Fuda v. Canada (Royal Mounted Police), 2003 FCT 234

Date: 20030224

Docket: T-1185-01

Neutral citation: 2003 FCT 234

Ottawa, Ontario, February 24, 2003

Present:    The Honourable Madam Justice Danièle Tremblay-Lamer

BETWEEN:

                              SALVATORE FUDA

                                                                Applicant

                                   and

                   ROYAL CANADIAN MOUNTED POLICE and

                    THE SOLICITOR GENERAL OF CANADA

                                                              Respondents

                         REASONS FOR ORDER AND ORDER

[1]                 This is an application by Salvatore Fuda (the "applicant") pursuant to section 41 of the Privacy Act, R.S.C. 1985, c.P-21 (the "Act"), for review of the refusal by the Royal Canadian Mounted Police ("RCMP"), to provide him with access to his personal information held in the RCMP's personal information banks.

[2]                 The applicant is a business person. He is the chairman of Ontex Resources Limited ("Ontex"), a public limited liability company.

[3]                 In or about October 1999, Ontex applied to be listed on the Toronto Stock Exchange ("TSE"). The TSE refused to list Ontex. The applicant was advised by officials of the TSE that one of the reasons for the refusal to list Ontex was the fact that the TSE had received rumours that the applicant was involved in organized crime. The TSE refused to provide the applicant with any further information about the source of the rumours.

[4]                 The applicant made a request to the RCMP for access to all information about him or the companies with which he was associated that it held in its personal information banks.

[5]                 A personal information bank is a collection or grouping of personal information about various individuals held by a government institution. The detailed description of each bank, including the purposes for which the personal information was obtained or compiled, is published annually in Info Source: Sources of Federal Government Information ("Info Source") by the Treasury Board Secretariat.

[6]                 The RCMP processing unit determined that the applicant was eligible to make the request. Sergeant Andrew Baird, who at the time was a Non-Commissioned Officer in charge of Disclosure unit 5, was responsible for reviewing the request.

[7]                 Two personal information banks were searched on receipt of the applicant's request. They were PPU 005 - Operational Case Records, and PPU 015 - Criminal Operational Intelligence Records.

[8]                 As described in Info Source, PPU 005 - Operational Case Records contains personal information on individuals who have been involved in investigations under the Criminal Code, federal and provincial statutes, and municipal by-laws. The purpose of compiling the information is for the administration or enforcement of the law and for the detection, prevention or suppression of crime. The individuals who have personal information in this bank are those who are involved in or are the subject of criminal investigations.

[9]                 On review of the information about the applicant in this personal information bank, it was determined that it was exempt from disclosure under the exceptions in section 19, paragraphs 22(1)(a), 22(1)(b), and section 26 of the Act.

[10]            The applicant was advised of this decision by letter dated May 19, 2000.

[11]            PPU 015 is an exempt bank pursuant to section 18 of the Act. As described in Info Source, PPU 015 - Criminal Operational Intelligence Records contains personal information about individuals who have been linked to organized criminal activities. The bank also includes personal information records about the administration, policy and management of confidential human sources and witnesses requiring protection relating to criminal activities.

[12]            The files containing records in an exempt bank are reviewed by an analyst every two years to determine whether the information still qualifies for exemption under section 18.

[13]            The RCMP did not confirm or deny the existence of information about the applicant in this personal information bank. The applicant was further advised that if such information did exist, it would be exempt from disclosure pursuant to paragraph 22(1)(a) of the Act.

[14]            On or about June 5, 2000, the applicant made a complaint regarding the denial of access to the Privacy Commissioner of Canada. The Privacy Commissioner investigated the matter and issued a decision on May 9, 2001 which was received on May 17, 2001. By that decision, the Privacy Commissioner held that the RCMP's decision to refuse to provide the applicant with information in its personal information banks complied with the Act.

[15]            The purpose of the Act is to facilitate the right of access to information under the control of the government. Subsection 12(1) of the Act provides individuals with access to personal information that is contained in a personal information bank or under control of a government institution:

[16]            The right of access to personal information, however, is not absolute. There are exemptions to the right of access to information in limited and specific circumstances. The government is provided with the ability to protect the confidentiality of certain investigations, the identities of confidential sources of information, and information that was prepared in the course of lawful investigations.

[17]            Section 47 places the burden on the government to establish that the head of the institution is authorized to refuse to disclose the personal information requested or that a file should be included in a personal information bank designated as an exempt bank pursuant to section 18:

[18]            In the present case, although other exemptions apply simultaneously to some of the documents, the applicable exemption primarily relied upon by the RCMP for all the documents is paragraph 22(1)(a).

[19]            Paragraph 22(1)(a) provides that the head of a government institution may withhold personal information that is less than 20 years old if the information was collected in the course of a lawful investigation pertaining to the detention, prevention or suppression of crime, the enforcement of any federal or provincial statute, or the activities suspected of constituting threats to the security of Canada:

[20]            The applicant argues that there should be a high onus on the RCMP to establish that his personal information should not be disclosed. He contends that his application must be considered in light of the fact that neither he nor his counsel have seen the records in question. As he doesn't know the exact content of the information, he is unable to determine whether the exemptions were properly applied. Furthermore, he cannot make anything other than general submissions on the exemptions relied upon. Since the Court's decision must, of necessity, be based upon the detailed representations of only one party - the RCMP - the applicant argues that more than a prima facie case must be established for the non-disclosure of his personal information. I disagree with the applicant.

