2004 FC 431

T-582-01

The Attorney General of Canada and Bruce Hartley (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-606-01

The Attorney General of Canada and Jean Pelletier (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1640-00

The Attorney General of Canada and Bruce Hartley (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1641-00

The Attorney General of Canada, Meribeth Morris, Randy Mylyk and Emechete Onuoha (Applicants)

v.

The Information Commissioner of Canada and David Pugliese (Respondents)

and

T-792-01

The Attorney General of Canada and Jean Pelletier (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-877-01

The Attorney General of Canada and Randy Mylyk (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-878-01

The Attorney General of Canada and The Honourable Art C. Eggleton (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-883-01

The Attorney General of Canada and Emechete Onuoha (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-892-01

The Attorney General of Canada and Meribeth Morris (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1047-01

The Attorney General of Canada and Sue Ronald (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1254-01

The Attorney General of Canada and Mel Cappe (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1909-01

The Attorney General of Canada, The Honourable Art C. Eggleton, George Young and Judith Mooney (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-684-01

The Attorney General of Canada and Bruce Hartley (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-763-01

The Attorney General of Canada and Jean Pelletier (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-880-01

The Attorney General of Canada and Randy Mylyk (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-895-01

The Attorney General of Canada and Meribeth Morris (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-896-01

The Attorney General of Canada and Emechete Onuoha (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1049-01

The Attorney General of Canada and Sue Ronald (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1255-01

The Attorney General of Canada and Mel Cappe (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1448-01

The Attorney General of Canada and The Honourable Art C. Eggleton (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1910-01

The Attorney General of Canada and The Honourable Art C. Eggleton (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-2070-01

The Attorney General of Canada and The Honourable Art C. Eggleton (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-801-01

The Attorney General of Canada and Jean Pelletier (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-891-01

The Attorney General of Canada and The Honourable Art C. Eggleton (Applicants)

v.

The Information Commissioner of Canada (Respondent)

and

T-1083-01

The Attorney General of Canada and Mel Cappe (Applicants)

v.

The Information Commissioner of Canada (Respondent)

Indexed as: Canada (Attorney General) v. Canada (Information Commissioner) (F.C.)

Federal Court, Dawson J. --Ottawa, September 15 to 25, 2003 and March 25, 2004.

Access to Information -- Exercise of Commissioner's powers during investigations -- Whether records in Ministers' offices in control of government department -- Commissioner's delegate could issue confidentiality orders prohibiting witnesses questioned during course of investigation from divulging information, including own evidence to others, for indefinite period but here, orders breached right of individual applicants to freedom of expression as over-broad, therefore not reasonable limit prescribed by law within meaning of Charter, s. 1 -- Act, by implication, authorizing Commissioner to make copies of documents provided to him pursuant to power to subpoena documents -- No special circumstances warranting adjudication of moot questions raised in applications -- Commissioner's delegate correct in decision to compel production of legal memorandum and that not necessary for him to consider whether document absolutely required for investigation.

A number of requests were made in 1999 for disclosure of records pursuant to the Access to Information Act: to the Privy Council Office (PCO) seeking access to documents relating to the question of whether Conrad Black should be appointed to the British House of Lords; to the PCO seeking access to the Prime Minister's daily agenda book for 1994 through 1999; to the Department of National Defence (DND) for copies of all records since January 1, 1998 of the M5 group meetings (informal meetings between the Minister of National Defence, the Deputy Minister of National Defence, the Chief of Defence Staff and senior exempt staff in the Minister's office); to the Department of Transport (DOT) seeking a copy of the Minister of Transport's itinerary and/or meeting schedule for June 1, 1999 to November 5, 1999; to DND for copies of the minutes or documents produced from the M5 management meetings for 1999.

Four of the five requesters made complaints to the Commissioner in respect of the responses received to their requests, and about exemptions and exclusions applied by the PCO in response to the Black documents requests. The balance, about the fact that the requesters had not been provided with the documents requested.

The Commissioner's investigations raised issues about the jurisdiction of the Commissioner to put certain questions to individuals summoned by subpoena to give evidence before the Commissioner; the jurisdiction of the Commissioner to copy documents he has obtained pursuant to the issuance of a subpoena duces tecum; the scope of the Commissioner's power to review documents which are the subject of a claim for solicitor-client privilege; the jurisdiction of the Commissioner to make confidentiality orders prohibiting persons who have given evidence before the Commissioner from revealing any information disclosed during his or her testimony; and whether records under the control of the Prime Minister's Office (PMO) and the office of the Minister of National Defence are records "under the control of" respectively, the PCO or DND, within the meaning of that phrase as found in the Act.

These 25 applications for judicial review, except those arising out of the Black document requests, all were brought during the currency of the currency of the Commissioner's investigation. Group A (three applications) seeks a declaration that certain records under the control of the PMO or the office of the Minister of National Defence are not under the control of, respectively, the PCO or DND, and so are not under the control of a government institution. Group B (nine applications) seeks a declaration that the Commissioner lacks jurisdiction to make confidentiality orders. Consequential relief quashing the confidentiality orders made by the Commissioner is also sought. Group C (ten applications) seeks a declaration that the commissioner may not photocopy materials delivered to him pursuant to a subpoena duces tecum. Consequential relief was sought requiring the return of copies made and the prohibition of further copying. Group D (two applications) seeks a declaration that the Commissioner lacks jurisdiction to require two named parties to answer certain questions on examination under oath. Group E (1 application) seeks a declaration that the Commissioner has no jurisdiction to require the production of certain documents in respect of which a claim for solicitor-client privilege is made.

The Access to Information Act must be interpreted using the "global approach" first formulated by Driedger and in a purposive and liberal manner. It has been held to strive to balance what has been characterized as a quasi-constitutional right of access with the necessity of having a government able to function efficiently and with the requisite candour.

The control of records issue (Group A applications) could be seen as a threshold question of jurisdiction. It is best initially resolved by the Commissioner after his investigation has been completed. Both the complainants and the Court would benefit from his report. The application brought in Court file T-606-01 was dismissed on the ground that it was moot, and the remaining applications in this group were dismissed on the ground that they were premature and unripe.

Confidentiality orders (Group B applications). The 10 applicants in this group were the subject of a confidentiality order issued by the Commissioner's delegate at the commencement of the examination conducted by Commissioner's delegate. The order required each applicant not to reveal any information disclosed during his confidential testimony; authorized each applicant to disclose to the named lawyers information disclosed during his or her confidential testimony, once the lawyers had in turn undertaken not to reveal that information; required each applicant to acknowledge that the confidentiality order would apply until such time as the applicant was released from the terms of the order by the Commissioner. Some of the applicants, at their request, were allowed to communicate information disclosed during their testimony to specific individuals.

The Commissioner relied upon the statutory requirement in subsection 35(1) of the Act to the effect that investigations conducted by the Commissioner "shall be conducted in private" in order to argue that witnesses and their counsel are obliged to maintain the confidentiality of the proceedings. Case law makes it clear that what is intended in any particular case by the phrase "in private" or "in camera" depends upon the context in which it is used. The Act does not expressly impose confidentiality requirements upon persons other than the Commissioner and his staff. The confidentiality regime required by the Act is a regime that will ensure that information communicated to the Commissioner remains protected to the same extent as if not disclosed to the Commissioner. In the reasons of the Supreme Court of Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages), there was no suggestion that the statutory requirement to proceed "in private" prevented witnesses from consenting to the disclosure of their statements or otherwise imposed confidentiality obligations upon anyone other than the Commissioner of Official Languages. Any blanket regime which precludes a person from communicating for all time any information touching upon his or her testimony and appearance before the Information Commissioner would infringe that person's right to free expression guaranteed by subsection 2(b) of the Charter in a fashion that could not be justified under section 1. Furthermore, the actions of the Commissioner's delegate, as they reflect that officer's interpretation of subsection 35(1) of the Act, are inconsistent with any statutory obligation upon a witness arising from that provision to forever keep confidential what transpires during an investigation.

To determine if there was jurisdiction to issue the confidentiality orders, the appropriate standard of review was correctness. Section 34 of the Act confers a broad discretion upon the Commissioner to determine the procedure to be followed in the performance of any duty or function under the Act. It allows the Commissioner to determine in appropriate circumstances that some form of confidentiality order should be invoked and imposed upon a witness before him. However, the confidentiality orders limit the freedom of expression which is guaranteed by paragraph 2(b) of the Charter. And they were not a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter. The principles enunciated by the Supreme Court of Canada in R. v. Oakes were applied. The Commissioner asserted that the purpose of prohibiting witnesses from revealing information disclosed during their testimony was to protect the integrity of the investigation and to preserve the confidentiality of government information. These objectives are of sufficient importance to warrant, in some circumstances, overriding the constitutionally protected freedom of expression. On the basis of logic and common sense, there is a rational connection between the imposition of a confidentiality order and the protection of both the integrity of the investigations and the confidentiality of at least some information which might otherwise not be protected. However, the Commissioner has failed to demonstrate why less restrictive confidentiality orders would not have been equally effective in preserving the integrity of the investigations and preserving the confidentiality of government information. Instead of justifying to the applicants why blanket orders were required, the Commissioner's delegate required the applicants to justify why they should be permitted to exercise their right of free expression. As well, there is no cogent evidence as to why the confidentiality orders were of unlimited duration in time such that they would continue, unless varied, after the Commissioner's investigation had concluded. The need to protect future investigations do not justify an order of unlimited duration. The evidence does not support the argument that blanket orders were required such that nothing less would achieve the expressed objectives. Since four of the five investigations are ongoing, the Court was not prepared to order that the confidentiality orders be quashed with immediate effect out of concern that such an order could jeopardize the ongoing investigations. The public interest in preserving the integrity of the Commissioner's investigations justifies making an order quashing the confidentiality orders, but on terms that the operation of such order be suspended for a period of 30 days from the date of these reasons.

The solicitor-client application (Group E). This application arises out of the investigation by the Commissioner into the complaint out of the responses by the head of the PCO to the Prime Minister's agenda requests. A subpoena duces tecum required the head of the PCO to attend to give evidence before the Commissioner's delegate and to bring with him certain records. The head of the PCO invoked solicitor-client privilege with respect to certain documents and declined to produce them. While the issue of the Commissioner's ability to compel the production of a certain document may be seen to be moot in the sense that the document has already been provided to the Commissioner, an order quashing such production would have some practical value in that the memorandum would be returned by the Commissioner and presumably could not be used by the Commissioner as evidence in any subsequent proceeding. Moreover, as this dispute centres around the proper interpretation of the Act as it touches upon the ability of the Commissioner to require production of documents in respect of which a claim for solicitor-client privilege is asserted, a decision as to the scope of the Commissioner's authority to compel production would have some precedential value. The Court therefore exercised its discretion to determine this question. It was assumed, without finally deciding, that the document was subject to solicitor-client privilege.

The issue of whether the Commissioner may invade solicitor-client privilege only where it is absolutely necessary to his investigation was a question of law for which the appropriate standard of review was correctness. That conclusion was reinforced by the fact that the decision with respect to this group involved the proper interpretation of the Act as it touched on the powers of the Commissioner during the course of an investigation. Subsection 36(2) of the Act provides to the Commissioner a prima facie right of access to documents that are protected by solicitor-client privilege. That provision should not be interpreted in a restrictive fashion. First, because the Act is to be interpreted in a purposive and liberal manner. Second, because to read in limiting words not found there would circumvent the intention of Parliament. Third, this interpretation is consistent with the role of the Commissioner and the whole scheme of the Act. The special position of the Commissioner is reflected in the fact that subsection 36(2) of the Act mirrors section 46 which permits the Court to examine any record "notwithstanding . . . any privilege under the law of evidence". Support for this interpretation was found in the decision of the Federal Court of Appeal in the Ethyl case where the Court wrote: "the fact that [the documents] could be privileged makes no difference since the obstacle of privilege is eliminated by the clear wording of section 46". The Commissioner's delegate was therefore correct in his decision that he could compel the production of that document and that it was not necessary for him to consider whether the document was absolutely required for his investigation.

statutes and regulations judicially

considered

Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 3 "government institution", "record", 4(1),(3), 6, 7, 8, 9, 10, 11 (as am. by S.C. 1992, c. 21, s. 2), 13 (as am. by S.C. 2000, c. 7, s. 21), 14-26, 30(1) (as am. by S.C. 1992, c. 21, s. 4), (3), 32, 34, 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1), 37, 38, 39(1), 41, 42, 44, 46, 61, 62, 63 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1), 64, 65 (as am. idem), 68 (as am. by S.C. 1990, c. 3, s. 32; 1992, c. 1, s. 143), 69, 69.1 (as enacted by S.C. 2001, c. 41, s. 87), 72, 75, 77 (as am. by S.C. 1992, c. 21, s. 5).

Access to Information Regulations, SOR/83-507, s. 3.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38.13 (as enacted by S.C. 2001, c. 41, s. 43).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).

Fatality Inquiries Act, R.S.A. 1980, c. F-6.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).

Federal Court Rules, 1998, SOR/98-106, r. 53.

Juvenile Delinquents Act, R.S.C. 1970, c. J-3.

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31.

Privacy Act, R.S.C., 1985, c. P-21, ss. 8, 14, 51(2),(3).

Public Service Employment Act, R.S.C., 1985, c. P-33.

Securities Act, R.S.B.C. 1996, c. 418.

Security of Information Act, R.S.C., 1985, c. O-5, s. 1 (as am. by S.C. 2001, c. 41, s. 25).

cases judicially considered

applied:

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773; (2002), 214 D.L.R. (4th) 1; 289 N.R. 282; C.B. v. The Queen, [1981] 2 S.C.R. 480; (1981), 127 D.L.R. (3d) 482; [1981] 6 W.W.R. 701; 12 Man. R. (2d) 361; 62 C.C.C. (2d) 107; 23 C.R. (3d) 289; 38 N.R. 451; 25 R.F.L. (2d) 225; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335.

distinguished:

Smolensky v. British Columbia (Securities Commission) (2003), 17 B.C.L.R. (4th) 145; 109 C.R.R. (2d) 135 (S.C.).

considered:

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 213 N.R. 161; Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707; (1994), 113 D.L.R. (4th) 275; 25 Admin. L.R. (2d) 241; 54 C.P.R. (3d) 511; 167 N.R. 43 (C.A.); affd [1996] 1 S.C.R. 6; (1996), 1 D.L.R. (4th) 608; 36 Admin. L.R. (2d) 131; 66 C.P.R. (3d) 32; 191 N.R. 394; Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134; (1996), 136 D.L.R. (4th) 74; 113 F.T.R. 13 (T.D.); affd [2000] 3 F.C. 589; (2000), 187 D.L.R. (4th) 675; 42 Admin. L.R. (3d) 214; 6 C.P.R. (4th) 289; 256 N.R. 278 (C.A.); revd in part [2002] 4 S.C.R. 3; (2002), 219 D.L.R. (4th) 385; 49 Admin. L.R. (3d) 1; 22 C.P.R. (4th) 289; 7 C.R. (6th) 88; 99 C.R.R. (2d) 324; 295 N.R. 353; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; Echo Bay Mines Ltd. v. Canada (Minister of Indian Affairs and Northern Development), 2003 FCA 270; [2003] F.C.J. No. 996 (C.A.) (QL); Canada (Attorney General) v. Newfield Seed Ltd. (1989), 63 D.L.R. (4th) 644; 80 Sask. R. 134 (C.A.); Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022; (1994), 120 D.L.R. (4th) 289; [1995] 1 W.W.R. 609; 100 B.C.L.R. (2d) 1; 51 B.C.A.C. 241; 26 C.C.L.I. (2d) 1; 22 C.C.L.T. (2d) 173; 32 C.P.C. (3d) 141; 7 M.V.R. (3d) 202; 175 N.R. 161; 77 O.A.C. 81; 84 W.A.C. 241; Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219; (2002), 1 Admin. L.R. (4th) 270; 21 C.P.R. (4th) 30; 291 N.R. 236 (C.A.); Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; (2002), 312 A.R. 201; 217 Nfld. & P.E.I.R. 183; 216 D.L.R. (4th) 257; [2002] 11 W.W.R. 191; 4 Alta. L.R. (4th) 1; 167 C.C.C. (3d) 1; 3 C.R. (6th) 209; 96 C.R.R. (2d) 189; [2002] 4 C.T.C. 143; 2002 DTC 7267; 292 N.R. 296;164 O.A.C. 280.

referred to:

