Fraser v. Canada (Public Safety and Emergency Preparedness)

Fraser v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2021-08-04
Neutral citation
2021 FC 821
File numbers
T-101-18, T-102-18, T-103-18, T-1358-12, T-1884-19, T-465-20
Notes
Digest
Decision Content
Date: 20210804
Dockets: T-101-18
T-102-18
T-103-18
T-1358-12
T-465-20
T-1884-19
Citation: 2021 FC 821
Ottawa, Ontario, August 4, 2021
PRESENT: Madam Justice McVeigh
Dockets: T-101-18
T-102-18
T-103-18
T-1358-12
BETWEEN:
KAREN FRASER, JENNIFER SWEET, NICOLE SWEET, KIM SWEET,
JOHN SWEET, J. ROBERT SWEET, CHARLES SWEET, PATRICIA
CORCORAN, ANN PARKER AND TORONTO POLICE ASSOCIATION
Applicants
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS,
ATTORNEY GENERAL OF CANADA, CORRECTIONAL SERVICE
CANADA, PAROLE BOARD OF CANADA AND CRAIG MUNRO
Respondents
Docket: T-465-20
AND BETWEEN:
DOUG FRENCH, DONNA FRENCH AND DEBORAH MAHAFFY
Applicants
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS,
ATTORNEY GENERAL OF CANADA, PAROLE BOARD OF CANADA,
AND PAUL BERNARDO
Docket: T-1884-19
AND BETWEEN:
CANADIAN BROADCASTING CORPORATION
Applicant
and
PAROLE BOARD OF CANADA
Respondent
JUDGMENT AND REASONS
Table of Contents
I. Introduction 4
II. Background 4
A. First Group 5
B. Second Group 8
C. Third Group 9
D. Summary of the Three Groups 10
III. Preliminary Matters 11
IV. Issues 14
V. Standard of Review 16
A. The Families’ and CBC’s Submissions 16
B. Canada’s Submissions 17
C. Analysis 18
VI. The Law 19
VII. Analysis 24
A. Is there an s. 2(b) Charter right to the information requested? 24
(1) Submissions of the Families 24
(2) Submissions of CBC 27
(3) Canada’s Submissions 31
(4) Analysis 33
B. Were the decisions of the Parole Board and CSC unreasonable? 43
(1) Insufficient reasons 43
(2) Pre-Determined Outcome 45
(3) Selection of Factors 45
(4) Section 8(2)(m)(i) of the Privacy Act 47
(5) Weighing of Factors 49
(6) Inmates’ privacy interests 50
(7) Doré/Loyola 56
VIII. Conclusion 61
IX. Costs 62
I.
Introduction
[1] This is regarding judicial review applications of six decisions—four by the Parole Board of Canada [“Parole Board”] and two by the Correctional Service of Canada [“CSC”]—denying requests for the further disclosure of personal information about two incarcerated individuals, Craig Munroe and Paul Bernardo [together the “Inmates”]. Of these requests, five were made pursuant to the Access to Information Act, RSC 1985, c A-1 [“ATIA”] and one by way of letter, requesting disclosure based on the Open Court Principle [“OCP”].
[2] I will dismiss these applications for the reasons that follow.
II. Background
[3] In their submissions, Canada (the Respondents: Minister of Public Safety and Emergency Preparedness, Attorney General of Canada, Parole Board of Canada), indicates that the files on the Inmates include records relating to:
admission and discharge records (i.e. personal effects, valuables);
case management reports (i.e. police reports, offender applications);
discipline and disassociation reports (i.e. disciplinary measures, segregation records);
education and training (i.e. employment records);
health care (i.e. medical and surgical, dental and psychiatric assessments);
preventative security (i.e. incident reports, modus operandi);
psychology (i.e. psychological assessments, treatment records);
sentence administration (i.e. victim information, community contact information); and
visits and correspondence (i.e. list of visitors, declarations of common law unions).
