicative of control is sufficient, even if countervailing factors are also present. In other words, the various indicia are not cumulative, but rather alternative.384 (h) In general, parties subject to ATIA in respect of certain powers, duties or functions are not permitted to “contract out” of the Act or arrange their affairs so as to avoid its application. The facts concerning the parties’ arrangements in any given case must be interpreted in
378 Canada Post FCA#1, supra at ¶2; Canada Post FC#1, supra at 332-333; Canada (Attorney General) v. Canada (Information Commissioner) (2001), 268 N.R. 328 at ¶28 (F.C.A.). 379 Canada Post FCA#1, supra at ¶2; Canada Post FC#1, supra at 339-340, 345-346; Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), [1989] 2 F.C. 480 at 485-486; Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission), [2008] 2 F.C.R 509 at ¶40-41, 45 (F.C.A.) 380 Privacy Commissioner v. Labour Relations Board, supra at ¶112-113; Ontario (Criminal Code Review Board) v. Doe) (1999), 47 O.R. (3d) 201 at ¶13, 22, 32, 35 (C.A.) 381 Canada Post FCA#1, supra at ¶7, 9; Privacy Commissioner v. Labour Relations Board, supra at ¶106-109, 111, 114-116; Canada (Attorney General) FC#2, supra at ¶114; Desjardins, Ducharme, Stein, Monast v. Canada (Department of Finance), [1999] 2 F.C. 381 at ¶12-15 (F.C.); Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 at 619 (C.A.); Neilson, supra at ¶31; Ontario (Criminal Code Review Board), supra at ¶23-32; David v. Ontario (Information and Privacy Commissioner) (2006), 217 O.A.C. 112 at ¶23, 30 (Div. Ct.). 382 Canada Post Corp. v. Canada (Minister of Public Works and Government Services) (2004), 244 F.T.R. 207 at ¶45-53 (F.C.), aff’d on appeal in Canada Post Corp. v. Canada (Minister of Public Works) (2004), 328 N.R. 98 at ¶3 (F.C.A.) [“Canada Post FCA#2”]; Greater Vancouver Mental Health Service Society v. British Columbia (Information and Privacy Commissioner) (1999), 85 A.C.W.S. (3d) 978 at ¶43-50, 52 (B.C.S.C.); David, supra at ¶23; Simon Fraser University v. B.C. (Information and Privacy Commissioner), 2009 BCSC 1481 at ¶79-81. 383 Walmsley, supra at 618; Neilson, supra at ¶31, 35; Ontario (Criminal Code Review Board), supra at ¶36; David, supra at 23-27, 29. The requisite substantive independence has been found, for example, in relation to quasi-judicial officers exercising judicial functions, or an independent committee created to provide recommendations regarding judicial appointments. 384 See, for example, Canada Post FCA#2, supra at ¶3; Canada Post FC#1, supra 345-347 - 84 -
light of the mandatory and quasi-constitutional nature of the right of access.385 In determining whether a record is “under the control of a government institution”, the jurisprudence thus emphasizes objective indicia, in order to ascertain the legal relationship between the record-holder and the government institution in relation to the record at issue.
[169] The Appellant submits that in reducing the complex legal inquiry concerning “control” to two seemingly simple factual questions – whether the record “relates to a departmental matter” and whether senior members of the departmental staff “could request and obtain a copy” of the record – the Federal Court erred in law. In particular, the mechanism of a hypothetical “request” is a weak and unacceptably limited proxy for the broad legal concept of “control”. The reductive formulation adopted by the Federal Court thus fails entirely to give effect to the broad, liberal and purposive meaning of “control” required to reflect the object of ATIA. In application, it also gives inordinate weight to the form in which records might appear, contrary to ATIA’s express direction that “record” means “any documentary material, regardless of medium or form”.386 Finally, in its heavy reliance on speculative ex post facto considerations, the test devised by the Federal Court inappropriately relies on past practices and prevalent expectations, rather than the legal relationships at issue. These factual indicia are too easily manipulated by the parties, and thus provide inadequate analytic restraint against superficial efforts that may be undertaken by the parties to arrange their affairs to avoid the application of ATIA.
[170] Under the Federal Court’s control test, restrictive record-keeping practices – if properly entrenched and ingrained – can become a self-fulfilling bar to the right of access, even if such practices are neither legally required nor authorized. Thus, for example, in relation to the M5 meeting notes prepared by exempt staff, the Federal Court reasoned: The notes were the personal notes of the exempt staff. No person in the DND or the Minister ever asked to see the notes or to be provided with a copy of them. The evidence is that the notes would not have been produced to departmental officials. If some information in the notes had ever been requested, which was not the case, the Court reasonably assumes that exempt staff who took the notes would prepare a typewritten record of the discussion.
385 Canada Post FC#1, supra at 339-340, 341; Rubin v. Canada (Minister of Foreign Affairs and International Trade), supra at ¶21; Canadian Imperial Bank of Commerce, supra at ¶37-38; Ontario (Criminal Code Review Board), supra at ¶35. 386 ATIA, s.2 [emphasis added]. The structural frailties of the test devised by the Federal Court are well-illustrated by the reasoning employed in relation to the M5 access request. The Federal Court reasoned that because the notes in question were largely illegible, they were therefore not intended for any third person, and therefore would not have been released in their original form upon request, and therefore were not under the control of the DND. See FC Reasons, ¶144-145, AR, Vol. 1, p.67. - 85 -
It is clear that the government institution did not have de facto, transient, or partial access to the notes of the meetings. When the Court reviewed the notes, it is evident that they were not intended for any third person. The writing is barely legible and the substance is not coherent to anyone other than the author. Accordingly, the notes in their original form would not be produced to a senior official of the DND upon request, and they are not under the control of the DND.387 Thus, the past practices and resulting expectations of the Minister, the exempt staff and departmental staff were simply accepted by the Federal Court, and relied upon as the basis for a legal conclusion regarding “control” for the purposes of s.4 of ATIA. Similar reasoning, dependent on a mix of speculation about future behaviour based on past practices and resulting expectations, is apparent in the Federal Court’s reasoning concerning the other categories of records at issue in these appeals.388 Unsurprisingly, it is clear that these past practices and expectations were often directly predicated on implicit legal conclusions,389 yet no effort was made by the Federal Court to compare these practices and expectations with the legal framework governing the exercise of departmental powers, duties and function. For example: Were the notes “personal” to the exempt staff in law, given that it was acknowledged that the Minister had full control over them? Are the practices and resulting expectations consistent with the legal responsibilities of the actors and the legal framework under which they are required to operate?
[171] The importance of placing appropriate weight on objective indicia in applying the ATIA control test is confirmed by comparison with other areas of the law in which control tests have been developed to regulate the availability of certain legal benefits or the applicability of certain legal obligations. Multi-factor control tests of this kind have been developed, inter alia, to determine whether a person is an employee or an independent contractor for the purposes of taxation and tort liability,390 to ascertain whether a public body enjoys Crown immunity,391 and
387 FC Reasons, ¶144-145, AR, Vol. 1, p.67. 388 FC Reasons, ¶146, 162-165, 167-169, 200-203, AR, Vol. 1, p. 68, 75-77, 88-90. 389 See, for example, FC Reasons, ¶201-202, AR, Vol. 1, p.88-89, in which the Federal Court relied upon evidence from Margaret Bloodworth, former Deputy Minister of Transport, that she would have been unable to obtain another copy of abridged agendas on request. When asked to explain the basis for her view in this regard, Ms. Bloodworth stated: “In my view, and I think this view is consistent with, as you know, around town on at least the government side, is that records in a Minister’s Office are not covered by the Access to Information requests…”. 390 See Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 at 169-170 (J.C.P.C.); Sagaz Industries Canada Inc. v. 671122 Ontario Limited, [2001] 2 S.C.R. 983 at ¶33-48; Weibe-Door Services Ltd. v. Minister of Revenue Canada, [1986] 3 F.C. 553 at 562-563 (F.C.A.); Royal Winnipeg Ballet v. Minister of National Revenue, [2007] 1 F.C.R. 35 at ¶59-64 (per Sharlow JA concurring), ¶71-73, 81 (per Desjardins JA concurring) (F.C.A.). 391 See Halifax (City), supra; Westeel-Rosco, supra at 249-250, 253-254; R. v. Canadian Broadcasting Corp, supra at 343, 349-350; Canada (Conseil des Ports Nationaux), supra at 72; Eldorado Nuclear, supra at 573-574. - 86 -
to establish whether a public body is part of “government” for the purposes of s.32(1) of the Charter.392 All of these control tests are designed to identify the “true legal relationship” at issue, rather than relying unduly on certain factual matters that might be manipulated by the parties without substantially affecting that legal relationship. In other words, each of these tests ensures that the parties’ intentions or beliefs as to the character of their relationship is given effect only if that intention was fully reflected in objective indicia.393
[172] The Appellant submits that an appropriate test for “control” for the purposes of s.4 of ATIA must consider the substantive content of the record in question in light of the legal nature of the powers, duties and functions, and associated lines of responsibility and accountability, that constitute the government institution. In defining the scope of “departmental matters”, the test must also take into consideration the distinction between politics and administration, and the constitutional convention regarding public service neutrality.394 The test must be nuanced and factually-specific, but must also retain sufficient objective elements to guard against the self- fulfilling quality identified above. The test must also reflect the purpose of ATIA, in that it ought to translate a broad, liberal and generous approach to the concept of “control”. With these principles in mind, the Appellant submits that records in a Minister’s office will be under the control of the corresponding government institution for the purpose of ATIA where:
(a) The record was obtained or generated by the Minister or on his or her behalf; and (b) The record documents or gives effect to the Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions.
[173] The Appellant further submits that, on an application of the above test, all of the records at issue in these appeals are under the control of a government institution.
392 McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 272-274, 275 (per LaForest J. for the plurality), 358- 370 (per Wilson J. dissenting), 418-420 (per L’Heureux-Dubé J. dissenting in the result but agreeing with the plurality with respect to this point), 444 (per Sopinka J. concurring), 446 (per Cory J. concurring in the result but agreeing with Wilson J. with respect to this point); Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 at 584-585 (per LaForest J. for the plurality), 607-612 (per Wilson J. concurring); Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 at 239-244 (per Wilson J. concurring), 311-312 (per LaForest J. for the plurality); Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at ¶42-44, 49-51. 393 See, for example, Royal Winnipeg Ballet, supra at ¶64 (per Sharlow JA concurring), 81 (per Desjardins JA concurring); Douglas/Kwantlen, supra at 584-585; Eldorado Nuclear, supra at 573-574, 576 394 See discussion, supra at paragraphs 96-97, 99. - 87 -
(D) Ministers, as heads of government institutions, are also “officers” of those institutions for the purposes of the definition of “personal information” [174] The applicability of the “personal information” exemption arises in respect of four pages of the Prime Minister’s agendas that were located with the Clerk of the PCO, and in respect of the versions of the Prime Minister’s agendas that were located with the RCMP.395 Application of the s.19 exemption requires an interpretation of the phrase “officer or employee of a government institution” («un cadre ou employé…d’une institution fédérale»), which appears in an exception to the personal information exemption (the 3(j) carve-out).396 The 3(j) exception will apply, and the records must be disclosed, if the Prime Minister is an “officer of a government institution”.
[175] On this issue, the Court of Appeal reversed the Federal Court, for two reasons. First, the Court of Appeal stated that the Federal Court had “erred in law in importing into the Privacy Act the definitions of ‘public officer’ from statutes dealing with different subjects that use that term in different contexts’”.397 Second, the Court of Appeal relied upon its finding that ATIA “was drafted on the basis of a well understood convention that the Prime Minister’s office is an institution of government that is separate from the PCO”.398 On this basis, the Court of Appeal concluded that “if Parliament had intended the Prime Minister to be treated as an ‘officer’ of the PCO for the purposes of the Privacy Act, it would have said so expressly”.399
[176] Both aspects of the Court of Appeal’s reasoning on this issue reveal errors of law. First, the Appellant submits that in interpreting the term “officer” in the s.3(j) carve-out – which term is not defined in either the Privacy Act or ATIA – it is entirely correct to have regard to the definitions of similar terms in other federal statutes that regulate the organization of and exercise of powers by the executive/administrative branch. This does not erroneously import these similar terms into the Privacy Act and ATIA, but rather properly refers to the wider legal framework within which the Privacy Act and ATIA operate and on which they implicitly rely. As
395 In addition, if the records located in the PMO and in the Minister of Transport’s office are found to be under the control of the PCO and DoT respectively, the application of the s.19 exemption will need to be considered. 396 The s.19 exemption under ATIA incorporates by reference the definition of “personal information” set out in s.3 of the Privacy Act. The definition of “personal information” in s.3 of the Privacy Act includes certain exceptions “for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act”. One of these exceptions is set out in paragraph (j): “information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including...”. 397 FCA Reasons #2, ¶5, AR, Vol. 1, p.129. 398 FCA Reasons #2, ¶7, AR, Vol. 1, p.130. 399 FCA Reasons #2, ¶8, AR, Vol. 1, p.130-131. - 88 -
demonstrated above,400 the Interpretation Act, the FAA, ATIA and the Privacy Act – as well as the PSEA, MMSA, PSRTDA and other statutory and constitutional legal rules – all form part of an interlocking legal framework that regulates the organization of and exercise of powers by the executive/administrative branch. Indeed, the definition of “public officer” in s.2 of the Interpretation Act exists to give meaning to the provisions in ss.23 and 24 concerning the appointment of, retirement of and devolution of powers by office-holders, that apply across all government institutions, including all of those listed in Schedule I of ATIA.401 Similarly, the “public officer” definition in the FAA exists to give meaning to the statutory lines of responsibility and accountability created by the FAA in respect of the financial and human resource management of government institutions, which again include many of those listed in Schedule I of ATIA.402 In short, the Appellant submits that the Court of Appeal erred in law in its assertion that the Interpretation Act and the FAA are “statutes dealing with different subjects that use that term [“officer”] in different contexts” than the Privacy Act and ATIA.403 While the precise purposes of the term “public officer” in the Interpretation Act and FAA may differ from that of the term “officer” in the Privacy Act and ATIA, all these terms share a common foundation or core, which also reflects the ordinary meaning of “officer”: a person appointed to exercise certain designated powers, duties and function.
