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Document
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PO-1678
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File #
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PA-980207-1
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Institution/HIC
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Management Board Secretariat
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Summary
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NATURE OF THE APPEAL:
Management Board of Cabinet (MBC) received a request from the Ontario Federation of Justices of
the Peace Associations for all documents relating to the Report of the Ontario Justice of the Peace
Remuneration Commission, 1995 (the Report). The request identified specific types of records
being sought, and made it clear that any and all records dealing with MBC=s consideration, analysis
and response to the Report fell within the scope of the request.
Management Board Secretariat (MBS) identified 49 records (totalling approximately 300 pages)
responsive to the request. MBS denied access to all records in their entirety, claiming they fell
outside the scope of the Act pursuant to section 65(6)3.
The requester (now the appellant) appealed this decision and Appeal P-9700368 was opened.
After considering representations from the parties, and reviewing the records, I issued Order P-1563,
in which I found that section 65(6)3 did not apply, and that the records were within the jurisdiction
of the Act. I ordered MBS to provide the appellant with a decision letter, in accordance with the
provisions of section 29 of the Act.
Shortly after I issued Order P-1563, MBC applied to the Divisional Court for a judicial review of my
order. MBS also asked me to stay the provisions of Order P-1563 pending the final disposition of
the application for judicial review. After receiving representations from the parties, I denied the
request for a stay, and required MBS to comply with the provisions of the order. In my decision, I
stated:
If an order for disclosure of records were made at the end of any appeal process,
[MBS] could seek a stay of such order at that time, pending the hearing of any
application for judicial review on jurisdictional grounds or on the merits of such a
decision.
MBS then provided the appellant with an access decision. No exemptions were claimed for Records
8, 20, 23-26, 28-39 and 40. MBS made the following statement with respect to these records
Given the decision regarding the stay of Order P-1563 ..., the records for which no
exemptions are claimed are being withheld pending a determination by the
Divisional Court on judicial review.
MBS denied access to the remainder of the records pursuant to sections 12(1), 13(1), 18(1)(c) and
(d), and/or 19 of the Act.
The appellant appealed this decision.
I sent a Notice of Inquiry to MBS and the appellant, and received representations from both parties.
In its representations, MBS for the first time claimed section 12(1) of the Act as the basis for
denying access to Records 22, 30 and 39. Because section 12(1) is a mandatory exemption, I will
[IPC Order PO-1678/May 12, 1999]
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consider its application to these three records, as well as the other records previously withheld on the
basis of section 12(1).
The records to which access has been denied consist of briefing notes, a House Book note,
Management Board submissions, correspondence, internal memoranda, analysis material, and
facsimiles.
PRELIMINARY MATTERS:
Records for which MBS is claiming no exemptions
The appellant submits that because I refused to stay Order P-1563, he should be provided with
immediate access to any records for which no exemption is claimed. In the appellant=s view, Order
P-1563 determined that the Act applies to all responsive records, and that there is no basis for
denying access in the absence of an exemption claim, or in situations where I determine that a record
does not qualify for exemption.
I disagree with the appellant=s position. Passages from the letter I sent to the parties when I denied
MBS=s request for a stay of Order P-1563 make my position on this issue clear:
If [MBS] decides that no exemptions apply to any particular records, [Order P-1563]
[does] not provide that these records must be disclosed to the appellant; they simply
require any such decisions to be identified in the decision letters. I acknowledge that
institutions in issuing decision letters would normally disclose records for which no
exemption is claimed. However, the existence of an ongoing judicial review on a
jurisdictional issue takes these cases outside the norm. If the appellant is advised
that no exemption claims are made for specific records, there is nothing to prevent
him from seeking an order from this agency for their disclosure before the judicial
review applications have been heard and disposed of by the courts. If this were to
occur, the IPC would have to take into account the status of the judicial review
proceedings before disposing of any such appeal or making any order for disclosure.
...
If [MBS], or the appellant for that matter, wish to challenge in the courts an order of
this Office on the merits of such an appeal, they may do so without prejudice to
[MBS=s] right to continue with the jurisdictional challenge at the same time. If an
order for disclosure of records were made at the end of any appeal process, [MBS]
could seek a stay of such order at that time, pending the hearing of any application
for judicial review on jurisdictional grounds or on the merits of such a decision.
I will take into account the status of MBC=s judicial review application in determining the
appropriate order provision for records which are not subject to any exemption claims, as well as any
records I find do not qualify for exemption.
Adequacy of the MBS=s decision letter
[IPC Order PO-1678/May 12, 1999]
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The appellant complains that MBS=s decision letter was inadequate in that it failed to provide any
reasons for denying access to the requested information, pursuant to section 29(1)(b)(ii) of the Act.
