Canada (Information Commissioner) v. Canada (Transport)

Canada (Information Commissioner) v. Canada (Transport)
Court (s) Database
Federal Court Decisions
Date
2016-04-20
Neutral citation
2016 FC 448
File numbers
T-911-14, T-912-14
Notes
A correction was made on January 17, 2017.
Reported Decision
Decision Content
Date: 20160420
Dockets: T-911-14
T-912-14
Citation: 2016 FC 448
[REVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 20, 2016
PRESENT: The Honourable Mr. Justice Noël
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA AND DAPHNÉ CAMERON
Applicants
and
THE MINISTER OF TRANSPORT
Respondent
JUDGMENT AND REASONS
I. SUMMARY [1] The co-applicants, Ms. Cameron and the Information Commissioner, are making an application for judicial review of the decision made by Transport Canada’s Access to Information and Privacy (ATIP) Director not to disclose the number of persons or the number of Canadian citizens on the Specified Persons List (SPL). The ATIP Director invokes the exemption found in paragraph 15(1)(c) of the Access to Information Act, RSC 1985, c A-1, [the ATIA], in order to justify his refusal to disclose. The ATIP Director correctly qualified the information as being protected by the exemption in paragraph 15(1)(c); that is to say that it could be expected to be injurious to the detection, prevention or suppression of subversive or hostile activities. However, I find that, in the following step, the ATIP Director failed to exercise reasonable discretion. For the following reasons, I would allow the applications for judicial review in part, and I return the applications, so that they may be examined by a new decision-maker.
II. FACTS A. General facts [2] On March 17, 2010, the applicant, Ms. Cameron, a journalist for the newspaper La Presse, filed two ATIP requests with Transport Canada, to obtain the number of Canadian citizens as well as the total number of individuals included on the SPL for the period from 2006-2010 inclusive under Transport Canada’s Passenger Protect Program [the PPP].
[3] On June 4, 2013, Transport Canada’s ATIP Director [the Director or Mr. O’Reilly] refused to provide the requested information. The Director invoked paragraph 15(1)(c) of the ATIA and stated that making this information public could be injurious to the detection, prevention or suppression of subversive or hostile activities.
[4] Following the Director’s refusal to disclose the information, Ms. Cameron requested assistance from the Information Commissioner [the Commissioner]. The Commissioner is the second applicant in this case. Each applicant has filed a memorandum of fact and law.
[5] The Government of Canada implemented the PPP following the events of September 11, 2001. The PPP aims to identify those persons who represent a threat to flight safety and to take measures to counter this threat. The Minister of Public Safety has been handling decisions regarding which names to include on the SPL since February 2011. Prior to February 2011, the Minister of Transport handled these decisions. The decision to include an individual’s name on the SPL is based on the recommendations of an advisory group comprising Transport Canada, the Canadian Security and Intelligence Service [CSIS] and the Royal Canadian Mounted Police [the RCMP].
[6] When a person whose name appears on the SPL arrives at an airport to board a flight, he or she will be subject to additional screening. The Minister of Transport will be notified and will be asked to determine whether the individual poses an immediate threat. If the individual poses an immediate threat to aviation security, the Minister of Transport may issue an emergency direction to mitigate the threat, particularly by denying the individual boarding. The identity of those individuals on the SPL is not disclosed.
B. Factual perspective for processing access requests [7] The PPP was launched on June 18, 2007. That same day, the Minister of Transport at the time, the Honourable Lawrence Cannon, stated that there were between 500 and 2000 names on the SPL.
[8] On March 17, 2010, Ms. Cameron filed an ATIP request with Transport Canada, requesting disclosure of the number of persons and the number of Canadian citizens on the SPL. Following her request, on April 9, 2010, Transport Canada’s ATIP Director at the time, Mr. Réginald Laurent, consulted with the ATIP offices at CSIS and the RCMP in order to determine their positions regarding the information request.