[177] Second, in respect of the Court of Appeal’s reliance on the “well understood convention”, the Appellant relies on its argument set out above at paragraphs 115-125.
(i) The grammatical and ordinary sense of the word “officer” or «cadre» includes Ministers and the Prime Minister [178] The lack of a definition in the Privacy Act and ATIA for the terms “officer” or “employee” – in contrast to the very specific definitions used in other federal statutes404 – is an indication that
400 See discussion supra at paragraphs 89-90. 401 Note in particular that the codification of the Carltona principle in the Interpretation Act appears as part of the provisions that rely upon the definition “public officer”: see Interpretation Act, R.S.C. 1985, c.I-21, ss.24(2)(d) and ss.23-24 generally. With respect to the Carltona principle, see discussion supra at paragraphs 91-95. 402 See, for example, FAA s.2 definition of “public money”, ss.9(1.1), 9(2), 9(3), 20, 159(2)(c). As noted supra at paragraph 107, some of the institutions listed in Schedule I of ATIA are not subject to the FAA. See Table 3. 403 FCA Reasons #2, ¶5, AR, Vol. 1, p.129. 404 With respect to the definition of “employee”, see e.g., British Columbia Grain Handling Operations Act, S.C. 1991, c.25, s.3; Government Employees Compensation Act, R.S.C. 1985, c.G-5, s.2; Canadian Security Intelligence Service Act, R.S.C. 1985, c.C-23, s.2; Canadian Tourism Commission Act, S.C. 2000, c.28, s.29; Public Sector Compensation Act, S.C. 1991, c.30, s.2; Public Service Labour Relations Act, S.C. 2003, c.22, s.2. With respect to the definition of “officer”, see e.g. Canada Pension Plan, R.S.C. 1985, c.C-8, s.2; Pension Benefits Standards Act, 1985, R.S.C. 1985, c.32 (2nd Supp.), s.2; Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s.248; Labour Adjustment - 89 -
Parliament intended the ordinary meaning of these words to govern their use in the context of the Privacy Act and ATIA. The Appellant submits that the ordinary meaning of the word “officer” of a government institution is clear, and embraces Ministers and the Prime Minister when acting in their official capacities – that is, when these persons are exercising the powers, duties and functions that attach to their ministerial offices.
[179] The Appellant submits that as a matter of linguistic intuition, there can be no doubt that reference to an “officer” («cadre») of an institution or organization extends without strain to the person who has management and direction of the institution’s work and is legally responsible for the exercise of the powers, duties and functions of the institution. Under ATIA and the Privacy Act, particular statutory powers, duties and functions relating to the administration of these Acts and the processing of requests are assigned to the “head” («responsible») of the scheduled institutions. In the case of departments, Ministers have both these functions: they are both legally responsible for all substantive powers, duties and functions associated with the department, and are the heads of the departments for the purposes of ATIA and the Privacy Act. There is no difficulty in the same individual being both the “head” of an institution and one of its officers. Indeed this confluence makes sense, as it is not surprising that Parliament would choose to assign the specific obligations relating to the Privacy Act and ATIA to the persons who are otherwise already legally responsible for the powers, duties and functions of the institutions in question.405
[180] This intuitive interpretation is consistent with and confirmed by dictionary definitions. The Oxford English Dictionary defines “officer” as: 1. One to whom a charge is committed, or who performs a duty, service or function; a minister; an agent. Obs. exc. when qualified as in 2. 2. One who holds an office, post or place. a. One who holds a public, civil, or ecclesiastical office; a servant or minister of the king, as one of the great functionaries of the royal household, etc.; a person authoritatively appointed or elected to exercise some function pertaining to public life, or to take part in the administration of municipal government, the management or direction of a public corporation, institution, etc. In early use, applied esp. to persons engaged in the administration of law or justice. b. A person holding office and taking part in the management or direction of a society or
Benefits Act, R.S.C. 1985, c.L-1, s.21; Cooperative Credit Associations Act, S.C. 1991, c.48, s.2. 405 With respect to the pattern of such confluence that is observed in practice in the institutions named in Schedule I of ATIA, see discussion supra at paragraph 131 and Table B, “Government institutions under ATIA, organized by ministerial portfolio”, Appellant’s Books of Authorities. - 90 -
institution, esp. one holding the office of president, treasurer or secretary; an office- bearer….406 [181] In keeping with the equal authenticity rule of bilingual statutory interpretation,407 it is important to have regard to the ordinary meaning of the terms used in both the English and French versions of s.3(j): “officer or employee” and «un cadre ou employé». Reference to «un cadre ou employé» in the French version of a federal statute, when the English version refers to “an officer or employee”, is rare. Typically, where the phrase “officer or employee” appears in the English text of a statute, the corresponding French text reads «dirigeant ou employé»,408 «fonctionnaire ou agent»409 or «administrateur ou membre du personnel».410 This is true across a wide range of subject matter and a long history of legislative drafting. Even within the Privacy Act and ATIA, the French term used to render the concept of “employee” or “officer” varies.411
[182] In light of this pattern, the choice of the word «cadre» in the s.3(j) carve-out should be given particular consideration. As with “officer”, the ordinary meaning of «cadre» naturally extends to include Ministers of departments. The French Canadian Multidictionnaire de la langue française defines « cadre » as: 1. Ensemble des personnes qui dirigent dans une entreprise, un organisme, une armée. 2. Personne responsable dans une entreprise, un organisme; elle est maintenant une cadre supérieure.412 The Robert & Collins Dictionnaire Français-Anglais/English-French Dictionary translates
406 Oxford English Dictionary, online version, 2nd ed. (1989), s.v. “officer” [emphasis added]. See also Black’s Law Dictionary, which defines “officer” as A person who holds an office of trust, authority or command. • In public affairs, the term refers esp. to a person holding public office under a national, state, or local government to exercise some specific function. In corporate law, the term refers esp. to a person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a CEO, president, secretary or treasurer” (Bryan A. Garner, ed., Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999), s.v. “officer”.) 407 Michel Bastarache et al. The Law of Bilingual Interpretation (LexisNexis: Markham, 2008) at 15; Sullivan, supra at 95-98. 408 See e.g. Animal Pedigree Act, S.C. 1985, c. 8 (4th Sup.), s.14(2); Bank Act, S.C. 1991, c. 46, passim; Blue Water Bridge Authority Act, S.C. 1964-65, c. 6, ss. 10, 22; Canada Grain Act, R.S.C. 1985, c. G-10, s.109; Competition Act, R.S.C. 1985, c. C-34, s.49(1); Criminal Code, R.S.C. 1985, c. C-46, s.425.1. 409 See e.g. Employment Equity Act, 1995, c. 44, s.34(3). 410 See e.g. Freshwater Fish Marketing Act, R.S.C. 1985, c. F-15, s.11. 411 E.g. at s.8 of the Privacy Act “officer or employees of the institution” is rendered by « [le] personnel de l’institution » (this was also the case in the original wording of s.s.21(2)(b) of ATIA, until it was amended by the Federal Accountability Act and is also the terminology used as s.58(1) of the Privacy Act and s.58(1) of ATIA.) Both the notions of “employee” and of “officer” are rendered by the word « fonctionnaire »in the French text of different sections (ss. 6, 71(1) of ATIA refers to “employees” in English and « fonctionnaire » in French, while s.5(1)(d) (and s.11(1)(a)(iii) and11(b)(ii) of the Privacy Act) refer to “the appropriate officer” in English and le « fonctionnaire chargé » in French. 412 Multidictionnaire de la langue française, 4th ed (Montréal : Quebéc Amérique, 2003), s.v. «cadre». - 91 -
«dirigeant» as “director, manager” and «fonctionnaire» as “state servant or employee”.413 The same volume offers a number of different definitions of «cadre» depending on the context in which it is used. The only definition that would be applicable to the term as used in the s.3(j) carve-out is “executive, manager”, and this definition is introduced with the synonyms «chef, responsable». 414 This is significant given that the notion of “head” of a government institution under ATIA is rendered by « responsable » in the French text.415
[183] The ordinary meaning of «cadre» thus clearly encompasses the “head” of a government institution («responsable d’institution fédérale»), including the Prime Minister in respect of the PCO and Ministers with their respective departments. The shared meaning416 of “officer” and «cadre» is a necessarily expansive one. The plain, deliberate, and unambiguous language chosen by Parliament to express the same concept in English and French leads to a construction of the terminology that includes Ministers and the Prime Minister.
[184] That the ordinary meaning of “officers” includes “ministers” is also reinforced by the language used in the caselaw, in which the term “officer” is employed by courts to describe the functions of Ministers as office holders. For example, in an 1890 decision involving the reorganization of federal departments, this Court described Ministers as officers:
“…the Public Works Department was divided into two departments, namely, the Department of Railways and Canals, presided over and managed by an officer designated ‘Minister of Railways and Canals,’ and the Department of Public Works, presided over and managed by an officer designated ‘Minister of Public Works…”417 Such case law describing Ministers as officers has continued through to the present day.418
[185] Finally, ordinary meaning – and the meaning intended by Parliament in using “officer” in
413 Paul Robert, ed., Robert•Collins Dictionnaire Français-Anglais Anglais- Français / Beryl T. Atkins et al., Collins•Robert French-English English-French Dictionary, s.v. « dirigeant », « fonctionnaire ». 414 Ibid., s.v. « cadre » [emphasis added]. 415 ATIA, s.3 416 See Sullivan, supra at pp 100-118; and Bastarache, supra. 417 Kearney v. Oakes [1890], 18 S.C.R. 148 at ¶31 [emphasis added]. 418 For examples in the late-19th century and early 20th century see, for example, R. v. McFarlane, [1882] 7 S.C.R. 216 at 234, in which the Minister of Public Works is referred to as a “high officer of state” and Hamburg American Packet Co. v. R. (1907), 39 S.C.R. 621 at ¶2, in which the Attorney General and deputy ministers are referred to as “salaried officers of the Crown”. More recently, see for example, Saskatchewan Federation of Labour v. Saskatchewan (Attorney General), 2010 SKCA 27 at ¶64, in which it is stated that members of the Executive Council “are appointed by the Lieutenant Governor to serve during pleasure (the premier as president of the Executive Council and the ministers as officers)” [emphasis added]. See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at ¶92, 96, 115; the Court specifically refers to Ministers of the Crown as an example of “certain officers” who “fulfill constitutionally defined state roles”. - 92 -
s.3(j) – is also elucidated by reference to other statutes in which the term “officer” or a similar term is defined. While the Federal Court found the definitions of “public officer” in the FAA419 and the Interpretation Act420 particularly instructive, numerous other statutory definitions of “officer” or similar terms serve to reinforce the view that “officer” means a person appointed to exercise certain powers, duties and functions,421 and generally includes Ministers.422
(ii) The objects of the Acts and of the s.3(j) carve-out [186] This Court has emphasized that the Privacy Act and ATIA are intended to work together to provide “a coherent and principled mechanism for determining which value [access or privacy] should be paramount in a given case”.423 The “tightly interlaced”424 nature of these two statutes has in particular been recognized in relation to the treatment of personal information.425 Thus, while the primary purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves held by government institutions, and while the definition of “personal information” is broadly inclusive, the exceptions to that definition also serve an important purpose, directly tied to the competing interest protected by ATIA. As this Court has stated, s.3(j) embodies the notion that “Parliament has…chosen to give less protection to the privacy of federal employees [and officers] when the information requested relates to their position or functions”.426 In RCMP, this Court stated that “[t]he purpose of section 3(j) is to ensure that the state and its agents are held accountable to the general public”.427 In Dagg, both the majority and the dissent agreed that the purpose of the s.3(j) carve-out was “…to exempt only
419 “Public officer” includes a minister of the Crown and any person employed in the federal public administration” (the French term is « fonctionnaire public »); Financial Administration Act, R.S., 1985, c. F-11, s.2. 420 "Public officer" includes any person in the federal public administration who is authorized by or under an enactment to do or enforce the doing of an act or thing or to exercise a power, or on whom a duty is imposed by or under an enactment (the French term is « fonctionnaire public »); Interpretation Act, R.S.C. 1985, c. I-21, s.2. 421 See, e.g., the types of “officers” defined under the Canada Labour Code, R.S.C, 1985, c.L-2, s.2 who are to exercise powers under specified sections of that Act (“appeals officer”; "health and safety officer"; "regional health and safety officer"; see sections 141, 141.1, 145, 145.1, 146.2); “Compliance officers” under the Employment Equity Act, S.C. 1995, c.44, ss.3, 22(3), 23; and “Screening officers” under the Marine Transportation Security Act, 1994, c.40, s.2, who are granted duties and powers at s.20 of the Act. 422 For example, the definition of “employee” in the Canada Pension Plan, R.S.C. 1985, c. C-8, s.2, “includes an officer” and the terms “office” and “officer” in that Act are defined to mean “the position of an individual entitling him to a fixed or ascertainable stipend or remuneration and includes…the office of a minister of the Crown….” The definition of “office” and “officer” in the Income Tax Act are similar (R.S., 1985, c. 1 (5th Sup.), s.248). 423 Dagg, supra at ¶45 (per LaForest J. dissenting but not on this point); Information Commissioner v. RCMP, supra at ¶22. 424 Heinz, supra at ¶24. 425 See, generally, Dagg, supra; Information Commissioner v. RCMP, supra; Heinz, supra. 426 Information Commissioner v. RCMP, supra at ¶34. 427 Ibid. at ¶31. - 93 -
information attaching to positions and not that which relates to specific individuals”.428
[187] ATIA’s purpose is to provide a mechanism to foster democratic engagement and ensure the accountability of politicians and bureaucrats to the citizenry; the purpose of the Privacy Act is to protect government-held information that relates to a private sphere of physical and moral autonomy and personal identity.429 The Appellant submits that the interlaced purposes of the Privacy Act and ATIA, and the emphasis on positions rather than individuals, must inform the meaning to be given to the term “officer” for the purposes of s.3(j). An interpretation of “officer” that is inclusive of Ministers serves the purpose of the provision by ensuring that information about the positions of Ministers within government institution (and not their positions within the House of Commons or their personal information unrelated to a government institution) is disclosed so that greater accountability can be achieved. The contrary interpretation permits information that is entirely related to a Minister’s position as an office-holder responsible for the direction and management of a department to be withheld from the public.
[188] The other components of the personal information carve-out should also be borne in mind when assessing the scope of 3(j), as these other components assist in discerning the overarching purpose of the exceptions to the definition of personal information. While s.3(j) applies to information about “officers and employees” of government institutions, s.3(k) excepts “information about an individual who is or was performing services under contract for a government institution” when such information relates to the “services performed”. These sections thus ensure the accountability of government by permitting disclosure of both information relating to positions within government institutions and services performed for government institutions under contract.
(iii) The intent of Parliament: The functions of Ministers, including the Prime Minister, make them officers [189] The inclusion of the term “officer” in s.3(j) indicates that this carve-out must include individuals who would not be included within the category “employees”, as the use of the word “officer” would otherwise be superfluous. Under the PSEA, “employee” means “a person employed in that part of the public service to which the [Public Service] Commission has exclusive authority to make appointments”, and “employer” is defined as the Treasury Board in
428 Dagg, supra at ¶5 (per Cory J. for the majority), ¶94 (per LaForest J. dissenting) [emphasis original]. 429 Ibid. at ¶47, 61, 64-67. - 94 -
relation to an institution named in Schedule I or IV of the FAA, or as the separate agency in relation to an institution named in Schedule V.430 In such institutions, one would expect “officers” to be persons who are not appointed by the Public Service Commission and exercise powers, duties and functions related to the institution. Under the PSEA, such persons include Deputy Ministers, Associate Deputy Ministers, deputy heads as defined by the PSEA,431 and persons occupying positions of equivalent rank, who are appointed by the Governor in Council.432 The constituting legislation of other government institutions listed in Schedule I of ATIA identifies other persons who are appointed by the Minister or the Governor in Council.433 The Appellant submits that in relation to departments, Ministers are functionally comparable to other “officers” in other government institutions.
PARTS IV & V – COSTS AND ORDERS REQUESTED
[190] The Appellant respectfully requests that all four appeals be allowed, and that orders issue requiring the records in question to be disclosed to the respective requesters, subject to any previously-claimed ATIA exemptions that properly apply and consistent with the guidance provided by this Court.434 The Appellant seek its costs in this Court and the courts below.
ALL OF WHICH is respectfully submitted by
______Laurence Kearley Marlys Edwardh Diane Therrien Jessica Orkin
430 PSEA, s.2. As Table 2 shows, almost all of the entities named in Schedules I, IV and V of the FAA are also named in Schedule I of ATIA. 431 The PSEA defines the “deputy head” as the Deputy Minister in relation to a department; and the CEO or statutory deputy head in relation to an organization named in Schedule IV or V of the FAA. 432 See PSEA s.127.1. 433 See, e.g., Library and Archives of Canada Act, S.C. 2004, c.11, s.5(1) (Governor in Council to appoint Librarian and Archivist of Canada); Public Health Agency of Canada Act, S.C. 2006, c.5, s.6(1) (Governor in Council to appoint Chief Public Health Officer); Canada Post Corporation Act, R.S.C. 1985, c.C-10, s.7(1) (Chairperson of Board to be appointed by Governor in Council). 434 Paragraph 5 of the original order of Federal Court in these matters stated that “[i]f there is a disagreement with any disclosure or severance, the Commissioner may refer the matter back to the Court within 30 days after the respondents have completed the severance and disclosure”: see FC Reasons, AR, Vol. 1, p.98. The Appellant would be content if the possibility of a reference back to the Federal Court regarding any disputed severances were included in the orders of this Court in respect of these appeals. Table 1 – Variation in degree of ministerial control across institutions
Type of institution Typical statutory indicia of the degree of ministerial control Examples Department ⋅ Minister “presides” and “has the management and direction of the Department” ⋅ Department of National Defence ⋅ Powers, duties and functions assigned to the Minister ⋅ Department of Transport ⋅ Listed in Schedule I and Part I of Schedule VI of FAA Institution under ⋅ Minister “presides” and “has the management and direction” of the agency ⋅ Public Health Agency of Canada ministerial control ⋅ Agency assists Minister in exercising the Minister’s powers, duties and functions ⋅ Northern Pipeline Agency ⋅ Agency is an agent of Her Majesty ⋅ Listed in Part II of Schedule VI of FAA Institution with ⋅ Statute specifies that the “Minister is responsible for the Agency”. ⋅ Canada Border Services Agency significant ⋅ Powers, duties and functions assigned to the Minister, and then conferred on or delegated to the agency ⋅ Canadian Environmental Assessment Agency ministerial control ⋅ Statute specifies that the agency is an agent of Her Majesty, for some or all purposes. ⋅ Canadian Food Inspection Agency ⋅ Statute specifies that the head of the agency (generally CEO or President), has the control and management of the ⋅ Canadian Space Agency agency’s work and staff, but is subject to the direction of the Minister or required to keep Minister informed ⋅ Parks Canada Agency ⋅ Listed in Part II of Schedule VI of FAA ⋅ Atlantic Canada Opportunities Agency ⋅ Same as above, except listed in Part III of Schedule VI of FAA ⋅ Canada Revenue Agency
⋅ ⋅ - Statute specifies that Minister “presides” over the agency Economic Development Agency of Canada 95 ⋅ Statute specifies that the president of the institution has the “control and supervision” of the work, officers and for the Regions of Quebec employees of the institution, “under the direction of the Minister” - ⋅ Some powers and functions assigned to the institution; some assigned to the Minister ⋅ Statute specifies that agency to “assist” Minister in exercising his powers and performing his duties and functions ⋅ Listed in Part II of Schedule VI of FAA ⋅ Statute specifies that the head of the institution has the control and management of the institution, under the direction of ⋅ Correctional Service of Canada (or, in some cases, “overall direction of” or simply “under”) the Minister ⋅ Royal Canadian Mounted Police ⋅ Most powers and functions assigned to the institution or its members; only some powers and functions assigned to the ⋅ Statistics Canada Minister ⋅ Canadian Security Intelligence Service ⋅ Listed in Part II of Schedule VI of FAA ⋅ Statistics Canada Institution with ⋅ Statute specifies that the institution is “under the direction” of the head, but is “presided over” by the Minister ⋅ Library and Archives Canada more independence, ⋅ Powers assigned to the institution or its head but subject to active ⋅ Listed in Part III of Schedule VI of FAA ministerial presence Quasi-judicial ⋅ Members appointed by Governor in council, to hold office during good behaviour, for fixed term National Parole Board administrative ⋅ Some powers subject to direction of Minister, but most under independent control of institution’s members tribunals under ⋅ Statute specifies that the Chairperson of the institution has the “control and supervision” of the work of the staff financial control ⋅ Executive Committee will adopt policies relating to review, members have to exercise theirs functions according to these policies ⋅ No report requirement ⋅ Listed in Part II of Schedule VI of FAA Type of institution Typical statutory indicia of the degree of ministerial control Examples Quasi-judicial ⋅ Members appointed by the Governor in Council, to hold office during good behaviour for fixed term (Note: Except for Canada Industrial Relations Board administrative the National Energy Board) Canadian Human Rights Tribunal tribunals with ⋅ Statute specifies that the Chairperson has supervision over and direction of the work of the members and employees Copyright Board greater ⋅ Statute specifies that institution may establish rules of procedure and determine how they conduct their work (in some National Energy Board independence instances, it is subject to approval of Governor in Council) Patented Medicine Prices Review Board ⋅ Institution has the procedural powers as a court of record or Commissioners under the Inquiries Act Public Service Staffing Tribunal ⋅ Statute specifies that Chairperson to submit annual report to Minister, and Minister shall cause such report to be laid Transportation Appeal Tribunal of Canada before the each House of Parliament (except for Canadian Human Rights Tribunal: report to Parliament) ⋅ Listed in Part III of Schedule VI of FAA Crown corporations ⋅ Established as a corporation ⋅ Atlantic Pilotage Authority ⋅ Appointment process: by Governor in Council on recommendation of Minister; or, by Chairperson or Minister on ⋅ Canada Employment Insurance Financing recommendation of Governor in Council Board ⋅ Generally, members hold office during pleasure; in some cases, office held during good behaviour (Canada Mortgage ⋅ Canadian Broadcasting Corporation and Housing Corporation, Canada Employment Insurance Financing Board, Canadian Broadcasting Corporation) ⋅ Canadian Race Relations Foundation ⋅ President/chairperson has the direction and control of the corporation ⋅ Canadian Museum of Nature ⋅ Purpose, functions and duties of Corporation are established by statute ⋅ Canada Pension Plan Investment Board ⋅ Corporations can may make by-laws respecting the management of its internal affairs ⋅ Listed in Part I of Schedule III of FAA -
Dividend-paying ⋅ Dividend-paying corporations ⋅ Canada Development Investment Corporation 96
Crown corporations ⋅ Corporations required to submit dividend proposal to appropriate Minister ⋅ Canada Post Corporation - ⋅ Listed in Part II of Schedule III of FAA ⋅ Royal Canadian Mint Statutory ⋅ Appointed by the Governor in Council, to hold office during good behaviour for fixed term; may be suspended or ⋅ Office of the Correctional Investigator of ombudspersons removed for cause by Governor in Council Canada ⋅ Statute specifies that ombudsperson has control and management of all matters connected with the office ⋅ Canadian Forces Grievance Board ⋅ Statute assigns to ombudsperson functions of investigation and recommendation with respect to certain areas ⋅ Statute specifies that ombudsperson to submit annual report to Minister, and Minister shall cause such report to be laid before the each House of Parliament ⋅ Listed in Part III of Schedule VI of FAA Officers of ⋅ Officer appointed by Governor in Council, after consultation with the leader of every recognized party in the Senate and ⋅ Office of the Information Commissioner Parliament House of Commons and approval of the appointment by resolution of the Senate and House of Commons ⋅ Office of the Privacy Commissioner ⋅ Officer empowered to receive complaints and conduct independent investigations with respect to certain subjects, and to ⋅ Office of the Commissioner of Lobbying make recommendations to the government institution and/or person whose practice is at issue ⋅ Office of the Commissioner of Official ⋅ Statute specifies that Officer to report annually directly to Parliament Languages ⋅ Listed in Part III of Schedule VI of FAA ⋅ Office of the Auditor General of Canada ⋅ Office of the Public Sector Integrity Commissioner Statutory superior ⋅ Requirement of full judicial independence applies to the institution itself, or the institution directly serves an institution ⋅ Federal Court court to which the requirement of full judicial independence applies ⋅ Courts Administration Services ⋅ Not subject to ATIA ⋅ Office of the Commissioner for Federal Judicial Affairs ⋅ Registrar of the Supreme Court of Canada Table 2 – Comparison of the institutional categories of the FAA and the scope of ATIA
FAA category and definition Statutory purpose of FAA category Institutions included in FAA category that Institutions separately listed in (not exhaustive list) are not subject to ATIA FAA category, that fall within [number of institutions another institution subject to falling within category] ATIA “core public administration” – ⋅ FAA s.12(1) – human resources management powers of deputy heads ⋅ Canadian Intergovernmental Conference ⋅ Department of Social s.11 defines as “departments for institutions within the core public administration Secretariat Development1 named in Schedule I and the ⋅ PSEA s.2 – for organizations named in Schedules I or IV of FAA, ⋅ Competition Tribunal ⋅ Department of Human Resources other portions of the federal “employer” means Treasury Board ⋅ Courts Administration Service and Skills Developments1 public administration named ⋅ PSEA s.26(1) – Treasury Board may make regulations respecting ⋅ International Joint Commission (Canadian ⋅ Treasury Board2 in Schedule IV” certain employment matters Section) ⋅ Communication Canada3 [90] ⋅ PSEA s.132 – within core public administration, transfer of ⋅ NAFTA Secretariat – Canadian Section ⋅ Office of the Superintendent of employees occurs by operation of law when an order is made under ⋅ Office of the Commissioner for Federal Bankruptcy4 the PSRTDA Judicial Affairs ⋅ Office of the Governor-General’s Secretary ⋅ Staff of the Supreme Court ⋅ Transportation Appeal Tribunal of Canada “public service” – s.11 ⋅ FAA s.11.1 – human resources management powers of the Treasury Same as institutions listed in respect of the In addition to the institutions listed defines as “the several Board category “core public administration” in respect of the category “core - 97 positions in or under (a) the ⋅ PSEA – appointment powers and processes of the Public Service public administration”: departments named in Commission generally apply to institutions within the “public ⋅ Communication Security - Schedule I; (b) the other service” Establishment, Department of portions of the federal public National Defence5 service named in Schedule ⋅ Staff of the Non-Public Funds, IV; (c) the separate agencies Canadian Forces6 named in Schedule V; and (d) ⋅ Statistical Survey Operations7 any other portion of the ⋅ Canada Investment and Savings8 federal public administration ⋅ Indian Oil and Gas Canada9 that may be designated by the Governor in Council for the purpose of this paragraph.” [117] Schedule I – list of Ministerial ⋅ PSEA s.2 – for the purposes of PSEA, “department” means (a) an None ⋅ Department of Social Departments, plus Treasury organization named in Schedule I of the FAA, (b) any other Development1 Board organization designated by the Governor in Council as a department ⋅ Department of Human Resources [21] for the purposes of PSEA, or (c) any part of any organization that is and Skills Developments1 designated by the Governor in Council as a department for the ⋅ Treasury Board2 purposes of PSEA ⋅ PSEA s.2 – “deputy head” defined, in relation to an organization named in Schedule I of FAA, its deputy minister FAA category and definition Statutory purpose of FAA category Institutions included in FAA category that Institutions separately listed in (not exhaustive list) are not subject to ATIA FAA category, that fall within [number of institutions another institution subject to falling within category] ATIA “department” – s.2 defines as ⋅ FAA s.7(1) – Treasury Board authority to regulate financial ⋅ Canadian Intergovernmental Conference ⋅ Department of Social “(a) any of the departments management, expenditure plans and programs of departments Secretariat Development1 named in Schedule I; (a.1) ⋅ FAA s.9 – Treasury Board authority to prescribe the manner and ⋅ Courts Administration Service ⋅ Department of Human Resources any of the divisions or form of accounts of departments ⋅ NAFTA Secretariat – Canadian Section and Skills Developments1 branches of the federal public ⋅ FAA s.16.1 – responsibility of deputy heads of departments for ⋅ Office of the Commissioner for Federal ⋅ Treasury Board2 administration set out in ensuring internal audit capacity Judicial Affairs ⋅ Office of the Communication column I of Schedule I.1; (b) ⋅ FAA s.42.1 – subject to any directives issued by Treasury Board, ⋅ Office of the Governor-General’s Secretary Security Establishment 5 a commission under the every department shall conduct a review every five years of the ⋅ Registrar of the Supreme Court of Canada Commissioner Inquiries Act…; (c) the staffs relevance and effectiveness of each ongoing program for which it is and that portion of the federal public of the Senate, House of responsible administration appointed under subsection Commons, Library of ⋅ FAA s.62 – deputy head of every department shall maintain adequate 12(2) of the Supreme Court Act Parliament, office of the records in relation to public property for which the department is ⋅ Registry of the Competition Tribunal Senate Ethics Officer and responsible ⋅ Transportation Appeal Tribunal of Canada office of the Conflict of ⋅ Commissions under the Inquiries Act (part Interest and Ethics (b) of the definition of “department”) Commissioner; and (d) any ⋅ departmental corporation Staffs of the Senate, House of Commons, Library of Parliament, office of the Senate - [named in Schedule II]” 98 [106] Ethics Officer and office of the Conflict of Interest and Ethics Commissioner (part (c) - of the definition of “department”) Schedule VI ⋅ FAA s.16.4(1) – within framework of appropriate minister’s ⋅ Courts Administration Service ⋅ Department of Social [105] responsibilities and accountability to Parliament, accounting officer ⋅ NAFTA Secretariat – Canadian Section Development1 of a department named in Part I of Schedule VI accountable before ⋅ Office of the Commissioner of Federal ⋅ Department of Human Resources committees of Senate and House of Commons for financial Judicial Affairs and Skills Developments1 management ⋅ Registrar of the Supreme Court of Canada ⋅ Canadian Firearms Centre10 ⋅ FAA s.16.4(2) - within framework of appropriate minister’s ⋅ Registry of the Competition Tribunal ⋅ Office of the Communication responsibilities under the Act or order constituting the department ⋅ Transportation Appeal Tribunal of Canada Security Establishment and accountability to Parliament, accounting officer of a department Commissioner4 named in Part II or III of Schedule VI accountable before committees of Senate and House of Commons for financial management ⋅ FAA s.16.5 – Treasury Board dispute resolution mechanism applicable to departments named in Parts I or II of Schedule VI “separate agency” – “means a ⋅ FAA s.12(2) – human resources management powers of deputy heads None ⋅ Communication Security portion of the federal public for separate agencies Establishment, Department of administration named in ⋅ PSEA s.2 – separate agency “means an organization named in National Defence5 Schedule V” Schedule V” to the FAA ⋅ Staff of the Non-Public Funds, [27] ⋅ PSEA s.2 – for organizations named in Schedule V of FAA, Canadian Forces6 “employer” means the separate agency ⋅ Statistical Survey Operations7 ⋅ PSEA s.26(2) – separate agency may make regulations respecting ⋅ Canada Investment and Savings8 certain employment matters ⋅ Indian Oil and Gas Canada9 FAA category and definition Statutory purpose of FAA category Institutions included in FAA category that Institutions separately listed in (not exhaustive list) are not subject to ATIA FAA category, that fall within [number of institutions another institution subject to falling within category] ATIA Schedule III – list of parent ⋅ FAA s.83(1) – “‘Crown corporation’ means a parent Crown None None Crown corporations corporation or a wholly-owned subsidiary”; “‘parent Crown [37] corporation’ means a corporation that is wholly owned directly by the Crown, but does not include a departmental corporation” ⋅ FAA s.83(2) – a corporation is wholly owned by the Crown if “a) all of the issued and outstanding shares of the corporation, other than shares necessary to qualify persons as directors, are held, otherwise than by way of security only, by, on behalf of or in trust for the Crown; or (b) all the directors of the corporation, other than ex officio directors, are appointed by the Governor in Council or by a minister of the Crown with the approval of the Governor in Council”. ⋅ See also FAA ss.70, 94, 123, 130.1
1 Pursuant to the PSRTDA, the Department of Social Development and the Department of Human Resources and Skills Development were amalgamated under one Minister, styled -
Minister of Human Resources and Social Development, in 2006: see SI/2006-10 (P.C. 2006-37), C. Gaz.2006.II.103. The constituting legislation in respect of these two departments has to 99 date not been amended, and both departments are still listed in Schedule I of FAA: see Department of Social Development Act, S.C. 2005, c.35 and Department of Human Resources and Skills Development Act, S.C. 2005, c.34. However, Schedule I to ATIA and the Privacy Act were amended at the same time as the amalgamation, by Orders in Council: see SOR/2006-10 - (P.C. 2006-38), C. Gaz.2006.II.79 and SOR/2006-25 (P.C. 2006-39), C. Gaz.2006.II.80. 2 The Treasury Board is a committee of the Privy Council over which the President of the Treasury Board presides: see FAA, s.5. The portfolio of President of the Treasury Board was created by statute: see S.C. 1966, c.25. Prior to 1966, the Minister of Finance was ex officio the Chairman of the Treasury Board. The Treasury Board Secretariat, through which the powers of the Treasury Board are exercised, is listed in Schedule I of ATIA. 3 Pursuant to the PSRTDA, Communication Canada was amalgamated with the Department of Public Works and Government Services in 2004, with the exception of certain portions that were transferred to the Privy Council Office: see SI/2004-16 (P.C. 2004-100), C. Gaz.2004.II.69 and SI/2004-14 (P.C. 2004-98), C. Gaz.2004.II.67. 4 The Office of the Superintendent of Bankruptcy is part of the Department of Industry. 5 The Communications Security Establishment is part of the Department of National Defence. See Appellant’s Factum, ¶136. 6 The Staff of the Non-Public Funds, Canadian Forces forms part of the Canadian Forces, but is not subject to the PSEA (see Non-Public Funds Staff Regulations, SOR/82-361b), and has been designated as a separate employer for the purposes of the Public Service Staff Relations Act (see SOR/2000-131, C.Gaz.2000.II.736). 7 In terms of its substantive work, the Statistical Survey Operations is part of Statistics Canada. 8 Canada Investment and Savings (CI&S), formerly a special operating agency within the Department of Finance, was consolidated with the Financial Markets division (Financial Sector Policy Branch) and the Bank of Canada in 2007. 9 Indian Oil and Gas Canada is a special operating agency within the Department of Indian Affairs and Northern Development. 10 The Canadian Firearms Centre is now part of the RCMP. See Appellant’s Factum, ¶134. - 100 -
Table 3 – Government institutions listed in Schedule I of ATIA, but not listed in the FAA Schedules
Port authorities under the Territorial resource tribunals Bodies with regulatory Entities with current or Canada Marine Act established by statute powers established by past independent statute statutory basis falling within other institutions subject to ATIA Belledune Port Authority Gwich’in Land and Water Board Canadian Wheat Board Canadian Forces Fraser River Port Authority Gwich’in Land Use Planning First Nations Financial Canadian Government Halifax Port Authority Board Management Board Specifications Board Hamilton Port Authority Mackenzie Valley Environmental First Nations Tax Federal-Provincial Montreal Port Authority Impact Review Board Commission Relations Office Nanaimo Port Authority Mackenzie Valley Land and Office of the Grain Transportation North Fraser Port Authority Water Board Administrator of the Agency Administrator Port Alberni Port Authority Northwest Territories Water Ship-source Oil The Indian Residential Prince Rupert Port Authority Board Pollution Fund Schools Truth and Quebec Port Authority Nunavut Surface Rights Tribunal Reconciliation Saguenay Port Authority Nunavut Water Board Commission Secretariat Saint John Port Authority Sahtu Land and Water Board Office of the Comptroller Sept-Îles Port Authority Sahtu Land Use Planning Board General St. John’s Port Authority Yukon Environmental and Socio- Office of the Inspector Thunder Bay Port Authority economic Assessment Board General of the Toronto Port Authority Yukon Surface Rights Board Canadian Security Trois-Rivières Port Authority Intelligence Service Vancouver Port Authority Office of Privatization and Windsor Port Authority Regulatory Affairs Petroleum Compensation Board Public Service Human Resources Management Agency of Canada Statute Revision Commission
Foundations created by statute Administrative tribunals Independent agencies, Crown corporations established by statute or treaty Asia-Pacific Foundation of Merchant Seamen Compensation Canada-Newfoundland Canadian Museum for Canada Board Offshore Petroleum Human Rights Canada Foundation for Pension Appeals Board Board (by statute) Federal Public Service Innovation Canadian Cultural Property Canada-Nova Scotia Health Care Plan Canada Foundation for Export Review Board Offshore Petroleum Administration Sustainable Development Board (by statute) Authority Technology British Columbia Treaty Canada Millennium Scholarship Commission (by Foundation treaty between BC International Centre for Human and Canada) Rights and Democratic Development
Private foundations receiving Consultative and Department-like entities Defunct institutions government funding recommendatory bodies The Pierre Elliott Trudeau Historic Sites and Monuments Treasury Board Canadian Advisory Council Foundation Board of Canada Secretariat on the Status of Regional Development Women Incentives Board
- 101 -
PART VI – TABLE OF AUTHORITIES
J URISPRUDENCE
Authority Cited at para.
Alberta Government Telephones v. Canadian Radio-Television and 141 Telecommunications Commission, [1989] 2 S.C.R. 225
Andersen Consulting v. Canada, [2001] 2 F.C. 324 (F.C.) 161
Arseneau v. The Queen, [1979] 2 S.C.R. 136 62
ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 52 [2006] 1 S.C.R. 140
Attorney General (Quebec) v. Blaikie, [1981] 1 S.C.R. 312 62, 75, 80, 117
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 61, 73
Beauchamp v. Canada (Junior Minister of Finance) (1989), 30 F.T.R. 84 318 (T.D.)
Beauregard v. Canada, [1986] 2 S.C.R. 56 61
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 49
Branigan v. Canada (Minister of Citizenship and Immigration) (2004), 89 247 F.T.R. 305 (F.C.)