In the appellant=s view, the decision letter did not include a general description of the records and,
as a result, the appellant argues that it is Aimpossible to make full submissions on the bona fides of
the exemptions claimed by the Government.@
MBS=s decision letter provides a general description of the type of records subject to each
exemption claim, together with an index that sets out a brief description of each individual record
and the specific exemptions claimed for each. In my view, MBS=s decision letter satisfies the
requirements of section 29(1)(b)(ii), and I find that the appellant has been provided with sufficient
information to enable him to address the issues in this appeal. It should also be noted that the two
Notices of Inquiry provided to the appellant also describe the records and explain the exemptions
claimed by MBS.
DISCUSSION:
CABINET RECORDS
MBS claims that Records 1-7, 9-19, 21-22, 30, 39 and 41-49 are exempt from disclosure by virtue of
the introductory wording of section 12(1) and/or sections 12(1)(a), (b), (c) and (e) of the Act. These
sections read as follows:
A head shall refuse to disclose a record where the disclosure would reveal the
substance of deliberations of the Executive Council or its committees, including,
(a) an agenda, minute or other record of the deliberations
or decisions of the Executive Council or its
committees;
(b) a record containing policy options or
recommendations submitted, or prepared for
submission, to the Executive Council or its
committees;
(c) a record that does not contain policy options or
recommendations referred to in clause (b) and that
does contain background explanations or analyses of
problems submitted, or prepared for submission, to
the Executive Council or its committees for their
consideration in making decisions, before those
decisions are made and implemented;
(e) a record prepared to brief a minister of the Crown in
relation to matters that are before or are proposed to
[IPC Order PO-1678/May 12, 1999]
4
be brought before the Executive Council or its
committees, or are the subject of consultations among
ministers relating to government decisions or the
formulation of government policy;
By way of background, MBS explains that after the Report was issued, Management Board of
Cabinet, a committee of Executive Council (Cabinet) considered the remuneration issue for justices
of the peace. Cabinet also dealt with the issue after each time it was considered by MBC. MBS
states that Cabinet made it=s final decision on the remuneration issue in December 1997, and this
decision was announced in January 1998.
The appellant submits that:
... it should be noted that where section 12 is used to justify non-disclosure in this
case, it must be interpreted strictly and the Government=s burden to demonstrate the
applicability of the exemption, can only be satisfied if the disclosure of the document
in question would cause serious harm. This strict interpretation is mandated by the
guarantee of judicial independence provided for in section 11(d) of the Charter [of
Rights and Freedoms] as the records in question deal with the Government=s
decisions respecting the remuneration and financial security of the Justices of the
Peace.
It should be noted that the appellant did not include section 12 within the scope of the Notice of
Constitutional Question filed in the context of this appeal.
The appellant adds that MBS is precluded in this case from relying on subsections 12(1)(c) and (e),
because Cabinet has already made a decision on the issues which are the subject matter of the
records.
Previous orders have held that section 12(1)(c) (Orders P-60, P-323 and P-1623) and section
12(1)(e) (Orders P-22, P-40, P-946 and P-1182) are both prospective in nature. The use of the
present tense in these sections preclude their application to matters that have already been
considered by the Cabinet or its committees. MBS acknowledges that the subject matter of the
records for which these exemptions have been claimed was considered by Cabinet which
Aultimately made its decision on the remuneration of justices of the peace in December 1997, and
the decision was announced in January 1998". Therefore, because the subject matter of these
records has already been presented to and discussed by Cabinet or one of its committees, I find that
sections 12(1)(c) and (e) do not apply.
However, it has been determined in a number of previous orders that the use of the term Aincluding@
in the introductory wording of section 12(1) means that the disclosure of any record which would
reveal the substance of deliberations of Cabinet or its committees (not just the types of records
enumerated in the various subparagraphs of section 12(1)), qualifies for exemption under section
12(1). It is also possible that a record which has never been placed before Cabinet or its committees
may qualify for exemption under the introductory wording of section 12(1). This result will occur
[IPC Order PO-1678/May 12, 1999]
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where an institution establishes that the disclosure of the record would reveal the substance of
deliberations of Cabinet or its committees, or that its release would permit the drawing of accurate
inferences with respect to the deliberations of Cabinet or its committees.
Records 2 (with the exception of the first page), 6, 46 and 47 are all MBC briefing notes that were
provided to members of MBS as part of their meeting materials. MBS explains that these records
contain a list of the items that were being considered, recommendations of MBS staff, as well as
analyses, options and other comments and recommendations. MBS further submits that Records 1
and 43, which are virtually identical to each other, are also briefing notes, dated 1995, the contents
of which were reproduced in Records 2, 6, 46 and 47. The first page of Record 2 and Records 4, 5
and 42 are MBC minutes. Record 31 is a memorandum from the Deputy Minister=s Executive
Assistant to the Agenda Secretary of the Executive Council Office, identifying an item to be
considered by Cabinet at its December 13, 1995 meeting. MBS submits that disclosure of these
records would reveal the substance of deliberations of MBC, a committee of Cabinet.
