Date: 20100429
Docket: T-1040-09
Citation: 2010 FC 470
Ottawa, Ontario, April 29,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CANADIAN ASSOCIATION OF
ELIZABETH FRY SOCIETIES
Applicant
and
MINISTER OF PUBLIC SAFETY CANADA
and CORRECTIONAL SERVICE CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to section 41 of the Privacy
Act, R.S.C. 1985, c.
P-21 as amended (the "Act") for a review of the decision of the
Correctional Services of Canada (CSC) wherein it refused to disclose to the
applicant access
to certain personal information regarding Ms. Ashley Smith, a 19 year old
prisoner who committed suicide in her cell.
FACTS
Background facts
[2]
Ms.
Ashley Smith was imprisoned in New Brunswick’s youth justice system
at the age of 15. In custody, she committed a number of additional criminal
offences and her sentence was extended. When she reached the age of majority
(i.e. 18), she was transferred in October 2006 to New Brunswick’s adult
correctional system, and then to the custody of the federal prison system
operated by the respondent.
[3]
The
respondent allegedly moved Ms. Smith several times among a number of
penitentiaries, treatment facilities and hospitals across Canada until her
death by suicide in her cell on October 19, 2007 at the Grand Valley
Institution for Women in Kitchener, Ontario.
[4]
During
her incarceration, Ms. Smith alleged to the applicant, the Elizabeth Fry
Society, that she was being subjected to improper treatment including alleged assaults
from the staff, alleged inadequate living conditions, alleged lack of
psychiatric care or assessment, and alleged frequent segregation and transfers.
[5]
The
applicant, the Canadian Association of Elizabeth Fry Societies, is an umbrella
organization of 25 Elizabeth Fry Societies across Canada. The
applicant is a non-profit organization committed to raising public awareness
with respect to decreasing the number of criminalized and imprisoned women in Canada, promoting
the decarceration of women presently in prison, and increasing the availability
of a publicly funded and community-based social system to care for women before
they imprisoned.
[6]
The
respondent, the Correctional Services of Canada, is responsible for the care of
imprisoned persons. Ms. Smith was in the custody and care of the respondent at
the time she made the Privacy Act request which is the subject of this
application.
Privacy Act request and
subsequent denial
[7]
Ms.
Smith sought the assistance of the Elizabeth Fry Society. The Affidavit of
Ms. Kim Pate sets out the interaction
between the Elizabeth Fry Society and Ms. Smith from the initial contact. Ms.
Pate is the Executive Director of the Canadian Association of Elizabeth Fry
Societies (CAEFS) and a part-time professor at the University of Ottawa in the
Faculty of Law.
[8]
On
May 31, 2007 Ms. Smith requested under the Privacy Act access to her
personal records held by the respondent and consented to the release of her
private CSC records to the Elizabeth Fry Society and Ms. Pate. The Consent for
Disclosure of Personal Information Form states:
I hereby consent to the disclosure by the Correctional Services
of Canada of the personal information pertaining to myself which may be
described as segregation, transfer, charges, and other information related of
my prison term to the following individual(s) or organization(s) Kim Pate
(CAEFS) and lawyer for the purpose of assisting me.
[Emphasis added]
[9]
Ms.
Pate made the following specific request for information on Ashley’s behalf on
June 14, 2007, which was received on June 18, 2007:
With respect to Ms. Ashley
Smith, FPS #820435E (D.O.B. 29/01/88), please forward all information
pertaining to:
a. the terms of reference and
investigation report regarding the allegations of staff assault of and by Ms. Smith;
b. the various transfers of Ms.
Smith to and from Nova, Pinel GVI,. St. Thomas;
c. security classification and
re-assessments, including information utilized from the youth system, police reports
and court decisions;
d. placement and retention of Ms.
Smith in segregation, including segregation reviews;
e. all incident reports, charge
sheets, and decisions regarding institutional behavioural issues, including
institutional preventive security reports, et cetara;
f.
psychological
and psychiatric reports, assessments for decision;
g. internal CSC memoranda,
electronic and other correspondence regarding the management and/or treatment
of Ms. Smith, including, but not limited to activity and log sheets pertaining
to staff assessments of her ongoing behaviour, et cetera.
[10]
On
July 18, 2007 Ms. Ginette Pilon, a Senior Analyst of the CSC’s Access to Information
and Privacy Division, advised Ms. Pate that a 30-day extension beyond the
statutory 30-day limit contained in section 14 of the Privacy Act would
be required to process the request because meeting the original 30-day timeline
would unreasonably interfere with the operations of the government institution.
CSC did not disclose Ms. Smith’s records at the conclusion of the 30 day
extension, which was August 17, 2007.
[11]
Ms.
Smith sent a second consent and request for release of her information on
September 24, 2007. The form was written and signed by an Executive Director of
the Elizabeth Fry Society and witnessed by a CSC staff person because Ms. Smith
not allowed writing utensils. The Release of Information Form states:
I, Ashley Smith, hereby authorize CSC, to
release to Kim Pate, CAEFS, the following information: All CSC, Police, Court,
health records, reports et cetera, for the purpose(s) of assisting me. This
release will be in effect from Sept 24/07 until Jan 30/09.
[12]
Ms.
Pate stated in her cross examination that the dates January 31, 2009 and
January 30, 2009 were inserted into the consent and authorization forms
respectively because those were the last days of Ms. Smith’s sentence.
[13]
Ms.
Smith committed suicide on October 19, 2007, 123 days after the first request
for records was received, 62 days after the last day of the 30-day extension.
[14]
On
May 23, 2008 counsel for the applicant contacted the CSC by email to inquire
about the status of the outstanding request for records. On May 26, 2008 CSC sent
out the following reply by email:
Unfortunately, due to the incident that
resulted in the death of this inmate on October 19, 2007, all files related to
this individual are exempted in their entirety pursuant to section 22 and 26 of
the Privacy Act.
Ms. Anne Rooke, Access to Information and
Privacy Coordinator to the CSC reportedly instructed the author of this email.
[15]
On
the same day, May 26, 2008, CSC issued a short letter setting out the reasons
for refusing to disclose the requested records:
This is in response to your request for
access to the personal information contained in documentation held by
Correctional Services of Canada pertaining to Ashley Smith (deceased).
Please note that the information has been
exempted in its entirety pursuant to section 22 and 26 of the Privacy Act.
You are entitled to file a complaint with
the Office of the Privacy Commissioner of Canada concerning this request. Should you wish
to exercise this right, you complaint should be forward to the Office of the
Privacy Commissioner Place de Ville, Tower “B”, 112 Kent Street, Ottawa,
Ontario, K1A 1H3.
