Calgary Police Service v. Privacy Commr.,

• Judge: McMahon, J.
• Neutral Citation: 2010 ABQB 82
• Date: 01 December 2009
• Court: Court of Queen's Bench of Alberta (Canada)

Calgary Police Service v. Privacy Commr. (2010), 484 A.R. 347 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.070

In The Matter Of The Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25

And In The Matter Of Order F2008-009 of the Privacy Commissioner dated August 19, 2008

Rick Hanson, Chief of Police of the Calgary Police Service on behalf of the Calgary Police Service (applicant) v. Office of The Information and Privacy Commissioner (respondent)

(0801 11713; 2010 ABQB 82)

Indexed As: Calgary Police Service v. Information and Privacy Commissioner (Alta.)

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

February 2, 2010.

Summary:

The Commissioner of the Office of the Information and Privacy Commissioner (Alta.) ordered the Calgary Police Service (CPS) to disclose to the Calgary Herald information respecting disciplinary decisions involving police service members, subject to certain redactions (Freedom of Information and Protection of Privacy Act). The CPS refused on the basis that disclosure would be an unreasonable invasion of the personal privacy of third parties, namely the police officers. The CPS applied for judicial review of the Commissioner's decision.

The Alberta Court of Queen's Bench allowed the application in part. The court listed which decisions needed to be disclosed and which did not.

Crown - Topic 7103.3

Examination of public documents - General - Public body defined - Section 17(5) of the Freedom of Information and Protection of Privacy Act listed factors which the head of a public body had to consider in determining whether disclosure would constitute an unreasonable invasion of a third party's personal privacy, including whether: "(a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Alberta or a public body to public scrutiny" - The Alberta Court of Queen's Bench opined that the consideration framed by s. 17(5)(a) included the employees of a public body - See paragraphs 85 and 86.

Crown - Topic 7164

Examination of public documents - Freedom of information - Legislation - Application of - The Commissioner of the Office of the Information and Privacy Commissioner (Alta.) ordered the Calgary Police Service (CPS) to disclose to the Calgary Herald information respecting disciplinary decisions involving police service members, subject to certain redactions (Freedom of Information and Protection of Privacy Act (FOIPP Act)) - The CPS refused on the basis that disclosure would be an unreasonable invasion of the personal privacy of third parties, namely the police officers (ss. 17(4) and 17(5)(a)) - The CPS applied for judicial review of the Commissioner's decision, arguing that the Police Act and Regulation provided a complete regime for dealing with complaints against police officers and the Commissioner erred in failing to properly consider a reconciliation of the provisions of both statutes and the Regulation - The Alberta Court of Queen's Bench rejected CPS's argument - The court held that the Commissioner properly dealt with these Acts - While the provisions of the Police Act and Regulation provided a complete code for the conduct and resolution of police disciplinary matters, they did not purport to provide an answer to the public's access rights to disciplinary decisions, which was the limited request on this judicial review - See paragraphs 76 to 82.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The Commissioner of the Office of the Information and Privacy Commissioner (Alta.) ordered the Calgary Police Service (CPS) to disclose to the Calgary Herald information respecting disciplinary decisions involving police service members, subject to certain redactions (Freedom of Information and Protection of Privacy Act (FOIPP Act)) - The Commissioner found that while the requested disclosure of disciplinary decisions would be a presumptive unreasonable invasion of the police officers' personal privacy under s. 17(4) of the FOIPP Act, he concluded that the need for public scrutiny pursuant to s. 17(5)(a) of the police service compelled disclosure - The CPS refused disclosure and applied for judicial review, claiming that the Commissioner applied the wrong test for balancing public scrutiny versus personal privacy - The Alberta Court of Queen's Bench noted that the Commissioner's decision treated all types of police disciplinary decisions the same, whether involving criminal or administrative conduct or whether the allegations were unfounded or complaints withdrawn - The court opined that the Commissioner's "one answer fits all" approach was not reasonable - The considerations in s. 17(5) of the FOIPP Act had to be applied to each decision or document - The question to be asked with respect to each decision was whether that disclosure was an unreasonable invasion of personal privacy given s. 17(5)(a) (the desirability of public scrutiny) - The types of decisions could be categorized by reference to the Police Act and Regulation - Using that approach, the court determined which decisions had to be disclosed - See paragraphs 87 to 107.

Crown - Topic 7175

Examination of public documents - Freedom of information - Legislation - Disclosure in public interest - [See Crown - Topic 7170 ].

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - [See Crown - Topic 7170 ].

Crown - Topic 7215

Examination of public documents - Freedom of information - Bars - Disclosure where public interest outweighs risk of harm - [See Crown - Topic 7170 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Commissioner of the Office of the Information and Privacy Commissioner (Alta.) ordered the Calgary Police Service (CPS) to disclose to the Calgary Herald information respecting disciplinary decisions involving police service members, subject to certain redactions (Freedom of Information and Protection of Privacy Act (FOIPP Act)) - The Commissioner held that the desirability of public scrutiny outweighed the factors that suggested that the personal information of the cited officers should not be disclosed (with some exceptions) - The CPS refused on the basis that disclosure would be an unreasonable invasion of the personal privacy of third parties, namely the police officers and applied for judicial review - The CPS argued that the Commissioner failed to consider the interrelationship between the FOIPP Act and the Police Act and Regulations, by applying the wrong test for balancing the interests of public scrutiny with the officers' privacy interests (FOIPP, s. 17(5)(a)) and failed to consider and apply the relevant jurisprudence concerning privacy in relation to police disciplinary records - The Alberta Court of Queen's Bench noted that a review of the jurisprudence suggested that previous case law had not yet concluded an appropriate standard of review; therefore a full analysis of the Dunsmuir factors was required - Upon doing so, the court held that the standard of review was reasonableness - See paragraphs 47 to 72.

