Lavigne v. Canada (Office of the Commissioner of Official Languages)

Lavigne v. Canada (Office of the Commissioner of Official Languages)
Collection
Supreme Court Judgments
Date
2002-06-20
Neutral citation
2002 SCC 53
Report
[2002] 2 SCR 773
Case number
28188
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
State
Notes
SCC Case Information: 28188
Decision Content
Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53
The Commissioner of Official Languages Appellant/Respondent on cross-appeal
v.
Robert Lavigne Respondent/Appellant on cross-appeal
and
The Privacy Commissioner of Canada Intervener
Indexed as: Lavigne v. Canada (Office of the Commissioner of Official Languages)
Neutral citation: 2002 SCC 53.
File No.: 28188.
2002: January 17; 2002: June 20.
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
Privacy – Access to personal information – Exceptions – Right of access under Privacy Act to information collected in private in investigation conducted under Official Languages Act – Commissioner of Official Languages disclosing to complainant only part of personal information concerning him obtained during investigation – Whether exception to right of access provided for in s. 22(1) (b) of Privacy Act applies to Commissioner’s investigations that have concluded – If so, whether Commissioner has established that disclosure of personal information requested could reasonably be expected to be injurious to conduct of investigations – Whether request for disclosure made under Privacy Act can cover information other than personal information – Privacy Act, R.S.C. 1985, c. P-21, ss. 12(1) , 22 , 47 – Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), ss. 60 , 72 , 73 .
Official languages – Complaints and investigations – Private nature of investigations conducted by Commissioner of Official Languages – Information obtained in investigations collected in private – Complainant making request under Privacy Act for disclosure of personal information collected in files on complaints he had made to Commissioner of Official Languages – Reconciliation of Privacy Act with Commissioner’s right to keep investigations confidential and private – Privacy Act, R.S.C. 1985, c. P-21, ss. 12(1) , 22 , 47 – Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), ss. 60 , 72 , 73 .
The respondent, a federal public servant, filed complaints with the Commissioner of Official Languages (“COL”) alleging that his rights in respect of language of work, and employment and promotion opportunities, had been violated. In conducting their investigation the investigators working for the Office of the Commissioner of Official Languages (“OCOL”) encountered problems because certain employees were reluctant to give information, fearing reprisals by the respondent. The investigators gave assurances that the interviews would remain confidential within the limits prescribed by the Official Languages Act (“OLA ”). The investigation report concluded that the complaints were well founded and submitted recommendations to the Department concerned, which agreed to implement them.
While those proceedings were going on, the respondent made a request to the COL, under s. 12 of the Privacy Act (“PA ”), for disclosure of the personal information contained in the files on the complaints he had made. A copy of this information was sent to the respondent, except for the portions which were withheld under the exemption set out in s. 22(1) (b) PA . That provision gives the COL the power to refuse access to information requested “the disclosure of which could reasonably be expected to be injurious to . . . the conduct of lawful investigations”. Several other requests by the respondent were refused. He filed a complaint with the Privacy Commissioner (“PC”) and following a process of mediation, a number of witnesses who had been questioned agreed to a copy of the personal information contained in the notes of the OCOL investigators being given to the respondent. The PC ruled that the personal information contained in the testimony of the other people questioned, for which consent to disclosure had not been obtained, had been properly exempted from disclosure under s. 22(1) (b) PA . The respondent then brought an application for judicial review of the COL’s decision refusing to disclose the information requested. The dispute relates to the personal information concerning the respondent as well as non-personal information contained in the interview notes of the OCOL investigators. In the case of the personal information, the respondent’s request relates only to the notes of the interview with his supervisor. The Federal Court, Trial Division ordered disclosure of the personal information requested by the respondent. The respondent was denied disclosure of the non-personal information. The Federal Court of Appeal affirmed that decision. The issue on the main appeal is whether, pursuant to s. 22(1) (b) PA , disclosure of the personal information requested by the respondent could reasonably be expected to be injurious to the conduct of lawful investigations by the COL. The issue on the cross-appeal is whether the respondent is entitled to information other than personal information.
