Ruby v. Canada (Solicitor General)

Ruby v. Canada (Solicitor General)
Collection
Supreme Court Judgments
Date
2002-11-21
Neutral citation
2002 SCC 75
Report
[2002] 4 SCR 3
Case number
28029
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Federal Court of Appeal
Subjects
Access to information
Civil procedure
Constitutional law
Notes
SCC Case Information: 28029
Decision Content
Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75
Clayton Charles Ruby Appellant
v.
Solicitor General of Canada Respondent
and
Privacy Commissioner of Canada and
Robert Lavigne Interveners
Indexed as: Ruby v. Canada (Solicitor General)
Neutral citation: 2002 SCC 75.
File No.: 28029.
2002: April 24; 2002: November 21.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Fundamental justice — Security of the person — Right to privacy — Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant’s request for access to personal information on grounds of national security or maintenance of foreign confidences — Whether provisions infringe s. 7 of Canadian Charter of Rights and Freedoms — Privacy Act, R.S.C. 1985, c. P-21, s. 51(2) (a), (3) .
Constitutional law — Charter of Rights — Freedom of expression — Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant’s request for access to personal information on grounds of national security or maintenance of foreign confidences — Provisions infringing freedom of expression — Whether infringement constitutional — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) — Privacy Act, R.S.C. 1985, c. P‑21, s. 51(2) (a), (3) .
Privacy — Access to personal information — Exemptions — Law enforcement and investigation — Whether exemption in s. 22(1) (b) of Privacy Act limited to current investigations — Whether notion of “injury” in s. 22(1) (b) to be extended to investigations in general — Privacy Act, R.S.C. 1985, c. P-21, s. 22(1) (b).
Privacy — Access to personal information — Review by Federal Court where access refused — Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant’s request for access to personal information on grounds of national security or maintenance of foreign confidences — Whether provisions constitutional — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 , 8 — Privacy Act, R.S.C. 1985, c. P-21, s. 51(2) (a), (3) .
Costs — Supreme Court of Canada — Constitutional issues — Constitutional issues raised by appellant serious, important and novel in context of access to information litigation — Appropriate in this case to award costs of proceedings in Supreme Court and courts below to appellant even though appeal only allowed in part — Supreme Court Act, R.S.C. 1985, c. S-26, s. 47 .
Pursuant to s. 12(1) (a) of the Privacy Act , R made a request to be given access to personal information contained in an information bank maintained by the Canadian Security Intelligence Service (“CSIS”). CSIS would neither confirm nor deny the existence of the information but, if such information did exist, refused to disclose the information claiming the exemptions under ss. 19, 21, 22 and 26 of the Act. 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. Under s. 21, 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. R made a complaint 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’s refusal under s. 41 of the Act. Prior to the review hearing, R challenged the constitutionality of s. 51(2)(a) and (3) of the Act on the grounds that they violated ss. 2 (b), 7 , and 8 of the Canadian Charter of Rights and Freedoms . Under the impugned provisions, where a government institution has claimed the “foreign confidences” or the “national security” exemption, it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera (s. 51(2) (a)) and to accept ex parte submissions at the request of the government institution refusing disclosure (s. 51(3) ). The motions judge ruled that s. 51(2) (a) and (3) infringed s. 2 (b) of the Charter but that the infringement was justifiable under s. 1 . She also ruled that the impugned provisions did not violate s. 7 of the Charter . The Federal Court of Appeal affirmed the decision. R appealed to this Court and the respondent cross‑appealed on an issue of interpretation of s. 22(1)(b) of the Act.
Held: The appeal should be allowed in part. The cross-appeal should be allowed.
