Bronskill v. Canada (Minister of Canadian Heritage)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Noël, J.
• Date: 28 April 2011
• Citation: (2011), 395 F.T.R. 165 (FC),2011 FC 983
• Court: Federal Court (Canada)

Bronskill v. Can. (2011), 395 F.T.R. 165 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AU.007

Jim Bronskill (applicant) v. Minister of Canadian Heritage (respondent) and Information Commissioner of Canada (intervener)

(T-1680-09; 2011 FC 983)

Indexed As: Bronskill v. Canada (Minister of Canadian Heritage)

Federal Court

Noël, J.

August 11, 2011.

Summary:

In 2005, a journalist sought access under the Access to Information Act (ATIA) to the Royal Canadian Mounted Police (RCMP) dossier on Tommy Clement Douglas, a Canadian political figure, who died on February 24, 1986. The record originated from the RCMP's Security Intelligence Division, which was replaced by a civilian intelligence service, the Canadian Security Intelligence Service (CSIS), in 1984. The dossier was in the possession of Library and Archives Canada (LAC). LAC consulted with CSIS as to the nature of the documentation and the applicability of the ATIA's exemptions. Thereafter, LAC refused to disclose certain portions of the dossier, relying on the international affairs and defence exemption (s. 15). The journalist complained to the Information Commissioner. The Information Commissioner found that the journalist's complaint was not justified. The Information Commissioner determined that the documents were properly withheld under s. 15. The journalist applied for judicial review under s. 41 of the Access to Information Act. Just before the public hearing, the LAC undertook a second review of the Douglas file and more information was released.

The Federal Court allowed the journalist's application. The court concluded that the discretion exercised by the LAC in dealing with the material was not exercised in a reasonable manner. The court was not satisfied the information still withheld was retained in a manner consistent with s. 15. The LAC needed to do more to ensure consistency in disclosure. Further, the LAC needed to exercise its discretion in accordance with the factors set out by the court. The court returned the matter to the LAC for redetermination of what information should be released with the specific guidance to follow the court's reasons, their spirit and the examples set out by the court.

Courts - Topic 1763

Powers - Appointment of counsel - Amicus curiae - Library and Archives Canada (LAC) refused to disclose certain portions of a RCMP dossier on Tommy Douglas, a Canadian political figure, requested by a journalist under the Access To Information Act (ATIA) - LAC relied on the national security exemption (ATIA, s. 15) - The journalist complained to the Information Commissioner, who found that the complaint was not justified - The journalist applied for judicial review (ATIA, s. 41) - The journalist requested that the court should avail itself of the broad powers provided by s. 50 of the ATIA in order to appoint an amicus curiae to help the court with its analysis and review of the documentation - The Federal Court held that the appointment of an amicus was not necessary in this case - The court stated, however, that "Without deciding this issue, the Court assumes for the purposes of this file only that the appointment of an amicus could fall within the ambit of the broad powers of s. 50 of the ATIA" - See paragraphs 110 to 114.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The Federal Court stated that the Access to Information Act (Can.) was "... unambiguous as to its scope and purpose. Firstly, the Act's purpose is to extend the public's right to access to information, and that the Act was not meant to 'limit in any way' access to government information (s. 2 of the Act). Section 2 of the Act also requires that the exemptions to the right of access should be 'limited and specific'. This limited scope of the exemptions provided in the Act is essential to the court's interpretation of any application brought forth, and courts have consistently recognized this policy objective as being a core component of the review of refusals of disclosure" - See paragraph 5.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The Federal Court discussed the relationship between the Library and Archives of Canada Act and the Access to Information Act (Can.) - See paragraphs 16 to 25 - The court stated, inter alia, that "The Library and Archives of Canada Act ... is inextricably linked to the [Access to Information] Act. The most obvious link in the present application is that LAC [Library and Archives Canada] is the respondent to the ATI [access to information] request, but over and above that, the Library and Archives of Canada Act should be considered in every review of an ATI request, regardless as to the department or decision-maker involved. The responsibilities conferred by s. 12 of the Library and Archives of Canada Act to the Librarian and Archivist, the head of LAC support this contention ..." - See paragraph 16.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - [See Statutes - Topic 2617 ].