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin.L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; Biolyse Pharma Corp. v. Bristol-Myers Squibb Co., [2003] 4 F.C. 505; (2003), 226 D.L.R. (4th) 138; 24 C.P.R. (4th) 417; 303 N.R. 63 (C.A.); Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; (1995), 30 Admin. L.R. (2d) 242; 60 C.P.R. (3d) 441; 179 N.R. 350 (C.A.); Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609; (1996), 41 Admin. L.R. (2d) 49; 110 F.T.R. 1 (T.D.); Edmonton Journal v. Alberta (Attorney General) (1983), 49 A.R. 371; 5 D.L.R. (4th) 240; [1984] 1 W.W.R. 599; 28 Alta. L.R. (2d) 369; 8 C.R.R. 10 (Q.B.); affd (1984), 13 D.L.R. (4th) 479; [1985] 4 W.W.R. 575; 37 Alta. L.R. (2d) 287; 17 C.R.R. 100 (C.A.); Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] C.T.C. 20; 83 DTC 5041; 46 N.R. 41; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; (1988), 65 O.R. (2d) 638; 52 D.L.R. (4th) 193; 34 C.C.L.I. 237; 47 C.C.L.T. 39; [1988] I.L.R. 1-2370; 9 M.V.R. (2d) 245; 87 N.R. 200; 30 O.A.C. 210; Canada (Attorney General) v. Canada (Information Commissioner) (2001), 32 Admin. L.R. (3d) 238; 12 C.P.R. (4th) 492; 268 N.R. 328 (F.C.A.); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519; (2002), 168 C.C.C. (3d) 449; 5 C.R. (6th) 203; 98 C.R.R. (2d) 1; 294 N.R. 1; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; (1997), 38 O.R. (3d) 735; 159 D.L.R. (4th) 385; 226 N.R. 1; 109 O.A.C. 201; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522; (2002), 211 D.L.R. (4th) 193; 40 Admin. L.R. (3d) 1; 44 C.E.L.R. (N.S.) 161; 20 C.P.C. (5th) 1; 18 C.P.R. (4th) 1; 93 C.R.R. (2d) 219; 287 N.R. 203; R. v. Mohan, [1994] 2 S.C.R. 9; (1994), 114 D.L.R. (4th) 419; 89 C.C.C. (3d) 402; 29 C.R. (4th) 243; 166 N.R. 245; 71 O.A.C. 241; Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462; Canada (Information Commissioner) v. Canada (Minister of the Environment) (2000), 187 D.L.R. (4th) 127; 21 Admin. L.R. (3d) 1; 256 N.R. 162 (F.C.A.); R. v. McClure, [2001] 1 S.C.R. 445; (2001), 195 D.L.R. (4th) 513; 151 C.C.C. (3d) 321; 40 C.R. (5th) 1; 80 C.R.R. (2d) 217; 266 N.R. 275; 142 O.A.C. 201.

authors cited

Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

APPLICATIONS for judicial review of decisions by the Information Commissioner's delegate concerning procedural matters relating to the exercise of the Commissioner's powers during an investigation. Group A applications were dismissed as moot or premature and unripe. Group B applications were allowed on condition. Group C applications were dismissed. Group D applications were dismissed. Group E application was dismissed.

appearances:

Group A

David W. Scott, Peter K. Doody, Lawrence A. Elliot and Mandy Moore for applicants.

Raynold Langlois Q.C., Daniel Brunet, Patricia Boyd and Rima Kayssi for respondent Information Commissioner of Canada.

Scott Little for respondent David Pugliese.

solicitors of record:

Borden Ladner Gervais LLP, Ottawa, for applicants.

Deputy Attorney General of Canada and Langlois Kronström Desjardins, Montréal, for respondent Information Commissioner of Canada.

Gowling Lafleur Henderson LLP, Ottawa, for respondent David Pugliese.

Group B

appearances:

Peter K. Doody, Lawrence A. Elliot and Mandy Moore for applicants.

Marlys A. Edwardh, Daniel Brunet and Patricia Boyd for respondent Information Commissioner of Canada.

solicitors of record:

Borden Ladner Gervais LLP, Ottawa, for applicants.

Deputy Attorney General of Canada and Ruby & Edwardh, Toronto, for respondent Information Commissioner of Canada.

Group C

appearances:

Peter K. Doody, Lawrence A. Elliot and Mandy Moore for applicants.

Raynold Langlois, Q.C., Daniel Brunet, Patricia Boyd and Rima Kayssi for respondent Information Commissioner of Canada.

solicitors of record:

Borden Ladner Gervais LLP, Ottawa, for applicants.

Deputy Attorney General of Canada and Langlois Kronström Desjardins, Montréal, for respondent Information Commissioner of Canada.

Group D

appearances:

Peter K. Doody, Lawrence A. Elliot and Mandy Moore for applicants.

Raynold Langlois, Q.C., Daniel Brunet, Patricia Boyd and Rima Kayssi for respondent Information Commissioner of Canada.

solicitors of record:

Borden Ladner Gervais LLP, Ottawa, for applicants.

Deputy Attorney General of Canada and Langlois Kronström Desjardins, Montréal, for respondent Information Commissioner of Canada.

Group E

appearances:

Peter K. Doody, Lawrence A. Elliot and Mandy Moore for applicants.

Raynold Langlois, Q.C., Daniel Brunet, Patricia Boyd and Rima Kayssi for respondent Information Commissioner of Canada.

solicitors of record:

Borden Ladner Gervais LLP, Ottawa, for applicants.

Deputy Attorney General of Canada and Langlois Kronström Desjardins, Montréal, for respondent Information Commissioner of Canada.

EDITOR'S NOTE

The Editor, as authorized by subsection 58(2) of the Federal Courts Act, has decided that these 172-page reasons should be published in the official reports in the abridged format. These proceedings are unusual as they do not involve disputes over the results of the Commissioner's investigation but procedural matters relating to the exercise of the Commissioner's powers during an investigation. These cases are significant as the determination of the issues raised go directly to the manner in which the Commissioner may conduct future investigations. Editor's notes replace the omitted portions.

The following are the reasons for order rendered in English by

[1]Dawson J.: These 25 applications for judicial review raise significant issues relating to the conduct of investigations by the Information Commissioner (Commissioner) pursuant to the Access to Information Act, R.S.C., 1985, c. A-1 (Act). Specifically, various applicants put in issue: the jurisdiction of the Commissioner to put certain questions to individuals summoned by subpoena to give evidence before the Commissioner; the jurisdiction of the Commissioner to copy documents he has obtained pursuant to the issuance of a subpoena duces tecum; the scope of the Commissioner's power to review documents which are the subject of a claim for solicitor-client privilege; the jurisdiction of the Commissioner to make confidentiality orders prohibiting persons who have given evidence before the Commissioner from revealing any information disclosed during his or her testimony; and whether records under the control of the Prime Minister's Office and the office of the Minister of Defence are records "under the control of" respectively, the Privy Council Office or the Department of National Defence, within the meaning of that phrase as found in the Act.

[2]These reasons are lengthy. In them I:

(i) accept the submissions of the parties that the issue of the propriety of the disputed questions is moot, and accept the further submissions of the Commissioner that this is not a proper case for the Court to exercise its discretion to decide an issue which is moot;

(ii) accept the submission of the Commissioner that the Act by implication authorizes the Commissioner to make copies of documents provided to him pursuant to his power to subpoena documents;

(iii) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to require production of a specific legal memorandum, notwith-standing the claim that it was the subject of solicitor- client privilege. I further accept the Commissioner's submission that it was not necessary for his delegate to conclude that the memorandum was "absolutely required" for the investigation before requiring its production;

(iv) accept the submission of the Commissioner that the Act authorized the Commissioner's delegate to impose confidentiality orders upon witnesses who appeared before him to give evidence. However, I also accept the submission of the applicants that the confidentiality orders in question breached the right of the individual applicants to freedom of expression, and that the orders were over-broad and so were not a reasonable limit prescribed by law so as to be valid pursuant to section 1 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, appendix II, No. 44]]. In the result, I order that the confidentiality orders be set aside, but on the condition that the orders will remain in effect for 30 days. This period will protect the ongoing status of the Commissioner's investigation by affording the Commissioner the opportunity to consider the need for confidentiality orders and, if required, to issue orders which are not over-broad and which are justified on the evidence before the Commissioner; and

(v) accept the submission of the Commissioner and Mr. Pugliese that it is premature to adjudicate upon the request for a declaration that records under the control of the Prime Minister's Office or the office of a minister are not under the control of a government institution and are not subject to the Act. This issue should only be determined by the Court after the Commissioner has been allowed to complete his investigation and report.

Editor's note

Note de l'arrêtiste

Paragraph [3] is an index of the headings and sub-headings of the reasons for judgment, and paragraph [4] is an introductory note.

1. BACKGROUND FACTS

[5]These proceedings have their genesis in a number of requests made in 1999 for disclosure of records pursuant to the Act.

(i) The requests

[6]The relevant requests were:

1. On June 23 and June 25, 1999, requests were made to the Privy Council Office seeking access to documents relating to the question of whether Conrad Black, then a Canadian citizen, should be appointed to the British House of Lords (Black documents requests).

2. On June 28, 1999, six requests were made to the Privy Council Office seeking access to the Prime Minister's¹ daily agenda book for 1994 through 1999 (Prime Minister's agenda requests).

3. On September 22, 1999, a request was made to the Department of National Defence for copies of all records since January 1, 1998 of the M5 group meetings (September 22 M5 documents request). "M5" is the term used to describe informal meetings between the Minister of National Defence, the Deputy Minister of National Defence, the Chief of the Defence Staff and senior exempt staff in the Minister's office. "Exempt staff" are persons appointed by a minister or the Prime Minister to his or her staff and they hold office at the pleasure of the person who appointed them. Exempt staff are not public servants.

4. On November 5, 1999, a request was made to the Department of Transport seeking a copy of the Minister of Transport's itinerary and/or meeting schedule for the period from June 1, 1999 to November 5, 1999 (Minister of Transport's agenda request).

5. On November 12, 1999, a request was made to the Department of National Defence for copies of the minutes or documents produced from the M5 management meetings for 1999 (November 12 M5 documents request).

The Privy Council Office, the Department of National Defence and the Department of Transport are government institutions to which the Act extends.

(ii) The responses to the requests

[7]The following responses were made to each request.

1. With respect to the Black documents requests, on September 7, 1999 both requesters were provided with some documents in response to their respective requests. However, some records or portions thereof were not provided to the requesters because the Privy Council Office claimed certain exemptions and exclusions pursuant to relevant provisions of the Act.

2. In response to the Prime Minister's agenda requests, the Privy Council Office advised the requester on July 13, 1999 that in respect of five of the six requests for the Prime Minister's agendas, there were no records under the control of the Privy Council Office which were responsive to the requests. With respect to the sixth request, the requester was advised on August 11, 1999 that the Privy Council Office would neither confirm nor deny the existence of any records relating to the request but that should any such records exist, they would be exempt from disclosure pursuant to subsection 19(1) of the Act as being personal information.

3. With respect to the September 22 M5 documents request, on October 18, 1999 the Department of National Defence responded that their search failed to uncover any relevant records.

4. In response to the Minister of Transport's agenda request, the requester was advised on December 22, 1999 that no records existed in Transport Canada's files responsive to the request. It was noted that the Minister's itinerary/meeting schedules were prepared and maintained by his political staff and were not considered to be departmental records.

5. With respect to the November 12 M5 documents request, on February 15, 2000 the Department of National Defence advised that a search failed to uncover any documents such as those requested.

(iii) The complaints

[8]Four of the five requesters made complaints to the Commissioner in respect of the responses received to their requests. No complaint was made with respect to the September 22 M5 documents request. The requesters complained about the exemptions and exclusions applied by the Privy Council Office in response to the Black documents requests. The balance of the complaints were that the requesters had not been provided with the documents requested.

[9]Subsequently, in the course of investigating the complaint arising from the November 12 M5 documents request, the Commissioner received information which satisfied him that there were reasonable grounds upon which to investigate the response to the September 22 M5 documents request. Accordingly the Commissioner proceeded with a self-initiated complaint with respect to that request.

(iv) The Commissioner's investigations

[10]On receipt of the complaints, as the Commissioner was obliged to do under the Act, he began to investigate the complaints. Pursuant to those investigations, conducted by his delegate, the Deputy Information Commissioner, the Commissioner issued subpoenas duces tecum to witnesses, copied records which were produced pursuant to such subpoenas, examined under oath witnesses who had been subpoenaed, and at the outset of some of those examinations made confidentiality orders, all as discussed in more detail below.

(v) The status of the Commissioner's investigations

[11]The Commissioner's investigations of the complaints about access refusals stemming from the requests for the Prime Minister's agendas, the September 22 and November 12 M5 documents, and the Minister of Transport's agendas remain ongoing.

[12]The Commissioner has completed his investigation of the complaints based on the refusal of the Privy Council Office to grant access to the Black documents. After the complaints were received, the Coordinator for Access to Information and Privacy for the Privy Council Office conducted a re-examination of the records. As a result of that re-examination, additional information was provided to the requesters/complainants. Subsequently, the Commissioner concluded in the Black documents requests investigation that the exemptions and exclusions were properly claimed and that the remaining Black documents ought not to be disclosed. The Commissioner argues that issues arising from this concluded investigation are not justiciable as being moot and unnecessary. Those arguments are addressed below.

(vi) These proceedings

[13]The proceedings in this Court are of an unusual nature. Generally, proceedings relating to the Act are brought in this Court only after the results of the Commissioner's completed investigation have been reported to both the person who made the complaint about a refusal of access and to the head of the government institution which has refused access. The present applications for judicial review, except those arising out of the Black documents requests, all are brought during the currency of the Commissioner's investigation. Those applications therefore impact upon the right of the Commissioner to conduct investigations under the Act.

2.     ORGANIZATION OF THE 25 APPLICATIONS FOR JUDICIAL REVIEW

[14]As noted at the outset, these reasons are in respect of 25 applications for judicial review. Pursuant to an order of the case management Judge, the applications were divided into five groups with the applications contained within those groups to be heard serially. The applications contained in each group were consolidated within that group.

[15]Counsel have described these groups as groups A, B, C, D and E. They will be referred to as such in these reasons. What follows is a listing of which applications fall within each group together with a brief description of the issue raised in each group.

Group A: A declaration is sought that certain records under the control of the Prime Minister's Office or the office of the Minister of National Defence are not under the control of, respectively, the Privy Council Office or the Department of National Defence, and so are not under the control of a government institution. These applications are called the "Control of Records Applications". There are three applications in this group: T-606-01, T-1640-00 and T-1641-00.

Group B: A declaration is sought that the Commissioner lacks jurisdiction to make confidentiality orders. Consequential relief quashing the confidentiality orders made by the Commissioner is also sought. These are called the "Confidentiality Order Applications". There are nine applications in this group: T-582-01, T-792-01, T-877-01, T-878-01, T-883-01, T-892-01, T-1047-01, T-1254-01 and T-1909-01.

Group C: A declaration is sought that the Commissioner may not photocopy materials delivered to him pursuant to a subpoena duces tecum. Consequential relief is sought requiring the return of copies made and the prohibition of further copying. These are called the "Copying of Records Applications". There are ten applications in this group: T-684-01, T-763-01, T-880-01, T-895-01, T-896-01, T-1049-01, T-1255-01, T-1448-01, T-1910-01 and T-2070-01.

Group D: A declaration is sought that the Commissioner lacks jurisdiction to require two named parties to answer certain questions on examination under oath. These are called the "Propriety of Questions Applications". There are two applications in this group: T-801-01 and T-891-01.

Group E: A declaration is sought that the Commissioner has no jurisdiction to require the production of certain documents in respect of which a claim for solicitor-client privilege is made. This is called the "Solicitor-Client Application". There is one application in this group: T-1083-01.

3.     THE APPLICABLE PRINCIPLES OF STATUTORY INTERPRETATION

[16]Resolution of the issues before the Court turns largely upon the proper interpretation to be given to a number of provisions in the Act.

[17]The starting point for the interpretation of the Act is the following well-known and accepted statement of principle:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See: E. A. Driedger in Construction of Statutes (2nd ed. 1983), at page 87 as cited in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 27.

[18]This approach requires a court to attribute to a legislative provision the meaning that best accords with both the text and the context of the provision. While neither can be ignored, as the Federal Court of Appeal observed in Biolyse Pharma Corp. v. Bristol-Myers Squibb Co., [2003] 4 F.C. 505, at paragraph 13, the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.

