Date:
20131220
Docket:
T-737-11
Citation:
2013 FC 1282
Ottawa, Ontario, December 20, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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MOHAMED ZEKI MAHJOUB
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review under section 41 of the Privacy Act, RSC 1985,
c P-21 [the Act and the Privacy Act] of a
decision of the Canada Border Services Agency
[CBSA], dated March 12, 2010, denying the Applicant’s request for the release and
communication of telephone conversations intercepted following his
release from detention for the period between April 11, 2007 and May
12, 2008. This decision was reviewed by the Privacy Commissioner as a result of
a complaint filed against the March 12, 2010 decision. The Privacy Commissioner
concluded in a decision dated March 8, 2011 that the exemptions claimed (under
paragraph 22(1)(b) and section 26 of the Privacy Act)
were valid.
I. Facts
and decision under review
[2]
The
Applicant was granted refugee protection in 1996. From June 2000 to February
2007, he was detained under a security certificate, which was cancelled as a
result of a decision of the Supreme Court of Canada in Charkaoui v Canada
(Citizenship and Immigration), 2007 SCC 9 at para 140, [2007] 1 S.C.R. 350 in which
the security certificate regime was declared invalid. Following the 2008
amendments to the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], a new certificate was issued against the Applicant which was recently
found to be reasonable (see Justice Blanchard’s Reasons for Judgment and
Judgment in 2013 FC 1092 [Mahjoub, 2013 FC 1092]). On
February 15, 2007, the Applicant was released from detention under a number of
terms and conditions (see Mahjoub
v Canada (Minister of Citizenship and Immigration), 2007 FC 171, 61 Imm LR (3d)
1 [Mahjoub, 2007 FC 171]). One of these conditions was for the
Applicant and the other users of the house telephone, namely his wife and
stepson, to give consent to the interception of all their telephone and written
communications.
The Applicant as well as the adult members of his household consented to these
interceptions.
[3]
On
or about May 12, 2008, a former counsel for the Applicant requested that the CBSA
give him access to three categories of documents: “1) all intercepted
conversations from April 11, 2007 to present, 2) intercepted mail from April
11, 2007 to present (May 12, 2008), and 3) all recordings including medical
records, surveillance reports, incidents, memos of CBSA from April 11, 2007 to
present (May 12, 2008).”
[4]
In
a letter dated May 28, 2008, the CBSA acknowledged receipt of the
above-mentioned request and sought an extension of time, on or about June 10,
2008, for the processing of said request.
[5]
In
December 2008, it was revealed that the CBSA through its agent, the Canadian
Security Intelligence Service [CSIS], had been intercepting the Applicant’s
solicitor-client communications, and a Court Order dated December 19, 2008
called for the interceptions to end immediately. The terms and conditions of
release were amended to correct this situation.
[6]
By
way of written correspondence dated September 30, 2009, Mr. Pierre Tessier,
the CBSA’s Access to Information and Privacy and Disclosure Policy Manager,
notified that the processing of the request was complete and that the last two
categories mentioned above, i.e. intercepted mail and all recordings including
medical and surveillance reports, incidents, etc. from April 11, 2007 to
present, were to be released but not the intercepted conversations. Mr. Tessier
advised that some of the requested information had been exempted from
disclosure pursuant to paragraphs 19(1)(a), 19(1)(b), 22(1)(a),
22(1)(b), 70(1)(a), 70(1)(b), 70(1)(c), 70(1)(d),
70(1)(e) and 70(1)(f) and sections 20, 21, 26 and 27 of the Act.
[7]
On
February 10, 2010, former counsel for the Applicant wrote to Mr. Tessier to
inform him that the documents delivered are insufficient as they do not include
any intercepted conversations, either transcribed or on CD-ROM […]. “Pointedly,
the documents do not contain the intercepted solicitor-client conversations.”
Counsel then asked for the CBSA to communicate […] “the intercepted calls in CD
format or any other format.”
[8]
On
March 12, 2010, Mr. Tessier responded that all intercepted conversations were
withheld pursuant to paragraph 22(1)(b) and section 26 of the Act.
Following this, on April 7, 2010, the Applicant filed a complaint to the Office
of the Privacy Commissioner of Canada [OPC] contesting the CBSA’s refusal of
March 12, 2010 to communicate the intercepts of their conversations. Counsel
also said that it was not asking for the release of intercepted communications
of his wife and her son, but that it wanted the release of all intercepted
communications involving the Applicant.
[9]
An
investigation took place and resulted in a report, rendered on March 8, 2011, which
validated the exemptions relied upon by the CBSA (under paragraph 22(1)(b)
and section 26 of the Act) and concluded that the complaint was not well
founded.
[10]
On
April 28, 2011, the Applicant served and filed a Notice of Application under
section 41 of the Act for a judicial review of the refusal of the CBSA dated
March 12, 2010.
[11]
On
July 28, 2011, the Respondent served and filed an affidavit from Mr. Tessier,
dated July 7, 2011, confirming that the decision is based on paragraph 22(1)(b)
and section 26 of the Act.
[12]
On
June 12, 2011, the Applicant requested the communication of the material that
is relevant to the application and that is in the possession of the tribunal
whose decision is the subject of this application. The Respondent objected to
the request on August 26, 2011.
[13]
On
August 29, 2011, the Applicant served and filed a written cross-examination of
Mr. Tessier, and on September 28, 2011, the Respondent served and filed
the answers to the written examination of Mr. Tessier.
[14]
On
October 28, 2011, the Applicant filed a motion to dispose of the objections
raised by Mr. Tessier to his cross-examination.
[15]
On
November 23, 2011, the Respondent filed a motion seeking leave from this Court
to file a confidential affidavit from Mr. Brett Bush of the CBSA. In support of
the motion, the Respondent filed an affidavit from Mr. Tessier in which he testified
at paragraph 4 that “after consulting Mr. Bush’s affidavit, [he] also
confirm[s] that the disclosure of the information contained therein would be
injurious to national security.” The Applicant opposed the Respondent’s request
to file the confidential affidavit of Mr. Bush.