Records 2, 4, 5, 6, 42, 45, 46 and 47 are all clearly identified as records used during the deliberation
and decision-making process of MBC. The content of Records 1 and 43 can be similarly
characterized, and Record 31 contains information which reflects the deliberations of MBC. In my
view, the contents of these records relates directly to the issues considered and discussed by MBC,
and I find that their disclosure would clearly reveal the substance of deliberations of MBC.
Accordingly, these records are exempt under the introductory wording of section 12(1). I also find
that the first page of Record 2 and Records 4, 5 and 42 qualify for exemption under section 12(1)(a).
MBS explains that Records 3, 7, 9-19, 32-38, 41, 45 and 49 are reports and analyses that were used
by MBS staff in analysing the Report and formulating options for the government=s response.
Specifically, MBS states that these records were prepared by MBS in order to develop portions of
Records 2, 4, 5, 42, 46 and 47, the actual Cabinet records.
Records 21, 22 and 44 are described by MBS as communication strategies that were prepared for
Cabinet=s consideration in December 1997 (Record 44) and December 1995 (Records 21 and 22)
regarding the issue of the remuneration of justices of the peace. Record 48 is a more detailed
version of Record 44 and is in tabular form.
Record 30 is an unsigned draft letter from the Chair of MBC to the Chair of the Remuneration
Commission, with handwritten notations made by MBS staff. The final version of this letter is
Record 29, for which no exemptions have been claimed. MBS explains that this record contains an
incorrect reference to the fact that Cabinet made a decision on a particular issue when, in fact, no
such decision had been made.
The Ministry argues that Records 3, 7, 9-19, 21, 22, 30, 32-38, 41, 44, 45, 48 and 49 all deal with
matters that were ultimately considered by Cabinet, and their disclosure would either reveal the
substance of the deliberations of Cabinet or permit the drawing of accurate inferences regarding the
substances of these deliberations.
[IPC Order PO-1678/May 12, 1999]
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It is clear from my review of the records and MBS=s representations that MBC and Cabinet
considered matters relating to the Report and issues stemming from the Report in considerable detail
and on a number of occasions during 1997. Having considered the context in which Records 3, 7,
9-19, 21, 22, 30, 32-38, 41, 44, 45, 48 and 49 were created, and the explanations offered by MBS, I
find that these records all relate to this subject matter and, in my view, with the exception of Record
30 and the first four pages of Record 22, disclosure of the contents of these records would reveal the
substance of deliberations of Cabinet and/or MBC. Therefore, I find that these records, with the
exception of Record 30 and the first four pages of Record 22, all qualify for exemption under the
introductory wording of section 12(1).
As far as Record 30 is concerned, I do not accept MBS=s position that disclosure of a description of
activities that did not take place at a Cabinet meeting can reveal the substances of deliberations of
Cabinet or permit the drawing of accurate inferences regarding the substance of any deliberations.
Accordingly, I find that Record 30 does not qualify for exemption under section 12(1) of the Act.
Record 22 consists of a fax transmittal sheet, a three-page House Book note, a five-page
communications strategy, and one page of related handwritten notes. The fax transmittal sheet
contains no substantive information and does not meet the requirements for exemption under section
12(1). The House Book note consists primarily of factual information about the Remuneration
Commission and its mandate, background information and suggested responses by the Attorney
General, commonly found in House Book notes. In my view, disclosure of these three pages, with
the exception of one paragraph at the top of the third page, would not reveal the substance of
deliberations of Cabinet and/or MBC, and I find that they are not exempt under the introductory
wording of section 12(1). Conversely, for the same reasons outlined above for Records 3, 7, etc., I
find that disclosure of the one paragraph on the third page of the House Book note portion of Record
22 would reveal the substance of deliberations of Cabinet and/or MBC, and it qualifies for
exemption under the introductory wording of section 12(1).
Record 39 is also a House Book note. MBS states that information contained in the Background
section of this record relates directly to the substance of Cabinet deliberations on the issue of
remuneration of justices of the peace. Having carefully reviewed the contents of this record, I find
that none of it deals with the substance of deliberations of Cabinet and/or MBC. It consists of
factual information about the Remuneration Commission and its mandate and, in my view, I find
that its disclosure would neither reveal the substance of deliberations of Cabinet nor permit the
drawing of accurate inferences regarding the substance of these deliberations. Therefore, Record 39
does not qualify for exemption under section 12(1).