Report of the Privacy
Commissioner of Canada
[16]
The
applicant filed a complaint against Ms. Rooke and CSC with the Privacy
Commissioner on June 26, 2008.
[17]
On
May 15, 2009 the Privacy Commissioner determined that the complaint was well
founded. The Commissioner held that the death of the individual did not vitiate
their consent under the Act and that the CSC did not properly invoke the
exemptions found in the Act. Part of the Commissioner’s reasons are reproduced
below for convenience:
…
5. In order to determine the
appropriateness of the application of section 26, our office needed to asses
the validity of the consent upon the death of the individual providing the
consent. After careful consideration, our office concluded that the
individual’s death does not vitiate the consent provided to the Executive
Director of the Canadian Association of Elizabeth Fry Societies. Consequently,
for CSC’s purposes, the death of the individual was only relevant to the
extent that it may have affected the exemptions CSC was entitled to rely on. As
a result, we are of the view that CSC could not rely on the application of
section 26 to deny access to the entire personal information requested.
…
7. In this particular case, CSC
advised the requester that the information requested was exempted in its
entirety pursuant to section 22 of the Act without specifying the paragraph or
paragraphs invoked to exempt the information requested. In the course of this
investigation, we have reviewed the actions taken by the institution and its
representations and concluded that CSC did not establish to our satisfaction
that it properly invoked the provisions contained in section 22 to exempt the
requested information in its entirety.
[Emphasis added]
[18]
The
Commissioner elected not to apply to the Federal Court to order the release of
Ms. Smith’s records. However, the applicant applied to this Court to compel the
release of Ms. Smith’s records under the Act.
Evidence before the Court
[19]
The
evidence before this Court consists of an affidavit sworn on behalf of the
applicant by Ms. Pate and the public and confidential affidavits by Mr. Nick
Fabiano on behalf of the respondent. Both affiants were cross examined on their
affidavits and exhibits. Mr. Fabiano was not cross examined on his confidential
affidavit which attaches as an exhibit Ms. Smith’s undisclosed records.
Ms. Pate’s Affidavit and
cross examination
[20]
The
affidavit dated July 16, 2009 by Ms. Kim Pate, the Executive Director of the
Canadian Association of Elizabeth Fry Societies and a part-time professor at
the University of Ottawa in
the Faculty of Law deposes, inter alia:
a. the role of
the applicant in assisting incarcerated women in Canada through
direct action and advocacy;
b. allegations
of mistreatment of Ms. Smith at the hands of CSC staff and Ms. Pate’s personal
observations of Ms. Smith during her visits;
c. on May 31,
2007 and September 24, 2007, Ms. Smith requested and consented to the release
of her CSC records to the applicant and Ms. Pate;
d. on June 14,
2007 a request was sent to CSC for specific release of records;
e. the applicant
has since commenced an application in the Federal Court to compel the release
of Ms. Smith’s records in order the understand “exactly what happened to
Ashley, and to allow us to better assist other imprisoned women who are
experiencing treatment similar to that to which Ashley was subjected, and to
try to prevent similar treatment in the future”.
Mr. Fabiono’s Affidavit
and cross examination
[21]
The
public affidavit dated August 28, 2009 by Mr. Nick Fabiano, the Director
General, Rights, Redress and Resolution of CSC deposes:
a. on June 18,
2007 CSC received a request enclosing a copy of the Consent for Disclosure of
Personal Information form for release of specific records belonging to Ms.
Smith, ;
b. on July 18,
2007 the CSC’s Access to Information Division (also known as the “ATIP
Division”) sent a notice of extension;
c. Ms. Smith died
on October 19, 2007 before the ATIP Division completed a review of the
documents in question;
d. Mr. Fabiano
was advised by Ms. Anne Rooke, Director, Access to Information and Privacy at
CSC that Ms. Smith’s consent for disclosure of her records ceased to be valid
upon her death and that all her files were exempted pursuant to section 22 and
26 of the Act:
The confidential
personal records of Ms. Smith filed with the Court
[22]
The
respondent CSC filed the confidential personal records of Ms. Smith with the
Court attached to the confidential affidavit dated August 28, 2009 by Mr. Nick
Fabiano. The confidential affidavit does not provide any elaboration on the
events that led to denial of the applicant’s request for records. This
affidavit attaches the personal records of the Ms. Smith, which I can describe
in general, non-confidential terms as follows:
a. numerous
assessments of Ashley Smith by CSC;
b. transfer
records;
c. violent
incident records in both CSC and provincial custody;
d. criminal code
charge sheets;
e. at least one
sentencing court transcript; and
f.
security
classification for Ms. Smith in the “Maximum” security risk category.
The records of Ms. Smith’s personal
information contain 291 pages, and end in June 2007. There are no records for
the last few months before her suicide, or records following her suicide.
Evidence from
cross-examination
[23]
The
following points emerged from Mr. Fabiano’s cross-examination:
a. Ms. Anne
Rooke, to whom Mr. Fabiano reports, made the decision to deny the requested
disclosure of record;
b. Mr. Fabiano
never reviewed Ms. Smith’s requested records and has no knowledge of their
contents;
c. Mr. Fabiano
could not answer who made the decision not to meet the original or extended
deadline for releasing Ms. Smith’s records;
d. CSC has in
the past disclosed the records of deceased inmates on a case by case basis;
e. the ongoing
criminal investigation which was cited as a reason for exempting the records
under section 22 of the Act had ended at the time of his affidavit; and
f.
Ms.
Rooke was not available to swear an affidavit at the time it was requested.
[24]
At
the conclusion of the cross examination counsel for the respondent undertook to
provide the Court and the applicant with the respondent’s current grounds for
refusing to release Ms. Smith’s information. The respondent’s current position
is as follows:
a. Section 26 of
the Act is no longer relied on;
b. Section
22(1)(b) of the Act is relied upon as a ground for refusal; and
c. Section 3 of
the Act and section 10 of the Privacy Regulations form the basis of the
respondent’s objection to the applicant’s standing to bring this application.
Judicial notice of
Criminal Code charges
[25]
The
Court was asked by the parties to take judicial notice of the fact that a Royal
Canadian Mounted Police investigation was initiated with respect to Ms. Smith’s
death which led to Criminal Code charges of “criminal negligence causing death”
against four CSC employees. This investigation was conducted in and around May
26, 2008. The Court was informed that those charges were later dismissed at the
preliminary hearing stage.
