Blank v. Canada (Minister of the Environment)

Blank v. Canada (Minister of the Environment)
Court (s) Database
Federal Court Decisions
Date
2006-10-19
Neutral citation
2006 FC 1253
File numbers
T-567-05
Decision Content
Date: 20061019
Docket: T-567-05
Citation: 2006 FC 1253
Ottawa, Ontario, this 19th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SHELDON BLANK
Applicant
and
THE MINISTER OF THE ENVIRONMENT
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 41 of the Access to Information Act, R.S.C. 1985, c.A-1(Act) for judicial review of the refusal by the Access to Information and Privacy Office of Environment Canada (ATIP-EC) to disclose certain records in response to the Applicant’s request for access under section 6 of the Act (Request for Access).
BACKGROUND
[2] The Applicant, Mr. Sheldon Blank, made his Request for Access on September 5, 2001. He sought the following:
All records not provided to me, from my prior ATIP request, being your file number A-2000-0091/lr. Also, please provide me with all new records from Garnet Murray’s file from the date of my previous request on June 20, 2000 to present.
For reference purposes I note that my prior ATIP request was for the “File of Garnet Murray as identified in the accompanying memorandum,” acknowledged received by your office on June 20, 2000.
[3] The Applicant’s “prior ATIP request” arose from the criminal prosecution of the Applicant and Gateway Industries Ltd. (a Winnipeg pulp and paper company of which the Applicant was a controlling Director) under the Fisheries Act, R.S.C., 1985, c. F-14 and the Pulp and Paper Effluent Regulations, SOR/92-269 in July 1995 (Prosecution). The Crown ultimately abandoned the Prosecution in February 2004, at which time the Applicant brought an action against the Crown for alleged fraud, conspiracy, perjury and abuse of prosecutorial powers. That action is ongoing. The Applicant seeks further access to government records for purposes of his civil law suit.
[4] Under cover letter to the Applicant dated October 29, 2001, ATIP-EC enclosed a “complete release package,” consisting of approximately 90 pages of material, in response to the Request for Access. ATIP-EC advised the Applicant that “some information has been withheld in accordance with section 23 of the Act,” and that he could file a complaint with the Office of the Information Commissioner of Canada (OIC) if he was not satisfied with ATIP-EC’s handling of the Request for Access.
[5] By letter dated November 5, 2001, the Applicant wrote to OIC requesting that it “investigate both the inappropriate withholding of documents exempted in the October 29th release, and for neither providing nor identifying records requested by me in this file” (Complaint).
[6] It appears that OIC did not initiate its investigation into the Complaint until October 2004. OIC explained the delay as follows in its report to the Applicant of February 15, 2005:
While it has taken an inordinate length of time to complete this investigation – which I regret – I can assure you that your complaint was not neglected. On the contrary, it was precisely because we wanted to ensure that you received all the information you are entitled to under the Act. As you are aware, over the years you submitted numerous requests at various departments. Occasionally, the information sought was similar and overlapped from one request to another. In other instances, the same pages existed in more than one file.
[7] Consultations between ATIP-EC and the Department of Justice led to the release of additional documents to the Applicant. Under cover letter to the Applicant dated January 31, 2005, ATIP-EC enclosed “additional information which can now be disclosed,” and advised that “some information remains withheld in accordance with sections 14 and 23, subsection 19(1) and paragraphs 16(1)(a), 16(1)(b), 16(1)(c), 20(1)(b), 20(1)(c), 21(1)(a), 21(1)(b), and 69(1)(g) of the Act.”
[8] By letter dated February 15, 2005, OIC wrote to the Applicant to report the results of its investigation into the Complaint. OIC expressed its view that records were properly withheld under subsection 19(1) and paragraphs 14(b), 16(1)(a), 16(1)(b), 16(1)(c), 20(1)(b), 20(1)(c), 21(1)(a) and 21(1)(b) of the Act. OIC indicated that its findings on the applicability of section 69 of the Act would be reported separately.
[9] OIC concluded that the Complaint was “well-founded with respect to some portions of the requested records” which were “not properly exempted under section 23 of the Act.” On the basis of that conclusion, OIC requested the Applicant’s consent to apply to this Court, pursuant to paragraph 42(1)(a) of the Act, for a review of ATIP-EC’s refusal to release the records in question. OIC also advised the Applicant of his right to apply to the Court independently pursuant to section 41 of the Act.