Police - Topic 4268

Internal organization - Discipline - Procedure - Disclosure of information to public - [See Crown - Topic 7164 and Crown - Topic 7170 ].

Cases Noticed:

Qualicare Health Service Corp. v. Information and Privacy Commission (Alta.) (2006), 407 A.R. 63; 2006 ABQB 515, refd to. [para. 41].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1, refd to. [para. 42].

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. 47].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 49].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 53].

Stubicar v. Information and Privacy Commissioner (Alta.) et al. (2007), 424 A.R. 84; 2007 ABQB 480, affd. (2008), 440 A.R. 190; 438 W.A.C. 190; 2008 ABCA 357, refd to. [para. 53].

IMS Health Canada Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2008), 442 A.R. 268; 2008 ABQB 213, refd to. [para. 53].

University of Alberta v. Information and Privacy Commissioner (Alta.) et al. (2009), 470 A.R. 72; 2009 ABQB 112, refd to. [para. 53].

Shields v. Information and Privacy Commissioner (2004), 364 A.R. 55; 2004 ABQB 353, refd to. [para. 53].

Edmonton Police Service v. Information and Privacy Commissioner (Alta.) et al. (2009), 471 A.R. 82; 2009 ABQB 593, refd to. [para. 53].

University of Alberta v. Pylpiuk et al. (2002), 310 A.R. 300; 2002 ABQB 22, refd to. [para. 53].

Macdonell v. Québec (Commission d'accès à l'information), [2002] 3 S.C.R. 661; 294 N.R. 238; 2002 SCC 71, refd to. [para. 56].

Business Watch International Inc. v. Information and Privacy Commissioner (Alta.) et al. (2009), 468 A.R. 362; 90 Admin. L.R.(4th) 182; 2009 ABQB 10, refd to. [para. 59].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 74].

Toronto Police Services Board v. Information and Privacy Commissioner (Ont.) et al. (2009), 245 O.A.C. 160; 307 D.L.R.(4th) 155; 2009 ONCA 20, refd to. [para. 74].

WIC Radio Ltd. v. Simpson - see Simpson v. Mair et al.

Simpson v. Mair et al., [2008] 2 S.C.R. 420; 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 2008 SCC 40, refd to. [para. 75].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 83].

Robertson v. Edmonton Chief of Police et al. (2004), 362 A.R. 44; 2004 ABQB 519, refd to. [para. 100].

Criminal Lawyers' Association v. Ontario (Minister of Public Safety and Security) (2004), 184 O.A.C. 223 (Div. Ct.), leave to appeal granted (2007), 383 N.R. 390; 248 O.A.C. 400; 2007 SCCA 382, refd to. [para. 100].

Godfrey v. Ontario Police Commission et al. (1991), 53 O.A.C. 338; 5 O.R.(3d) 163 (Div. Ct.), refd to. [para. 100].

Southam Inc. et al. v. Canada (Attorney General) (1997), 45 O.T.C. 52; 36 O.R.(3d) 721 (Gen. Div.), refd to. [para. 100].

Canadian Broadcasting Corp. v. Summerside (City) (1999), 173 Nfld. & P.E.I.R. 56; 530 A.P.R. 56; 170 D.L.R.(4th) 731 (P.E.I.T.D.), refd to. [para. 100].

Robertson v. Edmonton Chief of Police et al. (2004), 355 A.R. 265; 2004 ABQB 242, refd to. [para. 100].

Duncanson v. Information and Privacy Commissioner (Ont.) - see Duncanson et al. v. Fineberg et al.

Duncanson et al. v. Fineberg et al. (1999), 124 O.A.C. 170; 175 D.L.R.(4th) 340 (Div. Ct.), refd to. [para. 100].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 2(a) [para. 7]; sect. 5 [para. 77]; sect. 17(1) [para. 7]; sect. 17(4) [para. 9]; sect. 17(5) [para. 10]; sect. 71 [para. 11].

Police Act, R.S.A. 2000, c. P-17, sect. 43 [para. 14].

Police Act Regulations (Alta.), Police Service Regulation, Reg. 356/90, generally [para. 13].

Police Service Regulation - see Police Act Regulations (Alta.).

Counsel:

Grant N. Stapon and Scott H.D. Bower (Bennett Jones LLP), for the applicant;

Glenn S. Solomon (May Jensen Shawa Solomon LLP), for the respondent;

G. Scott Watson (Parlee McLaws LLP), for the Calgary Herald;

A. Julien Landry, for the Calgary Police Association and the affected members of the Calgary Police Association.

This application was heard on December 1, 2009, by McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on February 2, 2010.