T-522-84
Nick Ternette (Applicant)
v.
Solicitor General of Canada (Respondent)
Trial Division, Strayer J.—Calgary, June 6;
Ottawa, June 29, 1984.
Privacy Act — Application under s. 41 of Privacy Act for
review of refusal of access to personal information in RCMP
data bank exempted under s. 21 of the Act — RCMP refusing
to confirm or deny existence of information claiming exemp
tion under s. 18, and if such information existing refusing to
allow inspection — Privacy Commissioner refusing to confirm
or deny existence of information — Generality of words
"review of the matter" in s. 41 sufficient to allow review of
conduct of Governor in Council, Solicitor General, RCMP and
Privacy Commissioner — Refusal to confirm or deny existence
of individual personal files in exempt information banks con
firming Privacy Commissioner carried out investigation —
Disclosure of existence of personal information by RCMP not
required under s. 16(2), nor by Privacy Commissioner under
s. 65(b), nor by Federal Court under s. 46(1)(b) — Privacy
Commissioner not obligated to apply for review off le under s.
43 — Court entitled to consider whether file in data bank
concerning applicant, and if so, whether properly included
therein — Court's genera! powers to consider applications to
review in ss. 41, 45, 46 and 48 not narrowed by specific right to
review bestowed on Privacy Commissioner under s. 36 —
Court having duty under ss. 41 and 45 to deal with such
applications having regard only to avoid improper disclosure
— Proper procedure found in s. 46 since refusal based on s. 18,
not s. 21 — Respondent to file with Associate Chief Justice or
his designate in sealed envelope affidavit as to existence of
persona! information as to applicant in data bank, and to
attach file as exhibit — Hearing to be in camera with both
parties present — Commissioner to be notified of proceedings
— Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II, ss.
12(1), 16, 18, 21, 29, 35, 36, 37, 41, 42, 43, 45, 46, 48, 49, 50,
51, 65(b).
This is an application under section 41 of the Privacy Act for
a review of a refusal by the Privacy Commissioner to give the
applicant access to personal information contained in a RCMP
data bank. The bank was exempted pursuant to section 21 of
the Act. The RCMP refused to confirm or deny the existence of
such information, stating that their Security Service Records
were exempt from access under section 18 of the Act, and even
if such information existed, refused to allow the applicant to
inspect it. The Privacy Commissioner also refused to confirm or
deny the existence of such information. The applicant contends
that the Commissioner's letter indicated that he had not carried
out an investigation; that he had failed to advise the applicant
as to whether there was any information concerning him in this
exempt bank; and that he had failed to apply to the Court for a
review of the applicant's file as he was authorized to do under
section 43 of the Act. The issues are whether the Court can
consider whether the file was properly included in a bank
exempted under subsection 18(1), and secondly, can the Court
insist on ascertaining if a file exists in the exempt data bank,
and if one does exist, insist on seeing it. The respondent
contends that the answer to both questions is "no" where the
Privacy Commissioner has declined to seek judicial review
under section 43. The respondent relies on the maxim of
interpretation expressio unius est exclusio alterius. He argues
that since the statute made specific provision in section 36 for
the Privacy Commissioner to investigate files in an exempt
bank and to apply to the Federal Court under section 43 for a
review, this is the only situation in which the Court can make
such a review.
The applicant relies on section 45 which applies to applica
tions under section 41, and provides that "Notwithstanding any
other Act of Parliament or any privilege under the law of
evidence, the Court may ... examine any information recorded
in any form under the control of a government institution".
Section 48 allows the Court to determine whether the head of
the institution was authorized to refuse to disclose the personal
information. Section 49 provides that where refusal to disclose
has been based on specified sections, the Court can only
determine whether the head of the institution had reasonable
grounds on which to refuse to disclose the personal information.
While the bank was exempted on the basis that it contained
files all of which consisted of personal information described in
section 21, the actual refusal to disclose the information refers
only to section 18. Therefore section 48 would provide the
relevant authority as to the order which the Court could make.
Held, the Court has general powers to consider applications
to review a refusal to disclose personal information.
The generality of the words "review of the matter" in section
41 is sufficient to allow, within the limits otherwise imposed by
the Act, a review of the conduct of the Governor in Council, the
Solicitor General, the RCMP, and the Privacy Commissioner
as it relates to the refusal to provide the applicant with the
information he seeks.
