Investigation into leak about Supreme Court candidate constrained by jurisdictional limitations

Complaint under the Privacy Act (the Act)

August 6, 2020

Description

In 2019 media reports claimed that documents revealed by an anonymous source demonstrated an alleged disagreement between the Prime Minister’s Office (PMO) and the former Attorney General relating to a recommendation for nomination of a specific candidate to the Supreme Court of Canada, thus implicating the candidate’s personal information. Our investigation found no evidence that government institutions subject to the Privacy Act, specifically the Privy Council Office (PCO) or the Department of Justice (DOJ), were responsible for any unauthorized disclosure of personal information.

Report of findings

1. On March 25, 2019, both CTV and the Canadian Press published articles regarding the recommendation of Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal for appointment to the Supreme Court of Canada in 2017 by the then-Minister of Justice and Attorney General, Jody Wilson-Raybould. The media reports claimed that documents revealed by an anonymous source demonstrated a disagreement between the Prime Minister and the Attorney General concerning her recommendation of Chief Justice Joyal, which was the first of many events leading to her eventual resignation from Cabinet.
2. For example, the article published by CTV claimed that “Relations between Prime Minister Justin Trudeau and then-Attorney General Jody Wilson-Raybould first began to fray in 2017 over concerns about her choice to fill a vacancy on the Supreme Court of Canada.” Similarly, an article published by the CBC stated, “According to the sources, one of the names on the eventual list was Glenn Joyal […] Wilson-Raybould then sent Trudeau a 60-plus-page memo arguing that Joyal should not only be added to the top court but should be named chief justice as well.”
3. We subsequently received a complaint on April 2, 2019, from the Member of Parliament for Timmins-James Bay, Charlie Angus, making the following allegation:

   The leak of confidential information surrounding Manitoba Superior Court Chief Justice Glenn Joyal’s application to be considered for a position on the Supreme Court of Canada is shocking. It is not only an attack on the independence of the judiciary and a mark of flagrant disrespect for the importance of its work, but potentially a breach of the Privacy Act.

4. The complainant specifically requested that we investigate the roles of the Privy Council Office (“PCO”), the Department of Justice (“DOJ”), the Office of the Commissioner of Federal Judicial Affairs (“CFJA”) and the Office of the Prime Minister of Canada (“PMO”) in the alleged breach (or “leak”) of Chief Justice Joyal’s privacy.
5. Therefore, at issue in our investigation is whether any of the institutions identified by Mr. Angus, if subject to the jurisdiction of the Act, contravened section 8, which specifies that personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with specific exceptions provided in that section.

Jurisdiction

6. The purpose of the Privacy Act as stated in section 2 is “to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.” Section 8, cited above, limits disclosure of personal information under the control of a government institution.
7. “Personal information” is defined in Section 3 of the Act as “information about an identifiable individual that is recorded in any form …” In the context of the complaint at hand, Chief Justice Joyal’s name and all other information relating to his application and consideration for the 2017 Supreme Court appointment process constitutes his personal information as defined in the Act. This specifically includes his education and employment history as well as the views or opinions of any other individual about him and his qualifications (e.g., the 60-page memo referred to by media sources), as provided in the Act.
8. The term “government institution” is defined in section 3 of the Act as “any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule,” as well as Crown corporations and subsidiaries. Neither the CFJA nor the PMO are expressly listed in the Schedule to the Act, nor are they Crown corporations or subsidiaries.
9. In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, the Supreme Court of Canada confirmed that Ministers’ offices – including the PMO – are not included in the definition of “government institution” for the purposes of the Access to Information Act (“ATIA”), which has the same definition and use of an exhaustive list of government institutions as the Privacy Act.
10. In light of the definition of “government institution” informed by the Schedule to the Privacy Act, as well as the Supreme Court decision, we are of the view that our jurisdiction under the Act does not extend to the information handling practices of either the CFJA or the PMO. We therefore focused our investigation on the roles of both the PCO and the DOJ in the alleged unauthorized disclosure of Chief Justice Joyal’s personal information, as both are government institutions as per the Schedule. Thus, we commenced our investigation of these two institutions pursuant to subparagraph 29(1)(h)(ii) of the Act, which states that the Privacy Commissioner shall receive and investigate complaints in respect of any matter relating to the use or disclosure of personal information under the control of a government institution.

