Date: 20180412
Docket: T-575-17
Citation: 2018 FC 394
Ottawa, Ontario, April 12, 2018
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
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VB
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant represents himself in this matter. He brings this application pursuant to section 41 of the Access to Information Act, RSC, 1985, c A-1 [ATIA] seeking review of the Canadian Security Intelligence Service’s [CSIS] response to his request for documents “related to my identity.”
CSIS interpreted the request as seeking any documents from CSIS’ investigational records. CSIS responded by advising the applicant that it would neither confirm nor deny that such records existed but stated that if they did exist they could reasonably be expected to be exempt from disclosure under the ATIA.
[2]
I understand and sympathize with the applicant’s frustration in having received a response from CSIS that neither confirms nor denies the existence of records or documents requested. However, I have concluded that the application must be dismissed. For reasons that are set out below and after having reviewed and carefully considered the parties’ submissions I am unable to conclude that CSIS erred in addressing the applicant’s request for information or that the decision to neither confirm nor deny the existence of the records requested was unreasonable.
II.
Background
A.
The request
[3]
In June 2015 the applicant relied on the ATIA to request the disclosure from CSIS of any and all intelligence on him. He reports that he made the request after reading an article in the Toronto Star in May 2015 describing the ATIA request process.
[4]
The applicant’s ATIA request read as follows:
I’d like to be provided with documents or be informed about the existence of documents related to my identity. This might include but is not limited to, internet surveillance, publication history, travel history, court history etc or any record where my name [VB] occurs.
[5]
CSIS responded to the request in July 2015 and neither confirmed nor denied that any such intelligence records exist, but asserted that if there were such records they would reasonably be expected to be exempt from disclosure under subsection 15(1) or paragraphs 16(1)(a) and (c) of the ATIA. This response letter was brief, the relevant portion stating:
Based on information contained in your request, please be advised that the CSIS Personal Information Bank listed below was searched with the following results:
Canadian Security Intelligence Service Investigational Records (CSIS PPU 045) – Pursuant to subsection 10(2) of the Act, we neither confirm nor deny that the records you requested exist. We are, however, advising you, as required by paragraph 10(1)(b) of the Act, that such records, if they existed, could reasonably be expected to be exempted under one or more of sections 15(1) (as it relates to the efforts of Canada towards detecting, preventing or suppressing subversive or hostile activities), 16(1)(a) and (c) of the Act.
B.
Complaint before the Office of the Information Commissioner
[6]
The applicant filed a complaint with the Office of the Information Commissioner of Canada [OIC].
[7]
The applicant’s complaint to the OIC does not form part of the record, though the OIC’s conclusions are before the Court. The Report of Findings [ROF] states that “[i]n the course of our investigation, we have taken into consideration your representations, as well as the representations made by CSIS on the decision to invoke 10(2).”
It appears the complaint was limited to CSIS’ reliance on subsection 10(2) of the ATIA to neither confirm nor deny the existence of the records requested.
[8]
The OIC investigated and summarized its findings in an ROF dated March 9, 2017. The ROF informs the applicant that the OIC found CSIS’ refusal to disclose the existence of any records was reasonable. The OIC further found that by referring to Personal Information Banks [PIBs] in its response to an ATIA request, CSIS had created some confusion for requesters and on this basis classified the complaint as well-founded. The OIC also concluded that the confusion arising from the reference to PIBs did not impact upon the substance of the CSIS decision or render the decision invalid or incomplete. The relevant portion of the ROF states:
Our investigation has determined that CSIS’ reliance on 10(2) is reasonable and that the confirming or denying of the existence of records is subject to subsection 15(1), paragraph 16(1)(a), and paragraph 16(1)(c) of the Act.
However, we also established the CSIS’ use of PIBs to respond to these ATI requests was inappropriate. We have met with CSIS officials to discuss its use of Personal Information Banks (PIBs) to respond to access to information (ATI) requests given that it is confusing for requesters and can lead to complaints to our office. CSIS agreed to cease this practice immediately and resume responding in accordance with s. 10 of the Act.
C.
Procedural steps before the Court
[9]
After receiving the ROF, the applicant commenced this application in April 2017.
[10]
In June 2017, the respondent brought a motion seeking a confidentiality order. The respondent’s motion sought to prevent the disclosure of information in the course of this Court’s review of the CSIS decision to neither confirm nor deny the existence of any records sought and CSIS’s reliance on sections 15 and 16 of the ATIA to exempt records, if any, from disclosure to the applicant.
