T-192-85
Neil Anderson Davidson (Applicant)
v.
Solicitor General of Canada (Respondent)
INDEXED AS: DAVIDSON v. CANADA (SOLICITOR GENERAL)
Trial Division, Jerome A.C.J.—Vancouver,
November 19, 1985 and January 22, 23 and 24,
1986; Ottawa, March 16, 1987.
Privacy — Access to personal information refused —
Whether, after commencement of application for review of
refusal under Act s. 41, exemptions other than those stated in
notice of refusal may be invoked — Effect of failure to comply
with essentially procedural requirements of Act s. 16(1)(b) —
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II, ss.
12(1), 14, 16(1)(b), 19(1)(c), 22(1)(a)(i),(ii),(b)(ii),(iii),(2), 27,
29(1)(b), 41, 45, 48, 49 — Access to Information Act, S.C.
1980-81-82-83, c. 111, Schedule I, s. 16(3) — Canada Evi
dence Act, R.S.C. 1970, c. E-10, s. 36.1(1),(2) (as added by
S.C. 1980-81-82-83, c. 111,s. 4).
The applicant had been mayor of Vernon, British Columbia.
Following newspaper reports of an RCMP investigation into
illegal and unethical activities allegedly performed by him, the
applicant sought access to any personal information about
himself contained in operational case records of the RCMP.
This was initially requested under the Canadian Human Rights
Act, but when the Privacy Act came into effect, the parties
agreed to treat the request as an application under subsection
12(1) thereof. The respondent refused to disclose the informa
tion, essentially to protect the identity of informers. However,
in the notice of refusal denying the applicant access to the
information, the stated ground for that decision was subsection
22(2) of the Act. Pursuant to that provision, disclosure of
personal information obtained by the RCMP in performing
policing services for a province may be refused where the
federal government has agreed, at the request of the province,
not to disclose such information. No such agreement had,
however, been in effect during the investigation. The issue,
then, is whether the respondent can, after the commencement
of the present application for review under section 41 of the
Act, invoke other exemptions specified in the Act.
Held, the application should be allowed, subject to certain
conditions.
Paragraph 16(1)(b) makes it mandatory to state in the notice
of refusal the specific provisions of the Act on which the refusal
is based. It was determined in Ternette that the failure to
comply with that requirement prevents the respondent from
relying on exemptions not identified in the notice of refusal.
But this does not necessarily mean that an essentially proce-
dural default can prevail against the interest of national
security.
The respondent's failure to invoke the exemption in subpara-
graph 22(1)(b)(ii) cannot be remedied by the filing of a
certificate under section 36.1 of the Canada Evidence Act.
First, because section 45 of the Privacy Act provides that the
Court may, notwithstanding any other Act of Parliament,
examine the information to determine if the refusal to disclose
was justified under the Privacy Act. Second, because the public
interest for non-disclosure in section 36.1 and in subparagraph
22(1)(b)(ii) is the same. The certificate and the procedures
contemplated in section 36.1 are therefore not applicable here.
The common law rule of secrecy regarding police informers'
identity has been codified in subparagraph 22(1)(b)(ii) of the
Privacy Act. It cannot apply herein because that exemption
should have been specifically, identified in the notice of refusal.
However, section 48 of the Act empowers the Court to order
disclosure subject to such conditions as it deems appropriate.
Disclosure is therefore ordered with such deletions as will
ensure that the identity of the informer(s) is not revealed.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ternette v. Solicitor General of Canada, [1984] 2 F.C.
486 (T.D.); Canada (Information Commissioner) v.
Canada (Minister of Employment and Immigration),
[ 1986] 3 F.C. 63; 5 F.T.R. 287 (T.D.).
CONSIDERED:
Bisaillon v. Keable, [1983] 2 S.C.R. 60; (1984), 51
N.R. 81.
COUNSEL:
N. A. Davidson, Q.C. for applicant.
H. J. Wruck for respondent.
SOLICITORS:
Davidson & Company, Vernon, B.C., for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application for review
brought pursuant to section 41 of the Privacy Act
[S.C. 1980-81-82-83, c. 111, Schedule II], initially
came on for hearing at Vancouver, British
Columbia, on November 19, 1985. Further argu-
ment was heard on January 22, 23 and 24, 1986,
and on October 30, 1986, I indicated from the
bench that the record sought would be ordered
released with conditions and that these written
reasons would follow.
