T-522-84
Nick Ternette (Applicant)
v.
The Solicitor General of Canada (Respondent)
and
The Privacy Commissioner (Intervenor)
INDEXED AS: TERNE7TE V. CANADA (SOLICITOR GENERAL)
(TD.)
Trial Division, MacKay J.—Ottawa, September 4,
1990 and November 22, 1991.
Privacy — Privacy Act, s. 41 application to review refusal to
disclose personal information pursuant to s. 21 (disclosure
injurious to defence and international affairs) — RCMP and
Privacy Commissioner neither confirming nor denying exis
tence of personal files — Propriety of conducting portion of
hearing in open court and portion in camera despite s. 51
(application to be heard in camera and ex parte) — S. 49 pre
cluding judicial intervention unless Court determining head of
institution not having reasonable grounds on which to refuse to
disclose personal information — Criteria to be applied by
Court in s. 51 review — In light of detailed references to spe
cific injurious effects reasonably expected to arise from disclo
sure, Court unable to find respondent not having reasonable
grounds on which to refuse to disclose information — S. 8 pre
cluding disclosure of information relating to others without
their consent — Applicant not entitled to information not about
him under s. 12 — Role of American courts in reviewing access
to information applications contrasted with that of Federal
Court under s. 49 — American practice requiring "Vaughn
index" (list outlining nature of information withheld and rea
son related to statutory exemption) inappropriate in Canadian
context — Determination under s. 49 not susceptible to expert
evidence — Costs awarded to applicant although unsuccessful
as raised important new principle under s. 52.
This was an application under Privacy Act, section 41 for
the review of a refusal to disclose personal information pursu
ant to section 21, i.e. disclosure could reasonably be expected
to be injurious to Canada's efforts toward detecting, prevent
ing or suppressing subversive or hostile activities as defined in
subsection 15(2) of the Access to Information Act, including
any such information listed in paragraphs 15(1)(a) to (i). In
1983 the RCMP denied applicant's section 12 request for
access to personal information maintained by it on the ground
that Security Service Records had been designated exempt by
the Governor in Council under section 18 and further declined
to confirm whether or not information concerning him was
maintained. (It was later conceded that the Order in Council
was invalid, but the refusal based on section 21 was main
tained.) The Privacy Commissioner concluded that the RCMP
had acted in accord with the law and also refused to confirm or
deny the existence of personal files. The applicant filed this
application for review in 1984. Some information was released
in 1987 following an inadvertent public admission that infor
mation on the applicant was in fact maintained. Additional
documents were released over the next couple of years either
in their entirety or with deletions.
The hearing commenced in open court despite subsection
51(2), which provides that an application, where refusal to
release personal information is based on section 21, "shall be
heard in camera" and that the head of the government institu
tion concerned shall be given the opportunity to make repre
sentations during the hearing ex parte. The respondent filed the
public affidavit of a senior officer of CSIS (which had assumed
responsibility for the files in 1984) revealing general back
ground and features of the information and criteria which
ought to be considered in exempting information from access
under section 21. A supplementary secret affidavit setting out
the concerns about specific injurious effects and efforts toward
detecting subversive activities was filed. All information not
released was attached as exhibits with accompanying notations
as to injurious effects. The Court reviewed the secret affidavit
and some of documents (others were later reviewed in cham
bers) in camera and ex parte, attended by counsel for the
respondent and the Privacy Commissioner, the deponent of the
supplementary secret affidavit presented under terms of confi
dentiality, an assistant to the deponent (both officers of CSIS),
and the Court Registrar. The information contained in the file
concerning the applicant related not only to him, but to other
groups and individuals.
The applicant submitted that the Court had a responsibility
to ensure the fairest process possible. He stressed the purpose
of the Privacy Act—to provide access to personal information
maintained by government and referred to cases which held
that exemptions to access should be strictly construed in light
of that purpose. He stressed the inherent unfairness of the pro
cedures and their failure to provide the necessary element for
an adversarial process since he had no access to the informa-
tion withheld. He was thus denied the factual basis to which
submissions could be directly related. The applicant submitted
that the Court should adopt as a principle that the head of the
government institution withholding information be directed to
provide a "Vaughn Index", a practice followed in American
cases which requires that a list be prepared outlining the nature
of any information withheld and the reason, relating to particu
lar statutory exemptions for withholding it.
The respondent submitted that the deponent of the affidavit
filed on his behalf should be considered an expert in police
work, security service and investigation of subversive activi
ties and that his opinions as to whether release of the informa
tion could be injurious should be given deference.
The issues were (1) the criteria to be applied by the Court in
a section 51 review and (2) the procedures and disclosures to
facilitate the fairest process possible for determination of the
applicant's rights.
Held, the application should be dismissed.
The hearing was commenced in public based on the princi
ple that the Court's proceedings should be open and public
unless there is a particular ground warranting exceptional pro
ceedings in camera or ex parte. Such a ground exists under
subsections 51(2) and (3). That provision is intended to protect
public and private interests in information. It would be con
trary to the tradition of our judicial system and the Federal
Court Rules for the Court ex proprio motu to direct that the
hearing take place entirely in camera if that is not necessary
for the protection of those interests.
In addition to the paramount consideration, i.e. the standard
of proof required by section 49, precluding the Court's inter
vention unless "it determines that the head of the institutions
did not have reasonable grounds on which to refuse to disclose
the personal information", the following criteria were kept in
mind during the in camera ex parte review of the documents
not released to the applicant: (1) reference in section 21 to
"subversive or hostile activities" is not limited to the definition
thereof in subsection 15(2) of the Access to Information Act,
but incorporates by reference subsection 15(1) which amplifies
the meaning in subsection 15(2); (2) the injuries of concern
were those at the time of the application for access; (3) the test
for injury should be applied in terms specified in Treasury
Board guidelines issued to government institutions for dealing
with Privacy Act applications; (4) concern as to the confidenti
ality of a source may not be warranted where that source did
not expect that his identity would not be revealed; (5) concern
as to the confidentiality of technical sources of information
should perhaps not extend to standard technical measures; (6)
mere passage of time does not provide a standard to measure
potential injury to the interests of CSIS; (7) severance and
release of information not claimed as exempt is appropriate;
(8) it is not the Court's function to review the decision-making
process of CSIS; (9) concern for potential injury to CSIS's
international links; (10) concern for potentially wider injury
than might be perceived by considering an isolated piece of
information without awareness of how that could be fitted with
other information to provide a mosaic of significance to those
seeking intelligence related to CSIS operations; and (11) pas
sage of time does not necessarily diminish the reasonable
expectation of injury from release of information.
In light of detailed references to specific injurious effects,
which could reasonably be expected to arise from disclosure as
provided in section 21, the Court could not find that respon
dent did not have reasonable grounds on which to refuse to dis
close information concerning the applicant. Implicitly, the
respondent had reasonable grounds for refusing to disclose the
information requested. The respondent was obliged by section
8 not to disclose information related to other individuals, with
out consent of those others. The applicant had no right of
access to information not about him under section 12. Addi
tionally, there was no basis for a finding that the respondent
did not have reasonable grounds under section 21 to refuse to
disclose the information not about the applicant.
The role of the Court in these proceedings concerns the rea
sonable or unreasonable basis for refusal to provide access.
That is not the sort of determination where the expert status of
a witness can add anything to explanations and testimony,
based on his experience, which may warrant belief and thus be
persuasive.
As to the fairness of the process, the Court should not direct
that a "Vaughn index" or other summary record of information
withheld and the reasons for doing so be provided to the appli
cant at this stage in the evolution of dealing with the Privacy
Act. American courts reviewing a refusal to release informa
tion make a de novo determination of the basis for exemption
from release, not a determination of whether the refusal was
not based on reasonable grounds as is the case under Privacy
Act, section 49. The identification of the anticipated injurious
effects by the confidential supplementary affidavit went
beyond the requirements of a mere index and made prompt and
detailed judicial review possible. Development of processes
supportive of the individual's right to access to personal infor
mation maintained by government institutions can best be con
sidered and developed in a context broader than that provided
by a single case.
The applicant was awarded costs pursuant to section 52,
which provides that where the Court is of the opinion that an
application for review has raised an important new principle in
relation to the Act, costs shall be awarded to the applicant even
if unsuccessful. This was one of the early applications under
the Privacy Act, and involved the difficult and sensitive task of
balancing the right of the individual to know what information
about himself is maintained by the government and the public
interests of Canada in security of the state. This application
provided an important opportunity for both the Privacy Com
missioner and CSIS to refine their respective approaches to the
individual's rights under the Privacy Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 15.
