Date: 20040504
Dockets: T-865-00
T-1488-00
Citation: 2004 FC 483
Toronto, Ontario, May 4th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AND BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA and
THE MINISTER OF NATIONAL REVENUE and
THE MINISTER OF JUSTICE
Respondents
AMENDED REASONS FOR ORDER AND ORDER
[1] These are two separate applications pursuant to s.41 of the Privacy Act, R.S.C. 1985, c. P-21 ("the Act").
[2] The first application, under court file number T-865-00, is for a review of a decision made by the Access to Information and Privacy Office of the Department of Justice ("ATIP - Justice") denying in part the Applicant's request for personal information contained in files located at the Ontario Regional Office of the Department of Justice Canada. The ATIP - Justice refused to disclose the information claiming exemptions under s.22(1)(a)(ii), and ss. 26 and 27 of the Act.
[3] The second application, under court file number T-1488-00, is for a review of the decision of the Access to Information and Privacy Division of Revenue Canada ("ATIP - Revenue Canada") refusing in part the Applicant's request for information held by Revenue Canada. The ATIP - Revenue Canada refused to disclose the information claiming exemptions under s.22(1)(a)(ii), and ss. 26 and 27 of the Act.
[4] After being denied a portion of the information requested, the Applicant complained the Privacy Commissioner. The Applicant's complaints under the Act were denied by the Privacy Commissioner who concluded that the information withheld was properly exempted under the Act.
[5] The Applicant's s.41 applications encompass three separate access to justice issues: first, the Applicant asks for a review of the ATIP - Justice and ATIP - Revenue Canada decisions; second, the Applicant asks that s.46(2) of the Act be interpreted so as to open up the review process to an inquiry of criminal conduct in the course of events related to the documents under review; and third, the Applicant has served constitutional questions under s.56 of the Federal Court Act and argues that the Act offends the Charter of Rights and Freedoms. Each of these discrete elements of the Applicant's argument are dealt with in separate sections of these reasons.
I. Legislative Scheme and Factual Background
A. The legislative scheme
[6] The purpose of the Act is stated in s.2:
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2. The purpose of this Act 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.
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2. La présente loi a pour objet de compléter la législation canadienne en matière de protection des renseignements personnels relevant des institutions fédérales et de droit d'accès des individus aux renseignements personnels qui les concernent |
[7] As stated by Dubé J. in Lavignev. Canada (Commissioner of Official Languages), [1998] F.C.J. No 1527, s.2 states in clear terms that the purpose of the Act is to protect the privacy of individuals with respect to personal information about themselves and to provide them with the right of access to that information. Dubé J. noted that the Act complements the Access to Information Act, which also contains a purposive clause that provides a right of access to governmental information with the principle that it ought to be available to the public and that necessary exceptions to the right of access should be limited and specific. Therefore, disclosure is the rule and exemption is the exception.
[8] Individuals have a right to access personal information held about them by a government institution by virtue of s.12 of the Act:
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12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution. ...
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12. (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande :
a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;
b) les autres renseignements personnels le concernant et relevant d'une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l'institution fédérale puisse les retrouver sans problèmes sérieux. ... |
[9] The government institutions to which the Act applies are listed in Schedule I to the Act.
