Date: 20110527
Docket: A-198-09
Citation: 2011 FCA 182
CORAM: BLAIS
C.J.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
AMIR ATTARAN
Appellant
and
MINISTER OF FOREIGN AFFAIRS
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] Professor Amir Attaran, the appellant, asked the
Department of Foreign Affairs and International Trade (DFAIT) to give him
copies of its annual human rights report concerning Afghanistan for the
years from 2001 to 2006. In response, Professor Attaran was told that no report
existed for 2001. He was given redacted reports for the years from 2002 to
2006. Professor Attaran then complained to the Information Commissioner
(Commissioner) under the Access to Information Act, R.S.C. 1985, c. A-1
(Act) that the redactions to the reports were excessive. Later, he received
less redacted versions of the reports from DFAIT. Still not satisfied,
Professor Attaran brought an application in the Federal Court for judicial
review of DFAIT’s decision to redact portions of the reports.
[2] A
Judge of the Federal Court, in reasons cited 2009 FC 339, ordered the
disclosure of one excerpt found at page 117 of the 2005 report and also found
at page 140 of the 2006 report. This disclosure was ordered because the excerpt
had been reported in The Globe and Mail newspaper on April 25, 2007 and
had also been disclosed in other proceedings in the Federal Court. Apart from
ordering this disclosure, the Judge dismissed the application for judicial
review without costs to either party. Professor Attaran now appeals from the
decision of the Federal Court.
[3] At
the hearing of this appeal, Professor Attaran’s counsel advised that only one
of the grounds of appeal advanced in the appellant's memorandum of fact and law
would be pursued. The sole issue before this Court is whether the Federal Court
erred in finding that the respondent’s discretion under subsection 15(1) of the
Act was exercised and, if so, whether the discretion was exercised reasonably.
[4] For
the following reasons, I would allow the appeal with costs both here and in the
Federal Court because of the respondent’s failure to exercise the discretion
conferred by subsection 15(1) of the Act. I would return the matter to the
respondent for the purpose of allowing the respondent to exercise the
discretion conferred under subsection 15(1) of the Act.
1. Factual
Background
[5] For
the purpose of this appeal, it is sufficient to set out the following facts to
supplement those contained in the above introduction:
1.
Professor
Attaran made his access request on January 24, 2007. DFAIT responded to
Professor Attaran’s access request on April 23, 2007 by providing redacted
copies of the Afghanistan Human Rights Report for the years 2002 to 2006. The
initial redactions to the reports were based upon the provisions of section 17,
subsections 13(1) and 15(1), and paragraphs 21(1)(a) and
21(1)(b) of the Act. These provisions are set out in the appendix to
these reasons.
2.
Professor
Attaran complained to the Commissioner on April 24, 2007.
3.
On
November 15, 2007, DFAIT provided Professor Attaran with versions of the
reports which contained fewer redactions. This production was explained by DFAIT
to be the result of “the production of documents for litigation under section
38 of the Canada Evidence Act.” More specifically, DFAIT advised that it
had:
[…] made available to the public on
November 14, 2007 more information from these reports as part of the court
process and even though the exemption test is broader under the Access to
Information Act, it was felt that within the spirit and intent of
the Access to Information Act, these reports previously processed by my
office should now mirror each other as much as possible.
In other words, no
information that was made public yesterday as a result of the court process is
now being withheld under an exempting provision of the Access to Information
Act.
4.
By
letter dated November 19, 2007, the Commissioner's office reported to Professor Attaran
about the result of the investigation into his complaint. The Commissioner's
office advised that:
a.
No
report on Afghanistan was produced
for the year 2001.
b.
DFAIT
had been asked to reconsider the redactions made on certain pages of the
reports. As a result, additional information had been disclosed by DFAIT in its
letter of November 15, 2007.
c.
DFAIT
no longer relied upon paragraphs 21(1)(a) and (b) of the Act in
order to withhold information from disclosure.
d.
All
information withheld under subsection 13(1) of the Act was also withheld under
subsection 15(1) of the Act. Therefore, the Commissioner’s findings were
restricted to subsection 15(1) of the Act.
e.
The
Commissioner was of the opinion that all of the information withheld under
subsection 15(1) of the Act “could reasonably be expected to be injurious to
the conduct of international affairs if released.” In the Commissioner’s view,
the provision was properly invoked and he was satisfied that DFAIT properly
exercised its discretion in the application of the exemption.
f.
With
respect to the exemptions claimed under section 17 of the Act, the Commissioner
noted that this exemption was used sparingly. The Commissioner was of the view
that there were sufficient grounds to warrant the invocation of this provision
and that the exemption was properly invoked.
g.
To
conclude, the Commissioner would record the complaint as having been resolved.
5.
Before
the Federal Court, Professor Attaran clarified that he only sought disclosure
of any references in the reports to torture. He accepted that references to
individuals, agencies or allies in Afghanistan were exempt from disclosure
under the Act because such disclosure could reasonably be expected to be
injurious to Canada's
international relationships with those individuals or agencies.
6.