Sections 51(2) (a) and 51(3) of the Privacy Act do not violate s. 7 of the Charter . Assuming that R has suffered a deprivation of his liberty or security interest in this case, the s. 51(3) requirement that a court accept ex parte submissions on request of the government institution refusing to disclose information is not, in the context of this case, contrary to the principles of fundamental justice. As a general rule, a fair hearing 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 exceptions as some situations require a measure of secrecy. Fairness can be met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal. Here, the s. 7 challenge is very narrow and relates 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. Within the context of a valid statutory scheme that permits the government to refuse to disclose information when there is a legitimate exemption or to confirm or deny the existence of information, it can only follow that the government must have the capacity to proceed ex parte. When a government institution claims the exemptions in ss. 19(1) (a) and (b) and 21 , Parliament has seen fit, through the mandatory ex parte provision in s. 51(3) , to assert the special sensitive nature of the information involved and has provided added protection and assurance against inadvertent disclosure. Only in these exceptional and limited circumstances will the procedural regime in s. 51 be activated. Recourse to the “national security” and “foreign confidences” exemptions is also subject to two independent levels of scrutiny: the Privacy Commissioner and the Federal Court. They both have access to the information that is being withheld in order to determine whether an exemption has been properly claimed. In enacting s. 51 , Parliament attempted to balance the interests in accessing personal information held by government institutions with the state’s significant and legitimate interest in national security and in maintaining foreign confidences. Given the statutory framework, the narrow basis of R’s constitutional challenge and the significant and exceptional state and social interest in the protection of information involved, the mandatory ex parte and in camera provisions do not fall below the level of fairness required by s. 7 of the Charter . Lastly, a judicial summary of the evidence prepared by the reviewing court would not assist R for it could not provide any further detail without compromising the very integrity of the information. Indeed, the use of such a summary would increase the risk of inadvertent disclosure of the information or its source.
R’s arguments presented under s. 8 of the Charter were entirely subsumed under s. 7 and need not be addressed independently.
To the extent that the in camera provision in s. 51(2) (a) excludes both R and the public from the proceedings, it is clear that the provision violates s. 2 (b) of the Charter . The provision cannot be saved by s. 1 . While the protection of information which could reasonably be expected to be injurious to Canada’s national security and the preservation of Canada’s supply of intelligence information from foreign sources are pressing and substantial objectives, s. 51(2) (a) does not meet the proportionality test. The provision is rationally connected to the objective, as in camera hearings reduce the risk of an inadvertent disclosure of sensitive information, but it fails on the question of minimal impairment. Section 51(2) (a) mandates that the hearing be held in camera and does not limit the in camera requirement to only those parts of a hearing that involve the merits of an exemption. The requirement that the entire hearing of a s. 41 application or appeal therefrom be heard in camera is too stringent. The appropriate remedy is to read down s. 51(2) (a) so that it applies only to the ex parte submissions mandated by s. 51(3) . A reviewing court retains the discretion, pursuant to s. 46 , to conduct the remainder of the hearing or any portion thereof in public, or in camera, or in camera and ex parte.
The exemption in s. 22(1) (b) of the Privacy Act is not limited to current investigations or an identifiable prospective investigation. Since CSIS established a reasonable expectation of probable injury to investigations in general, it was justified in claiming the exemption based on s. 22(1) (b).
Cases Cited
Applied: Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53; referred to: Attorney General of Manitoba v. National Energy Board, [1994] 2 F.C. 502; Royal Bank v. W. Got & Associates Electric Ltd., [1994] 5 W.W.R. 337, aff’d [1997] 6 W.W.R. 715, aff’d [1999] 3 S.C.R. 408; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Beare, [1988] 2 S.C.R. 387; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. O’Connor, [1995] 4 S.C.R. 411; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; R. v. Lyons, [1987] 2 S.C.R 309; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 , 8 .
Privacy Act, R.S.C. 1985, c. P-21, ss. 11 , 12(1) , 16(1) , (2) , 19 -28 , 19 , 21 , 22(1) (a), (b), (3) , 26 , 29 [am. 1992, c. 21, s. 37], 34(2), 41, 45, 46, 47, 49, 51, 52.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 47 .
Authors Cited
Alberta Code of Professional Conduct. Calgary: Law Society of Alberta, 1995 (loose-leaf revised December 1999).
de Smith, Stanley A. Judicial Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell. London: Sweet & Maxwell, 1995.
Jones, David Phillip. Principles of Administrative Law, 3rd ed. By D. P. Jones and Anne S. de Villars. Scarborough, Ont.: Carswell, 1999.
Wade, Sir William. Administrative Law, 8th ed. By Sir William Wade and Christopher Forsyth. New York: Oxford University Press, 2000.
APPEAL from a judgment of the Federal Court of Appeal, [2000] 3 F.C. 589, 187 D.L.R. (4th) 675, 256 N.R. 278, 6 C.P.R. (4th) 289, [2000] F.C.J. No. 779 (QL), upholding the decisions of Simpson J. (1994), 22 C.R.R. (2d) 324, 80 F.T.R. 81, [1994] F.C.J. No. 789 (QL), and [1996] 3 F.C. 134, 113 F.T.R. 13, 136 D.L.R. (4th) 74, [1996] F.C.J. No. 748 (QL), affirming the constitutionality of s. 51 of the Privacy Act . Appeal allowed in part.
CROSS‑APPEAL from a judgment of the Federal Court of Appeal, [2000] 3 F.C. 589, 187 D.L.R. (4th) 675, 256 N.R. 278, 6 C.P.R. (4th) 289, [2000] F.C.J. No. 779 (QL), reversing the decision of MacKay J., [1998] 2 F.C. 351, 140 F.T.R. 42, 11 Admin. L.R. (3d) 132, [1997] F.C.J. No. 1750 (QL), regarding the interpretation of s. 22(1) (b) of the Privacy Act . Cross‑appeal allowed.
Marlys A. Edwardh and Breese Davies, for the appellant.
Barbara A. McIsaac, Q.C., Gregorios S. Tzemenakis and Christopher Rupar, for the respondent.
Dougald E. Brown and Steven J. Welchner, for the intervener the Privacy Commissioner of Canada.
Robert Lavigne, on his own behalf.
The judgment of the Court was delivered by
1 Arbour J. — This appeal involves a constitutional challenge to a procedural section of the Privacy Act, R.S.C. 1985, c. P-21 , that provides for mandatory in camera and ex parte proceedings where the government denies an applicant’s request for access to personal information on the grounds of national security or the maintenance of foreign confidences. Specifically, the issue is whether ss. 51(2)(a) and 51(3) of the Act infringe or deny the appellant’s rights and freedoms as guaranteed in ss. 2 (b) and 7 of the Canadian Charter of Rights and Freedoms .
2 The constitutional challenge in this case is in fact very narrow. For the purposes of this appeal, the appellant does not challenge the right of a government institution to refuse to confirm or deny the existence of personal information. Nor does the appellant challenge the right of a government institution to refuse to disclose information on the basis of the exemptions enumerated in the Act. The appellant only attacks the procedural requirement under the Act that in certain narrow circumstances it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera and to accept ex parte submissions at the request of the government institution refusing disclosure. To be clear, the appellant only challenges the mandatory nature of this provision and not the discretionary regime that applies for all other exemptions allowing a reviewing court to order a hearing in camera and accept ex parte submissions.
3 For reasons that I will expand upon below, I conclude that it is constitutional, within this statutory scheme, for the Privacy Act to require a reviewing court to accept submissions ex parte from the government institution refusing disclosure. However, the in camera requirement found in s. 51(2) (a) is overly broad. The provision must be read down to require only the ex parte submissions to be held in camera, with the reviewing court’s retaining the discretion to order the hearing or portions thereof in camera.
I. Legislative Scheme
4 An understanding of the legislative framework of the Privacy Act is essential in order to understand this case. I have reproduced all the relevant provisions of the Act as an Appendix to these reasons. I will cite them as necessary in the course of my analysis.