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C., 1985,
Appendix III], s. 2.
Canadian Security Intelligence Service Act, R.S.C., 1985,
c. C-23, ss. 2, 12, 18.
Freedom of Information Act, 5 USCS § 552.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 8, 10, 11, 12, 16,
18, 21, 22, 26, 38, 39, 41, 46, 47, 48, 49, 51, 52, 60, 72,
75.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Zanganeh v. Canada (Canadian Security Intelligence Ser
vice), [1989] 1 F.C. 244; (1988), 50 D.L.R. (4th) 747; 20
F.T.R. 100 (T.D.); Russell v. Canadian Security Intelli
gence Service (1990), 31 C.P.R. (3d) 184; 35 F.T.R. 315
(F.C.T.D.); CIA v Sims, 471 US 159; 85 L Ed 2d 173
(1985).
CONSIDERED:
Ternette v. Solicitor General of Canada, [1984] 2 F.C.
486; (1984), 10 D.L.R. (4th) 587; [1984] 5 W.W.R. 612;
32 Alta. L.R. (2d) 310; 9 Admin. L.R. 24 (T.D.);
Minematsu v. Canada (Royal Canadian Mounted Police),
T-1698-87, Jerome A.C.J., order dated 24/2/88 (no rea
sons), F.C.T.D., not reported; Vienneau v. Canada (Solici-
tor General), [1988] 3 F.C. 336; (1988), 24 C.P.R. (3d)
104 (T.D.); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973); Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978);
Founding Church of Scientology of Washington, D.C.,
Inc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979).
REFERRED TO:
Reyes v. Sec. of State (1984), 9 Admin. L.R. 296
(F.C.T.D.); Davidson v. Canada (Solicitor General),
[ 1989] 2 F.C. 341; (1989), 36 Admin. L.R. 251; 47
C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R. 126 (C.A.);
Muller v. Canada (Minister of Communications),
A-30-89, Mahoney J.A., judgment dated 12/10/89,
F.C.A., not reported.
AUTHORS CITED
Canada. Treasury Board. Interim Policy Guide: Access to
Information Act and the Privacy Act, Supply and Ser
vices Canada, 1983.
Canada. Commission of Inquiry Concerning Certain
Activities of the Royal Canadian Mounted Police, Sec
ond Report, vol. 1. Freedom and Security under the
Law, Ottawa: Supply and Services Canada, August
1981.
COUNSEL:
Sheldon M. Chumir for applicant.
Barbara A. Mcisaac, Q. C. for respondent.
Gordon F. Henderson, Q. C. for intervenor.
SOLICITORS:
Sheldon M. Chumir, Calgary, for applicant.
Deputy Attorney General of Canada for respon
dent.
Gowling, Strathy & Henderson, Ottawa, for
intervenor.
The following are the reasons for order rendered in
English by
MAcKAY J.: This is an application, pursuant to sec
tion 41 and subject to the provisions of section 51 of
the Privacy Act, R.S.C., 1985, c. P-21. The applica
tion raises two issues where, as in this case, refusal to
disclose personal information requested under the
Act is stated to be because disclosure could reasona
bly be expected to be injurious to the efforts of
Canada toward detecting, preventing or suppressing
subversive or hostile activities, as provided by sec
tion 21 of the Act. The application thus raises impor
tant issues concerning the appropriate balance
between the individual's right, under the Privacy Act,
to know what information about himself or herself is
maintained by government, and the public interest in
maintaining that information without disclosure,
sometimes even of its existence, in the interests of
protecting the state and its institutions against subver
sive or hostile activities.
The first issue concerns the criteria to be applied
by the Court in a review under section 51 of the
information withheld. The second issue, raised by the
applicant, concerns the "procedures and disclosures
appropriate to facilitate the fairest process possible
for determination of the applicant's rights".
The circumstances leading to consideration of this
application are somewhat unusual. They warrant brief
review for understanding some of the procedural
aspects of the hearing of this matter. From that back
ground the standing of the parties and the nature of
the hearing can be clarified, and the open and the in
camera ex parte portions of the hearing can be
explained.
Background
In August 1983 the applicant, Nick Ternette,
requested access, pursuant to subsection 12(1) of the
Act, to personal information maintained by the Royal
Canadian Mounted Police, Security Services Divi
sion, in personal information bank no. RCMP—P 130.
His request sought "all personal information con
tained within the Services Division of the Royal
Mounted Police, Security Services Records, specifi
cally in regards to activities directed towards accom
plishing governmental change within Canada or else
where by force or violent means, the use or the
encouragement of the use of force or the creation or
exploitation of civil disorder (these activities to have
taken place in Manitoba & Alberta)". That personal
information bank, RCMP—P 130 had been established
by the respondent, the Solicitor General of Canada, in
accord with section 10 of the Act and had been
described in general terms in a published index of
personal information, in accord with section 11 of the
Act. The Governor in Council, acting under section
18, had designated that bank of records as an exempt
bank containing "files all of which consist predomi
nantly of personal information described in section
21 or 22".
In response to the applicant's request he was
advised by the RCMP that Security Service Records
had been designated by the Governor in Council as
exempt from access under section 18 of the Act, that
his request was denied and that there would be no
confirmation whether or not information concerning
him was maintained. In responding to a request for
access to personal information the head of a govern
ment institution concerned is not required to indicate
whether personal information exists, but is required
to state the provision of the Act on which a refusal is
based or on which refusal could reasonably be
expected to be based if the information existed (sub-
sections 16(1) and (2) of the Act).
The applicant, in accord with the Act, then filed a
complaint with the Privacy Commissioner against the
RCMP decisions to withhold confirmation or denial
of the existence of records concerning him, and if
such files exist to withhold copies from his personal
inspection. The Commissioner's investigation of the
applicant's complaint led him to conclude, as he
advised in responding to the complaint, that the
RCMP had acted in accord with the law and that
there was no basis to recommend the applicant had
been denied a right under the Privacy Act. The Pri
vacy Commissioner further advised that his mandate
in relation to personal information in exempt banks
was to ensure that the information is not improperly
maintained or used, and he would neither confirm
nor deny the existence of personal files in designated
exempt information banks. Ternette was advised that
he had a right to appeal the Commissioner's finding
to the Federal Court.
By notice of motion dated March 7, 1984, Mr.
Ternette applied to this Court "for review of the deci
sion to refuse access to information under the provi
sions of the Privacy Act". That application was heard
by my colleague, Mr. Justice Strayer, who considered
the application as one under section 41 of the Act
which provides "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 mat
ter ... ". In his decision' Mr. Justice Strayer rejected
the submissions of the respondent that the Court had
no jurisdiction to review the question of whether the
information sought had been properly denied to the
applicant, and he held that the applicant was entitled
to have the denial of access reviewed. He ordered the
respondent to file an affidavit with the Court under
certain terms of confidentiality, which was done.
An appeal of the order of Strayer J. was initiated
but later abandoned. Before the appeal was aban
doned, the Privacy Commissioner, notified by the
Court of the proceedings on the order of Strayer J.,
applied and was granted status as intervenor, and the
style of cause was amended accordingly by order of
Mahoney J.A.
I note for the record that the Canadian Security
Intelligence Service (CSIS) was established and in
1984 it had taken over control and management of
various files maintained formerly by the RCMP
Security Service, including information contained in
personal information bank RCMP—P 130. That bank
was ultimately assigned a new number or numbers by
CSIS, a change without relevance to the issues here
raised.
The applicant indicated that he would challenge
the validity of the Order in Council establishing
information bank no. RCMP—P 130 as an exempt
bank, apparently in light of comments made by Mr.
Justice Strayer that under section 18 each file main
tained in an exempt bank must consist predominantly
of personal information described in section 21 or 22.
Thereafter, the applicant was advised on September
20, 1985, that the respondent was prepared to con
cede that the Order in Council establishing personal
information bank no. RCMP—P 130 as an exempt
bank was not validly enacted. Nevertheless, the
1 Temette v. Solicitor General of Canada, [1984] 2 F.C. 486
(T.D.).
respondent continued to take the position that he was
not required to indicate whether personal information
about the applicant existed in the information bank in
question, but it was indicated that if information did
exist a refusal could reasonably be expected to be
based on section 21 of the Privacy Act.