[10] In addition to being under the control of a government institution, the information must be "personal information". The term "personal information" is defined in s.3 of the Act as follows:
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"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
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« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
a) les renseignements relatifs à sa race, à son origine nationale ou ethnique, à sa couleur, à sa religion, à son âge ou à sa situation de famille;
b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
d) son adresse, ses empreintes digitales ou son groupe sanguin;
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(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual,
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
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e) ses opinions ou ses idées personnelles, à l'exclusion de celles qui portent sur un autre individu ou sur une proposition de subvention, de récompense ou de prix à octroyer à un autre individu par une institution fédérale, ou subdivision de celle-ci visée par règlement;
f) toute correspondance de nature, implicitement ou explicitement, privée ou confidentielle envoyée par lui à une institution fédérale, ainsi que les réponses de l'institution dans la mesure où elles révèlent le contenu de la correspondance de l'expéditeur;
g) les idées ou opinions d'autrui sur lui;
h) les idées ou opinions d'un autre individu qui portent sur une proposition de subvention, de récompense ou de prix à lui octroyer par une institution, ou subdivision de celle-ci, visée à l'alinéa e), à l'exclusion du nom de cet autre individu si ce nom est mentionné avec les idées ou opinions;
i) son nom lorsque celui-ci est mentionné avec d'autres renseignements personnels le concernant ou lorsque la seule divulgation du nom révélerait des renseignements à son sujet;
toutefois, il demeure entendu que, pour l'application des articles 7, 8 et 26, et de l'article 19 de la Loi sur l'accès à l'information, les renseignements personnels ne comprennent pas les renseignements concernant :
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(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or employee of the government institution,
(ii) the title, business address and telephone number of the individual,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(v) the personal opinions or views of the individual given in the course of employment,
(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,
(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and
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j) un cadre ou employé, actuel ou ancien, d'une institution fédérale et portant sur son poste ou ses fonctions, notamment :
(i) le fait même qu'il est ou a été employé par l'institution,
(ii) son titre et les adresse et numéro de téléphone de son lieu de travail,
(iii) la classification, l'éventail des salaires et les attributions de son poste,
(iv) son nom lorsque celui-ci figure sur un document qu'il a établi au cours de son emploi,
(v) les idées et opinions personnelles qu'il a exprimées au cours de son emploi;
k) un individu qui, au titre d'un contrat, assure ou a assuré la prestation de services à une institution fédérale et portant sur la nature de la prestation, notamment les conditions du contrat, le nom de l'individu ainsi que les idées et opinions personnelles qu'il a exprimées au cours de la prestation;
l) des avantages financiers facultatifs, notamment la délivrance d'un permis ou d'une licence accordés à un individu, y compris le nom de celui-ci et la nature précise de ces avantages;
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(m) information about an individual who has been dead for more than twenty years; |
m) un individu décédé depuis plus de vingt ans. |
[11] A government institution may refuse to disclose personal information if able to claim one of the exemptions contained in sections 19 to 28. The three exemptions relied upon by the ATIP - Justice and ATIP - Revenue Canada in the present case are s.22(1)(a)(ii), and sections 26 and 27, which are addressed below.
[12] Under the Act, the Privacy Commissioner receives and investigates complaints from individuals who have been denied access to personal information requested pursuant to s.12(1). The Privacy Commissioner must provide the head of the government institution that has control of the personal information with a report of the investigation's findings if he or she finds that such a complaint is well-founded. If, after the investigation of a complaint with respect to the refusal to allow access to personal information under the Act, access is not granted to the complainant, s. 41of the Act gives the complainant the right to apply to the Federal Court for a review of the refusal.
[13] Section 47 of the Act puts on the head of the government institution the burden of establishing that it was authorized to refuse to disclose the personal information requested. (See Ruby v. Canada (Solicitor General), [2002] S.C.C. 75 at para. 47) Section 47 reads as follows:
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47. In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1) or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned. |
47. Dans les procédures découlant des recours prévus aux articles 41, 42 ou 43, la charge d'établir le bien-fondé du refus de communication de renseignements personnels ou le bien-fondé du versement de certains dossiers dans un fichier inconsultable classé comme tel en vertu de l'article 18 incombe à l'institution fédérale concernée. |
B. Factual background
1. The Department of Justice documents (court file number T-865-00)
[14] By request dated April 8, 1998, the Applicant sought disclosure under the Act.
[15] The files relevant to the Applicant's request were located at the Ontario Regional Office of the Department of Justice Canada. Most of the files concerned a prosecution conducted by the Department of Justice in the late 1980s and early 1990s.
