Info Source Bulletin 47A - Federal Court Decision Summaries

Operational takeaways

Summary

The case involves the CBC appealing a decision by the Board. The CBC sought access to audio recordings of parole hearings for three notorious offenders: Paul Bernardo, Craig Munro, and Robert MacLeod. The CBC argued that the open court principle, which allows for public access to court proceedings, should apply to the Board as it functions in a judicial or quasi-judicial capacity. The Board, however, contended that its proceedings are inquisitorial rather than adversarial, focusing on risk assessment rather than adjudicating competing interests. The Board’s decision, communicated in an October 21, 2019 letter, denied the CBC’s request for copies of the recordings, leading to the appeal. The Federal Court of Appeal had to consider whether the open court principle applies to the Parole Board and whether the CBC is entitled to the audio recordings under other legal provisions.

Issues

• What is the standard of review?
• Is the Board subject to the open court principle?
• Is the CBC otherwise entitled to audio recordings of Board hearings?

Facts

This is an appeal from a decision of the Federal Court dismissing an application for judicial review of a decision of the Board refusing to provide the CBC with “a complete copy of the audio recordings of parole hearings of Paul Bernardo, held on October 17, 2018; Ethan Simon Templar MacLeod, formerly known as William Shrubsall, held on or about November 7, 2018; and Craig Munro, held on February 26, 2009, March 16, 2010, March 30, 2011, and July 29, 2015.

The CBC argued that the open court principle and section 2(b) of the Canadian Charter of Rights and Freedoms entitled them to these recordings. The Parole Board, however, denied the request, stating that its proceedings are inquisitorial rather than adversarial, and thus not subject to the open court principle.

Decision

The decision was to allow the CBC’s appeal. However, the court did not grant all the remedies sought by the CBC.

The Federal Court of Appeal found that the Board had erred in its decision to refuse providing the CBC with copies of the audio recordings of parole hearings. The court emphasized the importance of the open court principle and the public’s right to know, particularly in the context of the media’s role in disseminating information.

Reasons

Operation takeaways

• The disclosure of the fact that the legal advice was sought and obtained does not equate to a waiver of the privilege regarding the content of that advice.
• The exemption analysis worksheet completed by DND during the OIC’s investigation demonstrated that DND considered waiving solicitor-client privilege during the investigation. This satisfied the Court that the decision-maker was aware of the discretion in section 23 of the Access to information Act (ATIA) and exercised the discretion.

Summary

The Department of National Defence (DND) did not err in its interpretation and application of the solicitor-client privilege exemption under the ATIA.

Issues

Did DND err in its interpretation and application of the solicitor-client privilege exemption under the ATIA?

Facts

The Canadian Forces National Investigation Service (CFNIS) was mandated to investigate the alleged sexual assault of a complainant. The CFNIS’s investigator requested pre-charge screening legal advice from a military prosecutor. When providing such advice, military prosecutors must determine whether there is a reasonable prospect of conviction and whether a charge should be laid, although the ultimate decision is within the CFNIS’s discretion. On December 10, 2019, the military prosecutor issued the Screening Document and the CFNIS’s investigator and military prosecutor met with the complainant to inform her of the CFNIS’s decision not to lay charges.

Ms. Bélanger-Drapeau filed access to information requests on behalf of the complainant, including for “the contents of the file held by the Director of Military Prosecution concerning” the Military Police General Occurrence file about the alleged sexual assault. The request yielded the Screening Document. DND refused to disclose the record, other than the date and the military prosecutor’s signature block, based on the exemption of solicitor-client privilege under section 23 of the ATIA.

Ms. Bélanger-Drapeau filed a complaint with the Office of the Information Commissioner (OIC). The OIC concluded that the Screening Document met the requirements of the legal advice and litigation privilege exemption, that there had been no waiver of privilege over the exempted information, and that DND reasonably exercised its discretion when it chose not to release more information about the Screening Document. Ms. Bélanger-Drapeau applied for a review of the OIC decision pursuant to section 41 of the ATIA.

Decision

The application for judicial review was dismissed. The Screening Document was exempted from disclosure under solicitor-client privilege and the privilege was not waived by either the military prosecutor or the CFNIS. DND’s exercise of its discretion not to disclose the exempt information was reasonable.

Reasons

The Court first analyzed exempted disclosure under solicitor-client privilege.

