In the course of investigating six complaints concerning the head of the Privy Council Office’s responses to access requests for copies of the former Prime Minister’s daily agendas for the fiscal or calendar years 1994 to June 25, 1999, the Information Commissioner served Mel Cappe, then Clerk of the Privy Council, with a subpoena duces tecum, which required that Mr. Cappe attend to give evidence before the commissioner’s delegate and to bring with him certain records.

In response, Mr. Cappe declined to provide the Office of the Information Commissioner with eleven documents that Mr. Cappe identified as being responsive to the subpoena duces tecum. Instead, the Information Commissioner was provided with a general description of the 11 documents. The basis upon which the documents were withheld from the Information Commissioner (and only a description was given) was the government’s assertion that the 11 documents were protected by solicitor-client privilege and therefore not subject to the Information Commissioner’s prima facie right of review.

Despite the claim of solicitor-client privilege, the Information Commissioner ordered the production of one of the eleven documents. According to this document’s description, it was a legal advice memorandum created in order to provide legal advice to the Privy Council Office in response to the access to information requests. The legal opinion pre-dated the complaint to the Information Commissioner’s Office and, therefore, the commencement of the Information Commissioner’s investigation.

In response to the Order of Production, Mr. Cappe produced the record to the Information Commissioner’s delegate. Meanwhile, however, the government and Mr. Cappe commenced a judicial review proceeding against the Information Commissioner wherein they sought: a) a declaration from the Federal Court that all eleven documents identified as responsive to the subpoena duces tecum were subject to solicitor-client privilege and that the Information Commissioner, as a result, lacked the jurisdiction to compel these documents’ production; and b) an order of certiorari which would quash, after the fact, the Information Commissioner’s order to compel the one document which he had ordered to be produced.

This application inter alia was determined by the Federal Court on March 25, 2004. Here, Madam Justice Dawson held that subsection 36(2) of the Act provides the Information Commissioner with a prima facie right of access to documents that are protected by solicitor-client privilege. In doing so, she rejected the Crown’s argument for a restrictive interpretation which would have required the Information Commissioner to establish that the production of the document was absolutely necessary for the Information Commissioner’s investigations prior to his ordering that it be produced. Such a restrictive interpretation, Justice Dawson concluded, was inconsistent with Parliament’s clear language, set out in the Act. In support of her ruling, Justice Dawson pointed inter alia to the scheme of the Act, in general, and its overarching mandate of independent review, and the clear words of Parliament as set out in subsection 36(2) of the Act. In addition, Justice Dawson noted that the production of privileged material to the Information Commissioner does not compromise privilege and that the issue had already been addressed by the Federal Court of Appeal in the Ethyl case, Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4^th) 127 (FCA), (Court of Appeal file A-761-99) leave to appeal to SCC, dismissed, [2000] SCC file 27956.

In the appeal, the Attorney General and Mel Cappe challenged Justice Dawson’s decision, contending inter alia that the Information Commissioner is required to establish absolute necessity prior to compelling the production of records that are asserted to be the subject of solicitor client privilege during the course of his in camera investigation.

Whether the Application Judge correctly interpreted subsection 36(2) of the Act, given:

1. the clear wording of subsection 36(2) of the Act;

2. the public policy goals sought to be achieved by Parliament in the Act and the role of the Information Commissioner; and

3. that the relevancy of the document in issue to the investigation being carried out by the Information Commissioner is a matter for determination by the Information Commissioner

The appeal was heard on May 4, 2005, and judgment was given on May 27, 2005. Justice Malone wrote the reasons for the judgement, and the panel consisted of Desjardins J., Noël J., and Malone J.

The Court interpreted subsection 36(2) of the Act restrictively. The Ethyl decision was distinguished. The ancillary records that the Information Commissioner was permitted to examine in Ethyl were created before the records were requested, and they were needed to determine the truth of a claim that the requested records did not exist. The Court in Ethyl found that such records were therefore relevant and necessarily must be produced to the Information Commissioner under section 46 of the Act. The Court stated that this finding was not determinative of whether a record prepared after the request was made would be producible to the Information Commissioner under subsection 36(2) of the Act.

