Date: 20110228
Docket: T-2184-09
Citation: 2011 FC 233
Ottawa, Ontario, February 28, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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JOYCE SCHERTZER
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Joyce
Schertzer is a sergeant with the Toronto Police Service. In 2003, she was
intensely interrogated by the United States Border Service on her way out of Pearson International
Airport to a United
States
destination, and was similarly interrogated by the Canadian Border Service
Agency (CBSA) on her return. This led her, not immediately but in 2006, to
request the CBSA for access to her record in accordance with the Access to
Information Act. Although she suspected that the CBSA had prejudicial
information, which had to be incorrect, she did not have to justify herself.
[2]
She
was given some information, but part of the file was withheld or only provided
in redacted form. The CBSA took the position it was exempted from providing the
information withheld in virtue of sections 16(1)(a), 16(1)(b) and
24(1) of the Act. She complained to the Information Commissioner. The reply was
that the Commissioner was of the opinion that section 16(1)(a)
applied and, furthermore, that a small portion of the information was properly
withheld under section 24(1). It was not found necessary to determine whether a
refusal to disclose could also have been justified under section 16(1)(b)
of the Act.
[3]
This
is an application by Ms. Schertzer for a review of the matter in accordance
with section 41 of the Act. It is important to note that what is under
review is not the opinion of the Information Commissioner, but rather the
decision of the CBSA to withhold information.
[4]
Subsections
16(1)(a) and (b) provide:
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16. (1) The
head of a government institution may refuse to disclose any record requested
under this Act that contains
(a) information
obtained or prepared by any government institution, or part of any government
institution, that is an investigative body specified in the regulations in
the course of lawful investigations pertaining to
(i) the
detection, prevention or suppression of crime,
(ii) the
enforcement of any law of Canada or a province, or
(iii)
activities suspected of constituting threats to the security of Canada within the meaning of the Canadian
Security Intelligence Service Act,
if the record came into
existence less than twenty years prior to the request;
(b) information
relating to investigative techniques or plans for specific lawful
investigations;
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16. (1) Le
responsable d’une institution fédérale peut refuser la communication de
documents :
a)
datés de moins de vingt ans lors de la demande et contenant des renseignements
obtenus ou préparés par une institution fédérale, ou par une subdivision
d’une institution, qui constitue un organisme d’enquête déterminé par
règlement, au cours d’enquêtes licites ayant trait :
(i) à la
détection, la prévention et la répression du crime,
(ii) aux
activités destinées à faire respecter les lois fédérales ou provinciales,
(iii)
aux activités soupçonnées de constituer des menaces envers la sécurité du
Canada au sens de la Loi sur le Service canadien du renseignement de
sécurité;
b)
contenant des renseignements relatifs à des techniques d’enquêtes ou à des
projets d’enquêtes licites déterminées;
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[5]
Section
24(1) goes on to say:
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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.
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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.
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[6]
That
section brought into play section 107(2) of the Customs Act which
prohibits persons from knowingly providing anyone with any customs information.
[7]
A
decision by an institution head to refuse to disclose the records is reviewable
on the standard of correctness, while the exercise of discretion under the Act
is reviewable on the reasonableness standard (Canadian Imperial Bank of
Commerce v Canada (Canadian Human Rights Commission), 2007 FCA 272, [2008]
2 FCR 509 at para 8).
[8]
Although
it is obvious from the decision that customs information is involved, Ms. Schertzer
does not know if an investigation is being carried out by Customs and Excise
itself, by one or more of the seven other investigative bodies identified in
Schedule I to the Access to Information Regulations, or in conjunction
with bodies that are not investigative bodies within the meaning of the Act,
such as provincial organizations. In this case, I can say that the investigation
or investigations are all by Schedule I bodies.
[9]
The
information withheld from Ms. Schertzer is before me in virtue of a
confidentiality order issued by Prothonotary Milczynski. I am satisfied that
sections 16(1)(a), 16(1)(b) and 24 of the Act are applicable, not
necessarily that all three subsections apply to each and every document
withheld or redacted, but the documents cannot really be segregated one from
the other. To the extent the CBSA had discretion, it was exercised reasonably.
[10]
To
reveal any of the information (which information might well be absolutely
incorrect) would prejudice a past, ongoing or future investigation, and would
reveal investigative techniques, as well as customs information. The record was
less than 20 years old at the time of the request.
[11]
Counsel
points out that section 16(1) speaks of “lawful investigation.” On
cross-examination, the affiant allowed that he was not personally involved in
the investigation. The question arose then as to how could he possibly know
whether the investigation was lawful or not. Inquiries had to be carried out.
[12]
In
my opinion, such an approach would be intolerable given the thousands upon
thousands of access to information requests. Furthermore, if the investigation
is of a matter which falls within the jurisdiction of the investigative body or
bodies in question, as in this case, the head of the government institution
faced with the request to disclose information need look no further. This view
happens to be consistent with Treasury Board Guidelines, which, of course, are
not binding upon this Court. The Guidelines state that “the term ‘lawful’ means
that the investigation itself must not be contrary to law.”
[13]
At
the close of the hearing, I informed counsel that I intended to dismiss the
application, and so invited them to address costs. Counsel for Ms. Schertzer suggested
that section 53(2) of the Act is applicable. Section 53(1) has the usual
proviso that costs are at the discretion of the Court, and shall follow the
event unless otherwise ordered. However, section 53(2) provides:
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Where the Court is of the opinion that an application for review
under section 41 or 42 has raised an important new principle in relation to
this Act, the Court shall order that costs be awarded to the applicant even
if the applicant has not been successful in the result.
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Dans les cas où elle estime que l’objet des recours visés aux
articles 41 et 42 a soulevé un principe important et nouveau quant à la
présente loi, la Cour accorde les frais et dépens à la personne qui a exercé
le recours devant elle, même si cette personne a été déboutée de son recours.
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[14]
It
was submitted that earlier jurisprudence focused on “investigations” rather
than “lawful investigations” and that the argument raised an important new
principle. I do not agree. I took a common sense approach to “lawful” as did
the Treasury Board. No important new principle in relation to the Act was
raised.
[15]
Counsel
for the Minister submitted a draft bill of costs in the amount of $3,607.25,
based on Column III, the low to middle side. She also pointed out that some
disbursements were not included such as the cost of bringing the affiant from
Ottawa to Toronto for
cross-examination.
[16]
I
see no reason why costs should not follow the event. In my discretion, I round
them down to $3,500, all inclusive.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The application for judicial review is dismissed with costs in favour
of the respondent in the amount of $3,500, all inclusive.
“Sean Harrington”
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