[16] The ATIP - Justice identified 209 pages as being relevant to the Applicant's request (referred to in the confidential affidavit of Anne Brennan dated May 30, 2001 at paras. 5, 6, 16, 18). The Department of Justice, Revenue Canada and the R.C.M.P. were consulted regarding the release of those documents to the Applicant.
[17] ATIP - Justice responded to the Applicant's request by sending him 12 full pages of information relevant to his request. Over 150 pages were denied entirely or released with some sections struck out on the basis of s.22(1)(a)(ii), and sections 26 and 27 of the Act.
[18] ATIP - Justice subsequently released further information, which had been subject to consultation with Revenue Canada. Out of these remaining 23 pages of information, over half were released in their entirety, while the others were denied or released with some sections struck out on the basis of s.22(1)(a) and sections 26 and 27 of the Act.
[19] In a letter dated August 10, 1998, the Applicant filed a complaint with the Privacy Commissioner pursuant to the Act concerning the denial of access to the documents.
[20] By letter dated April 19, 1999, the Privacy Commissioner indicated that a review had been conducted and that he was satisfied that the documents had been properly withheld under the sections of the Act that had been cited by ATIP - Justice.
[21] ATIP - Justice conducted a search for the letter that the Applicant had allegedly provided to Crown Attorney Gerald McCraken. ATIP- Justice was unable to find such a document and this was reported to the Privacy Commissioner.
[22] By letter dated April 5, 2000, the Privacy Commissioner indicated again that the Applicant's complaint was not well-founded and stated that the investigation of the Applicant's privacy complaint was complete.
2. The Revenue Canada documents (court file number T-1488-00)
[23] By request dated April 8, 1998, the Applicant sought disclosure under the Act of the following:
All files dating back to 1982 including files held by Revenue Canada Special Investigations, copies of all correspondence between Revenue Canada and the Federal Justice Department, the law firm Goodman and Goodman, R.C.M.P. and any files containing information from any third party source from 1982.
[24] A portion of the documents relevant to the Applicant's request were 809 pages of R.C.M.P. files ("the 809 R.C.M.P. pages") which had been provided to the Special Investigations Unit of Revenue Canada. After consultation with the R.C.M.P. regarding the release of these documents, the Applicant was denied access to the 809 R.C.M.P. pages on the basis of s.22(1)(a)(ii) of the Act (referred to in the confidential affidavit of Suzanne LaFrance dated May 30, 2001 at paras. 9, 10, 23, 27).
[25] In addition to the 809 R.C.M.P. pages, documents numbered pages 1 to 1943 ("the 1943 pages") were also identified as being relevant to the Applicant's request. All or part of these pages were held in the Toronto Centre Tax Services Office, Special Investigations Division of Revenue Canada and were said to concern an investigation of Mr. Gardiner regarding income tax offences. Some of the 1943 pages of information were exempted fully or partially from disclosure under s.22(1)(a) and sections 26 and 27 of the Act. (referred to in the confidential affidavit of Suzanne Lafrance dated May 30, 2001 at paras. 11, 12 to 15, 21, 22, 26). In addition, further documents were withheld on the basis they did not constitute "personal information" about the Applicant (referred to in the confidential affidavit of Suzanne Lafrance dated May 30, 2001 at para. 35).
[26] In March 1999, the Applicant filed a complaint with the Privacy Commissioner under the Act in relation to the denial of access to the documents. In addition to challenging the exemptions claimed, the Applicant complained that he had only received information from 1991 to the present and had been denied production of information covering the period of his request, which was for information in his tax files from 1982 to the present.
[27] In response to representations by the Privacy Commissioner, a further 34 pages of information numbered 1 to 34 were partially released to the Applicant on March 31, 2000. Some personal information was withheld from disclosure on the basis of sections 26 and 27 of the Act (referred to in the confidential affidavit of Suzanne LaFrance dated May 30, 2001 at paras. 17 to 19, 24).
