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Health Canada (Re), 2026 OIC 14

Date: 2026-02-10
OIC file number: 5824-01438
Access request number: A-2023-000668

Summary  

The complainant alleged that Health Canada had improperly withheld information under paragraph 16(2)(c) (facilitating the commission of an offence), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 22 (testing or auditing procedures or techniques) of the Access to Information Act in response to an access request. The request was for specific records related to Health Canada drug analysis. The allegation falls under paragraph 30(1)(a) of the Act. 

Health Canada could not show that some of the information met all the requirements of these exemptions—in particular how disclosing it would reasonably be expected to facilitate the commission of an offence or jeopardize the later use of testing procedures/techniques. 

The Information Commissioner ordered that Health Canada disclose specific information within the records where she found the exemptions do not apply. Health Canada gave notice to the Commissioner that it would comply with the order.  

The complaint is well founded. 

Complaint

[1]The complainant alleged that Health Canada had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • paragraph 16(2)(c) (facilitating the commission of an offence);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations); and
  • section 22 (testing or auditing procedures or techniques).

[2]The allegation falls under paragraph 30(1)(a) of the Act.

[3]The request was for specific records related to Health Canada drug analysis.

Investigation

[4]When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

Subsection 16(2): facilitating the commission of an offence

[5]Subsection 16(2) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to facilitate the commission of an offence.

[6]To claim this exemption, institutions must show the following:

  • Disclosing the information (for example, information on criminal methods or techniques, or technical details of weapons, as set out in paragraphs 16(2)(a) to (c)) could facilitate the commission of an offence.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[7]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?

[8]Health Canada applied paragraph 16(2)(c) concurrently with section 22, and sometimes concurrently with paragraphs 21(1)(a) and 21(1)(b), to pages 3–4 and 24–27. During the investigation, Health Canada decided to also apply this exemption on page 47.

[9]Health Canada stated that the policies, procedures and internal operational framework of the Drug Analysis Service (DAS) Laboratory are held in confidence to protect the integrity and security of analytical techniques and equipment, as well as the security of the laboratory staff involved in processes supporting Canada’s fight against organized crime. It added that procedures are in place for disclosure of general information to external parties. Releasing the information risks disclosing the operational processes of a secure, sensitive environment which supports the Government of Canada’s position as part of Court proceedings.

[10]Even though a member of the public could assume what methods of analysis are used for drug analysis, Health Canada raised the mosaic effect to explain that, while the information on pages 3–4 may not in itself be confidential, the context reveals operational details about the DAS and other Health Canada Departments’ processes, capabilities, and sometimes investigative direction. Health Canada added that disclosure could also indicate its capabilities and procedures with regards to impurity profiling and detection of synthetic drugs, which is used to investigate and track drugs illegally manufactured by criminal organizations.

[11]Health Canada stated that, if the information were disclosed, it could potentially be misused by someone with malicious intent to attempt to invalidate or manipulate drug test results, and put the Government of Canada at risk in court proceedings. Resulting offences could include tampering with evidence, fraud, perjury, forgery, obstruction of justice and misuse of confidential information/breach of confidence.

[12]Health Canada explained that names and contact information of DAS employees are removed from public distribution because the nature of their work in connection with the analysis of controlled substances and cooperation with domestic and international law enforcement agencies requires enhanced privacy, security protection and confidentiality. It asserted that disclosing their identities could expose them to undue risk, harassment or otherwise influence peddling, which could compromise their effectiveness in carrying out their analytical duties.

[13]Health Canada asserted that there is a reasonable expectation of harm if any of the information on pages 3–4 and 24–27 is disclosed because of that potential misuse.

[14]In contrast to Health Canada’s representations, some information appears to be publicly available in criminal cases where the testing done by DAS was used as evidence (see, for instance, R. v Boyce, 2015 ONSC 7672 and R. v Gaber, 2016 YKSC 26).

[15]Finally, in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada determined that disclosing information that could give an inaccurate perception of a product’s safety could not, except in an unusual case, give rise to the necessary reasonable expectation of harm. A refusal to disclose for fear of public misunderstanding would undermine the fundamental purpose of the Act. There is nothing preventing Health Canada from providing the complainant with additional explanation if it is concerned about information being misunderstood or taken out of context. 

[16]The representations provided by Health Canada do not demonstrate how there is a reasonable expectation that disclosing the information on pages 3–4, 24–27 and 47 could facilitate the commission of an offence.

[17]Consequently, I conclude the information on pages 3–4, 24–27 and 47 does not meet the requirements of paragraph 16(2)(c).

[18]Since the information does not meet the requirements of paragraph 16(2)(c), I also examined whether Health Canada had properly applied paragraphs 21(1)(a) and 21(1)(b) and/or section 22 to the same information.

