Date: 20111123
Docket: A-391-10
Citation:
2011 FCA 326
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Appellant
and
INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal by
the Canadian Broadcasting Corporation (the appellant or the CBC) from a
decision of the Federal Court in which Justice Boivin (the Federal Court
judge) dismissed the CBC’s application for judicial review. More specifically,
the Federal Court judge refused to declare that the Information Commissioner of
Canada (the respondent or the Commissioner) does not have the power to order
the CBC to produce for examination records excluded under section 68.1 of
the Access to Information Act, R.S.C. 1985, c. A-1 (the Act), specifically
those relating to its journalistic, creative or programming activities.
[2]
The appellant submits
that the Federal Court judge’s decision is based on a misinterpretation of
section 68.1. It is asking this Court to issue the declaration it was
denied.
[3]
It is my opinion that
the Federal Court judge interpreted section 68.1 correctly and that the
appeal should be dismissed, for the reasons that follow.
RELEVANT FACTS
[4]
Since becoming subject
to the Act in 2007, the CBC has received many access to information requests. According
to the affidavit of Pierre Nollet, the CBC’s former head of Legal Services, 893
requests were made between September 2007 and September 2009 (Appeal
Book, at page 69). Of these 893 requests, 834 had been processed on the
date the affidavit was filed (October 15, 2009). Of the 834 requests
processed, a total of 188 requests resulted in a refusal to disclose under
section 68.1 of the Act; of the refused requests, 94 are the subject of
complaints to the Commissioner (Appeal Book, at page 69).
[5]
Section 68.1 was
brought into force at the same time as the CBC became subject to the Act. It
creates exclusions for three types of information, which are, however, subject to
an exception:
|
Canadian Broadcasting Corporation
68.1 This
Act does not apply to any information that is under the control of the
Canadian Broadcasting Corporation that relates to its journalistic, creative
or programming activities, other than information that relates to its
general administration.
|
Société Radio-Canada
68.1 La
présente loi ne s’applique pas aux renseignements qui relèvent de la
Société Radio-Canada et qui se rapportent à ses activités de journalisme, de
création ou de programmation, à l’exception des renseignements qui ont
trait à son administration.
|
[Emphasis
added]
[6]
The debate before the
Court has arisen from 16 access requests that were refused by the CBC and that
were the subject of complaints to the Commissioner. On September 15, 2009, the
appellant filed this application. On the same day, the respondent formally
served the appellant with an order requiring it to provide the respondent with
all the records related to the 16 access requests. In doing so, the
Commissioner exercised the authority vested in her under section 36 of the
Act. It is useful here to reproduce the relevant aspects of this provision:
|
Powers of Information Commissioner in
carrying out investigations
36. (1)
The Information Commissioner has, in relation to the carrying out of the
investigation of any complaint under this Act, power
(a) to
summon and enforce the appearance of persons before the Information
Commissioner and compel them to give oral or written evidence on oath and to
produce such documents and things 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;
…
Access to records
(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.
. . .
|
Pouvoirs du Commissaire à l’information
pour la tenue des enquêtes
36. (1) Le
Commissaire à l’information a, pour l’instruction des plaintes déposées en
vertu de la présente loi, le pouvoir :
a) d’assigner et de contraindre des témoins à comparaître devant
lui, à déposer verbalement ou par écrit sous la foi du serment et à produire
les pièces qu’il juge indispensables pour instruire et examiner à fond
les plaintes dont il est saisi, de la même façon et dans la même mesure qu’une
cour supérieure d’archives;
[…]
Accès aux documents
(2)
Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit
de la preuve, le Commissaire à l’information a, pour les enquêtes qu’il mène
en vertu de la présente loi, accès à tous les documents qui relèvent d’une
institution fédérale et auxquels la présente loi s’applique; aucun de
ces documents ne peut, pour quelque motif que ce soit, lui être refusé.
[…]
|
[Emphasis
added]
[7]
The parties have
conflicting interpretations of the scope of section 68.1 of the Act. The
appellant submits that the three types of information described there are
excluded from the Act and that, consequently, records containing such
information are not “record[s] to which this Act applies” within the meaning of
subsection 36(2). The Federal Court judge, adopting the respondent’s
position, found that the Commissioner had to examine the information excluded under
section 68.1 to determine whether the exception applied.
