T-2162-87
Jamshid Zanganeh (Applicant)
v,
Canadian Security Intelligence Service (Respon-
dent)
INDEXED AS: ZANGANEH V. CANADA (CANADIAN SECURITY
INTELLIGENCE SERVICE)
Trial Division, Muldoon J.—Ottawa, April 13 and
April 21, 1988.
Security intelligence — CSIS refused to admit or deny
existence of information concerning applicant, as could be
detrimental to Canadian security under Privacy Act ss. 19,
21, 22 and 26 — Secrecy justified under Privacy Act and
Charter, s. 1 — Application to review dismissed.
Privacy — CSIS acted in conformity with Privacy Act in
refusing to acknowledge whether or not information existed in
personal information bank on persons suspected of espionage,
sabotage and violent overthrow of government.
Constitutional law — Charter of Rights — Limitation
clause — CSIS refusing access to information bank on persons
suspected of espionage, sabotage — Even refusing to disclose
whether having information on applicant to avoid compromis
ing Canadian security — Secrecy in intelligence matters essen
tial even in free and democratic society — Justified under
Charter s. 1.
The applicant sought review, under section 41 of the Privacy
Act, of a decision by the Canadian Security Intelligence Service
to refuse access to personal information held in personal infor
mation bank SIS/P-PU-010. CSIS did not indicate whether
personal information existed but stated that, if it did, it could
reasonably be expected to be exempted, in whole or in part,
under sections 19, 21, 22 and 26 of the Privacy Act.
Held, the application should be dismissed.
Personal Information bank SIS/P-PU-010 contains informa
tion on persons suspected of activities relating to espionage,
sabotage or the overthrow by violence of the Canadian system
of government as well as CSIS advice relating to the Citizen
ship Act and the Immigration Act, 1976. Utter secrecy in
intelligence matters, subject to certain checks, is essential even
in a free and democratic society. Ex parte representations and
an in camera hearing (provided under paragraph 46(1)(b) of
the Privacy Act to avoid disclosure of whether personal infor
mation exists where the head of a government institution has
not indicated whether it exists or not) are justifiable in this
context. The mere acknowledgment of the existence of any
information in the bank would compromise the security of
Canada by providing a chink in the armour of secrecy. When
CSIS acts in conformity with the Privacy Act and its own
statute, the secrecy surrounding the fact of whether it even has
information is justified under section 1 of the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2, 7, 15.
Canadian Security Intelligence Service Act, S.C. 1984,
c. 21.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 46.
Privacy Act, S.C. 1980-81-82-83, c. 111 (Schedule II), ss.
12(1), 16, 19, 21, 22, 26, 29(1)(b),(h)(i),(iii), 41, 45,
46(1), 51, 52(2).
COUNSEL:
Jamshid Zanganeh, applicant, on his own
behalf.
Barbara A. Mcisaac for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant invokes the provi
sions of the Privacy Act, S.C. 1980-81-82-83, c.
111 (Schedule II) in seeking the information, if
any, which he believes to be "banked" by the
respondent. The applicant's notice of motion runs
as follows:
TAKE NOTICE that an application will be made to this Honour
able Court ... for the review by this Honourable Court,
pursuant to Section 41 of the said Act, of a decision to refuse
access to personal information held in Canadian Security Intel
ligence Service bank SIS/P-PU-010, which decision was investi
gated by the Privacy Commissioner, whose conclusions were
reported to the Applicant by letter dated September 18, 1987.
The application is to be dismissed for the reasons
expressed herein.
The critical path and statutory sequence which
lead to these proceedings are as follows:
(1) The applicant, having been interviewed some
time ago by members of the former Security Ser
vice of the RCMP came to believe that the
respondent must have some information about him
in its data banks. According to his affidavit, on
June 24, 1987, the applicant filed a Personal Infor
mation Request Form [TBC 350-58 (Rev. 83/10)]
addressed to the respondent (sometimes herein:
CSIS) and seeking "All information re my secu
rity file". A copy of that completed form is exhibit
" A „
(2) The foregoing is the request provided for in
subsection 12(1) of the Privacy Act (the Act),
which states:
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, /976 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.
