Date: 20070601
Docket: A-107-06
Citation: 2007 FCA 212
CORAM: RICHARD
C.J.
DÉCARY
J.A.
EVANS
J.A.
BETWEEN:
MINISTER OF INDUSTRY
Appellant
and
INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT
[1]
This is an
appeal from an Order of the Federal Court ([2006] 4 F.C.R. 241, 2006 FC 132)
which provides that the Chief Statistician shall disclose specific census
records of 1921, 1931 and 1941 with respect to individual returns in eight
specific districts and requested under the Access to Information Act in
November 2001 on behalf of three Aboriginal bands for the exclusive purpose of
researching or validating their Aboriginal claims as provided under paragraph
8(2)(k) of the Privacy Act.
[2]
I need not
repeat the factual and legislative background to this proceeding which is found
in Justice Evans’ reasons. I also agree with the standard of review that he
proposes.
[3]
I would
dismiss the appeal for the following reasons.
[4]
The
broadly stated purpose of the Access to Information Act is to provide a
right of access to information in records under the control of a government
institution in accordance with the principle that necessary exceptions to the
right of access should be limited and specific: Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 at 78, 2003 SCC 8, Gonthier
J.
[5]
Section 4 of the Access to Information Act provides
that every citizen has a right of access to any record under the control of a
government institution, subject only to the Access to Information Act
and notwithstanding any other Act of Parliament. This general right of access
to information is limited by subsection 24(1) of the Access to Information
Act, which requires the head of a government institution to refuse to
disclose any record requested under the Access to Information Act that
contains information the disclosure of which is restricted pursuant to any
provision set out in Schedule II of the Access to Information Act.
Schedule II lists section 17 of the Statistics Act.
[6]
The Appellant submits that the mere inclusion of
section 17 of the Statistics Act in Schedule II prohibits disclosure of
the census information. I cannot agree. In my opinion, section 17 must be
read as a whole to determine whether or not disclosure is “restricted”.
[7]
This reasoning is consistent with the decision
of Siemens Canada Ltd. v. Canada (Minister of Public Works & Government
Services), 2001 FCT 1202 at paragraphs 12, 13 and 20 (T.D.), aff’d 2002 FCA
414, where the Federal Court considered the interplay between section 24 of the
Access to Information Act and section 30 of the Defence Production
Act, a provision listed in Schedule II of the Statistics Act. The
Federal Court stated that section 24 has the effect of incorporating section 30
of the Defence Production Act into the Access to Information Act.
It then considered whether the requirements and exceptions provided under
section 30 of the Defence Production Act were met. Thus, when a
provision is listed in Schedule II, the head of the government institution is
required to determine whether disclosure can take place under that provision.
[8]
In this particular case, Schedule II lists
section 17 of the Statistics Act. Although subsection 17(1) is a
general prohibition against the disclosure of information, subsection 17(2)
provides a list of exceptions to this general prohibition. Specifically,
paragraph 17(2)(d) grants the Chief Statistician the discretionary power to
authorize the disclosure of information “available to the public under any
statutory or other law.” Accordingly, consideration must be given to the
exception at paragraph 17(2)(d) to determine whether or not disclosure is
“restricted”.
[9]
Paragraph 17(2)(d) of the Statistics Act
states: “The Chief Statistician may, by order, authorize the following
information to be disclosed: …(d) information available to the public under any
statutory or other law; ….” In this case, the exception at paragraph 17(2)(d)
of the Statistics Act brings into play paragraph 8(2)(k) of the Privacy
Act.
[10]
Section 8 of the Privacy Act outlines the
circumstances under which personal information under the control of a
government institution may be disclosed. Paragraph 8(2)(k) states: “Subject to
any other Act of Parliament, personal information under the control of a
government institution may be disclosed: … (k) to any aboriginal government,
association of aboriginal people…for the purpose of researching or validating
the claims, disputes or grievances of any of the aboriginal peoples of
Canada;….”
[11]
The Appellant points to the opening words of
subsection 8(2) of the Privacy Act, which subjects permissible
disclosures of information to “…any other Act of Parliament” and argues that
the information sought is subject to section 17 of the Statistics Act.
However, as the applications judge noted, this argument leads to an endless
circle of provisions. While disclosure under subsection 8(2) of the Privacy
Act is subject to any other Act of Parliament, the Statistics Act
allows for disclosure of information available under “any statutory or other
law.”
[12]
The applications judge concluded at paragraph 49
that:
…the exemption at paragraph 8(2)(k) of the Privacy Act
is obviously “statutory law”, and the intent of Parliament in enacting this law
is obvious, namely personal information under the control of a government
institution may be disclosed to an Indian Band for the purpose of researching
or validating a land claim. Accordingly, paragraph 8(2)(k) of the Privacy Act
is “statutory law” within the meaning of paragraph 17(2)(d) of the Statistics
Act.
I agree. If
subsection 8(2) of the Privacy Act was subject to section 17 of that Statistics
Act, as opposed to the other way around, then the exception at paragraph
8(2)(k) could never be invoked to allow disclosure of personal information to
aboriginal people for the purpose of research or claims because section 17
would always prohibit disclosure. Obviously, Parliament would not have
intended such an absurd result.
[13]
This is a case where the information requested
clearly falls into a specific category of materials containing personal
information the release of which is permitted. Parliament turned its mind to
this very situation and determined that, in the case of information relating to
the research of land claims by aboriginal people, access takes priority over
personal information. This is the very reason for inclusion of paragraph
8(2)(k) in the Privacy Act.
[14]
Paragraph 17(2)(d) of the Statistics Act
provides that the Chief Statistician may authorize the disclosure of
information “available to the public” under any statutory or other law.
Paragraph 8(2)(k) of the Privacy Act allows the disclosure of personal
information to “…any aboriginal government, association of aboriginal people,
Indian band, government institution or part thereof, or to any person acting on
behalf of such government, association, band, institution or part thereof…”
Does this limited segment of the population amount to “public” within the
meaning of paragraph 17(2)(d) of the Statistics Act? The applications
judge concluded that it does and I agree.