[9] CSIS responded and recommended that the information requested by Ms. Cameron should be exempt from disclosure under subsection 15(1) of the ATIA. The RCMP, for its part, indicated in its response that it was not too worried about disclosing the information. The RCMP’s representative indicated that the RCMP would not apply subsection 15(1) of the ATIA in these circumstances, but that the RCMP would not object to Transport Canada invoking the exemption.
[10] After this response, in order to gain clarification, Ms. Nathalie Morin, from Transport Canada’s ATIP office, attempted to contact the RCMP’s ATIP office on May 18, 2010. The next day (May 19, 2010), the RCMP’s ATIP office sent an email indicating that they were not too worried about disclosing this information:
[…] As such, we don’t see the need to withhold the information. Even the release of the global number of people does not concern us overmuch. Therefore, we would not apply section 15(1) of the Act to the documents you sent but we also don’t have any objections to you applying it.
[11] On June 7, 2010, Mr. Laurent sent a letter to Ms. Cameron, indicating his refusal to disclose the requested information on the basis of paragraph 15(1)(c) of the ATIA. On July 28, 2010, Ms. Cameron filed a complaint with the Office of the Information Commissioner regarding the decision made by Transport Canada’s ATIP Director not to disclose the requested information.
[12] The Commissioner investigated and shared her observations with Mr. Laurent on September 8, 2011. The Commissioner informed Mr. Laurent that she was not convinced risk of harm to the detection, prevention or suppression of subversive or hostile activities would result from the disclosure of this information, nor was she convinced that the decision-maker had exercised his discretion in denying the request.
[13] Following these observations, Mr. Laurent consulted Mr. Chris Free, an aviation safety specialist working for Transport Canada. Mr. Free contacted his counterpart in charge of the PPP at the RCMP to clarify the RCMP’s position. Mr. Free informed Mr. Laurent that those members of the RCMP who were involved with the PPP felt that disclosing the requested information would jeopardize national security, contrary to the opinion of the RCMP’s ATIP office.
[14] On November 17, 2011, Mr. Laurent presented his observations to the Commissioner, in compliance with paragraph 35(2)(b) of the ATIA. These observations were supported by assessments from CSIS and from the Minister of Public Safety. Mr. Laurent also indicated that he felt the RCMP had contradicted itself.
[15] Then, during a period of more than a year, the Commissioner investigated and requested additional representations from Transport Canada. On May 10, 2013, at the end of her investigation, the Commissioner issued her recommendations.
[16] On June 4, 2013, Mr. Shaun O’Reilly, who had replaced Mr. Réginald Laurent as Transport Canada’s ATIP Director, rejected the Commissioner’s recommendations and issued the refusal to disclose the requested information.
[17] On March 4, 2014, Ms. Cameron received the Commissioner’s report on the conclusions of her investigation. Ms. Cameron then gave her consent for this application for judicial review of the respondent’s decision pursuant to section 42 of the ATIA. On April 15, 2014, the Commissioner filed two applications for judicial review with the Federal Court. On August 12, 2014, the applications were joined by order of the judge responsible for managing the proceeding. The applicant Ms. Cameron then joined the application filed by the Commissioner.
III. ARGUMENTS [18] The parties are not in agreement regarding the applicability of principles to the facts, nor regarding the weight that the Court should give to certain legal precepts. In the next section, I divide the parties’ arguments into five (5) main topics: public interest and ATIA objectives; applicable standards of review; appropriate burdens of proof; exercise of qualification; and exercise of discretion.
A. Public interest and objectives of the Act [19] The applicants are asking the Court to rule that the refusal to disclose the requested information was made in a manner contrary to the principles of the ATIA and contrary to its quasi-constitutional status. They submit that the ATIA has a clear objective, namely to increase access to government information by defending the public’s right to its disclosure. The necessary exemptions to this right are limited and specific; and decisions regarding disclosure of government information are subject to review, independent of government. In particular, the Canadian public must have the right to obtain the required information on the PPP and the SPL in order to be able to assess the efficiency and effectiveness of these measures and to determine if they are worth the sums invested in them by taxpayers.