[28] By letter dated June 30, 2000, the Privacy Commissioner advised the Privacy Commissioner of Canada Customs and Revenue Agency (formerly Revenue Canada) that a review had been conducted and that he was satisfied that the documents had been properly exempted under the Act, and that the information not processed did not constitute "personal information" about the complainant.
3. The applications for review under the Act
[29] The Applicant filed Notices of Application pursuant to s.18.1 of the Federal Court Act dated May 15, 2000 and August 11, 2000, and Notices of Constitutional Questions dated June 1, 2000, January 28, 2001 and July 22, 2003.
[30] By Orders dated March 1, 2001 and January 4, 2001 the Applications were converted into applications pursuant to s.41 of the Act.
II. Exemptions Claimed and Decisions Made
A. The exemptions claimed under the Act
1. Section 26
[31] Section 26 must be read in conjunction with s.8 of the Act. Sections 8 and 26 read as follows:
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8. (1) 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 this section.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed ...
(m) for any purpose where, in the opinion of the head of the institution,
(I) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8.
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8. (1) Les renseignements personnels qui relèvent d'une institution fédérale ne peuvent être communiqués, à défaut du consentement de l'individu qu'ils concernent, que conformément au présent article.
(2) Sous réserve d'autres lois fédérales, la communication des renseignements personnels qui relèvent d'une institution fédérale est autorisée dans les cas suivants :
m) communication à toute autre fin dans les cas où, de l'avis du responsable de l'institution :
(i) des raisons d'intérêt public justifieraient nettement une éventuelle violation de la vie privée,
(ii) l'individu concerné en tirerait un avantage certain.
26. Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui fait la demande et il est tenu de refuser cette communication dans les cas où elle est interdite en vertu de l'article 8. |
[32] Section 26 in conjunction with s.8, prevents a government from disclosing personal information concerning a third party without the consent of the third party, unless one of the circumstances in s.8(2) applies. (See Ruby v. Canada (Solicitor General), [2000] 3 FC 589 at paras. 115 to 117 (Fed. C.A.) varied without comment on s.26, [2002] SCC 75).
[33] Sections 8(2)(a) through (l) identify specific circumstances under which personal information concerning a third party may be released, none of which apply to the present case.
[34] Section 8(2)(m) permits the disclosure of information concerning third parties if it is in the public interest to do so or if disclosure would clearly benefit the person to whom it relates.
[35] Section 8(2)(m) requires a government institution to conduct a discretionary balancing of the public interest in disclosure and/or the benefit to the applicant of disclosing the information, against the right to privacy of third parties. In Ruby v. Canada (Solicitor General) (Fed. C.A.), the Court stated at para. 121:
...Section 26 was clearly meant to protect third parties from having confidential information revealed about them. In that provision, discretion is conferred upon the head of a government institution in order that he or she use judgment in balancing third party privacy interests with the requesting party's access rights. Subparagraph 8(2)(m)(I) was enacted in order that a similar discretionary balance be maintained between the public interest in disclosure and the right to privacy.
[36] The Court held at 119 that consideration must be given to s.8(2)(m)(I) when applying the exemption under s.26. The Court stated however that it is not necessary for every piece of information concerning another individual to be considered in relation to s.8(2)(m) of that provision before the head of the institution refuses to disclose it.
[37] In Kelly v. Canada (Solicitor General), [1992] F.C.J. No. 302 (T.D.), Strayer J. set out the following two-step approach to be taken when the head of a government institution invokes a discretionary exemption under the Act:
It will be seen that these exemptions require two decisions by the head of an institutions: first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.
The first type of factual decision is one which, I believe, the Court can review and in respect of which it can substitute its own conclusion. This is subject to the need, I believe, for a measure of deference to the decisions of those whose institutional responsibilities put them in a better position to judge the matter....
The second type of decision is purely discretionary. In my view in reviewing such a decision the Court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.
[38] The Respondents contend that the information withheld under s.26 constitutes "personal information" about individuals other than the Applicant, and that none of the third parties in question have given their consent to disclose their personal information to the Applicant. The Respondents submit that the discretion was properly exercised pursuant to s.26 and that there is no evidence of bad faith.
