Date: 20091002
Docket: T-680-08
Citation: 2009 FC 1000
Ottawa, Ontario, October 2, 2009
PRESENT: THE CHIEF JUSTICE
BETWEEN:
NEIL KITSON
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
AS REPRESENTED BY: THE MINISTER OF
NATIONAL DEFENCE
and THE MINISTER OF JUSTICE
AND ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant’s access to information request was reasonably
denied. These reasons also explain why certain procedures mandated in the
access legislation unjustifiably offend the open court principle.
Background
[2] In December 2006, the
applicant made a request to the Department of National Defence (National
Defence) under the Access to Information Act (the Act), 1985 R.S.C., c.
A-1, for information relating to the number of prisoners taken by Canadian
troops in Afghanistan, the prisoners’ physical location after capture and their
current location. It is acknowledged that the information sought relates to the
period of September 2006 during Operation Medusa.
[3] In September 2007,
the applicant received seventy-three expurgated sheets in response to his
request. The redactions were made under s. 15 of the Act. Other redactions
concerning personal information are not of concern to the applicant.
[4] In March 2008, in
response to a complaint made by the applicant concerning the redactions, the
Office of the Information Commissioner concluded that “… the information, which
continues to be withheld under s. 15(1), if disclosed, could reasonably be
expected to be injurious to the defence of Canada or its allies.” Accordingly, the Office of the Information Commissioner determined
that the exemption provision was properly invoked.
[5] The applicant then
launched this application for judicial review of the discretion exercised by National
Defence concerning the redactions it made under s. 15 of the Act (the
information in issue).
The Open Court Principle: “Reading Down” s. 52(2)
[6] Court proceedings are
presumptively to be heard in public. This open court principle also applies to
judicial reviews in the Federal Court concerning refusals to disclose
information sought under the Act. See, for example, Hunter v. Canada (Consumer and Corporate Affairs), [1991] F.C.J. No. 245 (C.A.) at paragraphs 24-26 and 43-46.
[7] Where the s. 15
exemption is in play, as in this proceeding, s. 52(2) envisages that the
hearing shall be in private and, at the request of the government institution,
shall be heard and determined in the National Capital Region.
[8] Section 52(3) affords
the right to the government institution to make representations in the absence
of the private sector party.
[9] Sections 52(2) and (3) read as follows:
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(2)
An application referred to in subsection (1) or an appeal brought in respect
of such application shall
(a)
be heard in camera; and
(b)
on the request of the head of the government institution concerned, be heard
and determined in the National Capital Region described in the schedule to
the National Capital Act.
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(2) Les recours visés au paragraphe (1)
font, en premier ressort ou en appel, l’objet d’une audition à huis clos;
celle-ci a lieu dans la région de la capitale nationale définie à l’annexe de
la Loi sur la capitale nationale si le responsable de l’institution
fédérale concernée le demande.
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(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 concerned shall, on the request of the head of the institution,
be given the opportunity to make representations ex parte.
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(3) Le responsable de l’institution
fédérale concernée a, au cours des auditions, en première instance ou en
appel et sur demande, le droit de présenter des arguments en l’absence d’une
autre partie.
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[10] On March 5, 2008, pursuant
to s. 52(2) and (3), a hearing took place in private and in the absence of the
applicant to review the respondents’ confidential affidavits that had been
filed to support the non-disclosure of the redacted information. This closed
hearing took place in the National Capital Region on the request of counsel for
National Defence.
[11] During the private
hearing, the Court examined the respondents’ affiants to determine which
portions of the respondents’ materials could be delivered to the applicant and
to test the merits of the respondents’ non-disclosure of the information in
issue.
[12] As a result of the
private hearing, the respondents agreed to serve on the applicant substantial
portions of their affidavits and memorandum of law originally filed confidentially.
These documents had not previously been delivered to the applicant.
[13] One of the respondents’
two affiants was a deputy director in National Defence responsible for responding
to access to information requests. All of her affidavit was delivered to the
applicant with the exception of the single paragraph which made the redacted
information part of the court record: “13. Attached as Exhibit “A” to this
Affidavit is a copy of the records at issue in this Application filed
confidentially, pursuant to the November 12, 2008 Order of Prothonotary Roger
R. Lafrenière.”
[14] Similarly, eight of the
thirteen paragraphs filed by the affiant on behalf of the Information Support
Team in the Strategic Joint Staff at National Defence Headquarters (the second
affidavit) were served on the applicant after the private hearing. The Court is
satisfied that the remaining five paragraphs were appropriately filed without
disclosure to the applicant.
[15] Also, the respondents
agreed to serve on the applicant their memorandum of fact and law, save for the
five paragraphs which correspond to the confidential portions of the second
affidavit.
[16] In short, prior to the
hearing of April 20, 2009, the applicant had received much of the material originally
filed in private, with the exception of the redacted information in issue and
the few paragraphs noted above. The information disclosed to the applicant was
placed on the court file.
