T-582-01
2002 FCT 129
The Attorney General of Canada and Bruce Hartley (Applicants)
v.
The Information Commissioner of Canada (Respondent)
Indexed as : Canada (Attorney General) v. Canada (Information Commissioner) (T.D.)
Trial Division, McKeown J.--Toronto, November 19, 20, 2001; Ottawa, February 1, 2002.
Access to Information -- Applications for judicial review arising from access requests for records resulting in complaints to Information Commissioner -- Access requester denied access to records, made complaint to Commissioner under Access to Information Act, s. 30 -- Whether transcript of in camera proceedings before Information Commissioner should be filed at Court on confidential basis -- Information Commissioner neutral ombudsman acting as mediator, not adjudicator -- Courts reluctant to interfere with duly authorized investigations -- Act not precluding Court from obtaining confidential transcript.
Federal Court Jurisdiction -- Trial Division -- Denial of access requests for records resulting in complaints to Information Commissioner under Access to Information Act -- Whether Court has jurisdiction to order Information Commissioner to file confidential transcript of in camera proceedings under r. 318 -- Parliament not granting Information Commissioner immunity from judicial review of investigatory powers -- Unusual for courts to interfere with duly authorized investigations but must have right to exercise inherent jurisdiction to supervise tribunals -- Court having jurisdiction to order production of transcripts.
Among the 29 applications for judicial review brought herein, 26 were filed by the Attorney General of Canada and three by the Information Commissioner under sections 37 and 38 of the Canada Evidence Act. They all arose from four access requests for records made to the Privy Council Office, the Department of National Defence and the Department of Transport, which have resulted in complaints to the Information Commissioner who has commenced investigations. In all four cases, the access requester was denied access to records and made a complaint to the Commissioner under section 30 of the Access to Information Act. These 29 applications for judicial review fell into seven groups. They all contained a request pursuant to rule 317 of the Federal Court Rules, 1998 that the Information Commissioner file and serve certain materials in his possession and not in the possession of the applicants, that is the transcripts of the hearings before the Information Commissioner's delegate. The Information Commissioner submitted that he was prohibited by the Access to Information Act from providing confidential information to the Court in the context of a judicial review proceeding under section 18 of the Federal Court Act, and that the Court could not compel compliance with rules 317 and 318 since they are in direct conflict with the Access to Information Act which must prevail over the Rules. The issues were whether the Court had jurisdiction to order the Information Commissioner to file a confidential transcript of his in camera proceedings under rule 318 and if so, how should the Court's discretion to order production of such transcripts be exercised.
Held, release of the transcripts, on a confidential basis, to the Court would not be ordered with respect to three groups of applications for judicial review but was ordered with respect to the other four groups.
The Information Commissioner is a neutral ombudsman charged with the conduct of investigations into complaints in relation to the refusal by a head of a government institution to disclose records requested under the Access to Information Act. His role is one of mediator and not adjudicator. He cannot order the disclosure of any information and he makes no determination of civil or criminal liability. There is no authorization of disclosure of information in the course of a review under section 18.1 of the Federal Court Act unless the disclosure is necessary to carry out an investigation under the Act. There was no evidence before the Court that the disclosure was necessary to carry out an investigation under the Act, except in the confidentiality order application brought by Bruce Hartley in file T-582-01. Parliament has not passed legislation which would restrict a court from reviewing transcripts in order to determine if the Information Commissioner has exceeded his jurisdiction in conducting an investigation. Although courts are always reluctant to interfere with duly authorized investigations, it is difficult to see how the Court could determine whether the allegations by the applicants herein had any merit without a judge having access to the transcripts. Parliament would not have intended to grant the Information Commissioner immunity from judicial review of his investigatory powers. A court will not usually interfere with such powers but it must always have the right to exercise its inherent jurisdiction to supervise any tribunal. In Rubin v. Canada (Clerk of the Privy Council), the Federal Court of Appeal held that the confidentiality of representations made in the course of an investigation must be preserved both during and after the investigation is completed unless "the statute requires or permits disclosure". However, the Rubin case does not deal with the situation where the transcript would only be available to the Court. The Court, on judicial review, could not compel compliance with rules 317 and 318 if they were in direct conflict with a statute. However, the Act does not preclude a court from obtaining a confidential transcript. There is no conflict between rules 317 and 318 and the provisions of the Access to Information Act. The requirements of sections 35, 62, 63 and 65 of the Act are clear with respect to the issues before the Court. The latter had jurisdiction to order production of the confidential transcripts of the Information Commissioner's in camera proceedings. Since the applicants have not sought a determination of the objections made in the copying of records applications, the application to quash subpoenas or the solicitor-client application, and have not adduced evidence with respect to the relevance and necessity of the transcripts to the determination of these applications, the Court did not order the release of these transcripts in each of these three groups of applications. However, it did order their release in the four other groups: the confidentiality order applications, the propriety of questions applications, the compliance with subpoena application and the sections 37/38 applications.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 30 (as am. by S.C. 1992, c. 21, s. 4), 35, 41, 42, 44 (as am. by R.S.C., 1985 (4th Supp.), c. 1, s. 45), 62, 63 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187), 64, 65 (as am. idem).Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38.