[16]
On
November 28, 2011, this Court heard the Applicant’s motion to dispose of the
objections and the Respondent’s motion to file a confidential affidavit. Prothonotary
Morneau noted Mr. Tessier’s assertion in his affidavit that the disclosure
of information would jeopardize national security, whereas this exception was
not invoked in the refusal letter dated March 12, 2010. A direction was issued, which adjourned
the presentation of the motions sine die and directed that the parties should
request the designation of a case management judge. The undersigned was
appointed by the Chief Justice.
[17]
On April 10,
2012, the
Respondent filed a motion in order to add new grounds for the refusal, namely
section 21 and subparagraph 22(1)(a)(iii) of the Act. The Applicant
reiterated his objection. On July 19, 2012, the Court rendered an Order
granting the Respondent’s motion for permission to add new national security
grounds. In the Order, the Court indicated that it will first review the
decision based on the grounds previously raised by the decision-maker and will
proceed to review the decision in relation to the new grounds only if the
initial grounds for exemption are found to have been incorrectly raised (see the
Order rendered in this docket (T-737-11) on 19 July, 2012).
[18]
On October
10, 2012, this Court rendered two orders by which it granted the
Respondent’s motion to file a confidential affidavit by Mr. Bush for the ex
parte and in camera hearing (see the Order rendered in response to
the Motion of the Respondent to file a Confidential Affidavit and for an
Extension of Time to file it) and dismissed the Applicant’s motion to object to
Mr. Tessier’s answers to the cross-examination on his affidavit (see the Order
rendered in response to the Objections to the answers given pursuant to
Rule 369 of the Federal Courts Rules, SOR/98-106). Mr. Bush’s
affidavit was filed on October 22, 2012.
[19]
An ex parte
hearing was held on January 9, 2013 to deal with Mr. Bush’s affidavit. On that same day, a
case management conference was held during which the Court provided counsel for
the Applicant with some information as to what took place during the ex
parte session.
[20]
On
January 25, 2013, the Court ordered that the Minister prepare a redacted
version of Mr. Bush’s affidavit. This Court was satisfied with the
proposed redactions. Moreover, the Court directed that the parties file only
one record each and that they address all the exemptions. Service of the
redacted affidavit was done on January 30, 2013.
[21]
On
February 11, 2013, the Applicant filed a motion record requesting disclosure of
the redacted version of the transcript of the ex parte, in camera
hearing of the Respondent’s witness, heard by the Court on January 9, 2013 or,
in the alternative, an Order for the communication to the Applicant of a
detailed public summary of this hearing. On March 21, 2013, the Court dismissed
this motion (see
the Order rendered in this docket (T-737-11) on March 21, 2013).
[22]
The
public hearing of the section 41 application for the review of the March 12,
2010 decision was held on June 27, 2013. The Court raised concerns as to the
possible duplication of proceedings and the re-litigation of matters already
dealt with by the designated judge who presided over the certificate case involving
the Applicant. It was of public knowledge that intercepted communications were
released for the period in question during the certificate proceedings. Counsel
for the Applicant objected to the concerns raised by the Court, whereas counsel
for the Respondent agreed with them.
[23]
By
Order dated July 17, 2013, the Applicant was directed to file with the Court
all requests, motions, decisions rendered and information provided in the
certificate case concerning the intercepted communications. Afterwards, the
Respondent had to review the documents, compare the certificate proceedings
disclosure made with the intercepted communications retained by the CBSA and
inform the Court of what was disclosed and what was not on or before September 12, 2013.
Upon receipt of this information and further submissions made by the parties,
the Court would then take all the matters under reserve. The result of this
exercise was that only 5 (five) solicitor-client calls had not been
disclosed to the Applicant. The first conversation lasted 1 (one) minute
and 21 seconds, the second conversation is inaudible according to the log and
lasted 37 seconds. The third conversation was 56 seconds long, the
fourth lasted 0 (zero) second and the last conversation was 1 (one) second
long. Overall, out of the 4,986 conversations intercepted, 695 were
identified as solicitor-client and had been disclosed to the Applicant.
Therefore, this whole proceeding exists in good part for only 5 (five)
unreleased conversations, 2 (two) of which have no audio while the remaining 3
(three) last less than 2 (two) minutes each. It is to be noted that the former
counsel was “pointedly” interested in the release of these solicitor-client
conversations (see letter dated February 10, 2010; Applicant’s Record, page 26)
and not the other withheld telephone conversations.
II. Applicant’s
submissions
[24]
The Applicant
argues that under the Act, accessibility to personal information is the
rule and confidentiality is the exception. Exemptions should therefore be
narrowly construed, and section 47 of the Act places the burden of proof on the
Respondent to justify, on a balance of probabilities, the use of such exemptions.
[25]
Under section
21 and paragraph 22(1)(b) of the Act, the Respondent must demonstrate a
clear and direct link between disclosure and the harm alleged so as to justify
confidentiality.
[26]
Moreover,
even if the Respondent demonstrates that he meets the burden described above,
he is not obligated to withhold the information under sections 21 and 26 and paragraph
22(1)(b) of the Act, given that, according to the Applicant, this Court
can review whether the Respondent has exercised that discretion in a proper or
lawful manner.
[27]
The Applicant
submits that in the present case, the Minister has not met and cannot meet the
burden of proof of establishing, on a balance of probabilities, that the
exemption of the intercepted communications is justified, and he adds that even
if the retention were proven as justified, the Minister did not properly or
lawfully exercise his jurisdiction.
[28]
The Applicant
submits that section 21, subparagraph 22(1)(a)(iii) and paragraph 22(1)(b)
of the Act do not apply. The Applicant’s telephone communications were
intercepted following his release from detention in 2007 under stringent terms
and conditions imposed by the Court and the existence of the interceptions is
therefore known.
