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Info Source Bulletin Number 28

Attorney General of Canada and Bruce Hartley v. Information Commissioner of Canada

Indexed as: Canada (Attorney General) v. Canada (Information Commissioner)

File No.:	T-582-01, T-606-01, T-1640-00, T-1641-00, T-792-01, T-877-01, T-878-01, T-883-01, T-892-01, T-1047-01, T-1254-01, T-1909-01, T-684-01, T-763-01, T-880-01, T-895-01, T-896-01, T-1049-01, T-1255-01, T-1448-01, T-1910-01, T-2070-01, T-801-01, T-891-01, T-1083-01
Reference:	2004 FC 431
Date of decision:	March 25, 2004
Before:	Dawson J. (F.C.T.D.)
Sections of ATIA / PA:	*Ss. 4, 34, 35, 36, 46, 62, 63, 64, 65 Access* to Information Act (ATIA)**
Other statutes:	S. 18.1 Federal Court Act; ss. 1, 2 Canadian Charter of Rights and Freedoms

Abstract

Records in a Minister's office
Confidentiality orders made by the Information Commissioner
Copies of records made by the Information Commissioner
Production to the Information Commissioner of records protected by
solicitor–client privilege
Propriety of questions asked by the Information Commissioner
Standard of review

Issues

Whether records in a Minister's office are subject to the ATIA
Whether the Commissioner can place a confidentiality order on all witnesses and related personnel (in this case, the Commissioner wanted to force, among others, the Prime Minister and his Chief of Staff to give a confidentiality undertaking not to share information even within Cabinet);
Whether the Commissioner can make copies of records he has obtained during his investigation;
Whether the Commissioner can ask any question he wants of witnesses;
Whether the Commissioner can obtain records protected by solicitor-client privilege

Facts

In 2000, the Office of the Information Commissioner began an investigation into a complaint made under the ATIA relating to requests made to several government institutions:

requests to PCO for the daily agendas of the Prime Minister covering the period 1994 to 1999 and for records relating to the appointment of Conrad Black to the British House of Lords;
requests made to DND for the minutes of meetings between the Minister of National Defence, the Deputy Minister of National Defence and the Canadian Forces Chief of Staff; and
a request to Transport Canada for the daily agendas of the Minister of Transport between June and November 1999.

All government institutions took the position during the Commissioner's investigation that they had no records relevant to the requests. The Information Commissioner sought to interview the Prime Minister's Executive Assistant and exempt employees of the Minister of National Defence's office. He issued them subpoenas duces tecum ordering these individuals to appear before him with documents relevant to his investigation. The Government sought a declaration from the Federal Court that the requested records are not subject to the ATIA and certiorari to quash the subpoenas. It also presented a motion for interim relief prohibiting the Commissioner from enforcing the subpoenas duces tecum until the final determination of the judicial review application, which was denied by the FCA in March 2001 (Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25).

While the case on the substantive issue was awaiting to be heard by the FCTD, the Commissioner's investigation thus proceeded. During that investigation, several issues relating to the Commissioner's investigative powers arose and were the subject of additional judicial review applications by the Government which were heard at the same time as the original application for declaration.

Decision

Dawson J. made the following orders:

The Court agreed with the Information Commissioner that it was premature to adjudicate on the issue of whether records held exclusively in Ministers' offices are subject to the ATIA and that such a decision must await the completion of the Information Commissioner's investigation and final report.
The Court found that the confidentiality undertakings ordered by the Information Commissioner violated the Charter and could not be saved by s. 1 as they were overbroad; however, the Court gave the Commissioner 30 days to reissue new, tailored confidentiality undertakings.
The Court agreed with the Information Commissioner that the ATIA authorizes him to make copies of documents provided to him pursuant to his subpoena power and that he does not have to return such copies when asked to return the documents themselves.
The Court refused to rule on the propriety of questions asked by the Commissioner on the ground of mootness.
The Court agreed with the Information Commissioner that he can require production of specific documents protected by solicitor-client privilege.

Reasons

Preliminary question

With respect to issues 2, 3, and 5 the Court made the findings that the appropriate standard of review to be applied to the Commissioner's decision, based on the pragmatic and functional approach, was correctness.

Issue 1

The Court characterized the issue of whether records in a Minister's office are subject to the Act as an issue of control under s. 4 of the ATIA and thus as a mixed question of law and facts. The importance given by Parliament and the Courts to the Commissioner's investigation and to the independent review role he is playing, led the Court to conclude that it should have the benefit of his views before making a decision on the issue. The Commissioner had, in the Court's view, taken the legitimate position that he was unable to take a position on the merits of the control issue in the ongoing litigation because to do so was to impair his role as a neutral fact-finder in the not yet completed investigations. The Court found no prejudice to the Government in waiting, since no documents would be released until after the Court review, and the Court of Appeal had already concluded in an earlier appeal that the Government suffered no harm by providing documents and information to the Information Commissioner, since they could not be released. The Court's conclusion was buttressed by the fact that it was clear from the evidence that ministerial staff frequently did things within the purview of the Department, and jurisprudence from the provinces said that the subject-matter of the documents in issue was one of the factors to be considered in determining whether any particular document was under the control of the department. The Court made clear that that factor was not determinative, but said that until the court saw the documents in issue, as it would in a review of a refusal to disclose following the Commissioner's investigation, it could not apply this factor.

The Court therefore ruled that it was premature to make a decision on the issue

Issue 2

Each of the witnesses who gave evidence before the Information Commissioner was the subject of a confidentiality order which required the witness to keep confidential all information disclosed during the testimony with the only exception being the ability to disclose that information to four specified lawyers, once each lawyer had executed an undertaking to not reveal that information to anyone else. Specific requests for individual exemptions were made, but were denied.

The Court quashed the confidentiality orders made by the Information Commissioner on the grounds that they offended the Charter in that they breached s. 2(b) and were not saved by s. 1. The Court specifically found that the Act did not require the orders to be made, as the Act's provisions on the confidentiality of investigations are meant to ensure the confidentiality of information provided to the Commissioner, and do not impose any confidentiality obligations on anyone else. The Court, however, recognized that the Commissioner could make such orders pursuant to s. 34 of the ATIA which confers upon him the discretion to determine, in appropriate circumstances, that some form of confidentiality order should be invoked and imposed upon a witness.

The Court summarily concluded that the orders offended s. 2(b) of the Charter and then examined this violation under s. 1. According to the Court, there was a valid purpose for the orders, in that they were designed to protect the integrity of the investigations by promoting the seeking of truth, and preserved the confidentiality of government information. Furthermore, the objectives sought to be achieved related to pressing and substantial concerns in a free and democratic society and were sufficiently important, in some circumstances, to override the constitutionally protected freedom of expression. Furthermore, there was a rational connection between the imposition of a confidentiality order and the purposes. They failed, however, on the minimal impairment test. The Commissioner failed to demonstrate why less restrictive confidentiality orders would not have been equally effective in achieving the purposes. The Court held that the Commissioner effectively reversed the onus by requiring each witness to prove why an order should not be issued. There was no evidence as to why the orders were of unlimited duration in time. The evidence did not establish that there was any concern that the evidence of a witness would be tainted if it was disclosed, nor was there evidence that the witnesses would disclose confidential information.

On this issue the Court concluded that to the extent that confidentiality orders restricted communications where there was no reasonable concern that such communication would impair the investigation or would result in the improper disclosure of confidential information, the orders were an impermissible restriction on the witnesses' freedom of expression. It also held that as the Commissioner is not entitled to put before a witness information which may be exempted from disclosure under the Act, his concern about the improper disclosure of government information was not warranted. Further, as many of the witnesses who appeared before the Commissioner were subject to confidentiality obligations independent of any imposed by the Commissioner, the need to protect information would not arise in every examination. Thus, in the Court's view, a confidentiality order would be justified with respect to that specific information so long as the order went no further than is reasonably required to protect the confidential information.