[10] The Applicant opted to carry the matter forward himself, and filed the present application in this Court on March 24, 2005.
[11] Under cover letter to the Applicant dated June 1, 2005, ATIP-EC enclosed “additional information which can now be disclosed to you.”
[12] During the course of the hearing for the present application that took four days of Court time, the parties refined even further the documents and information that remain undisclosed and in dispute. The Court requested and received a modified May 31, 2006 list of outstanding documents that the Respondent still refuses to disclose. At the final day of the hearing the Respondent informed the Court that the exemption claimed for document 5863 should be 21(a) and (b) of the Act, and not the section 23 exemption referred to in the attached list. Following the hearing, the Court’s own review of the listed documents revealed various discrepancies and problems associated with identifying a definitive list of documents in dispute. I have referred to those problems in Schedule “A” to these reasons and my own conclusions as to what remains in dispute.
[13] The Applicant takes the view not only that the documents in this list are unlawfully withheld, but also that the Respondent has yet to disclose a complete list of documents encompassed by the Request for Access. There are also attachments, enclosures, and identifying information related to the documents withheld that the Applicant says have been exempted in their entirety and have not been identified and /or severed in accordance with section 25 of the Act. The Applicant also raises a variety of other arguments to nullify the exemption claimed, all of which I have attempted to address in my reasons.
[14] Since the Court heard this matter in June, 2006, the Supreme Court of Canada has released its decision in Blank v. Canada (Minister of Justice) 2006 SCC 39, [2006] S.C.J. No. 39. I have taken that decision into account and, in particular, I have followed the guidance of the Supreme Court with regard to the issue of litigation privilege.
ISSUE
[15] The principal issue in this application is whether the claimed exemptions from disclosure are properly invoked. The Applicant also raises in a collateral way whether ATIP-EC has fully complied with his Request for Information.
SUBMISSIONS
The Applicant
[16] The Applicant points out that the Respondent bears the onus of demonstrating that the claimed exemptions from disclosure were properly invoked: see Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., (2004), 318 N.R. 242, 2004 FCA 99 at paragraph 19.
[17] The Applicant also repeats OIC’s conclusion that the Complaint was “well-founded” but he neglects to add that this was only with respect to only some portions of the requested records which were not properly exempted under section 23 of the Act.
[18] With reference to the long and harrowing background to this application, the Applicant also raises a range of considerations that he says nullify reliance upon exemptions that might otherwise apply. Those considerations include such matters as waiver and the illegal and otherwise inappropriate actions of various individuals and government departments involved in the Prosecution, as well as the investigation and preparation that led to the Prosecution.
[19] Many of the issues and arguments raised by the Applicant are complex. Unfortunately, the Applicant is not a lawyer and he represented himself throughout in the application before me. This meant that some of the points he made were not adequately supported by sufficient evidence, full argument or legal authority. The Applicant is obviously deeply resentful and suspicious of the Prosecution that was conducted against him and Gateway for many years and was then abandoned. He may be entirely right in this regard, but at this stage he appears to assume that the Court can and should merely adopt his view of the whole saga. However, as the Applicant has already been told by the Federal Court of Appeal, “in considering whether appropriate disclosure had (sic) been made under the Act, the Court should consider only the Act and the jurisprudence guiding its interpretation and application.” See Blank v. Canada (Minister of Justice), [2005] 1 F.C. 4031, 2004 FCA 287 at para. 14, aff’d 2006 SCC 39 (Blank Appeal A).
The Respondent
[20] The Respondent submits that the claimed exemptions under the Act were properly invoked and that no further severance of information can reasonably be accomplished.
[21] The Respondent repeats OIC’s agreement with ATIP-EC’s reliance on the exemptions provided for in sections 14, 16, 19, 20 and 21 of the Act, and with its reliance on section 23 with respect to the “majority of the information that remains withheld under this section.”
[22] The Respondent says that it cannot be held responsible for delays that have occurred during the course of the Applicant’s quest for information and documents related to the Prosecution, or for the actions of other government departments and individuals involved in the long history of this matter.
[23] The Respondent also says that the Applicant has produced no evidence to suggest wrong-doing by government officials or anything else that might vitiate the exemptions claimed for the remaining documents in dispute.
ANALYSIS
Standard of Review
[24] As Justice Strayer explained in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, 6 Admin L.R. (2d) 54, aff’d (1993), 154 N.R. 319 (F.C.A.) a determination to either release or refuse to release information pursuant to a discretionary exemption in the Act involves two steps:
…first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.