[20] The respondent replies that the decision not to disclose the RCI by invoking paragraph 15(1)(c) of the ATIA respects these principles. The Court must show a certain deference to the decision-maker, given the executive’s institutional expertise with regard to national security.
B. Applicable standard of review and scope of this standard [21] The applicants submit that the reasonableness standard must be tempered. They maintain that the decision-maker’s discretionary power, pursuant to the ATIA, in fact falls at the lower end of the spectrum, and that the Court has full jurisdiction and power to examine both the exemptions invoked and the exercise of discretionary power.
[22] The respondent retorts that a matter that could be injurious to the prevention or suppression of subversive or hostile activities calls for a broad and flexible approach, since the decision-maker must weigh the specific facts as well as the policy in general.
[23] The applicants do not agree with the respondent’s argument that the Court should show deference when the decision-maker makes a decision regarding the prevention or suppression of subversive or hostile activities, since the ATIA sets out specific and limited exemptions, which do not apply in this instance.
C. Burden of proof [24] The applicants argue that the ATIP Director did not discharge his heavy burden of proof. In fact, at the qualification stage, the Director did not demonstrate a reasonable risk of probable harm: he did not use a specific approach and did not demonstrate a clear and direct link between the evidence presented and the alleged harm. The applicants also maintain that the ATIP Director did not discharge his burden of proof when exercising his discretion, if he did exercise it at all. If the decision-maker truly did exercise his discretion, he did so in a manner contrary to the analytical framework of section 15, contrary to the objectives of the ATIA, and also contrary to the case law and the factors to be considered.
[25] The respondent replies that direct evidence of danger is not required. Furthermore, the respondent maintains that the decision-maker’s conclusion as to the existence of a risk of jeopardizing the prevention or suppression of subversive or hostile activities rests largely on the facts and the policy in a broad sense. The respondent suggests that the evidence regarding past, present and anticipated events could justify a conclusion of the existence of a threat or injury to the prevention or suppression of subversive or hostile activities. Thus, given the matter of national security implicit in the criteria of paragraph 15(1)(c) of the ATIA, the respondent argues that the Court must show restraint when assessing a decision regarding any risk of jeopardizing the prevention or suppression of subversive or hostile activities. The respondent feels that the Court should take a broad and flexible approach when dealing with decisions on matters of national security, as well as when some of Canada’s international obligations are at play.
D. Existence of a threat [26] The applicants suggest that the arguments invoked by Mr. O’Reilly are speculative, hypothetical and unfounded. The decision-maker did not establish how disclosing the RCI could diminish the effectiveness of the PPP, or how international relations would be damaged. The allegations of injury are general in nature and without any specific link to the requirements of section 15 of the ATIA. Citing generic reasons vaguely related to national security does not constitute sufficient grounds to restrict the public’s right to access the RCI; the injury must be greater than a probability or a speculation.
[27] The applicants state that Mr. Free is a public servant who has been obstinately opposed to disclosure since becoming involved. They are also of the opinion that Mr. O’Reilly has only recently assumed the position of ATIP Director, and that he has almost no experience in matters of national security. The evidence indicates that the RCMP ATIP office had not been opposed to disclosing the information prior to Mr. Free’s intervention in the RCMP department that deals with the PPP and the SPL. The RCMP then changed its mind.
[28] The respondent presents no evidence that Canada’s international relations with its key partners would be affected if the information about the RCI were disclosed. In fact, Mr. Free was unable to support his speculations after having agreed to produce a document to this effect. Mr. O’Reilly, in cross-examination, was equally unable to underpin his hypotheses about how Canada’s international relations would suffer following disclosure of the RCI.
[29] The applicants allege that the PPP and the SPL are redundant components of Canada’s security system, and that therefore, Canada would not suffer any injury if the RCI were disclosed. Moreover, the existence of many other complementary deterrent programs argues in favour of disclosure, since their existence further limits any injury that could result from disclosure of the RCI. Furthermore, given that certain SPL criteria are common knowledge, in particular that it does not apply to minors, a terrorist organization could easily circumvent it. Disclosing the RCI, therefore, does not render the program any more vulnerable than it already is.
