Background

As outlined in Interim Order PO-2093-I, the Ministry has regulatory and policy-making responsibilities in the area of policing, as confirmed in section 3(1) of the Police Services Act (the PSA), which indicates that the PSA “shall be administered by the Solicitor General”.  Part of this regulatory scheme deals with political activities of police officers.  The PSA prohibits political activity, except as permitted by regulation.  Ontario Regulation 554/91 made under the PSA, sets out these permitted political activities for municipal police officers, and Ontario Regulation 123/98 binds Ontario Provincial Police officers to the political activity provisions of the Public Service Act.

Regulation 554/91 was amended in 1998 by Ontario Regulation 89/98.  Records 2-28 in this appeal were created in the context of these amendments.  Further amendments were considered in 2000 but not implemented.  Records 31-47 relate to the 2000 review.

Section 12(1)(f)

The Ministry submits that a number of records fall within the scope of section 12(1)(f):

Since the records in question relate to a regulation, many of the records, as listed below, are iterative drafts of the regulation, each one having been prepared by Legislative Counsel in the distinctive format that is used for regulations.  The Ministry relies in this instance on prior Orders, including PO-1851-I and PO-2068, which held that section 12 applied to draft regulations and legislation even if they had not been submitted to Cabinet.

I accept the Ministry’s position.  The following records are draft regulations, some containing handwritten notes, that were created during the course of either the 1998 or 2000 review of Regulation 554/91 and fall within the scope of section 12(1)(f) of the Act:

Records 3, 10, 11, 13, 14, 15, 16, 17, 28, 33, 36, 37, 39 and 44.

Section 12(1)(b)

The Ministry must satisfy the following two criteria for a record to qualify for exemption under section 12(1)(b):

1.                  the record must contain policy options or recommendations; and

2.                  the record must have been submitted or prepared for submission to Cabinet or its committees.

[Order 73]

Record 4 is titled “Approval Form For Regulations” and consists of a standard document used by various Ministries in preparing proposed regulatory changes for consideration by the Statutory Business Committee of Cabinet.  It is dated February 24, 1998, and signed by the Minister and Deputy Minister of the then-Ministry of the Solicitor General and Correctional Services.  Records 12 and 22 are earlier unsigned draft versions of the same record. 

Record 38 is a different “Approval Form For Regulations”, dated October 18, 2000, and signed by the Minister and Deputy Minister of the then-Ministry of the Solicitor General.

In addressing the application of section 12(1)(b) to Record 4, the Ministry submits:

This form recommends the approval of the regulation, and contains policy options that were considered.  The members of the Statutory Business Committee [of Cabinet] reviewed the form.  In Order P-1570, this form was upheld under this exemption.  The Ministry submits that this record falls within the meaning of the exemption in clause 12(1)(b).

I accept the Ministry’s position on Record 4, and find that it also applies to Records 12, 22 and 38.  These records all contain policy options and recommendations relating to Regulation 554/91, and they were either actually submitted (Records 4 and 38) or prepared for submission (Records 12 and 22) to the Cabinet Committee responsible for considering and approving changes to regulations.  Therefore, I find that Records 4, 12, 22 and 38 qualify for exemption under section 12(1)(b).

Record 7 is titled “Decision Document  -  Cabinet Decision(s) Requested”.  It outlines issues relating to the political activity regulation under consideration in 1998, including a series of options and a recommended course of action.  The record also includes a proposed Cabinet Minute and a marked up copy of Regulation 554/91.  The Ministry points out that it is unclear whether this record was actually submitted to Cabinet, but argues that its title content makes it clear that it was prepared with this intent.  Again, I accept the Ministry’s position and find that Record 7 qualifies for exemption under section 12(1)(b) for the same reasons as Records 12 and 22.

Record 31 is a set of presentation slides dated October 26, 2000 on the topic of political activities of municipal police associations.  The Ministry submits that this record was prepared for submission to the Priorities, Policies and Communications Board of Cabinet, but never actually submitted.  I find that this record contains policy options and recommendations, and it is clear from its title page that it was prepared for the purpose of submission to a Cabinet Committee.  Therefore, I find that Record 31 qualifies for exemption under section 12(1)(b).

Section 12(1)(a)

The only records identified by the Ministry under section 12(1)(a) are Records 3, 7 and 37.  I have already determined that these records qualify for exemption under sections 12(1)(b) or (f), so I do not need to consider the Ministry’s section 12(1)(a) claim.

