Chapter 7: Criminal liability and civil responsibility

An important aspect of an access to information law is a comprehensive regime of sanctions to address actions contrary to the right of access. Sanctions create an incentive to comply with the law. To be most effective, they must be proportionate to address a range of behaviours, from more serious actions made in bad faith to less serious actions that result in failing to meet the obligations under the law.

The Act contains two offences. The first (section 67) prohibits the obstruction of the Information Commissioner and anyone acting on her behalf or under her direction in the performance of their duties and functions under the Act.

Section 67.1 was added to the Act as a result of a private member's bill that was drafted in response to concerns that had been raised by Commissioner John Grace. In the wake of various findings that the right of access to government records had been thwarted through record destruction, tampering and cover-up, including incidents linked to the Somalia Inquiry and the Canadian Blood Inquiry, Commissioner Grace arrived at the conclusion that "the time had come to consider amending the Access Act to provide penalties for flagrant violations of this statute."Footnote 1a He echoed this sentiment by again recommending the next year that there be "a specific offence in the access act for acts or omissions intended to thwart the rights set out in the law.”Footnote 2a

In 1999, a second offence was added to the Act (section 67.1). This offence prohibits all persons from destroying, mutilating, altering, falsifying or concealing records with the intent of denying a right of access under the Act. It also forbids directing, proposing or causing anyone else to do any of the prohibited acts.

The Commissioner has found information related to the possible commission of an offence under section 67.1 on three occasions.Footnote 1

The Commissioner has come to the conclusion that the Act needs a broader range of prohibited actions to cover all types of behaviours that may hinder the right of access. The Act also needs a spectrum of sanctions to allow for a proportionate response to behaviours that are contrary to the right of access.  

In 2008 the National Gallery of Canada (NGC) was involved in litigation as a result of a wrongful dismissal action. During the litigation it was revealed that documents may have been destroyed and/or individuals were counselled to destroy records that may have been responsive to an accessrequest. Upon learning this information, the Commissioner initiated an investigation.

During the investigation, the Commissioner found as a fact that records responsive to an access to information request were destroyed and individuals were counseled to destroy records during the course of the processing of the request. As a result, she referred the matter to the Attorney General. No charges were laid.

Obstruction

Section 67 of the Act prohibits obstructing the Commissioner in the performance of her duties.Footnote 2 It does not address obstructing the processing of an access request.

During the investigations that formed the basis of the Interference with Access to Information: Part 2 special report, the Commissioner uncovered evidence that the processing of several access requests had been interfered with.  

In order to address instances where the processing of an access request is obstructed, the Commissioner recommends that a new offence be added to the Act. Directing, proposing or causing anyone to do so should also be an offence under the Act.

Recommendation 7.1

The Information Commissioner recommends that obstructing the processing of an access request (or directing, proposing or causing anyone to do so) be added as an offence under the Act.

In Interference with Access to Information: Part 2, the Commissioner concluded that there was improper interference in the processing of five access requests at Public Works and Government Services Canada by ministerial staff. This interference took the form of directions to the ATIP Directorate from the ministerial staff members, who had no authority under the Act, to sever or remove information that the delegated authority had decided to disclose.

Section 67.1 applies to the destruction, mutilation, alteration, falsification or concealment of a record.  To be consistent throughout the Act, this section should be amended so that it is an offence to destroy, mutilate, alter, falsify or conceal any record or part thereof to deny the right of access.

Recommendation 7.2

The Information Commissioner recommends that section 67.1 prohibit destroying, mutilating, altering, falsifying or concealing a record or part thereof or directing, proposing or causing anyone to do those actions.

Failure to document

In light of the Commissioner’s recommendation in Chapter 2 to add to the Act a duty to document, the Act also needs to prohibit non-compliance with this obligation.

The Commissioner therefore recommends that failing to document or preserve a decision-making process with intent to deny the right of access be prohibited under the Act. Directing, proposing or causing anyone to do so should also be prohibited under the Act.