The Privacy Commissioner's refusal to confirm or deny the
existence of individual personal files in exempt information
banks confirmed that he had made an investigation and that it
would not be proper for him to confirm or deny the existence of
any information concerning the applicant. Secondly, it was
within the powers of both the RCMP under subsection 16(2),
and the Privacy Commissioner under paragraph 65(b), to
decline to confirm or deny that any personal information about
the applicant existed. The Federal Court is directed by para
graph 46(1)(b) to take precautions to avoid such disclosure.
Thirdly, section 43 is permissive, and the Commissioner has a
discretion as to whether he initiates action for judicial review.
In an application "for a review of the matter" under section
41, the Court is entitled to ascertain whether there is a file in
the data bank with respect to the applicant, and if so whether it
is properly included in the data bank. The bank was purported
ly exempted because all the files consisted predominantly of
information described in section 21. The Court is entitled to
look at any given file to determine if it consists predominantly
of personal information.
This is not a proper case for the application of the expressio
unius est exclusio alterius maxim. The Court has general
powers to consider applications to review a refusal to disclose
personal information in sections 41, 45, 46 and 48. These
general powers should not be narrowed because the Privacy
Commissioner was specifically given a right to seek such
review. Parliament did not limit such general powers. Instead,
sections 41 and 45 give the Court carte blanche to look at any
information under government control other than a confidence
of the Queen's Privy Council "Notwithstanding any other Act
of Parliament or any privilege under the law of evidence"
having regard only to the need to avoid improper disclosure as
prescribed in section 46. In adopting such general provisions,
Parliament must have understood the individual's right of
judicial review to be as effective in relation to exempt banks as
in relation to personal information held in other forms. Parlia
ment cannot have intended to relegate the role of the Court to
merely reading the Order in Council exempting the bank and
comparing the index number of the bank to that referred to in
the application for personal information, in light of section 41
which grants a general right to seek judicial review of pro
posals. There is nothing anomalous about having a special
regime prescribed in section 36 for review of exempt banks by
the Commissioner alongside a general review of particular files
therein at the instance of the individual affected. Section 36
authorizes an ongoing review of entire banks by the Commis
sioner on his own initiative. It is a systemic review requiring
special authority which is not predicated upon the existence of
any complaint by an individual. Where the Commissioner is
unsatisfied with the response of the government institutions to
his recommendations, it is logical that special provision should
be made for review by the Court at his request. Such a review
would not fit within the language of sections 41 or 42. The
orders authorized by sections 48 and 49 would not be appropri
ate because no individual complaint is involved and therefore
the special powers of section 50 were required. There is no
ambiguity in the Act because of the clear right of the applicant
under section 41 to seek a review of the matter and the
responsibility of the Court to consider such an application.
The proper procedure is found in section 46. Section 51 does
not apply since the basis of the refusal was not section 21. The
respondent should file an affidavit as to the existence or not of
personal information in the data bank with respect to the
applicant. If such a file does exist, it should be attached as an
exhibit to the affidavit. The material should be submitted in a
sealed envelope to be opened and retained only by the Associate
Chief Justice or such other Judge as he may designate. The
initial hearing should be held in camera with both parties
present or represented. The Privacy Commissioner should be
notified of the next hearing.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Heydon's Case (1584), 3 Co. Rep. 7a; 76 E.R. 637
(K.B.D.).
APPEARANCE:
Nick Ternette on his own behalf.
COUNSEL:
Barbara Mclsaac for respondent.
APPLICANT ON HIS OWN BEHALF:
Nick Ternette.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Facts
This is an application under section 41 of the
Privacy Act which was enacted as Schedule II to
S.C. 1980-81-82-83, c. 111. This Act generally
came into force in 1983 and replaced Part IV of
the Canadian Human Rights Act, S.C. 1976-77, c.
33. Part IV had enacted the first general regime
for the protection of privacy of personal data held
by the Government of Canada and provided a
right of access thereto by the individuals con
cerned. As a number of sections of the Privacy Act
are involved in this application, I am setting out
the salient ones in extenso in the Appendix to this
judgment.
