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Information Commissioner v. Canada

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    May 13, 2011
  • Outcome
    Other
  • Case Number
    2011 SCC 25
  • Region & Country
    Canada, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Administrative Law, Constitutional Law
  • Themes
    Access to Public Information, Political Expression
  • Tags
    Right to Information

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Case Analysis

Case Summary and Outcome

The Supreme Court of Canada combined issues from four lower federal court appeals primarily regarding the meaning of the terms “government institution” and “control” within Canada’s Access to Information Act. The Court found that the offices of ministers and the Prime Minister’s office are distinct entities from the government departments over which the offices preside, and therefore, they are not “government institution[s]” within the meaning of the Act. However, the Court further found that government institutions can have “control” over documents produced in the offices of ministers so long as (1) “the contents of the records relate to a departmental matter,” and (2) “the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain copies to deal with that subject matter.”


Facts

In 2008, Canada’s Information Commissioner (Commissioner) brought four actions to compel the release of certain documents from the Prime Minister’s office and the Minister of Defense under the Access to Information Act (the Act). In the first three cases (requesting information from the Prime Minister), the Commissioner asked the Federal Courts to determine the meaning of “under the control” within the Act. In the fourth case, the Commissioner asked the Court to determine whether the offices of the Prime Minister and the Minister of Defense could be considered “government institutions” within the meaning of the Act. The Supreme Court consolidated the cases and decided the two issues.

 


Decision Overview

The Commissioner asked the Supreme Court of Canada to decide two issues: (1) whether the offices of the Prime Minister and the offices of other ministers (e.g. the Minister of Defense) could be considered “government institutions” within the meaning of the Act, and (2) whether documents produced in the offices of ministers, regardless of whether the offices themselves could be considered “government institutions,” could be considered “under the control” of government institutions within the meaning of the Act.

As to the first issue, the Court found that the offices of ministers could not be considered “government institutions” within the meaning of the Act. The Court reasoned that, although the Prime Minister and other ministers oversee the operations of the institutions, which could be considered “government institutions,” the offices of ministers are separate and distinct offices from the institutions that ministers oversee.

As to the second issue (the meaning of “under the control” within the Act), the Court considered a long line of Canadian jurisprudence, and concluded that the meaning of “control” hinged on whether (1) “the contents of the records relate to a departmental matter,” and (2) “the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain copies to deal with that subject matter.” The Court concluded that some, not all, of the documents requested by the Commissioner met these two criteria, and accordingly, the Court ordered the disclosure of only the documents that satisfied the Court’s new “control” test for the Act.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Canadian Supreme Court set out a new test for whether a document is under the control of a government institution with the meaning of the Access to Information Act. In doing so, the Court found that the offices of Ministers are not “government institutions” within the meaning of the Act, which restricts access to the documents produced in those offices, and in turn, restricts expression. However, the Court also found that documents produced in those offices can be considered “under the control” of government institutions if they meet the Court’s test. This may be considered an expansion on access to information, and in turn, an expansion of the freedom of expression.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Canada is a common law country. In considering issues that arise under the Access to Information Act, Canada’s lower courts will be bound to apply the Supreme Court’s new “control” test set out in this decision.

The decision was cited in:

Official Case Documents

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