Paragraphs 21(1)(a) and 21(1)(b): advice or recommendations and accounts of consultations or deliberations

[19]Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[20]To claim this exemption, institutions must show the following:

  • The information is advice or recommendations.
  • The information was developed by or for a government institution or minister.

[21]Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[22]To claim this exemption, institutions must show the following:

  • The information is an account—that is, a report or a description.
  • The account is of consultations or deliberations.
  • At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

[23]To qualify for exemption under paragraphs 21(1)(a) or 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

[24]When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[25]However, subsection 21(2) specifically prohibits institutions from using paragraphs 21(1)(a) or 21(1)(b) 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 exemptions?

[26]Health Canada applied paragraphs 21(1)(a) and 21(1)(b) concurrently with paragraph 16(2)(c) and section 22 to withhold portions of pages 24–27.

[27]The records were created less than 20 years before the access request was made. I also accept that the records do not contain the reasons for or accounts of any decisions affecting the rights of a person as described in subsection 21(2), and the records are not reports prepared by consultants or advisers outside of government.

[28]Health Canada stated that those pages contain advice and recommendations, and document internal discussions and deliberations among employees.

[29]Health Canada stated that disclosing this information could mislead the reader or targeted audience.

[30]Health Canada added that paragraph 21(1)(a) ensures government officials can provide candid advice without fear of such advice being weaponized or taken out of context, and that protecting the deliberative process under paragraph 21(1)(b) is critical when the complainant’s intent could undermine the integrity of Health Canada and erode trust among employees.

[31]Based on Health Canada’s representations, I accept that some information on page 26, which constitutes an account of consultations or deliberations that involve Health Canada employees, meets the requirements of paragraph 21(1)(b).

[32]However, I am not satisfied that Health Canada has demonstrated that all other information withheld under paragraphs 21(1)(a) and 21(1)(b) meets the requirements of these exemptions, because it is factual in nature. Moreover, the intent of a complainant is not a factor that is taken into consideration to determine whether the information meets the requirements of paragraphs 21(1)(a) or 21(1)(b).

[33]I conclude that the information that constitutes an account of consultations or deliberations that involve Health Canada employees on page 26 meets the requirements of paragraph 21(1)(b), and that the rest of the information on page 26, as well as all the information on pages 24, 25 and 27 do not meet the requirements of paragraphs 21(1)(a) or 21(1)(b).

[34]Since some of the information does not meet the requirements of paragraphs 21(1)(a) and 21(1)(b), I also examined whether Health Canada had properly applied section 22 to the same information.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[35]Since some of the information meets the requirements of paragraph 21(1)(b), Health Canada was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Health Canada had to consider all the relevant factors for and against disclosure.

[36]Health Canada stated that it had unusual and complex factors to take into consideration. While trying to balance the right of access and the injury to the department, Health Canada stated that this entire exchange should not be disclosed, due to the damage it believes it will cause if disclosed. 

[37]I conclude that Health Canada considered all relevant factors when it decided not to disclose the information. The exercise of discretion by Health Canada was reasonable.

Section 22: testing or auditing procedures or techniques

[38]Section 22 allows institutions to refuse to disclose information related to testing or auditing that, if disclosed, would prejudice the use of particular tests or audits, or their results.

[39]To claim this exemption, institutions must show the following:

  • The information relates to testing or auditing procedures or techniques, or details of specific tests to be given or audits to be conducted.
  • Disclosing this information would do one of the following:
    • prejudice the results of a specific test or audit—in progress or to be carried out in the future; or
    • jeopardize the later use of the tests or audits, or of the testing or auditing procedures.

[40]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 exemptions?

[41]Health Canada applied section 22, sometimes concurrently with paragraphs 16(2)(c) and/or 21(1)(a) and 21(1)(b) on the entirety of the records, except on page 28.

[42]Health Canada explained that, while the basic principles of drug testing are generally known, drug testing labs develop proprietary protocols to optimize accuracy, sensitivity and efficiency. In this sense, the specific operations at the Health Canada DAS are proprietary. Its methods and equipment used are kept confidential and are not known to the public.

[43]Health Canada added that even information that is not related to specific methodologies falls within the proprietary protocols that are unique and specific to the labs because disclosing such information could make these procedures vulnerable to manipulation or exploitation. Health Canada indicated that it could undermine the government’s ability to conduct effective and independent tests, and it would compromise the integrity of the process or the security of the information involved.

[44]Health Canada also asserted that it is likely that the information could be used to attempt to discredit DAS

[45]Based on Health Canada’s representations, I accept that some of the information is related to testing procedures or techniques. However, I am not satisfied that Health Canada has demonstrated that some information on pages 3–4, 24–26 and 47, all the information on pages 27 and 30, or excerpts from Acts of Parliament on pages 49–54, is related to testing procedures or techniques.