After the enactment of the Privacy Act and
before its coming into force an Order in Council
was adopted on April 22, 1983 exempting, pursu
ant to section 18 of the Act, a data bank of the
RCMP described as Security Service Records, No.
RCMP-P130. As required by section 18, the Order
in Council, which is SOR/83-374, specified section
21 of the Privacy Act as being the basis for the
exemption of the bank. Section 21, it will be noted,
refers to information the disclosure of which could
reasonably be expected to be injurious to the con
duct of international affairs, the defence of
Canada, or the prevention or suppression of
subversive activities.
On August 19, 1983, the applicant herein, Nick
Ternette, applied pursuant to subsection 12(1) of
the Privacy Act for access to any personal infor
mation about him contained in this data bank. He
asked for such information
... specifically in regards [sic] to activities directed towards
[sic] accomplishing governmental change within Canada or
elsewhere by force or violent means, the use or the encourage
ment of the use of force or the creation or exploitation of civil
disorder (these activities to have taken place in Manitoba &
Alberta).
By letter of September 19, 1983 from P. E. J.
Banning, Departmental Privacy and Access to
Information Coordinator, the RCMP advised Mr.
Ternette as follows:
We received your request for information on September 14,
1983. The Governor-in-Council has designated our Security
Service Records, described in the Index of Personal Informa
tion Banks, as exempt from access under Section 18 of the
Privacy Act. We cannot comply with your request nor can we
confirm whether or not such information exists concerning you.
This is necessary to preserve the integrity of this information
category.
You are entitled to register a complaint regarding your request
with the Privacy Commissioner ... .
By a subsequent undated letter Mr. Ternette com
plained to the Privacy Commissioner with respect
to the RCMP decisions to refuse confirmation or
denial of the existence of such information con
cerning himself and, if such information exists, to
refuse to allow him to inspect it. By a letter of
December 13, 1983 the Privacy Commissioner,
after noting that the bank in question had been
exempted by the Governor in Council, advised the
applicant as follows:
I have a mandate only to ensure that personal information kept
in such banks is not improperly maintained, or used. I will not
confirm or deny the existence of individual personal files in
designated exempt information banks.
The investigation made on your behalf assured me that the
officials of the RCMP acted in accordance with the law in
responding to you in the manner they did. I have no basis to
recommend that you have been denied a right under the
provisions of the Privacy Act.
Should you wish to pursue further your request for access to
this bank, you have, of course, the right to appeal my finding to
the Federal Court of Canada.
By his notice of motion launching this applica
tion, the applicant asked that "a time and place be
fixed by the Honourable Court for review of the
decision to refuse access to information under the
provisions of the Privacy Act ...". At the hearing,
the applicant, who was not represented by counsel,
supplemented this general request with some spe
cific complaints against the Privacy Commission
er. He contended that the Commissioner's letter
indicated that he had not carried out an investiga
tion; that he had failed to advise the applicant as
to whether there was or was not any such informa
tion concerning him in this exempt bank; and that
he had failed to apply to the Court for a review of
the applicant's file (if indeed, there is one in this
bank) as he is authorized to do under section 43 of
the Act. To the extent that these latter complaints
should be taken as a request for some specific
remedy against the Privacy Commissioner such as
mandamus, I do not think they can be entertained
without at least impleading the Privacy Commis
sioner.
I believe, however, that having regard to the Act
and the notice of motion this application should be
treated as one under section 41 of the Act whereby
"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 ...".
It appears to me that the generality of the words
"review of the matter" is sufficient to allow me,
within the limits otherwise imposed by the Act, to
review the conduct of the Governor in Council, the
Solicitor General, the RCMP, and the Privacy
Commissioner as it relates to the refusal to provide
the applicant with the information he seeks. I
might add that although section 41 requires that
the application normally be brought within forty-
five days after the report of the Privacy Commis
sioner, which was not done here, I am prepared to
exercise the discretion allowed me by that section
to extend the time so as to permit this application,
which was launched on March 7, 1984, to proceed
notwithstanding the passage of some seventy-five
days from the mailing of the notice of the results
of his investigation by the Privacy Commissioner.
Initial Findings
Proceeding on this basis, it is, I think, undisput
ed that there are certain determinations which I
can make on the basis of the public record to
which I have already referred. In this way I can
dispose of some of the applicant's complaints.