It was proposed, and apparently accepted by coun
sel for the applicant that a new affidavit on behalf of
the respondent be filed, sealed as confidential, deal
ing with issues of the existence of any personal infor
mation about Mr. Ternette in information bank
RCMP—P 130, and whether, if there were such infor
mation the respondent had reasonable grounds to
refuse to disclose it pursuant to section 21. That ques
tion would then be subject to review by this Court
pursuant to section 51 of the Act and, in accord with
procedures followed in an earlier case, a hearing
would be held to receive submissions from the appli
cant, followed by a further hearing at which ex parte
representations might be made on behalf of the
respondent.
Following an inadvertent public admission that
information was maintained in relation to the appli
cant, in November 1986 he was advised that personal
information about him did exist in what was
described as personal information bank RCMP P 30
(I assume the number is in error in the letter of advice
to the applicant's counsel and that the reference is to
RCMP—P 130). A review of information maintained
was then undertaken, and copies of certain informa
tion were released to the applicant on January 16,
1987 and February 13, 1987. The covering letter with
the first of those releases advised that "enclosed is all
of the personal information which can be disclosed to
you. Exemptions have been applied in whole or in
part in accordance with section 21 of the Privacy
Act". The second release in February included a sin
gle page of a newspaper article, from the Winnipeg
Free Press, which had inadvertently been omitted
from the first release.
Thereafter, the parties agreed to a further review
by the office of the Privacy Commissioner, initiated
by request of the applicant, and a thorough review of
material maintained in information bank RCMP—P
130 was then undertaken by that office. As a result,
additional personal information was released to the
applicant on October 30, 1987 and again, on January
12, 1988. On these two later occasions the covering
letter sent with the released documents noted that cer
tain information relating to the applicant's request
had been exempted "in whole or in part, in accor
dance with sections 19(1), 21, 22(1)(a)(iii), 22(1)(b)
and 26 of the Privacy Act".
On January 25, 1988 the Privacy Commissioner
wrote to Mr. Ternette reporting his conclusions fol
lowing review of the exemptions claimed by CSIS.
He noted, inter alia, the release of additional materi
als in October 1987 and January 1988 as a result of
negotiations by his office with CSIS, his conclusion
that the applicant had "now received access to all per
sonal information to which [he] was entitled under
the Privacy Act" and that "My close and personal
review of the remaining material has satisfied me that
it is properly exempted under section 21 of the Act".
The public affidavit of Joseph Claude Camille
Dagenais, Director General, Information Manage
ment of CSIS, filed on behalf of the respondent, avers
that by these various releases 186 documents respect
ing Mr. Ternette, consisting of 241 pages, were
released with the only deletions being administrative
notations and file numbers. In addition, 78 other doc
uments were released, including 13 pages in full and
110 pages with deletions. A further 150 pages from
these documents have been completely exempted and
the balance of documents has not been released.
On August 3, 1990, a further release of informa
tion was made to Mr. Ternette, consisting of some ten
pages, all with substantial deletions, following a
review by CSIS of the injury that might reasonably
be expected to be caused by disclosure. This release
was thought by the applicant to be in response to his
later request for access to information in CSIS Per
sonal Information Bank SIS/P-PU-015, for informa
tion relating to years after 1983, the last year to
which any of the previously released information
related. The covering letter sent with the information
referred to that information bank, one of the succes
sor banks to RCMP—P 130 after responsibilities were
assumed by CSIS, but the information released
appeared to relate to the period up to 1983. Counsel
for the respondent indicated at the hearing that the
covering letter's reference to an information bank
ought to have been to RCMP—P 130 and the informa
tion released was a further release, as a result of con
tinuing review of the information by CSIS, related to
the applicant's original request.
The parties then agreed that the matter would pro
ceed on the basis that the information which had not
been released was subject to exemptions provided for
by the Privacy Act and the review would be con
ducted by the Court on the basis that the respondent
was obliged to justify the exemptions, an onus on the
government institution refusing to release informa
tion as provided by section 47 of the Act.
The expanded list of statutory provisions support
ing exemptions, set out in the covering letters with
information released in October 1987 and in January
1988, was claimed as a basis for exemptions in the
memorandum of fact and law prepared by the respon
dent. This was noted in the memorandum submitted
on behalf of the applicant, but it was urged that the
exemptions should be considered only on the basis of
section 21 of the Act, since that was the ground on
which exemptions were originally claimed by the
respondent, in connection with the denial to release
any information and later, in connection with the
information originally released. At the hearing coun-
sel for the respondent acknowledged that the Court
should consider the matter on the basis that only sec
tion 21 was now claimed as a basis for exemption
from release of information, although some other
sections might also simultaneously apply to particular
information, e.g., section 26 which authorizes refusal
to disclose personal information about an individual
other than the one who requests access, and which
requires refusal if the individual concerned has not
given consent.
The background reviewed explains the basis for
consideration of this application in. accord with sec
tion 51 of the Act, which is applicable whenever
refusal to release personal information is based on
section 21. It also explains the limitation of consider
ation for exemption from access to section 21 of the
Act.
Arrangements for the hearing
Section 51 provides for special arrangements for a
hearing where refusal to release personal information
is based on section 21, including provision for the
hearing to be in camera and with an opportunity for
the respondent to make representations ex parte. 2
Notice of motion was filed on behalf of the respon
dent in advance of the hearing that the hearing be
conducted in camera and that the respondent have the
opportunity to make representations ex parte. When
the matter came on for hearing this motion was con
2 51. (1) Any application under section 41 or 42 relating to
personal information that the head of a government institution
has refused to disclose by reason of paragraph 19(1)(a) or (b)
or section 21, and any application under section 43 in respect
of a file contained in a personal information bank designated
as an exempt bank under section 18 to contain files all of
which consist predominantly of personal information described
in section 21, shall be heard and determined by the Associate
Chief Justice of the Federal Court or by such other judge of the
Court as the Associate Chief Justice may designate to hear the
applications.
(2) An application referred to in subsection (1) or an
appeal brought in respect of such application shall
(a) be heard in camera;
(3) During the hearing of an application referred to in
subsection (1) or an appeal brought in respect of such
application, the head of the government institution con
cerned shall, on the request of the head of the institution,
be given the opportunity to make representations ex parte.
sidered but at that time counsel for the respondent
proposed, with consent from the applicant, that the
hearing proceed in open court, including within the
public record the affidavit of Mr. Dagenais, filed on
behalf of the respondent which had already been pro
vided to the applicant and the deponent had been
cross-examined by counsel. In the course of proceed
ings in open court counsel for the applicant would
make submissions, including submissions concerning
the process to be followed in relation to a portion of
the hearing proposed to be conducted in camera and
ex parte. In the ex parte in camera portion a supple
mentary affidavit would be presented, subject to an
order of the Court ensuring its presentation and reten
tion in confidence. That second affidavit and the affi-
ant Mr. Dagenais, together with any documents with
held from release to the applicant, would be available
for examination by the Court in the in camera ex
parte portion of the hearing.
The arrangements proposed by counsel for the
respondent were said to follow those adopted in ear
lier applications to the Court. 3 Counsel for the appli
cant and for the intervenor, the Privacy Commis
sioner, consented to the arrangements proposed.
Despite subsection 51(2), which provides that an
application, as in this case where refusal to release
personal information is based upon section 21, "shall
be heard in camera", I ordered that the hearing pro
ceed, as proposed, in open and public hearing with
opportunity for counsel for the respondent to move at
the appropriate stage that the hearing continue in
camera and ex parte.
3 See Reyes v. Sec. of State (1984), 9 Admin. L.R. 296
(F.C.T.D.) per Jerome A.C.J. See also Minematsu, note 4,
below. Other cases indicated as procedural precedents I find on
review were conducted in camera as s. 51(2) of the Act
appears to require: Zanganeh v. Canada (Canadian Security
Intelligence Service), [1989] 1 F.C. 244 (T.D.), per Muldoon J.
and Russell v. Canadian Security Intelligence Service (1990),
31 C.P.R. (3d) 184 (F.C.T.D.), per Pinard J. However, in each
of the two latter cases the agency concerned, CSIS, had decli
ned to advise whether or not personal information concerning
the applicant existed in the exempt information bank to which
access was sought. In those circumstances it is essential that
the entire hearing be conducted in camera.
That order was based on the principle that the
Court's proceedings are open and public unless there
be a particular ground urged by a party that is
deemed to warrant exceptional proceedings in cam
era or ex parte. Such a ground exists by virtue of
subsections 51(2) and (3). That provision is intended
for the protection of public and private interests in
information. If it is not seen as necessary for protec
tion of those interests for the entire proceedings but
only for a portion of them to be held in camera, by
counsel representing the head of the government
institution concerned, by the applicant, or by the Pri
vacy Commissioner, in my view it would be contrary
to the longstanding tradition of our judicial system
and the Rules of this Court [Federal Court Rules,
C.R.C., c. 663] for the Court ex proprio motu to
direct that the hearing be fully in camera.