5 First, a brief overview of the Act. Persons have a right to access personal information held about them by a government institution by virtue of s. 12 of the Act. A government institution may refuse to disclose personal information if able to claim one of the exemptions contained in ss. 19 through 28, inclusive. Section 19 is a mandatory exemption. A government institution shall refuse to disclose personal information requested under s. 12(1) 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 or makes the information public. This exemption is commonly referred to as the “foreign confidences” exemption. Section 21 is a discretionary exemption. A government institution may refuse to disclose any personal information requested under s. 12(1) if such disclosure can reasonably be expected to be injurious to “the conduct of international affairs, the defence of Canada or any state allied or associated with Canada . . . or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities”. This exemption is commonly referred to as the “national security” exemption.
6 The Act provides for two levels of independent review when a government institution refuses a request for access to personal information: the Privacy Commissioner and the Federal Court of Canada. The Privacy Commissioner has broad powers to carry out investigations. Upon completing an investigation, if the Privacy Commissioner finds that the complaint is well-founded, the Commissioner may recommend that the information be disclosed. The Commissioner does not, however, have the power to compel disclosure. Where the Privacy Commissioner has completed an investigation and a government institution continues to refuse to disclose the personal information, the individual who has been refused access may apply to the Federal Court for judicial review of the refusal. Pursuant to s. 46(1), the reviewing judge must take every reasonable precaution to avoid the disclosure of information that, in the end, may be found to be appropriately withheld. Accordingly, s. 46(1) gives the reviewing judge the discretion to receive representations ex parte and to conduct hearings in camera.
7 Section 51 changes the discretionary regime of s. 46 to a mandatory one in circumstances where a government institution has claimed an exemption under s. 19(1)(a) or (b) or s. 21 (the “foreign confidences” and the “national security” exemptions). When an exemption has been claimed under these provisions, s. 51(2) (a) mandates that the Federal Court hear the judicial review application or an appeal therefrom in camera. Section 51(3) provides that on the request of the head of the government institution that has refused access to material on the basis of one of these provisions, the court must receive submissions from the government institution on an ex parte basis.
II. Facts
8 The analysis and outcome of this case do not turn on the facts. However, the facts are useful in order to understand the history of this particular litigation and also as an example of access to information litigation in general.
9 On March 22, 1988 the appellant, Clayton Ruby, requested access to personal information held in personal information bank SIS/P-PU-010 (“Bank 010”) maintained by the Canadian Security Intelligence Service (“CSIS”). The request was made pursuant to s. 12(1)(a) of the Act. The request to CSIS was only one of a number of access to information requests made by the appellant to the Royal Canadian Mounted Police (“RCMP”) and the Department of External Affairs. Only CSIS named ss. 19 and 21 as exemptions and therefore the constitutional challenge to s. 51 involves only the request to CSIS. In the original application the respondent filed an affidavit of Robert Ian MacEwan, Director General, Counter Terrorism, CSIS. In order to describe the information contained in Bank 010, the affidavit reproduced the Personal Information Index published in 1987 in accordance with s. 11 of the Act:
This bank contains information on individuals whose activities may, on reasonable grounds, be suspected of directly relating to espionage or sabotage that is against or is detrimental to the interests of Canada; or, activities directed toward or in support of such activity; foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada, and are clandestine or deceptive, or involve a threat to any person; activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state; and, activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. This bank may also contain personal information that, in relation to the defence of Canada or to the conduct of the international affairs of Canada, pertains to the capabilities, intentions; or activities of any foreign state or group of foreign states; of any person other than a Canadian citizen or permanent resident; or, any corporation except one incorporated pursuant to the laws of Canada or of any province. Information is also held in respect to CSIS providing advice relating to the Citizenship or Immigration Acts.
10 Although the appellant’s access request was with respect to personal information contained in Bank 010, CSIS took the liberty of also searching personal information bank SIS/P-PU-015 (“Bank 015”). Bank 015 is described in the Personal Information Index published in 1987 as containing information similar in nature to that in Bank 010 but of a less current and less sensitive nature.