[30] By contrast, the respondent maintains that the PPP and the SPL are measures that are part of a multi-layered security system that aims to ensure public safety. The respondent criticizes the fact that the applicants are essentially alleging that the PPP is superfluous, useless or ineffective, and that it is no longer worth protecting information that could compromise the PPP’s effectiveness and, incidentally, flight safety in Canada.
[31] The respondent argues that, these days, the approach of trying to ensure infrastructure security using “guns, guards and gates” is outdated, given the scope of the infrastructure at risk and the nature of the threat of modern terrorism. This layered approach, by intermeshing overlapping measures, ensures that if one provision is foiled, then another will still able to prevent an attack. We must not weaken an important measure like the PPP simply because there are other measures that complement it. Furthermore, the respondent alleges that modern flight safety is interconnected with flight safety in Canada’s international partner countries. Thus, weakening one layer by disclosing the number of persons and the number of Canadians on the SPL would affect the confidence that other countries have in Canada. Canada could even see its exemption from using the U.S. “No Fly List” revoked.
[32] Lastly, the respondent makes the point that not disclosing the RCI has a deterrent effect on the planning and execution of terrorist attacks, since it leaves these groups with no concrete information with which to measure the risk. Thus, it was reasonable for Mr. O’Reilly to conclude that disclosing the RCI would create a reasonable risk of probable injury, thus allowing him to invoke the exemption in paragraph 15(1)(c) of the ATIA. Allowing the disclosure of information, even information that is several years old, would allow individuals with malicious intentions to make several requests over time and to gain an idea of Canada’s defence capabilities.
E. Exercise of discretion [33] The applicants argue that the decision-maker indulged in an unthinking or knee-jerk exercise of discretion and qualification, backing up his decision using platitudes, generalizations and hypotheses that are not supported by the evidence. The applicants insist that the decision-maker, Mr. O’Reilly, who has not been in his position for very long, blindly deferred to the opinion of specialists and therefore did not truly use his own judgment. It is also possible that the decision not to disclose the information is some sort of attempt to save face, since the Minister of Transport at the time the PPP was implemented, the Honourable Lawrence Cannon, allegedly stated, according to a Globe and Mail article, that there were between 500 and 2000 names on the SPL. This statement can also be seen as a “de facto” disclosure.
[34] The respondent countered that it is not important how long the ATIP Director has held this particular position and that the evidence shows Mr. O’Reilly to be a competent individual. In addition, there is no evidence indicating that any embarrassment or bad faith is at the source of the refusal to disclose the RCI. On the contrary, the evidence shows that Mr. O’Reilly’s only concern was the existence of an injury to national security. The respondent is of the opinion that a discretionary decision is unreasonable only if it is determined that the decision was not made in keeping with the Act, that it was made in bad faith, that it was unjustified, that it was made based on irrelevant factors or that it was made without consideration of relevant factors. In light of these criteria, Mr. O’Reilly’s exercise of discretion was reasonable. Furthermore, given the circumstances, it was appropriate for the decision-maker to consult specialists as well as the relevant services and departments. Regarding the minister’s statement, the respondent asserts that he cannot make inferences as to the minister’s intention.
[35] The applicants suggest that the historical nature of the information was not at all addressed in Mr. O’Reilly’s decision. Neither did Mr. O’Reilly comment on the Canadian public’s interest in judging the program’s efficiency and effectiveness in relation to its cost (approximately $13.8 million per year for the first five (5) years of operation, and $2.9 million for the subsequent years). Consequently, the applicants argue that the injury alleged by the respondent is more likely of a political nature than it is related to factors governed by the exemption under paragraph 15(1)(c) of the ATIA. Specifically, if the disclosure of the RCI reveals a small number, the PPP’s usefulness will be called into question; whereas if the number is high, it may be thought that the program is too lenient, or that Canada is overflowing with terrorists who threaten civil aviation. The applicants reiterate that it is unacceptable for the decision-maker to assume that there is enough information in the public domain regarding the PPP for the public to be able to evaluate it. This consideration is arbitrary and is contradicted by the simple fact that Ms. Cameron made an ATIP request. Furthermore, even the United States makes the data contained in its No-Fly List available to the public.