ADVICE OR RECOMMENDATIONS
The records remaining at issue for which MBS has claimed exemption under section 13(1) are
Records 27, 30, 39 and the first four pages of Record 22.
Section 13(1) of the Act states:
[IPC Order PO-1678/May 12, 1999]
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A head may refuse to disclose a record where the disclosure would reveal advice or
recommendations of a public servant, any other person employed in the service of an
institution or a consultant retained by an institution.
This exemption is subject to the exceptions listed in section 13(2).
It has been established in a number of previous orders that advice or recommendations for the
purpose of section 13(1) must contain more than mere information. To qualify as Aadvice@ or
Arecommendations@, the information contained in the records must relate to a suggested course of
action, which will ultimately be accepted or rejected by its recipient during the deliberative process.
Information that would permit the drawing of accurate inferences as to the nature of the actual
advice and recommendation given also qualifies for exemption under section 13(1).
In Order 94, former Commissioner Sidney B. Linden commented on the scope of this exemption.
He stated that it A... purports to protect the free-flow of advice and recommendations within the
deliberative process of government decision-making and policy-making@.
Record 27 is a Acorrespondence briefing note@ prepared by MBS staff for the Chair of MBC dealing
with a letter sent by the Chair to the Chair of the Remuneration Commission (Record 28). No
exemption claims have been made by MBS for Record 28. MBS submits that Record 27 contains
advice or recommendations Ain respect of the content of ministerial correspondence@. Having
reviewed this record, I find that it contains what is essentially factual information, with the exception
of two sentences that can accurately be characterized as advice to the Chair in dealing with a
particular aspect of the justices of the peace remuneration issue. I find that these two sentences
qualify for exemption under section 13(1), but the rest of Record 27 does not.
As described earlier, Record 30 is an earlier draft of Record 29, with handwritten notations made by
MBS staff. No exemptions have been claimed for Record 29. MBS states that the draft provides
advice and recommendations Ain the form of alternate versions of content to be included in
ministerial correspondence.@ I have reviewed the draft and final versions of this letter, and I accept
that the final two paragraphs of the draft letter in Record 30, as well as the handwritten notations on
both pages of this record, are accurately characterized as advice or recommendations for the
purposes of section 13(1), and that this information qualifies for exemption under this section. The
rest of Record 30, which is identical to the corresponding portions of Record 29, does not satisfy the
requirements for exemption under section 13(1).
Record 39 and the remaining portions of Record 22 are AHouse Book notes@. Record 22 appears to
have been prepared for the Attorney General. Although MBS does not explain who prepared Record
39, it seems most likely that it was prepared by MBS staff in order to assist the Chair of MBC in
responding if asked particular questions in the Legislature on the issue of justice of the peace
remuneration. I accept that the AResponse@ sections of these records contain information provided
by staff as to the manner in which the Ministers should respond to questions on this issue. However,
in my view, these records do not contain Aadvice@ or Arecommendations@ in the sense contemplated
by section 13(1). The information is provided to the Ministers for the specific purpose of making it
available to the public if called upon to do so as part of open legislative debate. For this reason, I
[IPC Order PO-1678/May 12, 1999]
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find that the AResponse@ portion of Records 22 and 39 would not reveal advice or recommendations
of a public servant and, accordingly, it does not qualify for exemption under section 13(1) of the
Act. The remaining portions of Record 39 and the House Book note portion of Record 22, with the
exception of the one paragraph which has been exempt under section 12(1), consist of factual
information which also fails to meet the requirements for exemption under section 13(1).
No other discretionary exemptions have been claimed for Records 27 and 39 or the portions of
Records 30 and 22 which I have found do not qualify for exemption under section 13(1). Therefore,
they should be disclosed to the appellant, subject to the severance of the information which I found
to be exemption under sections 12(1) or 13(1). My order for disclosure of these records will be
stayed pending the disposition by the court of the judicial review application regarding the
jurisdictional issue in this matter.
Because of the manner in which I have disposed of the issues in this appeal, it is not necessary for
me to consider the application of sections 18(1)(c) and (d) and 19.
COMPELLING PUBLIC INTEREST
In its representations, the appellant claims that the Apublic interest override@ in section 23 of the Act
applies in this case. This section states:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21
does not apply where a compelling public interest in the disclosure of the record
clearly outweighs the purpose of the exemption. [emphasis added]
Section 12 is not subject to section 23. Therefore, the only records which qualify for consideration
under section 23 are the two sentences in Record 27, and the final two paragraphs of the draft letter
and the handwritten notations in Record 30.
It has been established in a number of orders that in order for section 23 to apply, two requirements
must be met. First, there must exist a compelling public interest in the disclosure of the records.