[29]
Moreover, the
Applicant’s telephone conversations should not have been intercepted or used
for any other purpose than monitoring his compliance with the terms and conditions
of his release. In order to be compatible with section 8 of the Canadian Charter
of Rights and Freedom, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act (UK), 1982, c 11
[Charter], interceptions must respect the criteria outlined in Canada
(Director of Investigation & Research of the Combines Investigation Branch)
v Southam Inc., [1984] 2 S.C.R. 145, 11 DLR
(4th) 641. If the interceptions
were used for any other purpose, it is submitted that they were illegal.
[30]
The Applicant
argues that if the interceptions are unlawful, the CBSA cannot invoke national
security reasons or injury to the existence of an investigation to hide a
wrongdoing, as held by the Federal Court in Khadr v Canada (Attorney
General), 2008 FC 549, 77 WCB (2d) 624. The Applicant adds that it has been revealed in the context
of the Applicant’s security certificate case that the Respondent, through CSIS,
illegally intercepted the Applicant’s solicitor-client communications, thus violating
his right to solicitor-client privileged communications.
[31]
As
indicated previously, some of the recordings of the intercepted communications
have already been released to the Applicant in the context of his security
certificate case, further proving that the exemptions invoked are unfounded or
that the Respondent did not lawfully exercise his discretion when determining
whether to disclose or not the interceptions, despite the potential application
of the exemptions.
[32]
Given that the
interceptions were judicially authorized, that the Applicant and the adult
household members had given their consent to these interceptions and that the purpose
of these interceptions would have been to monitor the Applicant’s compliance
with the terms and conditions of his release, the Applicant submits that it
cannot be said that the disclosure of the interceptions could reasonably be
injurious to international affairs, national defense or the detection,
prevention or suppression of subversive activities or in the case of paragraph
22(1)(b) of the Act, to the enforcement of Canadian legislation or the
conduct of lawful investigations.
[33]
For the
Applicant, it is apparent that the wording of section 21, subparagraph 22(1)(a)(iii)
and paragraph 22(1)(b) of the Act allow the Respondent to exercise his
discretion to release the information sought even if it falls within the
exemption category.
[34]
The Applicant
is of the view that, based on Mr. Tessier’s affidavit, there is no indication
that when he rendered the decision, Mr. Tessier considered the relevant
factors and interests, the facts and the circumstances of this particular case
such as the fact that the interceptions were made pursuant to a Court Order,
that the Applicant had given his consent to these interceptions and that their
primary purpose was to monitor compliance with the terms and conditions of
release. The Respondent should have turned his mind to these factors when
deciding to refuse to release the intercepted calls.
[35]
Finally,
the Applicant submits that the Respondent cannot invoke the exemption based on
section 26 of the Act to refuse to disclose the intercepted conversations
involving the Applicant and third parties because the Applicant participated in
those conversations.
[36]
With
regard to the calls that would have involved the Applicant’s wife or stepson,
although no consent forms from these two persons were provided in the access to
information request, they did provide their consent to the interception of the
communications under the Court Order. The Applicant submits that this consent
can be considered to extend to the disclosure request.
[37]
The
Applicant adds that if this Court determines that the recordings of the calls
cannot be released, logs of the calls, at the very least, should be released.
III. Respondent’s
submissions
[38]
The
Respondent first submits that this Court cannot review its own Order on the
availability of additional grounds and that if the Applicant had a problem with
the Court Order allowing the Minister to rely on other exemption grounds, he
could have appealed it by virtue of paragraph 27(1)(c) of the Federal
Courts Act, RSC
1985, c F-7 [FCA]. Therefore, the Minister’s refusal may be based on
either section 21, subparagraph 22(1)(a)(iii), paragraph 22(1)(b)
or section 26 of the Act.
[39]
Second,
the Respondent submits that the application of the exemptions is not vitiated
by any reviewable error.
[40]
The
Respondent argues that the refusal based on section 26 of the Act is probably
the simplest answer to Mr. Mahjoub’s application. As established by case law, section
26 of the Act was meant to protect third parties from having confidential
information revealed about them. Under subsection 8(1) of the Act, a government
shall not disclose personal information without the consent of the individual
to whom it relates unless it falls within one of the exceptions listed in
subsection 8(2) of the Act. Only paragraph 8(2)(m) of the Act applies
to this case, and it requires a balancing exercise. A government institution
may disclose personal information in exceptional circumstances where the public
interest in disclosure clearly outweighs the invasion of third parties’ privacy
that could result from disclosure. There is therefore broad discretion
conferred upon the government institution. As established in H.J. Heinz Co.
of Canada Ltd. v Canada (Attorney General), 2006 SCC 13, 48
CPR (4th) 161 [Heinz], the purpose of the Act is to strike a careful
balance between privacy rights and the right of access to information. It is
clear from the Act that it affords greater protection to personal information.
[41]
In
the Applicant’s case, no one who called the Applicant, his wife or her son has
ever consented to the release of their names, telephone number and conversations.
None of the people outside the Applicant’s household has given consent to the
interception of their conversations. Even though the Applicant, his wife or her
son were party to the conversations, it does not entitle them to obtain the
names of those with whom they spoke or any particulars. This is especially true
for conversations in which the Applicant took no part.
[42]
Furthermore,
the Applicant requested access to his personal information, and that of his
wife and her son, who both could have consented in writing to the release of
the conversations but did not. The Applicant cannot rely on the consent his
wife and her son gave to the interception in the certificate proceedings. It
does not make sense to file a distinct application against the refusal to
disclose, but nevertheless rely on the certificate proceeding in which the
Applicant could have filed a motion, similar to the one or those he presented
in the past, to obtain the same information. An access to personal information
is not to be confused with a certificate proceeding.
[43]
The
Respondent further submits that Lavigne
v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 at
para 29, [2002] 2
SCR 773 [Lavigne], stands for the proposition that when
section 26 of the Act applies, which is the case, the institution is
statutorily obliged to refuse to release personal information.
[44]
With
regards to the refusal based on section 21, subparagraph 22(1)(a)(iii)
and paragraph 22(1)(b) of the Act, the Respondent submits that it
is also justified as the ex parte evidence provides valid evidentiary
basis for those exemption grounds. In the case at bar, unlike in Lavigne,
above, where all the investigations had been concluded by the time disclosure
of personal information in question was requested, investigations are still
ongoing. Subsection 22(3) of the Act, which defines the word “investigation,”
has a broad meaning and may refer equally to investigations that are underway,
are about to commence, or will take place (see Lavigne, above, at paras
52, 54 to 55).