(3) The applicant received from the Director Gen
eral of Information Management at CSIS a
response by letter dated July 17, 1987, a copy
whereof is exhibit "B". That official reported that
three information banks had been searched for the
applicant, with the noted results, as follows:
SIS/P-PU-005—Security Assessments—This bank was searched
and we found no personal information relating
to you.
SIS/P-PU-010—Canadian Security Intelligence Service Record-
s—Access to this bank cannot be granted
because any personal information, if it existed
in this bank, could reasonably be expected to be
exempted, in whole or in part, pursuant to
sections 19, 21, 22 and 26 of the Privacy Act.
(Copies of those sections and of section 15 of
the Access to Information Act are attached for
your information.)
SIS/P-PU-0l5—Canadian Security Intelligence Service
Records—This bank consists of older, less sen
sitive information which, if it contained person
al information about you, may be disclosed to
you. A search of this bank located the attached
personal information about you. Some of the
documents have been partially exempted by
virtue of sections 21 and 26 of the Privacy Act.
The said letter continued:
If you are dissatisfied with the manner in which your requests
have been processed, the Privacy Act provides that you may
register a complaint with the Privacy Commissioner. [Address
here given.]
At this hearing of his application, the applicant
acknowledged the negative result from bank 005.
He said that what he received in regard to bank
015 were "some application forms regarding resi
dency which I filed years ago . .. nothing new".
The applicant was dissatisfied and, as permitted no
doubt pursuant to paragraph 29(1)(b) and sub-
paragraphs (h)(i) and (iii), he applied to the
Privacy Commissioner. The applicant's letter to
that official is copied as exhibit "C" to his
affidavit.
(4) The pertinent passage of exhibit "C", the
applicant's letter of July 27, 1987 to the Privacy
Commissioner, is:
As some possible misunderstandings could have been created,
causing problem [sic], may I please ask you to proceed accord
ing to the law, to let me have access to the information under
bank SIS/P-PU-010. This would help to remove the problem
and the possible misunderstandings.
(5) On September 18, 1987, the Privacy Commis
sioner wrote a letter (exhibit "D") to the appli
cant, reporting as follows:
[A]n investigator from my office has conducted inquiries on
your behalf with the Canadian Security Intelligence Service
(CSIS) concerning your complaint that you were denied access
to personal information requested under the Privacy Act. These
inquiries have now been completed.
Our inquiries have confirmed that in a letter dated July 17,
1987, CSIS wrote to you and stated that it could not give you
access to information bank SIS/P-PU-010—Canadian Security
Intelligence Service Records because any information about
you in that bank, if it existed, could reasonably be expected to
be exempted, in whole or in part, by virtue of sections 19, 21,
22 and 26 of the Privacy Act. I must inform you that such a
response is in conformity with section 16 of the Act, which
states that the head of a government institution is not required
to indicate whether personal information exists, but must give
notice of the provision of the Act on which a refusal of access
could reasonably be expected to be based if the information
existed.
I realize that this response is frustrating. However Parlia
ment has decided that it is in the public interest that some types
of information not be released and the existence of some
information be neither confirmed nor denied. I am satisfied
that in your case CSIS responded in accordance with the
provisions of the Privacy Act, and that your complaint of a
denial of access is not well-founded. Should you wish to pursue
this matter further, you have the right to request a review of
CSIS' response by the Federal Court of Canada within 45 days
after you receive this letter.
If you should encounter any further difficulties which relate
to the Privacy Act, I hope that you will not hesitate to write to
my office again.
(6) The pertinent passages of the statutory provi
sions cited by CSIS and by the Privacy Commis
sioner are these:
16. (I) 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 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 (I) whether personal
information exists.
19. (I) 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
(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 a 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.
20. 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 by the Government of Canada of
federal-provincial affairs.