First, I do not accept his contention that the letter
from the Privacy Commissioner admits that he has
carried out no investigation. He based this conclu
sion mainly on the sentence in the letter which
says "I will not confirm or deny the existence of
individual personal files in designated exempt
information banks." It is clear to me that in the
context the Privacy Commissioner was in fact
confirming that he had made an investigation and
was noting that it would not be proper for him to
confirm or deny the existence of any information
concerning the applicant in this data bank.
Secondly, considering the scheme of the Act, it
was within their powers for both the RCMP and
the Privacy Commissioner to decline to confirm or
deny that any personal information about the
applicant existed in this exempt data bank. Sub
section 16(2) of the Act specifically says that the
head of a government institution is not required, in
refusing access to any personal information
requested under subsection 12(1), to indicate
whether such personal information concerning the
applicant does exist. Paragraph 65(b) specifically
directs the Privacy Commissioner in carrying out
an investigation to avoid disclosure of whether
such information exists where the head of the
government institution has refused such disclosure.
Similarly, this Court in review proceedings is
directed by paragraph 46(1)(b) of the Act to take
precautions to avoid such disclosure. (The theo-
ry—whether grounded in reality or not I need not
determine—of such provisions presumably is that
the mere disclosure of the existence of information
may alert an applicant to the fact that, e.g., his
activities have been under surveillance and this
may frustrate law enforcement, anti-subversive
measures, etc.) Thirdly, I can see no basis for a
complaint to this Court that the Privacy Commis
sioner has not exercised his right under section 43
to seek a review of a file contained in an informa
tion bank exempted under section 18. As will be
noted below, it is my view that section 43 does not
apply to the present situation. But even if it does, it
provides that "the Privacy Commissioner may
apply to the Court". (Emphasis added.) Obviously
this is permissive, not mandatory, and the Com
missioner has a discretion as to whether he ini
tiates action for judicial review.
I believe it is not in dispute that in the course of
a review under section 41 I am at least entitled to
see if the bank in question actually has been the
subject of an exemption order. To do this I can
look at the Order in Council. In doing so it is
obvious that SOR/83-374 entitled Exempt Per
sonal Information Bank Order, No. 14 (RCMP)
does purport to exempt the data bank which is the
target of the applicant's request for information.
I believe it is also accepted, and I so hold, that
subsection 18(1) does provide an objective criteri
on for the exercise of the power of the Governor in
Council under that subsection in making an
exemption order. Such an order can only be made
where each of the files in the bank consists "pre-
dominantly of personal information described in
section 21 or 22". This follows from the fact that
exemptable banks must contain files "all of which"
(emphasis added) consist of such material.
Issues
Two difficult questions remain, however, which
raise important and difficult issues concerning the
interpretation of this Act. As this is, I believe, only
the second application to be made to the Court
under this Act these questions are novel and
require careful consideration. They are: first, can
this Court in such circumstances consider whether
a particular file was properly included in a bank
exempted under subsection 18(1); and, secondly,
can the Court insist on ascertaining if a file exists
in this exempt data bank concerning the applicant
and, if one exists, insist on seeing it. If the answer
to the second question is affirmative, there would
also be some subsidiary considerations as to which
of the procedures provided in the Act for judicial
review would be applicable to the situation.
Respondent's Position
The respondent, the Solicitor General of
Canada, contends that the answer to both of these
fundamental questions should be in the negative
where the Privacy Commissioner has declined to
seek judicial review under section 43 of any file
contained in an exempt bank. Counsel points out
that section 36, the only section which falls under
the heading REVIEW OF EXEMPT BANKS in the
Act, specifically provides for an investigation by
the Privacy Commissioner of files in an exempt
bank. Subsection 36(5) specifically allows the
Privacy Commissioner, where he is dissatisfied
with the response or action taken by the govern
ment institution as a result of his investigation and
report under that section, to make an application
to the Federal Court under section 43. Section 43
says that in the particular circumstances described
in subsection 36(5) it is the Privacy Commissioner
who may apply to the Court "for a review of any
file contained in a personal information bank des
ignated as an exempt bank under section 18".