11 CSIS responded to the appellant’s request by letter dated August 12, 1988. With respect to Bank 010 CSIS would neither confirm nor deny the existence of information but if such information did exist CSIS refused to disclose the information claiming the exemptions in ss. 19, 21, 22, and 26 of the Act. With respect to information in Bank 015, CSIS disclosed 41 pages, portions of which were excised and claimed as exempt under ss. 21 and 26 . CSIS disclosed a further 71 pages from a different source, or portions therefrom, claiming exemptions under s. 21 of the Act for the excised portions.
12 The appellant filed a complaint with the federal Privacy Commissioner pursuant to s. 29 of the Act regarding the refusal of CSIS to disclose information in Banks 010 and 015. Subsequent to the complaint the appellant was informed by CSIS that two more documents containing personal information about him existed in Bank 015 but were being claimed as exempt pursuant to ss. 19 , 21 , 22(1) (a)(iii), 22(1) (b) and 26 . CSIS later amended the exemption to s. 22(1) (a)(ii) as opposed to s. 22(1) (a)(iii). As a result of the investigations by the Privacy Commissioner, CSIS disclosed an additional four pages, portions of which were excised claiming exemptions under ss. 21 and 26 of the Act.
13 The Acting Privacy Commissioner conducted an investigation and concluded that CSIS’s refusal to neither confirm or deny the existence of information in Bank 010 was within the requirements of s. 16(2) of the Act and thus the complaint in regard to this refusal was not well-founded. In regards to the exemptions claimed in respect of information held in Bank 015, the Privacy Commissioner concluded that, with the exception of two documents, the undisclosed material was properly exempted under the Act. The Privacy Commissioner asked the Solicitor General to disclose two documents but the request was refused. The Commissioner informed the appellant that this was the first case in which a Minister had refused to accept a recommendation that information be disclosed. The documents were subsequently disclosed, with portions excised, after the judicial review proceeding was initiated.
14 Three years after the original access request, the appellant filed an application in the Federal Court, Trial Division under s. 41 of the Act for a review of CSIS’s refusal to disclose the information. Section 41 provides that where a person has requested access to information, has been denied, and has filed a complaint with the Privacy Commissioner, he or she may then apply to the Federal Court for a judicial review of the refusal.
15 CSIS released additional documents to the appellant in July 1992. CSIS disclosed 211 pages, portions of which were excised claiming exemptions under ss. 19, 21, 22(1)(a), 22(1)(b) and 26 of the Act. CSIS maintains its position of non-disclosure with respect to all documents contained in Bank 010 and the remainder of documents in Bank 015, including the excised portions therefrom, based on disclosure exemptions in ss. 19, 21, 22 and 26 of the Act.
16 Prior to the commencement of the judicial review hearing, the appellant filed notice of intent to challenge the s. 51 mandatory procedure provision under ss. 7 , 8 and 2 (b) of the Charter .
17 In the application, CSIS submitted a secret affidavit of an officer of CSIS, filed on order of the court. The affidavit informed the court whether personal information about the appellant existed in Bank 010 and if it did exist, the documents were provided with an explanation of the claimed exemptions for examination by the court. The undisclosed information that was contained in Bank 015 was also provided for examination by the court with an explanation of the exemption claimed.
18 Both the Trial Division and appellate level of the Federal Court ruled that s. 51(2) (a) and (3) violated s. 2 (b) of the Charter but that they were saved by s. 1 . Both levels of the Federal Court also found that the mandatory procedure in s. 51 did not violate s. 7 , however they differed with respect to their characterizations of a right to privacy under s. 7 .
19 The appellant appeals to this Court on the issues as to whether s. 7 of the Charter is engaged by s. 51(3) , whether the violation of s. 2 (b) is justifiable under s. 1 and costs. The Solicitor General cross-appeals on an issue of interpretation of s. 22(1)(b) of the Act and whether “injury” contemplated in that section is restricted to injury to current ongoing or identifiable prospective investigations.
III. Judgments Below
20 The constitutional validity of s. 51 and the merits of the exemptions claimed by CSIS were determined separately in the Federal Court, Trial Division. The Court of Appeal consolidated the appeals on the constitutional question and the merits of the exemptions.