Recommendation 7.3

The Information Commissioner recommends that failing to document or preserve a decision-making process with intent to deny the right of access (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Failure to report

In Chapter 2 the Commissioner also recommended establishing a duty to report to Library and Archives Canada the unauthorised destruction or loss of information, with a mandatory notification to the Commissioner.

In order to ensure compliance, failing to report to Library and Archives Canada and/or notify the Commissioner of the unauthorised destruction or loss of information should also be prohibited.

Recommendation 7.4

The Information Commissioner recommends that failing to report to Library and Archives Canada and/or notify the Information Commissioner of the unauthorised destruction or loss of information (or directing, proposing or causing anyone to do so) be prohibited under the Act.

Spectrum of sanctions

In order to address the broad range of prohibited behaviours discussed above, the Act needs to include a spectrum of sanctions. At one end of the spectrum are the criminal offences related to obstruction, then administrative monetary penalties, then, at the other end, disciplinary proceedings.

The Organization of American States model law envisages this approach and makes available criminal sanctions for certain wilful actions, but also fines and disciplinary proceedings for administrative offences.Footnote 3

Adding a spectrum of sanctions to the Act has also been mentioned by the Government. In contemplating whether a duty to document should be added to the Act, the Government noted that “penalties for public servants who fail to create a record could range from disciplinary measures through an administrative monetary penalty to a criminal offence.”Footnote 4

Spectrum of sanctions

 

Criminal

Administrative monetary penalties

Disciplinary proceedings

Obstructing the Commissioner in the performance of her duties (section 67)

Yes

Yes

Yes

Obstructing the processing of an access request (new offence)

Yes

Yes

Yes

Destroying, mutilating, altering, falsifying or concealing information (section 67.1 as amended)

Yes

Yes

Yes

Failure to document

Yes

Yes

Yes

Failure to report and/or notify

No

Yes

Yes

No liability where acting in good faith

The Organization of American States model law also provides that no one will be subject to civil or criminal action or any employment detriment where they are acting in good faith in the exercise, performance or purported performance of any power or duty within the model law, as long as they acted reasonably and in good faith.Footnote 5

This is an important aspect of the model law as it ensures that sanctions are only applied against those who act in bad faith or are negligent in the performance of their duties. The Commissioner recommends that the Act should make clear that no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.

Recommendation 7.5

The Information Commissioner recommends that no one acting reasonably and in good faith in the performance of their duties under the Act will be subject to sanction.

Criminal offences – increasing fines

The Commissioner is of the view that the fines under the Act need to be updated to accurately reflect the seriousness of these violations. The fines that can currently be levied are lower than what can be found in the offences section in other provincial access laws and in other federal regulatory schemes.Footnote 6

Sanctions under the Act
 

Section 67

Section 67.1

Summary Conviction

Up to a $1,000 fine

Up to a $5,000 fine and/or imprisonment for a term not exceeding six months

Indictable offenceFootnote 1b

N/A

Up to a $10,000 fine and/or imprisonment for a term not exceeding two years

The Commissioner recommends that the maximum fine for a summary conviction offence under the Act should be $5,000. This would be consistent with provincial laws and ensure consistency within the Act. For the indictable offence under section 67.1, the maximum fine should be increased to $25,000 to provide a stronger deterrent than currently exists against serious violations of the right of access. 

Recommendation 7.6

The Information Commissioner recommends increasing the maximum fine for summary convictions under the Act to $5,000 and to $25,000 for indictable offences.

Administrative monetary penalties

An administrative monetary penalty (AMP) is a compliance mechanism that is used for less serious contraventions of a law in order to encourage compliance. It also falls outside of the scope of criminal law. AMPs can be graduated based on the seriousness of the contravention and take various factors into consideration when determining the amount to be imposed.

As part of the spectrum of sanctions available under the Act, the Commissioner should have the authority to levy AMPs against any individual for breaches of any of the prohibited actions set out in this chapter (as set out in the table “Spectrum of sanctions”).

