Canada (Information Commissioner) v. Canada (Minister of Environment), 2001 FCT 277

                                                                                                                                  Date: 20010402

                                                                                                                  Court File No. T-1125-99

                                                                                                        Neutral citation: 2001 FCT 277

Ottawa, Ontario, this 2^nd day of April, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                          THE INFORMATION COMMISSIONER

                                                                                                                    Applicant

                                                                         - and -

                               THE MINISTER OF THE ENVIRONMENT CANADA

                                                                                                                                        Respondent

                                                                         - and -

                                                          ETHYL CANADA INC.

                                                                                                                            Added Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review, filed by the Information Commissioner of Canada ("the Information Commissioner") pursuant to section 42 of the Access to Information Act^[1] (hereinafter the "Access Act") to review the decision of the Minister of Environment Canada, on the advice of the Privy Council Office ("PCO"), denying the applicant access to four documents which both the Minister and the PCO determined are Cabinet confidences. For ease of reference, the decision under review in the case at bar will be referred to as the decision of the PCO.

FACTS

[2]                On September 22, 1997, Josephina D. Erzetic, on behalf of Ethyl Canada Inc. ("Ethyl"), made a request to the respondent under the Access Act for access to Cabinet documents dealing with a fuel additive known as "MMT". The request was worded as follows:

Discussion Papers, the purpose of which is to present background explanations, analysis of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Managenese Tricarbonyl (MMT)

[3]                In response to the request, the respondent identified four documents dealing with MMT. The Access to Information and Privacy Secretariat of Environment Canada reviewed the four documents and concluded that they are Cabinet confidences. One document was not released pursuant to paragraph 69(1)(a) of the Access Act, and the other three were not released pursuant to paragraph 69(1)(e) of the Access Act.

[4]                The Access to Information and Privacy Secretariat then consulted with the PCO to confirm that the documents are excluded from the Access Act. The PCO confirmed that the documents are Cabinet confidences within paragraphs 69(1)(a) and (e) of the Access Act. The Access to Information and Privacy Secretariat of Environment Canada informed the requirant of the existence of four documents excluded from access under paragraphs 69(a) and (e) of the Access Act.

[5]                On March 17, 1998, Ethyl complained to the Information Commissioner. On March 30, 1999, the Information Commissioner reported the results of his investigation, that Ethyl's complaint was well founded, to the Minister of the Environment.

[6]                Before examining the basis of the Information Commissioner's conclusion, it is useful at this point to outline the historical evolution of Cabinet confidences from the common law to the passage of the Access Act. The history of Cabinet confidences has been fully reviewed in a number of cases^[2] which generally begin with the House of Lords decision in Duncan and Another v. Cammell, Laird & Co. Ltd.^[3] The House of Lords held in that case that an affidavit of a Minister stating that disclosure of documents would harm the public interest was taken as absolute, without review by the courts. The Duncan and Another case described the common law position until 1968 when the House of Lords revised the common law with the Conway v. Rimmer and Another^[4] decision. In that case, the Court held that it could examine documents which the Minister claimed would injure the public if disclosed. The Court held that while deference should be shown to the Minister's position, the final decision should lie with the courts.

[7]                After the Conway v. Rimmer decision, Parliament enacted subsection 41(2) of the Federal Court Act.^[5] Subsection 41(2) followed the position of the House of Lords in Duncan and Another. As described by Justice Strayer in Smith, Kline:^[6]

Subsection 41(2) however followed the Cammell, Laird approach and it applied to a large and somewhat amorphous group of documents. That subsection provided that wherever a Minister by affidavit claimed that the production or discovery of a document would be injurious to international relations, national defence or security, or to federal-provincial relations, or that it would disclose a confidence of the Queen's Privy Council for Canada, then discovery or production "shall be refused without any examination of the document by the court." In other words, all that was required was an affidavit that the document came within one of these categories and the Court was precluded from examination of the document. [emphasis added]

Subsection 41(2) of the Federal Court Act therefore recognized a process whereby the Government could maintain the confidentiality of a document as a confidence of the Queen's Privy Council for Canada by simply declaring it to be such.

[8]                The Access Act was enacted in 1982, repealing subsection 41(2) of the Federal Court Act. Section 69 of the Access Act and s. 39 of the Canada Evidence Act^[7] formed part of the same Bill and were enacted together. These two provisions have similar effects, s. 69 excludes from the application of the Access Act documents and records which are considered Cabinet confidences, and s. 39 excludes from the application of the Canada Evidence Act information which is considered a Cabinet confidence.

[9]                           The Information Commissioner concluded that Ethyl's complaint was well founded based on the evolution of the Cabinet Paper System since the passage of the Access Act. When the Access Act was first passed in 1982, the Cabinet Paper System produced two records: the Memorandum to Cabinet and the "discussion paper" containing background explanations, analyses of problems and policy options. In 1983, an Official of the PCO,^[8] was asked to propose reforms to the Cabinet Paper System. The Official of the PCO recommended that supporting background information and analysis be put in appendices to the Memorandum to Cabinet, and that "discussion papers" be understood as papers prepared by government departments as part of a planned communications strategy. The Cabinet Paper System recommended by the Official of the PCO was adopted by the PCO in early 1984.

[10]            The format of the Memorandum to Cabinet was changed slightly in 1986 and remains in place today. The Memorandum to Cabinet is now divided into two sections: the ministerial recommendations section and the analysis section. The analysis section now contains the background information and analysis formally found in "discussion papers" as understood when the Access Act was first passed in 1982.

