The Department of Justice was ordered to disclose an expert panel’s report on mandatory minimum penalties after the federal information commissioner rejected two grounds for keeping the entire document confidential.
In Department of Justice Canada (Re), 2026 OIC 39, dated April 9, 2026, the Information Commissioner of Canada found that the department had not shown likely harm to federal-provincial affairs. She also found that the report came from outside advisers whose work could not be withheld under the particular advice exemption invoked.
The decision concerns access to the panel’s report, not the constitutionality of any mandatory minimum sentence or a change to sentencing legislation. It does not establish that the ordered disclosure subsequently occurred.
A contentious subject was not enough to establish harm
The requester sought the Expert Panel on Sentencing Reform’s final report containing recommendations to the Minister of Justice and Attorney General of Canada. Justice withheld it in full under section 14 and paragraph 21(1)(a) of the Access to Information Act.
Section 14 permits withholding information whose disclosure could reasonably be expected to harm the conduct of federal-provincial affairs. The commissioner required specific evidence linking disclosure to probable harm beyond a merely possible outcome.
Justice argued that the report remained under consideration and that sentencing and mandatory minimum penalties continued to generate debate among federal, provincial and territorial partners. Releasing it could be perceived as unilateral federal action, undermining trust and cooperation.
The commissioner distinguished the sensitivity of a policy subject from the contents of this particular document. At the time of the access response, the report was six years old, had been drafted by a small volunteer group and contained recommendations that had not been implemented.
It did not describe active negotiations, reveal confidential information received from provinces or territories, or comment on their positions. Justice acknowledged that the report was developed independently of provincial or territorial engagement.
The commissioner found that Justice had not identified a particular aspect of the report likely to harm intergovernmental relations. A general concern that it might influence future discussions did not establish the exemption.
Volunteer panelists were outside advisers
Justice also relied on the exemption for advice or recommendations developed by or for government or a minister. Although the report met the rule that the records be less than 20 years old, subsection 21(2) excludes certain reports prepared by outside consultants or advisers from that protection.
Justice said the panelists worked under departmental oversight and a management framework, advising the minister directly. They were not fee-for-service contractors, and the department argued that their relationship resembled that of internal advisers even without formal special-adviser appointments.
The requester responded that panel members volunteered their time and were not paid for their work, although expenses for in-person meetings were covered. The commissioner agreed that they were outside consultants rather than directors, officers, employees or members of a minister’s staff.
The commissioner considered the lack of remuneration or an employment contract, the absence of formal appointments and the panelists’ latitude in completing the project. Reporting obligations and departmental expectations did not, on this record, establish the subordinate relationship asserted by Justice.
She therefore found that paragraph 21(2)(b) prohibited reliance on the advice exemption to withhold the report. The result turned on the panel’s actual relationship with government, not simply the department’s description of the panel as similar to internal advisers.
An order to disclose the complete report
The commissioner found the complaint well founded and ordered disclosure of the records in their entirety. After the initial report issued on February 18, Justice’s access-to-information director said on March 31 that the department would implement the order.
The final report provided 35 business days to apply for Federal Court review and stated that the order would take effect on the 36th business day if no application was made. The public reasons do not verify a later disclosure or establish that no review proceeding was brought.
For access requests involving outside policy advisers, the decision illustrates two distinct limits: a controversial topic does not itself prove harm to intergovernmental affairs, and the advice exemption must be read alongside Parliament’s express exception for qualifying outside-consultant reports.