As noted above, the Government has mentioned an AMP regime.Footnote 7 As well, the Organization of American States model law also provides for an administrative regime of fines.

Including an AMP regime in the Act would allow the Commissioner to proportionately respond to the broad spectrum of actions she encounters that are not in compliance with the Act and, in so doing, protect the right of access.Footnote 8

An example of an AMP regime can be found in the Conflict of Interest Act.Footnote 9 Included in this regime is that all AMPs that have been levied under this act are required to be published.Footnote 10 Adding such a regime has also been recommended by a Parliamentary Committee for the Lobbying Act. Footnote 11

The Commissioner recommends that an AMP regime be added to the Act. The regime should also require the publication of AMPs that have been imposed in order to heighten awareness of the obligations under the Act.

Recommendation 7.7

The Information Commissioner recommends an administrative monetary regime be added to the Act, which should include a requirement to publish any administrative monetary penalty imposed. 

Term and condition of employment for employees, directors and officers of institutions

As part of the spectrum of possible sanctions, disciplinary proceedings should be an option. In order to put in place this option, compliance with the Act must be a term and condition of employment.

Currently, employees must abide by the Values and Ethics Code for the Public Sector (the Code). There is a general obligation on all employees to carry out their duties in accordance with legislation, policies and directives; however, the Code does not highlight or specifically address employees’ obligations under the Access to Information Act.Footnote 12

The Commissioner recommends that meeting obligations under the Act should be a term and condition of employment for employees, directors and officers of institutions. Footnote 13, Footnote 14 Such a condition would make it clear to those that work in institutions that they have responsibilities under the Act, are accountable for meeting them, and are subject to disciplinary procedures when these obligations are not met.

The Commissioner recommends that such a provision resemble section 19 of the Conflict of Interest Act, which provides that compliance with that law is a condition of a person’s appointment or employment as a public office holder. In this instance, the recommended provision should be applicable to all employees, directors and officers of all institutions subject to the Act.

Recommendation 7.8

The Information Commissioner recommends that adherence to the requirements of the Access to Information Act be made a term and condition of employment for employees, directors and officers of institutions.

Referral of criminal offences

Suspending investigations

Recent enabling legislation of bodies that perform administrative investigationsprovide that administrative investigations must be immediately suspended where the investigative authority believes on reasonable grounds that a criminal offence on the same subject-matter of the administrative investigation has occurred. The investigative authority is then required to notify the relevant authorities.Footnote 15

The Act contains no such provision to suspend investigations when the Commissioner has reasonable grounds to believe that a criminal offence has been committed.Footnote 16 The Commissioner therefore recommends that the Act be amended to require the suspension of investigations in such situations.

Recommendation 7.9

The Information Commissioner recommends that an investigation under the Act must be suspended when the Information Commissioner believes on reasonable grounds that a criminal offence on the same subject-matter of the investigation has occurred.

Notifying authorities

The Act imposes strict confidentiality obligations on the Commissioner (see Chapter 5), with few exceptions. Section 63(2) of the Act allows the Commissioner to disclose information to the Attorney General of Canada when she is of the view that she has evidence of an offence against a law of Canada or a province by a director, officer or employee of an institution.

The interaction between the Commissioner’s strict confidentiality obligations, the exemption in the Act for investigations of the Commissioner (section 16.1), and section 63(2) raises issues.

First, although section 63(2) of the Act sets out that the Commissioner is able to provide information when she is of the view that she has evidence of an offence, it doesn’t set out what information she can provide. 

As reported in both the Interference with Access to Information: Part 1 and Part 2 special reports, the responses available to the Commissioner to sanction the actions that were the subject of the complaint were limited because many of the actions were undertaken by ministerial staff.

The Information Commissioner was not able to disclose information in relation to the actions of the ministerial staff because they were not officers, directors or employees of a government institution. This is so despite the wording of the offences to the Act, which prohibit every person from engaging in the offensive conduct.