Before commencing hearing the application in
open court, counsel were reminded of the Court's
obligation, pursuant to section 46 of the Act to "take
every reasonable precaution ... to avoid the disclo
sure by the Court or any person", inter alia, of any
information that the head of a government institution
would be authorized to refuse to disclose.
The hearing then commenced, and continued for
the most part in open court, with the applicant
addressing the two general issues earlier identified
and the respondent and intervenor responding to
these submissions, followed by an opportunity for
reply by the applicant. Thereafter, counsel for the
respondent moved that the hearing continue in cam
era and ex parte, without the presence of the appli
cant or his counsel, in order that the Court receive a
supplementary secret affidavit, sealed as confidential
and subject to conditions, and have the opportunity to
examine the deponent concerning any and all docu
ments that had not been released to the applicant.
Counsel for the applicant proposed that the Privacy
Commissioner attend the ex parte hearing and adopt
a role that would be representative of the applicant's
rights; otherwise, it was suggested, the attendance of
the Privacy Commissioner was not important. That
role was declined by counsel for the intervenor. Pur
suant to subsections 51 (2) and (3) I allowed the
motion for continuing the hearing in camera and ex
parte, ordered sealed as confidential and subject to
return to CSIS at conclusion of the hearing the sup
plementary affidavit, and invited counsel for the Pri
vacy Commissioner to attend to comment upon the
process then to be proposed, and its fairness, for deal
ing with information to be adduced at the closed ex
parte session.
The hearing then continued, in camera and ex
parte, in chambers, attended by counsel for the
respondent, the deponent of a supplementary secret
affidavit presented under terms of confidentiality, and
an assistant to the deponent, both being officers of
CSIS, counsel representing the Privacy Commis
sioner and the Court Registrar. For the record I note
that aside from the supplementary affidavit of Mr.
Dagenais, no submissions were made by counsel for
the respondent during the in camera and ex parte
portion of the hearing other than proposals about the
process to be followed in that portion, which the
Court invited. At the conclusion of one half day hear
ing in camera and ex parte the Court again convened
in open session and reported upon the process and
progress made during the in camera ex parte session.
That report may be summarized as follows.
1. A process for review of the information in ques
tion was proposed by counsel for the respondent
and opportunity was provided for counsel for the
intervenor to comment on the process proposed
and its fairness. The intervenor offered that the
officer of the staff of the Privacy Commissioner
who had examined the records in detail was availa
ble to be called for questions, if that seemed help
ful to the Court, an offer which, in the final result,
it did not seem necessary to accept.
2. The process as proposed was accepted by the
Court, as outlined below. Counsel for the inter-
venor then was excused from continued attendance
at the in camera session.
3. The supplementary secret affidavit of Joseph
Claude Camille Dagenais of CSIS, presented in
confidence, ex parte, at the in camera hearing, was
reviewed in detail with counsel for the respondent.
4. Examination of the records not released to the
applicant was begun
i) by examination of examples demonstrating
the process followed by CSIS in considering the
records, including an overview of that process
and the classes of injury perceived to the
national or public interest if the documents were
to be released;
ii) by commencing review of the documents one
by one, and
iii) with opportunity for the Court at either stage
during the ex parte hearing to question the depo-
nent Dagenais.
During the course of this review and thereafter
until the Court's review of the information was
completed, the Court considered the records in
question in light of submissions that had been
made by the applicant and by the respondent in
open session.
5. Examination of individual records was not com
pleted in the course of the in camera ex parte hear
ing but would be, and subsequently was, by this
Judge in chambers, with no representative of the
parties, and no one else, present. If there were
need, and there subsequently proved not to be, for
further questioning of the deponent Dagenais in
relation to the records, counsel for both parties
would be advised and the Court, after considering
any submissions of counsel, would propose to
resume the in camera ex parte hearing . 4
6. Decision was reserved. Examination of the
records in question was completed for the most
part within a few days, though to the regret of the
Court completion of the matter and production of
these reasons has been delayed much longer than
anticipated.
Information withheld and criteria for its considera
tion
Counsel for the respondent had made clear to
counsel for the applicant, in advance of the hearing,
the process that would be proposed to the Court,
including a proposed hearing in camera and ex parte
for receipt of a supplementary affidavit of Mr.
Dagenais, with explanation in detail of the reasons
for withholding information requested, which reasons
related to the injury that could reasonably be antici
pated if the information were released.
Counsel for the applicant had cross-examined the
deponent Dagenais on his public affidavit and during
the public portion of the hearing made submissions
about the two general issues raised by the application.
He referred to a number of passages in the Report of
the Royal Commission of Inquiry Concerning Cer
tain Activities of the Royal Canadian Mounted Police
(1981) (the McDonald Commission) to illustrate the
context in which this application arose. 5 Those
passages referred to concerns about the dangers to
4 A similar process, of open and in camera ex parte portions
of a hearing was followed by the Court in Minematsu v.
Canada (Royal Canadian Mounted Police), (Court File No.
T-1698-87). In that case Jerome A.C.J. considered all the docu
ments withheld during the in camera ex parte session without
the necessity of reviewing those in chambers, and on reconve
ning the public hearing announced his decision from the
Bench. The process there followed, with an in camera ex parte
portion of the hearing, is the subject of appeal (Court File No.
A-339-88 (F.C.A.)).
5 Canada. Commission of Inquiry Concerning Certain Acti
vities of the Royal Canadian Mounted Police. Second Report.
Freedom and Security under the Law (Ottawa, August 1981),
vol. 1, at pp. 67-68, paragraphs 70-71; p. 347, paragraph 10; p.
518, paragraphs 13-14; and p. 538, paragraph 65.
citizens which could result from improper use of
security files, about indiscriminate information col
lection programmes, about the lack of government
approval for at least some aspects of the investigative
and reporting functions of the RCMP Security Ser
vices, and about an absence of law and policy for
determining the proper scope of counter-subversion
investigation.
For the applicant the purpose of the Privacy Act, as
set out in section 2, was stressed, i.e., "to extend the
present laws of Canada that protect the privacy of
individuals with respect to personal information
about themselves held by a government institution
and that provide individuals with a right of access to
that information". In light of that purpose, decisions
of this Court have consistently emphasized that
exemptions to access should be strictly construed. 6
The public affidavit of Mr. Dagenais reveals some
general background and some general features of the
information in issue in this case. He averred:
25. Prior to July of 1984, the Government of Canada relied on
the Security Service of the R.C.M.P. to provide it with infor
mation in respect of groups or individuals who presented
immediate or potential threats to the security of the country
because they were engaged in subversive or hostile activities
such as espionage, sabotage, terrorism, and the violent over
throw of governments. This role now falls within the ambit of
CSIS under the Canadian Security Intelligence Service Act.
Pursuant to the provisions of that Act, the CSIS mandate, as set
out in section 12, is to collect, by investigation or otherwise, to
the extent that it is strictly necessary, analyze and retain infor
mation and intelligence respecting activities that may on rea
sonable grounds be suspected of constituting threats to the
security of Canada. Subject to its specific mandate, CSIS oper
ates in much the same way as the Security Service did and con
tinues to use similar filing procedures, codes, operating meth
ods, etc.
26. In order to ensure that there was reliable information about
groups and individuals who were engaged in such activities or
who were suspected of engaging in such activities (targets of
investigation), the R.C.M.P. Security Service operated on the
principle that it is absolutely essential that a security agency
collect and retain information both on these groups and indi
viduals and also on the groups and individuals with whom they
establish contact.
6 See, e.g. Reyes v. Sec. of State, supra, note 3.
27. That information was maintained in a manner which
allowed it then to be subjected to extensive cross-referencing
in order that the security agency could assess the relationships
between these groups and individuals.
28. One of the ways in which foreign influenced subversive
organizations operated in Canada during the period in ques
tion, and now, was by attempting to exploit volatile issues.
Their tactics include penetration of legitimate organizations
and manipulation of such organizations and unsuspecting indi
viduals with a view to furthering their own causes.
29. These legitimate organizations, through manipulation, may
be used to confuse public perceptions, sway opinions, and gen
erate pressure on the Government from the general public by
focusing public attention on specific issues.