Moreover, section 50 commences with the words
"Where the Privacy Commissioner makes an
application to the Court under section 43" and
then goes on to direct the Court, if it finds that a
particular file should not have been included in the
exempt bank, to order the government institution
to remove that file from the bank. Section 51, in
prescribing a particular procedure for court review
of more sensitive material, specifically includes
applications made under section 43 (i.e., by the
Privacy Commissioner) among those to be dealt
with by such special procedures. The position of
the respondent is that, the statute having made
specific provision for the Privacy Commissioner to
initiate a review of files in an exempt bank, this is
the only situation in which the Court can make
such a review. In effect, if not in so many words,
the respondent is relying on the maxim of interpre
tation expressio unius est exclusio alterius. A
further corollary of this argument is that such
general power as the Court may have to consider
an application by an individual for review of a
refusal of access to his personal information under
section 41, as will be discussed below, is limited
vis-Ã -vis personal information in an exempt data
bank to determining whether in fact an Order in
Council has been adopted exempting this particu
lar bank. Once the Court determines that, it can
do nothing else where the application for review is
initiated by the individual concerned.
Applicant's Position
On the other hand, the position most favourable
to the applicant in this case—which I have had to
extrapolate from his own submission and from a
careful review of the language of the Act—is that
under section 41, which applies to "Any individual
who has been refused access to personal informa
tion requested under subsection 12(1)", (this being
clearly the situation of the applicant herein) he
can "apply to the Court for a review of the mat
ter". Section 45, which applies inter alia to
applications under section 41, provides:
45. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, ... examine
any information recorded in any form under the control of a
government institution, other than a confidence of the Queen's
Privy Council for Canada ... and no information that the
Court may examine under this section may be withheld from
the Court on any grounds. [Emphasis added.]
Section 46 requires the Court, in the course of
such hearings including those of applications under
section 41, to conduct its review in such a way as
not to disclose information that is entitled under
the Act to protection from disclosure.
Next, assuming an application is properly
brought under section 41, sections 48 and 49 of the
Act must be considered with respect to the kind of
finding which the Court is entitled to make. Sec
tion 48 is the more general power which allows the
Court in most cases to determine whether the head
of the institution was authorized to refuse to dis
close the personal information in question. If the
Court finds that he was not, it may order him to
disclose the information which is the subject-
matter of the application. Section 49 creates in
effect an exception to this general power of the
Court. It provides that where the refusal to dis
close has been based on certain specified sec-
tions—apparently those involving the more sensi
tive issues concerning national security, etc.,
including section 21—then the Court can only
determine whether the head of the institution had
"reasonable grounds on which to refuse to disclose
the personal information". This somewhat limits
the power of the Court to overrule the head of the
institution, but if it finds there were no such
reasonable grounds it can similarly order that head
to disclose the information. Both of these sections
allow the Court to "make such other order as the
Court deems appropriate". In the present case,
while the bank was exempted on the basis that it
contained files all of which consisted predominant
ly of personal information described in section 21,
the actual refusal to disclose the information to the
applicant here, as set out in the RCMP letter of
September 19, 1983 as quoted above, refers only to
section 18 of the Act as the basis for refusal. It will
be noted that the letter referred to this bank as
being "exempt from access under Section 18 of the
Privacy Act". By paragraph 16(1)(b) of the Act
the institution head is obliged, if refusing access, to
state the specific provision of the Act on which the
refusal is based. In my view it is fundamental to
the exercise of all subsequent remedies by the
applicant that the head be bound by the grounds
he asserts in his notice of refusal. Therefore it
would appear that the refusal to disclose personal
information in this case must be regarded as based
not on section 21 but rather on section 18. That
being the case, section 48 would provide the rele
vant authority as to the order which the Court
could make, if indeed it is otherwise empowered to
deal with the substance of a complaint by an
individual concerning the inclusion of his file in an
exempt bank.
Conclusion
While the contention of the respondent is not
without force, I am unable to conclude that this is
a proper situation for the application of the maxim
expressio unius est exclusio alterius. Were it not
for the specific references to the right and proce
dure for the Privacy Commissioner to apply for
review of a file within an exempt bank, there could
be no doubt that such a matter would be properly
within the general powers of the Court to receive
and consider applications for review for a refusal
to disclose any personal information, as provided
in general terms in sections 41, 45, 46 and 48. I am
not prepared gratuitously to narrow the scope of
those general powers merely because it has also
been seen fit to describe specifically the right of
the Privacy Commissioner to seek such review. It
would have been quite simple for Parliament to
have limited the scope of sections 41, 45, and 48 or
to have made it clear that they do not apply where
subsection 36(5), section 43, and section 50 apply.