Section 12(1)(c)

Previous orders have held that section 12(1)(c) of the Act is prospective in nature.  The use of the present tense in this section precludes its application to matters that have already been considered by Cabinet or its committees [Orders P-60, P-323, P-1623].

For a record to qualify under section 12(1)(c), the Ministry must establish that:

1.                  the record contains background explanations or analyses of problems to be considered:  and

2.                  the record itself was submitted or prepared for submission to Cabinet or its committees for their consideration in making decisions;  and

3.                  the matter at issue is actively under consideration or is clearly scheduled for consideration by Cabinet or one of its committees;  and

4.                  the decision at issue either:

(i)         has not been made; or

(ii)        has been made but not implemented.

[Order P-1623]

The first category of records (Records 2-28) relate to amendments to Regulation 554/91 made by Cabinet in 1998.  Clearly, the content of these records is not under active consideration or scheduled to be considered by Cabinet, so section 12(1)(c) cannot apply.

Similarly, all records in the second category (Records 30-47) were created in the context of discussions concerning Regulation 554/91 taking place in 2000.  The Ministry explains in its representations that Cabinet took no action at that time, and there is nothing before me to suggest that this regulation is under active consideration now.  Therefore, I find that section 12(1)(c) cannot apply to any of the second category of records either.

Introductory wording of section 12(1)

It has been determined in a number of previous orders that the use of the term "including" in the introductory wording of section 12(1) means that any record that would reveal the substance of deliberations of Cabinet or one of its committees qualifies for exemption under section 12(1), regardless of whether it is one of the types of records enumerated in the various paragraphs of that section [Orders P-11, P-22 and P-331].

It is also possible for a record that has never actually been placed before Cabinet or its committees to qualify for exemption under the introductory wording of section 12(1), if the Ministry can establish that disclosing the record would reveal the substance of deliberations or permit the drawing of accurate inferences with respect to these Cabinet deliberations [Orders P-226, P-293, P-331, P-361 and P-506].

The Ministry submits that several records qualify for exemption under the introductory wording of section 12(1).  I have already determined that some of them qualify under one of the specified paragraphs of section 12(1), so will not consider those records here.  I have also decided to deal with certain records under section 19 rather than section 12(1), so I will eliminate those records from my discussion as well.  Accordingly, the records to be considered under the introductory wording of section 12(1) are:

Records 5, 18, 19, 21, 23, 24, 25, 34, 41, 43, 46 and 47.

Record 21 is a report dated February 13, 1998 prepared by an employee of the Ministry’s Corporate Policy Branch.  It is titled “Draft Amendments to Regulation 554 of the Police Services Act:  Explanatory Notes and Policy Issues”.  Records 5, 24 and 25 are earlier versions of Record 21.  The footer on Record 5 indicates that the report is being prepared for the “DM”, which I assume to mean “Deputy Minister”.  These records each contain a chart that identifies various issues addressed by Regulation 554/91, the comparable provisions of the Public Service Act relating to OPP officers, and the proposed amendment Regulation 554/91 under consideration in 1998.

The Ministry’s only submission on Record 21 is that it “contains the same subject matter as was contained in [Record 4]”.

Record 21 does not contain “policy options or recommendations”, as these terms are used in section 12(1)(b).  Rather, it appears to contain “background explanations or analyses of problems”, the terms used in section 12(1)(c).  While a record of this nature may have qualified for exemption under section 12(1)(c) while Regulation 554/91 was under active consideration by Cabinet in 1998, this exemption is prospective in nature and is no longer applicable here.

I have no evidence that Record 21 was ever placed before Cabinet or its committees for consideration.  However, portions of the chart contain the text of draft amendments that I have found to be exempt under section 12(1)(f), and I find that disclosing this same information in Record 21 would reveal the substance of deliberations of the Statutory Business Committee of Cabinet and should not be disclosed.  Based on the submissions provided by the Ministry, I am not persuaded that disclosing the rest of Record 21 would have the same impact, and I find that these portions do not qualify for exemption under the introductory wording of section 21(1).  I make the same findings for Records 5, 24 and 25, which contain the same or similar information.

Record 19 is a set of slides used at a “Minister’s Briefing” on February 18, 1998.  The topic of the briefing is the proposed amendments to Regulation 554/91.  The only submissions provided by the Ministry on Record 19 are:

This record was used to brief the Minister about the regulation.  It therefore contains the same type of information that would have been deliberated by Statutory Business Committee.