Second, this interest must clearly outweigh the purpose of the exemption [Order P-1398, upheld on
judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy
Commissioner), [1998] O.J. No. 420, 107 O.A.C. 341, 5 Admin. L.R. (3d) 175 (Div. Ct.), reversed
(January 27, 1999), Docs. C29916, C29917 (C.A.)].
In Order P-984, Adjudicator Holly Big Canoe described the criteria for the first requirement
mentioned in the preceding paragraph, as follows:
In order to find that there is a compelling public interest in disclosure, the
information contained in a record must serve the purpose of informing the citizenry
about the activities of their government, adding in some way to the information the
public has to make effective use of the means of expressing public opinion or to
make political choices.
[IPC Order PO-1678/May 12, 1999]
9
If a compelling public interest is established, it must then be balanced against the purpose of any
exemptions which have been found to apply, in this case, section 13(1). Section 23 recognizes that
each of the exemptions listed, while serving to protect valid interests, must yield on occasion to the
public interest in access to information which has been requested. An important consideration in
this balance is the extent to which denying access to the information is consistent with the purpose
of the exemption (Order P-1398).
I agree with these approaches to the analysis under section 23.
The appellant=s representations deal with the application of section 23 of the Act to both sections
13(1) and 18(1). Section 18(1) is no longer at issue. The appellant points to the Supreme Court of
Canada decision in Manitoba Provincial Judge=s Assn. v. Manitoba (Minister of Justice) (1997),
150 D.L.R. (4th) 577, and submits that:
... the Supreme Court of Canada has outlined, not only a compelling public interest
but a constitutionally protected right of the public to scrutinize decisions regarding
the remuneration of judicial officers. Disclosure of the records is necessary to ensure
the public=s ability to monitor the judicial independence guaranteed by section 11(d)
of the Charter. This protection of the public=s right far outweighs the negligible, if
even existent, potential that disclosure will interfere with the Government=s
convenience in managing the economy. The Government, therefore, improperly
exercised its discretion under sections 13 and 18 by failing to disclosure the
documents in this case where the public interest and the Charter clearly mandated
disclosure of the documents and where there is no counterbalancing public interest in
the non-disclosure of the documents. (emphasis in original)
The appellant=s position with respect to the application of the Canadian Charter of Rights and
Freedoms will be addressed later in this order.
As far as the section 23 issue is concerned, I am not persuaded that there is a compelling public
interest in the disclosure of these two specific records, nor that any public interest that does exist is
sufficient to clearly outweigh the purpose of the section 13(1) exemption claim. As described
earlier, the information exempt under section 13(1) consists of two sentences in a correspondence
briefing note, and two paragraphs and handwritten notations in a draft letter from the Chair of MBC
to the Chair of the Remuneration Commission. In my view, the disclosure of this information would
not add significantly to the information that will be made available to the appellant by the disclosure
of other records. Accordingly, I find that there is no compelling public interest in the disclosure of
the two sentences in Record 27 and the final two paragraphs of the draft letter and the handwritten
notations in Record 30.
Therefore, I find that the requirements of section 23 are not present in the circumstances of this
appeal.
The Canadian Charter of Rights and Freedoms (the Charter)
[IPC Order PO-1678/May 12, 1999]
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In his representations in both this appeal and his related appeal involving the Ministry of the
Attorney General (Appeal PA-980206-1), the appellant raised the constitutional validity and/or
constitutional applicability of sections 12 and 13 of the Act under section 11(d) of the Charter. I
notified the appellant of the requirements of section 109 of the Courts of Justices Act, and asked him
to comply with the notice requirements of this section, or satisfy me that these requirements are not
applicable in the circumstances of these appeals. Section 109, which applies to proceedings before
tribunals as well as to courts, requires a person who seeks a ruling that a legislative provision is
constitutionally invalid, to serve a Notice of Constitutional Question (a NCQ) on the Attorney
General of Canada, the Attorney General of Ontario and any other parties.
A NCQ for both appeals was then sent by the appellant to the Attorney General of Canada, and the
Attorney General of Ontario.
In the NCQ, the appellant states:
The Justice of the Peace Remuneration Commission is an independent Commission
which was established in 1993 for the purpose of examining and making
recommendations on the salaries and benefits paid to Justices of the Peace in
Ontario. The Remuneration Commission delivered its report, including salary
recommendations, to the Management Board [of Cabinet] in 1995. The Government
rejected the recommendations of the Remuneration Commission in 1998.
The Association made a freedom of information request to the Government for the
disclosure of all records in the Government=s possession relating to the Report of the
Remuneration Commission.