[46]Based on Health Canada’s representations, I also accept that some information on pages 29 and 55–59, as well as information which is not known by the public, on pages 48–54, could jeopardize the later use of these procedures/techniques.

[47]I am not satisfied, however, that disclosing the following information would jeopardize the later use of the testing procedures:

  • the information on pages 1–2, except for one line on page 2;
  • the information on pages 5–23 and 41–46;
  • information that appears general in nature, such as headers and section titles on pages 29 and 55–59.

[48]Moreover, given that the recommendation from Health Canada’s own subject matter experts regarding the need for redactions, during the processing of the request, was limited to just information on page 3, I remain unconvinced that the rest of the information on pages 5–23 and 31–46 meets the requirements of section 22.

[49]I conclude that the information that is related to testing procedures or techniques and whose disclosure could jeopardize the later use of these procedures/techniques on pages 2, 29 and 55–59, as well as information that is not known by the public on pages 48–54 meet the requirements of section 22. I also conclude that the rest of the information does not meet the requirements of this exemption.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[50]Since some of the information meets the requirements of section 22, Health Canada was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Health Canada had to consider all the relevant factors for and against disclosure.

[51]Health Canada indicated that it attempted to process the request in good faith and while fulfilling its duty to assist. When reviewing the records, disclosure was considered for many pages. Health Canada stated that, in the end, withholding all documents was both a necessary and prudent measure to safeguard the integrity of governmental processes.

[52]I conclude that Health Canada considered all relevant factors when it decided not to disclose the information. The exercise of discretion by Health Canada was reasonable.

Section 25: severance

[53]Section 25 applies notwithstanding any other provision in the Access to Information Act. It requires institutions to disclose any part of a record that does not contain exempt information under the Act, and which can reasonably be severed from exempt information on the record. This is an extension of the principle that necessary exceptions to access should be limited and specific.

[54]Health Canada stated that severance pursuant to section 25 was considered, but the decision was made to withhold the entirety of the records because redacting the sensitive portions made the remaining content meaningless and offered no substantive value. It added that even benign information, when considered in the context of the entire body of knowledge the complainant had access to during their employment, may reveal critical details, dates or internal processes that could be exploited, which causes unnecessary risks.

[55]Furthermore, Health Canada stated it considered the notion of administrative burden and reasonable effort. Though this request was not voluminous, it was one of several submitted by the complainant. Health Canada took the view that it was more efficient and transparent to withhold the full record instead of providing heavily redacted records.

[56]Finally, Health Canada asserted that its decision to withhold records entirely in this scenario is consistent with the Act’s principles, regardless of the complainant’s identity as per subsection 4(2.1). Since severing would result in a heavily redacted document, the decision would still be made to withhold records if anyone else were to request this or similar records, as disclosing multiple pages of fragmented information could risk misinterpretation and would not convey meaningful content.

[57]Based on the guidance on section 25 provided by the majority of the Supreme Court in its decision Merck Frosst Canada Ltd. v. Canada (Health) 2012 SCC 3 (see paras. 229–238), I am not convinced that the remaining information is devoid of meaning, especially given Health Canada admitted that “benign information” may reveal useful details. Moreover, given that the records are 59 pages long, it is unclear how the effort of redaction would not be justified by the benefits of severing and disclosing the remaining information. Therefore, it is unclear how the semantic and cost-benefit analysis of the information would lead to the conclusion that it cannot reasonably be severed.

[58]I conclude that Health Canada failed to adhere to section 25 when it fully withheld 58 pages out of 59 pages of responsive records.

Outcome

[59]The complaint is well founded.

Order

I order the Minister of Health to disclose specific information within the records where I have found the exemptions do not apply, as follows:

  • All information withheld under section 22 on page 1;
  • Information withheld under section 22 on page 2, except for the line that I have found meets the requirements of section 22;
  • All information withheld under paragraphs 16(2)(c), 21(1)(a) and/or 21(1)(b) and/or section 22 on pages 3 to 25;
  • Information withheld under paragraphs 16(2)(c), 21(1)(a) and 21(1)(b) and section 22 on page 26, except for the information that I have found to constitute an account of consultations or deliberations;
  • All information withheld under paragraphs 16(2)(c), 21(1)(a) and 21(1)(b) and section 22 on page 27;
  • The headers and section titles withheld under section 22 on page 29;
  • All information withheld under section 22 on pages 30 to 46;
  • All information withheld under paragraph 16(2)(c) and section 22 on page 47;
  • The headers, section titles, blank sections and excerpts from Acts of Parliament withheld under section 22 on pages 49 to 59.

Initial report and notice from institution

On January 6, 2026, I issued my initial report to the Minister of Health setting out my order.

On February 5, 2026, the Executive Director of Access to Information and Privacy Operations gave me notice that, while Health Canada maintains that the exemptions were appropriately applied, it 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.

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