[45]
For
the purposes of this instance, these provisions may be encapsulated as being
the “national security exemption.” The fact that this Court ordered the
interceptions of the conversations as part of the conditions of Mr. Mahjoub’s
release shows that he posed, at the time, a threat to national security. This
assessment is supplemented by the ex parte evidence which
indicates a continued potential risk to national security and ongoing lawful
investigations in the form of a continuous monitoring of the Applicant’s and
his family’s telephone conversations specifically.
[46]
The
Respondent finally submits having exercised his discretion in a reasonable
manner, compatible with the objectives of the Act and accordingly with the
relevant legal principles. Mr. Tessier refused to disclose the
conversations on the basis that doing so could reasonably be expected to be
injurious to the enforcement of Canadian legislation or the conduct of lawful
investigations and that the information not disclosed relates to the existence
or nature of a particular investigation and was obtained or prepared in the course
of an investigation. The fact that Mr. Tessier released some pieces of information
and refused to disclose others is telling. In other words, that injury tipped
the balance in favour of refusing to disclose the intercepted conversations,
which means that he considered the potential damage of releasing it.
[47]
The
Respondent argues that Mr. Tessier exercised his discretion in a way that was
compatible with the relevant legal principles and the objectives of the Act,
which include protecting the privacy of individuals with respect to personal
information about themselves held by a federal government institution,
providing individuals with a right of access to that information and protecting
governmental interests by providing for exemptions to the general principle
favouring disclosure.
[48]
The
evidence, including Mr. Tessier’s and Mr. Bush’s affidavits, shows that there
were serious national security concerns which justified the refusal for
disclosure. The Respondent submits that there is no public interest more
important than national security, as stated by the Federal Court of Appeal in Goguen
v Gibson (1984), 40 CPC 295, 3 Admin LR 225 (FCA) and more recently in Ruby v Canada (Solicitor General), 2002
SCC 75 at paras 24 to 29,
[2002] 4
SCR 3.
[49]
Furthermore,
the Respondent submits that where section 21 or paragraph 22(1)(b) of
the Act applies, the government institution is subject to the lower standard of
proof of “reasonable grounds on which to refuse to disclose the information.”
This, along with the discretionary exemptions created by section 21 and
subparagraph 22(1)(a)(iii) of the Act, is yet another clear indication
that the importance of national security is such that more latitude is afforded
to the government institution, and not to the Court, to decide whether
disclosure of personal information would endanger national security.
IV. Points
at issue
1. Does the
section 26 exemption of the Act relied upon by the Respondent constitute a
valid basis for the refusal to disclose the intercepted communications?
2.
Does the paragraph
22(1)(b) exemption of the Act relied upon by the Respondent constitute a
valid basis for the refusal to disclose the intercepted communications?
3.
In case of a
positive finding with respect to either or both of the two first issues,
has the discretion been exercised pursuant to the Act?
4.
In case of a
negative finding for any of the three (3) previous issues, do the section 21 and
subparagraph 22(1)(a)(iii) exemptions of the Act relied upon posteriously
by the Respondent constitute a valid basis for the refusal to disclose the
intercepted conversations?
[50]
As
it will be found, most of the intercepted conversations were validly withheld
from disclosure pursuant to section 26 and paragraph 22(1)(b) of the Act
and the exercise of discretion was done reasonably. As for the five (5) intercepted
conversations remaining involving the Applicant and his counsel, they are not
subject to any exemptions because they are communications which are protected
by the solicitor-client privilege and no exemptions can justify their non-disclosure.
Therefore, there will be no need to address the fourth issue in the present
matter.
V. The standard of review
[51]
The
standard of review applicable to the present case is that the Court must first
decide whether or not the non-disclosed requested information falls within one
of the exemptions from disclosure provided for by the Privacy Act. Such
a determination is a question of law which calls for the review to be made on a
correctness standard (see Leahy v Canada (Minister of Citizenship and
Immigration), 2012 FCA 227, at para 98 [Leahy]). If the exemption on
which the non-disclosure is based calls for an exercise of discretion, the
review of this exercise shall be assessed on a reasonableness standard (see Leahy,
above, at para 99). As noted by the Federal Court of Appeal, this type of
discretion is fact-based and has a policy component. Deference must be shown.
VI. Analysis
A. The requirements of
the Privacy Act
[52]
The
Privacy Act recognizes that a Canadian citizen or a permanent resident
(as defined by the IRPA) has a right to access, upon request, to personal
information that concerns him or her (see section 2 and subsection 12(1) of the
Act). By virtue of the Privacy Act Extension Order, No 2,
SOR/89-206, the right of access under subsection 12(1) of the Act was extended
to all present in Canada.
[53]
For
the person seeking disclosure related to him or her, the general rule calls for
the disclosure upon request, while the exception is for the decision-maker to
rely on exemption(s) from disclosure provided for by the Privacy Act.
[54]
As
noted above, the CBSA initially relied on the following exemptions to justify
the non-disclosure of the intercepted conversations: that the release of the
information could reasonably cause injury to the enforcement of Canadian
legislation or the conduct of lawful investigations (paragraph 22(1)(b)
of the Act) and that the release of the information could disclose information
on individuals other than the Applicant (section 26 of the Act). Other national
security exemptions were added in the course of the present proceedings. Again,
as noted above, this Court decided on July 19, 2012 to grant leave to the
Respondent, allowing the addition of national security grounds: that the disclosure
of the information could reasonably be expected to be injurious to
international affairs, the defense of Canada or to the detection, prevention or
suppression of the subversive activities (section 21 of the Act) or that the
disclosure of the information was collected in the course of lawful
investigations pertaining to activities suspected of constituting threats to
the security of Canada as defined in the Canadian Security Intelligence
Service Act, RSC 1985, c C-23 at para 2 (subparagraph 22(1)(a)(iii)
of the Privacy Act).