30. Identifying subversive elements in legitimate broad based
political movements requires discriminating evaluation of the
activities of such movements and the individuals involved, and
such evaluation can only be effective if a security agency is
able to analyze interconnecting relationships on an ongoing
basis. It is also necessary to keep informed of political, social
and economic conditions in order to detect exploitation and
anticipate potential threats to security.
31. Accordingly, the R.C.M.P. Security Service maintained
files during the period in question by cross-referencing to the
file of a group or individual all reports, public information or
assessments relating to that group or individual or to that group
or individual's activities.
32. It is for this reason that the information contained in the
file relating to the Applicant relates not only to him but also to
other groups and individuals. The information about him is
inseparable from the larger context necessary to provide an
accurate assessment of his involvement in any given situation.
The statutory exemption under section 21 deals
with a number of possible injuries to Canada, but it
was agreed that in this case the injury of concern was
to "the efforts of Canada toward detecting, prevent
ing or suppressing subversive or hostile activities as
defined in subsection 15(2) of the Access to Informa
tion Act, including ... any such information listed in
paragraphs 15(1)(a) to (i)" of that Act. 7
7 The parties here agreed that denial of release was related to
that portion of s. 21 here underlined:
21. The head of a government institution may refuse to
disclose any personal information requested under subsec
tion 12(1) the disclosure of which could reasonably be
(Continued on next page)
Mr. Dagenais, whose affidavit was filed on behalf
of the respondent, was a senior officer of CSIS. For
merly a member of the RCMP from 1958, in 1984 he
transferred to CSIS as Director General Counter Sub
version Branch, then served as Deputy Director Gen
eral Quebec Region before assuming his current
(Continued from previous page)
expected to be injurious to the conduct of international
affairs, the defence of Canada or any state allied or associa
ted with Canada, as defined in subsection 15(2) of the
Access to Information Act, or the efforts of Canada toward
detecting, preventing or suppressing subversive or hostile
activities, as defined in subsection 15(2) of the Access to
Information Act, including, without restricting the generality
of the foregoing, any such information listed in paragraphs
15(1)(a) to (i) of the Access to Information Act.
Portions of the Access to Information Act, R.S.C., 1985, c. A-1,
here incorporated by reference are:
15....
(2) In this section,
"subversive or hostile activities" means
(a) espionage against Canada or any state allied or asso
ciated with Canada,
(b) sabotage,
(c) activities directed toward the commission of terrorist
acts, including hijacking, in or against Canada or foreign
states,
(d) activities directed toward accomplishing government
change within Canada or foreign states by the use of or
the encouragement of the use of force, violence or any
criminal means,
(e) activities directed toward gathering information used
for intelligence purposes that relates to Canada or any
state allied or associated with Canada, and
(f) activities directed toward threatening the safety of
Canadians, employees of the Government of Canada or
property of the Government of Canada outside Canada.
15. (1) 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
expected to be injurious to the conduct of international
affairs, the defence of Canada or any state allied or associa
ted with Canada or the detection, prevention or suppression
of subversive or hostile activities, including, without restric
ting the generality of the foregoing, any such information
(a) relating to military tactics or strategy, or relating to
military exercises or operations undertaken in preparation
(Continued on next page)
responsibilities as Director General, Information
Management, in December 1987. During his prior
service with the RCMP, from 1962 to 1980 he was
with the Security Service, then was Executive Officer
(Continued from previous page)
for hostilities or in connection with the detection, preven
tion or suppression of subversive or hostile activities;
(b) relating to the quantity, characteristics, capabilities or
deployment of weapons or other defence equipment or of
anything being designed, developed, produced or consid
ered for use as weapons or other defence equipment;
(c) relating to the characteristics, capabilities, perfor
mance, potential, deployment, functions or role of any
defence establishment, of any military force, unit or per
sonnel or of any organization or person responsible for
the detection, prevention or suppression of subversive or
hostile activities;
(d) obtained or prepared for the purpose of intelligence
relating to
(i) the defence of Canada or any state allied or associa
ted with Canada, or
(ii) the detection, prevention or suppression of subver
sive or hostile activities;
(e) obtained or prepared for the purpose of intelligence
respecting foreign states, international organizations of
states or citizens of foreign states used by the
Government of Canada in the process of deliberation and
consultation or in the conduct of international affairs;
(f) on methods of, and scientific or technical equipment
for, collecting, assessing or handling information referred
to in paragraph (d) or (e) or on sources of such infor
mation;
(g) on the positions adopted or to be adopted by the
Government of Canada, governments of foreign states or
international organizations of states for the purpose of
present or future international negotiations;
(h) that constitutes diplomatic correspondence exchanged
with foreign states or international organizations of states
or official correspondence exchanged with Canadian
diplomatic missions or consular posts abroad; or
(i) relating to the communications or cryptographic sys
tems of Canada or foreign states used
(i) for the conduct of international affairs,
(ii) for the defence of Canada or any state allied or
associated with Canada, or
(iii) in relation to the detection, prevention or suppres
sion of subversive or hostile activities.
to the Commissioner and later second in command of
the Counter Subversion Program of the RCMP Secur
ity Service. In view of his long service in police
work, security service and counter-subversion inves
tigation, it was submitted by counsel for the respon
dent that Dagenais should be considered an expert in
these fields. Moreover, it was urged that his views
and opinions ought to be given deference with
respect to whether release of the information in ques
tion could reasonably be expected to be injurious to
the efforts of Canada toward detecting, preventing or
suppressing subversive or hostile activities within the
meaning of section 21. Counsel referred to CIA v
Sims, 8 a United States decision under the Freedom of
Information Act [5 USCS § 552], in which the U.S.
Supreme Court had supported the necessity of defer
ence by judges to the security agency's expertise in
matters of national security. Sims is an interesting
decision, but because the role of the Court in these
proceedings concerns the reasonable or unreasonable
basis for refusal to provide access and not a de novo
hearing to determine a basis for exemption from
release of information, as U.S. courts are directed to
do, in my view CIA v Sims is not directly referable to
this situation.
While I respect Mr. Dagenais' experience and ser
vice and acknowledge that through these he has obvi
ously gained considerable expertise, which I recog
nize on its own merits, I decline to accept the
submission that he be accorded status as an expert
witness in the normal sense. The determination
which the Court must make under the statute, in my
view, is not of the sort where the status as expert of a
witness or affiant can add anything of significance to
his explanations and testimony, based on his experi
ence, which may warrant belief, and thus be persua
sive.
In light of his experience, the public affidavit of
Mr. Dagenais warrants careful consideration in its
references to the criteria which ought to be borne in
8 471 US 159; 85 L Ed 2d 173 (1985).
mind in considering exemptions from access to infor
mation based on section 21. He avers:
33. The information which has not been released to the Appli
cant reveals the following:
1. the names or identities of human sources utilized by the
RCMP and CSIS as well as any information from which
the identity of human sources could be derived;
2. technical sources used by the Security Service;
3. identification of both groups and individuals who were
investigated by the Security Service and, in some cases,
who continue to be investigated by CSIS;
4. information which would clearly reveal the extent to
which the Security Service was aware of the activities of
targets and the scope of its interest in them;
5. the depth, development and sophistication of the resources
employed, as well as the degree of expertise of the Secur
ity Service;
6. the effectiveness of Security Service investigations;
7. internal procedures used by the Security Service to main
tain, correlate and transmit information such as, file num
bers and categories; cross-referencing methods; extracting
methods; methods of constructing reports; process of
assessing raw information; and cryptographic systems
used for communication.
34. The most important tool of any security agency is human
sources. These may be people who volunteer information
which they have received or persons who co-operate with the
security agency when asked to do so. They may be persons
who have deliberately placed themselves in a position to obtain
information for the security agency at considerable personal
risk to themselves, their families and their reputations. Devel
opment of human sources is a long process based on a care
fully molded trust that the source's identity will be protected.
35. Attached hereto and marked as Exhibit "G" to this my affi
davit is an excerpt from the transcript of testimony before the
Commission of Inquiry concerning certain activities of the
Royal Canadian Mounted Police, specifically, pages 2422-
2477 of volume 16. I agree with and adopt the statements made
therein by the witness Barr.
36. It is imperative that a security agency be in a position to
protect its sources and guarantee their anonymity. Failure to do
so in any particular case would destroy that source's effective
ness and could expose him or her or his or her family to har
assment or physical danger. In the larger context, however, the
revelation of the name of a source who has supplied informa
tion to the R.C.M.P. Security Service, even that of a source
who would not be considered a covert source, would have the
effect of causing all sources to become more hesitant about co
operating with CSIS.