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 sup
pressing 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 Informa
tion Act.
22. [Section 22 is not unimportant, but is just too long to
recite here.]
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.
(7) The applicant was not satisfied with the report
of the Privacy Commissioner and accordingly
invoked section 41 of the Act:
41. Any individual who has been refused access to personal
information requested under subsection 12(I) 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.
Section 44 directs that an application such as this
"shall be heard and determined in a summary
way." Section 46 directs the Court to "take every
reasonable precaution, including, when appropri
ate, receiving representations ex parte and con
ducting hearings in camera to avoid the disclo
sure" of material which ought not to be disclosed.
(8) The burden of establishing that the head of a
government institution is authorized to refuse to
disclose information requested under subsection
12(1) "shall be on the government institution con
cerned," according to section 47.
(9) Finally the manner of conducting a hearing in
these circumstances is set out in section 51 of the
Act, thus:
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.
The above delineated critical path of documents,
exhibits and statutory provisions led to the hearing
of this application in Ottawa on Wednesday, April
13, 1988, a special date fixed by the Associate
Chief Justice. Pursuant to paragraph 51(2)(a) of
the Privacy Act, the Court directed that the pro
ceedings be, and they were, heard in camera, the
only persons being present before the Court were
the applicant, the respondent's counsel, an
instructing representative of the respondent who
was also the deponent of one of the affidavits filed
on behalf of the respondent, the Court's registrar
and the usher who ensured that proceedings were
indeed in camera.
At the beginning of the hearing, counsel for the
respondent moved for a protection order whose
effect would be to keep out of the public domain
any and all documents to be produced by the
respondent in the ex parte portion of these pro-
ceedings. The applicant had already received a
copy of that notice of motion, appreciated its
importance and did not object to the making of
such a protection order. The grounds asserted by
the respondent are, among others, subsections
46(1), 51(2) and (3) of the Act. Accordingly the
protection order was granted and a form of order
was signed forthwith, and is in effect.
Because of the onus imposed on the respondent
by section 47 of the Act, the respondent's counsel
commenced, with the aim of discharging that
burden, at least in a prima facie way. She read,
and made submissions of fact and law, from the
text of the filed affidavit of a CSIS member of
some 30 years experience in policing and security
work. He attended professional courses and has
attained the rank of Director General. That affida
vit, which is in general terms evincing the depo-
nent's accepted expertise in this realm, is not
subject to the protective order. The applicant did
not take the opportunity to cross-examine the
deponent, although advised of that right in time to
have exercised it. The applicant gives as his reason
for declining to cross-examine the deponent that
he could not afford to do so and that CSIS
declined to bear the expense entailed therein.
The pertinent passages of this affidavit are
these:
5. The Canadian Parliament has given a legislative mandate to
CSIS which requires it to collect, by investigation or otherwise,
to the extent that it is strictly necessary, and analyse and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada as defined in s. 2 of the Canadian Security
Intelligence Service Act, S.C. 1984, c. 21, and to report to and
advise the Government in relations thereto.
6. In order to satisfy this legislative mandate, it is essential that
CSIS collect and retain such information. It is also essential
that it have reliable information about groups and individuals
who are engaged in activities, or who are in contact with groups
and individuals who are engaged in activities which constitute a
threat to the security of Canada.
7. In accordance with section 10 of the Privacy Act, the
Solicitor General of Canada has caused to be established
personal information banks SIS/P-PU-010; SIS/P-PU-015, and
SIS/P-PU-005, being personal information banks under the
control of the Canadian Security Intelligence Service.
