Ruby v. RCMP, (2000) 256 N.R. 278 (FCA)

• Judge: Létourneau, Robertson and Sexton, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 08, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 256 N.R. 278 (FCA)

Ruby v. RCMP (2000), 256 N.R. 278 (FCA)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2000] N.R. TBEd. JN.056

In The Matter Of an application for a review of the decision of the Solicitor-General of Canada pursuant to section 41 of the Privacy Act, S.C. 1980-81-82-83, c. 111, sched. 2, s. 41 as amended.

Clayton Charles Ruby (appellant/applicant) v. The Solicitor General (respondent/respondent)

(A-52-98)

In The Matter Of the Privacy Act; In The Matter Of an application by Clayton Ruby concerning denial of access to personal information in the Royal Canadian Mounted Police Data Bank CMP/P-PU-005 and the Department of External Affairs Bank DEA/P-PO-040.

Clayton C. Ruby (appellant/applicant) v. The Royal Canadian Mounted Police and the Department of External Affairs (respondents/respondents)

(A-872-97)

In The Matter Of an application for a review of the decision of the Solicitor-General of Canada pursuant to section 41 of the Privacy Act, S.C. 1980-81-82-83, c. 111, sched. 2, s. 41 as amended.

Clayton Charles Ruby (appellant/applicant) v. The Solicitor General (respondent/respondent)

(A-873-97)

Indexed As: Ruby v. Royal Canadian Mounted Police et al.

Federal Court of Appeal

Létourneau, Robertson and Sexton, JJ.A.

June 8, 2000.

Summary:

Ruby was refused access to personal infor­mation banks maintained by three agencies of the Canadian Government, the Royal Canadian Mounted Police (RCMP), the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS). He filed complaints with the Privacy Commissioner. The Commissioner advised that two complaints were not well-founded and that one complaint was in part well-founded and that certain information should be released. The Minister declined to accept the finding and release the information. Ruby applied for review of the refusals under s. 41 of the Privacy Act. Subse­quently, the RCMP and CSIS released some of the information. A constitutional issue arose concerning whether s. 51 of the Pri­vacy Act, insofar as it required mandatory in camera and ex parte proceedings, restricted the rights in s. 2(b), 7 or 8 of the Charter.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 80 F.T.R. 81, held that s. 51 restricted the rights pro­tected by s. 2(b) of the Charter.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 113 F.T.R. 13, clarified that it was only ss. 51(2)(a) and 51(3) that restricted the s. 2(b) rights. The court held that the impugned provisions were saved by s. 1 of the Charter.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 140 F.T.R. 42, dismissed Ruby's applications under s. 41 of the Privacy Act for review of the refusals. Ruby appealed the decisions.

The Federal Court of Appeal determined the appeals accordingly.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms -General - Section 51 of the Privacy Act mandated ex parte and in camera pro­ceedings in certain applications for review of a refusal to disclose information - The Federal Court of Appeal held that s. 51 was merely a procedural provision aimed at preventing the accidental disclosure of national security information or foreign confidences and was tied to a process which, at the end of the day, simply required disclosure of all personal infor­mation to a judge for the purpose of as­sessing whether the exemptions being claimed by the head of a government institution were justified - Such a pro­cedural safeguard did not deprive an appli­cant of his liberty interest - See paragraphs 170 to 173.

Civil Rights - Topic 1441

Security of the person - Right to privacy -General - The Federal Court of Appeal discussed the right to privacy enshrined in ss. 7 and 8 of the Charter - See paragraphs 164 to 170.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Section 51 of the Privacy Act provided that in applications for review made under s. 41 of the Act, where the requested information involved foreign confidences and national security, ex parte and in camera proceedings were mandated - The Federal Court of Canada, Trial Di­vision, held that ss. 51(2)(a) and 52(3) restricted the rights protected in s. 2(b) of the Charter, but that the impugned pro­visions were saved by s. 1 of the Charter - The Federal Court of Appeal affirmed the findings - See paragraphs 140 to 162.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 2486 ].

Crown - Topic 7161

Examination of public documents - Free­dom of information - Legislation - General - [See Civil Rights - Topic 2486 ].

