FitzGerald v. Nova Scotia (Public Prosecution Service), (2015) 359 N.S.R.(2d) 1 (CA)

• Judge: Hamilton, Fichaud and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 02, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 359 N.S.R.(2d) 1 (CA);2015 NSCA 38

FitzGerald v. N.S. (2015), 359 N.S.R.(2d) 1 (CA);

    1133 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.039

Her Majesty the Queen in right of Nova Scotia (Public Prosecution Service) (appellant) v. The Estate of Gordon Howard FitzGerald represented by his Executrices, L. Allison Jones and Kathleen D. FitzGerald (respondents)

(CA 429620; 2015 NSCA 38)

Indexed As: FitzGerald v. Nova Scotia (Public Prosecution Service)

Nova Scotia Court of Appeal

Hamilton, Fichaud and Bourgeois, JJ.A.

April 22, 2015.

Summary:

FitzGerald, a lawyer, was charged with raping a client in his law office on March 29, 1979. After a preliminary inquiry in October 1979 and a trial in May 1980, he was convicted, sentenced to five years' imprisonment and released on parole on September 17, 1981, after serving 10 months. His appeal to the Nova Scotia Court of Appeal was dismissed in December 1980. FitzGerald's lawyer, MacArthur, filed an application under then s. 617 of the Criminal Code for "the mercy of the Crown", alleging that the conviction was a miscarriage of justice. MacArthur filed several statutory declarations, documents and written submissions respecting FitzGerald's alibi evidence and the complainant's credibility. In August 1981, the Federal Minister of Justice (FMJ) forwarded the materials to the Nova Scotia Department of Attorney General (AGNS) (Public Prosecution Service (PPS)) and the Halifax Police Department asking them to examine the materials and respond to the application. The AGNS responded. In January 1982, the FMJ declined to intervene or grant mercy. In May 1982, MacArthur met with, and provided documents to, the Deputy AGNS for the purpose of having the complainant (victim) of the rape charged with perjury. In June 1982, the AGNS determined that it would not do so. About January 1983, MacArthur met with the new FMJ who agreed to review the mercy application a second time. In July 1983, the FMJ again declined to intervene or grant mercy. In 2009, Fitzgerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with PPS for disclosure of its two files respecting the criminal prosecution and mercy application. He received some disclosure. In April 2012, he requested more disclosure. In June 2012, more disclosure was provided but some was withheld. FitzGerald requested a review by the FOIPOP review officer. The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)). PPS did not accept the recommendation (Act, s. 40). In November 2013, FitzGerald, by his Power of Attorney, appealed. The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617).

The Nova Scotia Supreme Court, in a decision reported at (2014), 345 N.S.R.(2d) 149; 1092 A.P.R. 149, directed PPS to disclose certain documents to FitzGerald and not others. PPS appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Editor's Note: The trial decision in this matter was originally indexed as R. v. Fitzgerald (G.H.).

Civil Rights - Topic 7119

Federal or provincial legislation - Practice - Disclosure - [See second Crown - Topic 7170 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See second Crown - Topic 7170 ].

