A case that spanned almost ten years and three changes of Canada’s top political office ended last month in a setback for access to information in Canada. The Supreme Court of Canada’s ruling in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2001 SCC 25, (“Canada v. Canada”) means that documents such as a Minister’s agenda or notebooks kept by his or her staff in the Minister’s office are not accessible to the public under the federal Access to Information Act (the “ATIA” or the “Act”) because they are not under the control of a government institution. This latest ruling continues a judicial trend in Canada, once a leader in access to information, to narrow the public’s ability to gain access to government information.

Background

Canada v. Canada, released on May 13, 2011, disposes of four appeals brought by the Information Commissioner, originally launched in 1999 after the Commissioner’s recommendations to disclose daily agendas and other documents of then-prime minister Jean Chretien, then-minister of transport David Collenette and then-minister of defence Art Eggleton went unheeded.

In what seems counter-intuitive, the Supreme Court held that “government institutions”, defined under the ATIA as government departments listed in a schedule to the Act, do not include ministerial offices. As such, the Prime Minister’s office was found not to be a part of the Privy Council Office, the office of the Minister of National Defence was found not to be a part of the Department of National Defence, and the office of the Minister of Transport was found not to be a part of the Department of Transport.

Under the ATIA, records are required to be disclosed if they are “under the control” of a government institution, unless they fit into an exemption found in the Act. In the Federal Court, Kelen J. crafted a two-step “control test”  that asks: (1) whether the contents of the record relate to a departmental matter; and (2) whether the government institution could reasonably expect to obtain a copy of the record upon request. When both parts of the test are satisfied, the record is found to be under the control of the government institution and must be disclosed, even when physically located in a ministerial office. Kelen J. ruled that none of the records requested in the first three applications were under the control of the related government institution, after taking into account their contents and the circumstances in which they were created, and this ruling was upheld by the Federal Court of Appeal.

The fourth application for access, which dealt with access to the Prime Minister’s agendas, was granted by Kelen J. He found that the agendas were in the possession of, and therefore controlled by, the Privy Council Office and Royal Canadian Mounted Police, which are government institutions listed in the schedule to the ATIA.  Although Kelen J. found that the agendas fell within the general definition of “personal information”, the information related to the Prime Minister’s function or position as an officer of the Privy Council Office and must therefore be disclosed. The Federal Court of Appeal reversed this part of the decision, holding, among other things, that it would be inconsistent with Parliament’s intention to interpret “officer” in such a way as to include the Prime Minister.

The Decision

The Supreme Court upheld the decision of the Federal Court of Appeal, concluding that the language of the ATIA supported Kelen J.’s narrow interpretation of its scope. The Court rejected the Commissioner’s “function-based” approach, which would have created an access divide between records related to a Minister’s departmental functions and non-departmental functions. Using this approach, a court would ask, among other things, whether a record was created by or on behalf of a Minister to document or give effect to the Minister’s exercise of departmental powers, duties or functions. Charron J., writing the majority decision of the Court, held that such a function-based approach would extend the reach of the ATIA into a Minister’s office, where Parliament had chosen not to go, and “dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament.”

The Supreme Court adopted Kelen J.’s two-step “control test”, rejecting the Commissioner’s argument that the test’s deficiencies mean that a Minister’s office effectively becomes a “black hole” for requested records. Rather, Charron J. held that “control” under the first part of the test must be given a broad meaning in order to ensure a meaningful right of access to information, yet filters out records not related to a departmental matter.  Regarding step two of the test, she clarified that the reasonable expectation test is objective. If a senior official of a 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 a specific statutory exemption.

Lebel J., in concurring reasons, raised concerns about the establishment by the majority of an implied exception in the ATIA that bars access to political records. His reasons encourage the presumption of open access to all records; however, from a practical perspective this amounted to a shift in emphasis only, as Lebel J. agreed that a Minister’s office was not a “government institution” and agreed with the two-step control test upheld by the majority.

In her reasons, Charron J. responded to the concerns raised by Lebel J. She wrote that if a “presumption of inaccessibility” or an implied exemption for political records is created, this is “a consequence that inevitably flows from the fact that Ministers’ offices are not government institutions within the meaning of the Act...”.

Impact of the Decision

While Charron J. expressed the belief that the two-step control test “does not lead to the wholesale hiding of records,” but rather “is crafted to answer the concern”, the Court’s decision in Canada v. Canada is a step backwards when it comes to access to information in Canada. In cementing what is effectively an exemption for political records in the Act, the Court missed an opportunity to enhance the transparency of government, and continued the trail of disappointing Canadian jurisprudence on access to information.

Paul Schabas, Iris Fischer and Stefania Zilinskas (Summer Student), Blake, Cassels & Graydon, LLP, Toronto.

Paul Schabas was counsel to the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and the Canadian Association of Journalists