X v. Canada (Minister of National Defence), (1991) 46 F.T.R. 206 (TD)

• Judge: Denault, J.
• Court: Federal Court (Canada)
• Case Date: Thursday March 28, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 46 F.T.R. 206 (TD)

X v. Can. (1991), 46 F.T.R. 206 (TD)

MLB headnote and full text

X (applicant) v. The Minister of National Defence and The Secretary of State for External Affairs (respondents)

(T-2886-84)

Indexed As: X v. Canada (Minister of National Defence)

Federal Court of Canada

Trial Division

Denault, J.

August 27, 1991.

Summary:

A historian requested information respect­ing the "Examination Unit", a Canadian code-breaking agency set up in 1941. The historian was interested in the 1941-1942 period, when Yardley was head of the Unit and information on Yardley's dismissal and records respecting Japanese, Vichy France and German codes and intercepts. The Min­ister of National Defence disclosed some of the records between 1987 and 1988. Access to other records, in whole or in part, was denied on the basis of exemptions under ss. 13, 15 and 19 of the Access to Information Act. The historian applied under s. 41 of the Act for a review of the access refusal.

The Federal Court of Canada, Trial Divi­sion, dismissed the application, with the exception of two records.

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal information - Section 19 of the Access to Information Act provided that a govern­ment head "shall refuse to disclose any record ... that contains personal informa­tion as defined in s. 3 of the Privacy Act" - A historian sought access to records respect­ing persons involved with a Cana­dian code-breaking agency established in 1941 - The Federal Court of Canada, Trial Division, agreed that the information was excepted from disclosure under s. 19, because it was personal information and none of the exceptions applied - The court stated that "it would not be sufficient for the head of a government institution to simply state they are unaware or that they do not know if the exceptions apply. Rather, they should be in a position to state what activities and initiatives were undertaken in this regard." - See para­graphs 30 to 31, 38.

Crown - Topic 7207

Examination of public documents - Free­dom of information - Bars - Confidential­ity - Section 13(1) of the Access to Infor­mation Act provided that a government head "shall refuse to disclose ... informa­tion that was obtained in confidence from ... a foreign state" - Section 13(2) pro­vided that the information may be dis­closed if the originating state consents to disclosure or made the information public - The Minister of National Defence pos­sessed information, concerning the Cana­dian code-breaking agency established in 1941, that originated from foreign states and refused access under s. 13 - The Federal Court of Canada, Trial Division, stated that s. 13 was properly invoked - The infor­mation was received in con­fidence, appro­priate consultations had been made with the foreign states and there was no consent to access given - See para­graphs 28 to 29, 37.

Crown - Topic 7220

Examination of public documents - Free­dom of information - Bars - Injury to international affairs - Section 15 of the Access to Information Act provided that a government head "may refuse to dis­close ... information ... which could rea­sonably be expected to be injurious to the conduct of international affairs ..." - The Minister of National Defence refused to disclose certain records pertaining to the Canadian code-breaking agency estab­lished in 1941 - The Federal Court of Canada, Trial Division, after reviewing the material, submissions and evidence, stated that the decision to withhold the informa­tion under s. 15 was reasonable - See paragraphs 32 to 36, 38.

Crown - Topic 7283

Examination of public documents - Free­doms of information - Practice - Evidence - Cross-examination - The Access to Information Act permitted in camera hear­ings of review applications - The Federal Court of Canada, Trial Division, granted a Minister opposing access an order under the Act allowing an ex parte representation and filing of the supplementary affidavit in sealed form, with no right of access or cross-examination on it - The court noted that the Act did not provide for cross-examination; conversely, the Act provided precautions against access to information to which access was sought on review - There was no right to cross-examine on ex parte representations - See paragraphs 13 to 17.

Cases Noticed:

Maislin Industries Ltd. v. Minister for Industry, Trade and Commerce, Regional Economic Expansion (1984), 10 D.L.R.(4th) 417 (F.C.T.D.), refd to. [para. 15].

Kevork v. The Queen, [1984] 2 F.C. 753 (F.C.T.D.), refd to. [para. 16].

Throssell and Australian Archives, Re (1986), 10 A.L.D. 403, refd to. [para. 28].

Maher and Attorney General's Department, Re (1985), 7 A.L.D. 731, refd to. [para. 28].

Information Commissioner (Can.) v. Canada (Secretary of State for External Affairs) (1989), 32 F.T.R. 161; 64 D.L.R.(4th) 413 (F.C.T.D.), refd to. [para. 30].

Information Commissioner (Can.) v. Canada (Minister of National Defence) (1990), 33 F.T.R. 234; 67 D.L.R.(4th) 585 (F.C.T.D.), refd to. [para. 32].

Central Intelligence Agency v. Sims, 471 U.S. 159; 85 L. Ed. 173; 105 S. Ct. 1881 (U.S.S.C.), refd to. [para. 33].

Goguen v. Gibson, [1983] 1 F.C. 872, refd to. [para. 35].

Gibson v. Canada, [1983] 2 F.C. 463; 47 N.R. 64 (F.C.A.), refd to. [para. 35].

Statutes Noticed:

Access to Information Act, S.C. 1980-81-82-83, c. 111, sect. 2 [para. 18]; sect. 4(1), sect. 6 [para. 8]; sect. 8(1) [para. 3]; sect. 10(1) [para. 8]; sect. 13, sect. 15, sect. 19 [para. 18]; sect. 20(1)(b) [para. 29, footnote 2]; sect. 30(1), sect. 41 [para. 8]; sect. 47(1) [para. 14]; sect. 48, sect. 49, sect. 50 [para. 18]; sect. 52 [para. 14].

Evidence Act, R.S.C. 1970, c. E-10, sect. 36.1 [para. 35]; sect. 36.2 [para. 16].

Privacy Act, S.C. 1980-81-82-83, c. 111, Sch. II, sect. 3 [para. 18, footnote 1].

Counsel:

X, appeared on his own behalf;

B. McIsaac, for the respondents.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents.

This application was heard on March 28, 1991, at Ottawa, Ontario, before Denault, J., of the Federal Court of Canada, Trial Divi­sion, who delivered the following judgment on August 27, 1991.