| 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). |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5). |
| Federal Court Rules, C.R.C., c. 663, R. 1612 (as enacted by SOR/92-43, s. 19). |
| Federal Court Rules, 1998, SOR/98-106, rr. 317, 318. |
cases judicially considered
considered:
Rowat v. Canada (Information Commissoner) (2000), 193 F.T.R. 1 (F.C.T.D.); Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337; (1997), 5 Admin. L.R. (3d) 237; 135 F.T.R. 254 (T.D.); 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), 131 D.L.R. (4th) 608; 36 Admin. L.R. (2d) 131; 66 C.P.R. (3d) 32; 191 N.R. 394.
APPLICATIONS FOR JUDICIAL REVIEW requesting under rule 317 that the Information Commissioner file and serve confidential transcripts of in camera proceedings held before the Information Commissioner's delegate. Release of transcripts denied in three groups of applications, allowed in four other groups.
appearances:
Peter K. Doody for applicants.
Daniel Brunet, Emily McCarthy and Marlys A. Edwardh for respondent.
solicitors of record:
Borden Ladner Gervais LLP, Ottawa, for applicants.
Office of the Information Commissioner, Ottawa, for respondent.
The following are the reasons for order rendered in English by
[1]McKeown J.: There are 29 applications for judicial review brought by the Attorney General of Canada and named individuals. In 26 of the applications the Attorney General of Canada is the applicant. In the three sections 37/38 [of the Canada Evidence Act, R.S.C., 1985, c. C-5] applications the Information Commissioner is the applicant and the Attorney General of Canada is named as a respondent. They all arise out of four access requests for records made to the Privy Council Office, the Department of National Defence and the Department of Transport, which have resulted in complaints to the Information Commissioner who has commenced investigations. A summary of the four access requests is as follows:
(a) Six requests made to the Privy Council office for access to the daily agendas of the Prime Minister of Canada for fiscal or calendar years 1994 to June 25, 1999 (the "agenda request").
(b) A request made to the Privy Council Office for access to records relating to the proposed appointment of Conrad Black to the British House of Lords (the "Black request")
(c) A request made to the Department of National Defence for access to minutes or documents produced from the M5 management meeting for 1999 (the "M5 request").
(d) A request made to the Department of Transport for access to a copy of the Minister of Transport's itinerary and/or meeting schedule for the period June 1, 1999 to November 5, 1999 (the "Minister of Transport agenda request").
[2]In all four cases the access requester was denied access to records and made a complaint to the Commissioner pursuant to section 30 of the Act [Access to Information Act, R.S.C., 1985, c. A-1 (as am. by S.C. 1992, c. 21, s. 4)]. The applicants submit that the access requesters are seeking access to documents located in the Prime Minister's Office or the office of a minister of the Crown. The applicants seek an order consolidating all of the applications and orders to require the transcripts of proceedings before the Information Commissioner's delegate to be filed on a confidential basis on the judicial review applications. Counsel for the applicants is not seeking leave to discuss the transcripts with the Attorney General of Canada. Only the lawyers will see the transcripts and the witnesses who have signed the confidentiality orders in respect of their own transcripts. Out of 29 applications for judicial review, six originate out of the agenda request, 17 out of the M5 request, four out of the Black request and two out of the Minister of Transport agenda request.
[3]Both parties agree that these 29 applications for judicial review fall into seven groups.
