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Info Source Bulletin Number 30
Information Commissioner of Canada v. Minister of Industry
Indexed as: Canada (Information Commissioner) v. Canada (Minister of Industry)
| File No.: | T-421-04 |
| Reference: | 2006 FC 132 |
| Date of decision: | February 13, 2006 |
| Before: | Kelen J. |
| Sections of ATIA / PA: | Ss. 19(2)(c), 24(1), 42, 48 Access to Information Act (ATIA); s. 8(2)(k) Privacy Act (PA) |
| Other statutes: | Statistics Act, R.S.C. 1985, c. S-19, ss. 17(1)(b), 17(2)(d); Constitution Act, 1982, ss. 35, 52. |
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Abstract
- Refusal of Chief Statistician to release certain census records to Algonquin Bands
- Whether s. 17(1) Statistics Act prohibits disclosure of census records
- S. 17(1) prohibition subject to exception in s. 17(2)(d) Statistics Act where "information available to the public under any statutory or other law"
- S. 8(2)(k) PA "statutory law" within meaning of s. 17(2)(d) Statistics Act
- Records available to Algonquin Bands as member of the public by virtue of s. 35 Constitution Act, 1982, common law duties and s. 8(2)(k) PA
Issue
(1) Are the census records necessary for the land claim?
(2) Are the census records subject to production under the ATIA?
(3) Is s. 35 of the Constitution Act, 1982, considered "statutory or other law" within the meaning of para. 17(2)(d) of the Statistics Act?
(4) Is para. 8(2)(k) of the PA considered "statutory or other law" within the meaning of para. 17(2)(d) of the Statistics Act?
(5) What is "information available to the public" within the meaning of para. 17(2)(d) of the Statistics Act?
(6) In the alternative that the respondent was prohibited from disclosing census records pursuant s. 17 of the Statistics Act, what would be the effect of s. 52 of the Constitution Act, 1982?
Facts
This is a s. 42 ATIA application for review of the refusal of the Chief Statistician of Canada to disclose certain census records for the years 1911[22], 1921, 1931, and 1941 to Algonquin Bands for the purpose of validating a land claim. The request for access was denied on the grounds that subs. 17(1) of the Statistics Act prohibits the disclosure of individual census records, that para. 8(2)(k) of the PA is subject to subs. 17(1) of the Statistics Act and therefore cannot be applied and that there is no obligation owed to the Algonquin Bands to disclose the records. Following a complaint and investigation, the Information Commissioner recommended disclosure of the records.
For the purpose of a successful claim, the Bands need to prove continuity of occupation for the 20th century to 1951. It is alleged that the census records under the control of Statistics Canada constitute accurate proof of who was living in the territory in question at the time.
Decision
The application for judicial review was allowed, the decision of Statistics Canada set aside and the access request referred back to the Chief Statistician with directions to consider the request under para. 17(2)(d) of the Statistics Act, and with additional direction that the census records for 1921, 1931 and 1941 can be disclosed to the requester on behalf of the Algonquin Bands upon his undertaking that the personal information with respect to non-Aboriginal persons in the census records be kept confidential.
Reasons
The Court agreed, at the outset, that the appropriate standard against which to review the decision of the Chief Statistician is correctness.
Issue 1
The Court was satisfied that the census information sought was necessary and important for the Algonquin Bands to properly document their land claim. The Court was of the view that the census information was probably the best evidence of the proof required by the Bands to complete the evidence of their continued occupation of the territory in question.
Issue 2
This issue involves the interplay of four statutes, namely the ATIA, the PA, the Statistics Act and the Constitution Act, 1982. The right of access is attenuated by s. 24 of the ATIA, which requires consideration of the disclosure prohibition in subs. 17(1)[23] of the Statistics Act. However, subs. 17(2) of the Statistics Act contains, at para. (d), an exception to the prohibition which authorizes the disclosure, by order, and at the discretion of the Chief Statistician, of "information available to the public under any statutory or other law". The Court was of the view that the subs. 17(1) prohibition must be read subject to the discretionary exceptions set out in subs. 17(2) of the Statistics Act and that other statutory provision or law making the information available should be considered. More particularly, the meaning of para. 17(2)(d) of the Statistics Act involved, in the present case, a three-step analysis to be undertaken in the sequence set out under Issues 3, 4 and 5.
Issue 3
The duty to act honourably, in good faith and as a fiduciary are common law duties that have now been constitutionalized to the extent that they relate to the Crown's legal obligations under s. 35 of the Constitution Act, 1982 with respect to aboriginal land claims. As a result, s. 35 of the Constitution Act, 1982[24], and those common law duties constitute "statutory or other law" within the meaning of para. 17(2)(d) of the Statistics Act. The Court's view was based on the Supreme Court of Canada decisions in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 and Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511.
Issue 4
The Court held that para. 8(2)(k) of the PA constituted "statutory law" within the meaning of para. 17(2)(d) of the Statistics Act. Parliament's intention in enacting para. 8(2)(k) was obvious. As stated by the Court, the intent is that "personal information under the control of a government institution may be disclosed to an Indian Band for the purpose of researching or validating a land claim".
Issue 5
The Court held that the phrase "information available to the public" in para. 17(2)(d) of the Statistics Act is a question of law to be determined with the aid of Canadian dictionaries. The word "public" in para. 17(2)(d) is used as a noun and, as such, refers to the entirety of the community, to members of the community, or to the community sharing a common status or interest. The Court noted that each of these meanings is sufficient to meet the definition of "public" in para. 17(2)(d). The word "available" means "capable of being used; at one's disposal; obtainable". Thus, the Court held that the expression "information available to the public" refers to records capable of being obtained by the entire general public, or by member or sections thereof. To be capable of obtaining a given record, the member of the public must have a right of access.
In the alternative that the meaning of the phrase "available to the public" was unclear, the Court referred to the appropriate approach to statutory interpretation which is to read the words of a statute in their entire context, liberally construed and in their ordinary sense in accordance with the intention of Parliament. The Court held, based on this approach, that the information in the census records is exactly the type of information which Parliament intended disclosure to an Aboriginal people or Indian Band under the PA. It is also exactly the kind of information which the Crown is obliged to provide an Aboriginal people or Indian Band under s. 35 of the Constitution Act, 1982.
In conclusion, with respect to Issues 3, 4 and 5, the Court held that para. 17(2)(d) of the Statistics Act was engaged because a member of the public, i.e. the Algonquin Bands, have a right of access to the information by statute or other law, namely s. 35 of the Constitution Act, 1982, the common law duties referred to under Issue 3 and para. 8(2)(k) of the PA. The Court noted that only one statute or common duty is sufficient to satisfy the requirement of para. 17(2)(d) of the Statistics Act.
Issue 6
Subsection 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the Constitution of Canada is, to the extent of the inconsistency, of no force or effect. The Crown has a constitutional obligation, independent of the ATIA, to provide Algonquin Bands with those parts of the census records required to prove their land title claim. Pursuant to the principle of primacy of the Canadian Constitution found in s. 52 of the Constitution Act, 1982, and to the extent that s. 17 of the Statistics Act is inconsistent, s. 17 if of no force or effect unless it can be justified.
In the present case, the Court held that s. 17 did not meet the test for justifying an interference with the right of the Aboriginal peoples to obtain their own census records necessary to prove their land title claims. While the confidentiality of census records are necessary to ensure full and frank responses to enumerators, the census records sought are more than 60 years old, and can be disclosed subject to a confidentiality undertaking by the requester.
Comments
The Minister of Industry has filed a notice of appeal against this decision.