[55]
As
part of the July 19, 2012 Order, this Court stated that it would first deal
with the initial exemptions claimed and then turn, should these grounds not be
applicable, to the newly added national security exemptions.
[56]
The
burden to establish the applicability of the exemptions submitted in support of
the non-disclosure rests with the government institution, in the present case, the
CBSA (see Lavigne, above, at para 31).
[57]
As
for the exercise of discretion, provided that the exemption(s) are validly claimed,
the burden of proof is on the CBSA to show that it was exercised in a
reasonable manner. After all, the Applicant, having been only a participant to
some of the intercepted communications, is not aware of all the information
being retained, such as that involving his wife and her son. Furthermore,
counsel for the Applicant neither participated in the ex parte hearing
nor was he given access to the full affidavit in support of the national
security claim or the exhibits filed (see Attaran v Canada (Minister of
Foreign Affairs), 2011 FCA 182 at paras 36 to 39). Such was the situation
in the present proceedings; therefore, it would be unfair to impose a burden of
proof on a party that does not have all the information that the other party
has. Consequently, the Respondent has the burden to show that the exercise of
discretion was reasonable. I note that the Respondent has agreed to this in its
written submissions at para 40.
[58]
In
order to establish the reasonableness of the exercise of discretion, the evidence
must be such that it shows consistency with the purpose of the Act and,
therefore, that some consideration was given to the possibilities of
considering release with the exemption(s) in mind and, if applicable, to the
injury that disclosure may cause and other relevant factors (see Ontario (Public
Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1
SCR 815, at para 48 and Attaran, above, at para 17).
[59]
Before
closing this part, it is not the intention of this Court to review its Order of
July 19, 2012, discussed above. The submissions of the Applicant are
ambiguous in that regard. For the sake of clarity, the Order stands: the
Applicant did not appeal it as he could have done pursuant to paragraph 27(1)(c)
of the FCA, and it would be inappropriate for this Court to proceed as if it
did not exist. Therefore, the CBSA’s decision to not disclose the intercepted
telephone conversations can be based on one of the following exemptions:
i)
Information
concerning individuals other than the Applicant (section 26 of the Privacy
Act).
ii)
Injury
to the enforcement of Canadian legislation or the conduct of lawful
investigations (paragraph 22(1)(b) of the Privacy Act).
iii) Injury to
International Affairs, the defense of Canada or to the detection, prevention of
subversive activities (section 21 of the Privacy Act).
iv) Information sought
is information collected in the course of lawful investigations pertaining to
activities suspected of constituting threats to the security of Canada
(subparagraph 22(1)(a)(iii) of the Privacy Act).
[60]
As
it was said earlier, it will not be necessary to address the national security exemption,
and the following analysis will deal with the exemptions claimed pursuant to section
26 and paragraph 22(1)(b) of the Privacy Act.
B. Is
the section 26 exemption of the Act a valid basis to justify the non-disclosure
of the
intercepted
communications?
[61]
Without
disclosing content, it is known to the parties that the information retained
can be classified as follows:
i) Telephone
conversations involving the wife of the Applicant and her son with unknown
persons. The wife and her son have not consented to the release of this
information.
ii)
Telephone
conversations involving the Applicant with unknown persons who have not
consented to the release of their conversations with the Applicant.
iii) Telephone
conversations involving the Applicant with his lawyers, conversations which
were found to be for the time period in question protected by the
solicitor-client privilege by the certificate judge (see Justice Blanchard’s
Reasons for Order and Order in 2013 FC 1095, at paras 207 and 221, [2013] FCJ
No 1216 [Mahjoub (Re), 2013 FC 1095]).
[62]
As
previously mentioned, in order to facilitate the understanding of the remaining
analysis, the section 26 privacy interest protected by the Privacy Act
will deal with the first two categories. The third one, as argued by counsel
for the Applicant, entails an issue of impropriety and the illegality of going
through with these interceptions, and so it raises the following question: Can
information protected by the solicitor-client privilege be kept from disclosure
based on one of the two exemptions (under section 26 and paragraph 22(1)(b)
of the Act) claimed by the Respondent?
[63]
The
Supreme Court of Canada in Heinz, above, at paras 21 to 31, has made it
abundantly clear that “[...] the right to privacy is paramount over the right of
access to information.” It is also said that greater protection is given to the
privacy right (i.e. personal information) than to the right of access.
[64]
Section
26 of the Privacy Act reads as follows:
|
Privacy
Act,
RSC, 1985,
c
P-21
Information about another
individual
26. The head of a
government institution may refuse to disclose any personal information
requested under subsection 12(1) about an individual other than the
individual who made the request, and shall refuse to disclose such
information where the disclosure is prohibited under section 8.
|
Loi
sur la protection des renseignements personnels,
LRC,
1985, ch P-21
Renseignements
concernant un autre individu
26. Le responsable d’une
institution fédérale peut refuser la communication des renseignements
personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre
individu que celui qui fait la demande et il est tenu de refuser cette
communication dans les cas où elle est interdite en vertu de l’article 8.
|
Section 26 of the Act was meant to
protect third parties from having confidential information revealed about them and
subparagraph 8(2)(m)(i) inserted a balancing between the public interest
in disclosure and the right to privacy (see Ruby v Canada (Solicitor
General), [2000] 3 FC 589, at para 121).
[65]
If
disclosure is prohibited pursuant to section 8 of the Privacy Act,
section 26 makes it clear that the decision-maker “shall” refuse to disclose it
(see Lavigne, above, at para 29).
[66]
The
public evidence reveals that as part of his conditions of release, Mr. Mahjoub,
his wife and her son consented that all telephone calls from the household
phone could be intercepted and recorded by the CBSA. Responding to a written
question from the Applicant, Mr. Tessier informed that the only consent
received by the CBSA in relation to the Applicant’s request under the Privacy
Act was from the Applicant himself (see also Access Request dated May 12,
2008 where former counsel includes only the consent of the Applicant).
[67]
By
reading the conditions of release contained in Mahjoub, 2007 FC 171,
above, dated February 15, 2007, one can notice that the intercepted
communications were part of a totality of conditions designed to ensure that
the danger identified to Mr. Mahjoub would be neutralized (see Mahjoub,
2007 FC 171, above, at para 158). These communications were intercepted to
ensure the monitoring of the Applicant’s activities so that nothing could be
done to facilitate “[…] any threat or danger posed by Mr. Mahjoub’s release.”
Without his wife’s and her son’s consents to the interception of telephone
conversation, there would not have been a release from detention of the
Applicant.
[68]
During
these proceedings, this Court did inquire with counsel for the Applicant if his
wife and her son had consented or would give consent to the disclosure request
of the Applicant of the intercepted communications involving her and her son.
The response given after verification was that no consent was or would be given.
[69]
The
conversations of his wife and her son with others are personal information under
the Privacy Act. It is information that relates to their respective lives,
their contacts and the show of their personal needs, wishes, feelings,
depending on the interlocutors. The Applicant has no right of access to their
personal information. Section 26 of the Act makes that clear.
[70]
The
fact that the intercepted communications were judicially ordered and that consents
were given at the time of release does not render this personal information
public for Mr. Mahjoub’s purposes. The consents given by the wife and her
son were not for Mr. Mahjoub to have access to their personal information, but they
were rather made for the CBSA in order to allow the Applicant’s release from detention.
[71]
In
his written submissions, the Applicant only argued that the consents given by his
wife and her son under the conditions of release should be considered as
extending to the Applicant’s disclosure request. For the reasons given above,
this argument cannot be accepted. Nothing else was submitted concerning section
8 and subsection 8(2) of the Act.
[72]
Therefore,
the exemption under section 26 to justify the non-disclosure of the intercepted
communications involving the Applicant’s wife and her son were correctly relied
upon subject to the subparagraphs 8(2)(m)(i) and (ii) of the Act, dealing
with the discretion to exercise, which shall be discussed later.
[73]
As
for the second category of interceptions involving Mr. Mahjoub with third
parties, the Applicant simply argues that the intercepted conversations
involving him with others should be disclosed even though no consent was given
by his interlocutors.
[74]
He
submits that as a participant to these conversations, he should be granted
access to these intercepted communications. In response to this, the Respondent
suggests that since no consent was given by the interlocutors, this does not
entitle him to obtain the intercepted communications. Nothing else was said and
no jurisprudence was submitted to support the Applicant’s submission.
[75]
These
intercepted communications involving Mr. Mahjoub with interlocutors constitute,
as it concerns the Applicant, personal information under section 12 of the Act,
and if such is the case for him – as it is – this
information must necessarily also be personal with respect to his interlocutors
under section 26 of the Act. This protection cannot only benefit Mr.
Mahjoub to the exclusion of his interlocutors. Mr. Mahjoub might have a right to
access such information, but his interlocutors benefit from the protection of their
privacy, as they have a right to withhold from public disclosure the fact that
they spoke to him and what was said during these conversations. On that basis,
the section 26 exemption was correctly relied upon by the Respondent. Pursuant to
section 48 of the Privacy Act, I have considered releasing the
content of the conversations but without references to the names and phone
numbers of the interlocutors. This raises the following problems: the
conservations may disclose indirectly the identification of the interlocutors depending
on the use that Mr. Mahjoub may do with them, and for the reasons to
follow, these conversations are subjected to the exemption found in
paragraph 22(1)(b) of the Privacy Act. In any event, the
Applicant did not suggest that this was an alternative to follow.
[76]
No
consent was given by any of the interlocutors. Therefore, this information is
to be protected from disclosure subject to the discretion contained in subparagraphs
8(2)(m)(i) and (ii) of the Privacy Act which will be discussed
later.
[77]
As
for the third category of the interceptions, conversations between Mr. Majhoub
and his counsel raise a different set of issues.
[78]
A
bit of factual history is important. The intercepted communications procedure
for this period began after his release from detention in 2007 under the first
certificate procedure. While Mr. Mahjoub was in detention, Justice
Blanchard found that no interceptions were actualized (see Mahjoub (Re), 2013 FC 1095,
above, at
para 204). At the time of his release, Mr. Mahjoub was subjected to strict
conditions. In the fall of 2008, during the second certificate procedure, it
became known that all conversations involving the Applicant with his counsel
were intercepted and, to a limited extent, listened to. In December 2008,
the matter was referred to the designated judge, the late Madam Justice Layden-Stevenson.
An ex parte, in camera hearing was held on the matter, a witness
was questioned, arguments were submitted with the involvement of public counsel,
and based on the release of a summary of evidence of the in camera
hearing, an Order was issued December 19, 2008 (see Madam Justice Layden-Stevenson’s Order
rendered in docket DES-7-08), which amended the conditions
of release of April 11, 2007 to specify that when conversations of the
Applicant with counsel occurred, monitoring had to stop, and that the recorded conversations,
if any, had to be deleted. (See also communication from the Court to Mr.
Mahjoub and counsel of December 18, 2008 with Appendix A.)
[79]
The
December 18, 2008 summary of evidence had this to say on the matter:
All intercepted communications, including
solicitor-client communications, if any, to the extent of being satisfied that
the communication does not involve a potential breach of the terms of release
or a threat to national security, were monitored (paragraph 11).
[80]
As
part of the certificate procedure, in an Order dated January 20, 2011, Madam Justice
Mactavish, although partly rejecting Mr. Mahjoub’s request to access documents
that the Ministers claimed as solicitor-client and litigation privilege, did
conclude that the interception of the solicitor-client telephone conversations
showed “[…] prima facie actionable misconduct by the Ministers in
relation to these proceedings.” (See Madam Justice Mactavish’s Order
rendered on January 20, 2011 in docket DES-7-08, at page 10.)