On
November 25, 2010, counsel for the respondent provided counsel for the
appellant and this Court with revised copies of 4 pages from the human rights
reports in issue. Each page contained fewer redactions. The respondent also
disclosed a less redacted version of a relevant document entitled “Afghanistan – 2006: Good
Governance, Democratic Development and Human Rights.” This less redacted
document had been disclosed by the Deputy Minister of Foreign Affairs to the
Military Police Complaints Commission in the context of a proceeding before
that body.
7.
In
view of the appellant’s limitation on the scope of his requested disclosure and
the November 25, 2010 disclosure, only 3 redactions found on two pages of the relevant
records are at issue in this appeal.
8.
Subsection
15(1) of the Act permits, but does not mandate, the head of a government institution
to refuse to disclose a record that contains “information the disclosure of
which could reasonably be expected to be injurious to the conduct of
international affairs.” No challenge is made by Professor Attaran on this
appeal as to whether the redacted information falls within that description. At
issue is whether DFAIT lawfully exercised its discretion not to disclose the
information.
2. The Decision
of the Federal Court
[6] After
reviewing the background facts and describing the affidavit evidence, the Judge
set out the issues before the Court and the legislative framework.
[7] The
Judge went on to review the standard of review to be applied to the decision to
redact portions of the reports and the burden of proof. Relying upon the
decision of this Court in 3430901 Canada Inc. v. Canada (Minister of
Industry), 2001 FCA 254; [2002] 1 F.C. 421 (Telezone), he found that
the Court must apply the standard of correctness to the question of whether a
requested record falls within a provision of the Act which exempts a record
from disclosure. Where a discretion is conferred to refuse disclosure, the
lawfulness of the exercise of discretion is to be reviewed on the
reasonableness standard.
[8] With respect to the burden of proof, the Judge quoted the
following extract from paragraph 89 of this Court’s decision in Telezone:
[…] when in review proceedings
instituted under section 41 or 42 the Minister has
discharged the burden of establishing that a document falls within an
exemption, the proceeding must be dismissed unless the applicant satisfies the
Court that the Minister failed lawfully to exercise the discretion to refuse to
disclose an exempted document.
[9] Relying upon this authority the Judge wrote at paragraph 31 of his
reasons:
31. Thus, initially the burden of proof is on the respondent to
show that the record falls within the exemption. If the respondent's evidence meets
this burden, the obligation shifts to the applicant to rebut this evidence by
showing that the Minister's exercise of his discretion was unreasonable.
[10] Turning
to his analysis of the issues, the Judge noted that in addition to the public
evidence, the Court had received confidential ex parte affidavit
evidence, as permitted by section 52 of the Act (this section is also set out
in the appendix to these reasons). A brief summary of the nature of that
evidence was provided by the Judge. The Judge observed that the confidential
information showed that the Commissioner had performed a thorough investigation
of the appellant's complaint in which a number of probing questions had been
put to DFAIT.
[11] With
respect to the redactions at issue, setting aside the excerpt that the Judge
ordered be disclosed on the ground that it was already in the public domain,
the Judge wrote that he was satisfied that “the decision not to disclose
portions of the reports was reasonably open to the decision-maker under sub-section
15(1) of [the Act], so that the Court cannot set aside this decision” (reasons
at paragraph 46). He then went on, at paragraphs 47 to 49 of his reasons, to
write:
47. There
is clear and direct evidence from a senior officer of the Canadian Forces and
from a senior official at the Department of Foreign Affairs and International
Trade that disclosure of the redacted portions of the documents involving the
Afghan military, the Afghan intelligence agency, and the Afghan police forces
could reasonably be expected to be injurious to the conduct of Canada's
international affairs with these agencies of the Afghan government. The
confidential evidence points to specific examples of where public criticisms by
a Canadian official have strained Canada's ability to work with the Afghan authorities for some
time thereafter. Accordingly, there is evidence of repercussions or reactions
from the Afghans when Canada has publicly and officially criticised an Afghan official
or Afghan agency.
48. The
Court cannot ignore, discount or substitute the Court's opinion for the clear
evidence and opinion of a commander in the Canadian forces and a senior
official at the Department of Foreign Affairs and International Trade that
public disclosure of the redactions in these documents can reasonably be
expected to be injurious to the conduct of Canada's international affairs with
Afghanistan. […]
49. If
reports of torture in Afghanistan from the U.S., the United Nations and the
Afghan Independent Human Rights Commission are on the public record, this does
not mean that such comments from Canada in an official report, would not be
injurious to Canada’s relationships in Afghanistan.
[12] While
the Judge noted the existence of the discretion to refuse disclosure, and
applied the reasonableness standard of review, the Judge did not expressly
consider whether the respondent had considered both the applicability of
subsection 15(1) of the Act to the redacted information and the exercise
of discretion with respect to the application of the exemption.
