Ottawa riot cops who answered a midnight call and raced to make it to Toronto by Sunday morning each billed $2,079.99 for a single day’s work.
Three police officers from the tiny township of Stirling-Rawdon made more than $25,997.66 in overtime pay alone.
One Hamilton cop earned $31,590.27 in six weeks.
These are three examples of the premium payouts the RCMP made to out-of-town police officers to patrol last summer’s G8/G20 summits in Huntsville and Toronto.
The Mounties’ contracts with “partner” police agencies, obtained by the CBC through Freedom of Information laws and published Monday, detail how hundreds of police officers from outside the GTA drew lucrative contracts laden with overtime and vacation bonuses.
More than half the hours worked by out-of-town cops were paid at one-and-a-half or double-time rates.
All of the 278 Montreal police officers, for instance, were paid double-time for all their work during the summit, earning a total of $3,342,578, almost half the $7 million cost to hire 657 officers from 17 Canadian police forces.
“It’s as though no one was paying attention to the money,” said John Sewell, former Toronto mayor who heads the Toronto Police Accountability Coalition. “If any other public servant spent money this way, people would be beside themselves; but for some reason we don’t hold police to the same level of accountability as other civil servants.”
The RCMP say they had no choice but to compensate the officers as per their respective collective agreements, which were non-negotiable.
Spokeswoman Julie Gagnon said in an emailed statement the agency still came in $4 million under budget: The RCMP had forecast paying $11 million to “partners” for supplemental policing needs.
Gagnon said there was no cap on overtime expenses, all overtime hours had to be approved by supervisors and the RCMP “maximized efficiencies to minimize overtime.”
The Eastern Ontario township of Stirling-Rawdon, with a police force of only 10 officers, including police Chief Brian Foley, sent two sergeants and a constable to Toronto for about 10 days to police the summit.
Sgt. Colin Cook, Sgt. Jim Orr and Const. Trevor MacLean did not respond to multiple requests for comment.
The RCMP paid the officers $38,048.96, two-thirds of which was overtime pay. One officer earned $11,419.46 in overtime and more than $14,000 in total.
Ottawa police Insp. Mark Ford was part of the team that raced along Highway 401 in the middle of the night after getting an emergency call from the RCMP for last-minute reinforcements after a chaotic day of rioting downtown.
All the officers were paid time and a half, Ford said, because they were called in on days off. He said the more than $2,000 paid to each officer was fair, because when you include travel time “the officers worked 37 hours straight.”
Roughly half the 10,000 police officers who patrolled the summits were from outside Toronto, with most coming from the RCMP or other forces within the GTA. About 2,000 had to be flown in, and all of them, including Toronto police officers who live outside the city, were put up in hotels such as the Hyatt, Marriott and Delta Chelsea, at a time when the hotels had inflated rates.
The Toronto Police Service’s own G20 costs were $124 million, which the police board has said ballooned because of the tight timeline to meet security demands. Security costs for the G8/G20 totaled at least $676 million.
High costs for out-of-town cops
• Five of the 16 Vancouver police officers sent to Toronto each made more than $9,000 for a week’s work.
• Eight Barrie police officers were hired on paid duty to patrol the Integrated Security Unit’s headquarters — where there was no protest activity — around-the-clock for 13 days. They each walked away with an average of $8,495.
• North Bay’s eight police officers were paid their overtime rate for more than three-quarters of their total hours, each earning an average of $5,742.70.
Tuesday, May 31, 2011
Monday, May 30, 2011
Dozens of pages from a decades-old intelligence file on socialist icon Tommy Douglas have mysteriously disappeared.
Dozens of pages from a decades-old intelligence file on socialist icon Tommy Douglas have mysteriously disappeared.
The disappearance came to light during a lengthy court battle over the federal government's refusal to fully disclose the RCMP dossier on the former Saskatchewan premier and one-time federal NDP leader.
Library and Archives Canada, which currently holds the 1,142-page dossier, initially released just over 450 heavily censored pages in response to a request by The Canadian Press under the Access to Information Act.
But the government partially lifted the shroud of secrecy a week before a court hearing into the matter began in February, releasing almost 400 additional pages under a new, more relaxed policy governing the release of historically significant documents.
It was only then, with fuller access to the file, that Paul Champ, lawyer for The Canadian Press, realized about four dozen pages were missing.
What disappoints him is that no one at the archives nor in the Canadian Security Intelligence Service — which had supposedly thoroughly reviewed and vetted the original documents — appears to have noticed.
"It's just disappointing that at the end it seems like this important file was not reviewed with the thoroughness we would expect," he said in an interview.
"It does seem like no one really seemed to care that pages were missing."
After Champ notified Federal Court, Judge Simon Noel ordered the government to look for the lost pages. The search didn't turn up any of the missing pages identified by Champ but it found seven other additional pages of material in the original Douglas file, which somehow hadn't made it into the digitally scanned copy used in responding to the access request.
In a written submission to the court earlier this month, the government insisted "there is no evidence of a lack of good faith" in its handling of the Douglas dossier.
"The respondent has been candid, direct and forthcoming with the court when dealing with discrepancies in the records."
The government said the missing pages identified by Champ were not in the original file transferred to Library and Archives in 2000 from CSIS, which had taken over the dossier from the now-defunct RCMP security service in 1984.
The archives "does not take steps to confirm the completeness of the records received from a government institution" and CSIS did not retain a copy.
Pages haven't been found
The government assured the court "no actions were taken" to remove pages before responding to the access request. And it concluded there is no remedy "because the pages can not be found in the existing file."
Champ said he finds it surprising that Library and Archives would take such a lackadaisical approach to historical documents.
"They do have some kind of legal duty as the primary institution responsible for our cultural heritage to ensure that historically important files are maintained and are kept intact and are preserved," he said.
"They're responsible for protecting Canada's documentary heritage and their handling of this file makes me question whether they're discharging all of their responsibilities in that regard."
PMO following case
There is at least one arm of government that is not treating the Douglas files cavalierly: the Prime Minister's Office.
Documents released under a separate access-to-information request show that Prime Minister Stephen Harper's office has been kept informed about the progress of the court case.
A February "memorandum for the prime minister" detailed the new policy regarding release of historically significant intelligence records and advised that the release of additional material from the Douglas dossier "is going to attract media attention as these documents will disclose, for the first time, some of Mr. Douglas's private communications with other parliamentarians."
From Champ's perspective, however, the additional material released in February simply raised questions as to why the government had refused to disclose it in the first place. Among other things, the new information suggested the RCMP treated black U.S. army deserters differently than white deserters, picking them up and escorting them back across the border.
"Was this embarrassing revelation one of the reasons why CSIS wanted the memo withheld?"
The material released to date shows that the RCMP Security Service shadowed Douglas for more than three decades, attending his speeches, analysing his writings and eavesdropping on private conversations. His links to the peace movement and Communist party members were of particular interest.
The government maintains full disclosure of the Douglas file would jeopardize the country's ability to detect, prevent or suppress "subversive or hostile activities" and could give away secrets of the spy trade.
Jim Bronskill, a reporter for The Canadian Press, launched a court challenge in 2009 after the federal information commissioner agreed with the government that most of the dossier should be kept under wraps.
The disappearance came to light during a lengthy court battle over the federal government's refusal to fully disclose the RCMP dossier on the former Saskatchewan premier and one-time federal NDP leader.
Library and Archives Canada, which currently holds the 1,142-page dossier, initially released just over 450 heavily censored pages in response to a request by The Canadian Press under the Access to Information Act.
But the government partially lifted the shroud of secrecy a week before a court hearing into the matter began in February, releasing almost 400 additional pages under a new, more relaxed policy governing the release of historically significant documents.
It was only then, with fuller access to the file, that Paul Champ, lawyer for The Canadian Press, realized about four dozen pages were missing.
What disappoints him is that no one at the archives nor in the Canadian Security Intelligence Service — which had supposedly thoroughly reviewed and vetted the original documents — appears to have noticed.
"It's just disappointing that at the end it seems like this important file was not reviewed with the thoroughness we would expect," he said in an interview.
"It does seem like no one really seemed to care that pages were missing."
After Champ notified Federal Court, Judge Simon Noel ordered the government to look for the lost pages. The search didn't turn up any of the missing pages identified by Champ but it found seven other additional pages of material in the original Douglas file, which somehow hadn't made it into the digitally scanned copy used in responding to the access request.
In a written submission to the court earlier this month, the government insisted "there is no evidence of a lack of good faith" in its handling of the Douglas dossier.
"The respondent has been candid, direct and forthcoming with the court when dealing with discrepancies in the records."
The government said the missing pages identified by Champ were not in the original file transferred to Library and Archives in 2000 from CSIS, which had taken over the dossier from the now-defunct RCMP security service in 1984.
The archives "does not take steps to confirm the completeness of the records received from a government institution" and CSIS did not retain a copy.
Pages haven't been found
The government assured the court "no actions were taken" to remove pages before responding to the access request. And it concluded there is no remedy "because the pages can not be found in the existing file."
Champ said he finds it surprising that Library and Archives would take such a lackadaisical approach to historical documents.
"They do have some kind of legal duty as the primary institution responsible for our cultural heritage to ensure that historically important files are maintained and are kept intact and are preserved," he said.
"They're responsible for protecting Canada's documentary heritage and their handling of this file makes me question whether they're discharging all of their responsibilities in that regard."
PMO following case
There is at least one arm of government that is not treating the Douglas files cavalierly: the Prime Minister's Office.
Documents released under a separate access-to-information request show that Prime Minister Stephen Harper's office has been kept informed about the progress of the court case.
A February "memorandum for the prime minister" detailed the new policy regarding release of historically significant intelligence records and advised that the release of additional material from the Douglas dossier "is going to attract media attention as these documents will disclose, for the first time, some of Mr. Douglas's private communications with other parliamentarians."
From Champ's perspective, however, the additional material released in February simply raised questions as to why the government had refused to disclose it in the first place. Among other things, the new information suggested the RCMP treated black U.S. army deserters differently than white deserters, picking them up and escorting them back across the border.
"Was this embarrassing revelation one of the reasons why CSIS wanted the memo withheld?"
The material released to date shows that the RCMP Security Service shadowed Douglas for more than three decades, attending his speeches, analysing his writings and eavesdropping on private conversations. His links to the peace movement and Communist party members were of particular interest.
The government maintains full disclosure of the Douglas file would jeopardize the country's ability to detect, prevent or suppress "subversive or hostile activities" and could give away secrets of the spy trade.
Jim Bronskill, a reporter for The Canadian Press, launched a court challenge in 2009 after the federal information commissioner agreed with the government that most of the dossier should be kept under wraps.
Sunday, May 29, 2011
Analysis Supreme Court decision on sexual consent : What the ruling means for sexual assault law in Canada
Friday's Supreme Court of Canada decision, which strikes down the notion that a person can give advance consent to sexual activity that takes place while that person is unconscious, does not radically alter the existing laws on sexual assault.
Still, legal experts say it is an important reaffirmation and clarification of those laws.
"It clears up any misapprehension that there is such a thing as implied consent, advance consent or continuous consent, particularly in the context of spousal or other intimate relationships," says Melanie Randall, who teaches law at the University of Western Ontario in London. "The Supreme Court is really unambiguous that there is no special exemptions or exceptions in these contexts."
Such exceptions did exist not that long ago, adds Randall. Up until 1983, when the Criminal Code was revised, a women's consent to sex was not required but assumed in marriage, for example.
"It's taken a long time for people to realize that even in intimate relationships, women have a right to say no to sex, that men must ensure that there is consent to sexual contact, that consent does not exist in advance of or prior to sexual contact," Randall said.
The May 27 ruling was a split 6-3 decision by the nine judges of the Supreme Court, who are: front row, left to right, Marie Deschamps, William Binnie, Chief Justice Beverley McLachlin, Louis LeBel and Morris Fish; back row, left to right. Marshall Rothstien, Rosalie Silberman Abella, Louise Charron and Thomas Cromwell. Binnie, LeBel and Fish were the dissenting judges. (Adrian Wyld/Canadian Press)
Randall worked on drafting legal arguments for one of the interveners in this case, the Women's Legal Education and Action Fund (LEAF), which argued that a person who is unconscious is not capable of consenting to sexual activity and that consent must be active, voluntary, ongoing, contemporaneous with the activity in question and revocable at any time.
"[The decision] has confirmed what is already clear in the Criminal Code and what, in our view, also should be common sense, which is that when a woman is unconscious, she's not sexually available," said LEAF's legal director, Joanna L. Birenbaum.
Randall sees the decision as important for clarifying what Canadian law on sexual assault requires when it comes to arguing that a complainant consented to a sexual act.
"It's a strong and clear judgment that consent requires a conscious operating mind and that you can't either actively consent or revoke your consent in the absence of that. So, it's impossible to consent in advance to sexual contact when you're unconscious," she said.
Prior consent no longer valid defence
The Criminal Code does not directly address the notion of advance consent or the question of whether a person is conscious or unconscious, the two key factors in the case that went before the Supreme Court. The Code does define sexual assault in terms of the absence of "voluntary agreement" to engage in sexual activity and refers to instances when a person is "incapable" of giving such agreement.
Existing Criminal Code provisions already made it clear that if a person is unconscious, they are incapable of giving voluntary agreement. But prior to Friday's decision, the Code was not explicit about the idea of giving consent in advance, said Martha Shaffer, a law professor at the University of Toronto
"Now, the law is clear: The notion that you give prior consent is not recognized in Canadian law," Shaffer said.
The case is the first to go before the Supreme Court involving advance consent to unconscious sex, Shaffer said, but is consistent with both Criminal Code provisions and past court decisions on sexual assault. Rather than looking in detail at the facts of the case, as had been done in the two earlier stages — in provincial court and the Ontario Court of Appeal — the Supreme Court judges focused on the points of law involved.
"I don't think the facts were really driving this decision," Shaffer said. "What was driving this decision was concern about recognition of the idea that you can give consent in advance to the activity that occurred and what that would mean for women who are intoxicated — either voluntarily or involuntarily."
'This case was argued purely as a question of law: is it legal to give this kind of advance consent?'
— Martha Shaffer, University of Toronto Faculty of LawFrom that perspective, questions around whether the female complainant in the original case gave her consent to the sexual activity that her common-law partner performed on her while she was unconscious or why she recanted her original accusation of sexual assault were irrelevant at the Supreme Court stage.
"This case was argued purely as a question of law: Is it legal to give this kind of advance consent — can you do it?" said Shaffer. "And the court said, 'No, you can't.' So, even if she thought she could, what the court has said is, 'Too bad, you can't do it; it is not valid consent as a matter of Canadian law.'"
Constitutional challenge possible
Also not considered at this stage were the dozens of past criminal convictions the defendant had, which included domestic violence against the complainant as well as against a former girlfriend, or the original trial judge's finding that the woman's conflicting testimony was "typical... of a recanting complainant in a domestic matter."
But for LEAF, the context of the particular case as well as the broader issues of violence perpetuated against women who are incapacitated, whether because of drugs, alcohol or physical disability, which, Birenbaum says, is a risk that is real and pervasive, are as valid as the points of law.
'I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized.'
— Melanie Randall, University of Western Ontario Faculty of Law"Part of what LEAF's role is is to situate the legal issues that come before the court within the factual context of the reality of women's lives," said Birenbaum.
Concerns that the decision will curtail people's freedom to engage in risky, unconventional forms of sex are unwarranted, says Randall.
"I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized," she said. "We don't really have massive social problems around these issues, but we do have a massive social problem around sexual assault and getting a good criminal justice response to sex assault."
She says that although the Supreme Court decision could be appealed by way of a constitutional challenge, she hopes that won't happen.
"I hope that no one wastes their effort on that, because it doesn't seem to be an important social issue right now," she said.
Still, legal experts say it is an important reaffirmation and clarification of those laws.
"It clears up any misapprehension that there is such a thing as implied consent, advance consent or continuous consent, particularly in the context of spousal or other intimate relationships," says Melanie Randall, who teaches law at the University of Western Ontario in London. "The Supreme Court is really unambiguous that there is no special exemptions or exceptions in these contexts."
Such exceptions did exist not that long ago, adds Randall. Up until 1983, when the Criminal Code was revised, a women's consent to sex was not required but assumed in marriage, for example.
"It's taken a long time for people to realize that even in intimate relationships, women have a right to say no to sex, that men must ensure that there is consent to sexual contact, that consent does not exist in advance of or prior to sexual contact," Randall said.
The May 27 ruling was a split 6-3 decision by the nine judges of the Supreme Court, who are: front row, left to right, Marie Deschamps, William Binnie, Chief Justice Beverley McLachlin, Louis LeBel and Morris Fish; back row, left to right. Marshall Rothstien, Rosalie Silberman Abella, Louise Charron and Thomas Cromwell. Binnie, LeBel and Fish were the dissenting judges. (Adrian Wyld/Canadian Press)
Randall worked on drafting legal arguments for one of the interveners in this case, the Women's Legal Education and Action Fund (LEAF), which argued that a person who is unconscious is not capable of consenting to sexual activity and that consent must be active, voluntary, ongoing, contemporaneous with the activity in question and revocable at any time.
"[The decision] has confirmed what is already clear in the Criminal Code and what, in our view, also should be common sense, which is that when a woman is unconscious, she's not sexually available," said LEAF's legal director, Joanna L. Birenbaum.
Randall sees the decision as important for clarifying what Canadian law on sexual assault requires when it comes to arguing that a complainant consented to a sexual act.
"It's a strong and clear judgment that consent requires a conscious operating mind and that you can't either actively consent or revoke your consent in the absence of that. So, it's impossible to consent in advance to sexual contact when you're unconscious," she said.
Prior consent no longer valid defence
The Criminal Code does not directly address the notion of advance consent or the question of whether a person is conscious or unconscious, the two key factors in the case that went before the Supreme Court. The Code does define sexual assault in terms of the absence of "voluntary agreement" to engage in sexual activity and refers to instances when a person is "incapable" of giving such agreement.
Existing Criminal Code provisions already made it clear that if a person is unconscious, they are incapable of giving voluntary agreement. But prior to Friday's decision, the Code was not explicit about the idea of giving consent in advance, said Martha Shaffer, a law professor at the University of Toronto
"Now, the law is clear: The notion that you give prior consent is not recognized in Canadian law," Shaffer said.
The case is the first to go before the Supreme Court involving advance consent to unconscious sex, Shaffer said, but is consistent with both Criminal Code provisions and past court decisions on sexual assault. Rather than looking in detail at the facts of the case, as had been done in the two earlier stages — in provincial court and the Ontario Court of Appeal — the Supreme Court judges focused on the points of law involved.
"I don't think the facts were really driving this decision," Shaffer said. "What was driving this decision was concern about recognition of the idea that you can give consent in advance to the activity that occurred and what that would mean for women who are intoxicated — either voluntarily or involuntarily."
'This case was argued purely as a question of law: is it legal to give this kind of advance consent?'
— Martha Shaffer, University of Toronto Faculty of LawFrom that perspective, questions around whether the female complainant in the original case gave her consent to the sexual activity that her common-law partner performed on her while she was unconscious or why she recanted her original accusation of sexual assault were irrelevant at the Supreme Court stage.
"This case was argued purely as a question of law: Is it legal to give this kind of advance consent — can you do it?" said Shaffer. "And the court said, 'No, you can't.' So, even if she thought she could, what the court has said is, 'Too bad, you can't do it; it is not valid consent as a matter of Canadian law.'"
Constitutional challenge possible
Also not considered at this stage were the dozens of past criminal convictions the defendant had, which included domestic violence against the complainant as well as against a former girlfriend, or the original trial judge's finding that the woman's conflicting testimony was "typical... of a recanting complainant in a domestic matter."
But for LEAF, the context of the particular case as well as the broader issues of violence perpetuated against women who are incapacitated, whether because of drugs, alcohol or physical disability, which, Birenbaum says, is a risk that is real and pervasive, are as valid as the points of law.
'I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized.'
— Melanie Randall, University of Western Ontario Faculty of Law"Part of what LEAF's role is is to situate the legal issues that come before the court within the factual context of the reality of women's lives," said Birenbaum.
Concerns that the decision will curtail people's freedom to engage in risky, unconventional forms of sex are unwarranted, says Randall.
"I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized," she said. "We don't really have massive social problems around these issues, but we do have a massive social problem around sexual assault and getting a good criminal justice response to sex assault."
She says that although the Supreme Court decision could be appealed by way of a constitutional challenge, she hopes that won't happen.
"I hope that no one wastes their effort on that, because it doesn't seem to be an important social issue right now," she said.
Saturday, May 28, 2011
AF447 stalled but crew maintained nose-up attitude : flight AF447 maintained nose-up inputs to the aircraft even after the Airbus A330 entered a stall.
French investigators have disclosed that the crew of Air France flight AF447 maintained nose-up inputs to the aircraft even after the Airbus A330 entered a stall.
The inquiry has also revealed that the pilots set engine thrust variously to go-around power and idle as they battled to rescue the jet.
In an update to the loss of the A330 over the South Atlantic two years ago the Bureau d'Enquetes et d'Analyses has detailed the last few minutes of the flight. BEA said the aircraft climbed from its cruise altitude of 35,000ft towards 38,000ft and stalled, but added that the flying pilot "maintained nose-up inputs" to the controls.
BEA confirms that the captain had left the cockpit to rest, about eight minutes before the emergency on 1 June 2009, having discussed with the relief crew possible turbulence ahead of the aircraft.
The pilots altered course slightly, about 12° to the left, and as turbulence increased they opted to reduce speed to Mach 0.8.
About 2min later the aircraft's autopilot and autothrust disengaged, and remained so for the rest of the flight. This would have put the jet into 'alternate' law, meaning it lost its angle-of-attack protection.
The aircraft began to roll to the right, and as the pilot made a nose-up left input, the A330's stall warning sounded twice - an indication that the aircraft had exceeded a critical angle-of-attack threshold.
The primary flight display on the captain's side showed a "sharp fall" in speed from 275kt to 60kt, and the aircraft's angle of attack "increased progressively" beyond 10°.
While the jet had initially been cruising at 35,000ft, investigators stated that the aircraft climbed, with a vertical speed of 7,000ft/min, heading towards 38,000ft.
The pilot made nose-down inputs as well as inputs for left and right roll. The vertical speed fell back to 700ft/min, the displayed speed "increased sharply" to 215kt, and the angle of attack reduced to 4°.
In its update the BEA said the non-flying pilot "tried several times to call the captain back".
There was another stall warning and the BEA said the stall warning sounded again. The thrust levers were positioned for take-off/go-around power but the flying pilot "maintained nose-up inputs".
Angle of attack continued to increase, it added, and the trimmable horizontal stabiliser increased from a 3° nose-up position to 13° nose-up - where it stayed for the rest of the flight.
The aircraft reached 38,000ft - its maximum altitude - with its angle of attack having increased to 16°.
AF447's captain returned to the cockpit - just 90s after the autopilot had disengaged - by which time the aircraft had started its fatal descent.
As it passed through 35,000ft the angle of attack increased to more than 40° and the A330 was descending at 10,000ft/min. Its pitch did not exceed 15°, its engine power was close to 100% of N1, and the jet oscillated with rolls of up to 40°.
"The [flying pilot] made an input on the sidestick to the left and nose-up stops, which lasted about 30s," said the BEA.
Just 20s after the captain returned to the cockpit, said the BEA, the thrust levers were set to the 'idle' position, with the engines delivering 55% of N1.
Measured angle of attack values, the BEA pointed out, are only considered valid when the measured speed is above 60kt. It said that the angle of attack, when valid, always remained above 35°.
AF447's had turned almost a three-quarter circle to the right during the emergency, and - having descended for 3min 30s - it struck the ocean surface with a ground speed of just 107kt, a nose-up pitch attitude of 16.2°, with a heading of 270°.
BEA stated that the aircraft stalled but that the inputs from the flying pilot were "mainly nose-up". It added that the engines "were operating and always responded to crew commands".
The inquiry has also revealed that the pilots set engine thrust variously to go-around power and idle as they battled to rescue the jet.
In an update to the loss of the A330 over the South Atlantic two years ago the Bureau d'Enquetes et d'Analyses has detailed the last few minutes of the flight. BEA said the aircraft climbed from its cruise altitude of 35,000ft towards 38,000ft and stalled, but added that the flying pilot "maintained nose-up inputs" to the controls.
BEA confirms that the captain had left the cockpit to rest, about eight minutes before the emergency on 1 June 2009, having discussed with the relief crew possible turbulence ahead of the aircraft.
The pilots altered course slightly, about 12° to the left, and as turbulence increased they opted to reduce speed to Mach 0.8.
About 2min later the aircraft's autopilot and autothrust disengaged, and remained so for the rest of the flight. This would have put the jet into 'alternate' law, meaning it lost its angle-of-attack protection.
The aircraft began to roll to the right, and as the pilot made a nose-up left input, the A330's stall warning sounded twice - an indication that the aircraft had exceeded a critical angle-of-attack threshold.
The primary flight display on the captain's side showed a "sharp fall" in speed from 275kt to 60kt, and the aircraft's angle of attack "increased progressively" beyond 10°.
While the jet had initially been cruising at 35,000ft, investigators stated that the aircraft climbed, with a vertical speed of 7,000ft/min, heading towards 38,000ft.
The pilot made nose-down inputs as well as inputs for left and right roll. The vertical speed fell back to 700ft/min, the displayed speed "increased sharply" to 215kt, and the angle of attack reduced to 4°.
In its update the BEA said the non-flying pilot "tried several times to call the captain back".
There was another stall warning and the BEA said the stall warning sounded again. The thrust levers were positioned for take-off/go-around power but the flying pilot "maintained nose-up inputs".
Angle of attack continued to increase, it added, and the trimmable horizontal stabiliser increased from a 3° nose-up position to 13° nose-up - where it stayed for the rest of the flight.
The aircraft reached 38,000ft - its maximum altitude - with its angle of attack having increased to 16°.
AF447's captain returned to the cockpit - just 90s after the autopilot had disengaged - by which time the aircraft had started its fatal descent.
As it passed through 35,000ft the angle of attack increased to more than 40° and the A330 was descending at 10,000ft/min. Its pitch did not exceed 15°, its engine power was close to 100% of N1, and the jet oscillated with rolls of up to 40°.
"The [flying pilot] made an input on the sidestick to the left and nose-up stops, which lasted about 30s," said the BEA.
Just 20s after the captain returned to the cockpit, said the BEA, the thrust levers were set to the 'idle' position, with the engines delivering 55% of N1.
Measured angle of attack values, the BEA pointed out, are only considered valid when the measured speed is above 60kt. It said that the angle of attack, when valid, always remained above 35°.
AF447's had turned almost a three-quarter circle to the right during the emergency, and - having descended for 3min 30s - it struck the ocean surface with a ground speed of just 107kt, a nose-up pitch attitude of 16.2°, with a heading of 270°.
BEA stated that the aircraft stalled but that the inputs from the flying pilot were "mainly nose-up". It added that the engines "were operating and always responded to crew commands".
Friday, May 27, 2011
policing black eye isn’t fading away: The one-year anniversary of the G20 Summit policing fiasco will shortly be upon us.
The one-year anniversary of the G20 Summit policing fiasco will shortly be upon us.
Yet none of the half dozen internal and external inquiries into what went so disastrously wrong last June has been tabled yet. A police board inquiry won’t even start its hearings until next week.
Only a narrow investigation by Ontario ombudsman André Marin that looked at the misapplication of an obscure security enhancement regulation under the Public Works Protection Act has seen the light of day.
And just one from among the many bullying, bushwhacking officers who assaulted peaceful protesters has been charged.
In cop lingo, the clearance rate is dismal.
Unless, of course, the intention was always to clear cops of wrongdoing by burying the G20 autopsies under a heap of paper-chase bureaucracy. But however much Premier Dalton McGuinty and Chief Bill Blair might wish it, this law-and-order shiner isn’t going to fade away.
On Thursday, the Special Investigations Unit announced it has reopened a probe — for the third time — into one specific complaint of alleged police brutality, the beating of Dorian Barton.
SIU director Ian Scott does not score big points for that.
The pissing match between Scott and police spokesman Mark Pugash has been entertaining to watch. It’s almost like the old days when police board chair Susan Eng went mano-a-mano with then-chief Bill McCormack. McCormack, though, had no problem speaking for himself, if in tortuous McCormack-ese, and was always available to reporters. Blair, by comparison, has largely delegated the push-back to his communications pitbull. Who is actually running that asylum?