The Court noted that solicitor-client privilege is more than a rule of evidence; it is a fundamental and substantive rule of law with a unique status. As such, it must be as close to absolute as possible and should only be set aside in unusual circumstances. Where legislation permits interference with the privilege for a particular purpose, such legislation should be interpreted as restrictively as possible. Both parties before the Court agreed that the Information Commissioner is empowered to examine information which has been withheld from an access requester pursuant to section 23 of the Act as being subject to solicitor-client privilege. However, the Attorney General argued that the Information Commissioner did not have authority to review any ancillary records.

The Court observed that there is the potential for the Information Commissioner to become adverse in interest to the government institution from which information is being requested, since the Information Commissioner has standing under subsection 42(1) of the Act to initiate a court challenge of any refusal to provide access to requested records.

In light of these two considerations, the Court found that any use of the Information Commissioner’s powers under paragraph 36(1)(a) and subsection 36(2) of the ATIA to obtain the document requested in this case would interfere with solicitor-client privilege in a manner that is unnecessary for the achievement of the enabling legislation. Since such interference is only permitted where it is absolutely necessary, the Information Commissioner does not, the Court held, have the power to compel the production of the legal advice memorandum in this case.

The Court also made reference to the case of Pritchard v. Ontario (Human Rights Commission), [2004] 1 SCR 809 wherein the SCC indicated that the legislature can abrogate the existence of solicitor-client privilege by eliminating the expectation of confidentiality, but that the question of whether solicitor-client privilege could be violated by the express intention of the legislature was a controversial matter.

The Court stated that the record in this case was prepared to provide legal advice on how to respond to the access to information request, and that Parliament could not have intended a government institution to be without the benefit of confidential legal advice on such a matter. Therefore an expectation of confidentiality existed that must be upheld where production of the document is not necessary in order to prevent a "chilling effect" that might discourage the government from fully confiding in its legal advisers.

The Court found that Madame Justice Dawson, therefore, erred by adopting a purposive and liberal interpretation of subsection 36(2), since the fundamental and important role of solicitor-client privilege in the legal system mandates a restrictive interpretation.

The appeal of the Attorney General was allowed.

The Information Commissioner sought leave to appeal this decision to the Supreme Court of Canada, but it was refused on November 17, 2005 (SCC File 31065)..

Francis Mazhero v. Information Commissioner of Canada, T-313-04, Federal Court, Lafrenière, P., January 5, 2006,(see Annual Report 2004-2005, p. 63 for further details)

This was a motion by the Information Commissioner for an order striking out an application for judicial review against the Information Commissioner.

Mr. Mazhero, a self-represented litigant, brought an application for judicial review of two "decisions" of the Information Commissioner. The first was a request that Mr. Mazhero provide proof that the RCMP received his access request under the Act. The second was a suggestion that Mr. Mazhero grant the Information Commissioner permission to forward a copy of the access request to the RCMP.

Mr. Mazhero sought an order quashing these "decisions" and an order of mandamus directing the Information Commissioner to recommend that the RCMP disclose the records he claims to have requested. The Information Commissioner brought a motion to be removed as a respondent and to strike the application on the grounds that it was bereft of any possibility of success.

On June 17, 2004, Rouleau J. ordered the Information Commissioner removed as a Respondent and indicated the Court would hear the motion to strike.

Mr. Mazhero opposed the Information Commissioner’s motion to strike on the grounds that the Information Commissioner had no standing to bring this motion because the Information Commissioner had not filed a proper Notice of Appearance.

1) Did the Information Commissioner have standing to bring the motion?

2) Should the motion be struck?

Re 1), the failure to file a Notice of Appearance was not material. Mr. Mazhero knew well in advance that the Information Commissioner opposed the application, and there is no evidence that he was prejudiced by the failure to file such a Notice. In any case, any deficiency of the Information Commissioner is rectified by Rouleau J.’s order granting leave to the motion.

Re 2), the requests by the Information Commissioner that Mr. Mazhero provide certain information and grant permission for the Information Commissioner to communicate with the RCMP were administrative actions. They were not "decisions" within the meaning of subsection 18(1) of the Federal Courts Act. Mr. Mazhero’s rights and interests were not affected by the Information Commissioner’s requests. There was no indication that the Information Commissioner had refused to investigate the complaints either and, therefore, no grounds for a writ of mandamus.

The application for judicial review was found to be bereft of any chance of success, and the motion to strike it was granted.