3. The
Legislative Framework
[13] This
case turns upon the proper application of subsection 15(1) of the Act. While
the subsection is set out in full in the appendix to these reasons, for ease of
reference the relevant portion of subsection 15(1) is set out below:
|
15. (1) The head of a
government institution may refuse to disclose any record requested
under this Act that contains information the disclosure of which could
reasonably be expected to be injurious to the conduct of international affairs,
the defence of Canada or any state allied or associated with Canada or the
detection, prevention or suppression of subversive or hostile activities,
including, without restricting the generality of the foregoing, any such
information [emphasis added]
|
15. (1)
Le responsable d’une institution fédérale peut refuser la communication de
documents contenant des renseignements dont la divulgation risquerait
vraisemblablement de porter préjudice à la conduite des affaires
internationales, à la défense du Canada ou d’États alliés ou associés
avec le Canada ou à la détection, à la prévention ou à la répression
d’activités hostiles ou subversives, notamment : [Non souligné dans
l’original.]
|
4. Analysis
i) The Standard of
Review
[14] I begin by observing that it is important to understand the exercise
mandated by subsection 15(1) of the Act. The subsection provides that the head
of a government institution “may refuse” to disclose any record. This requires
a two-step exercise. The first step the head must take is to determine whether
disclosure could reasonably be expected to be injurious to the conduct of
international affairs. If the determination is that it may, the second step is
to decide whether having regard to the significance of the risk and other
relevant factors, disclosure should be made or refused. See, by parity of
reasoning, Ontario (Public Safety and
Security) v. The Criminal Lawyers’ Association,
2010 SCC 23, [2010] 1 S.C.R. 815 (Criminal Lawyers’ Association) at
paragraph 48.
[15] In the present case, no challenge is made to the determination that
disclosure could reasonably be expected to be injurious to the conduct of
international affairs. The appellant argues, however, that there is no
evidence in the public record that the respondent turned its mind to the
exercise of discretion under subsection 15(1) of the Act.
[16] Therefore,
the first question for this Court is, on the entirety of the record (both
public and ex parte), can the Court be satisfied that the respondent
turned its mind to the exercise of discretion? As noted above, this was not an
issue considered by the Judge.
[17] As
stated by the Supreme Court in Criminal Lawyers’ Association at
paragraph 46, a discretion conferred by statute must be exercised consistently
with the purposes underlying its grant. This is consistent with Telezone where
this Court stated, at paragraph 47, “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.” One ground of administrative review is that a discretion
conferred by statute must be exercised within the boundaries imposed by the
statute. See: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 56. Thus,
the parties do not dispute that this Court may intervene if the respondent did
not consider the exercise of discretion.
[18] If the Court is satisfied that the discretion was exercised, the
second question is whether the discretion was exercised reasonably.
ii) The Burden of Proof
[19] The parties did not address in any detail the Judge’s conclusion
with respect to the burden of proof. Accordingly, the Court sought and received
supplementary written submissions on the burden of proof. Relying upon Ruby
v. Canada (Solicitor General), [2000] 3 F.C. 589, the appellant
argued that the burden of proof was on the respondent to demonstrate that
section 15 of the Act applied to the records at issue and that the discretion
was exercised in a reasonable manner. The respondent submitted that the Judge
was correct to state that once it is established that section 15 of the Act applies,
the burden of proof shifts to Professor Attaran to demonstrate that the
exercise of discretion was unreasonable. The respondent did, however, draw the
attention of the Court to the obiter statements of the Supreme Court of
Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 at paragraphs 60 and 65. There Justice Gonthier,
writing for the Court, spoke of the requirement placed upon a government
institution to justify the exercise of its discretion not to disclose a record.
[20] In my respectful view, the Judge erred in law in relying upon
paragraph 89 of this Court’s decision in Telezone to place the burden of
proof upon the appellant. The Court’s reasons in Telezone, read
in their entirety, show that the burden of proof is dependent upon the
particular circumstances before the Court. My reasons for this conclusion
follow.
[21] Consideration of the burden of proof must begin with this Court’s
decision in Ruby. While the decision was varied on appeal to the Supreme
Court, 2002 SCC 75, [2002] 4 S.C.R. 3, this Court’s analysis of the burden of
proof was not the subject of any adverse comment in the Supreme Court.
[22] Ruby was an application for access to personal information
under the Privacy Act, R.S.C. 1985, c. P-21. The provisions of the Privacy
Act are closely related to the provisions of the Act. As in the present
case, not all of the evidence before the Court in the application was disclosed
to Mr. Ruby, and an in camera ex parte hearing was held. This was
relevant to the Court’s conclusion with respect to the burden of proof and led
to its conclusion that the burden of proof should not be imposed on Mr. Ruby
because of his lack of access to the entire record. At paragraphs 36 to 39 the
Court wrote:
36. […] Even if a person is informed that
a bank does contain personal information about him or her, how can that person,
who does not know what the information is, meet an evidential burden of
questioning the exercise of discretion by the government authority who refuses
access to it?
37. The situation of the appellant or
of a person in his position is further aggravated by the fact that the a
posteriori judicial review before the Federal Court pursuant to section 41
of the Act, whose purpose is to review the discretion exercised by the
authorities, may take the form of an in camera and ex parte
hearing at which secret affidavit evidence can be filed by the head of the
government institution. An applicant like the appellant does not and cannot
know if that new evidence offered in support of a claim that the institution's
discretion was properly exercised contains irrelevant considerations or fails
to disclose relevant considerations which could have affected the exercise of
discretion by the authorities.