Somebody at the cop shop is — how shall I put this delicately? — lying. Actually, a whole bunch of officers would appear to be prevaricating over the no-see-um insistence on what happened to Barton in the incident wherein he was tackled to the ground, suffering a broken right arm, black eye, swollen limbs and bruised back.
Eleven witness officers — count ’em — have told the SIU they were unable to identify the culprit in their midst, though eight were in the immediate vicinity of the incident and photographic evidence clearly shows a recognizable individual through his face shield. Further, as the Star’s Dan Robson exclusively reported Thursday, Scott has learned that one from among the Group of Eleven was the suspect officer’s G20 roommate and two others were supervisors who presumably knew the names of those under their command.
This isn’t a whodunit mystery.
Indeed, as Pugash told the Star a week ago, the Toronto Police Service has on three occasions since January given the suspect officer’s name to the SIU. The means by which he was ID’d, however, is a puzzle, insofar as that methodology is even relevant.
Pugash says the officer’s handle was obtained by zooming in on the badge number and name in the photograph. Scott counters that he was unable to duplicate that feat, despite borrowing technology from the province’s revenue ministry. (Why the revenue ministry would even have such technology is another matter entirely.)
Barton’s father tried also, employing a software program downloaded from the Toronto Police Service website, but came up empty too. So what is Pugash talking about? That’s an issue which might be resolved now that the police have agreed to allow the SIU to interview the employee who performed the photo-identifying deed.
Yet this is a tangential diversion from the core of the matter: The SIU’s prolonged unwillingness to charge the suspect officer on evidence that would sure as hell be good enough for police to charge a civilian. If there exists, as many suspect, one law for cops and one for the rest of us, Scott is just as guilty of adhering to it.
The SIU director continues to insist that a positive identification of the officer, by name, is essential for a charge to stand up in court. The “loop’’, he posits, is insufficient to support a prosecution, though he’s got a witness, photographer Andrew Wallace, who saw Barton being struck by that officer and is willing to testify in court.
Believe me. If I took a swing at, oh, let’s say a traffic officer and someone standing by saw it, I’d be in handcuffs lickety-split.
In recent off-the-record discussions I’ve had with legal experts, including Crown attorneys and a senior judge, not one has been able to fathom Scott’s reasoning. It’s as if he wants this charge bubble-wrapped up in defence-proof binding.
Such a lofty standard is unfair to Barton and, frankly, further damages an agency that spends way too much time whining about what it can’t do. The truth is, what it chooses not to do.
This isn’t just about Barton anymore. It’s about the integrity of both the SIU and Toronto’s police department.
Leave it for a judge or jury to decide if the charge is supportable on the evidence. That’s not Scott’s job.
I want a prosecutor to call all 11 witness officers to the stand so they can be asked, under oath, if they recognize the defendant as the person who struck Barton. I want to hear them, one by one, deny it. I want their names on the public record.
With the shell game some cops are playing right now, that feels even more vital than a conviction.
In the court of public opinion, let them be judged.
Yet none of the half dozen internal and external inquiries into what went so disastrously wrong last June has been tabled yet. A police board inquiry won’t even start its hearings until next week.
Only a narrow investigation by Ontario ombudsman André Marin that looked at the misapplication of an obscure security enhancement regulation under the Public Works Protection Act has seen the light of day.
And just one from among the many bullying, bushwhacking officers who assaulted peaceful protesters has been charged.
In cop lingo, the clearance rate is dismal.
Unless, of course, the intention was always to clear cops of wrongdoing by burying the G20 autopsies under a heap of paper-chase bureaucracy. But however much Premier Dalton McGuinty and Chief Bill Blair might wish it, this law-and-order shiner isn’t going to fade away.
On Thursday, the Special Investigations Unit announced it has reopened a probe — for the third time — into one specific complaint of alleged police brutality, the beating of Dorian Barton.
SIU director Ian Scott does not score big points for that.
The pissing match between Scott and police spokesman Mark Pugash has been entertaining to watch. It’s almost like the old days when police board chair Susan Eng went mano-a-mano with then-chief Bill McCormack. McCormack, though, had no problem speaking for himself, if in tortuous McCormack-ese, and was always available to reporters. Blair, by comparison, has largely delegated the push-back to his communications pitbull. Who is actually running that asylum?
Somebody at the cop shop is — how shall I put this delicately? — lying. Actually, a whole bunch of officers would appear to be prevaricating over the no-see-um insistence on what happened to Barton in the incident wherein he was tackled to the ground, suffering a broken right arm, black eye, swollen limbs and bruised back.
Eleven witness officers — count ’em — have told the SIU they were unable to identify the culprit in their midst, though eight were in the immediate vicinity of the incident and photographic evidence clearly shows a recognizable individual through his face shield. Further, as the Star’s Dan Robson exclusively reported Thursday, Scott has learned that one from among the Group of Eleven was the suspect officer’s G20 roommate and two others were supervisors who presumably knew the names of those under their command.
This isn’t a whodunit mystery.
Indeed, as Pugash told the Star a week ago, the Toronto Police Service has on three occasions since January given the suspect officer’s name to the SIU. The means by which he was ID’d, however, is a puzzle, insofar as that methodology is even relevant.
Pugash says the officer’s handle was obtained by zooming in on the badge number and name in the photograph. Scott counters that he was unable to duplicate that feat, despite borrowing technology from the province’s revenue ministry. (Why the revenue ministry would even have such technology is another matter entirely.)
Barton’s father tried also, employing a software program downloaded from the Toronto Police Service website, but came up empty too. So what is Pugash talking about? That’s an issue which might be resolved now that the police have agreed to allow the SIU to interview the employee who performed the photo-identifying deed.
Yet this is a tangential diversion from the core of the matter: The SIU’s prolonged unwillingness to charge the suspect officer on evidence that would sure as hell be good enough for police to charge a civilian. If there exists, as many suspect, one law for cops and one for the rest of us, Scott is just as guilty of adhering to it.
The SIU director continues to insist that a positive identification of the officer, by name, is essential for a charge to stand up in court. The “loop’’, he posits, is insufficient to support a prosecution, though he’s got a witness, photographer Andrew Wallace, who saw Barton being struck by that officer and is willing to testify in court.
Believe me. If I took a swing at, oh, let’s say a traffic officer and someone standing by saw it, I’d be in handcuffs lickety-split.
In recent off-the-record discussions I’ve had with legal experts, including Crown attorneys and a senior judge, not one has been able to fathom Scott’s reasoning. It’s as if he wants this charge bubble-wrapped up in defence-proof binding.
Such a lofty standard is unfair to Barton and, frankly, further damages an agency that spends way too much time whining about what it can’t do. The truth is, what it chooses not to do.
This isn’t just about Barton anymore. It’s about the integrity of both the SIU and Toronto’s police department.
Leave it for a judge or jury to decide if the charge is supportable on the evidence. That’s not Scott’s job.
I want a prosecutor to call all 11 witness officers to the stand so they can be asked, under oath, if they recognize the defendant as the person who struck Barton. I want to hear them, one by one, deny it. I want their names on the public record.
With the shell game some cops are playing right now, that feels even more vital than a conviction.
In the court of public opinion, let them be judged.
Thursday, May 26, 2011
2,000 Sony Ericsson customers from Canada whose personal data had been stolen and posted online for anyone to see.
TORONTO — David Campbell found out Wednesday morning that he was one of 2,000 Sony Ericsson customers from Canada whose personal data had been stolen and posted online for anyone to see.
He's been through a case of online fraud before and is resigned to the fact that information stored on the web is at risk. So he wasn't overly concerned to learn that his name and email were being shared by hackers.
But he doesn't appreciate that Sony didn't alert him to the latest security breach to hit the entertainment giant.
"I guess (the data breach) is disappointing but in this modern day you'd probably be a little foolish to think that anything's safe. If you're using a computer you've got to be aware that your information is vulnerable," said Campbell, who works with the Stratford Shakespeare Festival in southwestern Ontario.
"I think more disappointing would be that Sony didn't bother to contact any of their customers to let them know this had happened."
Sony has been hit with a number of hacker attacks in recent weeks, the most notable coming last month and affecting more than 100 million accounts of PlayStation Network and Qriocity users.
In that incident, data including names, birth dates, email addresses and log-in information was compromised. Sony also said encrypted credit card data from 10 million accounts may have been accessed.
The company said in a statement issued Wednesday that hackers on Sony Ericsson's Canadian site only accessed email addresses and encrypted passwords.
Sony did not immediately respond to questions about whether it attemped to contact affected consumers.
Campbell previously had a problem with fraudulent purchases being made with his credit card and that experience raised his level of caution when sharing information online.
But a few months ago, he needed a product from Sony and found he could only get it through the web. He took the risk.
"I wanted it, it was the only way to get it, so I did it," Campbell said.
"I don't think you have a reasonable expectation of privacy online any more, even on secure websites. I think that's being pretty clearly established."
Scott Spence, a Winnipeg-based financial planner, said he, too, was disappointed to not hear from Sony about his name and email being obtained by hackers. But he expected little fallout from the incident.
"The information that has been breached really is nothing more than getting information out of a telephone book and ... the impact to me personally is going to be minute," Spence said.
"A decade ago, most individuals would be absolutely appalled, but in this digital age, most individuals are finding it's (just) an inconvenience."
Earlier this month, Canada's privacy commissioner Jennifer Stoddart called for the power to impose "attention-getting fines" when major corporations fail to protect personal information.
She also said she was "very disappointed" that Sony did not proactively notify her of the major breach in April.
On Wednesday, a spokeswoman for Stoddart said her office was not notified about the most recent breach.
"We have contacted them with the purpose of better understanding what took place and what measures are being taken to manage the situation," said spokeswoman Anne-Marie Hayden.
He's been through a case of online fraud before and is resigned to the fact that information stored on the web is at risk. So he wasn't overly concerned to learn that his name and email were being shared by hackers.
But he doesn't appreciate that Sony didn't alert him to the latest security breach to hit the entertainment giant.
"I guess (the data breach) is disappointing but in this modern day you'd probably be a little foolish to think that anything's safe. If you're using a computer you've got to be aware that your information is vulnerable," said Campbell, who works with the Stratford Shakespeare Festival in southwestern Ontario.
"I think more disappointing would be that Sony didn't bother to contact any of their customers to let them know this had happened."
Sony has been hit with a number of hacker attacks in recent weeks, the most notable coming last month and affecting more than 100 million accounts of PlayStation Network and Qriocity users.
In that incident, data including names, birth dates, email addresses and log-in information was compromised. Sony also said encrypted credit card data from 10 million accounts may have been accessed.
The company said in a statement issued Wednesday that hackers on Sony Ericsson's Canadian site only accessed email addresses and encrypted passwords.
Sony did not immediately respond to questions about whether it attemped to contact affected consumers.
Campbell previously had a problem with fraudulent purchases being made with his credit card and that experience raised his level of caution when sharing information online.
But a few months ago, he needed a product from Sony and found he could only get it through the web. He took the risk.
"I wanted it, it was the only way to get it, so I did it," Campbell said.
"I don't think you have a reasonable expectation of privacy online any more, even on secure websites. I think that's being pretty clearly established."
Scott Spence, a Winnipeg-based financial planner, said he, too, was disappointed to not hear from Sony about his name and email being obtained by hackers. But he expected little fallout from the incident.
"The information that has been breached really is nothing more than getting information out of a telephone book and ... the impact to me personally is going to be minute," Spence said.
"A decade ago, most individuals would be absolutely appalled, but in this digital age, most individuals are finding it's (just) an inconvenience."
Earlier this month, Canada's privacy commissioner Jennifer Stoddart called for the power to impose "attention-getting fines" when major corporations fail to protect personal information.
She also said she was "very disappointed" that Sony did not proactively notify her of the major breach in April.
On Wednesday, a spokeswoman for Stoddart said her office was not notified about the most recent breach.
"We have contacted them with the purpose of better understanding what took place and what measures are being taken to manage the situation," said spokeswoman Anne-Marie Hayden.
Wednesday, May 25, 2011
Top Tories dispute party's founding principles : A key principle that sealed the merger between the Progressive Conservatives and the Canadian Alliance was never meant to be a permanent party rule, says one of the party's founding figures.
OTTAWA — A key principle that sealed the merger between the Progressive Conservatives and the Canadian Alliance was never meant to be a permanent party rule, says one of the party's founding figures.
Ontario MP Scott Reid, one of the Alliance negotiators during merger talks in 2003, wrote to party members over the long weekend about a change he would like to see in the Conservative party constitution.
Such changes will be discussed at the party convention next month and could fuel a passionate rule fight on the floor, as it has in previous years.
Reid wants to alter the formula that gives all riding associations an equal say in a leadership vote, regardless of how many members they have. Reid would like to see larger associations get more clout — something Progressive Conservatives balked at in 2003 for fear that the mostly western-based Alliance would swamp the ballot.
Reid points to the text of the 2003 merger agreement between the parties that referred to a "one-time process for leadership selection" before the race that saw Stephen Harper elected.
"So a change to a new system is entirely in the spirit of the agreement signed by Stephen Harper and Peter MacKay and the issue of how the party would select its second and subsequent leaders was never a deal-breaker," Reid wrote in a letter obtained by The Canadian Press.
That directly contradicts Defence Minister Peter MacKay's letter to members written only a few days earlier.
"The equality of (riding associations) was a crucial, 'deal-breaker' issue in the merger of our legacy parties in 2003," wrote MacKay. "Equality . . . has allowed us to elect our leader with a cross-country base of support, develop as a truly national party, and this in turn has enabled us to form a truly national, majority government. . . .
"This is a divisive debate our party does not need to have again, having rejected similar proposals in our founding agreement and at two national conventions."
Conservative Senator Hugh Segal agreed and saluted Harper for defending the rule in the past.
"Retroactive efforts to change the core '03 agreement are not in the interest of a strong party, however well intentioned, the proposer may be," Segal said in an email to The Canadian Press.
"Smaller Tory riding associations in less populous parts of Canada, in rural areas, the Atlantic and Maritime regions, not to mention Quebec or the North, should not be discouraged or diminished as the proposed changes would make unavoidable.
"Fussing with an eight-year-old agreement every few years is counterproductive."
Some Quebec Tories who spoke to The Canadian Press said they were completely against changing the rule at a time when the party needs to rebuild in the province. Quebec riding associations generally do not have the same numbers of members as those in other parts of the country.
"I'm against it for the simple reason that fundamentally, if there is a riding that has 100,000 voters while another has 45,000 voters, the chances of having the same number of party members is completely unrealistic," said Jean-Nicolas Marchand, president of the Louis Saint-Laurent Conservative association.
"Right from the outset it's inequitable because all ridings in Canada don't have the same number of people."
Reid is not the only Conservative pushing for a change to the equality-of-ridings principle. Immigration Minister Jason Kenney's Calgary riding has its own proposal, as do others from British Columbia.
Under the current system, riding associations have 100 points to allocate in a leadership vote. The points are awarded to each contender based on the percentage of party members in each riding who cast ballots for one person or another. A riding association with a few dozen members gets to send the same number of points to a leadership contestant as a riding with thousands of members.
Reid complained in his letter that a majority of party members could cast ballots for a particular candidate, but see someone else win because of the equality rule.
"And this is the whole point of suggesting a new leadership election formula," Reid said. "I think it's obvious that if Candidate A wins the leadership of a party when Candidate B has won twice as many votes, the victory will be seen as illegitimate and the party will be unable to function," Reid said.
Reid also rejected the notion that the party is "divided into factions based upon our prior partisan allegiances."
He did not return calls made to his office last week and on Tuesday.
Ontario MP Scott Reid, one of the Alliance negotiators during merger talks in 2003, wrote to party members over the long weekend about a change he would like to see in the Conservative party constitution.
Such changes will be discussed at the party convention next month and could fuel a passionate rule fight on the floor, as it has in previous years.
Reid wants to alter the formula that gives all riding associations an equal say in a leadership vote, regardless of how many members they have. Reid would like to see larger associations get more clout — something Progressive Conservatives balked at in 2003 for fear that the mostly western-based Alliance would swamp the ballot.
Reid points to the text of the 2003 merger agreement between the parties that referred to a "one-time process for leadership selection" before the race that saw Stephen Harper elected.
"So a change to a new system is entirely in the spirit of the agreement signed by Stephen Harper and Peter MacKay and the issue of how the party would select its second and subsequent leaders was never a deal-breaker," Reid wrote in a letter obtained by The Canadian Press.
That directly contradicts Defence Minister Peter MacKay's letter to members written only a few days earlier.
"The equality of (riding associations) was a crucial, 'deal-breaker' issue in the merger of our legacy parties in 2003," wrote MacKay. "Equality . . . has allowed us to elect our leader with a cross-country base of support, develop as a truly national party, and this in turn has enabled us to form a truly national, majority government. . . .
"This is a divisive debate our party does not need to have again, having rejected similar proposals in our founding agreement and at two national conventions."
Conservative Senator Hugh Segal agreed and saluted Harper for defending the rule in the past.
"Retroactive efforts to change the core '03 agreement are not in the interest of a strong party, however well intentioned, the proposer may be," Segal said in an email to The Canadian Press.
"Smaller Tory riding associations in less populous parts of Canada, in rural areas, the Atlantic and Maritime regions, not to mention Quebec or the North, should not be discouraged or diminished as the proposed changes would make unavoidable.
"Fussing with an eight-year-old agreement every few years is counterproductive."
Some Quebec Tories who spoke to The Canadian Press said they were completely against changing the rule at a time when the party needs to rebuild in the province. Quebec riding associations generally do not have the same numbers of members as those in other parts of the country.
"I'm against it for the simple reason that fundamentally, if there is a riding that has 100,000 voters while another has 45,000 voters, the chances of having the same number of party members is completely unrealistic," said Jean-Nicolas Marchand, president of the Louis Saint-Laurent Conservative association.
"Right from the outset it's inequitable because all ridings in Canada don't have the same number of people."
Reid is not the only Conservative pushing for a change to the equality-of-ridings principle. Immigration Minister Jason Kenney's Calgary riding has its own proposal, as do others from British Columbia.
Under the current system, riding associations have 100 points to allocate in a leadership vote. The points are awarded to each contender based on the percentage of party members in each riding who cast ballots for one person or another. A riding association with a few dozen members gets to send the same number of points to a leadership contestant as a riding with thousands of members.
Reid complained in his letter that a majority of party members could cast ballots for a particular candidate, but see someone else win because of the equality rule.
"And this is the whole point of suggesting a new leadership election formula," Reid said. "I think it's obvious that if Candidate A wins the leadership of a party when Candidate B has won twice as many votes, the victory will be seen as illegitimate and the party will be unable to function," Reid said.
Reid also rejected the notion that the party is "divided into factions based upon our prior partisan allegiances."
He did not return calls made to his office last week and on Tuesday.
Tuesday, May 24, 2011
The Public Health Agency of Canada is looking to make public the drug company affiliations — and therefore any potential conflict of interest — of its expert advisers, CBC News has learned: Agency's policy move on drug advisers comes after CBC Tamiflu documentary .
The Public Health Agency of Canada is looking to make public the drug company affiliations — and therefore any potential conflict of interest — of its expert advisers, CBC News has learned.
This new direction was set out in an email over the holiday weekend to CBC/Radio-Canada reporter Frédéric Zalac and follows a months-long investigation by reporters from three different news organizations in three different countries into the effectiveness of the anti-viral drug Tamiflu and how it has been promoted.
Made by the giant Swiss-based pharmaceutical company Hoffman-La Roche Ltd., now known as Roche, Tamiflu was seen by some as a front-line defence in the H1N1 flu outbreak of 2009.
Tamiflu, from the Swiss-based pharmaceutical company Roche, is one of the world's most prominent anti-viral drugs, but researchers are asking how effective it is. (Reuters)
The company has sold roughly $10-billion worth of Tamiflu in the 10 years since the drug was launched, much of that in the years surrounding the avian and H1N1 flu scares. In Canada, the federal and provincial governments stockpiled nearly $180-million worth of anti-viral drugs, most of that Tamiflu from Roche Canada.
These stockpiles came about largely on the recommendations of the Public Health Agency of Canada and its expert advisers, as well as some independent flu experts.
Now, nearly half of the Tamiflu in the National Antiviral Stockpile is about to expire and Ottawa and the provinces will have to make a decision whether to reinvest.
A CBC documentary, which was broadcast on The National on Monday night, reports that certain other researchers in Canada, Italy, Britain and the U.S. are now challenging the claims by Roche that Tamiflu can significantly reduce complications or hospitalizations due to the flu.
The documentary also raises concerns about possible side effects surrounding the drug — strange behaviours and psychiatric delusions — that some countries, Japan in particular, have reported.
Using freedom of information requests, the investigation found hundreds of similar cases in Canada and the U.S., which were reported to health authorities but have not been made public.
It’s often difficult to establish a clear causal link between a drug and rare adverse reactions. Roche says its research suggests that these side effects result from the flu itself and high fevers, not the medication.
In the course of the CBC investigation, Zalac also reported that three of Canada's most prominent flu experts — Dr. Donald Low and Dr. Allison McGeer of Mount Sinai Hospital in Toronto, and Dr. Fred Aoki of the University of Manitoba — had received research funding or acted as a consultant or speaker for Roche during the period when Tamiflu was being promoted.
Their research involvement with Roche and other anti-viral drug makers was not a secret within the industry.
All three would sign the now standard conflict-of-interest declarations when speaking at professional events or publishing papers. And the Public Health Agency says it has always been aware of the drug industry affiliations of its private sector advisers and takes these into account.
Dr. Donald Low, microbiologist in chief at Mount Sinai Hospital in Toronto, says he doesn't feel the drug companies influenced him in any way. (Frank Gunn/Canadian Press)
But these relationships were rarely reported in broader public forums, in the media or even when some of these individuals would appear in marketing videos or flu-warning commercials on television produced by Roche.
Responding to these concerns, Low told Zalac that he doesn't feel the drug companies influenced him in any way.
"I do a lot with industry," he said. "And it doesn't take long to catch up to you if you are making statements that in your heart you don't believe and you don't have the data to support."
As for the Public Health Agency of Canada, it released a statement that said it would be inappropriate at this point to release the drug company connections of its advisers without their consent.
PHAC says that its advisory committees provide advice but that the agency makes the final decisions. However, because of the questions raised in the CBC documentary, the agency said it "intends to establish a policy on the release of information relating to members of its expert or advisory groups/committees."
--------------------------------------------------------------------------------
The documentary "Tamiflu Inc." was a joint international project involving the CBC/Radio-Canada and NPR (National Public Radio) in the U.S. and RSI (Swiss-Italian Television) in Europe. Its primary reporters were Frédéric Zalac for CBC, Serena Tinari for RSI and Sandra Bartlett for NPR.
This new direction was set out in an email over the holiday weekend to CBC/Radio-Canada reporter Frédéric Zalac and follows a months-long investigation by reporters from three different news organizations in three different countries into the effectiveness of the anti-viral drug Tamiflu and how it has been promoted.
Made by the giant Swiss-based pharmaceutical company Hoffman-La Roche Ltd., now known as Roche, Tamiflu was seen by some as a front-line defence in the H1N1 flu outbreak of 2009.
Tamiflu, from the Swiss-based pharmaceutical company Roche, is one of the world's most prominent anti-viral drugs, but researchers are asking how effective it is. (Reuters)
The company has sold roughly $10-billion worth of Tamiflu in the 10 years since the drug was launched, much of that in the years surrounding the avian and H1N1 flu scares. In Canada, the federal and provincial governments stockpiled nearly $180-million worth of anti-viral drugs, most of that Tamiflu from Roche Canada.
These stockpiles came about largely on the recommendations of the Public Health Agency of Canada and its expert advisers, as well as some independent flu experts.
Now, nearly half of the Tamiflu in the National Antiviral Stockpile is about to expire and Ottawa and the provinces will have to make a decision whether to reinvest.
A CBC documentary, which was broadcast on The National on Monday night, reports that certain other researchers in Canada, Italy, Britain and the U.S. are now challenging the claims by Roche that Tamiflu can significantly reduce complications or hospitalizations due to the flu.
The documentary also raises concerns about possible side effects surrounding the drug — strange behaviours and psychiatric delusions — that some countries, Japan in particular, have reported.
Using freedom of information requests, the investigation found hundreds of similar cases in Canada and the U.S., which were reported to health authorities but have not been made public.
It’s often difficult to establish a clear causal link between a drug and rare adverse reactions. Roche says its research suggests that these side effects result from the flu itself and high fevers, not the medication.
In the course of the CBC investigation, Zalac also reported that three of Canada's most prominent flu experts — Dr. Donald Low and Dr. Allison McGeer of Mount Sinai Hospital in Toronto, and Dr. Fred Aoki of the University of Manitoba — had received research funding or acted as a consultant or speaker for Roche during the period when Tamiflu was being promoted.
Their research involvement with Roche and other anti-viral drug makers was not a secret within the industry.
All three would sign the now standard conflict-of-interest declarations when speaking at professional events or publishing papers. And the Public Health Agency says it has always been aware of the drug industry affiliations of its private sector advisers and takes these into account.
Dr. Donald Low, microbiologist in chief at Mount Sinai Hospital in Toronto, says he doesn't feel the drug companies influenced him in any way. (Frank Gunn/Canadian Press)
But these relationships were rarely reported in broader public forums, in the media or even when some of these individuals would appear in marketing videos or flu-warning commercials on television produced by Roche.
Responding to these concerns, Low told Zalac that he doesn't feel the drug companies influenced him in any way.
"I do a lot with industry," he said. "And it doesn't take long to catch up to you if you are making statements that in your heart you don't believe and you don't have the data to support."
As for the Public Health Agency of Canada, it released a statement that said it would be inappropriate at this point to release the drug company connections of its advisers without their consent.
PHAC says that its advisory committees provide advice but that the agency makes the final decisions. However, because of the questions raised in the CBC documentary, the agency said it "intends to establish a policy on the release of information relating to members of its expert or advisory groups/committees."
--------------------------------------------------------------------------------
The documentary "Tamiflu Inc." was a joint international project involving the CBC/Radio-Canada and NPR (National Public Radio) in the U.S. and RSI (Swiss-Italian Television) in Europe. Its primary reporters were Frédéric Zalac for CBC, Serena Tinari for RSI and Sandra Bartlett for NPR.
Monday, May 23, 2011
Globalive in the Federal Court of Appeal .
Globalive Wireless Management Corp. squared off with competitors in the Federal Court of Appeal on Wednesday arguing that its cellular upstart, Wind Mobile, has more than enough Canadian ownership to operate.
Lawyers from competition cellular upstart Public Mobile argued that with more than 65 per cent of the company's debt being held by a foreign company, Wind is controlled by foreign interests.
Lawyers from Globalive fired back saying the startup cellular firm has passed government benchmarks used to determine acceptable levels of Canadian ownership and has obtained federal approval to operate in Canada. The company says, while Egyptian firm Orascom owns most of its debt, the foreign company only has 33 per cent of Globalive voting shares, not enough to influence company decisions.
Also on hand were lawyers from the Attorney General of Canada's office who supported the federal government's decision by arguing that while there are foreign ownership limits, there are no limits on the amount of cash a Canadian company can raise from foreign sources of funding and Globalive is free to raise cash from international investors in order to compete in Canada's cellular market.
Globalive has been fighting to prove it does not violate Canadian telecommunication ownership laws since it first launched in 2009.
That fall the Canadian Radio-television and Telecommunications Commission (CRTC) ruled the company's ownership structure, coupled with longer-term loan agreements with Orascom, were enough to push Globalive over foreign ownership restrictions and barred it from starting up business.
The Conservative government, citing a need for more competition in the Canadian cellular market, overturned the CRTC's decision. Wind opened for business in December of that year.
However, after a complaint by Public Mobile in February, a Federal Court judge quashed the government's decision to overrule the CRTC. The judge ruled the government had overstepped its authority by overturning the decision of the telecommunication's regulator.
The judge's decision in February set up Wednesday's showdown in the Federal Court of Appeal, where lawyers spent the day arguing over whether Wind should have ever been allowed to open for business in Canada. The company spent more than $442 million in a 2008 spectrum auction to purchase cellular frequencies so it could begin offering service to Canadians and now has more than 300,000 subscribers across the country.