2. Section 22(1)(a)(ii)
[39] Section 22 reads as follows:
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22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
(a) that was obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to
(i) the detection, prevention or suppression of crime,
(ii) the enforcement of any law of Canada or a province, or
(iii) activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act,
if the information came into existence less than twenty years prior to the request; ... |
22. (1) Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) :
a) soit qui remontent à moins de vingt ans lors de la demande et qui ont été obtenus ou préparés par une institution fédérale, ou par une subdivision d'une institution, qui constitue un organisme d'enquête déterminé par règlement, au cours d'enquêtes licites ayant trait :
(i) à la détection, la prévention et la répression du crime,
(ii) aux activités destinées à faire respecter les lois fédérales ou provinciales,
(iii) aux activités soupçonnées de constituer des menaces envers la sécurité du Canada au sens de la Loi sur le Service canadien du renseignement de sécurité; ...
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[40] Section 22(1)(a) is a discretionary exemption and therefore, the two-step test from Kelly, which is referred to above, is applicable.
[41] The Respondents submit that the documents withheld under s.22(1)(a)(ii) were clearly documents gathered by an authorized investigative body in the conduct of lawful investigations pertaining to the enforcement of the laws of Canada and came into existence less than twenty years prior to the Applicant's access request. The Respondents further contend that the exercise of discretion to deny disclosure of the documents in question was done in good faith and in a manner consistent with the principles of the Act.
[42] The Respondents emphasize that in Longaphy v. Canada (Solicitor General), [1995] F.C.J. No. 1429 (Fed. T.D.), the Court held that the right of access granted to any person to his or her personal information must be exercised in light of several considerations: the right of others to privacy of their own information, due respect for confidentiality, and the lawful execution of investigations pertaining to the prevention of crime and the enforcement of laws in Canada.
3. Section 27
[43] Sections 27 provides that:
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27. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege. |
27. Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui sont protégés par le secret professionnel qui lie un avocat à son client. |
[44] Like s.22(1)(a), s.27 is a discretionary exemption subject to the aforementioned test in Kelly.
[45] The Respondents contend that the Court must also have regard to the common law definition in determining whether or not the documents in question were properly categorized as subject to solicitor-client privilege (Stevens v. Canada (Prime Minister), [1997] F.C.J. No.228, aff'd [1998] F.C.J. No. 794 (Fed. C.A.)). They submit that where legal advice of any kind is sought from a professional legal advisor in his or her capacity as such, the communications that relate to that purpose and made in confidence by the client are permanently protected from disclosure unless the protection is waived.
[46] The Respondents state that the information exempted from disclosure consists of communication between Crown Counsel and the RCMP and Revenue Canada with respect to the seeking and giving of legal opinion and communication regarding ongoing litigation. The Respondents contend that the information sought to be protected under s.27 therefore falls within the common-law definition of solicitor-client privilege. They further submit that in the present case, proper discretion was exercised under s.27.
B. Decisions made with respect to the exemptions claimed
[47] In the end result, no document to which the Respondent claimed an exemption was released to the Applicant.
[48] At the oral hearing of the present application, I agreed to the Applicant's request that any order with respect to the exemptions claimed be subject to my scrutiny of each and every document to determine whether there is any substantiation for the Applicant's argument made with respect to s.46(2) of the Act. The nature of the argument and my findings with respect to it are expressed in Section II of these reasons.