[21]            The inability of the applicant or his counsel to see the exempt information does not place a higher onus on the respondent to justify its decision. This Court has the ability to scrutinize all of the undisclosed information in rendering its decision on review. The respondent will have to satisfy this Court that it met the onus of proof for relying on the exemptions in the statute, and that its decision was justified.

[22]            This issue was addressed by the Federal Court of Appeal in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589. In its decision, the Court agreed with the applicant that given that he had never seen the documents, it was unreasonable to expect him to show that the discretion was improperly exercised. However, any improper exercise of discretion would be resolved by the Court's ability to scrutinize the government institution's actions. Létourneau and Robertson JJ. stated at para. 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." This is why the reviewing Court is given access to the material in issue by section 45 of the Act.

[23]            Therefore, there is no higher onus on the RCMP to show that it properly exercised its discretion simply because the applicant has not seen the documents in question. This Court, by having access to the material at issue, will determine as a matter of law, first whether the applicant's personal information falls within the description of the exempt information covered by paragraph 22(1)(a) and second whether the government institution's discretion to not disclose the personal information was properly exercised. The lawfulness of this exercise of discretion is reviewed on a standard of reasonableness. It is not for the Court to substitute its view for that of the Minister on how the discretion should be exercised. (3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421 (C.A.)).

[24]            The applicant was denied access to his personal information in the PPU 005 - Operational Case Records.

[25]            Sergeant Baird determined that the information in this bank was subject to an exemption from disclosure pursuant to paragraph 22(1)(a) of the Act as the following three conditions were met:

            ·           the personal information was obtained by the RCMP, an investigative body listed at section 13 in Schedule II of the regulations of the Act.

            ·           the personal information was obtained by the RCMP in the course of lawful investigations pertaining to the activities of members of organized crime groups, including but not limited to heroin and other drug trafficking, counterfeiting, illegal gambling, attempted murder, extortion, operation of gambling clubs.

            ·           the files from which information was requested were less than 20 years old.

[26]            Having reviewed the confidential affidavit and exhibits of Sergeant Baird, I am of the view that the applicant's personal information in PPU 005 falls within the description of the exempt information in paragraph 22(1)(a). All the information in personal information bank PPU 005 is less than 20 years old and was obtained by the RCMP during lawful investigations of the applicant in organized crime. I am also of the opinion that it was reasonable for the respondent to refuse to disclose this information to the applicant. The discretion that was exercised was for a reason rationally connected to the purpose for which it was granted. There is no indication of bad faith or other reason that would render the exercise of this discretion unreasonable.

[27]            Some information was also exempted on other grounds. However, as I am satisfied that all the documents are covered by paragraph 22(1)(a), I do not need to address the additional grounds.

[28]            The respondent further refused to confirm or deny whether any personal information relating to the applicant existed in PPU 015. This is an exempt bank pursuant to section 18 of the Act:

[29]            As explained by Sergeant Baird in his public affidavit, the difference between the files in the exempt bank and the files in the operational bank is that the information in the files in the exempt bank is for intelligence gathering purposes and is generally broader and spans a longer period of time, while the information in the operations bank is more specific, targeted and often intended to be used to support the laying of charges under the Criminal Code or some other statute.

[30]            The Act permits that this information bank is classified as exempt because sensitive investigations would be jeopardized if the individuals or organizations involved were able to ascertain what was already known or not known about them, the methods of operations used, the extent of coverage and the sources of reporting their activities.

[31]            I highlight the comments of the Federal Court of Appeal in Ruby, supra, where the Court stated at para. 49:

We agree with the respondent that the mere fact of revealing to an applicant that the bank contains information on him would reveal to that applicant that he is the subject of an investigation and, therefore, could jeopardize the conduct of sensitive on-going investigations. In addition, if the power conferred by subsection 16(2) to indicate whether personal information exists were to be exercised on a case-by-case basis, at times resulting in confirmation and at others in denial of the existence of information, it is not difficult to imagine that an individual or a group of individuals, in view of the nature of the bank itself, would be in a position to successfully extrapolate about the field, scope, length and intensity of active or related investigations.

[32]            After reviewing the confidential affidavit of Sergeant Baird, I am of the view that the respondent's decision to neither confirm nor deny the existence of personal information about the applicant in the information bank PPU 015 complied with the Act and that if any information were to exist, it would be reasonably expected to be exempted pursuant to paragraph 22(1)(a).

[33]            For these reasons, this application for judicial review is dismissed.

                                                  ORDER

THIS COURT ORDERS that the application for judicial review is dismissed.

                                                                      "Danièle Tremblay-Lamer"

J.F.C.C.

                          FEDERAL COURT OF CANADA

                   Names of Counsel and Solicitors of Record

DOCKET:                                              T-1185-01

STYLE OF CAUSE:              SALVATORE FUDA

Applicant

- and -

ROYAL CANADIAN MOUNTED POLICE AND

THE SOLICITOR GENERAL OF CANADA

Respondents

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           FEBRUARY 17, 2003   

REASONS FOR ORDER BY:                       TREMBLAY-LAMER, J.

DATED:                          FEBRUARY 24, 2003

APPEARANCES BY:             Mr. George Rust D'Eye

Ms. Kim Mullin

For the Applicant

Ms. Suzanne Duncan

For the Respondent

SOLICITORS OF RECORD:        Mr. George Rust D'Eye

Ms. Kim Mullin

                                           WeirFoulds LLP

                                            Barristers & Solicitors

The Exchange Tower, Suite 1600

                                          P. O. Box 480

130 King Street West

Toronto, Ontario

M5X 1J5

For the Applicant                                 

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent