Indexed As: Information Commissioner (Can.) v. Canada (Minister of National Defence)

Transcription

1 Information Commissioner of Canada (appellant) v. Minister of National Defence (respondent) and Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists (interveners) Information Commissioner of Canada (appellant) v. Prime Minister of Canada (respondent) and Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists (interveners) Information Commissioner of Canada (appellant) v. Minister of Transport Canada (respondent) and Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists (interveners) Information Commissioner of Canada (appellant) v. Commissioner of the Royal Canadian Mounted Police (respondent) and Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists (interveners) (33300, 33299, 33296, 33297; 2011 SCC 25; 2011 CSC 25) Indexed As: Information Commissioner (Can.) v. Canada (Minister of National Defence) Supreme Court of Canada McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ. May 13, Summary: In the context of three access to information applications, an issue arose as to whether the Prime Minister's Office (PMO) or the Offices of the Ministers of Transport or National Defence were government institutions or parts of government institutions for purposes of the Access to Information Act. There was no issue that, by definition, "government institution" included the Privy Council Office (PCO), the Department of National Defence, and the Department of Transport. Rather, the question was whether each government institution included the office of the Minister who presided over it (i.e., whether the PMO was part of the PCO, whether the office of the Minister of National Defence was part of the Department of National Defence and whether the office of the Minister of Transport was part of the Department of Transport?). The Federal Court, in a decision reported 326 F.T.R. 237, answered no to each question, holding that the respective entities were separate. As the ministerial entities were separate, the court went on to consider whether the records requested, despite being physically located in the respective offices of the Prime Minister, the Minister of National Defence, or the Minister of Transport, were nonetheless "under the control" of the related government institution within the meaning of s. 4 of the Access to Information Act. The court concluded that none of the records requested were under the control of the related government institution. The Information Commissioner appealed.

2 The Federal Court of Appeal, in a decision reported 393 N.R. 51, dismissed the appeals. The Information Commissioner appealed again. The Supreme Court of Canada dismissed the appeals. At issue in a fourth access to information application was whether the Prime Minister of Canada's daily agenda records, which were under control of the PCO and the Royal Canadian Mounted Police (RCMP), were subject to disclosure. There was no dispute that the RCMP and PCO were government institutions subject to the Act, rather the issue was whether the information was exempt from disclosure under s. 19(1) of the Access to Information Act as it constituted "personal information" within the meaning of s. 3 of the Privacy Act. The parties agreed that the Prime Minister's agenda fell within the general definition of "personal information". However, s. 3(j) ("personal information") of the Privacy Act created an exception by excluding from the scope of protection such information which pertained to "an individual who is or was an officer or employee of a government institution" where the information "relates to the position or functions of the individual". Thus, the disclosure issue turned on the question of whether the Prime Minister was an "officer" of the PCO within the meaning of s. 3(j) of the Privacy Act. The Federal Court, in a decision reported 326 F.T.R. 237, held that the Prime Minister was an "officer" of the PCO and certain records that contained the Prime Minister's agenda (or parts of it) were subject to disclosure under the Access to Information Act. The RCMP Commissioner appealed and the Prime Minister cross-appealed. The Federal Court of Appeal, in a decision reported 393 N.R. 54, allowed the appeal and cross-appeal. The appeal court found that the conclusion reached in the related appeals about the separate nature of the Prime Minister's Office from the PCO governed here as well. The court held that it would be "inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase "office of a government institution" in s. 3. The Information Commissioner appealed. The Supreme Court of Canada dismissed the appeal. Prime Minister - General - [See all Crown - Topic , Crown - Topic 7110 and Crown - Topic 7206]. Crown - Topic Examination of public documents - General - Government institution - Defined - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) as meaning that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - That is, the PMO could not be interpreted as part of the Privy Council Office, the Minister of National Defence

3 was not part of the Department of National Defence, and the office of the Minister of Transport was not part of the Department of Transport - The Information Commissioner appealed, arguing that the court should adopt a "function-based analysis" so as to create a dividing line between a Minister's departmental functions on the one hand and nondepartmental functions on the other in determining whether a record was subject to the Act - The Supreme Court of Canada rejected the approach advocated by the Information Commissioner - The applications judge's interpretative analysis contained no error - The meaning of "government institution" was clear - The courts below rightly concluded that no contextual consideration warranted the court interpreting Parliament to have intended that the definition of "government institution" include ministerial offices - See paragraphs 37 to 43. Crown - Topic Examination of public documents - General - Government institution - Defined - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) as meaning that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - The Information Commissioner appealed, arguing that the applications judge erred in his use of expert evidence as an interpretative aid - The Supreme Court of Canada rejected this argument - See paragraphs 30 to 33. Crown - Topic Examination of public documents - General - Government institution - Defined - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) to mean that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - The Information Commissioner appealed, arguing that Sharlow, J.A., of the Court of Appeal erred in relying on a non-existing "constitutional convention" for distinguishing between ministerial offices and their respective government departments - The Supreme Court of Canada rejected this argument, noting that when Sharlow, J.A., used the phrase "well understood convention", it was clear from the context that she was simply referring to the day-to-day workings or "conventions" of government - See paragraphs 34 to 36. Crown - Topic 7110 Examination of public documents - General - "Record under control of government" defined - In the context of three access to information applications, an issue arose as to whether the Prime Minister's Office (PMO) or the Offices of the Ministers of Transport or National Defence were government institutions or parts of government institutions for purposes of the Access to Information Act (ATIA) - An applications judge (affirmed by the Federal Court of Appeal) held that the PMO and ministerial offices were separate entities from the Privy Council Office and the Departments of National Defence Transport - The applications judge went on to consider whether the records requested,

4 despite being physically located in the respective offices of Ministers and Prime Minister were nonetheless "under the control" of the related government institution within the meaning of s. 4 of the ATIA - The applications judge adopted a two part test for control (i.e., did the documents relate to a departmental matter and could the government institution reasonably expect to obtain a copy of the document upon request) and concluded that none of the records requested were under the control of the related government institution - The Information Commissioner appealed, proposing a different test - The Supreme Court of Canada dismissed the appeal - The test applied by the courts below was adequate to determine the "control" issue - See paragraphs 44 to 65. Crown - Topic 7206 Examination of public documents - Freedom of information - Bars - Personal information - At issue was whether personal agendas requested from the Prime Minister under the Access to Information Act (Can.), which were under the control of the Privy Council Office and the Royal Canadian Mounted Police, were "personal information" and therefore exempt from disclosure under s. 19 of the Act - Section 19 prohibited the head of a government institution from releasing any record that contained "personal information" as defined by s. 3 of the Privacy Act (Can.) - Section 3(j) of the Privacy Act created an exception (i.e., personal information could be disclosed about an individual who was "an officer... of a government institution" if that information related to the position or functions of that individual) - The applications judge concluded that the Prime Minister was an officer of a government institution (i.e., the Privy Council Office) and ordered disclosure of the records - The RCMP Commissioner and the Prime Minister appealed - The Federal Court of Appeal allowed the appeals - The court held that the Prime Minister was not included in the phrase "officer of a government institution" as used in the s. 3(j) definition of "personal information" - The Prime Minister's office was a government organization separate from the Privy Council Office - If Parliament had intended otherwise, it would have said so expressly - The Information Commissioner appealed - The Supreme Court of Canada dismissed the appeal - See paragraphs 67 to 75. Words and Phrases Government institution - The Supreme Court of Canada interpreted this phrase as it was used in s. 4(1) of the Access to Information Act, R.S.C. 1985, c. A-1 - See paragraphs 37 to 43. Words and Phrases Officer of a government institution - The Supreme Court of Canada interpreted this phrase as it was used in s. 3(j) of the Privacy Act, R.S.C. 1985, c. P-21 - See paragraphs 67 to 75. Cases Noticed: Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [paras. 15, 78]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

5 Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [paras. 21, 79]. Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 23]. Tele-Mobile Co. v. Ontario et al., [2008] 1 S.C.R. 305; 372 N.R. 157; 235 O.A.C. 369; 2008 SCC 12, refd to. [para. 27]. Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 32]. Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 533; 334 N.R. 55; 2005 SCC 26, refd to. [para. 32]. Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [paras. 40, 79]. Canada Post Corp. v. Canada (Minister of Public Works) et al., [1993] 3 F.C. 320; 64 F.T.R. 62 (T.D.), refd to. [para. 47]. Canada Post Corp. v. Canada (Minister of Public Works) et al., [1995] 2 F.C. 110; 179 N.R. 350 (F.C.A.), refd to. [paras. 47, 83]. Privacy Commissioner (Can.) v. Canada Labour Relations Board et al. (2000), 257 N.R. 66 (F.C.A.), refd to. [para. 47]. Rubin v. Canada (Minister of Foreign Affairs and International Trade) (2010), 204 F.T.R. 313; 2001 FCT 440, refd to. [para. 47]. Canada (Attorney General) et al. v. Information Commissioner (Can.) (2001), 268 N.R. 328; 2001 FCA 25, refd to. [para. 47]. Canada Post Corp. v. Canada (Minister of Public Works) et al. (2004), 328 N.R. 98; 2004 FCA 286, refd to. [para. 47]. Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [paras. 74, 81]. Robichaud v. Canada (Treasury Board) - see Brennan v. Canada and Robichaud. Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 79]. Béliveau St. Jacques v. Fédération des employeés et employés de services publics inc. - see St. Jacques v. Fédération des employeés et employés de services public Inc. (C.S.N.) et al. St. Jacques v. Fédération des employeés et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 79]. Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 79]. Rubin v. Clerk of the Privy Council (Can.), [1996] 1 S.C.R. 6; 191 N.R. 394, refd to. [para. 83]. Statutes Noticed: Access to Information Act, R.S.C. 1985, c. A-1, sect. 2(1) [para. 15]; sect. 3 [para. 25]; sect. 4(1) [para. 24]; Schedule I [para. 26]. Privacy Act, R.S.C. 1985, c. P-21, sect. 3(j) [para. 67]. Authors and Works Noticed: Drapeau, Michel William, and Racicot, Marc-Aurèle, Federal Access to Information and Privacy Legislation Annotated 2011 (2010), p. v [para. 80]. Levine, Gregory James, The Law of Government Ethics: Federal, Ontario and British

6 Columbia (2007), pp. 109, 110 [para. 81]. McEldowney, John F., Accountability and Governance: Managing Change and Transparency in Democratic Government (2008), 1 J.P.P.L. 203, pp. 203, 204 [para. 80]. Counsel: Jessica R. Orkin, Marlys A. Edwardh, Laurence Kearley and Diane Therrien, for the appellant; Christopher Rupar, Jeffrey G. Johnston and Mandy Moore, for the respondents; Ryder Gilliland, for the intervener, the Canadian Civil Liberties Association; Paul Schabas, for the interveners, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and the Canadian Association of Journalists. Solicitors of Record: Information Commissioner of Canada, Ottawa, Ontario, for the appellant; Attorney General of Canada, Ottawa, Ontario, for the respondents; Blake, Cassels & Graydon, Toronto, Ontario, for the interveners. These appeals were heard on October 7, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Judgment of the court was delivered in both official languages on May 13, 2011, when the following opinions were filed: Charron, J. (McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 75; LeBel, J., concurring reasons - see paragraphs 76 to 112. Editor: Elizabeth M.A. Turgeon Appeals dismissed. *** Prime Minister - General - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) as meaning that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - That is, the PMO could not be interpreted as part of the Privy Council Office, the Minister of National Defence was not part of the Department of National Defence, and the office of the Minister of Transport was not part of the Department of Transport - The Information Commissioner appealed, arguing that the court should adopt