The Government refused disclosure on various grounds including sections 13 and 18
of the Freedom of Information and Protection of Privacy Act, both of which are
discretionary rather than mandatory exemptions from disclosure. Section 13 gives
the decision maker the discretion to refuse to disclose documents that reveal the
advice of public servants while section 18 gives a similar discretion with respect to
documents the disclosure of which may prejudice the government=s competitive or
economic advantage.
As the legal basis for the constitutional question, the appellant states:
A discretion granted to a government decision-maker must be exercised in
accordance with the Charter of Rights. Section 11(d) of the Charter mandates that,
if a government rejects the recommendations of an independent commission on the
salaries of judicial officers, the government must publicly justify that decision.
Accordingly, the discretion given in sections 13 and 18 should be exercised in favour
of disclosure in this case in order to allow for public justification, among other
reasons.
[IPC Order PO-1678/May 12, 1999]
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Because the constitutional issue raised by the appellant was not included in the original Notice of
Inquiry, I issued a Supplementary Notice in order to provide the parties with an opportunity to
submit representations on the specific constitutional issues raised in the NCQ. A copy of the
Supplementary Notice was also provided to the Attorney General of Canada. No supplementary
representations were received in this appeal. However, the Ministry of the Attorney General (MAG)
submitted supplementary representations in the appellant=s related Appeal PA-980206-1, and MBS
informed me that I could rely on MAG=s representations in support of MBS=s position in this
appeal.
Subsequently, in discussions with counsel from this Office, the appellant and MAG agreed to share
their representations on the constitutional issues. I provided each party=s representations to the
other, and invited them to respond. Once again, only MAG provided additional representations.
MAG characterizes the legal issue differently, as follows:
Whether the Act, which permits the Government to refuse to disclose certain
documents on a variety of grounds, or the Government decision pursuant to the Act
not to disclose certain documents relating to the Justice of the Peace Remuneration
Commission Report, violates the right of accused persons to a fair trial before an
independent and impartial tribunal under clause 11(d) of the Charter of Right and
Freedoms.
Although the appellant=s original representations raised the constitutional issue with respect to both
sections 12(1), 13(1) and 18(1) of the Act, the NCQ is restricted to discretionary exemption claims
(ie. sections 13(1) and 18(1)).
Section 11(d) of the Charter states as follows:
Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial
tribunal.
MAG submits that the constitutional issue is presently before the Courts and it would be contrary to
the proper administration of justice to allow the appellant to argue the same issue in these
proceedings. These proceedings have now concluded with the Divisional Court judgment of March
16, 1999, finding that the government=s response to the Remuneration Commission=s
recommendations did not, in fact, satisfy the constitutional requirements for ensuring the
independence of justices of the peace.
MAG further submits that:
... the Charter does not create a constitutional right to disclosure of government
documents. The Ontario Divisional Court has held, in the context of freedom of
[IPC Order PO-1678/May 12, 1999]
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expression under s. 2(b) of the Charter, that the Charter does not give rise to a
general constitutional right of public access to all information under the control of
government. Just as there is no public right to disclosure under s. 2(b), s. 11(d) of
the Charter does not provide Justices of the Peace with a private right to disclosure
of information.
MAG goes on to submit that:
... the concept of judicial independence has no relationship to disclosure under the
Act. Judicial independence contemplates statutory and other types of arrangements
in place to promote the individual and institutional independence of the judiciary.
These arrangements concern the core characteristics of judicial independence: the
administrative independence of the courts, security of tenure and financial security of
judges. None of these core characteristics has any bearing on documentary
disclosure under the Act: Reference Re Remuneration of Judges of the Provincial
Court of Prince Edward Island; Reference re Independence and Impartiality of
Judges of the Provincial Court of Prince Edward Island; R. v. Campbell; R. v.
Wickman; Manitoba Provincial Judges Assn. V. Manitoba (Minister of Justice)
[1997] 3 S.C.R. 1 at 81-82 (the Judges Reference case).
In the alternative, if it is determined that the Judges Reference case does apply to the determination
of justice of the peace remuneration, MAG submits that the case only states that section 11(d) of the
Charter requires a Remuneration Commission process and that the government respond to the
Commission=s report. MAG points out that the government has created the Remuneration
Commission and responded to its recommendations in January 1998.
MAG submit that:
The [Judges Reference case] speaks of an obligation on government to respond to
the Commission=s recommendations; it makes no mention of a right to disclosure.
Where the judiciary is not satisfied with the response it may seek judicial review of
the Government=s decision, which is precisely what the JP Associations have done
in the ongoing Division Court proceeding. (emphasis in original)
The appellant=s general position on this issue is reflected in the following submission:
It has been recognized by the Supreme Court of Canada that financial security of
judicial officers is a key ingredient in the judicial independence guaranteed by s.