Background to Complaint

11. On March 25, 2019, the CBC reported the following with respect to the leak of information relating to Chief Justice Joyal and the 2017 Supreme Court of Canada Justice nomination process:

    Jody Wilson-Raybould recommended in 2017 that Prime Minister Justin Trudeau nominate a conservative Manitoba judge to be chief justice of the Supreme Court, even though he wasn’t a sitting member of the top court and had been a vocal critic of its activism on Charter of Rights issues, The Canadian Press has learned.

    Well-placed sources say the former justice minister’s choice for chief justice was a moment of “significant disagreement” with Trudeau, who has touted the Liberals as “the party of the charter” and whose late father, Pierre Trudeau, spearheaded the drive to enshrine the Charter of Rights and Freedoms in the Constitution in 1982.

12. The same article then goes on to explain the significance of the leak as follows:

    Trudeau created an independent, non-partisan advisory board, headed by former Conservative prime minister Kim Campbell, to identify qualified candidates to fill the western/northern vacancy and submit a short list of three to five names for consideration.

    According to the sources, one of the names on the eventual list was Glenn Joyal, who had been appointed in 2011 by former Conservative prime minister Stephen Harper as chief justice of Manitoba's Court of Queen's Bench.

    Wilson-Raybould then sent Trudeau a 60-plus-page memo arguing that Joyal should not only be added to the top court but should be named chief justice as well.

    Only once before in Canadian history — in 1906, when Sir Wilfrid Laurier appointed his justice minister to the top judicial job — has a prime minister chosen a chief justice who was not already sitting on the Supreme Court.

13. The narrative of the media story above suggests a disagreement between the Prime Minister and the then-Attorney General with respect to the potential nomination of Chief Justice Joyal, following which the Prime Minister did not accept the Attorney General’s recommendation because of Chief Justice Joyal’s alleged conservative or restrained approach to the interpretation of the Charter. However, as reported by Global News on March 25, 2019, Chief Justice Joyal made the following public statement regarding the leak:

    In 2016, the Office of the Commissioner for Federal Judicial Affairs announced an independent and non-partisan application process for appointments to our highest court. The confidential process assesses each candidate on their merits.

    Ultimately, I had to withdraw my application for personal reasons, due to my wife’s metastatic breast cancer. Regrettably, that detail was omitted from the now-published media reports for which I was given no opportunity or, in one case, approximately one hour to respond to.

    I fear that someone is using my previous candidacy to the Supreme Court of Canada to further an agenda unrelated to the appointment process. This is wrong.

    Canadians should be proud of the exceptional quality and dedication of our judiciary. I personally am honoured to serve my community as chief justice of the Manitoba Court of Queen’s Bench.

14. Addressing what it asserted was an inaccurate and unfair narrative about Chief Justice Joyal’s judicial philosophy and approach to important Charter rights, the Manitoba Bar Association issued a statement noting that:

    The MBA is also deeply concerned about the comments made about Chief Justice Joyal of the Manitoba Court of Queen’s Bench. The implication was given that Chief Justice Joyal could give rulings that would undermine the rights of women and members of the LGBTQ2S community. Such a suggestion is entirely improper, and indeed false. Chief Justice Joyal is a highly respected jurist who has defended Canada’s political legal culture and has spoken out in favour of both a strong judiciary and equally strong legislative branch. He has also defended the importance of protecting equality in society, as well as individual and group rights. Nothing in what he has done throughout his judicial career, nor in the publicized comments he has made, could suggest that he is against a woman’s right to choose, same-sex marriage, or LGBTQ2S rights generally. It is most appalling that such an inaccurate description has been suggested or implied.

15. With respect to the source of the leak, on March 27, 2019, the Globe and Mail reported that the former Attorney General stated that she was in no way involved in the leak:

    Ms. Wilson-Raybould said Wednesday that she could not comment on whether the news reports about her recommendation were accurate. “I do feel compelled to say that I have not − as some have suggested − been the source of any of these stories, nor have I ever authorized any person to speak on my behalf,” she said in a statement. “I strongly condemn anyone who would speak about or provide information on such sensitive matters.”

16. On March 28, 2019, the CBC reported that the Prime Minister and the PMO also denied having any knowledge of the source of the leak:

    The prime minister said his office did not have “any part in leaking.” His office also issued its own denial late yesterday.

    “We take the integrity of our institutions seriously,” said PMO spokesperson Chantal Gagnon in a statement. “The PMO would never leak who would be considered for a judicial appointment.”

