Judgments

[2000] 3 F.C. 589

A-52-98

Clayton Charles Ruby (Appellant) (Applicant)

v.

The Solicitor General (Respondent) (Respondent)

A-872-97

Clayton Charles Ruby (Appellant) (Applicant)

v.

The Royal Canadian Mounted Police and The Department of External Affairs (Respondents) (Respondents)

A-873-97

Clayton Charles Ruby (Appellant) (Applicant)

v.

The Solicitor General (Respondent) (Respondent)

Indexed as: Ruby v. Canada (Solicitor General) (C.A.)

Court of Appeal, Létourneau, Robertson and Sexton JJ.A.—Ottawa, March 7, 8 and June 8, 2000.

Privacy — Appeals from dismissal of judicial review of Privacy Commissioner’s denial of complaints concerning refusal to disclose personal information by CSIS, RCMP, Department of External Affairs (DEA) — (1) Burden of proof — Privacy Act, s. 47 imposing burden on institution head to establish refusal to disclose authorized — Encompassing proof conditions of exemption met, discretion properly exercised — As application for judicial review pursuant to s. 41 by definition questioning validity of exercise of discretion, nothing more required of applicant — (2) Interpretation of exemptions claimed — (i) S. 22(1)(a) only permitting refusal to disclose personal information where information coming into existence less than 20 years prior to request — Sole document at issue in RCMP bank over 20 years old — (ii) DEA neither confirming nor denying existence of information requested under general policy never to disclose whether information in bank — S. 16(2) providing institution head not required to indicate under s. 16(1) whether personal information exists — Not contemplating exercise of discretion, but clarifying s. 16(1) option to refuse to confirm existence of information — Even if s. 16(2) conferring discretion, not required to be exercised on case-by-case basis — Given particular nature, purpose of Act, factual circumstances, adoption of such general policy judicious exercise of discretion — DEA claiming exemption under s. 22(1)(a), (b) if information existed — Motions Judge’s reasons not specifically mentioning s. 22(1)(a) — As some doubt as to whether reviewed exercise of discretion by DEA, new review with respect to s. 22(1)(a) exemption ordered — S. 22(1)(b) authorizing refusal of access to information where disclosure could be injurious to law enforcement — Not authorizing refusal to disclose where disclosure could have chilling effect on investigative process in general — (iii) CSIS refusing to confirm, deny existence of information, but claiming ss. 19, 21, 22, 26 exemptions — Information in CSIS banks should be reviewed to identify which information not covered by s. 22(1)(b) — S. 19 requiring refusal to disclose personal information obtained in confidence from another government or international organization of states without consent — Authority claiming benefit must ensure third party not consenting to disclosure — Claim under s. 19 should be reviewed to ensure CSIS made reasonable efforts to seek consent of third party — S. 26 permitting refusal to disclose personal information about third party, requiring refusal to disclose where prohibited under s. 8 — Must read ss. 8, 26 together — S. 8(2)(m)(i) permitting disclosure of personal information where public interest in disclosure outweighing invasion of privacy — Manner of balancing interests within institution head’s discretion — Unclear whether CSIS considered s. 8(2)(m)(i), properly applied s. 26 exemption — New review of personal information to determine whether s. 26 exemption properly applied.

Constitutional law — Charter of Rights — Fundamental freedoms — Privacy Act, s. 51(2) providing application under s. 41 relating to personal information institution head refused to disclose under ss. 19(1)(a),(b), 21 shall be heard in camera — S. 51(3) permitting institution head to make representations ex parte — Appellant submitting mandatory in camera, ex parte proceeding denying individual meaningful information about why access to personal information refused, making it impossible to formulate intelligent submissions as to why government acted improperly in denying access to information sought — Submitting law should provide affected persons with description of withheld information — Proposed solution (i) impractical where institution head entitled to refuse to confirm, deny existence of information; (ii) if undisclosed information involved national security, foreign confidences, judge would certainly exercise discretion in favour of Crown; (iii) remedy not related to alleged breach — S. 51(2)(a), (3) infringing Charter, s. 2(b), but justified under s. 1.

Constitutional law — Charter of Rights — Life, liberty and security — Privacy Act, s. 51(2) providing application under s. 41 relating to personal information institution head refused to disclose under ss. 19(1)(a),(b), 21 shall be heard in camera — S. 51(3) permitting institution head to make representations ex parte — S. 51 merely procedural provision aimed at preventing accidental disclosure of national security information, foreign confidences — Tied to process requiring disclosure of personal information to judge to assess whether exemption justified — Such procedural safeguard not depriving applicant of liberty interest.

Judges and Courts — Fettering discretion — Privacy Act, s. 46 authorizing reviewing judge to receive ex parte representations, hold in camera hearings when claims for exemptions based on other than ss. 19(1)(a),(b), 21 — Both ex parte representations, in camera hearings mandatory when ss. 19(1)(a),(b), 21 claims made — Only written ex parte representations filed in relation to refusals to disclose by RCMP, DEA, CSIS — Reviewing Judge of view sound practice for Court to receive ex parte submissions in proceedings contesting such refusal — Such evidence assisting judge, ensuring secret information not disclosed where exemption from disclosure justified — Judge of opinion ex parte submissions effective compromise making sense generally — Judge not fettering his discretion.

Evidence — Reviewing Judge in Privacy Act matter refusing to admit expert evidence of appellant’s former law partner on grounds marginally relevant, evidence contained not necessary, witness not independent — Affidavit should have been admitted upon judicial review — Satisfied logical, legal relevancy tests as value outweighed impact on process — Satisfying necessity test as asserting facts outside experience, knowledge of Judge — Should not have been excluded for possible bias of affiant, as going to credibility, not admissibility.

These were appeals from the dismissal of judicial review applications pursuant to Privacy Act, section 41 against the Privacy Commissioner’s decisions with respect to complaints concerning the failure to disclose personal information, and from a decision that Privacy Act, section 51 was not unconstitutional. In 1988 the Royal Canadian Mounted Police (RCMP) refused to disclose to the appellant all information about him in personal information bank 005 on the ground that the records were exempt from disclosure under Privacy Act, subparagraph 22(1)(a)(ii), which grants discretion to refuse to disclose personal information where it has been obtained by an investigative body in the course of a lawful investigation, and section 27, which confers such discretion where the information is subject to solicitor-client privilege. The Privacy Commissioner upheld the RCMP’s refusal. The only RCMP document still in dispute is a letter from the Department of Justice to the Officer in Charge regarding advice re: possible investigations.

With respect to the appellant’s request to have access to bank 040, maintained by the Department of External Affairs (DEA), the DEA would neither confirm nor deny the existence of the information requested, but stated that if it did exist, the information would reasonably be considered exempt from disclosure under paragraphs 22(1)(a) and (b). Paragraph 22(1)(b) permits an institution head to refuse to disclose information which could reasonably be expected to be injurious to the enforcement of any law or the conduct of any lawful investigation. It was the DEA’s policy never to disclose information in bank 040 in order to forestall attempts by applicants systematically making requests and trying to discern from the pattern of answers the kind of information the DEA possessed. The Commissioner concluded that the DEA position was reasonable. The RCMP and the DEA filed supplementary secret affidavits subject to a confidentiality order. The RCMP provided the requested documents containing personal information about the appellant while the DEA advised whether or not personal information concerning the appellant existed in the information bank and, if so, why that information was exempt from disclosure under paragraphs 22(1)(a) and (b).

Finally, the Canadian Security Intelligence Service (CSIS) refused to confirm or deny the existence of the information requested, adding that if it did exist, it would be exempt from disclosure pursuant to sections 19, 21, 22 and 26. Section 19 provides that an institution head shall refuse to disclose personal information obtained in confidence from a foreign government or international organization of states unless that government or institution consents to disclosure or makes the information public. Section 26 permits an institution head to refuse to disclose personal information about a third party and requires the refusal to disclose where it is prohibited under section 8. Subparagraph 8(2)(m)(i) permits the disclosure of personal information under the control of a government institution where the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. The Commissioner held that the refusal of CSIS to confirm or deny existence of personal information was within the requirement of subsection 16(2), which provides that an institution head is not required to indicate under subsection 16(1) whether personal information exists.

Section 46 authorizes a reviewing judge to receive ex parte representations and hold in camera hearings when the claims for exemptions are based on provisions other than paragraph 19(1)(a) or (b) or section 21. However, both ex parte representations and in camera hearings are mandatory when paragraph 19(1)(a) or (b) or section 21 claims are made. Only written ex parte representations in the form of supplementary secret affidavits were filed pursuant to section 46 in relation to the refusals to disclose by the RCMP, the DEA and CSIS. The appellant submitted that the reviewing Judge fettered his discretion in ruling that such representations are necessary in every review.

The reviewing Judge refused to admit the expert evidence of Mr. Copeland, a former law firm partner of the appellant, on the grounds that it was marginally relevant, the evidence it contained was not necessary and Mr. Copeland was not an independent expert in view of his former association with the appellant and in view of the fact that he was pursuing his own access proceedings.

Subsection 51(2) provides that an application under section 41 relating to personal information that the institution head refused to disclose under paragraph 19(1)(a) or (b) or section 21 shall be heard in camera. Subsection 51(3) permits an institution head to make representations ex parte. The constitutional challenges to section 51 only arise in the context of CSIS’s refusal to provide access to personal information CSIS submitted that the investigations referred to in bank 010 would be jeopardized if individuals or organizations involved in those investigations were able to confirm CSIS’s interest in them. The information in bank 015 is more dated and less sensitive. The Motions Judge found that paragraph 51(2)(a) and subsection (3) restrict the rights enshrined in Charter, paragraph 2(b) (freedom of expression), but that the impugned provisions were saved under section 1.

The issues were: (1) on whom did the burden of proof that the exemptions were properly claimed and applied lie; (2) what was the proper interpretation of the scope of the exemptions claimed; (3) whether the Trial Judge fettered his discretion to receive ex parte representations pursuant to section 46; (4) whether the Judge erred in refusing to admit the expert evidence of Mr. Copeland; (5) whether the procedure in Privacy Act, section 51 violates Charter, paragraph 2(b) (guaranteeing freedom of expression), section 7 (right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice).

Held, the appeal in A-872-97 should be allowed in part; the appeal in file A-873-97 should be allowed; and the appeal in A-52-98 should be dismissed.

(1) In these peculiar circumstances — where accessibility to personal information is the rule and confidentiality the exception, where an applicant has no knowledge of the personal information withheld, no access to the record before the court and no adequate means of verifying how the discretion to refuse disclosure was exercised by the authorities, and where section 47 of the Act clearly puts on the head of a government institution the burden of establishing that it was authorized to refuse to disclose the personal information requested and, therefore, that it properly exercised its discretion in respect of a specific exemption it invoked — an applicant cannot be made to assume an evidential burden of proof. In applying for judicial review of an institution’s refusal to disclose the personal information requested pursuant to section 41, an applicant by definition questions the validity of the exercise of discretion by the institution head, and nothing more is required from him or her.

(2) The issue of the one remaining document that the RCMP refused to disclose was moot. Paragraph 22(1)(a) only permits refusal to disclose any personal information requested under subsection 12(1) where the information came into existence less than 20 years prior to the request. In this case, 20 years or more have elapsed.

The reviewing Judge did not err in finding that the information contained in the document was properly classified within section 27.

(i) The appellant submitted that the DEA’s policy of systematically refusing to confirm or deny the existence of personal information constitutes a fettering of its discretion. Subsection 16(2) does not contemplate either an exercise of discretion, or a duty to exercise discretion on a case-by-case basis. When access to the requested material is denied, subsection 16(1) gives the institution head a choice of stating that the information does not exist or that it exists, but is exempt, or that if it existed, it would be exempt under one or more specific provisions in the Act. The last option gives the institution head the power to speak hypothetically. Subsection 16(2) does not add anything that was not already inherent in subsection 16(1). It merely clarifies what is already expressed in subsection 16(1) and the use of “may” in subsection 16(2) merely signals that the institution head is empowered to refuse access by exercising the option in paragraph 16(1)(b) of refusing to confirm the existence of information. It need not imply the conferral of discretion. That interpretation is supported by the use of “may but is not required” in a context where access to personal information is the rule, and denial of access is an exception which needs to be stated. These words show Parliament’s intent to confer upon an institution head the power to refuse an applicant access to the very fact of the existence of personal information which otherwise it would be compelled to disclose if the enabling power were absent. And, the word “may” has been dropped in the French version of subsection 16(2), which simply states that the head of a government institution is not required to indicate whether personal information exists.

But even if subsection 16(2) confers a discretion, in these factual circumstances, where the nature of the bank in question renders the mere fact of revealing the existence of information an act of disclosure i.e. that the requesting party is or is not the subject of an investigation, and given the nature and purpose of the Act and subsection 16(2), it was a reasonable exercise of discretion to adopt a general policy of never confirming the existence of information in the bank in question. This is one of the rare instances where the adoption of a general policy is itself a judicious exercise of discretion. Nor is the general policy in this case a fettering of discretion. The Act grants a citizen the right to complain to the Privacy Commissioner, and to request the Federal Court to review the authorities’ actions, thus imposed on the institution head an obligation when carrying out the general policy of not confirming or denying the existence of personal information, to ensure that the information is examined and meets the hypothetically claimed exemptions.

The Motions Judge’s reasons and conclusions did not specifically mention paragraph 22(1)(a), thus leaving some doubt as to whether he had reviewed the exercise of discretion by the DEA with respect to the paragraph 22(1)(a) exemption. As one of the objectives of the Act is to provide access to a citizen to personal information held by the Government, a new review should be conducted with respect to the paragraph 22(1)(a) exemption.

