Date:
20071004
Docket:
T-230-06
Citation:
2007 FC 1022
[ENGLISH TRANSLATION]
Ottawa, Ontario,
October 4, 2007
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GABRIEL
FONTAINE
Applicant
and
THE
ROYAL CANADIAN MOUNTED POLICE
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for review under section 41
of the Access to Information Act, R.S.C, 1985, c. A-1 (the Act),
regarding the decision by the Royal Canadian Mounted Police (the RCMP) to
refuse to disclose certain documents that were part of an access to information
request submitted by the applicant.
The facts
[2]
On or around March 6, 2004, the RCMP
received an access to information request in which Gabriel Fontaine (the
applicant) requested the disclosure of a continuation report in an
investigation file that was opened on him on December 5, 1988.
[3]
The continuation reports from the RCMP were
prepared as part of an investigation that was launched by them following a
complaint filed in December 1988 regarding criminal acts that were attributed
to the applicant. Those reports are used as a management tool by members of the
RCMP who are involved in the investigation to document their efforts; they describe
the facts and actions of the investigators, their conversations, interviews,
meetings, and their observations as part of the investigation. The evidence
obtained following that investigation led to the laying of criminal charges
against the applicant, who pleaded guilty to three charges of fraud on the
government before the Court of Québec (Criminal and Penal Division) in July 1999.
[4]
In a letter dated November 2, 2004, the
RCMP sent the applicant the relevant information that it considered it was able
to communicate to him by the terms of the Act, telling him that certain other
items of information could not be disclosed to him, as they are subject to an
exemption set forth in the subparagraph and indicated that exemptions under
sections 16(1), 19(1) and 23 of the Act may also apply to certain
information.
[5]
On November 15, 2004, the applicant
disputed the RCMP’s refusal regarding the information that was not provided by
contacting the Information Commissioner of Canada (the Commissioner).
[6]
In a letter dated January 10, 2006, the
Commissioner informed the applicant that his investigation had led him to find
that the RCMP was justified in refusing to disclose the requested documents, by
the terms of sections 16, 19 and 23 of the Act.
[7]
On February 8, 2006, the applicant filed an
application for review with this Court, under section 41 of the Act, in
order to set aside the Commissioner’s decision.
[8]
Following the Court order dated March 16,
2007, the respondent filed a public record and a confidential record. All the
documents, including those for which disclosure to the applicant was refused,
were therefore filed with the Court. They were included as an appendix to the
confidential sworn statement from the RCMP’s Access to Information and Privacy
Coordinator (the Coordinator).
Issue
[9]
The only issue is the following:
Was
the RCMP able to refuse to disclose the documents that were in the applicant’s
access to information request?
General
principles
[10]
The purpose of the Act is to promote the disclosure
of documents controlled by the federal public service by providing a general
right to access for the benefit of Canadian citizens and permanent residents.
In access to information matters, the disclosure of information is the rule (Rubin
v. Canada, [1989] 1 FC 265 (C.A.). However, this right to disclosure is
not absolute and Parliament has set forth two types exceptions to that right:
mandatory exceptions and discretionary exceptions.
[11]
Mandatory exceptions, such as those set forth
under sections 13, 20 and 24 of the Act, for example, oblige the
government not to disclose the requested information. As soon as the federal
institution is satisfied that the information qualifies for the invoked
exception, it must refuse to send it.
[12]
Discretionary exceptions, for example, those set
forth under sections 14 to 16, and 21 to 23 of the Act, gives the federal
institution the obligation to conduct an analysis, which likely consists of two
steps.
[13]
In Kelly v. Canada (Solicitor General)
(1992), 53 F.T.R. 147 aff. by (1993), 154 N.R. 319 (FCA), Barry Strayer J.
explained the decision-making process as follows:
[…] these
exemptions require two decisions by the head of an institution: first, a
factual determination as to whether the material comes within the description
of material potentially subject to being withheld from disclosure; and second,
a discretionary decision as to whether that material should nevertheless be
disclosed.
[14]
In this case, the RCMP refused to send the
requested documents under the terms of subparagraph 16(1)(a)(i), and
sections 19 and 23 of the Act.
[15]
The relevant provisions are reproduced in the
Appendix.
The standard
of review
[16]
When a federal institution refuses to send a
document and the Information Commissioner rejects the applicant’s complaint
regarding this refusal, the applicant can apply for review by the Federal Court
in compliance with section 41 of the Act.
[17]
When the Court is called upon to review a
decision dealing with the application of a mandatory exception, it acts de
novo. It may then substitute its assessment for that of the federal
institution, (Dagg v. Canada, [1997] 2 S.C.R. 403, at page 62.