[11]            Based on the evolution of the Cabinet Paper System, the Information Commissioner recommended that the relevant information relating to background explanations, analyses of problems or policy options be severed pursuant to s.25 of the Access Act from records which are Cabinet confidences, and disclosed as per paragraph 69(3)(b) of the Act. On April 20, 1999, the Minister of the Environment informed the Information Commissioner of her decision not to follow the Information Commissioner's recommendation. The Information Commissioner then filed an application for judicial review pursuant to paragraph 42(1)(a) of the Access Act.

[12]            On proceedings preparatory to the hearing of this application, in response to questions on the cross-examination of Mr. Michael Bogues, Chief of the Access to Information and Privacy Secretariat of Environment Canada, the Clerk of the Privy Council issued a certificate under paragraphs 39(2)(a) and (e) of the Canada Evidence Act certifying that the four documents are Cabinet confidences, and objecting to their disclosure.

ISSUES

           (1)        Does the Access Act apply to the four documents determined by the Minister of Environment and the PCO to be Cabinet confidences under s. 69 of the Act?

           (2)       Is the certificate of the Clerk of the PCO under s. 39 of the Canada Evidence Act subject to judicial review?

LEGISLATIVE FRAMEWORK

[13]            It is useful, at this point, to reproduce the relevant sections of the Access Act which will

be relied on throughout these reasons. Section 42 of the Access Act states the following:

42.(1) The Information Commissioner may

         (a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record; [emphasis added]

42.(1) Le Commissaire à l'information a qualité pour :

         a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document; [je souligne]

Section 69 of the Access Act states the following:

69. (1) This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,      

69.(1) La présente loi ne s'applique pas aux documents confidentiels du Conseil privé de la Reine pour le Canada, notamment aux :

         (a) memoranda the purpose of which is to present proposals or recommendations to Council;

         a) notes destinées à soumettre des propositions ou recommandations au Conseil;

         (b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

         b) documents de travail destinés à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;

         (c) agenda of Council or records recording deliberations or decisions of Council;

         c) ordres du jour du Conseil ou procès-verbaux de ses délibérations ou décisions;

         (d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

         d) documents employés en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;

        (e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);

        e) documents d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'object des communications ou discussions visées à l'alinéa d);

         (f) draft legislation; and

        f) avant-projets de loi ou projets de règlement;

         (g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

        g) documents contenant des renseignements relatifs à la teneur des documents visés aux alinéas a) à f).

    Paragraph 69(3)(b) of the Access Act states:

(3) Subsection (1) does not apply to

...

      (b) discussion papers described in paragraph 1(b)

(i) if the decisions to which the discussion papers relate have been made public, or

(3) Le paragraphe (1) ne s'applique pas :

...

               b) aux documents de travail visés à l'alinéa (1)b), dans les cas où les décisions auxquelles ils se rapportent ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant, L.R. 1985, c. A-1, art. 69; 1992, ch. 1, art. 144 (F). [je souligne]

(ii) where the decisions have not been made public, if four years have passed since the decisions were made. R.S. 1985, c. A-1, s.69; 1992, c.1 s.144 (F). [emphasis added]

Section 25 of the Access Act states:

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorised to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. R.S. 1985, c.A-1, s.25. [emphasis added]

25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. L.R. 1985, c. A-1, art. 25. [je souligne]

Section 39 of the Canada Evidence Act states the following:

39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

39(1) Le tribunal, l'organismes ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.

(2) For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in

(2) Pour l'application du paragraphe (1), un "renseignement confidentiel du Conseil privé de la Reine pour le Canada" s'entend notamment d'un renseignement contenu dans :

(a)    a memorandum the purpose of which is to present proposals or recommendations to Council;

(a)    une note destinée à soumettre des propositions ou recommandations au Conseil;       

(b)    a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(b)    un document de travail destiné à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;

(c)    an agendum of Council or a record recording deliberations or decisions of Council;

(c)    un ordre du jour du Conseil ou un procès-verbal de ses délibérations ou décisions;

(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(d)    un document employé en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;

(e)    a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and

(e)    un document d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'objet des communications ou discussions visées à l'alinéa d);

(f)     draft legislation

(f)     un avant-projet de loi ou projet de règlement.

...

[...]

Exception           

(4) Subsection (1) does not apply in respect of

         (a)     a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or

Exception

(4)    Le paragraphe (1) ne s'applique pas:

         (a)     à un renseignement confidentiel du Conseil privé de la Reine pour le Canada don't l'existence remonte à plus de vingt ans;

         (b)     a discussion paper described in paragraph (2)(b)

                   (i)        if the decisions to which the discussion paper relates have been made public, or

                   (ii)       where the decisions have not been made public, if four years have passed since the decisions were made. 1980-81-82-83, c. 111, s. 4. [emphasis added]

       (b)     à un document de travail visé à l'alinéa (2)b), dans les cas où les décisions auxquelles il se rapporte ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant. 1980-81-82-83, c. 111, s. 4. (je souligne)                                     

[14]       Given the wording of s. 69 of the Access Act that "[t]his Act does not apply to confidences of the Queen's Privy Council for Canada", the first issue to consider is whether this Court has any jurisdiction under s. 42 to review whether a record is a Cabinet confidence under s. 69. The second issue for determination is whether the Clerk's certificate pursuant to s. 39 of the Canada Evidence Act is subject to judicial review.