Crown - Topic 7170

Examination of public documents - Free­dom of information - Legislation - Dis­closure - Personal information - Section 16(2) of the Privacy Act permitted the head of a government institution to refuse to indicate whether personal information existed in an information bank - The De­partment of External Affairs had a policy of never disclosing whether personal infor­mation existed in a particular bank - The Federal Court of Appeal held that this policy did not fetter the Department's discretion - Given the bank's nature, mere­ly revealing the existence or non-existence of information was itself an act of dis­closure that the requesting party was or was not the subject of an investigation - The institution head still had to ensure that the information reviewed was examined and met the hypothetically claimed exemp­tions - The policy could not be used to refuse disclosure of documents that satis­fied no exemptions - See paragraphs 45 to 73.

Crown - Topic 7170

Examination of public documents - Free­dom of information - Legislation - Dis­closure - Personal information - Section 16(2) of the Privacy Act permitted the head of a government institution to refuse to indicate whether personal information existed in an information bank - The ap­pellant challenged the Department of Ex­ternal Affair's policy of never disclosing whether personal information existed in a particular bank, submitting that this policy of blanket refusal had the effect of de facto transforming the bank into an exempt bank without following the strict procedure established by s. 18 for the creation of an exempt bank - The Federal Court of Appeal disagreed - With or without a blanket application of s. 16(2) to the bank in question, it still did not have the attributes of an exempt bank - See para­graphs 74 to 77.

Crown - Topic 7171

Examination of public documents - Free­dom of information - Legislation - Dis­closure - Confidential information supplied by third party - Section 19 of the Privacy Act provided that the head of a govern­ment institution must refuse to disclose personal information obtained in confi­dence from another government or an international organization of states unless that government or institution consented to disclosure or made the information public -The Federal Court of Appeal held that the authority who claimed the s. 19 exemption was the person who had to ensure, by reasonable efforts, that the third party was not consenting to disclosure - See para­graphs 101 to 111.

Crown - Topic 7201

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

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal in­formation - Section 26 of the Privacy Act provided a mandatory exemption, directing refusal to disclose information about another individual (i.e., not the requester), unless the information might be released in the circumstances provided by s. 8(2) - Section 8(2)(m)(i) referred to circum­stances where the public interest in dis­closure clearly outweighed any invasion of privacy that could result from the dis­closure - The Federal Court of Appeal stated that there were two ways of con­ceiving privacy: 1) generally, as a broadly conceived policy goal; and 2) specifically, with reference to the particular individual named in the requested records - The extent to which the privacy interest ought to be considered in a more or less specific form would depend largely on the facts surrounding each request - See paragraphs 112 to 123.

Crown - Topic 7209

Examination of public documents - Free­dom of information - Bars - Infor­mation re investigative techniques - Sec­tion 22(1)(b) of the Privacy Act authorized an institution to refuse access to the infor­mation re­quested where disclosure of such infor­mation could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the lawful conduct of investigations - A reviewing judge held that the exemption could be applied to instances where disclosure of the infor­mation could have a chilling effect on the investigative process generally - The Fed­eral Court of Appeal disagreed - The judge should not have extended the notion of injury in s. 22(1)(b) beyond injury to a specified investigation, either actual or to be undertaken - See paragraphs 84 to 94.

Crown - Topic 7215

Examination of public documents - Free­dom of information - Bars - Disclosure where public interest outweighs risk of harm - [See Crown - Topic 7206 ].

Crown - Topic 7220.04

Examination of public documents - Free­dom of information - Bars - Rea­sonable expectation of probable harm - [See Crown - Topic 7209 and first Crown - Topic 7246 ].

Crown - Topic 7220.06

Examination of public documents - Free­dom of information - Bars - Infor­mation obtained in confidence from another gov­ernment - [See Crown - Topic 7171 ].