38. In our view, in these peculiar
circumstances—where accessibility to personal information is the rule and
confidentiality the exception, where an applicant has no knowledge of the
personal information withheld, no access to the record before the court and no
adequate means of verifying how the discretion to refuse disclosure was
exercised by the authorities, and where section 47 of the Act clearly puts on
the head of a government institution the burden of establishing that it was
authorized to refuse to disclose the personal information requested and,
therefore, that it properly exercised its discretion in respect of a specific
exemption it invoked—an applicant cannot be made to assume an evidential burden
of proof. As this Court said in Rubin v. Canada (Canada
Mortgage and Housing Corp.)9 in relation to closely related legislation,
the Access to Information Act, R.S.C., 1985, c. A-1, which contains a
provision similar, if not identical,10 to section 47 of the Act:
This section places the onus of proving an exemption
squarely upon the government institution which claims that exemption.
The
general rule is disclosure, the exception is exemption and the onus of proving
the entitlement to the benefit of the exception rests upon those who claim it.
39. It is the Court's function on an
application for review under section 41 of the Act to ensure that the
discretion given to the administrative authorities "has been exercised
within proper limits and on proper principles."11 This is why
the reviewing Court is given access to the material in issue by section 45 of
the Act. In our view, an applicant who, pursuant to section 41 of the Act,
applies for judicial review of an institution's refusal to disclose the
personal information requested, by definition, questions the validity of the
exercise of discretion by that institution and nothing more is required from
him or her. In such circumstances, this is the best an applicant can do. This
is the most an applicant should be held to.
[emphasis
added and footnotes omitted]
[23] The Ruby decision was considered, and distinguished in Telezone.
At paragraphs 93 to 96 the Court wrote:
93. In reasons concurred in by Sexton
J.A., Létourneau and Robertson JJ.A. explained (at paragraph 30) why the normal
rule imposing the burden of proof on the party seeking judicial review did not
apply to the case before them:
However, the situation is different in matters
of access to confidential information since section 47 of the Act puts on the
head of a government institution the burden of proving an exemption. We shall
come back to the scope of this burden later on. Suffice it to say for the time
being that, in our view, it encompasses both the burden of proving that the
conditions of the exemptions are met and that the discretion conferred on the
head of a government institution was properly exercised.
Sections 47 and 48 of the Privacy Act
are not materially different from sections 48 and 49 of the Access to
Information Act.
94. After noting that the appellant in that case
had not been told whether the personal information banks to which he had
requested access contained information about him, the Court stated (at
paragraph 36) the rationale for its conclusion on the burden of proof:
Even if a person is informed that a bank does
contain personal information about him or her, how can that person, who does
not know what the information is, meet an evidential burden of questioning the
exercise of discretion by the government authority who refuses access to it?
95. In my opinion, however, the statements
in Ruby, supra, on the burden of proof must be read in light of
what the Court regarded (at paragraph 38) as the “peculiar circumstances” of
the case, namely,
... where accessibility to personal information
is the rule and confidentiality the exception, where an applicant has no
knowledge of the personal information withheld, no access to the record before
the court and no adequate means of verifying how the discretion to refuse
disclosure was exercised by the authorities, and where section 47 of the [Privacy]
Act clearly puts on the head of a government institution the burden of
establishing that it was authorized to refuse to disclose the personal
information requested and, therefore, that it properly exercised its discretion
in respect of a specific exemption it invoked ...
96. Some of these circumstances
are not present in the case before us. In particular, the Commissioner and Telezone
are well aware of the nature of the information about the decision-making
process that Industry Canada has refused to disclose. In addition, the
Commissioner and counsel for Telezone know the content of the material filed in
confidence with the Court, including explanations by officials of Industry Canada of the
factors considered in the exercise of the discretion to disclose. The essence
of the appellants' complaint is that, in the absence of an affidavit by the
Minister's delegate who decided not to disclose the requested documents, they
have effectively been deprived of an opportunity to conduct a cross-examination. [emphasis
added]
[24] Telezone did not purport to overturn Ruby. Rather, in Telezone
the Court recognized that the burden of proof would depend upon the
circumstances before the Court.
[25] The respondent argues that the case at bar is distinguishable from Ruby
because the appellant knows the “general nature of the information at
issue,” the majority of the reports in issue have been released, and because he
was able to cross-examine two officials from the responsible government
institution on their public affidavits.
[26] However, the appellant is unaware of the precise content of the unredacted
record, unaware of the ex parte evidence filed by the respondent and
unaware of the ex parte submissions made by the respondent in the in
camera hearing. The public affidavits were silent on what if any factors
were considered in the exercise of discretion. The Federal Court provided no
explanation for its conclusion that the respondent had considered the exercise
of discretion. The appellant argues there is no evidence in the public record
that consideration was given to the exercise of discretion. He has no means of
verifying from the ex parte record if the discretion was exercised.
[27] In my view, the circumstances in this case are analogous to those
before this Court in Ruby. The appellant cannot be required in this case
to bear the burden of establishing on a confidential record he cannot access
that the respondent failed to give consideration to the exercise of discretion.
The burden of proof is on the respondent to establish that the discretion was
exercised in a reasonable manner.
iii) Did the respondent
turn its mind to the exercise of discretion?
[28] The
respondent argues that the Court should infer from the following evidence that
the decision-maker considered her discretion to disclose information:
a.
The
affidavit evidence of Monique McCulloch to the effect that there was discussion
between the Access and Human Rights divisions of DFAIT between March 5 and
April 13, 2007. The purpose of this dialog “was to ensure that as much
information as possible could be released to the requester while still ensuring
that the exemptions in the Access Act were properly applied.”
b.