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - In 2009, FitzGerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with the Public Prosecution Service (PPS) for disclosure of two files respecting a 1980 criminal prosecution for rape and subsequent mercy application under s. 617 of the Criminal Code - He received some disclosure - In April 2012, he requested more disclosure - In June 2012, more disclosure was provided but some was withheld - FitzGerald requested a review by the FOIPOP review officer - The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)) - PPS did not accept the recommendation (s. 40) - In November 2013, FitzGerald, by his Power of Attorney, appealed - The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617) - A motions judge directed PPS to disclose certain documents to FitzGerald and not others - PPS appealed - The Nova Scotia Court of Appeal examined the documents that were listed in the motions judge's appendix and Order - The court held that it could not quote the pertinent passages from the documents without disclosing the personal information - The records included more than merely the third parties' names as the motions judge had found - They included other "personal information", as defined by s. 3(1)(i) of the Act, namely age, address, family status, identifying particulars and information concerning health care history - "Critically, the records explicitly include other persons' 'opinions about the individual' under s. 3(1)(i)(viii) - i.e. opinions about the third party, not just about Mr. FitzGerald. These opinions relate to sensitive and reputational personal matters, whose disclosure clearly would be distressing. A number of these documents have redacted only the third parties' names. But, if the names were not redacted, then the disclosed 'opinions about the individual' would connect to identified third parties. Insofar as the judge found that, with one exception, the records he ordered to be disclosed included only names and opinions about Mr. FitzGerald, the judge palpably erred in fact." - The court held that the error affected the outcome and was "overriding" under the standard of review - The "... motions judge also reasoned that extracts of 'personal information' relinquished that status because the extracts appeared in documents that generally were 'about [Mr. FitzGerald] and his involvement in the crime for which he was convicted'. In other words, the documents' connection to Mr. FitzGerald's prosecution subsumed the extracts' connection to the third party's privacy. Insofar as the judge adopted that reasoning, he misinterpreted 'personal information' in s. 3(1)(i) and its place in the test under s. 20. By trumping the third party's privacy interest with Mr. FitzGerald's disclosure interest at the threshold definitional stage, the judge engaged in a premature balancing exercise ..." - See paragraphs 62 to 67.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - In 2009, FitzGerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with the Public Prosecution Service (PPS) for disclosure of two files respecting a 1980 criminal prosecution and subsequent mercy application under s. 617 of the Criminal Code - He received some disclosure - In April 2012, he requested more disclosure - In June 2012, more disclosure was provided but some was withheld - FitzGerald requested a review by the FOIPOP review officer - The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)) - PPS did not accept the recommendation (s. 40) - In November 2013, FitzGerald, by his Power of Attorney, appealed - The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617) - A motions judge directed PPS to disclose certain documents to FitzGerald and not others - PPS appealed - The Nova Scotia Court of Appeal held that s. 20(4)(c) of the Act did not incorporate Stinchcombe's protocol (1991 S.C.C.) - The motion judge erred in concluding that, under s. 20(4)(c), the Charter "authorizes the disclosure" of the contested documents - "(1) Mr. FitzGerald was convicted in 1980. In 1981, his appeal was dismissed and his application for leave to appeal denied. That ended the trial and appeal processes. Mr. FitzGerald, now deceased, is not 'charged with an offence', the triggering words in s. 11 of the Charter. His executrices' application for ministerial review under s. 696.1 of the Criminal Code would not be a trial, an appeal from a trial verdict, or a lis of any sort. Consequently, there remain today no operating trial rights, such as full answer and defence, under s. 11(d). (2) Whatever disclosure obligation attaches to the federal Minister's duty of fairness in a post-trial (and post-appeal) s. 696.1 review, as discussed in Thatcher [1996 F.T.D.], may be Charter-sourced only insofar as the offender's life, liberty or security of the person remains in play. The federal Minister is not a party to this appeal, and we make no comment on the scope of any such obligation. (3) Mr. FitzGerald completed his sentence long ago, and is now deceased. There is no current prejudice to his life, liberty and security of the person. His executrices have no life, liberty or security of the person stake of their own in the outcome of a review under s. 696.1. (4) Any disclosure obligation, whatever its scope and source, of the federal Minister in a s. 696.1 review attaches to information possessed or obtained by the federal Minister. It does not embrace the provincial PPS for other materials possessed by the PPS. The provincial PPS's responsibility is to respond appropriately to a request for information from the federal Minister." - See paragraphs 68 to 81.