British Columbia v. Imperial Tobacco Ltd., [2005] 2 S.C.R. 473 61
Canada (Attorney General) v. Canada (Information Commissioner) 168 (2001), 268 N.R. 328 (F.C.A.).
Canada (Attorney General) v. Canada (Information Commissioner), 109 [2002] 3 F.C. 606 (F.C.)
Canada (Attorney General) v. Canada (Information Commissioner), 36, 109, 110, 156, 168 2004 FC 431, [2004] 4 F.C.R. 181
Canada (Attorney General) v Canada (Information Commissioner), 36, 110 [2005] 4 F.C.R. 673, 2005 FCA 199
Canada (Attorney General) v. Canada (Information Commissioner), 36 349 N.R. 196 (S.C.C. Nov 17, 2005), [2005] S.C.C.A. No.356 - 102 -
Authority Cited at para.
Canada (Attorney General) v. Public Service Alliance of Canada, 108 [1991] 1 S.C.R. 614
Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667 61, 67, 115
Canada (Information Commissioner) v. Canada (Commissioner of the 94 Royal Canadian Mounted Police), [2003] 1 S.C.R. 66
Canada (Information Commissioner) v. Canada (Minister of Industry), 156 [2002] 1 F.C. 421 (F.C.A.)
Canada (Information Commissioner) v. Canada (Minister of National 110 Defence) (1999), 240 N.R. 244 (F.C.A.)
Canada (Information Commissioner) v. Canada (Prime Minister), 55 [1993] 1 F.C. 427 (T.D.)
Ottawa Football Club v. Canada (Minister of Fitness and Amateur 168 Sports), [1989] 2 F.C. 480 (T.D.)
Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 168 F.C. 320 (T.D.)
Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 168 F.C. 110 (F.C.A.)
Canada Post Corp. v. Canada (Minister of Public Works and 168 Government Services) (2004), 244 F.T.R. 207 (F.C.)
Canada Post Corp. v. Canada (Minister of Public Works) (2004), 328 168 N.R. 98 (F.C.A.)
Canada (Prime Minister) v. Khadr, 2010 SCC 3 67
Canada (Privacy Commissioner) v. Canada (Labour Relations Board), 168 [1996] 3 F.C. 609 (T.D.)
Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601 49
Canadian Broadcasting Corp. v. Ontario (Attorney General), [1959] 144 S.C.R. 188
Canadian Imperial Bank of Commerce v. Canada (Canadian Human 168 Rights Commission), [2008] 2 F.C.R 509 (F.C.A.) - 103 -
Authority Cited at para.
Canadian Pacific Air Lines Ltd. v. Canadian Air Lines Pilots Assn, 126 [1993] 3 S.C.R. 724
Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.) 91, 93, 95, 96, 99, 101, 143, 147, 176
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 61 350
City of Toronto Economic Development Corp. v. Ontario (Information 162 and Privacy Commissioner) (2008), 292 D.L.R. (4th) 706 (Ont. C.A.)
Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Ocean), 91 [1997] 1 S.C.R. 12
Communauté urbaine de Montréal (Société de transport) v. Canada 54 (Minister of Environment), [1987] 1 F.C. 610 (T.D.)
Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 72 S.C.R. 854
Criminal Lawyers’ Association v. Ministry of Public Safety and Security 55 (2007), 86 O.R. (3d) 259 (C.A.),
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 52, 53, 55, 103, 186
David v. Ontario (Information and Privacy Commissioner) (2006), 217 168 O.A.C. 112 (Div. Ct.)
Desjardins, Ducharme, Stein, Monast v. Canada (Department of 168 Finance), [1999] 2 F.C. 381 (T.D.)
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 61 S.C.R. 3
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 171 570
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 156, 184
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 171
Entick v. Carrington (1765), 95 E.R. 807 (K.B.) 69
Fidelity Insurance Co. of Canada v. Cronkhite Supply Ltd., [1979] 2 141 S.C.R. 27 - 104 -
Authority Cited at para.
Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455 61
Greater Vancouver Mental Health Service Society v. British Columbia 168 (Information and Privacy Commissioner) (1999), 85 A.C.W.S. (3d) 978 (B.C.S.C.)
Halifax (City) v. Halifax Harbour Commissioner, [1935] S.C.R. 215 141
Hamburg American Packet Co. v. R. [1907], 39 S.C.R. 621 184
H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 55 S.C.R. 441
H. Lavender & Son Ltd. v. Minister of Housing and Local [1970] 3 All 95 E.R. 871 (Q.B.D.)
Housen v. Nikolaisen, [2002] 2 S.C.R. 235 48
Jackson Stansfield & Sons v. Butterworth, [1948] 2 All E.R. 558 (C.A.) 95
Kearney v. Oakes [1890], 18 S.C.R. 148 184
Lavigne v. Canada (Office of the Commissioner of Official Languages), 55 [2002] 2 S.C.R. 773
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 171 211
Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 52
McKinney v. University of Guelph, [1990] 3 S.C.R. 229 171
Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141 128
Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 (J.C.P.C.) 171
Nalliah v. Canada (Solicitor General), [2005] 3 F.C.R. 210 (F.C.) 89
National Harbours Board v. Langelier, [1969] S.C.R. 60 82
Neilson v. British Columbia (Information and Privacy Commissioner) 168 (1998), 80 A.C.W.S. (3d) 932 (B.C.S.C.)
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House 61, 68 of Assembly), [1993] 1 S.C.R. 319 - 105 -
Authority Cited at para.
Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn 61, 71 of Public and Private Employees, [2004] 3 S.C.R. 381
Northern Pipeline Agency v. Perehinec, [1983] 2 S.C.R. 513 141
Ontario (Criminal Code Review Board) v. Doe (1999), 47 O.R. (3d) 168 201 (C.A.)
Ontario Public Service Employees Union v. Ontario (Attorney General) 117 (1980), 118 D.L.R. (3d) 661 (Ont. C.A.).
Ontario Public Service Employees’ Union v. Ontario (Attorney 61, 117 General), [1987] 2 S.C.R. 2
Ontario Teachers’ Federal v. Ontario (Attorney General) (2000), 49 156 O.R. (3d) 257 (C.A)
Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 67
Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 65, 67. 96
Parry Sound (District) Social Services Administration Board v. Ontario 115 Public Services Employees Union, [2003] 2 S.C.R. 157
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada 156 Ltd. (1991), 2 O.R. (3d) 65 (per Finlayson JA concurring) (C.A.)
Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513 126
Public Service Alliance of Canada v. Canada (Canadian Food 89 Inspection Agency) (2005), 343 N.R. 334 (F.C.A.)
R. v. Campbell and Shirose, [1999] 1 S.C.R. 565 73, 145, 157
R. v. Canadian Broadcasting Corp., [1983] 1 S.C.R. 339 141
R. v. Century 21 Ramos Realty Inc. (1987), 32 C.C.C. (3d) 353 (Ont. 110 C.A.).
R. v. Dang, [1994] B.C.J. No. 2081 81
R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R.551 141, 143, 171
R. v. Harrison, [1977] 1 S.C.R. 238 91
R. v. Hinchey, [1996] 3 S.C.R. 1128 52 - 106 -
Authority Cited at para.
R. v. Horne & Pitfield Foods Ltd.(1981), 30 A.R. 477 95
R. v. Horne & Pitfield Foods Ltd. (1982), 20 Alta. L.R. (2d) 289 (C.A.) 95
R. v. Horne & Pitfield Foods Ltd., [1985] 1 S.C.R. 364 95
R. v. McFarlane, [1882] 7 S.C.R. 216 184
R. v. Michael (1988), 30 B.C.L.R. (2d) 54 (B.C.C.A.) 81
R. v. Morgentaler, [1993] 3 S.C.R. 463 156
R. v. NDT Ventures Ltd. (2001), 225 Nfld. & P.E.I.R. 181 (Nfld CA) 93
R .v. Ramos (S.C.C.) [1987] S.C.C.A. No. 175 110
R. v. Rodgers, [2006] 1 S.C.R. 554 115
R. v. Spence, [2005] 3 S.C.R. 458 118
R. v. Steam Tanker “Evgenia Chandris”, [1977] 2 S.C.R. 97 81
R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 108
R. v. Williams [2009] S.C.C.A. No. 298 82
Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 91 2 S.C.R. 375
Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 49, 156
Reference re: Amendment of Canadian Constitution, [1982] 2 S.C.R. 63 793
Reference Re Canada Assistance Plan, [1991] 2 S.C.R. 525 62
Reference re Disallowance and Reservation of Provincial Legislation, 62 [1938] S.C.R. 71
Reference as to the Effect of the Exercise of the Royal Prerogative of 67 Mercy upon Deportation Proceedings, [1933] S.C.R. 269
Reference re: Manitoba Language Rights, [1985] 1 S.C.R. 721 61, 68
Reference re Remuneration of Judges of the Provincial Court of Prince 61, 68, 71, 72, 106 Edward Island, [1997] 3 S.C.R. 3 - 107 -
Authority Cited at para.
Reference re: Residential Tenancies Act 1979 (Ontario), [1981] 1 71 S.C.R. 714
Reference Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 61-65, 68 753
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 59
Roncarelli v. Duplessis, [1959] S.C.R. 121 61
Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816 67
Rowat v. Canada (Information Commissioner) (2000), 193 F.T.R. 1 110 (T.D.)
Royal Winnipeg Ballet v. Minister of National Revenue, [2007] 1 F.C.R. 171 35 (F.C.A.)
Rubin v. Canada (Minister of Foreign Affairs and International Trade) 161, 169 (2001), 204 F.T.R 313 (F.C.)
Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) 54
Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265 156 (F.C.A.)
Sagaz Industries Canada Inc. v. 671122 Ontario Limited, [2001] 2 171 S.C.R. 983
Saskatchewan Federation of Labour v. Saskatchewan (Attorney 184 General), 2010 SKCA 27
Say v. Canada (Solicitor General) (2005), 345 N.R. 340 (F.C.A.) 89
Say v. Canada (Solicitor General), [2006] 1 F.C.R. 532 89
Simon Fraser University v. British Columbia (Information and Privacy 168 Commissioner), 2009 BCSC 1481
Tele-Mobile Co. v. Ontario, [2008] 1 S.C.R. 305 157
Toronto Police Services Board v. Ontario (Information and Privacy 150, 162 Commissioner) (2009), 93 O.R. (3d) 563 (C.A.)
Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 168 (C.A.) - 108 -
Authority Cited at para.
Weibe-Door Services Ltd. v. Minister of Revenue Canada, [1986] 3 F.C. 171 553 (F.C.A.)
Westeel-Rosco Limited v. South Saskatchewan Hospital Centre, [1977] 141, 171 2 S.C.R. 238
Williams v. Canada (Attorney General) (2005), 257 D.L.R. (4th) 704 82 (Ont.S.C.J.)
Williams v. Canada (Attorney General) (2009), 310 D.L.R. (4th) 710 82 (Ont. C.A.)
Woollett v. Minister of Agriculture and Fisheries, [1955] 1 Q.B. 103. 95
Yeager v. Canada (Correctional Service), [2003] 3 F.C. 107 (F.C.A.) 150
LEGISLATION - STATUTES
Authority Cited at para.
Access to Information Act, R.S.C. 1985, c.A-1. Throughout
An Act for the Readjustment of the Salaries and Allowances of Judges 79 and Other Public Functionaries and Officers (1873), 36 Vict., c.31, s.2
An Act to Amend the Salaries Act (1920), 10-11 Geo. V., c.69, s.1 79
An Act to enact the Access to Information Act and the Privacy Act, to 56, 83 amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof, S.C. 1980-81-82-83, c.111
Animal Pedigree Act, S.C. 1985, c.8 (4th Supp.) 181
Asia-Pacific Foundation of Canada Act, R.S.C. 1985, c.A-13 87
Atlantic Canada Opportunities Agency Act, S.C. 1985, c.41 (4th 85 Supp.)
