Skip to content | Skip to institutional links

Common menu bar links

Institutional links

Info Source Bulletin Number 28

Gardiner v. Attorney General of Canada

Indexed as: Gardiner v. Canada (Attorney General)

File No.:	T-865-00; T-1488-00
Reference:	2004 FC 483
Date of decision:	March 29, 2004
Before:	Campbell J.
Sections of ATIA / PA:	Ss. 8(2)(m), 22(1)(a)(ii), 26, 27, 41, 46(2) and 67 Privacy Act (PA)

Abstract

Application of discretionary exemption requires two decisions, one factual and one discretionary
Review of documents under s. 41 PA including search for evidence of commission of offence
Court's discretion under subs. 46(2) to disclose information relating to commission of offence to appropriate authorities where evidence thereof
Burden to provide evidence of Charter breach resting upon the party alleging the violation

Issues

Did the Justice and Revenue Canada ATIP offices err in applying the exemptions found at ss. 22(1)(a)(ii), 26 and 27 of the Privacy Act?
Can a s. 41 review be interpreted so as to include a search for evidence of the commission of an offence? Can the information relating to the commission of an offence be disclosed to the appropriate authorities under subs. 46(2)?
Has the applicant's rights been violated under the Canadian Charter of Rights and Freedoms?

Facts

Alan Gardiner, the applicant, seeks judicial review of decisions made by the ATIP office of the Department of Justice and the ATIP office of Revenue Canada to refuse to disclose personal information. The information in question was exempted pursuant to ss. 22(1)(a)(ii), 26 and 27 of the PA. The Privacy Commissioner concluded that the information withheld was properly exempted.

The applicant is seeking disclosure of the information found in his files from 1982 to present. The Department of Justice ATIP office located documents relevant to the applicant's access request that concerned a prosecution conducted in the late 1980s and early 1990s. The Revenue Canada ATIP office located relevant documents that had been provided by the RCMP to the Special Investigations Unit of Revenue Canada, and other documents concerning an investigation of the applicant regarding income tax offences.

The applicant (1) seeks a review of the ATIP offices' decisions to exempt the information; (2) asks that subs. 46(2) of the Privacy Act be interpreted so as to open up the review process to an inquiry of alleged criminal conduct in the course of events related to the documents under review; and (3) contends that the exemptions invoked, in addition to ss. 41 and 67(1), offend the Charter.

Decision

The application for judicial review was dismissed.

Reasons

Issue 1

All three exemptions are discretionary in nature. Following the approach adopted by Strayer J., in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (F.C.T.D.), Justice Campbell explained that when a head of a government institution is in the process of determining whether an discretionary exemption should be applied, two decisions have to be made. Firstly, a factual determination is to be made as to whether the documents fall within the parameters of the exemption in question. Secondly, a discretionary decision is required in order to determine whether the documents should nevertheless be disclosed. Although the first type of decision is reviewable by a Court, who can substitute its own conclusion, the second type is purely discretionary and the Court must not attempt to exercise the discretion de novo. It must simply consider whether the discretion was exercised in good faith and rationally connected to the purpose for which the discretion was granted.

Justice Campbell concluded that subpara. 22(1)(a)(ii) had been properly claimed. As a result of this ruling, the respondent did not ask for a determination on the other exemptions claimed and the applicant abandoned his application for the release all other documents.

Justice Campbell noted that consideration must be given to subpara. 8(2)(m)(i) when applying the exemption found at s. 26. A government institution must therefore conduct a discretionary balancing of the public interest in disclosure and/or the benefit of the applicant in disclosing the information, against the right to privacy of third parties.

Issue 2

The applicant argues that subs. 46(2) of the Privacy Act gives the Court
"quasi-criminal discretional jurisdiction" to investigate alleged criminal conduct of any government employee involved in the creation or processing of the information sought, including the conduct of the Attorney General, the Minister of Justice, the RCMP, and the Privacy Commissioner of Canada. The Court held that a s. 41 PA review includes a search for evidence of the commission of an offence and that, if during the review such evidence came to light, subs. 46(2) conferred on the Court the discretion to refer it to the appropriate authorities. No such evidence was found in the case at bar.

The applicant further argued that the provisions found in the Crimes Against Humanity Act were helpful in permitting him to gain access to justice. The Court determined, however, that this criminal legislation did not provide investigative jurisdiction, as purported by the applicant.

Issue 3

The applicant had served notice of three constitutional questions, stating that: (1) the government's reliance on ss. 22(1)(a)(ii), 26, 27 contravened his rights under ss. 2(b), 7, 10, 11(b), 12 and 15 of the Charter; (2) ss. 41 and 67(1) contravened his rights under ss. 7 and 15 of the Charter; and (3) s. 41 contravened his rights under ss. 7, 12 and 15 of the Charter.

The applicant abandoned the third constitutional question. With respect to the other two questions, Justice Campbell found that the applicant had failed to discharge the evidentiary burden which rested on him. The Charter arguments were therefore dismissed.