Paragraph 22(1)(b) does not authorize a refusal to disclose where disclosure could have a chilling effect on the investigative process in general. Such an extension of paragraph 22(1)(b) would make paragraph 22(1)(a) redundant, since everything in the course of a lawful investigation, as well as the information gathered as a result thereof, would be incorporated by paragraph 22(1)(b). In addition the 20-year limit applicable to the paragraph 22(1)(a) exemption would become meaningless as the information could now be kept forever pursuant to paragraph 22(1)(b). Moreover, the third party information exception contained in section 19 would become unnecessary when the confidential information had been obtained from that third party in the course of an investigation. Finally, none of the examples in subparagraphs 22(1)(b)(i), (ii), and (iii) refer to the investigative process at large. The reviewing Judge should not have extended the notion of injury in paragraph 22(1)(b) beyond injury to a specified investigation.

(ii) In view of the conclusion that paragraph 22(1)(b) was not correctly applied, the information in CSIS’s banks 010 and 015 should be reviewed anew to identify which information, if any, was not covered by that exemption.

The section 19 exemption is not an absolute prohibition against disclosure. Subsection 19(2) authorizes an institution head to disclose the information where the third party consents. The authority who claims the benefit of the exemption must ensure that the third party is not consenting to disclosure because the applicant does not even know if personal information exists, who the third party is who provided the information, and even if told who the third party is, he would not necessarily know where to address his request for consent. The applicant does not know the contents of the information and what it relates to, and therefore cannot provide to the third party all the relevant details that are necessary to both meaningfully identify the issues and seek the consent of that third party. Finally, it is unfair in these conditions to place upon an applicant an almost impossible burden to meet. For all practical purposes, the possibility of obtaining a consensual release of the information becomes so remote as to be non-existent. Political and practical considerations may make it impractical to seek consent on a case-by-case basis and lead to the establishment of protocols which respect the spirit and letter of the Act and the exemption. The respondent’s claim under section 19 to a valid exemption from disclosure of the personal information should be reviewed to ensure that CSIS made reasonable efforts to seek the consent of the third party who provided the requested information.

The balancing of public interest against invasion of privacy required by subparagraph 8(2)(m)(i) does not have to be done in reference to every piece of information concerning every party to whom the information relates. The manner in which to conduct the weighing of interests is within the discretion of the head of the institution head. The purpose of the grant of discretion under subparagraph 8(2)(m)(i) involves protection of the interest of Canadian citizens in privacy. The right to privacy may be understood specifically, as in the privacy of individuals or as a broadly conceived policy goal, without reference to particular individuals. The extent to which the privacy interest ought to be considered in a more or less specific form will depend largely on the facts surrounding each request. It was unclear whether CSIS considered subparagraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26. Nor was it clear whether the reviewing Judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself. There should be a new review of the personal information requested in banks 010 and 015 to determine whether the exemption in section 26 was properly applied.

(3) The reviewing Judge was of the view that it is sound practice for the Court to receive ex parte submissions in proceedings which contest refusal to disclose. Such evidence assists the Judge in his review and helps to ensure that confidential or secret information is not disclosed to the public or the applicant when an exemption from disclosure is justified. The reviewing Judge was of the opinion that ex parte submissions are an effective compromise generally. The fact that this solution makes sense generally does not mean that he fettered or improperly exercised his discretion to accept such evidence in this particular instance. This ground of appeal should be dismissed.

(4) Mr. Copeland’s affidavit should have been admitted for the purpose of judicial review. It satisfied both the logical and legal relevancy tests in that its value outweighed its impact on the process, i.e. its prejudicial effect. In order to satisfy the necessity test, the expert opinion must be necessary “in the sense that it provide information `which is likely to be outside the experience and knowledge of a judge or jury’”. The affiant asserts some facts relating to information that is likely to be outside the knowledge of a reviewing judge. Finally the Copeland affidavit should not have been excluded on account of a possible bias of the affiant. Such factor goes to the credibility of the evidence, not its admissibility.

(5) The appellant maintained that mandatory in camera and ex parte proceedings deny an individual any meaningful information about why access to personal information has been refused, making it impossible to formulate intelligent submissions as to why the government acted improperly in denying access to the information sought. The appellant argued that the law should address this informational void by providing affected persons with a description of the withheld information sufficient to enable him to challenge the government’s refusal to disclose it. There were three reasons why this argument could not succeed: (1) The solution proposed is impracticable in those cases where the respondent is entitled under subsection 16(2) to refuse to confirm or deny the existence of information and also in cases involving large numbers of documents or a small number of complicated documents; (2) Even if section 51 granted the judge a discretion, it is virtually certain that if the respondent presented appropriate evidence that the undisclosed information involved national security or foreign confidences the judge would exercise his or her discretion in favour of the Crown and hear the matter in camera, if asked, and ex parte. Moreover, the fact that the legislation limits the mandatory nature of section 51 to reviewing the non-disclosure of information described in sections 19 and 21 demonstrates that Parliament was acutely aware of the need to ensure as much openness as possible in the disclosure process. The exceptions fall into a narrow subset and are self-justifying; (3) The remedy which the appellant seeks bears no relationship to the alleged Charter breach. Assuming that section 51 breached the right to freedom of expression in Charter, paragraph 2(b) and was not saved under section 1, the logical constitutional remedy would be to replace the mandatory wording of section 51 with a discretionary provision. Effectively section 51 would be superceded by the general procedural provisions in section 46, which does not oblige the reviewing judge to provide summaries of information contained within confidential affidavits where a discretion is exercised to accept such documents on an in camera and ex parte basis. In effect, the appellant is asking the Court to rewrite both sections 46 and 51 on the mistaken assumption that section 51 is unconstitutional. Paragraph 51(2)(a) and subsection 51(3) infringe Charter, paragraph 2(b), but they are saved under Charter, section 1.

The mandatory provisions of section 51 dealing with in camera and ex parte proceedings do not engage the liberty interests envisaged by Charter, section 7. Section 51 is merely a procedural provision aimed at preventing the accidental disclosure of national security information or foreign confidences and is tied to a process which, at the end of the day, simply requires disclosure of all personal information to a judge for the purpose of assessing whether the exemptions being claimed by the head of a government institution are justified. Such a procedural safeguard, which provides, in limited situations, that an ex parte and in camera hearing will be held with respect to a refusal to disclose, does not “deprive” an applicant of his liberty interest. The collection, use and dissemination of personal information triggers the right to privacy and Charter, section 7, not the right of access provided under section 12.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 15, 16(1), 48.

Archives Act 1983, No. 79, 1983 (Aust.).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b), 7, 8.

Criminal Code, R.S.C., 1985, c. C-46, ss. 185 (as am. by S.C. 1993, c. 40, s. 5; 1997, c. 18, s. 8; c. 23, s. 4), 186(1)(e) (as am. by S.C. 1993, c. 40, s. 6), 187 (as am. by idem, s. 7), 196 (as am. idem, s. 14; 1997, c. 23, s. 7).

Freedom of Information Act, 5 U.S.C. § 552 (1994).

Interpretation Act, R.S.C., 1985, c. I-21, s. 11.

Official Secrets Act, R.S.C., 1985, c. O-5.

Privacy Act, R.S.C., 1985, c. P-21, ss. 4, 5, 6, 8, 10, 11, 12, 16, 18, 19, 21, 22, 26, 27, 29 (as am. by S.C. 1992, c. 21, s. 37), 30, 31, 32, 33, 34 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187), 35, 36, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51.

Young Offenders Act, S.C. 1980-81-82-83, c. 110, s. 4(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (1988), 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 1 Imm. L.R. (3d) 1; 243 N.R. 22; R. v. S. (S.), [1990] 2 S.C.R. 254; (1990), 57 C.C.C. (3d) 115; 77 C.R. (3d) 273; 49 C.R.R. 79; 110 N.R. 321; 41 O.A.C. 81; Julius v. Bishop of Oxford (1880), 5 App. Cas. 214 (H.L.); Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (1997), 154 D.L.R (4th) 414; 221 N.R. 145 (C.A.); Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54; 53 F.T.R. 147 (F.C.T.D.); affd by (1993), 13 Admin. L.R. (2d) 304; 154 N.R. 319 (F.C.A.); Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325(abridged); (1991), 36 C.P.R. (3d) 289; 41 F.T.R. 202 (T.D.); R. v. Mohan, [1994] 2 S.C.R. 9; (1994), 114 D.L.R. (4th) 419; 889 C.C.C. (3d) 402; 29 C.R. (4th) 243; 166 N.R. 245; 71 O.A.C. 241; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; (1998), 38 O.R. (3d) 735; 159 D.L.R. (4th) 385; 226 N.R. 1; 109 O.A.C. 201; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; R. v. Mills, [1999] 3 S.C.R. 668; (1999), 244 A.R. 201; 180 D.L.R. (4th) 1; [2000] 2 W.W.R. 180; 75 Alta. L.R. (3d) 1; 139 C.C.C. (3d) 321; 28 C.R. (5th) 207; 248 N.R. 101.

DISTINGUISHED:

Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; (1996), 138 D.L.R. (4th) 423; 109 C.C.C. (3d) 289; 1 C.R. (5th) 1; 201 N.R. 241.

CONSIDERED:

R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632; 23 D.L.R. (4th) 532; 23 C.C.C. (3d) 48; 48 C.R. (3d) 341; 18 C.R.R. 132; 11 O.A.C. 279 (C.A.); Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario, Re (1981), 121 D.L.R. (3d) 403; [1981] C.T.C. 120 (Ont. C.A.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 148 D.L.R. (4th) 385; 46 Admin. L.R. (2d) 155; 213 N.R. 161; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; (1994), 120 D.L.R. (4th) 12; 94 C.C.C. (3d) 289; 34 C.R. (4th) 269; 25 C.R.R. (2d) 1; 175 N.R. 1; 76 O.A.C. 81.

REFERRED TO:

R. v. Garofoli, [1990] 2 S.C.R. 1421; (1990), 80 C.R. (3d) 317; Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341 (1989), 36 Admin. L.R. 251; 47 C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R. 126 (C.A.); Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (1988), 53 D.L.R. (4th) 568 (T.D.); affd by (1992), 88 D.L.R. (4th) 575; 5 Admin. L.R. (2d) 269; 140 N.R. 315 (F.C.A.); D. R. Fraser and Co., Ld. v. Minister of National Revenue, [1949] A.C. 24 (P.C.); Dergousoff v. Dergousoff, [1999] 10 W.W.R. 633; (1999), 177 Sask. R. 64; 48 R.F.L. (4th) 1 (Sask. C.A.); Standard Trustco Ltd. (Trustee of) v. Standard Trust Co. (1995), 26 O.R. (3d) 1; 129 D.L.R. (4th) 18; 30 C.B.R. (3d) 1; 86 O.A.C. 1 (C.A.); Heare v. Insurance Corp. of British Columbia (1986), 32 D.L.R. (4th) 427; 7 B.C.L.R. (2d) 244; 23 C.C.L.I. 50; 45 M.V.R. 61 (B.C.S.C.); Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (C.A.); Canada (Information Commissioner) v. Canada (Immigration & Refugee Board) (1997), 4 Admin. L.R. (3d) 96; 82 C.P.R. (3d) 290; 140 F.T.R. 140 (F.C.T.D.); R. v. Marquard, [1993] 4 S.C.R. 223; (1993), 108 D.L.R. (4th) 47; 85 C.C.C. (3d) 193; 25 C.R. (4th) 1; 159 N.R. 81; 66 O.A.C. 161; R. v. Terceira (1998), 38 O.R. (3d) 175; 123 C.C.C. (3d) 1; 15 C.R. (5th) 359; 107 O.A.C. 15 (C.A.); R. v. Buric (1996), 28 O.R. (3d) 737; 106 C.C.C. (3d) 97; 48 C.R. (4th) 149; 90 O.A.C. 321 (C.A.); affd [1997] 1 S.C.R. 535; (1997), 32 O.R. (3d) 320; 114 C.C.C. (3d) 95; 209 N.R. 241; R. v. Dyment, [1988] 2 S.C.R. 417; (1988), 73 Nfld. & P.E.I.R. 13; 55 D.L.R. (4th) 503; 229 A.P.R. 13; 45 C.C.C. (3d) 244; 66 C.R. (3d) 348; 10 M.V.R. (2d) 1; 89 N.R. 249; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; (1994), 122 D.L.R. (4th) 1; 26 C.R.R. (2d) 202; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L. (4th) 157; R. v. O’Connor, [1995] 4 S.C.R. 411; (1995), 130 D.L.R. (4th) 235; [1996] 2 W.W.R. 153; 68 B.C.A.C. 1; [1996] B.C.W.L.D. 337; 103 C.C.C. (3d) 1; 44 C.R. (4th) 1; 33 C.R.R. (2d) 1; 191 N.R. 1; 112 W.A.C. 1.

AUTHORS CITED

Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback, 1998.

Canadian Law Dictionary. Toronto: Law and Business Publications (Canada) Inc., 1980, “may”.

Craig, J. D. “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355.

Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. loose-leaf. Aurora, Ont.: Canada Law Book.

Personal Information Index, 1988. Ottawa: Supply and Services Canada, 1988.

APPEALS from the dismissal of applications for judicial review of the Privacy Commissioner’s decisions with respect to complaints concerning the failure by the RCMP and the Derpartment of External Affairs (A-872-97) and CSIS (A-873-87) to disclose personal information about the appellant (Ruby v. Canada (Royal Canadian Mounted Police), [1998] 2 F.C. 351 (1997), 11 Admin. L.R. (3d) 132; 140 F.T.R. 42 (T.D.)) and from a decision that Privacy Act, section 51 was not unconstitutional (Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134 (1996), 136 D.L.R. (4th) 74; 113 F.T.R. 13 (T.D.)). The appeal in A-872-97 should be allowed in part; the appeal in file A-873-97 should be allowed; and the appeal in A-52-98 should be dismissed.

APPEARANCES:

Clayton Ruby and Jill Copeland for appellant (applicant).