[11]
Justice Simon Noël issued an Order dated June 28, 2017 authorizing the respondent to file, in addition to its public application record, a secret supplementary affidavit and a secret version of the respondent’s factum. Justice Noël’s Order further provides that the respondent may make confidential submissions on an ex parte basis in camera, as provided for at section 52 of the ATIA.
[12]
I have had the opportunity to review and consider the secret supplementary affidavit, and the secret version of the factum filed by the respondent. On February 23, 2018, I presided over an ex parte in camera hearing in Ottawa where the respondent’s affiant appeared.
[13]
The applicant sought a redacted copy of the transcript of the ex parte in camera hearing. Instead I directed a summary of the hearing be prepared by the respondent based on the transcript. After having reviewed the summary I directed its release to the applicant on March 2, 2018. In correspondence with the Federal Court Registry on March 2, 2018 the applicant indicated some concerns with the summary provided but advised the Court in the course of the public hearing on March 5, 2018 that his focus was on the core issues raised in the application and he did not intend to pursue any concerns with the summary.
[14]
Subsequent to the public hearing of the application, the applicant wrote to the Court to indicate that he was seeking damages and any other relief the Court deemed appropriate in addition to costs. In reply the respondent noted that the relief being sought on the application was in the nature of certiorari pursuant to section 18.1 of the Federal Courts Act, SOR/98-106 [FCA]. The respondent submitted that the Court has no jurisdiction to award damages on an application for judicial review (Lessard-Gauvin c Canada (Procureur général), 2016 FCA 172 citing Canada (Attorney General) v TeleZone Inc, 2010 SCC 62). I am persuaded by the respondent’s submissions, but having concluded that the application must be dismissed I therefore need not address the availability of damages. Costs are addressed at the conclusion of these reasons.
III.
Relevant Legislation
[15]
Canadian citizens and permanent residents have a right to access any record under the control of government institutions, subject to exceptions set out in the ATIA (section 4). Where access to records is refused, the government institution is not required to confirm whether the requested records actually exist (subsection 10(2)). But if a government institution in refusing access chooses not to confirm whether records exist, it must also inform the requester of the ATIA provision on which a refusal of access could “reasonably be expected to be based”
if the records did exist (paragraph 10(1)(b)).
[16]
In this case CSIS informed the applicant that refusal could reasonably be expected to be based on subsection 15(1) and paragraphs 16(1)(a) and (c) if any records did in fact exist.
[17]
Subsection 15(1) is a very broad provision capturing information about the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, and the detection, prevention or suppression of subversive or hostile activities.
[18]
Paragraph 16(1)(a) protects information arising out of lawful investigations by investigative bodies. Paragraph 16(1)(c) protects information that could be “injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations.”
[19]
The ATIA also provides that a government institution “shall refuse to disclose any record requested under [the ATIA] that contains personal information as defined in section 3 of the Privacy Act”
(subsection 19(1)). This prohibition on the disclosure of personal information is subject to subsection 19(2) which provides that personal information may be disclosed in specific circumstances, including where the individual to whom the information relates consents to the disclosure (paragraph 19(2)(a)).
[20]
The ATIA provides that the Information Commissioner, appointed pursuant to section 54 of the ATIA, shall receive and investigate complaints from persons who have been refused access to a requested record (section 30). The Information Commissioner is mandated by Parliament to engage in “impartial, independent and non-partisan investigations”
for the purpose of “holding the government accountable for its information practices”
(HJ Heinz Co of Canada Ltd v Canada (Attorney General), 2006 SCC 13 at paras 33 and 34).
[21]
On completion of an investigation the Information Commissioner shall report the results of the investigation to the complainant and, where access to the record continues to be refused, advise the complainant of the right to apply to the Federal Court for a review of the matter investigated (subsections 37(2) and 37(5)).
[22]
A complainant may within forty-five days after receiving the report of the Information Commissioner apply to the Federal Court for a review of the matter (section 41). The burden of establishing that the refusal to disclose a record requested under the Act is authorized rests with the government institution (section 48).
[23]
For ease of reference, relevant sections of the ATIA have been reproduced in the Annex to this Judgment and Reasons.
IV.
Positions of the Parties
A.
Applicant’s Submissions
[24]
The applicant brings this application pursuant to section 41 of the ATIA submitting that full access should be provided to the records he had requested.
[25]
The issues the applicant raises and the relief sought in this application are not limited to a review of CSIS’ response to the applicant’s ATIA request. The Notice of Application also encompasses issues arising from prior litigation before other courts and in relation to distinctly different matters that are clearly not within the jurisdiction or authority of this Court to address. The limitations of the Court’s authority was raised and discussed with the applicant in the course of the public hearing. This Judgment addresses the CSIS decision to neither confirm nor deny that the records sought by the applicant exist and CSIS’ hypothetical reliance on sections 15 and 16 to exempt records from disclosure, if they did exist.