Key dates and timelines
[26]
The
key dates and timelines with respect to this application are as follows:
a. request and
consent for disclosure by Ms. Smith of her personal information was dated June
18, 2007;
b. the extension
to the 30 day timeline for producing this personal information was made by the
respondent on July 18, 2007;
c. the personal
information was due from the respondent at the end of this extension, which was
August 17, 2007. At that time, under the law, the respondent is deemed to have
denied that the request and consent to produce the personal documents;
d. Ms. Smith and
the applicant sent a second request for the release of her personal information
on September 24, 2007 since the first request was not being complied with;
e. Ms. Smith
committed suicide on October 19, 2007;
f.
the
decision of the respondent to deny the request for the disclosure was dated May
26, 2008; and
g. the date of
the hearing before this Court was March 29, 2010.
LEGISLATION
[27]
The
purpose of the Privacy Act is set out at section 2:
|
2. The purpose of this Act is 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.
|
2. La présente
loi a pour objet de compléter la législation canadienne en matière de
protection des renseignements personnels relevant des institutions fédérales
et de droit d’accès des individus aux renseignements personnels qui les
concernent.
|
[28]
Section
3 of the Act defines “personal information” as follows:
|
3. “personal information” means information about an
identifiable individual that is recorded in any form including, without
restricting the generality of the foregoing,
[…]
but, for the purposes of sections 7, 8 and 26 and section
19 of the Access to Information Act, does not include
[…]
(m) information about an individual who has been
dead for more than twenty years;
|
3. « renseignements
personnels » Les renseignements, quels que soient leur forme et leur support,
concernant un individu identifiable, notamment :
[…]
toutefois, il
demeure entendu que, pour l’application des articles 7, 8 et 26, et de
l’article 19 de la Loi sur l’accès à l’information, les renseignements
personnels ne comprennent pas les renseignements concernant :
[…]
m) un
individu décédé depuis plus de vingt ans.
|
[29]
Section
8 of the Act sets out the circumstances where personal information shall be
disclosed:
|
8. (1) Personal information under the control of a
government institution shall not, without the consent of the individual to
whom it relates,
be disclosed by the institution except in accordance with
this section.
(2) Subject to any other Act of Parliament, personal
information under the control of a government institution may be disclosed
[…]
(j) to any person or body for research or statistical
purposes if the head of the government
institution
(i) is satisfied
that the purpose for which the information is disclosed cannot reasonably
be accomplished
unless the information is provided in a form that would identify the
individual to whom it relates, and
(ii) obtains from
the person or body a written undertaking that no subsequent disclosure of the
information will be made in a form that could reasonably be expected to
identify the individual to whom it relates;
[…]
(m) for any purpose where, in the opinion of the
head of the institution,
(i) the public
interest in disclosure clearly outweighs any invasion of privacy that
could result from the disclosure, or
(ii) disclosure
would clearly benefit the individual to whom the information relates.
|
8. (1) Les
renseignements personnels qui relèvent d’une institution fédérale ne peuvent
être communiqués, à
défaut du consentement de l’individu qu’ils concernent, que conformément au
présent article.
(2) Sous réserve
d’autres lois fédérales, la communication des renseignements personnels
qui relèvent d’une
institution fédérale est autorisée dans les cas suivants :
[…]
j)
communication à toute personne ou à tout organisme, pour des travaux de
recherche ou de statistique, pourvu que soient réalisées les deux conditions
suivantes :
(i) le
responsable de l’institution est convaincu
que les fins
auxquelles les renseignements sont communiqués ne peuvent
être
normalement atteintes que si les renseignements sont donnés sous une forme qui
permette d’identifier l’individu qu’ils concernent,
(ii) la
personne ou l’organisme s’engagent par écrit auprès du responsable de
l’institution à s’abstenir de toute communication ultérieure des
renseignements tant que leur forme risque vraisemblablement de permettre l’identification
de l’individu qu’ils concernent;
[…]
m)
communication à toute autre fin dans les cas où, de l’avis du responsable de
l’institution :
(i) des
raisons d’intérêt public justifieraient nettement une éventuelle violation
de la vie
privée,
(ii)
l’individu concerné en tirerait un avantage certain.
|
[30]
Section
12 of the Act grants individuals the right of access to their personal information:
|
12. (1) Subject to this Act, every individual who is a
Canadian citizen or a permanent resident within the meaning of subsection
2(1) of
the Immigration and Refugee Protection Act has a
right to and shall, on request, be given access to
(a) any personal information about the individual contained
in a personal information bank; and
(b) any other personal information about the individual
under the control of a government institution with respect to which the
individual
is able to provide sufficiently specific information on
the location of the information as to render it reasonably retrievable by the
government institution.
[…]
|
12. (1) Sous réserve
des autres dispositions de la présente loi, tout citoyen canadien et tout
résident permanent
au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection
des réfugiés ont le droit de se faire communiquer sur demande :
a) les
renseignements personnels le concernant et versés dans un fichier de
renseignements personnels;
b) les autres
renseignements personnels le concernant et relevant d’une institution
fédérale, dans la mesure où il peut fournir sur leur localisation des
indications suffisamment précises pour que l’institution fédérale puisse les
retrouver sans problèmes sérieux.
[…]
|
[31]
Section
14 of the Act requires the head of the government institution to acknowledge in
writing receipt of a request for access to personal information within 30 days
of the request being made and indicate whether access will be granted:
|
14. Where access to personal
information is requested under subsection 12(1), the head of
the government institution to
which the request is made shall, subject to section 15, within thirty days
after the request is received,
(a) give written notice
to the individual who made the request as to whether or not access to the
information or a part thereof will be given; and
(b) if access is to be
given, give the individual who made the request access to the information or
the part thereof.
|
14. Le responsable de l’institution fédérale à qui est faite une demande
de communication de renseignements personnels en vertu du paragraphe 12(1)
est tenu, dans les trente jours suivant sa réception, sous réserve de
l’article 15 :
a) d’aviser par écrit la personne qui a fait la demande de ce qu’il
sera donné ou non communication totale ou partielle des renseignements
personnels;
b) le cas
échéant, de procéder à la communication.
|
[32]
Section
15 of the Act allows the head of a government institution to extend the time
limit for complying with a request for access for a maximum of an additional 30
days:
|
15. The head of a government
institution may extend the time limit set out in section 14 in respect of a
request for
(a) a maximum of thirty days if
(i) meeting the original time
limit would unreasonably interfere with the operations
of the government institution,
or
(ii) consultations are
necessary to comply with the request that cannot reasonably be completed
within the original time limit, or
(b) such period of time
as is reasonable, if additional time is necessary for translation
purposes or for the purposes
of converting the personal information into an alternative
format, by giving notice of
the extension and the length of the extension to the individual who made the request
within thirty days after the request is received, which notice shall contain
a statement that the individual has a right to make a complaint to the
Privacy Commissioner about the extension.