Barbara A. McIsaac, Q.C. and Gregory Tzemenakis for respondents (respondents).

SOLICITORS OF RECORD:

Ruby & Edwardh, Toronto, for appellant (applicant).

McCarthy Tétrault, Ottawa, for respondents (respondents).

The following are the reasons for judgment rendered in English by

[1]        Létourneau and Robertson JJ.A.: The proceedings in file A-52-98, A-872-97 and A-873-97 involve three appeals from decisions of two different judges of the Trial Division [[1996] 3 F.C. 134 [1998] 2 F.C. 351. They relate to the appellant’s attempt to obtain access under the Privacy Act, R.S.C., 1985, c. P-21 (Act) to personal information held by the Royal Canadian Mounted Police (RCMP), the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS).

[2]        The three appeals were heard together. Basically, they call for a review of the exercise of discretion by the judge of the Trial Division, an interpretation of the scope of the exemptions, including the burden of proof in respect thereof, relied upon by these three federal authorities to deny access to the appellant as well as a determination with respect to the constitutional validity of certain provisions of section 51 of the Act. In this respect, the appellant contends that the procedure in that provision violates paragraph 2(b) (freedom of the press), section 7 (right to security of the person) and section 8 (right to protection against unreasonable searches and seizures) of the Canadian Charter of Rights and Freedoms[1] (Charter).

[3]        We will deal first with the merits of each appeal in files A-872-97 and A-873-97 [[1998] 2 F.C. 351 (T.D.)] and then with the constitutional issue in file A-52-98 [[1996] 3 F.C. 134 (T.D.)].

Facts

[4]        The appellant was refused access to personal information banks maintained by CSIS, DEA and the RCMP. He first requested access to bank CMP/P-PU-005 (bank 005) concerning operational case records maintained by the RCMP.

[5]        In a second request, he sought access to bank DEA/P-PU-040 (bank 040) maintained by the DEA as the Department of Foreign Affairs and International Trade was then known.

[6]        Finally, a third request, which was refused by the Solicitor General for Canada, was for access to personal information bank SIS/P-PU-010 (bank 010) maintained by CSIS.

[7]        The three banks to which the appellant sought access were established pursuant to section 10 of the Act and were listed and described, in accord with section 11, in the Personal Information Index, 1988 published by the government.

The request refused by the RCMP in file A-872-97

[8]        All of the documents identified in response to the appellant’s original request are said to have been maintained in an investigative file opened as a result of a request to the RCMP from the Department of Employment and Immigration that there be an investigation of a possible breach of the Official Secrets Act, R.S.C., 1985, c. O-5. The investigation into leaks of the Immigration Manual to the Globe and Mail newspaper was undertaken; no charges were ever laid.

[9]        On 22 March 1988, the appellant applied to the RCMP for access to “all information about [himself] in Toronto and Ottawa” in personal information bank 005 and was refused access a few months later. He was informed that no records were located in Ottawa and that the records located in Toronto were exempt from disclosure under subparagraph 22(1)(a)(ii) and section 27 of the Act. Both of those provisions grant discretion to refuse to disclose personal information where it either has been obtained by an investigative body in the course of a lawful investigation (subparagraph 22(1)(a)(ii)), or is subject to solicitor-client privilege (section 27).

[10]      By letter of 18 October 1988 the appellant made a formal complaint to the Privacy Commissioner about the refusal by the RCMP. The Commissioner upheld the RCMP’s refusal on 31 January 1990. The appellant sought review of the refusal in accordance with section 41 of the Act.

[11]      After the application before the Trial Division was filed, the RCMP acknowledged in 1992 that, as a result of a change in policy since the appellant’s original request, certain information might be released to him. The RCMP undertook a review of the information earlier identified and, out of a total of 42 documents in its possession, it released six documents to the appellant, with some information severed or excised from the pages released.

[12]      An index of all documents earlier identified in response to the appellant’s request was produced. It mentions one document, composed of four pages, said to contain personal information about the appellant which the RCMP refused to release, maintaining its claim to an exemption for that document under subparagraph 22(1)(a)(ii) and section 27. This document was described in the index as follows (Appeal Book, page 123):[2]

Letter, dated Mar. 29, 1978 from Department of Justice to Officer in Charge, Criminal Operations, “O” Division regarding advice re. possible investigations.

This is the only RCMP document still in issue before the Trial Division and before us.

The request refused by DEA in file A-872-97

[13]      With respect to the appellant’s request to have access to bank 040, maintained by the DEA, a letter dated 8 July 1988 stated that, pursuant to section 16 of the Act, the DEA would neither confirm nor deny the existence of the information requested, but, if it did exist, the information would reasonably be considered exempt from disclosure under paragraphs 22(1)(a) and (b) of the Act. Indeed, it was the policy of the DEA never to disclose information in bank 040.

[14]      The departmental affiant for the DEA explained the rationale for never disclosing to applicants whether or not the Department had personal information in bank 040 on them. The DEA sought to forestall attempts by applicants systematically making requests and trying to discern from the pattern of answers the kind of information the DEA possessed. (See Appeal Book, pages 34-35.)

[15]      The appellant’s subsequent complaint to the Privacy Commissioner led to an investigation by the Commissioner. The Commissioner concluded that the DEA position was a reasonable application of the Act, in that either to confirm or deny the existence of information may be injurious to the conduct of lawful investigations.

[16]      The RCMP and the DEA filed supplementary secret affidavits subject to a confidentiality order of the Court. The RCMP provided the requested documents containing personal information about the appellant while the DEA advised whether or not personal information concerning the appellant exists in the information bank in question and, if so, why that information is exempt from disclosure under paragraphs 22(1)(a) and (b) of the Act. Upon order of the Court, the affidavit evidence would be available for examination by the Trial Division judge assigned to the case on an ex parte basis and in camera.

The request refused by CSIS in file A-873-97

[17]      By letter of March 22, 1988 the appellant requested access to the information maintained by CSIS in bank 010. The information contained in that bank was described as pertaining to sensitive and current operations involving individuals whose activities may, on reasonable grounds, be suspected of being detrimental to the interests of Canada (e.g., espionage or sabotage).

[18]      In response to the request by the appellant, CSIS refused to confirm or to deny the existence of the information requested. It added that, if the information did exist, it would be exempt from disclosure pursuant to sections 19, 21, 22 and 26 of the Act.

[19]      CSIS did ultimately provide some information, but not all that the Commissioner considered should be released, from a second information bank, SIS/P-PU-015 (bank 015), containing older information generally of a similar nature to that in bank 010. Bank 015 was not originally specified by the appellant.

[20]      The appellant filed a complaint with the Privacy Commissioner in regard to the response of CSIS. The Commissioner concluded that the appellant’s complaint was not well-founded with respect to bank 010. The refusal of CSIS to confirm or deny existence of personal information within bank 010 was within the requirements of subsection 16(2) of the Act.

[21]      As a result of further investigation by the Commissioner, as well as changes in disclosure policy by CSIS, additional personal information in bank 015 was released to the appellant. The balance of documents in bank 015 relating to the appellant were said by CSIS to be withheld from disclosure as exempt by virtue of the same sections of the Act as those invoked with respect to bank 010. The Commissioner upheld CSIS’s refusal to disclose, except in relation to two documents that were eventually released.

[22]      The appellant unsuccessfully challenged before the Federal Court, by way of review pursuant to section 41 of the Act, the authorities’ decisions denying him access to banks 010 and 015 held by CSIS, to bank 005 in the hands of the RCMP and to bank 040 maintained by the DEA.

The legislative framework

[23]      For a better understanding of the arguments made by the parties to the proceedings and of the decision of the Judge of the Trial Division [[1998] 2 F.C. 351 (Judge), it is necessary to reproduce the relevant provisions of the Act which are the source of the present litigation:

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.

…

access to personal information

Right of Access

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.

…

16. (1) Where the head of a government institution refuses to give access to any personal information requested under subsection 12(1), the head of the institution shall state in the notice given under paragraph 14(a)

(a) that the personal information does not exist, or

(b) the specific provision of this Act on which the refusal was based or the provision on which a refusal could reasonably be expected to be based if the information existed,

and shall state in the notice that the individual who made the request has a right to make a complaint to the Privacy Commissioner about the refusal.

(2) The head of a government institution may but is not required to indicate under subsection (1) whether personal information exists.

…

exemptions

Exempt Banks

18. (1) The Governor in Council may, by order, designate as exempt banks certain personal information banks that contain files all of which consist predominantly of personal information described in section 2l or 22.

(2) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is contained in a personal information bank designated as an exempt bank under subsection (1).

(3) An order made under subsection (1) shall specify

(a) the section on the basis of which the order is made; and

(b) where a personal information bank is designated that contains files that consist predominantly of personal information described in subparagraph 22(1)(a)(ii), the law concerned.

…

19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from

(a) the government of a foreign state or an institution thereof;

(b) an international organization of states or an institution thereof;

(c) the government of a province or an institution thereof; or

(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.

(2) The head of a government institution may disclose any personal information requested under subsection 12(1) that was obtained from any government, organization or institution described in subsection (1) if the government, organization or institution from which the information was obtained

(a) consents to the disclosure; or

(b) makes the information public.

…

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;

(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

(i) relating to the existence or nature of a particular investigation,

(ii) that would reveal the identity of a confidential source of information, or

(iii) that was obtained or prepared in the course of an investigation; or

…

(3) For the purposes of paragraph (1)(b), “investigation” means an investigation that

(a) pertains to the administration or enforcement of an Act of Parliament;

(b) is authorized by or pursuant to an Act of Parliament; or

(c) is within a class of investigations specified in the regulations.

…

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.

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.

…

review by the federal court

41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

…

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

(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.

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.

48. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of a provision of this Act not referred to in section 49, the Court shall, if it determines that the head of the institution is not authorized under this Act to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.

49. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.

[24]      Before addressing the specific exemptions invoked by the authorities, we propose to dispose of a preliminary issue raised by the appellant in relation to each and every exemption, namely the burden of proof in such matters.

The burden of proving that the exemptions were properly claimed and applied

[25]      Under section 47 of the Act, the burden is on the head of a government institution to establish that it is authorized to refuse to disclose the personal information requested. The appellant complains in the context of discretionary exemptions, that the Judge put the onus on him to show that the discretion was improperly exercised and, therefore that the exemptions were note properly applied. He relief upon the following passage at pages 370-371 of the Judge’s decision to support his views:

… unless a ground for questioning the exercise of discretion is raised by the applicant, this Court, in examination of documents to review decisions to withhold information, relies upon the public officer, the head of the institution or his delegate, in meeting the public duty to exercise discretion properly. Of course, if the exercise of discretion appears on its face to be perverse the Court may find reason itself to question to exercise of discretion. Absent that or a ground raised by the applicant, the Court assumes the exercise of discretion is proper. To do otherwise, by placing on the respondents an initial burden to demonstrate that proper exercise in every case would result in an unmanageable process and would be inappropriate in this, as in any other, form of judicial review.

[26]      There is no doubt that the appellant finds himself in an invidious, if not impossible, position if an evidentiary burden is put on him to question whether the head of the institution properly exercised its discretion in refusing to grant access to the personal information bank as requested. This is so for he has no knowledge whatsoever of the information contained in the bank which may relate to him, its nature, the circumstances and manner in which it was obtained, the time, place, or the sources from which it may have been gathered. The plight of the appellant is compounded when the institution flatly refuses to ever confirm or deny the existence of information concerning an applicant.

[27]      Indeed, the appellant claims, and we agree, that he found himself in a situation analogous to a person seeking access to a sealed packet pursuant to a wiretap authorization prior to the decision of the Supreme Court of Canada in R. v. Garofoli.[3] In order to obtain access, the accused had to establish fraud or non-disclosure of relevant information by the person who applied for the wiretap authorization. As Martin J.A. of the Ontario Court of Appeal stated in R. v. Finlay and Grellette:[4]

Counsel for the appellants stated that in consequence of the restriction placed on an accused’s access to the sealed packet, the accused finds himself in an impossible situation. To ascertain whether there has been fraud or non-disclosure he requires access to the sealed packet, but he cannot gain access to the sealed packet unless he proves fraud or non-disclosure.

[28]      Here, in the present instance, to ascertain whether there has been an improper exercise of discretion by the head of the government institution, the appellant requires access to the personal information and the court record, but he cannot gain access to that information and record unless he advances grounds for questioning the authorities’ exercise of discretion.

[29]      We are mindful of the fact that the Supreme Court drew a distinction in the case of Michaud v. Quebec (Attorney General)[5] between an accused and an interested non-accused party seeking access to a sealed packet in wiretap proceedings. In that case, Lamer C.J., writing for the majority, held that a non-accused person, unlike an accused whose constitutional right to a full answer and defence is in issue, has the burden of showing a good cause in order to gain access, that is to say that the person “must demonstrate more than a mere suspicion of police wrongdoing; he or she will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non-disclosure by the police”.

[30]      One would be tempted to find comfort in this decision, especially in view of the parallel drawn by the appellant, and conclude that, in the present instance, the learned Judge was right in presumptively assuming a valid exercise of discretion by the authorities and in putting on the appellant an evidentiary burden of advancing valid grounds for questioning such exercise. However, the situation is different in matters of access to confidential information since section 47 of the Act puts on the head of a government institution the burden of proving an exemption. We shall come back to the scope of this burden later on. Suffice it to say for the time being that, in our view, it encompasses both the burden of proving that the conditions of the exemptions are met and that the discretion conferred on the head of a government institution was properly exercised. Moreover, there are, in our view, so many necessary and fundamental differences between the appellant’s situation and that of an interested non-accused party in wiretap proceedings that it would be an error to rely, in the present instance, upon the approach taken by the Supreme Court in that case.