[18]
Moreover, when this is a review of a decision
dealing with a discretionary type of exception, the process is set forth in two
steps: The court acts de novo in the first step: it determines whether
the requested information is identified by the exception. If such is the
case, the second step consists of ensuring that the refusal to disclose the
information stems from a legal exercise of discretionary authority. As follows,
Strayer J. summarized how to proceed with the review in Kelly,
above, at paras. 6 and 7:
The
first type of factual decision is one which, I believe, the Court can review
and in respect of which it can substitute its own conclusion. This is subject
to the need, I believe, for a measure of deference to the decisions of those
whose institutional responsibilities put them in a better position to judge the
matter. […]
The
second type of decision is purely discretionary. In my view in reviewing such a
decision the Court should not itself attempt to exercise the discretion de novo
but should look at the document in question and the surrounding circumstances
and simply consider whether the discretion appears to have been exercised in
good faith and for some reason which is rationally connected to the purpose for
which the discretion was granted. […]
Those remarks
were cited with approval by La Forest J. in Dagg, above.
[19]
In 3430901 Canada Inc. v. Canada (Minister of
Industry) [2002] 1 FC 421, leave for appeal before the SCC, refused [2001]
S.C.C.A. no. 537 (Telezone) at paragraph 47, the Court of Appeal
thus summarized:
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 a 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. […]
To that same end, Thurlow
v. Canada (Solicitor General), 2003 FC 1414, [2003] FCJ no. 1802 (QL)
and Elomari v. President of the Canadian Space Agency, 2006 FC 863.
Analysis
1. Subparagraph
16(1)(a)(i)
[20]
Paragraph 16(1)(a) provides a
discretionary exception. There are three conditions for a document to qualify
for that exception:
1)
the document must be dated from less than 20
years ago;
2)
it must contain information that was prepared or
obtained by any government institution, or part of any government institution,
that is an investigative body specified in the regulations;
3)
the documents must have been obtained or
prepared by that institution as part of lawful investigations pertaining to the
detection, prevention or suppression of crime.
[21]
After having carefully reviewed the documents in
question, I am satisfied that they date from less than 20 years ago and were
prepared by the RCMP as part of an investigation aimed at determining whether
an offence had been committed by the applicant. Lastly, the RCMP is an
investigative body within the meaning of section 9 of the Access to
Information Regulations (according to paragraph 6 of Schedule I
of that regulation).
[22]
The information that the respondent, at its
discretion, considered appropriate to keep confidential are essentially
information that reveal the identity of its information sources, that is,
persons who made complaints against the applicant, who collaborated or who were
interrogated by investigators as part of their investigation pertaining to the
detection and suppression of crime.
[23]
Since the RCMP correctly described them, it was
able to refuse to send them. Therefore, it is for the Court to review the
exercise of discretionary power in order to ensure that it was reasonable.
[24]
The RCMP found that it was important to keep
the identity of its sources confidential in order to promote the public’s
cooperation in its investigations. In addition, in order to maintain and foster
the bond of trust that binds provincial organizations, the RCMP believes that
it was preferable to keep the documents that it obtained from those
organizations confidential.
[25]
I found that those reasons were reasonable.
Parliament decided to allow certain organizations that are responsible for
conducting investigations, including the RCMP, to keep confidential any
documents that were obtained or prepared as part of investigations aimed at, in
particular, the detection and suppression of crime. The Court cannot find that
the respondent exercised its discretionary power inappropriately and there is
no indication that would allow this Court to find that it acted in bad faith.
2. Section
19 of the Act
[26]
In light of that provision, which provides a
mandatory exception to its first subsection and a discretionary exception to
its second, I am adopting the findings of Heald J. in Canadian Jewish
Congress v. Canada (Minister of Employment and Immigration), [1996]
1 FC 268, [1995]
FCJ no. 1456 (QL) (TD) at paragraph 27, which
at its basis, the exemption set forth in section 19 is a discretionary
exemption in cases where the exemptions set forth in subsection 19(2)
apply, that is, in which the individual to whom the documents relate consents
to the disclosure, the information is publicly available, or the disclosure is
in accordance with section 8 of the Privacy Act (the PA).
[27]
As a result, the RCMP has the obligation to
establish whether the requested information is “personal information”
identified by section 3 of the PA. (Sutherland v. Canada (Minister of
Indian and Northern Affairs), [1994] 3 FC 527, 77 F.T.R. 241 (TD)). Once
the evidence is made, it falls to the applicant to establish whether one
of the exceptions set forth under paragraphs 3(j) to 3(m)
apply (Jewish Congress, above, at paras 29, 30).
[28]
The review of the documents at issue allows this
Court to find that this is personal information within the meaning of section 3
of the PA and that none of the exceptions in paragraphs 3(m) to 3(j)
of the PA apply.