[19]The Act is to be interpreted in a purposive and liberal manner. See: Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.), at paragraph 33 and Canada (Privacy Commission) v. Canada (Labour Relations Board), [1996] 3 F.C. 609 (T.D.), at paragraph 47.

[20]The Act has been held to strive to balance what has been characterized as a quasi-constitutional right of access with the necessity of having a government able to function efficiently and with the requisite candor. The quasi-constitutional status of legislation is a factor to be considered in interpreting the legislation in that it recognizes the special purpose of the legislation. That status does not, however, operate to alter the traditional approach to the interpretation of legislation. See: Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at paragraph 25.

[21]Given the need to view the relevant provisions of the Act in the context of the Act as a whole, I now turn to review generally the regime prescribed by the Act.

4.     THE LEGISLATIVE CONTEXT

(i)     The purpose of the Act

[22]In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 61, Mr. Justice La Forest writing in dissent, but not dissenting on this point, wrote that the "overarching purpose of access to information legislation . . . is to facilitate democracy". The legislation does this by insuring that citizens are properly informed so as to be able to participate meaningfully in the democratic process and by insuring that politicians and bureaucrats remain accountable to citizens.

[23]In subsection 2(1) of the Act, Parliament expressly articulated the purpose of the legislation. The Act is stated to "extend the 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."

(ii) The right of access and requests for access

[24]Subsection 4(1) of the Act provides that every person who is a Canadian citizen or a permanent resident (as defined) "has a right to and shall, on request, be given access to any record under the control of a government institution". The word "record" is broadly defined in section 3 of the Act. The term "government institution" is there defined as "any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I." Requests for access are to be made in writing to the government institution that has control of the record in question (section 6). The general rule (subject to specific exceptions found in sections 8, 9, and 11 [as am. by S.C. 1992, c. 21, s. 2] of the Act) is that within 30 days of receipt of the request, the head of the government institution to which the request is made shall give written notice to the requester as to whether access to all or part of the record will be given and, where access is to be given, give access to the record or a part thereof (section  7).

[25]Where the head of a government institution refuses to grant access to all or part of a requested record, he or she is required by section 10 of the Act to state in the notice given under section 7 either that the record does not exist or to provide the specific provision of the Act on which the refusal is based or on which a refusal could be reasonably expected to be based if the record existed. This latter provision reflects that the head of a government institution may, but is not required to, indicate whether a record exists. The notice provided to the access requester must also advise of the requester's right to make a complaint to the Commissioner about a refusal of access. Failure to provide a record requested within the time limits set out in the Act is deemed to be a refusal of access (subsection 10(3)).

(iii) The exemptions from access

[26]Sections 13 [s. 13 (as am. by S.C. 2000, c. 7, s. 21)] to 26 of the Act contain provisions that either prohibit the disclosure of certain types of records or grant a discretion to the head of a government institution as to whether a record is disclosed. Illustrative of the prohibitions on disclosure are paragraph 13(1)(a) of the Act which prohibits disclosure of a record containing information obtained in confidence from a foreign state unless that state consents to the disclosure of the record or itself makes the information public, and section 19 of the Act which prohibits disclosure of a record that contains personal information (as defined in the Privacy Act, R.S.C., 1985, c. P-21) unless the information is publicly available, or the disclosure is authorized by the individual to which it relates or is otherwise permitted by section 8 of the Privacy Act. Examples of circumstances where discretion is granted regarding the disclosure of a record are found at section 14, which applies to a record containing information which if disclosed could reasonably be expected to be injurious to the federal government's conduct of federal-provincial affairs, and paragraph 21(1)(b) of the Act which applies to a record that contains an account of consultations or deliberations involving a Minister of the Crown, or the staff of a Minister of the Crown, or government officers or employees.

(iv)     The complaint and investigative process

[27]The Commissioner is obliged to receive and investigate complaints made to him (subsection 30(1) [as am. by S.C. 1992, c. 21, s. 4]). Those complaints may be made in a number of specified circumstances. For example, a complaint may be made where a person has been refused access to all or part of a requested record, and a complaint may be made in respect of any other matter relating to requesting or obtaining access to records under the Act. The Commissioner may also initiate a complaint at his own behest where he is satisfied that there are "reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act" (subsection 30(3)). These powers transcend the simple obligation and right to investigate a specific refusal to give access to a specific requested record.

[28]Before commencing an investigation of a complaint, the Commissioner must notify the head of the concerned government institution of his intent to investigate and also inform the head of the substance of the complaint (section 32). The Commissioner is also obliged to afford to a complainant and to the head of the relevant government institution a reasonable opportunity to make representations (subsection 35(2)).

[29]Section 34 of the Act provides that, subject to the Act, the Commissioner "may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act". Specific powers in relation to the conduct of investigations are reposed in the Commissioner by section 36 of the Act. Examples of these powers are that the Commissioner may summon and enforce the appearance of persons before him, and compel them to give oral or written evidence on oath and to produce such documents 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 (paragraph 36(1)(a)). The Commissioner may receive and accept such evidence or other information as the Commissioner sees fit, whether the evidence or information is, or would be, admissible in a court of law (paragraph 36(1)(c)). The Commissioner may enter into premises occupied by any government institution and may examine or obtain copies of or extracts from relevant books or records found in such premises (paragraphs 36(1)(d) and (f)).

[30]Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Commissioner may during his investigation examine any record to which the Act applies that is under the control of the government institution and "no such record may be withheld from the Commissioner on any grounds" (subsection 36(2)). Subsection 36(5) provides that any document or thing produced pursuant to this section shall be returned by the Commissioner within 10 days of a request being made for such return, but nothing in the subsection precludes the Commissioner from again requiring production of the document. The Commissioner is obliged to conduct his investigation in private (subsection 35(1)). Except in the case of prosecutions and court proceedings under the Act, evidence given by a person in proceedings under the Act, and evidence of the existence of such proceedings are inadmissible against a person in a court or in any other proceedings (subsection 36(3) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1]).

[31]After the Commissioner completes his investigation, if he finds that the complaint is well-founded he is required to provide a report to the head of the government institution that has control of the record. The report shall contain the findings of the investigation and any recommendations that the Commissioner considers appropriate. The Commissioner may also request that he be given notice, within a specified period of time, of any actions taken or proposed to be taken in order to implement the Commissioner's recommendations. Alternatively, the Commissioner may request that he be advised of the reasons why no such action has been taken or is proposed. The Commissioner shall also make a report to the complainant. Where the government institution fails to respond to the Commissioner within the time specified, or any action to be taken described by the government institution is inadequate in the view of the Commissioner, the Commissioner shall so advise the complainant and the Commissioner "may include in the report [to the complainant] such comments on the matter as he thinks fit". The Commissioner shall also inform the complainant of his or her right to apply to this Court for a review of the matter investigated (section 37).

[32]The Commissioner can not order that any record be released. His powers are limited to making recommendations to the relevant government institution.

(v) Reports to Parliament

[33]The Commissioner is required to report annually to Parliament on the activities of his office (section 38). Additionally, he may at any time make a special report to Parliament "referring to and commenting on any matter within the scope of his powers, duties and functions" where, in his view, the matter is of such urgency or importance that such report should not be delayed (subsection 39(1)).

[34]This obligation is mirrored in section 72 of the Act which requires the head of each government institution to report annually to Parliament with respect to the administration of the Act within the institution each year.

[35]Section 75 of the Act requires that the administration of the Act be reviewed on a permanent basis by such committee of the House of Commons, the Senate, or of both Houses of Parliament as may be designated by Parliament for that purpose.

(vi) Review by the Federal Court

[36]Section 41 of the Act allows a person who has been refused access and who has made a complaint to the Commissioner in respect of the refusal, to apply to this Court for a review of the matter. Such application is to be made within 45 days of the Commissioner's report to the complainant and is a further independent review of a decision of government as to whether government information should be disclosed.

[37]The Commissioner may, with the consent of the complainant, initiate such application. The Commissioner may also appear before the Court on behalf of any person who has brought such application and, with the Court's leave, may appear as a party to any review (section 42).

[38]On such application, the Court is given the same access to records as the Commissioner is given on his investigation (section 46).

(vii) The confidentiality provisions

[39]The Commissioner and persons acting on his behalf who receive or obtain information relating to an investigation shall, with respect to that information, satisfy the security requirements and take any oath of secrecy required of persons who normally have access to that information (section 61). The Commissioner and those acting on his behalf are prohibited from disclosing any information that comes to their knowledge in the performance of their duties (section 62) and must take every reasonable precaution to avoid the disclosure of and shall not disclose information which the head of a government institution would be authorized to refuse to disclose, or any information as to whether a record exists where the head of a government institution has not indicated whether it exists (section 64). The Commissioner and those acting on his behalf are not competent or compellable in respect of a matter coming to their knowledge as a result of performing duties or functions under the Act, except in cases of prosecutions for offences under the Act or for perjury, and except with respect to review proceedings in this Court under the Act and appeals therefrom (section 65 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1]). Disclosure is, of course, permitted for the purpose of carrying out investigations under the Act and in order to establish grounds for findings and recommendations contained in any report under the Act (section 63 [as am. idem]).

(viii) Material not subject to the Act

[40]The Act does not apply to certain specific and limited materials. Section 68 [as am. by S.C. 1990, c. 3, s. 32; 1992, c. 1, s. 143] provides that the Act does not apply to certain described material which is in the public domain. The Act also does not apply to confidences of the Queen's Privy Council for Canada (as defined) except where such confidences have been in existence for more than 20 years or where they are contained in certain specifically described discussion papers (section 69). Finally, the Act does not apply to information which is the subject of a certificate issued under section 38.13 [as enacted by S.C. 2001, c. 41, s. 43] of the Canada Evidence Act, R.S.C., 1985, c. C-5 (section 69.1 [as enacted by S.C. 2001, c. 41, s. 87]). Section 38.13 of the Canada Evidence Act relates to protecting information obtained in confidence from or in relation to a foreign entity and to protecting national defence or national security.

(ix) The Regulations to the Act

[41]Regulations have been enacted pursuant section 77 of the Act. Section 3 of the Access to Information Regulations, SOR/83-507 provides that for the purpose of subsection 4(3) of the Act (which applies to access to records produced from machine readable records) a record that does not exist, but which can be produced from a machine readable record may not be produced where its production would unreasonably interfere with the operations of the institution. This reflects the proper concern that the Act not interfere with the operation of government.

(x) Summary

[42]In sum, the Act enshrines a right of access to government information and exceptions to that general right are to be limited and specific. The Act should be interpreted to provide a meaningful right of access. Fundamental to the structure of the Act is that government itself is not to decide whether information is exempt from disclosure. There is an independent review mechanism and the Commissioner's investigation is the first step in that process. The Commissioner is, however, never the decision maker. At first instance, he or she provides advice to the head of the government department who makes the initial decision about disclosure. Ultimately, in the event of dispute, it is a matter for this Court to determine.

Editor's note (replaces paragraphs 43 to 120):

Paragraphs 43 to 120 deal with the control of records applications. In Court file T-1640-00, the applicants sought a declaration that the records which were copies of the Prime Minister's agenda books for fiscal or calendar years 1994 to Jun e 25, 1999 and were under the control of the Office of the Prime Minister (PMO) were not records under the control of the Privy Council Office (PCO) within the meaning of that phrase in subsection 2(1) of the Access to Information Act. In Court file T-1641-00, the applicants sought a declaration that personal notes made by the applicants in their notebooks, being notes of some things said during the M5 management meetings for 1999, were not records under the control of the Department of National Defence, within the meaning of that phrase in subsection 2(1) of the Act. In Court file T-606-01, the applicants sought a declaration that the subject documents relating to the Black documents requests were under the control of the PMO and were not records under the control of the PCO within the meaning of that phrase in subsection 2(1) of the Act.

The applicants argued that the PMO and the office of a minister of the Crown are separate and distinct from the PCO or the department for which that minister is responsible. The Commissioner's position was that the Court should exercise its discretion and dismiss the applications as being premature, unnecessary and improper. The Commissioner argued that the question of control was a question initially to be determined by th e Commissioner following completion of his investigation. Since the investigations in Court files T-1640-00 and T-1641-00 were ongoing, in order to not to impair his role as a neutral fact-finder, the Commissioner has taken no position on the control issue.

Given McKeown J.'s order authorizing the Commissioner to be named respondent in Court files T-1640-00 and T-1641-00, it was not appropriate for the Commissioner to now assert that he was not a proper respondent in these two applications. The application in Court file T-606-01 was moot. Since the control issue remains a live issue in the two other cases, there was no need for the Court to exercise its discretion to allow the control issue raised in Court file T-606-01 to proceed. The Commissioner was a proper respondent therein.

The main issue was whether the Court should exercise its discretion to grant the requested declarations. Courts will generally exercise discretion not to grant declaratory relief where an adequate alternative remedy exists, where the claim is not ripe for determination, or where the declaration is sought to settle a dispute which is contingent upon a future event which may not occur. First, it was determined that the question of control of records was not a pure question of law, but rather a question of mixed fact and law. To determine whether the Court ought to exercise its discretion to refuse the requested declarations because they are premature, unnecessary and improper, certain factors had to be considered. (1) The statutory scheme. The investigation the Commissioner is required to conduct is the cornerstone of the access to information scheme. The Court is meant to exercise its independent review only after the Commissioner has completed his investigation and after the head of the affected government institution and the complainant have had the benefit of the Commissioner's investigation. (2) The adequacy of the statutory scheme. Recourse to the statutory scheme would provide an adequate remedy to the applicants b ecause in the event that the Commissioner, after the conclusion of his investigation, does recommend disclosure of any of the records at issue, any refusal of access may be reviewed in this Court. Allowing the Commissioner's investigation to continue will provide an adequate remedy to the applicants. No prejudice will arise as a result of the delay caused by dismissing these applications. (3) Control as a question of jurisdiction for the Commissioner. The scheme of the Act is sufficiently comprehensive so that the Commissioner has the authority to initially determine whether records are within the control of a government institution. The correctness of such a determination is then reviewable by this Court in a proceeding pursuant to sections 41, 42 or 44 of the Act. Generally, it is preferable to allow a tribunal to determine initially whether the matters fall within its jurisdiction. (4) The state of the evidentiary record. Any need to resolve factual issues or any uncertainty about the completeness of the required record will weigh strongly against granting declaratory relief. It may well be the case that a decision as to whether a record is in the control of a government institution must be made on a record by record basis having regard to a number of factors, including the content of the record. The applicants did not put the records in question in evidence on a confidential basis, and their absence was a matter of concern. Given that the question of control is not a pure question of law, but a question of mixed fact and law, the whole of the evidence taken together is such that it would be unsafe to make the declarations requested on the evidentiary basis before the Court. (5) The existence of prejudice to the applicants if the declarations are not granted at this time. Considering any of the possible scenarios, the applicants would not suffer prejudice if the applications were dismissed as being premature. Judicial review would remain available should the requesters or the Commissioner challenge the lawfulness of any refusal of access. Moreover, the Federal Court of Appeal has already determined, in the interlocutory appeal herein (Canada (Attorney General) v. Canada (Information Commissioner)), that no irreparable harm would arise if the Commissioner pursued his investigation by enforcing a subpoena duces tecum. The applications are therefore premature and unripe and should be dismissed on that ground.

(iv) Conclusion re Group A

[121]The foregoing analysis leads me to conclude that:

(i) Parliament and the Court have recognized the importance of the Commissioner's investigation and independent review where access rights are in dispute. While the Court has jurisdiction to grant the relief requested, the Court should be cautious because to do so will deprive the applicants, the complainants and the Court of the benefit of the Commissioner's investigation and report;

(ii) Following the statutory scheme will afford an adequate remedy to the applicants;

(iii) The issue of control can be seen as a threshold question of jurisdiction. The Court has generally held that such questions are best initially resolved by the affected tribunal, in this case the Commissioner;

(iv) A real issue has been raised as to the completeness of the evidentiary basis before the Court. Should the Commissioner's investigation be concluded and the matter then come before this Court pursuant to an application brought pursuant to section 41 or 42 of the Act, the Court would benefit from the Commissioner's ability to disclose information to establish the grounds for the findings and recommendations contained in his report as permitted by subparagraph 63(1)(a)(ii) of the Act; and

(v) The evidence does not support the conclusion that the applicants will suffer any prejudice if the applications are dismissed as being premature.

