T-1051-87
T-1169-87
T-1355-87
Information Commissioner (Applicant)
v.
Immigration Appeal Board (Respondent)
T-931-87
Stephen Bindman (Applicant)
v.
Immigration Appeal Board (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADA (IMMIGRATION APPEAL BOARD)
Trial Division, Pinard J.—Ottawa, March 30 and
April 8, 1988.
Access to information — Application for review of Immi
gration Appeal Board refusal to disclose records concerning
redetermination of Convention refugee status — Hearing held
in camera — S. 4 Access to Information Act supersedes in
camera order of Immigration Appeal Board — Records sub
ject to Access to Information Act.
Immigration — Refugee status — Redetermination —
Immigration Appeal Board allowing motion for in camera
hearing — Whether in camera order overcome by request
under Access to Information Act — Board is "government
institution" within Act — Records subject to disclosure.
These are applications under Access to Information Act,
section 42, to review the Immigration Appeal Board's refusal to
disclose records relating to a decision to grant Convention
refugee status. The refusal was based on section 17 of the Act,
which provides an exception where release could threaten an
individual's safety, and on the ground that the Board was
bound by its order that the redetermination hearing be held in
camera. The Information Commissioner advised that the sec
tion 17 exemption had not been justified and that the provisions
of the Act requiring disclosure supersede the order of the
Immigration Appeal Board.
Held, the records are subject to examination under the Act.
The Immigration Appeal Board is a "government institu
tion", as defined in section 3 and Schedule I of the Act and is,
therefore, governed by its provisions. Subsection 4(1) provides
that the right of access exists notwithstanding any other Act of
Parliament. The provisions which, it is argued, provide for in
camera hearings are not specifically exempted in Schedule II,
nor excepted elsewhere in the statute. Parliament intended the
Access to Information Act to prevail over other Acts unless a
clear and unequivocal exception is stipulated in the Act itself.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 2, 3, 4(1), 17, 24, 37, 40(3),
41(1)(a),(c)•
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 65, 82.
Immigration Appeal Board Rules (Convention
Refugees), 1981, SOR/81-420, R. 4.
CASES JUDICIALLY CONSIDERED
APPLIED:
Information Commissioner (Canada) v. Canada (Minis-
ter of Employment and Immigration), [1986] 3 F.C. 63
(T.D.).
CONSIDERED:
Shaw v. R. in Right of British Columbia (1985), 61
B.C.L.R. 68 (C.A.); Ex Parte Sasges (1974), 56 D.L.R.
(3d) 309 (B.C.S.C.).
REFERRED To:
Re Chalifoux and Dmytrash (1974), 47 D.L.R. (3d) 51
(Alta. C.A.); Re Thompson and Lambton County Board
of Education (1972), 30 D.L.R. (3d) 32 (Ont. H.C.); R.
v. Drybones, [1970] S.C.R. 282.
COUNSEL:
Michael L. Phelan, Pat J. Wilson and Paul B.
Tetro for Information Commissioner.
Barbara A. Mcisaac for respondent.
Richard G. Dearden for Stephen Bindman.
Robert E. Houston, Q.C. for Dewey Go Dee.
SOLICITORS:
Osler, Hoskin & Harcourt, Ottawa, for Infor
mation Commissioner.
Deputy Attorney General of Canada, Ottawa,
for respondent.
Gowling & Henderson, Ottawa, for Stephen
Bindman.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for Dewey Go Dee.
The following are the reasons for judgment
rendered in English by
PINARD J.: These are applications by the Infor
mation Commissioner of Canada (Court files
T-1051-87, T-1169-87, T-1355-87) pursuant to
paragraph 42(1)(a) of the Access to Information
Act, S.C. 1980-81-82-83, c. 111, Schedule I, and
by Stephen Bindman (Court file T-931-87), pursu
ant to section 41 of the Access to Information Act,
for a review of the decision of the Immigration
Appeal Board to refuse to disclose records relating
to its decision to grant Convention refugee status
to Dewey Go Dee.