[36] The respondent retorts that Mr. O’Reilly, the decision-maker, exercised reasonable discretion. The respondent maintains that Mr. O’Reilly studied all of the relevant factors, having specifically annotated the Commissioner’s recommendations, consulted specialists within the relevant departments and services, considered the importance of the information for the public and taken into account that the information requested dates from 2007–2010, as well as the objectives of the ATIA. In the end, the similar programs and other lists that exist, specifically the RCMP’s list of high-risk travellers, are in no way comparable to the SPL, either in who they target or in their goals or inclusion criteria.
IV. ISSUES [37] Firstly, the Court must determine whether the decision-maker reasonably qualified the information as falling under subsection 15(1) of the ATIA, allowing him to invoke the exemptions to the general rule requiring the information to be disclosed.
[38] If the answer to the first question is yes, then the Court must also determine whether the minister’s representative exercised reasonable discretion in refusing to disclose the information, after the Commissioner’s recommendations.
V. LEGAL CONTEXT [39] In this section, I will provide a brief summary of the applicable law. Firstly, I will describe the general procedure for making an access to information request. Then, I will outline the relevant legislation. Lastly, I will state the law that applies specifically to judicial review when the decision-maker invokes an exemption under the ATIA.
A. Procedure for making an ATIP request pursuant to the ATIA [40] To provide some context for this application for judicial review, it is useful to understand the progression of an ATIP request. Bronskill v Canada (Canadian Heritage), 2011 FC 983, [2011] FCJ No 1199 (QL), [Bronskill], is a good starting point to familiarize oneself with access to information rights. Paragraphs 4–15 and 62–85 of this case law are particularly relevant. The Supreme Court also synthesized the procedure clearly in paragraphs 18–20 of the decision in Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25, 331 DLR (4th) 513, [Commissioner v Defence]. However, I will not go into as much detail today; here is the gist of it:
[41] Firstly, a sufficiently detailed written request is sent to the organization that has the information. The person in charge at the federal institution is responsible for replying. The individual responsible must grant access to the documents within a reasonable time frame, regardless of who makes the request. If the organization refuses to disclose the information and the person files a complaint, the Information Commissioner must review the refusal. There is no direct process to determine which requests are active and which documents have been requested. The Commissioner can make recommendations and require a report from the organization in question [Bronskill, above, at paragraphs 6–7].
[42] Secondly, if, following the Commissioner’s recommendations, the organization in question still refuses to disclose the information, the Commissioner informs the person of his or her right to judicial review of the organization’s decision before the Federal Court. It should be noted that the right to judicial review refers to a judicial review of the organization’s decision –not a judicial review of the Information Commissioner’s decision to support (or not) the individual’s request. The Information Commissioner may, together with the individual, acting alone, or jointly, pursue the application for judicial review [Bronskill, above, at paragraphs 7–8].
[43] Lastly, the Federal Court must have access to all of the relevant documents. The Federal Court has the responsibility to protect and disclose the information if necessary. Contrary to the procedure pursuant to section 38 of the Canada Evidence Act, RSC 1985, c C-5, the Federal Court does not explicitly have the power to publish summaries of the information concerned [Bronskill, above, at paragraphs 11, 26–27].
[44] In this case, the Federal Court reviews the last decision made by Transport Canada’s ATIP Director in its entirety, namely the exercise of qualification and discretion that followed the Commissioner’s recommendations. It is by evaluating the decision as a whole that the Court can then rule on its reasonableness. The Court must, inherently, show a certain deference; however, the Court cannot accept a decision whose conclusions are unreasonable [3430901 Canada Inc. v Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FCR 421, [Telezone], at paragraph 100 and Bronskill, at paragraph 9]. In short, the Court reviews the reasonableness both of the decision regarding the qualification of the information, and of the exercise of discretion in allowing the disclosure of information under section 15 of the ATIA, notwithstanding an exemption authorizing the decision-maker not to disclose the RCI [Bronskill, above, at paragraphs 62–64, 69, 76].
