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Supreme Court of Canada decision regarding Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25

On May 13, 2011, the Information Commissioner of Canada, Suzanne Legault, convened a media availability to comment on the Supreme Court of Canada decision.

Following litigation that lasted more than 10 years, the Supreme Court of Canada ruled that the requested information of agendas, notes and emails related to the activities of former Prime Minister Jean Chrétien, former minister of National Defence Mr. Eggleton and former minister of Transport, Mr Collenette, do not, have to be disclosed. The Court, however, specified that Cabinet documents should be disclosed if they relate to a ministerial matter and if, taking into account factors such as the contents of the documents and the circumstances under which they were created, a senior official of the institution should be reasonably able to obtain a copy.

Comments from Information Commissioner Suzanne Legault at a media availability following the Supreme Court of Canada decision:

It really is a step back, I think. There are three main things that we need to consider, given this decision. First of all, I think in essence, this decision means that there are certainly some documents containing government information which will no longer be available to Canadians.

Second, I think the fact that the Supreme Court of Canada did not establish a clear demarcation as to what is under departmental control, even if it's in a minister's office, the test not being clear, we will end up, I think, in a situation where we'll have to do a case-by-case analysis in our investigations. And I expect that it will formalize the process and could lead to greater litigation and greater costs for Canadians in terms of administering the access to information system.

I thirdly think that it is clear that once again, and I'll repeat, we need to bring some changes to this legislation. In light of this decision, it's important to clarify in the legislation what documents are covered in these ministers' offices. And second, I think there needs to be an obligation to document information within government institutions to make sure that there is a document when important decisions are made.

Below are answers to questions asked to the Commissioner by members of the media:

Does that mean that it's like a black hole in the Minister's offices and the Prime Minister's offices ?

The court looked at this issue, saying that it wasn't a black hole. It is possible to obtain information, says the court, and there's a two-part test established by the court. And I think however that there's a problem there that the court needs to render investigations to look at this information, to have disclosure to Canadians. And in fact, what's going to happen is it's going to be far more complex and judicial.

Should Canadians be concerned of this decision today and in your mind, what are the consequences?

Well, yes, Canadians should be concerned about today's decision. The first, as I explained in three steps, basically my perspective on this decision is there are three main concerns.

First is that I think that based on this decision, there are certain records that are documenting government decisions that are no longer going to be available for disclosure to Canadians.

Secondly, I think that the fact that the Supreme Court of Canada and the test that it has elaborated is not a clear-cut test. I think what it's going to mean for my investigations, it's going to be a lot more complex, it's going to potentially lead to the exercise of more formal powers and that I am anticipating is going to lead to more litigation and that's going to be more costly overall for the administration of access to information in Canada.

And thirdly, I think it's clear that the Act needs to be amended. One, to clarify the documents that are in ministers' offices, that document government business, that should be disclosed; and also that there should be a duty to document government decisions.

And the reason why I say this is if you think back to a little bit of the facts that underline this decision, it's been ongoing for over 10 years, I think that the most compelling example of what I'm saying is the notes that were contained and that were done by a political staffer and these notes were, in some instances, the only records documenting what transpired at very important meetings between the minister of the time and the chief-of-defence-staff and the deputy minister of National Defence.

In light of this, to Canadians watching this, in your mind, what's at risk now because of this? And why is it important to have those records of that staffer?

Well, I mean, that's a perfect example. What's at risk is that in the future, and in fact the court has determined that those political staffers' notes did not meet the test and were not disclosable. And these were the only records of very important meetings that occurred between the Minister of Defence and the deputy minister of the Department of National Defence. I think that Canadians should be seriously concerned that these meetings take place and that in this instance; the only records of some of those meetings are no longer accessible.

Why was it important for your office to have the public retain access to these documents? Since it's been ongoing for ten years, does it mean that the process is somewhat useless?

To respond to your first question, I would say that the reason why it was important to have gone ahead with this issue is essentially what I've already said: that we need to make sure that important decisions within public administration are available to Canadians through the Access to Information Act for disclosure so that Canadians may keep their government accountable for its decisions.