The
process of the Commissioner's investigation. The Commissioner’s role is to
ensure the release of as much information as is possible.
c.
The
continued release of information.
Each will be considered in turn.
[29] First,
Ms. McCulloch’s statement is generic in nature and by itself cannot satisfy the
Court that the discretion conferred by subsection 15(1) of the Act was
exercised. Moreover, her statement that the purpose of the internal DFAIT
discussions was to see that “the exemptions in the Access Act were
properly applied” is consistent with an exercise where the concern was whether
particular information fell within an exemption. Such an inquiry is
insufficient if consideration is not also given to whether information falling
within the exemption may nonetheless be disclosed.
[30] Second,
I agree that the Commissioner’s role is to further the purpose of the Act.
Thus, the Commissioner’s role includes seeing that there is a right of access
to information in the records of government institutions in accordance with the
principle that such information should be available to the public, and that
exceptions to the right of access are limited and specific. See: subsection 2(1)
of the Act. That said, as this Court noted in Telezone at paragraph 42,
the Court is entitled to differ from the Commissioner on questions of law or
mixed fact and law without first having to satisfy itself that the
Commissioner's conclusion was unreasonable. This is because the Court’s mandate
is to review the refusal of access by the head of a government institution. The
Court does not review the decision of the Commissioner. Indeed, the information
put before the Court may be less extensive than that obtained by the
Commissioner in the course of her investigation. In this case information was
provided to the Commissioner not only in writing, but also in telephone conversations
and at a meeting.
[31] Finally,
turning to the inference (discussed in paragraph 28(c)) that the respondent
asks this Court to draw, I agree that on the record before the Court the most
compelling evidence is found in the respondent's conduct in continuing to
release, or not release, information to the appellant. This is because here, unlike
the record in Telezone, there are no internal memoranda dealing with specific
explanations or recommendations with respect to disclosure of the requested documents.
There is nothing to show that consideration was given to the existence of any
factors which may have favored disclosure. Thus, the question is whether the
Court can infer from the subsequent release or non-release of information that
the decision-maker considered her discretion to release information,
notwithstanding that the information otherwise fell within subsection 15(1) of
the Act.
[32] Before turning to
the evidentiary record, it is helpful to consider the nature of an inference. Drawing an inference is a matter of logic. As stated by the
Newfoundland Supreme Court (Court of Appeal) in Osmond v. Newfoundland
(Workers' Compensation Commission)
(2001), 200 Nfld. & P.E.I.R. 203 at paragraph 134:
[…] Drawing an inference amounts to a process of reasoning
by which a factual conclusion is deduced as a logical consequence from other
facts established by the evidence. Speculation on the other hand is merely a
guess or conjecture; there is a gap in the reasoning process that is necessary,
as a matter of logic, to get from one fact to the conclusion sought to be
established. Speculation, unlike an inference, requires a leap of faith.
[33] In
Squires v. Corner Brook Pulp and Paper Ltd. (1999), 175 Nfld. &
P.E.I.R. 202 (C.A.) the same court reviewed early Supreme Court of Canada and
House of Lords jurisprudence which discussed the distinction between inference
and conjecture. Justice Cameron, writing for the Court, stated:
113. In
Canadian Pacific Railway Company v. Murray, [1932] S.C.R. 112 at pp.
115-117 the Court approved the following from Jones v. Great West Railway
Co. (1930), 47 T.L.R. 39:
The dividing line between
conjecture and inference is often a very difficult one to draw. A conjecture
may be plausible but it is of no legal value, for its essence is that it is a
mere guess. An inference in the legal sense, on the other hand, is a
deduction from the evidence, and if it is a reasonable deduction it may have
the validity of legal proof. The attribution of an occurrence to a cause
is, I take it, always a matter of inference. The cogency of a legal
inference of causation may vary in degree between practical certainty and
reasonable probability.
114. The House of Lords in Caswell v. Powell Duffryn
Associated Collieries Ltd. [1940] A.C. 152 noted the difference between
conjecture and the drawing of an inference in these terms at pp. 169-70.
Inference must be carefully
distinguished from conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the other facts which it
is sought to establish. In some cases the other facts can be inferred with
as much practical certainty as if they had been actually observed. In other
cases the inference does not go beyond reasonable probability. But if there are
no positive proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture.
115. This
statement has been approved by the British Columbia Court of Appeal in Lee
v. Jacobson (1994), 120 D.L.R. (4th) 155 and by the Saskatchewan Court of
Appeal in Kozak v. Funk (1997), 158 Sask. R. 283. [emphasis added]
[34] An
inference cannot be drawn where the evidence is equivocal in the sense that it
is equally consistent with other inferences or conclusions.
[35] In the present case, there is nothing in the public or the ex
parte record before the Court, including the affidavits filed on behalf of
the respondent, which expressly demonstrates that the decision-maker considered
the existence of her discretion. However, the absence of such evidence is not
determinative of the issue. The same situation existed in Telezone where
the Court examined the record before it, including internal departmental
documents, in order to be satisfied that the decision-maker understood that
there was a discretion to disclose documents.
