Supreme Court ruling will clarify government’s right to keep Canadians in the dark

Kirk Makin — Justice reporter

From Thursday's Globe and Mail

The power of top elected officials to withhold documents from public scrutiny hangs in the balance as the Supreme Court of Canada hears a crucial appeal involving access to sensitive information.

Thursday’s case is the final skirmish in a 10-year tug-of-war between Ottawa and the Information Commissioner of Canada over what level of accountability top government offices owe to the public.

Several media groups have joined the fray, arguing that successive federal governments’ penchant for suppressing information has made Canada fall out of step with most other democracies and with international law.

The Harper government – which picked up the litigation from where its predecessor Liberal government left off in 2006 – is already feeling intense pressure over its purportedly secretive ways.

Four separate access-to-information requests by opposition politicians and members of the media are at the heart of the appeal. They sought minutes, agendas, e-mails and Daytimers that related largely to prime minister Jean Chrétien’s use of government aircraft, and to high-level defence meetings.

At the time, the media were doggedly pursuing questions about the Afghan war and Mr. Chrétien’s truthfulness about his whereabouts on particular days. When the requests were turned down, they and the opposition appealed to the Information Commissioner.

Federal lawyers have consistently asserted that the documents were personal to Mr. Chrétien or other ministers, and must therefore remain confidential.

“The nature of the minister’s office is such that it needs to be a ‘private office’ to allow for advice to the minister on a range of activities, many of which have political overtones or dimensions,” said a federal legal brief to the Supreme Court.

It warns that top ministers cannot operate effectively if they must live in fear of seeing sensitive documents placed in the hands of outsiders.

However, the Information Commissioner argues that a democracy cannot function properly when senior elected officials are permitted to conceal documents they view as embarrassing or their personal property.

In a brief to the court, a lawyer for the Information Commissioner warned that a decision in favour of the government would give officials carte blanche to channel sensitive documents into ministerial offices, effectively making them impregnable.

The lawyer, Marlys Edwardh, said on Wednesday that the case looms as a historic test of the public’s right to know the activities of the government it elects.

“It is the result of a costly and prolonged legal battle that commenced a decade ago,” Ms. Edwardh said in an interview. “It will determine if the access laws of Canada extend to the highest levels of the executive branch, or if such records are immune from access.”

Her view is supported by several media intervenors who intend to argue that accessible information has played a vital role in exposing innumerable instances of government wrongdoing.

Debate between the two sides has been heated. At one point several years ago, the commissioner said the government was being unco-operative and issued subpoenas to senior departmental staff and former ministers ordering them to search more diligently for specific documents.

For their part, government lawyers refer to the commissioner in their brief as “misguided” and unwilling to heed evidence obtained from her own experts.

Paul Schabas, a lawyer for the press intervenors, said that the courts in numerous democracies and international organizations have asserted the necessity of access to information as a fundamental democratic right.

“Canada has relinquished its early leadership in the field,” Mr. Schabas said. “If the lower courts’ decisions are permitted to stand, Canada will be an outlier in holding that the geographic location of records in minister’s departmental offices – rather than their content – determines the public’s access to them.”

The key to the case is whether the office of the prime minister or a cabinet minister can be considered a “government institution” for the purposes of applying the Access to Information Act.

The government argues that documents held in ministerial offices are not meant to be subjected to the same public scrutiny as those kept in government departments, and that ministerial offices are separate from the department over which a minister presides.

When the requests were made, opposition parties in Parliament had alleged that Mr. Chrétien arranged private health care in the United States for a family member and used the military to cover up the trip. They claimed that he was visiting a health-care clinic in Minnesota when he missed the February, 1999, funeral of King Hussein of Jordan.

Records from former Liberal transport minister David Collenette and former defence minister Art Eggleton are also part of the case.

The requesters hoped to show that Mr. Eggleton misled Parliament over the capture by Canadian Forces soldiers of Taliban fighters in Afghanistan.

At trial, Federal Court Judge Michael Kelen sided with the government. “If Parliament wants the PM’s agendas open to the public, Parliament must amend the Access Act in such a way as to make this possible,” he said.





Commentary by the


8:56 AM on October 7, 2010


The "Use of Government Aircraft" is a classic.
During some times, like Saturday morning,
The Government fleet is so busy that it
actually has more take off's and landings than
than all the commercial airlines combined.

There is no web site that shows which minister used what aircraft
for what purpose.

If the government, no matter which one we have in power, really
believed in accountability, those details would be public.

Regardless of Political Party, once in power, the use of Government Jets
becomes an addiction, as does the ability to bypass Canada Customs
and any MP, especially a prime minister can unload a virtual free cargo plane
full of gifts and purchases.

Brian Mullroney was famous for having his Government Airbus backed into
the hanger with one or more very long Uhaul trucks that would be loaded
to the gills with apparently undeclared gifts and purchases without a
Canada Customs agent in sight.

And that's what we know about, which means its
most probably just the tip of an iceberg.

The bottom line is, that RCMP provided security, one or more officers
knew what was going on and did not have the courage to rat on Brian Mullroney.
It appears that the RCMP officers are intimidated by the possible vengeful acts
of a rated on MP or prime minister.

Canada still has a corrupt government mentality that rivals banana republics.