11(d) of the Charter and the public=s ability to scrutinize government decisions
concerning the independence of the judiciary, particularly decisions to reject the
recommendations of a remuneration commission, is central to the purpose of s. 11(d)
... Therefore, denying access to these records is inconsistent with the public=s right
to ensure judicial independence guaranteed by section 11(d) and, thus, access to
these records should not be denied unless such denial is demonstrably justifiable in a
free and democratic society as outlined in section 1 of the Charter. Refusal to give
[IPC Order PO-1678/May 12, 1999]
13
access to the records which would allow the public to scrutinize judicial
independence should only be allowed in the clearest of cases.
Specifically in relations to section 13(1) of the Act, the appellant submits:
Section 13 provides a possible exemption from disclosure for records that reveal the
advice of public servants to a government institution. This is not a mandatory
exemption, it is, rather, a discretionary one. Before exercising the discretion to
refuse to disclose a record on the basis of this exemption, a decision maker must
consider whether the issues with which the particular record deals are ones which
have already been made. The fact that a decision has already been made weighs in
favour of disclosing the records as the rationale for the exemption, that is protecting
the free flow of advice for the purpose of decision-making is no longer as pressing
after the decision has been made. The fact that a decision has already been made
speaks in favour of disclosure in this case in particular since, the records at issue
relate, at least in part, to the Government=s decision to reject the recommendations
of the Remuneration Commission concerning the salaries of Justices of the Peace.
The Supreme Court of Canada has held that section 11(d) of the Charter demands
that, where a government rejects the recommendations of an independent
commission concerning the remuneration of judicial officers, the government must
be prepared to justify that decision.
Chief Justice Lamer, writing for the majority of the Court in [the Judges Reference
case] held that where the Government rejects the recommendations of an
independent commission on judicial remuneration, the constitution mandates public
justification of that rejection. Lamer C. J. wrote:
[t]he need for public justification, to my mind, emerges from one of
the purposes of s. 11(d)=s [of the Charter] guarantee of judicial
independence - to ensure public confidence in the justice system (at
653).
In this case, it is inconsistent with the Charter to exercise the discretion under section
13 of the Act in order to refuse to fully disclose the grounds for the Government=s
decision on judicial remuneration, thus allowing the Government to avoid justifying
its decision to reject the Report=s recommendations, and preventing the public from
testing the bona fides of any Government justification.
I have considered the principles set out in the Judges Reference case, which are summarized in the
recent judgment of the Divisional Court in Ontario Federation of Justices of the Peace Associations
v. Ontario [1999] O.J. No. 786. This case involved the same parties and dealt with the same subject
matter as the appeal now before me. At paragraphs 101 to 104 of that judgment, Madame Justice
Haley states, in part:
[IPC Order PO-1678/May 12, 1999]
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The recommendations of the commission need not be binding on the legislature or
the executive because "decisions about the allocation of public resources are
generally within the realm of the legislature and through it, the executive". However,
in considering a "positive resolution model" i.e. one in which the government is not
required to take any action, as in this case, the Chief Justice [in the Judges Reference
case] said at p. 108, paragraph 178:
However, whereas the binding decision and negative resolution
models exceed the standard set by s. 11(d), the positive resolution
model on its own does not meet that standard, because it requires no
response to the commission's report at all. The fact that the report
need not be binding does not mean that the executive and the
legislature should be free to ignore it. On the contrary, for collective
or institutional financial security to have any meaning at all, and to be
taken seriously, the commission process must have a meaningful
impact on the decision to set judges' salaries.
What judicial independence requires is that the executive or the
legislature ... must formally respond to the contents of the
commission's report within a specified amount of time. Before it can
set judges' salaries, the executive must issue a report in which it
outlines its response to the commission's recommendations.
The Chief Justice noted that if the government rejects one or more of the
commission's recommendations it must justify its decision with reasons or run the
risk of having its unjustified decision declared unconstitutional.
At p. 110, paragraph 183, he discussed the standard of justification required and the
steps a reviewing court must take in determining whether that standard has been met:
The standard of justification here, by contrast, is one of simple
rationality. It requires that the government articulate a legitimate
reason for why it has chosen to depart from the recommendation of
the commission, and if applicable, why it has chosen to treat judges
differently from other persons paid from the public purse. A
reviewing court does not engage in a searching analysis of the
relationship between ends and means, which is the hallmark of a s. 1
[of the Charter] analysis.
...
With these guidelines in mind we considered the government response and its
justification for rejecting all of the recommendations of the Remuneration
Commission.