Held: The main appeal and the cross-appeal should be dismissed.
This case concerns the application of the OLA and the PA in relation to each other. The provisions at issue must therefore be reconciled and read together. Parliament has made it plain that the PA applies to the OCOL. However, the PA , including the power provided in s. 22(1) (b), must be applied to the OCOL in a manner consistent with the objective of the OLA of promoting equality of status of the two official languages of Canada and guaranteeing minority language groups the right to use the language of their choice within federal institutions and with the unique context in which the COL’s investigations, the private and confidential nature of which is important, are conducted. The participation of witnesses and complainants is central to the effectiveness of the Act. If Parliament had not enacted the provisions requiring that investigations be conducted in private and be kept confidential to protect them, it might have been difficult to achieve the objectives of the OLA . This confidentiality is not absolute, however, given the limits imposed by ss. 72 , 73 and 74 OLA and the PA . When a request for disclosure of information is made under the PA , the COL may refuse access to the information requested under s. 22(1) (b) PA . That provision allows the exception to disclosure to be used once an investigation is over. Neither the definition of the word “investigation” in s. 22(3) nor the wording of s. 22(1) (b) should be interpreted as restricting the scope of the word “investigation” to investigations that are underway, those that are about to commence or specific investigations. There is therefore no justification for limiting the scope of that provision. The non-disclosure of personal information provided in s. 22(1) (b), however, is authorized only where disclosure “could reasonably be expected” to be injurious to investigations. There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged. The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure. Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law. A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process. The COL has an obligation to be sensitive to the differences in situations, and he must exercise his discretion accordingly.
In this case, it cannot reasonably be concluded from the COL’s statements that disclosure of the interview notes that are the subject of the judicial review application could reasonably be expected to be injurious to the conduct of his future investigations. The COL has not established, as required by s. 47 PA , that his discretion was properly exercised. His decision must be based on real grounds that are connected to the specific case in issue. The evidence filed by the COL shows instead that his decision not to disclose the personal information requested was based on the fact that the person interviewed had not consented to disclosure, and does not establish what risk of injury to his investigations the latter might cause. Rather than showing the harmful consequences of disclosing the interview notes on future investigations, an attempt was made to prove, generally, that if investigations were not confidential this could compromise their conduct, without establishing specific circumstances from which it could reasonably be concluded that disclosure could be expected to be injurious. Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given. It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by the PA and the OLA . The COL must exercise his discretion based on the facts of each specific case. In this case, the COL has not shown that it is reasonable to maintain confidentiality.
With respect to the cross-appeal, the respondent cannot obtain disclosure of information other than personal information since his request is based on s. 12(1) PA , which provides that only personal information may be disclosed.
Cases Cited
Referred to: Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140; Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Beaulac, [1999] 1 S.C.R. 768; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586; Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; R. v. Osolin, [1993] 4 S.C.R. 595; Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Reyes v. Secretary of State (1984), 9 Admin. L.R. 296; British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447; St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616.
Statutes and Regulations Cited
Canadian Human Rights Act, S.C. 1976-77, c. 33, Part IV [rep. 1980-81-82-83, c. 111 (Sch. IV, s. 3); repl. idem, Sch. II].
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), preamble, ss. 2 , Part IX, 55, 56, 58(1), (2), 59, 60, 62, 63(3), 65(1), (2), (3), 72, 73, 74, Part X, 77(3), 78, 82.
Privacy Act, R.S.C. 1985, c. P-21, ss. 2 , 3 “personal information”, (g), 4, 7, 8(1), (2) [am. c. 1 (3rd Supp.), s. 12 (Sch., item 4)], 10 [idem], 12, 12(1), 16(1)(b), 18 à 28, 22(1)(b), (3), 29(1)(a), (b), (c), (3), 34(1), (2), 35, 36, 37, 41, 47, 49, Schedule [am. c. 31 (4th Supp.), s. 101].
Authors Cited
Braën, André. “Language Rights”. In Michel Bastarache, ed., Language Rights in Canada. Montréal: Yvon Blais, 1987, 1.
Canada. Legislative Committee on Bill C-72. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-72, Issue No. 20, June 7, 1988, pp. 20:25, 20:29.
Chevrette, François, et Herbert Marx. Droit constitutionnel: notes et jurisprudence. Montréal: Presses de l’Université de Montréal, 1982.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Marshall, Mary A., and Linda C. Reif. “The Ombudsman: Maladministration and Alternative Dispute Resolution” (1995), 34 Alta. L. Rev. 215.
McIsaac, Barbara, Rick Shields and Kris Klein. The Law of Privacy in Canada. Toronto: Carswell, 2000 (updated 2001, release 4).
Sheppard, Claude-Armand. The Law of Languages in Canada. Study No. 10 of the Royal Commission on Bilingualism and Biculturalism. Ottawa: Information Canada, 1971.
Wade, Sir William. Administrative Law, 8th ed. by Sir William Wade and Christopher Forsyth. New York: Oxford University Press, 2000.
APPEAL and CROSS-APPEAL from a judgment of the Federal Court of Appeal (2000), 261 N.R. 19, [2000] F.C.J. No. 1412 (QL), affirming a decision of the Trial Division (1998), 157 F.T.R. 15, [1998] F.C.J. No. 1527 (QL). Appeal and cross-appeal dismissed.
Barbara A. McIsaac, Q.C., Johane Tremblay and Gregory S. Tzemenakis, for the appellant/respondent on the cross-appeal.
Robert Lavigne, on his own behalf.
Dougald E. Brown and Steven Welchner, for the intervener.
English version of the judgment of the Court delivered by
Gonthier J. —
I. Introduction
1 This case involves the application of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), and the Privacy Act, R.S.C. 1985, c. P-21 , in relation to each other, and at issue is the right of access to personal information collected in private in an investigation conducted under the Official Languages Act . More precisely, we must decide whether disclosure of the personal information requested by the respondent could reasonably be expected to be injurious to the conduct of lawful investigations by the Commissioner of Official Languages.
II. Facts
2 The respondent, Robert Lavigne, worked in the Montreal office of the Department of National Health and Welfare (now the Department of Human Resources Development Canada (“the Department”)). Between November 1992 and March 1993 he filed four complaints with the Commissioner of Official Languages (“the Commissioner”) alleging that his rights in respect of language of work, and employment and promotion opportunities, had been violated. The respondent complained that he had been forced to use French.
3 In the course of their investigation, the investigators working for the Office of the Commissioner of Official Languages questioned some 25 employees of the Department, including the respondent, his immediate supervisor and some of his co‑workers, as well as managers and other employees. The investigators encountered problems in conducting their investigation because a number of Department employees were reluctant to give information, fearing reprisals by the respondent. In those instances, the investigators explained the role and mandate of the Commissioner as an ombudsman, and the private nature of the investigations. They gave assurances that the interviews would remain confidential within the limits of ss. 72 , 73 and 74 of the Official Languages Act .
4 After the interviews were conducted, the investigation report concluded that the respondent’s four complaints were well founded and made five recommendations to the Department. The Department did not question the Commissioner’s findings, and agreed to implement the recommendations.
5 After the Commissioner’s report was submitted, the respondent applied to the Federal Court, Trial Division for a remedy from the Department under Part X of the Official Languages Act . The Federal Court, being of the opinion that an application under that Part is a proceeding de novo, based its decision on the evidence submitted in affidavit form, and not on the evidence contained in the Commissioner’s investigation files. The affidavits included those of France Doyon, Jacqueline Dubé and Normand Chartrand. The respondent had an opportunity to cross-examine the Department’s witnesses, including those three individuals, but did not do so. On October 30, 1996, the Federal Court (whose decision was affirmed on appeal (1998), 228 N.R. 124) ordered the Department to pay the respondent $3,000 in damages and to write him a letter of apology: [1997] 1 F.C. 305.