The access to information requests for the
records which are the subject of these applications
were made in 1986 by Alan Merridew, Brian M.
Power, John Honderich and Stephen Bindman.
The records requested by Messrs. Merridew,
Power, Honderich and Bindman under the Access
to Information Act were not otherwise available to
them as a public record of the Board because the
Immigration Appeal Board had, on June 17, 1985,
ordered that Mr. Dee's application for a redeter-
mination of his status as a Convention refugee be
heard in camera and that the record in his applica
tion be sealed.
By letters dated February 21, 1986, April 2,
1986, May 23, 1986 and October 2, 1986, the
Immigration Appeal Board rejected the requests,
relying on section 17 of the Access to Information
Act. That provision reads:
17. The head of a government institution may refuse to
disclose any record requested under this Act that contains
information the disclosure of which could reasonably be expect
ed to threaten the safety of individuals.
The requestors complained to the Information
Commissioner, who investigated their complaints.
By letter dated July 4, 1986, to M. Falardeau-
Ramsey reporting the results of her investigation,
the Information Commissioner advised the
respondent of her finding that there was not identi
fied sufficient justification to support the total
exemption of the records on the basis claimed by
the Immigration Appeal Board, that of section 17
of the Access to Information Act. Pursuant to
section 37 of the Act, the Information Commis-
sioner recommended to the respondent that the
records be released subject to the Act.
By letter dated July 14, 1986, from M. J. Denis.
Executive Director of the Immigration Appeal
Board, to the Information Commissioner, the
Immigration Appeal Board refused to disclose the
records, on grounds that the Board was bound by
an order of a quorum of the Board on June 17.
1985, allowing a motion for an in camera hearing
in the Dewey Go Dee application. In her letter, the
Executive Director of the Board wrote, in part, as
follows:
I find myself in a rather difficult situation. Section 65 of the
Immigration Act, 1976, reads in part, as follows:
65(1) The Board is a court of record and shall have an official
seal, which shall be judicially noticed.
(2) The Board has, as regards the attendance, swearing and
examination of witnesses, the production and inspection of
documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record and, without limiting the generality of the
foregoing may, ...
Section 82 reads:
An appeal to the Board shall be heard in public but if any party
thereto so requests the Board may in its discretion direct that
the appeal be heard in camera.
On June 17, 1985, a quorum of the Board designated to hear
the Dee case, delivered a decision from the Bench allowing a
motion for an in camera hearing. An order of the Board was
issued to that effect. (Generally the record is public informa
tion. An in camera hearing is very rarely ordered.)
I find no authority to vary that decision.
Even though section 82 of the Immigration Act,
1976 [S.C. 1976-77, c. 52] is referred to in that
letter, it was recognized by the Immigration
Appeal Board itself, in its reasons for the decision
granting the hearing in camera, that section 82
does not apply in the case of an application for
redetermination of Convention refugee status;
however, the Board found that both the provisions
of section 65 of the Immigration Act, 1976 and
Rule 4 of the Immigration Appeal Board Rules
(Convention Refugees), 1981 [SOR/81 - 420] are
wide enough to cover such a situation.
The Assistant Information Commissioner
reported the results of the investigation to the
requestors by letter dated March 31, 1987, advis
ing them of the last refusal of the Immigration
Appeal Board to disclose the records, and stating
the view of the Information Commissioner that the
provisions of the Access to Information Act requir
ing disclosure of the records superseded the order
of the Immigration Appeal Board.
The Assistant Information Commissioner
advised the requestors that they could file applica
tion for a review of the refusal by the Federal
Court either on their own under section 41 of the
Act or through the Information Commissioner
under section 42. One requestor, Stephen Bind-
man, chose the former alternative, the rest signed
consents to allow the Commissioner to act on their
behalf. The applications were filed in April, May
and June 1987.