[4]Three applications seek declaratory relief that certain records are under the control of the Prime Minister's office or the office of the Minister of National Defence and not under the control of the Privy Council Office or the Department of National Defence respectively. They also seek certiorari to quash subpoenas issued to persons who are employed by either the Prime Minister or the Minister of National Defence as "exempt staff". These three applications are T-1640-00, T-1641-00 and T-606-01 (hereinafter collectively called the "applications to quash sub-poenas").
[5]There are nine applications seeking declaratory relief and orders quashing confidentiality orders issued by the Information Commissioner's delegate, many in identical terms, which prohibit the individual applicants from disclosing to anyone, other than their counsel (who have been ordered to execute similar undertakings), all information disclosed during their testimony before the Information Commissioner's delegate pursuant to subpoenas issued by him. Six of those witnesses were testifying pursuant to subpoenas which are at issue in the applications to quash subpoenas. Those nine applications are T-582-01, T-792-01, T-877-01, T-878-01, T-883-01, T-892-01, T-1047-01, T-1254-01, T-1909-01 (hereinafter collectively called the "confidentiality order applications").
[6]Nine of the applications seek orders quashing decisions by the Information Commissioner's delegate to photocopy materials delivered to him pursuant to subpoenas duces tecum (five of which are at issue in the applications to quash subpoenas), mandamus compelling him to return the copies made, and declarations that he had no jurisdiction to make the orders to copy the materials. These applications are T-684-01, T-763-01, T-880-01, T-895-01, T-896-01, T-1049-01, T-1255-01, T-1448-01 and T-1910-01 (hereinafter collectively called the "copying of records applications").
[7]Three applications seek declarations that the Information Commissioner's delegate lacks jurisdiction to order that certain questions be answered by witnesses and that, by asking the questions during the examination under oath, the Information Commissioner's delegate exceeded his jurisdiction. Those are applications T-801-01, T-887-01 and T-891-01 (hereinafter collectively called the "propriety of questions applications").
[8]One application is for a declaration that a subpoena duces tecum issued to the Honourable Art C. Eggleton, the Minister of National Defence, in the M5 request, has been complied with. That application is T-924-01 (hereinafter called the "compliance with subpoena application").
[9]Three of the applications were brought by the Information Commissioner for orders in the nature of certiorari quashing certificates issued pursuant to sections 37 and 38 of the Canada Evidence Act, pursuant to which certain information and documents described in subpoenas issued to Meribeth Morris, Randy Mylyk, and Emechete Onuoha, were not provided to the Information Commissioner. Those are applications T-656-01, T-814-01 and T-1714-01 (hereinafter collectively called the "sections 37/38 applications").
[10]One application is for a declaration that 11 documents or groups of documents are subject to solicitor-client privilege and that the Information Commissioner lacks jurisdiction to require their production to him. That is application T-1083-01 (hereinafter called the "solicitor-client application").
[11]Although both parties agree there are seven groups, the applicants submit that there are common issues of fact and law to the seven groups and that, therefore, the 29 applications should be consolidated. The respondent does not agree that there are common issues of fact and law.
[12]The applicants submit that the question of control as between the Prime Minister's Office and Privy Council Office or between the Minister of National Defence Office and the Department of National Defence, is an overriding question with respect to the seven groups. There is no doubt that this is true with respect to the first group, the application to quash subpoenas. However, the Information Commissioner takes the position that it does not apply to the other six groups. The applicants submit that it is an issue in the copying of records applications, the compliance with subpoena application and the sections 37/38 applications. It would be inappropriate for me at this time to decide whether there is a control issue in these other three groups. However, even the applicant takes the position that in three groups it is not an issue. I also should not be taken as deciding that the control issue is the same with respect to the Prime Minister's Office and the Privy Council Office as it is with respect to the Minister of National Defence and the Department of National Defence. I am making no finding as to whether the documents are under the control of a government institution.
[13]The applicants also submit that there is a common question of fact in respect of the Information Commissioner's practice of telling a witness in the hearings before him what another witness had said. In some of the applications there is no request for a transcript of evidence in the hearings before the Commissioner because the applications were filed prior to the commencement of the hearings. If all the applications were consolidated, the applicants might be entitled to rely on all the transcript evidence to argue the merits of the applications where the transcripts were not relevant. Again, the applicants say that this practice is only relevant to three groups, the confidentiality order applications, the propriety of questions applications and the sections 37/38 applications.