ANALYSIS

[15]       According to the respondent, subsection 69(1) of the Access Act excludes Cabinet confidences from the operation of the Act, including an exclusion from judicial review. The respondent argues that the Information Commissioner is seeking to turn the exclusion in paragraph 69(1) into an exemption subject to judicial review in the same way as the exemptions set out in ss. 13-24 of the Access Act are subject to judicial review. The exempting provisions of the Act permit non-disclosure of information in certain circumstances, for example, information concerning federal-provincial affairs (s. 14), international affairs and defence (s. 15), law enforcement and investigations (s. 16), among a number of other exemptions.

[16]      The respondent points out that Parliament did in fact consider including s. 69 under the "exemptions" heading in the original proposal in Bill C-43, an Act enacting the Access Act. At the committee stage, however, the Bill was amended to exclude Cabinet confidences from the operation of the Access Act. The respondent argues that this change was brought about to ensure that any decision by the PCO, determining a document to be a confidence, is not subject to judicial review. When the Honourable Francis Fox, Minister responsible for the Bill, was questioned about this amendment to the Bill, he stated the following:^[9]

Quite obviously there is a change from the previous situation. We spent three or four months looking at the various changes and the decision of Cabinet was to exclude Cabinet confidences from the purview of the Bill. They were already exempted from application of the bill in the sense that they would not have been made public, but, as you indicate, a judge would have had the authority to review a document in order to decide whether or not it was a Cabinet minute, and the matter would have ended there. At the moment you simply could not ask, under the bill, for a Cabinet minute or an agenda or a discussion paper.

If you asked for an agenda of Cabinet under the bill as it now stands, with the new Clause 68, the minister would say simply, or the Clerk of the Privy Council would say, that Cabinet agendas are excluded from the application of the bill and you would not get the Cabinet agenda and the matter would not be subject to review by the court. [emphasis added]

According to the respondent, therefore, this Court has no jurisdiction to judicially review the decision of the PCO to claim that the four documents at issue are excluded from the Access Act pursuant to subsection 69(1) of the Act.

[17]       In order to determine whether the respondent's interpretation of s. 69 is the proper approach to be taken, this Court must interpret the Access Act. The general approach to statutory interpretation was outlined by the Supreme Court of Canada in Verdun v. Toronto-Dominion Bank^[10] where Justice Iacobucci states:

The first step in a question of statutory interpretation is always an examination of the language of the statute itself. As E.A. Driedger wrote in his text, Construction of Statutes (2^nd ed. 1983), at p. 87:

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

The proper approach to statutory interpretation, therefore, requires an examination of the words of the Act, the purpose of the Act, the scheme of the Act, and the intention of Parliament.

[18]       Turning first to the words of the Act, there is a clear tension in s. 69 between the general exclusions listed in paragraphs 69(1)(a) to (g), and the exceptions to the exclusions found in paragraphs 69(3)(a) and (b). Subsection 69(1) of the Access Act states that "[t]his Act does not apply to confidences of the Queen's Privy Council" listed in subsections (a) through (g). Although the wording of paragraph 69(1) suggests that Cabinet confidences are excluded from the operation of the Access Act, it remains unclear whether confidences which contain background explanations, analyses of problems, or policy options become subject to the Access Act pursuant to paragraph 69(3)(b). In other words, although it seems clear that the Access Act does not apply to Cabinet confidences listed in subsection 69(1), it is possible that the Act does apply to "discussion papers" as defined in paragraph 69(1)(b). In order to clarify the meaning of the words in s. 69, the purpose and scheme of the Act, and the intention of Parliament will be examined.

[19]       The purpose of the Access Act is clearly outlined in s. 2, which states:

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

2.(1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

All parties agree that the purpose of the Access Act is to extend the right of access to government information. While the purpose of the Access Act is clear, does that purpose have any bearing on s. 69, which states that the Access Act does not apply to confidences of the Queen's Privy Council? The exclusions listed in paragraphs 69(1)(a) to (g) of the Access Act should be construed in a way which infringes the stated purpose of the Act, the public's right to access, the least. As the Federal Court of Appeal states in Rubin v. Minister of Transport:^[11]

where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.

[20]       The interpretation which infringes the public's right to access the least is one which limits the exclusions in paragraphs 69(1)(a) to (g) as much as possible, and gives full effect to the exceptions to the exclusions in paragraphs 69(3)(a) and (b). In order to give full effect to paragraphs 69(3)(a) and (b), this Court would have to hold that although the Access Act does not apply to Cabinet confidences, it does apply to "discussion papers" the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council if the provisions of subparagraphs 69(3)(b)(i) and (ii) apply. Whether this is the proper interpretation of s. 69 will now be examined in light of the history of the Access Act and the Intention of Parliament in enacting s. 69 of the Access Act.

[21]       The history of Cabinet confidences from the common law to the passage of the Access Act has already been provided. In summary, however, this history reveals that Parliament revoked subsection 41(2) of the Federal Court Act which provided for the absolute confidentiality of all confidences of the Queen's Privy Council for Canada. Subsequently, Parliament enacted s. 69 of the Access Act and s. 39 of the Canada Evidence Act which no longer provided for the absolute confidentiality of documents deemed confidences of the Queen's Privy Council. In enacting paragraphs 69(3)(a) and (b) of the Access Act and paragraphs 39(4)(a) and (b) of the Canada Evidence Act, Parliament chose to create exceptions to the exclusions listed in paragraphs 69(1)(a) to (g) of the Access Act and paragraphs 39(2)(a) to (f) of the Canada Evidence Act.

[22]       Having examined the words of the Act, the purpose of the Act, and the history of Cabinet confidences, the next question is what was Parliament's intention in enacting the exceptions in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act?