[36] Conversely,
just as the absence of express evidence about the exercise of discretion is not
determinative, the existence of a statement in a record that a discretion was
exercised will not necessarily be determinative. To find such a statement to be
conclusive of the inquiry would be to elevate form over substance, and
encourage the recital of boilerplate statements in the record of the
decision-maker. In every case involving the discretionary aspect of section 15
of the Act, the reviewing court must examine the totality of the evidence to
determine whether it is satisfied, on a balance of probabilities, that the
decision-maker understood that there was a discretion to disclose and then
exercised that discretion. This may well require the reviewing court to infer
from the content of the record that the decision-maker recognized the
discretion and then balanced the competing interests for and against disclosure,
as discussed by the Court in Telezone at paragraph 116.
[37] Turning
now to the evidence, I consider the following information from the record to be
helpful.
1.
On
April 23, 2007, DFAIT responded to the appellant's access request by providing
redacted copies of the human rights reports for the years 2002 to 2006.
2.
As
explained by the Judge, redacted from the 2006 report was the phrase:
Extra-judicial executions,
disappearances, torture and detention without trial are all too common.
3.
On
April 25, 2007, The Globe and Mail published a story that printed a
portion of the information redacted in the 2006 report provided to the
appellant alongside non-redacted portions of the same 2006 report which the
newspaper had obtained from a confidential source. The paper reported that:
Among the sentences blacked
out by the Foreign Affairs Department in the report’s summary is “Extrajudicial
executions, disappearances, torture and detention without trial are all too
common,” according to full passages of the report obtained independently by
The Globe. [emphasis added]
See: Appeal
Book, Volume II at page 328.
4.
As
the Judge noted at paragraph 11 of his reasons, on July 11, 2007 an employee of
the respondent “was cross-examined in another Federal Court proceeding and
authenticated under oath one excerpt of the disclosure in The Globe and Mail.
[He] confirmed that the 2006 report contained the words: Extra-judicial
executions, disappearances, torture and detention without trial are all too
common.”
5.
On
November 15, 2007, following the Commissioner’s investigation, DFAIT provided
less redacted versions of the reports to the appellant (Exhibit D to the
appellant's affidavit). The version of the 2006 report provided to the
appellant still maintained redaction of the phrase “Extra-judicial executions,
disappearances, torture and detention without trial are all too common.” See:
page 150 of the Appeal Book.
6.
On
February 7, 2008, the Federal Court released its reasons in Amnesty
International Canada v. Canada (Canadian
Forces),
2008 FC 162. At paragraph 105 of those reasons, Justice Mactavish wrote as
follows:
105. Moreover,
Canada's own Department of Foreign Affairs and International Trade has
recognized the pervasive nature of detainee abuse in Afghan prisons in its
annual reviews of the human rights situation in Afghanistan. For example, DFAIT's 2006 report, released in January of
2007, concluded that “Extra-judicial executions, disappearances, torture and
detention without trial are all too common”. [emphasis
added]
7.
On
April 2, 2009, the Judge required the respondent to disclose the phrase “Extra-judicial
executions, disappearances, torture and detention without trial are all too
common” found in the 2005 and 2006 reports.
[38] For the following reasons, on the whole of the
evidence, I am unable to infer from this conduct that the decision-maker
understood and considered that subsection 15(1) of the Act confers a discretion
upon her to disclose or refuse to disclose information described therein.
[39] To
begin, the record contains no explanation as to why the respondent did not
release the phrase “Extra-judicial executions, disappearances, torture and
detention without trial are all too common” to the appellant with its November
15, 2007 second disclosure. By that time the phrase had been reported by The
Globe and Mail and a DFAIT employee had confirmed in a public proceeding
that such a phrase was contained in the 2006 report. Further, the record is
silent as to why the redaction was not later lifted following the release of
the Federal Court's reasons in the proceedings commenced by Amnesty
International which again confirmed the phrase was included in the 2006 report.
[40] In
her affidavit, Ms. McCulloch deposes that:
20. I am aware that the
Globe and Mail newspaper ran an article on April 25, 2007, in which it revealed
a portion of the 2006 record at issue in this proceeding. To my knowledge,
DFAIT did not authorize or permit the release of that information to the Globe
and Mail. I am also aware that some, or all, of the 2006 record at issue has
been obtained by members of the Standing Committee on Access to Information,
Privacy and Ethics. Again, I am not aware of the source of the record to the
Committee.
[41] This
provides no explanation as to why DFAIT continued to protect information that
had entered the public domain. Ms. McCulloch's evidence seems to suggest that
DFAIT was of the view it could still assert the need to protect the information
because it was not the source of the leak. There is no indication that the respondent
considered at any time after the initial release of information to the
appellant whether the prior public disclosure of redacted information was a
relevant factor when considering the discretion to disclose documents that
otherwise fell within the scope of subsection 15(1). While this may not be true
in all cases, the prior public disclosure of information provided an incentive
for the exercise of discretion to release the information to the appellant.
This is particularly true in the present circumstances, where a DFAIT employee
had publicly confirmed the phrase was in the report. The prior public
disclosure might not have been sufficient to lead the respondent to release the
information to the appellant. However, if the respondent understood that such
discretion existed one would expect to find something in the record that
manifested consideration of the discretion.