[IPC Order PO-1678/May 12, 1999]
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The remedy sought by the appellant in this case is an order for disclosure of records which qualify
for exemption on the basis of sections 13(1) (and 18(1)) of the Act . The basis advanced for the
remedy is that the discretion given to government to refuse to disclose records under these
provisions Ashould be exercised in favour of disclosure ... in order to allow for public justification,
among other reasons.@ I am not persuaded that the constitutional obligations articulated in the
Judges Reference case require the exercise of discretion in favour of disclosure of these records
under the Act.
In an effort to discharge its constitutional responsibility under section 11(d) of the Charter for
ensuring the independence of justices of the peace on issues of remuneration, Ontario decided to
appoint an independent Remuneration Commission to make recommendations, received
recommendations from the Commission, deliberated regarding the implications of these
recommendations, and issued a formal response. It is this formal response, not records which may
have been created by the government in the course of formulating the response, which is the measure
of the constitutionality of the government=s action. Even the reviewing court does not engage in a
Asearching analysis@ of the government=s reasons for rejecting the Commission=s
recommendations.
If the Government decides to depart from the recommendations of the Remuneration Commission,
as it did in this instance, the Judges Reference case imposes a requirement that it articulate a
Alegitimate reason@ for doing so. If this standard of justification has not been met, then it is up to a
court to determine what measures must be taken by the Government to remedy the constitutional
deficiency. The Government=s response must stand or fall on its own and, in my view, any
deficiency cannot be remedied through an effort to provide Alegitimate reasons@ through the
disclosure of related records under the Act.
In the present circumstances, the Government has made a formal response to the Remuneration
Commission=s report, and the Ontario Court of Justice (General Division) determined that it is
constitutionally inadequate. In this respect, Madame Justice Haley made the following findings,
beginning at paragraph 136 of her judgment:
We have found that the justices of the peace are entitled to the same constitutional
guarantees of judicial independence as those accorded to the provincial court judges
by the Supreme Court of Canada. The commission process put in place by
agreement between the justices of the peace and the government is flawed because:
(a) the government failed to replace the government appointee to
the commission which had the effect of preventing the
commission from completing its mandate;
(b) the government did not consider the continuation of the
commission binding upon it as required by the agreement;
(c) the government did not make a formal response to the
commission's recommendations in a timely fashion which
[IPC Order PO-1678/May 12, 1999]
16
resulted in a freeze and a reduction in the real salaries of the
justices of the peace;
(d) the government did not give complete or satisfactory reasons,
and in some instances gave no reasons at all, for its rejection
of the commission recommendations.
In the result the actions of the government which effected a freeze of the salaries of
the justices of the peace for the period from April 1, 1996 to April 1, 1999 without
resorting to the commission process, as directed by the Supreme Court of Canada,
were unconstitutional.
The Court granted the following remedy, as set out at paragraph 148 of the judgment:
An order will go directing the government to conduct a review of the compensation
of the justices of the peace for the period April 1, 1996 to April 1, 1999 and for that
purpose to set up a commission meeting the criteria of the Supreme Court of Canada
in the Judges Reference within 6 months of the date of these reasons and requiring as
a minimum a written response from the government within 90 days of the delivery of
the commission's report to the government. The government by way of such review
shall provide a proposal to the commission regarding the remuneration of the justices
of the peace for the Commission's consideration. In the interim, to avoid further
erosion of the remuneration by delay, the government shall index the salary starting
at the salary level at April 1, 1996 by the percentage increase in the Average
Industrial Wage based on that wage for the year 1995 over that for the year 1994 and
for the like increase, if any, for every subsequent year until the commission to be
established shall have made its report and the government shall have responded to it.
No part of the Court=s remedy required the government to provide Acomplete or satisfactory
reasons@ for the decision which the Court had already found to be constitutionally inadequate.
Rather, the Court=s remedy was to require the government to take steps in the future to bring itself
within its constitutional obligations by setting up a new commission and responding appropriately to
its recommendations.
In my view, disclosure of the records which I have found to qualify under section 13(1) will not
advance the constitutional requirement that government must give complete and satisfactory reasons
for its rejection of the recommendations of the Justice of the Peace Remuneration Commission. This
obligation exists separate and apart from the provisions of the Act. The failure to discharge this
obligation is a matter for the court to remedy, in accordance with constitutional standards for judicial
independence, as Madam Justice Haley has done in the Ontario Federation of Justices of the Peace
Associations v. Ontario case. In the appeal before me, the Act is not a mechanism for ensuring
government=s compliance with these constitutional obligations.
ORDER:
[IPC Order PO-1678/May 12, 1999]
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Legislation
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Signed by
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Tom Mitchinson
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Published
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May 12, 1999
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Type
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Order
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Judicial Review
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Application abandoned September 23, 1999
Ontario Federation of Justices of the Peace Associations v. Mitchinson et al, Tor. Doc. 356/99 (Div. Ct.)
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