17. Subsequently, on April 12, 2019, The Lawyer’s Daily reported that the current Minister of Justice and Attorney General, David Lametti, also stated during an interview that neither the DOJ nor the PMO was responsible for the leak:

    Justice Minister David Lametti says a damaging leak about the latest Supreme Court of Canada appointment was a “one-off” that did not come from his department or the Prime Minister’s Office (PMO) — nor does it require the Trudeau government to track down the leak’s source(s) or reconsider the adequacy of the confidentiality protections around the Supreme Court appointment process.

    In an exclusive interview, Lametti told The Lawyer’s Daily he is “very confident” that last month’s leak to the Canadian Press and CTV News — purportedly disclosing confidential communications and a disagreement in 2017 between former Justice Minister Jody Wilson-Raybould and Prime Minister Justin Trudeau about who should be appointed to the top court and as Chief Justice of Canada — did not emanate from the Department of Justice (DOJ), nor did it come from PMO officials.

Summary of the Investigation

18. As an initial investigative step, CFJA officials voluntarily agreed to meet with us in order to explain its role in the 2017 Supreme Court judicial appointment process, as well as the flow of information throughout the process generally. In May 2019, our investigators met with the Executive Director for Judicial Appointments and Senior Counsel, who provided information pertinent to understanding the confidential nature of judicial appointment processes at the federal level, particularly with respect to the Supreme Court of Canada.
19. We established that the Supreme Court appointment process is led by an Independent Advisory Board (“IAB”), which consists of a Chair and six other members. The IAB is supported by the CFJA, which provides logistical and administrative support to the process, including secretariat services to the IAB. In 2017, the Right Honourable Kim Campbell was named chair of IAB.
20. All members of the IAB signed a Confidentiality Agreement as a precondition to their appointment. Personal information provided to, and deliberations of, the IAB are kept strictly confidential. The IAB conducts the assessment of candidates for appointment to the Supreme Court (review applications, interview candidates, etc.), then deliberates to decide on whom they would recommend to the Prime Minister and provides a list of potential candidates (also referred as “the short list”). The PCO receives completed security forms from the CFJA for the candidates under consideration in order to conduct the required background checks, which includes a criminal record check conducted by the Royal Canadian Mounted Police (RCMP). Once the background checks are completed by the PCO, the CFJA confirms the IAB’s short list of candidates and sends it to the PMO. In this case, CFJA confirmed that the short list of three candidates was hand delivered to the PMO by a CFJA staff member on October 23, 2017.
21. According to the CFJA, once the short list was provided to the PMO, the IAB and the CFJA were no longer involved in the appointment process. The Attorney General received the short list from the PMO, after which it conducted a series of consultations with various stakeholders in the Canadian legal community. The Attorney General then advised the Prime Minister of the candidate whom she recommended.
22. The individual steps taken in the appointment process are shown in the process map below.

Text version of Figure 1

1. Launch of the 2017 process by the PM (July 14, 2017)
2. Appointment of the IAB
3. Applications received by CFJA (9 weeks)
4. IAB conducts assessment
5. Deliberations of the IAB members for recommendation to Prime Minister
6. Candidate information sent to PCO for Background checks
7. PCO provides information back to CFJA
8. CFJA delivers short list to PMO (October 23, 2017)
   CFJA/IAB no longer involved in the process.
9. PMO shares short list with Attorney General
10. Attorney General consultation process on the short list (Oct. 23 - Nov. 17)
11. Attorney General provides recommendation to PM
12. PM announces nominee (November 29, 2017 )

---

23. On November 29, 2017, the Prime Minister announced the nomination of the Honourable Sheilah L. Martin to the Supreme Court of Canada, who was subsequently formally appointed December 18, 2017.

Was the PCO responsible for the privacy breach?