[15]
The applications judge held that the word
“public” in the phrase “available to the public” is a noun, which, according to
The Canadian Oxford Dictionary, has three meanings, referring to either the
entirety of the community, to members of the community, or to a section of the
community sharing a common status or interest. The applications judge
concluded that “[e]ach of these meanings is sufficient to meet the definition
of “public” in paragraph 17(2)(d) of the Statistics Act” (paragraph 53).
With respect to the words “information available to the public”, the
applications judge stated that these words denote “records capable of being
obtained by the entire general public, or by members or sections thereof” (paragraph
54). Based on this interpretation, the applications judge concluded that the
census information requested by the Algonquin Bands “is exactly the type of
information which Parliament intended under [paragraph 17(2)(d) of] the
Privacy Act may be disclosed to an Aboriginal people or Indian band” (paragraph 56).
[16]
The Appellant submits that the term “available
to the public” refers “to the community at large”. In making this submission,
the Appellant argues that “…disclosure in according with paragraph 8(2)(k) –
which only contemplates discretionary disclosure to certain people for a
specific purpose – cannot be the same as “public availability” within the
meaning of paragraph 19(2)(b) [of the Access to Information Act]”
adding that “[t]here is no reason why the concept of “available to the public”
should be interpreted differently in paragraph 17(2)(d) of the Statistics
Act than in subsection 19(2) of the [Access to Information Act].”
[17]
The Respondent submits that there are compelling
reasons why the concept of the public may vary in scope in these two
legislative provisions. The Respondent points out that the statutory language
is not identical in both provisions: while paragraph 19(2)(b) of the Access
to Information Act contemplates disclosure “if the information is publicly
available / dans les cas où: le public y a accès”, paragraph 17(2)(d) of
the Statistics Act, in turn, authorizes disclosure of “information
available to the public under any statutory or other law / les
renseignements mis à la disposition du public en vertu d’une loi ou de toute
autre règle de droit”. The Respondent further submits that the meaning of
“the public” under paragraph 17(2)(d) of the Statistics Act can be
contrasted with subsection 2(2) of the Access to Information Act where
the wording is “…available to the general public” (“… à la disposition
du grand public”). This demonstrates that when Parliament intended to limit
the scope of the noun “the public” to mean only the public in its entirety
rather than particular segments of it, it used legislative language that
clearly demonstrates this intent.
[18]
In my view, even if paragraph 19(2)(b) of the Access
to Information Act and paragraph 17(2)(d) of the Statistics Act were
interpreted to mean the same thing, as the Appellant suggests, not much turns
on the argument. What still needs to be determined is the scope intended by
the use of the word “public”. In that respect, I agree with the applications
judge that, to give effect to paragraph 8(2)(k) of the Privacy Act, the
words “available to the public” under paragraph 17(2)(d) of the Statistics
Act must be interpreted to mean a segment of the population, such as
aboriginal groups, as opposed to the entire population.
[19]
The Appellant further submits that the
discretion under paragraph 17(2)(b) of the Statistics Act can only be
exercised to disclose information to which the public already has a right of
access from another source. In support of this submission, the Appellant
compares the English and French versions of paragraph 17(2)(d): the English
version refers to any “information available to the public under any statutory
or other law” whereas the French versions refers to “les renseignements mis
à la disposition du public en vertu d’une loi ou de toute autre règle de droit.”
In the Appellants view, the exception, especially when considering the words
“mis à la disposition du public en vertu d’une loi” in the French version,
requires the information to be already accessible or obtainable.
[20]
In reading the English and French versions of
paragraph 17(2)(d), I can see the subtle distinction the Appellant is trying to
make but, from a practical point of view, the argument cannot stand. The
Appellant is reading the statutory provision as requiring the information to be
“already” accessible, as opposed to simply being accessible. In my opinion, if
a statutory provision allows for the disclosure of information to the public,
as does paragraph 8(2)(k) of the Privacy Act, then the information is
“available” to the public or “mis à la disposition du public”. There is no
requirement that the information be “already” in the public domain.
[21]
In light of the foregoing, it is my view that
the statutory requirements imposed under paragraph 8(2)(k) of the Privacy
Act have been met: the census information is requested by aboriginal groups
for the purposes of research and claims. It therefore follows that the
statutory requirements of paragraph 17(2)(b) have also been met: the
information requested, i.e. the census information, is available to the public
in another statute by application of paragraph 8(2)(k) of the Privacy Act.
[22]
The Appellant submits that, even if the
requirements of paragraph 8(2)(k) of the Privacy Act have been met, the
Chief Statistician nonetheless retains discretion in deciding whether or not to
disclose the requested information.
[23]
In response, the Respondent argues that, once
the statutory exception provided for under paragraph 8(2)(k) of the Privacy
Act has been met, the Appellant retains no discretion not to disclose the
information requested. I would agree with the Respondent that, though the word
“may” is to be construed as permissive, as provided for in section 11 of the Interpretation
Act, there are situations in which the permission granted must be
exercised. As explained by Professor Sullivan, “…the use of ‘may’ implies
discretion, but it does not preclude obligation” since oftentimes a duty arises
to exercise the power once the conditions of exercise have been met. This is
because “[o]therwise the purpose of the legislation would the thwarted.” Sullivan
and Driedger on the Construction of Statutes, 4th ed. 2002,
Butterworths, p. 58-59.