|
15. Le responsable d’une institution fédérale peut proroger le délai
mentionné à l’article 14 :
a) d’une période maximale de trente jours dans les cas où :
(i)
l’observation du délai entraverait de façon sérieuse le fonctionnement de l’institution,
(ii) les
consultations nécessaires pour donner suite à la demande rendraient
pratiquement impossible l’observation du délai;
b) d’une période qui peut se justifier dans les cas de traduction ou
dans les cas de transfert sur support de substitution. Dans l’un ou l’autre
de ces cas, le responsable de l’institution fédérale envoie à la personne
qui a fait la
demande, dans les trente jours suivant sa réception, un avis de prorogation
de délai en lui faisant part du nouveau délai ainsi que de son droit de
déposer une plainte à ce propos auprès du Commissaire à la protection de la
vie privée.
|
[33]
Subsection
16(3) of the Act deems the government institution to have refused the request
for disclosure following the expiry of the time limits under the Act:
|
16(3) Where the head of a government institution fails to
give access to any personal information requested under subsection 12(1)
within the
time limits set out in this Act, the head of the
institution shall, for the purposes of this
Act, be deemed to have refused to give access.
|
16(3) Le défaut de
communication de renseignements personnels demandés en vertu du paragraphe 12(1)
dans les
délais prévus par la
présente loi vaut décision de refus de communication.
|
[34]
Subsection
22(1)(b) of the Act permits the government institution to refuse to disclose
personal information which by its disclosure would be injurious to the conduct
of a lawful investigation:
|
22. (1) The head of a government institution
may refuse to disclose any personal information
requested under subsection 12(1)
(b) the disclosure of which could reasonably be
expected to be injurious to the enforcement of any law of Canada or a
province or the conduct of lawful investigations, including, without
restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential
source of information, or
(iii) that was obtained or prepared in the course of an
investigation; or
|
22. (1) Le
responsable d’une institution fédérale
peut refuser la
communication des renseignements
personnels demandés
en vertu du paragraphe 12(1) :
b) soit dont
la divulgation risquerait vraisemblablement
de nuire aux
activités destinées
à faire respecter
les lois fédérales ou provinciales ou au déroulement d’enquêtes
licites, notamment :
(i) des
renseignements relatifs à l’existence ou à la nature d’une enquête
déterminée,
(ii) des renseignements
qui permettraient de remonter à une source de renseignements
confidentielle,
(iii) des
renseignements obtenus ou préparés au cours d’une enquête;
.
|
[35]
Subsection
22(3) defines the term “investigation”:
|
(3) For the purposes of paragraph (1)(b), “investigation”
means an investigation that
(a) pertains to the administration or enforcement
of an Act of Parliament;
(b) is authorized by or pursuant to an Act of Parliament;
or
(c) is within a class of investigations specified in
the regulations.
|
(3) Pour
l’application de l’alinéa (1)b), « enquête » s’entend de celle qui :
a) se
rapporte à l’application d’une loi fédérale;
b) est autorisée sous le régime d’une loi fédérale;
c) fait
partie d’une catégorie d’enquêtes précisée dans les règlements.
|
[36]
Section
29 of the Act allows individuals or their representatives to file a complaint
with the Commissioner if their request for disclosure has been refused:
|
29. (1) Subject to this Act, the Privacy Commissioner shall
receive and investigate complaints
(d) from individuals who have requested access to
personal information in respect of which a time limit has been extended
pursuant to section 15 where they consider the extension unreasonable;
[…]
(2) Nothing in this Act precludes the Privacy Commissioner
from receiving and investigating complaints of a nature described in
subsection (1) that are submitted by a person authorized
by the complainant to act on behalf of the complainant, and a reference to a
complainant in any other section includes a reference to a person so
authorized.
|
29. (1) Sous
réserve des autres dispositions de la présente loi, le Commissaire à la
protection
de la vie privée
reçoit les plaintes et fait enquête sur les plaintes :
d)
déposées par des individus qui ont demandé des renseignements personnels dont
les délais de communication ont été prorogés en vertu de l’article 15 et qui
considèrent la prorogation comme abusive;
[…]
(2) Le Commissaire à
la protection de la vie privée peut
recevoir les
plaintes visées au paragraphe (1) par l’intermédiaire d’un représentant du
plaignant. Dans les autres articles de la présente loi, les dispositions qui
concernent le plaignant concernent également son représentant.
|
[37]
Section
41 of the Act gives individuals or their representatives who have been refused
access to their personal records a right to apply to the Federal Court for a
review of the matter following an investigation and report by the Commissioner:
|
41. Any individual who has been refused access to personal
information requested under subsection 12(1) may, if a complaint has been made
to the Privacy Commissioner in respect of the refusal, apply to the Court for
a review of the matter within forty-five days after the time the results of
an investigation of the complaint
by the Privacy Commissioner are reported to the
complainant under subsection 35(2) or within such further time as the Court
may, either before or after the expiration of those forty- five days, fix or
allow.
|
41. L’individu
qui s’est vu refuser communication
de renseignements
personnels demandés en vertu du paragraphe 12(1) et qui a déposé ou fait
déposer une plainte à ce sujet devant le Commissaire à la protection de la
vie privée peut, dans un délai de quarante-cinq jours suivant le compte rendu
du Commissaire prévu au paragraphe 35(2), exercer un recours en révision de
la décision de refus devant la Cour. La Cour peut, avant ou après
l’expiration du délai, le proroger ou en autoriser la prorogation.
|
[38]
Section
47 of the Act places the burden of justifying refusal to grant access to the
applicant’s personal information upon the government institution:
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47. In any proceedings before the Court arising from an
application under section 41, 42 or 43, the burden of establishing that the
head of a government institution is authorized to refuse to disclose personal
information requested under subsection 12(1) or that a file should be
included in a personal information bank designated as an exempt bank under
section 18 shall be on the government institution concerned.
|
47. Dans les
procédures découlant des recours prévus aux articles 41, 42 ou 43, la charge d’établir
le bien-fondé du refus de communication de renseignements personnels ou le
bienfondé du versement de certains dossiers dans un fichier inconsultable
classé comme tel en vertu de l’article 18 incombe à l’institution fédérale concernée.
|
[39]
Section
48 and section 49 of the Act delineate the remedial powers of the Federal Court
under the Act:
|
48. Where the head of a government institution refuses to
disclose personal information requested under subsection 12(1) on the basis
of a provision of this Act not referred to in section 49, the Court shall, if
it determines that the head of the institution is not authorized under this
Act to refuse to disclose the personal information, order the head of the
institution to disclose the personal information, subject to such
conditions as the Court deems appropriate, to the
individual who requested access thereto, or shall make such other order as
the Court deems appropriate.