[25] The standards of review applicable in the case at bar were set out by the Federal Court of Appeal in 3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421, 2001 FCA 421 at para. 47, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 537, (per Justice Evans):
In reviewing the refusal of a head of a government institution to disclose a record, the Court must determine on a standard of correctness whether the record requested falls within an exemption. However, when the Act confers on the head of a government institution a discretion to refuse to disclose an exempted record, the lawfulness of its exercise is reviewed on the grounds normally available in administrative law for the review of administrative discretion, including unreasonbleness. […]
[26] Following the decision in 3430901 Canada Inc., in Thurlow v. Canada (Solicitor General), 2003 FC 1414 at para. 28, Justice O’Keefe applied a pragmatic and functional analysis and concluded that a decision as to whether a requested document falls within a statutory exemption should be reviewed on a standard of correctness, and the discretionary decision to refuse to disclose an exempted record should be reviewed on a standard of reasonableness simpliciter. Justice O’Keefe’s decision was followed by Justice Tremblay-Lamer in the recent decision Samir Elomari v. President de L’Agence Spatiale Canadienne, 2006 CF 863 at para. 21.
[27] With respect to the degree of deference to which OIC’s conclusions are entitled, the Federal Court of Appeal noted in Blank v. Canada (Minister of Justice), (2005), 344 N.R. 184, 2005 FCA 405 (Blank Appeal B) at para. 12 (per Justice Rothstein) as follows:
It has been held that the considered opinion of the Information Commissioner should not be ignored by the Court (see Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), at 272 per Heald J.A.) and that the Information Commissioner has expertise not possessed by the Court with respect to access to information (see Canada (Information Commissioner)(Can.) v. Prime Minister (Can.), (T.D.) [1993] 1 F.C. 427; 57 F.T.R. 180 (T.D.) at 499 (T.D.)…
[28] Justice Evans in 3430901 Canada Inc., above at para. 42, noted that the Court should carefully consider the Information Commissioner’s reports, but also noted as follows:
…the Court is entitled to differ from the Commissioner on questions of law, and of mixed law and fact, without having first to satisfy itself that the Commissioner’s conclusion was unreasonable: the Court is charged with reviewing refusals by heads of government institutions, not the Commissioner’s recommendations.
General Principles
[29] Before embarking upon an analysis of the specific exemptions claimed under the Act and the objections to their applicability raised by the Applicant, there are certain general interpretive principles that have to be kept in mind.
[30] First of all, the Act must be interpreted in the light of the fundamental principle that government information should be available to the public, and that exceptions to the public’s right of access should be “limited and specific”: see subsection 2(1) of the Act and Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 at 60, 87 N.R. 81 (F.C.A.).
[31] Secondly, public access to government information should not be frustrated by the courts except upon the clearest of grounds. Any doubt should be resolved in favour of disclosure, with the burden of persuasion resting upon the party resisting disclosure: see Maislin Industries Limited v. Minister for Industry, Trade and Commerce, [1984] 1 F.C. 939 at 943, 10 D.L.R. (4th) 417 (F.C.T.D.).
[32] Thirdly, although the Act creates a right of access, that right is not absolute. It must be examined in light of other provisions of the Act and the specific exemptions claimed: see Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 at 712, 167 N.R. 43 (F.C.A.), aff’d, [1996] S.C.J. No. 4 (S.C.C.).
Special Matters Raised By the Applicant
[33] A review of the documentation withheld in this case is complicated by special considerations raised by the Applicant. He says that the Respondent cannot rely upon the claimed exemption for one or more of the following reasons:
a. Severance
The Respondent is required to comply with its severance obligations as directed by the Federal Court of Appeal in Blank Appeal A. This means that the Respondent must sever and provide general identifying information such as: the description of the document; the name, title and address of the person to whom the communication was directed; the closing words of the communication and the signature block. Justice Létourneau referred to the earlier Federal Court of Appeal decision in Blank v. Canada (The Minister of the Environment), [2001] F.C.J. No. 1844, 2001 FCA 374 (Blank Appeal C) at para. 23. In that decision, Justice Sharlow held this kind of information must be disclosed so that the Applicant can know “that a communication occurred between certain persons at a certain time on a certain subject, but no more.” (para. 66) The Applicant says that proper severance has not occurred in this case and the Court must now review each of the documents in dispute to ensure that it does.
The Respondent points out that general identifying information should be severed and released except where to do so would reveal the privileged information. See Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 at 271, 86 N.R. 186 (F.C.A.) and Blank Appeal A, above. The Respondent also says that severance is not reasonable where what remains of the document is meaningless or misleading because the remaining information is taken out of the context of the document as a whole. See Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 at 558, 559, 20 F.T.R. 314 (F.C.T.D.) and Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), [1989] 2 F.C. 480 at 488, 24 F.T.R. 62 (F.C.T.D.)
As regards the documents in dispute in this case, the Respondent says that appropriate severance has occurred and the Applicant has, in fact, received all the information he is entitled to without revealing privileged information.
The Federal Court of Appeal has already provided clear guidance on severance in Blank Appeal A, above at paras. 66-67:
An earlier contention of the respondent that a record that is subject to solicitor-client privilege is not subject to the severance provision in section 25 has been unequivocally rejected by this Court in Blank v. Canada (Minister of the Environment) (2001), 41 C.E.L.R. (N.S.) 59 (F.C.A.) at paragraph 13: see also College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), [2003] 2 N.W.R. 279 (B.C.C.A.), 665, at paragraphs 65-68. The words “[n]otwithstanding any other provision of this Act” employed in section 25 make it a paramount section: see Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) at page 271. Therefore, general identifying information such as the description of the document, the name, title and address of the person to whom the communication was directed, the closing words of the communication and the signature block can be severed and disclosed. As this Court pointed out in Blank at paragraph 23, this kind of information enables the requester “to know that a communication occurred between certain persons at a certain time on a certain subject, but no more.”
Counsel for the respondent submits that his client has abided by these principles in this case and that the records in question have properly been severed. The appellant’s argument appears to have been raised for the first time before us on appeal. If it was raised before the Motions Judge, he never dealt with it. We have no way of knowing whether severance has been effected and, if so, whether it has been effected properly. Therefore, I would send the matter back to the Federal Court for a review of the records with a view to ascertaining whether the mandatory requirements of section 25 of the Act have been complied with.
Following the decision of the Federal Court of Appeal, Justice Mosley considered severance in Blank v. Canada (Minister of Justice) 2005 FC 1551. Justice Mosley at para. 33 relied on the reasons of Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), cited above, at paragraphs 14 and 15, which suggest that there are two problems with surgically separating disconnected phrases that do not contain exempt information from a document:
First, the resulting document may be meaningless or misleading as the information it contains is taken totally out of context. Second, even if not technically exempt, the remaining information may provide clues to the content of the deleted portions. Especially when dealing with personal information, in my opinion, it is preferable to delete an entire passage in order to protect the privacy of the individual rather than disclosing certain non-exempt words or phrases.
Indeed, Parliament seems to have intended that severance of exempt and non-exempt portions be attempted only when the result is a reasonable fulfillment of the purposes of these statues […]
Justice Mosley concluded at paragraph 36 as follows:
From these cases, I would derive and apply the principle that severance within a document under section 25 is only to be affected where it is reasonable to do so. Reasonableness requires that the severed information be capable of standing independently and that severance must not result in the release of meaningless words and phrases out of context or provide clues to the content of the exempted portions. Severance must be done bearing in mind the importance of impairing solicitor-client privilege as little as possible.
At paragraph 39, Justice Mosley also held as follows:
[…] It would appear from the case law that any information, including a list of other documents, which can reasonably be severed from the privileged communication, should be severed under section 25 of the Act… If solicitor-client privilege is claimed for one or more of the listed documents, disclosure of the list should not compromise the privilege claimed in that document.
Justice O’Keefe also considered the issue of severance in Blank v. Canada (Minister of Justice) 2006 FC 841, and accepted the conclusions of Justice Mosley set out above.
In my view, the general principle articulated by the jurisprudence is that any non-privileged information contained in a privileged document should be severed and disclosed except to the extent that such information would be so disjointed as to be nonsensical once severed, or to the extent that the severed information would provide clues about the privileged information.
So the obligations of the Court on this issue are to examine each of documents in dispute to determine whether, in fact, full and appropriate severance has been exercised in each case in accordance with the principles set out above. That is what I have done.
b. Waiver
The Applicant is of the view that the Respondent has waived its right to claim solicitor client privilege. He says that there can be waiver by “implication,” by which he appears to mean that waiver may occur even in the absence of any intention to waive the privilege. This can occur, for example, if the Respondent has taken positions which make it inconsistent to maintain the privilege. The Applicant is self-represented and he has not explained clearly in his materials or his oral presentation how waiver by implication may have occurred in the present case. I have reviewed each of the examples contained in the excerpts from Sopinka, Lederman and Bryants’ The Law of Evidence in Canada which he filed as part of his record for this application, but I cannot connect any of the examples given with the facts as presented in the evidence before me. I have to conclude, therefore, that no adequate evidentiary or legal basis for waiver has been presented by the Applicant.
c. Litigation Privilege
The Applicant points out that there are two branches of solicitor and client privilege: legal advice privilege and litigation privilege. He says that litigation privilege ends with the litigation to which it relates.
The decision in Blank Appeal A was appealed to the Supreme Court of Canada, which rendered its decision on September 8, 2006 in Blank v. Canada (Minister of Justice), 2006 SCC 39 (Blank Supreme Court Appeal). The majority decision was written by Justice Fish, who affirmed both of these principles (see paras. 4, 34).
In the present case, the Applicant says that the litigation for which the disputed documentation was prepared ended when the summary proceedings against the Applicant and his company were declared a nullity by Justice Kennedy in April, 2001, or at least in February 2004, when the Crown made its decision to stay the indictable proceedings. The Supreme Court explored the scope of litigation privilege and further affirmed at paragraph 34 the majority decision of the Federal Court of Appeal that litigation privilege continues to apply to protect information from disclosure in “related proceedings.” However, Justice Fish conclusively determined at paragraph 43 that the Applicant’s civil proceedings do not constitute related proceedings, but rather are separate and distinct from the criminal prosecution. For that reason, any litigation privilege attaching to the documents from the criminal prosecution expired when the criminal prosecution ended.
The Respondent’s position is that the Federal Court of Appeal confirmed in Blank Appeal A, above, that the section 23 exemption applies to both legal advice privilege and litigation privilege, which, as stated above, was affirmed by the Supreme Court in the Blank Supreme Court Appeal at paragraph 4. The Respondent argues that the documents for which it claims the s. 23 exemption clearly either deal with advice provided by legal officers of the Crown or fall within the definition of litigation privilege accepted by the Court of Appeal. Given the decision of the Supreme Court in the Blank Supreme Court Appeal, this latter argument no longer needs to be considered. I have followed the Supreme Court of Canada decision on the issue of litigation privilege.
d. Piercing the Veil
The Applicant argues that solicitor-client privilege cannot be invoked for the purpose of assisting a person in the furtherance of a crime, and alleges that the Respondent either has committed, or intended to commit, actions that are criminal in nature.
The Applicant cites Solasky v. Canada, [1980] 1 S.C.R. 821 at 835 - 836, 105 D.L.R. (3d) 745 for the proposition that “if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant.” The rationale for this position is that a “communication in furtherance of a criminal purpose does not occur ‘in the ordinary scope of professional employ’”. See R. v. Cox and Railton (1884), 14 Q.B.D. 153 at 167.
On the present facts, the Applicant says that the Court must ask itself whether there is “something to give colour to the charge” in accordance with the approach taken in K-West Estates Ltd. v. Limemayr, [1984] 4 W.W.R. 375, 54 B.C.L.R. 60, (B.C.S.C.).
The Respondent agrees that solicitor/client privilege cannot protect communications that are themselves criminal or are made with a view to obtaining legal advice to facilitate the commission of a crime. The Respondent, however, also points out that the suggestion of criminal or fraudulent activity is a serious allegation and requires an evidentiary foundation.
The Applicant has raised two concerns with respect to the Crown’s conduct during the criminal prosecution. First, that the Crown unlawfully prosecuted the Applicant and his company. Second, the Crown failed to provide proper disclosure during the criminal proceedings. The Applicant has not further clarified these allegations, or presented convincing arguments on the issue of whether the Respondent’s conduct was of a criminal nature.
During the Prosecution, the Applicant brought a motion for certiorari and prohibition. The Court decided that motion was premature on the basis that the Crown asserted that it was in a position to produce a minister’s certificate; the Crown later acknowledged that a minister’s certificate would not be available. The motion was ultimately re-heard, and the Court determined that the entire proceeding was a nullity, and that ministerial awareness was a judicial pre-requisite.
In separate proceedings, the Applicant has brought an action against the Crown alleging fraud, conspiracy, perjury and abuse of prosecutorial powers.