[29]
As for the exception according to paragraph 8(2)(m)
of the PA and paragraph 19(2)(c) of the Act, the applicant has made
no argument regarding a public interest that would justify violation of the
individual right to privacy mentioned in the undisclosed information.
[30]
In this case, the respondent submitted that it
did not exercise its discretionary power because it was of the view that none
of the exceptions set forth under subsection 19(2) of the Act were
applicable.
[31]
I share the respondent’s opinion in that regard.
Since subsection 19(2) of the Act did not apply, the RCMP was required to
refuse to disclose the requested information under subsection 19(1) of the
Act as a mandatory exception. After having reviewed the documents and excerpts
of documents that were refused for that matter, I have found that the
RCMP was correct to refuse to disclose them.
3. Section
23 of the Act
[32]
Notwithstanding the application of exceptions in
accordance with subsection 16(1) and section 19 of the Act, the RCMP
also believed that certain documents in question qualified under section 23
of the Act and were not to be disclosed.
[33]
Section 23 of the Act allows a government
institution to refuse to disclose any record requested under this Act that
contains information that is subject to solicitor-client privilege.
[34]
Case law recognizes that the justice system
depends on full, free and frank communication between those who need legal
advice and the solicitor. The resulting confidential relationship between
solicitor and client is a necessary and essential conditions of the effective
administration of justice (Blank v. Canada (Minister
of Justice), 2006 SCC 39, [2006] SCR no. 39 at par. 26 [Blank SCC]).
[35]
The majority of
the Court in Blank SCC, above, recognized that solicitor-client
privilege, which is in question in section 23 of the Act, includes both
the legal advice privilege and the litigation privilege. However, the majority
of the court indicated that it is preferable to recognize that these are
distinct concepts and not two components of the same concept. The protection
accorded communications between a client and a solicitor from disclosure is the
interest of all citizens to have full and ready access to legal advice, and to
obtain proper candid legal advice.
[36]
Solicitor-client privilege applies to
confidential communications between the client and his solicitor; it exists
each time a client consults his solicitor, whether regarding litigation or not. It extends to any document created to be sent to a solicitor to
obtain advice or allow him to prosecute or defend against an action, including
documents from third parties.
[37]
Additionally, in
Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, 2004
SCC 31, the Supreme Court found in paragraph 19 that solicitor-client privilege
“has been held to arise when in-house government lawyers provide legal advice
to their client, a government agency”.
[38]
However, litigation privilege is directly
adapted to the litigation process; it is not directed at, still less,
restricted to, communication between solicitor and client. It also affects
communications between a solicitor and third parties, and the purpose of that
privilege is to create an area of confidentiality at the time of or in
anticipation of litigation. Litigation privilege should be attached to
documents created mainly for litigation, and should be considered as an
exception to the principle of full communication and not as a parallel concept
that is equal to solicitor-client privilege interpreted in the broad sense of
the term, Blank, above.
[39]
The applicable principles for determining
whether a document falls under solicitor-client
privilege are those that are
developed for that purpose by common law (Blank SCC, above, at par. 26; Jewish
Congress, above), namely:
- it must be a
consultation or exchange with a client;
- the consultation
or exchange must have been intended to be confidential;
- the solicitor’s
contribution must be sought out due to having the description of a
solicitor;
- The
consultation or exchange must not be for the purpose of achieving illegal
goals.
(R.
v Campbell, [1999] 1 S.C.R. 565 at par 49; see also Canada v. Solosky,
[1980] 1 S.C.R. 821.
[40]
In the first case, after having reviewed the
documents for which solicitor-client privilege was involved, aside from a few
documents that more specifically affect litigation privilege and that follow
the Supreme Court decision in Blank would no longer be privileged
because the litigation is over, I am of the view that they fall under
solicitor-client privilege. As for the other documents that refer to the
dispute, those also qualify under paragraph 16(1)(a), such
that it was correct for them not to be sent.
[41]
Once again, I did not find any evidence that the
respondent exercised its discretionary power irregularly or in bad faith.
Therefore, I affirm the respondent’s decision to refuse the disclosure of those
documents.
[42]
For those reasons, this application for review
under section 41 of the Act is dismissed.
JUDGMENT
THE COURT ORDERS that
this application for review be dismissed.
“Danièle
Tremblay-Lamer”
APPENDIX
Access to
Information Act (R.S.C., 1985, c. A-1)
2. (1) The purpose of this Act is to
extend the present laws of Canada to provide a right of access to information
in records under the control of a government institution in accordance with the
principles that government information should be available to the public, that
necessary exceptions to the right of access should be limited and specific and
that decisions on the disclosure of government information should be reviewed
independently of government.