[8]
The September 15,
2009, order describes the 16 requests. Although the requests pertain to a
variety of information, the CBC has, for the purposes of this proceeding, opted
to treat them indiscriminately. Most of the requests concern the disclosure of
information directly or indirectly related to programming or creative
activities but that also touches on financial matters, such as, for example,
the cost of producing the program Le Club des Ex or the fees paid to
people participating in current affairs shows.
[9]
For 13 of the requests,
no records were provided to the access requesters (Appeal Book, at page 68).
For the 3 remaining requests, certain records were disclosed, after the
appellant had removed information it considered to be excluded under
section 68.1 of the Act.
[10]
The evidence reveals
the procedure set up by the CBC to process access to information requests. The
CBC created an office tasked with access to information requests. According to
the testimony of Pierre Nollet, when a member of this office found that [translation] “requested information
might be covered by the section 68.1 exclusion”, the file was referred to
him (Examination of Pierre Nollet, Appeal Book, at page 1029). Mr. Nollet
then determined whether the request was subject to the exclusion. His decision
was final.
[11]
Mr. Nollet
explained that no particular criteria were used to apply the exclusions of
section 68.1. However, opinions were sometimes issued by Legal Services (Examination
of Pierre Nollet, Appeal Book, at pages 1029 to 1034). Mr. Nollet is now
retired and does not know who has succeeded him (Examination of Pierre Nollet,
Appeal Book, at pages 1025 and 1026).
[12]
Despite the distinct
and separate nature of the three exclusions, Mr. Nollet seems to have treated
them as one. The majority of access requests were refused on the ground that
the information requested was related to “journalistic, creative or programming
activities” without explanation as to the exact nature of the exclusion being
invoked (Affidavit of Pierre Nollet, Appeal Book, Volume 1, at paragraphs 38
to 40).
[13]
Lastly, for 13 of the
16 files, no records were examined to justify the refusals, the CBC having
determined that the exclusion under section 68.1 of the Act applied from a
simple reading of the access requests (Appellant’s Memorandum, at
paragraph 13; Examination of Pierre Nollet, Appeal Book, at
pages 1056 to 1058).
[14]
In the application for
judicial review filed before the Federal Court, the appellant is asking the
Court to declare, as a matter of principle, that its invocation of the
exclusions set out in section 68.1 has the effect of depriving the
Commissioner of her power to examine the documents that are the subject of the
refusal. After the appellant filed its application for judicial review, the
respondent suspended her investigation pending the Court’s final decision.
[15]
The statutory
provisions that are relevant to the analysis, including those already quoted,
are reproduced in an appendix to these reasons.
FEDERAL COURT DECISION
[16]
The Federal Court judge
first determined the applicable standard of review (Reasons, at paragraph 11).
He concluded that the issue of whether the Commissioner could compel the CBC to
provide her with the records so that she could determine whether the information
they revealed was excluded under section 68.1 of the Act raised a “true”
jurisdiction question and that the appropriate standard of review was therefore
correctness (Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[17]
The Federal Court judge
then engaged in an exercise of statutory interpretation to determine the
meaning of section 68.1. Drawing attention to sections 2 and 4, the
Federal Court judge found that “(t)he spirit of the Act is based on the
principle of disclosure. Under the Act, non-disclosure
of information under the control of government institutions is the exception”
(Reasons, at paragraph 14).
[18]
With respect to the
Commissioner’s role, the Federal Court judge rejected the argument that she
lacked objectivity to determine the scope of the exclusions established under
section 68.1. Citing the Federal Court in Rowat v. Canada (Information Commissioner), [2000] F.C.J. No. 832, he noted that
the Commissioner was neutral and independent. She has no decision-making or
coercive power and can only make recommendations to government institutions
(Reasons, at paragraph 35). The Commissioner’s investigations are private
and confidential. If there is a disagreement between the parties, the appellant
can turn to the Federal Court. In short, “(d)isclosing records to the
Commissioner does not amount to revealing them” (Reasons, at paragraph 36).
[19]
The Federal Court judge
rejected the CBC’s submission that the parliamentary debates demonstrated that
Parliament had not wanted to grant the Commissioner the power to examine
requested records. In his opinion, the weight of these debates is limited and
not conclusive. In the case at bar, he determined that they were not conclusive
(Reasons, at paragraph 25).
[20]
The Federal Court judge
then addressed the argument regarding the expression “[t]his Act does not apply
. . .” at the beginning of section 68.1. Contrary to the
appellant’s submissions, the Federal Court judge found that section 68.1
contained “a double negative, that is, an exception to the exclusion” (Reasons,
at paragraph 27). Even though he recognized the distinction between the
schemes for exemptions and exclusions in the Act (Reasons, at
paragraph 28), he concluded that the Commissioner’s power can be inferred
from the fact that she has to examine the records in question in order to
determine whether or not the information falls under the exception (Reasons, at
paragraph 29).