[24]
In Information Commissioner v. Minister of
Employment and Immigration, [1986] 3 F.C. 63 at paragraph 4 (T.D.), Jerome
A.C.J. considered the discretion granted pursuant to subsection 19(2) of the Access
to Information Act, which provides that the head of a government
institution may disclose records requested that contain personal information if
a certain condition is met, one of these conditions being when the individual
to whom it relates consents to its disclosure. Jerome, A.C.J. rejected the
argument that subsection 19(2) established a discretion not to disclose
information even though the conditions of the subsection have been met. He did
so on the grounds that it was both contrary to the principles of statutory
interpretation and that it ran “directly against the very purpose for which
this legislation was enacted” (paragraph 3). He further explained that once
the conditions necessary to release personal information had been fulfilled,
“…it becomes tantamount to an obligation upon the head of the government
institution to do so, especially where the purpose for which the statute was
enacted is, as here, to create a right of access in the public” (paragraph 4).
[25]
The applications judge concluded that the
Crown’s duty to act honourably, in good faith and as a fiduciary are common law
duties that have been constitutionalized under section 35 of the Constitution
Act, 1982 with respect to Aboriginal land claims and are “statutory and
other law” within the meaning of paragraph 17(2)(d) of the Statistics Act.
In arriving to this conclusion, the applications judge explained that:
·
the Crown has a duty to act honourably with
respect to the Algonquin Bands’ land claim, which means that the Crown must
disclose the census records in the possession of the Crown as it may prove
continuity of occupation between present and pre-sovereignty occupation –
information required to prove Aboriginal land title (paragraph 43).
·
the honour of the Crown gives rise to a
fiduciary duty with respect to the census records being kept by the Crown.
This duty, he explained, “requires that the Crown act with reference to the
Aboriginal bands’ best interest and disclose these census records which relate
to the Aboriginal rights in the territories at stake” (paragraph 44).
·
“the honour of the Crown requires good faith
negotiations leading to a judge settlement of the Aboriginal claims” and this
duty, “which is an implied part of section 35, means that the Crown disclose
census records in the possession of the Crown which are relevant to the proof
of Aboriginal title” (paragraph 45).
Both parties have
made submissions in respect of this portion of the applications judge’s
decision. I would agree that section 35 of the Constitution Act, 1982
is instructive in assessing the importance of aboriginal land claims in Canada,
but I do not think such an analysis is necessary in light of the applicability
of paragraph 8(2)(k) of the Privacy Act.
[26]
Accordingly,
I would dismiss the appeal with costs.
"J. Richard"
EVANS J.A. (Dissenting)
A. INTRODUCTION
[37]
This
is an appeal by the Minister of Industry from a decision of Justice Kelen of
the Federal Court granting an application by the Information Commissioner of Canada to review a
refusal by the Chief Statistician to disclose census records for certain years.
The decision is reported as Canada (Information Commissioner) v. Canada (Minister of
Industry),
2006 FC 132, [2006] 4 F.C.R. 241.
[38]
A
request for these records was made under the Access to Information Act,
R.S.C. 1985, c. A-1 (“Access Act”) by Peter Di Gangi, Director,
Algonquin Nation Secretariat (“ANS”), a Tribal Council representing three
Algonquin Bands. He had been mandated by the ANS to research the continuity of
membership of the Bands, and their use and occupation of the lands which they
claim.
[39]
An
important object of this research, which has been funded by the Department of
Indian Affairs and Northern Development (“DIAND”), is to support aboriginal
land claims made pursuant to two DIAND policies: the comprehensive claims
policy, which may ultimately lead to the conclusion of a lands claim treaty,
and the specific claims policy for the investigation of allegations of
particular breaches of aboriginal rights.
[40]
These
reasons address the following three questions. First, does the Access Act
apply to the disclosure of census returns, or do the specific disclosure
provisions of the Statistics Act, R.S.C. 1985, c. S-19, constitute
a complete code? Second, does the provision in paragraph 17(2)(d) of the
Statistics Act permitting the Chief Statistician to disclose personal
information from census returns which is “available to the public under any
statutory or other law” apply to subsection 8(2) of the Privacy Act,
R.S.C. 1985, c. P-21? Third, if it does, is it “information available to the
public under any statutory law” for the purpose of paragraph 17(2)(d) of
the Statistics Act if a statute provides that it may be disclosed to a
section of the public? Whether the appellants have a right to the records by
virtue of section 35 of the Constitution Act, 1982 is a question which I
would decline to answer on the ground that it is premature.
B. FACTUAL
BACKGROUND
[41]
On
November 2, 2001, Mr. Di Gangi submitted a request to the Chief Statistician
under the Access Act for the disclosure of census records for 1911,
1921, 1931, and 1941, for the districts and sub-districts of eastern Ontario and
northwestern Québec relevant to the Bands’ land claims. Mr. Di Gangi
explained in his request the importance of these records as a source of the information
needed to support the claims.
[42]
In
a letter dated November 23, 2001, Mary Ledoux, Chief, Access to Information and
Privacy, Data Access and Control Services Division, Statistics Canada, notified
Mr. Di Gangi that his request was refused. She gave three reasons.
[43]
First,
section 24(1) of the Access Act requires the head of a government
institution to refuse to disclose any record requested under the Access Act
which contains information, the disclosure of which is restricted by any
statute listed in Schedule II of the Act. Second, section 17 of the Statistics
Act is listed in Schedule II and restricts the disclosure of individual
census returns. Third, the exceptions in subsection 8(2) of the Privacy Act
to the general duty not to disclose personal information are “subject to any
other Act of Parliament”; since the Statistics Act and its predecessors
forbid the disclosure of census returns, subsection 8(2) is no assistance.
[44]
On
December 11, 2001, Mr. Di Gangi, wrote to the Information Commissioner inviting
him to investigate the Chief Statistician’s refusal to release the requested
census returns. He added that the refusal to disclose information relevant to
land claims was particularly troubling in light of the Crown’s fiduciary duties
towards aboriginal peoples.