6 On July 7, 1993, while those proceedings were going on, the respondent made an initial request to the Commissioner for disclosure of the personal information contained in the files on the complaints he had made to him. On September 10, 1993, a copy of this information was sent to the respondent, except for the portions which were withheld under the exemption set out in s. 22(1) (b) of the Privacy Act , inter alia. Several additional requests for information were subsequently submitted to the Commissioner, but they were denied.
7 In September 1994, the respondent filed a complaint with the Privacy Commissioner, who launched an investigation in the course of which he attempted to settle the respondent’s complaints by mediation. Through this process, a number of witnesses who had been questioned by the Commissioner’s representatives agreed to a copy of the personal information contained in the investigators’ notes being given to the respondent. However, the testimony of 10 other individuals was not covered by the settlement agreement, either because they could not be located or because they had denied or not responded to the request. On April 25, 1997, the Privacy Commissioner ruled that the personal information contained in the testimony of those 10 people, for which consent to disclosure had not been obtained, had been properly exempted from disclosure under s. 22(1) (b) of the Privacy Act .
8 Following the proceedings before the Privacy Commissioner, the Commissioner again refused to disclose certain personal information to the respondent. The respondent then brought an application for judicial review of the Commissioner’s decision. The documents originally in issue in his application to the Federal Court are the complete notes taken by the investigators in the Office of the Commissioner of Official Languages during the interviews held with the following people: the district manager of the Montreal office, Normand Chartrand; the respondent’s immediate supervisor, Jacqueline Dubé; and the regional coordinator of official languages, France Doyon. Normand Chartrand and France Doyon subsequently agreed to disclosure by the Commissioner of the personal information concerning the respondent in the notes of their interviews. The dispute therefore relates to the personal information contained in the notes of the interview with Ms. Dubé and the notes relating to these three individuals that do not contain any personal information about the respondent.
9 The Federal Court, Trial Division and the Federal Court of Appeal set aside the Commissioner’s decision in part and ordered disclosure of the personal information requested. The respondent was denied disclosure of the non-personal information. It is those decisions that are the subject of these appeals.
10 In the main appeal, the appellant is seeking to have the decision of the Federal Court of Appeal ordering him to disclose the personal information he holds set aside. In the cross-appeal, the respondent is seeking to have all of the relevant information (whether or not it is personal information) disclosed by the Commissioner.
III. Relevant Statutory Provisions
11 Privacy Act, R.S.C. 1985, c. P‑21
2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.
3. . . .
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
. . .
(g) the views or opinions of another individual about the individual,
. . .
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
. . .
(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; or
. . .
41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
47. In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1) or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned.
49. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1) (b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .)
60. (1) Every investigation by the Commissioner under this Act shall be conducted in private.
(2) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any federal institution, the Commissioner shall, before completing the investigation, take every reasonable measure to give to that individual or institution a full and ample opportunity to answer any adverse allegation or criticism, and to be assisted or represented by counsel for that purpose.
72. Subject to this Act, the Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.
73. The Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information
(a) that, in the opinion of the Commissioner, is necessary to carry out an investigation under this Act; or
(b) in the course of proceedings before the Federal Court under Part X or an appeal therefrom.
74. The Commissioner or any person acting on behalf or under the direction of the Commissioner is not a compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than proceedings before the Federal Court under Part X or an appeal therefrom.
IV. Decisions of the Lower Courts
A. Federal Court, Trial Division (1998), 157 F.T.R. 15
12 Dubé J. allowed the application for judicial review of the Commissioner's decision. Section 2 of the Privacy Act provides, inter alia, that the purpose of the Act is to extend the present laws of Canada that provide individuals with a right of access to personal information about themselves. Consequently, in the opinion of Dubé J., disclosure is the rule and withholding is the exception. Section 22(1) (b) of the Privacy Act is an exception to the general rule and accordingly must be narrowly construed. It provides a limited exemption relating solely to investigations that are underway or about to begin, and not future investigations. Being of the view that the investigation was over, Dubé J. concluded that s. 22(1) (b) did not apply.