[23]       These exceptions are a departure from the absolute exclusion previously found in subsection 41(2) of the Federal Court Act. The exception in paragraph 69(3)(a) of the Access Act and paragraph 39(4)(a) of the Canada Evidence Act provide for the disclosure of confidences of the Queen's Privy Council that have been in existence for more than twenty years. The exception paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act allow for the disclosure of "discussion papers" described in paragraph 69(1)(b) of the Access Act and paragraph 39(2)(b) of the Canada Evidence Act, if the decisions to which the "discussion papers" relate have been made public, or where the decisions have not been made public, if four years have passed since the decisions were made.

[24]       By creating exceptions, Parliament intended that certain types of information be released. The Honourable Francis Fox, the Minister who sponsored Bill C-43, stated the following about Parliament's intention:^[12]

                               On the question of factual material, it seems to me most, if not all of the factual material, will be included in the discussion papers which are to be released, and I do not see why there should be a different rule for factual material that may surround draft legislation. It would come out in the discussion paper...

                               And it seems to me that the general principle here of saying that the discussion papers are going to be made public after the decision is made public is a clear indication of the desirability of this coming out... Also there is the indication that we want discussion papers to come out; that we want the factual basis on which decisions are taken to be made public. [emphasis added]

By enacting the exceptions in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act, Parliament intended that information containing background explanations, analyses of problems or policy options be released to the public, in order to increase government accountability to the public. The question is, however, who is the gatekeeper in deciding whether or not information or documents fall within one of the exceptions?

[25]       There is only one case to date, Gogolek v. Canada (Attorney General)^[13], dealing with whether this Court has jurisdiction to review a decision of the PCO that documents fall within subsection 69(1) of the Access Act. In that case, the PCO did not disclose records to the applicant which it determined were Cabinet confidences under s. 69 of the Access Act. The applicant argued that in order to ensure the scheme of the Access Act is not subverted, there must be independent review by courts of decisions of the Clerk of the PCO not to disclose Cabinet confidences. The applicant argued in particular that the purpose of the Access Act as stated in s. 2 is to encourage independent review of government decisions not to disclose. It is important to note that the Information Commissioner in Gogolek had found that there was no reason to doubt that the documents at issue were properly withheld. Justice Heald of the Federal Court Trial Division held that there could be no independent review of PCO decisions under s. 69:^[14]

Section 69(1) employs clear and unambiguous language, wherein it states that "[t]his Act does not apply to confidences of the Queen's Privy Council for Canada", which includes the documents and material set out in ss. 69(1)(a) to (g). I agree with the respondent's counsel that there is no discretionary power vested in a governmental department that would allow that department to make such confidences accessible to the public. [emphasis added]

Mr. Justice Heald held that the exclusion of Cabinet confidences from the Access Act meant that the decision could not be judicially reviewed pursuant to s. 41 of the Act, and that the purpose of the Act as stated in s. 2 had no applicability in relation to records excluded under s. 69 of the Act.

[26]       In my view, Gogolek does not stand for the proposition that the PCO has unrestricted discretion to exclude a document from disclosure by invoking s. 69 of the Access Act when information contained in the document was intended by Parliament to be releasable when the decision to which the discussion paper relates has been made public or when four years have passed under subparagraphs 69(3)(b)(i) and (ii) of the Act. The process through which a document, intended for release pursuant to paragraph 69(3)(b), comes to be characterized as a confidence should withstand scrutiny on judicial review.

[27]       There is no indication in the Gogolek case that the extrinsic evidence pointed towards the existence of documents which contain background explanations, analyses of problems and policy options. Further, the Information Commissioner in Gogolek agreed that the documents were properly withheld.

[28]      The extrinsic evidence in this case, however, points towards the existence of documents which contain background explanations, analyses of problems and policy options. The evolution of the Cabinet Paper System indicates that the information in "discussion papers" as understood in 1982 continues to exist in the "analysis" section of a current Memorandum to Cabinet. The evidence also indicates that the PCO now understands a "discussion paper" to be a paper prepared by a government department with the intention of publishing the paper as part of a planned communications strategy. "Discussion papers" as understood in 1982 have not been produced since 1984. The result is that information the purpose of which is to present background explanations, analyses of problems and policy options, where the decision has been made public or four years have passed, is withheld by the PCO simply because the information is now included in a Memorandum to Cabinet. In other words, despite the fact that all of the criteria in paragraph 69(3)(b) of the Access Act may be met, the content of a "discussion paper" is not released because it is no longer called a "discussion paper". In my opinion, the Gogolek case never reached this stage of the analysis because the evidence did not take the Court in that direction.

[29]       Unlike the circumstances in Gogolek, the Information Commissioner in the case at bar concluded that Ethyl's complaint was well founded, and that the relevant information relating to background explanations, analyses of problems or policy options should be severed pursuant to s.25 of the Access Act from records which are otherwise Cabinet confidences, and disclosed in accordance with paragraph 69(3)(b) of the Access Act.

[30]       In my opinion, this Court cannot ignore the extrinsic evidence. I find this evidence in the evolution of the history of the Cabinet Paper System previously discussed in these reasons. A careful review of the Cabinet Paper System since 1982 points towards the possible existence of information relating to background explanations, analysis of problems or policy options as described in paragraph 69(1)(b) that are still found in the current Cabinet documents. Paragraph 69(3)(b) states that subsection 69(1) does not apply to discussion papers described in paragraph 69(1)(b), that is, papers the purpose of which is to provide background explanations, analyses of problems or policy options to Council. Therefore, discussion papers as understood in paragraph 69(3)(b) are not excluded from the operation of the Access Act pursuant to subsection 69(1). Following this reasoning one would necessarily conclude that the Access Act applies.    Given that the Access Act applies, this Court finds its authority under s. 42 of the Act to judicially review decisions of the PCO to withhold the documents at issue in their entirety.