[31]      First, in wiretap proceedings, confidentiality is the rule, accessibility the exception. The rule is the opposite under the Act: accessibility is the rule, confidentiality the exception. While section 187 of the Criminal Code, R.S.C., 1985, c. C-46 [as am. by S.C. 1993, c. 40, s. 7], states that all documents relating to an application shall be placed in a packet and shall not be opened except for some enumerated purposes, section 12 of the Act avers that every individual who is a Canadian citizen or a permanent resident has a right to and shall, on request, be given access to personal information except where a personal information bank is an exempt bank and where specific exemptions from disclosure are applicable.

[32]      Second, the request to access the sealed packet in wiretap proceedings occurs only after an initial judicial screening. As a matter of fact, a judge has already concluded on the basis of the application and supporting affidavits that there are reasonable grounds to believe that a crime has been committed and that it is a proper case for the interception of a citizen’s private communications. Moreover, the Criminal Code provides for additional safeguards. An authorization to invade a citizen’s privacy can be sought only by the Attorney General, the Solicitor General or specially designated agents from specially designated judges.[6] None of these safeguards exists under the Act and there is no prior screening of a government institution’s decision to collect, retain and use personal information.

[33]      Third, both the application for an authorization and the authorization itself are subject to stringent conditions relating to form and substance which, under judicial scrutiny, provide for protection against undue and unnecessary invasions of privacy.[7] No such a priori control exists under the Act and it is the government institution which exercises its discretion with respect to the collection, use and disclosure of personal information. Hence the need, in our view, on a subsequent judicial review, to carefully scrutinize the institution’s exercise of discretion.

[34]      Fourth, a citizen who has been the target of a lawful interception of his private communications is notified of that fact by written notice within 90 days after the period for which the authorization was given or renewed unless that period of time was validly varied.[8] Then, the citizen so informed can at least submit that he has reasonable grounds to believe that some of the stringent conditions applicable to the application for an authorization and to the authorization itself have not been met.

[35]      This is what Mr. Michaud did in his case where he contended that he had reasonable grounds for believing that the application failed to disclose his status as a lawyer in violation of paragraph 185(1)(e) of the Criminal Code. He could also argue that the application was the result of internal improper administrative pressure or that he had reasonable grounds to believe that the authorization was not justified in the best interests of the administration of justice as required by paragraph 186(1)(e) [as am. by S.C. 1993, c. 40, s. 6] of the Criminal Code. In other words, he knew that his privacy had been invaded by means of an interception of his private communications. He knew what the information thus gathered was about and he could invoke the safeguards provided by the Criminal Code with a view to alleging a violation of those safeguards.

[36]      This position is to be contrasted with that of the appellant in the present instance where he is not even being told, at least by CSIS and DEA, whether the banks to which access is sought contain personal information about him or not. Even if a person is informed that a bank does contain personal information about him or her, how can that person, who does not know what the information is, meet an evidential burden of questioning the exercise of discretion by the government authority who refuses access to it?

[37]      The situation of the appellant or of a person in his position is further aggravated by the fact that the a posteriori judicial review before the Federal Court pursuant to section 41 of the Act, whose purpose is to review the discretion exercised by the authorities, may take the form of an in camera and ex parte hearing at which secret affidavit evidence can be filed by the head of the government institution. An applicant like the appellant does not and cannot know if that new evidence offered in support of a claim that the institution’s discretion was properly exercised contains irrelevant considerations or fails to disclose relevant considerations which could have affected the exercise of discretion by the authorities.

[38]      In our view, in these peculiar circumstances—where accessibility to personal information is the rule and confidentiality the exception, where an applicant has no knowledge of the personal information withheld, no access to the record before the court and no adequate means of verifying how the discretion to refuse disclosure was exercised by the authorities, and where section 47 of the Act clearly puts on the head of a government institution the burden of establishing that it was authorized to refuse to disclose the personal information requested and, therefore, that it properly exercised its discretion in respect of a specific exemption it invoked—an applicant cannot be made to assume an evidential burden of proof. As this Court said in Rubin v. Canada (Canada Mortgage and Housing Corp.)[9] in relation to closely related legislation, the Access to Information Act, R.S.C., 1985, c. A-1, which contains a provision similar, if not identical,[10] to section 47 of the Act:

This section places the onus of proving an exemption squarely upon the government institution which claims that exemption.

The general rule is disclosure, the exception is exemption and the onus of proving the entitlement to the benefit of the exception rests upon those who claim it.

[39]      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.”[11] 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.

[40]      We now propose to examine the appellant’s requests to have access to the various banks and the specific exemptions invoked by the authorities.

The specific exemptions claimed by the RCMP with respect to bank 005

[41]      As previously mentioned, only one document remains in issue in bank 005. The RCMP alleged that the information was exempt from disclosure under subparagraph 22(1)(a)(ii) and section 27 of the Act. Subparagraph 22(1)(a)(ii) is what is generally referred to as a law enforcement exemption whereby information obtained by an investigative body in the course of lawful investigations pertaining to the enforcement of any law of Canada or a province may be exempt from disclosure. Whatever may have been the merit of the respondent’s claim in this respect, the issue has now become moot. Paragraph 22(1)(a)(ii) only permits the head of government institution to refuse to disclose any personal information requested under subsection 12(1) where information came into existence less than 20 years prior to the request. In the case at bar, 20 years or more have thus elapsed. Subparagraph 22(1)(a)(ii) is, therefore, no longer a valid ground for refusal to disclose.

[42]      However, the respondent claims that the information is also protected by solicitor-client privilege and, accordingly, remains exempt from disclosure pursuant to section 27 of the Act.

[43]      The appellant submits that the Judge erred in failing to put the onus of proof on the RCMP to show that it exercised, under section 27 of the Act, its discretion to decide whether to disclose the information. As the argument goes, it is not sufficient that the government classifies the information within the class of solicitor-client privileged documents, the RCMP must still exercise its discretion whether to disclose the document containing it because section 27 is merely discretionary.

[44]      The learned Judge was satisfied that the refusal to disclose the document was based on section 27 of the Act and that the RCMP had exercised its discretion not to disclose. He also found that the information contained in the document was properly classified within section 27. We have reviewed the document in question and the context in which the refusal to disclose took place. We are satisfied that the learned Judge made no error in concluding as he did.

The specific exemptions claimed by the DEA with respect to bank 040

1.         Exemption pursuant to subsection 16(2) of the Act

[45]      The appellant challenged the DEA’s policy of never disclosing whether personal information exists concerning an applicant in bank 040. He submits that this general policy is a refusal to exercise discretion on a case-by-case basis and hence is a clear violation of subsection 16(2) of the Act. To put it differently, this policy of systematically refusing to confirm or deny the existence of personal information constitutes a fettering by the DEA of its discretion.

[46]      Furthermore, the appellant contends that this policy of blanket refusal has the effect of de facto transforming bank 040 into an exempt bank without following the strict procedure established by section 18 for the creation of an exempt bank.

[47]      The reviewing Judge was of the view that the discretion vested under subsection 16(2) could be exercised either on a case-by-case basis or systematically as a matter of policy.

[48]      Before addressing the appellant’s submissions, we believe it is worth recalling that bank 040 maintained by the DEA contains copies of requests received from authorized federal investigative bodies for personal information pursuant to paragraph 8(2)(e) of the Act.[12] These requests emanating from bodies like CSIS, the RCMP, the Department of National Revenue, the Canadian Forces Military Police, relate to investigations that are currently being conducted by the requesting agencies. The information in bank 040 is kept for a limited period of two years after completion of any request received by the DEA. At the end of the said period, the information is destroyed. In the present instance, the information was safeguarded because of the pending judicial proceedings.

[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 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.[13]

[50]      Section 16, and particularly subsection 16(2), is cast in unusual and unnecessarily confusing terms. Although we have already reproduced it at the outset of these reasons, it would not hurt to reiterate its contents:

16. (1) Where the head of a government institution refuses to give access to any personal information requested under subsection 12(1), the head of the institution shall state in the notice given under paragraph 14(a)

(a) that the personal information does not exist, or

(b) the specific provision of this Act on which the refusal was based or the provision on which a refusal could reasonably be expected to be based if the information existed,

and shall state in the notice that the individual who made the request has a right to make a complaint to the Privacy Commissioner about the refusal.

(2) The head of a government institution may but is not required to indicate under subsection (1) whether personal information exists.

[51]      The argument of the appellant that the use of the word “may” in subsection 16(2) calls for the exercise of discretion is not surprising. Indeed, it is a habitual and almost automatic reaction to infer a discretion from the inclusion of the word “may”. However, for a number of reasons, we do not believe that subsection 16(2) is the kind of provision that contemplates either an exercise of discretion or a duty to exercise discretion on a case-by-case basis.

[52]      Section 16 deals with the notice to be given to an applicant when access to the requested material is denied. The head of a government institution is then imposed with one of three duties by subsection 16(1), but is given a choice among these three duties. Indeed, the institution head “shall” either:

(i) state that the information does not exist;

(ii) state that the information exists but is exempt by virtue of one or more specific provisions in the Act; or

(iii) state that if the information existed, it would be exempt under one or more specific provisions in the Act.

The first of these options, (i), is found in paragraph 16(1)(a), while the final two options, (ii) and (iii), are provided for in paragraph 16(1)(b), where they are joined together by an “or”. The final option thus stands alone as one viable alternative open to the institution head.

[53]      Examined more closely, the alternative granted in option (iii) already logically entails the authority to refuse to indicate whether or not requested information exists. The institution head must under both option (i) and option (ii) indicate whether or not information exists. Option (iii), in contrast, confers upon the institution head a power that is sui generis under the Act: neither an outright refusal of existing information nor disclosure. What the institution head is given is the power to speak hypothetically (“if we had information on you, it would be exempt under”). Option (iii) in paragraph 16(1)(b) itself gives the power to refuse to confirm existence of requested records. Subsection 16(2) is, in fact, no more than a confirmation of what was already logically implicit in paragraph 16(1)(b). To put it another way, subsection 16(2) does not add anything that was not already inherent in subsection 16(1): the government may indicate that information exists—by using options (i) or (ii)—or it may refuse to confirm whether information exists—by using option (iii). In our view, subsection 16(2) merely clarifies what is already expressed in subsection 16(1) and the use of the word “may” in subsection 16(2) merely reiterates that the option exists in subsection 16(1).

[54]      It is true that the word “may” is often a signal that a margin of discretion is given to an administrative or judicial decision maker. The normal interpretation of this word occurring in a statutory provision is that there is an element of discretion.[14] In many circumstances, the use of the “may” certainly has this effect. However, the word should not be treated like a ritualistic talisman. As Driedger has pointed out, statutory “[w]ords, when read by themselves in the abstract can hardly be said to have meanings”.[15]

[55]      When read in context, “may” can sometimes have functions other than to confer discretion. It is well known that in some cases, “may” can be read as “must”, thereby rebutting the presumptive rule that “may” is permissive stated in section 11 of the Interpretation Act, R.S.C., 1985, c. I-21. That, however, is not all. Thorson J.A.[16] drew attention to the fact that the word “may” can sometimes be no more than a signal from the legislator that an official or tribunal is being empowered to do something:

In some contexts, of course, the word “may” is neither necessarily permissive nor necessarily imperative, but rather merely empowering. Its function is to empower some person or authority to do something which, otherwise, that person or authority would be without any power to do.

This construction of the word “may” has been reaffirmed in recent cases by the Saskatchewan and Ontario Courts of Appeal.[17]

[56]      Two reasons indicate that we are, in the present instance, faced with one of those contexts where the word “may” is merely being used to denote an ability or power and not a discretion.

[57]      First, the words “may but is not required” are used in a context where access to personal information is the rule, denial of access is an exception which needs to be stated. These words show Parliament’s intent to confer upon a government institution the power to refuse an applicant access to the very fact of the existence of personal information which otherwise it would be compelled to disclose if the enabling power were absent.

[58]      Second, the French version of subsection 16(2) makes Parliament’s intent even clearer as the word “may” has been dropped. It simply states that the head of a government institution is not required to indicate whether personal information exists. It makes it clear that the institution, notwithstanding the general obligation to disclose, is empowered not to indicate the existence of personal information. As the institution is under no obligation or duty to reveal the fact of the existence of personal information, it has the right or power not to reveal that fact.

[59]      Rather than inviting the institution head to conduct a discretionary assessment in each case, the word “may” in subsection 16(2) confirms that the institution head is empowered to refuse access by exercising the option in paragraph 16(1)(b) of refusing to confirm existence of information. The confirmation that there is an authority to refuse to confirm existence of records need not imply the conferral of discretion.

[60]      Moreover, even if we were to assume that the appellant is right in his contention that subsection 16(2) confers a discretion upon the head of a government institution, nothing in the wording or legislative purpose of that subsection requires that the discretion so given always or necessarily be exercised on a case-by-case basis.

[61]      The universe of duties imposed on officials is not merely divided into two simple categories: discretionary and compulsory. L’Heureux-Dubé J. observed that it is inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions.[18] It is more accurate to recognize that not all grants of discretion are created equal. L’Heureux-Dubé J. went on to cite the following passage, from D. J. M. Brown & J. M. Evans, in Judicial Review of Administrative Action in Canada:[19]

The degree of discretion in a grant of power can range from one where the decision-maker is constrained only by the purposes and objects of the legislation, to one where it is so specific that there is almost no discretion involved. In between, of course, there may be any number of limitations placed on the decision-maker’s freedom of choice, sometimes referred to as “structured” discretion.

[62]      In some cases, at the far less “structured” end of the spectrum, discretion will be relatively unfettered by directives from the legislator as to the occasion and manner for exercising the conferred discretion. This may be so, for instance, when the word “may” appears unaccompanied by language like “in appropriate circumstances”, or “upon showing just cause”. It will then be mainly the objects of the enabling legislation that will guide the exercise of discretion.