Record 19 by its nature is not the type of record that would have been placed before Cabinet.  Rather, it is the kind of record that could have been “prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before [Cabinet]”, the wording used in section 12(1)(e).  The Ministry has not claimed section 12(1)(e) for any records in this appeal, and in any event this exemption is prospective in nature and not available after the subject matter has been considered by Cabinet [Orders P-22, P-946, P-1182].

Record 19 contains the same chart as Record 21, and I find that the portions of the chart that would reveal the substance of deliberations of the Statutory Business Committee of Cabinet should not be disclosed.  However, based on the submissions provided by the Ministry, I am not persuaded that disclosing the rest of Record 19 would have the same impact, and I find that these portions do not qualify for exemption under the introductory wording of section 12(1).

Record 23 is an undated draft discussion paper titled “Political Activity Rights of Police Officers”.  The author of the paper is not identified either on the record itself or in the Ministry’s representations.  The Ministry’s only submission on this record is:

This record is a discussion paper concerning the proposed regulation.  It contains the same subject matter as would have likely been discussed at Statutory Business Committee, and should not be disclosed for this reason.

Unlike Records 21 and 19, Record 23 does not make reference to the regulations under consideration in 1998 by the Cabinet Committee.  It is clearly not the type of record that would have been considered by Cabinet, and would appear to be an internal Ministry document.  Based on the Ministry’s representations, I find that it has not discharged the onus of establishing that disclosing this record would reveal the substance of any Cabinet deliberations, and Record 23 does not qualify under the introductory wording of section 12(1).

Record 18 is a 4-page document consisting of two cover memos sent by a Ministry legal counsel to two different government officials, and two e-mail chains to and from various Ministry staff.  The Ministry’s representations on this record refer only to the cover memos, and state that they contain information that “describe the proposed regulation, and what approvals are needed”.  Although these pages make reference to the regulatory review underway during 1998, in my view they deal primarily with process issues, and not the substance of any actual Cabinet deliberations on this issue.  For that reason I find that the various pages comprising Record 18 do not qualify for exemption under the introductory wording of section 12(1).

Record 41 is a 2-page issue note concerning proposed amendments to Regulation 554/91 under consideration in 2000.  The Ministry submits that the record:

… describes the proposed amendments to the regulation, the rationale for such amendments, and it intended for briefing purposes.  The Ministry submits that if this record were disclosed, the substance of the records that were submitted to Statutory Business Committee would also be revealed.

Record 41 is undated and the author is not identified either on the record itself or by the Ministry in its representations.  Most of the record consists of factual information concerning Regulation 554/91, and a small portion at the end identifies the new approach to the regulated activity under consideration at that time.  It is clear that a record of this nature would not itself be considered by Cabinet and, based on the Ministry’s representations, I am unable to conclude that its disclosure would reveal the substance of any Cabinet deliberations.  In my view, it is essentially an outline which confirms that Regulation 554/91 was under review, a fact that is widely known and otherwise confirmed simply by the identification of the second category of records under consideration in this appeal.  I find that Record 41 does not qualify for exemption under the introductory wording of section 12(1).

Record 43 is a 1-page cover memo dated October 13, 2000, with an attached mailing list, sent by the Acting Director of the Ministry’s Corporate Policy Branch and asking for comments on materials attached to the memo.  The attachments are not included in Record 43.  The Ministry submits that “if this record was disclosed, the substance of the records that were submitted to Statutory Business Committee for its deliberation would be revealed”.  The Ministry does not refer to any specific records considered by the Committee.  Based on the Ministry’s representations, it has not discharged the onus of establishing that disclosing this cover memo would reveal the substance of any Cabinet deliberations.  Accordingly, I find that Record 43 does not qualify for exemption under the introductory wording of section 12(1).

Record 34 is a 1-page list of options relating to amendments to Regulation 554/91.  It is undated and unsigned.  The Ministry’s only submission is that the record “describes the proposed changes to the Regulation 554/91”, and that disclosing the record “would reveal the contents of the regulation”.  I do not accept the Ministry’s submission on this record.  Absent more detailed evidence linking the contents of this record to any actual deliberations of Cabinet, in my view, Record 34 would appear to be more accurately described as an internal document outlining the views of a Ministry employee on approaches to the review of Regulation 554/91, not a record that reflects information presented to Cabinet for its consideration.  Therefore, I find that Record 34 does not qualify for exemption under the introductory wording of section 12(1).

In its index, the Ministry lists section 12(1) as one of the exemptions claimed for Records 46 and 47, but does not address these records in its representations.  Because section 12 is a mandatory exemption I have reviewed Records 46 and 47 independently before concluding that they do not, on their face, qualify for exemption under section 12(1).