[45]
The
Information Commissioner undertook an investigation of the complaint, and asked
for representations from the Chief Statistician. In a letter dated September
18, 2002, Pamela White, Access to Information and Privacy Coordinator, Statistics
Canada, responded. She stated that, since paragraph 8(2)(k) of the Privacy
Act only applies “Subject to any other Act of Parliament”, including the
prohibition of disclosure in subsection 17(1) of the Statistics Act, it
did not confer any discretion on the Chief Statistician to disclose the census
returns requested by Mr. Di Gangi. There followed further correspondence and
meetings between officials of the Information Commissioner and of Statistics
Canada. However, they could not reach a consensus on the issues.
[46]
On
November 12, 2002, the Information Commissioner wrote to Ivan Fellegi, the
Chief Statistician, expressing his provisional view that the requested census
returns could be disclosed under paragraph 17(2)(d) of the Access Act
by virtue of paragraph 8(2)(k) of the Privacy Act. He added that
the fiduciary duty owed by the Crown to aboriginal peoples required the Chief
Statistician to avoid taking a narrow view of the discretion to disclose census
records, to the prejudice of the ability of the Algonquin Bands to establish
their land claim.
[47]
In
a letter dated December 5, 2002, Dr. Fellegi acknowledged the importance of the
purposes for which Mr. Di Gangi wanted the census returns in question. However,
he said, the use to which a requester under the Access Act intends to
put the returns is immaterial. For the reasons already canvassed, he denied
that paragraph 8(2)(k) of the Privacy Act gave him a discretion
to disclose and that Statistics Canada owed any fiduciary duty to aboriginal
peoples to provide the information requested.
[48]
On
December 3, 2003, the Information Commissioner wrote to Dr. Fellegi to report
to his Minister, the Minister of Industry, the results of the investigation.
For the reasons indicated in his letter of November 12, 2002, the Information
Commissioner recommended disclosure. In particular, the information requested
is “available to the public” because it could be disclosed to aboriginal bands
for the purpose of researching or validating claimed aboriginal rights.
[49]
On
December 11, 2003, Dr. Fellegi replied that he did not accept the
recommendations. For. the reasons given in his letter of December 5, 2002, he
was of the opinion that disclosure would be contrary to both the Statistics
Act and the Privacy Act. He noted also that, as an alternative, the
1940 National Registration records could be disclosed, because, although under
the custody of Statistics Canada, they are not subject to the Statistics Act.
[50]
Mr.
Di Gangi consented to an application to the Federal Court by the Information
Commissioner under paragraph 42(1)(a) of the Access Act to review
the Chief Statistician’s refusal to disclose the census returns.
[51]
Disclosure
of the census records for 1911 is no longer in issue. They became available to
the ANS on June 30, 2005, as result of An Act to Amend the Statistics Act,
S.C. 2005, c. 31, section 1. This amends the Statistics Act by adding
subsection 18.1, which provides for the disclosure to the public of individual
census returns after 92 years have elapsed since the information was collected
and it has been transferred to care and control of the Library and Archives of
Canada.
C. LEGISLATIVE
FRAMEWORK
[52]
The
application for review from which this appeal arises was brought under section
42 of the Access Act.
|
42(1) The
Information Commissioner may
(a)
apply to the Court, within the time limits prescribed by section 41, for a
review of any refusal to disclose a record requested under this Act or a part
thereof in respect of which an investigation has been carried out by the
Information Commissioner, if the Commissioner has the consent of the person
who requested access to the record;
…
|
42(1) Le
Commissaire à l’information a qualité pour :
a) exercer
lui-même, à l’issue de son enquête et dans les délais prévus à l’article 41,
le recours en révision pour refus de communication totale ou partielle d’un
document, avec le consentement de la personne qui avait demandé le document;
[…]
|
[53]
The
object of the Access Act is set out in subsection 2(1), and the right to
access created to achieve it is contained in subsection 4(1).
|
2(1) The
purpose of this Act is to extend the present laws of Canada to provide a
right of access to information in records under the control of a government
institution in accordance with the principles that government information
should be available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the disclosure of
government information should be reviewed independently of government
.…
4(1) Subject
to this Act, but notwithstanding any other Act of Parliament, every person
who is
(a)
a Canadian citizen, or
(b)
a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act,
has a right
to and shall, on request, be given access to any record under the control of
a government institution.
|
2(1) La
présente loi a pour objet d’élargir l’accès aux documents de l’administration
fédérale en consacrant le principe du droit du public à leur communication,
les exceptions indispensables à ce droit étant précises et limitées et les
décisions quant à la communication étant susceptibles de recours indépendants
du pouvoir exécutif.
[…]
4(1) Sous
réserve des autres dispositions de la présente loi mais nonobstant toute autre
loi fédérale, ont droit à l’accès aux documents relevant d’une institution
fédérale et peuvent se les faire communiquer sur demande :
a) les
citoyens canadiens;
b) les
résidents permanents au sens du paragraphe 2(1) de la Loi sur l’immigration
et la protection des réfugiés.
|
|
Subsection
24(1) limits the broad scope of the right created by section 4. It appears
under the heading “Statutory Prohibitions”. 24(1) The head of a
government institution shall refuse to disclose any record requested under
this Act that contains information the disclosure of which is restricted by
or pursuant to any provision set out in Schedule II.
|
24(1) Le
responsable d’une institution fédérale est tenu de refuser la communication
de documents contenant des renseignements dont la communication est
restreinte en vertu d’une disposition figurant à l’annexe II.
|
[54]
Schedule
II lists sections of nearly sixty statutes, including section 17 of the Statistics
Act. The prohibition of the disclosure of census returns in subsection
17(1) of the Statistics Act is modified by subsection 17(2). Paragraph
17(2)(d) is relevant to this appeal.
|
17(1)
Except for the purpose of communicating information in accordance with any
conditions of an agreement made under section 11 or 12 and except for the purposes
of a prosecution under this Act but subject to this section,
(a)
no person, other than a person employed or deemed to be employed under this
Act, and sworn under section 6, shall be permitted to examine any
identifiable individual return made for the purposes of this Act; and
(b)
no person who has been sworn under section 6 shall disclose or knowingly
cause to be disclosed, by any means, any information obtained under this Act
in such a manner that it is possible from the disclosure to relate the particulars
obtained from any individual return to any identifiable individual person,
business or organization.