B. Relevant legislation [45] The legislation relevant to this case is included in the appendix of this decision.
C. Specific legal principles (1) Scope of the public’s right to access to information [46] Access to government information is essential to ensure a healthy democratic system as indicated in Dagg v Canada (Minister of Finance), [1997] 2 SCR 403, 148 DLR (4th) 385, [Dagg], at paragraph 61, and Bronskill, at paragraphs 4–5. In Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3, [2012] 1 SCR 23, [Merck Frosst], the Supreme Court summarizes this three-point principle at paragraph 21:
[21] The purpose of the Act is to provide a right of access to information in records under the control of a government institution. The Act has three guiding principles: first, that government information should be available to the public; second, that necessary exemptions to the right of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewed independently of government (s. 2(1)).
[47] Each day, the government is called upon to make important decisions on behalf of the community. To do so, it bases its decisions on information vital to the decision-making process, prepared by the government apparatus. The public has the right to know this information, with the purpose of ensuring a dialogue surrounding the topics discussed. Without this information, there can be no healthy debate. The ATIA states this public right in section 2. The Supreme Court has given the ATIA quasi-constitutional status, specifically in the case of Commissioner v Defence, above, at paragraph 40 [see also Bronskill, above, at paragraphs 4–5].
[48] However, this right to access, which is meant to be broad, is restrained by certain exemptions found in the ATIA. These exemptions must be specific and limited, the principle being that the general rule advocates for access except under clearly identified and justified circumstances [Bronskill, above, at paragraphs 4–5].
[49] In order to implement these principles, sections 49 and 50 of the ATIA acknowledge that the Court has a broad remedial power following any government authority’s refusal to disclose information [see also Bronskill, above, at paragraphs 27, 67, 77, 103, 105, 110, 114].
[50] Paragraph 67 of Bronskill briefly outlines the differences between sections 49 and 50 of the ATIA:
[67] Section 49 gives the Court power to order disclosure or to make any order deemed appropriate arising from the refusal of disclosure under sections of the Act that are not referred to in section 50. Section 50 itself gives the Court power to intervene in matters arising from section 14 (federal-provincial affairs), section 15 of the Act (national security and international affairs), paragraph 16(1)(c) (enforcement of laws and conduct of an investigation), paragraph 16(1)(d) (security of penal institutions) and paragraph 18(d) (financial interests of government). What is common between the refusals reviewed under section 50 is that the head of the government institution refusing disclosure has the discretion to do so, and the exemptions are injury-based, not class-based.
[51] In this case, as I will explain in more detail below, the Court’s remedial power is that which is conferred by section 50, given the type of exemption invoked.
(2) General procedure when invoking an exemption in the ATIA [52] The general rule of the ATIA is that the information must be disclosed. There are two types of exemptions that justify non-disclosure of the requested information: the first type of exemption is class-based. The second type of exemption is injury-based, and is related to the potential injury that could result from disclosure of the requested information. Paragraphs 13 and 15 of Bronskill clearly outline this procedure:
[13] The exemptions laid out in the Act are to be considered in two aspects by the reviewing Court. Firstly, exemptions in the Act are either class-based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive in and of itself. For example, the section 13 exemption is related to information obtained from foreign governments, which, by its nature, is a class-based exemption. Injury-based exemptions require that the decision-maker analyze whether the release of information could be prejudicial to the interests articulated in the exemption. Section 15 is an injury-based exemption: the head of the government institution must assess whether the disclosure of information could “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 detection, prevention or suppression of subversive or hostile activities”.
[…]
[15] The second component of the exemptions under the Act is to determine whether the exemption is mandatory or discretionary. In the case of mandatory exemptions, the provisions of the Act mandate that the decision-maker “shall refuse to disclose” the records when they fall under the exemption (see, inter alia, section 19). In the case of discretionary exemptions, the decision-maker “may refuse” to disclose the record. Section 15 is a discretionary exemption, the aspects of which will be considered at length in the present reasons.