Second, section 63(2) is limited to directors, officers or employees. This means the Commissioner may report on the conduct of those individuals only, and she may not report on the conduct of, for example, current and former consultants, contractors, or ministers and their exempt staff. Footnote 17

Finally, section 63(2) permits the Commissioner to report to the Attorney General of Canada, who is not charged with conducting criminal investigations.Footnote 18 This places the Attorney General in the unusual position of acting as a courier between the Commissioner and the appropriate criminal investigative authority. By contrast, the Federal Court has the discretion under the Act to provide information to an “appropriate authority” to conduct the relevant criminal investigation.Footnote 19 The enabling legislation of some of the agents of Parliament include similar provisions, but authorize the Agent of Parliament to provide the information to either the “relevant authority” or a peace officer having jurisdiction to investigate the alleged contravention.Footnote 20

In order to address these issues, the Act must be amended to make clear that, despite her confidentiality obligations, the Commissioner is permitted to share information where she is of the view that a referral is warranted. The Act must also be amended to allow the Commissioner to share this information about anyone’s conduct to the appropriate authority.

Recommendation 7.10

The Information Commissioner recommends that the Information Commissioner be permitted to share any information to the appropriate authority where the Information Commissioner believes a referral is warranted about anyone’s conduct related to a criminal offence.

Footnotes

Footnote 1

The three occasions where the Commissioner found information related to the possible commission of an offence under section 67.1 are described in detail in 1) the 2009–2010 Annual Report; 2) Interference with Access to Information: Part 1 and 3) Interference with Access to Information: Part 2. See Office of the Information Commissioner, “Without a trace”, 2009-2010 Annual Report; Office of the Information Commissioner, Interference with Access to Information: Part 1, March 2011; and Office of the Information Commissioner, Interference with Access to Information: Part 2, April 2014. 

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Footnote 2

An example of obstructing the Commissioner in the performance of her duties would include making a false statement to mislead or attempt to mislead the Commissioner.

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Footnote 3

Organization of American States. Model Inter-American Law on Access to Public Information and its Implementation Guidelines. 2012 at articles 64–65.

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Footnote 4

Government of Canada, Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act (Ottawa: Government of Canada, 2006) at p. 35.

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Footnote 5

At article 63.

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Footnote 6

For example, Manitoba’s access law allows for a fine up to $50,000 on summary conviction, New Brunswick up to $10,200, Alberta and P.E.I. (on summary conviction) up to $10,000 and B.C., Ontario, and Newfoundland and Labrador (on summary conviction) up to $5,000. Under the Canada Elections Act, SC 2000, c 9 every person who is guilty of an offence under section 495(4) (offences requiring intent, including willfully transmitting election survey results during blackout period) is liable on summary conviction of a fine not more than $50,000. Under the Lobbying Act, RSC, 1985, c 44 (4th Supp) every individual who fails to file a return or knowingly makes any false or misleading statement in any return or other document submitted to the Commissioner of Lobbying is liable on summary conviction to a fine not exceeding $50,000.

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Footnote 7

See n. 4.

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Footnote 8

For example, an AMP may be appropriate where prosecution is not pursued, but the behaviour still merits some form of sanction. According to the Public Prosecution Service of Canada Deskbook,when deciding whether to initiate and conduct a prosecution on behalf of the federal Crown, Crown counsel must consider two issues: 1) Is there is a reasonable prospect of conviction based on evidence that is likely to be available at trial? If there is 2) would a prosecution best serve the public interest? A number of factors are considered in the public interest, including the nature of the alleged offence, the nature of the harm caused by or the consequences of the alleged offence, the circumstances, consequences to and attitude of victims, the level of culpability and circumstances of the accused, the need to protect sources of information and confidence in the administration of justice. Public Prosecution Service of Canada, Public Prosecution Service of Canada Deskbook, March 1, 2014. 

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Footnote 9

SC 2006, c 9, s 2 at section 52.

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Footnote 10

The Organization of American States model law requires that any sanction ordered under the law be posted on the websites of the oversight body and respective institution within five days of the sanction being ordered (see article 65(4)).