[21]
According to the
Federal Court judge, a different interpretation would exempt the CBC from the
Act, even though it is expressly subject to it (idem). Lastly, he was of
the opinion that the appellant’s argument had the effect of making the CBC
judge and party in access to information requests, thus denying the person who
has requested information one level of review in respect of a complaint and
leaving judicial review as the only option. In passing, he noted that the CBC
had not established any guidelines to govern the processing of requests.
[22]
Finally, the Federal
Court Judge rejected the analogy to Canada (Privacy Commissioner) v. Blood
Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574 [Blood
Tribe], noting that Blood Tribe did not involve an exclusion and
concerned another statute (the Personal Information Protection and
Electronic Documents Act, S.C. 2000, c. 5).
[23]
At the end of his
analysis, the Federal Court Judge dismissed the application for judicial review
in the following terms (Reasons, at paragraph 37) :
. . . the Commissioner has authority under section 68.1 to
order the CBC to disclose records, including records that, in the opinion of
the CBC, relate to its journalistic, creative or programming activities, in
order to determine whether those records fall under the exception and
consequently whether they are subject to the exclusion.
[Emphasis added]
APPELLANT’S POSITION
[24]
The appellant’s main
argument, on appeal and before the Federal Court, is based on how
section 68.1 and subsections 36(2) and 2(1) of the Act should be
interpreted. It argues that the Federal Court judge did not correctly apply the
relevant rules of statutory interpretation.
[25]
According to the
appellant, the application of recognized principles of interpretation to the
provisions at issue leads to the conclusion that the Commissioner’s power of examination
does not extend to the records targeted by the 16 access requests. The
appellant is relying, among other things, on the apparent conflict between the
words “. . . any record to which this Act applies . . .” at
subsection 36(2) – which
deals with the Commissioner’s investigative powers – and “This Act does not apply to . . .” at
section 68.1. In this case, since the appellant claims that the records requested
by the order relate to its journalistic, creative or programming activities,
the Act does not apply.
[26]
The appellant
emphasizes the distinction between “exclusions” and “exemptions” under the Act.
Section 68.1 appears under the heading of “exclusions”. Sections 13
to 26 sets out the mandatory and discretionary exemptions that can be invoked
by the government institution, which then has the burden of demonstrating that
the exemption invoked applies. In contrast, records which are subject to
exclusions have a special status: the Act does not apply to them.
[27]
The appellant submits
that the Commissioner cannot order the disclosure of excluded records and that
only the Federal Court has this power, through judicial review (Appellant’s
Memorandum, at paragraphs 77 to 84). In support, it refers to Gogolek
v. Canada (Attorney General), [1996] F.C.J. No. 154 [Gogolek], and Newfoundland and Labrador (Attorney General) v.
Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 19.
[28]
By comparison, the
appellant points out that the Commissioner does not have the power to order the
production of confidences of the Privy Council Office in order to determine
whether that information is excluded under section 69 of the Act. The same
applies to records excluded by a certificate issued under the Canada
Evidence Act, R.S.C. 1985, c. C-5 (Evidence Act).
[29]
In response to the
analysis by the Federal Court judge, who had described section 68.1 as “an
exception to the exclusion”, the appellant puts forward three arguments. First,
it submits that the alleged exception is actually a clarification establishing
the parameters of the exclusion; for this, it relies on the English text,
which, contrary to the French text, does not contain the word “exception” but
uses the words “other than information that relates to its general
administration”. Second, the appellant argues that all the exclusions provided
for under sections 68.1 and following are “exceptions” to the general
rule, which does not, however, reduce their scope. Last, the appellant submits
that the dispute as to the scope of the exclusion cannot result in allowing the
Commissioner to compel the disclosure of records excluded by the Act (Appellant’s
Memorandum, at paragraphs 34 to 36).
[30]
Noting that in Blood
Tribe the Supreme Court decided that the Privacy Commissioner did not have
the power to compel the production of records protected by solicitor-client
privilege, the appellant submits that, similarly, the Commissioner does not
have the power required to determine whether a record is excluded within the
meaning of the Act. Moreover, the appellant submits that like the Privacy
Commissioner, the Commissioner is not an independent tribunal (Appellant’s
Memorandum, at paragraph 87).