(2) The
Chief Statistician may, by order, authorize the following information to be
disclosed:
…
(d)
information available to the public under any statutory or other law;
…
|
17(1) Sous
réserve des autres dispositions du présent article et sauf pour communiquer
des renseignements conformément aux modalités des accords conclus en
application des articles 11 ou 12 ou en cas de poursuites engagées en vertu
de la présente loi :
a) nul, si
ce n’est une personne employée ou réputée être employée en vertu de la
présente loi et qui a été assermentée en vertu de l’article 6, ne peut être
autorisé à prendre connaissance d’un relevé fait pour l’application de la
présente loi;
b) aucune
personne qui a été assermentée en vertu de l’article 6 ne peut révéler ni
sciemment faire révéler, par quelque moyen que ce soit, des renseignements
obtenus en vertu de la présente loi de telle manière qu’il soit possible, grâce
à ces révélations, de rattacher à un particulier, à une entreprise ou à une
organisation identifiables les détails obtenus dans un relevé qui les
concerne exclusivement.
(2) Le
statisticien en chef peut, par arrêté, autoriser la révélation des renseignements
suivants :
[…]
d) les
renseignements mis à la disposition du public en vertu d’une loi ou de toute
autre règle de droit;
[…]
|
[55]
Paragraph
8(2)(k) of the Privacy Act is said by the Information
Commissioner to be a law which makes ”information available to the public”
within the meaning of paragraph 17(2)(d) of the Statistics Act,
and enables the Chief Statistician to disclose the census returns requested by
Mr. Di Gangi. It provides
|
8(2)
Subject to any other Act of Parliament, personal information under the
control of a government institution may be disclosed
…
(k)
to any aboriginal government, association of aboriginal people, Indian band,
government institution or part thereof, or to any person acting on behalf of
such government, association, band, institution or part thereof, for the
purpose of researching or validating the claims, disputes or grievances of
any of the aboriginal peoples of Canada;
…
|
8(2) Sous
réserve d’autres lois fédérales, la communication des renseignements
personnels qui relèvent d’une institution fédérale est autorisée dans les cas
suivants :
[…]
k)
communication à tout gouvernement autochtone, association d’autochtones,
bande d’Indiens, institution fédérale ou subdivision de celle-ci, ou à leur
représentant, en vue de l’établissement des droits des peuples autochtones ou
du règlement de leurs griefs;
[…]
|
D. FEDERAL COURT DECISION
[56]
Justice
Kelen allowed the Information Commissioner’s application, set aside the Chief
Statistician’s refusal to disclose the census records for 1921, 1931 and 1941,
and remitted the matter with a direction that they be disclosed to Dr.
Morrison, a researcher engaged by the ANS, subject to his undertaking to keep
confidential personal information in those records relating to non-Aboriginal
persons. Justice Kelen based his decision on the following analysis.
[57]
First,
after conducting a pragmatic and functional analysis, he concluded that the
Chief Statistician’s refusal to disclose the requested census returns was
reviewable on a standard of correctness.
[58]
Second,
he found as a fact that the census records were necessary for enabling the ANS
“to properly document their land claims”, and “probably provided the best
evidence of the proof required to completer the evidence of their continued
occupation of the territory in question”: para. 28. He described (at para.
8) the meticulous, “on-the-ground” manner in which the census enumerators had
gathered information in the years in question, going from household to
household with an interpreter.
The enumerators gathered
information including the name, address or geographic location, the racial or
tribal origin, the language, and other personal information from each person
and family residing in that territory.
[59]
In
contrast, the national register, prepared in 1940 for conscription purposes and
listing all persons over the age of 16, was inadequate for the purposes of the
ANS. For example, the national register did not cover the entire time period of
interest to the ANS; many young men likely avoided registration in order not to
be conscripted; it did not include persons under the age of 16; and the
information collection methodology was not as comprehensive or thorough as the
census.
[60]
Third,
Justice Kelen rejected the argument that subsection 24(1) of the Access Act
imposes an absolute duty on the Chief Statistician not to disclose information in
census returns which reveal the identity of individuals. He held that this
provision, in effect, incorporates section 17 of the Statistics Act into
the Access Act, including the provisions of subsection 17(2) permitting
the Chief Statistician to disclose census information in the circumstances that
it describes.
[61]
Fourth,
section 35 of the Constitution Act, 1982, which entrenches the existing
treaty and aboriginal rights of the aboriginal peoples of Canada, is an
“other law” for the purpose of paragraph 17(2)(d) of the Statistics
Act. The honour of the Crown, and its associated fiduciary duties, requires
the disclosure to the ANS of information in the possession of the government
that is necessary for the validation of their land claims.
[62]
Fifth,
the Privacy Act is “statutory law” for the purpose of paragraph 17(2)(d)
of the Statistics Act. The power in paragraph 8(2)(k) of the Privacy
Act to disclose to individuals acting on behalf of aboriginal associations
information relevant to an aboriginal land claim renders the information
“available to the public” within the meaning of paragraph 17(2)(d) of
the Statistics Act.
[63]
In
order to reach this conclusion, the Judge made three further findings. (1) The
fact that all the permissive provisions in subsection 8(2) of the Privacy
Act are stated to be “Subject to any other Act of Parliament” does not
remove subsection 8(2) from the category of “statutory law” which makes
personal information “available to the public” under paragraph 17(2)(d)
of the Statistics Act. In effect, he eliminated the potentially
perpetual renvoi between the paragraphs 17(2)(d) and 8(2)(k)
by interpreting the words, “Subject to any other Act of Parliament” as not
including paragraph 17(2)(d). (2) Information is “available” when it is
capable of being obtained. (3) In the present context “the public” should be
interpreted broadly to include a section of the public or even an individual
member of the public, and not limited the public as a whole.