Judges at the Court of Appeal will now consider the arguments put before them and render a decision.
A court loss wouldn't immediately threaten Wind's customers, as the company could still try to take its case to the Supreme Court of Canada.
Prior to to last month's federal election, the Conservative government also promised to change legislation limiting foreign ownership. While that hasn't happened yet, a newly elected majority government could make those changes in the coming weeks.
Read more: http://www.ottawacitizen.com/news/Globalive+touts+Canadian+ownership/4806726/story.html#ixzz1N9gfO9yT
Lawyers from competition cellular upstart Public Mobile argued that with more than 65 per cent of the company's debt being held by a foreign company, Wind is controlled by foreign interests.
Lawyers from Globalive fired back saying the startup cellular firm has passed government benchmarks used to determine acceptable levels of Canadian ownership and has obtained federal approval to operate in Canada. The company says, while Egyptian firm Orascom owns most of its debt, the foreign company only has 33 per cent of Globalive voting shares, not enough to influence company decisions.
Also on hand were lawyers from the Attorney General of Canada's office who supported the federal government's decision by arguing that while there are foreign ownership limits, there are no limits on the amount of cash a Canadian company can raise from foreign sources of funding and Globalive is free to raise cash from international investors in order to compete in Canada's cellular market.
Globalive has been fighting to prove it does not violate Canadian telecommunication ownership laws since it first launched in 2009.
That fall the Canadian Radio-television and Telecommunications Commission (CRTC) ruled the company's ownership structure, coupled with longer-term loan agreements with Orascom, were enough to push Globalive over foreign ownership restrictions and barred it from starting up business.
The Conservative government, citing a need for more competition in the Canadian cellular market, overturned the CRTC's decision. Wind opened for business in December of that year.
However, after a complaint by Public Mobile in February, a Federal Court judge quashed the government's decision to overrule the CRTC. The judge ruled the government had overstepped its authority by overturning the decision of the telecommunication's regulator.
The judge's decision in February set up Wednesday's showdown in the Federal Court of Appeal, where lawyers spent the day arguing over whether Wind should have ever been allowed to open for business in Canada. The company spent more than $442 million in a 2008 spectrum auction to purchase cellular frequencies so it could begin offering service to Canadians and now has more than 300,000 subscribers across the country.
Judges at the Court of Appeal will now consider the arguments put before them and render a decision.
A court loss wouldn't immediately threaten Wind's customers, as the company could still try to take its case to the Supreme Court of Canada.
Prior to to last month's federal election, the Conservative government also promised to change legislation limiting foreign ownership. While that hasn't happened yet, a newly elected majority government could make those changes in the coming weeks.
Read more: http://www.ottawacitizen.com/news/Globalive+touts+Canadian+ownership/4806726/story.html#ixzz1N9gfO9yT
Sunday, May 22, 2011
Canadian voters can mark Oct. 19, 2015 on their calendars as the date of the next federal election — but they might want to use a pencil and keep an eraser handy.
OTTAWA — Canadian voters can mark Oct. 19, 2015 on their calendars as the date of the next federal election — but they might want to use a pencil and keep an eraser handy.
The date is a result of a bill introduced in 2006, shortly after the Tories won their first minority government. At the time, then-democratic reform minister Rob Nicholson introduced the legislation to establish precise election dates. Under the bill, which passed in 2007, Canadians are supposed to go to the polls on the third Monday in October, in the fourth calendar year after a general election.
As it happened, the government of Prime Minister Stephen Harper didn't follow the bill's guidance.
In 2008, Harper convinced the then-governor general that Parliament had become dysfunctional and should be dissolved, sending Canadians to the ballot boxes.
Advocacy group Democracy Watch soon asked the Federal Court to rule that the prime minister had broken his own election law.
The court sided with the government, noting that nothing in the law affected the powers of the governor general, including the power to dissolve Parliament. The Federal Court of Appeal upheld the decision, and when Democracy Watch asked the Supreme Court of Canada to weigh in, the request was rejected.
So, "unless (Harper) decides to observe the law, it's not worth the paper it's written on," said Errol Mendes, a law professor at the University of Ottawa. "He already proved you can get around the law."
But Thursday, a spokeswoman for the Prime Minister's Office said the government will follow the law.
"Canada has a law in place for fixed election dates, brought in by our government," said Sara MacIntyre. "We have no plans to change this."
According to the Constitution, the longest a government can sit without an election is five years. So some wait to see if Harper will extend his majority past the next fixed election date, which is in under five years.
"He can ignore the next election date," Mendes argued. "He ignored it with the 2008 election, and the weakness of the law was reinforced with the Federal Court's decision."
But aside from Harper's move to an early election in 2008 (the opposition, not Harper, spurred the 2011 election), there's no reason to believe the Conservatives will skirt the law, said Dennis Pilon, who teaches Canadian politics at the University of Victoria.
Fixed election dates have been successfully legislated in British Columbia, Newfoundland and Labrador, the Northwest Territories and New Brunswick. Manitoba, Prince Edward Island and Saskatchewan have passed legislation and will be having their first fixed-date elections this year.
"Here in B.C., the provincial Liberals have stuck to their fixed election date like clockwork," Pilon said. "(But) if the PM has any reason not to stick to the fixed election date, there is really nothing stopping him from ignoring it."
Read more: http://www.canada.com/news/decision-canada/Critics+fear+Harper+will+flout+fixed+election/4812415/story.html#ixzz1N3tBv44V
The date is a result of a bill introduced in 2006, shortly after the Tories won their first minority government. At the time, then-democratic reform minister Rob Nicholson introduced the legislation to establish precise election dates. Under the bill, which passed in 2007, Canadians are supposed to go to the polls on the third Monday in October, in the fourth calendar year after a general election.
As it happened, the government of Prime Minister Stephen Harper didn't follow the bill's guidance.
In 2008, Harper convinced the then-governor general that Parliament had become dysfunctional and should be dissolved, sending Canadians to the ballot boxes.
Advocacy group Democracy Watch soon asked the Federal Court to rule that the prime minister had broken his own election law.
The court sided with the government, noting that nothing in the law affected the powers of the governor general, including the power to dissolve Parliament. The Federal Court of Appeal upheld the decision, and when Democracy Watch asked the Supreme Court of Canada to weigh in, the request was rejected.
So, "unless (Harper) decides to observe the law, it's not worth the paper it's written on," said Errol Mendes, a law professor at the University of Ottawa. "He already proved you can get around the law."
But Thursday, a spokeswoman for the Prime Minister's Office said the government will follow the law.
"Canada has a law in place for fixed election dates, brought in by our government," said Sara MacIntyre. "We have no plans to change this."
According to the Constitution, the longest a government can sit without an election is five years. So some wait to see if Harper will extend his majority past the next fixed election date, which is in under five years.
"He can ignore the next election date," Mendes argued. "He ignored it with the 2008 election, and the weakness of the law was reinforced with the Federal Court's decision."
But aside from Harper's move to an early election in 2008 (the opposition, not Harper, spurred the 2011 election), there's no reason to believe the Conservatives will skirt the law, said Dennis Pilon, who teaches Canadian politics at the University of Victoria.
Fixed election dates have been successfully legislated in British Columbia, Newfoundland and Labrador, the Northwest Territories and New Brunswick. Manitoba, Prince Edward Island and Saskatchewan have passed legislation and will be having their first fixed-date elections this year.
"Here in B.C., the provincial Liberals have stuck to their fixed election date like clockwork," Pilon said. "(But) if the PM has any reason not to stick to the fixed election date, there is really nothing stopping him from ignoring it."
Read more: http://www.canada.com/news/decision-canada/Critics+fear+Harper+will+flout+fixed+election/4812415/story.html#ixzz1N3tBv44V
Saturday, May 21, 2011
the Conservative Party of Canada conflict brewing over voting rules.
A battle is shaping up inside Tory ranks ahead of the party's national convention next month, once again pitting members of the old Canadian Alliance party against former Progressive Conservatives in Quebec and Atlantic Canada, the Canadian Press has learned.
The matter has even prompted Defence Minister Peter MacKay, one of the founding fathers of the Conservative party, to speak out in a letter to fellow Conservatives.
At issue is the "deal-breaker" policy that brought the two parties together in 2003 — the concept that all riding associations would be treated equally during a leadership and policy conventions no matter how many members they had.
The rule was important to Progressive Conservatives because it would keep a check on the power of large western Canadian associations that could easily swamp a leadership vote.
Delegate voting rule
From the Conservative Party of Canada constitution:
7.5 The following shall be entitled to vote as delegates to a national convention:
7.5.1 an equal number not exceeding 10 from each electoral district association elected in such number and in such manner as determined by National Council which shall include a requirement that at least one such delegate reflect youth participation, and as an additional delegate the president of the electoral district association as of a date set by National Council;
One proposed amendment, from Immigration Minister Jason Kenney's electoral district association, would rewrite that subsection this way (changed or new wording in bold):
7.5.1 Each electoral district with 100 or more members in good standing will be allocated a maximum of ten delegates, elected in such manner as determined by National Council, which shall include a requirement that at least one such delegate reflect youth participation, and as an additional delegate the president of the electoral district association as of the date set by National Council. Electoral districts with fewer than 100 members in good standing will be allocated one delegate per ten members up to a maximum of nine delegates, also elected in such manner as determined by National Council.
Kady O'Malley has more on the proposed party constitution changes, including full list of submissions, in her blog.
But now several riding associations, including Immigration Minister Jason Kenney's and Ontario MP Scott Reid's, want to alter the rules to move the party toward a system closer to that of "one member, one vote." Both Kenney and Reid were former Canadian Alliance members.
MacKay, who has fought aggressively at previous conventions against such amendments to the party's constitution, is calling on riding presidents to keep the proposals from even making it to the convention floor.
'Divisive debate' not needed: MacKay
"This is a divisive debate our Party does not need to have again, having rejected similar proposals in our founding agreement, and at two national conventions," MacKay wrote on May 17 in an email obtained by The Canadian Press and CBC News.
"Our membership has repeatedly spoken on this issue, and we should treat the matter as closed and move on to building upon our cross-Canada successes instead of weakening the foundation upon which those successes have been built."
Quebec Tories are also angry about the amendments, with some viewing it as the possible final nail in coffin of the party in the province after a disappointing election campaign there. Already, riding association presidents fear they won't be able to encourage dispirited members to be delegates at the June convention.
"Quebecers see it as them being forced out of the party," said Peter White, a longtime party member and riding association president in the Quebec riding of Brome-Mississquoi.
"I think it would be terrible, it would be a disaster."
White also calls the moves shortsighted, saying the numbers of members in a particular riding association goes up and down over different periods of time.
Bernard Cote, riding association president in a Montreal-area riding, said he was alarmed by the resolutions.
"We want to ensure that we'll be able to elect a leader who is representative of all the regions of the country, and that's why we insist on the rule of the equality of the ridings," Cote said.
But Ontario MP Gord Brown, a supporter of the equality of the ridings, doubts that the issue will occupy much space at the convention.
"I don't think this is going to be a big issue," Brown said. "What they're really going to do is celebrate the election victory."
Weighting of ridings proposed
Under the current system, each electoral district association is weighted the same when it comes to calculating support for a leadership contestant.
The proposal from Reid's association, according to party documents obtained by The Canadian Press, would weight the votes from an association based on how many members they have.
Kenney's riding is proposing that only associations that had 100 or more members in good standing would get to send the full slate of delegates to a convention.
"The reason for the amendment is that there is a sense of inequality in some ridings with respect to equal voting rights for all ridings when some ridings are larger than other ones, and other memberships in various ridings are in relative terms quite small," said John MacNeil, former president of the Calgary Southeast Conservative association.
"There's a sense of lack of proportionality."
Such a change to the constitution would take the support of a majority of delegates and a majority of delegates from each of the individual provinces.
Reid did not immediately return a message, nor did the Conservative Party of Canada.
The matter has even prompted Defence Minister Peter MacKay, one of the founding fathers of the Conservative party, to speak out in a letter to fellow Conservatives.
At issue is the "deal-breaker" policy that brought the two parties together in 2003 — the concept that all riding associations would be treated equally during a leadership and policy conventions no matter how many members they had.
The rule was important to Progressive Conservatives because it would keep a check on the power of large western Canadian associations that could easily swamp a leadership vote.
Delegate voting rule
From the Conservative Party of Canada constitution:
7.5 The following shall be entitled to vote as delegates to a national convention:
7.5.1 an equal number not exceeding 10 from each electoral district association elected in such number and in such manner as determined by National Council which shall include a requirement that at least one such delegate reflect youth participation, and as an additional delegate the president of the electoral district association as of a date set by National Council;
One proposed amendment, from Immigration Minister Jason Kenney's electoral district association, would rewrite that subsection this way (changed or new wording in bold):
7.5.1 Each electoral district with 100 or more members in good standing will be allocated a maximum of ten delegates, elected in such manner as determined by National Council, which shall include a requirement that at least one such delegate reflect youth participation, and as an additional delegate the president of the electoral district association as of the date set by National Council. Electoral districts with fewer than 100 members in good standing will be allocated one delegate per ten members up to a maximum of nine delegates, also elected in such manner as determined by National Council.
Kady O'Malley has more on the proposed party constitution changes, including full list of submissions, in her blog.
But now several riding associations, including Immigration Minister Jason Kenney's and Ontario MP Scott Reid's, want to alter the rules to move the party toward a system closer to that of "one member, one vote." Both Kenney and Reid were former Canadian Alliance members.
MacKay, who has fought aggressively at previous conventions against such amendments to the party's constitution, is calling on riding presidents to keep the proposals from even making it to the convention floor.
'Divisive debate' not needed: MacKay
"This is a divisive debate our Party does not need to have again, having rejected similar proposals in our founding agreement, and at two national conventions," MacKay wrote on May 17 in an email obtained by The Canadian Press and CBC News.
"Our membership has repeatedly spoken on this issue, and we should treat the matter as closed and move on to building upon our cross-Canada successes instead of weakening the foundation upon which those successes have been built."
Quebec Tories are also angry about the amendments, with some viewing it as the possible final nail in coffin of the party in the province after a disappointing election campaign there. Already, riding association presidents fear they won't be able to encourage dispirited members to be delegates at the June convention.
"Quebecers see it as them being forced out of the party," said Peter White, a longtime party member and riding association president in the Quebec riding of Brome-Mississquoi.
"I think it would be terrible, it would be a disaster."
White also calls the moves shortsighted, saying the numbers of members in a particular riding association goes up and down over different periods of time.
Bernard Cote, riding association president in a Montreal-area riding, said he was alarmed by the resolutions.
"We want to ensure that we'll be able to elect a leader who is representative of all the regions of the country, and that's why we insist on the rule of the equality of the ridings," Cote said.
But Ontario MP Gord Brown, a supporter of the equality of the ridings, doubts that the issue will occupy much space at the convention.
"I don't think this is going to be a big issue," Brown said. "What they're really going to do is celebrate the election victory."
Weighting of ridings proposed
Under the current system, each electoral district association is weighted the same when it comes to calculating support for a leadership contestant.
The proposal from Reid's association, according to party documents obtained by The Canadian Press, would weight the votes from an association based on how many members they have.
Kenney's riding is proposing that only associations that had 100 or more members in good standing would get to send the full slate of delegates to a convention.
"The reason for the amendment is that there is a sense of inequality in some ridings with respect to equal voting rights for all ridings when some ridings are larger than other ones, and other memberships in various ridings are in relative terms quite small," said John MacNeil, former president of the Calgary Southeast Conservative association.
"There's a sense of lack of proportionality."
Such a change to the constitution would take the support of a majority of delegates and a majority of delegates from each of the individual provinces.
Reid did not immediately return a message, nor did the Conservative Party of Canada.
Friday, May 20, 2011
Ontario's deputy chief coroner has been told she was wrong to exclude controversial prison videos of forced injections at the Ashley Smith inquest underway in Toronto.
Ontario'sdeputy chief coroner has been told she was wrong to exclude controversial prison videos of forced injections at the Ashley Smith inquest underway in Toronto.
A panel of judges ruled Thursday Dr. Bonita Porter made a mistake by not reviewing and including the prison videos recorded in prison just months before Ashley Smith died in her cell. (Courtesy of Ashley Smith's family)
A panel of three judges with Ontario's Divisional Court ruled Thursday that Dr. Bonita Porter made a mistake by not reviewing and including the prison videos recorded at Joliette Institution in Quebec just three months before Smith died in her cell.
The videos depict medical staff threatening and forcibly injecting the troubled 19-year-old New Brunswick teen with anti-psychotic drugs against her will, which one psychiatrist described as illegal.
The incident happened just three months before she strangled herself at Grand Valley Institution near Kitchener, Ont. Smith had spiralled into despair, having been transferred between prisons 17 times in the final 11 months of her life.
The coroner originally refused to even look at the videos of the forced injections, ruling they were not relevant to the girl's state of mind at the time of her death.
But the court struck down that decision Thursday, stating that given the coroner's own expanded scope at the inquest it is difficult to understand why the coroner would conclude that the videos are irrelevant. Refusing the family access to these videos amounts to a denial of natural justice and runs the risk of having to repeat the inquest process, the court ruled.
Lawyers for Smith's family are now calling on the coroner to issue summons for all the videos recorded during the injections, and also during each of her 17 prison transfers, so they can be played for the inquest jury.
A panel of judges ruled Thursday Dr. Bonita Porter made a mistake by not reviewing and including the prison videos recorded in prison just months before Ashley Smith died in her cell. (Courtesy of Ashley Smith's family)
A panel of three judges with Ontario's Divisional Court ruled Thursday that Dr. Bonita Porter made a mistake by not reviewing and including the prison videos recorded at Joliette Institution in Quebec just three months before Smith died in her cell.
The videos depict medical staff threatening and forcibly injecting the troubled 19-year-old New Brunswick teen with anti-psychotic drugs against her will, which one psychiatrist described as illegal.
The incident happened just three months before she strangled herself at Grand Valley Institution near Kitchener, Ont. Smith had spiralled into despair, having been transferred between prisons 17 times in the final 11 months of her life.
The coroner originally refused to even look at the videos of the forced injections, ruling they were not relevant to the girl's state of mind at the time of her death.
But the court struck down that decision Thursday, stating that given the coroner's own expanded scope at the inquest it is difficult to understand why the coroner would conclude that the videos are irrelevant. Refusing the family access to these videos amounts to a denial of natural justice and runs the risk of having to repeat the inquest process, the court ruled.
Lawyers for Smith's family are now calling on the coroner to issue summons for all the videos recorded during the injections, and also during each of her 17 prison transfers, so they can be played for the inquest jury.
Thursday, May 19, 2011
Sowing the seeds of discontent in the Conservative Party of Canada,
Louis XIV, the French Sun King, once remarked that for every vacant office he filled, he created 10 malcontents and one ingrate. Stephen Harper may discover the harsh truth of that statement for himself, as his backbench MPs begin to realize that this is as good as it is likely to get.
The new Cabinet unveiled by the Prime Minister Wednesday was familiar to the point of contempt. Mr. Harper said his main focus was on continuity, with changes limited largely to replacing those ministers who retired or were defeated in the election. The existing deck was shuffled to move John Baird to Foreign Affairs and Tony Clement to Treasury Board, where he will be charged with cutting $4-billion a year from the government’s $80-billion a year direct spending budget.
The necessity of geographic balance meant promotions for two Quebec ministers, Christian Paradis, who becomes Industry Minister, and Denis Lebel, who takes the Transport portfolio, as well as the welcome reintroduction of Maxime Bernier to Small Business and Tourism, and Steven Blaney to Veterans Affairs. Quebecers can hardly bleat – they rejected the Conservatives and still ended up with 80% of the provincial Tory caucus in Cabinet.
British Columbians have more reason to question their representation at the top table, having seen their number drop from six to four ministers.
Ed Fast, the Abbotsford MP first elected in 2006 but relatively faceless since then, was given a huge promotion to become International Trade minister – a move that may give some hope to backbenchers whose happy place is a vision of riding in a government limousine.
The line from the Harper government was this a new ministry that will govern for all Canadians – particularly, it seems, those Canadians who voted en masse for the Conservatives for the first time. The Cabinet included new faces from a range of faiths and ethnicities, including Joe Oliver, a Jewish former investment dealer from Toronto, as the new Natural Resources minister; Tim Uppal from Edmonton as the new Minister of State for Democratic Reform; Alice Wong from Richmond as the new Minister of State for Seniors; and Bal Gosal from Bramalea as the new Minister of State for Sport.
Such blatant pandering is understandable, given the Tories’ electoral success, but it is unlikely to sit well with the legions of Tory MPs (I counted 86) who have been waiting patiently on the backbenches for their chance to shine. Two pale male veterans – Rob Merrifield and Rob Moore – were demoted to free up room for the new appointments.
As one person with inside knowledge of the Tory caucus put it: “I think the issue is now all the egos sitting on the backbenches. The bitching won’t start until the fall – everyone will be too impressed with their new Blackberries and travel points. But wait for it.”
This may, in part, explain why Mr. Bernier is back in Cabinet. Anyone with leadership ambitions and time on their hands could find fertile ground to sow discontent in the coming years.
Mr. Harper admitted he is finding it increasingly difficult to craft a Cabinet, as his caucus grows. It has been an incredibly disciplined group since winning government five years ago – the combination of a tight leash from the Prime Minister’s Office and MPs willingness to sanctify themselves. But the Tories are now in the promised land and disillusionment beckons for those who see themselves as Cabinet material – which is all of them.
If he is to keep his governing coalition intact, Mr. Harper could do worse than spend his down-time reading (or re-reading) Doris Kearns Goodwin’s masterful biography of Abraham Lincoln: Team of Rivals. Lincoln’s political genius, she wrote, stemmed from “the ability to form friendships with men who had previously opposed him; to repair injured feelings that, left untended, might have escalated into permanent hostility; to assume responsibility for the failure of subordinates; to share credit with ease; and to learn from his mistakes.”
To be sure, the Prime Minister is no Abraham Lincoln. One former Cabinet minister told me he never got to know the man behind the icy exterior. But, having nullified the immediate threat from the opposition parties, Mr. Harper is going to have to spend more time on Cabinet and caucus management, if he wants to avoid creating an enemy within.
The new Cabinet unveiled by the Prime Minister Wednesday was familiar to the point of contempt. Mr. Harper said his main focus was on continuity, with changes limited largely to replacing those ministers who retired or were defeated in the election. The existing deck was shuffled to move John Baird to Foreign Affairs and Tony Clement to Treasury Board, where he will be charged with cutting $4-billion a year from the government’s $80-billion a year direct spending budget.
The necessity of geographic balance meant promotions for two Quebec ministers, Christian Paradis, who becomes Industry Minister, and Denis Lebel, who takes the Transport portfolio, as well as the welcome reintroduction of Maxime Bernier to Small Business and Tourism, and Steven Blaney to Veterans Affairs. Quebecers can hardly bleat – they rejected the Conservatives and still ended up with 80% of the provincial Tory caucus in Cabinet.
British Columbians have more reason to question their representation at the top table, having seen their number drop from six to four ministers.
Ed Fast, the Abbotsford MP first elected in 2006 but relatively faceless since then, was given a huge promotion to become International Trade minister – a move that may give some hope to backbenchers whose happy place is a vision of riding in a government limousine.
The line from the Harper government was this a new ministry that will govern for all Canadians – particularly, it seems, those Canadians who voted en masse for the Conservatives for the first time. The Cabinet included new faces from a range of faiths and ethnicities, including Joe Oliver, a Jewish former investment dealer from Toronto, as the new Natural Resources minister; Tim Uppal from Edmonton as the new Minister of State for Democratic Reform; Alice Wong from Richmond as the new Minister of State for Seniors; and Bal Gosal from Bramalea as the new Minister of State for Sport.
Such blatant pandering is understandable, given the Tories’ electoral success, but it is unlikely to sit well with the legions of Tory MPs (I counted 86) who have been waiting patiently on the backbenches for their chance to shine. Two pale male veterans – Rob Merrifield and Rob Moore – were demoted to free up room for the new appointments.
As one person with inside knowledge of the Tory caucus put it: “I think the issue is now all the egos sitting on the backbenches. The bitching won’t start until the fall – everyone will be too impressed with their new Blackberries and travel points. But wait for it.”
This may, in part, explain why Mr. Bernier is back in Cabinet. Anyone with leadership ambitions and time on their hands could find fertile ground to sow discontent in the coming years.
Mr. Harper admitted he is finding it increasingly difficult to craft a Cabinet, as his caucus grows. It has been an incredibly disciplined group since winning government five years ago – the combination of a tight leash from the Prime Minister’s Office and MPs willingness to sanctify themselves. But the Tories are now in the promised land and disillusionment beckons for those who see themselves as Cabinet material – which is all of them.
If he is to keep his governing coalition intact, Mr. Harper could do worse than spend his down-time reading (or re-reading) Doris Kearns Goodwin’s masterful biography of Abraham Lincoln: Team of Rivals. Lincoln’s political genius, she wrote, stemmed from “the ability to form friendships with men who had previously opposed him; to repair injured feelings that, left untended, might have escalated into permanent hostility; to assume responsibility for the failure of subordinates; to share credit with ease; and to learn from his mistakes.”
To be sure, the Prime Minister is no Abraham Lincoln. One former Cabinet minister told me he never got to know the man behind the icy exterior. But, having nullified the immediate threat from the opposition parties, Mr. Harper is going to have to spend more time on Cabinet and caucus management, if he wants to avoid creating an enemy within.
Wednesday, May 18, 2011
The federal election campaign appears to have revived Canadians' passion for politics Angus Reid .
The federal election campaign appears to have revived Canadians' passion for politics.
Vancouver-based Angus Reid pollsters have discovered Canadians became more hopeful about politics as the decisive election campaign raged on.
Canadians' revved-up regard for the democratic process held firm even after Stephen Harper's Conservatives won their first majority and the New Democrats for the first time became the official Opposition.
More than 61 per cent of the population told Angus Reid pollsters after the election they were "proud to be Canadian."
"The respect for politicians actually went up during the election campaign. People got engaged," Angus Reid pollster Andrew Grenville said.
Almost half the population agreed a "Conservative majority will be good for Canada," with a solid 64 per cent applauding the NDP's Jack Layton (below left) moving into Stornoway, the Opposition leader's official residence.
Soon after the May 2 election, more than seven out of 10 people agreed that "federal politicians are working very hard to help create a better Canada."
Check out how religion and ethnicity shaped the results
Even though Angus Reid's pollsters sensed fresh political vitality in its survey of 1,019 Canadians, they also found some still harbour distrust of the electoral process.
Almost half of Canadians would prefer some form of proportional representation to our first-past-the-post system, which has allowed the Conservatives and Liberals to form majorities with less than 40 per cent of the popular vote.
In addition, almost two out of three Canadians (and British Columbians) favour "mandatory voting" like in Australia.
Another harbinger of change may be found in how 43 per cent of Canadians support the NDP and Greens forming a coalition, with another 37 per cent backing an NDP-Liberal merger. Of Liberals, a strong two-thirds wanted to join the NDP.
Angus Reid performed an additional experiment to measure Canadians' political pulse, which wound up suggesting the media need to do more to bring citizens into the political process.
An online Angus Reid poll during the live English leaders' debate consistently found viewers expressing strong "annoyance" when the politicians attacked each other.
At the same time, the second-by-second polling revealed Canadians appreciated hearing the politicians' views on issues such as Canada's military role in Afghanistan.
Grenville believes Canadian TV debates could be designed more like U.S. presidential debates, where candidates are discouraged from interrupting.
In further efforts to measure the nation's character, Angus Reid divided Canadians into intriguing clusters of political personalities, such as the "Invigorated Right" and "Serious Cynics."
Angus Reid found 20 per cent of Canadians are part of the law-and-order "Invigorated Right," three-quarters of whom voted Conservative.
At the other end of the spectrum, the pollsters characterized 13 per cent of Canadians as optimistic "Mid-Left Hopefuls," almost half of whom cast their ballots for the NDP.
The biggest cluster - the "Mistrustful Middle" who make up one-third of the electorate - split their vote between the Conservatives, NDP and, to a lesser extent, the Liberals.
Another 18 per cent of Canadians, dubbed "Dashed-Hope Citizens," believe the country is motoring down the wrong track; they avoided the Conservatives and equally supported the NDP and Liberals.