So yes, it is a principle that is fundamental in terms of access to information, to protect in fact the democratic rights of Canadians. The fact that this has been ongoing for 10 years, this has been before the courts, there's been three access to information commissioners, and once these issues end up before the courts, you know, there are a lot of interlocutory injunctions and it's a long and arduous process to gain access to information.

The result of the decision unfortunately is that indeed, there is some information that I think should be disclosable and won't be.

What's wrong with the Supreme Court's argument; if you can legally, under this ruling, have an access to documents that fulfil those requirements, even if they're in the minister's office, then where's the black hole?

Well, there are two issues. First of all, if you look at the court's decision, if you put it in the context of some of the facts of this case, I think it's easier to understand. Basically, the court laid out a two-step test in order to determine whether something is under the control of a government institution, which is the test under the law.

And so what it says is that first, you have to determine whether it's a record that's a departmental record related to departmental business.

The second test, then it says that should a senior official within that department reasonably be expected to be able to obtain those documents, and in order to understand this test, and you have to look at all the relevant factors, as the court states. And then it says that you have to look at the content of the records, you have to look at the circumstances under which the record was created, and then you have to look at the legal relationship between the creator of the document and the department.

Now if you take that in the context of the M5 documents, which were the notes of the political staffers, which are the only notes of these meetings that existed about what transpired at those meetings, the court stated that these notes are not subject to access to information.

When you said in your opening remarks, that some documents won't be available, that's what you're talking about, right? If so, wasn't it true before this ruling?

Well, that was the subject of the litigation. We've now gotten the Supreme Court's ruling on what the parameters of that are.

Now if you put it in the context of when you're trying to assess whether information should be disclosed or not, there's always a tension between a government institution's willingness to disclose information and the public's right to know. There's always a tension between those two, and legitimately so.

And that's where my office comes in as a neutral arbiter. What this test means is that it's going to be very, very difficult. There's no clear line and each case, we're going to have to go through this test to determine whether something, some document is within the control of the institution.

How can you do that test if you don't know what's in the document? How do you make a case that it should be accessible or that it is relevant if you don't know what's in it, you don't have it?

Well, the Supreme Court's decision is also interesting in the sense that it clarifies also the scope of the formal powers of the Office of the Information Commissioner. It confirms that I have the right to subpoena documents and that I have the right to summon witnesses, including ministers.

But it also says that because ministers' offices are not a government institution, I do not have the right to enter ministers' offices premises, nor do I have the right to go on site and interview persons that work in ministers' offices.

So when I say that I think it's going to lead to more formalized processes in investigating these types of cases, that means that I may have to resort to formal powers in most instances in order to actually determine whether this test has met or not when there is a difference of opinion between the government and my office.

What do you say to people and maybe even to the ruling itself when they say it's not up to them to rewrite the Act, and if there are problems in the Act, it's up Parliament to make those changes and they're just interpreting the law the way they see it? Will there be huge changes after this, or isn't this in fact how the law has been for the past ten years at least?

Well, I think that's what we're going to have to see in the next few years. I have a few cases where this issue of whether or not some documents are on the control of a government institution where they're actually located in the minister's offices, I do have quite a few of those cases, including cases of political interference. And we'll have to see how this test applies in those kinds of cases and we'll have to see how it unfolds for sure.

In terms of legislation, as I say, I think that the quickest, easiest, less costly thing to do would be to fix the law.

What's to stop ministers' offices, Prime Minister's offices from changing the rules about who can obtain ministerial office records from documenting more decisions, more actions, more payment in the minister's office and not letting the civil servant to have access to those as a matter of structure?

I think that you raise a very good question. That's why I'm saying that the law should be clarified. When you have a situation like that, it leads to potential abuses. And as I said, the court clarifies that I have the right under the Act, using my formal powers, to subpoena documents and even summon ministers to testify.

And in situations where I have serious doubts that this test is being properly applied, I may have to resort to using these formal powers.