On the present facts, the Respondent says the Applicant has failed to establish any evidentiary basis for criminal or fraudulent conduct on the part of the various government officers involved. He has merely made allegations. In Blank Appeal A, the Federal Court of Appeal had the following to say about the criminal allegations made by the Applicant at that time at paras. 63 - 64:
The Motions Judge reviewed the material before him and concluded that there was on these records no evidence of the criminal activity alleged by Mr. Blank against the Government of Canada officials and counsel acting on their behalf, i.e. obstruction, perjury, extortion, conspiracy, fraud or trespass. In other proceedings before the Manitoba Courts, the Manitoba Queen’s Bench found no evidence of the alleged fraud: see R. v. Gateway Industries Ltd., [2003] 2 W.W.R. 671, at paragraph 32.
No serious evidentiary basis has been provided to us in support of the allegations of fraud and criminal activity on the part of the Government of Canada or its officials or lawyers. Therefore, there was for the Motions Judge, and there is for us, no need to review the documents subject to the privilege. However, since the Motions Judge has reviewed them and made a conclusion which is under attack, we have reviewed the records and we are satisfied that he has reached the right conclusion.
Likewise, the Applicant in this application has not provided the Court with any evidentiary basis for the criminal allegations he makes. The Court understands that he feels aggrieved by the Prosecution that was eventually abandoned after so many years and that he harbours deep suspicions about certain aspects of the investigation and prosecution process.
To the extent that this argument relates to the failure of the Respondent to provide adequate disclosure during the criminal proceedings, I note that the right to adequate disclosure is protected by section 7 of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982, (U.K.), 1982, c. 11 (Charter) in criminal proceedings based on a defendant’s right to make a full answer and defence. Inadequate disclosure may be improper, and may be a breach of a defendant’s Charter rights, but is not specifically criminal conduct. I would also refer the Applicant to the comments of Justice Sharlow in Blank v. Canada (Minister of the Environment) (2001), 281 N.R. 388, 2001 FCA 374 at paragraphs 11 and 12:
The disclosure right recognized in Stinchcombe is critically important to persons facing a criminal trial, but it is a right that must be administered by courts having jurisdiction in criminal proceedings. To try to apply the Stinchcombe rules in the context of proceedings under the Access to Information Act would be to invite the Information Commissioner, and ultimately this Court, to try to anticipate decisions that ought to be made, or to review decisions that have already been made, by a criminal court. In this case, for example, a Manitoba trial judge has already ruled on certain motions relating to Stinchcombe disclosures.
I conclude that in determining whether the appropriate disclosures have been made under the Access to Information Act, the Court should consider only the Act and the jurisprudence guiding its interpretation and application. Laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Access to Information Act.
I have followed the guidance of Justice Sharlow in the present application.
e. Mr. Murray’s Position
As well as saying that the documents in dispute should have been disclosed by the Respondent in accordance with R. v. Stinchcombe, [1991] 3 SCR 326, 130 N.R. 277 as part of the Prosecution against the Applicant and his company, the Applicant raises an additional argument to avoid the consequences of Justice Sharlow’s reasons referred to above. The Applicant takes particular issue with the conduct of Mr. Garnet Murray of Environment Canada who guided the investigation and gathered evidence to be used in the Prosecution. The Applicant points to various matters handled by Mr. Murray (ministerial awareness, lack of disclosure, dishonesty in dealing with the Applicant, illegally obtaining a search warrant) that he alleges were dishonest and even criminal in nature. His concern is that now, as part of the Applicant’s efforts to secure disclosure under the Act, Mr. Murray is the one who is making the decisions as to what should be disclosed from his own files, and Mr. Murray has a vested interest in ensuring that his own conduct is not brought out into the light of day.
This is not the first time the Applicant has raised these arguments in court proceedings. As discussed by the Federal Court of Appeal in Blank Appeal A, at paragraph 14, when he appeared in the Federal Court of Appeal on the refusal by the federal information commissioner to order the release of certain documents under the control of the Minister of the Environment (in Blank Appeal C), he was told the following by the Court in its reasons:
Subsequently, in a case involving the appellant, Blank v.Canada (Minister of the Environment) (2001), 41 C.E.L.R. (N.S.) 59 (F.C.A.), Sharlow J.A. rejected a contention by the appellant that the material that should have been disclosed in his criminal trial pursuant to the Stinchcombe principles (R. v. Stinchcombe, [1991] 3 S.C.R. 326) should now be disclosed under the Act. She reasserted for the Court, at paragraph 12, that in considering whether appropriate disclosure had been made under the Act, the Court should consider only the Act and the jurisprudence guiding its interpretation and application. “Laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Act.”