13 In addition, Dubé J. concluded that the Commissioner had not established that the disclosure of the personal information could reasonably be expected to be injurious to the conduct of its investigations (Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140). Promises of confidentiality are not essential because the Commissioner has the power to issue subpoenas.
14 Under s. 49 of the Privacy Act , Dubé J. ordered the appellant to disclose the “personal information” requested by the respondent. However, the Privacy Act does not entitle the respondent to require the disclosure of information other than “personal information”.
B. Federal Court of Appeal (2000), 261 N.R. 19
15 Sharlow J.A., on behalf of the court, affirmed the decision of Dubé J. and dismissed the appeal. The Federal Court of Appeal was also of the opinion that s. 22(1) (b) of the Privacy Act does not apply to protect the information that the Commissioner collected in the course of an investigation, once the investigation has concluded (Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589; Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra).
16 Sharlow J.A. also rejected the appellant's argument that Dubé J. had failed to consider whether disclosure could reasonably be expected to be injurious to the enforcement of any law of Canada, within the meaning of s. 22(1) (b) of the Privacy Act . In the opinion of Sharlow J.A., the evidence in the record was not capable of supporting such a conclusion. It established, at most, the possibility that witnesses may be reluctant to cooperate in an investigation unless they have an absolute assurance of secrecy. Sharlow J.A. upheld Dubé J.’s decision ordering the appellant to disclose the “personal information” requested by the respondent.
17 The Federal Court of Appeal also dismissed the cross-appeal on the ground that a request under the Privacy Act may be made only to obtain personal information.
V. Issues
A. Main Appeal
18 1. Did the Federal Court of Appeal err in concluding that the Commissioner may not rely on s. 22(1) (b) of the Privacy Act to refuse to disclose personal information that was collected in the course of an investigation conducted under the Official Languages Act , when the Commissioner’s investigation has concluded?
2. Did the Federal Court of Appeal err in concluding that there were no reasonable grounds for the Commissioner’s refusal?
B. Cross-Appeal
19 Did the Federal Court of Appeal err in concluding that the respondent was not entitled to information other than personal information?
VI. Analysis
A. Applicable Legislation
20 The issue in this case is the application of the Official Languages Act and the Privacy Act in relation to each other. What we must first do is to ascertain the purpose and scope of the two Acts, and analyse the respective roles of the two Commissioners. It will then be possible, having regard to those general principles, to consider the statutory provisions on which the parties rely.
21 The Official Languages Act is a significant legislative response to the obligation imposed by the Constitution of Canada in respect of bilingualism in Canada. The preamble to the Act refers expressly to the duties set out in the Constitution. It cites the equality of status of English and French as to their use in the institutions of the Parliament and government of Canada and the guarantee of full and equal access in both languages to Parliament and to the laws of Canada and the courts. In addition, the preamble states that the Constitution provides for guarantees relating to the right of any member of the public to communicate with and receive services from any institution of the Parliament or government of Canada in English and French. The fact that the Official Languages Act is a legislative measure taken in order to fulfil the constitutional duty in respect of bilingualism is not in doubt.
22 Section 2 of the Official Languages Act sets out the purpose of the Act:
2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Those objectives are extremely important, in that the promotion of both official languages is essential to Canada’s development. As this Court said in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 744:
The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
The Official Languages Act is more than just a statement of principles. It imposes practical requirements on federal institutions, as Bastarache J. wrote in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 24:
The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. [Emphasis added.]
23 The importance of these objectives and of the constitutional values embodied in the Official Languages Act gives the latter a special status in the Canadian legal framework. Its quasi-constitutional status has been recognized by the Canadian courts. For instance, in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at p. 386 (see also Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.), at pp. 602‑3), the Federal Court of Appeal said:
The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms , it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter , and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1) , it belongs to that privileged category of quasi‑constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it.” [Emphasis added.]
The Federal Court was correct to recognize the special status of the Official Languages Act . The constitutional roots of that Act, and its crucial role in relation to bilingualism, justify that interpretation.