[64]
Sixth,
Justice Kelen concluded (at para. 62) that if, contrary to his view, section 17
of the Statistics Act prohibits the Chief Commissioner from disclosing
the census returns requested in this case, it is invalid because it denies
rights protected by section 35 of the Constitution Act, 1982. Such a
statutory restriction on aboriginal peoples’ right to obtain “their own census
records necessary to prove their land title claims” would be unwarranted.
E. ISSUES AND
ANALYSIS
Issue 1: Standard
of review
[65]
Questions
relating to the interpretation of the Access Act by an institution head
in refusing to disclose records in response to an access request are reviewable
on a standard of correctness, while the exercise of any statutory discretion
under the Access Act is reviewable for unreasonableness simpliciter:
see, for example, Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1
S.C.R. 66 at paras. 14-19; 3430901 Canada Inc. v. Canada (Minister of
Industry),
2001 FCA 254, [2002] 1 F.C. 421 at paras. 28-47.
Issue 2: Does
the Access Act apply to section 17 of the Statistics Act?
[66]
The
answer to this question turns on the interpretation of subsection 24(1) of the Access
Act. The Information Commissioner argues that subsection 24(1) only
prevents the Chief Statistician from disclosing census returns when not
permitted by section 17, but that, in other respects, the Access Act
applies to information about individuals in census returns.
[67]
Thus,
a refusal by the Chief Statistician to disclose census records which may be
disclosed under subsection 17(2) would be reviewable within the framework of
the Access Act and, in particular, its objects and the general duty to
disclose records in the control of a government institution. A refusal could be
investigated by the Information Commissioner and, if the resulting
recommendations were not accepted, he could make an application to the Federal
Court under section 42.
[68]
In
other words, the disclosure of information covered by provisions listed in
Schedule II of the Access Act, including section 17 of the Statistics
Act, is the subject of two regimes: the particular provisions in the
statutes listed in Schedule II and the general scheme of the Access Act.
[69]
In
my opinion, this is not a correct interpretation of subsection 24(1) of the Access
Act. This provision imposes an unqualified duty on the head of a government
institution to “refuse to disclose any record requested under this Act”
which contains information, the disclosure of which is “restricted” by a
provision listed in Schedule II. When subsections (1) and (2) of section 17 of
the Statistics Act are read together, they restrict, without
prohibiting entirely, the disclosure of information contained in census
returns.
[70]
Hence,
the plain language of section 24(1) prohibits the Chief Statistician from
disclosing information within the scope of section 17 when it is requested
under the Access Act. The legislative record supports the conclusion
that the intention of Parliament was that information may not be disclosed
under the Access Act if its disclosure is restricted under a provision
listed in Schedule II.
[71]
First,
during the Parliamentary consideration of clause 25 of Bill C-43, which
became section 24 of the Access Act, the Minister responsible for
introducing the legislation, the Hon. Francis Fox, Secretary of State and
Minister of Communications, moved an amendment to append Schedule II.
[72]
Concern
was expressed by Members and, in particular, by Mr. Svend Robinson, that the
clause might go too far, because it could be interpreted as prohibiting
the disclosure of information under the Access Act which the relevant
listed statutory provision did not prohibit, but merely restricted:
Canada, House of Commons, Minutes of Proceedings and Evidence of the Committee
on Justice and Legal Affairs, 32nd Parliament, 1st Session, No.
52 (November 4, 1981) at 17. This observation would apply to section 17 of the Statistics
Act.
[73]
Mr
Robinson’s understanding of clause 25 was endorsed by an official from the
Privy Council Office, Mr Robert Auger, who was in attendance with the Minister.
After Mr Robinson read the words of clause 25, “the head of a government
institution shall refuse to disclose any record ….”, Mr Auger interjected,
“When it is requested under access to information. That is part of the scheme”:
ibid. at 18. That is to say, the disclosure of information included in
section 17 of the Statistics Act shall not be disclosed if requested
under the Access Act.
[74]
Second,
in a subsequent review of the Access Act, the Hon. John Crosbie,
Minister of Justice and Attorney General of Canada, explained
the function of section 24 and the exemptions from the Access Act which
it created:
The importance of those
exemptions, of course, is twofold. First, by their very nature they are
somewhat general, since they deal with the whole body of government
information, and the specific provisions contained in individual pieces of
legislation are crafted to deal with the particular problems associated with
that legislation and therefore they are more precise. Secondly, such
legislative schemes in any event require a particular type of protection of
information they deal with which operates outside the Access to Information
Act. It seems to me important from a practical point of view and from the
point of view of consistency that one set of rules should apply rather than
two. We would welcome your views on that.
(Canada, House of
Commons, Minutes of Proceedings and Evidence of the Standing Committee on
Justice and Solicitor General, 33rd Parliament, 1st Session, No. 10 (May 8,
1986) at 7.)
[75]
In
short, these extracts support the conclusion that section 24 prohibits the
disclosure under the Access Act of records governed by the statutory
provisions listed in Schedule II, even if their disclosure is only restricted,
but not prohibited, by a statute listed in Schedule II. If Parliament
had intended only to prohibit the disclosure of information, the disclosure of
which is prohibited by a Schedule II statutory provision it could easily have
said so. Moreover, since Parliament subjected the Schedule II exclusions to
five-year reviews by a Parliamentary committee (Access Act, subsection
24(2)), it can readily make an exception for Indian bands if it so chooses.
[76]
Nonetheless,
it remains open for an individual to request the Chief Statistician, outside
the Access Act, to disclose census information in accordance with
subsection 17(2) of the Statistics Act.
Issue 3: Even though
the Information Commissioner’s application under section 42 was misconceived, should
the Court nonetheless decide the other issues of statutory interpretation in
dispute?