[14]The applicants submit that there is much common evidence to these applications. For example, they suggest that the evidence of the expert witness in respect of the separation between the Prime Minister's Office and the office of a minister of the Crown and the Privy Council Office or the Minister's Department has already been filed in three applications, and that evidence will be relevant to all three applications to quash subpoenas, all nine copying of records applications, the compliance with subpoena application and the sections 37/38 applications.
[15]In my view there is insufficient common evidence to justify consolidation of the applications. The Information Commissioner would be substantially prejudiced if the applications were consolidated. For example, the applicants have not sought the introduction of the transcripts of the in camera proceedings before the Commissioner in all of the applications which they seek to consolidate. More specifically, the applicants have not sought the determination of the Commissioner's objections in the copying of records applications, the solicitor-client application and the applications to quash the subpoenas. The applicants could improve their position by indirectly obtaining disclosure of the evidence which they have not shown to be necessary in those applications. This would be contrary to the spirit and the letter of the confidentiality provisions set out by Parliament in the Access to Information Act.
[16]The respondent, the Information Commissioner, also submits that the sections 37/38 applications should be heard in an expedited manner. Two of the applications have already been consolidated and the Commissioner has filed all his affidavit evidence in support of his application. It is not my intention to determine if these three applications should be heard in an expedited manner. This determination should be left to the judge or judges hearing these applications.
[17]I am ordering that the seven groups be heard serially. The order of such groups shall be determined by the judge or judges hearing the applications. Further, I order that the applications in each group be consolidated within that group. I also note that notwithstanding the fact that there is an access requester in T-1641-00, that T-1640-00 and T-606-01 should be consolidated with T-1641-00.
[18]I now propose to review the facts and analysis with respect to whether the transcripts of the proceedings before the Information Commissioner should be filed on a confidential basis. The issues are whether this Court has jurisdiction to order the Information Commissioner to file a confidential transcript of his in camera proceedings pursuant to rule 318 of the Federal Court Rules, 1998 [SOR/98-106] and if so, how should the Court's discretion to order production of the confidential transcripts of the Information Commissioner's in camera proceedings be exercised.
[19]The applicants' notices of application for judicial review all contain a request pursuant to rule 317 of the Federal Court Rules, 1998 that the Information Commissioner file and serve certain materials in the possession of the Information Commissioner and not in the possession of the applicant, i.e. the transcripts of the hearings before the Information Commissioner's delegate. The Information Commissioner objected to producing any material in any application, except in the confidentiality order application brought by Bruce Hartley in file T-582-01. In that application, the applicants had requested that the Information Commissioner file:
. . . the transcript of the proceedings before Mr. Alan Leadbeater, the Information Commissioner's delegate, on March 30, 2001.
[20]The Information Commissioner authorized the disclosure of a portion of the transcript and stated that that portion:
. . .in his opinion, is necessary to carry out his investigations under the Act of six complaints in files 3100-13128/001 to 3100-13133/001. This information relates to jurisdictional facts with respect to the Information Commissioner's orders of confidentiality issued on March 30, 2001 pursuant to ss. 34, 35, 36, and 64 of the Access to Information Act and to the Information Commissioner's power of a superior court of record referred to at s. 36(1)(a) of the Act.
[21]The portions of the transcript referred to in that objection consist of exchanges between the Information Commissioner's delegate and Mr. Hartley's counsel, Mr. Doody, and Mr. Doody's submissions.
[22]The applicants submit that the transcript of the proceedings before the Information Commissioner's delegate is relevant to a number of these applications.
[23]The evidence is relevant to the nine confidentiality order applications for the following reasons:
(a) The applicants have asserted, in the notices of application and the confidentiality order applications, that there was no evidence to support the confidentiality order. In order for this claim to be assessed, it will be necessary for the judge hearing this group of applications to examine the evidence which was before the Information Commissioner's delegate.
