InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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Ruby v. Canada (Solicitor General)
Indexed as: Ruby v. Canada (Solicitor General)

File No.:	28029
References:	2002 SCC 75; [2002] S.C.J. No. 73 (QL) (SCC)
Date of decision:	November 21, 2002
Before:	McLachlin C.J., L'Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Section(s) of ATIA/PA:	Ss. 19, 21, 22(1)(b) and 51 Privacy Act (PA)

Abstract

S. 41 PA review

• Ex parte filing of evidence and in camera hearings
• Constitutionality of ss. 51(2)(a) and 51(3)
• Sections 1 and 2(b), 7 and 8 of the Canadian Charter of Rights and Freedoms
• Reasonable expectation of probable harm

Issues

Do para. 51(2)(a) (requiring that court proceedings be held in camera) and subs. 51(3) (allowing submissions to be made ex parte) violate para. 2(b), s. 7 or s. 8 of the Charter; if they do, can they be saved by s. 1 of the Charter?

Is the exemption in para. 22(1)(b) of the Privacy Act limited to current investigations or an identifiable prospective investigation?

Facts

A request was made pursuant to s. 12 of the PA for personal information held by the Canadian Security Intelligence Service ("CSIS"). CSIS neither confirmed nor denied the existence of the information, claiming the exemptions found in ss. 19, 21, 22 and 26 of the PA. Section 19 provides that a government institution shall refuse to disclose personal information that was obtained in confidence from the government of a foreign state or an international organization, unless that government or organization agrees to the disclosure (the "foreign confidences" exemption). Section 21 provides that a government institution may refuse to disclose any personal information if such disclosure can reasonably be expected to be injurious to the conduct of international affairs or the defence of Canada (the "national security" exemption).

The requester complained to the Privacy Commissioner and, after the results of the Commissioner's investigation were reported, filed an application in the Federal Court, Trial Division for a review of CSIS' refusal under s. 41 of the PA. Prior to the review hearing, the requester challenged the constitutionality of para. 51(2)(a) and subs. 51(3) of the PA on the grounds that they violated para. 2(b) and ss. 7 and 8 of the Charter. The procedures set up by para. 51(2)(a) and subs. 51(3) of the PA provide that, where a government institution has claimed the "foreign confidences" and/or the "national security" exemption(s), it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera (para. 51(2)(a)) and to accept ex parte submissions at the request of the government institution refusing disclosure (subs. 51(3)). The courts below held that the impugned sections of the PA did not violate s. 7 of the Charter and that they did violate para. 2(b) of the Charter but that they were saved by s. 1.

CSIS had also claimed the exemption provided by para. 22(1)(b) of the PA. The exemption allows the government institution to exempt information if its disclosure could reasonably be expected to be injurious, inter alia, to the conduct of lawful investigations. The Court of Appeal had held that CSIS could not rely on this provision because it was said to be limited to circumstances where a reasonable expectation of harm could be established to a current specific investigation or identifiable prospective investigation. This decision was the subject of the Crown's cross-appeal.

Decision

The appeal should be allowed in part and the cross-appeal should be allowed.

Reasons

Issue 1
The challenge based on s. 8 of the Charter was subsumed into the requester's s. 7 challenge. The s. 7 challenge was itself very narrow and related only to the lack of discretion of the Court to decide whether a government institution that refuses to disclose information should be allowed to make ex parte submissions in an in camera hearing. As a general rule, s. 7 of the Charter guarantees a fair hearing and that must include an opportunity for the parties to know the opposing party's case so that they may address evidence prejudicial to their case and bring evidence to prove their position. This general rule, however, tolerates certain deviations because some situations require secrecy. In those cases, fairness can be met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal.

In the context of the PA's scheme it follows that the government must have an opportunity to proceed ex parte. The use of the "national security" and "foreign confidences" exemptions is subject to two independent levels of review (e.g. the Privacy Commissioner and the Federal Court). They both have the information that is being withheld in order to determine whether an exemption has been properly claimed. Parliament thus balanced the interests in accessing personal information with the state's interest in national security and in maintaining foreign confidences. The balance achieved did not violate the level of fairness guaranteed by s. 7 of the Charter.

The provision in para. 51(2)(a) of the PA that requires that the hearing be heard in camera violated para. 2(b) of the Charter and could not be saved by s. 1 because it did not meet the proportionality test. The provision was rationally connected to a legitimate objective (reducing the risk of inadvertent disclosure of sensitive information), but it failed to only minimally impair the right guaranteed by para. 2(b) of the Charter. It was held that only those portions of the hearing that involve the merits of an exemption require that it be held in camera. Other portions of the hearing should be open.

The constitutional question was therefore answered by reading down para. 51(2)(a) such that it applied only to the admission of ex parte submissions mandated by subs. 51(3)

Issue 2
Consistent with the Supreme Court's decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 the Court held that the exemption in para. 22(1)(b) of the PA is not limited to current investigations or an identifiable prospective investigation. Since CSIS established a reasonable expectation of probable injury to investigations in general (as found by the Trial Division judge), it was justified in claiming the exemption. The Crown's cross-appeal was thus allowed.

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