1. The Revenue Canada documents (court file number T-1488-00)
a. "the 1943 pages"
[49] During the oral hearing of this application, based on the evidence contained paragraph 26 of the confidential Affidavit of Suzanne LaFrance' sworn May 30, 2001 that the following pages are part of the Revenue Canada file pertaining to the enforcement of tax legislation respecting the Applicant, I ruled that the s.22(1)(a)(ii) exemption was properly claimed:
180 to 213, 247, 248, 276 to 278, 280, 334, 338, 340, 342 to 345, 348 to 351, 357, 360, 362, 364, 388, 441 and 442, 508, 511 to 517, 519, 521, 537, 564, 582 to 584, 588 and 589, 591, 593, 595, 597, 599 to 605, 620, 624, 632, 634, 653, 700, 706, 750 and 751, 754 and 755, 807, 816, 818, 820, 860, 862 and 863, 865 and 866, 868 and 869, 875, 922 and 923, 927 and 928, 930 and 931, 934, 936, 938, 940, 942, 944, 946 and 947, 964, 975, 977 to 999, 1000, 1002, 1004, 1023, 1025, 1074, 1078, 1080, 1393, 1398 and 1399, 1400 to 1403, 1405 to 1413, 1415 to 1440, 1443 and 1444, 1446 to 1449, 1452, 1454 and 1455, 1458 to 1467,1476, 1479 to 1490, 1492 and 1493, 1495 and 1496, 1498 to 1530, 1604 to 1617, 1715 to 1750, 1812 to 1822, 1852 to 1861, 1930, 1935, 1937 to 1940 to 1943, and 9044.
[50] In addition, other claims of exemption were sustained on the following pages: under s.26, pages 028 and 234; and under s.27, page 375.
b. "the 809 R.C.M.P. pages"
[51] During the oral hearing of this application, based on the evidence contained paragraph 27 of the confidential Affidavit of Suzanne LaFrance sworn May 30, 2001 that the whole of Exhibit "S", being the 809 R.C.M.P. pages are part of the Revenue Canada file pertaining to the enforcement of criminal legislation respecting the Applicant, I ruled that the s.22(1)(a)(ii) exemption was properly claimed to all the 809 R.C.M.P. pages.
[52] As a result of the rulings respecting the 1943 pages and the 809 R.C.M.P. pages just stated, Counsel for the Respondent did not ask for a determination on other exemptions claimed with respect to the documents. Also as a result of the rulings, and with expressed concern for further hearings needed to produce some documents not available and to clarify the exemptions claimed with respect to others, the Applicant abandoned his application for the release of any other Revenue Canada document.
2. The Department of Justice documents (court file number T-865-00)
[53] With respect to the 209 pages in the Department of Justice file to which exemptions were claimed, during the course of the oral hearing of this application, I agreed that, since the pages all pertain to a criminal investigation, if a s.22(1)(a)(ii) exemption was specifically claimed on the face of a particular page, the claim would be sustained. A number of documents were found to be ambiguous on this point, as well as with respect to other exemptions claimed. These documents were set aside for further investigation and argument.
[54] However, distinct rulings were made that exemptions were properly claimed to the following pages: 01, 27, 30, 32, 33, 34, 35, 02, 08, 09, 37, 42, 43, 44, 45, 46, 47, 48, 49-185, 190-201, 39, and 186-189 (Transcript of November 3, 2003, pp.134-209).
[55] In the end result, again with expressed concern that further hearings would be needed to decide on the exemptions claimed with respect to the documents set aside, the Applicant abandoned his claim for release of these documents.
III. The Interpretation of s.46(2) of the Privacy Act
and
the Crimes Against Humanity Act
[56] In the opening moments of the hearing of the present Applications, the Applicant made it very clear that the essence of his efforts in bringing the Applications was not to challenge the exemptions claimed, but to gain access to justice with respect to what he believes to be unfair treatment in his contact with public authorities, including the Attorney General, the Minister of Justice, the R.C.M.P., and the Privacy Commissioner of Canada. In order to achieve justice from his perspective, the Applicant advances an access to justice argument with respect to s.46(2) of the Act. Section 46 of the Act reads as follows:
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46. (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
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46. (1) À l'occasion des procédures relatives aux recours prévus aux articles 41, 42 ou 43, la Cour prend toutes les précautions possibles, notamment, si c'est indiqué, par la tenue d'audiences à huis clos et l'audition d'arguments en l'absence d'une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
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(a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or
(b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists.