Bank Act, S.C. 1991, c.46 84, 181
Budget Implementation Act, 1998, S.C. 1998, c.21 87
Canada Post Corporation Act, R.S.C. 1985, c.C-10, s.7(1) 189 - 109 -
Canada Evidence Act, R.S., 1985, c. C-5, s.39 41
Canada Grain Act, R.S.C. 1985, c. G-10, s.109 181
Canada Pension Plan, R.S. 1985, c. C-8 178, 185
Canadian Payments Act, R.S.C. 1985, c.C-21 84
Canadian Security Intelligence Service Act, R.S. 1985, c. C-23 79, 86, 137, 178
Canadian Transportation Accident Investigation and Safety Board Act, 78, 127 S.C. 1989, c.3
Canadian Wheat Board Act, R.S.C. 1985, c.C-24 85
Civil Service Act, S.C. 1918, c.12. 98
Civil Service Amendment Act, 1908 98
Competition Act, R.S.C. 1985, c. C-34 181
Conflict of Interest Act, S.C. 2006, c.9 79, 98, 100
Constitution Act, 1867 62, 67, 68, 70, 80, 81, 117
Constitution Act, 1982 61, 67
Cooperative Credit Associations Act, S.C. 1991, c.48 85, 178
Criminal Code, R.S.C. 1985, c. C-46 181
Department of Agriculture and Agri-Food Act, R.S.C. 1985, c.A-9 Table A
Department of Canadian Heritage Act, S.C. 1995, c.11 Table A
Department of Citizenship and Immigration Act, S.C. 1994, c.31 Table A
Department of Environment Act, c R.S.C. 1985, c.E-10 Table A
Department of Fisheries and Oceans Act, R.S.C. 1985, c.F-15 Table A
Department of Foreign Affairs and International Trade Act, R.S.C. 85, Table A 1985, c.E-22
Department of Health Act, S.C. 1996, c.8 Table A - 110 -
Department of Human Resources and Skills Development Act, S.C. 150, Table A 2005, c.34
Department of Indian Affairs and Northern Development Act, R.S.C. Table A 1985, c.I-6, s. 2
Department of Industry Act, S.C. 1195, c.1 Table A
Department of Justice Act, R.S.C. 1985, c.J-2 Table A
Department of Natural Resources Act, S.C. 1994, c.41, s. 3 Table A
Department of Public Safety and Emergency Preparedness Act, S.C. Table A 2005, c. 10
Department of Public Works and Government Services Act, S.C. 1996, Table A c.16
Department of Social Development Act, S.C. 2005, c.35 Table A
Department of Transport Act, R.S., c.T-15 62, Table A
Department of Veterans Affairs, R.S.C.1985, c.V-1 Table A
Economic Development Agency of Canada for the Regions of Quebec 85 Act, S.C. 2005, c.26
Employment Equity Act, 1995, c. 44 181
Federal Accountability Act, S.C. 2006, c.9 98,99,100,104,137,181
Financial Administration Act, R.S., 1985, c. F-11 77, 78, 82, 88, 89, 90, 99, 16, 17, 108, 129, 133, 134, 135, 161, 176, 175, 189
Firearms Act, S.C. 1992, c.39, enacted by S.C. 2003, c.8, s. 48 134
First Nations Fiscal and Statistical Management Act, S.C. 2005, c.9 87
Freshwater Fish Marketing Act, R.S.C. 1985, c. F-15, s. 11 181
Government Organization Act, 1969, 17 Elizabeth II, c.28 78
Government Organization Act, 1970, R.S.C. 1970 (2nd supp.), c.14 83
Income Tax Act, R.S. 1985, (5th Supp), c.1, s. 248 178 - 111 -
International Centre for Human Rights and Democratic Development 87 Act, S.C. 1985, c.54 (4th Supp.)
Interpretation Act, R.S.C. 1985, c. I-21 52, 91, 99, 143, 147, 176, 185
National Archives of Canada Act, S.C. 1985 (3rd Supp), c.1 161
Library and Archives of Canada Act, S.C. 2004, c.11 161, 189
Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.), as amended by S.C. 98, 100 2006. c.9
Ministries and Ministers of State Act, R.S.C. 1985, c. M-8 83, 84, 85, 89, 90, 152, 159, 161
National Capital Act, R.S.C. 1985, c.N-4 85
National Defence Act, R.S.C. 1985, c.N-5 6, 136, 165
Northern Pipeline Act, R.S.C. 1985, c.N-26 82
Official Residences Act, R.S., 1985, c. O-4 79
Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c.33 98 (2nd Supp.)
Privacy Act, R.S., 1985, c. P-21 5, 41, 44, 45, 56, 57, 58, 132, 134, 161, 175, 176, 178, 181, 186, 187
Public Health Agency of Canada Act, S.C. 2006, c.5 82, 189
Public Sector Compensation Act, S.C. 1991, c.30 81, 98, 178
Public Service Employment Act, S.C. 2003, c.22 81, 97, 98, 99, 106, 133, 134, 135, 161, 176, 189
Public Service Employment Act, R.S.C. 1985 c. P-33 81
Public Service Labour Relations Act, 2003, c. 22, s. 2 98, 178
Public Service Rearrangement and Transfer of Duties Act, R.S.C. 89 1985, c.P-34, ss. 2-3
Public Service Staff Relations Act, R.S.C. 1985, c.P-35, s. 2 81, 98 - 112 -
Public Service Superannuation Act, R.S.C. 1985, c. P-36, ss. 3(1), 98 3(2), 5(1)
Salaries Act, (1869) 31 Vict. c.33 78
Salaries Act, R.S.C. 1985, c.S-3, s. 1.1, 3, 4(2)(f) and (o), 4.1 77, 79, 137
Statutory Instruments Act, R.S.C. 1985, c.S-22, ss. 2-7 81
S.C. 1974-75-75, c.16 137
LEGISLATION - REGULATIONS
Authority Cited at para.
SOR/90-152 83 SOR/2003-145 (P.C. 2003-555), C.Gaz.2003.II.1278. 134 SOR/2003-146 (P.C. 2003-557) C.Gaz.2003.II.1279. 134 SOR/2003-148 (P.C.2003-559) C.Gaz.2003.II.1281 134 SOR/2003-431 (P.C. 2003-2059) C. Gaz.2003.II.3161. 132 SOR/2003-433 (P.C. 2003-2062), C. Gaz.2003.II.3163. 132 SOR/2003-434 (P.C. 2003-2063), C.Gaz.2003.II.2164. 132 SOR/2003-435 (P.C. 2003-2069), C.Gaz.2003.II.3165. 132 SOR/2006-97 (P.C. 2006-389), C.Gaz.2006.II.486. 134 SOR/2006-98 (P.C. 2006-390), C.Gaz.2006.II.487. 134 SOR/2006-99 (P.C. 2006-392), C.Gaz.2006.II.488. 134 SOR/2009-273 (P.C. 2009-1608) C.Gaz.2009.II.1970. 137
LEGISLATION - ORDERS IN COUNCIL
Authority Cited at para.
P.C 1962-240 (February 22, 1962) 81 P.C. 1962-490 87 P.C.1968-923 87 P.C.1968-1028 87 P.C. 1968-1760 87 - 113 -
P.C. 1971-1965 83 SI/1976-44 (P.C. 1976-779) C.Gaz.1976.II.1262 85 P.C. 1980-1692 83 P.C. 1984-3037 (SOR/84-757) 83 P.C. 1990-361 83 PC. 2006-398, C.Gaz.2006.II.1371 134 SI/1975-17, (P.C. 1975-250), C.Gaz.1975.II.342 137 SI/1976-44 (P.C. 1976-779), C. Gaz.1976.II.1262 85 SI/1993-126 (P.C. 1993-1493), C.Gaz.1993.II.3218 137 SI/2003-96 (P.C. 2003-556), C.Gaz. 2003.II.1285 134 SI/2003-97(P.C. 2003-560), C.Gaz.II.2003.II.1286 134 SI/2003-98 (P.C. 2003-562), C.Gaz. 2006.II.1287 134 SI/2003-115 (P.C. 2003-794), C.Gaz.2003.II.1784 134 SI/2003-116 (P.C. 2003-795), C.Gaz.2003.II.1785 134 SI/2003-214 (P.C. 2003-2061), C. Gaz.2003.II.3230 132 SI/2003-215 (P.C. 2003-2063), C. Gaz.2003.II.3231 132 SI/2003-216 (P.C. 2003-2064), C. Gaz.2003.II.3232 132 SI/2003-217 (P.C. 2003-2065), C.Gaz.2003.II.3233 132 SI/2003-218 (P.C. 2003-2066), C.Gaz. 2003.II.3234 132 SI/2004-14 (P.C. 2004-98), C. Gaz.2004.II.67 Table 2 SI/2004-87 (P.C. 2004-850), C.Gaz.2004.II.1185 Table A SI/2006-4 (P.C.2006-18), C.Gaz.2006.II.75 136 SI/2006-10 (P.C. 2006-37), C.Gaz.2006.II.103 105 SI/2006-45 (P.C. 2006-86), C.Gaz.2006.II.138 137 SI/2006-46 (P.C. 2006-87), C.Gaz.2006.II.139 137 SI/2006-62 (P.C. 2006-227), C.Gaz.2006.II.310 137 SI/2006-63 (P.C. 2006-229), C.Gaz.2006.II.311 137 SI/2006-64 (P.C. 2006-230), C.Gaz.2006.II.312 137 SI/2006-74 (P.C. 2006-361), C.Gaz.2006.II.522 137 SI/2006-75 (P.C. 2006-362), C.Gaz.2006.II.523 137 SI/2006-80 (P.C. 2006-388), C.Gaz.2006.II.530 134 SI/2006-81 (P.C. 2006-391), C.Gaz.2006.II.531 134 - 114 -
SI/2008-116 (P.C. 2008-1710), C.Gaz.2008.II.2274 Table A SI/2008-118 (P.C. 2008-1712), C.Gaz.2008.II.2276 Table A SI/2008-119 (P.C. 2008-1713), C.Gaz.2008.II.2277 Table A SI/2008-120 (P.C. 2008-1714), C.Gaz.2008.II.2278 Table A SI/2008-121 (P.C. 2008-1715), C.Gaz.2008.II.2279 Table A SI/2008-122 (P.C. 2008-1716), C.Gaz.2008.II.2280 Table A SI/2008-123 (P.C. 2008-1717), C.Gaz.2008.II.2281 Table A SI/2008-124 (P.C. 2008-1718), C.Gaz.2008.II.2282 Table A SI/2008-126 (P.C. 2008-1720), C.Gaz.2008.II.2284 Table A SI/2008-128 (P.C. 2008-1722), C.Gaz.2008.II.2286 Table A SI/2008-135 (P.C. 2008-1732), C.Gaz.2008.II.2293 Table A SI/2008-137 (P.C. 2008-1734), C.Gaz.2008.II.2295 Table A SI/2009-74 87 SI/2009-76 (P.C. 2009-1415) C.Gaz.2009.II.1738 87 SI/2009-80 (P.C.2009-1423) C.Gaz.2009.II.1742 87 SI/2009-82 (P.C. 2009-1427), C.Gaz.2009.II.1744 87 SI/2009-86 (P.C. 2009-1441), C.Gaz.2009.II.1776 85, 87, Table A SI/2009-242 87 SI/2009-247 87 SI/2010-4 (P.C. 2010-83), C.Gaz.2010.II.46. Table A SI/2010-5 (P.C. 2010-84), C.Gaz.2010.II.47. Table A SI/2010-6 (P.C. 2010-85), C.Gaz.2010.II.48. Table A
LEGISLATION: INSTRUMENTS OF ADVICE
Authority Cited at para.
C.Gaz.2007.I.2602, dated Aug.14, 2007 Table A C.Gaz.2007.I.130, dated Jan. 4, 2007 Table A C.Gaz.2008.I.2992-2995, dated Oct.30, 2008 Table A C.Gaz.2009.I.2686, dated Aug. 25, 2009. Table A C.Gaz.2010.I.117-118, dated Jan. 22, 2010. Table A
- 115 -
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PART VII – STATUTORY PROVISIONS
Access to Information Act, R.S.C. 1985, c.A-1 Purpose Objet 2. (1) The purpose of this Act is to extend the 2. (1) La présente loi a pour objet d’élargir l’accès present laws of Canada to provide a right aux documents de l’administration fédérale of access to information in records under en consacrant le principe du droit du public the control of a government institution in à leur communication, les exceptions accordance with the principles that indispensables à ce droit étant précises et government information should be limitées et les décisions quant à la available to the public, that necessary communication étant susceptibles de exceptions to the right of access should be recours indépendants du pouvoir exécutif. limited and specific and that decisions on Étoffement des modalités d’accès the disclosure of government information (2) La présente loi vise à compléter les should be reviewed independently of modalités d’accès aux documents de government. l’administration fédérale; elle ne vise pas à Complementary procedures restreindre l’accès aux renseignements que (2) This Act is intended to complement and not les institutions fédérales mettent replace existing procedures for access to normalement à la disposition du grand government information and is not public. intended to limit in any way access to the type of government information that is normally available to the general public.
3. In this Act ... 3. Les définitions qui suivent s’appliquent à la “government institution” présente loi. … “government institution” means « institution fédérale » (a) any department or ministry of state of the « institution fédérale » Government of Canada, or any body or a) Tout ministère ou département d’État office, listed in Schedule I, and relevant du gouvernement du Canada, ou (b) any parent Crown corporation, and any tout organisme, figurant à l’annexe I; wholly-owned subsidiary of such a b) toute société d’État mère ou filiale à cent corporation, within the meaning of section pour cent d’une telle société, au sens de 83 of the Financial Administration Act; l’article 83 de la Loi sur la gestion des finances publiques. “head” “head”, in respect of a government institution, « responsable d’institution fédérale » means « responsable d’institution fédérale » (a) in the case of a department or ministry of a) Le membre du Conseil privé de la Reine state, the member of the Queen’s Privy pour le Canada sous l’autorité duquel est Council for Canada who presides over the placé un ministère ou un département department or ministry, or d’État; (b) in any other case, either the person b) la personne désignée en vertu du paragraphe designated under subsection 3.2(2) to be 3.2(2) à titre de responsable, pour the head of the institution for the purposes l’application de la présente loi, d’une of this Act or, if no such person is institution fédérale autre que celles visées à designated, the chief executive officer of l’alinéa a) ou, en l’absence d’une telle the institution, whatever their title; désignation, le premier dirigeant de ... l’institution, quel que soit son titre. “record” ... - 120 -
“record” means any documentary material, « document » regardless of medium or form... « document » Éléments d’information, quel qu’en soit le support.