[63]      The question of whether an institution head, to whom the power to confirm existence of requested records is granted, is bound to use it upon each and every occasion must be solved “elsewhere” than from the mere presence of the word “may”. What one must look to is the “purpose and text of the statute and the facts of the particular case”. In R. v. S.(S.),[20] Dickson C.J., writing for a unanimous Court and interpreting the word “may” in subsection 4(1) of the Young Offenders Act [S.C. 1980-81-82-83, c. 110], quoted with approval this dictum of Lord Selborne in Julius v. Bishop of Oxford:[21]

I agree … that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde [from elsewhere, otherwise], and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power. [Emphasis added.]

[64]      Although the House of Lords was interpreting the phrase “it shall be lawful” which it found to be permissive, Dickson C.J. found the dictum of assistance in interpreting the word “may”.

[65]      The factual context we are dealing with in the present instance is that of requests for personal information concerning lawful investigations. Given the nature of the bank in question, the mere revealing of the existence or non-existence of information is in itself an act of disclosure: a disclosure that the requesting party is or is not the subject of an investigation.

[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.

[67]      Given the particular context and legislative intent we are dealing with here, it seems appropriate that discretion not be exercised on a case-by-case basis in relation to the bank in question. While generally administrative decision makers should not fetter their discretion by adopting a general rule of always responding the same way to certain requests, this is one of those rare instances where the adoption of a general policy is itself a judicious exercise of discretion.

[68]      Nor do we agree with the appellant’s contention that the general policy in this case is a fettering of discretion. This is not a case where an authority fails to exercise discretion by categorically refusing to consider a certain kind of request and chooses instead always to “throw it into the waste paper basket without looking at it”.[22] The guarantee that the institution head must do something more comes from the important supervisory role assigned to the Privacy Commissioner and the Federal Court. If information exists, the institution head of the DEA who wishes to follow the general policy of non-confirmation of existence of personal information will still have to find which exemptions would be applicable or risk being overturned by the Court.

[69]      In this regard, we believe that the Act strikes the right balance between the government institution’s duty to disclose and its power to refuse disclosure, including disclosure of the very existence of personal information. On the one hand, through the power conferred upon the authority by subsection 16(2), it ensures the integrity, efficiency and workability of the exemptions. On the other hand, it grants a citizen administrative and judicial review mechanisms whereby the validity and the legality of an institution’s claim to exemptions is assessed.

[70]      As a matter of fact, sections 29-36 [ss. 29 (as am. by S.C. 1992, c. 21, s. 37), 34 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187)] of the Act give a citizen the right to complain to the Privacy Commissioner about the refusal by a government institution to give him or her access to the personal information requested. The Commissioner possesses wide powers of investigation supplemented with additional powers to effectively carry out any investigation, such as the powers to summon and enforce the appearance of witnesses, to enter premises and to examine and obtain copies of records. What is significant is that the Commissioner can have access to any bank and review the information therein, including an exempt bank so designated by the Governor in Council pursuant to section 18.

[71]      In addition, pursuant to sections 41-51 of the Act, the Federal Court, at the request of a complainant or the Commissioner with the consent of the complainant, may review the personal information requested and whether the exemptions were properly applied by the authorities. In the case of an exempt bank, section 43 gives the Commissioner the right to apply to the Court for a review of any file contained in such a bank.

[72]      All this imposes an obligation on the institution head, when carrying out the general policy of not confirming or denying existence of personal information, to ensure that the information reviewed is examined and indeed meets the hypothetically claimed exemptions. The policy cannot be used to refuse disclosure of documents that satisfy no exemptions, for such a use of the policy would be quashed by the Court. Thus even under the policy, the institution head must still consider each request for access. There is no fettering of discretion but only a reasoned choice as to how to exercise the discretionary power of not having to confirm or deny the existence of records.

[73]      The conclusion of all this is that subsection 16(2) cannot be read as creating a duty to consider whether each and every request should call forth a decision on whether to confirm or deny existence of requested information: the “may” in the provision, which has been omitted in the French version of the text, merely attests to the fact that the institution head is empowered to choose among the options in subsection 16(1). Alternatively, if the “may” is to be read as creating a duty to exercise discretion, that duty was, in our view, appropriately discharged in the circumstances.

[74]      The second argument of the appellant that the approach taken by the DEA with respect to subsection 16(2) de facto creates an exempt bank is attractive on its face, but does not withstand closer scrutiny. Indeed, even with the systematic refusal to confirm or deny the existence of personal information in bank 040, the DEA must, pursuant to paragraph 16(1)(b), indicate the specific provision of the Act on which the refusal to disclose information could reasonably be based if the information existed and, we would add, if the existence of that information had been confirmed. There is no such requirement with an exempt bank which contains files which consist predominantly of personal information described in section 21 or 22 of the Act.

[75]      Moreover, as the reviewing Judge pointed out at page 377 of his decision, the banks to which subsection 16(2) applies are not as limited as regards content as exempt banks are. They may contain personal information of any sort, not just those described in section 21 or 22.

[76]      Finally, while judicial review of exempt banks can only be initiated by the Commissioner pursuant to section 43 of the Act, a complainant retains his right under section 41 to apply for judicial review with respect to any other bank than an exempt bank.

[77]      In short, with or without a blanket application of subsection 16(2) to the banks collected pursuant to sections 4-6, such banks do not have the attributes of an exempt bank described in section 18 of the Act.

[78]      To conclude, we find the arguments of the appellant with respect to subsection 16(2) to be without foundation.

2.         Exemptions pursuant to paragraphs 22(1)(a) and (b)

[79]      The appellant submits that the reviewing Judge misunderstood his role with respect to the law enforcement exemption invoked by the DEA pursuant to paragraph 22(1)(a). He contends that the Judge limited his review to assessing whether the documents fell within the class enumerated in that paragraph and failed to review the exercise of the DEA’s discretion not to grant the requested access. He referred us to page 381 of the reviewing Judge’s decision which reads:

In my opinion, since I have found that in each case the refusal to indicate whether the personal information existed was authorized under the Act, the alternative grounds have little significance for the result of this review. Having examined the supplementary secret affidavits and information filed ex parte at the hearing, and having considered submissions of the applicant and the respondents, I am not persuaded that such information, if it existed, in the banks in question, as those banks are described in published indexes, would be inappropriately classed within the classes of exemption suggested as alternative explanations for refusal to disclose information.

[80]      We believe that the Judge understood that the exercise by the DEA of its power under subsection 16(2) did not relieve him of his duty to review whether the exemptions pursuant to paragraphs 22(1)(a) and (b) were properly applied, although he appears to have seen in it little significance for the result of the review. As we have already mentioned, a refusal to indicate under subsection 16(2) the fact of the existence of personal information in a bank is not an absolute bar to releasing that information if, at the outset, it has not been properly exempted or the institution’s discretion not to release has been improperly exercised.

[81]      The final conclusion of the reviewing Judge on this issue of the specific exemptions as alternate grounds to subsection 16(2) is found at page 381 of his decision:

Thus, there is no basis on which this Court could find, pursuant to section 48, in relation to certain alternate grounds specified, that the refusal was not authorized, or pursuant to section 49, in relation to section 21 or paragraph 22(1)(b) as specified alternate grounds, that there were not reasonable grounds for the refusal. The alternate grounds specified, in the circumstances here, provide no basis for this Court to intervene in relation to the decisions of DEA and CSIS in regard to requests of the applicant for access to information in banks 040 and 010 respectively.

[82]      It is implicit in the decision of the Judge that, in his review, he considered all the other specific exemptions invoked by the DEA with respect to bank 040, including paragraph 22(1)(a), although his reasons and conclusions on the issue at pages 380-381 of his decision make no specific mention of paragraph 22(1)(a). There would seem to be no doubt that he was satisfied that the material requested had been obtained or prepared in the course of a lawful investigation pertaining to law enforcement.

[83]      In fairness to the reviewing Judge, there were many exemptions claimed by three federal authorities. He managed remarkably well to regroup them and avoid repetitions. His failure to mention paragraph 22(1)(a) is most likely an oversight. However, his conclusions as stated leave us with a lingering doubt as to whether he has in fact gone to the second step of reviewing the exercise of discretion by the DEA with respect to the paragraph 22(1)(a) exemption. In these circumstances and in view of the objectives of the Act, a paramount one being to provide access to a citizen to personal information held by the government, we believe a new review should be conducted with respect to the paragraph 22(1)(a) exemption.

[84]      Turning to paragraph 22(1)(b), this provision authorizes an institution head to refuse access to the information requested where disclosure of such information could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the lawful conduct of investigations. Basically, the appellant submits that the injury which justifies the application of the exemption is confined to injury to specific identified investigations. In his view, the learned Judge erred when he held that the exemption could be applied to instances where disclosure of the information could have a chilling effect on the investigative process generally.

[85]      In his public affidavit strengthened by a secret affidavit filed ex parte, Mr. MacEwan who produced evidence for CSIS with respect to paragraph 22(1)(b) expressed fears of what he termed the “mosaic effect” whereby seemingly unrelated pieces of information could be compared with each other to develop a more comprehensive picture resulting in disclosure of active or inactive sources or methods of investigation. Counsel for the respondent strenuously endorse the broad interpretation given by the DEA to paragraph 22(1)(b) and accepted by the reviewing Judge, including the need in appropriate circumstances to refuse to disclose in order merely to protect the investigative process.

[86]      Shortly after the reviewing Judge issued his reasons, this Court in Rubin v. Canada (Minister of Transport)[23] rendered a decision interpreting a parallel if not identical provision found in paragraph 16(1)(c) of the Access to Information Act, R.S.C., 1985, c. A-1. Paragraph 16(1)(c) reads:

16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains

(a) information 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 record came into existence less than twenty years prior to the request;

…

(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

(i) relating to the existence or nature of a particular investigation,

(ii) that would reveal the identity of a confidential source of information, or

(iii) that was obtained or prepared in the course of an investigation; or

We have also reproduced paragraph 16(1)(a) as it is identical to paragraph 22(1)(a) of our Act.

[87]      The Court was well aware in Rubin of the impact that the scope of the interpretation given to paragraph 16(1)(c) would have on the construction of other exemptions contained in the Access to Information Act. It was also conscious of the fact that the interpretation of paragraph 16(1)(c) raised an issue which went to the meaning and entire interpretation of the said legislation.

[88]      McDonald J.A., writing for a unanimous court, concluded that:[24]

(a)       all exemptions to access must be limited and specific where two interpretations are open to the Court, the interpretation that infringes on the public’s right to access the least must be chosen;

(b)       the word conduct in paragraph 16(1)(c) refers to something specific about the development or progress of a particular investigation. It does not refer to the general investigative process;

(c)        one cannot refuse to disclose information under paragraph 16(1)(c) on the basis that to disclose would have a chilling effect on future investigations;

(d)       it is possible to protect past information if there is a specified investigation in progress or about to be undertaken;

(e)       the examples given in subparagraphs (i), (ii) and (iii) of 16(1)(c) do not limit the general nature of the words in 16(1)(c), but they are illustrative of the type of information or situations that may be protected under that paragraph.

[89]      In our respectful view, the Court gave convincing reasons for its conclusions that are relevant to this appeal. We need only refer to three of these reasons to illustrate the impact that an acceptance of the “mosaic effect” or of the chilling effect as part of paragraph 22(1)(b) would have on other exemptions contained in the Act.

[90]      First, an extension of paragraph 22(1)(b) as proposed would make paragraph 22(1)(a) redundant since everything done in the course of a lawful investigation, as well as the information gathered as a result thereof, would now be incorporated by paragraph 22(1)(b). In addition, the 20-year limit applicable to the paragraph 22(1)(a) exemption would become meaningless as the information could now be kept forever pursuant to paragraph 22(1)(b) because of the chilling effect its disclosure could have on the investigative process or, as the Court put it in the Rubin case, on some future investigation. It is difficult to imagine that Parliament intended that very sensitive information relating to activities threatening the security of Canada be released after a 20-year period in accordance with paragraph 22(1)(a), but that, in the same breath, much less sensitive information be, under paragraph 22(1)(b), subject to no such limitation for fear of a chilling effect on the investigative process.

[91]      Second, the third party information exception contained in section 19 of the Act would become unnecessary when the confidential information had been obtained from that third party in the course of an investigation. The non-disclosure of that information would now be governed by the broad principles applicable to paragraph 22(1)(b), thereby eliminating the possibility of release on consent of the third party.

[92]      Third, none of the examples enumerated in subparagraphs (i), (ii) and (iii) of paragraph 22(1)(b) refer to the investigative process at large. Indeed, subparagraph (i) expressly refers to a particular investigation while subparagraph (iii) speaks of information obtained or prepared in the course of an investigation.

[93]      As this Court pointed out in the Rubin case, Parliament or the government are not without effective remedy if they find that the interpretation of paragraph 22(1)(b) is unduly restrictive or falls short of what was intended. Either one can seek an amendment to the Act or the government can seek from the Governor in Council an order designating bank 040 of the DEA an exempt bank pursuant to section 18 of the Act.

[94]      In view of the decision of this Court in the Rubin case previously cited, we think the reviewing Judge should not have extended the notion of injury in paragraph 22(1)(b) beyond injury to a specified investigation, either actual or to be undertaken. The provision does not authorize a refusal to disclose in cases where disclosure could have a chilling effect on the investigative process in general.

[95]      At this point, we think it would be useful to summarize our findings with respect to the exemptions claimed by the DEA in relation to bank 040.

[96]      Subsection 16(2) of the Act empowers the head of a government institution to refuse access to requested documents by exercising the option in paragraph 16(1)(b) of refusing to confirm existence of information. If the use of the word “may” in subsection 16(2) goes beyond empowering and is intended to confer a discretion upon the head of a government institution, such discretion does not have to be always or necessarily exercised on a case-by-case basis. Adopting a general policy of never confirming or denying the existence of information is, with respect to bank 040, the particular nature and purpose of the Act and the factual circumstances of this case, a judicious exercise of discretion. Moreover, it does not have the effect of de facto creating an exempt bank. However, the head of a government institution who invokes subsection 16(2) must still proceed to justify a refusal to grant access to the information requested by making reference to specific exemptions.