But Parliament did not do this. Instead, section 41,
giving an individual who has been refused access a
general right to apply to the Court "for a review of
the matter", and section 45 which gives the Court
in such cases carte blanche to look at any informa
tion under government control other than a confi
dence of the Queen's Privy Council, "Notwith-
standing any other Act of Parliament or any
privilege under the law of evidence", clearly casts
upon the Court a power and a responsibility to
deal with such applications having regard only to
the need to avoid improper disclosure as prescribed
in section 46. In adopting such general provisions
Parliament must have understood the individual's
right of judicial review to be as effective in relation
to exempt banks as in relation to personal informa
tion held in other forms. If one interpreted
sections 41 and 48 in the manner advocated by the
respondent herein, the only power the Court would
have in response to an application for review would
be to read the Order in Council exempting the
bank. Once the Court had read the Order in
Council and compared the index number of the
bank to that referred to in the application for
personal information, its powers would be exhaust
ed. It is not to be assumed that Parliament intend
ed such a trivial and inconsequential function for
the Court when in section 41 it granted a general
right to individuals to seek judicial review of refus
als by government institutions to disclose personal
information.
In fact there is nothing anomalous about having
a special regime prescribed in section 36 for review
of exempt banks by the Commissioner alongside a
general right of review of particular files therein at
the instance of the individual affected. What sec
tion 36 authorizes is an ongoing review of entire
banks by the Commissioner on his own initiative
just as section 37 authorizes him to conduct gener
al reviews of the management within government
of personal information to ascertain how well the
requirements of sections 4 to 8 are being observed
concerning protection and use of such data. These
are systemic reviews which are not predicated on
the existence of any complaint by an individual. As
such they require special authority. Where the
Commissioner carries out such a review of his own
of an exempt bank under section 36, and is unsat
isfied with the response of the government institu
tions to his recommendations, it is logical that
special provision should be made in sections 43 and
50 for review by the Court at his request. Such a
review would not fit within the language of sec
tions 41 or 42. The orders authorized by sections
48 and 49 would not be appropriate because no
individual complaint is involved, and therefore the
special powers of section 50 were required.
In my view there is thus no ambiguity in the Act
on this point because of the clear right of the
applicant under section 41 to seek a review of the
matter and the responsibility of the Court to con
sider such an application. Therefore, there being
no ambiguity, the occasion does not arise for the
application of the maxim expressio unius est
exclusio alterius.
I was also invited by counsel for the respondent
to consider a Cabinet Discussion Paper of June,
1980 entitled "Privacy Legislation" which I under
stand was submitted to the Federal Cabinet at the
time that policy decisions were taken with respect
to this legislation. After being assured by counsel,
at my request, that this was not "a confidence of
the Queen's Privy Council for Canada" which by
section 45 I am not allowed to read, I have con
sidered the Discussion Paper as a possible aid to
the interpretation of the Act. I have done so for
the very limited purpose for which I believe such
documents can be used in the interpretation (as
compared to the constitutional characterization) of
statutes, namely to determine, in the language of
the classic Heydon's Case (1584), 3 Co. Rep. 7a;
76 E.R. 637 (K.B.D.), the "mischief' which Par
liament was trying to overcome and the remedy
which it adopted. See also Driedger, The Con
struction of Statutes (2nd ed. 1983), at pages
73-79. Again, it is doubtful that one should resort
to such aids to interpretation where the statute is
not truly ambiguous. In case I should be wrong as
to the lack of ambiguity, however, I have tried but
without success to find much enlightenment in this
Discussion Paper on the "mischief' or the remedy.
Unfortunately, the Discussion Paper does not deal
specifically with the question I am obliged to
consider here as to the right of an individual to
seek judicial review of his file, if one there be, in
an exempt data bank. The paper, after discussing
the use of exempt banks under the previous statu
tory provisions (Part IV of the Canadian Human
Rights Act) recommends continuation of this
system with some modifications. It does go on to
say the following:
In addition, consideration should be given to providing a mech
anism for the review of information contained in exempt banks.