Power to designate head Désignation du responsable d’une institution 3.2 (2) The Governor in Council may, by order, fédérale designate a person to be the head of a 3.2 (2) Il peut aussi désigner, par décret, toute government institution, other than a personne à titre de responsable d’une department or ministry of state, for the institution fédérale — autre qu’un purposes of this Act. ministère ou un département d’État — pour l’application de la présente loi.
Right to access to records Droit d’accès 4. (1) Subject to this Act, but notwithstanding any 4. (1) Sous réserve des autres dispositions de la other Act of Parliament, every person who présente loi mais nonobstant toute autre loi is fédérale, ont droit à l’accès aux documents (a) a Canadian citizen, or relevant d’une institution fédérale et (b) a permanent resident within the peuvent se les faire communiquer sur meaning of subsection 2(1) of the demande : Immigration and Refugee a) les citoyens canadiens; Protection Act, b) les résidents permanents au sens du has a right to and shall, on request, be paragraphe 2(1) de la Loi sur given access to any record under the l’immigration et la protection des control of a government institution. réfugiés. Extension of right by order Extension par décret (2) The Governor in Council may, by order, (2) Le gouverneur en conseil peut, par décret, extend the right to be given access to étendre, conditionnellement ou non, le records under subsection (1) to include droit d’accès visé au paragraphe (1) à des persons not referred to in that subsection personnes autres que celles qui y sont and may set such conditions as the mentionnées. Governor in Council deems appropriate. Responsable de l’institution fédérale Responsibility of government institutions (2.1) Le responsable de l’institution fédérale (2.1) The head of a government institution fait tous les efforts raisonnables, sans égard shall, without regard to the identity of a à l’identité de la personne qui fait ou person making a request for access to a s’apprête à faire une demande, pour lui record under the control of the institution, prêter toute l’assistance indiquée, donner make every reasonable effort to assist the suite à sa demande de façon précise et person in connection with the request, complète et, sous réserve des règlements, respond to the request accurately and lui communiquer le document en temps completely and, subject to the regulations, utile sur le support demandé. provide timely access to the record in the Document issu d’un document informatisé format requested. (3) Pour l’application de la présente loi, les Records produced from machine readable records documents qu’il est possible de préparer à (3) For the purposes of this Act, any record partir d’un document informatisé relevant requested under this Act that does not exist d’une institution fédérale sont eux-mêmes but can, subject to such limitations as may considérés comme relevant de celle-ci, be prescribed by regulation, be produced même s’ils n’existent pas en tant que tels from a machine readable record under the au moment où ils font l’objet d’une - 121 -
control of a government institution using demande de communication. La présente computer hardware and software and disposition ne vaut que sous réserve des technical expertise normally used by the restrictions réglementaires éventuellement government institution shall be deemed to applicables à la possibilité de préparer les be a record under the control of the documents et que si l’institution a government institution. normalement à sa disposition le matériel, le logiciel et les compétences techniques nécessaires à la préparation.
Where access is refused Refus de communication 10. (1) Where the head of a government institution 10. (1) En cas de refus de communication totale ou refuses to give access to a record requested partielle d’un document demandé en vertu under this Act or a part thereof, the head of de la présente loi, l’avis prévu à l’alinéa the institution shall state in the notice given 7a) doit mentionner, d’une part, le droit de under paragraph 7(a) la personne qui a fait la demande de (a) that the record does not exist, or déposer une plainte auprès du Commissaire (b) the specific provision of this Act on à l’information et, d’autre part : which the refusal was based or, a) soit le fait que le document n’existe where the head of the institution pas; does not indicate whether a record b) soit la disposition précise de la exists, the provision on which a présente loi sur laquelle se fonde le refusal could reasonably be refus ou, s’il n’est pas fait état de expected to be based if the record l’existence du document, la existed, disposition sur laquelle il pourrait and shall state in the notice that the person vraisemblablement se fonder si le who made the request has a right to make a document existait. complaint to the Information Dispense de divulgation de l’existence d’un Commissioner about the refusal. document Existence of a record not required to be disclosed (2) Le paragraphe (1) n’oblige pas le (2) The head of a government institution may responsable de l’institution fédérale à faire but is not required to indicate under état de l’existence du document demandé. subsection (1) whether a record exists. Présomption de refus Deemed refusal to give access (3) Le défaut de communication totale ou (3) Where the head of a government institution partielle d’un document dans les délais fails to give access to a record requested prévus par la présente loi vaut décision de under this Act or a part thereof within the refus de communication. time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
Information obtained in confidence Renseignements obtenus à titre confidentiel 13. (1) Subject to subsection (2), the head of a 13. (1) Sous réserve du paragraphe (2), le government institution shall refuse to responsable d’une institution fédérale est disclose any record requested under this tenu de refuser la communication de Act that contains information that was documents contenant des renseignements obtained in confidence from obtenus à titre confidentiel : (a) the government of a foreign state or a) des gouvernements des États an institution thereof; étrangers ou de leurs organismes; - 122 -
(b) an international organization of b) des organisations internationales states or an institution thereof; d’États ou de leurs organismes; (c) the government of a province or an c) des gouvernements des provinces ou institution thereof; de leurs organismes; (d) a municipal or regional government d) des administrations municipales ou established by or pursuant to an régionales constituées en vertu de Act of the legislature of a province lois provinciales ou de leurs or an institution of such a organismes; government; or e) d’un gouvernement autochtone. (e) an aboriginal government. Cas où la divulgation est autorisée Where disclosure authorized (2) Le responsable d’une institution fédérale (2) The head of a government institution may peut donner communication de documents disclose any record requested under this contenant des renseignements visés au Act that contains information described in paragraphe (1) si le gouvernement, subsection (1) if the government, l’organisation, l’administration ou organization or institution from which the l’organisme qui les a fournis : information was obtained a) consent à la communication; (a) consents to the disclosure; or b) rend les renseignements publics. (b) makes the information public. Définition de « gouvernement autochtone » Definition of “aboriginal government” (3) L’expression « gouvernement autochtone » (3) The expression “aboriginal government” in à l’alinéa (1)e) s’entend : paragraph (1)(e) means a) du gouvernement nisga’a, au sens de (a) Nisga’a Government, as defined in l’Accord définitif nisga’a mis en the Nisga’a Final Agreement given vigueur par la Loi sur l’Accord effect by the Nisga’a Final définitif nisga’a; Agreement Act; b) du conseil, au sens de l’Accord (b) the council, as defined in the d’autonomie gouvernementale de Westbank First Nation Self- la première nation de Westbank Government Agreement given mis en vigueur par la Loi sur effect by the Westbank First l’autonomie gouvernementale de Nation Self-Government Act; la première nation de Westbank; (c) the Tlicho Government, as defined c) du gouvernement tlicho, au sens de in section 2 of the Tlicho Land l’article 2 de la Loi sur les Claims and Self-Government Act; revendications territoriales et (d) the Nunatsiavut Government, as l’autonomie gouvernementale du defined in section 2 of the peuple tlicho; Labrador Inuit Land Claims d) du gouvernement nunatsiavut, au Agreement Act; sens de l’article 2 de la Loi sur (e) the council of a participating First l’Accord sur les revendications Nation as defined in subsection territoriales des Inuit du Labrador; 2(1) of the First Nations e) du conseil de la première nation Jurisdiction over Education in participante, au sens du paragraphe British Columbia Act; or 2(1) de la Loi sur la compétence (f) the Tsawwassen Government, as des premières nations en matière defined in subsection 2(2) of the d’éducation en Colombie- Tsawwassen First Nation Final Britannique; Agreement Act. f) du gouvernement tsawwassen, au sens du paragraphe 2(2) de la Loi sur l’accord définitif concernant la - 123 -
Première Nation de Tsawwassen.
Safety of individuals Sécurité des individus 17. The head of a government institution may 17. Le responsable d’une institution fédérale peut refuse to disclose any record requested under this refuser la communication de documents contenant Act that contains information the disclosure of des renseignements dont la divulgation risquerait which could reasonably be expected to threaten the vraisemblablement de nuire à la sécurité des safety of individuals. individus.
Personal information Renseignements personnels 19. (1) Subject to subsection (2), the head of a 19. (1) Sous réserve du paragraphe (2), le government institution shall refuse to responsable d’une institution fédérale est disclose any record requested under this tenu de refuser la communication de Act that contains personal information as documents contenant les renseignements defined in section 3 of the Privacy Act. personnels visés à l’article 3 de la Loi sur la protection des renseignements Where disclosure authorized personnels. (2) The head of a government institution may disclose any record requested under this Cas où la divulgation est autorisée Act that contains personal information if (2) Le responsable d’une institution fédérale (a) the individual to whom it relates peut donner communication de documents consents to the disclosure; contenant des renseignements personnels (b) the information is publicly dans les cas où : available; or a) l’individu qu’ils concernent y (c) the disclosure is in accordance with consent; section 8 of the Privacy Act. b) le public y a accès; c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
Advice, etc. Avis, etc. 21. (1) The head of a government institution may 21. (1) Le responsable d’une institution fédérale refuse to disclose any record requested peut refuser la communication de under this Act that contains documents datés de moins de vingt ans lors (a) advice or recommendations de la demande et contenant : developed by or for a government a) des avis ou recommandations institution or a minister of the élaborés par ou pour une Crown, institution fédérale ou un ministre; (b) an account of consultations or b) des comptes rendus de consultations deliberations in which directors, ou délibérations auxquelles ont officers or employees of a participé des administrateurs, government institution, a minister dirigeants ou employés d’une of the Crown or the staff of a institution fédérale, un ministre ou minister participate, son personnel; (c) positions or plans developed for the c) des projets préparés ou des purpose of negotiations carried on renseignements portant sur des or to be carried on by or on behalf positions envisagées dans le cadre of the Government of Canada and de négociations menées ou à - 124 -
considerations relating thereto, or mener par le gouvernement du (d) plans relating to the management of Canada ou en son nom, ainsi que personnel or the administration of des renseignements portant sur les a government institution that have considérations qui y sont liées; not yet been put into operation, d) des projets relatifs à la gestion du if the record came into existence less than personnel ou à l’administration twenty years prior to the request. d’une institution fédérale et qui n’ont pas encore été mis en oeuvre. Exercise of a discretionary power or an adjudicative function Décisions (2) Subsection (1) does not apply in respect of (2) Le paragraphe (1) ne s’applique pas aux a record that contains documents contenant : (a) an account of, or a statement of a) le compte rendu ou l’exposé des reasons for, a decision that is made motifs d’une décision qui est prise in the exercise of a discretionary dans l’exercice d’un pouvoir power or an adjudicative function discrétionnaire ou rendue dans and that affects the rights of a l’exercice d’une fonction judiciaire person; or ou quasi judiciaire et qui touche les (b) a report prepared by a consultant or droits d’une personne; an adviser who was not a director, b) le rapport établi par un consultant ou an officer or an employee of a un conseiller qui, à l’époque où le government institution or a rapport a été établi, n’était pas un member of the staff of a minister administrateur, un dirigeant ou un of the Crown at the time the report employé d’une institution fédérale was prepared. ou n’appartenait pas au personnel d’un ministre, selon le cas.
Severability Prélèvements 25. Notwithstanding any other provision of this 25. Le responsable d’une institution fédérale, dans Act, where a request is made to a government les cas où il pourrait, vu la nature des institution for access to a record that the head of the renseignements contenus dans le document institution is authorized to refuse to disclose under demandé, s’autoriser de la présente loi pour refuser this Act by reason of information or other material la communication du document, est cependant contained in the record, the head of the institution tenu, nonobstant les autres dispositions de la shall disclose any part of the record that does not présente loi, d’en communiquer les parties contain, and can reasonably be severed from any dépourvues des renseignements en cause, à part that contains, any such information or condition que le prélèvement de ces parties ne pose material. pas de problèmes sérieux.
Refusal of access where information to be Refus de communication en cas de publication published 26. Le responsable d’une institution fédérale peut 26. The head of a government institution may refuser la communication totale ou partielle d’un refuse to disclose any record requested under this document s’il a des motifs raisonnables de croire Act or any part thereof if the head of the institution que le contenu du document sera publié en tout ou believes on reasonable grounds that the material in en partie par une institution fédérale, un mandataire the record or part thereof will be published by a du gouvernement du Canada ou un ministre dans government institution, agent of the Government of les quatre-vingt-dix jours suivant la demande ou Canada or minister of the Crown within ninety dans tel délai supérieur entraîné par les contraintes days after the request is made or within such de l’impression ou de la traduction en vue de further period of time as may be necessary for l’impression. - 125 -
printing or translating the material for the purpose of printing it.