Meanwhile, the "Serious Cynics," the 14 per cent of Canadians who are jaded about the status quo, strongly backed the NDP, handing the party 46 per cent of their ballots.
{Readers can find out their political type by taking the short online Angus Reid quiz at http: //elections.angusreidforum.com).
The polling company's survey also revealed that Canadians generally hold liberal values, except when it comes to serious crime.
Almost four out of five Canadians, but slightly fewer British Columbians, say the courts "need to give much tougher sentences to all those convicted of criminal acts."
However, most Canadians balked at jailing people for minor offences such as breaking and entering, saying: "It does more harm than good."
The live-and-let-live views of Canadians came out strongly on sexual morality, with 83 per cent of Canadians agreeing "the lifestyles of gay and lesbian people are just as valid as those of heterosexual people."
However, Canadians aren't opposed to government intervention on non-bedroom-related issues. Three-quarters of Canadians want stricter environmental regulations, saying they're "worth the cost."
Another 68 per cent of Canadians believe governments need to provide more financial aid to the poor, suggesting most Canadians don't oppose political action for the common good.
Finally, even though a majority of Canadians supported various tax cuts, only one out of five agreed that "government debt should be reduced, even if it means cuts in health care."
While cynicism about politics seems to be common on radio talk shows and blogs, these poll results suggest Canadians have not at all given up on the potential of politics.
Scroll through more Canadian-based polls on politics, religion and immigration
Vancouver-based Angus Reid pollsters have discovered Canadians became more hopeful about politics as the decisive election campaign raged on.
Canadians' revved-up regard for the democratic process held firm even after Stephen Harper's Conservatives won their first majority and the New Democrats for the first time became the official Opposition.
More than 61 per cent of the population told Angus Reid pollsters after the election they were "proud to be Canadian."
"The respect for politicians actually went up during the election campaign. People got engaged," Angus Reid pollster Andrew Grenville said.
Almost half the population agreed a "Conservative majority will be good for Canada," with a solid 64 per cent applauding the NDP's Jack Layton (below left) moving into Stornoway, the Opposition leader's official residence.
Soon after the May 2 election, more than seven out of 10 people agreed that "federal politicians are working very hard to help create a better Canada."
Check out how religion and ethnicity shaped the results
Even though Angus Reid's pollsters sensed fresh political vitality in its survey of 1,019 Canadians, they also found some still harbour distrust of the electoral process.
Almost half of Canadians would prefer some form of proportional representation to our first-past-the-post system, which has allowed the Conservatives and Liberals to form majorities with less than 40 per cent of the popular vote.
In addition, almost two out of three Canadians (and British Columbians) favour "mandatory voting" like in Australia.
Another harbinger of change may be found in how 43 per cent of Canadians support the NDP and Greens forming a coalition, with another 37 per cent backing an NDP-Liberal merger. Of Liberals, a strong two-thirds wanted to join the NDP.
Angus Reid performed an additional experiment to measure Canadians' political pulse, which wound up suggesting the media need to do more to bring citizens into the political process.
An online Angus Reid poll during the live English leaders' debate consistently found viewers expressing strong "annoyance" when the politicians attacked each other.
At the same time, the second-by-second polling revealed Canadians appreciated hearing the politicians' views on issues such as Canada's military role in Afghanistan.
Grenville believes Canadian TV debates could be designed more like U.S. presidential debates, where candidates are discouraged from interrupting.
In further efforts to measure the nation's character, Angus Reid divided Canadians into intriguing clusters of political personalities, such as the "Invigorated Right" and "Serious Cynics."
Angus Reid found 20 per cent of Canadians are part of the law-and-order "Invigorated Right," three-quarters of whom voted Conservative.
At the other end of the spectrum, the pollsters characterized 13 per cent of Canadians as optimistic "Mid-Left Hopefuls," almost half of whom cast their ballots for the NDP.
The biggest cluster - the "Mistrustful Middle" who make up one-third of the electorate - split their vote between the Conservatives, NDP and, to a lesser extent, the Liberals.
Another 18 per cent of Canadians, dubbed "Dashed-Hope Citizens," believe the country is motoring down the wrong track; they avoided the Conservatives and equally supported the NDP and Liberals.
Meanwhile, the "Serious Cynics," the 14 per cent of Canadians who are jaded about the status quo, strongly backed the NDP, handing the party 46 per cent of their ballots.
{Readers can find out their political type by taking the short online Angus Reid quiz at http: //elections.angusreidforum.com).
The polling company's survey also revealed that Canadians generally hold liberal values, except when it comes to serious crime.
Almost four out of five Canadians, but slightly fewer British Columbians, say the courts "need to give much tougher sentences to all those convicted of criminal acts."
However, most Canadians balked at jailing people for minor offences such as breaking and entering, saying: "It does more harm than good."
The live-and-let-live views of Canadians came out strongly on sexual morality, with 83 per cent of Canadians agreeing "the lifestyles of gay and lesbian people are just as valid as those of heterosexual people."
However, Canadians aren't opposed to government intervention on non-bedroom-related issues. Three-quarters of Canadians want stricter environmental regulations, saying they're "worth the cost."
Another 68 per cent of Canadians believe governments need to provide more financial aid to the poor, suggesting most Canadians don't oppose political action for the common good.
Finally, even though a majority of Canadians supported various tax cuts, only one out of five agreed that "government debt should be reduced, even if it means cuts in health care."
While cynicism about politics seems to be common on radio talk shows and blogs, these poll results suggest Canadians have not at all given up on the potential of politics.
Scroll through more Canadian-based polls on politics, religion and immigration
Tuesday, May 17, 2011
Federal prison officials want to keep hidden all reports and videos describing teen inmate Ashley Smith until the inquest into her jail cell death is over, an Ontario coroner was told Monday.
Federal prison officials want to keep hidden all reports and videos describing teen inmate Ashley Smith until the inquest into her jail cell death is over, an Ontario coroner was told Monday.
Lawyers for the family and media representatives, including the Toronto Star, called this ban “unprecedented” and “Orwellian.”
“The acronym CSC (for Correctional Service of Canada) should properly stand for Conceal, Suppress and Contain,” Smith family lawyer Julian Falconer told the court.
A jury will begin hearing evidence Tuesday. More than 30,000 pages of documents and numerous prison videos will be entered as evidence during the inquest, which is expected to last into the fall.
The groups gathered at coroner’s court in Toronto on Monday for what was supposed to be a routine hearing to discuss how the media and public would access these court exhibits.
But the eleventh-hour motion from the prison service complicated matters.
Presiding Coroner Dr. Bonita Porter told the court she would hear the prison service’s arguments next Tuesday. She also deferred her decision on a request to blur the faces of all correctional staff in prison videos that may be copied for the media and the public. The request came from Travis McDonald, a guard at Grand Valley Institution in Kitchener who was on duty when Smith, 19, tied a ligature around her neck and choked to death while staff watched on Oct. 19, 2007.
Smith was punted to the federal system at age 18 to serve out the remainder of her youth sentence. Labeled a difficult inmate, she served most of her time in segregation cells across the country, wearing little more than what the prison service calls a tear-proof suicide smock. The native of Moncton, N.B., was first jailed at 15 after throwing crab apples at a mailman.
The inquest jury will hear its first witness on Tuesday.
Acting detective Patrick Colagiovanni is expected to take most of the day describing Smith’s life story before her federal incarceration.
Five videos depicting Smith’s interactions with staff at Grand Valley Institution are also expected to be shown this week.
While Porter decides whether to allow the prison service’s request to bar the media from getting copies of any reports and videos filed in court until after the jury delivers its verdict, she instructed reporters to fill out a court form requesting materials.
The Smith family is still awaiting a Divisional Court decision after challenging Porter’s earlier ruling on graphic videos showing the young inmate forcibly injected with tranquilizers and strapped to a metal gurney for nearly 12 hours without food, water or a clean tampon at Joliette Institution in Quebec. Additional videos, which the Smith family wanted the jury to see but Porter excluded, show Smith duct-taped to the seat of a plane by a pilot during one of more than a dozen prison transfers between institutions across the country.
The Divisional Court will determine whether the coroner erred in failing to compel the prison service to turn over these videos.
Lawyers for the family and media representatives, including the Toronto Star, called this ban “unprecedented” and “Orwellian.”
“The acronym CSC (for Correctional Service of Canada) should properly stand for Conceal, Suppress and Contain,” Smith family lawyer Julian Falconer told the court.
A jury will begin hearing evidence Tuesday. More than 30,000 pages of documents and numerous prison videos will be entered as evidence during the inquest, which is expected to last into the fall.
The groups gathered at coroner’s court in Toronto on Monday for what was supposed to be a routine hearing to discuss how the media and public would access these court exhibits.
But the eleventh-hour motion from the prison service complicated matters.
Presiding Coroner Dr. Bonita Porter told the court she would hear the prison service’s arguments next Tuesday. She also deferred her decision on a request to blur the faces of all correctional staff in prison videos that may be copied for the media and the public. The request came from Travis McDonald, a guard at Grand Valley Institution in Kitchener who was on duty when Smith, 19, tied a ligature around her neck and choked to death while staff watched on Oct. 19, 2007.
Smith was punted to the federal system at age 18 to serve out the remainder of her youth sentence. Labeled a difficult inmate, she served most of her time in segregation cells across the country, wearing little more than what the prison service calls a tear-proof suicide smock. The native of Moncton, N.B., was first jailed at 15 after throwing crab apples at a mailman.
The inquest jury will hear its first witness on Tuesday.
Acting detective Patrick Colagiovanni is expected to take most of the day describing Smith’s life story before her federal incarceration.
Five videos depicting Smith’s interactions with staff at Grand Valley Institution are also expected to be shown this week.
While Porter decides whether to allow the prison service’s request to bar the media from getting copies of any reports and videos filed in court until after the jury delivers its verdict, she instructed reporters to fill out a court form requesting materials.
The Smith family is still awaiting a Divisional Court decision after challenging Porter’s earlier ruling on graphic videos showing the young inmate forcibly injected with tranquilizers and strapped to a metal gurney for nearly 12 hours without food, water or a clean tampon at Joliette Institution in Quebec. Additional videos, which the Smith family wanted the jury to see but Porter excluded, show Smith duct-taped to the seat of a plane by a pilot during one of more than a dozen prison transfers between institutions across the country.
The Divisional Court will determine whether the coroner erred in failing to compel the prison service to turn over these videos.
Monday, May 16, 2011
Peter Milliken, the soon-to-be-former Speaker of the House of Commons, says Canada's political party leaders have more authority than they need.
Peter Milliken, the soon-to-be-former Speaker of the House of Commons, says Canada's political party leaders have more authority than they need.
In a farewell interview with the CBC, Milliken said a system has developed over time that means a leader has too much say over rank-and-file MPs.
Before the most recent election, held May 2, Milliken stepped down after more than 20 years as a Liberal member of Parliament and a decade at the helm of the House.
As the longest serving Speaker in Canada's history, he has some ideas on how to make Parliament work better. Right now, he said, the leaders of all parties wield too much authority — over everything from which MPs sit on committees to what is said in question period.
"And if your views aren't in accordance with the leader's position on an issue, you will not be speaking on that issue in the House and you won't be asking questions on that issue in the House," Milliken said, in the interview broadcast Saturday on CBC Radio’s The House.
He proposed giving party caucuses more say in such matters and more say in choosing party leaders.
He also said that parties should not be so fixated on unity, and that it's OK if differing opinions are made public.
"They'll try things procedurally they wouldn't bother trying in a majority situation," he said.
Memorable rulings
Some of Milliken's rulings will go down in history.
He found there was evidence that International Development Minister Bev Oda misled Parliament when she said she did not know who had ordered funding to a foreign aid charity cut, only to later tell Parliament that she had ordered the change.
Milliken also forced the ruling Conservatives to find a way to release documents on the Afghan detainee issue, although those documents have yet to be made public.
He also ruled against the government on the matter of producing certain financial documents. That ruling led to the opposition's contempt motion that brought down the government.
In a farewell interview with the CBC, Milliken said a system has developed over time that means a leader has too much say over rank-and-file MPs.
Before the most recent election, held May 2, Milliken stepped down after more than 20 years as a Liberal member of Parliament and a decade at the helm of the House.
As the longest serving Speaker in Canada's history, he has some ideas on how to make Parliament work better. Right now, he said, the leaders of all parties wield too much authority — over everything from which MPs sit on committees to what is said in question period.
"And if your views aren't in accordance with the leader's position on an issue, you will not be speaking on that issue in the House and you won't be asking questions on that issue in the House," Milliken said, in the interview broadcast Saturday on CBC Radio’s The House.
He proposed giving party caucuses more say in such matters and more say in choosing party leaders.
He also said that parties should not be so fixated on unity, and that it's OK if differing opinions are made public.
"They'll try things procedurally they wouldn't bother trying in a majority situation," he said.
Memorable rulings
Some of Milliken's rulings will go down in history.
He found there was evidence that International Development Minister Bev Oda misled Parliament when she said she did not know who had ordered funding to a foreign aid charity cut, only to later tell Parliament that she had ordered the change.
Milliken also forced the ruling Conservatives to find a way to release documents on the Afghan detainee issue, although those documents have yet to be made public.
He also ruled against the government on the matter of producing certain financial documents. That ruling led to the opposition's contempt motion that brought down the government.
Saturday, May 14, 2011
SUPREME COURT OF CANADA : Citation: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 20110513 Dockets: 33300, 33299, 33296, 33297
Source: http://scc.lexum.org/en/2011/2011scc25/2011scc25.html
SUPREME COURT OF CANADA
Citation: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25
Date: 20110513
Dockets: 33300, 33299, 33296, 33297
Between:
Information Commissioner of Canada
Appellant
and
Minister of National Defence
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Prime Minister of Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Minister of Transport Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Commissioner of the Royal Canadian Mounted Police
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 75)
Concurring Reasons :
(paras. 76 to 112)
Charron J. (McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)
LeBel J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
information commissioner v. minister of defence
Information Commissioner of Canada Appellant
v.
Minister of National Defence Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Prime Minister of Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Minister of Transport Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑and ‑
Information Commissioner of Canada Appellant
v.
Commissioner of the Royal Canadian Mounted Police Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
Indexed as: Canada (Information Commissioner) v. Canada (Minister of National Defence)
2011 SCC 25
File No.: 33300, 33299, 33296, 33297.
2010: October 7; 2011: May 13.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Access to information — Access to records — Request for Ministers’ records located in ministerial offices — Whether records “under control of government institution” as provided in legislation — Access to Information Act, R.S.C. 1985, c. A‑1, s. 3, 4(1).
Access to information — Exemptions — Privacy — Personal information — Request for Prime Minister’s agenda — Whether agenda constitutes “personal information” as defined in legislation — If so, whether agenda should nonetheless be disclosed because Prime Minister is “officer” of government institution — Access to Information Act, R.S.C. 1985, c. A‑1, s. 19(1) — Privacy Act, R.S.C. 1985, C. P‑21, s. 3.
These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records, requested almost a decade ago, under the Access to Information Act. The first three applications concern refusals to disclose records located within the offices of then Prime Minister Chrétien, then Minister of Defence Eggleton, and then Minister of Transport Collenette, respectively. The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the RCMP and PCO. The applications judge refused disclosure on the first three applications, but ordered it on the fourth. The Federal Court of Appeal overturned his decision on the fourth application only.
Held: The appeals should be dismissed.
Per McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.: Any refusal to disclose requested documents is subject to independent review by the courts on a standard of correctness. In turn, the standard of appellate review of the applications judge’s decision on questions of statutory interpretation is also correctness. However, the standard of review of his decision on whether the requested documents were in fact under the control of the government institution is one of deference, provided the decision is not premised on a wrong legal principle and absent palpable and overriding error.
On the first three applications, the applications judge’s reasons demonstrate that he conducted a full analysis of the statutes guided by well‑established principles of statutory interpretation. At the conclusion of his analysis, the applications judge held that the words in subsection 4(1) of the Access to Information Act mean that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. The Federal Court of Appeal rightly held that the applications judge’s analysis contains no error. The meaning of “government institution” is clear. No contextual consideration warrants the Court interpreting Parliament to have intended that the definition of “government institution” include ministerial offices.
The question then becomes whether the requested records held within the respective ministerial offices are nonetheless “under the control” of their related government institutions within the meaning of s. 4(1) of the Act. The word “control” is an undefined term in the statute. As the applications judge made clear, the word must be given a broad and liberal meaning in order to create a meaningful right of access to government information. While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry. Rather, this is the point at which a two‑step inquiry commences. Step one acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. If the record requested relates to a departmental matter, however, the inquiry into control continues. Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. There is no presumption of inaccessibility for records in a minister’s office. Further, this test does not lead to the wholesale hiding of records in ministerial offices. Rather, it is crafted to answer the concern. In addition, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct an individual’s right to access.
Applying this test to the material before him, the applications judge concluded that none of the requested records was in the control of a government institution. The conclusions he reached on the issue of control were open to him on the record and entitled to deference.
On the fourth application, it is agreed that the Prime Minister’s agendas in the possession of the RCMP and the PCO were under the control of a “government institution”. Records under the control of these institutions must be disclosed, subject to certain statutory exemptions. Section 19(1) of the Access to Information Act prohibits the head of a government institution from releasing any record that contains personal information as defined in s. 3 of the Privacy Act. However, s. 3(j) creates an exception by allowing for the disclosure of personal information where such information pertains to an individual who is or was an officer or employee of a government institution and where the information relates to the position or function of the individual. The applications judge held that the Prime Minister was an officer of PCO. In doing so, he relied upon the definitions of public officer found in the Financial Administration Act and the Interpretation Act. The Federal Court of Appeal rightly held that the applications judge erred in relying upon these definitions. It would be inconsistent with Parliament’s intention to interpret the Privacy Act in a way that would include the Prime Minister as an officer of a government institution. Had Parliament intended the Prime Minister to be treated as an “officer” of the PCO pursuant to the Privacy Act, it would have said so expressly. Thus, the relevant portions of the Prime Minister’s agenda under the control of the RCMP and the PCO fall outside the scope of the access to information regime.
Per LeBel J.: Ministers’ offices are not listed in Schedule I of the Act, and accordingly they should not be considered “government institutions”. Nonetheless, this conclusion cannot be the basis for an implied exception for political records. The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head of the government institution must facilitate access to it on the basis of the two‑part control test as stated in the reasons of Charron J. If the record holder is the Minister, the fact that his or her office is not part of the government institution he or she oversees may weigh in the balance. The reality that Ministers wear many hats must also be taken into account. A Minister is a member of Cabinet who is accountable to Parliament for the administration of a government department, but is usually also a Member of Parliament in addition to being a member of a political party for which he or she performs various functions and, finally, a private person. It is conceivable that many records will not fall neatly into one category or another. The head of a government institution is responsible for determining whether such hybrid documents should be disclosed. The first step in the assessment is to consider whether the records fall within the scope of the Act. If they do, the head must then perform the second step of the assessment process: to determine whether the records fall under any of the exemptions provided for in the Act. Depending on which exemption applies, the head may or may not have the discretion to disclose the document.
A presumption that a Minister’s records are beyond the scope of the Act would upset the balance between the head’s discretionary powers and the Commissioner’s powers of investigation. Such an interpretation of the Act would effectively leave the head of a government institution with the final say as to whether a given document was under the institution’s control and would run counter to the purpose of the Act, according to which decisions on the disclosure of government information must be reviewed independently. This is crucial to the intended balance between access to information and good governance.
In the circumstances in which the records at issue in the first three applications were created and managed, a government institution would not have a reasonable expectation of obtaining them. These documents were therefore not under the control of a government institution. As for the records in the possession of the RCMP and PCO, even though they were under the control of a government institution, the heads of those institutions had an obligation to refuse to disclose them.
Cases Cited
By Charron J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Tele‑Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305; Francis v. Baker, [1999] 3 S.C.R. 250; Bristol‑Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; Privacy Commissioner (Can.) v. Canada Labour Relations Board (2000), 257 N.R. 66; Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440, 204 F.T.R. 313; Canada (Attorney General) v. Information Commissioner (Can.), 2001 FCA 25, 268 N.R. 328; Canada Post Corp. v. Canada (Minister of Public Works), 2004 FCA 286, 328 N.R. 98; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
By LeBel J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Rubin v. Canada (Clerk of the Privy Council), [1996] 1 S.C.R. 6; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1, ss. 2, 3 “government institution”, “head”, 4, 6, 7 to 9, 10, 13 to 26, 30(3), 35, 36, 37, 41, 42, 48, 49, 73.
Canadian Charter of Rights and Freedoms, s. 2.
Federal Accountability Act, S.C. 2006, c. 9.
Financial Administration Act, R.S.C. 1985, c. F‑11, s. 2 “public officer”.
Interpretation Act, R.S.C. 1985, c. I‑21, ss. 2 “public officer”, 3(1), 24, 35.
Library and Archives of Canada Act, S.C. 2004, c. 11, s. 2 “government record”, “ministerial record”.
Privacy Act, R.S.C. 1985, c. P‑21, s. 3 “head”, “personal information” (j).
Authors Cited
Canadian Oxford Dictionary. Edited by Katherine Barber. Toronto: Oxford University Press, 2001, “control”.
Drapeau, Michel William, and Marc‑Aurèle Racicot. Federal Access to Information and Privacy Legislation Annotated 2011. Toronto: Carswell, 2010.
Levine, Gregory James. The Law of Government Ethics: Federal, Ontario and British Columbia. Aurora, Ont.: Canada Law Book, 2007.
McEldowney, John F. “Accountability and Governance: Managing Change and Transparency in Democratic Government” (2008), 1 J.P.P.L. 203.
APPEALS from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 175, 393 N.R. 51, [2009] F.C.J. No. 692 (QL), 2009 CarswellNat 1521, affirming in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeals dismissed.
APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 181, 393 N.R. 54, 310 D.L.R. (4th) 748, [2009] F.C.J. No. 693 (QL), 2009 CarswellNat 1523, reversing in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeal dismissed.
Jessica R. Orkin, Marlys A. Edwardh, Laurence Kearley and Diane Therrien, for the appellant.
Christopher Rupar, Jeffrey G. Johnston and Mandy Moore, for the respondents.
Ryder Gilliland, for the intervener the Canadian Civil Liberties Association.
Paul Schabas, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and the Canadian Association of Journalists.
The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
Charron J. —
1. Overview
[1] These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records to a person who requested them under the Access to Information Act, R.S.C. 1985, c. A‑1. The records, requested almost a decade ago, generally consist of agendas, notes and emails relating to the activities of then-Prime Minister Jean Chrétien, then‑Minister of National Defence Art Eggleton, and then-Minister of Transport David Collenette.
[2] The first three applications concern refusals to disclose records located within the offices of the Prime Minister, the Minister of National Defence, and the Minister of Transport, respectively. Each record holder, jointly called the “Government” in these appeals, takes the position that his office is not subject to the Access to Information Act. The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the Royal Canadian Mounted Police (“RCMP”) and the Privy Council Office (“PCO”). The record holders in this application agree that they are subject to the Act; they argue, however, that the information contained in the requested records is exempt from disclosure under s. 19(1) of the Access to Information Act, as it constitutes “personal information” within the meaning of s. 3 of the Privacy Act, R.S.C. 1985, c. P-21.
[3] The requester has the right, under s. 4 of the Access to Information Act, to be given access to “any record under the control of a government institution”. On the first three applications, there is no issue that, by definition, “government institution” includes the PCO, the Department of National Defence, and the Department of Transport. The question is whether each government institution includes the office of the Minister who presides over it. In other words: Is the Prime Minister’s office (“PMO”) part of the PCO? Is the office of the Minister of National Defence part of the Department of National Defence? Is the office of the Minister of Transport part of the Department of Transport?
[4] Following a detailed analysis, Kelen J. of the Federal Court of Canada answered no to each question, holding that the respective entities were separate (2008 FC 766, [2009] 2 F.C.R. 86). In his view, the words of the statute read in their ordinary sense, in context, and harmoniously with the scheme of the Act and the intention of Parliament made this clear. Expert evidence on the functioning of government also supported this interpretation. He concluded that “no contextual consideration could warrant the Court interpreting Parliament to have intended the PMO to be part of the PCO for the purposes of the Act. The same is true with respect to ministers’ offices not being part of the respective government institutions” (para. 77). In a brief oral judgment, Sharlow J.A., speaking for the Federal Court of Appeal, upheld Kelen J.’s interpretation of the statute on this point (2009 FCA 175, 393 N.R. 51 (“Decision 1”)), and again in 2009 FCA 181, 393 N.R. 54 (“Decision 2”).
[5] As the ministerial entities were held to be separate, a second question arose: Are the records requested, despite being physically located in the respective offices of the Prime Minister, the Minister of National Defence, or the Minister of Transport, nonetheless “under the control” of the related government institution within the meaning of s. 4 of the Access to Information Act?
[6] After surveying the jurisprudence, Kelen J. concluded that no single factor is determinative of whether a record is under the control of a government institution. However, the relevant factors could usefully be distilled into a two-part test that asks: (1) whether the contents of the document relate to a departmental matter; and (2) whether the government institution could reasonably expect to obtain a copy of the document upon request. If both questions are answered in the affirmative, the document is under the control of the government institution. Kelen J. considered the contents of the records and the circumstances in which they were created, and concluded that none of the records requested was under the control of the related government institution. The Federal Court of Appeal agreed with the control test proposed by Kelen J. It also upheld his decision regarding the requested records, stating that it was open to him to come to this conclusion “by drawing reasonable inferences from the evidence before him, as he did” (Decision 1, at para. 9).
[7] Thus, the answers provided by the courts below on the meaning of “government institution” and “control” effectively disposed of the first three applications in favour of the Government.
[8] In the fourth application, there is no dispute that the RCMP and the PCO are government institutions and that, subject to any exemption under the Access to Information Act, records under their control must be disclosed. While a number of exemptions were at issue in first instance, the question on this appeal is whether the records requested consist of “personal information” within the meaning of s. 19(1) of the Access to Information Act. This provision prohibits the head of a government institution from disclosing “any record … that contains personal information as defined in section 3 of the Privacy Act”. Under this provision, “personal information” “means information about an identifiable individual that is recorded in any form”.
[9] The parties agree that the Prime Minister’s agenda falls within the general definition of “personal information”. However, s. 3 “personal information” (j) of the Privacy Act creates an exception by excluding from the scope of protection such information which pertains to “an individual who is or was an officer or employee of a government institution” and the information “relates to the position or functions of the individual”. The exception seemingly reflects the view that federal officers or employees are entitled to less protection when the information requested relates to their position or function within the government. It is this exception that is arguably at play in the fourth application: the disclosure issue turns on the question of whether the Prime Minister is an “officer” of the PCO within the meaning of s. 3 “personal information” (j) of the Privacy Act.
[10] Kelen J. held that the Prime Minister was an “officer” of the PCO. In a separate judgment, the Federal Court of Appeal overturned his decision, finding that the conclusion reached in the related appeals about the separate nature of the PMO from the PCO governed here as well. Sharlow J.A. held that it would be “inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase ‘officer of a government institution’” in s. 3 (Decision 2, at para. 8).
[11] The Commissioner appeals from the dismissal of each application. She urges the Court to hold that, as “heads” presiding over departments, the Prime Minister and the Ministers are part of these “government institutions” within the meaning of the Access to Information Act, when exercising departmental functions. Similarly, she argues that the Prime Minister is an “officer” of the PCO. Alternatively, if ministerial offices are held to be separate entities, the Commissioner argues that any record relating to a departmental matter is presumptively under the “control” of the government institution over which the Minister presides, regardless of its creation or location within the ministerial office. Thus, any such record must be disclosed, unless it is specifically exempt under the Act.
[12] While the Commissioner raises some specific issues regarding the interpretation in the courts below in support of her position, her arguments are grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. I note at the outset that these principles unquestionably form part of the context in which the Access to Information Act operates. The position advanced by the Commissioner also reflects a policy of democratic governance which Parliament could choose to adopt. However, as Kelen J. aptly noted in the introduction to his judgment:
The question for the Court is not whether the documents should be accessible to the public under Canada’s “freedom to information” law, but whether the documents are currently accessible to the public under Canada’s existing law. The Court does not legislate or change the law; it interprets the existing law (para. 3).