[42] The DFAIT disclosure of November 15, 2007,
was explained on the basis that it made the disclosure to the appellant conform
to disclosure made in another proceeding under section 38 of the Canada
Evidence Act, R.S.C. 1985, c. C-5.
[43] Most recently, some of the information
released in 2010 was released to the appellant because DFAIT had tendered less
redacted versions of the documents to the Military Police Complaints
Commission.
[44] In these instances where further disclosure
was made, the appellant received the further information because it had
previously been provided in other forums.
[45] In my view, the record before the
Court is equally consistent with the decision-maker considering whether the
release of specific information could reasonably be expected to be injurious to
the conduct of international affairs without regard to the existence of a
discretion to release as it is with the decision-maker having regard to the
discretion. Such equivocal evidence does not support the drawing of the
requested inference. Therefore I am not satisfied that the decision-maker
considered the exercise of discretion. As explained above at paragraph 17, failure
to consider the exercise of discretion is a ground of review because the Act
requires the respondent to consider the exercise of discretion.
5. Conclusion
[46] It
follows that I would allow the appeal with costs both here and in the Federal
Court because of the respondent’s failure to exercise the discretion conferred
by subsection 15(1) of the Act. Except to the extent that the judgment of the
Federal Court ordered the disclosure of two redacted portions of the records, I
would set aside the judgment of the Federal Court and return the matter to the
respondent for the purpose of allowing the respondent to exercise the
discretion conferred under subsection 15(1) of the Act with respect to the
three remaining relevant redactions.
6. Postscript
[47] Paragraph
52(2)(a) of the Act requires an application for judicial review brought
to the Federal Court under the Act to be heard in camera if the
application is in respect of a refusal to disclose a document by reason of
section 15 of the Act. Paragraph 52(2)(a) of the Act also requires an
appeal from such an application to be heard in camera by the Federal
Court of Appeal.
[48] The only submissions heard in camera on this appeal were
the respondent’s submissions based upon the ex parte record. This was in
accordance with the decision of Chief Justice Lutfy in Kitson v. Canada (Minister of
National Defence), [2010] 3 F.C.R. 440 (F.C.).
[49] In
Kitson, Chief Justice Lutfy found paragraph 52(2)(a) and other
provisions of the Act to infringe rights or freedoms guaranteed by the Canadian
Charter of Rights and Freedoms. Chief Justice Lutfy went on to read down
paragraph 52(2)(a) to apply only to the ex parte representations
made on behalf of the government institution. The effect of this was to bring
section 52 of the Act into line with the parallel provision of the Privacy
Act which was considered by the Supreme Court in Ruby v. Canada (Solicitor
General)
above.
“Eleanor R. Dawson”
“I agree.
Pierre Blais C.J.”
“I agree.
Johanne Trudel J.A.”
APPENDIX
Subsections
13(1) and 15(1), section 17, paragraphs 21(1)(a) and (b) and
section 52 of the Access to Information Act read as follows:
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13. (1)
Subject to subsection (2), the head of a government institution shall refuse
to disclose any record requested under this Act that contains information
that was obtained in confidence from
(a) the government
of a foreign state or an institution thereof;
(b) an international
organization of states or an institution thereof;
(c) the government
of a province or an institution thereof;
(d) a municipal or
regional government established by or pursuant to an Act of the legislature
of a province or an institution of such a government; or
(e) an aboriginal
government.
[…]
15. (1)
The head of a government institution may refuse to disclose any record
requested under this Act that contains information the disclosure of which
could reasonably be expected to be injurious to the conduct of international
affairs, the defence of Canada or any state allied or associated with Canada
or the detection, prevention or suppression of subversive or hostile
activities, including, without restricting the generality of the foregoing,
any such information
(a) relating to
military tactics or strategy, or relating to military exercises or operations
undertaken in preparation for hostilities or in connection with the
detection, prevention or suppression of subversive or hostile activities;
(b) relating to the
quantity, characteristics, capabilities or deployment of weapons or other
defence equipment or of anything being designed, developed, produced or
considered for use as weapons or other defence equipment;
(c) relating to the
characteristics, capabilities, performance, potential, deployment, functions
or role of any defence establishment, of any military force, unit or
personnel or of any organization or person responsible for the detection,
prevention or suppression of subversive or hostile activities;
(d) obtained or
prepared for the purpose of intelligence relating to
(i) the
defence of Canada or any state allied or
associated with Canada, or
(ii) the
detection, prevention or suppression of subversive or hostile activities;
(e) obtained or
prepared for the purpose of intelligence respecting foreign states,
international organizations of states or citizens of foreign states used by
the Government of Canada in the process of deliberation and consultation or
in the conduct of international affairs;
(f) on methods of,
and scientific or technical equipment for, collecting, assessing or handling
information referred to in paragraph (d) or (e) or on sources
of such information;
(g) on the positions
adopted or to be adopted by the Government of Canada, governments of foreign
states or international organizations of states for the purpose of present or
future international negotiations;
(h) that constitutes
diplomatic correspondence exchanged with foreign states or international
organizations of states or official correspondence exchanged with Canadian
diplomatic missions or consular posts abroad; or
(i) relating to the
communications or cryptographic systems of Canada
or foreign states used
(i) for
the conduct of international affairs,
(ii) for
the defence of Canada or any state allied or associated with Canada, or
(iii) in
relation to the detection, prevention or suppression of subversive or hostile
activities.