8. Personal information bank SIS/P-PU-0I0 is described in the
1986 Personal Information Index published in accordance with
section 11 of the Privacy Act as follows:
"This bank contains information on individuals whose activi
ties may, on reasonable grounds, be suspected of directly
relating to espionage or sabotage that is against or is detri
mental to the interests of Canada; or, activities directed
toward or in support of such activity; foreign influenced
activities within or relating to Canada that are detrimental to
the interests of Canada, and are clandestine or deceptive, or
involve a threat to any person; activities within or relating to
Canada directed toward or in support of the threat or use of
acts of serious violence against persons or property for the
purpose of achieving a political objective within Canada or a
foreign state; and, activities directed toward undermining by
covert unlawful acts, or directed toward or intended ulti
mately to lead to the destruction or overthrow by violence of
the constitutionally established system of government in
Canada. This bank may also contain personal information
that, in relation to the defence of Canada or to the conduct of
the international affairs of Canada, pertains to the capabili
ties, intentions, or activities of any foreign state or group of
foreign states; of any person other than a Canadian citizen or
permanent resident; or, any corporation except one incorpo
rated pursuant to the laws of Canada or of any province.
Information is also held in respect to CSIS providing advice
relating to the Citizenship or Immigration Acts."
[Paragraphs 9 and 10 describe, also at length, information
banks SIS/P-PU-015 and SIS/P-PU-005 in their detailed
respective terms.]
13. ... [T]he Applicant was also advised that his request for
access to Canadian Security Intelligence Service Records Bank
SIS/P-PU-0I0 could not be complied with. This letter also
declined to indicate whether any personal information about
him was contained in that bank, pursuant to section 16 of the
Privacy Act. If such information exists, it would be exempted,
in whole or in part, under sections 19, 21, 22 and 26 of the
Privacy Act. I understand that it is this refusal which the
Applicant is seeking to have reviewed.
14. Based on my experience in intelligence work, I am of the
opinion and do verily believe that the disclosure of whether or
not such personal information exists could reasonably be
expected to be injurious to the efforts of Canada towards
detecting, preventing or suppressing subversive or hostile activi
ties, for the reasons hereinafter set out.
15. Information retained by CSIS in this information bank is
information which has come from various sources including
informants, investigations, the governments of foreign states
and their security agencies. It relates to targets considered by
CSIS to be current threats to the security of Canada. This
information is given and retained with the condition that it be
protected from disclosure. The relationship which develops
between CSIS and other informants or agencies would be
destroyed if they lose confidence in the ability of CSIS to
protect their information. In addition, the confidence and use of
informants would be damaged if information they provided was
disclosed.
16. It is absolutely essential that a security service be in a
position to conduct its investigations in secret. It cannot operate
effectively if the targets of its investigation are able to ascertain
what is already known about them, the methods of operations
being used against them, the extent of coverage they are being
afforded and the sources that are reporting on their activities.
17. If targets of investigation had such knowledge, they would
be able to take specific precautions and counter measures
against future surveillance, and they would be in a position to
introduce false or misleading information into the investigative
process. As a result, the scope and reliability of information
available would be severely affected.
18. While targets of investigation may suspect that CSIS has
them under investigation, they cannot take effective counter
measures if they do not know that an investigation is being
conducted, how much is known about them, or what conclu
sions have been drawn.
19. Similarly, even though an individual may actually know
that he has been a target, or that he has given information to
CSIS, he does not know whether information has been retained
by CSIS or is of interest to it.
20. The disclosure of advice as to the existence or non existence
of information could negate not only years of intensive and
costly investigation, but could expose and jeopardize delicate
human and technical sources and related investigations, and
jeopardize relations with foreign intelligence agencies. On the
other hand, to be told that no personal information is held
would reassure that individual that his activities, if any, have
not been exposed.
21. Disclosure of whether a record exists on a particular
individual or group can cause injury by confirming the fact that
the individual or group was or is a target of investigation.
Unless CSIS consistently refused to confirm whether or not
information exists, it would be a simple exercise through a
series of Privacy Act requests, to determine whether or not
information exists by looking for a pattern to the responses.
22. The disclosure of this information through a series of
Privacy Act requests is a concern in relation to CSIS's mandate
to investigate threats to the security of Canada, particularly
when a group is being investigated.