Crown - Topic 7162

Examination of public documents - Freedom of information - Legislation - Purpose of - The Federal Court stated that "the purpose of the Access to Information Act [Can.] is to enshrine an essential component of democracy: the public's right to government information (s. 2 of the Act) ..." - See paragraph 4.

Crown - Topic 7162

Examination of public documents - Freedom of information - Legislation - Purpose of - [See first Crown - Topic 7161 ].

Crown - Topic 7202

Examination of public documents - Freedom of information - Bars - Interpretation - [See both Crown - Topic 7161 and first and second Crown - Topic 7220 ].

Crown - Topic 7220

Examination of public documents - Freedom of information - Bars - Injury to international affairs - The Federal Court stated that the exemptions laid out in the Access to Information Act (Can.) were to be considered in two aspects by the reviewing court - "Firstly, exemptions in the Act are either class-based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive in and of itself. For example, the section 13 exemption is related to information obtained from foreign governments, which, by its nature, is a class-based exemption. Injury-based exemptions require that the decision-maker analyze whether the release of information could be prejudicial to the interests articulated in the exemption. Section 15 is an injury-based exemption: the head of the government institution must assess whether the disclosure of information could 'be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities'" - See paragraph 13.

Crown - Topic 7220

Examination of public documents - Freedom of information - Bars - Injury to international affairs - The Federal Court stated that the exemptions laid out in the Access to Information Act (Can.) were to be considered in two aspects by the reviewing court - After first considering whether a particular exemption was class-based or injury based, "The second component of the exemptions under the Act is to determine whether the exemption is mandatory or discretionary. In the case of mandatory exemptions, the provisions of the Act mandate that the decision-maker 'shall refuse to disclose' the records when they fall under the exemption (see, inter alia, s. 19 [personal information]). In the case of discretionary exemptions, the decision-maker 'may refuse' to disclose the record. Section 15 [injury to international affairs and defence of Canada exemption] is a discretionary exemption" - See paragraphs 13 and 15.

Crown - Topic 7220

Examination of public documents - Freedom of information - Bars - Injury to international affairs - Library and Archives Canada (LAC) refused to disclose certain portions of a RCMP dossier on Tommy C. Douglas, a Canadian political figure, requested by a journalist under the Access To Information Act (ATIA) - The LAC relied on the national security exemption (ATIA, s. 15) - The journalist complained to the Information Commissioner, who found that the complaint was not justified - The journalist applied for judicial review (ATIA, s. 41) - The Federal Court discussed whether the documents were properly considered as s. 15 exempted documents, including how the LAC dealt with issues of current operational interest, human sources, technical sources (intercepts, surveillance, etc.), targets of "transitory nature", identity of RCMP officers, "incidental reporting" (where Douglas was only mentioned in passing) and the RCMP's assessment of Douglas - The court concluded that the discretion exercised by the LAC in dealing with the material was not exercised in a reasonable manner - The court was not satisfied the information still withheld was retained in a manner consistent with s. 15 - The LAC needed to do more to ensure consistency in disclosure - Further, the LAC needed to exercise its discretion in accordance with the factors set out by the court - Thus the court returned the matter to the LAC for redetermination - The court suggested that the LAC detail and evidence the steps and approach taken to its next review and how it exercised its discretion - See paragraphs 83 to 229.

Crown - Topic 7220

Examination of public documents - Freedom of information - Bars - Injury to international affairs - Section 15 of the Access to Information Act (ATIA) allowed the head of a government institution to refuse disclosure of information which could, if released, reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities - The Federal Court noted that the disclosure of information pertaining to human sources was directly anticipated as an exemption within s. 15(1)(f) of the ATIA - The court discussed generally the issue of protection of human sources within an ATIA request where the s. 15 exemption was raised - See paragraphs 140 to 155.

Crown - Topic 7220

Examination of public documents - Freedom of information - Bars - Injury to international affairs - Section 15 of the Access to Information Act (ATIA) allowed the head of a government institution to refuse disclosure of information which could, if released, reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities - The Federal Court discussed the factors to be considered in the exercise of the discretion given by s. 15 in a case involving a request for information from the Library and Archives Canada - See paragraphs 210 to 223.