[97]      A new review of the material denied should be conducted with respect to the law enforcement exemption (paragraph 22(1)(a)) to determine whether the DEA properly exercised its discretion in refusing access to the appellant.

[98]      Paragraph 22(1)(b) of the Act does not authorize a refusal to disclose simply because disclosure could have a chilling effect on the investigative process in general. The notion of injury in paragraph 22(1)(b) does not extend beyond injury to a specified investigation, either actual or to be undertaken. A new review of the material denied should be conducted accordingly.

The specific exemptions claimed by CSIS with respect to banks 010 and 015

1.         Exemption pursuant to paragraph 22(1)(b)

[99]      As did DEA, CSIS argued the theory of a “chilling effect” on the investigative process in general with respect to the scope of the injury under paragraph 22(1)(b). In view of our conclusion that the paragraph 22(1)(b) exemption was not correctly applied, the information in banks 010 and 015 should be reviewed anew with a view to identifying which information, if any, is not covered by that exemption. Unless otherwise protected by another exemption, that information should then be released pursuant to section 49 of the Act, subject to such conditions or order as the Court deems appropriate.

[100]   Furthermore, the reviewing Judge concluded at page 386 of his decision that “the Court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury”. We would add, however, that it is very much part of the Court’s role under section 49 to determine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing Judge, in our view, should have scrutinized more closely whether the release of information that is over 20 years old could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, therefore, whether CSIS had a reasonable ground to refuse to disclose.

2.         Exemption pursuant to section 19

[101]   Section 19 is a qualified mandatory exemption: the head of a government institution must refuse to disclose personal information obtained in confidence from another government or an international organization of states unless that government or institution consents to disclosure or makes the information public. This is generally referred to as the third party exemption.

[102]   The appellant contended in vain before the reviewing Judge that a proper application of section 19 requires that the authority who invokes the exemption must seek the consent of the third party to disclosure before denying access to an applicant. The learned Judge, at page 382 of his decision, rejected this submission on the basis that it “reverses the primary thrust of section 19, that is, that information in that classification not be disclosed”.

[103]   It is true that the primary thrust of the section 19 exemption is non-disclosure of the information but, as we already mentioned, it is not an absolute prohibition against disclosure. This exemption, like the others, has to be read in the overall context of the Act which favours access to the information held. Subsection 19(2) authorizes the head of a government institution to disclose the information where the third party consents.

[104]   We agree with the appellant that the authority who claims the benefit of the exemption is the person who has to ensure that the third party is not consenting to disclosure. Fundamental and practical reasons dictate this conclusion.

[105]   First, the applicant in this case does not even know if personal information exists as CSIS has refused to indicate that fact pursuant to subsection 16(2).

[106]   Second, he, like any other applicant against whom section 19 is invoked, does not know who the third party is who provided the information.

[107]   Third, even if he were told who this third party is, he would not necessarily know where to address his request for consent.

[108]   Fourth and foremost, he does not know the contents of the information and what it relates to. Therefore, he is not in a position to provide to the third party all the relevant details that are necessary to both meaningfully identify the issues at stake and seek the consent of that third party.

[109]   Fifth, it is unfair in these conditions to place upon an applicant an almost impossible burden to meet. For all practical purposes, the possibility of obtaining a consensual release of the information becomes so remote as to be non-existent. Consequently, section 19 would constitute an absolute and unchallengeable exemption.

[110]   In our view, a request by an applicant to the head of a government institution to have access to personal information about him includes a request to the head of that government institution to make reasonable efforts to seek the consent of the third party who provided the information. In so concluding, we want to make it clear that we are only addressing the question of onus and that we are in no way determining the methods or means by which consent of the third party can be sought. Political and practical considerations pertaining, among others, to the nature and volume of the information may make it impractical to seek consent on a case-by-case basis and lead to the establishment of protocols which respect the spirit and the letter of the Act and the exemption.

[111]   In short, we believe that the respondent’s claim under section 19 of the Act to a valid exemption from disclosure of the personal information requested by the appellant in banks 010 and 015 should be reviewed in accordance with our interpretation of subsection 19(2). This means that the reviewing Judge ought to ensure that CSIS has made reasonable efforts to seek the consent of the third party who provided the requested information. If need be, a reasonable period of time should be given by the reviewing Judge to CSIS to comply with the consent requirement of paragraph 19(2)(a).

3.         Exemption pursuant to section 26

[112]   While the section 19 exemption refers to personal information received from third parties, the section 26 exemption addresses the issue of personal information about third parties. It must be read in conjunction with section 8 of the Act. As a matter of fact, section 26 stipulates that a government institution may disclose personal information concerning a third party, but that it shall refuse to disclose it if the requirements set out in section 8 are satisfied. Section 8 states that, without the consent of the person to whom the information applies, disclosure is only permissible in the circumstances therein enumerated.

[113]   We note in passing a practical difficulty of implementation of section 26 as a result of the consent requirement of the third party embodied in section 8. First, it is not clear as to who has the onus of seeking the consent of that third party for the release of the information. Not unlike the situation under the section 19 exemption, the applicant who requests access to information about himself is not likely to know or to be told, at least in some if not many cases, who is the third party mentioned in that information because the government institution would then reveal the very fact that it also possesses information on that third party. On the other hand, if the burden is on the government institution to seek the consent of the third party, the government would, in cases where it keeps information on that third party, reveal that fact to that third party while its policy would have been to refuse to confirm or deny the very fact of the existence of such information pursuant to subsection 16(2) if the third party had made a request for access.

[114]   The appellant submits that when reviewing the section 26 exemption, the Judge ought to have determined, pursuant to paragraph 8(2)(m), whether the public interest in disclosure of a third party’s personal information clearly outweighed any invasion of the privacy of that person that could result from the disclosure. The appellant contends that a balancing of the two interests in subparagraph 8(2)(m)(i) favours disclosure because the information at issue may be very old and its disclosure would permit public scrutiny of the behaviour of CSIS and the Security Service of the RCMP.

[115]   The finding of the reviewing Judge on this issue is found at pages 382-383 of his decision and reads as follows:

I agree with counsel for the respondents that section 26 also sets a mandatory exemption, unless the information concerning another individual may be released in the circumstances provided by subsection 8(2) of the Act. For the applicant, it is submitted that a proper exercise of discretion to release information about another individual requires the head of the institution concerned to consider paragraph (m) of subsection 8(2) and to form an opinion whether the public interest in disclosure clearly outweighs any invasion of privacy that could result from disclosure. Again, in my opinion, this submission ignores the emphasis of section 8 as a whole, that is, not to disclose information about other persons to one who makes a request under the Act, unless there be an exceptional ground as set out by subsection 8(2). I am not persuaded that every reference to another individual must be considered in relation to paragraph (m) of that provision before the head of the institution refuses to disclose it.

[116]   We agree with the reviewing Judge that the emphasis of section 8 is against disclosure of the information relating to third parties. However, as the Judge recognized, there are exceptions to this non-disclosure principle.

[117]   The Judge’s conclusion on the scope of the section 26 exemption can be read in two ways. According to one, the Judge appears to have been of the view that the section 26 exemption could be relied upon simply by asserting that the primary thrust of section 8 is non-disclosure, so that none of the enumerated exceptions in subsection 8(2) have to be considered. This, in our view, would be an error because it would mean that section 8 in practice turns section 26 into a bar against disclosure in every circumstance. It would amount to giving license to the head of a government institution to ignore the express words of section 26, which dictate that such an official has no discretion to disclose if section 8 applies: the official “may” refuse to disclose third party information, but “shall” refuse disclosure if the information is protected by section 8. Clearly, Parliament intended that the head of a government institution consider and apply section 8 in some manner when using the section 26 exemption.

[118]   What remains to be determined, however, is what must the head of a government institution do to sufficiently take section 8 into consideration? One possible suggestion can be found in the other way of interpreting what the Judge said, particularly the last sentence of the excerpt: the Judge recognized the need to determine whether any of the subsection 8(2) exceptions applied, but believed that a balancing of public interest against invasion of privacy could be effected generally and did not have to be done in respect of each one of the third parties mentioned in the information.

[119]   We are inclined to agree with the reviewing Judge that the balancing in subparagraph 8(2)(m)(i) does not have to be done in reference to every piece of information concerning every party to whom the information relates. Some kind of weighing of public interest must take place, but the manner in which to conduct the weighing of interests is within the discretion of the head of the government institution. In the minority opinion in Dagg v. Canada (Minister of Finance),[25] discussing an issue not addressed by the majority, La Forest J. spoke of the kind of discretion conferred by subparagraph 8(2)(m)(i):

That section … states that personal information may be disclosed where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs the invasion of privacy that could result. It is difficult to imagine statutory language setting out a broader discretion. [Emphasis in the original.]

[120]   While La Forest J. specified that the discretion under paragraph 8(2)(m) is very broad, he did not address the issue of whether or not the head of the institution must in each case perform a balancing test under sections 26 and 8. This was because in Dagg the applicant specifically requested the Minister to take public interest into consideration and the Minister was found to have done so.[26]

[121]   More guidance can be found in Kelly v. Canada (Solicitor General),[27] where Strayer J. discussed the general approach to be taken with respect to discretionary exemptions under the Act. He stated, at page 58:

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.

This directs the reviewing court to look to the purpose for which discretion was granted under section 26 and subparagraph 8(2)(m)(i). Section 26 clearly was 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.

[122]   The purpose for which discretion was granted under subparagraph 8(2)(m)(i) illuminates how that discretion may be sensibly and responsibly exercised. The purpose of the grant of the discretion involves protection of the interest of the citizens of Canada in privacy. It should be noted, however, that the right to privacy may be understood in a specific or general way. If understood very specifically, it is the privacy of the individuals named in the requested records that the institution head would be required to consider in each and every case involving sections 26 and 8. A broader understanding of privacy, drawing inspiration from the very general wording of subparagraph 8(2)(m)(i) (“any invasion of privacy” / “une éventuelle violation de la vie privée”) would suggest that the institution head may on some occasions understand protection of privacy as a broadly conceived policy goal, without reference to particular individuals. As was stated by Muldoon J. in Bland v. Canada (National Capital Commission):[28]

… it is clear that one must, at least notionally, quantify what might be called “the privacy interest” in order that “the public interest in disclosure” and it [i.e. the privacy interest] may be weighed against each other. This is an intellectual exercise par excellence, which subparagraph 8(2)(m)(i) exacts … of the heads of government institutions ….

This confirms that the privacy interest in subparagraph 8(2)(m)(i) is capable of varying degrees of abstraction. Sometimes the comparison of a general category like the public interest with the interest in privacy will require that the latter be conceived in general terms.

[123]   The two ways of conceiving privacy create some flexibility in the manner of exercising discretion under subparagraph 8(2)(m)(i). Generally, the most obvious way for the institution head to exercise his or her discretion will be by inquiring into the impact of disclosure upon the privacy of those individual third parties specifically named in the requested information. At other times, it might be appropriate to deal with the privacy interest at a more abstract level so as to weigh it against the public’s interest in disclosure. The latter approach may at times be an equally valid exercise of the broad discretion conferred upon the head of a government institution. The extent to which the privacy interest ought to be considered in a more or less specific form will depend largely on the facts surrounding each request.

[124]   Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing Judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of subparagraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the Act. Nor are we able to determine whether the reviewing Judge was satisfied that the exception had been considered by CSIS, or that he considered it himself.

[125]   In these circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 of the Act has been properly applied by CSIS.

Whether the reviewing Judge fettered his discretion to receive ex parte representations pursuant to section 46

[126]   Section 46 of the Act authorizes a reviewing judge to receive ex parte representations and hold in camera hearings when the claims for exemptions are based on provisions other than paragraph 19(1)(a) or (b) or section 21. However, both ex parte representations and in camera hearings are mandatory when paragraph 19(1)(a) or (b) or section 21 claims are made.

[127]   In the present instance, only written ex parte representations in the form of supplementary secret affidavits were filed pursuant to section 46 in relation to the refusals to disclose by the RCMP, the DEA and CSIS. The appellant avers that the reviewing Judge, in violation of section 46, ruled that such representations are necessary in every review. He contends that the Judge, in so doing, fettered his discretion.

[128]   With respect, we do not think this is what the reviewing Judge concluded. Because of the Court’s duty to look into whether the refusal to disclose is justified, he was of the view that it is sound practice for the Court to receive ex parte submissions in proceedings which contest such refusal. Such evidence assists the Judge in his review and helps to ensure that confidential or secret information is not disclosed to the public or the applicant when an exemption from disclosure is justified. As it appears from his decision, the reviewing Judge was of the opinion that ex parte submissions are an effective compromise solution which makes sense generally. The fact that this solution makes sense generally, in our view, does not mean that he fettered or improperly exercised his discretion to accept such evidence in this particular instance. We would dismiss this ground of appeal.

Whether the Judge erred in refusing to admit the expert evidence of Mr. Copeland

[129]   At the hearing on the constitutional validity of section 51 of the Act, the appellant sought to introduce as expert evidence the affidavit of Mr. Paul Copeland, a former law firm partner of the appellant and also an applicant under the Act with respect to personal information relating to himself.

[130]   The learned Judge recognized that Mr. Copeland was an expert in privacy matters but refused his affidavit on three grounds: it was marginally relevant, the evidence it contained was not necessary and Mr. Copeland was not an independent expert in view of his former association with the applicant and in view of the fact that he was pursuing his own access proceedings.[29]

[131]   We have reviewed Mr. Copeland’s public affidavit. We have come to the conclusion that it meets the criteria set down by the Supreme Court of Canada in R. v. Mohan[30] and that it should have been admitted for the purpose of the judicial review.