23. More simplistically, if one were to make a series of requests
for information about real and fictitious people, or people
whom one knows for a fact would not have been under surveil
lance, a pattern might very well soon emerge whereby a refusal
to confirm the existence of information would automatically
mean that there is information contained in the personal infor
mation bank.
24. If CSIS were to confirm the existence or non existence of
personal information concerning a particular person, this would
assist others who may be associated with that person. Such
persons could, individually and collectively, accumulate similar
knowledge about other persons and use that knowledge to piece
together a broader picture of the degree of surveillance afford
ed for a particular target. In the intelligence community, this is
known as the "Mosaic Effect".
25. For the reasons which I have outlined above, I believe that
the release of a statement which indicates the existence or non
existence of personal information would be injurious to the
efforts of Canada toward detecting, preventing or suppressing
subversive or hostile activities by impairing CSIS's investigative
abilities.
26. I give this affidavit in respect to an application by Jamshid
Zanganeh under the provisions of The Privacy Act and for no
improper purpose.
The applicant has exhibited copies of three cer
tificates of copyright registration, numbers 319424
dated October 7, 1982, 345903 dated September 3,
1985 and 358837 dated March 16, 1987, regarding
certain of his literary works of an apparently
intellectual and philosophical nature. He described
them more fully at the in camera portion of the
hearing. They are so registered, as the applicant
contends, and are not secret. Some of his writings
are in English and some in his native language.
The applicant also contends that since he has been
in Canada his political activities have always been
peaceful and he has never advocated violence nor
any illegality to resolve political issues, either here
or abroad. In any event he avers that he honours
Canada and its system of government. The appli
cant said more, but in order to respect and protect
him and his interests he, like the respondent, ought
to have the benefit of the extraordinary nature of
these proceedings.
Concerning the supplementary affidavit, or
affidavits, if any, which the Court will perhaps
permit to be presented during the ex parte portion
of these proceedings, the applicant rightly asserts
that he has no right to see that evidence, if any,
and therefore cannot discuss or challenge that of
which he is kept in ignorance and that such pro
ceedings represent an advantage for the respon
dent but a disadvantage for the applicant. From
that viewpoint, these proceedings can be character
ized as unfair in terms of paragraph 2(e) of the
Canadian Bill of Rights, R.S.C. 1970, Appendix
III, that is, if these proceedings can be considered
to be "for the determination of his rights and
obligations".
Further among the matters which the applicant
asks the Court to take into consideration in regard
to his position herein, are the provisions of sections
2, 7 and 15 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)].
The first step in considering the applicant's con
tentions is to examine the nature and purpose of
these proceedings. Section 41 of the Privacy Act
permits the applicant to "apply to the Court for a
review of the matter" which is to "be heard and
determined in a summary way" subject to any
special rules of the Court pursuant to section 46 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10. The extent of access granted to the Court
under section 45 of "examine any information ...
under the control of a government institution,
other than a confidence of the Queen's Privy
Council for Canada ... " "[n]otwithstanding any
other Act of Parliament or any privilege under the
law of evidence" is vast; "and no information that
the Court may examine under this section may be
withheld from the Court on any grounds". The ex
parte representations and in camera hearing are
provided where (as here) the Court is proceeding
under section 41, by subsection 46(1) "to avoid the
disclosure" of
46. (1) ...
(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. [Emphasis not in original text.]
Be it remembered that in exhibit "B" to the
applicant's affidavit, the letter sent on behalf of
the head of CSIS, indicated that access to bank
SIS/P-PU-010 could "not be granted because any
personal information, if it existed in this bank",
could be exempted from disclosure. Here Parlia
ment exacts compliance with paragraph 46(1)(b)
above recited.
In light of six years of rhetoric and jurispru
dence about the Charter, some Canadians may
shudder to realize that the security needs of a free
and democratic society are, in a few basic essen
tials, much the same as those which totalitarian
societies arrogate unto themselves. Utter secrecy,
subject to certain checks, in security intelligence
matters is one. That necessary degree of secrecy is
so much more fissiparous in freedom and democra
cy than it is under the stifling oppression of a
totalitarian régime, and it is therefore objectively
justifiable in terms of paragraph 46(1)(b) of the
Privacy Act. What no doubt distinguishes this free
and democratic society from those which are less
or not at all so, are the right to apply for, and
obtain the results of, the Privacy Commissioner's
investigation, and the right to apply to this Court
for a review.