I do not have clear evidence before me concerning what the Applicant did or did not receive as part of the Prosecution process, or why disclosure in those proceedings was not handled as part of those proceedings. The Applicant says he was kept in the dark about what was happening during the Prosecution. However, I believe the Federal Court of Appeal has made it clear that I should consider “only the Act and the jurisprudence guiding its interpretation and application.” (Blank Appeal A at para. 14, referring to Justice Sharlow’s decision in Blank Appeal C) Likewise, as regards Mr. Murray’s conduct in disclosing the contents of his own files, I have no evidence before me to suggest that he is dishonestly withholding information in order to shield his own past misconduct.
f. The Shelley Emmerson Affidavit
With respect to the affidavit of Shelley Emmerson sworn on June 2, 2005 (the Emmerson Affidavit), the Applicant asserts that it is inconsistent for the Respondent to maintain privilege in relation to documents that were not the subject of the Request for Access.
The Respondent brought a motion in writing on June 14, 2005 for an order allowing it to file the Emmerson Affidavit confidentially. There were three types of document appended to, or discussed within, the Emmerson Affidavit: communications between the Information Commissioner and the Respondent relating to the Information Commissioner’s investigation; documents that the Applicant is seeking access to, which the Respondent claims are subject to solicitor-client privilege; and other records which the Applicant is seeking. The Applicant’s argument appears to relate to the first type of document: communications between the Information Commissioner and the Respondent relating to the Information Commissioner’s investigation.
The Respondent sought to protect these documents on the basis that section 35 of the Act mandates that every investigation by the Information Commissioner be conducted in private. The Respondent also relies on section 47 of the Act. The Applicant consented, albeit reluctantly, to the Respondent’s motion on the condition that the judge hearing the present application would be able to decide whether the information contained in the Emmerson Affidavit should continue to be confidential. The Applicant also noted that at that time a decision from the Federal Court of Appeal was pending in Blank Appeal B, above, which might have some bearing on the situation.
Subsequent to the decision of Prothonotary Tabib on the Respondent’s motion, the decision of the Federal Court of Appeal in Blank Appeal B was released. This dealt with applications brought by the Applicant under section 41; the Applicant was seeking disclosure of those portions of the Respondent’s affidavits that were not specifically the subject matter of the section 41 applications, including documents relating to the Information Commissioner’s investigation.
Justice Rothstein, writing for the Court, held that section 35 of the Act imposes an obligation of confidentiality on the Information Commissioner, but does not prevent the government from making its exchanges with the Information Commissioner public should it choose to do so. Noting the public interest in open court proceedings, Justice Rothstein held that the Minister may file material pertaining to the investigation by the Information Commissioner, but that section 35 will not entitle him to have that evidence treated as confidential. If the Minister wishes to have that evidence treated as confidential, section 47 and rules 151 and 152 will apply. (paras. 14-17)
Subsection 47(1) of the Act provides as follows:
47. (1) In any proceedings before the Court arising from an application under section 41, 42 or 44, 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 on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Act, does not indicate whether it exists.
47. (1) À l’occasion des procédures relatives aux recours prévus aux articles 41, 42 et 44, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
a) des renseignements qui, par leur nature, justifient, en vertu de la présente loi, un refus de communication totale ou partielle d’un document;
b) des renseignements faisant état de l’existence d’un document que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’il existait ou non.
Rule 151 provides as follows:
151(1) On motion, the Court may order that material to be filed shall be treated as confidential.
(2) Before making an order under subsection (1), the court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
151(1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels.
(2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l'intérêt du public à la publicité des débats judiciaires.
Rule 152 sets out requirements for the filing of confidential material.
Justice Rothstein in Blank Appeal B at paragraph 18 stated that section 47
[…] is intended to protect against unintended disclosure until the Court makes a substantive ruling on the question of confidentiality. As such, the section must apply not only to the record that is the subject of the section 41 or 42 application but to other material or information which, if disclosed in the course of proceedings, would disclose some or all of the contents of the record itself.
It appears, therefore, that the only material in the communications between the Information Commissioner and the Respondent which should be treated as confidential is that material which would disclo