Department of Justice Canada (Re), 2026 OIC 39
Date: 2026-04-09
OIC file number: 5823-01285
Access request number: A-2022-00832 / JBB
Summary
The complainant alleged that the Department of Justice Canada had improperly withheld information under section 14 (federal-provincial affairs) and paragraph 21(1)(a) (advice or recommendations) of the Access to Information Act in response to an access request. The request was for a copy of the "Final report: Mandatory Minimum Penalties. Recommendations to the Minister of Justice and Attorney General of Canada. Expert Panel on Sentencing Reform." The allegation falls under paragraph 30(1)(a) of the Act.
Department of Justice Canada did not show that it met all the requirements of these exemptions, in particular how disclosure of the information could reasonably be expected to harm the conduct of federal-provincial affairs as well how the report did not consist of a report prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff.
The Information Commissioner ordered Justice to disclose the records in their entirety.
Department of Justice Canada gave notice to the Commissioner that it would comply with the order.
The complaint is well founded.
Complaint
[1]The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information under section 14 (federal-provincial affairs) and paragraph 21(1)(a) (advice or recommendations) of the Access to Information Act in response to an access request. The request was for a copy of the "Final report: Mandatory Minimum Penalties. Recommendations to the Minister of Justice and Attorney General of Canada. Expert Panel on Sentencing Reform." The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
[2]When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
Section 14: federal-provincial affairs
[3]Section 14 allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of federal-provincial affairs.
[4]To claim this exemption, institutions must show the following:
- Disclosing the information could harm the Government of Canada’s conduct of federal-provincial affairs (for example, information on federal-provincial consultations or deliberations, or Government of Canada strategy or tactics related to the conduct of federal-provincial affairs, as set out in paragraphs 14(a) and (b)).
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[5]Justice applied section 14 to the entirety of the records; a report drafted by a panel of experts on the issue of Mandatory Minimum Penalties.
[6]Justice stated that release of the report could harm the Government of Canada’s conduct of federal-provincial affairs as the report remained under consideration at the time of the access request. Further, Justice provided that the information is sensitive as sentencing and mandatory minimum penalties remain a significant issue of discussion with the provinces. Justice noted that these topics are complex and remain contentious within federal-provincial discussions, continuing to generate significant debate among federal, provincial, and territorial partners. Justice submitted that disclosure of the report could be perceived as unilateral federal action, undermining trust and cooperation and potentially injuring intergovernmental relations.
[7]The complainant agreed that criminal justice can be a contentious topic between the federal government and some provinces. However, the complainant submitted that the report itself, and the recommendations contained within the report, could not harm the conduct of federal-provincial affairs. The complainant noted that the report was drafted by a small group of individuals who do not work for or represent the Government of Canada, and that there are probably hundreds of documents that make similar recommendations.
[8]As noted in Canada (Information Commissioner) v Canada (Prime Minister), 1992 CanLII 2414 (FC), [1993] 1 F.C. 427, the party seeking to withhold a record must establish with clear and direct evidence that there will be a reasonable expectation of probable harm from disclosure of specific information: “the more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure and the harm alleged”.
[9]In Criminal Trial Lawyers’ Association v. Canada (Justice), 2020 FC 1146, para. 59, the judge further noted: “It is not enough for the [Access To Information and Privacy] Director to state that disclosure would be injurious to [Federal Provincial and Territorial] relations, without specific evidence in support.” Representations that are vague or speculative are insufficient to establish a reasonable expectation of probable harm, and evidence in support of the expectation of harm must demonstrate the link between the disclosure and the alleged harm (see also Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3).
[10]Despite Justice’s assertions, having reviewed the report, I find that the disclosure of the document could not reasonably be expected to harm the conduct of federal-provincial affairs. For example, the report is not a government document detailing active negotiations or impending policy amendments that may elicit unfavorable reception. Rather, at the time of the response to the access request it was a 6-year-old report drafted by a small group of volunteers, and its recommendations had not been implemented. While sentencing and mandatory minimum penalties may be complex and contentious topics, it does not follow that the release of this report could reasonably be expected to harm intergovernmental relations. I find that there is nothing obviously sensitive about the records and Justice has failed to identify any particular aspect of the report that could harm the conduct of federal-provincial affairs
[11]In particular, the document itself does not make mention of or provide comment on any provincial or territorial position on the subject of mandatory minimum penalties, nor does it reveal any information confidentially obtained from provinces or territories. Justice conceded that the report was developed independently of provincial or territorial engagement.
