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Info Source Bulletin Number 29

Attorney General of Canada and Mel Cappe and Information Commissioner of Canada

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

File No.:	T-223-04
Reference:	2004 FC 199
Date of decision:	May 27, 2005
Before:	Desjardins, Noël, and Malone JJ.A.
Sections of ATIA / PA:	*Ss. 2, 23, 36(1)(a), 36(2), 42(1), 46 Access to Information Act (ATIA)*

Abstract

Legal advice prepared to advise a government institution as to how it should respond to a request for access to information cannot be examined by the Information Commissioner unless absolutely necessary for Commissioner to complete his investigation

Issues

Does subs. 36(2) of the ATIA require a government institution being investigated by the Information Commissioner to produce legal advice memoranda prepared to advise the government institution in respect of a request for access under the ATIA?

Facts

On June 28, 1999, six requests were made to the Privy Council Office ("PCO") for copies of the Prime Minister's daily agenda books for fiscal or calendar years 1994 to June 1999. The Privy Council Office sought legal advice in respect of these requests and that advice was received in the form of a legal advice memorandum, dated July 30, 1999 ("the legal advice memorandum").

Following PCO's response to the access request, the requester complained to the Information Commissioner ("the Commissioner") that all of the records requested had not been provided. In the course of the ensuing investigation, Mel Cappe, Clerk of the Privy Council, refused to produced the legal advice memorandum. On examination under oath at the Office of the Information Commissioner, Mr. Cappe objected to the release of the legal advice memorandum, claiming solicitor-client privilege on behalf of the Government of Canada. Ultimately, the appellants (the Attorney General of Canada and the Clerk of the PCO) sought relief before the Federal Court by way of judicial review, naming the Commissioner as a respondent in the proceedings. A judge of the Federal Court dismissed the appellants' application for judicial review on the ground that subs. 36(2) ATIA gave the Commissioner's delegate jurisdiction to compel production of the legal advice memorandum (2004 FC 431). In reaching this conclusion, the judge adopted a purposive and liberal interpretation of the provision, and relied on the decision of the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4^th) 127 (F.C.A.) ("Ethyl"). In Ethyl, the Minister of Environment had refused disclosure of certain Cabinet discussion papers on the basis that they did not exist. In the course of his investigation, the Commissioner obtained other records that were not covered by the request (the "ancillary records") but which did concern the use of discussion papers within the Cabinet paper system. Some of these records were said to be protected by the solicitor-client privilege. The Commissioner considered these latter records relevant to the question of whether the requested records did exist.

Decision

The appeal was allowed.

Reasons

Following the teachings of the Supreme Court of Canada, solicitor-client privilege has evolved into a fundamental and substantive rule of law which commands a unique status within the legal system, integral to the workings of the legal system itself. The substantive rule of solicitor-client privilege, as formulated in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, has been consistently applied by the Supreme Court of Canada. That rule, as formulated in Descôteaux at p. 875, states in particular:

When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
...[E]nabling legislation referred to in paragraph 3 must be interpreted restrictively.

In the FCA's analysis, the Commissioner's use of the powers granted to him under para. 36(1)(a) and subs. 36(2) of the Act to obtain the confidential legal advice memorandum interfered with solicitor-client privilege in a manner that was unnecessary for the achievement of the enabling legislation. Applying the Supreme Court of Canada jurisprudence, subs. 36(2) must be interpreted restrictively in order to allow access to privileged information only where absolutely necessary to the statutory power exercised.

In the present appeal, the legal advice memorandum was specifically prepared in order to provide legal advice relating to the access to information requests. As such, it is not analogous to the records at issue in Ethyl, records which were relevant to the question as to whether the requested records did in fact exist; a question that the Commissioner had to answer in the course of his investigation. The FCA stressed that the ancillary records at issue in Ethyl came into existence before the access to information request and were not created for the purpose of allowing the government institution to properly respond to the information request. Accordingly, the question of whether subs. 36(2) empowers the Commissioner to compel the disclosure of the legal advice memorandum, which was prepared in response to an access to information request, remained outstanding in Ethyl.

In the present context, a strong expectation of confidentiality with respect to the legal advice memorandum remains, despite subs. 36(2). In the Court's view, Parliament did not intend that a government institution be without the benefit of legal advice, provided in confidence, in deciding how to properly respond to an information request. The nature of the information contained in the legal advice memorandum and PCO's expectation of confidentiality with respect to that information led the Court to conclude that the legal advice memorandum is not absolutely necessary in order for the Commissioner to complete his investigation of the complaint. As a result, the Commissioner is not entitled to the production of the memorandum created in order to provide legal advice to the PCO in response to the access to information request made under the ATIA.

Comments

The Supreme Court of Canada dismissed the Information Commissioner's application for leave to appeal from the judgement of the Federal Court of Appeal.