Section 23 of the ATIA is a discretionary exemption and protects from disclosure records that are subject to solicitor-client privilege. Pursuant to section 25 of the ATIA, the institution to whom an access to information request is made has the duty to disclose any part of the record that does not contain any exempted information and that can be reasonably severed from the record. According to the Federal Court of Appeal (FCA) in Canada v. Blank, 2007 FCA 87, this duty is altered when it comes to solicitor-client communications. The courts must be respectful of the client’s confidence that communications with their lawyer would not be subject to disclosure without their consent.

Ms. Bélanger-Drapeau acknowledged that the Screening Document was a record subject to solicitor-client privilege but submitted that the general and factual information it contained (title, recipient of the document, facts relied on by the Director of Military Prosecutions’ (DMP) solicitor, etc.) should have been disclosed because it was not part of the privileged information. The Court was satisfied that the Screening Document was covered by solicitor-client privilege and exempt from disclosure, and that the privilege extends to the factual information contained in the document. This information revealed the subject of the communication and the assumptions made by the military prosecutor. The Court was not persuaded that this is a situation where the factual components of the Screening Document could be carved out and disclosed without, at the same time, disclosing the legal advice. In Blank v. Canada (Minister of Justice), 2004 FCA 287, the FCA held that “this kind of [factual] information enables the requester ‘to know that a communication occurred between certain persons at a certain time on a certain subject, but no more’”. With the information already provided by DND, Ms. Bélanger-Drapeau knew that the record was a pre-charge screening document prepared by the military prosecutor on December 10, 2019, and knew it was submitted to the CFNIS. In these circumstances, the Court stated that no further disclosure of factual information was required.

Ms. Bélanger-Drapeau further argued that the CFNIS and the military prosecutor waived solicitor-client privilege on the Screening Document by discussing the pre-charge screening results with the complainant at the December 10, 2019 meeting. They claimed that the discussion that took place at that meeting amounts to an implied waiver because there is no legal requirement for the DMP to meet with the victim and discuss the results of its recommendation to the CFNIS. According to Ms. Bélanger-Drapeau, entries from the administrative log of the Military Police General Occurrence file would purportedly demonstrate that the DMP’s solicitor and the CFNIS’s investigator waived the privilege because the outcome of the investigation, discussed with the complainant, would rely on the legal advice itself to justify the decision not to lay charged.

The Court held that no waiver of solicitor-client privilege occurred in this case. Nothing in the evidence suggested that the military prosecutor or the CFNIS’s investigator referred to any part of the legal advice itself during the meeting, openly discussed the DMP’s legal advice with the complainant, or relied on the legal advice to justify the decision not to lay charges. Regarding log entries, the Court further held that the Minister correctly pointed out that the decision to lay charges ultimately lies with CFNIS and nothing indicated that this decision was taken in accordance with the DMP’s legal advice. Additionally, the factual evidence did not in the Court’s view support the assertion that the disclosure of the sentence “no accusation was recommended by the RMP” in the log intended to waive the privilege. The CFNIS’s opposite intent is rather clear: it wanted to maintain the confidentiality of the Screening Document. The disclosure of the fact that legal advice was sought and obtained did not, in the Court’s view, equate to a waiver of the privilege regarding the content of that advice.

The Court stated that finding that the meeting itself constituted a waiver of solicitor-client privilege would discourage meetings with alleged victims to inform them of the outcome of the investigations, because the DMP and the CFNIS would be at risk of losing solicitor-client privilege. It would not be a desirable result.

The second section of the Court’s analysis was DND’s discretionary ruling under section 23 of the ATIA. DND reasonably exercised its discretion when it decided not to disclose the entirety of the Screening Document.

The Court explained that even where information falls under solicitor-client privilege, the government institution has the discretion to disclose the totality or part of the exempted information pursuant to section 23 of the ATIA. The exercise of discretion requires the government institution to consider both the factors in favour of disclosure and the factors against it (Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95). The Court noted that the FCA’s comment in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is noteworthy, including that “[a]t a minimum, the reasons or the record should show that the decision-maker was aware of this discretion to release exempted information and exercised that discretion one way or the other”.

The Court further noted that while the reasons underlying the DND ruling did not provide a basis to suggest that DND was aware of its discretion, the record contained such indications. In the Court’s view, the exemption analysis worksheet completed by DND during the OIC’s investigation demonstrated that DND considered waiving solicitor-client privilege during the investigation. However, because the CFNIS expressly voiced its intent to maintain the privilege, it decided not to exercise its discretion. The excerpt from Leahy states that at least some information on the exercise of discretion must appear in the decision or in the record, which is the case here. The DND ruling constituted a reasonable outcome based on the law and the evidence, and it had the requisite attributes of transparency, justification and intelligibility. Even if reasons were not given in the DND ruling itself, the reasonable exercise of DND’s discretion flowed from the record. That alone, the Court articulated, was sufficient under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, as it allowed the Court to assess the intelligibility and transparency of DND’s reasoning.