The Information Commissioner appears as a
party intervenant in the application by Stephen
Bindman (Court File T-931-87), pursuant to an
order of the Associate Chief Justice dated Septem-
ber 4, 1987, under paragraph 42(1)(c) of the
Access to Information Act. On September 15,
1987, Mr. Justice Rouleau signed an order joining
the four applications, allowing the subject of the
Board hearing, Mr. Dewey Go Dee, to intervene,
and declaring that the following preliminary ques
tion of law should be determined:
Does the Access to Information Act apply to the Immigration
Appeal Board records which are the subject of these four
proceedings?; in the alternative, Are the Immigration Appeal
Board records properly subject to an examination under the
Access to Information Act?
This is the question that came before me in
Ottawa, on March 30, 1988, and which was debat
ed by learned counsel for the parties. The real
issue in other words is whether an in camera order
by the Immigration Appeal Board can be over
come by a request under the Access to Informa
tion Act.
In my view, the answer is found in the plain
words of a well-structured statute.
Indeed, the purpose of the Access to Informa
tion Act is set out in section 2 and states as
follows:
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 information 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 government.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and is
not intended to limit in any way access to the type of govern
ment information that is normally available to the general
public.
Section 3 of the Act defines "government insti
tution" as "any department or ministry of state of
the Government of Canada listed in Schedule I or
any body or office listed in Schedule I". Thus, in
addition to the Departments and ministries of state
of the Federal Government, Schedule I lists a large
number of the federal administrative boards, tri
bunals and review agencies. The Immigration
Appeal Board is listed in Schedule I and is there
fore a "government institution" within the mean
ing of the Act.
Section 4 of the Act creates a right of access to
information which is specified to prevail over any
other Act of Parliament. Subsection 4(1) states as
follows:
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. [Emphasis
added.]
At this stage, assuming that section 65 of the
Immigration Act, 1976 and Rule 4 of the Immi
gration Appeal Board Rules (Convention
Refugees), 1981, authorize the Board to conduct in
camera hearings, which is firmly disputed by coun
sel for the applicant Stephen Bindman, it is clear
to me that the above provisions of the Access to
Information Act make the records which are the
subject of these four proceedings prima facie sub
ject to disclosure.
The "notwithstanding" provision in section 4 of
the Access to Information Act clearly overrides
any provision of the Immigration Act, 1976 which
might restrict disclosure of Immigration Appeal
Board records as a result of decisions by the Board
to hold in camera hearings or to seal its files.
In Shaw v. R. in Right of British Columbia
(1985), 61 B.C.L.R. 68 (C.A.), Anderson J.A. of
the British Columbia Court of Appeal stated, at
pages 70 and 71:
He submits further that by reason of the provisions of the
collective agreement the Crown has "contracted out" of s. 9 of
the Correction Act and the regulations, and that the Human
Rights Code, as a matter of contract, must prevail.
In my opinion, this appeal cannot succeed. The legislature by
clear and unequivocal language expressly declared in s. 9 of the
Correction Act that "Notwithstanding the Public Service Act
or any other Act ..." the Lieutenant Governor in Council could
prescribe the compulsory retirement age for certain employees.
The legislature, when it enacted the Human Rights Code, could
not be said by implication to have repealed the clear and
unequivocal "non obstante" clause.
In Ex Parte Sasges (1974), 56 D.L.R. (3d) 309
(B.C.S.C.) Craig J. of the British Columbia
Supreme Court had also expressed the following
view, at page 313:
While it is a fundamental principle that the Court should
attempt to interpret apparently conflicting legislation in a
manner which permits effect to be given to both pieces of
legislation, the Court cannot give an interpretation which does
violence to what appears to be the plain meaning of the words
of the paramount legislation. I regard the amending s. 57 as
paramount legislation because it specifically says that it shall
govern notwithstanding the provisions of any other act, except
the Small Claims Act.
(See also Re Chalifoux and Dmytrash (1974),
47 D.L.R. (3d) 51 (Alta. C.A.); Re Thompson and
Lambton County Board of Education (1972), 30
D.L.R. (3d) 32 (Ont. H.C.); and R. v. Drybones
[1970] S.C.R. 282).