The Privacy Commissioner would be empowered to review the
contents of exempt banks and, in cases where the opinion of the
Commissioner and the minister responsible differs as to wheth
er or not information has been properly included in a bank, to
refer the matter to the courts. Such a provision would provide a
method of controlling the types of information included in
exempt banks.
It may be observed that the paper is here only
specifically dealing with the right of the Privacy
Commissioner to examine exempt banks and ini
tiate judicial review. It does not reveal any reason
for the exclusion of individuals from the right to
seek judicial review with respect to their own file.
Indeed, elsewhere in the paper, at page 6, the
general statement is made that the "right of
appeal to the Federal Court" by individuals should
be made identical in both the Access to Informa
tion Act and the Privacy Act. (There appear to be
no comparable provisions for exempt banks in the
Access to Information Act.) The "mischief' to be
remedied is not really articulated in the Discussion
Paper although the general impression left is that
one of the deficiencies of the earlier law was that
there was no right of judicial review of a refusal by
a government institution to disclose personal infor
mation. Even if this Discussion Paper could be
taken as some indicator of the intention of the
Cabinet in 1980, of course it is not necessarily
probative of the intention of Parliament in 1'982
when the law was adopted no doubt after consider
able debate and amendment. That intention must
in the final analysis be drawn from the words of
the statute as finally adopted.
I therefore conclude that in an application "for
a review of the matter" under section 41 such as
the present application, this Court is entitled to
ascertain whether there is indeed a file in this data
bank with respect to the applicant and if so wheth
er it is properly included in the data bank. As
noted above, for a bank to be properly exempted
under subsection 18(1) of the Act all files therein
must "consist predominantly of personal informa
tion described in section 21 or 22". This is an
objective prerequisite to the inclusion of any given
file: it is not couched in subjective terms such as
"where the Governor in Council is of the opinion
that ..." such a condition exists. The bank in
question here was purportedly exempted because
all the files therein consist predominantly of infor
mation described in section 21. Therefore the
Court is entitled to look at any given file in the
exempt bank which is the subject of an application
under section 41 to determine if it consists pre
dominantly of personal information described in
section 21. If it determines that such file does not
so consist, then the file is not properly included in
that bank and the Court is entitled to make an
appropriate order under section 48.
As noted earlier it appears to me that the proper
procedure for hearing such an application is found
in section 46 of the Act. Counsel for the respond
ent contended that section 51, which has mandato
ry rather than facultative provisions concerning
the maintenance of secrecy, is the relevant section
on the grounds that this would be an application
with respect to a refusal to disclose based on
section 21. As I have noted earlier, the basis of
refusal invoked by the RCMP was instead section
18 and I believe the respondent is bound by that
position. This means that the procedure in section
46, not 51, applies. Counsel for the respondent also
advised the Court that if such a review were to be
carried out the respondent's position would be that
an ex parte hearing should be held. This can
equally be ordered under section 46 by direction of
the Court. It is also open to the Court under
section 46 to direct in camera hearings. And the
Court is required under that section to avoid dis
closure of certain information, including disclosure
of whether such information even exists in a case
such as the present.
I conclude therefore that the respondent should
file in the Court an affidavit as to the existence or
non-existence of personal information in this data
bank with respect to the applicant. If such a file
does exist the original or a copy thereof should be
exhibited to the affidavit. This material should be
submitted in a sealed envelope to be opened and
retained only by the Associate Chief Justice or
such other Judge as he may designate until some
further disposition is ordered. The matter should
then be spoken to initially at a time and place
designated by the Associate Chief Justice and
either before him or before such Judge as he may
designate. I would direct under section 46 that the
initial hearing be held in camera with both parties
present or represented if they so wish, subject to
such further disposition by the presiding Judge
with respect to ex parte proceedings or any other
matter.
As I think it would be helpful to have the views
of the Privacy Commissioner on these matters
(particularly as to what he had in mind when he
advised the applicant that he had a right to appeal
the Commissioner's finding to the Federal Court) I
am also directing that he be given notice of the
next hearing of this matter so that he may if he
wishes seek leave to participate as a party as
provided by paragraph 42(c) of the Act.