Crown - Topic 7220.03

Examination of public documents - Freedom of information - Bars - Injury to national defence - [See all Crown - Topic 7220 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Federal Court discussed the applicable standard of review on an application under s. 41 of the Access to Information Act (ATIA) for review of a decision by the head of a government institution to refuse disclosure of information on the basis of the national security exemption (ATIA, s. 15) - The court held that for discretionary exemptions such as s. 15, a two step-analysis was required - The court first had to review whether the documents fell within the exemption claimed and second whether the discretion was exercised properly - The reasonableness standard applied to both issues on a review of an exemption under s. 15 - "However, the Act's objectives and their interpretation by the courts is such that this discretion is on the lower end of the spectrum, and that the Court is given ample jurisdiction and powers to review the exemptions claimed, as well as the exercise of discretion ... Therefore, some deference has to be given, but not to the point of neutralizing the role of the judiciary as provided for by the legislation" - See paragraphs 62 to 82.

Crown - Topic 7284

Examination of public documents - Freedom of information - Practice - Parties (incl. standing, interveners, amicus curiae, etc.) - [See Courts - Topic 1763 ].

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - The Federal Court looked to the preamble of the Library and Archives of Canada Act to determine the purpose of the legislation - See paragraph 20.

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - The Federal Court stated that "Not only do the principles of statutory interpretation allow for consideration of statutes adopted on similar issues, the coherence of the Canadian legal order requires that the inherent principles of statutes in similar matters be considered fully complementary, especially in an issue as important as access to information. It is clear that the complimentary purposes of the [Access to Information] Act and the Library and Archives Act of Canada are such that they are inextricably linked, as would the aims of the Privacy Act if it was to be considered by the Court in the present application" - See paragraph 22.

Cases Noticed:

Information Commissioner (Can.) v. Canada (Minister of National Defence) (2011), 416 N.R. 105; 2011 SCC 25, refd to. [para. 4].

Canada Post Corp. v. Canada (Minister of Public Works) et al., [1995] 2 F.C. 110; 179 N.R. 350 (F.C.A.), refd to. [para. 5].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 5].

Rubin v. Canada (Minister of Transport), [1998] 2 FC 430; 221 N.R. 145 (F.C.A.), refd to. [para. 5].

3430901 Canada Inc. et al. v. Canada (Minister of Industry), [2002] 1 F.C. 421; 282 N.R. 284; 2001 FCA 254, refd to. [para. 9].

Telezone Inc. v. Canada (Minister of Industry) - see 3430901 Canada Inc. et al. v. Canada (Minister of Industry).

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 23].

Blank et al. v. Canada (Minister of the Environment) (2001), 281 N.R. 388; 2001 FCA 374, dist. [para. 24].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 41].

Kitson v. Canada (2009), 354 F.T.R. 201; 2009 FC 1000, refd to. [para. 41].

Attaran v. Canada (Minister of Foreign Affairs) (2011), 420 N.R. 315; 2011 FCA 182, refd to. [para. 41].

Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce), [1984] 1 F.C. 939 (T.D.), refd to. [para. 41].

Statham v. Canadian Broadcasting Corp. (President) et al. (2010), 409 N.R. 350; 2010 FCA 315, refd to. [para. 50].

Byer v. Information Commissioner (Can.), [2004] F.T.R. Uned. 38; 2004 FC 119, refd to. [para. 54].

Steinhoff v. Canada (Minister of Communications) (1998), 83 C.P.R.(3d) 380 (F.C.T.D.), refd to. [para. 64].

X. v. Canada (Minister of National Defence) (1992), 58 F.T.R. 93 (T.D.), refd to. [para. 64].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 64].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 64].

Information Commissioner (Can.) v. Canada (Minister of Industry) (2001), 274 N.R. 341; 2001 FCA 253, refd to. [para. 68].

Sherman v. Canada (Minister of National Revenue) (2002), 222 F.T.R. 145; 2002 FCT 586, refd to. [para. 68].

Hien Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs and International Trade) (1999), 241 N.R. 308 (F.C.A.), refd to. [para. 69].