In specific cases, provisions of other statutes
prohibiting the disclosure of information have been
effectively incorporated by reference into the
Access to Information Act through subsection
24(1) which reads as follows:
24. (1) The head of a government institution shall refuse to
disclose any record requested under this Act that contains
information the disclosure of which is restricted by or pursuant
to any provision set out in Schedule II.
Schedule II contains many such provisions, of
which only one refers to the Immigration Act,
1976, namely subsection 40(3) which is no longer
in force and did not refer to the Immigration
Appeal Board. There is no reference in Schedule II
to either section 65 of the Immigration Act, 1976,
or to Rule 4 of the Immigration Appeal Board
Rules (Convention Refugees), 1981.
I agree with the applicants' submission that
Parliament intended that the invocation of provi
sions in other statutes to prevent disclosure under
the Access to Information Act be made as restric
tive as possible by requiring that Parliament itself
mandate resort to such provisions through section
24. Subsection 24(2) confirms this restrictive
approach:
24....
(2) Such committee as may be designated or established
under section 75 shall review every provision set out in
Schedule II and shall, within three years after the coming into
force of this Act or, if Parliament is not then sitting, on any of
the first fifteen days next thereafter that Parliament is sitting,
cause a report to be laid before Parliament on whether and to
what extent the provisions are necessary.
Indeed, as stated by Jerome A.C.J., in Informa
tion Commissioner (Canada) v. Canada (Minister
of Employment and Immigration), [1986] 3
F.C. 63 (T.D.), at page 69:
... the purpose of the Access to Information Act is to codify
the right of access to information held by the Government. 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.
Therefore, the records which are the subject of
these four proceedings are indeed subject to disclo
sure under the Access to Information Act unless
the provisions of that Act either apply to exempt
the information from disclosure (sections 13 to 23,
and 26) or specify that the Act does not apply to
the information (sections 68 and 69).
The applicability in this case of the exemptive
provisions contained in sections 13 to 23 and 26 of
the Act is not at issue at this stage of the proceed
ings. Sections 68 and 69, which set out situations
when the Act will not apply to certain materials,
also do not apply here.
Consequently, I fully agree with the opinion as
expressed by the Assistant Information Commis
sioner of Canada in his letter dated March 31,
1987, reporting the results of the investigation to
the requestors, and I do make mine his following
words:
In my opinion, based on the foregoing, the issue of paramount-
cy between the two statutes is resolved simply by their wording
in favour of disclosure pursuant to the Access to Information
Act. I am reinforced in this view by noting that the Access to
Information Act was passed at a later date than the Immigra
tion Act, 1976 and I also note that the in camera hearing order
itself was made in June 1985, two years after the Access to
Information Act came into force.
It is my view that the plain words of a well-
structured statute which sets out its own purpose
and also contains clear sections and correlated
Schedules, make it obvious that Parliament intend
ed to allow the Access to Information Act to
prevail over any other Acts of Parliament in order
to give substantially broader access to information
held by the Government, unless a clear and
unequivocal exception is stipulated in the Act
itself.
I must emphasize, before concluding, that the
provisions of the Access to Information Act will
apply with respect to Immigration Appeal Board
records only in those cases where the Board refuses
access to documents relating to in camera hearings
or otherwise does not maintain a public record. In
the usual course, the Board's proceedings are open
and rights of access already exist, so that the
Access to Information Act need not be invoked.
For all these reasons, the preliminary questions
set by Rouleau J. ought to be answered in the
affirmative, with the qualification that the second
question should be answered as follows: "The
Immigration Appeal Board records which are the
subject of these four proceedings are properly sub
ject to an examination under the Access to Infor
mation Act".
In view of this conclusion, it will not be neces
sary to deal with the additional submission that
the respondent had no power to conduct in camera
hearings.
Judgment will be rendered accordingly and costs
may be spoken to at the request of any of the
parties.
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.