[53] Before launching into descriptions of the applicable standards and burdens of proof at the various stages, it is worth clarifying that the qualification and the exercise of discretion are reviewed by the Court, taking into account all of the information as well as the roles played by the parties. The Court has before it all of the evidence used by the decision-maker when making decisions, including the position taken by the Commissioner, as well as the grounds that, according to the Commissioner, justify the disclosure of the RCI (Bronskill, above, at paragraph 11).
(3) Qualification [54] In this case, the decision-maker qualifies the information as meeting the criteria for an exemption related to the potential injury that could result from disclosure of the requested information. Transport Canada’s ATIP Director feels that disclosing the RCI would go against subsection 15(1) and paragraph 15(1)(c) of the ATIA; that is to say, would hinder the detection, prevention or suppression of subversive or hostile activities. It is submitted that disclosing the RCI could facilitate the perpetration of acts of terrorism, including hijacking, in or against Canada or foreign states–the very definition of subversive or hostile activities found in subsection 15(2) of the ATIA.
[55] Paragraph 69 of Bronskill provides a good summary of why the reasonableness standard applies:
… the applicability of the injury-based exemption of section 15 is to be determined on the standard of reasonableness. Firstly, this is what is instructed by section 50 and section 15 themselves (“reasonable grounds to refuse disclosure”, “reasonably be expected to be injurious … ”). Secondly, this Court has proceeded with the reasonableness standard when dealing with section 15 exemptions (Do-Ky v Canada (Minister of Foreign Affairs and International Trade), (1999) 1999 CanLII 8083 (FCA), 164 FTR 160 (CA), at para 7; Kitson v Canada (Minister of National Defence), above; Steinhoff v Canada (Minister of Communications), above; X v Canada (Minister of National Defence), (Strayer J.), above; Canada (Information Commissioner) v Canada (Prime Minister), 1992 CanLII 2414 (FC), [1993] 1 FC 427 (FCTD)). Thirdly, the Court notes the nature of the information falling under section 15 is such that “a range of acceptable outcomes defensible in fact and in law” does exist in terms of what constitutes information injurious to the matters highlighted in section 15. Reasonable people can reasonably disagree as to what falls within section 15. …
[56] In paragraphs 22–27 of the decision in Attaran v Canada (Foreign Affairs), 2011 FCA 182, 420 NR 315, [Attaran], the Court of Appeal explores the case law regarding the standard and the burden of proof in various circumstances. In paragraph 24, the Federal Court of Appeal indicates “that the burden of proof would depend upon the circumstances before the Court.” [Attaran above, at paragraph 24].
[57] In this case, Ms. Cameron did not have access to the RCI or to the closed hearing in which the respondent and the Commissioner participated. The facts in this case differ from those in the existing case law: contrary to Bronskill (at paragraphs 125–126), Attaran (at paragraphs 25–27), and Telezone (at paragraphs 93–96), the Information Commissioner supports Ms. Cameron’s application and participates in the proceedings as a co-applicant. Despite the fact that Ms. Cameron had no access to the redacted evidence or to the RCI, the Commissioner did benefit from all of the evidence and the RCI, and participated in both the closed hearing and the public hearing. The burden of proof at the various stages of analysis is therefore defined according to these facts.
[58] Under these circumstances (that is to say, when the Commissioner participates in the closed hearing and the public hearing), to invoke the exemption found in paragraph 15(1)(c) of the ATIA, the decision-maker must show that it was reasonable to determine that the information in question reasonably be expected to cause probable injury to the prevention or suppression of subversive or hostile activities. For this purpose, the relevant factors are: there exists a presumption in favour of disclosing government-held information; the details given in the exercise of qualification pursuant to section 15 of the ATIA must be precise and detailed; the alleged injury must not be abstract or speculative. See Canada Packers Inc. v Minister of Agriculture, [1989] 1 FC 47 (FCA), 53 DLR (4th) 246, [Canada Packers] and Canada (Information Commissioner) v Canada (Prime Minister), [1993] 1 FCR 427, 12 Admin LR (2d) 81, [Canada v Prime Minister].