[81]
In
Mahjoub
(Re), 2013 FC 1095,
above, with
respect to Mr. Mahjoub’s two motions for a permanent stay of proceedings based
on violations of the Charter and abuse of the Court’s process,
Justice Blanchard dealt with the interception of conversations between the
Applicant and his counsel for the period between June 14, 2007 (at the time of
release from detention) and December 19, 2008 which covers the period for the
access request (from April 11, 2007 to May 12, 2008). As noted earlier, Justice
Blanchard found that, while Mr. Mahjoub had been in detention (from April 11,
2007 to June 14, 2007) there had been no interception of communications
(see Mahjoub
(Re), 2013 FC 1095,
above, at
para 204).
[82]
As
seen earlier, in Mahjoub
(Re), 2013 FC 1095, above,
at paras 207 and 221, Justice Blanchard concluded that the intercepted calls
involving counsel with the Applicant were protected by the solicitor-client
privilege and that listening to them, even partially, constituted a breach of this
privilege. It is not the intention of this Court to conclude otherwise since
the certificate judge had all the evidence to decide on this issue. In the present
proceedings, counsel for the Respondent did not suggest that the conversations
were not protected by a solicitor-client privilege and he did not address the three
criteria to establish solicitor-client privilege, as defined in Solosky v
Her Majesty the Queen, [1980] 1 S.C.R. 821 at para 837.
[83]
As
a matter of fact, counsel for the Respondent qualified the five (5) intercepted
communications that have not been disclosed as being “[…] five (5)
solicitor-client conversations” in their letter to the Court dated October 3,
2013. Therefore, I find them to be five (5) solicitor-client conversations.
[84]
As
noted earlier, during the certificate proceedings, Mr. Mahjoub had already
received the communication of 695 solicitor-client conversations as a
result of different requests. Even the logs of the intercepted solicitor-client
conversations were disclosed to the Applicant on December 22, 2010
(see Mahjoub
(Re), 2013 FC 1095,
above, at paras 423 to 426).
[85]
Therefore,
I have to take notice that a finding of a prima facie actionable
misconduct by the Ministers was made by a judge of this Court concerning the
interception of telephone conversations of the Applicant with his counsel and
that the certificate judge found that by listening to some of these
conversations, the solicitor-client privilege was breached.
[86]
In
such a case, how can the paragraph 22(1)(b) and section 26 exemptions
under the Privacy Act be used to protect from disclosure the five (5) remaining
solicitor-client conversations?
[87]
It
is recognized that national security exemptions cannot be used to protect
information that, if disclosed, would be embarrassing or expose a wrongdoing
(see Canada (Attorney General) v Canada (Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar – O’Connor Commission),
2007 FC 766, [2007] FCJ No 1081 [Arar] at para 60 and Khadr v Canada
(Attorney General), 2008 FC 549, at paras 86 to 89). I consider that
in the present proceeding, the above principle applicable to national security
exemptions also applies to the section 26 and paragraph 22(1)(b)
exemptions involving the Applicant and the telephone conversations with his
counsel.
[88]
Therefore,
I find that such a breach of the solicitor-client privilege cannot be saved by the
section 26 or paragraph 22(1)(b) exemptions under the Privacy
Act.
[89]
As
such, the Respondent shall release to the Applicant the 5 (five) remaining
recorded conversations involving the Applicant and his counsel.
C. Is paragraph 22(1)(b)
of the Privacy Act a valid basis to justify non-disclosure?
[90]
The
Applicant does not submit that the interception of the calls was not done as
part of an investigation. It is his submission that it was judicially
authorized with consent from the household members and that the purpose was to
monitor compliance with the terms and conditions of release and that, therefore,
it cannot be expected to be injurious to international affairs, national defence
or anything related to subversive activities or in the case of paragraph 22(1)(b)
of the Act to the enforcement of any Canadian law or the conduct of lawful
investigations.
[91]
Subsection
22(3) of the Privacy Act defines investigation. The jurisprudence has
given it a large sense. It can be past, present and future investigations, and
even an investigative process in general (see Lavigne, above, at para
52). The word investigation has a broad meaning which covers the role of both
the Security Intelligence Review Committee (SIRC) and the CBSA in ensuring that
the Applicant complies with the conditions of release so that they neutralize
the danger to which he was associated by the certificate judge (see Mahjoub,
2013 FC 1092, above, at para 673).
[92]
This
responsibility attributed to the enforcement agencies by the certificate judge cannot
simply be limited, as desired by the Applicant, to the role of a collector of
information for the purposes of validating that the conditions of release are
being complied with. Know-how, experience and investigatory means are essential
components that permit the Agencies to do such tasks.
[93]
For
the agencies involved, the content of investigations is as important as the tools
used for investigating. Content as it was collected is useful for ongoing investigations
but also for future use depending on the requirements of the time of any
investigations that may be called for in order to ensure that the conditions of
release are respected and also that the danger associated to the Applicant
remains neutralized.
[94]
As
mentioned earlier, the certificate issued against the Applicant has been found to
be reasonable, and conditions of release still exist, although to a lesser
degree, and it is still the opinion of the certificate judge that he remains a
danger (see Justice Blanchard’s Reasons for Order in Mahjoub
(Re),
2013 FC 10, at para 61,
[2013] FCJ No 77).
[95]
The
Applicant argued that the interceptions were solely made for the purpose of
verifying the terms and conditions of release. As mentioned in the preceding paragraphs,
this limited scope does not take in consideration that the Applicant was and
remains associated to a danger. In order to assess this danger, an ongoing
investigation is called for. There was a judicial authorization to intercept
the telephone conversations to allow the Applicant’s release from detention. To
that end, telephone calls were intercepted and kept. The Applicant did
summarily make a reference to section 8 of the Charter but did not develop
this argument further. It is not the intention of this Court to deal at length
with this argument except to say that the interceptions of the telephone calls
were judicially authorized and consented to by the Applicant, his wife and her
son. The interceptions were part of an ongoing investigation of the Applicant
because he was and still is associated to a danger, and the terms and
conditions of release (which included the interception of calls) were designed to
neutralize that danger. Compliance to the terms and conditions of release were
essential to ensure the neutrality of the danger associated to the Applicant.
