Canadian Association of Elizabeth Fry Societies v. Canada (Minister of Public Safety) et al., 2010 FC 470

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: March 29, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 470;(2010), 368 F.T.R. 211 (FC)

Elizabeth Fry Soc. v. Can. (2010), 368 F.T.R. 211 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. AP.018

Canadian Association of Elizabeth Fry Societies (applicant) v. Minister of Public Safety Canada and Correctional Services of Canada (respondent)

(T-1040-09; 2010 FC 470)

Indexed As: Canadian Association of Elizabeth Fry Societies v. Canada (Minister of Public Safety) et al.

Federal Court

Kelen, J.

April 29, 2010.

Summary:

The applicant applied for a review of a decision of Correctional Services Canada refusing to disclose to the applicant personal information regarding Smith, a 19 year old female prisoner who committed suicide in her cell.

The Federal Court ordered the disclosure of Smith's personal records as requested by the applicant.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - [See Crown - Topic 7297 ].

Crown - Topic 7209.1

Examination of public documents - Freedom of information - Bars - Information obtained in lawful investigations (incl. crimes and national security) - The applicant applied for a review of a decision of Correctional Services Canada (CSC) refusing to disclose to the applicant personal information regarding Smith, a 19 year old female prisoner - Smith was imprisoned in New Brunswick's youth justice system at the age of 15 - In custody, she committed a number of additional criminal offences and her sentence was extended - In October 2006, when she reached the age of majority (i.e. 18), she was transferred to New Brunswick's adult correctional system, and then to the custody of the federal prison system operated by the CSC - The CSC allegedly moved Smith several times among a number of penitentiaries, treatment facilities and hospitals across Canada until her death by suicide in her cell - During her incarceration, Smith alleged to the applicant that she was being subjected to improper treatment including alleged assaults from the staff, alleged inadequate living conditions, alleged lack of psychiatric care or assessment, and alleged frequent segregation and transfers - On May 31, 2007, Smith requested, under the Privacy Act, access to her personal records held by the CSC and consented to the release of her private CSC records to the applicant - On September 27, 2007, Smith sent a second consent and request for release of information - She died on October 19, 2007 - The CSC denied the request for information pursuant to ss. 22 and 26 of the Privacy Act - The CSC asserted that the fact that there was at one time (in 2008) an ongoing criminal investigation with respect to the conduct of CSC personnel was sufficient to meet the exemption under s. 22(1)(b) of Privacy Act and exclude Smith's records in their entirety - The Federal Court rejected the CSC's assertions - The court would not infer injurious harm on a theoretical basis from the mere presence of an investigation, whether past or present, without evidence of a nexus between the requested disclosure and a reasonable expectation of probable harm - The CSC had not presented any evidence of harm - Further, at the time the request was deemed refused there was no investigation - At the time of the hearing before the court, there was no investigation - There was no ongoing investigation where disclosure of the materials could cause injurious harm - See paragraphs 68 to 77.

Crown - Topic 7284

Examination of public documents - Freedom of information - Practice - Parties (incl. standing and intervenor) - The applicant applied for a review of a decision of Correctional Services Canada (CSC) refusing to disclose to the applicant personal information regarding Smith, a 19 year old female prisoner - Smith was imprisoned in New Brunswick's youth justice system at the age of 15 - In custody, she committed a number of additional criminal offences and her sentence was extended - In October 2006, when she reached the age of majority (i.e. 18), she was transferred to New Brunswick's adult correctional system, and then to the custody of the federal prison system operated by the CSC - The CSC allegedly moved Smith several times among a number of penitentiaries, treatment facilities and hospitals across Canada until her death by suicide in her cell - During her incarceration, Smith alleged to the applicant that she was being subjected to improper treatment including alleged assaults from the staff, alleged inadequate living conditions, alleged lack of psychiatric care or assessment, and alleged frequent segregation and transfers - On May 31, 2007, Smith requested, under the Privacy Act, access to her personal records held by the CSC and consented to the release of her private CSC records to the applicant - On September 27, 2007, Smith sent a second consent and request for release of information - She died on October 19, 2007 - The CSC denied the request for information pursuant to ss. 22 and 26 of the Privacy Act - The CSC asserted that the applicant had no standing to bring the application because Smith, the applicant's principal, died and the consent for disclosure and authorization for the applicant to act on her behalf had been automatically revoked - It further submitted that any agency relationship between Smith and the applicant ended upon her death - The Federal Court rejected the CSC's assertions - The law of agency or standing had no application - The Privacy Act was a complete code of procedure - See paragraphs 52 to 55.