[31]
The appellant is also
relying on parliamentary proceedings to demonstrate Parliament’s intention. The
former Commissioner appeared before the committees of the House of Commons and
the Senate, where he commented on the wording of section 68.1 before it came
into force. He testified that section 68.1 of the Act as enacted would
prevent him from examining records for which the CBC would invoke an exclusion
(Appellant’s Memorandum, at paragraphs 89 to 104).
[32]
Finally, the appellant
points out that the courts have recognized the CBC’s journalistic independence
from any government interference in many decisions (Appellant’s Memorandum, at
paragraphs 109 to 112). The words “journalistic, creative or programming” come
from the Broadcasting Act, S.C. 1991, c. 11, which enshrines the CBC’s
independence. Counsel for the appellant stated during the proceeding that his
client was particularly concerned about revealing its journalistic sources. In
his opinion, this major concern, as he called it, explains why the issue is now
under appeal.
[33]
Having said that,
counsel is not arguing that the requests at issue in this case are aimed at the
disclosure of journalistic sources. He submits, however, that according to the
Federal Court judge’s reasoning, his client would be compelled to reveal these
sources if a request was made towards that end.
[34]
The appellant alleges
that this is likely to cause it serious harm. Even though the information
gathered by the Commissioner in the course of an investigation is private and
confidential (subsection 35(1) of the Act), this rule is not absolute. The
appellant refers to subsection 63(2), which compels the Commissioner to
disclose information brought to her attention in the course of an investigation
if that information is likely to reveal the commission of a criminal offence
involving federal public servants.
[35]
According to the
appellant, the harm caused by revealing its sources would be serious, and the
Federal Court judge did not consider this consequence when he concluded that
the disclosure of information excluded by section 68.1 to the Commissioner
was not likely to be prejudicial (Reasons, at paragraph 36).
RESPONDENT’S POSITION
[36]
The respondent submits
that the Federal Court judge interpreted section 68.1 correctly for the
reasons that he gave (Respondent’s Memorandum, at paragraphs 86 to 92). She
notes in particular that in putting forward the opposite position, the
appellant has failed to distinguish between the words “information” in
section 68.1 and “records” in section 36 (Respondent’s Memorandum, at
paragraphs 76 to 79).
[37]
In what seems to be a
form of a cross-appeal directed against the reasons, the respondent asks this
Court to conclude that, regardless of the Federal Court judge’s decision, her power
of examination is not subject to any exclusions provided under the Act, except
for certificates issued under the Evidence Act, and that, in any case, her
power of examination is not limited to records to which the Act applies.
[38]
According to the
respondent, the well-established rule that the Commissioner does not have
access to records excluded under the Act, including confidences of the Privy
Council Office, is no longer valid. In so saying, the respondent relies on the
decisions of the Federal Court in Canada (Information Commissioner) v.
Canada (Minister of the Environment), 2001 FCT 277, [2001] F.C.J. No. 454,
at paragraph 26 [Minister of the Environment], and Canada
(Information Commissioner) v. Canada (Minister of National Defence), 2008
FC 766, [2008] F.C.J. No. 938, at paragraphs 120 to 122 [Minister of
National Defence]. She submits that even with regard to documents which
reveal Privy Council confidences, only certificates issued under the Evidence
Act, as contemplated by section 69.1 of the Act can preclude the
Commissioner from compelling the production of such records (Respondent’s
Memorandum, at paragraphs 53 to 55, 57 to 59, and 72). The claim of an
exclusion under section 69 by the Clerk of the Privy Council is no longer
enough.
[39]
In any event, the
respondent submits that, contrary to what the Federal Court judge assumed in
his analysis (Reasons, at paragraph 30), her power to compel the
production of records is not limited to the records to which the Act applies. Paragraph 36(1)(a)
gives her access to all the records that she “deems requisite” (“les pièces
qu’elle juge indispensables” in the French text), whether or not they are
subject to the Act (Respondent’s Memorandum, at paragraphs 25, 65 and 69).
In support of this argument, the Commissioner relies on the decision of this
Court in Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, [2001] F.C.J. No. 282 [Information
Commissioner].
ANALYSIS AND DECISION
[40]
At issue in this appeal
is whether the Commissioner has the power to order the production of records
containing information related to journalistic, creative or programming
activities within the meaning of section 68.1 of the Act. The Commissioner
invites the Court to answer this question in the affirmative. In contrast, the
appellant submits that the task of determining whether information relates to
journalistic, creative or programming activities belongs to the appellant, and that
it is not up to the Commissioner to review the records on which the appellant
bases its decisions.