Previous orders have held that, while this provision does not impose a requirement on an institution to seek the consent, the head of the institution must at a minimum turn his or her mind to this issue  [Orders P-771 and P-1146].

SOLICITOR-CLIENT PRIVILEGE

The Ministry relies on section 19 of the Act as one basis for denying access to a number of records, including:

General principles

Section 19 of the Act reads:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

Section 19 contains two branches.  Branch 1 includes two common law privileges:

• solicitor-client communication privilege;  and

• litigation privilege. 

Branch 2 contains two analogous statutory privileges that apply in the context of Crown counsel giving legal advice or conducting litigation. 

Here, the Ministry relies on solicitor-client communication privilege under both branches.  The Ministry does not rely on litigation privilege under either branch.  I will first consider the application of common law solicitor-client communication privilege under Branch 1.

Common law solicitor-client communication privilege under Branch 1

General principles

Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)].

The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551].

The privilege applies to “a continuum of communications” between a solicitor and client:

. . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)].

The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27].

Confidentiality is an essential component of the privilege.  Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)].

Group 2:  Records 5, 19, 21, 23, 24, 25, 34, 41, pages 76-77 of Record 18, pages 244-245 of Record 46 and pages 293-296, 301 and 342 of Record 47

Section 13(1) reads as follows:  

In Order PO-2028, I reviewed in some detail the approach this office has taken to the application of section 13(1) to “options”.  After reviewing a number of orders, I stated:   

What is clear from these cases is that the format of a particular record, while frequently helpful in determining whether it contains “advice” for the purposes of section 13(1), is not determinative of the issue.  Rather, the content must be carefully reviewed and assessed in light of the context in which the record was created and communicated to the decision maker.  In circumstances involving options that do not include specific advisory language or an explicit recommendation, careful consideration must be given to determine what portions of a record including options contain “mere information” and what, if any, contain information that actually “advises” the decision maker on a suggested course of action, or allows one to accurately infer such advice.  If disclosure of any portions of a record would reveal actual advice, as opposed to disclosing “mere information”, then section 13(1) applies.

Applying this approach to the severed portions of pages 9 and 10, I find they do not contain “recommendations” or “advice”.  The Ministry acknowledges in its representations that the role of Ministry staff in providing support to NOHFC [Northern Ontario Heritage Fund Committee] does not extend to recommending a particular course of action to be followed”.  In my view, the description of each option itself is “mere information”.  The description simply states the various factual components of the option broken down into various pre-determined categories.  It contains no information that could be said to “advise” the NOHFC in making its decision on funding, nor, in my view, would disclosure allow one to accurately infer any advice given.  The “pros and cons” description that accompanies each option also do not contain any explicit advice.  There is no statement recommending that NOHFC chose a particular option and no explicit indication as to which option is preferred by the authors of the Evaluation Report.

The next question is whether disclosure of these portions would allow one to accurately infer any advice given.  When considered as a whole and in the context of the roles played by Ministry staff in providing support to the NOHFC and the Board of that organization as a decision-making body for Northern Ontario project funding, I find that disclosure of the “pros and cons” for the various options would not permit accurate inferences to be drawn as to the nature of any advice implicitly contained in these portions of the record.  In my view, in comparing the various “pros and cons” it would not be reasonable to infer a suggested course of action by Ministry staff, which will ultimately be accepted or rejected by the Board during the deliberative process.  Accordingly, I find that the “pros and cons” portions of pages 9 and 10 do not consist of or allow one to accurately infer any advice or recommendations.  Therefore, section 13(1) of the Act does not apply.

[See also Order PO-2084]

I have attached a highlighted version of Records 5, 19, 21, 23, 24, 25, 34 and 41 with the copy of this order sent to the Ministry, which identifies the portions that should not be disclosed.

2.                  I uphold the Ministry’s decision to deny access to the following records or portions of records:

Records 2-4, 6-17, 21, 22, 24-28, 31-33, 35-39, 43-45, pages 74-75 of Record 18, pages 291 and 302-341 of Record 47, and those portions of Records 5, 19, 21, 23, 24, 25, 34 and 41 not covered by Provision 1 of this order.

3.                  In order to verify compliance with the terms of Provision 1, I reserve the right to require the Ministry to provide me with a copy of the records disclosed to the appellant.

Original signed by:                                                                  ___        October 3, 2003                      

Tom Mitchinson