Date: 20050210
Docket: T-2209-00
Citation: 2005 FC 216
Toronto, Ontario, February 10th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ELVIO DEL ZOTTO
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to s.41 of the Privacy Act, R.S.C., P.21 (the "Act") of the decision of the Royal Canadian Mounted Police (the "RCMP"), dated April 7, 2000, refusing to confirm or deny the existence of personal information requested about the Applicant pursuant to the grant of authority to do so under s.16(2) of the Act. In the decision, the statement was also made that, if any such information did exist, it would be exempt from disclosure in its entirety under s.22(1)(a)(i) of the Act as personal information relating to the detection, prevention, or suppression of crime (Applicant's Application Record ("AR"), p. 17).
[2] The primary issue for determination is whether the RCMP exercised its discretion within proper limits and on proper principles.
A. Factual background
[3] By request dated February 23, 2000, the Applicant sought disclosure of any personal information respecting his activities that the RCMP might have, without regard to where that information may be situated (AR, Tab 3F, p. 20).
[4] On March 2, 2000, the RCMP contacted Applicant's counsel to advise that the request would be processed under the Act, and to ascertain the possible location of the requested personal information. Applicant's counsel was asked whether he would consider narrowing the search request as the RCMP had 126 separate databases. Counsel for the Applicant advised the RCMP that it should include Ottawa, the Greater Toronto area, including Mississauga and Pearson International Airport, and Vancouver in its searches.
[5] In a letter dated April 7, 2000, the RCMP advised the Applicant that the request had been processed and that the RCMP was unable to confirm or deny the existence of the information requested. The RCMP further stated that if such information did exist, it would be exempt in its entirety under s.22(1)(a)(i) of the Act (AR, Tab 3D, p. 17).
[6] By letter dated May 4, 2000, the Applicant filed a complaint with the Office of the Privacy Commissioner of Canada ("Privacy Commissioner") (AR, Tab 3C, p. 15).
[7] In response to the complaint made to the Privacy Commissioner, the RCMP conducted a second review which was for all personal information relating to the Applicant. By letter dated August 31, 2000, the RCMP again advised the Applicant that the RCMP was unable to confirm or deny the existence of any information and that if any information did exist, it would be exempt in its entirety pursuant to s.22(1)(a)(i) of the Act (Respondent's Record ("RR"), Public Affidavit of Corporal Piquette, para. 10, p. 8; AR, Tab 3B, p. 14).
[8] By letter dated October 13, 2000, the Privacy Commissioner indicated that a review had been conducted and that the response provided by the RCMP was in accordance with the Act. The Privacy Commissioner further stated as follows:
Subsection 16(2) states that a government institution is not required to reveal whether personal information exists. Subsection 16(1) states that the institution must, however, indicate the sections of the Act upon which refusal of such information "could reasonably be expected to be based" if it did exist. Although the Act also prohibits me from either confirming or denying the existence of requested records, I have reviewed the matter and am satisfied that if such information does exist, it could reasonably be expected to be exempted by subparagraph 22(1)(a)(I) of the Privacy Act. I am further satisfied that the RCMP has properly exercised the discretion afforded it by virtue of subsection 16(2).
(AR, Tab 3A, p. 12-13)
[9] On September 19, 2001, the Applicant filed an amended Notice of Application for judicial review under s.41 of the Act.
B. The affidavit evidence
[10] In response to the Applicant's Notice of Application, Sergeant Estabrooks, Acting Head of the Disclosure Section, prepared public affidavits, sworn February 19, 2001, describing the processing of the Applicant's request for personal information. In addition, Sergeant Jones, an Analyst Reviewer, prepared a public affidavit and a confidential affidavit. However, due to the fact that she could not be cross-examined on her affidavits due to serious illness, Sergeant Jones' affidavits were withdrawn by the order of Madam Justice Heneghan, dated September 19, 2002 (AR, Tab 2, p. 5). In order to replace the affidavits of Sergeant Jones, Corporal Piquette prepared a public affidavit, sworn October 11, 2002, and a confidential affidavit, also sworn October 11, 2002, to explain the processing of the Applicant's request and the rationale for her response to the request. In addition, in response to jurisdictional issues raised by Counsel for the Applicant during the course of the hearing of the present Application, Sergeant Estabrooks also swore a second public affidavit dated April 22, 2004 (Applicant's Supplementary Application Record, Tab 1).
C. Determinations
1. The authority to act
[11] During the course of the hearing of the present Application, an issue arose as to Corporal Piquette's authority to act under the Act. After careful evaluation, it is agreed that Corporal Piquette, as the investigator on the access to information request, did not have jurisdiction to render any decision with respect to any information requested. It is also agreed that this jurisdiction resided only with Sergeant Estabrooks.
2. The admissibility of the Jones affidavit
[12] In addition, during the course of the hearing, Counsel for the Applicant made a second argument that there is some doubt as to whether the exercise of Sergeant Estabrook's discretion was according to law. The Applicant argues that, by comparing the withdrawn public affidavit of Sergeant Jones to the public affidavits of Corporal Piquette and Sergeant Estabrooks, some evidence exists that no personal information was found in the data banks inspected. Therefore, the Applicant argues that it follows that Sergeant Estabrooks discretion could not have been exercised according to law.