(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof.
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a) des renseignements qui justifient un refus de communication de renseignements personnels demandés en vertu du paragraphe 12(1) ou de renseignements contenus dans un document demandé sous le régime de la Loi sur l'accès à l'information;
b) des renseignements faisant état de l'existence de renseignements personnels que le responsable d'une institution fédérale a refusé de communiquer sans indiquer s'ils existaient ou non.
(2) Dans les cas où, à son avis, il existe des éléments de preuve touchant la perpétration d'infractions aux lois fédérales ou provinciales par un cadre ou employé d'une institution fédérale, la Cour peut faire part à l'autorité compétente des renseignements qu'elle détient à cet égard. |
[57] The Applicant explained his purpose in making the s.46(2) argument as follows:
The only reason I'm in here after five and a half years under the Privacy Act is because I had expunged all my other options. I had spoken-we had gone to the Police, we had appealed to everybody. So I have a ladder of evidence bringing me to his moment in time.
In my opinion, I followed drug rapist Duane Tough into this Court. The Government is asking you to hide him from me. I believe s.46(2) gives you a discretional quasi-criminal jurisdiction because the Criminal Code of Canada is the law of Canada. The people that I'm accusing of the crimes are officers and employees of the Federal and Provincial Government Institutions. So, just as a last hope clause, as a mechanism. This is not what I wanted to do.
As it relates to the documents, I wrote a letter, as I said, and I waived my right to see the documents. I wanted the Court to see the documents in light of my argument (Transcript, November 3, 2003, pp.22-23).
In the course of the four days of hearing, interlaced with legal argument and comment, the Applicant fully described his complaints of perceived criminal conduct.
[58] Thus, apart from the usual pattern of decision making under s.41 of the Act, from the outset of the hearing of the Applications, the primary issue for determination is the correct interpretation of s.46(2). The disposition of the issue has two features: a commitment by me that I would scrutinize each document under review in each Application for evidence of the commission of an offence as clearly mandated by s.46(2), and the exchange of written argument and the provision of the opportunity for oral argument on whether s.46(2) can be interpreted as the Applicant wishes. On the latter feature, it was understood that, if the Applicant were to succeed in his argument with respect to interpretation, the evidence he tendered on his access to justice complaints would be considered for action to be taken.
[59] While I am impressed with the Applicant's industry and commitment, I cannot find in his favour on the interpretation of s.46(2) he advances.
[60] The Applicant argues that: by s.46(2), the Court has a wide ranging investigative power to, in a search for criminal conduct, review the actions of all government employees who have had any contact with the creation or processing of the information that he seeks to obtain; and the Respondents have an obligation to prove that all actions by such employees were lawful. In my opinion, the Applicant has not cited any relevant authority in support of this argument.
[61] In response, Counsel for the Respondents makes three arguments: a s.41 review is a review of specific decisions of the head of a government institution and should not proceed as a collateral or abusive attack on decisions of other administrative bodies or courts; s.46(2) does not permit collateral or abusive attacks, but permits the Court to report offences only if they are discovered in the course of an ex parte or in camera hearing conducted under the authority of s.46(1); and, although a government institution has the burden of persuading the Court that documents were properly exempted from disclosure, this burden does not impose on the government the burden of convincing the Court that the documents were, in all other respects, appropriately and legally created and maintained.
[62] In support of the second feature of his argument, Counsel for the Respondent cites the contextual principle of statutory interpretation whereby, in an interpretative exercise, the ordinary meaning of the words of a provision must be augmented by considering the influence of the other words of the text to which the term or expression is connected (Driedger on the Construction of Statutes, 3rd ed., p.197, Submissions in Reply, Tab 9).