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - The Canadian Se­curity Intelligence Service (CSIS) took the position that certain information, if it existed, would be exempt from disclosure under s. 21(b) of the Privacy Act - A reviewing judge stated that "the court cannot substitute its views for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury" (s. 21(b)) - The Federal Court of Appeal stated that "... it is very much part of the court's role ... to deter­mine the reasonableness of the grounds on which disclosure was refused by CSIS. That being the case, the reviewing judge ... should have scrutinized more closely whether the release of information ... could reasonably be expected to be injurious to specific efforts at law enforcement and detection of hostile activities, and, there­fore, whether CSIS had a reasonable ground to refuse to disclose." - See para­graph 100.

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - [See first Crown - Topic 7283 ].

Crown - Topic 7283

Examination of public documents - Free­dom of information - Practice - Evi­dence and proof - The Federal Court of Appeal noted that under s. 47 of the Pri­vacy Act, the burden was on the head of a govern­ment institution to establish that it was authorized to refuse to disclose the per­sonal information requested - The court held that the scope of the burden encompassed both the burden of proving that the conditions of the exemptions were met and that the discretion conferred to the head of a government institution was prop­erly exercised - On an application under s. 41 of the Act for review of a refusal to disclose personal information, it was the court's function to ensure that the discre­tion given to the administrative authorities had been exercised within proper limits and on proper principles - See paragraphs 25 to 40.

Crown - Topic 7283

Examination of public documents - Free­dom of information - Practice - Evi­dence and proof - The Federal Court of Appeal stated that an applicant who applied under s. 41 of the Privacy Act for judicial review of an institution's refusal to disclose per­sonal information, by defini­tion, questioned the validity of the exercise of discretion by that institution, and noth­ing more was required from him or her - In such circum­stances, this was the best an applicant could do and the most an appli­cant should be held to - See paragraphs 25 to 39.

Crown - Topic 7294

Examination of public documents - Free­dom of information - Practice - Ju­dicial review - [See Civil Rights - Topic 2486 ].

Practice - Topic 3679

Evidence - Affidavits - Use of - Affidavits - Evidence - Admissibility - Ruby chal­lenged the constitutional validity of s. 51 of the Privacy Act - He sought to intro­duce as expert evidence the affidavit of Copeland, his former law firm partner and also an applicant under the Act respecting personal information relating to himself - The judge recognized that Copeland was an expert in privacy matters but refused his affidavit on the grounds that it was mar­ginally relevant, the evidence it contained was not necessary and Copeland was not an independent expert in view of his for­mer association with Ruby and his own access proceedings - The Federal Court of Appeal held that the affidavit should have been admitted - Its value outweighed its prejudicial effect - Any possible bias on Copeland's part went to credibility not admissibility - See paragraphs 129 to 137.

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - The Federal Court of Appeal referred to the French version of s. 16(2) of the Privacy Act in support of its interpretation of that provision - See paragraph 58.

Statutes - Topic 4985

Operation and effect - Enabling acts - Power coupled with duty - Permissive power - "May" - General - Section 16(2) of the Privacy Act stated that "[t]he head of a government institution may but is not required to indicate under subsection (1) whether personal information exists" - The Federal Court of Appeal held that the word "may" was merely being used to denote an ability or power and not a discretion - See paragraphs 50 to 73.

Words and Phrases

May but is not required - The Federal Court of Appeal discussed the meaning of this phrase as contained in s. 16(2) of the Privacy Act, R.S.C. 1985, c. P-21 - See paragraphs 50 to 73.

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 27, footnote 3].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), refd to. [para. 27, footnote 4].

Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; 201 N.R. 241, dist. [para. 29, footnote 5].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 38, footnote 9].

Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; 98 N.R. 126 (F.C.A.), refd to. [para. 38, footnote 9].

Henrie v. Security Intelligence Review Committee et al. (1988), 24 F.T.R. 24; 53 D.L.R.(4th) 568 (T.D.), affd. (1992), 140 N.R. 315; 88 D.L.R.(4th) 575 (F.C.A.), refd to. [para. 49, footnote 13].

Fraser (D.R.) & Co. v. Minister of National Revenue, [1949] A.C. 24 (P.C.), refd to. [para. 54, footnote 14].

Falconbridge Nickel Mines Ltd. v. Ontario (Minister of Revenue) (1981), 121 D.L.R.(3d) 403 (Ont. C.A.), refd to. [para. 55, footnote 16].