[59] The decision-maker must do more than simply demonstrate that the injury could occur. Paragraph 196 of Merck Frosst elaborates on what this means in practice:
[196] It may be questioned what the word “probable” adds to the test. At first reading, the “reasonable expectation of probable harm” test is perhaps somewhat opaque because it compounds levels of uncertainty. Something that is “probable” is more likely than not to occur. A “reasonable expectation” is something that is at least foreseen and perhaps likely to occur, but not necessarily probable. When the two expressions are used in combination – “a reasonable expectation of probable harm” – the resulting standard is perhaps not immediately apparent. However, I conclude that this long-accepted formulation is intended to capture an important point: while the third party need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the third party must nonetheless do more than show that such harm is simply possible. Understood in that way, I see no reason to reformulate the way the test has been expressed. [Underlining in the original version]
[60] The Court then discusses the causal link between disclosure and harm:
[197] … As for the causal link between disclosure and harm, the Court indicated that there need not be a causal relationship as in tort law, but that there must be proof of a “clear and direct connection between the disclosure of specific information and the injury that is alleged” (Lavigne, at para. 58; see also Canada Packers, at p. 58–59).
[61] If the Court concludes at the first stage, that is to say, during the qualification analysis, that the exemption related to potential harm due to disclosure is justified based on the evidence on record, then it is appropriate to continue on to the second stage for the purposes of subsection 15(1) of the ATIA, namely the analysis of the exercise of discretion, since the decision-maker can envision disclosing the information based on the facts at play.
(4) Exercise of discretion [62] As indicated in the preceding paragraphs, since the Commissioner has access to all of the relevant information and participated in all of the proceedings, the burden rests firstly with the Commissioner to establish that the decision-maker’s exercise of discretion was unreasonable. If the Commissioner succeeds in discharging her burden of proof, then the burden is reversed and the decision-maker must prove that he did in fact exercise his discretion in a reasonable manner. Nevertheless, this standard must take into account the objectives of the ATIA, and the decision-maker must exercise his discretion, taking the following into account (Attaran, above, at paragraphs 19–27, 30, 36 and Bronskill, at paragraphs 194, 204).
[63] By consulting the following cases, one can gain a clear understanding of the criteria related to the exercise of discretion when dealing with access to information or protection of personal information: Canada Packers, above, at paragraphs 46–48, 66; Attaran, above, at paragraph 14; Dunsmuir v New-Brunswick, 2008 SCC 9, 291 DLR (4th) 577, [Dunsmuir], at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, [Khosa], at paragraph 59; Canada (Attorney General) v Abraham, 2012 FCA 266, [2012] FCJ No 1324 (QL), [Abraham], at paragraphs 41–44; John Doe v Ontario (Finance), 2014 SCC 36, [2014] 2 SCR 3, [John Doe], at paragraph 52; Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23, 319 DLR (4th) 385, [Ontario Criminal Lawyers], at paragraph 71; Dagg, above, at paragraphs 110–111; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193, [Baker], at paragraph 53; and Telezone, above, at paragraphs 112–116.
[64] Thus, from this corpus, I take away the following essential points: when assessing the reasonableness of the decision-maker’s exercise of discretion for the purposes of judicial review of a decision made under the aegis of the ATIA, the Court must consider the grounds for justification invoked by the decision-maker, as well as the transparency and the intelligibility of the decisional path with regard to the facts in evidence. In addition, when the Commissioner is a party to the proceedings, the Court must consider her arguments and suggestions and analyze how the decision-maker discusses them and takes them into consideration. In making his decision, the decision-maker must show that he understands the access requests, that he understands the arguments in favour of disclosure and that he has carefully considered these arguments, all while taking into account the objectives of the ATIA.
[65] Furthermore, the Court must take into consideration all of the interests at play, including the public interest in the information held by the federal government:
… the [Minister] must go on to ask whether, having regard to all relevant interests, including the public inter