[31]       Unlike s. 69 of the Access Act, there are a number of cases dealing with whether a court can judicially review the issuance of a certificate pursuant to s. 39 of the Canada Evidence Act. A review of the leading cases is helpful in order to clarify in what circumstances this Court may judicially review the issuance of a certificate pursuant to s. 39 of the Canada Evidence Act.

[32]       In Canada (Attorney General) v.Central Cartage Co.,^[15] the Clerk of the PCO objected to the disclosure of certain documents in the main proceeding, and issued a certificate pursuant to s. 36.3 (current s. 39) of the Canada Evidence Act. The applicant, in that case, not only challenged the Clerk's certificate on its face, but also challenged the constitutionality of s. 36.3. Chief Justice Iacobucci (as he then was) upheld the constitutionality of s. 36.3 and states the following about whether this Court can judicially review the issuance of a s. 36.3 certificate at 652:

                               It appears clear that Parliament intended by passing section 36.3 that the determination of whether any information constitutes a confidence of the Queen's Privy Council is to be made by a Minister of the Crown or the Clerk of the Privy Council. Subject only to compliance with the express requirements of the section, the decision of the Minister or the Clerk, as certified in writing by him or her, is not subject to review by any court. The court cannot go behind the certificate and examine the documents as it can under sections 36.1 and 36.2 of the Canada Evidence Act. However, it is open to a court to see whether the certificate on its face asserts a privilege within the statutory limitations on claims for privilege by the executive.

[33]       In order to determine whether a certificate on its face asserts a privilege within the statutory limitations, the Federal Court of Appeal in Central Cartage cited with approval the decision of Justice Strayer in Smith Kline,^[16] in which the Court found a certificate defective because it did not track the statutory language of subsection 36.3(2). As the Federal Court of Appeal in Central Cartage expressed at 654:

                               Strayer, J. found the certificate in Smith Kline to be defective because it in effect did not track the language of subsection 36.3(2). Requiring it to do so admittedly may be formalistic, but, as he notes, litigants and the courts are entitled "at least to the assurance that the Clerk of the Privy Council has directed his mind to those criteria and limitations". Therefore tracking the language of the subsection is not an empty exercise. It is what is required and I see no reason why the words should not be so interpreted.

The Court in Central Cartage held, therefore, that if a certificate is proper in form, that is, if it tracks the statutory language of s. 39, it is not open for this Court to entertain a proceeding for judicial review.

[34]       Most recently, the Federal Court of Appeal in Singh v. Canada (Attorney General)^[17] addressed a challenge to a s. 39 certificate, principally on constitutional grounds. Although there is no constitutional challenge in the case at bar, Singh provides guidance for the manner in which this Court may judicially review a s. 39 certificate. The Court in Singh begins by noting the policy of Parliament in enacting s. 39 of the Canada Evidence Act at 200-201:

                               I also would observe that the appellants have made a strong argument against the policy embodied in subsection 39(1) of the Canada Evidence Act, preventing as it does the review by courts of the executive's characterization of particular documents as containing confidences of the Queen's Privy Council for Canada. That policy treats Cabinet confidences as a class of documents which can only be disclosed in circumstances permitted by the Canada Evidence Act. Further, it prevents a court from determining for itself whether such documents are in fact Cabinet confidences. The appellants argue for a policy by which there would be no immunity as a class for this type of document: instead a court should be able to examine them to determine if they are of that class and, if so, whether on balance they should be disclosed anyway. But it is not for the Court to determine the wisdom of the policy embodied in the Canada Evidence Act if it breaches no constitutional requirement. [emphasis added]

The Court in Singh acknowledged the arguments of the appellants against the policy in s. 39 of the Canada Evidence Act which excludes Cabinet confidences from the Act with a very limited possible review by courts. The Court in Singh states, however, that it is not for courts to determine the wisdom of Parliament, and goes on to affirm the limited role courts may play in the review of a s. 39 certificate at 218:

                               It has been held that the Court may entertain a proceeding for judicial review of the issuance of a certificate although it may not review the factual correctness of the certificate if it is otherwise in proper form.

The Court went on to state the circumstances in which a court may entertain a proceeding for judicial review. Like Central Cartage and Smith Kline, the Court in Singh held that one possible ground for review is whether the certificate on its face tracks the statutory language of s. 39. The Court also noted that improper motive on the part of the Clerk in issuing a certificate is a possible ground for judicial review^[18]. There is no evidence of such improper motive on the part of the Clerk of the PCO in the case at bar.

[35]       The Court in Singh cited with approval the Canadian Association of Regulated Importers v. Canada^[19] decision which considered whether the existence of clear extrinsic evidence may be used to judicially review the issuance of a certificate. The Court states the following at page 7:

                       I am prepared to accept for the sake of argument, without deciding, that a Court might consider such evidence, where sufficiently clear, in relation to the assertions made by the certificate, but in my opinion the available evidence does not assist the appellants in the case at bar.