Findings and recommendations of Information Conclusions et recommandations du Commissaire Commissioner à l’information 37. (1) If, on investigating a complaint in respect of 37. (1) Dans les cas où il conclut au bien-fondé a record under this Act, the Information d’une plainte portant sur un document, le Commissioner finds that the complaint is Commissaire à l’information adresse au well-founded, the Commissioner shall responsable de l’institution fédérale de qui provide the head of the government relève le document un rapport où : institution that has control of the record a) il présente les conclusions de son with a report containing enquête ainsi que les (a) the findings of the investigation recommandations qu’il juge and any recommendations that the indiquées; Commissioner considers b) il demande, s’il le juge à propos, au appropriate; and responsable de lui donner avis, (b) where appropriate, a request that, dans un délai déterminé, soit des within a time specified in the mesures prises ou envisagées pour report, notice be given to the la mise en oeuvre de ses Commissioner of any action taken recommandations, soit des motifs or proposed to be taken to invoqués pour ne pas y donner implement the recommendations suite. contained in the report or reasons Compte rendu au plaignant why no such action has been or is (2) Le Commissaire à l’information rend proposed to be taken. compte des conclusions de son enquête au Report to complainant and third parties plaignant et aux tiers qui pouvaient, en (2) The Information Commissioner shall, after vertu du paragraphe 35(2), lui présenter investigating a complaint under this Act, des observations et qui les ont présentées; report to the complainant and any third toutefois, dans les cas prévus à l’alinéa party that was entitled under subsection (1)b), le Commissaire à l’information ne 35(2) to make and that made peut faire son compte rendu qu’après representations to the Commissioner in l’expiration du délai imparti au responsable respect of the complaint the results of the de l’institution fédérale. investigation, but where a notice has been Éléments à inclure dans le compte rendu requested under paragraph (1)(b) no report (3) Le Commissaire à l’information mentionne shall be made under this subsection until également dans son compte rendu au the expiration of the time within which the plaignant, s’il y a lieu, le fait que, dans les notice is to be given to the Commissioner. cas prévus à l’alinéa (1)b), il n’a pas reçu Matter to be included in report to complainant d’avis dans le délai imparti ou que les (3) Where a notice has been requested under mesures indiquées dans l’avis sont, selon paragraph (1)(b) but no such notice is lui, insuffisantes, inadaptées ou non received by the Commissioner within the susceptibles d’être prises en temps utile. Il time specified therefor or the action peut en outre y inclure tous commentaires described in the notice is, in the opinion of qu’il estime utiles. the Commissioner, inadequate or Communication accordée inappropriate or will not be taken in a (4) Dans les cas où il fait suite à la demande reasonable time, the Commissioner shall so formulée par le Commissaire à advise the complainant in his report under l’information en vertu de l’alinéa (1)b) en subsection (2) and may include in the - 126 -
report such comments on the matter as he avisant le Commissaire qu’il donnera thinks fit. communication totale ou partielle d’un document, le responsable d’une institution Access to be given fédérale est tenu de donner cette (4) Where, pursuant to a request under communication au plaignant : paragraph (1)(b), the head of a government a) immédiatement, dans les cas où il institution gives notice to the Information n’y a pas de tiers à qui donner Commissioner that access to a record or a l’avis prévu à l’alinéa 29(1)b); part thereof will be given to a complainant, b) dès l’expiration des vingt jours the head of the institution shall give the suivant l’avis prévu à l’alinéa complainant access to the record or part 29(1)b), dans les autres cas, sauf si thereof un recours en révision a été exercé (a) forthwith on giving the notice if no en vertu de l’article 44. notice is given to a third party under paragraph 29(1)(b) in the Recours en révision matter; or (5) Dans les cas où, l’enquête terminée, le (b) forthwith on completion of twenty responsable de l’institution fédérale days after notice is given to a third concernée n’avise pas le Commissaire à party under paragraph 29(1)(b), if l’information que communication du that notice is given, unless a document ou de la partie en cause sera review of the matter is requested donnée au plaignant, le Commissaire à under section 44. l’information informe celui-ci de l’existence d’un droit de recours en Right of review révision devant la Cour. (5) Where, following the investigation of a complaint relating to a refusal to give access to a record requested under this Act or a part thereof, the head of a government institution does not give notice to the Information Commissioner that access to the record will be given, the Information Commissioner shall inform the complainant that the complainant has the right to apply to the Court for a review of the matter investigated.
Confidences of the Queen’s Privy Council for Documents confidentiels du Conseil privé de la Canada Reine pour le Canada 69. (1) This Act does not apply to confidences of 69. (1) La présente loi ne s’applique pas aux the Queen’s Privy Council for Canada, documents confidentiels du Conseil privé including, without restricting the generality de la Reine pour le Canada, notamment of the foregoing, aux : (a) memoranda the purpose of which is a) notes destinées à soumettre des to present proposals or propositions ou recommandations recommendations to Council; au Conseil; (b) discussion papers the purpose of b) documents de travail destinés à which is to present background présenter des problèmes, des explanations, analyses of problems analyses ou des options politiques or policy options to Council for à l’examen du Conseil; consideration by Council in c) ordres du jour du Conseil ou procès- making decisions; verbaux de ses délibérations ou - 127 -
(c) agenda of Council or records décisions; recording deliberations or d) documents employés en vue ou decisions of Council; faisant état de communications ou (d) records used for or reflecting de discussions entre ministres sur communications or discussions des questions liées à la prise des between ministers of the Crown on décisions du gouvernement ou à la matters relating to the making of formulation de sa politique; government decisions or the e) documents d’information à l’usage formulation of government policy; des ministres sur des questions (e) records the purpose of which is to portées ou qu’il est prévu de porter brief ministers of the Crown in devant le Conseil, ou sur des relation to matters that are before, questions qui font l’objet des or are proposed to be brought communications ou discussions before, Council or that are the visées à l’alinéa d); subject of communications or f) avant-projets de loi ou projets de discussions referred to in règlement; paragraph (d); g) documents contenant des (f) draft legislation; and renseignements relatifs à la teneur (g) records that contain information des documents visés aux alinéas a) about the contents of any record à f). within a class of records referred to Définition de « Conseil » in paragraphs (a) to (f). (2) Pour l’application du paragraphe (1), Definition of “Council” « Conseil » s’entend du Conseil privé de la (2) For the purposes of subsection (1), Reine pour le Canada, du Cabinet et de “Council” means the Queen’s Privy leurs comités respectifs. Council for Canada, committees of the Exception Queen’s Privy Council for Canada, Cabinet (3) Le paragraphe (1) ne s’applique pas : and committees of Cabinet. a) aux documents confidentiels du Exception Conseil privé de la Reine pour le (3) Subsection (1) does not apply to Canada dont l’existence remonte à (a) confidences of the Queen’s Privy plus de vingt ans; Council for Canada that have been b) aux documents de travail visés à in existence for more than twenty l’alinéa (1)b), dans les cas où les years; or décisions auxquelles ils se (b) discussion papers described in rapportent ont été rendues paragraph (1)(b) publiques ou, à défaut de publicité, (i) if the decisions to which the ont été rendues quatre ans discussion papers relate have auparavant. been made public, or (ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Certificate under Canada Evidence Act Certificat en vertu de la Loi sur la preuve au 69.1 (1) Where a certificate under section 38.13 of Canada the Canada Evidence Act prohibiting the 69.1 (1) Dans le cas où a été délivré au titre de disclosure of information contained in a l’article 38.13 de la Loi sur la preuve au record is issued before a complaint is filed Canada un certificat interdisant la - 128 -
under this Act in respect of a request for divulgation de renseignements contenus access to that information, this Act does dans un document avant le dépôt d’une not apply to that information. plainte au titre de la présente loi à l’égard d’une demande de communication de ces Certificate following filing of complaint renseignements, la présente loi ne (2) Notwithstanding any other provision of this s’applique pas à ces renseignements. Act, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the Certificat postérieur au dépôt d’une plainte disclosure of information contained in a (2) Par dérogation aux autres dispositions de la record is issued after the filing of a présente loi, dans le cas où a été délivré au complaint under this Act in relation to a titre de l’article 38.13 de la Loi sur la request for access to that information, preuve au Canada un certificat interdisant (a) all proceedings under this Act in la divulgation de renseignements contenus respect of the complaint, including dans un document après le dépôt d’une an investigation, appeal or judicial plainte au titre de la présente loi review, are discontinued; relativement à une demande de (b) the Information Commissioner communication de ces renseignements : shall not disclose the information a) toutes les procédures — notamment and shall take all necessary une enquête, un appel ou une precautions to prevent its révision judiciaire — prévues par disclosure; and la présente loi portant sur la plainte (c) the Information Commissioner sont interrompues; shall, within 10 days after the b) le Commissaire à l’information ne certificate is published in the peut divulguer les renseignements Canada Gazette, return the et prend les précautions information to the head of the nécessaires pour empêcher leur government institution that divulgation; controls the information. c) le Commissaire à l’information renvoie les renseignements au responsable de l’institution fédérale dont relève le document dans les dix jours suivant la publication du certificat dans la Gazette du Canada.
Privacy Act, R.S., 1985, c. P-21 Definitions Définitions 3. In this Act, 3. Les définitions qui suivent s’appliquent à la ... présente loi. “personal information” ... “personal information” means information about an « renseignements personnels » identifiable individual that is recorded in any form « renseignements personnels » Les renseignements, including, without restricting the generality of the quels que soient leur forme et leur support, foregoing, concernant un individu identifiable, notamment : (a) information relating to the race, national or a) les renseignements relatifs à sa race, à son ethnic origin, colour, religion, age or origine nationale ou ethnique, à sa couleur, marital status of the individual, à sa religion, à son âge ou à sa situation de (b) information relating to the education or the famille; medical, criminal or employment history of b) les renseignements relatifs à son éducation, à - 129 -
the individual or information relating to son dossier médical, à son casier judiciaire, financial transactions in which the à ses antécédents professionnels ou à des individual has been involved, opérations financières auxquelles il a (c) any identifying number, symbol or other participé; particular assigned to the individual, c) tout numéro ou symbole, ou toute autre (d) the address, fingerprints or blood type of indication identificatrice, qui lui est propre; the individual, d) son adresse, ses empreintes digitales ou son (e) the personal opinions or views of the groupe sanguin; individual except where they are about e) ses opinions ou ses idées personnelles, à another individual or about a proposal for a l’exclusion de celles qui portent sur un grant, an award or a prize to be made to autre individu ou sur une proposition de another individual by a government subvention, de récompense ou de prix à institution or a part of a government octroyer à un autre individu par une institution specified in the regulations, institution fédérale, ou subdivision de (f) correspondence sent to a government celle-ci visée par règlement; institution by the individual that is f) toute correspondance de nature, implicitly or explicitly of a private or implicitement ou explicitement, privée ou confidential nature, and replies to such confidentielle envoyée par lui à une correspondence that would reveal the institution fédérale, ainsi que les réponses contents of the original correspondence, de l’institution dans la mesure où elles (g) the views or opinions of another individual révèlent le contenu de la correspondance de about the individual, l’expéditeur; (h) the views or opinions of another individual g) les idées ou opinions d’autrui sur lui; about a proposal for a grant, an award or a h) les idées ou opinions d’un autre individu qui prize to be made to the individual by an portent sur une proposition de subvention, institution or a part of an institution de récompense ou de prix à lui octroyer par referred to in paragraph (e), but excluding une institution, ou subdivision de celle-ci, the name of the other individual where it visée à l’alinéa e), à l’exclusion du nom de appears with the views or opinions of the cet autre individu si ce nom est mentionné other individual, and avec les idées ou opinions; (i) the name of the individual where it appears i) son nom lorsque celui-ci est mentionné avec with other personal information relating to d’autres renseignements personnels le the individual or where the disclosure of concernant ou lorsque la seule divulgation the name itself would reveal information du nom révélerait des renseignements à son about the individual, sujet; but, for the purposes of sections 7, 8 and 26 toutefois, il demeure entendu que, pour and section 19 of the Access to Information l’application des articles 7, 8 et 26, et de Act, does not include l’article 19 de la Loi sur l’accès à (j) information about an individual who is or l’information, les renseignements personnels ne was an officer or employee of a comprennent pas les renseignements government institution that relates to the concernant : position or functions of the individual j) un cadre ou employé, actuel ou ancien, d’une including, institution fédérale et portant sur son poste (i) the fact that the individual is or was ou ses fonctions, notamment : an officer or employee of the (i) le fait même qu’il est ou a été government institution, employé par l’institution, (ii) the title, business address and (ii) son titre et les adresse et numéro de telephone number of the téléphone de son lieu de travail, individual, (iii) la classification, l’éventail des (iii) the classification, salary range and salaires et les attributions de son responsibilities of the position held poste, - 130 -
by the individual, (iv) son nom lorsque celui-ci figure sur (iv) the name of the individual on a un document qu’il a établi au cours document prepared by the de son emploi, individual in the course of (v) les idées et opinions personnelles employment, and qu’il a exprimées au cours de son (v) the personal opinions or views of emploi; the individual given in the course k) un individu qui, au titre d’un contrat, assure of employment, ou a assuré la prestation de services à une (k) information about an individual who is or institution fédérale et portant sur la nature was performing services under contract for de la prestation, notamment les conditions a government institution that relates to the du contrat, le nom de l’individu ainsi que services performed, including the terms of les idées et opinions personnelles qu’il a the contract, the name of the individual and exprimées au cours de la prestation; the opinions or views of the individual l) des avantages financiers facultatifs, given in the course of the performance of notamment la délivrance d’un permis ou those services, d’une licence accordés à un individu, y (l) information relating to any discretionary compris le nom de celui-ci et la nature benefit of a financial nature, including the précise de ces avantages; granting of a licence or permit, conferred m) un individu décédé depuis plus de vingt ans. on an individual, including the name of the … individual and the exact nature of the benefit, and (m) information about an individual who has been dead for more than twenty years; ...