Crown - Topic 7206

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

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - In 2009, FitzGerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with the Public Prosecution Service (PPS) for disclosure of two files respecting his 1980 criminal prosecution and subsequent mercy application under s. 617 of the Criminal Code - He received some disclosure - In April 2012, he requested more disclosure - In June 2012, more disclosure was provided but some was withheld - FitzGerald requested a review by the FOIPOP review officer - The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)) - PPS did not accept the recommendation (s. 40) - In November 2013, FitzGerald, by his Power of Attorney, appealed - The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617) - A motions judge directed PPS to disclose certain documents to FitzGerald and not others - The motions judge held, inter alia, that disclosure of all the documents redacted or withheld on the basis of s. 20 of the Act, with one exception, would not constitute an unreasonable invasion of any third party's personal privacy - The Nova Scotia Court of Appeal held that this was a palpable and overriding error - "[T]he judge said that, with one exception, the only particulars of third party 'personal information' were names, that the documents contain no opinion concerning a third party, only of Mr. FitzGerald, and that the documents 'are about' Mr. FitzGerald, no one else. This innocuous characterization is not supported by the documents. The records contain various items of third parties' personal information and, in particular, opinions about third parties that are reputational and potentially distressing in the context of a sexual assault proceeding that involved sensitive and deeply personal matters. ... The judge's error affected his analysis of the criteria in s. 20(2), meaning the palpable factual error was overriding." - See paragraphs 82 to 89.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The Nova Scotia Court of Appeal held that a motion judge misapplied the burden of proof when ordering the disclosure of personal information under the Freedom of Information and Protection of Privacy Act - "The party seeking the personal information has the burden under s. 45(3)(a), especially given the presumption of unreasonable invasion of privacy under s. 20(3)(b). Yet the judge's reasons treat the absence of evidence as justifying disclosure. The judge said ... '[t]here is no basis for finding' the information would be unreliable, '[t]here is no basis for finding that the reputation of any third party would be damaged', '[t]he Court was not directed to any sensitive personal information', '[t]here is no basis for finding that any third party witness would be unfairly exposed ...'. The judge ... cited the fact that 'most of them [the third party witnesses] could not be found' as support for his view that disclosure would not cause them distress. It is an error of law to treat the absence of evidence as satisfying a burden of proof to overcome a statutory presumption." - See paragraph 92.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - In 2009, FitzGerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with the Public Prosecution Service (PPS) for disclosure of two files respecting a 1980 criminal prosecution and subsequent mercy application under s. 617 of the Criminal Code - He received some disclosure - In April 2012, he requested more disclosure - In June 2012, more disclosure was provided but some was withheld - FitzGerald requested a review by the FOIPOP review officer - The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)) - PPS did not accept the recommendation (s. 40) - In November 2013, FitzGerald, by his Power of Attorney, appealed - The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617) - A motions judge directed PPS to disclose certain documents to FitzGerald and not others - PPS appealed - The Nova Scotia Court of Appeal stated that "The criterion cited by the judge to support disclosure was s. 20(2)(c) - that 'the personal information is relevant to a fair determination of the applicant's rights'. The proponent of disclosure has the burden of proof to overcome the legal presumption of an unreasonable invasion of privacy. The motions judge determined that the burden was met, based on a criterion to which the judge expressly declined to ascribe any meaningful weight. The judge's comments on the balancing did not mention his earlier finding that 'the redacted and/or withheld documents ...would not likely assist the Appellant' and 'do not appear to support [Mr. FitzGerald's] submissions and allegations'. The judge reasoned from the premise that the FOIPOP request equated to a Stinchcombe application. So the gravity of Charter values weighted any criterion that would support disclosure. As discussed, the premise was mistaken." - See paragraphs 93 and 94.

Crown - Topic 7209.4

Examination of public documents - Freedom of information - Bars - Documents respecting the exercise of prosecutorial discretion - Section 15(1)(f) of the Freedom of Information and Protection of Privacy Act (N.S.) provided that: "The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to ... (f) reveal any information relating to or used in the exercise of prosecutorial discretion;" - The term was not defined in the Act - The Nova Scotia Court of Appeal held that decisions concerning the preparation for, or conduct of litigation were not decisions within the ambit of prosecutorial discretion for purposes of s. 15(1)(f) - The Public Prosecution Service (PPS) was authorized under s. 15(1)(f) to withhold information in its files, if the disclosure of that information could reasonably be expected to reveal any information "relating to or used" by PPS in making decisions regarding the nature and extent of a prosecution and its participation in it - It could not withhold information "relating to or used" by it in making decisions solely with respect to tactics or conduct before the court - See paragraphs 28 to 41.

Crown - Topic 7209.4

Examination of public documents - Freedom of information - Bars - Documents respecting the exercise of prosecutorial discretion - Section 15(1)(f) of the Freedom of Information and Protection of Privacy Act (N.S.) provided that: "The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to ... (f) reveal any information relating to or used in the exercise of prosecutorial discretion;" - The Nova Scotia Court of Appeal held that a trial judge erred in law when he found that information that otherwise qualified for exemption under s. 15(1)(f), was not exempt if it was prepared for and provided to the Public Prosecution Service (PPS) by the applicant's counsel - Nothing in s. 15(1)(f) suggested that the source of the information or the fact that it was prepared at someone's request, was relevant to PPS's authority to withhold information under this section - See paragraph 42.