The facts are not in dispute and are contained in
several affidavits sworn by the applicant and
Patrick E. J. Banning, Chief Superintendent and
Privacy Coordinator with the Royal Canadian
Mounted Police (hereinafter RCMP). During the
period June, 1979 to December 1981, the appli
cant was Mayor of the City of Vernon in the
Province of British Columbia. In the latter part of
that term, he became aware that the RCMP was
conducting an investigation into illegal and uneth
ical activities allegedly performed by him. He was
also informed on a confidential basis by a senior
officer of the RCMP that the allegations against
him were maliciously instigated, however, details
of the allegations and their sources were not
revealed. No formal charges were laid against the
applicant, but members of the media obtained
knowledge of the investigation and published
reports in the local newspaper.
The applicant initially sought access to nine
documents held by the RCMP pertaining to their
investigation under Part IV of the Canadian
Human Rights Act, S.C. 1976-77, c. 33. During
those proceedings, however, Bill C-43 received
royal assent, Schedule II of which constitutes the
Privacy Act, S.C. 1980-81-82-83, c. 111. The par
ties agreed to treat the request as an application
pursuant to subsection 12(1) of the Privacy Act for
access to any personal information about the appli
cant contained in operational case records of the
RCMP which are registered as RCMP-P20 under
the Privacy Act. By letter dated December 9,
1983, disclosure of those documents was denied as
follows:
The nine documents have been exempted from access under the
Privacy Act. Specifically, the information in question falls
under subsection 22(2) of the Act, which states:
There exists, in regard to subsection 22(2) of the Privacy Act
such an agreement between the Government of Canada and the
Province of British Columbia.
You are entitled to register a complaint with the Privacy
Commissioner regarding this denial of access. Notice of com
plaints should be addressed to ....
The applicant filed a complaint with the Privacy
Commissioner who conducted an investigation as
required by paragraph 29(1)(b) of the Act and
ruled that the applicant's complaint was not justi
fied. The applicant subsequently filed this section
41 application for review.
The matter initially came on for hearing on
November 19, 1985. At that time, counsel for the
respondent conceded that the respondent did not
have authority to refuse to disclose the documents
in issue under subsection 22(2):
22.... (2) The head of a government institution shall refuse
to disclose any personal information requested under subsection
12(1) that was obtained or prepared by the Royal Canadian
Mounted Police while performing policing services for a prov
ince or a municipality pursuant to an arrangement made under
section 20 of the Royal Canadian Mounted Police Act, where
the Government of Canada has, on the request of the province
or the municipality, agreed not to disclose such information.
The evidence filed on behalf of the respondent
indicates that the Government of Canada and the
Government of British Columbia entered into two
contracts dated September 25, 1981 and August
30, 1982, respectively, in which it was agreed that
the RCMP would provide policing services for the
Province of British Columbia and the Corporation
of the City of Vernon. By letter dated April 28,
1982 the Solicitor General of Canada agreed to a
request from the Attorney General for British
Columbia not to disclose under subsection 16(3) of
the Access to Information Act [S.C.
1980-81-82-83, c. 111, Schedule I] and subsection
22(2) of the Privacy Act, information collected or
obtained by the RCMP while providing policing
services pursuant to those agreements. The period
during which the investigation into the applicant's
conduct occurred and the information sought was
obtained, does not fall within the periods covered
by either of these contracts. A third contract was
in effect at that time and no agreement was made
by the Government of Canada not to disclose
information obtained while providing services
under that contract. Accordingly, I was satisfied
that the respondent could not rely on subsection
22(2) as authority for its refusal to disclose the
documents requested by the applicant. In view of
that finding, by order dated December 16, 1985, I
adjourned the hearing and ordered that:
4. The written memorandum of fact and law of the Respondent
and written reply of the Applicant shall address the following
issues:
a) Does the letter of refusal or the material filed herein
identify exemptions other than the exemption found in Section
22(2) of the Privacy Act?
b) In the event that (a) is answered in the negative, can the
Respondent rely upon exemptions not identified but relevant to
this matter?
c) In the event that either (a) or (b) is answered in the
affirmative, can the Respondent make out such exemptions?
d) Such further and other arguments of fact and law that are
relevant to the within application.