49. Where the head of a government institution refuses to
disclose personal information requested under subsection 12(1) on the basis
of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a),
the Court shall, if it determines that the head of the institution did not
have reasonable grounds on which to refuse to disclose the personal information,
order the head of the institution to disclose the personal information,
subject to such conditions as the Court deems
appropriate, to the individual who requested access thereto,
or shall make such other order as the Court deems appropriate.
|
48. La Cour,
dans les cas où elle conclut au bon droit de l’individu qui a exercé un
recours en révision d’une décision de refus de communication de
renseignements personnels fondée sur des dispositions de la présente loi
autres que celles mentionnées à l’article 49, ordonne, aux conditions qu’elle
juge indiquées, au responsable de l’institution fédérale dont relèvent les
renseignements d’en donner communication à l’individu; la Cour rend une autre
ordonnance si elle l’estime indiqué.
49. Dans les cas
où le refus de communication des renseignements personnels s’appuyait sur les
articles 20 ou 21 ou sur les alinéas 22(1)b) ou c) ou 24a),
la Cour, si elle conclut que le refus n’était pas fondé sur des motifs
raisonnables, ordonne, aux conditions qu’elle juge indiquées, au responsable
de l’institution fédérale dont relèvent les renseignements d’en donner communication
à l’individu qui avait fait la
demande; la Cour
rend une autre ordonnance si elle l’estime indiqué.
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[40]
Section 52 of the Act
grants the Court discretion to awards the costs of all judicial proceedings
following the event or to the unsuccessful applicant if an important principle
was raised:
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52. (1) Subject to subsection (2), the costs of and
incidental to all proceedings in the Court
under this Act shall be in the discretion of the Court
and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application
for review under section 41 or 42
has raised an important new principle in relation to this
Act, the Court shall order that costs be awarded to the applicant even if the
applicant has not been successful in the result.
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52. (1) Sous
réserve du paragraphe (2), les frais et dépens sont laissés à l’appréciation
de la Cour et suivent, sauf ordonnance contraire de la Cour, le sort du
principal.
(2) Dans les cas où
elle estime que l’objet du recours a soulevé un principe important et nouveau
quant à la présente loi, la Cour accorde les frais et dépens à la personne
qui a exercé le recours devant elle, même si cette personne a été déboutée de
son recours.
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[41]
Section 10 of the Privacy Act
Regulations (“Privacy Regulations”), SOR/83-508 sets out who may
exercise the rights to access under Act:
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10. The rights or actions provided for under the Act and
these Regulations may be exercised or performed
[…]
(b) on behalf of a deceased person by a person
authorized
by or pursuant to the law of Canada or a province to
administer the estate of that person, but only for the purpose of such
administration; and
(c) on behalf of any other individual by any
person
authorized in writing to do so by the individual.
|
10. Les droits
ou recours prévus par la Loi et le présent
règlement peuvent
être exercés,
[…]
b) au nom
d’une personne décédée, par une personne
autorisée en vertu
d’une loi fédérale ou provinciale à
gérer la succession
de cette personne, mais aux seules
fins de gérer la
succession; et
c) au nom
de tout autre individu, par une personne
ayant reçu à cette
fin une autorisation écrite de cet individu.
|
ISSUES
[42]
The
applicant raises the following issues:
a. Does the
death of Ms. Ashley Smith vitiate her consent and authorization for the
applicant to have access to her records?
b. Can the
respondent rely on the RCMP criminal investigation to exempt the personal
records from disclosure under subsection 22(1)(b) of the Act?
STANDARD OF REVIEW
[43]
In Dunsmuir
v. New
Brunswick, 2008
SCC 9, 372
N.R. 1, the Supreme Court of Canada held at paragraph 62 that the first step in
conducting a standard of review analysis is to "ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
(deference) to be accorded with regard to a particular category of
question": see also Khosa v. Canada
(MCI), 2009
SCC 12, per Justice Binnie at paragraph 53.
[44]
Applications under section 41 are for review of a decision
not to disclose
personal information. While seeking an opinion from the Privacy
Commissioner is a prerequisite to filing an application under
section 41, the Commissioner's determination is not the subject of the review:
see my decision in Cemerlic v. Canada (Solicitor General), 2003 FCT 133,
at para. 7. Despite the non-binding nature of the Commissioner’s report, this
Court has held that its opinions are an important consideration in the
proceedings under section 41 of the Act: Richards v. Canada (Minister of National
Revenue),
2003 FC 1450, per Justice Lemieux at paragraph 9; Gordon v. Canada (Minister
of Health), 2008 FC 258, per Justice Gibson at paragraph 20; Canada
(Attorney General) v. Canada
(Information Commissioner) (2004), 32 C.P.R. (4th) 464 (F.C.), per
Justice Dawson at paragraph 84.
[45]
In
Savard v. Canada Post Corp., 2008 FC 671, Justice Blanchard set out at
paragraph 17 the standard of review in an application under section 41 of the
Act:
¶17 In this matter, the
Court is invited to review a decision made by the respondent on an issue of
disclosure of personal information under the PA. It is a two-step analysis (Kelly
v.Canada (Solicitor General), [1992] F.C.J. No. 302 (Lexis) at paragraph 5). The
first is to determine whether the statement of mailing is in fact the
applicant's "personal information" within the meaning of paragraphs
3(g) and (h)
of the PA. The goal is to determine whether the information at issue falls
under a legal exception (Blank v. Canada
(Minister of the Environment), 2006 FC 1253, [2006] F.C.J. No. 1635 (Lexis), at paragraph 26).
The appropriate standard at this stage is that of correctness (Elomari
v. Canada (Space
Agency), 2006 FC 863 at paragraph 19; and Thurlow, supra at paragraph 28). If this
first question is answered in the affirmative, we then move on to the second
step. This step involves determining whether the discretionary power exercised
by the respondent in regard to the refusal to disclose the statement of mailing
was reasonable. On this issue, it should be noted that the PA does not contain
any privative clause, that the decision-maker does not have special expertise
in the matter and that the nature of the question is essentially discretionary.
Taking these factors into account, it is my opinion that the appropriate
standard at this stage is that of reasonableness.