[122]Therefore, in the exercise of the Court's discretion, I conclude that these applications are premature and unripe and should be dismissed on that ground.

[123]Because the declarations are refused on the ground that they are premature, it follows that the Commissioner's investigations will in all likelihood continue. The Court in that circumstance should refrain from any comment upon the merits of the control issue.

[124]Accordingly, an order will issue confirming that the Commissioner is a proper respondent in Court files T-1640-00, T-1641-00 and T-601-01. The order will dismiss the application brought in Court file T-606-01 on the ground that it is moot, and dismiss the remaining applications in this group on the ground that they are premature and unripe.

6.     GROUP B: THE "CONFIDENTIALITY ORDER" APPLICATIONS

(i)     Additional relevant facts

[125]In the course of investigating the five complaints (the four complaints made to the Commissioner and the self-initiated complaint with respect to the September 22 M5 request) the Commissioner's delegate caused subpoenas duces tecum to be issued to individuals who are applicants in these proceedings. In chronological order the following subpoenas duces tecum were issued:

(a) On August 11, 2000 directed to Mr. Bruce Hartley, the executive assistant to the Prime Minister, with respect to the Prime Minister's agenda requests;

(b) On August 11, 2000 directed to Mr. Emechete Onuoha, then the executive assistant to the Minister of National Defence; Ms. Meribeth Morris, then the director of operations to the Minister of National Defence; and Mr. Randy Mylyk, then the director of communications to the Minister of National Defence, all with respect to the November 12 M5 documents request;

(c) On March 8, 2001 directed to Mr. Jean Pelletier, then the chief of staff to the Prime Minister, with respect to the Black documents requests;

(d) On April 6, 2001 directed to the Honourable Art Eggleton, then the Minister of National Defence, with respect to the November 12 M5 documents request;

(e) On April 23, 2001 directed to Ms. Sue Ronald, then the executive assistant to the Minister of Transport, with respect to the Minister of Transport agenda request;

(f) On May 17, 2001 directed to Mr. Mel Cappe, then the clerk of the Queen's Privy Council for Canada and secretary to the Cabinet, with respect to the Prime Minister's agenda requests;

(g) On August 9, 2001 a second subpoena to Mr. Eggleton with respect to both the September 22 and November 12 M5 documents requests.

[126]All of the applicants are represented by the same lawyers: Messrs. David Scott, Peter Doody, Lawrence Elliot and Guy Pratte, of the law firm Borden Ladner Gervais LLP. These counsel represented each individual applicant before the Commissioner's delegate when each gave evidence as a result of the service of the subpoenas duces tecum. At the same time Borden Ladner Gervais LLP represented, and continues to represent, the Government of Canada, the Attorney General and the Prime Minister.

[127]Each of the ten applicants was the subject of a confidentiality order issued by the Commissioner's delegate at the commencement of the examination conducted by the Commissioner's delegate. As to the terms of those orders, each confidentiality order:

(a) required each applicant not to reveal "any information disclosed during my confidential testimony in this matter including the evidence given by me";

(b) authorized each applicant to disclose to Messrs. Scott, Doody, Elliott and (later) Pratte information disclosed during his or her confidential testimony, once each of those lawyers had executed an undertaking not to reveal to any person information disclosed during that particular applicant's confidential testimony; and

(c) required each applicant to acknowledge that the confidentiality order would apply until such time as the applicant was released from the terms of the order by the Commissioner.

[128]Some of the applicants requested that they be allowed to communicate information disclosed during their testimony to specific individuals.

[129]Mr. Pelletier asked to be allowed to communicate information disclosed during his testimony to the Prime Minister. Mr. Pelletier's counsel advised the Commissioner's delegate that if Mr. Pelletier was allowed to communicate this information to the Prime Minister, the Prime Minister would be prepared to execute an undertaking of confidentiality on the basis that the Prime Minister would be permitted to communicate the confidential information to members of his Cabinet. The confidentiality order issued to Mr. Pelletier provided that Mr. Pelletier could disclose the confidential information to the Prime Minister, but only if the Prime Minister entered into an undertaking by which the Prime Minister agreed not to disclose the information to anyone, including his Cabinet. The Prime Minister was not prepared to execute that undertaking.

[130]Counsel for Mr. Cappe requested that the confidentiality order issued to Mr. Cappe be amended in order to allow Mr. Cappe to communicate information to the Prime Minister. That request was denied by the Commissioner's delegate.

[131]The confidentiality order issued to the Honourable Art Eggleton allowed him to disclose the confidential information to the Prime Minister, on condition that the Prime Minister undertake not to reveal that information to any other person. The Prime Minister did not execute that undertaking.

[132]Counsel for Mr. Cappe requested that the confidentiality order issued to him be amended to allow information disclosed during Mr. Cappe's testimony to be shared with a further lawyer from the Borden Ladner Gervais LLP law firm who was assisting with the case. That request was denied by the Commissioner's delegate.

[133]Counsel for the Honourable Art Eggleton, Mr. Onuoha, Ms. Morris and Mr. Mylyk requested that those four witnesses, who had all testified, be permitted to communicate with each other and with the Attorney General of Canada. That request was denied by the Commissioner's delegate.

[134]A further request was made as set out at page 32 of the transcript of the confidential proceedings before the Commissioner's delegate filed in Court file T-582-01, and that request was denied.

[135]As for the effect of the confidentiality orders, counsel for the Commissioner in oral argument characterized the orders as precluding a report by a witness of what transpired in an in camera process. The wording used (which precluded revealing "all information disclosed during the confidential testimony of [the witness] including the evidence of [the witness]") would, in my view, prohibit disclosure of the questions asked, the answers given, the nature and content of any documents shown to the witness, any could well prohibit disclosure of objections made to questions asked and any rulings given in response to objections. A relevant statement as to the intended scope of confidentiality order was made by the Commissioner's delegate at page 243 of the confidential examination of Mr. Cappe conducted on June 21, 2001.

[136]Mr. Cappe swore in an affidavit filed on the public record in these proceedings that:

29. At the time I appeared before the Information Commissioner's delegate in response to the subpoena, the Government was considering whether to introduce before Parliament amendments to the Access to Information Act. Until the Confidentiality Order was made, the Prime Minister and I had frequently discussed issues arising under the Access to Information Act, relating to both the policy in respect of the statute and its administration. These discussions which sometimes included Mr. Jean Pelletier, then the Prime Minister's Chief of Staff, were frank and candid.

30. I would have liked to be able to tell the Prime Minister about the manner and substance of the proceedings before Mr. Leadbeater. They were relevant to the policy issue of whether amendments ought to be made to the Act. After the Confidentiality Order was issued, and Mr. Pelletier was subject to a similar Confidentiality Order in respect of his own evidence, we had to be more cautious in our discussions.

[137]On cross-examination upon his affidavit Mr. Cappe testified that the confidentiality order precluded him from discussing the body language of his inquisitor and his tone of voice. Mr. Cappe said that to start talking about any element, including describing the seating arrangements, the distance between himself and the investigator, the placement of counsel and whether his counsel was allowed to speak, would be to start disclosing information which had been disclosed during his testimony. Mr. Cappe was of the view that the order inhibited his ability to discuss or make reference to his experience and limited his ability to raise issues that came up in the course of his testimony. To enter into a discussion of some issues of administration of the Act would result, in Mr. Cappe's view, in engaging in a conversation about matters he was not aware of before his testimony to the Commissioner's delegate.

[138]The reasons provided by the Commissioner's delegate for issuing the confidentiality orders were as follows:

(a) The Commissioner has a statutory obligation to insure the privacy of his investigations.

(b) The Commissioner is obliged to protect the integrity of his investigations by encouraging the candour of witnesses. In order to encourage candour the Commissioner must provide an environment which assures privacy so as to prevent the possible tainting of evidence, whether that tainting is conscious or unconscious.

(c) The Commissioner's ongoing investigations would be compromised if witnesses were permitted to communicate questions asked and answers given during the course of the Commissioner's private investigation to other persons, including persons who were potential witnesses in the same investigations.

(d) The Commissioner must be mindful of the potential implications of witnesses' reporting relationships. The integrity of the Commissioner's investigations are potentially compromised where witnesses are represented by counsel who simultaneously represent the witnesses' superiors and ultimate employer. Crown employees may feel embarrassed, reluctant, inhibited or intimidated when a representative of their employer is present to hear their evidence. Employees may fear recrimination and reprisal, particularly where their counsel also represents the Crown.

[139]When issuing the confidentiality orders the Commissioner's delegate also ordered that the applicant's counsel undertake not to reveal information disclosed during the individual applicant's testimony with other individuals who counsel also represented.

[140]In the investigation with respect to the Black documents requests, which is the only concluded investigation, the applicant Mr. Pelletier has not expressly requested of the Commissioner that he be relieved of his undertaking or that the confidentiality order be vacated. Mr. Pelletier has, however, challenged the validity of the order in one of the applications which is part of Group B.

(ii)     The issues to be determined

[141]Counsel agree that the following issues are raised in the Group B applications:

(i) Does the Commissioner's delegate have jurisdiction under the Act to issue the confidentiality orders?

(ii) If so, do the confidentiality orders breach the right to freedom of expression guaranteed to each individual applicant by paragraph 2(b) of the Charter?

(iii) If so, were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?

The Commissioner consents to being named respondent in these applications and the order will so provide.

(iii)     Analysis

[142]The Commissioner argues that the confidentiality orders were "a limited procedural tool" used in order to "bring home to a witness" the obligations imposed upon the witness under section 35 of the Act. I therefore begin the analysis by considering whether there is, in any event, an obligation on witnesses before the Commissioner or his delegate to maintain the confidentiality of the proceeding.

(a)     The nature and extent of any statutory obligation of confidentiality upon a witness before the Commissioner

[143]The Commissioner relies upon the statutory requirement in subsection 35(1) of the Act to the effect that every investigation conducted by the Commissioner "shall be conducted in private" (in French, "sont secrètes") in order to argue that witnesses and their counsel are obliged to maintain the confidentiality of the proceedings. The Commissioner argues that this interpretation of "in private" furthers two important statutory objectives. First, this interpretation is said to operate to ensure the confidentiality of government information. This objective is best achieved, it is said, by interpreting the phrase "in private" to require both the exclusion of the public and the imposition of a duty to hold forever confidential information obtained by a witness or his or her counsel during an investigation. Second, this interpretation is said to enhance the truth-finding function of the Commissioner's investigations. This is so, it is submitted, because this confidentiality obligation will operate to ensure that a witness' testimony is not tainted by knowledge of the evidence given by another witness. The confidentiality obligation is also said to promote candour by ensuring that a witness can testify without fear of reprisal. The Commissioner notes that in Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.); affd [1996] 1 S.C.R. 6 the Federal Court of Appeal recognized the importance of confidentiality to the investigative process under the Act by holding that representations made with respect to an access request must be kept confidential on a permanent basis.

[144]Reliance is also placed by the Commissioner upon the decision of my colleague Madam Justice Simpson in Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134 (T.D.); affirmed [2000] 3 F.C. 589 (C.A.); reversed in part [2002] 4 S.C.R. 3. At paragraph 43 of her reasons Madam Justice Simpson noted that in the context before her "an in camera proceeding is one in which those present are forever precluded from discussing the proceedings with anyone who is not in the courtroom".

[145]Counsel advise that this is the first occasion on which the Court has been required to consider what, if any, obligations are imposed upon a witness before the Commissioner in view of the requirement that the Commissioner's investigation be "conducted in private". To construe what is intended by that phrase it is necessary to consider the grammatical and ordinary sense of the words used and the scheme and object of the Act, all as described by the Supreme Court in Chieu, supra.

[146]As to the sense of the words used, in a different context the requirement under the Fatality Inquiries Act, R.S.A. 1980, c. F-6 that proceedings related to certain medical evidence "shall be in private" has been held to require that the evidence be received "in camera". See: Edmonton Journal v. Alberta (Attorney General) (1983), 49 A.R. 371 (Q.B.); affirmed (1984), 13 D.L.R. (4th) 479 (Alta. C.A.); leave to appeal refused. The motions Judge there held that the phrases "in private" and "in camera" were to the same effect.

[147]As to the extent of any obligation of secrecy imposed on a participant in an in camera hearing, in C.B. v. The Queen, [1981] 2 S.C.R. 480 the Supreme Court of Canada was required to consider what Parliament intended when it enacted in the Juvenile Delinquents Act, R.S.C. 1970, c. J-3 the requirement that "the trial of children shall take place without publicity". The Supreme Court concluded on a contextual reading of the legislation that the expression "without publicity" meant "in camera". The Court went on to note, at pages 492-493 of its reasons, that notwithstanding the in camera nature of the proceeding, members of the media were free to solicit information from witnesses and investigators and that "any and all other sources of information concerning the events and circumstances surrounding the delinquency may be considered and reported by [the media], providing that the names or an indication of the identity of the child or its parents are not published". It follows that in that context, the Supreme Court was of the view that there was no obligation on a witness or participant in an in camera proceeding to keep private their testimony or what transpired at the hearing.

[148]These cases make clear that what is intended in any particular case by the phrase "in private" or "in camera" depends upon the context in which the phrase is used.

[149]In this regard, what I take from the scheme and object of the Act is that the Commissioner is to have access to records under the control of a government institution. In exchange for a relatively unrestricted right of access, strict confidentiality requirements are imposed upon the Commissioner. Thus, the Commissioner may not disclose what he learns, except in limited circumstances, and the Commissioner is not a competent or compellable witness with respect to what he learns in the performance of his duties (expect with respect to matters such as prosecutions for offences under the Act or perjury in respect to statements made under the Act). The Act does not expressly impose confidentiality requirements upon persons other than the Commissioner and his staff, presumably because those in government with access to confidential information are subject to an already existing government regime for the keeping of its confidences (for example, the oath of office required under the Public Service Employment Act, R.S.C., 1985, c. P-33, fiduciary or contractual obligations and legislation such as the Security of Information Act, R.S.C., 1985, c. O-5).

[150]Put another way, the confidentiality regime required by the Act is a regime that will ensure that information communicated to the Commissioner remains protected to the same extent as if not disclosed to the Commissioner. It is consistent with that scheme that the confidentiality requirements are requirements imposed only upon the Commissioner.

[151]I believe that Parliament manifested this intention in section 62 of the Act where it wrote "[S]ubject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act" (underlining added). The confidentiality obligation is only directed to the Commissioner and his delegates. Parliament could have expressly enacted a confidentiality provision which applied to witnesses, but did not.

[152]I find some support for this interpretation in the decision of the Supreme Court of Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages), supra. In that case, the Commissioner of Official Languages conducted an investigation into a complaint made by Mr. Lavigne that his rights under the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31] had been violated. In the course of his investigation the Commissioner of Official Languages interviewed a number of witnesses. Mr. Lavigne then sought release of those witnesses' statements through an application he made under the Privacy Act. Where the person interviewed consented to the release of his or her statement, that statement was released to Mr. Lavigne. However, in the absence of such consent the Commissioner of Official Languages refused to release statements to Mr. Lavigne. I find the case to be of some assistance because the statutory provisions governing the Commissioner of Official Languages are substantially identical to those governing the Commissioner. Particularly, the legislation requires that every investigation "shall be conducted in private" and the legislation contains the same confidentiality provisions as are found in sections 62, 63 and 65 of the Act. In the reasons of the Supreme Court of Canada there is no suggestion that the statutory requirement to proceed "in private" prevented witnesses from consenting to the disclosure of their statements or otherwise imposed confidentiality obligations upon anyone other than the Commissioner of Official Languages. It was the absence of such a confidentiality requirement that allowed the persons interviewed to consent to the release of their interview statement.

[153]Two further considerations, in my view, favour this conclusion.

[154]The first consideration is that as noted above and evidenced by cases such as C.B., supra and Ruby, supra, the requirement to proceed "in private" or "in camera" may place varying obligations upon witnesses. For reasons which are set out below in the context of the analysis of the Charter issue, I conclude that any blanket regime which precludes a person from communicating for all time any information touching upon their testimony and appearance before the Commissioner would infringe that person's right to free expression guaranteed by paragraph 2(b) of the Charter in a fashion that could not be justified under section 1. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at page 1078, Mr. Justice Lamer, as he then was, explained that legislation that is open to more than one interpretation should not be interpreted so as to make it inconsistent with the Charter.² Interpreting the provision that proceedings be "in private" not to prohibit participants on a blanket basis forever from discussing their evidence and participation avoids interpreting the provision in a fashion which is inconsistent with the Charter.