Written arguments were filed by the respondent
and the applicant on December 20, 1985 and
January 16, 1986, respectively. Oral argument was
heard on January 24, 1986.
Essentially, the issue in this case is whether the
respondent, having notified the applicant that the
information sought was exempt from disclosure
under subsection 22(2) of the Act, can, after the
commencement of an application for review under
section 41, invoke other exemptions specified in
the Act. Although counsel for the respondent
endeavoured to convince me otherwise, I am satis
fied that prior to November of 1985, the sole
reason given to the applicant for refusal to disclose
the documents was that they were exempt from
disclosure under subsection 22(2). This is in fact
admitted by Chief Superintendent Banning in his
affidavit sworn November 15, 1985 and filed
November 18th, paragraph 4 of which reads:
4. The notice of refusal sent to the Applicant on December 9,
1983 ... referred to only one ground of exemption, namely
subsection 22(2) of the Privacy Act.
He explains in paragraph 5 that:
5. Although the Notice of Refusal relied only upon subsection
22(2) of the Privacy Act, various other grounds of exemption
were also identified by myself in the course of processing the
request of the Applicant. Attached hereto as Exhibit "A" to
this my supplementary affidavit is a copy of the "Exemption
Application" form used for processing the request of the Appli
cant, dated by myself November 25, 1983, on which I indicated
all the grounds of exemption applicable to the request under the
Privacy Act.
It may well be that Chief Superintendent Banning
was aware that other grounds of exemption
applied to the information sought by the applicant
and that these specific sections of the Act were
identified on the form used by his department to
process the application, nevertheless, the sole
ground identified in the notice to the applicant was
subsection 22(2).
Sections 14 and 16 of the Act provide:
14. Where access to personal information is requested under
subsection 12(1), the head of the government institution to
which the request is made shall, subject to section 15, within
thirty days after the request is received,
(a) give written notice to the individual who made the
request as to whether or not access to the information or a
part thereof will be given; and
(b) if access is to be given, give the individual who made the
request access to the information or the part thereof.
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 reason
ably 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.
(3) Where the head of a government institution fails to give
access to any personal information requested under subsection
12(1) within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have
refused to give access.
Clearly, paragraph 16(1)(b) makes it mandatory
for the head of the government institution to state
in the notice under section 14, the specific provi
sion of the Act on which the refusal is based. The
effect of failure to comply with the requirement in
section 16 was considered by Strayer J. in Ternette
v. Solicitor General of Canada, [1984] 2 F.C. 486
(T.D.). At page 497, the learned Justice states:
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.
Counsel for the respondent argues that the purpose
of the notice under sections 14 and 16 is to ensure
that the applicant understands why disclosure of
the personal information has been refused. The
respondent has acted in good faith and it was only
an oversight that subsection 22(2) alone was relied
on in the notice to the applicant. He argues that by
affidavits filed on November 18, 1985, the day
before this application was initially heard and
subsequent affidavits filed on December 20, 1985,
the applicant has been advised that the respondent
is relying on subparagraphs 22(1)(a)(i),
22(1)(a)(ii), 22(1)(b)(ii), 22(1)(b)(iii), section 27
and paragraph 19(1)(c) for its refusal to disclose
the information:
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 insti
tution, or part of a government institution, that is an inves
tigative body specified in the regulations in the course of
lawful investigations pertaining to
(i) the detection, prevention or suppression of crime, or
(ii) the enforcement of any law of Canada or a province,
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
(ii) that would reveal the identity of a confidential source
of information, and
(iii) that was obtained or prepared in the course of an
investigation, or
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.
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 confi
dence from
(c) the government of a province or an institution thereof, or
The respondent argues that since, pursuant to my
order of December 16, 1985, the applicant had
until January 17, 1986 to file his written argu
ment, he has been given ample notice of the
grounds on which the respondent has refused dis
closure of the information and has, therefore, not
been prejudiced by the respondent's initial failure
to comply with the requirements of paragraph
16(1)(b).
The question of whether there has been preju
dice to the applicant is not the main issue here, it
is the effect of the respondent's failure to comply
with the requirements of paragraph 16(1)(b) of
the Act. In the absence of a provision in the Act
allowing for the amendment of the notice given
under section 14 or for the bringing of an applica
tion for leave to amend before this Court, I agree
with the statements of Strayer J. in the Ternette
case as far as it goes. The respondent is bound by
the grounds for refusal to disclose asserted by the
head of the government institution in his notice of
refusal. But neither the Ternette decision nor this
one should be taken to preclude the argument that
an essentially procedural default can prevail
against the interest of national security. It remains
an open question whether the failure on the part of
the head of a government institution to properly
identify the grounds for refusal of disclosure could
ultimately compel disclosure that is contrary to the
national interest.