(See also Blank v. Canada (Minister of
Justice),
2009 FC 1221 per Justice de Montigny at paragraph 27).
[46]
The
parties and the Court are in agreement that Ms. Smith’s records are “personal
information” and thus governed by the Act. The first issue in this application is
whether
Ms. Smith’s consent to the disclosure of
her personal information was vitiated by her death. In other words, the
question is whether the respondent made the correct decision in law in
determining that Ms. Smith’s records are wholly exempted by reason of her
vitiated consent. This issue is determinable on a correctness standard. The
second issue, whether section 22(1)(b) of the Act operates to exempt Ms.
Smith’s records, if her consent is not vitiated, is also reviewable on a
correctness standard.
BURDEN OF PROOF
[47]
Section
48 of the Act places the burden of justifying an exemption under the Act on the
respondent government organization. Therefore, the respondent must satisfy the
Court that, on a balance of probabilities, that the CSC’s decision to refuse to
disclose Ms. Smith’s personal records was correct: see my decision in Canada (Information
Commissioner) v. Canada (Minister of Industry), 2006 FC
132, at paragraph 25.
ANALYSIS
The importance of
privacy in a free and democratic society
[48]
Privacy
is a fundamental right in a free and democratic society. The Canadian Charter
of Rights and Freedoms protects a person’s privacy from unreasonable search and
seizure by government authorities. Government cannot interfere with the privacy
of an individual unless there are reasonable grounds to believe that that
person has committed an offence, and it is necessary for the government to
enter the private domain of that person. As well as this privacy right of an
individual, the Privacy Act sets out two quasi-constitutional rights of
privacy for an individual:
a. it protects
personal information held by government institutions from disclosure to any third
parties. This protects the individual’s privacy; and,
b. it provides
individuals with a right to access their personal information which any
government institution holds about them. This ensures that an individual knows
what information the government has about them. It is in this context that
Ashley Smith consented and authorized the Correctional Services of Canada to
disclose to the Canadian Association of Elizabeth Fry Society enumerated
personal information about Ashley Smith.
[49]
The
purpose of the Privacy Act was set out by the Supreme Court of Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2. S.C.R. 773, per Justice Gonthier at
paragraphs 24-25:
¶24 The Privacy Act is also fundamental in the Canadian legal
system. It has two major objectives. Its aims are, first, to protect personal
information held by government institutions, and second, to provide individuals
with a right of access to personal information about themselves (s. 2)…
¶25 The Privacy
Act is a reminder of the extent to which the protection of privacy is necessary
to the preservation of a free and democratic society…
[50]
Any
exceptions to the right of access must be interpreted narrowly with a view to
the purpose of the Act: Davidson v. Canada (Solicitor
General),
[1989] 2 F.C. 341 (F.C.A.), per Justice MacGuigan at paragraph 17.
[51]
Privacy
is a fundamental right in our democracy and exemptions from that right are to
be strictly construed against the government institution. There is a reverse
onus on the government to show that the personal information sought by an
individual is not subject to disclosure under the Privacy Act.
Issue No. 1: Does the
death of Ms. Ashley Smith vitiate her consent and authorization for the
applicant to have access to her records?
[52]
The
respondent submits that:
a. The applicant
no longer has standing to make a request for disclosure pursuant to section 12
of the Act on behalf of Ms. Smith because her consent has been vitiated by her
death;
b. Personal
information of a deceased individual is protected for a minimum of 20 years and
can only be released for the purpose of administrating their estate, absent
exceptional circumstances; and
c. The applicant
had a valid agency relationship on behalf of Ms. Smith however that relationship
ended upon Ms. Smith’s death.
The respondent adduced no evidence that
explains the CSC’s reasoning at the time it made its decision to refuse the
applicant access on the basis of Ms. Smith’s passing. Its submissions on this
issue are made de novo before the Court.
[53]
The
respondent submits that the applicant has no standing to bring the application
at bar because Ms. Smith, the applicant’s principal, died on October 19, 2007
and the consent for disclosure and authorization for the applicant to act on
its behalf has been automatically revoked. It further submits that any agency
relationship between Ms. Smith and the applicant ended upon her death.
[54]
The
Court finds that the law of agency or standing has no application to the facts
at bar. The Privacy Act, similar to the Access to Information Act,
R.S.C. 1985, c. A-1, is a complete code of
procedure: St-Onge v. Canada (1995), 62
C.P.R. (3d) 303 (F.C.A.), per Justice Décary at paragraph 3; Information
Commissioner v. Commissioner of the RCMP, 2003 SCC 8, [2003] 2 S.C.R. 66,
per Justice Gonthier at paragraph 22 [“Information Commissioner v.
Commissioner of the RCMP”]. This application was properly brought by the
applicant before the Court pursuant to section 41 of the Act.
[55]
Section 41 of the Act allows “any individual” or
“complainant” who has been refused access under this Act, to apply to the Court
following receipt of the Commissioner’s report. Section 41 encompasses by
reference subsection 29(2), which allows anyone who is authorized to act on
behalf of the individual whose records have been requested to complain to the
Commissioner. This section is broad enough to encompass the applicant since the
applicant was still clothed with Ms. Smith’s authorization to act at the time
the initial request was made on June 18, 2007, at the time the respondent was
deemed to have refused the request for disclosure on August 17, 2007, at the
time CSC explicitly stated its refusal on May 26, 2008, and at the time the
applicant filed its complaint with the Commissioner on August 22, 2008.
What is the date of the
decision which is the subject of this application for judicial review
[56]
There
are three possible dates. First, on August 17, 2007 the head of the
Correctional Service of Canada, the respondent, is deemed for the purposes of
the Privacy Act, under subsection 16(3) of the Act, to have refused to
give access to the applicant the personal records of Ms. Smith as requested by
Ms. Smith and consented to by Ms. Smith. Of course, this date is before Ms.
Smith committed suicide so that the date of death of Ms. Smith had not yet
happened, and the respondent cannot argue that her death vitiated her consent
at that time.
[57]
Second,
on May 26, 2008, the Canadian Correctional Service explicitly for the first
time refused to provide the applicant with the personal documents of Ms. Smith for
the reason, which was not explained, that the information has been exempted
pursuant to section 22 of the Privacy Act. (The other reason stated in
the letter was section 26 of the Privacy Act, which the respondent no
longer relies upon). Accordingly, in the letter dated May 26, 2008, the
respondent did not state that the death of Ms. Smith vitiated the consent.
[58]
Third,
the other possible date is the date of the hearing before the Court, March 29,
2010. On this date, the Court reviews de novo the correctness of the
decision to deny the applicant access on the facts before the Court on this
date.
