Ontario (Minister of Community Safety and Correctional Services) v. Information and Privacy Commissioner (Ont.) et al., (2014) 320 O.A.C. 1 (SCC)

• Judge: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 05, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 320 O.A.C. 1 (SCC);2014 SCC 31;[2014] 1 SCR 674

Ont. v. Privacy Commr. (2014), 320 O.A.C. 1 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] O.A.C. TBEd. MY.026

Ministry of Community Safety and Correctional Services (appellant) v. Information and Privacy Commissioner (respondent) and Attorney General of Canada and Information Commissioner of Canada (interveners)

(34949; 2014 SCC 31; 2014 CSC 31)

Indexed As: Ontario (Minister of Community Safety and Correctional Services) v. Information and Privacy Commissioner (Ont.) et al.

Supreme Court of Canada

LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

April 24, 2014.

Summary:

Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety and Correctional Services to publicly disclose information contained in the Ontario Sex Offender Registry established by Christopher's Law (Ont.). Specifically the information was the first three digits of postal codes known as Forward Sortation Areas and the number of sexual offenders in each Forward Sortation area. The Ministry applied for judicial review.

The Ontario Divisional Court, in a decision reported 282 O.A.C. 199, dismissed the application. The Ministry appealed.

The Ontario Court of Appeal, in a decision reported 292 O.A.C. 335, dismissed the appeal. The Ministry appealed again.

The Supreme Court of Canada dismissed the appeal. The court held that the Commissioner made no reviewable error in ordering disclosure. She carefully considered how Christopher's Law and FIPPA interrelated. She reasonably concluded that disclosure could not lead to the identification of offenders or of their home addresses and that the Ministry did not provide sufficient evidence of the risk of the harms which the relied-on exemptions sought to prevent.

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - [See Crown - Topic 7202 and first Criminal Law - Topic 7209 ].

Crown - Topic 7111

Examination of public documents - General - Powers of Minister - Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety to publicly disclose information contained in the Ontario Sex Offender Registry established under Christopher's Law - The Ministry applied for judicial review, arguing that the law enforcement exemptions under s. 14 of FIPPA conferred a discretion whether to disclose the record - The exercise of that discretion involved a weighing of the purposes of the right of access under FIPPA (informed citizenry and democracy) against the purposes of the exemption (effective policing and public safety) - The Supreme Court of Canada stated that the Ministry's submission overlooked the fact that there was no discretion unless the exemption applied and, here, the Commissioner reasonably concluded that it did not - The discretion on the part of the Ministry was not engaged until the exemption was found to apply - The Ministry in fact had no discretion to exercise under s. 14 of FIPPA in this case because, the exemption did not apply - The Ministry's argument that the Commissioner failed to examine whether its exercise of discretion was appropriate was without merit - See paragraphs 44 and 45.

Crown - Topic 7202

Examination of public documents - Freedom of information - Bars - Interpretation - Section 67(1) of the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) provided that FIPPA prevailed over a "confidentiality provision" in any other Act unless s. 67(2) of the FIPPA or the other Act specifically provided otherwise - At issue was whether Christopher's Law (Sex Offender Registry) (Ont.), which was not listed in s. 67(2) of FIPPA, had a confidentiality provision that "specifically provided" that it prevailed over FIPPA - The Supreme Court of Canada held that the Information and Privacy Commissioner had reasonably concluded that Christopher's Law did not contain a confidentiality provision that specifically indicated that it prevailed over FIPPA - See paragraphs 29 to 38.

Crown - Topic 7209

Examination of public documents - Freedom of information - Bars - Information re investigative techniques or harmful to law enforcement - Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety to publicly disclose information contained in the Ontario Sex Offender Registry which was established pursuant to Christopher's Law (Ont.) - That information was the first three digits of postal codes known as Forward Sortation Areas and the number of sexual offenders in each Forward Sortation area - The Ministry applied for judicial review, arguing that the Commissioner erred in interpreting the law enforcement exemptions in s. 14(1)(e) (endangerment) and s. 14(1)(l) (reasonable expectation of harm) of the FIPPA - The Supreme Court of Canada held that the Commissioner made no reviewable error in ordering disclosure - She carefully considered how Christopher's Law and FIPPA interrelated - She reasonably concluded that disclosure could not lead to the identification of offenders or of their home addresses and that the Ministry did not provide sufficient evidence of the risk of the harms which the relied-on exemptions sought to prevent - See paragraphs 24 to 68.

Crown - Topic 7209

Examination of public documents - Freedom of information - Bars - Information re investigative techniques or harmful to law enforcement - Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety to publicly disclose information contained in the Ontario Sex Offender Registry which was established pursuant to Christopher's Law - That information was the first three digits of postal codes known as Forward Sortation Areas and the number of sexual offenders in each Forward Sortation area - The Ministry applied for judicial review, arguing that the Commissioner took too narrow a view of the law enforcement exemptions (i.e., ss. 14(1)(e) and 14(1)(l) of the FIPPA) and placed undue emphasis on whether disclosure would serve to identify registered sex offenders - The Supreme Court of Canada stated that the short but complete answer to this submission was that it was unsupported by the evidence and arguments placed before the Commissioner - The court stated that the purposes of the law enforcement exemptions (i.e., protecting public safety and effective policing) were not thwarted by the Commissioner's decision; nor did she fail to give them proper regard - She did not unreasonably narrow the law enforcement exemptions under s. 14(1)(e) and (l) - See paragraphs 39 to 43.