Operational takeaways

• Offenders have the same privacy rights pursuant to the Privacy Act as all members of society except insofar as they are necessarily and lawfully removed or restricted.
• Subparagraph 8(2)(m)(i) is one of the few, if not the only, provisions in the Privacy Act in which the requesters’ motives are relevant.
  • To the extent that the requesters can identify an interest beyond their own personal interest, the government institution must give respectful attention to the stated motive, but given the ease of aggrandizing one’s personal interests, the institution is not bound by the stated interest.

Summary

This is an appeal from the Federal Court’s decision that set aside the decisions by Correctional Service Canada (Corrections Canada) and the Parole Board of Canada (the Board) to refuse the disclosure of personal information. This appeal was ultimately dismissed, with the Court determining that there was no compelling public interest warranting the disclosure of the complete personal information of the offenders.

Issues

• Do the records requested contain personal information?
• If so, are they exempt under s.19 of the Access to Information Act (ATIA)? And, did the Federal Court fall into palpable and overriding error in not disclosing that information pursuant to subparagraph 8(2)(m)(i)?

Facts

Two groups, collectively known as the "Families," sought review with the Federal Court under section 41 of the ATIA of decisions made by Corrections Canada and the Board to refuse disclosure of records related to two individuals, Mr. Craig Munro and Mr. Paul Bernardo, hereafter referred to as the "Offenders."

The Federal Court also had an application by the Canadian Broadcasting Corporation (CBC) for copies of the audio recordings of certain Board hearings pursuant to the open Court principle. Although these applications were initially distinct, they were collectively addressed and resolved through a unified set of reasons.

The Federal Court found that Corrections Canada and the Board considered the requirements of s.19(2)(c) of the ATIA and s.8(2)(m)(i) of the Privacy Act, assessed the nature of the sought after evidence through the prism of the public interest in disclosure and the intrusion upon the Inmates’ privacy interests, and arrived at a decision grounded in their assessment of the evidence.

The suggestion that offenders have no privacy rights about their sentence administration was rejected. The Federal Court agreed with Corrections Canada and the Board that the records in question contained personal information and were thus exempt from disclosure under subsection 19(1) of the ATIA. Hence, they found that the decision to refuse disclosure of records was reasonable.

The Families filed an appeal about the Federal Court’s application of subsections 19(1) and 19(2) of the ATIA and subparagraph 8(2)(m)(i) of the Privacy Act.

Decision

This appeal was dismissed.

The level of disclosure sought by the Families, along with their rationale for it, was deemed not to trigger subparagraph 8(2)(m)(i) of the Privacy Act and therefore the volume this amount of personal information requested was exempt from disclosure under s.19 of the ATIA.

Reasons

The Court determined that the appropriate standard of review in this appeal is the standard of correctness, applying principles set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen], and citing the decision in Canada (Health) v Elanco Canada Limited, 2021 FCA 191, 337 A.C.W.S. (3d) 153, where it was determined that Housen’s principles were applicable on an appeal from a decision of the Federal Court.

The Court noted that the Federal Court did not approach the issues as a de novo hearing as required under section 44.1 of the ATIA. This section sets out that an application is essentially a new proceeding which means that the Federal Court should have effectively stepped into the shoes of the decision makers. The Federal Court erred by applying a deferential standard to the administrative decision-maker’s decision.

From the records maintained by Corrections Canada, the Court found it apparent that the contents of the requested records will contain an exceptional amount of personal information and such information is protected by the ATIA and the Privacy Act. The Families argued that the offenders lost any privacy right they might otherwise have had due to their crimes and their sentences, and that seeking a public remedy such as parole is inconsistent with privacy rights. The Court disagreed, noting that the Offender’s privacy rights are protected by section 3 of the ATIA and because the Privacy Act and the provisions of ATIA are self incorporated by reference, this provision of the Privacy Act apply here. It was also reasoned that because sentences and parole applications are administered by agencies who are subject to the ATIA and the Privacy Act, privacy issues will arise with disclosure.

All the personal information requested in this matter, was refused on the basis of section 19 of the ATIA. Further, subparagraph 8(2)(m)(i) of the Privacy Act, which essentially prioritizes the privacy of individuals unless there is a compelling public interest that outweighs this privacy, did not apply here. However, the FCA found that the Federal Court’s assessment, which initially found the decision makers’ rationales understandable, was correct to the extent that the decisions identify issues that have been referred to, but was mistaken in holding that the decision maker’s analysis was sufficient.