Dergousoff v. Dergousoff, [1999] 10 W.W.R. 633; 177 Sask.R. 64; 199 W.A.C. 64 (C.A.), refd to. [para. 55, footnote 17].

Standard Trustco Ltd. (Bankrupt) v. Standard Trust Co. (1995), 86 O.A.C. 1; 129 D.L.R.(4th) 18 (C.A.), refd to. [para. 55, footnote 17].

Heare v. Insurance Corp. of British Columbia (1986), 32 D.L.R.(4th) 427 (B.C.S.C.), refd to. [para. 55, footnote 17].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 61, footnote 18].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81, refd to. [para. 63, footnote 20].

R. v. S.S. - see R. v. Sheldon S.

Julius v. Oxford (Bishop) (1880), 5 App. Cas. 214 (H.L.), refd to. [para. 63, foot­note 21].

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.), refd to. [para. 68, footnote 22].

Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; 221 N.R. 145 (F.C.A.), folld. [para. 86, footnote 23].

Information Commissioner (Can.) et al. v. Immigration and Refugee Board (Can.) (1997), 140 F.T.R. 140; 82 C.P.R.(3d) 290 (T.D.), refd to. [para. 86, footnote 23].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 119, footnote 25].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), affd. (1993), 154 N.R. 319 (F.C.A.), refd to. [para. 121, footnote 27].

Bland v. National Capital Commission et al., [1991] 3 F.C. 325; 41 F.T.R. 202 (T.D.), refd to. [para. 122, footnote 28].

R. v. Mohan (1994), 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, appld. [para. 131, footnote 30].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47; 85 C.C.C.(3d) 193; 25 C.R.(4th) 1, refd to. [para. 137, footnote 32].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), refd to. [para. 137, footnote 32].

R. v. Buric (G.J.) et al. (1996), 99 O.A.C. 321; 106 C.C.C.(3d) 97 (C.A.), affd. (1997), 209 N.R. 241; 98 O.A.C. 398; 114 C.C.C.(3d) 95 (S.C.C.), refd to. [para. 137, footnote 32].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 147, footnote 33].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 25 C.R.R.(2d) 1, refd to. [para. 154, foot­note 34].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201; 159 D.L.R.(4th) 385, refd to. [para. 154, footnote 35].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; [1984] 6 W.W.R. 577; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 165, footnote 36].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 165, footnote 37].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; [1989] 1 W.W.R. 97; 45 C.C.C.(3d) 57; 66 C.R.(3d) 97; 55 D.L.R.(4th) 481; 36 C.R.R. 90, refd to. [para. 165, footnote 37].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 165, footnote 37].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 165, footnote 37].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201 (S.C.C.), refd to. [para. 168, footnote 39].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 8(1), sect. 8(2)(m)(i), sect. 16(1), sect. 16(2), sect. 19(1), sect. 19(2) [para. 23]; sect. 21 [para. 142]; sect. 22(1)(a), sect. 22(1)(b), sect. 26, sect. 46(1), sect. 49 [para. 23]; sect. 51 [para. 142].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, J.M., Judicial Review of Administrative Actions in Canada (1998) (Looseleaf Ed.), p. 14-47 [para. 61, footnote 19].

Canadian Law Dictionary [para. 55, foot­note 17].

Craig, J.D., Invasion of Privacy and Char­ter Values: The Common-Law Tort Awakens (1997), 42 McGill L.J. 355, generally [para. 166, footnote 38].

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), pp. 3 [para. 54, footnote 15]; 13, 14 [para. 55, footnote 17].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988), para. 37:20530 [para. 137, footnote 32].

Counsel:

Clayton Ruby and Jill Copeland, for the appellant;

Barbara McIsaac and Gregory Tzemanakis, for the respondent.

Solicitors of Record:

Ruby & Edwarth, Toronto, Ontario, for the appellant;

McCarthy Tétrault, Ottawa, Ontario, for the respondent.

These appeals were heard on March 7 and 8, 2000, by Létourneau, Robertson and Sexton, JJ.A., of the Federal Court of Appeal. Létourneau and Robertson, JJ.A., delivered the following reasons for the Court of Appeal on June 8, 2000.