B.
Respondent’s Submissions
[26]
The respondent submits that the right of access to government information about an individual is subject to the exemptions set out in the ATIA. The respondent further notes that subsection 10(2) of the ATIA provides that a government institution is not required to confirm or deny the existence of records where access has been refused.
[27]
The respondent argues, relying on the Federal Court of Appeal’s decision in Ruby v Canada (Solicitor General), 187 DLR (4th) 675, 256 NR 278 (FCA), reversed on other grounds 2002 SCC 75 [Ruby], that CSIS may reasonably adopt a blanket policy of refusing to confirm or deny the existence of records; to do otherwise would disclose whether an individual is or is not the subject of an investigation. The respondent further submits that this Court has repeatedly upheld CSIS’ refusal to confirm or deny the existence of records in the context of national security or law enforcement investigations.
V.
Issues
[28]
The application raises the following issues:
A. Did CSIS err in concluding that it could rely upon sections 15 and 16 of the ATIA to exempt the records sought, if any such records did exist?
B. Did CSIS reasonably rely on subsection 10(2) when neither confirming nor denying the existence of the records sought?
VI.
Standard of Review
[29]
The Supreme Court of Canada has long held that the ATIA and the Privacy Act, RSC, 1985 c P-21 are parallel statutes that are designed to work together (Dagg v Canada Minister of Finance, [1997] 2 SCR 403 at para 47, 148 DLR (4th) 385). The two pieces of legislation contain complementary provisions relating to access to information under government control and are to be interpreted harmoniously in creating a seamless code (Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 at para 22).
[30]
The review of a government institution’s decision not to disclose a requested record under both the ATIA and the Privacy Act engages a two-step process. First the Court must consider whether the information falls within the scope of the exemption relied upon by the government institution. This determination is reviewed against a standard of correctness. If the Court determines that the government institution correctly relied upon the claimed exemption then the Court must consider if the government institution properly exercised its discretion in not disclosing the requested record. This review is conducted against a standard of reasonableness (Canada (Information Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104 at para 18; Braunschweig v Minister of Public Safety, 2014 FC 218 at para 29 [Braunschweig]).
[31]
A decision to adopt a blanket policy of neither confirming nor denying the existence of a record under subsection 16(2) of the Privacy Act, a provision that parallels subsection 10(2) of the ATIA, involves the exercise of discretion. Such determinations pursuant to subsection 16(2) of the Privacy Act are reviewable against a standard of reasonableness (Ruby at paras 66-67; Dzevad Cemerlic MD v Canada (Solicitor General), 2003 FCT 133 at paras 44-45 [Cemerlic], Westerhaug v Canadian Security Intelligence Service, 2009 FC 321 at para 17 [Westerhaug]). The exercise of this same discretion pursuant to subsection 10(2) of the ATIA is also to be reviewed against a standard of reasonableness.
VII.
Analysis
A.
Did CSIS err in concluding that it could rely upon sections 15 and 16 of the ATIA to exempt the records sought, if any such records did exist
[32]
The ATIA provides a broad right of access to records under the control of government institutions. The right to access is subject to limitations broadly recognizing that in some cases the right to access needs to be weighed against other legitimate interests.
[33]
The ATIA, as does the Privacy Act, provides for two types of exemptions that a government institution may rely upon to refuse disclosure of information; class-based exemptions and injury-based exemptions. These exemptions may either be mandatory or discretionary. The exemptions are described by Justice Simon Noël in Braunschweig, where he states at paragraphs 33 and 34:
[33] Both the Act and the ATIA provide two types of exemptions from disclosure: class-based exemptions and injury-based exemptions. This Court has summarized the distinction between the two classes in Bronskill v Canada (Minister of Canadian Heritage), 2011 FC 983 at para 13, [2011] FCJ No 1199:
[13] The exemptions laid out in the Act are to be considered in two aspects by the reviewing Court. Firstly, exemptions in the Act are either class-based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive in and of itself. For example, the section 13 exemption is related to information obtained from foreign governments, which, by its nature, is a class-based exemption. Injury-based exemptions require that the decision-maker analyze whether the release of information could be prejudicial to the interests articulated in the exemption. Section 15 is an injury-based exemption: the head of the government institution must assess whether the disclosure of information could “be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. [Emphasis added.]