The Court found that the Parole Board and by extension, Corrections Canada did not seriously entertain the Families’ requests often citing privacy concerns without properly weighing the discretionary power of disclosure allowed under subparagraph 8(2)(m)(i) of the Privacy Act or considering the specific circumstances of the offenders. The Court also points out that the assumption that any disclosure of personal information would universally jeopardize offenders’ reintegration into society is overly broad and unrealistic.

Furthermore, the Court disagrees with the Board’s narrow view of public interest, which it finds too limited to emergencies and fails to acknowledge broader interests like freedom of expression. The Court stated that it is not an insurmountable problem to balance public interest and Offenders rights with the view of the Families rights in mind. Ultimately, the reasons for refusal to disclose were found to be inadequate.

The Court found the fact that the Families requested all files relating to Mr. Munro and Mr. Bernado, a total invasion of their privacy interests. This is elaborated when the Families’ request is contrasted to many if not most applications for access to personal information, which are usually more limited and specific. The Court recognized the Families’ concern for public safety but highlighted that the primary purpose seemed to oppose parole applications rather than enhance safety.

The Court noted that that subparagraph 8(2)(m)(i) is one of the few, if not the only, provisions in the Privacy Act in which the requesters’ motives are relevant. To the extent that the requesters can identify an interest beyond their own personal interest, the government institution must give respectful attention to the stated motive, but given the ease of aggrandizing one’s personal interests, the institution is not bound by the stated interest. In this instance, the Court concluded that despite the Families’ stated interest in public safety, the maintenance of the status quo gives rise to no plausible public interest in all of the Offenders’ personal information.

The Families’ rights under Section 2(b) of the Charter were also not infringed, as they were not denied the opportunity to express their opinions on the operations of the Parole Board. They had access to the Board’s hearings, audio recordings of these hearings, and the Board’s decisions.

The Families were unable to demonstrate that the open Court principle applied to the actions of the Parole Board or Corrections Canada. In CBC, this Court also found that the CBC was not entitled to copies of audio recordings of Parole Board hearings pursuant to the open Court principle.

Operational takeaways

Summary

The application for judicial review is dismissed. Health Canada refused to release some of the second and third characters of postal codes of individuals licenced to grow medical marijuana under the licensing regime that was in place before it was legalized, and the names of cities where the licensed production of marijuana occurred. The evidence demonstrated a serious possibility that disclosing this postal code information and/or city names would reveal personal information. Health Canada’s refusal to disclose more information and its decision not to undertake a further analysis of additional information that could potentially be severed and released, was reasonable.

Issues and the standard of review

• Is the Minister authorized to refuse disclosure of the records under subsection 19(1) of the ATIA, because they constitute personal information?
• Did the Minister correctly refuse to further sever the records pursuant to section 25 of the ATIA?

Pursuant to section 44.1 of the ATIA, reviews under section 41 are heard de novo, as a new proceeding. This means that a Court “is to reach its own conclusion as to whether the information at issue is exempt from disclosure under subsection 19(1) of the ATIA, i.e., it must determine whether the mandatory exemption has been applied correctly.” (Canada (Information Commissioner) v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1279 [Public Safety] at para 40). Prior case law has found that a Minister’s exercise of discretion pursuant to subsection 19(2) of the ATIA is subject to review on the reasonableness standard (see, for example, 3430901 Canada Inc. v Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FC 421 [Telezone]; Public Safety at para 41).

With regard to the application of section 25 of the ATIA, the role of a reviewing judge is to “consider whether the institutional head had properly applied s. 25” (Merck Frosst Canada Ltd. V. Canada (Health), 2012 SCC 3, at para. 232). Therefore, the question of how much effort is required to meet the ATIA’s section 25 severance obligation should be treated as part of the de novo review, rather than as a discretionary decision. To be clear, there is a two-step process. A reviewing court must first determine whether the government institution fulfilled its obligation to consider severance under section 25 of the ATIA. If not, the reviewing court must do that, in the context of its de novo review. The second step involves assessing de novo whether it is reasonable to disclose only a portion of the record. The crux of the issue in this case concerns the second step, and whether it is reasonable for the government institution to undertake a more detailed analysis of the risks of re-identification in determining whether more information should be severed and released.

Facts

Decision

Health Canada was authorized to refuse to release the second and third characters of postal codes and/the city names of medical marijuana cultivation licensees. There was a serious possibility that this information, when combined with other available information, could lead to the identification of specific individuals. Health Canada’s refusal to undertake a more detailed analysis to determine whether further information could be severed and released was reasonable.

Reasons