[36]       Although the extrinsic evidence in Regulated Importers was not sufficiently clear, the

extrinsic evidence in the case at bar is clear. There is no dispute that the information in "discussion papers" is now included in the "analysis" section of the Memorandum to Cabinet. There is also no dispute that officials at the PCO understand "discussion papers" are now to be papers prepared as part of a planned communications strategy and no longer included in a Memorandum to Cabinet.

[37]       I find jurisdiction to review the decision of the PCO that the documents at issue fall within paragraphs 69(1)(a) and (e) of the Access Act, and to review the issuance of the certificate by the Clerk of the PCO under paragraphs 39(2)(a) and (e) of the Canada Evidence Act, on the basis that the information withheld may fall within the exception provided for in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act.

[38]       I make this finding without having seen the documents. The parties in this case agreed that this Court does not have jurisdiction to review the four documents at issue. This Court must have jurisdiction, however, to review a decision to withhold information which may fall within the exception provided for in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act. In my view, the Court cannot ignore evidence that points to the existence of information containing background explanations, analysis of problems or policy options contained within the four documents declared to be Cabinet confidences.

[39]       The next question to consider is what is the proper standard of review? This is a case in which little judicial deference should be given to the decision of the PCO based on a number of factors. First, the question to be determined in this case is a question of law, specifically, what is the proper meaning of a "discussion paper" as found in paragraph 69(1)(b) of the Access Act? Generally speaking, questions of law point towards a less deferential standard of review. Second, the purpose of the Access Act, which is to provide the public with greater access to government documents, is another factor which has led this Court to support a less deferential standard of review in such cases. Mr. Justice Evans in Canadian Council of Christian Charities v. Minister of Finance^[20]held:

                               Heads of government institutions are apt to equate the public interest with the reasons for not disclosing information, and thus to interpret and apply the Act in a manner that gives maximum protection from disclosure for information in their possession. Accordingly, there is no room for the kind of judicial deference to the Minister's interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the minister, the power to determine whether information should be disclosed...

Based on the above reasoning, it is therefore my opinion that the standard of review to apply in this case is correctness. Having determined the applicable standard of review, I will now proceed to assess the two issues I have previously outlined.

Did the PCO and the Minister of Environment err in their decision that the documents at issue fall within paragraphs 69(1)(a) and (e) of the Access Act?

[40]       In order to determine the proper meaning of "discussion paper" as described in paragraphs 69(1)(b) and 69(3)(b) of the Access Act, a detailed review of the history of the meaning of a "discussion paper" will be examined. When the Access Act was passed in 1982, a drafter's manual was prepared for government officials. This manual was to serve as a guideline on the preparation of Cabinet papers. The manual described "discussion papers" as follows:

                               Normally a department or agency wishing to initiate a policy proposal will begin with the preparation of a Discussion Paper. That paper will describe the problem or issue and, where relevant, contain a full discussion of the alternatives for dealing with it. It will not contain recommendations or the political or other sensitive considerations and argumentation bearing on or leading to them. (p.3-4)

                               The purpose of the discussion paper is to present a thorough discussion of the issue and the alternatives for dealing with it. The originating minister's conclusion about what needs to be done, his reasons for reaching that conclusion, and any specific recommendations that might flow from it are to be presented in the separate Memorandum to Cabinet. However, it is good form to close the discussion paper with a recapitulation of the main points and, where applicable, a statement of the decision required. (p.37-38)

[41]       Almost immediately following the passage of the Access Act the Cabinet Paper System was changed in such a manner which in effect rendered the exception for "discussion papers" obsolete. The Cabinet Paper System was studied by the Official of the PCO in 1983, who recommended that supporting background information and analysis be put in appendices to the Memorandum to Cabinet, and that "discussion papers" only be produced when departments intend to release them as part of a planned communications strategy.

[42]       The Cabinet Paper System recommended by the Official of the PCO was adopted in 1984. The result was that the information formally found in "discussion papers" was moved to the Memorandum to Cabinet and the meaning of a "discussion paper" became a paper prepared by a department with the intention of publishing the paper as part of a planned communications strategy. This meaning remains in place today. It is important to note that there is no mention of a "planned communications strategy" in theAccess Act itself, and clearly this meaning is not consistent with the purpose of the Act which is to expand public access to government information.

[43]       The Cabinet Paper System changed slightly in 1986 in order to allow the Auditor General to have access to portions of the Memorandum to Cabinet to fulfill his requirements. Drafters of the Memorandum to Cabinet were henceforth directed by the PCO to divide the Memorandum to Cabinet into two sections, the "recommendations" section and the "analysis" section. The Drafting Guide for Memoranda to Cabinet which is currently in force describes the Memorandum to Cabinet as follows:

                       Every MC consists of two sections: the Ministerial Recommendations (MR); the Analysis.

                               The Ministerial Recommendations is written from and for the Minister's perspective. It is a three-page (maximum) advocacy document in which a sponsoring Minister presents Cabinet with an overview of the issue together with recommendations, their costs, the principal arguments in support of the recommendations, as well as a Synopsis of communications information. The MR should be written in concise, everyday language...

                               The Analysis provides a more detailed exploration of the issue, and unlike the MR, tends to focus on more strictly official and administrative matters. The Analysis presents a thorough, balanced and objective analysis of the background of the issue, the factors considered in arriving at the possible options described, the options, and the cost of implementing each.

The "analysis" section contains the information which was formally found in "discussion papers". The distinction between the "analysis" and "recommendations" section in the Memorandum to Cabinet is clearly stated in The Drafting Guide for Memoranda to Cabinet which even specifies the colour of paper to use in relation to each section.