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - The applicant applied for a review of a decision of Correctional Services Canada (CSC) refusing to disclose to the applicant personal information regarding Smith, a 19 year old female prisoner - Smith was imprisoned in New Brunswick's youth justice system at the age of 15 - In custody, she committed a number of additional criminal offences and her sentence was extended - In October 2006, when she reached the age of majority (i.e. 18), she was transferred to New Brunswick's adult correctional system, and then to the custody of the federal prison system operated by the CSC - The CSC allegedly moved Smith several times among a number of penitentiaries, treatment facilities and hospitals across Canada until her death by suicide in her cell - During her incarceration, Smith alleged to the applicant that she was being subjected to improper treatment including alleged assaults from the staff, alleged inadequate living conditions, alleged lack of psychiatric care or assessment, and alleged frequent segregation and transfers - On May 31, 2007, Smith requested, under the Privacy Act, access to her personal records held by the CSC and consented to the release of her private CSC records to the applicant - On September 27, 2007, Smith sent a second consent and request for release of information - She died on October 19, 2007 - The CSC denied the request for information pursuant to ss. 22 and 26 of the Privacy Act - The Federal Court stated that "[t]he parties and the Court are in agreement that Ms. Smith's records are 'personal information' and thus governed by the Act. The first issue in this application is whether Ms. Smith's consent to the disclosure of her personal information was vitiated by her death. In other words, the question is whether the respondent made the correct decision in law in determining that Ms. Smith's records are wholly exempted by reason of her vitiated consent. This issue is determinable on a correctness standard. The second issue, whether section 22(1)(b) of the Act operates to exempt Ms. Smith's records, if her consent is not vitiated, is also reviewable on a correctness standard." - See paragraphs 43 to 46.

Crown - Topic 7297

Examination of public documents - Freedom of information - Practice - Consent - The applicant applied for a review of a decision of Correctional Services Canada (CSC) refusing to disclose to the applicant personal information regarding Smith, a 19 year old female prisoner - Smith was imprisoned in New Brunswick's youth justice system at the age of 15 - In custody, she committed a number of additional criminal offences and her sentence was extended - In October 2006, when she reached the age of majority (i.e. 18), she was transferred to New Brunswick's adult correctional system, and then to the custody of the federal prison system operated by the CSC - The CSC allegedly moved Smith several times among a number of penitentiaries, treatment facilities and hospitals across Canada until her death by suicide in her cell - During her incarceration, Smith alleged to the applicant that she was being subjected to improper treatment including alleged assaults from the staff, alleged inadequate living conditions, alleged lack of psychiatric care or assessment, and alleged frequent segregation and transfers - On May 31, 2007, Smith requested, under the Privacy Act, access to her personal records held by the CSC and consented to the release of her private CSC records to the applicant - On September 27, 2007, Smith sent a second consent and request for release of information - She died on October 19, 2007 - The CSC denied the request for information pursuant to ss. 22 and 26 of the Privacy Act - The CSC asserted that Smith's death vitiated her consent - The Federal Court rejected the CSC's assertion - The Privacy Act intended that an individual's right to grant access to their personal information survived their death - See paragraphs 59 to 65.

Cases Noticed:

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. 43].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 43].

Cemerlic v. Canada (Solicitor General) (2003), 228 F.T.R. 1; 2003 FCT 133, refd to. [para. 44].

Richards v. Minister of National Revenue, [2003] F.T.R. Uned. 952; 2003 FC 1450, refd to. [para. 44].

Gordon v. Canada (Minister of Health) (2008), 324 F.T.R. 94; 2008 FC 258, refd to. [para. 44].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2004), 255 F.T.R. 56; 32 C.P.R.(4th) 464 (F.C.), refd to.[para. 44].

Savard v. Canada Post Corp. (2008), 324 F.T.R. 311; 2008 FC 671, refd to. [para. 45].

Blank v. Canada (Minister of Justice) (2009), 373 F.T.R. 1; 2009 FC 1221, refd to. [para. 45].

Information Commissioner (Can.) v. Canada (Minister of Industry) (2006), 287 F.T.R. 54; 2006 FC 132, refd to. [para. 47].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 49].

Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; 98 N.R. 126 (F.C.A.), refd to. [para. 50].

St-Onge v. Canada (1995), 185 N.R. 5; 62 C.P.R.(3d) 303 (F.C.A.), refd to. [para. 54].

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. 54].

Order M-1048, Re, [1997] O.I.P.C. No. 348, refd to. [para. 61].

Moar v. Privacy Commissioner (Can.), [1992] 1 F.C. 501; 45 F.T.R. 57 (T.D.), refd to. [para. 64].

Information Commissioner (Can.) et al. v. Immigration and Refugee Board (Can.) (1997), 140 F.T.R. 140 (T.D.), refd to. [para. 72].

Kaiser v. Minister of National Revenue (1995), 93 F.T.R. 66 (T.D.), refd to. [para. 73].

Counsel:

Kris Klein and Shaun Brown, for the applicant;

Gregory Tzemenakis and Korinda McLaine, for the respondent.

Solicitors of Record:

The Law Office of Kris Klein, Ottawa, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 29, 2010, at Ottawa, Ontario, by Kelen, J., of the Federal Court, who delivered the following judgment on April 29, 2010.