Info Source Bulletin Number 29

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Minister of Public Safety and Emergency Preparedness and Keith Maydak

Indexed as: Maydak v. Canada (Minister of Public Safety and Emergency Preparedness)

File No.:	A-518-04
Reference:	2005 FCA 186
Date of decision:	May 19, 2005
Before:	Noël, Nadon, Malone JJ.A.
Sections of ATIA / PA:	Ss. 22(1)(a) and 41 Privacy Act (PA)

Abstract

• "Investigation" in para. 22(1)(a) PA is to be defined broadly

Issue

What is an "investigation" for the purposes of para. 22(1)(a) PA?

Facts

(Note: The following statement of facts is derived primarily from the reasons of Rouleau J. at the Federal Court, sub. nom. Maydak v. Canada (Solicitor General), 2004 FC 1171.)

In response to a request from the United States of America for the extradition of the appellant, counsel for the Minister of Justice issued an Authority to Proceed against him pursuant to subs. 15(1) of the Extradition Act. On September 19, 2003, the appellant filed a request for access under the PA to all personal information held in the records of the RCMP or by RCMP member Daniel Bérubé, Criminal Ops, Interpol Ottawa.

The RCMP responded to the request by disclosing some of the information sought while withholding other information under para. 22(1)(a) PA. The appellant complained to the Office of the Privacy Commissioner, which concluded that the complaint was not well-founded on the grounds that the requirements of para. 22(1)(a) were satisfied.

Mr. Madak brought an application before the Federal Court under s. 41 PA on the grounds that the Privacy Commissioner had erred in concluding that the RCMP had conducted an "investigation" when it had merely monitored the progress and status of the extradition proceedings. The appellant further argued that, even if the RCMP had conducted an "investigation", the basis of that action neither involved the "detection, prevention, or suppression of crime", nor the "enforcement of any law of Canada or a province", such as the wording of para. 22(1)(a) PA requires.

In his decision, Rouleau J. of the Federal Court concluded that the RCMP's refusal to disclose to the respondent personal information sought under subs. 12(1) PA could not be justified under para. 22(1)(a) PA. In his view, it was clear that the RCMP simply received information from the Department of Justice that the United States sought Mr. Madak for a supervised release violation, having submitted an extradition request. The only actions taken by the RCMP involved placing, and subsequently removing, Mr. Maydak's name from CPIC, and communicating by e-mail with the Department of Justice relating to the status of the extradition proceedings. In Justice Rouleau's view, this type of activity did not constitute an investigation within the meaning of para. 22(1)(a). While there may be cases where the RCMP had conducted an investigation to assist an extradition proceeding, it appeared clear that the RCMP Interpol had not done so here.

This is an appeal by the Minister against the decision of Justice Rouleau.

Decision

The appeal was allowed.

Reasons

In a unanimous decision, the FCA held, first, that the fact that the information obtained by the RCMP may be of no consequence or great value is irrelevant to the determination which had to be made under para. 22(1)(a) PA. Whatever the value of the information, if it was obtained in the circumstances described in para. 22(1)(a), the exemption to disclosure applied.

The action of investigating; the making of a search or inquiry; systematic examination; careful and minute research.

Black's Law Dictionary (5^th ed.) defines the word "investigate" in the following terms:

Thus, the ordinary meaning of the words "investigation" and "investigate" is a broad one, certainly broad enough to encompass the activities of the RCMP in obtaining the information in respect of which the respondent seeks disclosure.

The FCA found further support for its view in the Supreme Court of Canada's decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773. In that case, the issue before the Supreme Court was whether the disclosure of personal information sought by the respondent could reasonably be expected to be injurious to the conduct of "lawful investigations" by the Commissioner of Official Languages. In so doing, the Supreme Court interpreted the meaning of "lawful investigations" and "investigation", as those appear in para. 22(1)(b) and sub. 22(3) PA, to have a broad meaning, referring "equally to investigations that are underway, are about to commence, or will take place". According to the Supreme Court, these terms should not be interpreted as "restricting the scope of the word [...] or limiting the general meaning of that word to specific investigations".

The Federal Court of Appeal concluded that "investigation" as it appears in para. 22(1)(a) must be similarly interpreted. Therefore, the Court was satisfied that the information obtained by the RCMP was obtained for the making of a search or enquiry, i.e. for the purpose of locating and arresting the respondent so as to give effect to the extradition proceedings. The Court agreed with the appellant's submission that the RCMP's activities, which consisted in monitoring the respondent's progress throughout the extradition process and gathering information regarding that process, constitute an investigation within the meaning of para. 22(1)(a) PA.

Thus, the trial judge was wrong to conclude that the information was not obtained in the course of an "investigation".

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