24 The Privacy Act is also fundamental in the Canadian legal system. It has two major objectives. Its aims are, first, to protect personal information held by government institutions, and second, to provide individuals with a right of access to personal information about themselves (s. 2 ). Obviously, it is the second objective that is in issue in these appeals. Until 1983, the core elements of the legal guarantees of the confidentiality of personal information were set out in Part IV of the Canadian Human Rights Act, S.C. 1976-77, c. 33. Part IV of the Canadian Human Rights Act was repealed (S.C. 1980-81-82-83, c. 111 (Sch. IV, s. 3)) and replaced by the Privacy Act (S.C. 1980-81-82-83, c. 111, Sch. II). In view of the quasi-constitutional mission of that Act, the courts have recognized its special nature. In Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609, at p. 652, Noël J. of the Federal Court, Trial Division wrote:
The enactment by Parliament of Part IV of the Canadian Human Rights Act , later replaced by the Privacy Act , illustrated its recognition of the importance of the protection of individual privacy. A purposive approach to the interpretation of the Privacy Act is thus justified by the statute’s quasi‑constitutional legislative roots. [Emphasis added.]
25 The Privacy Act is a reminder of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society. In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 65-66, La Forest J. wrote (although he dissented, he spoke for the entire Court on this point):
The protection of privacy is a fundamental value in modern, democratic states; see Alan F. Westin, Privacy and Freedom (1970), at pp. 349‑50. An expression of an individual’s unique personality or personhood, privacy is grounded on physical and moral autonomy — the freedom to engage in one’s own thoughts, actions and decisions; see R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, per La Forest J.; see also Joel Feinberg, “Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.
Privacy is also recognized in Canada as worthy of constitutional protection, at least in so far as it is encompassed by the right to be free from unreasonable searches and seizures under s. 8 of the Canadian Charter of Rights and Freedoms ; see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. Certain privacy interests may also inhere in the s. 7 right to life, liberty and security of the person; see R. v. Hebert, [1990] 2 S.C.R. 151, and R. v. Broyles, [1991] 3 S.C.R. 595.
La Forest J. also did not hesitate in that case to recognize “the privileged, foundational position of privacy interests in our social and legal culture” (para. 69). La Forest J. added, at para. 61, that the overarching purpose of access to information legislation is to facilitate democracy:
It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.
And lastly, L’Heureux-Dubé J., dissenting, but not on this point, wrote on the question of the importance of protecting privacy in R. v. Osolin, [1993] 4 S.C.R. 595, at p. 614:
The importance of privacy as a fundamental value in our society is underscored by the protection afforded to everyone under s. 8 of the Charter “to be secure against unreasonable search or seizure”. This value finds expression in such legislation as the Privacy Act, R.S.C., 1985, c. P‑21 , which restricts the purposes for which information may be used to those for which it was received. [Emphasis in original.]
The Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this Court has recognized them as having. However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
The quasi-constitutional status of the Official Languages Act and the Privacy Act is one indicator to be considered in interpreting them, but it is not conclusive in itself. The only effect of this Court’s use of the expression “quasi-constitutional” to describe these two Acts is to recognize their special purpose.
26 The Privacy Act deals with “personal information”, which is defined in s. 3 of the Act. As Jerome A.C.J. said in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.), at p. 557, s. 3 is “deliberately broad” and “is entirely consistent with the great pains that have been taken to safeguard individual identity”. (See also Dagg, supra, at para. 69.) Section 3 provides, inter alia:
3. . . .
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
. . .
(g) the views or opinions of another individual about the individual,
27 To achieve the objectives of the Privacy Act , Parliament has created a detailed scheme for collecting, using and disclosing personal information. First, the Act specifies the circumstances in which personal information may be collected by a government institution, and what use the institution may make of it: only personal information that relates directly to an operating program or activity of the government institution that collects it may be collected (s. 4), and it may be used for the purpose for which it was obtained or compiled by the institution or for a use consistent with that purpose, and for a purpose for which the information may be disclosed to the institution under s. 8(2) (s. 7). As a rule, personal information may never be disclosed to third pa