[34] In addition, the exemptions under the Act and the ATIA can be categorized as either mandatory or discretionary, depending on the wording of the provision creating the exemption –whether the government “shall refuse to disclose” or “may refuse to disclose”. This means that depending on the provision relied upon, the government can be obligated to enforce the exemption or it can have the discretion to decide whether or not to enforce it.
[34]
In this case, CSIS received a request for documents “related to my identity.”
The request included a non-exhaustive list of sources for such information: “internet surveillance, publication history, travel history, court history etc.”
CSIS concluded the applicant was seeking information from its investigational holdings to determine if he had been investigated by CSIS. This interpretation and the resultant scope of the records review does not appear to have been the subject of complaint before the OIC and has not been raised in this proceeding.
[35]
In responding to the applicant’s request CSIS refused to confirm or deny that the records sought exist. CSIS also relied upon subsection 15(1) and paragraphs 16(1)(a) and (c) of the ATIA to advise the applicant that if any records did exist they would be exempt from disclosure.
[36]
Subsection 15(1) of the ATIA sets out a discretionary, injury-based exemption with respect to information that could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada, or the detection, prevention or suppression of subversive or hostile activities. CSIS’ hypothetical reliance on subsection 15(1) requires that it demonstrate: (1) any information sought falls within the scope of the exemption; and (2) having demonstrated the exemption is available, that it reasonably concluded disclosure of the information, if any, could be injurious. Paragraph 16(1)(c) also sets out a discretionary, injury-based exception in respect of information that could reasonably be expected to be injurious to the enforcement of any law or the conduct of lawful investigations.
[37]
Paragraph 16(1)(a) sets out a discretionary class-based exemption in respect of records obtained or prepared by an investigative body. In relying on this exemption CSIS must: (1) demonstrate that the documents it has exempted from disclosure, if any, contain information that falls within the defined class; and (2) having done so that it reasonably decided not to disclose the information.
[38]
The nature of the information sought, CSIS investigative records, is not in dispute. Records of this nature are described by the respondent’s affiant as consisting “predominately of sensitive national security information of the type described in ss 15(1) and 16(1).”
This type of information has been found, albeit in the context of the Privacy Act, by Justice Noël “to fall squarely within the description”
of the exemptions relied upon (Llewellyn v Canadian Security Intelligence Service, 2014 FC 432 at para 33 [Llewellyn]). I agree. CSIS investigative records relating to the applicant, if they exist, could reasonably be expected to fall within the exemptions provided for at subsections 15(1) and 16(1) of the ATIA.
[39]
I am also satisfied that CSIS did not act unreasonably in concluding, on a hypothetical basis, that it would rely on the subsection 15(1) and 16(1) exemptions to refuse to disclose any of the requested information if any such records did exist. I reach this conclusion having considered: (1) the information sought is information relating to CSIS investigative records; and (2) the evidence set out in the respondent’s unclassified affidavit to the effect that releasing such information would jeopardize CSIS investigations by disclosing whether CSIS had or has an investigation in relation to an individual or organization.
[40]
Through the respondent’s secret affidavit and the ex parte in camera hearing I have also had the opportunity to determine if any information does exist and if so to assess the reasonableness of CSIS’ reliance on the subsection 15(1) and 16(1) exemptions.
B.
Did CSIS reasonably rely on subsection 10(2) when neither confirming nor denying the existence of the records sought?
[41]
The ATIA expressly recognizes that in responding to a request for records or documents under the control of a government institution, the head of the government institution may decline to indicate if a record exists (ATIA, subsection 10(2)). A parallel provision is found at subsection 16(2) of the Privacy Act.
[42]
In considering the Privacy Act provision the Federal Court of Appeal has concluded: (1) subsection 16(2) permits a government institution to adopt a policy of neither confirming nor denying the existence of information where the information is of a specified type or nature; (2) adopting such a policy involves the exercise of a discretion; and (3) the discretion must be exercised reasonably (Ruby at paras 66-67).
[43]
The CSIS practice of neither confirming nor denying the existence of records where the information sought relates to CSIS investigative records has been consistently held to be reasonable where the information has been sought pursuant to the Privacy Act (Llewellyn at para 37, Cemerlic at paras 44 and 45, Westerhaug at para 18). The jurisprudence has found that confirming whether such information exists or not would be contrary to the national interest as it would alert individuals who potentially present a security risk as to whether they are the target of a CSIS investigation.