[13] Much as the courts below have concluded, it is my view that the interpretation advanced by the Commissioner on the meaning of “government institution”, “control” and “officer” cannot be sustained under the existing statutes at issue. As the Government rightly argues, such interpretation would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament.
[14] I would dismiss the appeals.
2. The Legislative Scheme
[15] As this Court recently stated, “[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin C.J. and Abella J., at para. 1). These general principles are reflected in the federal access regime under the Access to Information Act. The purpose of the statute is expressly stated as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
[16] Thus, the statute expressly recognizes that information in the hands of government institutions “should be available to the public”, but the right to access it is subject to “necessary exceptions”. Before discussing the provisions at issue, I will briefly describe the legislative scheme.
[17] The right to “be given access to any record under the control of a government institution” is provided under s. 4(1). This broad right of access is expressly subject to other provisions of the Access to Information Act, but supersedes “any other Act of Parliament”. What constitutes a “government institution” for the purposes of the statute is key to these appeals. The definition is set out in s. 3 and will be discussed more fully below.
[18] The process for accessing government information begins when a member of the public makes a request in writing for a record to a government institution (s. 6). The head of the government institution who receives a request must give written notice to the person who has requested the records as to whether or not access will be given in whole or in part within a reasonable time limit (ss. 7 to 9). Where the government institution refuses to give access to the records requested, it is required to provide notice to the requester that the records do not exist, or to expressly state the exemption it is relying upon in refusing to provide access to the records (ss. 10(1) to (3)). Further, the government institution must inform the requester of his or her “right to make a complaint to the Information Commissioner about the refusal” (s. 10(1)).
[19] If the requester elects to exercise this right and makes a complaint, the Commissioner is entitled to commence an investigation if she is “satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act” (s. 30(3)). Once the Commissioner commences an investigation, the Access to Information Act grants her significant investigatory powers (s. 36). If the Commissioner concludes that the complaint is well founded, a report is sent to the head of the government institution containing the findings of the investigation and any recommendations the Commissioner considers appropriate; the report may also include a request to be notified of any action taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (s. 37(1)).
[20] If the government institution elects not to comply with the Commissioner’s recommendations, the individual requesting the record may apply for judicial review pursuant to s. 41 of the Access to Information Act. The Commissioner may also apply for judicial review of the government’s decision with the consent of the individual who initially requested the records (s. 42). The latter is what occurred here. The Government refused to disclose the information, and the requester complained to the Commissioner. Following her investigation, the Commissioner found the complaints to be well founded and made recommendations accordingly. The recommendations were not implemented by the Government, and the Commissioner brought these four applications for judicial review.
3. Judicial Review in the Courts Below
[21] The four applications for judicial review were combined in one hearing before the Federal Court. Before reviewing the relevant material, Kelen J. determined the appropriate standard of review in accordance with the principles set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Under Dunsmuir, courts may usefully first inquire whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be given to a particular category of questions. Second, where the first inquiry proves unfruitful, courts proceed to analyze the factors that make it possible to identify the proper standard of review (para. 62). Kelen J. ended the inquiry at the first step, holding that this Court’s decision in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 (“RCMP”), determined in a satisfactory manner that the questions raised in these four applications should be reviewed on a “correctness” standard (para. 36).
[22] The standard for judicial review of refusals by government institutions to disclose any requested documents under the Access to Information Act is not at issue in these appeals. Kelen J. rightly concluded that this Court authoritatively determined the matter in RCMP. Determining the appropriate standard of review requires courts to discern the intention of the legislature. Of particular note here is the fact that Parliament expressly states in s. 2(1) that one of the purposes of the Access to Information Act is to ensure that “decisions on the disclosure of government information should be reviewed independently of government”. Moreover, the burden is put on the government to demonstrate on judicial review that it is authorized to refuse to disclose the records that were requested (s. 48). If the court concludes that the head of the institution does not have the legal authority to refuse to disclose the relevant records, the court may substitute its own decision and order the disclosure of the documents, subject to any conditions it may elect to impose (s. 49).
[23] In turn, Kelen J.’s decision is subject to appellate review in accordance with the principles set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9 and 31-36. His decision on questions of statutory interpretation is reviewable on a standard of correctness. His decision on whether the requested documents were in fact under the control of the government institution, provided it is not premised on a wrong legal principle and absent palpable and overriding error, is entitled to deference. Although not expressly stated, it is apparent from reading both judgments in the Federal Court of Appeal below that Sharlow J.A. reviewed Kelen J.’s decision in accordance with the proper standard of appellate review. I will review the decisions under appeal using the same approach.
4. Analysis
4.1 Issue 1: Is the Office of the Prime Minister, or a Minister, a “Government Institution” Within the Meaning of the Access to Information Act?
[24] Subsection 4(1) of the Access to Information Act reads as follows:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
[25] Under s. 3 of the Act:
“government institution” means
(a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and
(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act;
[26] Schedule I sets out a list of entities that are government institutions for the purposes of the Access to Information Act. This list includes the PCO, the Department of National Defence, the Department of Transport, and the RCMP. However, the PMO, the office of the Minister of National Defence and the office of the Minister of Transport are not expressly listed in Schedule I. The term “government institution” is similarly defined under the Privacy Act. The question becomes whether Parliament intended to implicitly include ministerial offices within the Access to Information Act.
[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. In addition to this general roadmap, a number of specific rules of construction may serve as useful guideposts on the court’s interpretative journey. Kelen J. instructed himself accordingly (paras. 43-49). He then conducted the following analysis:
First, Kelen J. considered evidence from political scientists about how government actually works to determine the ordinary meaning of the term “government institution” according to the experts. He held that this evidence demonstrated that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible (paras. 50-52).
Second, he noted that pursuant to s. 3 of the statute, the Minister is the “head” of his or her department. This fact supported the argument that the Ministers’ offices and the PMO are part of their respective departments. However, he found that the PMO and the Ministers also have many other functions unrelated to the respective departments for which they are responsible (paras. 53-56).
Third, he considered Hansard debates from 1981, which made it clear that Parliament intended that the Access to Information Act apply to information, in any form, held by specified government institutions. While the Commissioner agrees that Parliament did not intend the Act to apply to political documents, no exemption or exclusion for such political records is provided for in the Act. Kelen J. therefore reasoned that an interpretation of “government institution” that included the PMO and offices of the Ministers would dramatically extend the right of access. Parliament would not have intended such a “dramatic result” without express wording to that effect (paras. 57-60).
Fourth, following the enactment of the Access to Information Act, the Information Commissioner’s 1988-1989 Report to Parliament indicated that Ministers’ offices were not subject to the provisions of the Act. The Commissioner adopted the same view in 1992, and again in 1997. These original interpretations confirm that the office of the Information Commissioner itself understood the intent of Parliament was not to include the PMO or a Minister’s office in the government institutions listed in Schedule I of the Act (paras. 61-65).
Fifth, since the time the Commissioner publicly urged Parliament to amend the legislation to clarify that the PMO and ministerial offices are subject to the Act, Parliament amended the Act several times, including recent amendments as part of the 2006 Federal Accountability Act, S.C. 2006, c. 9, and has not chosen to make this amendment. While Parliament’s intention may not always be inferred from legislative silence, in this case, the silence is clear and constitutes relevant evidence of legislative intent: Tele-Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305, at para. 42 (paras. 66-67).
Sixth, the Latin maxim of statutory interpretation expressio unius est exclusio alterius (“to express one thing is to exclude another”) supports the Government’s view. If Parliament had intended to include the PMO and Ministers’ offices in Schedule I, it would have referred to them expressly (para. 68).
Seventh, the evidence at trial demonstrated that there have been many Ministers without a portfolio since Confederation. If the Access to Information Act was intended to apply to the offices of Ministers, the Act would not apply to a Minister without a portfolio because he or she would not have a corresponding “government institution” set out in Schedule I. Such a result is absurd (para. 69).
Eighth, the internal structure of the Act also provides insight on this question. Paragraphs 21(1)(a)-(b), s. 21(2)(b) and s. 26 of the Access to Information Act demonstrate that Parliament distinguished between a “government institution” and “a minister of the Crown”. When drafting legislation, Parliament is assumed to have used words precisely and carefully, and so Parliament intended the terms to have different meanings (paras. 70-73).
Ninth, provisions of the Library and Archives of Canada Act, S.C. 2004, c. 11, also draw a distinction between governmental records and ministerial records. The principle of consistent expression in statutory interpretation means that Parliament distinguishes between a “ministerial record” and a “departmental record” (paras. 74-76).
[28] At the conclusion of his analysis, Kelen J. held that the words in s. 4(1) of the Access to Information Act mean that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. That is, the PMO cannot be interpreted as part of the PCO, the office of the Minister of National Defence is not part of the Department of National Defence, and the office of the Minister of Transport is not part of the Department of Transport.
[29] The Commissioner presents very little argument on any of the above‑noted points. As I understand her submissions, she has only two specific complaints about the approach adopted by Kelen J. and affirmed by the Federal Court of Appeal. First, she argues that the applications judge erred in his use of expert evidence as an interpretative aid. Second, and somewhat related to the first point, she argues that the Federal Court of Appeal erred in relying on a non-existing “constitutional convention” for distinguishing between ministerial offices and their respective government departments. I will therefore deal specifically with these two arguments.
4.1.1. The Use of Expert Evidence
[30] After setting out the relevant principles of statutory interpretation, Kelen J. briefly considered the evidence tendered from “experts in government machinery” (para. 50). In particular, he examined the evidence of Mr. Nicholas d’Ombrain, Mr. Justice John Gomery, and a reference relied upon by Mr. d’Ombrain from the Honourable Robert Gordon Robertson, Clerk of the Privy Council and Secretary to the Cabinet from 1963 to 1975. Kelen J. summarized the gist of this evidence as follows, at paras. 50-51:
While the two entities work closely together on some matters, the PMO is responsible for many matters unrelated to the PCO. The same is true with respect to the relationship between a minister’s office and the department over which the minister presides.
Accordingly, the evidence demonstrates that in the ordinary sense of the words in subsection 4(1) of the Act, the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible.
[31] The Commissioner submits that reliance upon such expert evidence to interpret the Access to Information Act constitutes an error of law. She maintains that it was entirely appropriate for her office to consider expert political science evidence at the investigatory stage. However, opinion evidence is inadmissible in the courtroom to prove the ordinary meaning of legislative terms, “as the interpretation and articulation of domestic law lies at the very heart of the judicial function” (A.F., at para. 110). She contends that this approach confirms that both courts below “viewed the central issue of the reach of a ‘government institution’ as a question of fact, to be determined primarily if not entirely on the basis of expert evidence” (para. 112). She argues further that the courts below “did not at any point seek to determine what was included within a ‘government institution’ as a matter of law”; rather, they simply accepted “the assertion that a ministerial office is separate from the department over which the Minister presides” (para. 112).
[32] In response, the Government first observes that the Commissioner’s position on this point is “particularly curious”, as the expert evidence generated by the Commissioner’s office and compiled for her investigation was used extensively to support her recommendations and then placed in the record before the Federal Court (R.F., at para. 103). In any event, the Government submits that expert evidence can be properly used as an interpretive aid in discerning the ordinary meaning of words by Parliament when such evidence is relevant and reliable: Francis v. Baker, [1999] 3 S.C.R. 250, at para. 35; and Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 47. Further, Kelen J.’s reasons demonstrate that the expert evidence played a limited role in his analysis. He did not rely on any expert opinion on the meaning of the words used by Parliament as contended, given that no such opinion was tendered by the witnesses. He considered this evidence, rather, to situate the interpretative exercise in its proper context, an approach which was then correctly upheld by the Federal Court of Appeal.
[33] I agree with the Government. No objection was raised in respect of this evidence in first instance, not surprisingly in my view, as consideration of expert evidence in the context of these applications was entirely appropriate. It is also apparent from Kelen J.’s reasons that he merely relied upon the expert evidence tendered by both parties to better appreciate the day-to-day workings of the government and to situate his interpretation of the Access to Information Act within its proper context. Further, Kelen J.’s meticulous analysis of the law belies any contention that he “viewed the central issue of the reach of a ‘government institution’ as a question of fact” (para. 112). His reasons demonstrate, rather, that he conducted a full analysis of the text, guided by well-established principles of statutory interpretation. I see no merit to the Commissioner’s argument on the alleged misuse of expert evidence.
4.1.2. Alleged Reliance on a Non-Existing Constitutional Convention
[34] Along the same lines, the Commissioner takes issue with Sharlow J.A.’s characterization of the distinction between ministerial offices and their respective government departments as a “well understood convention” (Decision 1, at para. 7; Decision 2, at para. 7). The Commissioner focuses a significant portion of her argument on the legal criteria for a constitutional convention and takes the position that none is met here. She therefore argues that this phrase demonstrates that the Federal Court of Appeal “erroneously accorded constitutional weight to a disputed, ill-defined and inconsistently followed practice” (A.F., at para. 116).
[35] The Government responds that the Commissioner used the term “convention” in her material in the courts below simply to describe an understanding of the roles and duties of Ministers and government institutions. The Government submits that, similarly, when Sharlow J.A. used the phrase “well understood convention”, it is clear from the context that she was simply referring to the day-to-day workings or “conventions” of government.
[36] Again, I agree with the Government on this point. I find no support at all in the record for the suggestion that Sharlow J.A. was actually referring to constitutional conventions in their legal sense.
4.1.3 “Function-Based” Approach Advocated by the Information Commissioner
[37] Except for the above-noted specific complaints about the use of expert evidence and the reliance on government “conventions”, the Commissioner’s arguments are grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. The Commissioner expounds on these principles in considerable detail and submits that “the right of access and apparatus created by [the Access to Information Act was] meant [by Parliament] to be integrated into these legal rules” and “to function as a supplementary mechanism to ensure accountability for the exercise of executive power” (A.F., at para. 102). She therefore urges the Court to adopt a “function-based analysis” so as to create a dividing line between a Minister’s departmental functions on the one hand and non-departmental functions on the other. She explains in her factum that this “analysis is easily translated into the scheme” of the Access to Information Act in respect of the ministerial offices at issue in the following manner (A.F., at para. 150):
… a record is subject to [the Access to Information Act], regardless of its physical form or location, where it was created by or on behalf of a Minister to document or give effect to a Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions. By contrast, the record is not subject to [the Access to Information Act] if it is created by the Minister or exempt staff for political or non-departmental purposes. Similarly, if the Minister or exempt staff receive information from departmental staff, and then generate further records for political, non-departmental purposes, the additions are not subject to [the Access to Information Act].
[38] The Commissioner further submits that a similar analysis could be adopted in relation to Ministers of State “[t]o the extent that a Minister of State exercises the powers, duties and functions of a department”, and also “in relation to government institutions other than departments that fall within the portfolio responsibilities of a given Minister (or Minister of State)” (A.F., at paras. 152-53).
[39] The Government submits that the “function-based” approach advocated by the Commissioner renders the list of institutions detailed in Schedule I essentially meaningless. Her approach is entirely focused on the nature and content of the record and, as such, conflates the issue of defining “government institution” with the issue of how one determines which entity has “control” of a specific record. Moreover, although the Commissioner recognizes that political and non-departmental matters would not be subject to release under the Act, the statute provides no exemption for such records. Her attempt to remedy this deficiency by conceptually building it into a function-based definition of “government institution” goes “well beyond any concept of statutory interpretation recognized by this or any other Court” (R.F., at para. 129).
[40] I agree with the Government. None of the broad principles relied upon by the Commissioner is contentious in these appeals. In my respectful view, nor are they particularly helpful in answering the questions of statutory interpretation at issue. For example, the Commissioner relies heavily on the quasi-constitutional characterization of the Access to Information Act. (See Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, where the Court affirmed this status in respect of the Official Languages Act and the Privacy Act (paras. 23-25)). She argues that, as such, the purpose of the Act becomes of paramount importance in the interpretative exercise, and that the legislation should be interpreted broadly in order to best promote the principles of responsible government and democratic accountability. While I agree that the Access to Information Act may be considered quasi-constitutional in nature, thus highlighting its important purpose, this does not alter the general principles of statutory interpretation. The fundamental difficulty with the Commissioner’s approach to the interpretation of the term “government institution” is that she avoids any direct reference to the legislative provision at issue. The Court cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted.
[41] It is important to recall that Parliament’s statement of purpose in s. 2 of the Act recognizes that exceptions to public accessibility are “necessary”. For example, in s. 21, Parliament has recognized the need for confidential advice to be sought by and provided to a Minister and, consequently, records in a government institution offering such advice are exempt from disclosure at the discretion of the head of the institution. The advice provided to a Minister may come from a variety of sources and may pertain to a broad range of matters, including matters relating to the department over which the Minister presides. Some of these matters may have a political dimension and some may not. Similarly, the policy rationale for excluding the Minister’s office altogether from the definition of “government institution” can be found in the need for a private space to allow for the full and frank discussion of issues. As the Government rightly submits: “It is the process of being able to deal with the distinct types of information, including information that involves political considerations, rather than the specific contents of the records” that Parliament sought to protect by not extending the right of access to the Minister’s office (R.F., at para. 82). Of course, not all documents in a Minister’s office are excluded from the scope of the Act. As we shall see, despite its physical location in a ministerial office, any document which is “under the control” of the related, or any other, government institution is subject to disclosure.
[42] The functional approach advocated by the Commissioner not only creates the problem identified by Kelen J. that some Ministers would be covered by the Act, whereas others would not. It also ignores the practical difficulty of carving out a political class exemption when none is provided in the Act. If a Minister’s office is a government institution, all records under its control would be subject to release under the Act, unless expressly exempted or excluded by the Act. The proposal of carving out “political” documents based on an analysis of their content is easier said than done. As the Government notes, “records in a Minister’s office are not neatly arranged into clearly defined ‘political’, ‘constituent’ and ‘departmental’ piles. The intermingling of these issues and facts is what makes the Minister’s office unique. The simplistic approach of ‘carving out’ political records is unrealistic” (R.F., at para. 88).
[43] Of course, Parliament could have opted for a different access scheme. However, it did not. Kelen J.’s interpretative analysis contains no error. The meaning of “government institution” is clear. In my view, the courts below rightly concluded that no contextual consideration warrants the Court interpreting Parliament to have intended that the definition of “government institution” include ministerial offices. I would not give effect to this ground of appeal.
4.2 Issue 2: Are the Records Requested, Despite Their Physical Location in the Respective Ministerial Offices, “Under the Control” of the Related Government Institution Within the Meaning of Section 4 of the Access to Information Act?
[44] In light of my conclusion regarding the first issue, the question then becomes whether the requested records held within the respective ministerial offices are nonetheless “under the control” of their related government institutions within the meaning of s. 4(1) of the Act. Kelen J. concluded that they were not, and the Federal Court of Appeal upheld his decision. The Commissioner appeals from this conclusion.
[45] None of the Commissioner’s arguments is directed at the findings of fact made by Kelen J. regarding the particular records requested. The success of the Commissioner’s appeal on this point is dependent, rather, on whether the Court accepts her proposed test for determining what constitutes “control” for the purposes of access under the Act. As I will explain, the test for control proposed by the Commissioner is entirely focussed on the function or content of the record and, in substance, is essentially the same as the test she proposes for defining a “government institution”. Consequently, much for the reasons stated above, the Commissioner’s interpretation of the word “control” cannot be sustained as it finds no support in the wording of the Act.
[46] First, I will review the control test adopted by the courts below.
[47] The word “control” is an undefined term in the statute. Its meaning has been judicially considered in a number of cases, and Kelen J. turned to this jurisprudence for guidance. In particular, he reviewed the following cases: Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.); Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.); Privacy Commissioner (Can.) v. Canada Labour Relations Board (2000), 257 N.R. 66 (F.C.A.); Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440, 204 F.T.R. 313; Canada (Attorney General) v. Information Commissioner (Can.), 2001 FCA 25, 268 N.R. 328; and Canada Post Corp. v. Canada (Minister of Public Works), 2004 FCA 286, 328 N.R. 98. From this jurisprudence, Kelen J. gleaned a number of principles, which I will paraphrase as follows.
[48] As “control” is not a defined term in the Act, it should be given its ordinary and popular meaning. Further, in order to create a meaningful right of access to government information, it should be given a broad and liberal interpretation. Had Parliament intended to restrict the notion of control to the power to dispose or to get rid of the documents in question, it could have done so. It has not. In reaching a finding of whether records are “under the control of a government institution”, courts have considered “ultimate” control as well as “immediate” control, “partial” as well as “full” control, “transient” as well as “lasting” control, and “de jure” as well as “de facto” control. While “control” is to be given its broadest possible meaning, it cannot be stretched beyond reason. Courts can determine the meaning of a word such as “control” with the aid of dictionaries. The Canadian Oxford Dictionary defines “control” as “the power of directing, command (under the control of)” (2001, at p. 307). In this case, “control” means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a “partial” basis, a “transient” basis, or a “de facto” basis. The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act (paras. 91-95).
[49] In applying these principles to the records at issue, Kelen J. articulated the following test, at para. 93:
Upon review by the Court, if the content of a document in the PMO or the offices of the Ministers of National Defence and Transport relates to a departmental matter, and the circumstances in which the document came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with the subject-matter, then that document is under the control of the government institution.
[50] The Federal Court of Appeal agreed with this test, holding that, in the context of these cases where the record requested is not in the physical possession of a government institution, the record will nonetheless be under its control if two questions are answered in the affirmative: (1) Do the contents of the document relate to a departmental matter? (2) Could the government institution reasonably expect to obtain a copy of the document upon request? (Decision 1, at paras. 8-9).
[51] As I understand her arguments, the Commissioner does not take issue with any of the principles Kelen J. gleaned from his review of the relevant jurisprudence. Indeed, she substantially adopts these principles in her factum at para. 168 and rightly so. Those principles should inform the analysis. Her complaint lies, rather, with how these principles were distilled into the two-step inquiry described above. She submits that the courts below have erred in law by essentially reducing the legal inquiry concerning “control” to two seemingly simple factual questions — whether the record relates to a departmental matter and whether senior members of the departmental staff could request and obtain a copy of the record. She submits that these factual indicia can be too easily manipulated by government actors to avoid releasing documents that validly fall within the scope of the Act. In particular, she submits that the “mechanism of a hypothetical request” under step two of the test is weak and unacceptable as it “inappropriately relies on past practices and prevalent expectations, rather than the legal relationships at issue” (A.F., at para. 169). Put more colloquially, she argues that if this Court adopts the control test articulated in the courts below, the Minister’s office may effectively become a “black hole” used to shield certain sensitive documents that properly fall within the ambit of the Access to Information Act (A.F., at para. 162).
[52] I agree with the Commissioner that it would be an error to interpret the words “under the control” in a manner that allowed government actors to turn the Minister’s office into a “black hole” to shelter sensitive records that should otherwise be produced to the requester in accordance with the law. However, as I will explain, I am not persuaded that the courts below erred as she contends. In essence, the Commissioner’s complaint on this ground of appeal is based on the same criticism of the institutional distinction between the Minister and the department over which he or she presides argued under the first ground. This is readily apparent from the alternative test that she proposes. In order to counter the “black hole” problem, the Commissioner urges the Court to hold that a record in a Minister’s office is under the control of the corresponding government institution when the following two conditions are met:
(a) the record was obtained or generated by the Minister or on his or her behalf; and
(b) the record documents or gives effect to the Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions. [A.F., at para. 172]
[53] As the Government rightly responds, the test for control proposed by the Commissioner effectively eliminates the need to consider the definition of “government institution”. As the Government puts it in its factum: “If the function or content of the record determines control, then it does not matter if the record is in a government institution or a Minister’s Office, as they are the same entity for the purposes of determining ‘control’” (R.F., at para. 179). I agree. A decision on the issue of control based almost exclusively on the content of the record would have the effect of extending the reach of the Act into the Minister’s office where, as discussed earlier, Parliament has chosen not to go.
[54] Further, the Commissioner’s argument on the deficiency of the control test crafted by the courts below presupposes that the two-part distillation of the test, particularly as articulated by the Federal Court of Appeal, is not intended to fully capture the principles upon which the test was crafted. I do not read the judgments below as having that effect. As Kelen J. made clear, the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information. While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry. The Minister’s office does not become a “black hole” as contended. Rather, this is the point at which the two-step inquiry commences. Where the documents requested are not in the physical possession of the government institution, the inquiry proceeds as follows.
[55] Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
[56] Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly.
[57] My colleague LeBel J. agrees with this control test, but takes exception to the creation of “an implied presumption that the public does not have a right of access to records in a Minister’s office” (para. 76). With respect, his concern is founded on a misinterpretation of these reasons. There is no presumption of inaccessibility. As LeBel J. rightly notes, at para. 91:
The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head must facilitate access to it on the basis of the procedure and the limits specified in the Act.
[58] I agree. Conversely, if a document is under the control of the Minister’s office and not under the control of the related, or any other, government institution, it does not fall within the purview of the Access to Information Act. If one views this result as creating a factual “presumption of inaccessibility”, or alternatively an implied exemption for political records, in my respectful view, it is a consequence that inevitably flows from the fact that Ministers’ offices are not government institutions within the meaning of the Act, a conclusion with which LeBel J. agrees.
[59] Thus, the test articulated by the courts below, properly applied, does not lead to the wholesale hiding of records in ministerial offices. Rather, it is crafted to answer the concern. In addition, as the Government rightly notes, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct an individual’s right to access. My colleague reviews some of these investigatory powers. It is true, as he points out, that the statutory power to enter any “government institution” would not allow the Commissioner to enter a Minister’s office. However, again here, it seems to me that this result inevitably flows from the limited scope of the term “government institution” and must be taken to have been intended by Parliament. I disagree with my colleague that this limitation on the Commissioner’s powers effectively leaves the Minister as head of the government institution with the final say as to whether a given document is under the control of a government institution (para. 109). The Commissioner has significant powers of investigation that include the authority to “summon and enforce the appearance of persons”, including Ministers, “and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record”: s. 36(1)(a). Further, as an additional safeguard, any refusal to disclose requested records is subject to independent review by the courts on a standard of correctness.
[60] In the result, I agree with the Federal Court of Appeal that the two questions posed by Kelen J. were adequate to determine whether the records requested in the three applications at issue were under the control of a government institution. It is also clear from his detailed analysis that he considered all relevant factors on an objective basis, as discussed above. Applying this test to the material before him, he concluded that none of the requested records was in the control of a government institution. In brief, he disposed of the first three applications on the following bases.
[61] First, the Prime Minister’s agendas were not under the control of the PCO. The agendas were created by the Prime Minister’s exempt staff and were always in possession of the Prime Minister or his exempt staff. No “government institution” had physical possession of the records or the right to obtain them.
[62] Second, the Minister of Transport’s unabridged and abridged agendas were not under the control of a government institution. The unabridged agendas were always in the possession of the Minister’s office and were not provided to the Deputy Minister or anyone else in the government institution. The abridged agendas were in the possession of the government institution for a limited time, but were not kept after the relevant date and there was no expectation that the Minister’s office would provide the agendas for a second time.
[63] Third, the notebooks held in the Minister of National Defence’s office were not under the control of the Department of National Defence. They were created and maintained by exempt staff for their personal use and would not have been produced to government officials. While the Minister relied upon his exempt staff for taking notes of meetings, he himself never looked at the notes. The emails also were not under the control of the Department of National Defence. They did not contain substantive information about departmental matters.
[64] As stated earlier, the Commissioner presents virtually no argument in respect of the findings of fact made by Kelen J. I agree with the Federal Court of Appeal that the conclusions reached by Kelen J. on the issue of control were open to him on the record and entitled to deference.
[65] I would not give effect to the second ground of appeal on the issue of control. Consequently, I would dismiss the Commissioner’s appeals on the first three applications with costs.
[66] On the fourth application, it is agreed that the Prime Minister’s agendas in the possession of the RCMP and the PCO were under the control of a “government institution” for the purposes of the Access to Information Act. Therefore, this brings us to the final issue.
4.3 Issue 3: Are the Prime Minister’s Agendas at Issue Exempt or Excluded From Disclosure Pursuant to Section 19 of the Access to Information Act and Section 3(j) of the Privacy Act?