[155]The second consideration that favours interpreting the confidentiality requirements of the Act to bind the Commissioner is the Commissioner's delegate's treatment of the confidentiality obligations of the witnesses before him. In this regard, the Commissioner and his delegate have significant familiarity and expertise with the Act and with its application to the conduct of investigations. Therefore, I consider that their actions as they reflect their interpretation of the Act, while not determinative, are entitled to some weight and can assist in interpreting the Act where there is doubt about the meaning of a particular provision. See: Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at page 37.

[156]I find the following evidence of the Commissioner's delegate's treatment of any confidentiality obligation to be relevant.

[157]First, the confidentiality orders here at issue expressly provide that they can be terminated by order of the Commissioner. Indeed, the Commissioner's delegate consistently took the position that he has jurisdiction to modify or to release a witness in part from the obligation of confidentiality. For example, on April 23, 2001 the Commissioner's delegate wrote:

Taking into account the unique relationship of loyalty and trust which must exist between a Prime Minister and his senior political adviser, I consider it appropriate to exercise my discretion in favour of permitting the witness to communicate information deriving from the confidential proceeding to the Prime Minister. However, no evidence was presented to support the request that the Prime Minister be given the authority to communicate confidential information to any or all members of his Cabinet. Given the nature of the proceeding and the requirements of s. 35, I consider that granting the request would not be consistent with my obligation to protect the confidentiality and the integrity of this investigation.

A second example is that on June 19, 2001, the Commissioner's delegate denied Mr. Cappe's request that he be permitted to communicate confidential information to the Prime Minister. The Commissioner's delegate noted that the Prime Minister was a potential witness and no "specific need" had been shown for the Prime Minister to be privy to the confidential information.

[158]Second, other confidentiality orders issued to other witnesses in the course of the investigations here at issue did not contain similar confidentiality provisions. On August 4, 2000, the Deputy Minister of Transport was examined in the investigation of the complaint arising out of the Minister of Transport's agenda request. Counsel for the Deputy Minister, Senior General Counsel in the Department of Justice, swore in an affidavit filed in one of the pending applications that no order was made requiring the Deputy Minister to keep confidential any information revealed during her testimony. Prior to the Deputy Minister giving her evidence, the Commissioner's delegate issued an order requiring her counsel to keep confidential anything revealed during the Deputy Minister's testimony. Counsel was required to undertake that he would not use information or permit it to be revealed or used for any purpose "except on the explicit instructions" of the Deputy Minister (the latter phrase being added in handwriting to the order and being initialled by the Commissioner's delegate).

[159]On October 17, 2000, the same counsel appeared before the Commissioner's delegate as counsel for an Assistant Deputy Minister in the Privy Council Office who was being examined in the investigation into the complaint arising from the Prime Minister's agenda requests. Again it appears that no order was made with respect to the Assistant Deputy Minister, but her counsel was ordered to not use or reveal any information revealed on the Assistant Deputy Minister's examination "except on the explicit instruction of, and for the purpose of protecting the interests of" the Assistant Deputy Minister.

[160]Finally, on September 19, 2002 (a date after the orders here in issue were made) an Associate Assistant Deputy Minister at the Department of Public Works was examined in the course of the investigations arising out of one of the M5 documents requests. No confidentiality order was issued to the Associate Assistant Deputy Minister, but his counsel, Mr. Doody, was ordered to undertake not to use or reveal anything revealed during the testimony of the Associate Assistant Deputy Minister "except on the instruction of" the Associate Assistant Deputy Minister.

[161]I find the actions of the Commissioner's delegate, as they reflect that officer's interpretation of subsection 35(1) of the Act, to be inconsistent with any statutory obligation upon a witness arising from that provision to forever keep confidential what transpires during an investigation. It is inconsistent with such a statutory requirement for the Commissioner or his delegate to purport to vary a statutory obligation, or to acknowledge in an undertaking that a witness has the ability to instruct his or her counsel to reveal or make use of such information.

[162]Before leaving this point, I have carefully considered Madam Justice Simpson's characterization of the nature of the in camera proceeding at issue in Ruby, supra. There, subsections 51(2) and (3) of the Privacy Act required that where disclosure of personal information was refused on the ground that material had been received in confidence from a foreign government or the like, or on the ground that international affairs or national security would be harmed, any resulting Court application should be heard in camera and that the head of the government institution could request that representations be made ex parte. That is an entirely different context and legislative scheme than is now before the Court, and I read Madam Justice Simpson's comments to be expressly limited to the specific legislative context before her.

[163]Having concluded that the confidentiality orders do purport to impose obligations other than those inherent in section 35 of the Act, so that they do more than "bring home to a witness" the witness' obligations, I turn to consider whether the Commissioner's delegate has jurisdiction under the Act to issue the orders.

(b)     Was there jurisdiction to issue the confidentiality orders?

The Standard of Review

[164]Counsel did not make submissions as to the appropriate standard of review to be applied to the question of whether the Commissioner has the authority to issue a confidentiality order. However, in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 21, the Supreme Court re-affirmed that in every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review by applying the pragmatic and functional approach.

[165]Turning to the application of the four factors which underpin the pragmatic and functional approach, the first factor is the presence or absence of a privative clause or statutory right of appeal. The Act contains neither. While silence is a neutral factor not touching on the degree of deference to be afforded to the decision-maker, (see: Dr. Q, supra, at paragraph 27), in Echo Bay Mines Ltd. v. Canada (Minister of Indian Affairs and Northern Development), 2003 FCA 270; [2003] F.C.J. No. 996 (QL), at paragraph 17 the Federal Court of Appeal concluded that where review of a decision is available pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] an intermediate level of review is suggested.

[166]The second factor is the expertise of the decision-maker relative to that of the Court on the issue in question. Greater deference is required where the decision-maker is more expert than the Court and the question under consideration falls within the scope of the greater expertise.

[167]Here the question of the Commissioner's authority to issue an order is a question of statutory interpretation. It is therefore a question of law, and there is nothing before the Court to suggest that the Court is not as well suited to answer the question as the Commissioner. This factor points to the need for more exacting review.

[168]The next factor is the purpose of the statute and the provision in question. The Court is required to consider the general purpose of the statutory scheme within which the decision at issue was taken. If the question before the decision-maker is one of law or engages a particular aspect of the legislation, the specific legislative purpose of that aspect must be considered.

[169]The purpose of the Act is to provide a meaningful right of access with decisions about access to be reviewed independently of government. While this purpose suggests deference, the discrete issue of investigating an access complaint is not a question of policy, but invokes the right of the Commissioner to issue a confidentiality order. The Commissioner's interest in the issue points to review on the correctness standard.

[170]The final factor is the nature of the problem. An issue of pure law and statutory interpretation, as the present issue is, favours a more searching result. Further, determination of the question will have precedential value and general application. This too points to review on the correctness standard.

[171]Balancing these factors, I conclude that the appropriate standard of review is correctness.

The Issue of Jurisdiction

[172]Section 34 of the Act confers a broad discretion upon the Commissioner to determine the procedure to be followed in the performance of any duty or function under the Act. The Commissioner argues that the confidentiality orders made in the investigations at issue in these proceedings are similar in nature to a number of procedural orders (for example, orders excluding witnesses from trials or administrative hearings and related non-communication orders). The Commissioner argues that the confidentiality orders are therefore a proper exercise of discretion pursuant to section 34 of the Act.

[173]In response, the applicants argue that the confidentiality orders are not procedural because they are intended to, and do, prohibit the individual applicants from exercising their right to communicate information. Reliance is placed upon Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256 and Canada (Attorney General) v. Newfield Seed Ltd. (1989), 63 D.L.R. (4th) 644 (Sask. C.A.) for the purpose of determining when a provision is substantive, and not procedural. The applicants also argue that in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 the Supreme Court directed that where there is doubt as to whether a matter is procedural or substantive, such doubt is to be resolved by concluding that the provision is substantive.

[174]I begin the analysis by considering the wording used by Parliament in section 34 of the Act. Section 34 is as follows:

34. Subject to this Act, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act.

[175]The grammatical and ordinary sense of the words used suggests that when investigating a complaint, including when receiving such evidence and information as the Commissioner sees fit, the Commissioner has a broad discretion to determine how that is to be done. While such discretion is to be exercised subject to the Act, counsel did not argue that any express provision precludes the Commissioner from issuing a confidentiality order as part of the procedure of receiving evidence and information from a witness.

[176]Turning to a contextual analysis of the discretion conferred by section 34, I note first that there are very few procedural requirements imposed upon the Commissioner by the Act. The procedural requirements imposed upon him are limited to the obligations to:

(i) give notice of the Commissioner's intent to carry out an investigation and advise as to the substance of a complaint (section 32);

(ii) conduct investigations in private (subsection 35(1));

(iii) provide the affected parties with the reasonable opportunity to make representations (subsection 35(2)); and

(iv) make a report at the conclusion of an investigation (section 37).

[177]The Commissioner is therefore relatively unfettered by procedural requirements. The Act also reflects Parliament's intention that the Commissioner's independent review of decisions about disclosure is to be made following a thorough investigation. For that purpose, the Commissioner is empowered to compel persons to give evidence on oath and to produce such documents and things as the Commissioner "deems requisite to the full investigation and consideration of the complaint". The Commissioner may receive and accept such evidence and information as the Commissioner sees fit "whether or not the evidence or information is or would be admissible in a court of law". The Commissioner may enter into premises occupied by any government institution and "carry out therein such inquiries within the authority of the Information Commissioner under this Act as the Commissioner sees fit". Notwithstanding the confidentiality obligations imposed upon him, the Commissioner may disclose information that in his opinion is necessary to "carry out an investigation under this Act", so long as he does not disclose specific information with respect to which an exemption can be claimed in the Act. See: Canada (Attorney General) v. Canada (Information Commissioner) (2001), 32 Admin. L.R. (3d) 238 (F.C.A.).

[178]The object of the Act is to provide a liberal and broad right of access, and the Act is to be given a liberal and purposive construction.

[179]Having regard to the broad meaning of the words used in section 34 of the Act, the context within that section functions, the object of the Act and the need to give the legislation a liberal and purposive construction, I conclude that section 34 of the Act confers a discretion upon the Commissioner to determine in appropriate circumstances that some form of confidentiality order should be invoked and imposed upon a witness before him. Pursuant to paragraph 36(1)(a) of the Act the Commissioner is empowered to enforce the appearance of persons before him and to compel them to give oral evidence and to produce documents. The imposition of a confidentiality order is a procedure the Commissioner may follow when exercising his power to compel a person to give evidence.

[180]An example where resort to such procedure would be appropriate would be where the Commissioner had, pursuant to subparagraph 63(1)(a)(i) of the Act, in order to carry out the Commissioner's investigation found it necessary to disclose sensitive information to a witness that the witness would not otherwise know. Section 34 should, in my view, be read as enabling the Commissioner to protect the confidentiality of that information by the imposition of a confidentiality order. I am mindful that the Commissioner may not disclose information in respect of which an exemption can be claimed. Nonetheless, there may well be sensitive information that the Commissioner may be entitled to disclose which should be protected by a confidentiality order in order to ensure that the investigation is conducted in private. Examples of such sensitive information include information which might reveal the status or plan of the Commissioner's investigation, or the testimony of other witnesses before the Commissioner not covered by section 64 which testimony should be disclosed in order to further the investigation or to promote fairness.

[181]To construe section 34 otherwise would, in my view, read in limiting words not found in the Act. Had Parliament intended to limit the discretion conferred by section 34 it could have done so expressly and would not have expressed itself by conferring an almost unlimited discretion applicable to "any duty or function of the Commissioner" under the Act.

[182]With respect to the Sun Alliance and Newfield cases relied upon by the applicants, in my view the question of the Commissioner's jurisdiction to issue a confidentiality order is to be determined by a textual and contextual analysis of the Act. Little assistance is provided by Sun Alliance and Newfield where what was considered was whether a provision was substantive or procedural for the purpose of determining the retrospective application of legislation or whether a regulation was ultra vires. To the extent that Newfield suggests that the distinction between substance and procedure is functional, I conclude that nothing in the confidentiality orders touches upon the right of access or the application of any exemption under the Act. Rather, the confidentiality orders are a procedural tool used to ensure a proper and fair investigation of the right of access.

[183]The comment by Mr. Justice La Forest for the Supreme Court in Tolofson relied upon by the applicants was made in the context of private international law. After observing that in that context substantive rights are governed by foreign law while procedural matters are governed by the law of the forum, the Court quoted with approval [at page 1068] the statement that the problem resolved into the question of "[h]ow far can the court of the forum go in applying the rules taken from the foreign system of law without unduly hindering or inconveniencing itself". Seen in this context, the statement that where there is doubt as to whether a provision is substantive or procedural, that doubt should be resolved by finding the provision to be substantive provides little assistance in the present case.

[184]Having found that the Commissioner does have jurisdiction to issue confidentiality orders pursuant to section 34 of the Act, it is not necessary for me to consider whether confidentiality orders may also be issued pursuant to the Commissioner's powers under paragraph 36(1)(a) of the Act. It is necessary, however, to consider if the orders breach the right to freedom of expression guaranteed by the Charter.

(c)     Do the confidentiality orders breach the right of freedom of expression guaranteed by paragraph 2(b) of the Charter?

[185]The parties agree that a body which exercises statutory powers, including broad discretionary powers, may not make orders which violate Charter rights. See, for example, Slaight, supra.

[186]Paragraph 2(b) of the Charter provides that everyone enjoys the fundamental freedom of expression. The Supreme Court has held with respect to the analysis of freedom of expression that:

(i) The first step is to discover whether the activity which the applicant or plaintiff wishes to pursue properly falls within "freedom of expression".

(ii) Activity is expressive, and protected, if it attempts to convey meaning. If an activity conveys or attempts to convey a meaning it has expressive content and prima facie, falls within the scope of the Charter guarantee (unless meaning is conveyed through a violent form of expression).

(iii) The second step of the inquiry is to determine whether the purpose or effect of the government action in question is to restrict freedom of expression.

See: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, particularly at pages 967-979.

[187]In the present case, the evidence of the applicants is that they wanted to communicate to others what transpired in the inquiry chambers of the Commissioner. I am satisfied that such activity conveys or attempts to convey meaning so as to be expressive, and therefore to prima facie fall within the sphere of conduct protected by paragraph 2(b) of the Charter.

[188]I am also satisfied on the evidence that the purpose of the confidentiality orders was to control the applicants' attempts to convey a meaning by directly restricting or prohibiting the particular content of expression.

[189]It follows that the confidentiality orders limit the freedom of expression which is guaranteed by paragraph 2(b) of the Charter. The next inquiry therefore becomes whether the orders are justified under section 1 of the Charter.

[190]Before moving to this issue, counsel for the Commissioner referred me to Smolensky v. British Columbia (Securities Commission) (2003), 17 B.C.L.R. (4th) 145 (B.C.S.C.). In this case a non-disclosure provision contained in the British Columbia Securities Act, R.S.B.C. 1996, c. 418 was found not to violate paragraph 2(b) of the Charter. Counsel for the Commissioner did not, in her words, "press" the authority upon me. Smolensky arose in a different legislative context and I am satisfied that the confidentiality orders at issue in this proceeding do limit expression protected by the Charter.

(d)     Were the confidentiality orders a reasonable limit prescribed by law which were reasonably necessary in a free and democratic society so as to be valid pursuant to the provisions of section 1 of the Charter?

Applicable principles of law

[191]The principles to be applied when a state actor attempts to justify a limit on a right or freedom under section 1 of the Charter were enunciated by the Supreme Court of Canada in The Queen v. Oakes, [1986] 1 S.C.R. 103. There are two central criteria to be met:

1. The objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. To be characterized as sufficiently important, the objective must relate to concerns which are pressing and substantial in a free and democratic society.

2. Assuming that a sufficiently important objective is established, the means chosen to achieve the objective must pass a proportionality test. To do so the means must:

a. Be rationally connected to the objective. This requires that the means chosen promote the asserted objective. The means must not be arbitrary, unfair or based on irrational consideration.

b. Impair the right or freedom in question as little as possible. This requires that the measure goes no further than reasonably necessary in order to achieve the objective.

c. Be such that the effects of the measure upon the limitation of rights and freedoms are proportional to the objective. This requires that the overall benefits of the measure must outweigh the measure's negative impact.

See also: Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519.