[13] During the course of the hearing, I dismissed the Applicant's second argument. Because Sergeant Jones' affidavit was withdrawn, I find it is not evidence on the present record, and, as a result, I find that there is no evidentiary basis for the comparison argument presented.
3. The exercise of Sergeant Estabrooks' authority
[14] With respect to the primary question of whether Sergeant Estabrooks was authorised to exercise his discretion as he did on the Applicant's access to information request, I am mindful of the provision of s.46 of the Act which requires me to take every reasonable precaution to avoid disclosure, and in particular where, as here, s.16(2) of the Act is invoked. I am also mindful of the Federal Court of Appeal's opinion stated at paragraph 39 of Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (F.C.A.) as follows:
It is the Court's function on an application for review under section 41 of the Act to ensure that the discretion given to the administrative authorities "has been exercised within proper limits and on proper principles." [See Note 11 below] This is why the reviewing Court is given access to the material in issue by section 45 of the Act. In our view, an applicant who, pursuant to section 41 of the Act, applies for judicial review of an institution's refusal to disclose the personal information requested, by definition, questions the validity of the exercise of discretion by that institution and nothing more is required from him or her. In such circumstances, this is the best an applicant can do. This is the most an applicant should be held to.
Note 11: Rubin, supra, note 9, at p. 276. [Rubin v. Canada (Canada Mortgage and Housing Corp.) [1989] 1 F.C. 265 (C.A.), at p. 276.]
[15] As a result, I find that the most I can say is that, given Counsel for the Applicant's arguments contained in the Memorandum of Fact and Law in Accordance with the Ruling of Campbell J. dated November 8, 2004, and given Counsel for the Respondent's arguments contained in the New Memorandum of Fact and Law, dated January 21, 2005, I am satisfied that Sergeant Estabrooks exercised the discretion given to him under s.16(2) of the Act within proper limits and on proper principles.
4. The consistency of the application of s.16(2) of the Act
[16] Apart from the circumstances of the present case, Counsel for the Applicant raises the point that there is evidence on the record in the present case to establish that the RCMP does not apply a consistent practice respecting the application of s.16(2) with respect to Data Bank 005 (see: Cross-Examination of Corporal Piquette, AR, p. 148, Q. 83). Counsel for the Applicant points to the following passages of Ruby to argue that the RCMP must apply a consistent practice:
66. In these factual circumstances, the particular nature and purpose of the Act and subsection 16(2) indicate that it was a reasonable exercise of discretion to adopt a general policy of never confirming the existence of information in the bank in question. Elsewhere in the Act, the government has been given a wide scope for protecting secrecy of law enforcement related banks where secrecy is deemed appropriate. By providing the option under subsection 16(2) of refusing to confirm or deny the existence of personal information, Parliament offered one more such mechanism, allowing government institutions the possibility of maintaining not just the content but also the existence of records confidential. In the cat-and-mouse games that spies and criminals play with law enforcement agencies, for the agency to feel bound to reveal information in certain circumstances could create opportunities for educated guesses as to the contents of information banks based on a pattern of responses. To adopt a generalized policy of always refusing to confirm the existence of personal information eliminates this threat.
And:
49. We agree with the respondent that the mere fact of revealing to an applicant that the bank contains information on him would reveal to that applicant that he is the subject of an investigation and, therefore, could jeopardize the conduct of sensitive on-going investigations. In addition, if the power conferred by subsection 16(2) to indicate whether personal information exists were to be exercised on a case-by-case basis, at times resulting in confirmation and at others [page621] in denial of the existence of information, it is not difficult to imagine that an individual or a group of individuals, in view of the nature of the bank itself, would be in a position to successfully extrapolate about the field, scope, length and intensity of active or related investigations. [See Note 13 below]
Note 13: See Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), at pp. 242-243; affd by (1992), 88 D.L.R. (4th) 575 (F.C.A.).
[17] I do not agree that the dicta quoted from Ruby establishes the obligation argued by Counsel for the Applicant. I accept the argument of Counsel for the Respondent that, to apply an inconsistent practice respecting the application of s.16(2), equally effects the purpose of the use of s.16(2) being to safeguard against the threat of disclosure of the contents of information banks.
ORDER
Accordingly, I dismiss the application.
At the request of Counsel, I reserve decision on the issue of costs pending further submissions, which I request to be filed within 30 days of the date of this Order.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2209-00
STYLE OF CAUSE: ELVIO DEL ZOTTO
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
DATE OF HEARING: FEBRUARY 8, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 10, 2005
APPEARANCES BY:
William C. McDowell
Robert Calderwood For the Applicant
Suzanne Duncan For the Respondent
SOLICITORS OF RECORD:
McCarthy Tetrault LLP
Toronto, Ontario
Del Zotto, Zorzi, LLP
Toronto, Ontario For the Applicant
John H. Sims, Q.C.,
Deputy Attorney General of Canada For the Respondent