[67] The definition of “government institution” is the same under both the Access to Information Act and the Privacy Act. The RCMP and the PCO are specifically listed in Schedule I and, as such, are government institutions. Records under their control must be disclosed, subject to certain statutory exemptions. Section 19(1) of the Access to Information Act prohibits the head of a government institution from releasing any record that contains “personal information as defined in section 3 of the Privacy Act”. However, s. 3(j) creates an exception by allowing for the disclosure of personal information where such information pertains to “an individual who is or was an officer or employee of a government institution” and where the information in question “relates to the position or functions of the individual”. In short, the s. 3(j) exception will apply, and those parts of the Prime Minister’s agenda that relate to his job must be disclosed, if the Prime Minister is an “officer … of a government institution”.
[68] Under both statutes, the “head” of a government institution includes “in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada”. The Prime Minister is the head of the PCO under this definition. The term “officer”, however, is not defined. The question is whether the Prime Minister as “head” of a government institution is also an “officer” of that institution.
[69] Kelen J. held that he was. In reaching this conclusion, he relied upon the definition of “public officer” found in the Financial Administration Act, R.S.C. 1985, c. F-11, s. 2, which includes “a minister of the Crown and any person employed in the federal public administration”. He also relied on the definition of “public officer” in the Interpretation Act, R.S.C. 1985, c. I-21, s. 2, which includes “any person in the federal public administration who is authorized by or under an enactment to do or enforce the doing of an act or thing or to exercise a power, or on whom a duty is imposed by or under an enactment” (para. 107).
[70] The Federal Court of Appeal reversed this finding, holding that Kelen J. “erred in law in importing into the Privacy Act the definitions of ‘public officer’ from statutes dealing with different subjects that use that term in different contexts” (Decision 2, at para. 5). In its view, “[t]he same understanding about the special governmental role of the Prime Minister” discussed in the first three applications “would have formed part of the foundation for the drafting of the Privacy Act” (para. 8). The Federal Court of Appeal concluded that it would be inconsistent with Parliament’s intention to interpret the Privacy Act in a way that would include the Prime Minister as an officer of a government institution.
[71] I agree with the Federal Court of Appeal that Kelen J. erred in relying on the definition of “public officer” in two other statutes. It is clear that the definition of “public officer” found in the Financial Administration Act is a broad definition which deals with an unrelated subject and operates in a different context. The definition contained in the Interpretation Act could arguably be relevant, as s. 3(1) states: “Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act”. However, I find no support for incorporating the definition of “public officer” in this context. First, while there may be overlap between the two terms, the term “public officer” used in the Interpretation Act is simply not the same as the term “officer … of a government institution” used in the Privacy Act. Second, the definition “public officer” is contained in the list of definitions under s. 2 of the Interpretation Act, which is expressly stated to apply “[i]n this Act”. The definition is not repeated in the definitions contained in s. 35, which conversely, apply “[i]n every enactment”. Finally, the Interpretation Act itself differentiates between a “public officer” and a “minister of the Crown” (see, for example, s. 24). In my view, the Federal Court of Appeal rightly concluded that the meaning of “officer of a government institution” must be ascertained in its proper context.
[72] In effect, the Commissioner’s position on this issue follows the same rationale underlying her arguments on the other grounds of appeal. She argues in favour of a function-based approach in order to interpret the term “officer”, according to which a Minister would be considered an officer of a government institution when exercising powers in relation to the institution, and not an officer of a government institution when exercising powers unrelated to the institution. The problem with this approach, however, is that there is nothing in either statute suggesting that a person might be an officer for some purposes and not for others.
[73] Nor is there any support in either statute for finding that a Minister is intended to be an “officer” of the government institution simply because he is the “head” of that institution. In fact, s. 73 of the Access to Information Act suggests the opposite, given that it provides that the “head” of the government institution may delegate powers and duties under the Act to one or more “officers or employees” of the government institution. A distinction is therefore drawn between “head” and “officer” in that provision. Further, as noted earlier in discussing the definition of “government institution”, s. 21 of the Access to Information Act also makes a distinction between “officer”, “employee”, and “minister”.
[74] Finally, as this Court explained in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (per La Forest J. in dissent but not on this point), and reiterated in RCMP, the Access to Information Act and the Privacy Act are to be read together as a seamless code. The interpretation of Kelen J. and the Commissioner would create discordance between the two statutes. Under the Access to Information Act, a Minister or Prime Minister would not be part of a government institution, while under the Privacy Act, he would be considered an “officer” of the government institution. I agree with the Federal Court of Appeal. Had Parliament intended the Prime Minister to be treated as an “officer” of the PCO pursuant to the Privacy Act, it would have said so expressly. Applying s. 3(j) of the Privacy Act to the relevant portions of the Prime Minister’s agenda under the control of the RCMP and the PCO, I conclude that they fall outside the scope of the access to information regime.
[75] I would therefore dismiss the Commissioner’s appeal on the fourth application with costs.
The following are the reasons delivered by
LeBel J. —
1. Overview
[76] I agree with Charron J.’s conclusions and with much of what she says in her reasons, including her findings on the applicable standard of review and on the use of expert evidence, and the control test she proposes. I also agree with my colleague’s view that a Minister’s office is not a “government institution” for the purposes of the Access to Information Act, R.S.C. 1985, c. A-1 (“the Act”). Nonetheless, in my opinion, this conclusion cannot be the basis for an implied exception for political records. The legal relationship between a Minister’s office and the government institution for which the Minister is responsible may have some bearing on whether or not the institution in question controls a requested record. However, that relationship does not give rise to an implied presumption that the public does not have a right of access to records in a Minister’s office.
[77] As my colleague points out, at para. 41, s. 2 of the Access to Information Act indicates that exceptions to the public’s right of access must be “necessary”. Moreover, such exceptions must be “limited and specific” according to the Act. If the Act does not specifically exempt political records, the right of access is presumed to apply to them. For the reasons that follow, I disagree with my colleague and with the Government that this presumption, which follows from a plain reading of the Act, “would dramatically expand the access to information regime in Canada” (see para. 13).
2. Purpose of the Access to Information Act: To Strike a Balance Between Democracy and Efficient Governance
[78] As my colleague points out in para. 15, this Court recently stated that access to government information “can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin C.J. and Abella J., at para. 1).
[79] Access to information legislation embodies values that are fundamental to our democracy. In Criminal Lawyers’ Association, this Court recognized that where access to government information is essential, it is protected by the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms as a derivative right. Statutes that protect Charter rights have often been found to have quasi-constitutional status (see Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at paras. 21-23, for example, but also Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345). One such statute is the Privacy Act, R.S.C. 1985, c. P-21, which, as has often been stated, must be read together with the Access to Information Act as a “seamless code” (see Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66, at para. 22, and H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441, at para. 2).
[80] Moreover, this Court’s position is consistent with the view that access to information legislation creates and safeguards certain values — transparency, accountability and governance — that are essential to making democracy workable (see M. W. Drapeau and M.-A. Racicot, Federal Access to Information and Privacy Legislation Annotated 2011 (2010), at p. v). Before the advent of modern government, the mechanisms that embodied these values were subsumed in the doctrine of ministerial responsibility, according to which Ministers were accountable to Parliament for their actions. The sovereign Parliament, and only Parliament, was responsible for holding governments to account (J. F. McEldowney, “Accountability and Governance: Managing Change and Transparency in Democratic Government” (2008), 1 J.P.P.L. 203, at pp. 203-04).
[81] As McEldowney observes, the growing complexity of modern government has entailed unprecedented delegation of parliamentary powers to the executive branch of government. In this context, “[t]he complexity and variety of bodies involved in decision-making has contributed to a gap in our system of accountability” (p. 209). In Canada, access to information legislation was enacted to respond to and deal with the rising power of administrative agencies (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 60-61; see also G. J. Levine, The Law of Government Ethics: Federal, Ontario and British Columbia (2007), at pp. 109-10).
[82] This being said, in access to information matters, the Court has consistently sought to ensure a degree of government accountability to Canadian citizens, while at the same time accepting that rights of access and the values they safeguard must be balanced against the interests of efficient governance (see Criminal Lawyers’ Association, at para. 1, and Dagg, at paras. 45-57). This balance has been struck in access to information legislation by means of a presumption of a right of access — as opposed to a presumption that access should be refused — to all records, subject to exceptions that are specified in the legislation.
[83] In Criminal Lawyers’ Association, this Court reaffirmed that the right of access to government documents is not absolute (para. 35; see also Rubin v. Canada (Clerk of the Privy Council), [1996] 1 S.C.R. 6). There is no constitutional right of access. The right is created by statute and is subject to specific exceptions provided for in the statute. Though the right must be interpreted liberally, exceptions to it must be interpreted narrowly, as is suggested by s. 2 of the Act, which requires that exceptions be not only “specific”, but “limited”. Accordingly, it is imperative that exemptions be limited to those provided for in ss. 13 to 26; qualifying words should not be read into the Act (see Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.)).
3. To Protect “Full and Frank Discussion” in a Minister’s Office Without Excluding Ministers’ Offices from the Scope of the Act
[84] “[P]olitical records” are not explicitly exempt from disclosure under the Access to Information Act. They are records that pertain to a Minister’s activities as a member of a political party, as opposed to his or her duties as a member of Cabinet who is accountable to Parliament for the administration of a government department. In line with the interpretative approach adopted by this Court in Criminal Lawyers’ Association, we must conclude that the right of access can be presumed to apply to political records but that it is subject to any of the statutory exceptions that apply. These exceptions reflect the complexity of the various functions of Ministers of the Crown in a modern parliamentary democracy.
[85] I agree completely with my colleague that this interpretative approach must be reconciled with “the need for a private space to allow for the full and frank discussion of issues” (para. 41). I also agree with her that in s. 21 of the Act, Parliament has recognized “the need for confidential advice to be sought by and provided to a Minister and [that], consequently, records in a government institution offering such advice are exempt from disclosure at the discretion of the head of the institution” (para. 41). I would contend, however, that the structure of the Act and the inclusion of s. 21 already address this concern explicitly.
[86] As a result, I disagree with the assertion that the need for a full and frank discussion justifies excluding Ministers’ offices from the scope of the Act. To read such a broad exemption into the Act is not “necessary” within the meaning of s. 2, because the concern is already addressed explicitly. In my view, to read this exclusion into the Act is to deviate from the approach adopted by the Court in Criminal Lawyers’ Association, as outlined above.
[87] The conclusion that a Minister’s office is not a government institution flows from the modern approach to statutory interpretation, which my colleague describes as a “general roadmap”, at para. 27. But I feel it necessary to distance myself from the findings of Kelen J., which my colleague draws on as “useful guideposts” for her interpretation (para. 27).
[88] More specifically, I take issue with Kelen J.’s interpretation of Parliament’s silence regarding political records (2008 FC 766, [2009] 2 F.C.R. 86, at paras. 57-60). On the basis of that silence, Kelen J. reasoned that an interpretation of the term “government institution” that included Ministers’ offices would dramatically extend the right of access. I cannot agree with this view.
[89] As I mentioned above, this Court’s approach has been that access to information legislation creates a general right of access to which there are necessary exceptions that must be limited and specific. If the legislature is silent with respect to a given class of documents, such as political records, courts must assume, prima facie at least, that the documents in question are not exempt. Whether access can indeed be obtained as requested is a different matter for which it is necessary to design an appropriate control test. Therefore, it cannot be inferred from the legislature’s silence that political records were not intended to be disclosed at all. Politics and administration are sometimes intertwined in our democratic system. As a result, the contents of ministerial records may straddle the two worlds of politics and pure administration, if it is even possible to draw so sharp a distinction between the different roles of Ministers in Canada’s political system. On this basis, the much bolder inference that Ministers’ offices are presumptively excluded from the purview of the Access to Information Act is also incorrect.
[90] Kelen J. also concluded that all ministerial records are presumptively excluded on the basis that the Library and Archives of Canada Act, S.C. 2004, c. 11, differentiates “government records” from “ministerial records”. Government records and ministerial records are indeed different. In s. 2 of the Library and Archives of Canada Act, a “government record” is defined as “a record that is under the control of a government institution”. On the other hand, a “ministerial record” is a record
. . . of a member of the Queen’s Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is a government record.
[91] With respect, the fact that these two kinds of records are treated differently in the Library and Archives of Canada Act does not mean that ministerial records are presumptively outside the scope of the Access to Information Act. My position on the legal relationship between a Minister’s office and the government institution for which the Minister is responsible flows from a plain reading of the Act. As my colleague mentions, Ministers’ offices are not listed in Schedule I to the Act, and I accordingly agree with her that they should not be considered “government institutions” for the purposes of the Act. This being said, it does not follow that Ministers’ offices are presumptively excluded from the scope of the Act. The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head must facilitate access to it on the basis of the procedure and the limits specified in the Act.
[92] The Access to Information Act applies to records. Ministers’ offices remain within the scope of the Act inasmuch as they possess “record[s] under the control of a government institution” (s. 4). The right of access is presumed to apply to such records unless they fall under a specific exemption.
[93] In my view, the presumption that the Act applies to Ministers’ offices does not expand the right of access at all. Any requested record that is located in a Minister’s office is subject to the two-part control test proposed by my colleague.
[94] For this purpose, the “head” of the government institution must determine, first, whether the requested record relates to a departmental matter. In other words, does the record contain government information? This first stage of the test, “a useful screening device” (para. 55), will exclude all documents, such as political records (e.g. plans for a party fundraiser), that do not relate to a departmental matter.
[95] Second, the head of the government institution must determine whether the institution could reasonably expect to obtain a copy of the record upon request. As my colleague proposes, this stage of the test requires an objective analysis to determine whether that expectation is reasonable in which all relevant factors, including the content of the record, the circumstances in which it was created and the legal relationship between the government institution and the record holder, are taken into account (para. 56). If the record holder is the Minister, the fact that his or her office is not part of the government institution he or she oversees may weigh in the balance; it does not, however, create a presumption of an exception to the right of access.
4. Question of “Hybrid” Records
[96] The Access to Information Act is of course not applied in a vacuum. The reality that Ministers wear many hats must be taken into account in doing so. Thus, a Minister is a member of Cabinet who is accountable to Parliament for the administration of a government department, but is usually also a Member of Parliament in addition to being a member of a political party for which he or she performs various functions and, finally, a private person. Records connected with these different functions may blend into each other in the course of regular business.
[97] As I mentioned above, the right of access is presumed to apply to “political records”, but such records are unlikely to be under the control of a government institution if they do not relate to a departmental matter. At the other end of the spectrum are records that relate to departmental matters and are under the control of a government institution. I will refer to the latter as “government records” for the purposes of this discussion. If requested, government records should be disclosed under the Access to Information Act.
[98] It is conceivable, however, that many records will not fall neatly into one category or another. For example, departmental matters are sometimes decided on the basis of political priorities. Documents in which departmental targets are assessed in light of political aims would fall into a grey area. I will refer to such documents as “hybrid records”.
[99] The Access to Information Act provides for the existence of this grey area, at least to some extent. Thus, s. 25 provides for the severance of part of a record. Where a Minister is authorized to refuse to disclose a record, the Minister can redact the exempted portions of the document, but must disclose the portions that are not exempted.
[100] In addition, s. 21(1) provides that, subject to specific exceptions in s. 21(2), a Minister has a very broad authorization to refuse to disclose a requested record that contains any of the following:
21. (1) … (a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate,
(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
Section 21(2) reads as follows:
(2) Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
(b) a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared.
[101] Section 21 covers many of the circumstances in which certain kinds of hybrid records that contain information relating to departmental matters are produced (see s. 21(1)(a)). Section 21(1) is specifically designed to cover material produced in the course of full and frank discussions, such as deliberations in which directors, officers or employees of a government institution participate together with a Minister or a Minister’s staff (see s. 21(1)(b)).
5. Investigatory Powers of the Commissioner
[102] Though the head of a government institution has a broad discretion to either disclose or retain hybrid records, the Information Commissioner is given equally broad investigatory powers in s. 36 of the Access to Information Act. These powers can act as a check on the Minister’s discretion. As I mentioned above, Parliament has sought to strike a balance between access rights and efficient governance. On the one hand, through s. 21 and the general structure of the Act, Parliament has created a space in which Ministers may review and debate issues in private. On the other hand, through s. 36 and the general structure of the Act, Parliament has ensured that this private space is not abused.
[103] The Commissioner has the same power to summon witnesses and compel them to give evidence as a superior court of record (s. 36(1)(a)), and also has the power to administer oaths (s. 36(1)(b)), and to receive and accept such evidence as the Commissioner sees fit (s. 36(1)(c)). The Commissioner may also enter any premises of a government institution for the purposes of an investigation, as well as converse with persons and examine documents in those premises (s. 36(1)(d)). However, since a Minister’s office is not a government institution for the purposes of the Act, the Commissioner does not have the power to enter one.
[104] Importantly, pursuant to s. 36(2), the Commissioner has the power to examine “any record to which this Act applies that is under the control of a government institution”. In light of the above reasoning, records located in a Minister’s office can fall within the ambit of this provision. Section 36(2) is crucial to the balance Parliament intended to strike. Indeed, it is the first mechanism, prior to judicial review, for applying the principle that “decisions on the disclosure of government information should be reviewed independently of the government” (s. 2).
[105] Under s. 21, the head of a government institution is responsible for determining whether requested hybrid documents located in a Minister’s office should be disclosed. The first step in the assessment is to consider whether the records fall within the scope of the Act: for this purpose, the head must perform the control test we propose. If the requested documents are found to fall within the scope of the Act, the head must then perform the second step of the assessment process: to determine whether the requested records fall under any of the exemptions provided for in the Act, including in s. 21. Depending on which exemption applies, the head may or may not have the discretion to disclose the document.
[106] The purpose of the Commissioner’s investigatory powers is to determine whether the head of a government institution has complied with the Act in performing his or her duties. This includes an inquiry into whether the head has conducted the correct analysis at both stages.
[107] If a head claims to have refused access on the basis that the requested document was not under the control of a government institution, then the Commissioner may exercise only his or her powers under s. 36(1)(a) to (c). If the evidence garnered under those subsections leads the Commissioner to believe that the documents are likely under the control of a government institution, he or she may examine them to ascertain whether the control test was applied properly.
[108] If the Commissioner is entitled to inquire into whether the head applied the control test properly, the Commissioner may require access to some documents that are ultimately outside the scope of the Act. This does not broaden the public’s right of access. Section 35(1) of the Act provides that “[e]very investigation of a complaint . . . by the Information Commissioner shall be conducted in private.” Further, in the course of an investigation, parties affected by the investigation have a right to make representations (s. 35(2)). Following an investigation, the Commissioner cannot compel the head of a government institution to disclose the documents in question; rather, the Commissioner may only make recommendations to the head (s. 37). Finally, anyone who has been refused access to such records after an investigation is entitled to apply for judicial review of the decision (s. 41).
[109] With respect, I am of the view that a presumption that a Minister’s records are beyond the scope of the Act would upset the balance between the head’s discretionary powers and the Commissioner’s powers of investigation. My colleague’s analysis involves a presumption that the Commissioner would have no power whatsoever to examine records located in a Minister’s office. The Commissioner’s power would be limited to summoning witnesses and compelling them to give evidence concerning such records. Even if that evidence led the Commissioner to suspect that the control test had not been applied properly, the Commissioner would not be able to examine the documents to confirm his or her suspicions. Such an interpretation of the Act would effectively leave the head of a government institution with the final say as to whether a given document was under the institution’s control and would run counter to the purpose of the Act as outlined in s. 2, according to which decisions on the disclosure of government information must be reviewed independently. In my opinion, the presumption of an exception to the right of access that my colleague proposes would significantly weaken the Commissioner’s powers of investigation, which are crucial to the intended balance between access to information and good governance.
6. Application to the Records at Issue
[110] I agree with my colleague that, in the circumstances in which the records at issue in the first three applications were created and managed, a government institution would not have a reasonable expectation of obtaining them and that these documents were therefore not under the control of a government institution.
[111] As for the records in the possession of the Privy Council Office and the Royal Canadian Mounted Police, I agree with my colleague that, even though they were under the control of a government institution, they were subject to s. 19 of the Access to Information Act and the heads of those institutions accordingly had an obligation to refuse to disclose them.
[112] For these reasons, I would dismiss the appeals.
Appeals dismissed with costs.
Solicitor for the appellant: Information Commissioner of Canada, Ottawa.
Solicitor for the respondents: Attorney General of Canada, Ottawa.
Solicitors for the interveners: Blake, Cassels & Graydon, Toronto.
SUPREME COURT OF CANADA
Citation: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25
Date: 20110513
Dockets: 33300, 33299, 33296, 33297
Between:
Information Commissioner of Canada
Appellant
and
Minister of National Defence
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Prime Minister of Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Minister of Transport Canada
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Between:
Information Commissioner of Canada
Appellant
and
Commissioner of the Royal Canadian Mounted Police
Respondent
- and -
Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 75)
Concurring Reasons :
(paras. 76 to 112)
Charron J. (McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)
LeBel J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
information commissioner v. minister of defence
Information Commissioner of Canada Appellant
v.
Minister of National Defence Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Prime Minister of Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑ and ‑
Information Commissioner of Canada Appellant
v.
Minister of Transport Canada Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
‑and ‑
Information Commissioner of Canada Appellant
v.
Commissioner of the Royal Canadian Mounted Police Respondent
and
Canadian Civil Liberties Association, Canadian
Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association and Canadian Association
of Journalists Interveners
Indexed as: Canada (Information Commissioner) v. Canada (Minister of National Defence)
2011 SCC 25
File No.: 33300, 33299, 33296, 33297.
2010: October 7; 2011: May 13.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Access to information — Access to records — Request for Ministers’ records located in ministerial offices — Whether records “under control of government institution” as provided in legislation — Access to Information Act, R.S.C. 1985, c. A‑1, s. 3, 4(1).
Access to information — Exemptions — Privacy — Personal information — Request for Prime Minister’s agenda — Whether agenda constitutes “personal information” as defined in legislation — If so, whether agenda should nonetheless be disclosed because Prime Minister is “officer” of government institution — Access to Information Act, R.S.C. 1985, c. A‑1, s. 19(1) — Privacy Act, R.S.C. 1985, C. P‑21, s. 3.
These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records, requested almost a decade ago, under the Access to Information Act. The first three applications concern refusals to disclose records located within the offices of then Prime Minister Chrétien, then Minister of Defence Eggleton, and then Minister of Transport Collenette, respectively. The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the RCMP and PCO. The applications judge refused disclosure on the first three applications, but ordered it on the fourth. The Federal Court of Appeal overturned his decision on the fourth application only.
Held: The appeals should be dismissed.
Per McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.: Any refusal to disclose requested documents is subject to independent review by the courts on a standard of correctness. In turn, the standard of appellate review of the applications judge’s decision on questions of statutory interpretation is also correctness. However, the standard of review of his decision on whether the requested documents were in fact under the control of the government institution is one of deference, provided the decision is not premised on a wrong legal principle and absent palpable and overriding error.
On the first three applications, the applications judge’s reasons demonstrate that he conducted a full analysis of the statutes guided by well‑established principles of statutory interpretation. At the conclusion of his analysis, the applications judge held that the words in subsection 4(1) of the Access to Information Act mean that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. The Federal Court of Appeal rightly held that the applications judge’s analysis contains no error. The meaning of “government institution” is clear. No contextual consideration warrants the Court interpreting Parliament to have intended that the definition of “government institution” include ministerial offices.
The question then becomes whether the requested records held within the respective ministerial offices are nonetheless “under the control” of their related government institutions within the meaning of s. 4(1) of the Act. The word “control” is an undefined term in the statute. As the applications judge made clear, the word must be given a broad and liberal meaning in order to create a meaningful right of access to government information. While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry. Rather, this is the point at which a two‑step inquiry commences. Step one acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. If the record requested relates to a departmental matter, however, the inquiry into control continues. Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. There is no presumption of inaccessibility for records in a minister’s office. Further, this test does not lead to the wholesale hiding of records in ministerial offices. Rather, it is crafted to answer the concern. In addition, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct an individual’s right to access.
Applying this test to the material before him, the applications judge concluded that none of the requested records was in the control of a government institution. The conclusions he reached on the issue of control were open to him on the record and entitled to deference.
On the fourth application, it is agreed that the Prime Minister’s agendas in the possession of the RCMP and the PCO were under the control of a “government institution”. Records under the control of these institutions must be disclosed, subject to certain statutory exemptions. Section 19(1) of the Access to Information Act prohibits the head of a government institution from releasing any record that contains personal information as defined in s. 3 of the Privacy Act. However, s. 3(j) creates an exception by allowing for the disclosure of personal information where such information pertains to an individual who is or was an officer or employee of a government institution and where the information relates to the position or function of the individual. The applications judge held that the Prime Minister was an officer of PCO. In doing so, he relied upon the definitions of public officer found in the Financial Administration Act and the Interpretation Act. The Federal Court of Appeal rightly held that the applications judge erred in relying upon these definitions. It would be inconsistent with Parliament’s intention to interpret the Privacy Act in a way that would include the Prime Minister as an officer of a government institution. Had Parliament intended the Prime Minister to be treated as an “officer” of the PCO pursuant to the Privacy Act, it would have said so expressly. Thus, the relevant portions of the Prime Minister’s agenda under the control of the RCMP and the PCO fall outside the scope of the access to information regime.
Per LeBel J.: Ministers’ offices are not listed in Schedule I of the Act, and accordingly they should not be considered “government institutions”. Nonetheless, this conclusion cannot be the basis for an implied exception for political records. The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head of the government institution must facilitate access to it on the basis of the two‑part control test as stated in the reasons of Charron J. If the record holder is the Minister, the fact that his or her office is not part of the government institution he or she oversees may weigh in the balance. The reality that Ministers wear many hats must also be taken into account. A Minister is a member of Cabinet who is accountable to Parliament for the administration of a government department, but is usually also a Member of Parliament in addition to being a member of a political party for which he or she performs various functions and, finally, a private person. It is conceivable that many records will not fall neatly into one category or another. The head of a government institution is responsible for determining whether such hybrid documents should be disclosed. The first step in the assessment is to consider whether the records fall within the scope of the Act. If they do, the head must then perform the second step of the assessment process: to determine whether the records fall under any of the exemptions provided for in the Act. Depending on which exemption applies, the head may or may not have the discretion to disclose the document.
A presumption that a Minister’s records are beyond the scope of the Act would upset the balance between the head’s discretionary powers and the Commissioner’s powers of investigation. Such an interpretation of the Act would effectively leave the head of a government institution with the final say as to whether a given document was under the institution’s control and would run counter to the purpose of the Act, according to which decisions on the disclosure of government information must be reviewed independently. This is crucial to the intended balance between access to information and good governance.
In the circumstances in which the records at issue in the first three applications were created and managed, a government institution would not have a reasonable expectation of obtaining them. These documents were therefore not under the control of a government institution. As for the records in the possession of the RCMP and PCO, even though they were under the control of a government institution, the heads of those institutions had an obligation to refuse to disclose them.
Cases Cited
By Charron J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Tele‑Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305; Francis v. Baker, [1999] 3 S.C.R. 250; Bristol‑Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; Privacy Commissioner (Can.) v. Canada Labour Relations Board (2000), 257 N.R. 66; Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440, 204 F.T.R. 313; Canada (Attorney General) v. Information Commissioner (Can.), 2001 FCA 25, 268 N.R. 328; Canada Post Corp. v. Canada (Minister of Public Works), 2004 FCA 286, 328 N.R. 98; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
By LeBel J.
Referred to: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Rubin v. Canada (Clerk of the Privy Council), [1996] 1 S.C.R. 6; Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1, ss. 2, 3 “government institution”, “head”, 4, 6, 7 to 9, 10, 13 to 26, 30(3), 35, 36, 37, 41, 42, 48, 49, 73.
Canadian Charter of Rights and Freedoms, s. 2.
Federal Accountability Act, S.C. 2006, c. 9.
Financial Administration Act, R.S.C. 1985, c. F‑11, s. 2 “public officer”.
Interpretation Act, R.S.C. 1985, c. I‑21, ss. 2 “public officer”, 3(1), 24, 35.
Library and Archives of Canada Act, S.C. 2004, c. 11, s. 2 “government record”, “ministerial record”.
Privacy Act, R.S.C. 1985, c. P‑21, s. 3 “head”, “personal information” (j).
Authors Cited
Canadian Oxford Dictionary. Edited by Katherine Barber. Toronto: Oxford University Press, 2001, “control”.
Drapeau, Michel William, and Marc‑Aurèle Racicot. Federal Access to Information and Privacy Legislation Annotated 2011. Toronto: Carswell, 2010.