[77]
Since
the census returns requested by Mr. Di Gangi fall within section 17, the Chief
Commissioner was bound by subsection 24(1) to refuse to disclose them because
they were requested under the Access Act. As counsel for the Minister
put it at the hearing in this Court, the request for disclosure came through
the “wrong door”. He submitted that the Court should simply allow the appeal,
leaving Mr Di Gangi at liberty to approach the Chief Statistician through the
“right door” by making a direct request to the Chief Statistician to disclose
the census records for the years in question pursuant to paragraph 17(2)(d)
of the Statistics Act. If this request were refused, Mr. Di Gangi
could make an application for judicial review under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[78]
In
the circumstances of this case, I do not agree that this would be an
appropriate way to deal with the issue of whether the records requested are
“information available to the public” under paragraph 17(2)(d) by virtue
of the provision in paragraph 8(2)(k) of the Privacy Act, which
authorizes the disclosure of personal information requested by aboriginal bands
in connection with their claims. It would be unduly formalistic, unfair to
those represented by the ANS, and wasteful of time and resources, to allow the
appeal on the narrow jurisdictional ground urged by the Minister.
[79]
Whether
the Chief Statistician is authorized by statute to disclose the records sought
on behalf of the ANS depends on the answers to the following two questions.
First, is paragraph 8(2)(k) of the Privacy Act a “statutory law”
for the purpose of paragraph 17(2)(d) of the Statistics Act?
Second, if it is, do the words “available to the public” in paragraph 17(2)(d)
include information available to a section of the public?
Issue 4: Do the
words “statutory law” in paragraph 17(2)(d) of the Statistics Act
include paragraph 8(2)(k) of the Privacy Act?
[80]
The
Minister argues that it is futile to consider paragraph 8(2)(k) of the Privacy
Act in order to determine whether the disclosure of personal information
that it permits makes individual census returns “available to the public” and
thus capable of disclosure under paragraph 17(2)(d) of the Statistics
Act. This is because subsection 17(1) of the Statistics Act
specifically prohibits the disclosure of census returns.
[81]
The
problem with this argument is that it disregards subsection 17(2) of the Statistics
Act, which permits the Chief Statistician to disclose them in certain
circumstances, including, of course, when they are available to the public by
virtue of a statute. However, the Minister argues, a reference back to
paragraph 8(2)(k) of the Privacy Act pursuant to paragraph 17(2)(d)
does not advance the requester’s case, but merely commences another trip around
the circle.
[82]
I
disagree. Certainly, the two paragraphs of these statutes do not fit easily
together. However, it would be unrealistic to assume that, when drafting one,
the drafter had the other in mind. In my view, the Applications Judge was
correct to end the circularity by, in effect, concluding that the introductory
words of subsection 8(2), “Subject to any other Act of Parliament”, do not
apply to section 17, since this provision expressly permits the disclosure of
information which another statute makes “available to the public”. Paragraph
17(2)(d) negates the idea that disclosure under the Statistics Act
is governed by a self-contained code and permits of no reference to other
legislation.
[83]
I
can see no rationale for the Minister’s interpretation. What justification
could there be for prohibiting the Chief Statistician from disclosing personal
information which the Privacy Act makes available to the public?
Issue 5: Is
information “available to the public” for the purpose of paragraph 17(2)(d)
of the Statistics Act when it is not available to everyone?
[84]
Paragraph
17(2)(d) permits the disclosure of information which is “available to
the public” under any statute. As an exception to the general prohibition on
the disclosure of personal information under the control of a government
institution in subsection 8(1) of the Privacy Act, paragraph 8(2)(k)
permits its disclosure to, among others, Indian bands who require it for the
purpose of researching aboriginal claims. It is conceded that the census
returns at issue in the present appeal constitute personal information.
[85]
Paragraph
17(2)(d) of the Statistics Act provides that the Chief
Statistician may disclose information “available to the public under any
statutory or other law”. Since paragraph 8(2)(k) of the Privacy Act
is “statutory law” for this purpose, the question is whether information which
may be disclosed under this paragraph is thereby “available to the public”
within the meaning of paragraph 17(2)(d) of the Statistics Act.
In my opinion, it is not.
[86]
As
evidence of the ordinary meaning of this phrase, dictionaries define the words
“the public” to include “the body politic”, “people collectively”, and “the
members of the public” (The New Shorter Oxford English Dictionary, s.v. “public”)
and “the community in general, or members of the community” (The
Canadian Oxford Dictionary, s.v. “public”).
Similarly, Le Nouveau Petit Robert (s.v. « public ») provides
as the first two definitions of « public» when used as a noun, « L’État,
la collectivité » and « Les gens, la masse de la population
».
[87]
Hence,
information
is “available to the public” when anyone may readily access or obtain it by
virtue of being a member of the Canadian population. The fact that members of
aboriginal bands, or persons acting on their behalf, may obtain it for the
purpose of researching an aboriginal claim would not seem to make it “available
to the public”, since it is not available to the population as a whole; indeed,
it is available to only a relatively small percentage of the population. In
order to access information through paragraph 8(2)(k), a person must
establish a connection with particular groups within the Canadian population:
being a member of the community at large is not enough.
[88]
However,
the noun “public”, can also mean “a section of the community having a
particular interest in or special connection with the person or thing specified
(freq. w. possess. adj.)”: The New Shorter Oxford English Dictionary.
The Canadian Oxford Dictionary (s.v. “public”)
illustrates this latter meaning: “the reading public” and “my public demands my
loyalty”. Similarly, Le Nouveau Petit Robert indicates that «public»
may also refer to a group within the broader population, such as « L’ensemble
des gens qui lisent, voient, entendent les œvres (litteraires, artistiques,
musicales), les spectacles », and those whom someone wishes to reach: « il a son
public ».
[89]
In
my opinion, these latter meanings do not much help the ANS, since membership of
the sections of the public included in these definitions is limited only by a
common interest in an activity (listening to music or looking at art, for
example). It is not limited to members of particular ethnic groups, for
example, or to those who possess some analogous personal attribute or
qualification.