[41]
The parties have agreed
that the question raised here is one of “true jurisdiction” and is therefore
reviewable on a standard of correctness. The Federal Court judge, quoting from
paragraph 59 of Dunsmuir, agreed with this suggestion.
[42]
In a recent decision,
this Court suggested that the Supreme Court had, in Smith v. Alliance
Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, abandoned the approach set
out in Dunsmuir such that even a “true” question of jurisdiction no
longer needs to be reviewed on a standard of correctness (Canada (Attorney
General) v. Public Service Alliance of Canada, 2011 FCA 257, [2011] F.C.J.
No. 1325, at paragraphs 30 and 31).
[43]
It is unnecessary to
dwell on this issue since, regardless of the approach used, the issue here is a
pure matter of statutory construction, and no deference is owed to the
Commissioner since the Court is not reviewing a decision for which reasons were
provided. It follows that the Federal Court judge properly applied the standard
of correctness.
[44]
Turning to the analysis,
I must first address the Commissioner’s alternative argument that the appeal
must be dismissed, irrespective of the Federal Court judge’s reasons. In
support of this contention, she argues that her power of examination extends to
any record she “deems requisite” within the meaning of paragraph 36(1)(a),
regardless of whether it is subject to the Act and that, in any event, the
Federal Court’s recent case law allows her to have access to all excluded
records, with the exception of records containing information that is subject
to a certificate issued under the Evidence Act.
[45]
As to her power of examination,
the Commissioner was unable to refer the Court to a single case where this
power had been used to compel the production of an excluded record or part of a
record containing excluded information. This is no accident. A contextual
reading of section 36 as a whole leads to the conclusion that the
documents (“pieces” in the French text) referred to in paragraph 36(1)(a)
must be subject to the Act, or, at least, capable of being viewed as such at
the time of their examination, otherwise, the words “to which this Act applies”
in subsection 36(2) would be superfluous. An excluded record does not meet
this requirement (see, for example, Gogolek, at paragraphs 9 to 14;
Canada (Information Commissioner) v. Canada (Immigration Appeal Board),
[1988] 3 F.C. 477, at paragraphs 24 and 25; Auditor General of Canada
(Plaintiff) v. Minister of Energy, Mines and Resources; Minister of Finance;
Deputy Minister of Energy, Mines and Resources and Deputy Minister of Finance
(Defendants), [1985] 1 F.C. 719, at pages 16 to 23; Canada Post
Corp. v. Canada (Minister of Public Works) (T.D.), [1993] 3 F.C. 320, at
paragraphs 21 and 22); Quinn v. Canada (Prime Minister), 2011 FC
379, [2011] F.C.J. No. 488, at paragraph 32 [Quinn].
[46]
This Court’s decision
in Information Commissioner does not support the Commissioner’s
position. The context was a judicial review before the Federal Court to
determine whether certain records – the agendas of the then prime minister – were
under the control of the Privy Council Office (an entity subject to the Act) or
the Prime Minister’s Office (an entity not subject to the Act). The
Commissioner wanted to obtain the records to be in a better position to answer
this question and a subpoena duces tecum was issued for that purpose. A
reading of the reasons reveals that the Privy Council Office had yet to invoke
the section 69 exclusion when the appeal was heard.
[47]
For our purposes, the
only issue of interest before the Federal Court of Appeal was whether the trial
judge had been correct to stay the subpoena on the ground that its
execution would cause irreparable harm to the respondent within the meaning of RJR
MacDonald Inc. v. Canada (A.G.), [1974] 1 S.C.R. 311 (Information
Commissioner, at paragraph 10). The Court answered this question in
the negative, thus allowing the subpoena to be enforced and the records to
be reviewed.
[48]
This decision does not
help the Commissioner’s argument. As noted, no exclusion had been claimed, so that,
if they were under the control of the Privy Council Office, the records in
question were subject to the Act or at least capable of coming within that
description.
[49]
The argument that the
Commissioner now has access to all excluded records unless a certificate is
issued under the Evidence Act must also be rejected. Counsel for the
respondent recognized at the hearing that the Commissioner’s official position
has always been that she cannot access records and information excluded by the
Act under the heading “exclusions”. He claims, however, that this position
changed at some point in time—he could not say exactly when—after the Federal
Court’s decisions in Minister of the Environment and Minister of the
National Defence, issued in 2001 and 2008 respectively.
[50]
Regarding the first of
these decisions, the Commissioner’s position rests entirely on her reading of it.
According to this reading, the Court would have [translation] “necessarily” given itself the power to examine
Privy Council confidences had it not been for the fact that a certificate had
been filed under section 39 of the Evidence Act (Respondent’s
Memorandum, at paragraph 59). This assertion is without merit. It is true
that, in Minister of the Environment, the Court did authorize itself to
review the decision refusing the production of the requested records despite
the fact that the section 69 exclusion and the one resulting from the
issuance of a certificate had both been claimed (Minister of the Environment,
at paragraph 26). However, the judicial review was conducted by
reference to evidence surrounding the method used to compile the excluded records—a
method whereby records which come within the ambit of the Act were incorporated
into records that are excluded from its application—without their contents
being examined (compare the decision of the Supreme Court in Babcock v.
Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3).
[51]
For our purposes,
suffice it to say that the fact that a certificate had also been issued does
not support the conclusion that the Court would have authorized itself to examine
the records had it not been for the certificate. Nothing in the reasons of
Justice Blanchard supports the Commissioner’s reading of this decision.
[52]
As to the Federal Court’s
decision in Minister of National Defence, the Commissioner, at
paragraph 58 of her memorandum, relies on a brief excerpt, in which
Justice Kelen simply asserts (paragraph 124):
Under section 69, the Court reviews the records. The protection will attach if the records fit within the meanings
ascribed under paragraphs 69(1)(a)-(g).
(Section 120 is to similar effect.)
[Emphasis added]
She fails to specify that, in this case, the records at issue had been
obtained by the Commissioner in the circumstances described in Information
Commissioner (see paragraphs 46 and 47, above) and were part of the
record before the Federal Court judge. It is in that context that the Federal
Court judge stated that the records are reviewed. It goes without saying that
when the contested records are produced, the judge is free to examine them.
[53]
The only recent Federal
Court decision that deals with the issue raised by the Commissioner is Quinn,
in which the information access requester alleged, as the Commissioner is now
doing before this Court, that only a certificate issued under the Evidence
Act could exclude a document containing confidences of the Privy Council
from the reach of the Act. Justice Lemieux dealt with this argument as follows
(Quinn, at paragraph 32):
. . .
. . . I agree with counsel for the respondent that there
is no need for a separate section 39 [Canada Evidence Act (CEA)]
certification. The [Access to Information Act (ATIA)] defines in a non
limitative way, what is a confidence of the Queen’s Privy Council. The enumerations
under section 69(1) are only examples of such confidences. If a particular
access request falls within the definition of a confidence of the Queen’s Privy
Council, the right of access is not contemplated because the ATIA does not
apply to such request. In other words, the ATIA is self contained in its
operation and does not require the support of section 39 of the CEA.
[Emphasis added]
[54]
In my opinion, this
conclusion accurately reflects the state of the law.
[55]
It follows that if the
Commissioner has the power to order the CBC to produce the records at issue in
the case at bar, it is because section 68.1, by its wording so provides, as was
found by the Federal Court Judge.
[56]
Before addressing the arguments
advanced by the appellant against this finding, three comments are in order. Throughout
its memorandum and its submissions, the appellant failed to distinguish between
“records” that are subject to the Act and the “information” which they contain
(“renseignements” in the French text). Even though the investigative power
provided under subsection 36(2) of the Act allows the Commissioner to
examine “any record to which this Act applies”, the exclusions invoked by the
appellant to refuse to disclose the requested records are limited to the
information contained in these records, as described in section 68.1. In that
regard, section 25 of the Act requires the CBC to examine all the
requested records and disclose any part that does not come within the
exclusions. Inasmuch as the CBC believes that it is authorized to refuse to
disclose entire records without examining them, it is ignoring this duty.
[57]
It is also important to
note that the three categories of information excluded under section 68.1
and the excepted information relating to the CBC’s general administration can
overlap. For the purposes of the Act, the phrase “information that relates to …
general administration” (“administration” in the French text) is defined non-exhaustively
in section 3.1 and includes, for greater certainty, information such as
travel or lodging expenses. It follows, for example, that the same information
could at once relate to both programming activities and general administration.
This possibility means that the release of information cannot be automatically
refused because it relates to one or the other of the three excluded subjects. The
scope of the exception must also be considered.
[58]
Lastly, the appellant
must specify which exclusion it is invoking when refusing to disclose a record.