[See also paragraph 15 for what is sought to be disclosed]
[4] This judicial review comprises of six decisions grouped into three proceedings. The six judicial reviews were heard together in one hearing, and the reasons are consolidated. The Respondent, Inmates did not file materials or participate in the hearing.
A. First Group
[5] The first group involves —Court files T-1358-12; T-101-18; T-102-18 and T-103-18 [the “1358 Applications”]—consists of four applications pursuant to s. 41 of the ATIA [Annex A]. These Applications are for the judicial review of Parole Board and CSC decisions denying the disclosure, either in whole or in part, of the personal CSC and Parole Board files on Mr. Munro and the disclosure of recordings of Mr. Munro’s parole hearings.
[6] Mr. Munro was convicted of the brutal murder of Toronto Police Constable Michael Sweet in 1980, in a case that garnered considerable public and media attention due to Mr. Munro’s cruel and repugnant conduct. The 1358 Applications are made by relatives of the deceased Cst. Sweet, i.e. the Fraser and Sweet families, and by the Toronto Police Association.
[7] In file T-1358-12, the Applicants submitted a Notice of Constitutional Question in 2013. They amended the question in 2020, asking the Court to determine:
the constitutional validity and/or applicability and effect of sections 3.1, 4(a), (b), (c) and (e), 26(1), 27(1) and (2), 100.1, 101(a) and (b), 102, 132, 140(4), 140(5), 140(13), 140(14), 140.2(1), (2) and (3), 142(1)(b), 143(1) and 144(4) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"); sections 2(1 ), 4(1 ), (2.1), 19(1), (2)(b) and (c) and 20(6) of the Access to Information Act, R.S.C., 1985, c. A-1; sections 7, 8(1), 8(2)(a), 8(2)(m)(i), 12 and 26 of the Privacy Act, R.S.C., 1985, c. P-21
[8] Neither the original or amended constitutional question was filed with the Court. Rule 73.1 of the Federal Courts Rules, SOR/98-106, requires that a Notice of Constitutional Question must be filed with the Registry, with proof of service, after service to all the parties. This was not brought to the attention of the Court by the parties and was only recently discovered neither question had been filed with the Court. Given Canada did not object and the non-filing could have been because of COVID related issues with the Registry or the parties, I will answer the question regardless of the procedural misstep on the part of the Applicants in the 1358 Applications.
[9] The four files comprising the 1358 Applications are as follows.
[10] File T-1358-12 is an application for the judicial review of the decision of the Parole Board dated June 20, 2011 [“PBC-1”], and the decision of the CSC date-stamped May 6, 2011 [“CSC-1”]. The former was affirmed by the Office of the Information Commissioner [“OIC”] on June 4, 2012, and the latter was affirmed by the OIC on June 4, 2012. The decisions denied the request for full disclosure and production of Mr. Munro’s complete Parole Board and CSC files, and particularly what was before the Parole Board for his parole hearings held on March 30, 2011, March 16, 2010, and February 26, 2009. In PBC-1 and CSC-1, the request was declined pursuant to s. 19(1) of the ATIA.
[11] File T-102-18 is an application for the judicial review of the decision of the Parole Board dated June 27, 2018 [“PBC-2”] and affirmed by the OIC on September 25, 2018. The decision denied disclosure and production of Craig Munro’s complete Parole Board file regarding his parole hearings, and the audio/video recordings and transcripts of those parole hearings. Note that this decision was a redetermination pursuant to the Order of Prothonotary Aalto dated May 17, 2018. In PBC-2, the request was declined pursuant to s. 19(1) and 19(2)(c) of the ATIA.