[44]
The result should not differ where information, if it were to exist, is requested pursuant to the ATIA instead of the Privacy Act as was done here. As noted above the ATIA and the Privacy Act are to be interpreted harmoniously in creating a seamless code. They each provide for a government institution to refuse to confirm or deny the existence of records subject to similar conditions. The interest in neither confirming nor denying the existence of records arises based on the nature of the information being sought. CSIS’ reliance on subsection 10(2) of the ATIA, in this circumstance, was reasonable.
[45]
The OIC took issue with CSIS making reference to Personal Information Banks in the context of an ATIA request as the PIBs are not provided for in the ATIA. The OIC found that making reference to PIBs in responding to an ATIA request was inappropriate as “it is confusing for requesters and can lead to complaints to our office.”
This concern does not impact upon my conclusion that CSIS’ reliance on subsection 10(2) was reasonable. However, it is worthy of some comment as I believe the PIB reference has caused some understandable confusion on the part of the applicant.
[46]
The application record suggests the applicant has interpreted the reference to PIBs as a reference to information banks created for and holding data in relation to him and him alone. The evidence of the CSIS affiant makes clear that this is not the case. PIBs are a creation of the Privacy Act that are relied upon to describe types of personal information held. PIBs are not personal to an individual, although an individual’s personal information, if any, that meets a PIB description will be identified within that specific PIB.
[47]
The PIB reference in the CSIS response is not a confirmation that records of the nature sought are held by CSIS. Instead the CSIS response in neither confirming nor denying the existence of the records opens the door to two equally possible scenarios: (1) the records exist but are not being disclosed on the basis that they are exempt from disclosure pursuant to sections 15 and 16 of the ATIA; or (2) no records exist. The absence of certainty this circumstance creates may understandably cause frustration to a requester but this situation is not unique to the applicant. As was noted by Justice Russel Zinn in Westerhaug:
[18] The Federal Court of Appeal in Ruby held that adopting a policy of non-disclosure was reasonable given the nature of the information bank in question, because merely revealing whether or not the institution had information on an individual would disclose to him whether or not he was a subject of investigation. I agree. If it is in the national interest not to provide information to persons who are the subject of an investigation, then it follows that it is also in the national interest not to advise them that they are or are not the target of an investigation. It is one of the unfortunate consequences of adopting such a blanket policy that persons who are not the subject of an investigation and who have nothing to fear from the government institution will never know that they are not the subject of an investigation. Nonetheless, and as was noted by Justice Kelen, this policy applies to every citizen of the country, and even judges of this Court would receive the same response as was given to Mr. Westerhaug and would not have any right to anything further. [Emphasis added.]
[48]
The response the applicant received to the request for investigative records was, as noted by Justice Zinn, the response every Canadian or permanent resident would receive. The reliance on subsection 10(2) was reasonable.
VIII.
Costs
[49]
The parties have sought costs.
[50]
Subsection 53 of the ATIA provides that costs awards are in the discretion of the Court and shall generally follow the event. Subsection 53(2) provides that an unsuccessful applicant may nonetheless be awarded costs where an application raises an important new principle in relation to the ATIA.
[51]
The issue raised on this application does not engage an important new principle, nor do the circumstances otherwise warrant an award of costs in favour of the unsuccessful applicant.
[52]
While costs normally follow the event, in this case I am not prepared to order costs against the applicant. I am of the view that the respondent’s reliance on PIBs created some confusion and played at least some role in the applicant pursuing this matter. I am also mindful that the applicant has advised the Court that he has represented himself in these proceedings out of necessity, not choice. There shall be no award of costs.
JUDGMENT IN T-575-17
THIS COURT’S JUDGMENT is that:
1. The application is dismissed; and
2. Costs are not awarded.
"Patrick Gleeson"
Judge
ANNEX
Access to Information Act, RSC, 1985, c A-1, Loi sur l’accès à l’information LRC (1985), ch A-1
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Privacy Act, RSC, 1985, c P-21, Loi sur la protection des renseignements personnels
LRC (1985), ch P-21
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FEDERAL COURT
SOLICITORS OF RECORD
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Docket:
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T-575-17
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STYLE OF CAUSE:
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VB v THE ATTORNEY GENERAL OF CANADA
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PLACE OF HEARING:
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Toronto, Ontario
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DATE OF HEARING:
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March 5, 2018
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JUDGMENT AND REASONS:
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GLEESON J.
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DATED:
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April 12, 2018
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APPEARANCES:
VB
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For The Applicant
(ON HIS OWN BEHALF)
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Melanie Toolsie and
Shain Widdifield
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For The Respondent
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SOLICITORS OF RECORD:
Attorney General of Canada
Toronto, Ontario
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For The Respondent
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