Programming and creative activities are distinct exclusions, and the requesters
are entitled to know which exclusion is being invoked to refuse them access. Similarly,
when a refusal is based on the broader category of “journalistic activities”,
the requesters are entitled to know the precise activity on which the appellant
relies.
[59]
I now turn to the
issues raised by the appellant on appeal. The gist of the Federal Court judge’s
reasoning for refusing to issue the declaration sought by the appellant hinges
on the particularity which section 68.1 embodies (Reasons, at paragraph
27):
Section 68.1, as worded, contains a double negative,
that is, an exception to the exclusion. That exception to the exclusion, which
refers to information that relates to the general administration of the CBC,
may shed light with respect to the authority of the Commissioner. How can the
Commissioner determine whether information relates to the general
administration of the CBC, and thus falls under the exception set out in
section 68.1, if she does not have authority to review all the records in
question, including records relating to the journalistic, creative or
programming activities of the CBC?
[60]
In so saying, the
Federal Court judge recognizes that section 68.1 appears in the “exclusions”
section of the Act, which covers records and information that have always escaped
the Commissioner’s power of examination. However, by reason of its wording, the
categories of information set out in section 68.1 are not shielded from
independent examination by the Commissioner. According to the Federal Court
judge, drawing the opposite conclusion would result in the CBC being exempt from
the application of the Act, even though it has been subject to it since 2007
(Reasons, at paragraph 29). The appellant acknowledges that this is the [translation] “cornerstone” of the
decision under appeal.
[61]
The Federal Court judge’s
reasoning is hard to challenge. The exclusion is subject to an exception. This
exception is generic and is capable of reducing the scope of the exclusions. The
existence of the exception invites the Commissioner to exercise her power of examination.
Absent a contrary demonstration, a record that is under the control of a
government institution and that can reveal information that is not excluded
from the application of the Act is a record to which the Act applies.
[62]
Despite this obvious
logic, the appellant submits that the Federal Court judge’s reasoning cannot be
accepted for three distinct reasons (Appellant’s Memorandum, at
paragraph 29). First, it argues that the exception at the end of
section 68.1 is not actually an exception. Relying on the English wording,
which does not use the word “exception”, the appellant submits that the
exception is rather a [translation]
“clarification” establishing the parameters of the exclusion (Appellant’s
Memorandum, at paragraph 34).
[63]
This distinction, even
if it were accepted, does not affect the Federal Court judge’s reasoning. According
to the Federal Court judge, a review of the records is required to demonstrate
that the information in question does not come within the exception or the
limitation, as clarified. Nothing hinges on this distinction.
[64]
The appellant argues
that, even if the exception was to be treated as such, its existence does not
indicate that Parliament intended to grant the Commissioner a power of examination.
For comparison, it asks the Court to consider the manner in which the Act deals
with confidences of the Privy Council Office, as described in
subsection 69(1), which are subject to the three exceptions provided in
subsection 69(3). The appellant points out that these exceptions have
never been viewed as providing the Commissioner with a right of examination.
[65]
However, these
exceptions are of an entirely different nature. Subsection 69(3) removes from
the exclusion pertaining to Privy Council Office confidences under
subsection 69(1), documents that have been in existence for more than 20
years and discussion papers relating to decisions that have been made public or,
if they have not been made public, were made at least four years previously. The
existence of any of these exceptions can be demonstrated on the face of the
record, without it being necessary to examine its contents. The opposite is
true, however, when the time comes to determine whether information falls
outside of the exclusion under section 68.1 because it relates to CBC’s
general administration.
[66]
Third, the appellant
submits that the question raised in this proceeding concerns the Commissioner’s
power to compel the disclosure of “records” excluded under the Act. The
existence of this power cannot, according to the appellant, depend on the scope
of the “records” excluded from it (Appellant’s Memorandum, at
paragraph 36).
[67]
As noted earlier, the
exclusions provided under section 68.1 do not pertain to records but to
information, which is subject to an exception (or a clarification according to the
appellant). As stated above, the nature of the exception is such that it may
overlap with the excluded information with the result that a review by the
Commissioner is required to give effect to the exception.
[68]
I also do not believe
that the Federal Court judge’s interpretation of section 68.1 can be challenged
on the basis of the parliamentary committee debates that preceded the enactment
of this provision. The appellant is relying on certain statements by the former
Commissioner, who warned committee members that section 68.1 as drafted
would not allow him access to records containing the excluded information.