[44]       The fact that the information in the former "discussion paper" has been moved to the "analysis" section of a Memorandum to Cabinet led the Information Commissioner to conclude that Ehtyl's complaint was well founded. As the Information Commissioner noted:

                               Indeed, this investigation revealed to me, in a stark and troubling way, how inconsistent the approach advocated by Environment Canada and PCO is with the stated purposes of the Act. Records came to my attention showing that officials began the effort to change the Cabinet Papers System almost immediately upon the passage of the Access to Information Act. One of the express reasons why "discussion papers" fell from favour as the vehicle for communicating background, analysis and options information to Cabinet was the passage of the Access Act. With the passage of the law, public accessibility to this type of information was no longer a matter of grace and favour–it was a right. A loss of control of this magnitude was, apparently, anathema to the public officials who controlled the Cabinet Papers System. They simply did away with "Discussion Papers" and moved the former content of Discussion Papers into other records.

[...]

                               In my view, section 69 of the Access to Information Act was based on a Cabinet Papers System where two records [MC and DP] were used to accomplish what is now accomplished in a single, two-part MC. Discussion Papers have not disappeared; rather, they have been transformed into the "analysis" section of the current MC. There is no justifiable basis for PCO's argument that, as a result of this transformation, a substantive right of access has been extinguished.

[45]       I support the findings of the Information Commissioner. Parliament intended that a certain type of information be released, and in my view, regardless of the title given to the information. If a document contains information the purpose of which is to provide background explanations, analyses of problems or policy options, Parliament meant for this information to be disclosed. This is the only interpretation of paragraphs 69(1)(b) and 69(3)(b) of the Access Act, and paragraphs 39(2)(b) and 39(4)(b) of the Canada Evidence Act, which gives those sections any meaning. Understanding the meaning of "discussion paper", as a paper produced by a department as part of a planned communications strategy, is not provided for in the Access Act. Transforming the "discussion paper" into the "analysis" section of the current Memorandum to Cabinet effectively limits access to background explanations, analysis of problems or policy options provided for in the Access Act. Such a change to the Cabinet Paper System could be viewed as an attempt to circumvent the will of Parliament.

[46]       There is evidence in this case that the Deputy Clerk of the PCO^[21] applied the wrong test in evaluating the four documents at issue. The Deputy Clerk stated in her cross-examination that whether or not a document is considered a "discussion paper" depends on whether it was prepared as part of a planned communications strategy:

                               Ce qu'on regarde c'est le fait que le document a été - avait été préparé justement pour publication, le document qui avait été préparé pour publication. Donc, le but dans lequel le document avait été préparé est très pertinent. C'est ça qu'on regarde. On ne regarde pas si ça correspond à d'autres choses.^[22]

The Deputy Clerk also stated that when considering whether a document is a Cabinet confidence, she looks to the primary purpose of the entire document:

                               Est-ce qu'il s'agit d'un document don't l'essence même, don't le but principal était d'aider à la formulation d'une décision, d'aider à la délibération des ministres?^[23]

The meaning attributed to "discussion papers" by the PCO makes it impossible for information to be considered "discussion paper" material. Applying the primary purpose test to a Memorandum to Cabinet would by necessity exempt the document for consideration as a "discussion paper", since it would always contain confidential material as well as background explanations, analyses of problems, and policy options.

[47]       In my opinion, the correct meaning of a "discussion paper" intended in paragraphs 69(1)(b) and 69(3)(b) of the Access Act is information the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions. If this information exists but is included in a Memorandum to Cabinet, the next step is to determine whether this information can be reasonably severed from the Memorandum to Cabinet pursuant to s. 25 of the Access Act. If the information can be reasonably severed, it must be released to the public. In my view, this is the appropriate meaning of "discussion papers", as contained in paragraph 69(1)(b) of the Access Act, as opposed to a "discussion papers" understood as part of a planned communications strategy. To assess the four documents in this manner is the only approach which upholds the will of Parliament stated in s. 2 and ss. 69(1) and (3) of the Act as extending the right of public access to government information.

[48]       It is also my view that Parliament did not contemplate the adoption of a mechanistic view of the word "document" in paragraph 69(1)(b) of the Access Act. In other words, Parliament did not intend that the application of paragraph 69(3)(b) be avoided by simply renaming documents. If the purpose of information in a Memorandum to Cabinet, is to provide background explanations, analyses of problems, or policy options, and that information can stand by itself, it should be severed and considered a document and released to the public pursuant to paragraph 69(3)(b) of the Access Act.

[49]       Having found that the Clerk of the PCO erred in her interpretation of "discussion papers", and having determined the standard of review to be correctness, it therefore follows that the Clerk of the PCO should re-examine the documents at issue. The Clerk of the PCO must re-examine the documents to determine whether they contain information the purpose of which is to present background explanations, analyses of problems or policy options as described in paragraph 69(1)(b) and if so, determine whether this information can be reasonably severed pursuant to s. 25 of the Act. Given that Cabinet's decision concerning MMT was made public when it introduced Bill C-94 in 1996, by operation of law the information in question will fall within the exception of paragraph 69(3)(b) of the Access Act. Therefore, the Access Act applies, and if such information can reasonably be severed pursuant to s. 25 of the Access Act, it should be severed and released to the applicant.

Did the Clerk of the PCO err in issuing a certificate pursuant to paragraphs 39(2)(a) and (e) of the Canada Evidence Act?