[192]Relevant considerations when conducting the analysis articulated in Oakes, supra are that:

1. The onus of proving that a limit on a right or freedom protected by the Charter is reasonable and demonstrably justified is upon the party seeking to uphold the limitation. See: Oakes, at page 137.

2. The standard of proof is the civil standard. Where evidence is required in order to prove the constituent elements of the section 1 analysis, the test for the existence of a balance of probabilities must be applied rigorously. A "very high degree of probability will be . . . `commensurate with the occasion'". See: Oakes, at page 138.

3. The analysis must be undertaken with close attention to the contextual factors. This is so because the objective of the impugned measure can only be established by canvassing the nature of the problem it addresses, and the proportionality of the means used can only be evaluated in the context of the entire factual setting. See: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.

4. The context will also impact upon the nature of the proof required to justify the measure. While some matters are capable of empirical proof, others (for example matters involving philosophical or social considerations) can not. In those later cases "it is sufficient to satisfy the reasonable person looking at all of the evidence and relevant considerations, that the state is justified in infringing the right at stake to the degree it has". Common sense and inferential reasoning may be applied to supplement the evidence. See: Sauvé, supra, at paragraph 18.

5. With respect to the minimal impairment test, where a legislative provision is challenged, the Supreme Court of Canada has held that Parliament must not choose the absolutely least intrusive means to attain its objectives, but rather must come within a range of means which impair guaranteed rights as little as reasonably possible. However, where a "common law, judge-made rule" is challenged, the Supreme Court has held that there is no room for judicial deference. See: R. v. Swain, [1991] 1 S.C.R. 933, at page 983. In the context of considering the propriety of a confidentiality order imposed by a judge (i.e. an order which must be made with due regard to Charter principles) the Supreme Court has held that such orders are to be restricted as much as reasonably possible, while still preserving the interest to be protected by the order. See: Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.

Contextual Considerations

[193]Turning to the application of these principles to the evidence before the Court, I begin by considering what I believe to be relevant contextual considerations.

[194]First, the investigation is conducted in furtherance of the quasi-constitutional right of access that has as its purpose the facilitation of democracy.

[195]Second, the investigation conducted by the Commissioner is an investigation that is to be independent of government.

[196]Third, the investigation is to be conducted in private.

[197]Fourth, persons in government must be able to function candidly with one another. I accept generally the evidence of Messrs. Pelletier and Hartley that there are "no secrets" between the Prime Minister and his close advisors and "no secrets" between the Prime Minister's executive assistant and the Prime Minister's advisors. I accept the evidence of Mr. Cappe that the Clerk of the Privy Council has no secrets from the Prime Minister in respect of matters of government policy and operations. I accept the evidence of Mr. Eggleton that there can be no secrets between a minister of the Crown and the Prime Minister in respect of government policy or affairs of state and that the Prime Minister can not be prohibited from bringing to the attention of his Cabinet or his Attorney General issues which the Prime Minister feels to be relevant. Finally, I generally accept that there are no secrets between a minister and his close advisors with respect to matters that relate directly to the minister and his or her office.

[198]I accept this evidence because only Mr. Cappe was cross-examined on his evidence, and Mr. Cappe's testimony was not challenged on this point. Further, the Commissioner's delegate in his letter of April 23, 2001 acknowledged the unique relationship of loyalty and trust which must exist between a prime minister and his senior political adviser.

[199]The evidence therefore reflects the need for relationships based upon loyalty and confidence, and the need for candid communication within the executive level of government on issues of public policy.

[200]The fifth contextual factor is that there have been instances where members of a government department have taken steps to frustrate the right of access under the Act. In this regard during Mr. Cappe's cross-examination he testified as follows:

175.     Q.     And I'm going to suggest to you, sir, that one of the difficult issues confronting the public service is to live with both an oath of loyalty promising not to tell anybody anything on the basis of information obtained in the service of the government and, at the same time, committing itself to notions of transparency and openness and the spirit of the Access Act, and that creates a tension in government?

A.     I totally agree.

176.     Q.     And that this is one of the areas where Mr. Tait foresaw need for important values and ethics dialogue, and perhaps later steps wherever it took them? Is that fair also?

      A.     Insofar as you've taken it that distance, but I think--you know, go back to the title of this [Tait] report, "A Strong Foundation". The strong foundation are the democratic principles, and when he talks about the categorization of values, he starts with democratic values, and when he breaks them down into democratic and public service values, the democratic values are the ones that are the most important, he says. You've identified the tension, and I think that's absolutely correct, but the fundamental foundation of our system is--and here on page 21 it says, "Canada's form of democracy is responsible parliamentary government", and you go through that principle of responsible government and you go through the democratic values that public servants have to respect, and when you challenge public servants' understanding of their accountability--public servants are not accountable to the public; public servants are accountable to their ministers and ministers are accountable in the House. It's very, very important that we reiterate that. So that, yes, there was this tension--I totally agree with the way you characterize it--and the tension was partly between those democratic values and those needs for openness and confidentiality to protect the openness.

[201]Mr. Cappe also testified that:

112.     Q.     You can assume for the purposes of this discussion that the destruction of the records of the Canadian Blood Committee were found to be related to Access requests and the destruction of certain records at the Department of National Defence were found to be related to certain Access requests as well as requests from the commission of inquiry. Are you saying that when you undertook your role as clerk you were unaware that there had been major problems with Access from--

    A.    No, I was not unaware.

113.     Q.     So you were aware.

    A.     I was aware.

114.     Q.     And those problems of Access related to, in general--I'm not trying to trick you here, Mr. Cappe--related in general to circumstances where members of a department had taken steps to frustrate a requester's right of access; fair enough?

    A.     Yes. Yeah.

115.     Q.     And that they had done so, for whatever reasons of displaced loyalty, in such a manner that it raised serious concerns throughout government. Is that also fair?

    A.     Sure. This happened prior to the amendment which created a criminal provision for the destruction of documents in the act, and personally I didn't think that was a very good idea to bring such an amendment, but in light of what had happened I could see that that was going to be something which proceeded, and I don't find it offensive because--actually you used very good terminology, I think, when you talked about misplaced loyalties. The loyalty and the duty of the officer is to the truth and speaking truth to power. Honesty and truthfulness are fundamental values of public service. If I was against that provision, it was more because I didn't think it was necessary, except we had these two counter examples, unfortunately.

[202]The sixth contextual consideration is that the issue underlying the investigations other than the investigation into the Black documents request was whether records held exclusively within minister's officers are records under the control of a government institution for the purposes of the Act. As evidenced by a letter dated September 13, 2000 sent to Deputy Heads by the Deputy Clerk and counsel of the Privy Council Office, this was viewed as an important issue of principle for the government. This litigation evidences the fact that the government has taken a strong position on the issue, as it was entitled to do. Mr. Cappe acknowledged on his cross-examination that he discussed the role of outside counsel with the Prime Minister and with the Attorney General, that eminent counsel was selected, and that Mr. Cappe's wish was to ensure that "the ensemble of the government actors here were being as well represented and that there was coherence in the presentation of the government's case".

[203]While I draw no negative or sinister inference from this evidence, the positions held by the government actors, the importance of the issue raised and the strength of the views held by both the Commissioner and the government actors form part of the relevant context in which the confidentiality orders are to be examined.

[204]Finally, the fact that almost all of the government actors were represented by the same lawyers is a further contextual factor. This is so because counsel who represent multiple entities in the same matter are generally required to share information amongst their clients. To the extent some witnesses were represented by counsel with the Department of Justice, Crown servants are generally required to waive solicitor-client privilege in favour of the Crown.

Does the infringement achieve a constitutionally valid purpose or objective?

[205]Having set out relevant contextual considerations, I move to the first step of the Oakes analysis.

[206]The Commissioner asserts that two broad objectives are met by prohibiting witnesses from revealing information disclosed during their testimony. The first objective or purpose of the confidentiality orders is to protect the integrity of the investigations. The second is to preserve the confidentiality of government information.

[207]Protecting the integrity of the investigations can be said to promote seeking and attaining the truth. This has been held to be an inherently good activity and to be a value which underlies the protection of free expression. See: Irwin Toy, supra, at page 976. Conducting a thorough and independent review in order to maximize the proper disclosure of government information to access requesters facilitates democracy.

[208]Ensuring that confidential information is not improperly disclosed promotes Parliament's intent that certain information should be protected and promotes the candid and effective functioning of government.

[209]Therefore, the objectives sought to be achieved relate to pressing and substantial concerns in a free and democratic society. I conclude that the objectives are of sufficient importance as to warrant, in some circumstances, overriding the constitutionally protected freedom of expression.

The Rational Connection

[210]The next step in the inquiry is consideration of whether the means chosen are reasonably and demonstrably justified. This analysis of the proportionality of the measure begins with consideration of the rationality of the measure at issue. The question to be asked is will prohibiting witnesses from revealing information protect the integrity of the investigations and preserve the confidentiality of government information?

[211]The reasons of the Commissioner's delegate shed light on how the orders are viewed to function in order to protect the integrity of the investigations. First, if witnesses could communicate questions asked and answers given on their examination before the Commissioner's delegate, the delegate is less likely to obtain a witness' own independent recollection of events. Second, the orders ensure that a witness may speak freely without fear of employment repercussions. Third, the automatic imposition of a confidentiality order is said to prevent any stigma attaching to a witness who is bound by such an order. The Commissioner says that there would exist a possibility of suspicion attaching to a witness who requested a confidentiality order.

[212]With respect to the object of protecting the confidentiality of government information, the confidentiality orders are said to reflect the Commissioner's obligation to take every reasonable precaution to avoid the disclosure of exempt information. The orders also allow some portion of one witness' evidence to be put to another witness for the purpose of advancing the investigation.

[213]I am satisfied on the basis of logic and common sense that there is a rational connection between the imposition of a confidentiality order and the protection of both the integrity of the investigations and the confidentiality of at least some information which might otherwise not be protected. These are the purposes of orders issued by courts which govern the confidentiality of certain information and the exclusion of witnesses.

Minimal Impairment

[214]The next stage of the Oakes, supra, analysis requires the Court to consider whether the confidentiality orders, while rationally connected to the objectives, impair the witnesses' freedom of expression as little as possible.

[215]It is to be noted at the outset that the Supreme Court has observed that it is more difficult to justify a complete ban on a form of expression than a partial ban. See Thomson, supra, at paragraph 120. The Supreme Court has, as previously noted, also observed in Sierra, supra, that confidentiality orders are to be restricted as much as is reasonably possible. For the reasons that follow, I have concluded that the Commissioner has failed to demonstrate why less restrictive confidentiality orders would not have been equally effective in preserving the integrity of the investigations and preserving the confidentiality of government information. On the basis of that conclusion, it follows that the orders fail on the issue of minimal impairment and that they should be set aside on the terms set out below.

[216]In support of his argument that the orders were demonstrably justifiable, the Commissioner filed the affidavit of Colonel (retired) Michel Drapeau. Colonel Drapeau, based upon his experience and knowledge of the culture of the Canadian Forces and Public Service in general, and the culture prevailing at National Defence Headquarters in particular, and based upon his familiarity with the federal access to information regime, opined that:

1. The integrity of the Commissioner's investigative function demands that a public official, as witness, be protected from direct or indirect pressures.

2. There is a legitimate concern that public officials may feel pressure from their employers, supervisors, or co-workers, if they provide information to the Commissioner which may not conform to the "official version of events or otherwise displeases co-workers".

3. In the absence of confidentiality restrictions there would be irresistible pressure on witnesses summoned to appear before the Commissioner to be accompanied by a Crown counsel and to inform officials and senior law officers of the Crown of the content of their evidence.

4. Unless information obtained or gathered during the Commissioner's investigations remains private and confidential the public servant as witness risks being labelled as a "maverick" and risks becoming the target of direct or indirect institutional retaliation.

5. Witnesses are less likely to testify candidly and completely if they fear recriminations based on the content of their testimony.

6. For reasons of culture and ethos it is unlikely that career public servants would feel comfortable requesting a confidentiality order.

7. Even where a witness wishes to reveal the content of his or her testimony, by doing so the protection afforded to other witnesses is "potentially threatened". This is because on release of the Commissioner's report a supervisor may be able to attribute particular evidence to specific witnesses by speaking to other witnesses who are willing to share their testimony.

[217]Colonel Drapeau's opinion was contradicted by the affidavits of Suzanne Lajoie and Judith Mooney.

[218]Ms. Lajoie worked for nine years in the Access to Information and Privacy Section of the Department of National Defence. From September 1999 to December 2000, she worked first as the Acting Director of Access to Information and Policy in the Department of National Defence and then as the Deputy Coordinator for Access to Information and Privacy in the Department of National Defence. She has been interviewed on numerous occasions by investigators from the office of the Commissioner, and has appeared to give evidence before the Deputy Information Commissioner once and also once before counsel for the Commissioner. It is her evidence that she never felt pressured to tailor her evidence, and never felt pressured to be accompanied by a Crown counsel or to inform anyone of her discussions with the Commissioner's representative. Ms. Lajoie was not aware of any situation where a witness became a target of retaliation as a result of being a witness before the Commissioner. She has never felt the need to ask for a confidentiality order nor was she aware of any incident where another member of the Department of National Defence requested a confidentiality order (although she agreed on cross-examination that she would not know if someone had sought and obtained such an order).

[219]To similar effect was the evidence of Ms. Mooney who is the Director, Access to Information and Privacy Section of the Department of National Defence. She gave as a specific example her decision to release information to a journalist with the Ottawa Citizen concerning the award of an untendered contract to One World Communications by Mr. Eggleton who was at that time the Minister of National Defence. It is Ms. Mooney's evidence that at the time of the release both she and the Minister were aware of the political sensitivity of the item, but Ms. Mooney was, she said, not pressured to withhold the information.

[220]Counsel for the applicants argues that Colonel Drapeau was not qualified to express the opinions which he did because he was not an expert in the public service culture in general. Counsel for the applicants points to the evidence that Colonel Drapeau has only worked in the Public Service for 16 months and that such experience ended in 1993. Colonel Drapeau has never conducted an investigation under the Act, has never been a witness under the Act, and has never spoken to anyone who was a witness. Colonel Drapeau has never worked in the office of a minister of the Crown, the Prime Minister's Office, the Privy Council Office or in the Department of Transport. Since Colonel Drapeau was in the Department of National Defence the persons fulfilling the positions of Minister of National Defence, Deputy Minister of National Defence, Chief of the Defence Staff, and Access to Information and Privacy Coordinator have all changed. Colonel Drapeau admitted on cross-examination that he knows nothing about the investigations that underlie these proceedings.

[221]I am satisfied that Colonel Drapeau's affidavit is admissible to the extent he swears to matters he directly observed and to the extent that he has the expertise to opine on the culture of the Department of National Defence. With respect to the opinion he provides concerning the Department of National Defence, I find his evidence to be generally relevant, of assistance to the Court and that Colonel Drapeau has the necessary expertise to give such evidence. Thus, the criteria established by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 are met in so far as Colonel Drapeau's opinions relate to the Department of National Defence.

[222]I also find, however, that Colonel Drapeau does not have sufficient recent experience in order to opine on the Public Service generally. Further, his lack of experience working in an office of a minister of the Crown, the Prime Minister's Office or the Privy Council Office coupled with his lack of direct experience with respect to investigations conducted by the Commissioner, and his lack of knowledge with respect to the investigations at issue, lead me to conclude that his testimony should be given little or no weight as it touches upon the issue of whether less intrusive confidentiality provisions would have been equally effective to achieve the Commissioner's objectives.

[223]Counsel for the Commissioner also argues that the Court may by application of reason and logic conclude that the confidentiality orders were issued on the basis of a reasonable assessment or apprehension of harm. The Commissioner's concern about the possible coercion of witnesses is said not to be speculative, but to be grounded in the observations of Colonel Drapeau and in the cross-examination of Mr. Cappe. Further, in the words of counsel for the Commissioner "when the most powerful men in government make a very public position, as they did in this case, throughout their Departments . . . it is reasonable to assume that others . . . may feel indirectly coerced into adopting positions that are less than fully open". Thus, it is submitted that at least during the currency of any investigation the objectives of preserving the integrity of that investigation "including the need to prevent the tainting of a witness' testimony and to ensure that no employment repercussions flow directly from the witness' testimony" establish that the orders in question minimally impair the right of free expression because no lesser order would be effective.