Matthew Yeager v. National Parole Board, Correctional Service of Canada; Information Commissioner of Canada (Commissioner); Minister of Public Safety and Emergency Preparedness; and The Attorney General, T-1644-04, Federal Court, February 3, 2006 (see Annual Report 2004-2005, p. 63 for further details)

This application for judicial review against the Information Commissioner was discontinued by the applicant on the eave of the hearing before the Federal Court.

The Information Commissioner v. The Minister of Industry, T-53-04, T-1996-04 Federal Court (See Annual Report 2003-2004, pp. 53-54 and Annual Report 2004-2005, pp. 57-59 for more details)

These applications for review, seeking orders requiring the Chief Statistician to disclose the 1911 nominal census returns (given the passage of more than 92 years), were discontinued after the Chief Statistician transferred the records to the National Archives which made all 1911 census records fully available to the public on its website at the end of July 2005. This action was taken by the Chief Statistician when the government introduced amendments to the Statistics Act which established rules for the disclosure of historic census records and rules for public disclosure of future census records.

The Information Commissioner v. The Minister of Industry, T-421-04 Federal Court, Kelen, J., February 13, 2006 (See Annual Report 2003-2004, pp. 54-55 and Annual Report 2004-2005, pp. 57-59 for more details)

In this application, the Director of the Algonquin National Secretariat made a request to Statistics Canada (part of the Department of Industry) for access to the 1911, 1921, 1931, and 1941 census records in relation to certain districts in the Provinces of Ontario and Québec. The request was made on behalf of three Algonquin First Nation Bands (the "Algonquin Bands") who had received funding from the Federal Government for the purpose of researching and preparing a land claim. This land claim requires evidence of community continuity through time in terms of membership, land use, and occupancy. Without the census records, the Algonquin Bands were missing proof of continuity of occupation for the 20^th century, until 1951.

The Algonquin Bands proposed that the census records be disclosed to an ethnohistorian researching the land claim on the Bands’ behalf. This ethnohistorian was willing to undertake to maintain the confidentiality of the census records not related to the ancestors of the Bands in order preserve the confidentiality of personal information in the census records with respect to non-Aboriginal persons.

Notwithstanding the Bands’ proposal, the Chief Statistician denied the access request based on subsection 24(1) of the Act. This provision requires the head of a government institution to refuse to disclose a requested record that contains information the disclosure of which is restricted by a provision set out in a Schedule to the Act. This Schedule, in turn, includes section 17 of the Statistics Act, R.S.C. 1985, c. S-19, which contains a restriction on the disclosure of individual census returns.

The Algonquin Bands complained to the Information Commissioner, who investigated the complaint and recommended that the records be disclosed pursuant to paragraph 8(2)(k) of the Privacy Act and section 35 of the Constitution Act, 1982. Statistics Canada refused to follow the Information Commissioner’s recommendation. As a result, on January 12, 2003, the Information Commissioner filed an Application for Judicial Review of the decision to refuse access to the 1911, 1921, 1931, and 1941 census records.

Thereafter, the Statistics Act was amended so as to require a release to the public of census records after the passage of 92 years. As a result of this amendment, Statistics Canada released the 1911 census records. The application for review was later amended to reflect the fact that access to the 1911 census records were no longer a source of contention between the parties.

The issues defined by the Court are as follows:

1. Are the census records necessary for the land claim of the Algonquin Bands?

2. Are the census records in this case subject to production under the Act?

3. Is section 35 of the Constitution Act, 1982 "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act?

4. Is paragraph 8(2)(k) of the Privacy Act "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act?

5. What is "information available to the public" within the meaning of paragraph 17(2)(d) of the Statistics Act?; and

6. In the alternative that the respondent was prohibited from disclosing census records pursuant to section 17 of the Statistics Act, what would be the effect of section 52 of the Constitution Act, 1982?

1. Are the census records necessary for the land claim of the Algonquin Bands?

The Court was satisfied that the requested census information is necessary and important for the Algonquin Bands to properly document its land claim.

2. Are the census records in this case subject to production under the Access Act?

The Court rejected the government’s argument that section 24 of the Act prohibits the disclosure of the census records. The Court noted that, although subsection 24(1) of the Act incorporates by reference the restriction on the disclosure of census records set out in paragraph 17(1)(b) of the Statistics Act, subsection 17(2) grants the Chief Statistician discretion to authorize the disclosure of "information available to the public under any statutory or other law".