37. It is my opinion that disclosure of such information would
be a message to current and potential sources that CSIS could
not guarantee the anonymity upon which their safety depends.
It is my opinion that covert sources and the general populace
would be much less willing to co-operate with CSIS and assist
it in its investigations. The necessity of protecting human
sources and the essential role which they play in intelligence
work has long been recognized. I would adopt and concur with
a statement made at page 101 of the report of the Royal Com
mission on Security (June 1969):
"288. Human agents are one of the traditional sources of intel
ligence and security information, and any security service is
to a large extent dependent upon its network of agents, on
the scale of their penetration of or access to useful targets
and on their reliability. Operations involving human sources
require the most sophisticated handling by trained men with
wide experience. Nevertheless, in spite of the difficulties
associated with some of these operations, we regard them as
essential to an effective security posture. We would go fur
ther, and suggest that it is impossible fully to comprehend or
contain the current threats to security-especially in the field
of espionage-without active operations devoted to the acqui
sition of human sources."
38. A security agency cannot operate effectively if the targets
of its investigations are able to ascertain what is already known
about them, the methods of operation being used against them,
the extent of coverage they are being afforded or the sources
who are reporting on their activities.
39. If targets of investigations had such knowledge, they would
be able to take specific precautions and countermeasures
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.
40. All security agencies, including CSIS and the former
RCMP Security Service use secure communications or crypto-
graph systems to transmit messages. The information in some
of these messages would still be valuable to those whose inter
ests are inimical to Canada and its allies.
41. Trust and confidence in the ability of a security agency to
protect information are essential to the relationship which it
has with similar agencies of foreign governments. The sharing
of information is an important aspect of the investigative pro
cess and such co-operation would be curtailed if foreign agen-
cies were to lose confidence in the ability of CSIS to protect
such information.
42. The passage of time and the age of information cannot be
used to conclude that its release will not cause any damage.
Sources may still be active. Inactive sources could have their
safety jeopardized or be lost for the future. Targets would
know much about the scope of the information available on
them.
43. Disclosure of information which reveals the methods by
which information is collected, references are coded, informa
tion is cross-referenced or extracted, and raw information ana
lyzed, would, in my opinion, cause irreparable harm to the
investigative process. That information, if disclosed in this
case, and subsequently in similar situations, would ultimately
provide a body of information which could seriously prejudice
the effectiveness of CSIS.
44. Knowledge of the internal procedures, operational deploy
ments, structure and strength would facilitate attempts to iden
tify targets of investigation, sources, and methods of operation
in ongoing investigations.
45. One must also be sensitive to what may be termed the
"mosaic effect", whereby one takes seemingly unrelated pieces
of information, which may not be particularly sensitive indi
vidually, and compares them with each other to develop a
more comprehensive picture.
46. It is frequently difficult to anticipate how information
released in one context, when compared to information availa
ble in another, can be used in this way.
As to criteria for consideration of the Court in
review of information withheld from the applicant,
counsel for Mr. Ternette made a number of submis
sions as did counsel for the respondent. I summarize
those briefly as follows.
1. For the applicant it was urged that "subversive or
hostile activities" referred to in section 21 was
restrictively defined by subsection 15(2) of the
Access to Information Act; more narrowly, it was
contended, than the ambit of responsibilities assigned
to CSIS under section 12 of the Canadian Security
Intelligence Service Act, R.S.C., 1985, c. C-23, 9 and
more narrowly than "threats to the security of
9 S. 12 provides:
12. The Service shall collect, by investigation or other
wise, 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
(Continued on next page)
Canada" is defined in that same Act. 10 The Court, it
was submitted, should be rigorous in ensuring that
the information withheld was clearly within the com
paratively narrow limits of the Privacy Act. Without
comment on the comparisons drawn with the CSIS
Act, I agree that the Privacy Act here is applicable,
though I note for the record that the concluding
words of section 21 refer not merely to the definition
provided by subsection 15(2) of the Access to Infor
mation Act, but also incorporate by reference subsec
tion 15(1), portions of which in my view clearly
amplify the meaning of "subversive or hostile activi
ties" as defined in subsection 15(2).
2. An illustration of the need to review the informa
tion restrictively in terms of the Privacy Act read in
proper context, was said by the applicant to arise in
(Continued from previous page)
threats to the security of Canada and, in relation thereto,
shall report to and advise the Government of Canada.
10 2. In this Act,
"threats to the security of Canada" means
(a) espionage or sabotage that is against Canada or is
detrimental to the interests of Canada or activities direc
ted toward or in support of such espionage or sabotage,
(b) 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 per
son,
(c) activities within or relating to Canada directed toward
or in support of the threat or use of acts of serious vio
lence against persons or property for the purpose of achie
ving a political objective within Canada or a foreign state,
and
(d) activities directed toward undermining by covert
unlawful acts, or directed toward or intended ultimately to
lead to the destruction or overthrow by violence of, the
constitutionally established system of government in
Canada,
but does not include lawful advocacy, protest or dissent, unless
carried on in conjunction with any of the activities referred to
in paragraphs (a) to (d).
relation to the claim with the later releases of infor
mation that some had been withheld in reliance upon
subparagraph 22(1)(a)(iii) (among other exemptions)
of the Privacy Act. That subparagraph concerns
information obtained or prepared in the course of
lawful investigations of activities suspected of consti
tuting threats to the security of Canada within the
CSIS Act. Counsel for the parties were agreed that
that subparagraph was not applicable in this case for
the application for access antedated the CSIS Act and
subparagraph 22(1)(a)(iii) of the Privacy Act.
3. I accept the submission of the respondent, with
which the applicant did not disagree, that the injuri
ous effects of concern under the latter portion of sec
tion 21, "to the efforts of Canada toward detecting,
preventing or suppressing subversive or hostile activ
ities", are injuries to the interests of CSIS in light of
its responsibilities as established by sections 12 to 18
of the CSIS Act which set out the duties and func
tions of the service. I also accept that the concern is
related to a reasonable expectation of injury from
release of information at the time of the application
for access, an assessment distinct from any reasons
underlying the collection of the information in ques
tion.
4. The test for injury to "the efforts of Canada toward
detecting, preventing or suppressing subversive or
hostile activities", as provided by section 21, ought to
be applied, in the view of the applicant, strictly and in
terms specified in Treasury Board guidelines issued
to government institutions for dealing with Privacy
Act applications. Those provide that "injurious" in
the context of section 21 means having a detrimental
effect and "[d]isclosure of the information must rea
sonably be expected to prove harmful or damaging to
the specific public or private interest covered by the
exemption in order for access to be refused." The
injury of concern in any given case should be specific
to the party or the interest which will suffer injury; it
should be current in the sense that the detrimental
effect is perceived at the time the exemption is
claimed or in the foreseeable future; and the injury
should be probable, if there is to be a reasonable like
lihood of its occurrence. 11 This approach was not
contested by the respondent. Indeed, in cross-exami
nation on his public affidavit Mr. Dagenais referred
to the Treasury Board guidelines as the policy basis
for standards utilized in review of the information
requested by the applicant.
i) The applicant concedes the probability of injury
to CSIS interests if information released should
lead to the identification of human sources of
information, a principal concern identified by the
affiant Dagenais in his paragraphs 33.1, 34, 35, 36
and 37. Nevertheless, the applicant urges that this
concern should only be warranted where there is
an expectation by the source that his or her identity
as a source would be maintained in confidence,
that it should not extend to a casual source provid
ing information without expectation of confidenti
ality, and in circumstances where the information
in issue would by its release identify the source.
This concern should not be extended to all infor
mation from a given source unless that characteris
tic of identifying the source were likely. For the
respondent the concerns are as outlined in the
Dagenais affidavit. In my view the submissions of
the applicant warrant serious consideration if in
any case it is clear that information withheld
would not lead to identification of a confidential
source 12 and provided release of such information
clearly does not raise concern about other possible
injury to CSIS interests. Those conditions may not
be easily met in light of the standard of proof
required of the respondent under section 49. Coun
sel for the respondent noted that this Court has
clearly recognized the need to protect from release,
information that could reasonably be expected to
reveal the identity of a human source of informa
l! Canada. Treasury Board, Interim Policy Guide: Access to
Information Act and the Privacy Act, Part Ill, at pp. 82-83.