[132]   There is no doubt that the affidavit satisfies both the logical and legal relevancy test in that its value outweighs its impact on the process, i.e. its prejudicial effect. In order to satisfy the necessity test, the expert opinion must be necessary “in the sense that it provide information ‘which is likely to be outside the experience and knowledge of a judge or jury’”.[31] The affiant asserts on the basis of his expertise some facts relating to information that is likely to be outside the knowledge of a reviewing judge.

[133]   First, the affiant swears that the affidavit of Mr. MacEwan is in nature and form quite similar to all the affidavits that he has seen tendered in national security matters. He qualifies the affidavit as a “boiler plate” affidavit.

[134]   Second, based on his experience, special knowledge and expertise, he expresses serious doubts that one could conclude that there exists a reasonable expectation of injury in view of the fact that the material to which access is sought is more than 20 years old.

[135]   Third, he also doubts that the protection of sources, if necessary, cannot be assured otherwise than by a refusal to disclose, since such protection has been achieved in search warrant matters by a mere editing process.

[136]   Fourth, he draws the attention of the reviewing Judge to the fact that there is a tendency in public administrations to unduly and unnecessarily over classify information in order to prevent government embarrassment. This controversial fact is not one that a judge could take judicial notice of.

[137]   Finally, the Copeland affidavit should not have been excluded on account of a possible bias of the affiant. Such factor goes to the credibility of the evidence, not its admissibility.[32]

[138]   We do not think that admitting the affidavit of Mr. Copeland bears any impact or significance on the issue of the constitutional validity of section 51 of the Act or its validation under section 1 of the Charter. Indeed, all the parties asked that the constitutional issue not be remitted for reconsideration simply because of the failure to admit it. However, we believe it should have been considered in assessing whether the exemptions were properly claimed and applied by CSIS and the DEA.

[139]   Counsel for the respondent requested that she be authorized to cross-examine Mr. Copeland should his affidavit be ruled admissible. We hesitated in view of the fact that the appellant’s initial request for access to personal information held by the government goes as far back as March 1988. However, we have come to the conclusion that the respondent’s request should be granted, but that the right to cross-examination, if it is to be exercised should be exercised diligently.

The constitutional issue

[140]   The appellant asserts that certain provisions of the Act are unconstitutional under paragraph 2(b), sections 7 and 8 of the Charter. Specifically, it is alleged that paragraph 51(2)(a) and subsection 51(3) of the Act infringe the right to freedom of the press under paragraph 2(b) of the Charter and the right of persons not to be deprived of their security except in accordance with the principles of fundamental justice under section 7 of the latter. Correlatively, the appellant submits that the provisions of the Act are not saved by section 1 of the Charter. Section 8 of the Charter is invoked in conjunction with section 7 and not as a separate ground of challenge.

[141]   For purposes of deciding the constitutional issue, the scheme of the Act is as follows. Section 41 of the legislation provides that any person who has been refused access to his or her personal information, and who has complained to the Privacy Commissioner with respect to that refusal, may seek judicial review of the continuing refusal. An application commenced under section 41 is to be heard in a summary fashion by any judge of the Federal Court—Trial Division. That judge is required to take every reasonable precaution to avoid disclosing information which eventually may be found to have been validly withheld. In pursuit of this objective, subsection 46(1) empowers the reviewing judge to exercise a discretion as to whether ex parte representations and in camera hearings are necessary to avoid accidental disclosure of personal information. However, in certain instances the Act mandates ex parte and in camera proceedings which must be brought before certain “designated” judges of the Trial Division of this Court. These designated judges have the responsibility of handling cases involving national security matters under the control of CSIS.

[142]   Paragraph 51(2)(a) and subsection 51(3) of the Act are two provisions that reflect this greater concern for secrecy. Together, they direct that, upon a denial of access to personal information on the basis of paragraph 19(1)(a) or (b), or section 21 of that Act and a subsequent challenge to that denial, a designated Federal Court judge is to hold an in camera hearing and to accept ex parte submissions from the head of the government institution denying access. Paragraph 19(1)(a) provides that the head of a government institution shall refuse to disclose any personal information that was obtained in confidence from the government of a foreign state or an institution of that foreign state. Paragraph 19(1)(b) extends that restriction to information obtained in confidence from an international organization of states or an institution thereof. Section 21 is a discretionary provision that permits the head of a government institution to refuse to disclose any personal information on the grounds that to do so would threaten national security. Specifically, it provides that disclosure of personal information may be refused if such disclosure could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities. (The definitions of such allied states or hostile activities are found in section 15 of the Access to Information Act.) For ease of reference, we will refer to information withheld pursuant to section 19 as “foreign confidences” and information withheld pursuant to section 21 as information relating to “national security”. The relevant provisions of the Act read as follows:

19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from

(a) the government of a foreign state or an institution thereof;

(b) an international organization of states or an institution thereof;

…

21. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as defined in subsection 15(2) of the Access to Information Act, including, without restricting the generality of the foregoing, any such information listed in paragraphs 15(1)(a) to (i) of the Access to Information Act.

…

41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

…

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

(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.

…

51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21, and any application under section 43 in respect of a file contained in a personal information bank designated as an exempt bank under section 18 to contain files all of which consist predominantly of personal information described in section 21, shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications.

(2) An application referred to in subsection (1) or an appeal brought in respect of such application shall

(a) be heard in camera; and

(b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

(3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte.

[143]   Of the three institutions targeted by the appellant’s access requests, only CSIS refused to disclose personal information pertaining to the appellant on the basis of sections 19 and 21 of the Act. Consequently, the constitutional challenges to the provisions of section 51 only arise in the context of CSIS’s refusal to provide access to personal information contained within two information “banks”. (The application for judicial review of that decision is contained within file T-638-91 (A-873-97).)

[144]   It will be recalled that the appellant requested access to bank 010 which relates to “sensitive” investigations being conducted by CSIS. In response, CSIS refused to confirm or deny the existence of information in that bank relevant to the appellant’s request as provided for under subsection 16(2) of the Act. CSIS added that if information did exist it was exempt from disclosure pursuant to sections 19, 21, 22 and 26 of the Act. It is CSIS’s position that the investigations referred to in bank 010 would be jeopardized if individuals or organizations involved in those investigations were able to confirm CSIS’s interest in them. The information contained in bank 015 is similar to that in bank 010, but is more dated and, consequently, is said to be less sensitive. Some of the information in bank 015 was released after intervention by the Privacy Commissioner. However, CSIS claimed an exemption for the balance of the information under sections 19, 21, and paragraphs 22(1)(a) and (b) of the Act.

[145]   The central thrust of the appellant’s argument is that the mandatory nature of section 51 of the Act is contrary to various provisions of the Charter. Unlike subsection 46(1) of the former which vests in the motions judge a discretion as to whether the proceedings should be ex parte or in camera, section 51 directs that a hearing into the refusal to disclose information by reason of paragraph 19(1)(a) or (b) or section 21 shall be in camera and that the head of the government institution concerned shall be given the opportunity to make representations ex parte. The Motions Judge [[1996] 3 F.C. 134 found that paragraph 51(2)(a) and subsection 51(3) of the Act restrict the rights enshrined in paragraph 2(b) of the Charter but that the impugned provisions were saved under section 1 of the Charter. The respondent has not appealed against her finding that these provisions violate paragraph 2(b). On the issue of whether the subsections infringed a privacy right protected under section 7 or 8 of the Charter, she found that the subsections simply establish procedural rules for the review of a refusal to grant access to personal information and, as such, do not engage an individual’s right to privacy. We shall deal first with the paragraph 2(b) argument which was examined fully by the Motions Judge. In our respectful view, she did not err in deciding this issue against the appellant.

[146]   As to the appellant’s entitlement to raise paragraph 2(b) against the mandatory requirements for in camera and ex parte proceedings in section 51 of the Act, the Motions Judge observed that freedom of expression protects both listeners and readers. The appellant, therefore, was entitled to challenge the provision on the grounds that if the media cannot attend a hearing held pursuant to section 51, the appellant, as a member of the reading public, was practically denied the right to read about the hearing in the press. The Judge found that although there will be situations in which public disclosure of personal information could be destructive to the interests protected in paragraphs 19(1)(a) and (b) and section 21 of the Act, to provide peremptorily that such personal information must always be dealt with in camera and ex parte offends paragraph 2(b) of the Charter. She expressed the view that it is not appropriate to hold court in private unless, on a case-by-case basis, the Crown demonstrates to the satisfaction of a judge in the exercise of his or her discretion that in camera and/or ex parte proceedings are justified when weighed against the public interest in an open and accountable judicial system. She then addressed the question of whether the provisions in question were saved under section 1 of the Charter.

[147]   She found that the restriction on paragraph 2(b) could be justified as a reasonable limit under section 1 of the Charter after applying the analytical framework set out in The Queen v. Oakes.[33] That framework imposes a burden on the Attorney General to establish that: (i) the legislation addresses a pressing and substantial objective; (ii) a rational connection between the legislative measure and the objective is present; (iii) the legislation impairs rights and freedoms as little as possible; and (iv) a proportionality exists between the salutary and deleterious effects of the legislation. The latter three are often enumerated together under the heading of “proportionality”.

[148]   With respect to the first criterion, she held that the affidavit evidence filed in respect of the operations of CSIS, the RCMP, the DEA was sufficient to establish that the section 51 subsections were designed to achieve the pressing and substantial objective of preserving Canada’s present supply of intelligence information provided by foreign sources. She found that the evidence indicated that the objective of the section 51 provisions is to avoid the perception on the part of Canada’s allies and information sources that an inadvertent disclosure of sensitive information might occur.

[149]   She then found there is a rational connection between the impugned provisions and the objective, noting that it was self-evident that in camera proceedings with ex parte representations reduced the risk of an inadvertent disclosure of sensitive information.

[150]   On the question of minimal impairment, she considered whether, from a practical perspective, there is another means to achieve the objective of preserving Canada’s present supply of information provided by foreign sources which would intrude to a lesser extent on the right to freedom of the press. She dismissed the appellant’s contention that it would be feasible to substitute for the section 51 procedure, a procedure comparable to that approved by the Supreme Court of Canada for the review of affidavits used to obtain wiretaps. Although such a procedure may be less intrusive, she found that it would be impractical in cases where the respondent refused to confirm or deny the existence of information and also in cases involving large numbers of documents or a small number of complicated documents. She then considered whether the access regimes in either Australia and the United States offered any viable, alternative procedures that could be used in place of section 51.

[151]   The Freedom of Information Act in the United States [5 U.S.C. § 552 (1994)] provides that agencies are exempt from making public matters “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defence or foreign policy.” An individual who objects to such classification of information and its consequent withholding may complain to a U.S. District Court. In determining whether the agency is improperly withholding information, the District Court “may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth” [emphasis added]. The burden is on the agency to convince the Court that the documents should be withheld. In determining whether the U.S. practice of granting courts discretion to determine, on a case-by-case basis, the need for ex parte and in camera hearings could be seamlessly adopted into Canada, the Motions Judge [at page 160] held that Canada’s status as a “net importer [of information] with far fewer resources” gave it less room to manoeuvre when it came to instituting permissive review procedures to determine whether to release sensitive information to a private individual. She held that even a small change could jeopardize allied countries’ perception of Canada’s ability to keep secret sensitive information.

[152]   In her recounting of the administrative review process for access denials in Australia, she noted that Australia’s Archives Act 1983 [No. 79, 1983] provides for mandatory in camera proceedings when exempt matters are at issue and discretion is given to hold ex parte proceedings and issue publication bans. She dismissed the possibility that this model could constitute minimal impairment on two grounds, the first being that the appellant did not suggest it, preferring instead to advance the wiretap affidavit review procedure as the only acceptable model for minimal impairment. Secondly, she considered proposed amendments to the Australian legislation that would operate to preclude any appeal of a decision of the Inspector General of Intelligence and Security to exempt foreign-derived material from disclosure. For those two reasons, she declined to find that the Australian practice represents a reasonable example of minimal impairment.

[153]   Finally, with respect to minimal impairment, she considered the procedure used by Canada’s Security Intelligence Review Committee (SIRC) pursuant to which SIRC is entitled to all CSIS information except Cabinet confidences. For the most part, the Protocol governing the release of third party information to SIRC does not contain any specific precautions to be taken: the exchange is guided by more of an “honour” system whereby SIRC agrees, for example, to observe any special precautions requested by CSIS, to treat any third party information with extreme care and to not disclose third party information to others, except with the previous authority of the third party from whom the information originated. She did not accept this system of disclosure as a viable alternative to the section 51 process largely because SIRC, as part of CSIS, accepts the importance of protecting third party information.

[154]   On the issue of proportionality, she applied the test as restated by Lamer C.J. (as he then was) for the majority of the Court in Dagenais v. Canadian Broadcasting Corp.[34] This formulation required a court to review: (i) the proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and (ii) the proportionality between the deleterious and salutary effects of the measures. This test has been revised subsequent to the release of her reasons for judgment. In Thomson Newspapers Co. v. Canada (Attorney General),[35] Bastarache J., writing for the majority, held that the weighing of legislative objectives against the legislation’s deleterious effects is effectively accomplished at the rational connection and minimal impairment stages of the analysis. This leaves for consideration whether the salutary benefits of the legislation outweigh its deleterious effects.

[155]   In her reasons, the Motions Judge relied on the affidavit of Professor John M. Fraser, a former member of the Canadian Foreign Service. Professor Fraser opined that any change which replaces the mandatory provisions of section 51 of the Act with discretionary protections would be noticed by our intelligence allies and seen as a “significant” though “small” diminution of our ability to protect sensitive information from inadvertent disclosure. While she acknowledged that this evidence was “speculative”, she accepted that it was credible, well founded and, in the circumstances, the best evidence available. She concluded that, although hard to quantify, the salutary effects of the section 51 provisions were the preservation of the flow of intelligence information into Canada.