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Footnote 11

During a five-year review of the Lobbying Act, the Commissioner of Lobbying recommended to the Standing Committee on Access to Information, Privacy and Ethics that an administrative monetary penalty regime be added to the Lobbying Act. This recommendation was supported by the committee, who submitted it to Parliament. See Office of the Commissioner of Lobbying, Administering the Lobbying Act Observations and Recommendations Based on the Experience of the Last Five Years, December 13, 2011, and Parliament, House of Commons, Standing Committee on Access to Information, Privacy and Ethics, Statutory Review of the Lobbying Act: Its First Five Years, 1st Sess, 41st Parl).

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Footnote 12

By contrast, Expected Behaviour 5.1 of the Values and Ethics Code for the Public Sector specifically highlights the obligations of public servants to provide fair, timely, efficient and effective services that respect Canada's official languages. Expected Behaviour 1.1 generally requires public servants to respect the rule of law and carry out their duties in accordance with legislation, policies and directives in a non-partisan and impartial manner. Treasury Board of Canada Secretariat, Values and Ethics Code for the Public Sector, December 15, 2011. 

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Footnote 13

This would include ministerial staff if the Act is amended to include ministers’ offices under the coverage of the Act.

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Footnote 14

Similarly, during consultations with the Treasury Board of Canada Secretariat on the Policy on Access to Information, the Commissioner recommended that compliance with the administration of the Act, including the resolution of complaints, be included in the performance agreement of the member of the executive responsible for the access functions. She also recommended that compliance with the administration of the Act, including meeting specific performance indicators, be a part of each institution’s Report on Plans and Priorities.

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Footnote 15

For example, see section 10.4 of the Lobbying Act or section 49 of the Conflict of Interest Act. The provisions in these laws require the suspension of an investigation where there are reasonable grounds to believe that a criminal offence on the same subject-matter of the administrative investigation has occurred. As well, in R v Jarvis, 2002 SCC 73 and R v Ling, 2002 SCC 74, the Supreme Court of Canada held that Charter protections for life, liberty and security of person (section 7) and against unreasonable search and seizure (section 8) are violated when testimony on documents provided in an administrative investigation are used in a criminal investigation. At the heart of the issue was the principle against self-incrimination.  The Court held that once the predominant purpose of an investigation becomes one of criminal liability, Charter rights are engaged. Although these decisions were made in the context of income tax law and involved the dual function of the Canada Revenue Agency, who performs both administrative investigations and investigations of criminal offences under the Income Tax Act, RSC, 1985, c 1 (5th Supp), the principles established remain important in the context of an administrative investigation that may uncover criminal actions.

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Footnote 16

Instead, section 63(2) of the Act simply gives the Commissioner permission to disclose information relating to the commission of an offence to the Attorney General of Canada.

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Footnote 17

This issue would be resolved by expanding coverage of the Act to include ministers’ offices.

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Footnote 18

Nor is the Director of Public Prosecutions, who is the delegated authority to prosecute non-Criminal Code federal offences on behalf of the Attorney General (as per section 3(3) of the Director of Public Prosecutions Act, SC 2006, c 9, s 121).

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Footnote 19

See section 47(2).

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Footnote 20

The Conflict of Interest Act allows the Conflict of Interest and Ethics Commissioner to make such disclosures to the “relevant authority.”  The Public Servants Disclosure Protection Act, SC 2005, c 46 and the Lobbying Act generally allow the respective commissioners to make such disclosures to a peace officer having jurisdiction to investigate the alleged contravention.

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Footnote 1a

1995–1996 Annual Report, p. 11.

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Footnote 2a

1996–1997 Annual Report, p. 14.

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Footnote 1b

An indictable conviction offence is considered a more serious category of criminal offence. In contrast, a summary conviction offence is generally a less serious category of offences that carries less severe penalties (in most cases a maximum of six months imprisonment) and cannot be prosecuted more than six months after the date of the offence.

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