7 a "function-based analysis" so as to create a dividing line between a Minister's departmental functions on the one hand and non-departmental functions on the other in determining whether a record was subject to the Act - The Supreme Court of Canada rejected the approach advocated by the Information Commissioner - The applications judge's interpretative analysis contained no error - The meaning of "government institution" was clear - The courts below rightly concluded that no contextual consideration warranted the court interpreting Parliament to have intended that the definition of "government institution" include ministerial offices - See paragraphs 37 to 43. Prime Minister - General - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) as meaning that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - The Information Commissioner appealed, arguing that the applications judge erred in his use of expert evidence as an interpretative aid - The Supreme Court of Canada rejected this argument - See paragraphs 30 to 33. Prime Minister - General - Section 4(1) of the federal Access to Information Act provided for a right of access to "any record under the control of a government institution" - An applications judge (affirmed by the Federal Court of Appeal), interpreted s. 4(1) to mean that the Prime Minister's Office (PMO) and offices of the Ministers of National Defence and Transport were not part of the "government institution" for which they were responsible - The Information Commissioner appealed, arguing that Sharlow, J.A., of the Court of Appeal erred in relying on a non-existing "constitutional convention" for distinguishing between ministerial offices and their respective government departments - The Supreme Court of Canada rejected this argument, noting that when Sharlow, J.A., used the phrase "well understood convention", it was clear from the context that she was simply referring to the day-to-day workings or "conventions" of government - See paragraphs 34 to 36. Prime Minister - General - In the context of three access to information applications, an issue arose as to whether the Prime Minister's Office (PMO) or the Offices of the Ministers of Transport or National Defence were government institutions or parts of government institutions for purposes of the Access to Information Act (ATIA) - An applications judge (affirmed by the Federal Court of Appeal) held that the PMO and ministerial offices were separate entities from the Privy Council Office and the Departments of National Defence Transport - The applications judge went on to consider whether the records requested, despite being physically located in the respective offices of Ministers and Prime Minister were nonetheless "under the control" of the related government institution within the meaning of s. 4 of the ATIA - The applications judge adopted a two part test for control (i.e., did the documents relate to a departmental matter

8 and could the government institution reasonably expect to obtain a copy of the document upon request) and concluded that none of the records requested were under the control of the related government institution - The Information Commissioner appealed, proposing a different test - The Supreme Court of Canada dismissed the appeal - The test applied by the courts below was adequate to determine the "control" issue - See paragraphs 44 to 65. Prime Minister - General - At issue was whether personal agendas requested from the Prime Minister under the Access to Information Act (Can.), which were under the control of the Privy Council Office and the Royal Canadian Mounted Police, were "personal information" and therefore exempt from disclosure under s. 19 of the Act - Section 19 prohibited the head of a government institution from releasing any record that contained "personal information" as defined by s. 3 of the Privacy Act (Can.) - Section 3(j) of the Privacy Act created an exception (i.e., personal information could be disclosed about an individual who was "an officer... of a government institution" if that information related to the position or functions of that individual) - The applications judge concluded that the Prime Minister was an officer of a government institution (i.e., the Privy Council Office) and ordered disclosure of the records - The RCMP Commissioner and the Prime Minister appealed - The Federal Court of Appeal allowed the appeals - The court held that the Prime Minister was not included in the phrase "officer of a government institution" as used in the s. 3(j) definition of "personal information" - The Prime Minister's office was a government organization separate from the Privy Council Office - If Parliament had intended otherwise, it would have said so expressly - The Information Commissioner appealed - The Supreme Court of Canada dismissed the appeal - See paragraphs 67 to 75. ***