Administrative Law – Access to Information – Judicial review – Ministerial – Statutory interpretation
Canada (Information Commissioner) v. Canada (Minister of National Defence),  S.C.J. No. 25, 2011 SCC 25, Supreme Court of Canada, May 13, 2011, McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
The appellant, the Information Commissioner of Canada, sought judicial review of the refusal of the office of the Prime Minister, the office of the Minister of National Defence, and the office of the Minister of Transport to disclose records to a person who requested them under the Access to Information Act, R.S.C. 1985, c. A-1. The requested records consisted of agendas, notes and emails relating to the activities of then-Prime Minister Jean Chretien, then-Minister of National Defence Art Eggleton, and then-Minister of Transport David Collenette.
Section 4 of the Access to Information Act provides that a requester has the right to be given access to “any record under the control of a government institution”. Although Schedule I to the Act clearly provides that a “government institution” includes the Privy Council Office, the Prime Minister’s office, the office of the Minister of National Defence, and the office of the Minister of Transport are not expressly listed in Schedule I, the Department of National Defence, and the Department of Transport. The record holders argued that the term “government institution” did not include the office of the Minister who presides over it.
According to the Court, the question under consideration was whether Parliament intended to implicitly include ministerial offices within the purview of the Access to Information Act. This is a matter of statutory interpretation.
The appellant’s arguments were grounded primarily in broad principles of constitutional law, political theory, democratic accountability, and ministerial responsibility. In particular, the appellant argued that the right of access created by the Access to Information Act was meant to function as a mechanism to ensure accountability for the exercise of executive power and, from a policy perspective, the Prime Minister’s office, the office of the Minister of National Defence, and the office of the Minister of Transport should be captured by the term “”government institution”. The appellant advocated a “function-based analysis” which would create a dividing line between a Minister’s department functions on the one hand and non-departmental functions on the other side.
The Court rejected the appellant’s argument, stating that the proper approach is one of statutory interpretation and that the fundamental difficulty with the appellant’s approach is that it avoids any direct reference to the legislative provision at issue. The Court noted that it cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted.
The Court upheld the trial court’s analysis, which considered evidence from political scientists, Hansard, and other tools of statutory interpretation in order to determine that the definition of “government institution” does not include ministerial offices.
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