Levine, Gregory James. The Law of Government Ethics: Federal, Ontario and British Columbia. Aurora, Ont.: Canada Law Book, 2007.
McEldowney, John F. “Accountability and Governance: Managing Change and Transparency in Democratic Government” (2008), 1 J.P.P.L. 203.
APPEALS from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 175, 393 N.R. 51, [2009] F.C.J. No. 692 (QL), 2009 CarswellNat 1521, affirming in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeals dismissed.
APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Sharlow JJ.A.), 2009 FCA 181, 393 N.R. 54, 310 D.L.R. (4th) 748, [2009] F.C.J. No. 693 (QL), 2009 CarswellNat 1523, reversing in part a judgment of Kelen J., 2008 FC 766, [2009] 2 F.C.R. 86, 326 F.T.R. 237, 87 Admin. L.R. (4th) 1, [2008] F.C.J. No. 939 (QL), 2008 CarswellNat 1979. Appeal dismissed.
Jessica R. Orkin, Marlys A. Edwardh, Laurence Kearley and Diane Therrien, for the appellant.
Christopher Rupar, Jeffrey G. Johnston and Mandy Moore, for the respondents.
Ryder Gilliland, for the intervener the Canadian Civil Liberties Association.
Paul Schabas, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and the Canadian Association of Journalists.
The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
Charron J. —
1. Overview
[1] These appeals bring together four applications by the Information Commissioner of Canada for judicial review of refusals to disclose certain records to a person who requested them under the Access to Information Act, R.S.C. 1985, c. A‑1. The records, requested almost a decade ago, generally consist of agendas, notes and emails relating to the activities of then-Prime Minister Jean Chrétien, then‑Minister of National Defence Art Eggleton, and then-Minister of Transport David Collenette.
[2] The first three applications concern refusals to disclose records located within the offices of the Prime Minister, the Minister of National Defence, and the Minister of Transport, respectively. Each record holder, jointly called the “Government” in these appeals, takes the position that his office is not subject to the Access to Information Act. The fourth application concerns the refusal to disclose those parts of the Prime Minister’s agenda in the possession of the Royal Canadian Mounted Police (“RCMP”) and the Privy Council Office (“PCO”). The record holders in this application agree that they are subject to the Act; they argue, however, that the information contained in the requested records is exempt from disclosure under s. 19(1) of the Access to Information Act, as it constitutes “personal information” within the meaning of s. 3 of the Privacy Act, R.S.C. 1985, c. P-21.
[3] The requester has the right, under s. 4 of the Access to Information Act, to be given access to “any record under the control of a government institution”. On the first three applications, there is no issue that, by definition, “government institution” includes the PCO, the Department of National Defence, and the Department of Transport. The question is whether each government institution includes the office of the Minister who presides over it. In other words: Is the Prime Minister’s office (“PMO”) part of the PCO? Is the office of the Minister of National Defence part of the Department of National Defence? Is the office of the Minister of Transport part of the Department of Transport?
[4] Following a detailed analysis, Kelen J. of the Federal Court of Canada answered no to each question, holding that the respective entities were separate (2008 FC 766, [2009] 2 F.C.R. 86). In his view, the words of the statute read in their ordinary sense, in context, and harmoniously with the scheme of the Act and the intention of Parliament made this clear. Expert evidence on the functioning of government also supported this interpretation. He concluded that “no contextual consideration could warrant the Court interpreting Parliament to have intended the PMO to be part of the PCO for the purposes of the Act. The same is true with respect to ministers’ offices not being part of the respective government institutions” (para. 77). In a brief oral judgment, Sharlow J.A., speaking for the Federal Court of Appeal, upheld Kelen J.’s interpretation of the statute on this point (2009 FCA 175, 393 N.R. 51 (“Decision 1”)), and again in 2009 FCA 181, 393 N.R. 54 (“Decision 2”).
[5] As the ministerial entities were held to be separate, a second question arose: Are the records requested, despite being physically located in the respective offices of the Prime Minister, the Minister of National Defence, or the Minister of Transport, nonetheless “under the control” of the related government institution within the meaning of s. 4 of the Access to Information Act?
[6] After surveying the jurisprudence, Kelen J. concluded that no single factor is determinative of whether a record is under the control of a government institution. However, the relevant factors could usefully be distilled into a two-part test that asks: (1) whether the contents of the document relate to a departmental matter; and (2) whether the government institution could reasonably expect to obtain a copy of the document upon request. If both questions are answered in the affirmative, the document is under the control of the government institution. Kelen J. considered the contents of the records and the circumstances in which they were created, and concluded that none of the records requested was under the control of the related government institution. The Federal Court of Appeal agreed with the control test proposed by Kelen J. It also upheld his decision regarding the requested records, stating that it was open to him to come to this conclusion “by drawing reasonable inferences from the evidence before him, as he did” (Decision 1, at para. 9).
[7] Thus, the answers provided by the courts below on the meaning of “government institution” and “control” effectively disposed of the first three applications in favour of the Government.
[8] In the fourth application, there is no dispute that the RCMP and the PCO are government institutions and that, subject to any exemption under the Access to Information Act, records under their control must be disclosed. While a number of exemptions were at issue in first instance, the question on this appeal is whether the records requested consist of “personal information” within the meaning of s. 19(1) of the Access to Information Act. This provision prohibits the head of a government institution from disclosing “any record … that contains personal information as defined in section 3 of the Privacy Act”. Under this provision, “personal information” “means information about an identifiable individual that is recorded in any form”.
[9] The parties agree that the Prime Minister’s agenda falls within the general definition of “personal information”. However, s. 3 “personal information” (j) of the Privacy Act creates an exception by excluding from the scope of protection such information which pertains to “an individual who is or was an officer or employee of a government institution” and the information “relates to the position or functions of the individual”. The exception seemingly reflects the view that federal officers or employees are entitled to less protection when the information requested relates to their position or function within the government. It is this exception that is arguably at play in the fourth application: the disclosure issue turns on the question of whether the Prime Minister is an “officer” of the PCO within the meaning of s. 3 “personal information” (j) of the Privacy Act.
[10] Kelen J. held that the Prime Minister was an “officer” of the PCO. In a separate judgment, the Federal Court of Appeal overturned his decision, finding that the conclusion reached in the related appeals about the separate nature of the PMO from the PCO governed here as well. Sharlow J.A. held that it would be “inconsistent with the intention of Parliament to interpret the Privacy Act in a way that would include the Prime Minister within the scope of the phrase ‘officer of a government institution’” in s. 3 (Decision 2, at para. 8).
[11] The Commissioner appeals from the dismissal of each application. She urges the Court to hold that, as “heads” presiding over departments, the Prime Minister and the Ministers are part of these “government institutions” within the meaning of the Access to Information Act, when exercising departmental functions. Similarly, she argues that the Prime Minister is an “officer” of the PCO. Alternatively, if ministerial offices are held to be separate entities, the Commissioner argues that any record relating to a departmental matter is presumptively under the “control” of the government institution over which the Minister presides, regardless of its creation or location within the ministerial office. Thus, any such record must be disclosed, unless it is specifically exempt under the Act.
[12] While the Commissioner raises some specific issues regarding the interpretation in the courts below in support of her position, her arguments are grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. I note at the outset that these principles unquestionably form part of the context in which the Access to Information Act operates. The position advanced by the Commissioner also reflects a policy of democratic governance which Parliament could choose to adopt. However, as Kelen J. aptly noted in the introduction to his judgment:
The question for the Court is not whether the documents should be accessible to the public under Canada’s “freedom to information” law, but whether the documents are currently accessible to the public under Canada’s existing law. The Court does not legislate or change the law; it interprets the existing law (para. 3).
[13] Much as the courts below have concluded, it is my view that the interpretation advanced by the Commissioner on the meaning of “government institution”, “control” and “officer” cannot be sustained under the existing statutes at issue. As the Government rightly argues, such interpretation would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament.
[14] I would dismiss the appeals.
2. The Legislative Scheme
[15] As this Court recently stated, “[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin C.J. and Abella J., at para. 1). These general principles are reflected in the federal access regime under the Access to Information Act. The purpose of the statute is expressly stated as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
[16] Thus, the statute expressly recognizes that information in the hands of government institutions “should be available to the public”, but the right to access it is subject to “necessary exceptions”. Before discussing the provisions at issue, I will briefly describe the legislative scheme.
[17] The right to “be given access to any record under the control of a government institution” is provided under s. 4(1). This broad right of access is expressly subject to other provisions of the Access to Information Act, but supersedes “any other Act of Parliament”. What constitutes a “government institution” for the purposes of the statute is key to these appeals. The definition is set out in s. 3 and will be discussed more fully below.
[18] The process for accessing government information begins when a member of the public makes a request in writing for a record to a government institution (s. 6). The head of the government institution who receives a request must give written notice to the person who has requested the records as to whether or not access will be given in whole or in part within a reasonable time limit (ss. 7 to 9). Where the government institution refuses to give access to the records requested, it is required to provide notice to the requester that the records do not exist, or to expressly state the exemption it is relying upon in refusing to provide access to the records (ss. 10(1) to (3)). Further, the government institution must inform the requester of his or her “right to make a complaint to the Information Commissioner about the refusal” (s. 10(1)).
[19] If the requester elects to exercise this right and makes a complaint, the Commissioner is entitled to commence an investigation if she is “satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act” (s. 30(3)). Once the Commissioner commences an investigation, the Access to Information Act grants her significant investigatory powers (s. 36). If the Commissioner concludes that the complaint is well founded, a report is sent to the head of the government institution containing the findings of the investigation and any recommendations the Commissioner considers appropriate; the report may also include a request to be notified of any action taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (s. 37(1)).
[20] If the government institution elects not to comply with the Commissioner’s recommendations, the individual requesting the record may apply for judicial review pursuant to s. 41 of the Access to Information Act. The Commissioner may also apply for judicial review of the government’s decision with the consent of the individual who initially requested the records (s. 42). The latter is what occurred here. The Government refused to disclose the information, and the requester complained to the Commissioner. Following her investigation, the Commissioner found the complaints to be well founded and made recommendations accordingly. The recommendations were not implemented by the Government, and the Commissioner brought these four applications for judicial review.
3. Judicial Review in the Courts Below
[21] The four applications for judicial review were combined in one hearing before the Federal Court. Before reviewing the relevant material, Kelen J. determined the appropriate standard of review in accordance with the principles set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Under Dunsmuir, courts may usefully first inquire whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be given to a particular category of questions. Second, where the first inquiry proves unfruitful, courts proceed to analyze the factors that make it possible to identify the proper standard of review (para. 62). Kelen J. ended the inquiry at the first step, holding that this Court’s decision in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 (“RCMP”), determined in a satisfactory manner that the questions raised in these four applications should be reviewed on a “correctness” standard (para. 36).
[22] The standard for judicial review of refusals by government institutions to disclose any requested documents under the Access to Information Act is not at issue in these appeals. Kelen J. rightly concluded that this Court authoritatively determined the matter in RCMP. Determining the appropriate standard of review requires courts to discern the intention of the legislature. Of particular note here is the fact that Parliament expressly states in s. 2(1) that one of the purposes of the Access to Information Act is to ensure that “decisions on the disclosure of government information should be reviewed independently of government”. Moreover, the burden is put on the government to demonstrate on judicial review that it is authorized to refuse to disclose the records that were requested (s. 48). If the court concludes that the head of the institution does not have the legal authority to refuse to disclose the relevant records, the court may substitute its own decision and order the disclosure of the documents, subject to any conditions it may elect to impose (s. 49).
[23] In turn, Kelen J.’s decision is subject to appellate review in accordance with the principles set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9 and 31-36. His decision on questions of statutory interpretation is reviewable on a standard of correctness. His decision on whether the requested documents were in fact under the control of the government institution, provided it is not premised on a wrong legal principle and absent palpable and overriding error, is entitled to deference. Although not expressly stated, it is apparent from reading both judgments in the Federal Court of Appeal below that Sharlow J.A. reviewed Kelen J.’s decision in accordance with the proper standard of appellate review. I will review the decisions under appeal using the same approach.
4. Analysis
4.1 Issue 1: Is the Office of the Prime Minister, or a Minister, a “Government Institution” Within the Meaning of the Access to Information Act?
[24] Subsection 4(1) of the Access to Information Act reads as follows:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
[25] Under s. 3 of the Act:
“government institution” means
(a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and
(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act;
[26] Schedule I sets out a list of entities that are government institutions for the purposes of the Access to Information Act. This list includes the PCO, the Department of National Defence, the Department of Transport, and the RCMP. However, the PMO, the office of the Minister of National Defence and the office of the Minister of Transport are not expressly listed in Schedule I. The term “government institution” is similarly defined under the Privacy Act. The question becomes whether Parliament intended to implicitly include ministerial offices within the Access to Information Act.
[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. In addition to this general roadmap, a number of specific rules of construction may serve as useful guideposts on the court’s interpretative journey. Kelen J. instructed himself accordingly (paras. 43-49). He then conducted the following analysis:
First, Kelen J. considered evidence from political scientists about how government actually works to determine the ordinary meaning of the term “government institution” according to the experts. He held that this evidence demonstrated that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible (paras. 50-52).
Second, he noted that pursuant to s. 3 of the statute, the Minister is the “head” of his or her department. This fact supported the argument that the Ministers’ offices and the PMO are part of their respective departments. However, he found that the PMO and the Ministers also have many other functions unrelated to the respective departments for which they are responsible (paras. 53-56).
Third, he considered Hansard debates from 1981, which made it clear that Parliament intended that the Access to Information Act apply to information, in any form, held by specified government institutions. While the Commissioner agrees that Parliament did not intend the Act to apply to political documents, no exemption or exclusion for such political records is provided for in the Act. Kelen J. therefore reasoned that an interpretation of “government institution” that included the PMO and offices of the Ministers would dramatically extend the right of access. Parliament would not have intended such a “dramatic result” without express wording to that effect (paras. 57-60).
Fourth, following the enactment of the Access to Information Act, the Information Commissioner’s 1988-1989 Report to Parliament indicated that Ministers’ offices were not subject to the provisions of the Act. The Commissioner adopted the same view in 1992, and again in 1997. These original interpretations confirm that the office of the Information Commissioner itself understood the intent of Parliament was not to include the PMO or a Minister’s office in the government institutions listed in Schedule I of the Act (paras. 61-65).
Fifth, since the time the Commissioner publicly urged Parliament to amend the legislation to clarify that the PMO and ministerial offices are subject to the Act, Parliament amended the Act several times, including recent amendments as part of the 2006 Federal Accountability Act, S.C. 2006, c. 9, and has not chosen to make this amendment. While Parliament’s intention may not always be inferred from legislative silence, in this case, the silence is clear and constitutes relevant evidence of legislative intent: Tele-Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305, at para. 42 (paras. 66-67).
Sixth, the Latin maxim of statutory interpretation expressio unius est exclusio alterius (“to express one thing is to exclude another”) supports the Government’s view. If Parliament had intended to include the PMO and Ministers’ offices in Schedule I, it would have referred to them expressly (para. 68).
Seventh, the evidence at trial demonstrated that there have been many Ministers without a portfolio since Confederation. If the Access to Information Act was intended to apply to the offices of Ministers, the Act would not apply to a Minister without a portfolio because he or she would not have a corresponding “government institution” set out in Schedule I. Such a result is absurd (para. 69).
Eighth, the internal structure of the Act also provides insight on this question. Paragraphs 21(1)(a)-(b), s. 21(2)(b) and s. 26 of the Access to Information Act demonstrate that Parliament distinguished between a “government institution” and “a minister of the Crown”. When drafting legislation, Parliament is assumed to have used words precisely and carefully, and so Parliament intended the terms to have different meanings (paras. 70-73).
Ninth, provisions of the Library and Archives of Canada Act, S.C. 2004, c. 11, also draw a distinction between governmental records and ministerial records. The principle of consistent expression in statutory interpretation means that Parliament distinguishes between a “ministerial record” and a “departmental record” (paras. 74-76).
[28] At the conclusion of his analysis, Kelen J. held that the words in s. 4(1) of the Access to Information Act mean that the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible. That is, the PMO cannot be interpreted as part of the PCO, the office of the Minister of National Defence is not part of the Department of National Defence, and the office of the Minister of Transport is not part of the Department of Transport.
[29] The Commissioner presents very little argument on any of the above‑noted points. As I understand her submissions, she has only two specific complaints about the approach adopted by Kelen J. and affirmed by the Federal Court of Appeal. First, she argues that the applications judge erred in his use of expert evidence as an interpretative aid. Second, and somewhat related to the first point, she argues that the Federal Court of Appeal erred in relying on a non-existing “constitutional convention” for distinguishing between ministerial offices and their respective government departments. I will therefore deal specifically with these two arguments.
4.1.1. The Use of Expert Evidence
[30] After setting out the relevant principles of statutory interpretation, Kelen J. briefly considered the evidence tendered from “experts in government machinery” (para. 50). In particular, he examined the evidence of Mr. Nicholas d’Ombrain, Mr. Justice John Gomery, and a reference relied upon by Mr. d’Ombrain from the Honourable Robert Gordon Robertson, Clerk of the Privy Council and Secretary to the Cabinet from 1963 to 1975. Kelen J. summarized the gist of this evidence as follows, at paras. 50-51:
While the two entities work closely together on some matters, the PMO is responsible for many matters unrelated to the PCO. The same is true with respect to the relationship between a minister’s office and the department over which the minister presides.
Accordingly, the evidence demonstrates that in the ordinary sense of the words in subsection 4(1) of the Act, the PMO and the relevant ministerial offices are not part of the “government institution” for which they are responsible.
[31] The Commissioner submits that reliance upon such expert evidence to interpret the Access to Information Act constitutes an error of law. She maintains that it was entirely appropriate for her office to consider expert political science evidence at the investigatory stage. However, opinion evidence is inadmissible in the courtroom to prove the ordinary meaning of legislative terms, “as the interpretation and articulation of domestic law lies at the very heart of the judicial function” (A.F., at para. 110). She contends that this approach confirms that both courts below “viewed the central issue of the reach of a ‘government institution’ as a question of fact, to be determined primarily if not entirely on the basis of expert evidence” (para. 112). She argues further that the courts below “did not at any point seek to determine what was included within a ‘government institution’ as a matter of law”; rather, they simply accepted “the assertion that a ministerial office is separate from the department over which the Minister presides” (para. 112).
[32] In response, the Government first observes that the Commissioner’s position on this point is “particularly curious”, as the expert evidence generated by the Commissioner’s office and compiled for her investigation was used extensively to support her recommendations and then placed in the record before the Federal Court (R.F., at para. 103). In any event, the Government submits that expert evidence can be properly used as an interpretive aid in discerning the ordinary meaning of words by Parliament when such evidence is relevant and reliable: Francis v. Baker, [1999] 3 S.C.R. 250, at para. 35; and Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 47. Further, Kelen J.’s reasons demonstrate that the expert evidence played a limited role in his analysis. He did not rely on any expert opinion on the meaning of the words used by Parliament as contended, given that no such opinion was tendered by the witnesses. He considered this evidence, rather, to situate the interpretative exercise in its proper context, an approach which was then correctly upheld by the Federal Court of Appeal.
[33] I agree with the Government. No objection was raised in respect of this evidence in first instance, not surprisingly in my view, as consideration of expert evidence in the context of these applications was entirely appropriate. It is also apparent from Kelen J.’s reasons that he merely relied upon the expert evidence tendered by both parties to better appreciate the day-to-day workings of the government and to situate his interpretation of the Access to Information Act within its proper context. Further, Kelen J.’s meticulous analysis of the law belies any contention that he “viewed the central issue of the reach of a ‘government institution’ as a question of fact” (para. 112). His reasons demonstrate, rather, that he conducted a full analysis of the text, guided by well-established principles of statutory interpretation. I see no merit to the Commissioner’s argument on the alleged misuse of expert evidence.
4.1.2. Alleged Reliance on a Non-Existing Constitutional Convention
[34] Along the same lines, the Commissioner takes issue with Sharlow J.A.’s characterization of the distinction between ministerial offices and their respective government departments as a “well understood convention” (Decision 1, at para. 7; Decision 2, at para. 7). The Commissioner focuses a significant portion of her argument on the legal criteria for a constitutional convention and takes the position that none is met here. She therefore argues that this phrase demonstrates that the Federal Court of Appeal “erroneously accorded constitutional weight to a disputed, ill-defined and inconsistently followed practice” (A.F., at para. 116).
[35] The Government responds that the Commissioner used the term “convention” in her material in the courts below simply to describe an understanding of the roles and duties of Ministers and government institutions. The Government submits that, similarly, when Sharlow J.A. used the phrase “well understood convention”, it is clear from the context that she was simply referring to the day-to-day workings or “conventions” of government.
[36] Again, I agree with the Government on this point. I find no support at all in the record for the suggestion that Sharlow J.A. was actually referring to constitutional conventions in their legal sense.
4.1.3 “Function-Based” Approach Advocated by the Information Commissioner
[37] Except for the above-noted specific complaints about the use of expert evidence and the reliance on government “conventions”, the Commissioner’s arguments are grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. The Commissioner expounds on these principles in considerable detail and submits that “the right of access and apparatus created by [the Access to Information Act was] meant [by Parliament] to be integrated into these legal rules” and “to function as a supplementary mechanism to ensure accountability for the exercise of executive power” (A.F., at para. 102). She therefore urges the Court to adopt a “function-based analysis” so as to create a dividing line between a Minister’s departmental functions on the one hand and non-departmental functions on the other. She explains in her factum that this “analysis is easily translated into the scheme” of the Access to Information Act in respect of the ministerial offices at issue in the following manner (A.F., at para. 150):
… a record is subject to [the Access to Information Act], regardless of its physical form or location, where it was created by or on behalf of a Minister to document or give effect to a Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions. By contrast, the record is not subject to [the Access to Information Act] if it is created by the Minister or exempt staff for political or non-departmental purposes. Similarly, if the Minister or exempt staff receive information from departmental staff, and then generate further records for political, non-departmental purposes, the additions are not subject to [the Access to Information Act].
[38] The Commissioner further submits that a similar analysis could be adopted in relation to Ministers of State “[t]o the extent that a Minister of State exercises the powers, duties and functions of a department”, and also “in relation to government institutions other than departments that fall within the portfolio responsibilities of a given Minister (or Minister of State)” (A.F., at paras. 152-53).
[39] The Government submits that the “function-based” approach advocated by the Commissioner renders the list of institutions detailed in Schedule I essentially meaningless. Her approach is entirely focused on the nature and content of the record and, as such, conflates the issue of defining “government institution” with the issue of how one determines which entity has “control” of a specific record. Moreover, although the Commissioner recognizes that political and non-departmental matters would not be subject to release under the Act, the statute provides no exemption for such records. Her attempt to remedy this deficiency by conceptually building it into a function-based definition of “government institution” goes “well beyond any concept of statutory interpretation recognized by this or any other Court” (R.F., at para. 129).
[40] I agree with the Government. None of the broad principles relied upon by the Commissioner is contentious in these appeals. In my respectful view, nor are they particularly helpful in answering the questions of statutory interpretation at issue. For example, the Commissioner relies heavily on the quasi-constitutional characterization of the Access to Information Act. (See Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, where the Court affirmed this status in respect of the Official Languages Act and the Privacy Act (paras. 23-25)). She argues that, as such, the purpose of the Act becomes of paramount importance in the interpretative exercise, and that the legislation should be interpreted broadly in order to best promote the principles of responsible government and democratic accountability. While I agree that the Access to Information Act may be considered quasi-constitutional in nature, thus highlighting its important purpose, this does not alter the general principles of statutory interpretation. The fundamental difficulty with the Commissioner’s approach to the interpretation of the term “government institution” is that she avoids any direct reference to the legislative provision at issue. The Court cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted.
[41] It is important to recall that Parliament’s statement of purpose in s. 2 of the Act recognizes that exceptions to public accessibility are “necessary”. For example, in s. 21, Parliament has recognized the need for confidential advice to be sought by and provided to a Minister and, consequently, records in a government institution offering such advice are exempt from disclosure at the discretion of the head of the institution. The advice provided to a Minister may come from a variety of sources and may pertain to a broad range of matters, including matters relating to the department over which the Minister presides. Some of these matters may have a political dimension and some may not. Similarly, the policy rationale for excluding the Minister’s office altogether from the definition of “government institution” can be found in the need for a private space to allow for the full and frank discussion of issues. As the Government rightly submits: “It is the process of being able to deal with the distinct types of information, including information that involves political considerations, rather than the specific contents of the records” that Parliament sought to protect by not extending the right of access to the Minister’s office (R.F., at para. 82). Of course, not all documents in a Minister’s office are excluded from the scope of the Act. As we shall see, despite its physical location in a ministerial office, any document which is “under the control” of the related, or any other, government institution is subject to disclosure.
[42] The functional approach advocated by the Commissioner not only creates the problem identified by Kelen J. that some Ministers would be covered by the Act, whereas others would not. It also ignores the practical difficulty of carving out a political class exemption when none is provided in the Act. If a Minister’s office is a government institution, all records under its control would be subject to release under the Act, unless expressly exempted or excluded by the Act. The proposal of carving out “political” documents based on an analysis of their content is easier said than done. As the Government notes, “records in a Minister’s office are not neatly arranged into clearly defined ‘political’, ‘constituent’ and ‘departmental’ piles. The intermingling of these issues and facts is what makes the Minister’s office unique. The simplistic approach of ‘carving out’ political records is unrealistic” (R.F., at para. 88).
[43] Of course, Parliament could have opted for a different access scheme. However, it did not. Kelen J.’s interpretative analysis contains no error. The meaning of “government institution” is clear. In my view, the courts below rightly concluded that no contextual consideration warrants the Court interpreting Parliament to have intended that the definition of “government institution” include ministerial offices. I would not give effect to this ground of appeal.
4.2 Issue 2: Are the Records Requested, Despite Their Physical Location in the Respective Ministerial Offices, “Under the Control” of the Related Government Institution Within the Meaning of Section 4 of the Access to Information Act?
[44] In light of my conclusion regarding the first issue, the question then becomes whether the requested records held within the respective ministerial offices are nonetheless “under the control” of their related government institutions within the meaning of s. 4(1) of the Act. Kelen J. concluded that they were not, and the Federal Court of Appeal upheld his decision. The Commissioner appeals from this conclusion.
[45] None of the Commissioner’s arguments is directed at the findings of fact made by Kelen J. regarding the particular records requested. The success of the Commissioner’s appeal on this point is dependent, rather, on whether the Court accepts her proposed test for determining what constitutes “control” for the purposes of access under the Act. As I will explain, the test for control proposed by the Commissioner is entirely focussed on the function or content of the record and, in substance, is essentially the same as the test she proposes for defining a “government institution”. Consequently, much for the reasons stated above, the Commissioner’s interpretation of the word “control” cannot be sustained as it finds no support in the wording of the Act.
[46] First, I will review the control test adopted by the courts below.
[47] The word “control” is an undefined term in the statute. Its meaning has been judicially considered in a number of cases, and Kelen J. turned to this jurisprudence for guidance. In particular, he reviewed the following cases: Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.); Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.); Privacy Commissioner (Can.) v. Canada Labour Relations Board (2000), 257 N.R. 66 (F.C.A.); Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440, 204 F.T.R. 313; Canada (Attorney General) v. Information Commissioner (Can.), 2001 FCA 25, 268 N.R. 328; and Canada Post Corp. v. Canada (Minister of Public Works), 2004 FCA 286, 328 N.R. 98. From this jurisprudence, Kelen J. gleaned a number of principles, which I will paraphrase as follows.
[48] As “control” is not a defined term in the Act, it should be given its ordinary and popular meaning. Further, in order to create a meaningful right of access to government information, it should be given a broad and liberal interpretation. Had Parliament intended to restrict the notion of control to the power to dispose or to get rid of the documents in question, it could have done so. It has not. In reaching a finding of whether records are “under the control of a government institution”, courts have considered “ultimate” control as well as “immediate” control, “partial” as well as “full” control, “transient” as well as “lasting” control, and “de jure” as well as “de facto” control. While “control” is to be given its broadest possible meaning, it cannot be stretched beyond reason. Courts can determine the meaning of a word such as “control” with the aid of dictionaries. The Canadian Oxford Dictionary defines “control” as “the power of directing, command (under the control of)” (2001, at p. 307). In this case, “control” means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a “partial” basis, a “transient” basis, or a “de facto” basis. The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act (paras. 91-95).