[90]
As
for the use of “public” in the law, Black’s Law Dictionary defines
“public”, when used as a noun, to mean, “The people of a nation or community as
a whole”. However, Daphne Dukelow and Betsy Nuse, The Dictionary of Canadian
Law, 2nd edn. (Toronto: Carswell, 1994) include the following salutary
words of Lord Wright, M.R. in Jennings v. Stephens, [1936] 1 Ch. 469
(Eng. C.A.) at 476, describing “public” as “a term of uncertain import it must
be limited in every case by the context in which it is used …”.
[91]
The
phrase “available to the public” occurs in a number of federal statutes,
including, for example, the Canada Labour Code, R.S.C. 1985, c. L-2,
section 59 (duty to make a copy of an arbitration decision award “available to
the public”); Canada Pension Plan Investment Board Act, S.C. 1997, c.
40, subsection 50(2) (duty to make financial statements “available to the
public”); Copyright Act, R.S.C. 1985, c. C-42, paragraph 2.2(1)(b)
(“publication” of sound recordings means making copies “available to the
public”); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33,
subsection 69(3) (guidelines issued under the Act shall be made “available to
the public” ).
[92]
The
function of the phrase “available to the public” in paragraph 17(2)(d)
of the Statistics Act is to connote the range of those to whom personal
information in census returns must be legally available before it may be
disclosed as an exception to the prohibition on disclosure in subsection 17(1).
Subsection 2(2) of the Access Act uses the phrase “… normally available
to the general public”. This could be taken to indicate that, in the
context of legislation dealing with access to and restrictions on information,
the availability of information to “the public” is not the same as its
availability to “the general public”. However, since the Access Act does
not apply to requests for information covered by the Statistics Act, I
would not attach much weight to an argument based on any presumption of
consistency in the use of legislative language.
[93]
The
legislative record provides some indication of the purpose underlying paragraph
17(2)(d), which first appeared as paragraph 16(3)(d) of the Statistics
Act, S.C. 1970-71-72, c. 15. Its purpose was said to be to ensure that
information did not acquire a greater degree of secrecy when it came into the
possession of Statistics Canada than it had with its source: Canada, Debates of
the Senate, 3rd Sess., 28th Parl. (October 21, 1971) at 38 (Hon. Hédard
Robichaud).
[94]
However,
this rationale does not fit well when, as in the present case, the information
in question was supplied to Statistics Canada by the individuals to whom it
relates, and when it only becomes available (to some but not all members of the
public) after it has been collected. These are probably not situations
contemplated by the drafter of the Statistics Act. To be consistent with
the legislative purpose described above, paragraph 17(2)(d) should have
said that the Chief Statistician may disclose information to persons to whom it
is available under any statutory or other law. But this is not what it says.
[95]
Moreover,
if information is “available to the public” under paragraph 17(2)(d)
whenever it is available to a section of the public, the question would arise
as to whether Chief Statistician could disclose census information to any
member of the public who requested it, or only to those who are members of the
section of the public to which the information is available under another
statute. Paragraph 17(2)(d) would only correspond to its stated purpose
if disclosure was limited to members of the relevant section of the public.
However, this would require additional words to be implied into paragraph
17(2)(d).
[96]
The
phrase “available to the public” in paragraph 17(2)(d) should also be
interpreted in the broader context of the Statistics Act, particularly
as it relates to the census. The data collected through the census are of the
greatest importance in the planning of social and economic policies for the
people of Canada, and in
business planning. The reliability of this information depends on two aspects
of the Act: the legal obligation, on pain of penalty, of those questioned to
supply the information requested, and the government’s obligation not to
disclose information about particular individuals without their consent.
[97]
The
importance of complete and accurate census information supports the view that
paragraph 17(2)(d) should not be interpreted in a way that requires
words to be implied. In my opinion, the plain and ordinary meaning of the words
are consistent with Parliament’s primary concern, namely to protect the
integrity of the census, and there is no reason to read broadly the exceptions
to the general prohibition of disclosure. If Parliament had meant that the
Chief Statistician may disclose to a person who is a member of a section of the
public to which the information is statutorily available, it could have said
so.
[98]
Finally,
I would note that my interpretation of paragraph 17(2)(d) does not
undermine the utility of paragraph 8(2)(k) of the Privacy Act,
because it is still available to enable an Indian band or association of
aboriginal people to obtain for research purposes personal information, other
than census records, held by a government institution. Indeed, as the Chief
Statistician pointed out, the National Registration records could be made
available in this way.
Issue 6: Should the
Court decide whether there is a right to the disclosure of the census returns
by virtue of section 35 of the Constitution Act, 1982?
[99]
For
the reasons given above, the Chief Statistician was correct to deny Mr. Di
Gangi’s request on the basis of the relevant statutes. In my opinion, it would
be premature to decide whether the honour of the Crown in its dealings with
aboriginal peoples, or any other fiduciary duty of the Crown, obliges the Chief
Statistician, as the head of an institution of the Government of Canada, to
disclose the requested records by virtue of section 35 of the Constitution
Act, 1982.
[100] In essence,
the constitutional argument is that, in the present context, the honour of the
Crown puts the Crown under an obligation to avoid sharp practices when settling
an aboriginal claim, and that it would be a breach of this duty for the Crown
to refuse to disclose material information in its possession.
[101] However, the
parties are presently a long way from reaching the negotiating table. Nor do we
know at this stage whether, in the light of other evidence, the Crown would
insist on the production of proof by the claimants of genealogical and
geographic continuity with respect to the disputed lands from 1912 to 1951.
[102] A request to
the Chief Statistician may not be the most appropriate way for the ANS to raise
the constitutional questions involved in this case, if, as is my view, the
legislation does not permit the disclosure of the information requested.
F. CONCLUSIONS
[103] For these
reasons, I would allow the appeal with costs, set aside the judgment of the
Federal Court and dismiss the Information Commissioner’s application.
"John M. Evans"
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