[…]
4. (1) Subject to this Act, but
notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1)
of the Immigration and Refugee Protection Act,
has a right to and
shall, on request, be given access to any record under the control of a
government institution. […]
16. (1) The head of a government
institution may refuse to disclose any record requested under this Act that
contains
(a) information obtained or
prepared by any government institution, or part of any government institution,
that is an investigative body specified in the regulations in the course of
lawful investigations pertaining to
(i) the detection, prevention or
suppression of crime,
(ii) the enforcement of any law of
Canada or a province, or
(iii) activities suspected of
constituting threats to the security of Canada within the meaning of the Canadian
Security Intelligence Service Act,
if the record
came into existence less than twenty years prior to the request;
(b) information relating to investigative
techniques or plans for specific lawful investigations;
(c) information 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
(d) information the disclosure of which
could reasonably be expected to be injurious to the security of penal
institutions. […]
Definition of investigation
(4) For the purposes of paragraphs (1)(b)
and (c), 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.
[…]
19. (1) Subject to subsection (2),
the head of a government institution shall refuse to disclose any record
requested under this Act that contains personal information as defined in
section 3 of the Privacy Act.
Where
disclosure authorized
(2) The head of a government institution may disclose any record
requested under this Act that contains personal information if
(a) the individual to whom it relates
consents to the disclosure;
(b) the information is publicly
available; or
(c) the disclosure is in accordance
with section 8 of the Privacy Act. […]
23. The head of a government institution may refuse to disclose any
record requested under this Act that contains information that is subject to
solicitor-client privilege.
[…]
41. Any person who has been refused access
to a record requested under this Act or a part thereof may, if a complaint has
been made to the Information 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 Information Commissioner
are reported to the complainant under subsection 37(2) or within such
further time as the Court may, either before or after the expiration of those
forty-five days, fix or allow.
Privacy Act (R.S.C., 1985, c. P-21)
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
(j) information
about an individual who is or was an officer or employee of a government
institution that relates to the position or functions of the individual
including,
(i) the fact that the individual is or
was an officer or employee of the government institution,
(ii) the title, business address and
telephone number of the individual,
(iii) the classification, salary range
and responsibilities of the position held by the individual,
(iv) the name of the individual on a
document prepared by the individual in the course of employment, and
(v) the personal opinions or views of
the individual given in the course of employment,
(k) information about an individual who is
or was performing services under contract for a government institution that
relates to the services performed, including the terms of the contract, the
name of the individual and the opinions or views of the individual given in the
course of the performance of those services,
(l) information relating to any
discretionary benefit of a financial nature, including the granting of a
licence or permit, conferred on an individual, including the name of the
individual and the exact nature of the benefit, and
(m) information about an individual who has
been dead for more than twenty years;
[…]
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.
Where
personal information may be disclosed
(2) Subject to any other Act of Parliament, personal information under
the control of a government institution may be disclosed
(a) for the purpose for which
the information was obtained or compiled by the institution or for a use
consistent with that purpose;
(b) for any purpose in
accordance with any Act of Parliament or any regulation made thereunder that
authorizes its disclosure;
(c) for the purpose of complying
with a subpoena or warrant issued or order made by a court, person or body with
jurisdiction to compel the production of information or for the purpose of
complying with rules of court relating to the production of information;
(d) to the Attorney General of
Canada for use in legal proceedings involving the Crown in right of Canada or
the Government of Canada;
(e) to an investigative body
specified in the regulations, on the written request of the body, for the
purpose of enforcing any law of Canada or a province or carrying out a lawful
investigation, if the request specifies the purpose and describes the
information to be disclosed;
(f) under an agreement or
arrangement between the Government of Canada or an institution thereof and the
government of a province, the council of the Westbank First Nation, the council
of a participating First Nation — as defined in subsection 2(1) of the First
Nations Jurisdiction over Education in British Columbia Act —, the
government of a foreign state, an international organization of states or an
international organization established by the governments of states, or any
institution of any such government or organization, for the purpose of
administering or enforcing any law or carrying out a lawful investigation;
(g) to a member of Parliament
for the purpose of assisting the individual to whom the information relates in
resolving a problem;
(h) to officers or employees of
the institution for internal audit purposes, or to the office of the
Comptroller General or any other person or body specified in the regulations
for audit purposes;
(i) to the Library and Archives
of Canada for archival purposes;
(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;
(k) to any aboriginal
government, association of aboriginal people, Indian band, government
institution or part thereof, or to any person acting on behalf of such
government, association, band, institution or part thereof, for the purpose of
researching or validating the claims, disputes or grievances of any of the
aboriginal peoples of Canada;
(l) to any government
institution for the purpose of locating an individual in order to collect a
debt owing to Her Majesty in right of Canada by that individual or make a
payment owing to that individual by Her Majesty in right of Canada; and
(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
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