Info Source Bulletin Number 30

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Shahrokh Ahmadzadegan and Minister of Public Safety and Emergency Preparedness

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

File Nos.:	T-1959-04
Reference:	2006 FC 523
Date of decision:	April 26, 2006
Before:	Blanchard J.
Sections of ATIA / PA:	Ss. 2, 12(1), 12(2), 22(1)(a), 26, 48 Privacy Act (PA)
Other statutes:	S. 7 Canadian Charter of Rights and Freedoms

Abstract

• Standard of review applicable to discretionary exemption in para. 22(1)(a) PA
• Refusal to disclose letter unreasonable under present circumstances
• Correlation between purpose of PA and right of correction under subs. 12(2) PA
• Court cannot order correction of personal information

Issues

(1)   Does the Court have jurisdiction to order the removal of allegedly false information on CSC's files and to order compensatory and special damages?

(2)   What is the appropriate standard of review with respect to para. 22(1)(a) of the PA?

(3)   Was the personal information properly exempted under para. 22(1)(a) of the PA?

(4)   If the information ought to have been disclosed to the applicant by the RCMP, can the Court order that his personal information held in the RCMP's files be corrected pursuant to subs. 12(2) of the PA?

Facts

This is a judicial review application pursuant to s. 41 of the PA of a decision by the RCMP to deny the applicant's request for access to his personal information.

The applicant alleges that because of "unfounded and unsubstantiated" allegations made by the RCMP to Correctional Service Canada (CSC) in a letter dated September 8, 1992, he was denied a transfer from a maximum security to a medium security institution as well as full parole. The applicant wrote letters to the RCMP and the CSC requesting that they provide him with the basis for their allegations and that they remove false allegations from his file, but did not receive any response. He subsequently submitted an access request to the RCMP pursuant to subs. 12(1) of the PA for information concerning the allegations made in the September 1992 letter and for any other factual information. In the letter accompanying the access request form, the applicant asked for details about his alleged involvement with the secret police in Iran, stating that he is entitled to have information corrected or have the author of the letter provide evidence of the allegations made against him. The RCMP denied his request for access on the basis of para. 22(1)(a) of the PA. The Privacy Commissioner determined that the applicant's request was not well founded.

The applicant seeks, in his s. 41 application, an order from the Court directing the RCMP and CSC to remove all false information about him from their respective files as well as compensatory and special damages for loss of parole opportunities, for loss of opportunity to be classified at a lower security risk, and for mental and emotional distress. The applicant also alleges that the refusal to correct the information constituted a breach of his rights guaranteed under s. 7 of the Charter.

Decision

The application was allowed in part. The requested letter should be disclosed with specified portions redacted from it. The Court cannot order that personal information be corrected pursuant to subs. 12(2) of the PA.

Reasons

Issue 1: Does the Court have jurisdiction to order the removal of allegedly false information on CSC's files and to order compensatory and special damages?

The Court held that it did not have jurisdiction to order CSC to remove the allegedly false information from its files since what is at issue in this s. 41 application is the decision of the RCMP only. The Court also held that it was without jurisdiction to order the damages sought by the applicant on the ground that damages cannot be claimed by way of an application for judicial review: Al‑Mhamad v. Canada (Canadian Radio-Television and Telecommunications Commission), 2003 FCA 45. Finally, the applicant adduced no evidence to support a finding that the RCMP's refusal to correct allegedly erroneous information in its files had violated the applicant's s. 7 Charter rights.

Issue 2: What is the appropriate standard of review with respect to para. 22(1)(a) PA?

The Court noted that since Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (F.C.T.D.), the caselaw had evolved and that the determination of the standard applicable to the decision of the RCMP not to disclose the personal information now requires a pragmatic and functional analysis. Relying on Thurlow v. Canada (Solicitor General), 2003 FC 1414 which dealt with para. 22(1)(a) PA, the Court held that (a) with respect to the first type of decision – whether the requested information falls within the category of the exemption – the appropriate standard of review is correctness and (b) with respect to the second type of decision – whether the institution should nevertheless exercise its discretion to release – the standard is that of reasonableness simpliciter.

Issue 3: Was the personal information properly exempted under para. 22(1)(a) of the PA?

In order for the information to be properly exempted, they must meet the criteria under para. 22(1)(a) of the PA. That provision authorizes the head of a government institution, in exercising his or her discretion, to withhold personal information if:

1. the information is less than 20 years old;
2. the information was obtained or prepared by an investigative body, as specified in the Privacy Regulations; and
3. the information was obtained or prepared in the course of a lawful investigation pertaining to, among other things, the detection, prevention or suppression of crime, or the enforcement of any law of Canada or a province.

Having established that the appropriate standard of review was correctness, the Court held that the RCMP's finding was correct with respect to all of the records withheld from the applicant.

However, the Court held that, given the circumstances of this case, the RCMP's decision to refuse disclosure of the September 1992 letter was unreasonable. The Court based its finding on the fact that the applicant already had a copy of the letter (which he had obtained by means other than his request under the PA) and that it could be inferred, from the records before the Court, that the RCMP knew that the applicant had a copy prior to making its decision to refuse disclosure. The Court added that the objective to be served by not disclosing the applicant's personal information – to protect the sources and nature of sensitive information obtained or prepared in the conduct of a criminal investigation--could no longer be met because the information was already in the applicant's hands. Furthermore, the Court was of the view that, given these particular circumstances, allowing the RCMP's decision to stand would be inconsistent with the purpose of the PA which is not only to provide individuals with access to their personal information but also to protect the privacy of individuals with respect to their personal information. Implicit in this purpose is the right to ensure that one's personal information in records held by the government is accurate. Withholding the letter would deny the applicant the opportunity to have in newidth %> ion he alleged to be erroneous, corrected pursuant to subs. 12(2) of the PA.

The Court ordered that the letter be disclosed to the applicant pursuant to subs. 12(1) PA with certain specified information redacted from it on the grounds of s. 26 PA.

Issue 4: If the information ought to have been disclosed to the applicant by the RCMP, can the Court order that his personal information held in the RCMP's files be corrected pursuant to subs. 12(2) of the PA?

The Court does not have jurisdiction on a s. 41 PA application for judicial review to order that personal information about the applicant be corrected pursuant to subs. 12(2). However, in ordering the disclosure of the letter pursuant to subs. 12(1), it was now open to the applicant to make a request for correction under subs. 12(2) of the PA. Subsection 12(2) can only be invoked with respect to information that has been released under subs. 12(1).

Comments

The RCMP has filed a notice of appeal.

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