[63] Other than the words used in the provision under consideration read in context, there is no specific guidance given within the Act to assist on determining the interpretation issue. In addition, there are no decided cases where the interpretation question has been addressed. However, as support for his argument on the interpretation of s.46(2), Counsel for the Respondent points to the following statement made by the Honourable Francis Fox, the then Secretary of State and Minister of Justice, about the meaning of the proposed s.46(2) during the 1981 Justice and Legal Affairs Committee deliberations after the second reading given to the Bill which resulted in the passage of the Act (November 19, 1981, p.54:34):
I think it is a two fold indication. I think, it is an indication to the people of Canada that, even if a document is not to be made public, there is an independent review process, in the course of which a court not only has access to documents which may never see the light of day because they are quite properly exempted from disclosure.
And there is another safeguard. If, upon reading the document, it comes to the conclusion that an offence has perhaps been committed, the court has all the discretion necessary to refer it to the appropriate authorities. I think it has a value being there as a clear indication of what the courts can do.
[64] In my opinion, Counsel for the Respondent argues the correct interpretation of s.46(2), and I so find.
[65] On this basis, my independent review is limited to the documents to which exemptions have been asserted by the Respondents. As I expressed above, my review of the documents on both Applications under s.41 would also include a search for evidence of the commission of an offence; I have found no such evidence.
[66] The Applicant also argues that the provisions of the Crimes Against Humanity Act provide another means whereby he can gain the access to justice which he seeks. I find that this criminal legislation cannot be used for this purpose; it does not provide investigative jurisdiction.
[67] After listening to the Applicant's detailed submissions over the course of the four days of the hearing, I understand the content of his access to justice concerns. However, as a result of the findings I have just made, I find that I do not have jurisdiction to judicially consider or act upon the concern for access to justice evidence that the Applicant has provided.
IV. The Constitutional Questions
[68] The Applicant has served notice of Constitutional questions: in the question filed June 15, 2000 in T-865-00, the Applicant argues that the Respondents' reliance on s.22(1)(a)(ii), s.26, and s.27 of the Act contravened his rights under s.2(b), s.7. s.9, s.10, s.11(b) and (d), s.12, and s.15 of the Charter; in the question filed January 29, 2001 in both T-865-00 and T-1488-00, the Applicant argues that s.41 and s.67(1) of the Act had the effect of contravening his rights under s.7 and 15 of the Charter; and, in the question filed July 29, 2003 in both T-865-00 and T-1488-00, the Applicant argues that s.41 of the Act and the Federal Court Rules had the effect of contravening his rights under s.7, s.12, and s.15 of the Charter.
[69] During the course of the oral argument, the Applicant abandoned the July 29, 2003 question. With respect to the two that remain, I must find that, while I know from his argument that the Applicant is seriously unhappy about the decision making that has taken place with respect to the Applications under review, in my opinion, there is no evidence that any of his Charter rights have been breached. As the burden to supply such evidence is on the Applicant, I find it has not been discharged. Therefore, I dismiss the Applicant's Charter arguments.
ORDER
Dockets: T-865-00
T-1488-00
Having conducted a review under s.41 of the Act with respect to the exemptions claimed to the documents which are the subject matter of each Application herein, and having found the exemptions are properly claimed to each document reviewed, I dismiss each of the Applicant's applications for disclosure.
I make no order as to costs.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-865-00
T-1488-00
STYLE OF CAUSE: ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AND BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA and
THE MINISTER OF NATIONAL REVENUE and
THE MINISTER OF JUSTICE
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATES OF HEARING: NOVEMBER 3, 2003 AND MARCH 8,9,10, 2004
AMENDED REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: MAY 4, 2004
APPEARANCES:
Alan Gardiner
FOR THE APPLICANT (On his own behalf)
Chris Leafloor
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Alan Gardiner
Toronto, Ontario
FOR THE APPLICANT (On his own behalf)
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENTS
FEDERAL COURT
TRIAL DIVISION
Date: 20040504
Dockets: T-865-00
T-1488-00
BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AND BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA and
THE MINISTER OF NATIONAL REVENUE and THE MINISTER OF JUSTICE
Respondents
AMENDED REASONS FOR ORDER
AND ORDER