Crown - Topic 7209.4

Examination of public documents - Freedom of information - Bars - Documents respecting the exercise of prosecutorial discretion - In 2009, FitzGerald filed applications under the Freedom of Information and Protection of Privacy (FOIPOP) Act (N.S.) with the Public Prosecution Service (PPS) for disclosure of two files respecting a 1980 criminal prosecution for rape and subsequent mercy application under s. 617 of the Criminal Code - He received some disclosure - In April 2012, he requested more disclosure - In June 2012, more disclosure was provided but some was withheld - FitzGerald requested a review by the FOIPOP review officer - The review officer recommended that PPS disclose the undisclosed documents (Act, s. 39(1)) - PPS did not accept the recommendation (s. 40) - In November 2013, FitzGerald, by his Power of Attorney, appealed - The stated purpose of the application and appeal was to obtain new evidence to support an application for ministerial review of a miscarriage of justice under s. 696.1 of the Code (successor to s. 617) - A motions judge directed PPS to disclose certain documents to FitzGerald and not others - PPS appealed - The Nova Scotia Court of Appeal held that the motions judge made a palpable and overriding error when he found that information relating to the steps taken by the police in the investigation of the offence was not exempt under s. 15(1)(f) of the Act - "This material would have been used by the PPS in deciding whether to commence or continue a prosecution, which clearly is a discretionary decision involving the exercise of prosecutorial discretion. The wording of s. 15(1)(f) specifically provides that information 'relating to or used in' the exercise of prosecutorial discretion may be withheld." - The judge also made a palpable and overriding error by ordering the disclosure of portions of a criminal file and the mercy file - These redactions, and withheld statements and documents, were notes and summaries that were prepared by PPS at various stages of the trial, appeal and mercy application processes and used for two purposes: to analyze the case to see if the evidence, in light of the law, justified commencing or continuing a prosecution and to serve as aids in the conduct of a trial or appeal - The first purpose engaged discretionary decision-making within the prosecutorial discretion - The judge made a further palpable and overriding error when he ordered the disclosure of a withheld letter in the mercy file relating to the federal prosecutor's assessment of the evidence and the strength of the case against FitzGerald - This letter was used in connection with determining whether a new trial should be ordered, bringing it within s. 15(1)(f) - The judge also ordered that other redacted portions of documents of the mercy file be disclosed on the basis they were not exempt under s. 20 (third parties' privacy) - Some of those redactions were claimed on the basis of s. 15(1)(f), not s. 20 - The judge made a palpable and overriding error - PPS would have used those extracts to determine if a prosecution should be commenced or continued - See paragraphs 44 to 48.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - [See third Crown - Topic 7206 ].

Words and Phrases

Prosecutorial discretion - The Nova Scotia Court of Appeal discussed the meaning of this phrase as found in s. 15(1)(f) of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 - See paragraphs 28 to 41.

Cases Noticed:

O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 197 N.S.R.(2d) 154; 616 A.P.R. 154; 2001 NSCA 132, refd to. [para. 18].

Cummings et al. v Belfast Mini-Mills Ltd. et al. (2011), 303 N.S.R.(2d) 344; 957 A.P.R. 344; 2011 NSCA 56, refd to. [para. 18].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, appld. [para. 22].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, appld. [para. 28].

Cummings v. Public Prosecution Service (2011), 298 N.S.R.(2d) 347; 945 A.P.R. 347 (S.C.), disagreed with [para. 36].

Dickie v. Nova Scotia (Minister of Health) (1999), 176 N.S.R.(2d) 333; 538 A.P.R. 333; 1999 NSCA 62, refd to. [para. 52].

House, Re, [2000] N.S.J. No. 473 (S.C.), refd to. [para. 52].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 71].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 71].

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. 71].

R. v. Quesnelle (V.), [2014] 2 S.C.R. 390; 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 71].

R. v. Smith (B.J.), [2004] 1 S.C.R. 385; 317 N.R. 168; 235 Nfld. & P.E.I.R. 236; 699 A.P.R. 236; 2004 SCC 14, refd to. [para. 72].

Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289; 120 F.T.R. 116 (T.D.), refd to. [para. 74].

Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, refd to. [para. 75].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, appld. [para. 79].

Evenson v. Saskatchewan (Minister of Justice) (2013), 428 Sask.R. 37; 2013 SKQB 296, appld. [para. 79].

John Doe v. Hale et al. (2006), 214 O.A.C. 79 (Div. Ct.), appld. [para. 79].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, sect. 3(1)(i) [para. 54]; sect. 15(1)(f) [para. 19]; sect. 20 [para. 50].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 47 [para. 37].

Counsel:

Agnes E. MacNeil and Debbie L. Brown, for the appellant;

The respondents, L. Allison Jones and Kathleen D. FitzGerald in person.

This appeal was heard at Halifax, N.S., on February 2, 2015, by Hamilton, Fichaud and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. The Court of Appeal delivered the following reasons for judgment on April 22, 2015.