[12]Justice did not provide evidence of a specific harm; rather, it applied section 14 to “avoid premature disclosure of information that remains sensitive and potentially injurious to current and future” federal-provincial/territorial collaboration. Its claim that the content of the report “may continue to shape future discussions with provincial and territorial partners” falls short of showing that the disclosure of the information could reasonably be expected to harm the conduct of federal-provincial affairs. I conclude that the information does not meet the requirements of section 14.
[13]Since the information does not meet the requirements of section 14, I also examined whether Justice had properly applied paragraph 21(1)(a) to the same information.
Paragraph 21(1)(a): advice or recommendations
Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.
[14]To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.
[15]To claim this exemption, institutions must then show the following:
- The information is advice or recommendations.
- The information was developed by or for a government institution or minister.
[16]When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following:
- records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
- reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.
Does the information meet the requirements of the exemption?
[17]Justice applied paragraph 21(1)(a) to the entirety of the records. As indicated above, the report was 6-year-old and therefore was created within 20 years of the access request being made.
[18]Justice asserted that the panel of experts responsible for drafting the report operated in a capacity analogous to that of internal advisers.
[19]In support of this position, Justice highlighted that the panelists were not engaged as independent contractors on a fee-for-service basis, but instead functioned under departmental oversight, within a Justice management framework, and provided advice directly to the Minister. Justice asserted that “[a]lthough the panelists were not formally appointed as “special advisers” under section 127(1)(c) [sic] of the Public Service Employment Act, their working relationship with Justice mirrored that of internal advisers.”
[20]In response to Justice’s assertions, the complainant noted that while expenses were paid to attend in-person meetings, panel members were not compensated and that there was no formal relationship to the Department of Justice or any other government department. Rather, the panel was composed of a group of members of the public who were willing to volunteer their time to examine the issue and make recommendations.
[21]I agree with the complainant and find that the document at issue constitutes a report prepared by external consultants who were not, at the time, directors, officers, or employees of the institution, or members of a minister’s staff. Justice is therefore prohibited from withholding the information at issue under paragraph 21(1)(a).
[22]The Federal Court stated in Canada (Information Commissioner) v. President, Ponts Jacques Cartier et Champlain Inc., 2000 CanLII 14746 (FC):
[31] Subsection 21(2) is clear. It indicates that only the report prepared by an adviser or consultant who is an officer or employee of a government institution or a member of the minister's staff is excluded. But in the case at bar, the Report was prepared by a private firm and thus escapes the application of subsection 21(1). The respondent cannot rely on this subsection in order to prevent the disclosure of the record.
[23]Respectfully, I am not convinced that these panelists qualify as directors, officers or employees of the institution or members of the staff of a minister of the Crown. Generally speaking, directors, officers, employees and minister’s staff receive remuneration for their work. So, while this is not a fee-for-service contract, nor is it a contract of employment. While Justice seems to assert the panelists are akin to special advisers appointed under paragraph 127.1(1)(c) of the Public Service Employment Act, Justice provided no explanation why such an appointment process was not followed. Absent a compelling explanation, this fact would seem more indicative of a desire not to create a contractual relationship of this nature.
[24]Further, while Justice may have established the project expectations, the panelists appear to have been given latitude in how they accomplished the goals of the project. There is no apparent subordinate relationship between the panelists and Justice beyond certain reporting duties necessary to accomplish the goals of the project. These factors all indicate that the panelists were not acting as directors, officers or employees of Justice or members of the minister’s staff at the time they prepared the report.
[25]As a result, I conclude that paragraph 21(2)(b) prohibits Justice from using paragraph 21(1)(a) to refuse to disclose the report.
Outcome
[26]The complaint is well founded.
Orders and recommendations
I order the Minister of Justice to disclose the records in their entirety.
Initial report and notice from institution
On February 18, 2026, I issued my initial report to the Minister of Justice setting out my order.
On March 31, 2026, the Director of Justice’s Access to Information and Privacy Office, gave me notice that Justice would be implementing the order.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.