[…]
17. The head of a government institution may
refuse to disclose any record requested under this Act that contains
information the disclosure of which could reasonably be expected to threaten
the safety of individuals.
[…]
21. (1)
The head of a government institution may refuse to disclose any record
requested under this Act that contains
(a) advice or
recommendations developed by or for a government institution or a minister of
the Crown,
(b) an account of
consultations or deliberations in which directors, officers or employees of a
government institution, a minister of the Crown or the staff of a minister
participate,
[…]
52. (1) An
application under section 41 or 42 relating to a record or a part of a
record that the head of a government institution has refused to disclose by
reason of paragraph 13(1)(a) or (b) or section 15 shall be
heard and determined by the Chief Justice of the Federal Court or by any
other judge of that Court that the Chief Justice may designate to hear those
applications.
(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.
(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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13. (1)
Sous réserve du paragraphe (2), le responsable d’une institution fédérale est
tenu de refuser la communication de documents contenant des renseignements
obtenus à titre confidentiel :
a)
des gouvernements des États étrangers ou de leurs organismes;
b)
des organisations internationales d’États ou de leurs organismes;
c)
des gouvernements des provinces ou de leurs organismes;
d)
des administrations municipales ou régionales constituées en vertu de lois
provinciales ou de leurs organismes;
e) d’un gouvernement autochtone.
. . .
15. (1)
Le responsable d’une institution fédérale peut refuser la communication de
documents contenant des renseignements dont la divulgation risquerait
vraisemblablement de porter préjudice à la conduite des affaires
internationales, à la défense du Canada ou d’États alliés ou associés avec le
Canada ou à la détection, à la prévention ou à la répression d’activités
hostiles ou subversives, notamment :
a)
des renseignements d’ordre tactique ou stratégique ou des renseignements
relatifs aux manoeuvres et opérations destinées à la préparation d’hostilités
ou entreprises dans le cadre de la détection, de la prévention ou de la
répression d’activités hostiles ou subversives;
b)
des renseignements concernant la quantité, les caractéristiques, les
capacités ou le déploiement des armes ou des matériels de défense, ou de tout
ce qui est conçu, mis au point, produit ou prévu à ces fins;
c)
des renseignements concernant les caractéristiques, les capacités, le
rendement, le potentiel, le déploiement, les fonctions ou le rôle des
établissements de défense, des forces, unités ou personnels militaires ou des
personnes ou organisations chargées de la détection, de la prévention ou de
la répression d’activités hostiles ou subversives;
d)
des éléments d’information recueillis ou préparés aux fins du renseignement
relatif à :
(i) la
défense du Canada ou d’États alliés ou associés avec le Canada,
(ii) la
détection, la prévention ou la répression d’activités hostiles ou
subversives;
e)
des éléments d’information recueillis ou préparés aux fins du renseignement
relatif aux États étrangers, aux organisations internationales d’États ou aux
citoyens étrangers et utilisés par le gouvernement du Canada dans le cadre de
délibérations ou consultations ou dans la conduite des affaires
internationales;
f)
des renseignements concernant les méthodes et le matériel technique ou
scientifique de collecte, d’analyse ou de traitement des éléments
d’information visés aux alinéas d) et e), ainsi que des
renseignements concernant leurs sources;
g)
des renseignements concernant les positions adoptées ou envisagées, dans le
cadre de négociations internationales présentes ou futures, par le
gouvernement du Canada, les gouvernements d’États étrangers ou les
organisations internationales d’États;
h)
des renseignements contenus dans la correspondance diplomatique échangée avec
des États étrangers ou des organisations internationales d’États, ou dans la
correspondance officielle échangée avec des missions diplomatiques ou des
postes consulaires canadiens;
i)
des renseignements relatifs à ceux des réseaux de communications et des
procédés de cryptographie du Canada ou d’États étrangers qui sont utilisés
dans les buts suivants :
(i) la
conduite des affaires internationales,
(ii) la
défense du Canada ou d’États alliés ou associés avec le Canada,
(iii) la
détection, la prévention ou la répression d’activités hostiles ou
subversives.
. . .
17. Le responsable d’une
institution fédérale peut refuser la communication de documents contenant des
renseignements dont la divulgation risquerait vraisemblablement de nuire à la
sécurité des individus.
. . .
21. (1)
Le responsable d’une institution fédérale peut refuser la communication de
documents datés de moins de vingt ans lors de la demande et contenant :
a)
des avis ou recommandations élaborés par ou pour une institution fédérale ou
un ministre;
b)
des comptes rendus de consultations ou délibérations auxquelles ont participé
des administrateurs, dirigeants ou employés d’une institution fédérale, un
ministre ou son personnel;
. . .
52. (1)
Les recours visés aux articles 41 ou 42 et portant sur les cas où le refus de
donner communication totale ou partielle du document en litige s'appuyait sur
les alinéas 13(1) a) ou b) ou sur l'article 15 sont exercés
devant le juge en chef de la Cour fédérale ou tout autre juge de cette Cour
qu'il charge de leur audition.
(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.
(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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