12 This appears to be a situation that is simply the reverse of
that provided for in s. 18(1)(a) of the CSIS Act which prohibits
disclosure of information "from which the identity of (a) any
other person who is or was a confidential source of informa
tion or assistance to the Service" can be inferred.
tion provided in the course of a lawful investiga
tion. 13
ii) The concern of the respondent about injury
from release of information relating to technical
sources used by the security service, referred to in
Mr. Dagenais' affidavit in paragraph 33.2 is
acknowledged by the applicant but it is urged that
that concern ought not to extend to standard tech
nical measures such as wire taps or hidden micro
phones which by common knowledge may be used
by security services, particularly where that use
was in collection of information going back 20
years or more. It is submitted that this prospective
injury should be limited to circumstances where
there is a current investigation using technical
means of investigating a particular target, or other
wise secret technical means of investigation are
employed.
iii) In relation to three concerns of the respondent,
the applicant submits that these should be consid
ered as met substantially by the passage of time,
except where there is a current investigation of a
particular target or a potential target. That should
be the case in relation to information concerning
targets of investigation (Mr. Dagenais' affidavit,
paragraphs 33.3, 33.4, 38 and 39) unless the target
is subject to current or continuing investigation
and is considered a current threat. It was suggested
the passage of time also met concern in relation to
information concerning the depth, development
and sophistication of resources or expertise of the
security service (affidavit of Dagenais, paragraphs
33.5 and 43), unless there is a current or potential
target or the information relates to unique method
ology or other information about the current opera
tions of the security service. Finally, the passage of
13 Davidson v. Canada (Solicitor General), [1989] 2 F.C.
341 (C.A.); Muller v. Canada (Minister of Communications),
(Court file no. A-30-89, October 12, 1989 (F.C.A.), not repor
ted).
time, it was urged, should meet the concern in rela
tion to information that would reveal internal
methods, systems, or procedures of the security
service itself (affidavit of Dagenais, paragraphs
33.7 and 40). In all these concerns, the applicant
urges that the passage of time since information
here in issue was collected, from 1966 to 1983,
should be a major consideration affecting the rea
sonable likelihood of injury. As Mr. Dagenais
notes, (affidavit, paragraph 42) and I would con
cur, the mere passage of time in itself does not pro
vide a standard to measure potential injury to the
interests of CSIS. Moreover, the likelihood of
injury is to be assessed at the date information is to
be released, and the reasons for collection of the
information are distinct from considerations of
potential injury likely to be caused by its release.
5. Other considerations raised by the applicant con
cerned the importance of the obligation referred to in
Treasury Board guidelines, for the head of the gov
ernment institution concerned to relate the refusal to
disclose particular information to a specific exemp
tion under the Act, in this case section 21, and to
sever information not exempt from that for which an
exemption is claimed. 14 It was further urged that
information not personal to the applicant but which
put the personal information in context, should also
be released. Finally, the Court was urged to review
the process of decision making by CSIS that lay
behind the various releases of information to Mr.
14 Unlike the Access to Information Act, the Privacy Act
contains no specific provision for severability and release of
information that is not exempt from release. Nevertheless, the
Privacy Act, s. 12 providing access to any personal informa
tion maintained by a government institution, implies, and Trea
sury Board guidelines direct that information not exempt from
disclosure be severed from exempt information and the former
be released, where it is reasonable to do so.
Ternette to assess whether there was a shifting basis
for claiming exemption that was unwarranted. For
the record I note that severance and release of infor
mation that is not claimed as exempt is appropriate,
and moreover, it is a practice already followed by
CSIS in release of some information to the applicant
with substantial deletions from the original full text
of the documents. I note also that I do not see it as the
Court's function to review the process of decision
making within CSIS about release of information in
this case, though it will be recalled that later releases
in October 1987 and January 1988 resulted from the
involvement and negotiations with CSIS by the inter-
venor, the Privacy Commissioner. Here the role of
the Court is to assess on review, in accord with sec
tion 49 of the Privacy Act, whether the respondent
did not have reasonable grounds to refuse to release
the information still withheld at the time of the hear
ing.
6. For the respondent, it was urged that the Court's
task must be seen in light of section 49 of the Act
which provides:
49. Where the head of a government institution refuses to
disclose personal information requested under subsection I 2(1)
on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or
24(a), the Court shall, if it determines that the head of the insti
tution did not have reasonable grounds on which to refuse to
disclose the personal information, order the head of the institu
tion to disclose the personal information, subject to such con
ditions as the Court deems appropriate, to the individual who
requested access thereto, or shall make such other order as the
Court deems appropriate.
That standard of proof requires that the Court, before
ordering release of information which has not been
disclosed on the basis of section 21 of the Act (as
also in the case of certain other exemption sections),
must determine that there was not reasonable grounds
for the refusal to disclose. Counsel for the respondent
characterized the standard as that of an appellate tri
bunal. It was contrasted with the standard required
under section 48 in relation to refusals to provide
access related to other sections of the Act providing
for exemptions, which requires a determination by
the Court that the head of the institution concerned is
not authorized to refuse to disclose the information, a
process akin, so it was described, to a de novo review
of the decision. In my view, section 49 is clear as to
the standard of proof applicable in this case, i.e., that
the Court will not intervene to order disclosure of
withheld information unless it finds that there was
not reasonable grounds for the refusal to disclose.
Three general considerations were also referred by
counsel for the respondent to the attention of the
Court in its review of information withheld. All of
these were referred to in the public affidavit of Mr.
Dagenais. These were the concerns for potential
injury to international links of CSIS with other coun
tries (affidavit, paragraph 41); for potentially wider
injury than might be perceived by considering a piece
or pieces of information without awareness of how
that could be fitted with other information to provide
a mosaic of significance to those seeking intelligence
related to CSIS operations (affidavit, paragraphs 45
and 46), and finally, it was stressed that pure passage
of time since the information was collected did not in
itself provide any assessment of the reasonable
expectation of injury from release of the information.
These varied submissions of counsel, except where
my summary indicates otherwise, were kept in mind
by this Court in its review, in camera and ex parte, of
the individual records not released to the applicant.
Needless to say, a paramount consideration was the
standard of proof required in accord with section 49,
a standard that precludes the Court's intervention
unless "it determines that the head of the institution
did not have reasonable grounds on which to refuse
to disclose the personal information" requested by
the applicant.
Fairness of the process
Counsel for the applicant stressed the inherent
unfairness of the process, and its failure to provide
the necessary element for an adversarial process,
since neither he nor the applicant have any access to
the information withheld. They were thus denied the
factual basis to which submissions could be directly
related.
Acknowledging that by section 51 Parliament had
provided for the process to be in camera and ex
parte, with submissions from the respondent made
without knowledge of the applicant or any opportu
nity to address directly submissions or evidence
presented ex parte, counsel urged that the Court had a
responsibility to ensure the fairest process possible in
the circumstances. That responsibility was particu
larly significant in light of the general purpose of the
Privacy Act, to provide access to personal informa
tion maintained by government.
Two proposals were advanced for consideration by
the Court. The first was that the Court adopt as a
principle that in cases of this sort, the head of the
government institution withholding information be
directed to provide a so-called "Vaughn Index", list
ing in outline the nature of any information withheld
and the reason, relating to particular statutory exemp
tions for withholding it. That would adopt the process
evolved in United States' courts 15 to deal with appli
cations for review of refusals to release information
sought under the Freedom of Information Act (U.S.).
There an index is required in many, though not all,
such applications, to be provided as part of the public
record and open to adversarial dispute and submis
sions, even in cases involving security matters. 16 It
was urged such an index would provide a poor but
better opportunity than is now available to an appli
cant to argue in support of an application for infor
mation. Where an index of this sort has been required
it has been required to be specific as to the exemption
claimed for each deletion or withheld document and
to explain the relevance of the exemption. 17 Counsel
did also refer to Vienneau v. Canada (Solicitor Gen
eral), 18 where Mr. Justice Jerome A.C.J. dismissed
an application to require a government institution to
designate for each item of information withheld from
release, under the Access to Information Act, the
ground for claiming exemption. Yet the learned
Associate Chief Justice added "I find the practice of
providing section numbers next to deletions, as many
18 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
16 Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978).
17 Founding Church of Scientology of Washington, D.C.,
Inc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979).
18 [1988] 3 F.C. 336 (T.D.), at pp. 342-343.
departments do, a highly commendable one.... I
would therefore urge that, where there is no danger of
revealing the substance of protected information,
government institutions should continue to provide
the relevant section numbers for each deletion".
