Annual Report: 2004-2005

For virtually all but one of the past seven years, the government of former Prime Minister Chrétien engaged in numerous legal challenges to the jurisdiction and powers of the Information Commissioner. Most of those attacks were resolved by the Federal Court last year and the details of the court’s decision are set out in last year’s annual report at pages 9 to 13. The government of Paul Martin continues the legal challenge (by pursuing an appeal to the Federal Court of Appeal) of the Information Commissioner’s right to see records which the government claims to be subject to solicitor-client privilege. Despite that remaining uncertainty, it is now settled, and accepted by the government, that the Information Commissioner has the authority to compel the production of records, for investigative purposes, which are held in the PMO and ministers’ offices. It is also settled, and accepted by the government, that the commissioner has the authority to compel ministers and exempt staff members in ministers’ offices and the PMO, to appear and give evidence relevant to matters under investigation by the commissioner.

The Federal Court has also decided that the government may not come to it for rulings on the substance of matters which are under investigation by the commissioner. The Federal Court has made it clear that the scheme of the Access to Information Act gives Canadians the right to have a full investigation of their complaints by the commissioner before the Federal Court will become involved.