APPENDIX
Excerpts from the Privacy Act, S.C. 1980-81-82-
83, c. 111, Sch. II
12. (1) Subject to this Act, every individual who is a Canadi-
an citizen or a permanent resident within the meaning of the
Immigration Act, 1976 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; .. .
16. (1) Where the head of a government institution refuses to
give access to any personal information requested under subsec
tion 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 Com
missioner about the refusal.
(2) The head of a government institution may but is not
required to indicate under subsection (1) whether personal
information exists.
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 21 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 desig
nated 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 informa
tion described in subparagraph 22(1)(a)(ii), the law
concerned.
(Section 21 refers to personal information which
could reasonably be expected to be injurious to the
conduct of international affairs, the defence, or
suppression of subversive activities. Section 22
refers to personal information that has been gath
ered in the course of law enforcement or whose
disclosure would be injurious to law enforcement
or the security of penal institutions.)
29. (1) Subject to this Act, the Privacy Commissioner shall
receive and investigate complaints
(b) from individuals who have been refused access to person
al information requested under subsection 12(1);
35. (1) If, on investigating a complaint under this Act in
respect of personal information, the Privacy Commissioner
finds that the complaint is well-founded, the Commissioner
shall provide the head of the government institution that has
control of the personal information with a report containing
(a) the findings of the investigation and any recommenda
tions that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within a time specified
therein, notice be given to the Commissioner of any action
taken or proposed to be taken to implement the recommenda
tions contained in the report or reasons why no such action
has been or is proposed to be taken.
(5) Where, following the investigation of a complaint relat
ing to a refusal to give access to personal information under this
Act, access is not given to the complainant, the Privacy Com
missioner shall inform the complainant that the complainant
has the right to apply to the Court for a review of the matter
investigated.
36. (1) The Privacy Commissioner may, from time to time at
the discretion of the Commissioner, carry out investigations of
the files contained in personal information banks designated as
exempt banks under section 18.
(3) If, following an investigation under subsection (1), the
Privacy Commissioner considers that any file contained in a
personal information bank should not be contained therein
within the terms of the order designating the bank as an
exempt bank, the Commissioner shall provide the head of the
government institution that has control of the bank with a
report containing
(a) the findings of the Commissioner and any recommenda
tions that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within a time specified
therein, notice be given to the Commissioner of any action
taken or proposed to be taken to implement the recommenda
tions or reasons why no such action has been or is proposed
to be taken.
(5) Where the Privacy Commissioner requests a notice under
paragraph (3)(b) in respect of any file contained in a personal
information bank designated under section 18 as an exempt
bank and no notice is received within the time specified therefor
or the action described in the notice is, in the opinion of the
Commissioner, inadequate or inappropriate or will not be taken
in a reasonable time, the Privacy Commissioner may make an
application to the Court under section 43.
41. Any individual who has been refused access to personal
information requested under subsection 12(1) may, if a com
plaint 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 expiry of those
forty-five days, fix or allow.
43. In the circumstances described in subsection 36(5), the
Privacy Commissioner may apply to the Court for a review of
any file contained in a personal information bank designated as
an exempt bank under section 18.
45. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, in the
course of any proceedings before the Court arising from an
application under section 41, 42 or 43, examine any informa
tion recorded in any form under the control of a government
institution, other than a confidence of the Queen's Privy Coun
cil for Canada to which subsection 70(1) applies, and no
information that the Court may examine under this section
may be withheld from the Court on any grounds.
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 (e) 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.
50. Where the Privacy Commissioner makes an application
to the Court under section 43 for a review of a file contained in
a personal information bank designated as an exempt bank
under section 18, the Court shall, if it determines
(a) in the case of a file contained in the bank on the basis of
personal information described in paragraph 22(1)(a) or
subsection 22(2), that the file should not be included therein,
or
(b) in the case of a file contained in the bank on the basis of
personal information described in section 21 or paragraph
22(1)(b), that reasonable grounds do not exist on which to
include the file in the bank,
order the head of the government institution that has control of
the bank to remove the file from the bank or make such other
order as the Court deems appropriate.
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
such 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 applica
tion, the head of the government institution concerned shall, on
the request of the head of the institution, be given the opportu
nity to make representations ex parte.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.