[224]I accept, as a matter of law, that where it is difficult to empirically prove harm, the Supreme Court of Canada has found it sufficient to apply logic and common sense in order to see whether there has been demonstrable justification of the infringement of a right. However, in the present case, as discussed above, the evidence is that the Commissioner did not issue confidentiality orders to every witness. This practice of the Commissioner, in my view, refutes any logical inference that in the context of these investigations confidentiality orders must be issued automatically to every witness.

[225]Further, common sense is not to be used as a cover for "unfounded or controversial assumptions" (Thomson, supra, at paragraph 116). Where a Court issues a confidentiality order in a judicial proceeding, as a matter of law, the need for such order is required to be "well grounded in the evidence" (see: Sierra, supra, at paragraph 54) and a judge is required to consider on the evidence whether reasonable alternatives are available. While the investigations before me are indeed at the investigative stage and are not conducted in the context of a judicial process, it remains that the need for a confidentiality order is a matter capable of being established by evidence and by the inferences which may properly be drawn from evidence. Put more simply, the potential for harm is something that can be established on evidence and therefore should be proven, not assumed.

[226]I therefore conclude that in circumstances where the Commissioner's delegate did not impose confidentiality orders on all of the witnesses who appeared before him in these investigations, and where in other contexts courts do require evidence in order to substantiate the need for a confidentiality order, I am not satisfied that the Commissioner may rely only upon the contextual factors, logic and common sense in order to meet his burden of demonstrably justifying the confidentiality orders.

[227]On the basis of the totality evidence that is before me, and having regard to logic and common sense, I conclude that the confidentiality orders are overbroad in at least the following respects.

[228]First, it was the position of the Commissioner when examining each individual applicant that the same broad orders should issue to all of these individual applicants. The applicants then bore the onus of justifying to the Commissioner any departure from that default position. The default position ordered witnesses not to reveal "any information disclosed during my confidential testimony in this matter including the evidence given by me". The requests that were made for less restrictive orders are set out above. They were denied where the requesters failed to convince the Commissioner's delegate that communication was required. Thus, for example, the Clerk of the Privy Council's request to communicate confidential information to the Prime Minister was refused because the Commissioner's delegate concluded that no specific need had been shown for the Prime Minister to be made privy to the information.

[229]While the request of the Prime Minister's Chief of Staff that he be permitted to communicate with the Prime Minister was allowed, it was allowed on the basis that the Prime Minister must undertake not to communicate this information to his Cabinet. As noted above, the reasons of the Commissioner's delegate were:

Taking into account the unique relationship of loyalty and trust which must exist between a Prime Minister and his senior political adviser, I consider it appropriate to exercise my discretion in favour of permitting the witness to communicate information deriving from the confidential proceeding to the Prime Minister. However, no evidence was presented to support the request that the Prime Minister be given the authority to communicate confidential information to any or all members of his Cabinet. Given the nature of the proceeding and the requirements of s. 35, I consider that granting the request would not be consistent with my obligation to protect the confidentiality and the integrity of this investigation.

[230]The request to add a fifth lawyer to the list of the applicants' lawyers at Borden Ladner Gervais LLP was denied because no "pressing need" for another lawyer had been demonstrated.

[231]From the evidence as to how the orders were imposed and how the requests to vary them were treated, I conclude that the Commissioner's delegate reversed the process and failed to recognize the obligation upon him to justify a measure which infringed the witness' right of free speech.

[232]Instead of justifying to the applicants why blanket orders were required, the Commissioner's delegate required the applicants to justify why they should be permitted to exercise their right of free expression. The Charter and jurisprudence of the Supreme Court of Canada establish that it is the person who wishes to impair a protected freedom who bears the onus of justifying such impairment.

[233]As well, on the basis of the evidence before me the confidentiality orders went further than was reasonably necessary in order to achieve the Commissioner's objects.

[234]In this regard there is no cogent evidence as to why the confidentiality orders were of unlimited duration in time such that they would continue, unless varied, after the Commissioner's investigation had concluded.

[235]The Commissioner argues that in Rubin (1994), supra, the Federal Court of Appeal concluded that the integrity of the investigative process requires that a complainant never be entitled to see the representations made to the Commissioner in respect of his or her complaint. This is, however, distinguishable in my view from the case where a witness wishes to speak of their own free will of their own testimony or observations. Rubin (1994) dealt with a situation where a complainant sought to learn the confidential evidence or information of another.

[236]The Commissioner also argues that the concern that a witness' testimony might result in employment repercussions justifies an order of unlimited duration. It is noted that issues around a particular access request may extend for months or years after the conclusion of the investigation. Further, it is argued that the existence of such orders provides assurances to those who may be involved in future investigations that their testimony can be protected indefinitely if necessary.

[237]I do not accept this argument as being sufficient to justify the unlimited time duration of the confidentiality orders. In my view, the concern expressed by the Commissioner is not well grounded in the evidence. None of the applicants have expressed this concern. Further, practically speaking supervisors move, employees change positions, policies evolve, ministers and prime ministers change. None of these practical considerations are reflected in an order that does not expire.

[238]To the extent that the Commissioner relies upon the need to protect future investigations, this concern has not been found sufficient to justify the exemption of information from release under the Act or under the Privacy Act. In Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219 the Federal Court of Appeal wrote, at paragraph 12:

Fourth, the chilling effect disclosure might have on possible future investigations has been consistently denied as a ground for refusing disclosure (see Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (C.A.), at paragraphs 45-46; Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, at paragraph 45; Lavigne, supra). I appreciate that these decisions were rendered in the context of paragraph 16(1)(c) of the Access Act and of paragraph 22(1)(b) of the Privacy Act, but the principles they set out with respect to investigative bodies involved in the detection of crime or law enforcement are even more applicable to informal investigations of an administrative nature such as in the case at bar. If Parliament is prepared to protect the identity of a confidential source of information only during the course of "lawful investigations" contemplated by these paragraphs, one can hardly make a policy argument that it is necessary to protect the name of a witness in an informal inquiry in order to avoid jeopardizing the conduct of such inquiries in the future. [Underlining added.]

I do not accept the need to protect future investigations to justify an order of unlimited duration.

[239]Aside from the duration of the confidentiality orders, the orders are, in my view, also overbroad to the extent that they contain provisions which are unnecessary in order to fulfill the objectives of the orders. In this regard:

1. The evidence establishes that communication now prohibited between some applicants and certain individuals would not give rise to any concern that the evidence of a witness or a potential witness would be tainted. See, for example, the confidential transcript of the confidential proceedings involving Mr. Pelletier at pages 55-56.

2. The evidence establishes that certain witnesses did not need to speak to the Commissioner's delegate in private in order to be protected from coercive influences. See, for example, the confidential transcript of the confidential proceedings involving Mr. Pelletier at pages 55-56. None of the applicants expressed this concern. The offices which at least some of the applicants held are such that it is not possible to presume they are susceptible to coercion.

3. The evidence does not establish that all of these applicants would improperly disclose confidential government information unless the confidentiality orders were imposed.

4. The evidence does not establish that disclosure of information concerning the manner in which the proceedings were conducted, the role counsel was permitted to play, the nature of objections made by counsel, and the rulings given in response to such objections would impair the integrity of the investigations.

[240]With respect to the Commissioner's position that it is necessary for every witness to be covered by a confidentiality order in order to avoid a stigma attaching to witnesses who were subject to such orders, it is significant that counsel for the Commissioner did not point to any occasion where the Commissioner's delegate gave this as a reason for the issuance of an order. Colonel Drapeau did not give evidence to this effect, he merely opined that public servants and members of the Canadian Forces would be unlikely to feel comfortable requesting an order of confidentiality. The Commissioner did not impose confidentiality orders upon every witness. Accordingly, the evidence does not support the argument that blanket orders were required such that nothing less would achieve the expressed objectives.

[241]To the extent confidentiality orders restricted communication in circumstances where there was no reasonable concern that such communication would impair the investigation or would result in the improper disclosure of confidential information, the orders were, in my view, an impermissible restriction on the witnesses' freedom of expression.

[242]With respect to the Commissioner's concerns of improper disclosure of government information, it is to be remembered that the Federal Court of Appeal has held that the Commissioner is not entitled to put information before a witness which may be exempt from disclosure under the Act. Further, many of the witnesses who appeared before the Commissioner's delegate were subject to confidentiality obligations independent of any imposed by the Commissioner. In consequence, the need to protect information would not arise in every examination. To the extent that it did, a confidentiality order would, in my view, be justified with respect to that specific information so long as the order went no further than was reasonably required to protect the confidential information.

[243]Two final points are to be made. First, the Commissioner argues that in lieu of applying the Oakes analysis, the analysis of the Supreme Court in Sierra, supra should be applied in order to determine whether the confidentiality orders are justified. Because Sierra was decided in circumstances where there is a presumption of open proceedings, and no such presumption attaches to the Commissioner's confidential investigation, I am not convinced that the Sierra analysis is more appropriate than the Oakes analysis. Nor am I convinced that any different conclusion would result if the Sierra analysis was applied. I am satisfied, however, that it is not wrong in law to apply the Oakes analysis and I have so proceeded.

[244]The second point is that four of the five investigations are ongoing. As counsel for the Commissioner observed, with respect to those ongoing investigations the Court does not know the Commissioner's investigational plan, what witnesses may need to be recalled, what further witnesses will be required, or what, if any, conflicts exist in the testimony given to date. In that context I am not prepared to order that the confidentiality orders be quashed with immediate effect out of concern that such an order could jeopardize the ongoing investigations. In my view, the public interest in preserving the integrity of the Commissioner's investigations justifies making an order quashing the confidentiality orders, but on terms that the operation of such order be suspended for a period of 30 days from the date of these reasons. Such date may be extended by the Court if so convinced on proper motion brought by the Commissioner. The purpose of this suspension is to permit the Commissioner to consider the need for confidentiality orders and, if still required, to issue orders which are not overbroad in scope and which are demonstrably justified. It is a term the Court may impose as contemplated by rule 53 of the Federal Court Rules, 1998 [SOR/98-106].

(iv) Conclusion re Group B

[245]On the basis of the analysis set out above, I have concluded that the confidentiality orders did more than bring home to a witness their obligations under the Act, but that the Commissioner's delegate was authorized under the Act to issue confidentiality orders. However, the orders at issue breached the right of the individual applicants to freedom of expression. Such orders were overbroad and so were not a reasonable limit prescribed by law so as to be valid pursuant to the provisions of section 1 of the Charter. In the result, the confidentiality orders should be set aside, but on condition. That condition is that the order quashing the confidentiality orders will only take effect 31 days after the date of the order embodying this decision. The 30-day period of suspension will permit the Commissioner to consider the need for confidentiality orders and, if required, to issue orders which are not overbroad and which are justified on the evidence before the Commissioner.

Editor's note (replaces paragraphs 246 to 326):

Paragraphs 246 to 291 deal with the copying of records. Copies of certain documents were provided to the Commissioner in response to a subpoena duces tecum, with requests that they be returned within a specified time period, and that the Commissioner not copy any document so provided. The Commissioner took the position that he would not be bound by any such conditions.

It was first determined that the Commissioner should be granted leave to be the respondent in these applications. Second, it was determined that even though the investigation in relation to the Black document requests has been completed, the application for judicial review in relation to these requests was not moot. Since the evidence was that the copies had neither been returned nor destroyed, the dispute was not academic and the relief sought would have a practical effect with respect to the copies made and retained by the Commissioner.

Following a pragmatic and functional analysis, it was determined that correctness was the appropriate standard of review to be applied to the Commissioner's decision that the Act allowed him to copy records produced pursua nt to subpoena. Given the purpose fo the Commissioner's investigation, the power to photocopy is required as a matter of practical necessity in order for the Commissioner to conduct his investigation and further function effectively and efficiently. It is not contrary to the scheme of the Act to imply this power. Rather, it facilitates the Commissioner's ability to provide evidence. Since the Commissioner is obliged under the Act to return documents upon request to the provider of the document, allowing the Commissioner to retain a copy will ensure his ability to establish the grounds for findings and recommendations and to put before the Court evidence given in proceedings. Furthermore, implying the power to photocopy documents is consistent with the purpose of the Act to provide a meaningful right of access and to provide citizens with a thorough investigation of the complaints concerning access. Finally, subsection 36(5) fo the Act does not require the Commissioner to return copies he may have made of documents provided to him because those copies were not "produced" pursuant to section 36.

Paragraphs 292 to 326 deal with the propriety of questions applications. These two applications for declaratory relief relate to the propriety of certain questions put to Jean Pelletier and to the Honourable Art Eggleton when they gave evidence under oath before the Commissioner's delegate pursuant to subpoenas served upon them. The questions put to them called for their opinion on certain matters and/or comment on the o pinion of another.

The Commissioner was granted leave to be the respondent in these applications. Since Mr. Pelletier was ultimately not required to answer the questions at issue put to him, and because Mr. Eggleton answered the questions at issue put to him, it was agreed that these issues were moot. The question was whether the Court should exercise its discretion to determine the issues nevertheless. The criteria defined in Borowski v. Canada (Attorney General), were applied. The necessary adversarial relationship existed. Upon consideration of the following factors, it was determined that there were no special circumstances warranting adjudication of the moot questions: (1) considering the broad powers conferred on the Commissioner with respect to the investigation he is required to conduct, the Court should be slow to intervene in the exercise of the Commissioner's discretion as to what evidence he sees fit to accept; (2) the questions were challenged on grounds of relevance only; (3) evidentiary ruling s should not be challenged until the final decision is made--here, one investigation is ongoing, in the other, Mr. Pelletier was never required to answer the questions; (4) the applicants have failed to establish that there was a likelihood of the questions recurring in circumstances where a ruling on the propriety of these questions would be determinative of subsequent disputes; the applicants have failed to establish that the taking of improper evidence would escape judicial review if the improper evidence was material to the final decision. Finally, given the lack of precedential value of a ruling made herein, the Court saw no public interest which would warrant determining the issues raised in these applications.

9.     GROUP E: THE SOLICITOR-CLIENT APPLICATION

(i)     Additional facts

[327]This application for judicial review arises out of the investigation by the Commissioner into the complaints arising out of the responses by the head of the Privy Council Office to the Prime Minister's agenda requests.

[328]In the course of investigating these complaints, the Commissioner's delegate served Mr. Cappe with a subpoena duces tecum which required him to attend to give evidence before the Commissioner's delegate and to bring with him certain records. The terms of the subpoena have previously been set out in these reasons with respect to the Group C applications, but are repeated here for ease of reference:

All records (as that term is defined in section 3 of the Act) under the control of the Privy Council Office containing information relating to:

(i) the receipt, use and disposition by the Clerk of the Privy Council of agendas of the Prime Minister of Canada, and

(ii) the cessation in 1999 of the practice of providing agendas of the Prime Minister to the Clerk of the Privy Council.

Upon receipt of the subpoena Mr. Cappe caused a search to be conducted at the Privy Council Office for all records which contained subject matter described by the subpoena. Among the records located were:

1. A July 30, 1999 memorandum entitled "ATIP Request-PM's Agenda" and subtitled "Legal advice". This memorandum was prepared by a lawyer in the Legislation and House Planning/Counsel Section of the Privy Council Office, which section is part of the Privy Council Office and not part of the Department of Justice. The section's functions include providing legal advice to the Prime Minister's Office, the Cabinet, and the Privy Council Office. The July 30, 1999 memorandum states on its face that it is a "memorandum for Mel Cappe". Mr. Cappe swears that the memorandum contains a discussion and analysis of the legal options available to the Privy Council Office, under the Access to Information Act, to respond to the requests for access to the Prime Minister's agendas. Those requests had not yet been responded to when the July 30, 1999 memorandum was prepared.

2. Ten further documents. They are listed in Schedule A to the notice of application filed in this proceeding (the Schedule A documents). Mr. Cappe swears that all of the Schedule A documents were located in the Privy Council Office and were all communications, or records of communications, or drafts of communications, between or amongst officials of the Government of Canada, including communications to the Prime Minister and the Deputy Attorney General of Canada. They were all made for the purpose of giving or communicating legal advice with respect to the issues between the Information Commissioner and the Government of Canada which gave rise to this litigation.

[329]On May 23, 2001, counsel for Mr. Cappe wrote to counsel for the Commissioner in order to clarify the scope of the subpoena issued to Mr. Cappe. Counsel for Mr. Cappe pointed out that a broad reading of the subpoena suggested that the Commissioner's delegate sought to order Mr. Cappe to provide all documents described therein, whether or not those documents were subject to solicitor-client privilege. On June 6, 2001, counsel for the Commissioner responded that Mr. Cappe was required to produce all records referred to in the subpoena and any records which were alleged to be subject to solicitor-client privilege should be identified as such.