Consent not vitiated by
death
[59]
Regardless
of the relevant date of the decision which is being reviewed by the Court, the
Court concludes that the applicant has standing to bring this application. On
August 17, 2007, Ms. Smith had not yet died, and the applicant clearly had
standing. On May 26, 2008, the Court is satisfied that the consent was not
intended to lapse or be of no force and effect because Ms. Smith had died. That
consent had a valid purpose when it was given by Ms. Smith on June 18, 2007,
and that purpose continued after Ms. Smith’s death. That purpose was to explore
how the penitentiary authorities were treating Ms. Smith. While that
exploration will be too late for Ms. Smith to benefit from it, that exploration
may assist the applicant learn how to deal with other female prisoners like Ms.
Smith in the future.
[60]
The
respondent advised the Court that this issue arises for the first time before
this Court. I conclude that the Act intended that an individual’s right to
grant access to their personal information survives their death.
[61]
The
authorities on point are the Commissioner’s report in the present case and an
administrative decision by the Ontario Information and Privacy Commissioner
(OIPC) decided under the Municipal Freedom of Information and Protection of
Privacy Act (MFIPDA), R.S.O. 1990, c. M-56: Order M-1048, [1997]
O.I.P.C. No. 348 [“M-1048”]. In both cases the Commissioners held that
the statutes intended that a deceased person’s consent for disclosure survive
their death. In M-1048, the OIPC held that 54(a) of the MFIPDA, which is
nearly similar to subsection 10(b) of the Privacy Regulations, was not
an exemption, but rather an independent right of access granted to a deceased
person’s estate: M-1048, supra, at paragraphs 9-11.
[62]
The
respondent bases its argument on the same grounds as the respondent in M-1048.
The respondent relies on the equivalent Federal provision found at subsection
10(b) of the Privacy Regulations to exempt Ms. Smith’s records except
“for the purpose” of administering her estate.
[63]
In
my view the reasons of the OIPC in M-1048 are equally applicable in the
case at bar. Subsection 10(b) of the Privacy Regulations does not bar
the release of any deceased person’s personal information, except “for the
purpose of administrating their estate”. This subsection is simply an avenue of
access to a deceased person’s personal information by the deceased person’s
estate without any means of ascertaining consent. Section 10 of the Privacy
Regulations provides for three avenues of access to another person’s
personal information:
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10. The rights or actions provided for under the Act and
these Regulations may be exercised or performed
(a) on behalf of a minor or an incompetent person
by a person authorized by or pursuant to the law of Canada
or a province to administer the affairs or estate of that
person;
(b) on behalf of a deceased person by a person
authorized
by or pursuant to the law of Canada or a province to
administer the estate of that person, but only for the purpose of such
administration; and
(c) on behalf of any other individual by any
person
authorized in writing to do so by the individual.
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10. Les
droits ou recours prévus par la Loi et le présent
règlement peuvent
être exercés,
a) au nom
d’un mineur ou d’un incapable, par une personne autorisée en vertu d’une loi
fédérale ou provinciale à gérer les affaires ou les biens de celui-ci;
b) au nom
d’une personne décédée, par une personne
autorisée en vertu
d’une loi fédérale ou provinciale à
gérer la succession
de cette personne, mais aux seules
fins de gérer la
succession; et
c) au nom
de tout autre individu, par une personne
ayant reçu à cette
fin une autorisation écrite de cet individu.
|
Subsections 10(a) and (b) are very different
from subsection 10(c). The first two subsections grant access without consent
to another individual’s personal information for limited purpose. The third
subsection grants access to any person authorized in writing for any purpose.
Subsection 10(c) is in my view broad enough to encompass authorization by a
person who is no longer alive. As long as the consent is in writing, the
requesting party can rely on subsection 10(c) regardless of the individual’s
living status.
[64]
Ms.
Smith’s consent is valid despite the lapse of time. The respondent is deemed to
have refused her validly consented and authorized request on August 17, 2007.
The refusal to provide access is a continuous refusal which is not interrupted
by the act of complaining to the Commissioner and the subsequent issuance of a
report: Moar v. Canada (Privacy Commissioner), 1992 1 F.C.
501, 45 F.T.R 57, per Justice Reed.
[65]
As
explained above, subsection 16(3) of the Privacy Act deems the
respondent to have refused the request for disclosure following the expiry of
the time limits under the Act. In this case, the expiry of the time limit took
place on August 17, 2007, and for the purpose of this judicial review, the
Court is satisfied that this is the key date under the law upon which the Court
should review the decision of the respondent to refuse access to the applicant.
At this date, no death had occurred and there can be no argument that the death
vitiated the consent.
Respondent breached
sections 14 and 15 of the Act
[66]
The
respondent’s failure to provide the personal information to the applicant
within the 30-day extension is a breach of sections 14 and 15 of the Act. Section 14 of the Act provides that the requester shall be given
access to his or her personal information within 30 days. Section 15 of the Act
provides that the government institution may extend this time limit to a
maximum of 30 days if meeting the original time limit would unreasonably
interfere with the operations of the government institution. It is ironic
and illogical that the respondent would, delay the disclosure of these personal
records, and then argue that the consent and authorization for the disclosure
is vitiated upon the suicide of Ms. Smith 62 days after the personal
information was legally required by the respondent to be produced to the
applicant.
[67]
The
respondent submits that these delays in production of personal information
“happen all the time”. The Court understands that the volume of such requests
may overwhelm the limited resources given by the government to the respondent
for fulfilling such requests. At the same time, the fact that the delay is
normal does not excuse the respondent from being in breach of the law by not
fulfilling the request within the prescribed time period under the Privacy
Act.
Issue No. 2: Can the respondent rely on
the RCMP criminal investigation to exempt the personal records from disclosure
under subsection 22(1)(b) of the Act?
[68]
The
respondent submits that the fact that there was at one time an ongoing
criminal investigation is sufficient to meet the exemption under subsection
22(1)(b) of the Act and exclude the Ms. Smith’s records in their entirety. There
is no basis in law for this submission.
[69]
Of
course, there was no investigation in place on August 17, 2007, the date that
the respondent is deemed to have refused the applicant access to the personal
information of Ms. Smith under sections 14 and 15 of the Act.
[70]
In
the alternative, that the respondent’s decision is that communicated to the
applicant by letter dated May 26, 2008, it is clear that this short letter
provides no explanation, does not provide sufficient evidence to support a
subsection 22(1)(b) exemption, does not set out how the disclosure of the
personal information could reasonably have caused injury to the criminal
investigation, and provides no rationale for the exemption. This letter does
not provide a valid basis to claim the exemption because it does not provide
concrete reasons which meet the requirements imposed by subsection 22(1)(b),
does not provide what is the reasonable expectation of injury from the
disclosure, does not provide any specific facts to establish any likelihood of
injury to the investigation, does not provide what would be the harmful
consequences of disclosing the personal information. Moreover, after this case
was commenced, when the witness for the respondent filed his affidavit, the
investigation had been concluded and this basis for the exemption had passed. When
the affidavit was sworn, the deponent did not state that the investigation was
over, and continued to suggest that this exemption was still valid.