Thus, if the census records are "information available to the public under any statutory or other law", the Chief Statistician has the discretion to authorize their disclosure. In turn, the disclosure of the census records would not be prohibited under the Act.

3. Is section 35 of the Constitution Act, 1982 "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act?

Section 35 of the Constitution Act, 1982 offers constitutional protection to Aboriginal rights and treaty rights that already exist by established land claim agreements or those rights which may be acquired. The Court noted that it would be inconsistent with section 35 of the Constitution Act, 1982 for the Crown to have in its possession, yet suppress, evidence required by Aboriginal peoples to prove their land claim.

The Court, citing decisions by the Supreme Court of Canada, considered the Crown’s obligations in its dealings with Aboriginal peoples. The Court noted that among these obligations is the duty to act honourably and enter into and conduct Aboriginal land title negotiations in good faith. Applying these principles to the case at bar, the Court held that Crown’s duty to act honourably requires good faith negotiations leading to a just settlement of the Aboriginal claims. In light of the fact that Aboriginal title requires proof of continuity between present and pre-sovereignty occupation of the territory over which Aboriginal title is claimed, the Crown’s honour gives rise to a fiduciary duty with respect to the census records that relate to the Aboriginal rights in the territories at stake and requires that the Crown disclose census records in its possession that may prove continuity of occupation.

The Court concluded that section 35 of the Constitution Act, 1982 and the Crown’s common law duties to act honourably, in good faith, and as a fiduciary with respect to Aboriginal land claims, are "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act.

4. Is paragraph 8(2)(k) of the Privacy Act "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act?

The Court noted that paragraph 8(2)(k) of the Privacy Act permits the disclosure of personal information to any Indian Band, or person acting on the Band’s behalf, for the purpose of researching or validating claims, disputes or grievances of any of the aboriginal peoples of Canada. The Court concluded that this constitutes "statutory or other law" within the meaning of paragraph 17(2)(d) of the Statistics Act.

5. What is "information available to the public" within the meaning of paragraph 17(2)(d) of the Statistics Act?

When interpreting the words "available to the public" in paragraph 17(2)(d) of the Statistics Act, the Court rejected the Crown’s argument that this required that the information be "accessible as a matter of right or legal certainty" to "the public at large". Instead, the Court held that the meaning of the term "available to the public" ought to be liberally construed.

The Court recognized that the information in the census records was precisely the type of information that, under the Privacy Act, Parliament intended could be disclosed. Meanwhile, as a result of the Constitution Act, the Crown is obligated to provide this type of information to Aboriginal peoples. In this context, the Court held that the term "available to the public" must be taken to mean "a member of the public", and not simply the public as a whole.

The Court went on to state that, if it were wrong in this regard, the Crown would nonetheless have failed to discharge its burden under section 48 of the Act of establishing that the access refusal was authorized, because the Court was not convinced that the Crown was correct in its interpretation of the words "available to the public".

6. In the alternative that the respondent was prohibited from disclosing census records pursuant to section 17 of the Statistics Act, what would be the effect of section 52 of the Constitution Act, 1982?

Section 52 of the Constitution Act, 1982 states that any law that is inconsistent with the Constitution of Canada is, to the extent of the inconsistency, of no force or effect. Therefore, if section 17 of the Statistics Act were interpreted as prohibiting the disclosure of the census records under the Act, section 17 would be inconsistent with section 35 of the Constitution Act which imposes a constitutional obligation on the Crown to provide the Algonquin Bands with those parts of the census records required to prove their land title claim. Because of section 52, section 17 would be of no force or effect to the extent that it conflicts with section 35 of the Constitution, unless section 17 could be justified. The Court went on to reject the argument that section 17 could meet the test for justifying an interference with Aboriginal rights set out in section 35 of the Constitution Act.

Judicial Outcome

The application for review was allowed. The Court set aside the decision to refuse disclosure and referred the decision back to the Chief Statistician with a direction that he consider paragraph 17(2)(d) of the Statistics Act and that the census records for 1921, 1931, and 1941 could be disclosed to the ethnohistorian on behalf of the Algonquin Bands, upon his undertaking that he will keep confidential the personal information in the census records with respect to non-Aboriginal persons.

Future Steps in the Proceeding

This decision has been appealed (Court file A-107-06). The outcome of the appeal will be reported in next year’s annual report.