As is explained lucidly in the earlier recited
paragraphs 14 to 24 of the affidavit filed here in
support of the respondent's posture, the very
acknowledgment of the existence of any informa
tion in the bank, whether or not such information
exists, can—and certainly would—compromise the
security of Canada by providing a referential
insight, a chink in the armour of secrecy which the
Canadian service must maintain no less than those
of the U.K., the U.S.A., the U.S.S.R., France,
India, Israel and Iran to name a randomly mixed
bag of societies. In effect, it is quite clear that the
reciprocal criteria of trust and mistrust in vogue
abroad, must be accommodated and observed by
CSIS and the Court within Canada, without
exception for allegedly minor matters.
The Court, having received and reviewed the
respondent's ex parte representations, finds that
the respondent has conducted itself vis-Ã -vis the
applicant in a scrupulously lawful manner. Were it
not so, the Court would exact an appropriate
remedy for the applicant pursuant to the general
law or the Charter whichever might be applicable.
When, however, as here, the respondent's conduct
is lawfully in conformity with the Privacy Act and
with its own statute, the tight secrecy of its infor
mation, if any, including the secrecy of whether it
even has any information is justified not only
under that ordinary legislation but, more impor
tantly, justified under section 1 of the Charter.
This is an important and apparently newly
articulated principle in relation to the interpreta
tion of the Privacy Act. That being so, the
respondent shall pay to the applicant, pursuant to
subsection 52(2) of the Act, all of the applicant's
disbursements and expenses of and incidental to
this application, after the applicant has submitted
them to be taxed. This is commanded by subsec
tion 52(2) of the Act. Disbursements and expenses
only are awarded because the applicant was not
represented herein by any solicitor or counsel and,
of course, cannot be awarded lawyers' fees for
himself.
In his oral presentation, the applicant asserted
that CSIS should not be free to gather and retain
information about someone, himself, and hide
behind statutes. Of course, if the respondent had
no paragraph 46(1)(b) of the Privacy Act to
invoke, the other provisions of that Act could
operate so as to compromise its activities and the
respondent would at once become a pariah among
other such agencies in the world, including the
world of other free and democratic societies. The
demonstrably justifiable imperative of paragraph
46(1)(b) is that the respondent is simply not
obliged to reveal whether or not it has any person
al information about the applicant. In this regard,
the applicant most assuredly cannot complain that
he is singularized in any pejorative or other
manner whatsoever. He is as free as anyone else to
live his life in this free and democratic society,
without any official importunity. That freedom is
most assuredly not sacrificed to the respondent's
invocation of paragraph 46(1)(b).
It may be difficult to describe correctly the
disposition of the applicant's motion. Whether he
still may have access to a review by the Security
Intelligence Review Committee established under
the Canadian Security Intelligence Service Act,
S.C. 1984, c. 21, is not a matter to be decided
here, but he certainly has succeeded in precipitat
ing and personally participating in the curial
review provided under section 41 of the Privacy
Act. This is literally exactly what he sought in his
notice of motion filed. However, in paragraph 6 of
his supporting affidavit, the applicant asks the
Court "to review my complaint regarding a refusal
by Canadian Security Intelligence Service to allow
access to certain records requested on June 24,
1987." [Emphasis not in applicant's text.] Because
the Court concludes, according to the will of Par
liament, and in accord with the Charter, not only
that the applicant will not be permitted access to
any such records, but also that the applicant will
not be permitted to know whether there even be
such records, it appears that the application is to
be dismissed. So, it is dismissed, with costs in the
applicant's favour pursuant, as above related, to
subsection 52(2) of the Privacy Act.
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.