24. During the course of our investigation, our investigators spoke with officials from the PCO, who confirmed that it does not play a role in identifying or assessing judicial appointment candidates (as depicted the process map above).
25. The PCO confirmed that it conducts, at the request of the CFJA, background checks of the potential candidates. We met with security officials at the PCO, who explained that only a limited number of employees within the security operations business are mandated to conduct the background checks. Once the PCO receives a request from the CFJA, which contains applicants’ completed background check consent forms, that information is secured and is not shared with anyone else in the PCO. The information is exchanged with the CFJA only.
26. It is important to note that when the PCO receives the request from CFJA, it is without any specific context explaining the process for which they were being completed. The security officials advised that they did not receive any information that would have indicated whether or not the individual applicants were included in the short list. Therefore, no PCO employees would have been aware of the then-Minister of Justice and Attorney General’s recommendation for appointment.
27. Finally, the PCO was involved at the end of the process in developing communication products for the Prime Minister’s public announcement of the Prime Minister’s chosen nominee. In 2017, PCO officials were made aware of the identity of the nominee only a few days prior to the Prime Minister’s public announcement of the nomination.
28. The PCO provided us with written representations, which clearly stated that it has “no reason to believe that PCO has ever knowingly had that report in its possession”. These representations were supported by numerous documents – primarily related to media relations and the development of external communications products as PCO officials had explained. In reviewing these submissions we concluded that they demonstrate the PCO’s limited role in the 2017 Supreme Court nomination process.
29. In this context, we found no evidence that the PCO had access to the information relating to the former Attorney General’s alleged recommendation of Chief Justice Joyal to the Supreme Court in the first place and therefore found no evidence that the disclosure originated from the PCO.

Was the DOJ responsible for the privacy breach?

30. As noted in paragraphs 9-10 above, in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, the Supreme Court of Canada confirmed that a Minister’s office within a Department is not included in the definition of “government institution.” Our investigation was therefore necessarily restricted to examining the compliance with Privacy Act by Department of Justice staff, separate from staff within the Office of the Minister of Justice and Attorney General.
31. After receiving notification of our investigation, we received written representations from the Deputy Minister and officials from the DOJ’s Internal Audit and Evaluation Sector. These officials subsequently met with our investigators and provided an overview of the DOJ’s role in the Supreme Court appointment process. DOJ officials stressed that while the department is involved in the design of the Supreme Court appointment process and preparations when a vacancy needs to be filled, it is not involved in the vetting or selection of candidates conducted by the CFJA, the IAB, and the Attorney General as described above. Nevertheless, the Deputy Minister of Justice decided to conduct an internal fact-finding review to determine whether the DOJ could have been responsible for the leak.
32. A copy of the DOJ’s report of findings with respect to its fact-finding review was provided to our investigators. The objective of the review was to confirm whether the integrity of the 2017 Supreme Court appointment process was impacted by employees or workers within the DOJ, and whether personal information belonging to sitting justices or applicants to the Supreme Court in 2017 was improperly disclosed. This list of individuals who were interviewed as part of the DOJ’s review includes the Deputy Minister of Justice, the Senior Assistant Deputy Minister of Justice, the Assistant Deputy Minister of Justice, and several other departmental officials from the DOJ’s Judicial Affairs Section, Safety, Security and Emergency Management Division, and Communications Branch.
33. The report concluded that the role of the DOJ in the 2017 Supreme Court appointment process was limited to the provision of legal and policy advice in relation to the appointment of federal judges generally, and the provision of briefing notes and other materials required to support that process. The report concluded that at no time did DOJ officials assist in the processing or vetting of applicants for appointment to the Supreme Court in 2017, nor were departmental officials consulted about candidates included on short list provided to the PMO by the IAB. As a result, the report states that the DOJ did not have any knowledge of the kinds of information about applicants for nomination to the Supreme Court that is alleged to have been leaked. Further, it stated that DOJ officials were never privy to the recommendations of the IAB to the Prime Minister, nor to the preferences or leanings of the Attorney General or the PMO.
34. Notwithstanding the above, we were subsequently contacted by an individual who claimed that, although they were not involved in the leak, they were witness to the events surrounding the leak of information relating to Chief Justice Joyal’s application and nomination for appointment to the Supreme Court.
35. During an interview, the witness claimed that, in general, the Office of the Minister of Justice and Attorney General at the time had poor electronic and physical information security practices and that as a result, it is possible the DOJ employees could have accessed confidential and privileged Ministerial records. The witness believed this included files relating to Supreme Court appointment applicants that would have contained some, though likely not all, of the leaked personal information about Chief Justice Joyal. The witness provided us with the names of employees in the DOJ whom they believed would have direct knowledge of this potential access by DOJ staff to Ministerial records.
36. Our investigators also noted the transcript of the July 25, 2019, meeting of the Standing Committee on Justice and Human Rights. During the Committee meeting, several questions were asked regarding the leaked information relating to Chief Justice Joyal’s application and recommendation by the former Attorney General. In this context, the Hon. Lisa Raitt asked the current Minister of Justice and Attorney General:

    Minister Lametti, you gave an interview to The Lawyer’s Daily in April in which you indicated that you were very confident that the leak did not come from the Department of Justice or from officials in the Prime Minister's Office. Ms. Campbell is now saying that it didn’t come from her advisory committee. Where did the leak come from?

    to which Minister Lametti responded:

    I don’t know. The Privacy Commissioner has stated that he has opened an investigation into the matter, and I’m not going to comment on his ongoing investigation. I will say that federal departments will co-operate fully with the Office of the Privacy Commissioner and that I took steps in this current process both in terms of limiting the number of people who had access to the process within my department, as well as segregating the server and doing everything securely that we needed to do to make sure that there was no breach of privacy from my department.

37. Since we do not have jurisdiction over the information handling practices of the PMO or the Office of the Minister of Justice and Attorney General, our investigation was restricted to whether the DOJ had a role in the disclosure of the leaked information. Given Minister Lametti’s response during the Committee meeting and the statements made by the witness, we sought to understand whether DOJ employees might have had access to personal information held in Ministerial records that would allow for a collection of that information in a manner inconsistent with the responsibilities and authorities of their positions.
38. To that end, we interviewed a DOJ employee (identified by the witness referenced in paragraph 34 of this report) who was familiar with the how information was shared between the Minister’s office and the DOJ. Based on the testimony received, we found no evidence that there were insufficient physical and information technology (IT) controls over information held in the Minister’s office that would suggest that DOJ staff members could have accessed information relating to the former Attorney General’s recommendation for appointment to the Supreme Court or any other related personal information held in Ministerial files or records.
39. In this context, we found no evidence that the DOJ had access to the personal information relating to the former Attorney General’s recommendation for appointment to the Supreme Court, and therefore found no evidence the disclosure originated from the DOJ.

Analysis

40. Based on the foregoing, while it is clear that information relating to the former Attorney General’s alleged recommendation that Chief Justice Joyal be appointed to the Supreme Court and the Prime Minister’s alleged rejection of the recommendation was disclosed to the media, there is no evidence to suggest that either the PCO or the DOJ was responsible for the disclosure. This conclusion is based on the representations of both departments, the interviews with departmental staff and fact-finding results, which demonstrated that neither was, at any time, in possession of the information in question about Chief Justice Joyal’s application or the former Attorney General’s recommendation for appointment to the Supreme Court. Therefore, we find no evidence that an unauthorized disclosure of personal information by the PCO or the DOJ, that would be prohibited under section 8 of the Act, occurred.
41. Subsection 64(2) of the Act states that “The Privacy Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Commissioner’s opinion, there is evidence of such an offence.”
42. Our investigation was constrained by the jurisdictional limits of the Act, so we did not investigate entities not subject to the Act. However, no evidence came to light during the course of our investigation with respect to any particular offence that would be disclosable to the Attorney General under subsection 64(2).

Findings

43. Accordingly, we find both the complaints against the PCO and DOJ to be not well-founded.

Other

44. The fact that our investigation was constrained by the jurisdictional limitations of the Act, in our view, clearly demonstrates the need for legislative reform of the Act. To this end, over the past several years, the Privacy Commissioner has made numerous public statements and Parliamentary submissions requesting, amongst other things, that the Act be amended to extend coverage to all government institutions, including Ministers’ Offices and the Prime Minister’s Office.
45. While we have not found a contravention of the Act by the government institutions that fall under our jurisdiction, it is clear that Chief Justice Joyal’s privacy was compromised and negatively impacted by the disclosure of his personal information relating to the Supreme Court application and nomination process. This has resulted in cascading injuries, not only through the collateral reputational damage to Chief Justice Joyal, but as well, to the integrity and confidentiality of the judicial nomination process.
46. During the course of our investigation, we spoke with Chief Justice Joyal in order to obtain additional information with respect to the personal privacy impacts of the leak. Apprised of the jurisdictional limitations of our investigation in terms of determining the nature and source of the leak he had the following to say: He stands behind his March 2019 statement (see paragraph 13 of this report) and remains disappointed that his personal information was used to build a false narrative of the alleged disagreement between the Prime Minister and the former Attorney General. He finds this particularly egregious due the reputational damage that it has caused him and the lack of respect demonstrated for the judicial appointment process, which is meant to be strictly confidential in order to protect the independence of the judiciary and the integrity of the appointment process.