Can we now find out who works in the Prime Minister's Office and what contracts they've let through the Prime Minister's Office? Do we have a legal right to that still?

It would be a case-by-case basis if I were to get an actual complaint on something like that. I mean, you'd have to look at the legislation. Basically, the Act is fairly clear. You have the right to any document that's under the control of a government institution. So if you want to make an access request to the Prime Minister's Office in order to find that out, and they give you no information, we'll have to then, if you complain to my office, we'll have to go through this test to determine whether this is government, whether this is PCO's business as opposed to the minister's office solely. And we're going to have to go through that test in order to determine whether you're allowed to see that information.

One person who does a lot of access requests told me earlier that he thinks that what the court has done is actually given the government a roadmap on how to keep documents secret and says that the government can now embed political commentary and political activities in (inaudible) normally because they're departmental documents and so on, and so forth. Do you view that we are now further away from transparency today than we were yesterday because of this ruling?

Well, as I said initially, I think so. I think that this is limiting the right of access to government information. Certainly, it clarifies those limits. I think that's what we can say.

In terms of the roadmap, I think that what I said earlier in amending the law to make sure that there is a duty to document decisions that are made by the government is probably becoming more relevant in light of this decision than ever before.

And the M5 notes of the political staffer in this case are probably the best example of what I'm saying.

Justice LeBel also talks about hybrid records. This is almost like the new kind of records that are now being talked about in terms of access to information because of ministers' offices work and departmental work; you may very well find yourself with a whole slew of documents which are part political and part government institution documents. And that complicates the matter further.

And that is the situation now, but I think that this decision really complicates the test, the analysis, the investigation and the way to obtain the records and to determine what's clearly under the control of the government institution and what is clearly disclosable to Canadians.

You said that it's going to make it more costly, more time consuming to challenge these decisions not to disclose records. Can you give us a big-picture sense of right now how much of your time is spent fighting in terms of the cases that come before you and how much worse it would be under this new regime?

No, I really can't tell you at this point. As I said, we have about ten cases in our inventory right now that really will need to be going through this analysis in order to be completed, and then we'll see how this unfolds with the government and in ministers' offices. And then I'll be perhaps in a better position, once these investigations are finished and once we're able to discuss it.

Certainly, I have stated already that in the cases related to political interference, my intention is to follow the lead of the evidence wherever it takes me and when these investigations are completed, I will report on them in a special report to Parliament. I've already issued one special report.

Once the next investigation in the Public Works matter is completed, I will also report to Parliament in a special report with as much detail as the law allows me. And if there are issues with the interpretation of what's under the control of a government institution and the carrying forward of the investigation, I will report in that special report on those issues.

What do you see is the current state of access to information, to government information in Canada?

Well, I'm sure you've heard about the British report with the constitution unit, and they're basically saying that we don't compare well internationally with our major partners.

And secondly, Stanley Tromp did a comprehensive study of major pieces of legislation around the world. He also comes to the conclusion that we have fallen behind. If we look at the access to information regime at the federal level, I think the government statistics are compelling. The amount of information that's being disclosed is in decline, has been in significant decline since the 2000s. And in terms of timeliness, the percentage of information that's being disclosed within the 30-day minimum statutory timeline is also decreasing.

So when we look at those things, it's clear that we have a dismal situation at the federal level. I've been advocating for reform. It needs to be reformed. It needs to be brought into the electronic age. This decision highlights that it needs to be clarified in terms of documents that are within ministers' offices. It needs to have a stronger duty to document, to make sure that government decisions are properly recorded and subject to access to information.

And so that's my view on the state of the federal access to information regime.

How would you describe this decision, considering you've been fighting this for several years?

I think it further limits the right of Canadians to access government decisions recorded in documents.

Why should Canadians be concerned by this?

They should be concerned because that's the only way that they can hold their governments to account because if they don't know what is occurring in some very important meetings, like the M5 meetings, then they have no idea of the basis of the decisions that the government is making on their behalf. And I think that they should be very concerned about that.