[17] The purpose of the
hearing of April 20, 2009 was to receive the oral submissions of both parties. It
took place in Vancouver, B.C. where the applicant
resides. No request was made that the hearing be conducted in private. Nor did
the Court direct that the hearing take place in private. No specific mention
was made of the information in issue during this public hearing.
[18] Section 52(2) of the
access legislation is identical in its wording, except for its numeration, to
s. 51(2) of the Privacy Act, R.S.C. 1985, c. P. 21.
[19] Section 51(2) of the Privacy
Act was considered in Ruby v. Canada (Solicitor General), [2002] 4
S.C.R. 3, 2002 SCC 75, where the Supreme Court of Canada made it clear, at paragraph
58, that it is not “… open to a judge to conduct a hearing in open court in
direct contradiction to the requirements of the statute, … . Unless the
mandatory requirement is found to be unconstitutional and the section is “read
down” as a constitutional remedy, it cannot otherwise be interpreted to bypass
its mandatory nature.”
[20] It was only after the
hearing of April 20, 2009, when the matter was under reserve, that it became
apparent to this judge that the Court’s encouragement of the openness principle
was inconsistent with the mandatory provisions of s. 52(2)(a), as interpreted
in Ruby. According to Ruby, the hearing of April 20, 2009 should
have been in private, even though the applicant was present and the information
in issue was not mentioned.
[21] The Court then
communicated with the parties to determine how best to resolve this procedural
oversight. The respondents’ concern, as I understood their initial reaction,
was that an attempt to correct the situation retroactively would be an obiter
exercise. It was better, in my view, to consider the legality of s. 52 of
the access legislation now, in the exceptional circumstances of Ruby
having resolved other identical provisions.
[22] The applicant agreed to
serve and file a notice of constitutional question pursuant to s. 57 of the Federal
Courts Act that he intended to question the constitutional validity of ss.
52(2)(a) and 52(2)(b) of the Access to Information Act. This was done.
Subsequently, the parties filed their memoranda of law addressing the
constitutional issue. The Court waived the necessity to file a notice of motion
under Rule 359.
[23] In Ruby, the
Supreme Court of Canada read down s. 51(2)(a) of the Privacy Act to make
the provision consistent with the open court principle (at paragraphs 59-60):
… the
requirement that the entire hearing of a s. 41 application or appeal therefrom be heard in
camera, as is required by s. 51(2)(a), is too stringent. … [t]he
section is overbroad in closing the court to the public even where no concern
exists to justify such a departure from the general principle of open courts.
…
… The appropriate remedy
is therefore to read down s. 51(2)(a) so that it applies only to the ex
parte submissions mandated by s. 51(3). A reviewing court retains the
discretion, pursuant to s. 46, to conduct the remainder of the hearing or any
portion thereof, either in public, or in camera, or in camera and
ex parte.
[24] The parties acknowledge
that the language of s. 51(2)(a) of the Privacy Act is identical to that
of s. 52(2)(a) of the Access to Information Act. No other provision of
the access legislation distinguishes the legal situation addressed in Ruby.
[25] Accordingly,
the appropriate remedy here is to read down s. 52(2)(a) of the Access to
information Act so that it applies only to the ex parte submissions
mandated by s. 52(3).
[26] Similarly, although the
issue was not addressed in Ruby, I am satisfied that s. 52(2)(b) of the
access legislation should also be read down to apply only to the ex parte
submissions mandated by s. 52(3). This reading down is not intended to affect
in any manner the right of the head of the government institution to request
that the ex parte hearings shall be heard and determined in the National
Capital Region.
Analysis
[27] According to s. 15(1)
of the Act, National Defence had the discretion to refuse the applicant’s
request for “… information the disclosure of which could reasonably be expected
to be injurious to … the defence of Canada or any state allied or associated
with Canada or the detection, prevention or suppression of subversive of
hostile activities, … .”
[28] In this case, the
information in issue is contained in Canadian Forces (CF) Significant Incident
Reports (SIR) generated by deployed Canadian force units and elements in Afghanistan during the period July 4 to November 17,
2006.
[29] The purpose of the SIR
reports is to communicate information regarding significant incidents through
the CF chain of command to the Chief of the Defence Staff and Deputy Minister
of National Defence.
[30] Concerning information
relating to the detention of Afghan nationals, the issue of interest to the
applicant, the respondents assert that the SIR’s include the following tactical
information:
·
the name of the detainee and temporary identification
number;
·
the name and decryption of the operation;
·
the location, date, and time of capture;
·
the description of the circumstances surrounding the
capture;
·
the physical state of the detainee;
·
the location of the detainee at the time of reporting;
·
the preliminary intent concerning the detainee; and
·
the status of detainees every 24 hours or upon their
release or transfer.
[31] In this proceeding, one
commenced under s. 41 of the Act, the respondents have the burden of
establishing that National Defence was authorized to refuse to disclose the
information in issue: s. 48.
[32] Sections 49 and 50 are
the two provisions in the access legislation concerning the standard of review
to be applied by the Federal Court in proceedings challenging the refusal by
government institutions to disclose the requested information.