(b) The applicants have taken the position that the confidentiality orders are in breach of the right of the individual applicants to freedom of expression as guaranteed by paragraph 2(b) of the 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]] and that the provisions of the confidentiality order cannot be justified in a free and democratic society pursuant to section 1 of the Charter. In order for the judge to assess that claim, it will be necessary for the judge to review the precise information at issue--that is, the information disclosed during the course of proceedings, which the confidentiality orders prohibit the applicants from disclosing.
(c) The practice followed by the Information Commissioner's delegate of putting evidence from one witness to another witness, which is relevant to the confidentiality order applications, is best understood by reading the transcripts.
(d) It will also be relevant for the Court to see the discussions and submissions on the scope of the confidentiality orders, other than those made at the time the order governing Mr. Hartley's evidence was considered.
[24]The applicants submit that the transcripts of the evidence given by the Minister of Defence are relevant to the compliance with subpoena application because, in correspondence between counsel and the Information Commissioner's delegate, Mr. Leadbeater stated that the order as to what the Minister of National Defence was required to do was clear if certain pages of the transcript were read. I agree that the transcripts are relevant to this application.
[25]The propriety of questions applications do not identify the questions at issue, because of the confidentiality orders. They are, however, identified in the affidavit of Lawrence A. Elliot. The transcripts of the evidence of Jean Pelletier, the Honourable Mr. Eggleton and Meribeth Morris are relevant to the propriety of questions applications because, in order to determine the propriety of the questions put by the Information Commissioner's delegate, it will be necessary for the Court to read the question, the nature of the objections made, the submissions by counsel, and the reasons, if any, given by Mr. Leadbeater before making the order.
[26]The transcripts of evidence, particularly where they show the Information Commissioner's delegate putting evidence of one witness to another witness, are also relevant to the sections 37/38 applications for the following reasons: The Information Commissioner has listed as the grounds for his application in those cases that production of the information to the Information Commissioner "in the course of his private investigations" does not "constitute disclosure of the said information" and that:
. . . in light of the mandatory provisions against disclosure contained in the Access to Information Act, the clear public interest in the Information Commissioner's conduct of a private investigation into a complaint . . . outweighs the specific public interest referred to in the certificate.
This practice is relevant to a determination as to how "private" the Information Commissioner's investigations are, and how certain are the provisions against disclosure contained in the Access to Information Act.
[27]The applicants also changed their submissions to make it clear that they wished to have copies of the transcript provided to the Court and to counsel only. The individual witnesses would be permitted to go to their counsel's office and review their own transcript but not any other witness and the Attorney General of Canada would not receive any of the transcripts. The Court would also receive copies of the transcripts.
[28]The Information Commissioner submitted that they were prohibited by the Access to Information Act from providing confidential information to the Court in the context of a judicial review proceeding under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)]. They also submitted that the Court cannot compel compliance with rules 317 and 318 because the Rules are in direct conflict with the Access to Information Act and the Act must prevail over the Rules. Thirdly, they argued that the Charter does not enhance the applicants' position with respect to production of the transcripts.
[29]The Information Commissioner reviewed the relevant provisions of the Access to Information Act and the general position of the Information Commissioner thereunder to show that he does not have authority to voluntarily provide the Court with copies of the transcripts of the in camera proceedings before him. The Information Commissioner is a neutral ombudsman charged with the conduct of investigations into complaints in relation to the refusal by a head of a government institution to disclose records requested under the Act. His role is one of mediator and not adjudicator. The Commissioner is limited to making recommendations to the head of a government institution reporting to the complainant. He cannot order the disclosure of any information. He makes no determination of civil or criminal liability. He is like a commissioner conducting an inquiry.
[30]The Information Commissioner submits that sections 35, 62 and 63 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187] of the Act preclude the provision of the transcripts of the in camera proceedings. Subsection 35(1) of the Act requires the Commissioner to conduct his investigations in private. Section 62 of the Act precludes the Commissioner and every person acting on his behalf from disclosing information that comes to their knowledge in the performance of their duties and functions under the Act. Section 63 of the Act creates specific exceptions to section 62 and, subject to section 64 of the Act, allows the Commissioner to disclose information that:
(a) in the opinion of the Commissioner is necessary to carry out an investigation under the Act;
(b) in the opinion of the Commissioner is necessary to establish the grounds for findings and recommendations contained in any report under the Act.