[156]   Finally, she concluded that the deleterious effects of paragraph 51(2)(a) and subsection 51(3) of the Act are minimal. She based this finding on the view that, even if the mandatory provisions of section 51 were not available, it is virtually certain that if the respondent presented appropriate evidence that the sensitive information and related exemptions under review involved national security issues or foreign confidences, a judge, in the exercise of his or her discretion under subsection 46(1), would hear such matters in camera and, if asked, ex parte. We would also add that it would take very little evidence to convince a judge that such procedural safeguards are necessary in light of the type of information for which access is being sought.

[157]   On appeal to this Court the principal argument advanced by the appellant is directed at the minimal impairment issue. The appellant maintains that mandatory in camera and ex parte proceedings deny an individual any meaningful information about why access to personal information has been refused. This informational void is said to make it impossible for an affected person to formulate intelligent submissions as to why the government acted improperly in denying access to the information sought.

[158]   To redress this informational void, the appellant argues that the law must grant a “judicial discretion” to provide persons such as himself with a description of the withheld information sufficient to enable him to challenge the government’s refusal to disclose it. It is argued that this can be accomplished by the use of judicial summaries, as is done in the wiretap context. The thrust of this argument is that the designated judge, using both the public and secret affidavit evidence, would create summaries of the secret evidence and make them available to the appellant. These summaries would make the appellant sufficiently aware of the nature of the withheld material so that he could challenge the government’s withholding of personal information by evidence or argument. In our respectful view, this argument cannot succeed for three reasons. Two were advanced by the Motions Judge and are outlined above. The third deals with the appellant’s proposed relief.

[159]   We agree with the Motions Judge that the solution proposed by the appellant is impracticable in those cases where the respondent is entitled under subsection 16(2) of the Act to refuse to confirm or deny the existence of information and also in cases involving large numbers of documents or a small number of complicated documents. We also accept her observation that even if section 51 granted the judge a discretion, it is virtually certain that if the respondent presented appropriate evidence that the undisclosed information involved national security or foreign confidences the judge would exercise his or her discretion in favour of the Crown and hear the matter in camera and, if asked, ex parte. Moreover, the fact that the legislation limits the mandatory nature of section 51 to reviewing the non-disclosure of information described in sections 19 and 21 demonstrates that Parliament was acutely aware of the need to ensure as much openness as possible in the disclosure process. As stated earlier, the exceptions fall into a narrow subset and are, with all due respect, self-justifying.

[160]   The third reason for rejecting the appellant’s argument stems from the disharmony between the appellant’s proposed solution, i.e. judicial summaries, and the alleged wrong, the mandatory nature of section 51. In our opinion, the remedy which the appellant seeks bears no relationship to the alleged Charter breach. This can be illustrated if one assumes that section 51 of the Act breached the right to free expression enshrined in paragraph 2(b) of the Charter and was not saved under section 1 of that legislation. In those circumstances, the logical constitutional remedy is to replace the mandatory wording of section 51 with a discretionary provision, i.e. by substituting the word “may” for the word “shall”. The result would be that in any application to review the government’s withholding of personal information on the basis of paragraph 19(1)(a) or (b) or section 21, a judge would have the discretion to hear the application in camera and/or accept ex parte representations from the government. Effectively, section 51 would be superseded by the general procedural provisions in section 46 and would only need to be invoked to require the application to be heard and determined in the National Capital Region.

[161]   The appellant, however, maintains that such relief is insufficient. In addition, he seeks judicial summaries of the contents of any confidential affidavit adduced by the Crown, at least to the extent that it is possible to do so without breaching the provisions of the Act. With respect, the relief sought bears no relationship to the alleged Charter breach.

[162]   At present there is no statutory obligation on a judge to prepare a judicial summary of evidence contained within a confidential affidavit submitted by the respondent on an ex parte basis. For example, in the present case, the MacEwan affidavit would indicate whether information exists in information bank 015 for which exemptions are sought, would annex it and would correlate each item of information with the relevant exemption. As well, that affidavit would indicate whether information exists in bank 010. If it exists, the information would be annexed and the relevant exemptions and justifications set out. As the Motions Judge noted, the only difference between a review governed by section 51 and section 46 of the Act is that, in regard to the former, a confidential affidavit must be accepted and ex parte evidence must be received, as well as the review must be in camera. Under section 46, the reviewing judge exercises a discretion to exclude the public, accept a confidential affidavit or otherwise receive submissions in camera or ex parte. However, that section does not oblige the reviewing judge to provide summaries of information contained within confidential affidavits in cases where he or she exercises a discretion to accept such documents on an in camera and ex parte basis. In effect, the appellant is asking this Court to rewrite both sections 46 and 51 of the Act on the mistaken assumption that section 51 is unconstitutional. In summary, there is no correlation between the alleged constitutional breach and the remedy being sought by the appellant. In conclusion, we are of the respectful view that paragraph 51(2)(a) and subsection 51(3) of the Act infringe paragraph 2(b) of the Charter as found by the Motions Judge. However, we also agree that these provisions are saved under section 1 of the Charter. In any event, the affirmative set of procedures requested by the appellant as a way to open up the review process concerning the state’s refusal to disclose personal information is not an appropriate remedy in this case.

[163]   The Motions Judge restricted her section 1 analysis to the alleged infringement of paragraph 2(b) of the Charter. She did not consider how the saving provision might impact on the alleged breaches of sections 7 and 8, concluding as she did early on in her judgment that neither of these sections were engaged by the operation of section 51 of the Act. For the purposes of this decision, the parties agree that evidence adduced in relation to the alleged paragraph 2(b) violation of the Charter and the justification for this breach under section 1 can be used, if necessary, in the sections 7 and 8 analysis. Notwithstanding this concession, we do not find it necessary to consider section 1, finding as we do that there is no breach of section 7 and, by implication, section 8 of the Charter. We turn now to the appellant’s argument as to whether the mandatory nature of section 51 of the Act violates sections 7 and 8 of the Charter.

[164]   The appellant submits that the Motions Judge erred in holding that the impugned provisions of section 51 of the Act do not violate section 7 and by implication section 8 of the Charter. The appellant contends that the right to security of the person protected by section 7 includes the right to privacy in a biographical core of personal information to which an individual would wish to control access. This is said to include information which tends to reveal intimate details of lifestyle and individual personal choices. An individual’s right to privacy over personal information does not end when that information is in the hands of government. Because privacy in relation to information involves the ability of persons to control the dissemination of information, they have a strong privacy interest in the dissemination and use to which government will put personal information. Moreover, it is argued that only by knowing what information the government has about an individual can that individual correct any inaccuracies and seek relief for information which may have been unlawfully gathered by the government. In that sense, the appellant submits that privacy and access to personal information in the hands of the government are two sides of the same coin. A refusal to grant access to personal information is said to infringe on an individual’s security of the person just as the illegal collection of it does.

[165]   The appellant focussed his arguments on the broader protections of section 7, taking the position that the rights at issue are covered by both sections 7 and 8 of the Charter. Section 8 enshrines the right to privacy in the specific context of search and seizure. It is in the review of this protection against unreasonable search and seizure that much of the discussion of individual privacy rights in the jurisprudence of the Supreme Court has taken place. Section 8 of the Charter has been identified as having as its fundamental purpose the protection of individuals from unjustified state intrusions upon their privacy: Hunter et al. v. Southam Inc.[36] However, there is an emerging view that an individual’s right to privacy is also enshrined in one’s liberty interest set out in section 7. This is so because the protection of private life is considered to be at the heart of liberty in a democratic society. Indeed, the Supreme Court’s constitutional privacy jurisprudence demonstrates that that Court views privacy as a personal right of the individual based on autonomy, dignity, liberty and security interests.[37]

[166]   At present the law recognizes three distinct “zones” of privacy. The territorial zone refers to places such as one’s home. Personal or corporeal privacy is concerned with the human body (body, image such as photographs, voice or name). Finally, a person can make a claim to informational privacy which shelters intimate details concerning matters such as health, sexual orientation, employment, social views, friendships and associations.[38]

[167]   We accept the appellant’s submission that in order for the right to informational privacy to have any substantive meaning it must be concerned with both the acquisition of personal information and its subsequent use. This is especially pertinent when the personal information may have been collected without the subject’s express knowledge and the collector of this personal information is the state. While the necessity of the state to demand and collect specific kinds of personal information from each of its residents is undisputed, individuals do have a legitimate interest in knowing what personal information the state possesses about them. In short, persons want to be able to verify the accuracy of personal information and if possible that it was legally obtained. The Access to Information Act and the Privacy Act facilitate this individual right of access/privacy by the establishment of a regime by which an individual can seek and ideally obtain access to material containing personal information. Section 7 of the Privacy Act also instructs us that personal information can only be used for the purpose for which it was obtained. Thus, one has a legitimate concern with respect to ensuring that information has been properly collected and is being used for proper purposes. The improper use of personal information is bad enough. The improper use of inaccurate information only serves to compound the injustice.

[168]   That being said, we are cognizant that the meaning and content of the constitutional guarantees of the Charter will vary according to the relevant context. In the realm of privacy rights, there are two operative barometers in assessing the extent of an individual’s privacy right: one, the degree to which an individual’s liberty or security is threatened by the state’s intrusion into a person’s private affairs and two, the extent of the individual’s reasonable expectation of privacy. On the issue of reasonable expectation of privacy, the law recognizes that the ability to control the dissemination of personal information is an element of the right to privacy. Support for this view of the law is found in R. v. Mills,[39] where at paragraph 80 [page 722] McLachlin and Iacobucci JJ. observed:

This interest in being left alone by the state includes the ability to control the dissemination of confidential information. As La Forest J. stated in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 53-54:

… it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. Yates J., in Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201, states, at p. 2379 and p. 242:

It is certain every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.

These privacy concerns are at their strongest where aspects of one’s individual identity are at stake, such as in the context of information “about one’s lifestyle, intimate relations or political or religious opinions”: Thomson Newspapers, supra, at p. 517, per La Forest J., cited with approval in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, at para. 62.

[169]   In a case such as this where an individual may not be fully aware of the information collected and retained by the government, the ability to control the dissemination of personal information is dependent on a corollary right of access, if only to verify the information’s accuracy. In short, a reasonable expectation of access is a corollary to a reasonable expectation of privacy.

[170]   In our opinion, the fact that the Act provides for the acquisition and accumulation of personal information and its dissemination, in circumstances where the person affected may be unable to test the truth of the information so acquired, may bring into issue the right of privacy recognized in the Supreme Court jurisprudence and the potential application of section 7 of the Charter. Thus, it remains to be decided whether paragraph 51(2)(a) and subsection 51(3) of the Act offend section 7 of the Charter. To do so two requirements must be met. First, it must be established that the mandatory nature of section 51 results in a deprivation of the appellant’s liberty interest. Assuming that such a deprivation occurs, the second issue is whether that deprivation is contrary to the principles of fundamental justice which have both a procedural and substantive component.

[171]   In our opinion, the mandatory provisions of section 51 of the Act dealing with in camera and ex parte proceedings do not engage the liberty interests envisaged by section 7 of the Charter. Like the Motions Judge, we find section 51 to be merely a procedural provision aimed at preventing the accidental disclosure of national security information or foreign confidences and is tied to a process which, at the end of the day, simply requires disclosure of all personal information to a judge for the purpose of assessing whether the exemptions being claimed by the head of a government institution are justified. By providing, in limited situations, that an ex parte and in camera hearing will be held with respect to a refusal to disclose, one cannot reasonably maintain that such a procedural safeguard “deprives” an applicant of his liberty interest.

[172]   Section 51 of the Act is to be contrasted with sections 19 to 28 inclusive which either prohibit disclosure of personal information or grant a discretion to refuse disclosure of such, notwithstanding the general right of access provided for in section 12 of the Act. Arguably, those restrictive provisions do engage section 7 of the Charter in the sense that they constitute a deprivation of the right to control the dissemination of accurate and properly obtained information by the state. But even if section 7 were engaged by those provisions it would be necessary to show that the deprivation fails to accord with the principles of fundamental justice and, correlatively, whether the right of both the Privacy Commissioner and the Federal Court to review information in order to assess the validity of exemptions claimed by the head of a government institution accords with those unstated principles. For purposes of deciding this appeal, however, what is important to note is that the mandatory nature of section 51 in respect of ex parte and in camera proceedings does not detract from the right of access provided for under section 12 of the Act. By contrast, the collection, use and dissemination of personal information is what triggers the right to privacy and section 7 of the Charter. Section 51 is only a procedural provision for determining whether an exemption from disclosure has been validly claimed. The deprivation, if it exists, lies elsewhere in the Act. Those provisions, however, are not in issue.

[173]   In conclusion, we are of the view that paragraph 51(2)(a) and subsection 51(3) of the Act do not engage section 7 of the Charter and, therefore, the appellant’s constitutional challenge must fail.

[174]   For these reasons, we would allow the appeal in part in file A-872-97 with costs in favour of the appellant against the Department of External Affairs. We would also allow the appeal with costs in file A-873-97.

[175]   We would refer the matter back to the Trial Division for a new determination, in accordance with these reasons, of whether the exemptions claimed pursuant to section 19, paragraph 22(1)(b) and section 26 of the Act with respect to banks 010 and 015 were properly applied by CSIS, and whether the DEA properly applied with respect to bank 040 the exemptions it claimed pursuant to paragraphs 22(1)(a) and (b) of the said Act.

[176]   We would order that the affidavit of Mr. Paul Copeland and the transcript of his cross-examination, if any, be filed in evidence as is and that they be considered in assessing whether these exemptions were properly applied by CSIS and the DEA.

[177]   We would dismiss the appeal without costs in file A-52-98.

Sexton J.A.: I agree.

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