It was, as counsel for the respondent noted, late in
the day in these proceedings to consider requiring an
index of the records as part of the public record and
there was no basis for concluding that it would be
helpful, even if it could be provided, in a case such as
this. Moreover, the role of the Court in judicial
review of a refusal to release information in the
United States, is to make a de novo determination of
the basis for exemption from release, not, as in this
case, under section 49 of the Privacy Act, to deter
mine if the refusal was not based on reasonable
grounds.
I declined at the hearing to direct that an index of
the sort that has come to be known as the "Vaughn
Index" in United States courts be provided to the
applicant. In the memorandum of fact and law on
behalf of the applicant counsel did submit, as an
alternative course to filing a public index:
18. Where, as here, ex parte affidavit evidence is to be
received from the Respondent, it is submitted that the Court
should require the Respondent to provide it in the form of a
detailed index similar to that required in the United States
under the Vaughn rule in order to assist the Court in its in cam
era review of the file, if one exists.
I note for the record that the supplementary affidavit
filed in confidence on behalf of the respondent did
fully set out, with examples, the concerns about spe
cific injurious effects anticipated to the interests of
CSIS and efforts toward detecting subversive or hos
tile activities, if the information were released. In the
exhibits to that affidavit which included all informa-
tion not released to the applicant, including all pages
which had been released with deletions, on each page
was noted, by reference, the specific injurious effect
or effects that release of that page was anticipated to
be likely to cause. That thorough, careful analysis
and documentation made it possible for the Court to
review without difficulty the basis upon which the
decision had been made to refuse access or release to
the applicant.
The second proposal of the applicant was, as ear
lier noted, that counsel for the intervenor, the Privacy
Commissioner, be invited to attend the in camera ex
parte hearing and to there represent the interests of
the applicant. I have noted that counsel for the inter-
venor declined to consider such a role, particularly in
light of the Commissioner's substantial involvement
at an earlier stage in this matter. I also note that I am
appreciative of the comments and submissions of
counsel for the intervenor at both the public and the
in camera ex parte portions of the hearing.
Finally, counsel for the applicant noted that in
Minematsu 19 where the applicant's appeal from the
order of the learned Associate Chief Justice concerns
the unfairness of the process there followed, and
essentially followed in this matter, reliance is placed
upon paragraph 2(e) of the Canadian Bill of Rights 20
which provides:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate not
withstanding the Canadian Bill of Rights, be so construed and
applied as not to abrogate, abridge or infringe or to authorize
the abrogation, abridgment or infringement of any of the rights
or freedoms herein recognized and declared, and in particular,
no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accor
dance with the principles of fundamental justice for the
determination of his rights and obligations;
19 Supra, note 4.
20 S.C. 1960, c. 44 [R.S.C., 1985, Appendix Ill].
No special argument was in this case directed to that
provision of the Bill of Rights, but counsel referred to
it as general support for his submission that the Court
has a responsibility to ensure the fairest process pos
sible.
Conclusion
Bearing in mind the considerations raised by coun
sel for the parties concerning assessment of the
grounds relied upon by the respondent for refusing
access to information requested by the applicant, I
have reviewed in camera and ex parte the informa
tion provided with the supplementary affidavit filed
in confidence on behalf of the respondent and, of
course, the affidavit itself. My review was completed
quite promptly because of the thorough and careful
preparation by CSIS on behalf of the respondent for
the Court's review. My delay in providing these rea
sons and disposing of the matter arises because of
other obligations and ought not to be taken as any
indication of the volume or quantity of the informa
tion here in question. So far as my delay arises from
consideration of the issues raised, time has been
devoted to considering the applicant's submissions
concerning the Court's responsibility to ensure the
fairest possible process and opportunity for the appli
cant to be heard, in addition to that required for
review of the information itself.
As to the fairness of the process, I conclude that
this is not a matter on which, at least at this stage in
the evolution of dealing with the Privacy Act, this
Court should direct that a "Vaughn Index" or other
summary record of information withheld and the rea
sons for so doing be provided to the applicant. While
it does not meet the applicant's concern to be heard
directly with reference to the specific reasons, i.e.,
the injurious effects anticipated if the information
were to be released, I commend the way in which
these effects were identified with reference to each
type of information and each page of information
withheld, by the confidential supplementary affidavit
of Mr. Dagenais and its exhibits. That process went
, beyond the requirements of a mere index and made
possible detailed review by the Court of the informa
tion withheld, and quite promptly.
Parliament has provided the basic framework for
the process here followed, by section 51 of the Act,
providing for a hearing in camera and at the request
of the respondent for submissions to be made ex
parte. Development of processes supportive of the
individual's right to access to personal information
about himself or herself maintained by government
institutions can best be considered and developed in a
context broader than that provided by a single case,
important as the single case is. The Act itself con
tains provisions that can facilitate this. The Privacy
Commissioner reports annually to Parliament (sec-
tion 38) and may at any time report to Parliament on
a matter of urgency or importance (section 39); that
Commissioner shall carry out studies referred by the
Minister of Justice and report to the Minister (section
60); the head of every government institution is
required to report annually to Parliament on the
administration of the Act within the institution (sec-
tion 72); and the administration of the Act is to be
reviewed "on a permanent basis" by a parliamentary
committee (section 75).
The information reviewed by the Court included
all documents not released to the applicant and those
released to him with deletion of information with
held. As set out in the public affidavit of Mr.
Dagenais in paragraphs 24 to 32, the information
contained in the file concerning the applicant related
not only to him but also to other groups and individu
als. In so far as it relates to other individuals the
respondent is obliged by section 8 of the Privacy Act
not to disclose that information without consent of
those others. In so far as it is not information about
the applicant, Mr. Ternette has no right of access to it
under section 12 of the Act, which provides that he
has a right and shall be given access to personal
information about himself. In addition to those con
siderations which provide a statutory basis for refusal
to disclose some of the information withheld, my
review of the filed information that is not about the
individual, Mr. Ternette, in light of the detailed refer
ences to injurious effects anticipated if this informa
tion were released, leads me to conclude that there is
no basis for a finding that the respondent did not
have reasonable grounds under section 21 on which
to refuse to disclose the information.
As for information concerning the applicant, in
light of the detailed references to specific injurious
effects, which could reasonably be expected to arise
from disclosure, to "the efforts of Canada toward
detecting, preventing or suppressing subversive or
hostile activities" as provided by section 21, I do not
conclude that the respondent did not have reasonable
grounds on which to refuse to disclose the informa
tion.
In the absence of negative findings as required by
section 49, it is implicit that this Court finds the
respondent had reasonable grounds for refusing to
disclose the information requested, based on section
21 and the reasonable expectation that disclosure
could be injurious, in the ways identified in the pub
lic affidavit of Mr. Dagenais at paragraphs 33 to 46,
to efforts to detect, prevent or suppress subversive or
hostile activities.
In the result, an order goes dismissing the applica
tion.
That order is made with costs awarded to the appli
cant pursuant to section 52 of the Privacy Act. This
provides for costs to be in the discretion of the Court
and to follow the event unless otherwise ordered, and
where the Court is of the opinion that an application
for review has raised an important new principle in
relation to the Act, the Court is directed to order costs
be awarded to the applicant even if he has not been
successful.
This case was one of the early applications under
the Privacy Act, and one involving the difficult and
sensitive task of balancing the right of the individual
and the public interests of Canada in security of the
state. The application to this Court, heard in the first
instance by my colleague Mr. Justice Strayer, estab
lished incidentally the basis for assessing the assign
ment of files of personal information to exempt
banks and more importantly, affirmed the right of the
individual to judicial review by the Court of the
refusal by the head of a government institution to
acknowledge the existence of personal information
concerning an applicant, and of a decision to refuse
to release information. Thereafter, pursuit of his
application by Mr. Ternette led to active involvement
of the Privacy Commissioner in detailed review of
information originally withheld by the respondent,
and release to the applicant of considerable personal
information about himself. My sense is that this
application provided an important opportunity for the
Privacy Commissioner and for CSIS to refine their
respective approaches to the individual's rights under
the Privacy Act. In writing to the applicant in January
1988, reporting on the results of the detailed review
by his office of the information withheld, the Privacy
Commissioner wrote:
This report culminates our work in your case and marks the
end of one of the more extensive and complex investigations
we have undertaken. Your case, perhaps more than any other of
late, has broadened the public's perception of the fundamental
principles of the Privacy Act and will stand, in my view, as a
landmark in the exercise of privacy rights in Canada.
I note that counsel for the respondent had no objec
tion to an award of costs to the applicant, on a party
and party basis, in this case.
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.