[330]On June 8, 2001, a number of documents were delivered to the Commissioner pursuant to the subpoena under cover of a letter from counsel for Mr. Cappe. That correspondence stated that documents subject to solicitor-client privilege were not provided and a list of the documents that Mr. Cappe declined to produce was provided. Counsel for Mr. Cappe offered to sever the privileged documents so as to disclose to the Commissioner recitations of facts contained therein, but not that portion of the documents that contained legal advice and discussions of legal strategy.

[331]By letter dated June 11, 2001, the Commissioner's delegate acknowledged receipt of counsel's correspondence and the documents. In material part the Commissioner's delegate responded that:

I write to acknowledge receipt of your letter of June 8, 2001 together with 15 records relevant to my subpoena of May 17, 2001 as well as a list of 11 relevant records which your client has refused to produce in accordance with the subpoena. The refusal is based on your client's contention that the 11 records, in whole or in part, qualify for solicitor-client privilege.

In order to be in satisfactory compliance with my subpoena of May 17, 2001, I will expect your client to produce, on June 12 at 9:30 a.m., item one of the list of withheld records, being the document dated July 30, 1999. This record predates the commencement of the Commissioner's investigation and is, in my view, relevant to our investigation of whether or not the head of PCO had reasonable grounds, in fact and law, to refuse to disclose records requested under the Access to Information Act.

Paragraph 36(1)(c) and subsection 36(2) make it clear that an assertion of solicitor-client privilege does not justify your client's decision to withhold records from this office, a view endorsed by the Federal Court of Appeal in Ethyl Canada (A-762-99)--a case wherein the Crown was denied leave to appeal to the Supreme Court of Canada ([2000] S.C.C.A. No. 275). Nevertheless, I do not insist at this time on seeing the remaining ten withheld records since, from the description provided, they do not shed light on the response to the access request. Of course, I reserve the right to examine these ten records at a later date to satisfy myself that they are as you have described.

[332]On June 12, 2001, Mr. Cappe appeared before the Commissioner's delegate pursuant to the subpoenas duces tecum and was examined under oath. During that appearance Mr. Cappe's counsel made submissions to the Commissioner's delegate on the issue of whether the July 30, 1999 legal advice memorandum ought to be produced and the Commissioner's delegate reserved his decision.

[333]By letter dated June 19, 2001, the Commissioner's delegate provided Mr. Cappe's counsel with his decision. In material part that decision was:

Having carefully considered the submission made in support of your motion, I see no reason to change the position set out in my letter of June 11, 2001. In addition to the reason of relevance, set out in my letter of June 11, I am also in doubt whether or not the content of the records qualify for solicitor-client privilege, given the operational role some PCO lawyers have in the administration of the Access to Information Act.

Consequently, I consider that, at a minimum, the document, dated July 30, 1999, is required to be produced pursuant to my subpoena of May 17, 2001. I expect the document to be produced no later than 14:00 hrs, June 20, 2001. As I said in my letter of June 11, I reserve the right to examine the remaining ten records at a later date.

[334]The Commissioner was provided with a complete copy of the July 30, 1999 memorandum. The Commissioner has not to date been provided with any of the Schedule A documents.

(ii) The issues

[335]The issues that the parties put forward are:

1. Whether leave should be given to allow the Information Commissioner to be named as respondent herein?

2. Whether the application for judicial review is not justiciable and is premature and unnecessary with respect to at least 10 of the 11 documents at issue?

3. Whether the July 30, 1999, legal advice memorandum and the Schedule A documents are subject to solicitor-client privilege of Her Majesty in Right of Canada?

4. The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum.

5. Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum?

(iii) Analysis

(a)     Should the Commissioner be named as respondent in this application?

[336]The Commissioner does not oppose being named a respondent. For the reasons given in respect of the Group C applications, an order will issue granting leave for the Commissioner to be the respondent in these applications.

(b)     Is the application for judicial review not justiciable, premature and unnecessary with respect to the Schedule A documents?

[337]The notice of application challenges "the decision communicated to the applicants on June 19, 2001 . . . requiring the applicant, Mel Cappe . . . to produce . . . a draft memorandum dated July 30, 1999 to Mr. Cappe", and also seeks a declaration that the July 30, 1999 memorandum and the other 10 Schedule A documents are subject to a solicitor-client privilege.

[338]The June 19, 2001 decision challenged in this proceeding only required production of the July 30, 1999 memoranda. The document was said to be required because it predated the commencement of the Commissioner's investigation, and was relevant to the investigation of whether the head of the Privy Council Office had reasonable grounds to refuse disclosure. The Commissioner's delegate had, by his letter of June 11, 2001, previously advised that, based upon their description, the Schedule A documents "do not shed light on the response to the access request". Therefore their production was not required. The Commissioner's delegate did reserve the right to examine those documents at a later date in order "to satisfy myself that they are as you have described". To date, none of the Schedule A documents have been requested from the applicants.

[339]In those circumstances, I can see no concrete and live dispute in existence between the applicants and the Commissioner with respect to the Schedule A documents. They have been determined not to "shed light on the response to the access request" subject only to the caveat that the documents have been accurately described. Similarly, in view of my conclusion that follows with respect to the Commissioner's right to access privileged documents, I can not see that a declaration as to whether solicitor-client privilege attaches to the Schedule A documents would be of any practical value. I therefore conclude that the application for judicial relief is premature and unnecessary with respect to the Schedule A documents.

(c)     Is the application for judicial review not justiciable, moot and unnecessary with respect to the July 30, 1999 memorandum?

[340]While the issue of the Commissioner's ability to compel production of the July 30, 1999 memorandum may be seen to be moot in the sense that the document has already been provided to the Commissioner, an order quashing such production would have some practical value in that the memorandum would be returned by the Commissioner and presumably could not be used by the Commissioner in evidence in any subsequent proceeding. Moreover, as this dispute centres around the proper interpretation of the Act as it touches upon the ability of the Commissioner to require production of documents in respect of which a claim for solicitor-client privilege is asserted, a decision as to the scope of the Commissioner's authority to compel production would have some precedential value. I am satisfied therefore that the Court should exercise its discretion to determine the question raised by the applicants as to whether the Commissioner could properly require production of the July 30, 1999 memorandum.

[341]In so concluding, I have considered the submission of counsel for the Commissioner in oral argument that the issue is a simple matter of relevancy, and that the issue raised in Group E could equally have been merged within the Group D applications. It would follow from this submission that the Court should not intervene in a ruling made by the Commissioner at the investigative stage about relevance. However when the Commissioner sought production of a document said to be protected by solicitor-client privilege more was involved than a ruling about relevance. Solicitor-client privilege is not just a rule of evidence but has evolved into a substantive rule that is fundamental to the system of justice. See: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, at paragraph 18. It follows that more is involved than a ruling about relevance when the Commissioner sought production of a document said to be protected by solicitor-client privilege.

(d)     Is the July 30, 1999 memorandum subject to solicitor-client privilege?

[342]The applicants argue that to be subject to solicitor-client privilege, a document must consist of information communicated to or by a lawyer in order to obtain or provide legal advice. The July 30, 1999 memorandum is said to be privileged because it was drafted by a lawyer in the section responsible for providing legal advice to the Privy Council Office and because it contains a discussion and analysis of legal options available to the Privy Council Office.

[343]The Commissioner states that since his investigation with respect to the Prime Minister's agenda requests is ongoing, he must remain neutral at this juncture. On this basis the Commissioner takes no position with respect to whether any of the documents at issue are privileged.

[344]Mr. Cappe was not challenged on his evidence with respect to the description of the July 30, 1999 memorandum. For the purpose of my analysis I believe it is sufficient for me to assume, without finally deciding, that the July 30, 1999 memorandum is subject to solicitor-client privilege.

(e)     The standard of review to be applied to the decision to compel production of the July 30, 1999 memorandum.

[345]For the reasons given with respect to the Group B applications, it is necessary to determine the standard of review applicable to the Commissioner's decision that the Act permitted him to compel production of the July 30, 1999 memorandum. To do so, the first step is to characterize the nature of the question decided by the Commissioner's delegate.

[346]The applicants acknowledge that the Commissioner has the prima facie jurisdiction to compel the production of all documents, privileged or not, within the control of the government institution which are relevant to a matter the Commissioner is investigating. The applicants say, however, that the Commissioner cannot invade solicitor-client privilege unless it is absolutely necessary to his investigation and that it was not absolutely necessary for the Commissioner's delegate to see the July 30, 1999 memorandum in order to conduct his investigation. Therefore it is submitted that the Commissioner erred in failing to determine that the memorandum was absolutely necessary for his investigation.

[347]In reply, the Commissioner asserts that subsection 36(2) of the Act provides that he may, during his investigation, examine any record to which the Act applies that is under the control of a government institution, and that no such record may be withheld from him on any grounds. The only conditions on the Commissioner's right to examine any record are said to be that the record is under the control of a government institution and the production of the record is deemed requisite to the full investigation and consideration of the complaint.

[348]What is at issue, therefore, is a question of law as to whether the Commissioner was obliged to apply the test of absolute necessity. For that question, the applicants argue that the appropriate standard of review is correctness. To support this contention the applicants argue that where a tribunal is applying legal principles to determine rights, less deference will be shown. The applicants also argue that the determination of an issue of pure law requires a more searching review on an application for judicial review.

[349]Counsel for the Commissioner did not address the standard of review.

[350]I agree that the applicable standard of review is correctness. I reach that conclusion taking into account the applicants' submissions and also the analysis contained in the Group B applications with respect to the standard of review. The Group B analysis is applicable to this question because both decisions under review in Group B and Group E involve the proper interpretation of the Act as it touches on the powers of the Commissioner during the course of an investigation.

(f)     Did the Commissioner's delegate err in concluding that he had jurisdiction to compel production of the July 30, 1999 legal advice memorandum?

[351]The applicants acknowledge that subsection 36(2) of the Act provides to the Commissioner a prima facie right of access to documents that are protected by solicitor-client privilege. Subsection 36(2) provides:

36. . . .

(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds. [Underlining added.]

[352]However, the applicants argue that in Lavallee, supra the Supreme Court of Canada clearly stated that such a statutory authority must be interpreted restrictively, so as to allow access to documents protected by solicitor-client privilege only where absolutely necessary to the conduct of the investigation. Particular reliance is placed upon paragraph 18 of the reasons of the majority of the Supreme Court which quoted with approval the prior decision of the Supreme Court of Canada in Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860. At paragraph 18 the majority wrote in Lavallee:

Writing for the Court, Lamer J. (as he then was) dismissed the appeal. After briefly tracing the historical development of solicitor-client privilege as a rule of evidence, Lamer J. confirmed that solicitor-client privilege had evolved into a substantive principle, referring to this Court's decision in Solosky, supra. He stated at p. 875:

It is quite apparent that the Court in that case [Solosky] applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.

Lamer J. went on to formulate the elements of the substantive rule concisely in the following terms (at p. 875), elements which, in my view, largely govern the outcome of the appeals presently before the Court:

It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:

1.     The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2.     Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.     When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.     Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

See also Jones, supra, at para. 49. [Underlining added throughout.]

[353]The applicants argue that according to these principles, the Court should interpret subsection 36(2) restrictively, so that the solicitor-client privilege is only interfered with to the extent absolutely necessary.

[354]The applicants argue further that a restrictive interpretation is particularly required where documents provided to the Commissioner may be produced as evidence in proceedings commenced under sections 41, 42 or 44 of the Act.

[355]Notwithstanding the strength of that submission, I have concluded that subsection 36(2) of the Act should not be interpreted in that restrictive fashion. I reach that conclusion for the reasons that follow.

[356]First, the jurisprudence of the Court expounds that the Act is to be interpreted in a purposive and liberal manner. To the extent that the Act specifies that decisions on the disclosure of government information should be reviewed independently of government, the applicants' interpretation of subsection 36(2) would impose a significant restriction on the ability of the Commissioner to conduct his investigation and independent review.

[357]Second, had Parliament failed to enact subsection 36(2) of the Act, the principles articulated in Lavallee might well have applied to limit the general power to compel the production of documents which is found in paragraph 36(1)(a) of the Act. However, in my view, by enacting subsection 36(2) Parliament used words that clearly evince its intent that the Commissioner is to have access to any record required by the Commissioner in the course of his investigation, notwithstanding "any other Act of Parliament or any privilege under the law of evidence". To read subsection 36(2) as the applicants submit would, to paraphrase the words of Mr. Justice Létourneau in Canada Post Corp. v. Canada (Minister of Public Works), supra, at paragraph 33, read in limiting words not found there and would circumvent the intention of Parliament.

[358]Third, in my view, this interpretation is consistent with the role of the Commissioner and the whole scheme of the Act. The Commissioner has the statutory duty under the Act to protect the privileged information communicated to him under subsection 36(2) of the Act for his independent review of an access complaint. Sensitive information is to be provided to the Commissioner so that he can properly perform his functions. While in a case the Commissioner might recommend disclosure of a privileged document, he has no power to disclose documents. Where a privileged document is produced to the Commissioner that is not the subject of an access request, but is a document relevant or ancillary to that access request, the Commissioner's ability to use the document in Court in review proceedings without putting the document on the public record is facilitated by the Court's confidentiality rules and practice. The application of this practice is demonstrated in Canada (Information Commissioner) v. Canada (Minister of the Environment) (2000), 187 D.L.R. (4th) 127 (F.C.A.) (Ethyl case).

[359]The special position of the Commissioner is reflected in the fact that subsection 36(2) of the Act mirrors section 46. Section 46 of the Act permits the Court to examine any record "notwithstanding . . . any privilege under the law of evidence". Just as privilege and confidentiality are not lost when the Court examines a privileged document, the privilege is not lost when the document is provided to the Commissioner for his examination.

[360]Finally, I find support for this interpretation of the Act in the decision of the Federal Court of Appeal in the Ethyl case cited above. In Ethyl, one of the issues before the Court was whether the Commissioner could file, on the Court record for possible use as evidence, documents which were protected by solicitor-client privilege and that were not the subject of the relevant access request. There, as in the present case, the privileged documents were ancillary to the request. The Court concluded that the documents could be filed before the reviewing judge in the judicial review proceedings. The Court further concluded that the ancillary documents would be admissible if the reviewing judge was satisfied that the documents would be of assistance in determining the merits and legality of the refusal of access. At paragraph 14, the Court of Appeal wrote "[t]he fact that [the documents] could be privileged makes no difference since the obstacle of privilege is eliminated by the clear wording of section 46".

[361]As previously noted, subsection 36(2) mirrors section 46 of the Act, and so I take from the Ethyl case that, vis-à-vis the Commissioner, the obstacle of privilege is similarly eliminated.

[362]The applicants seek to distinguish Ethyl on two grounds. First, Ethyl predates the decisions of the Supreme Court of Canada on the scope of solicitor-client privilege in Lavallee, supra and R. v. McClure, [2001] 1 S.C.R. 445. Second, implicit in the facts of the Ethyl case was that recourse to the solicitor-client documents was absolutely necessary.

[363]I am unable to so distinguish the Ethyl decision. While Ethyl does predate Lavallee and McClure, the Federal Court of Appeal expressly adverted to the prior decision of the Supreme Court of Canada in Descôteaux where the "absolutely necessary" test was first articulated. Further, there is nothing in the Federal Court of Appeal decision which leads me to conclude that the decision was based upon the conclusion that the privileged documents were "absolutely necessary". Such conclusion is inconsistent, in my view, with the phrase "the obstacle of privilege is eliminated" and the Court expressly left for the reviewing judge the issue of the documents' relevance and admissibility.

(iv) Conclusion re Group E

[364]On the basis of the analysis above, I have concluded that the Commissioner's delegate was correct in his decision that he could compel production of the July 30, 1999 legal memorandum and that it was not necessary for him to consider whether the document was absolutely required for his investigation.

[365]In the result, an order will issue dismissing the application for judicial review and reserving the issue of costs.

10. CONCLUSION AS TO COSTS

[366]The parties agreed that the issue of costs should be reserved for further submissions. Orders will issue to that effect.

[367]In conclusion, counsel are thanked for their thoughtful and cogent written and oral submissions. The submissions were most helpful.

1     Where reference is made in these reasons to an office held by an individual, the reference is to the incumbent of that position at the time material to these applications.

2     While Justice Lamer dissented in the result in Slaight, he wrote for the majority on this point.