[96]
Therefore,
the intercepted calls are part of an investigation that is subject to the exception
of the law enforcement and investigation provision contained in paragraph 22(1)(b)
of the Privacy Act. The following part shall deal with the discretion
given to the decision-maker never to assess the injury to any laws or
investigations resulting from disclosure.
D.
If the answer to the 3 (three) precedent issues is that both exemptions are
validly claimed, has the discretion associated to each one of them been
exercised?
[97]
In
order to be properly relied upon, all these exemptions call
for the exercise of discretion. In the case of the exemption under section 26
of the Privacy Act (information about another individual), paragraph 8(2)(m)
of the Act requires that balance be struck between the public interest in
disclosure and any invasion of privacy if disclosure occurs, and further
requires that such disclosure should benefit the individual to whom the
information relates. For the paragraph 22(b) exemptions, the
statute requires that there must be a reasonable expectation of injury to any
law of Canada or lawful investigations.
[98]
In
his written submissions, the Applicant does not discuss the discretion related
to the section 26 exemption of the Act. The record does not indicate if at any
time the Applicant submitted anything that would relate to that balancing of
the public interest in disclosure versus the detriment caused by an invasion of
privacy or, as a matter of fact, anything showing a benefit for the person to
whom the information relates.
[99]
As
suggested by the Respondent, Mr. Tessier has released, to the satisfaction of
the Applicant, the intercepted mail and recordings including medical reports, surveillance
reports, incidents, memos of CBSA, etc. [...] As the record shows, the
disclosure was substantial and voluminous (see Applicant’s counsel’s letter of
February 10, 2010, Applicant’s Record at
pages 26, 27).
[100] This
exercise in disclosure shows that Mr. Tessier considered the disclosure to be
made and had to assess any injury or damage should some documents be disclosed and
not others. This can only explain why some documents and not others could be
released. An exercise of discretion had to be done, and I find that it was done
in this case. His affidavit of July 7, 2011 at paragraph 6, although it repeats
some of the vocabulary of the exemption sections of the statute, actually supports
such a finding. As suggested in Leahy, above, at para 134, the minimum
required to demonstrate the exercise of discretion is to show that the decision-maker
was aware of the discretion to be exercised:
[134] At a minimum, the reasons or the record should
show that the decision-maker was aware of this discretion to release exempted
information and exercised that discretion one way or the other.
I am satisfied that Mr. Tessier was,
at a minimum, aware of the discretion to be exercised.
[101] A
reviewing Court, in such a situation, must ask itself whether or not the
exercise of discretion is inconsistent with the Privacy Act’s principles
and purposes and also if its exercise is reasonable (see Halifax (Regional
Municipality) v Canada (Public Works and Government Services), 2012 SCC 29,
[2012] 2 S.C.R. 108, at para 43). The protection of information concerning his
wife, his stepson and telephone interlocutors is information that the Privacy
Act’s principles and objectives seek to protect, and the section 26
exemption validly relied upon needs to have its full effect in this case. I do
not see any public interest in disclosing the information to the detriment of
privacy, and I note that only the private interest of the Applicant is at play
and that he alone would benefit from such disclosure. This is not what the Privacy
Act calls for. The exercise of discretion, although succinct, as shown
above is reasonable. Therefore, the use of the section 26 exemption was correct,
and, as such, the information sought was justifiably not disclosed and the
discretion reasonably exercised.
[102] As
for the discretion associated to a reasonable expectation of injury to the enforcement
of any law of Canada or to the conduct of any lawful investigation under the paragraph 22(1)(b)
exemption of the Privacy Act, the precedent reasons again show that an
assessment was done in order to disclose some information but not others. Coming
to such a conclusion indicates that a discretion must have been exercised in
order to assess the injury. Otherwise, why would some documents be disclosed
and not others? Such conclusion calls for the exercise of a reasonable
expectation of injury.
[103] As
mentioned earlier, Mr. Tessier affirms in his February 2012 affidavit that he
did not disclose the information given or the detailed reasons for that non-disclosure
because he was of the view that doing so could reasonably be expected to be injurious
to the enforcement of Canadian legislation or the conduct of lawful investigations
which relates to the existence or nature of a particular investigation and was
obtained or prepared in the course of an investigation. Therefore, I find that,
at a minimum, Mr. Tessier was aware of the discretion to be exercised but also that,
taking everything in consideration, the discretion was effectively and
reasonably exercised in the circumstances. Therefore, the use of the paragraph 22(1)(b)
exemption was correct, and, as such, the exercise of discretion was reasonable
and the information sought should not be disclosed to the Applicant.
[104] In
conclusion, I find that both the section 26 and paragraph 22(1)(b)
exemptions were validly claimed. Furthermore, I find that the discretion was effectively
exercised with respect to both exemptions and reasonably so. Of course, these
findings exclude the fact that I have also determined that the five (5)
remaining communications between the Applicant and his counsel must be
disclosed for the reasons mentioned above.
[105] Since
I have come to this conclusion, it is not necessary to deal with the national
security exemption (section 21 and subparagraph 22(1)(a)(iii) of the Privacy
Act).
[106] As
for costs, I note that both parties are claiming them. This procedure, although
not directly related to the certificate immigration procedure, has its roots in
facts and circumstances related to it. As counsel know, in immigration procedures,
the granting of costs is very exceptional (see Federal Courts Immigration
and Refugee Protection Rules, SOR/93-22).
[107] For
the reasons mentioned in the foregoing paragraph, but also considering the limited
mix result to which I have arrived as well as Rule 400 of the Federal Courts
Rules, I will not grant costs to any of the parties.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review of the March 12, 2010 decision is granted in
part.
2.
The
Respondent shall disclose to the Applicant only the five (5) telephone
conversations involving the Applicant with his counsel as described in paragraph
22 in the form of a CD-ROM.
3.
The
exemptions pursuant to sections 26 and 22(1)(b) of the Privacy Act
relied upon by the Respondent for the remaining non-disclosed telephone communications
are found to be valid.
4.
No
costs shall be granted.
“Simon Noël”
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