[49] In applying these principles to the records at issue, Kelen J. articulated the following test, at para. 93:
Upon review by the Court, if the content of a document in the PMO or the offices of the Ministers of National Defence and Transport relates to a departmental matter, and the circumstances in which the document came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with the subject-matter, then that document is under the control of the government institution.
[50] The Federal Court of Appeal agreed with this test, holding that, in the context of these cases where the record requested is not in the physical possession of a government institution, the record will nonetheless be under its control if two questions are answered in the affirmative: (1) Do the contents of the document relate to a departmental matter? (2) Could the government institution reasonably expect to obtain a copy of the document upon request? (Decision 1, at paras. 8-9).
[51] As I understand her arguments, the Commissioner does not take issue with any of the principles Kelen J. gleaned from his review of the relevant jurisprudence. Indeed, she substantially adopts these principles in her factum at para. 168 and rightly so. Those principles should inform the analysis. Her complaint lies, rather, with how these principles were distilled into the two-step inquiry described above. She submits that the courts below have erred in law by essentially reducing the legal inquiry concerning “control” to two seemingly simple factual questions — whether the record relates to a departmental matter and whether senior members of the departmental staff could request and obtain a copy of the record. She submits that these factual indicia can be too easily manipulated by government actors to avoid releasing documents that validly fall within the scope of the Act. In particular, she submits that the “mechanism of a hypothetical request” under step two of the test is weak and unacceptable as it “inappropriately relies on past practices and prevalent expectations, rather than the legal relationships at issue” (A.F., at para. 169). Put more colloquially, she argues that if this Court adopts the control test articulated in the courts below, the Minister’s office may effectively become a “black hole” used to shield certain sensitive documents that properly fall within the ambit of the Access to Information Act (A.F., at para. 162).
[52] I agree with the Commissioner that it would be an error to interpret the words “under the control” in a manner that allowed government actors to turn the Minister’s office into a “black hole” to shelter sensitive records that should otherwise be produced to the requester in accordance with the law. However, as I will explain, I am not persuaded that the courts below erred as she contends. In essence, the Commissioner’s complaint on this ground of appeal is based on the same criticism of the institutional distinction between the Minister and the department over which he or she presides argued under the first ground. This is readily apparent from the alternative test that she proposes. In order to counter the “black hole” problem, the Commissioner urges the Court to hold that a record in a Minister’s office is under the control of the corresponding government institution when the following two conditions are met:
(a) the record was obtained or generated by the Minister or on his or her behalf; and
(b) the record documents or gives effect to the Minister’s exercise of departmental powers, duties or functions, or relies directly on departmental staff in order to exercise the Minister’s departmental powers, duties or functions. [A.F., at para. 172]
[53] As the Government rightly responds, the test for control proposed by the Commissioner effectively eliminates the need to consider the definition of “government institution”. As the Government puts it in its factum: “If the function or content of the record determines control, then it does not matter if the record is in a government institution or a Minister’s Office, as they are the same entity for the purposes of determining ‘control’” (R.F., at para. 179). I agree. A decision on the issue of control based almost exclusively on the content of the record would have the effect of extending the reach of the Act into the Minister’s office where, as discussed earlier, Parliament has chosen not to go.
[54] Further, the Commissioner’s argument on the deficiency of the control test crafted by the courts below presupposes that the two-part distillation of the test, particularly as articulated by the Federal Court of Appeal, is not intended to fully capture the principles upon which the test was crafted. I do not read the judgments below as having that effect. As Kelen J. made clear, the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information. While physical control over a document will obviously play a leading role in any case, it is not determinative of the issue of control. Thus, if the record requested is located in a Minister’s office, this does not end the inquiry. The Minister’s office does not become a “black hole” as contended. Rather, this is the point at which the two-step inquiry commences. Where the documents requested are not in the physical possession of the government institution, the inquiry proceeds as follows.
[55] Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
[56] Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly.
[57] My colleague LeBel J. agrees with this control test, but takes exception to the creation of “an implied presumption that the public does not have a right of access to records in a Minister’s office” (para. 76). With respect, his concern is founded on a misinterpretation of these reasons. There is no presumption of inaccessibility. As LeBel J. rightly notes, at para. 91:
The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head must facilitate access to it on the basis of the procedure and the limits specified in the Act.
[58] I agree. Conversely, if a document is under the control of the Minister’s office and not under the control of the related, or any other, government institution, it does not fall within the purview of the Access to Information Act. If one views this result as creating a factual “presumption of inaccessibility”, or alternatively an implied exemption for political records, in my respectful view, it is a consequence that inevitably flows from the fact that Ministers’ offices are not government institutions within the meaning of the Act, a conclusion with which LeBel J. agrees.
[59] Thus, the test articulated by the courts below, properly applied, does not lead to the wholesale hiding of records in ministerial offices. Rather, it is crafted to answer the concern. In addition, as the Government rightly notes, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct an individual’s right to access. My colleague reviews some of these investigatory powers. It is true, as he points out, that the statutory power to enter any “government institution” would not allow the Commissioner to enter a Minister’s office. However, again here, it seems to me that this result inevitably flows from the limited scope of the term “government institution” and must be taken to have been intended by Parliament. I disagree with my colleague that this limitation on the Commissioner’s powers effectively leaves the Minister as head of the government institution with the final say as to whether a given document is under the control of a government institution (para. 109). The Commissioner has significant powers of investigation that include the authority to “summon and enforce the appearance of persons”, including Ministers, “and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record”: s. 36(1)(a). Further, as an additional safeguard, any refusal to disclose requested records is subject to independent review by the courts on a standard of correctness.
[60] In the result, I agree with the Federal Court of Appeal that the two questions posed by Kelen J. were adequate to determine whether the records requested in the three applications at issue were under the control of a government institution. It is also clear from his detailed analysis that he considered all relevant factors on an objective basis, as discussed above. Applying this test to the material before him, he concluded that none of the requested records was in the control of a government institution. In brief, he disposed of the first three applications on the following bases.
[61] First, the Prime Minister’s agendas were not under the control of the PCO. The agendas were created by the Prime Minister’s exempt staff and were always in possession of the Prime Minister or his exempt staff. No “government institution” had physical possession of the records or the right to obtain them.
[62] Second, the Minister of Transport’s unabridged and abridged agendas were not under the control of a government institution. The unabridged agendas were always in the possession of the Minister’s office and were not provided to the Deputy Minister or anyone else in the government institution. The abridged agendas were in the possession of the government institution for a limited time, but were not kept after the relevant date and there was no expectation that the Minister’s office would provide the agendas for a second time.
[63] Third, the notebooks held in the Minister of National Defence’s office were not under the control of the Department of National Defence. They were created and maintained by exempt staff for their personal use and would not have been produced to government officials. While the Minister relied upon his exempt staff for taking notes of meetings, he himself never looked at the notes. The emails also were not under the control of the Department of National Defence. They did not contain substantive information about departmental matters.
[64] As stated earlier, the Commissioner presents virtually no argument in respect of the findings of fact made by Kelen J. I agree with the Federal Court of Appeal that the conclusions reached by Kelen J. on the issue of control were open to him on the record and entitled to deference.
[65] I would not give effect to the second ground of appeal on the issue of control. Consequently, I would dismiss the Commissioner’s appeals on the first three applications with costs.
[66] On the fourth application, it is agreed that the Prime Minister’s agendas in the possession of the RCMP and the PCO were under the control of a “government institution” for the purposes of the Access to Information Act. Therefore, this brings us to the final issue.
4.3 Issue 3: Are the Prime Minister’s Agendas at Issue Exempt or Excluded From Disclosure Pursuant to Section 19 of the Access to Information Act and Section 3(j) of the Privacy Act?
[67] The definition of “government institution” is the same under both the Access to Information Act and the Privacy Act. The RCMP and the PCO are specifically listed in Schedule I and, as such, are government institutions. Records under their control must be disclosed, subject to certain statutory exemptions. Section 19(1) of the Access to Information Act prohibits the head of a government institution from releasing any record that contains “personal information as defined in section 3 of the Privacy Act”. However, s. 3(j) creates an exception by allowing for the disclosure of personal information where such information pertains to “an individual who is or was an officer or employee of a government institution” and where the information in question “relates to the position or functions of the individual”. In short, the s. 3(j) exception will apply, and those parts of the Prime Minister’s agenda that relate to his job must be disclosed, if the Prime Minister is an “officer … of a government institution”.
[68] Under both statutes, the “head” of a government institution includes “in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada”. The Prime Minister is the head of the PCO under this definition. The term “officer”, however, is not defined. The question is whether the Prime Minister as “head” of a government institution is also an “officer” of that institution.
[69] Kelen J. held that he was. In reaching this conclusion, he relied upon the definition of “public officer” found in the Financial Administration Act, R.S.C. 1985, c. F-11, s. 2, which includes “a minister of the Crown and any person employed in the federal public administration”. He also relied on the definition of “public officer” in the Interpretation Act, R.S.C. 1985, c. I-21, s. 2, which includes “any person in the federal public administration who is authorized by or under an enactment to do or enforce the doing of an act or thing or to exercise a power, or on whom a duty is imposed by or under an enactment” (para. 107).
[70] The Federal Court of Appeal reversed this finding, holding that Kelen J. “erred in law in importing into the Privacy Act the definitions of ‘public officer’ from statutes dealing with different subjects that use that term in different contexts” (Decision 2, at para. 5). In its view, “[t]he same understanding about the special governmental role of the Prime Minister” discussed in the first three applications “would have formed part of the foundation for the drafting of the Privacy Act” (para. 8). The Federal Court of Appeal concluded that it would be inconsistent with Parliament’s intention to interpret the Privacy Act in a way that would include the Prime Minister as an officer of a government institution.
[71] I agree with the Federal Court of Appeal that Kelen J. erred in relying on the definition of “public officer” in two other statutes. It is clear that the definition of “public officer” found in the Financial Administration Act is a broad definition which deals with an unrelated subject and operates in a different context. The definition contained in the Interpretation Act could arguably be relevant, as s. 3(1) states: “Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act”. However, I find no support for incorporating the definition of “public officer” in this context. First, while there may be overlap between the two terms, the term “public officer” used in the Interpretation Act is simply not the same as the term “officer … of a government institution” used in the Privacy Act. Second, the definition “public officer” is contained in the list of definitions under s. 2 of the Interpretation Act, which is expressly stated to apply “[i]n this Act”. The definition is not repeated in the definitions contained in s. 35, which conversely, apply “[i]n every enactment”. Finally, the Interpretation Act itself differentiates between a “public officer” and a “minister of the Crown” (see, for example, s. 24). In my view, the Federal Court of Appeal rightly concluded that the meaning of “officer of a government institution” must be ascertained in its proper context.
[72] In effect, the Commissioner’s position on this issue follows the same rationale underlying her arguments on the other grounds of appeal. She argues in favour of a function-based approach in order to interpret the term “officer”, according to which a Minister would be considered an officer of a government institution when exercising powers in relation to the institution, and not an officer of a government institution when exercising powers unrelated to the institution. The problem with this approach, however, is that there is nothing in either statute suggesting that a person might be an officer for some purposes and not for others.
[73] Nor is there any support in either statute for finding that a Minister is intended to be an “officer” of the government institution simply because he is the “head” of that institution. In fact, s. 73 of the Access to Information Act suggests the opposite, given that it provides that the “head” of the government institution may delegate powers and duties under the Act to one or more “officers or employees” of the government institution. A distinction is therefore drawn between “head” and “officer” in that provision. Further, as noted earlier in discussing the definition of “government institution”, s. 21 of the Access to Information Act also makes a distinction between “officer”, “employee”, and “minister”.
[74] Finally, as this Court explained in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (per La Forest J. in dissent but not on this point), and reiterated in RCMP, the Access to Information Act and the Privacy Act are to be read together as a seamless code. The interpretation of Kelen J. and the Commissioner would create discordance between the two statutes. Under the Access to Information Act, a Minister or Prime Minister would not be part of a government institution, while under the Privacy Act, he would be considered an “officer” of the government institution. I agree with the Federal Court of Appeal. Had Parliament intended the Prime Minister to be treated as an “officer” of the PCO pursuant to the Privacy Act, it would have said so expressly. Applying s. 3(j) of the Privacy Act to the relevant portions of the Prime Minister’s agenda under the control of the RCMP and the PCO, I conclude that they fall outside the scope of the access to information regime.
[75] I would therefore dismiss the Commissioner’s appeal on the fourth application with costs.
The following are the reasons delivered by
LeBel J. —
1. Overview
[76] I agree with Charron J.’s conclusions and with much of what she says in her reasons, including her findings on the applicable standard of review and on the use of expert evidence, and the control test she proposes. I also agree with my colleague’s view that a Minister’s office is not a “government institution” for the purposes of the Access to Information Act, R.S.C. 1985, c. A-1 (“the Act”). Nonetheless, in my opinion, this conclusion cannot be the basis for an implied exception for political records. The legal relationship between a Minister’s office and the government institution for which the Minister is responsible may have some bearing on whether or not the institution in question controls a requested record. However, that relationship does not give rise to an implied presumption that the public does not have a right of access to records in a Minister’s office.
[77] As my colleague points out, at para. 41, s. 2 of the Access to Information Act indicates that exceptions to the public’s right of access must be “necessary”. Moreover, such exceptions must be “limited and specific” according to the Act. If the Act does not specifically exempt political records, the right of access is presumed to apply to them. For the reasons that follow, I disagree with my colleague and with the Government that this presumption, which follows from a plain reading of the Act, “would dramatically expand the access to information regime in Canada” (see para. 13).
2. Purpose of the Access to Information Act: To Strike a Balance Between Democracy and Efficient Governance
[78] As my colleague points out in para. 15, this Court recently stated that access to government information “can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin C.J. and Abella J., at para. 1).
[79] Access to information legislation embodies values that are fundamental to our democracy. In Criminal Lawyers’ Association, this Court recognized that where access to government information is essential, it is protected by the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms as a derivative right. Statutes that protect Charter rights have often been found to have quasi-constitutional status (see Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at paras. 21-23, for example, but also Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345). One such statute is the Privacy Act, R.S.C. 1985, c. P-21, which, as has often been stated, must be read together with the Access to Information Act as a “seamless code” (see Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66, at para. 22, and H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441, at para. 2).
[80] Moreover, this Court’s position is consistent with the view that access to information legislation creates and safeguards certain values — transparency, accountability and governance — that are essential to making democracy workable (see M. W. Drapeau and M.-A. Racicot, Federal Access to Information and Privacy Legislation Annotated 2011 (2010), at p. v). Before the advent of modern government, the mechanisms that embodied these values were subsumed in the doctrine of ministerial responsibility, according to which Ministers were accountable to Parliament for their actions. The sovereign Parliament, and only Parliament, was responsible for holding governments to account (J. F. McEldowney, “Accountability and Governance: Managing Change and Transparency in Democratic Government” (2008), 1 J.P.P.L. 203, at pp. 203-04).
[81] As McEldowney observes, the growing complexity of modern government has entailed unprecedented delegation of parliamentary powers to the executive branch of government. In this context, “[t]he complexity and variety of bodies involved in decision-making has contributed to a gap in our system of accountability” (p. 209). In Canada, access to information legislation was enacted to respond to and deal with the rising power of administrative agencies (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 60-61; see also G. J. Levine, The Law of Government Ethics: Federal, Ontario and British Columbia (2007), at pp. 109-10).
[82] This being said, in access to information matters, the Court has consistently sought to ensure a degree of government accountability to Canadian citizens, while at the same time accepting that rights of access and the values they safeguard must be balanced against the interests of efficient governance (see Criminal Lawyers’ Association, at para. 1, and Dagg, at paras. 45-57). This balance has been struck in access to information legislation by means of a presumption of a right of access — as opposed to a presumption that access should be refused — to all records, subject to exceptions that are specified in the legislation.
[83] In Criminal Lawyers’ Association, this Court reaffirmed that the right of access to government documents is not absolute (para. 35; see also Rubin v. Canada (Clerk of the Privy Council), [1996] 1 S.C.R. 6). There is no constitutional right of access. The right is created by statute and is subject to specific exceptions provided for in the statute. Though the right must be interpreted liberally, exceptions to it must be interpreted narrowly, as is suggested by s. 2 of the Act, which requires that exceptions be not only “specific”, but “limited”. Accordingly, it is imperative that exemptions be limited to those provided for in ss. 13 to 26; qualifying words should not be read into the Act (see Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.)).
3. To Protect “Full and Frank Discussion” in a Minister’s Office Without Excluding Ministers’ Offices from the Scope of the Act
[84] “[P]olitical records” are not explicitly exempt from disclosure under the Access to Information Act. They are records that pertain to a Minister’s activities as a member of a political party, as opposed to his or her duties as a member of Cabinet who is accountable to Parliament for the administration of a government department. In line with the interpretative approach adopted by this Court in Criminal Lawyers’ Association, we must conclude that the right of access can be presumed to apply to political records but that it is subject to any of the statutory exceptions that apply. These exceptions reflect the complexity of the various functions of Ministers of the Crown in a modern parliamentary democracy.
[85] I agree completely with my colleague that this interpretative approach must be reconciled with “the need for a private space to allow for the full and frank discussion of issues” (para. 41). I also agree with her that in s. 21 of the Act, Parliament has recognized “the need for confidential advice to be sought by and provided to a Minister and [that], consequently, records in a government institution offering such advice are exempt from disclosure at the discretion of the head of the institution” (para. 41). I would contend, however, that the structure of the Act and the inclusion of s. 21 already address this concern explicitly.
[86] As a result, I disagree with the assertion that the need for a full and frank discussion justifies excluding Ministers’ offices from the scope of the Act. To read such a broad exemption into the Act is not “necessary” within the meaning of s. 2, because the concern is already addressed explicitly. In my view, to read this exclusion into the Act is to deviate from the approach adopted by the Court in Criminal Lawyers’ Association, as outlined above.
[87] The conclusion that a Minister’s office is not a government institution flows from the modern approach to statutory interpretation, which my colleague describes as a “general roadmap”, at para. 27. But I feel it necessary to distance myself from the findings of Kelen J., which my colleague draws on as “useful guideposts” for her interpretation (para. 27).
[88] More specifically, I take issue with Kelen J.’s interpretation of Parliament’s silence regarding political records (2008 FC 766, [2009] 2 F.C.R. 86, at paras. 57-60). On the basis of that silence, Kelen J. reasoned that an interpretation of the term “government institution” that included Ministers’ offices would dramatically extend the right of access. I cannot agree with this view.
[89] As I mentioned above, this Court’s approach has been that access to information legislation creates a general right of access to which there are necessary exceptions that must be limited and specific. If the legislature is silent with respect to a given class of documents, such as political records, courts must assume, prima facie at least, that the documents in question are not exempt. Whether access can indeed be obtained as requested is a different matter for which it is necessary to design an appropriate control test. Therefore, it cannot be inferred from the legislature’s silence that political records were not intended to be disclosed at all. Politics and administration are sometimes intertwined in our democratic system. As a result, the contents of ministerial records may straddle the two worlds of politics and pure administration, if it is even possible to draw so sharp a distinction between the different roles of Ministers in Canada’s political system. On this basis, the much bolder inference that Ministers’ offices are presumptively excluded from the purview of the Access to Information Act is also incorrect.
[90] Kelen J. also concluded that all ministerial records are presumptively excluded on the basis that the Library and Archives of Canada Act, S.C. 2004, c. 11, differentiates “government records” from “ministerial records”. Government records and ministerial records are indeed different. In s. 2 of the Library and Archives of Canada Act, a “government record” is defined as “a record that is under the control of a government institution”. On the other hand, a “ministerial record” is a record
. . . of a member of the Queen’s Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is a government record.
[91] With respect, the fact that these two kinds of records are treated differently in the Library and Archives of Canada Act does not mean that ministerial records are presumptively outside the scope of the Access to Information Act. My position on the legal relationship between a Minister’s office and the government institution for which the Minister is responsible flows from a plain reading of the Act. As my colleague mentions, Ministers’ offices are not listed in Schedule I to the Act, and I accordingly agree with her that they should not be considered “government institutions” for the purposes of the Act. This being said, it does not follow that Ministers’ offices are presumptively excluded from the scope of the Act. The fact that Ministers’ offices are separate and different from government institutions does not mean that a government institution cannot control a record that is not in its premises. If a government institution controls a record in a Minister’s office, the record falls within the scope of the Act. If it falls within the scope of the Act, the head must facilitate access to it on the basis of the procedure and the limits specified in the Act.
[92] The Access to Information Act applies to records. Ministers’ offices remain within the scope of the Act inasmuch as they possess “record[s] under the control of a government institution” (s. 4). The right of access is presumed to apply to such records unless they fall under a specific exemption.
[93] In my view, the presumption that the Act applies to Ministers’ offices does not expand the right of access at all. Any requested record that is located in a Minister’s office is subject to the two-part control test proposed by my colleague.
[94] For this purpose, the “head” of the government institution must determine, first, whether the requested record relates to a departmental matter. In other words, does the record contain government information? This first stage of the test, “a useful screening device” (para. 55), will exclude all documents, such as political records (e.g. plans for a party fundraiser), that do not relate to a departmental matter.
[95] Second, the head of the government institution must determine whether the institution could reasonably expect to obtain a copy of the record upon request. As my colleague proposes, this stage of the test requires an objective analysis to determine whether that expectation is reasonable in which all relevant factors, including the content of the record, the circumstances in which it was created and the legal relationship between the government institution and the record holder, are taken into account (para. 56). If the record holder is the Minister, the fact that his or her office is not part of the government institution he or she oversees may weigh in the balance; it does not, however, create a presumption of an exception to the right of access.
4. Question of “Hybrid” Records
[96] The Access to Information Act is of course not applied in a vacuum. The reality that Ministers wear many hats must be taken into account in doing so. Thus, a Minister is a member of Cabinet who is accountable to Parliament for the administration of a government department, but is usually also a Member of Parliament in addition to being a member of a political party for which he or she performs various functions and, finally, a private person. Records connected with these different functions may blend into each other in the course of regular business.
[97] As I mentioned above, the right of access is presumed to apply to “political records”, but such records are unlikely to be under the control of a government institution if they do not relate to a departmental matter. At the other end of the spectrum are records that relate to departmental matters and are under the control of a government institution. I will refer to the latter as “government records” for the purposes of this discussion. If requested, government records should be disclosed under the Access to Information Act.
[98] It is conceivable, however, that many records will not fall neatly into one category or another. For example, departmental matters are sometimes decided on the basis of political priorities. Documents in which departmental targets are assessed in light of political aims would fall into a grey area. I will refer to such documents as “hybrid records”.
[99] The Access to Information Act provides for the existence of this grey area, at least to some extent. Thus, s. 25 provides for the severance of part of a record. Where a Minister is authorized to refuse to disclose a record, the Minister can redact the exempted portions of the document, but must disclose the portions that are not exempted.
[100] In addition, s. 21(1) provides that, subject to specific exceptions in s. 21(2), a Minister has a very broad authorization to refuse to disclose a requested record that contains any of the following:
21. (1) … (a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate,
(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
Section 21(2) reads as follows:
(2) Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
(b) a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared.
[101] Section 21 covers many of the circumstances in which certain kinds of hybrid records that contain information relating to departmental matters are produced (see s. 21(1)(a)). Section 21(1) is specifically designed to cover material produced in the course of full and frank discussions, such as deliberations in which directors, officers or employees of a government institution participate together with a Minister or a Minister’s staff (see s. 21(1)(b)).
5. Investigatory Powers of the Commissioner
[102] Though the head of a government institution has a broad discretion to either disclose or retain hybrid records, the Information Commissioner is given equally broad investigatory powers in s. 36 of the Access to Information Act. These powers can act as a check on the Minister’s discretion. As I mentioned above, Parliament has sought to strike a balance between access rights and efficient governance. On the one hand, through s. 21 and the general structure of the Act, Parliament has created a space in which Ministers may review and debate issues in private. On the other hand, through s. 36 and the general structure of the Act, Parliament has ensured that this private space is not abused.
[103] The Commissioner has the same power to summon witnesses and compel them to give evidence as a superior court of record (s. 36(1)(a)), and also has the power to administer oaths (s. 36(1)(b)), and to receive and accept such evidence as the Commissioner sees fit (s. 36(1)(c)). The Commissioner may also enter any premises of a government institution for the purposes of an investigation, as well as converse with persons and examine documents in those premises (s. 36(1)(d)). However, since a Minister’s office is not a government institution for the purposes of the Act, the Commissioner does not have the power to enter one.
[104] Importantly, pursuant to s. 36(2), the Commissioner has the power to examine “any record to which this Act applies that is under the control of a government institution”. In light of the above reasoning, records located in a Minister’s office can fall within the ambit of this provision. Section 36(2) is crucial to the balance Parliament intended to strike. Indeed, it is the first mechanism, prior to judicial review, for applying the principle that “decisions on the disclosure of government information should be reviewed independently of the government” (s. 2).
[105] Under s. 21, the head of a government institution is responsible for determining whether requested hybrid documents located in a Minister’s office should be disclosed. The first step in the assessment is to consider whether the records fall within the scope of the Act: for this purpose, the head must perform the control test we propose. If the requested documents are found to fall within the scope of the Act, the head must then perform the second step of the assessment process: to determine whether the requested records fall under any of the exemptions provided for in the Act, including in s. 21. Depending on which exemption applies, the head may or may not have the discretion to disclose the document.
[106] The purpose of the Commissioner’s investigatory powers is to determine whether the head of a government institution has complied with the Act in performing his or her duties. This includes an inquiry into whether the head has conducted the correct analysis at both stages.
[107] If a head claims to have refused access on the basis that the requested document was not under the control of a government institution, then the Commissioner may exercise only his or her powers under s. 36(1)(a) to (c). If the evidence garnered under those subsections leads the Commissioner to believe that the documents are likely under the control of a government institution, he or she may examine them to ascertain whether the control test was applied properly.
[108] If the Commissioner is entitled to inquire into whether the head applied the control test properly, the Commissioner may require access to some documents that are ultimately outside the scope of the Act. This does not broaden the public’s right of access. Section 35(1) of the Act provides that “[e]very investigation of a complaint . . . by the Information Commissioner shall be conducted in private.” Further, in the course of an investigation, parties affected by the investigation have a right to make representations (s. 35(2)). Following an investigation, the Commissioner cannot compel the head of a government institution to disclose the documents in question; rather, the Commissioner may only make recommendations to the head (s. 37). Finally, anyone who has been refused access to such records after an investigation is entitled to apply for judicial review of the decision (s. 41).
[109] With respect, I am of the view that a presumption that a Minister’s records are beyond the scope of the Act would upset the balance between the head’s discretionary powers and the Commissioner’s powers of investigation. My colleague’s analysis involves a presumption that the Commissioner would have no power whatsoever to examine records located in a Minister’s office. The Commissioner’s power would be limited to summoning witnesses and compelling them to give evidence concerning such records. Even if that evidence led the Commissioner to suspect that the control test had not been applied properly, the Commissioner would not be able to examine the documents to confirm his or her suspicions. Such an interpretation of the Act would effectively leave the head of a government institution with the final say as to whether a given document was under the institution’s control and would run counter to the purpose of the Act as outlined in s. 2, according to which decisions on the disclosure of government information must be reviewed independently. In my opinion, the presumption of an exception to the right of access that my colleague proposes would significantly weaken the Commissioner’s powers of investigation, which are crucial to the intended balance between access to information and good governance.
6. Application to the Records at Issue
[110] I agree with my colleague that, in the circumstances in which the records at issue in the first three applications were created and managed, a government institution would not have a reasonable expectation of obtaining them and that these documents were therefore not under the control of a government institution.
[111] As for the records in the possession of the Privy Council Office and the Royal Canadian Mounted Police, I agree with my colleague that, even though they were under the control of a government institution, they were subject to s. 19 of the Access to Information Act and the heads of those institutions accordingly had an obligation to refuse to disclose them.
[112] For these reasons, I would dismiss the appeals.
Appeals dismissed with costs.
Solicitor for the appellant: Information Commissioner of Canada, Ottawa.
Solicitor for the respondents: Attorney General of Canada, Ottawa.
Solicitors for the interveners: Blake, Cassels & Graydon, Toronto.
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