[71]
The Supreme Court of Canada
has previously set out the proper application of the exemption found in
subsection 22(1)(b) of the Act in Lavigne, supra, at paragraphs
60-61:
¶60 As I have said, s. 22(1)(b) is not an absolute exemption
clause. The decision of the Commissioner of
Official Languages to refuse disclosure under s. 22(1)(b) must be based on concrete reasons that meet the requirements imposed by that
paragraph. Parliament has provided
that
there must be a reasonable expectation of injury in order to refuse to disclose
information under that provision. In
addition, s. 47 of the Privacy Act provides that the burden of establishing
that the discretion was
properly exercised is on the government institution. If the government
institution is unable to show that
its refusal was based on reasonable grounds, the Federal Court may then vary that decision and authorize access to the personal
information (s. 49)…
¶61 … The Commissioner's decision
must be based on real grounds that are connected to the specific case in issue… The appellant does not rely on any specific fact to
establish the likelihood of injury. The fact that there is no detailed evidence
makes the analysis almost theoretical. Rather than showing the harmful
consequences of disclosing the notes of the interview with Ms. Dubé on future
investigations, Mr. Langelier tried to prove, generally, that if investigations
were not confidential this could compromise their conduct, without establishing
specific circumstances from which it could reasonably be concluded that
disclosure could be expected to be injurious. There are cases in which
disclosure of the personal information requested could reasonably be expected
to be injurious to the conduct of investigations, and consequently the
information could be kept private. There must nevertheless be evidence from
which this can reasonably be concluded…
[72]
Lavingne, supra, affirmed the prior case law of this Court, which
held that in order to justify the refusal to disclose information pursuant to subsection
22(1)(b) of the Act, the head of the government institution must demonstrate
that there is a reasonable expectation of probable harm from disclosure to the
conduct of lawful investigations: Canada (Information Commissioner) v.
Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140, per Justice
Richard (as he then was) at paragraph 37. As Justice John Richard held,
there must be tangible evidence of harm from the disclosure of the personal
information. In the case at bar, there is none.
[73]
In
Kaizer v. Minister of National Revenue, [1995] F.C.J. No. 926 (QL),
Justice Rothstein (as he then was) set out at paragraphs 2 and 3 of his reasons
the evidentiary burden required to justify an exception under subsection
22(1)(b) of the Act:
¶2 …The
Court must be given an explanation of how or why the harm alleged might
reasonably be expected to result from disclosure of the specific information.
This is not a case where harm from disclosure is self-evident. I have been
asked to infer that harm will result if disclosure is allowed. In order to make
such an inference, explanations provided by the Minister must clearly
demonstrate a linkage between disclosure and the harm alleged so as to justify confidentiality.
¶3 In the present case,
the deponent for the Minister of National Revenue sets forth narratives with
respect to the specific paragraphs and pages which are sought to be kept
confidential. However, an explanation such as "disclosure of this
information would prejudice the integrity of the investigation and therefore be
injurious to the enforcement of the Income Tax Act" is insufficient. That
is not an explanation but only a conclusion. Indeed, there may be reasons why
disclosure would prejudice the integrity of an investigation, but an
explanation has to be given as to why that is so. No such explanation has been
given…
[74]
The
case law is clear: the Court will not infer injurious harm on a theoretical
basis from the mere presence of an investigation, whether past or present,
without evidence of a nexus between the requested disclosure and a reasonable
expectation of probable harm.
[75]
The
evidentiary deficiencies in the respondent’s case are sufficient to dismiss
subsection 22(1)(b) as a valid exemption and to order the full disclosure of
the requested documents. The Court nevertheless considers it worthwhile to
provide some guidance with respect to the particular facts in this case.
[76]
At
the time the request was deemed refused, on August 17, 2007, there was no
investigation. Subsection 22(1)(b) could not have applied. The Court was asked
to take judicial notice of the fact that the investigation around May 26, 2008
into Ms. Smith’s death led to criminal charges against four CSC employees. The
respondent submitted that the CSC’s decision to exempt Ms. Smith’s records from
disclosure were therefore reasonable at the time. The Court cannot agree with
this submission. The investigation did not relate to the information in the
requested records, which predated Ms. Smith’s death by a few months.
[77]
Lastly,
this Court is carrying out a review of the matter de novo. It is clear
that now there are no ongoing investigations or criminal proceedings where
disclosure of the requested materials could cause injurious harm.
CONCLUSION
[78]
The
Court will therefore order the disclosure of Ms. Smith’s personal records as
requested to the applicant. The personal records of Ms. Smith, as contained in
the confidential Affidavit of Mr. Fabiano, shall be provided forthwith to the
applicant.
COSTS
[79]
The
respondent submits that this was an unusually complex piece of litigation
involving important new principles of law in relation to the Privacy Act,
and that Parliament contemplated in section 52 of the Act that the applicant
ought be awarded its legal costs even if the applicant is not successful. The
respondent supports the award of costs to the applicant on this basis, and
agrees that the applicant ought be entitled to full reimbursement of its legal
costs.
[80]
In
this case the applicant has been successful. The arguments raised by the
respondent in opposing this litigation, and in denying the applicant access to
the personal records, were not well-founded. The respondent caused delay and
legal expense for the applicant. Moreover, the respondent produced an affiant
with little knowledge of the case who was not able to answer questions on
cross-examination. This unnecessarily increased the costs.
[81]
The
Court considers it just and equitable that the applicant have its costs on either
a solicitor and client basis or at the highest number of units under Column III
of Tariff B, including the counsel fee at the hearing for the second counsel at
50% of the counsel fee at the hearing for the first counsel under Column III.
At the hearing, it was evident that the applicant received some of its legal
services on a pro bono basis, and the respondent ought not to benefit
from this pro bono arrangement. Accordingly, the applicant is entitled
to its legal costs calculated on either a solicitor and client basis, or at the
highest number of units under Column III of Tariff B, whichever is greater.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed with costs either on a solicitor and
client basis, or under Column III of Tariff B of the Federal Courts Rules,
1998, whichever is higher as explained herein; and
2.
The
personal records of Ms. Ashley Smith contained in the confidential affidavit of
Mr. Fabiano filed with the Court shall be disclosed to the applicant forthwith.
“Michael
A. Kelen”
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