[33] The standard of review
for most of the access to information litigation has been governed by s. 49:
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49. Where the head of a government
institution refuses to disclose a record requested under this Act or a part
thereof on the basis of a provision of this Act not referred to in section
50, the Court shall, if it determines that the head of the institution is not
authorized to refuse to disclose the record or part thereof, order the head
of the institution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who requested access
to the record, or shall make such other order as the Court deems appropriate.
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49. La Cour, dans les cas où
elle conclut au bon droit de la personne qui a exercé un recours en révision
d’une décision de refus de communication totale ou partielle d’un document
fondée sur des dispositions de la présente loi autres que celles mentionnées
à l’article 50, ordonne, aux conditions qu’elle juge indiquées, au
responsable de l’institution fédérale dont relève le document en litige d’en
donner à cette personne communication totale ou partielle; la Cour rend une
autre ordonnance si elle l’estime indiqué.
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[34] One of the leading decisions interpreting s. 49 is Canada
(Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 254,
where Justice Evans of the Federal Court of Appeal set out a two-fold standard
of review at paragraph 47:
In reviewing the refusal of
a head of a government institution to disclose a record, the Court must determine
on a standard of correctness whether the record requested falls within an
exemption. However, when the Act confers on the head of a government
institution the discretion to refuse to disclose an exempted record, the
lawfulness of its exercise is reviewed on the grounds normally available in
administrative law for the review of administrative discretion, including
unreasonableness.
[35] Section 50 sets out a specific standard of review for
four injury-based exemptions concerning federal provincial affairs (s. 14),
international affairs and the defense of Canada (s. 15), the conduct of
lawful investigations (ss. 16(1)(c) and (d)) and the financial interests of a
government institution or Canada’s ability to manage its economy
(s. 18(d)). To repeat, s. 15 is the exemption in play in this proceeding.
[36] According to s. 50, the
Federal Court shall “… if it determines that the head of the institution did
not have reasonable grounds on which to refuse to disclose the record” order
the disclosure of the information in issue where the s. 15 exemption is the one
being asserted by the government institution. The provision reads as follows:
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50. Where the head
of a government institution refuses to disclose a record requested under this
Act or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c)
or (d) or 18(d), the Court shall, if it determines that the head of the
institution did not have reasonable grounds on which to refuse to
disclose the record or part thereof, order the head of the institution to
disclose the record or part thereof, subject to such conditions as the Court
deems appropriate, to the person who requested access to the record, or shall
make such other order as the Court deems appropriate.
(Emphasis
added)
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50.
Dans les cas où le refus de communication totale ou partielle du document
s’appuyait sur les articles 14 ou 15 ou sur les alinéas 16(1)c) ou d) ou
18d), 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 relève le document en litige d’en
donner communication totale ou partielle à la personne qui avait fait la
demande; la Cour rend une autre ordonnance si elle l’estime indiqué.
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[37] The statutory language
of this provision dictates a reasonableness standard of review. The outcome
would be the same even if one thought further contextual analysis was necessary
to support further what is mandated by s. 50: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12 at paragraphs 18-19.
[38] On the basis of my
review of the information in issue and the ex parte hearing of
March 5, 2009, there is no doubt in my mind that the documents identified
by National Defence come within the s. 15 exemption.
[39] Similarly, I find that
the information in issue is of the kind referred to in paragraph 30 of these
reasons, including the nature of the operations and the location, date, time
and other circumstances surrounding the capture of the detainees. On the record
before me, I am satisfied that the disclosure of this information in 2007 could
have been of assistance to the enemy of the CF in Afghanistan, could have
caused harm to members of the CF and others in that country and could
reasonably have been expected to be injurious to the defence of Canada or its
allies within the meaning of s. 15 of the Act. The determination made in 2007
by National Defence not to disclose this information was made on reasonable
grounds. Finally, there is no further information in issue which could
reasonably have been severed within the meaning of section 25 of the Act.
[40] It may be that the
outcome would be different if the request were made some time after the CF are
no longer engaged in Afghanistan. However, this decision is not one to be made today.
[41] This application for
judicial review will be dismissed. The respondents are to be commended for not
having sought costs in the circumstances of this proceeding. The co-operation of
both parties has been appreciated.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
Do
ss. 52(2)(a), 52(2)(b) and 52(3) of the Access to Information Act,
R.S.C. 1985, c. A-1, infringe or deny the applicant’s rights or freedoms
guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer:
Yes.
2.
If
the answer to Question 1 is in the affirmative, are ss. 52(2)(a), 52(2)(b) and
52(3) of the Access to Information Act reasonable limits, prescribed by
law, democratic society, pursuant to s. 1 of the Canadian Charter of Rights
and Freedoms?
Answer: No.
Sections 52(2)(a) and 52(2)(b) are read down to
apply to subsection (3) only.
3. The application for
judicial review is dismissed without costs.
“Allan Lutfy”
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