Section 63 also authorizes the Commissioner to disclose information in the course of a prosecution for an offence under the Act, for perjury or in the course of a review under the Act and an appeal therefrom. Subsection 63(2) gives the Commissioner discretion to disclose information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of the government to the Attorney General of Canada. There is no authorization of disclosure of information in the course of a review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act unless the disclosure is necessary to carry out an investigation under the Act. There is no evidence before me that the disclosure is necessary to carry out an investigation under the Act except in file T-582-01 reviewed at paragraphs 19 to 21 above.
[31]In my view Parliament has not passed legislation which would restrict a court from reviewing transcripts in order to determine if the Information Commissioner has exceeded his jurisdiction in conducting his investigation. This would be the most effective privative clause that Parliament could design. Parliament certainly intended to avoid making the transcripts public but never intended to give the Information Commissioner the right to conduct investigations without any review. Courts are historically always reluctant to interfere with duly authorized investigations and it may very well be that in these applications the Court will take the position that there is nothing untoward which requires the intervention of the Court. However, it is difficult to see how the Court can determine if the allegations by the applicants in this case have any merit without a judge having access to the transcripts.
[32]The case law with respect to whether the Information Commissioner's transcripts should be made available to the Court and the opposing counsel is not of much assistance. The applicants rely on Rowat v. Canada (Information Commissioner) (2000), 193 F.T.R. 1 (F.C.T.D.), where the applicant brought a judicial review application in which the Deputy Information Commissioner was one of the respondent parties and which was not a review pursuant to sections 41, 42 or 44 [as am. by R.S.C., 1985 (4th Supp.), c. 1, s. 45] of the Access to Information Act. The Rowat case raised the question as to whether there was any jurisdiction for the Information Commissioner to undertake an investigation. It appears that in the Rowat case the Information Commissioner made a decision that the disclosure of information was necessary to carry out his investigation into the complaint underlying the litigation. Accordingly, he appears to have exercised his discretion under paragraph 63(1)(a) to disclose information to the Court. The applicants submit that the effect of the Information Commissioner's submission is that they can pick and choose which transcripts will be put before a court. In my view Parliament could not have been granting the Information Commissioner immunity from a review by a court of his investigatory powers. As stated earlier, it is unusual for a court to interfere with investigation powers but the court always must have the right to exercise its inherent jurisdiction to supervise any tribunal.
[33]The Information Commissioner takes the view that the cases of Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337 (T.D.) (hereinafter Petzinger) and Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.) affd [1996] 1 S.C.R. 6 are determinative on the issue of the rule 318 objections.
[34]In Rubin, Stone J.A. states at pages 713-718:
While the primary task facing the Court with respect to section 35 is the construction of the language in which it is cast, the Act does contain provisions which appear to be of assistance in performing this task. The appellant directs the Court's attention to sections 61-65 as evincing an underlying policy that, subject to some exceptions, information received by or on behalf of the Information Commissioner must not be disclosed at any time, either while an investigation is underway or after it has been completed. Thus by section 61, Parliament was at pains to ensure that the Commissioner and persons acting on behalf or under his direction maintain the secrecy of information relating to any investigation under the Act. That section reads:
| 61. The Information Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any investigation under this or any other Act of Parliament shall, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information. |
Section 62 appears even more explicit in proscribing the disclosure of information that is received by the Information Commissioner or by others acting on his behalf or under his direction in the performance of their duties and functions. It reads:
| 62. Subject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commission shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act. |
A limited discretion is allowed to the Information Commissioner of disclosing information with respect to matters of administration, offences related to the enforcement of the Act, certain kinds of criminal prosecutions and review proceedings under the Act. This is provided for in section 63 [as am. idem] which reads:
| 63. (1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information: |
| (a) that, in the opinion of the Commissioner, is necessary to |
| (i) carry out an investigation under this Act, |
| (ii) establish the grounds for findings and recommendations contained in any report under this Act; or |
| (b) in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom. |
| (2) The Information Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution if in the opinion of the Commissioner there is evidence thereof. |
The care with which the Information Commissioner and others are required to deal with information in carrying out an investigation under the Act is again highlighted in section 64. That section instructs the Information Commissioner to take reasonable precautions not to disclose information in the following circumstances:
| 64. In carrying out an investigation under this Act and in any report made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose, |
| (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or |
| (b) any information as to whether a record exists where the head of a government institution, in refusing to give access to the record under this Act, does not indicate whether it exists. |
Finally, but significantly, the competency or compellability of the Information Commissioner or any person acting on his behalf or under his direction as witnesses is severely qualified by the provisions of section 65 [as am. idem] of the Act, which read:
| 65. The Information Commissioner or any person acting on behalf or under the direction of the Commissioner is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom. |
The Motions Judge was able to conclude that paragraph 16(1)(c) and section 35 were inapplicable by examining the language in which they were cast. I agree that it is this language which requires interpretation and that it is the interpretation of this language which must remain the primary focus of inquiry. Subsection 35(1) could not be plainer in setting forth Parliament's intention: the investigation of the complaint "shall be conducted in private". On the other hand, the Motions Judge thought that the purpose of the concluding words of subsection 35(2) was to protect from disclosure any "representations" made to the Information Commissioner only if they were so made, as the opening words state, "[i]n the course of an investigation" itself. This allowed him to conclude that such "representations" were not by the subsection shielded from disclosure once the Information Commissioner's investigation of a complaint had been completed.
. . .
The soundness of the argument may be tested in two ways. The first is by considering the peculiar role of the Information Commissioner, standing as he does on neutral ground between disputing parties--the one who asserts a right of disclosure and the other who denies it. The uniqueness of his role was alluded to by the Motions Judge at pages 403-404 of his reasons, where he stated:
A second reason for section 35 would appear to relate to the role of the Information Commissioner. While he has no power to order disclosure, a credible and effective Commissioner should have significant persuasive power to encourage voluntary resolution of requests for information under government control. In this context, it should be remembered that such information may be either government information, or information of private individuals or others that is under government control.
An important aspect of the development of that credibility and effectiveness is, in my view, the maintenance of strict confidentiality of information that is given to the Commissioner. Indeed, the provisions of the Act that require that the Information Commissioner maintain strict confidentiality on a continuing basis over information given to him, support this conclusion. Parties must have confidence that the Information Commissioner will not divulge the information given to him.
Enhancing the persuasive influence of the Information Commissioner is consistent with the objective that access requests should be resolved quickly and at minimal costs. Of course, in the event a dispute cannot be resolved at the Information Commissioner stage, a complainant can always have recourse to this Court. However, that is his last resort and would not likely be as satisfactory as a resolution at the Information Commissioner stage, because of the additional time and expense involved.
Forced disclosure of representations, it seems to me, may well result in the role of the Information Commissioner becoming more formal and the process thereby becoming less effective. This is not in the interest of the promotion of timely access to information under government control which is the rationale for the legislation.
I respectfully agree with these views. In my view, this reasoning also argues for preserving the confidentiality of representations made in the course of an investigation during as well as subsequent to the investigation unless, of course, the statute requires or permits disclosure.
. . .
I find merit in the appellant's argument. Subsection 35(2) appears to have two distinct purposes. It ensures in its opening portion that the persons referred to in paragraphs (a) to (c) must have a reasonable opportunity to make representations "[i]n the course of an investigation of a complaint". The words which follow the paragraphs expressly deny the right of "access to . . . representations made to the Commissioner". I am unable to see that the opening words qualify this denial of access. In my view, sections 61, 62 and 65 reinforce this construction. On their face, sections 61 and 62 create on-going obligations which bind those to whom they are directed at all times. Similarly, section 65 shields information acquired during an investigation from disclosure in legal proceedings except in the types of proceedings which are specifically mentioned. Section 63, on the other hand, enables the Commissioner and the others to whom section 65 is addressed, to disclose information in very limited circumstances. To construe subsection 35(2) as protecting against the disclosure of information to the respondent during the course of an investigation but not afterwards would produce inconsistency and disharmony between that subsection and other sections of the Act to which I have just referred. I do not think Parliament should be taken as having intended this to be so. (See e.g., R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865, at page 872; E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto, 1983), at pages 34-35.) In my view, the fact that the confidentiality of representations made to the Information Commissioner during an investigation of a complaint must be preserved, save in limited circumstances, indicates that the complainant was given no right of access to any such representations under the appellant's control in the circumstances of this case. I so construe the provisions of subsection 35(2) of the Act.
[35]In Rubin, the Federal Court of Appeal held that the confidentiality of representations made in the course of an investigation must be preserved both during and after the investigation is completed unless "the statute requires or permits disclosure." Stone J.A. recognizes at page 716 above that there is an underlying policy at all times preserving the confidentiality of information received from a disputing party during an investigation. The Court further concluded at page 718 that sections 61 and 62 "create on-going obligations which bind those to whom they are directed at all times."
[36]MacKay J. in the Petzinger, supra, case found that the reasoning of the Federal Court of Appeal in Rubin, supra, was determinative of a Rule 1612 [of the Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] (now rule 317) request for disclosure of, inter alia, the transcript of the evidence received by a Commissioner during his in camera proceedings. However, I agree with the applicants that the Rubin case does not deal with the situation where the transcript would be only available to the Court. In the case before me it is also proposed to supply it to the counsel for the witness before the transcript was prepared but the solicitors would be unable to discuss it with their client, the Attorney General of Canada or any of the other witnesses whose transcript was not before the Court.
[37]It is also important to note that if the Information Commissioner prevails in this submission, the applicants are not going to be able to put their case before the Court. There are confidentiality orders that were signed by the counsel and witnesses with respect to these four investigations being conducted by the Information Commissioner. Accordingly, it would be contrary to the confidentiality order to have a client or solicitor file an affidavit with respect to what went on before the Deputy Information Commissioner.
[38]I agree with the Information Commissioner that the Court, on judicial review, could not compel compliance with rules 317 and 318 if they were in direct conflict with a parliamentary statute. However, as stated above, in my view the statute does not preclude a court from obtaining a confidential transcript. In my view there is no conflict between rules 317 and 318 and the provisions of the Access to Information Act.
[39]The applicants have also raised the Charter issues with respect to the confidentiality order applications. The applicants submit that these transcripts have to be relevant to the confidentiality order because there was no evidence to support the confidentiality orders made by the Information Commissioner's delegate. The applicants submit that in order for the Court to determine whether there was no such evidence, the Court will have to examine the evidentiary material which is the transcript. However, as submitted by the Information Commissioner, the context of the orders for confidentiality is well known. The respondent further submits that it is apparent that the witnesses were subjected to the confidentiality orders, and gave evidence under oath pursuant to subpoena issued in the course of a lawful investigation being conducted in camera by the Information Commissioner. I agree with the Information Commissioner that the Court will not require access to the specific content of the speech proscribed by the Confidentiality Order in order to determine whether the requirement that a witness not discuss his or her in camera testimony constitutes a Charter infringement that is demonstrably justifiable. In my view, the requirements of sections 35, 62, 63 and 65 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187] of the Access to Information Act are clear with respect to the issues in the case before me.
[40]The Information Commissioner submits that if they are wrong and the Court has jurisdiction to order production, as in my view it does, then the Court should require production of the material that is necessary to the just determination of the relief sought in the notice of application. The Information Commissioner said it would be appropriate for the Court to review the portions of the transcripts identified by the applicants as relevant and then for the Court to hear from the Commissioner as to whether any deletions or additions should be made to the portions of the transcript identified as relevant by the applicants. To assist in this examination, if such an examination is necessary, it would be possible to provide a copy of the transcripts to the Court on the basis that they would be received and not filed. Since I am of the view that the transcripts must be filed on a confidential basis, it is not necessary to deal with the issue of receiving the transcript and not filing them. Although the applicants, in the written representations, identified only certain portions of the transcripts as relevant to the determination of propriety of questions applications, the confidentiality order applications and the compliance with subpoena applications, I am reluctant to limit the filings to those matters.
[41]However, the applicants have not sought a determination of the objections made in the copying of records applications, the application to quash subpoenas or the solicitor-client application. Nor have they adduced any evidence with respect to the relevance and necessity of the transcripts to the determination of these applications. I am therefore not ordering the release of transcripts on a confidential basis to the Court or to the party in question in each application in the three groups: the notices of application and the copying of records applications, the application to quash subpoenas or the solicitor-client application. I order the transcripts in the following four groups be filed on a confidential basis: the confidentiality order applications, the propriety of questions applications, the compliance with subpoena application, and the sections 37/38 applications.
[42]As agreed by counsel, I direct that the parties submit in writing a proposed timetable for subsequent steps in these proceedings by February 11, 2002.