In Canada (Information Commissioner) v.
Canada (Minister of Employment and Immigra
tion), [1986] 3 F.C. 63; 5 F.T.R. 287 (T.D.), I
stated [at pages 68-69 F.C.; 291-292 F.T.R.]:
Turning• then to the purpose of the legislation, it is perhaps
appropriate to return once again to the language I used in
Maislin Industries Limited v. Minister for Industry, Trade and
Commerce, [1984] 1 F.C. 939 [at pages 942 and 943]:
It should be emphasized however, that since the basic , princi-
ple of these statutes is to codify the right of public access to
Government information two things follows: first, that such
public access ought not be frustrated by the courts except
upon the clearest grounds so that doubt ought to be resolved
in favour of disclosure; second, the burden of persuasion
must rest upon the party resisting disclosure whether, as in
this case, it is the private corporation or citizen, or in other
circumstances, the Government. It is appropriate to quote
subsection 2(1):
2. (1) The purpose of this Act is to extend the present
laws of Canada to provide a right of access to information
in records under the control of a government institution in
accordance with the principles that government informa
tion should be available to the public, that necessary
exceptions to the right of access should be limited and
specific and that decisions on the disclosure of government
information should be reviewed independently of govern
ment.
That interpretation is reinforced on the specific language of
section 4:
4. (1) Subject to this Act, but notwithstanding any other
Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immi
gration Act, 1976,
has a right to and shall, on request, be given access to any
record under the control of a government institution.
To repeat, the purpose of the Access to Information Act is to
codify the right of access to information held by the govern
ment. It is not to codify the government's right of refusal.
Access should be the normal course. Exemptions should be
exceptional and must be confined to those specifically set out in
the statute.
That statement is equally applicable to the Privacy
Act, subsection 12(1) of which provides:
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; 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.
Accordingly, the respondent cannot rely on
exemptions not identified in the notice of refusal
issued under section 14.
In the alternative, counsel for the respondent
argues that a certificate filed on December 20,
1985 pursuant to subsection 36.1(1) of the Canada
Evidence Act, R.S.C. 1970, c. E-10, as added by
S.C. 1980-81-82-83, c. 111, s. 4 precludes the
disclosure of the information sought by the
applicant.
36.1 (1) A Minister of the Crown in right of Canada or
other person interested may object to the disclosure of informa
tion before a court, person or body with jurisdiction to compel
the production of information by certifying orally or in writing
to the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate, if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweighs in importance the specified public interest.
The specified public interest on which the respon
dent relies is set out in the certificate of Sergeant
Nyland as follows:
5. More particularly, the disclosure of the information would
identify or tend to identify the police informers referred to at
paragraph 2(b) herein.
6. The protection of the identity of informers is essential, as it
allows peace officers to promise their informers secrecy. In
exchange, peace officers receive information without which it
would be extremely difficult to carry out their duty and ensure
that the criminal law is obeyed.
7. Without this secrecy regarding police informers' identities,
the flow of information received by the police would be serious
ly compromised, resulting in the severely reduced effectiveness
of the police.
Counsel submits that the Privacy Act does not
preclude the application of section 36.1 of the
Canada Evidence Act particularly since there is no
provision in the Privacy Act that specifically pro
vides that notwithstanding section 36.1 the provi
sions of the Privacy Act are to apply.
Counsel did not, however, refer to section 45 of
the Privacy Act which provides:
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 subsections 70(1) applies, and no
information that the Court may examine under this section
may be withheld from the Court on any grounds.
Section 36.1 of the Canada Evidence Act specifi
cally refers to an "object[ion] to the disclosure of
information before a court". Notwithstanding that
provision or any other statutory provision or privi
lege under the law of evidence, section 45 of the
Privacy Act empowers this Court to examine any
information under the control of a government
institution with the limited exception specified
therein. Accordingly, a certificate filed pursuant to
section 36.1 cannot prevent this Court from exam
ining the record containing the information in
issue here.