[50]       Given that paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act are almost identical, the same logic applies to both sections. The extrinsic evidence points to the existence of information the purpose of which is to provide background explanations, analyses of problems, or policy options within the documents at issue. Such information, therefore, cannot be withheld pursuant to ss. 39(1) of the Canada Evidence Act and should be disclosed since it is excepted pursuant to subparagraph 39(4)(b)(i) of the Act. It follows that a certificate issued under ss. 39(1) of the Canada Evidence Act cannot be invoked to withhold information that is excepted by virtue of subparagraph 39(4)(b)(i).

[51]       The respondent has pointed out that there is no provision in the Canada Evidence Act providing for the severance of this information. In my opinion, such a provision is not required. Subsection 39(1) of the Canada Evidence Act, unlike subsection 69(1) of the Access Act, clearly refers to "information":

39.(1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body. [emphasis added]

39(1) Le tribunal, l'organismes ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada. (je souligne)

By using the word "information" rather than "document" or "record", it is my view that Parliament intended that information which is considered background explanations, analyses of problems, or policy options be disclosed. Disclosure is required, notwithstanding that the information is found within or annexed to a Memorandum to Cabinet, since the information is no longer considered a "Queen's confidence" by application of subparagraph 39(4)(b)(i) of the Canada Evidence Act. Therefore, in keeping with the intention of Parliament, the Clerk is required to sever background explanations, analyses of problems, or policy options from Cabinet confidences within a Memorandum to Cabinet when such information can reasonably be severed.

[52]       The relevant paragraphs of the Clerk's certificate read as follows:

           2.             I have examined and carefully reviewed four (4) documents listed in the Schedule attached hereto for the purpose of determining whether they are or contain information constituting confidences of the Queen's Privy Council for Canada pursuant to section 39 of the Canada Evidence Act, R.S.C. 1985, C-5.

               4.             I certify to this Honourable Court pursuant to subsection 39(1) of the Canada Evidence Act R.S.C. 1985, C-5, that the documents and the answers to the questions referred to by number in the said Schedule are and would contain confidences of the Queen's Privy Council for Canada for the reasons set out in the Schedule attached hereto and I object to the disclosure of the documents and the information.

               5.             I further certify to this Honourable Court that paragraph 39(4)(a) of the Canada Evidence Act does not apply in respect of the documents and in respect of the information which would be contained in the answers to the questions listed in the attached Schedule, as the documents and the information were not and would not have been in existence for more than twenty years and that paragraph 39(4)(b) of the said Act does not apply in respect of the documents and the information which would be contained in the answers.

In paragraph 5 of the Clerk's certificate, the Clerk certifies that "paragraph 39(4)(a) of the Canada Evidence Act does not apply in respect of the documents...and that paragraph 39(4)(b) of the said Act does not apply in respect of the documents...".   

[53]       The Clerk's certificate indicates that the Clerk examined the "documents" to determine whether they fall within paragraphs 39(2)(a) to (f) or paragraph 39(4)(b). As discussed, the question should be whether information within a document that falls within paragraphs 39(2)(a) to (f), also falls within paragraph 39(4)(b). If so, the next question is whether that information can be reasonably severed from the document. If both these questions are answered in the affirmative, then that information must be severed from the Cabinet confidence and released to the public. In my view, the Clerk made a reviewable error by not applying the above test, that is, by not considering whether the information in the documents is within the exception in paragraph 39(4)(b) of the Canada Evidence Act. For these reasons, I will order that the certificate be sent back to the Clerk for reconsideration.

[54]       Parliament intended that background explanations, analyses of problems, or policy options be made public after the decisions to which that information relates are made public or after four years has elapsed. To interpret paragraph 69(3)(b) of the Access Act or paragraph 39(4)(b) of the Canada Evidence Act narrowly and accept that since no documents are entitled "discussion papers" then background explanations, analyses of problems, or policy options cannot be released would be to give no meaning at all to these provisions.

[55]       Being the master of its own economy, Cabinet is free to use whatever Cabinet Paper System it chooses and is equally at liberty to modify its paper system at will to fit the practical reality of the day. But such liberty cannot extend to a paper system that, in my view, results in a circumvention of the intent of Parliament, namely the elimination of "discussion papers" as a document only to include similar background information in another part of the Memorandum to Cabinet and thereby prevent its release as required by law and in accordance with paragraph 69(3)(b) of the Access Act or paragraph 39(4)(b) of the Canada Evidence Act. If such an outcome were desired, then the statutes must be amended.

[56]       Reading paragraph 69(3)(b) in the ordinary sense, in context with the entire Act, in harmony with the purpose of the Act, and in keeping the intention of Parliament, this Court holds that information in a Memorandum to Cabinet, the purpose of which is to present background information, analyses of problems or policy options as described in paragraph 69(1)(b), which can be reasonably severed pursuant to s. 25 of the Act, and which meets the other requirements in paragraph 69(3)(b), must be released to the requirant. This interpretation also applies to paragraph 39(4)(b) of the Canada Evidence Act.

[57]       For the foregoing reasons, the application for judicial review will be allowed with costs.

                                                                       ORDER

           1.         This application for judicial review is allowed with costs.

           2.         The four documents which both the Minister and the Privy Council Office determined as Cabinet confidences are to be returned for review by the Clerk of the Privy Council to determine:

                       (a)        Whether the documents contain background explanations, analysis of problems or policy options that can be reasonably severed from the documents pursuant to s. 25 of the Access Act.

                       (b)        If such information is deemed severable by the Clerk of the Privy Council Office, it is hereby ordered released to the requirant.

                                                                                                                        "Edmond P. Blanchard"                 

                                                                                                                                                   Judge