A. Federal Court, Trial Division (1994), 80 F.T.R. 81 and [1996] 3 F.C. 134
21 Simpson J. ruled in the preliminary proceeding on the constitutional validity of s. 51. She held that any privacy rights protected by the Charter were not engaged by s. 51 . She did, however, find that s. 51 was contrary to s. 2 (b) of the Charter but that such violation was saved by s. 1 .
B. Federal Court of Appeal, [2000] 3 F.C. 589
22 The Federal Court of Appeal held that the mandatory in camera and ex parte provisions did not engage the liberty interest enshrined in s. 7 . The court agreed with the decision of Simpson J. that the provisions are procedural in nature and do not interfere with the right of access granted by the Privacy Act . The Solicitor General did not appeal Simpson J.’s finding that the mandatory provisions in s. 51 violate s. 2 (b). The Court of Appeal held that the provisions were saved by s. 1 .
IV. Constitutional Questions
23 The following constitutional questions were stated by Order of this Court on June 21, 2001:
1. Do ss. 51(2)(a) and 51(3) of the Privacy Act, R.S.C. 1985, c. P-21 , as amended, infringe or deny the appellant’s rights or freedoms guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms ?
2. If the answer to Question 1 is in the affirmative, are ss. 51(2) (a) and 51(3) of the Privacy Act reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
3. Does s. 51(3) of the Privacy Act infringe or deny the appellant’s rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?
4. If the answer to Question 3 is in the affirmative, is s. 51(3) of the Privacy Act a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
V. Analysis
24 It is important to clarify at the outset the meaning and effect of the mandatory in camera and ex parte provisions. Section 51 reads:
51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21 . . . shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications.
(2) An application referred to in subsection (1) or an appeal brought in respect of such application shall
(a) be heard in camera; and
(b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act .
(3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte.
Section 51 requires a court, in an application for judicial review brought under s. 41 of the Act, to hear the application or any appeal therefrom in camera. Simpson J., in her s.1 analysis, noted that there was a judicial practice of reading down s. 51 as requiring only those portions of the hearing in which the ex parte submissions are received to be in camera. I will discuss this practice later in my reasons. Suffice it to say, at this point, however, that such an interpretation cannot be reasonably supported on a plain reading of the Act. The provision is clear that the entire hearing and any appeal therefrom, are to be held in camera.
25 Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party: Attorney General of Manitoba v. National Energy Board, [1974] 2 F.C. 502 (T.D.). The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given. For instance, temporary injunctions are often issued ex parte in order to preserve the status quo for a short period of time before both parties can be heard (to prevent the demolition of a building, for example).
26 Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., [1994] 5 W.W.R. 337 (Alta. Q.B.), at para. 10, aff’d [1997] 6 W.W.R. 715 (Alta. C.A.), aff’d (without reference to this point) [1999] 3 S.C.R. 408. On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera.
27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.
28 Section 51 of the Privacy Act contemplates the following: where a “foreign confidence” or “national security” exemption is claimed by a government institution, the hearing must be held in camera (s. 51(2) (a)). This means that the hearing is not open to the public but the applicant is not excluded and may participate. In the course of that in camera hearing, the government institution may request that the applicant be excluded and, in such a case, the court must hear the government ex parte (s. 51(3) ) (and, of course, still in camera). Therefore it is only through the operation of ss. 51(2) (a) and 51(3) together that the appellant is excluded from the proceeding.
29 Properly understood, the constitutional challenge on the basis of s. 7 relates essentially to the appellant’s exclusion from the hearing as a result of the operation of ss. 51(2) (a) and 51(3) together, resulting in portions of the government’s submissions being ex parte and in camera and therefore unavailable to the appellant. It is the exclusion of the appellant from portions of the government’s submissions that is alleged to be contrary to the principles of fundamental justice. As for the s. 2 (b) challenge, it relates to the statutory requirement that the entire hearing be in camera, inclusive of the ex parte submissions. It is the mandatory exclusion of the public and the media, (of which the appellant is a member) from the proceedings that the appellant alleges violates s. 2 (b) of the Charter .