Finally, the Court held that the order quashing the confidentiality orders should be suspended for 30 days to permit the Commissioner to consider the need for confidentiality orders and, if still required, to issue orders which are not overbroad in scope and demonstrably justified.

Issue 3

All of the documents sought by the Commissioner were provided to him during his investigation. Copies were made of those documents and retained by the Information Commissioner's Office and originals were returned by him. Applications were brought in respect of all documents turned over to the Information Commissioner, seeking declarations that the Information Commissioner's Office had no jurisdiction to make or keep copies of those documents, and mandamus compelling him to return them.

The Court found that the Commissioner may only exercise powers granted to him expressly or impliedly by the Act. As the purpose of the Commissioner's investigation is to enable him to provide his statutorily mandated report and that he must, to do so, conduct a thorough investigation, the issue to be decided is whether the power to photocopy documents is required as a matter of practical necessity in order for the Commissioner to conduct his investigation and further his functions effectively and efficiently. According to the Court, the power to photocopy documents is required as a matter of practical necessity for the accomplishment of the Commissioner's responsibility and does not constitute an unduly broadening of the Commissioner's powers.

The Court further ruled that subs. 36(5) of the ATIA did not require the Commissioner to return copies he may have made of documents provided to him because those copies were not "produced" pursuant to s. 36. Only the version of documents produced to him must be returned under this provision. The copies made by the Commissioner continue to be protected by the Act's provision preserving the confidentiality of documents provided to the Commissioner.

Issue 4

During the course of the evidence, questions were put by the Commissioner to two witnesses to which objections were taken. One witness refused to answer the questions put to him. The Information Commissioner subsequently decided that it was unnecessary for that witness to answer those questions. The second witness answered the questions.

The Court ruled that as the questions asked by the Commissioner which were the subject of this application had either been withdrawn by the Commissioner or had been answered by the witness and that any ruling on the propriety of these questions would not be determinative or applicable in future cases, the Court should exercised its discretion not to determine these applications on the merits. With respect to the questions that had been answered, the Court ruled that the applicant would have grounds for a new judicial review application, should the Commissioner rely on the answers to reach a conclusion.

Issue 5

The subpoena served on the Clerk of the Privy Council required him to bring with him documents that included a memorandum prepared by a PCO counsel that related to the subject-matter of the complaint which the Commissioner was investigating. The Clerk objected to the disclosure of this document by invoking solicitor-client privilege, but the Commissioner overruled the objection and it was thus provided to him.

The Court ruled that subs. 36(2) of the ATIA should not be interpreted in a restrictive fashion, and that it entitled the Commissioner to compel the production of records protected by solicitor-client privilege. It rejected the applicant's argument that the principles developed by the Supreme Court of Canada in the Lavallée decision (Lavallée, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209) limited the Commissioner's power to compel the production of documents, given the words used by Parliament in subs. 36 (2) that the Commissioner is to have access to any records "notwithstanding any other Act of Parliament or any privilege under the law of evidence" and that "no such record may be withheld from the Commissioner on any grounds". The Court further rejected the applicant's position that the Commissioner could only compel the production of solicitor-client material where it is "absolutely necessary". The Court found that the Commissioner's power to compel production of records protected by solicitor-client privilege is entirely consistent with the scheme of the Act which requires him to protect privileged information communicated to him under that provision.

The Court also noted that subs. 36(2) mirrored subs. 46(2) of the ATIA, which had already been interpreted similarly and that disclosure of solicitor-client material to the Commissioner and to the Court under these two provisions did not meant that the privilege had been lost.

Comments

The decision of Dawson J. on the powers of the Information Commissioner to compel production of the documents protected by solicitor-client privilege was reversed: 2005 FCA 199.