Do-Ky - see Hien Do-KyVietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs and International Trade).

Information Commissioner (Can.) v. Prime Minister (Can.), [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.), refd to. [para. 69].

Canada Packers Inc. v. Canada (Minister of Agriculture) et al., [1989] 1 F.C. 47; 87 N.R. 81; 26 C.P.R.(3d) 407 (F.C.A.), refd to. [para. 70].

Hein Do-Ky Vietnamese Refugee Sponsorship Committee v. Canada (Minister of Foreign Affairs and International Trade), [1997] 2 F.C. 907; 126 F.T.R. 81 (T.D.), refd to. [para. 73].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 73].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), refd to. [para. 77].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 78].

Canadian Council of Christian Charities v. Canada (Minister of Finance) (1999), 168 F.T.R. 49; 99 D.T.C. 5337 (T.D.), refd to. [para. 82].

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1988), 24 F.T.R. 32 (T.D.), refd to. [para. 100].

Khadr v. Canada (Attorney General), [2008] 3 F.C.R. 306; 322 F.T.R. 256; 2008 FC 46, refd to. [para. 111].

Sherman v. Minister of National Revenue, [2004] F.T.R. Uned. 835; 2004 FC 1423, refd to. [para. 125].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 125].

X. v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.), refd to. [para. 130].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 131].

Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar et al. (2007), 316 F.T.R. 279; 2007 FC 766, refd to. [para. 131].

Blank v. Canada (Minister of Justice), [2007] N.R. Uned. 82; 2007 FCA 147, refd to. [para. 134].

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 134].

Harkat, Re, [2009] 4 F.C.R. 370; 339 F.T.R. 65; 2009 FC 204, refd to. [para. 144].

Canada (Attorney General) v. Almalki et al. (2010), 377 F.T.R. 186; 2010 FC 1106, varied (2011), 420 N.R. 91; 2011 FCA 199, refd to. [para. 144].

Bisaillon v. Keable, [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 146].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 146].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 146].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 147].

CTVglobemedia Publishing Inc. v. Canada (Attorney General) et al., [2010] 2 S.C.R. 592; 407 N.R. 202; 2010 SCC 41, refd to. [para. 147].

Charkaoui, Re, [2009] 1 F.C.R. 507; 316 F.T.R. 236; 2008 FC 61, refd to. [para. 148].

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89; 67 D.L.R.(4th) 315 (F.C.A.), refd to. [para. 175].

Murchison v. Export Development Canada (2009), 354 F.T.R. 18; 2009 FC 77, refd to. [para. 182].

Attaran v. Canada (Minister of Foreign Affairs) (2009), 342 F.T.R. 82; 2009 CarswellNat 781; 2009 FC 339, refd to. [para. 196].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 2 [para. 5]; sect. 10 [para. 7]; sect. 15, sect. 19 [para. 12]; sect. 41 [para. 1]; sect. 49 [para. 66]; sect. 50 [para. 62].

Library and Archives of Canada Act, S.C. 2004, c. 11, Preamble [para. 19]; sect. 7 [para. 18]; sect. 12(1) [para. 16].

Authors and Works Noticed:

Canada, Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald Commission) (1981), vol. 1, pp. 422 [para. 159]; 466 [para. 160]; 468, 474 [para. 163]; 480 [para. 165]; 482 [para. 162].

Côté, Pierre André, Beaulac, Stéphane, and Devinat, Mathieu, Interprétation des lois (4th Ed. 2009), para. 226 [para. 20].

McDonald Commission - see Canada, Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald Commission).

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 217 [para. 20]; 412 [para. 22].

Counsel:

Paul Champ and Amir Attaran, for the applicant;

Gregory S. Tzemenakis, for the respondent.

Solicitors of Record:

Champ & Associates, Ottawa, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Senior Counsel, Office of the Information Commissioner of Canada, Ottawa, Ontario, for the intervener.

This application was heard in Ottawa, Ontario, by way of public hearings on February 23 and April 28, 2011, and a closed hearing on November 30, 2010, before Noël, J., of the Federal Court, who delivered the following decision on August 11, 2011.