A. Section 7
30 In addition to his claim under s. 7, the appellant also argued a violation of s. 8 of the Charter . The arguments presented under s. 8 are entirely subsumed under s. 7 and need not be addressed independently.
31 The appellant argues that the right to security of the person protected by s. 7 of the Charter protects the right to privacy in a biographical core of information to which an individual would wish to control access. This biographical core of information includes information which tends to reveal intimate details of lifestyle and individual personal or political choices. This right to privacy is said to include a concomitant right of access to personal information in the hands of government in order that an individual may know what information the government possesses. This, in turn, will ensure that government action in the collection of personal information can be scrutinized and inaccuracies in the information collected may be corrected. Any limit on this right to access must accord with the principles of fundamental justice. Following this argument, the appellant submits that the procedural provisions in s. 51 directly affect an individual’s ability to “control such information in the hands of the state” and for that reason the procedural unfairness created by s. 51 violates s. 7 of the Charter .
32 The Federal Court of Appeal, citing R. v. Dyment, [1988] 2 S.C.R. 417, R. v. Beare, [1988] 2 S.C.R. 387, B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, and R. v. O’Connor, [1995] 4 S.C.R. 411, observed that there is an emerging view that the liberty interest in s. 7 of the Charter protects an individual’s right to privacy. They accepted the appellant’s view that in order for the right to informational privacy to have any substantive meaning it must be concerned both with the acquisition and the subsequent use of personal information. Recognizing that one has a legitimate interest in ensuring that information has been properly collected and is being used for the proper purpose, the Court of Appeal held that the right to privacy includes the ability to control the dissemination of personal information obtained by the government. To this end the court stated (at para. 169):
In a case such as this where an individual may not be fully aware of the information collected and retained by the government, the ability to control the dissemination of personal information is dependent on a corollary right of access, if only to verify the information’s accuracy. In short a reasonable expectation of access is a corollary to the reasonable expectation of privacy.
33 In my view, it is unnecessary to the disposition of this case to decide whether a right to privacy comprising a corollary right of access to personal information triggers the application of s. 7 of the Charter . Assuming, for the purposes of this analysis, that the appellant has suffered a deprivation of his liberty or security of the person interest, that deprivation is not contrary to the principles of fundamental justice. In order to determine whether an alleged deprivation of the right to life, liberty and security of the person is or is not in accordance with the principles of fundamental justice, it is necessary to appreciate the exact nature of the deprivation. Here, without deciding if there is a deprivation of a liberty or security interest, we can take the alleged deprivation to be as stated by the appellant: he claims that he has a right to access personal information already in the hands of government in order to correct inaccurate information and ensure that the information was collected lawfully. He then asserts that this component of his liberty and security interest is infringed by the mandatory secrecy of some of the government’s submissions.
34 The appellant stresses that it is the mandatory nature of s. 51(3) that does not comply with the principles of fundamental justice. Because the provisions are mandatory, the court does not have the discretion to control what information should be provided to an applicant in order to enable him or her to challenge effectively the government’s refusal to disclose information and the legitimacy of the exemption claimed. The appellant submits that a provision permitting ex parte and in camera proceedings must contain a judicial discretion to provide the applicant with sufficient information in order to answer the government’s case effectively. This could be accomplished, the appellant submits, through the use of judicial summaries similar to those that are used in wiretap proceedings.
35 I agree with the view expressed by the Federal Court of Appeal that there is a disharmony between the appellant’s proposed solution of judicial summaries and the alleged Charter violation brought about by the mandatory ex parte submissions at the request of a government institution. Section 46 of the Act provides a court with the authority to receive representations ex parte and conduct hearings in camera in order to guard against the inadvertent disclosure of information the government institution may have legitimately refused to confirm exists, as well as information that may be found to be properly exempted:
46. (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act ; or
(b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists.
(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof.
When a court exercises its discretion un