[69]
It is easy to see why
the Commissioner might have had this concern. As pointed out by the Federal
Court judge, section 68.1 is not a model of clarity. A provision that
appears under a part of the Act entitled “exclusions” and which provides for an
exception capable of overlapping with the excluded information is a recipe for controversy.
The Commissioner’s opinion undoubtedly demonstrates that section 68.1 is
open to various readings, but, in such a case, it is the courts’ role to
determine the reading that best reflects Parliament’s intention.
[70]
In my opinion, the
Federal Court judge correctly concluded that, despite the fact that it appears
under the heading “exclusions”, the exception which section 68.1 embodies
requires that recourse be had to the Commissioner’s power of examination in
order to give effect to this provision. Although Parliament intended that information
related to journalistic, creative or programming activities be excluded from the
application of the Act, it also wanted that information related to the CBC’s general
administration – as defined in section 3.1 – not be excluded. Subject to what
is said in paragraphs 73 and 74, below, it is the Commissioner’s role to initially
determine whether the exception applies and to exercise the recommendation
power vested in her by the Act.
[71]
In the event that a
recommendation to disclose is made and that the appellant maintains its
refusal, it will be open to the appellant to bring the matter before the
Federal Court while taking the necessary measures to preserve the confidentiality
of the disputed information in the meantime. As explained by the Federal Court
judge, it is difficult to see the prejudice that would be caused if the
Commissioner was to take cognizance of the records.
[72]
I do not share the
concerns expressed by counsel for the appellant about the harm that might
result from the revelation of journalistic sources. In my opinion, this concern
is based on a misreading of the decision at first instance. I do not read the
Federal Court decision as requiring that all exclusions be treated in the same manner
or that the Commissioner is entitled to be given access to records regardless
of the exclusion being claimed.
[73]
The Federal Court judge’s
reasoning for limiting the effect of the exclusions in this case is based on
the possible conflict between these exclusions and the exception under
section 68.1. In his opinion, it is the Commissioner’s role to initially
address this conflict, and Parliament necessarily wanted the Commissioner to
have access to records to be able to fulfill that role. This ruling was made in
response to the broad declaration which the appellant was asking the Federal
Court judge to issue.
[74]
No such conflict can
arise between a refusal based on what is best described as the “journalist-source
privilege” (Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592 ) and the exception
provided for in section 68.1. The identity of journalistic sources cannot
clash with the exception relating to general administration, regardless of the
scope attributed to this exception. In these circumstances, the only conclusion
possible if one gives effect to the Federal Court judge’s reasoning is that the
exclusion for journalistic sources, like the exclusions provided in sections 69
and 69.1, is absolute. It follows that in the event that a request seeking the
disclosure of journalistic sources was made, a record – or the part thereof – revealing
this type of information would be exempt from the Commissioner’s power of examination.
[75]
Before concluding, I
would add that the other decisions on which the appellant relies were not rendered
under the legislation with which we are concerned and that none of the
statutory provisions underlying those decisions include the particularity which
section 68.1 bears. There is therefore no need to address them
[76]
Finally, counsel for
the appellant advised the panel during the deliberations that her client had
been compelled to turn over to the committee of the House of Commons
responsible for access to information, the records that are the subject of the
appeal. He asks that the appeal be disposed in accordance with the arguments
submitted by the parties irrespective of this occurrence.
[77]
As noted earlier, the
Commissioner agreed to stay her production order so as to allow the judicial
process to follow its course. It is useful to recall in this respect that,
absent exceptional circumstances, courts do not deal with issues which become
moot during the judicial process (Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342). It goes without saying that the disclosure of the records
to the members of the Committee runs the risk of rendering the matter moot if the
members choose to comment on them or otherwise reveal their contents (see also
the pronouncement of the Supreme Court in Canada (Minister of Citizenship
and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 114 with respect
to the sub judice rule).
[78]
For the time being, we
understand from counsel’s letter that the contested records have been turned
over under seal and we have no reason to believe that their confidentially has
been breached. In these circumstances, the controversy between the parties
remains live and the Court should therefore dispose of the appeal on the basis
of the arguments advanced by the parties.
[79]
For the above reasons, I
would dismiss the appeal. The Commissioner is seeking costs. Given the
rejection of the alternative position which she has put forth, I believe that
the parties should assume their respective costs.
“Marc Noël”
“I agree.
Johanne Trudel J.A.”
“I agree.
Robert M. Mainville J.A.”
Certified true translation
Johanna Kratz, Translator
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