Crown - Topic 7209

Examination of public documents - Freedom of information - Bars - Information re investigative techniques or harmful to law enforcement - Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety to publicly disclose information contained in the Ontario Sex Offender Registry established under Christopher's Law - The Ministry applied for judicial review, arguing that the Commissioner did not apply the appropriate evidentiary standard with regard to the harm-based exemptions contained in s. 14 of the FIPPA - The Supreme Court of Canada held that the Commissioner made no reviewable error in the application of the standard of proof to the law enforcement exemptions relied on by the Ministry - The Commissioner's decision reasonably applied the appropriate evidentiary standard - She took into account the fact that the Registry's efficiency was based on its confidentiality - However, she had to balance that concern with the public's interest in having transparent and open governmental institutions - In striking a balance between those two competing interests, the Commissioner decided that the risks suggested by the Ministry were too remote and not supported by the evidence to ground a reasonable expectation of probable harm - That finding was reasonable - See paragraphs 47 to 67.

Crown - Topic 7209

Examination of public documents - Freedom of information - Bars - Information re investigative techniques or harmful to law enforcement - Section 14 of the Freedom of Information Act (Ont.) provided that "A head may refuse to disclose a record where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; ... (e) endanger the life or physical safety of a law enforcement officer or any other person; ... [or] (l) facilitate the commission of an unlawful act or hamper the control of crime" - The Supreme Court of Canada discussed the standard of proof for the harm-based exemptions in s. 14 - See paragraphs 47 to 67.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - [See all Crown - Topic 7209 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Information and Privacy Commissioner ordered the Ministry of Community Safety to publicly disclose certain information contained in the Ontario Sex Offender Registry established under Christopher's Law (Ont.) - The Ministry sought judicial review - The Ministry conceded that the reasonableness standard applied to the Commissioner's interpretation of her home statute (i.e., the FIPPA), but argued that the standard of correctness applied to her interpretation of Christopher's Law, which was not her home statute - The Supreme Court of Canada disagreed - The Commissioner was required to interpret Christopher's Law in the course of  applying FIPPA - She had to interpret Christopher's Law for the narrow purpose of determining whether, as set out in s. 67 of FIPPA, it contained a "confidentiality provision" that "specifically provided" that it prevailed over FIPPA - That task was intimately connected to her core functions under FIPPA relating to access to information and privacy and involved interpreting provisions in Christopher's Law "closely connected" to her functions - The reasonableness standard applied - See paragraphs 26 to 27.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence and proof - [See fourth Crown - Topic 7209 ].

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Crown - Topic 7246 ].

Cases Noticed:

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. 26].

Ontario (Minister of Labour) et al. v. Big Canoe (1999), 127 O.A.C. 173; 46 O.R.(3d) 395 (C.A.), refd to. [para. 26].

Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) - see Ontario (Minister of Labour) et al. v. Big Canoe.

Ontario (Minister of Transportation) v. Cropley et al. (2005), 202 O.A.C. 379 (C.A.), refd to. [para. 26].

Ontario (Minister of Transportation) v. Information and Privacy Commissioner (Ont.) - see Ontario (Minister of Transportation) v. Cropley et al.

Ontario (Minister of Finance) v. Smith et al. (2012), 289 O.A.C. 61; 109 O.R. (3d) 757; 2012 ONCA 125, refd to. [para. 26].

Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) - see Ontario (Minister of Finance) v. Smith et al.

Ontario (Minister of Health and Long-Term Care) v. Information and Privacy Commissioner (Ont.) (2005), 73 O.R.(3d) 321 (C.A.), refd to. [para. 26].

Ontario (Attorney General) v. Pascoe et al. (2002), 166 O.A.C. 88; 22 C.P.R.(4th) 447 (C.A.), refd to. [para. 26].

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. 26].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 26].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 50].

Chesal v. Nova Scotia (Attorney General) et al. (2003), 219 N.S.R.(2d) 139; 692 A.P.R. 139; 2003 NSCA 124, refd to. [para. 52].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, 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. 58].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 58].

Christopher's Law (Sex Offender Registry), S.O. 2000, c. 1, preamble [para. 5]; sect. 10(1) [para. 33]; sect. 13(1) [para. 36]; sect. 13(2) [para. 37].

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 2 [para. 29]; sect. 10(1), sect. 10(2), sect. 11(2), sect. 13 [para. 30]; sect. 14(1)(e), sect. 14(1)(l) [para. 43]; sect. 41(1.1) [para. 30]; sect. 67 [para. 10].

Police Services Act, R.S.O. 1990, c. P-15, sect. 41(1.1) [para. 35].

Authors and Works Noticed:

Benedet, Janine, A Victim-Centred Evaluation of the Federal Sex Offender Registry (2012), 37 Queen's L.J. 437, generally [para. 5], pp. 442, 470 [para. 8].

Counsel:

Sara Blake, Christopher Thompson and Nadia Laeeque, for the appellant;

William S. Challis, for the respondent;

Christine Mohr, for the intervener, the Attorney General of Canada;

Richard G. Dearden, Diane Therrien and Michael De Santis, for the intervener, the Information Commissioner of Canada.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Information and Privacy Commissioner/Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Toronto, Ontario, for the intervener, the Attorney General of Canada;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Information Commissioner of Canada.

This appeal was heard on December 5, 2013, before LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, on April 24, 2014, by Cromwell and Wagner, JJ.