Is the Court to examine the information for the
purpose of determining whether the public interest
in non-disclosure outweighs the public interest in
disclosure under subsection 36.1(2) of the Canada
Evidence Act or for the purpose of reviewing the
refusal to disclose under the Privacy Act? In my
opinion, the answer lies in section 45 of the Priva
cy Act, which provides the authority for this Court
to examine the information, "in the course of any
proceeding ... under section 41, 42 or 43". There
fore, the information here is to be examined for
the purpose of determining whether the head of
the government institution was authorized under
the Privacy Act, to refuse to disclose the informa
tion (section 48) or had reasonable grounds on
which to refuse to disclose it (section 49), depend
ing on the section relied upon for the refusal.
Indeed, the very public interest invoked in the
section 36.1 certificate here is the subject of a
specific ground for exemption from disclosure in
subparagraph 22(1)(b)(ii) of the Privacy Act:
22. (1) The head of a government institution may refuse to
disclose any personal information requested under subsection
12(1)
(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
(ii) that would reveal the identity of a confidential source
of information, and
The respondent's initial failure to invoke the
exemption in subparagraph 22(1)(b)(ii) cannot be
remedied by the filing of a certificate under sec
tion 36.1. The certificate and the procedures con-
templated in section 36.1 are therefore not appli
cable here.
Counsel for the respondent relies upon the
common law rule of secrecy which prohibits the
disclosure of information which would reveal the
identity of a police informant. The scope of this
rule was discussed by Beetz, J. in Bisaillon v.
Keable, [1983] 2 S.C.R. 60, at page 93; (1984), 51
N.R. 81, at page 121:
It follows from these reasons that at common law the secrecy
rule regarding police informers' identity has chiefly taken the
form of rules of evidence based on the public interest, which
prohibit judicial disclosure of police informers' identity by
peace officers who have learned the informers' identity in the
course of their duties. A witness also may not be compelled to
state whether he is himself a police informer. The rule was
developed in criminal proceedings, apparently in trials for high
treason, but it also applies in civil matters, and in both cases it
has been established for reasons which relate to the essential
effectiveness of the criminal law. The rule is subject to only one
exception, imposed by the need to demonstrate the innocence of
an accused person. There are no exceptions in proceedings
other than criminal. Its application does not depend on the
judge's discretion, as it is a legal rule of public order by which
the judge is bound.
Any alteration of this common law rule must be
done by way of statute in clear and explicit terms.
No such statutory provision has been enacted. On
the contrary, the rule seems to have been codified
in subparagraph 22(1)(b)(ii) of the Privacy Act
with the modification that the discretion to refuse
to disclose that type of information lies with the
head of the government institution. On an applica
tion for review under section 41, section 49
empowers the Court to determine whether the
head of the institution had reasonable grounds on
which to refuse to disclose the personal informa
tion. As I have already stated, however, that
exemption should have been specifically identified
by the respondent in the notice of refusal.
Clearly, any personal information which would
identify the police informer(s) here, is subject to
an exception from the general right of an individu
al to access to personal information about himself.
Had the respondent invoked subparagraph
22(1)(b)(ii) of the Act as his grounds for refusal in
the notice of refusal, the information in issue
would not be subject to an order for disclosure.
Prior to the enactment of the Privacy Act, the
identity of the informer(s) would have been pro-
tected by the common law rule of secrecy alone.
Essentially, the difficult question on the peculiar
facts of this case, is whether the informer(s)
should be placed in jeopardy due to an omission by
the respondent. In my opinion, the powers of this
Court as set out in sections 48 and 49 provide a
resolution.
The notice of refusal issued under section 16
specified subsection 22(1) as authority for the
respondent's refusal to disclose the personal infor
mation sought by the applicant. Therefore, on a
review under section 41, the Court's powers are set
out in section 48:
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.
I have determined, and in fact the respondent has
conceded, that he is not authorized by subsection
22(1) of the Act to refuse to disclose the informa
tion to the applicant. Therefore, the Court has
discretion to either order the information disclosed
in its original form, order it disclosed subject to
such conditions as the Court deems appropriate or
make such other order as the Court deems appro
priate. Given the peculiar facts in this case and the
respondent's omissions, it is appropriate to order
that the information be disclosed to the applicant
with such deletions as will ensure that the identity
of the informer(s) is not revealed.
The applicant is entitled to his costs.
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.