[12] File T-103-18 is an application for judicial review of the decision of CSC dated July 3, 2018 [“CSC-2”], affirmed by the OIC on October 3, 2018. CSC-2 was a redetermination, pursuant to an Order of Prothonotary Aalto dated May 17, 2018, of the decision of the CSC dated May 17, 2017 declining disclosure pursuant to s. 19(1) of the ATIA. File T-101-18 consists of the judicial review of CSC’s May 17, 2017 decision. CSC-2 declined to disclose records pertaining to the cancellation of Mr. Munro’s unescorted temporary absences [“UTA”] and his transfer to the Matsqui Institution, and documents included from Exhibits “I” and “J” of the affidavit of Ginette Pilon, sworn on March 21, 2014 and filed in file T-1358-18. In CSC-2, the request was declined pursuant to s. 8(2)(m)(i) of the Privacy Act, RSC, 1985, c P-21 [Privacy Act] [See also para 16 re: intervener].
B. Second Group
[13] The second group consists of file T-465-20 [the “465 Application”] is an application pursuant to s. 41 of the ATIA for the judicial review of the decision of the Parole Board dated March 8, 2019 [“PBC-3”] and affirmed by the OIC, denying the release of Mr. Bernardo’s prison and parole hearing records. Mr. Bernardo was convicted of a series of offenses, most notably the horrific first-degree murders of Ms. Leslie Mahaffy and Ms. Kristen French, in the early 1990s. This case garnered considerable public and media attention due to Mr. Bernardo’s cruel and abhorrent conduct. The Applicants seek the release of all materials and information that were before and/or available to the Parole Board as well as complete copies of the audio/video recordings and transcript of the parole hearing held on October 17, 2018.
[14] The Applicants in the 1358 Applications and 465 Application made joint written and oral submissions. I refer to the Applicants in the first two applications collectively as the “Families” because they largely consist of family members of the victims of the Inmates [See also para 17 re: intervener].
[15] The records the Families’ seek (in their own words) are:
Their entire CSC files commencing from the first day they entered the Canada correctional system regarding any offence, including trial and sentencing transcripts;
Their entire PBC files commencing from the first time that they came under its jurisdiction regarding any offence including trial and sentencing transcripts;
In the case of Craig Munro, details of his 1979 Mandatory Supervision release and the conditions he was on at the time he murdered Police Constable Michael Sweet;
More specifically, after Munro’s first ATIP request, all ATIP requests included the disclosure of the entire CSC/PBC files that were directly or indirectly before the PBC for each hearing or which they had access to, as well as the materials that were before and/or used by CSC and the Case Management Team (“CMT”) for the purpose of presenting their position at each parole hearing;
In the case of Craig Munro, documentation regarding his institutional offences which resulted in his January 2016 transfer from the minimum security Kwikwexwelhp Institution to the medium security Matsqui Institution;
In the case of Craig Munro, documents explaining the breaches and offences leading to the cancellation of his UTAs [unescorted temporary absence] in 2012 and consequently, the cancellation of his 2012 parole hearing, including full details of his positive cocaine tests, his involvement with the sex trade workers and how he went about to hide this activity from his CMT contrary to the conditions of his UTAs;
In the case of Craig Munro, the circumstances and facts leading to his February 2016 withdrawal of his application for UTAs;
Production of the audio recording and transcript (if they exist) of all of Munro, Bernardo, and Gayle’s parole hearings;
In the case of Paul Bernardo, the ATIP request included all documents relating to his application to be relieved from the full consequences of his dangerous offender designation, including all medical records/reports addressing findings supporting the dangerous offender designation and all evidence tendered at his dangerous offender hearing, i.e., Victim Impact Statements of the Scarborough rape victims, transcript of the hearing and reports filed
(T-1358 Applicant’s Memorandum of Fact and Law [“AMFL”] at para 8
C. Third Group
[16] The third group consists of file T-1884-19 [the “CBC Application”]. T-1884-19 is an application for judicial review by the Canadian Broadcasting Corporation [“CBC”] of a decision of the Parole Board denying CBC’s request for withheld personal information about the Inmates similar to the Families requests. CBC did not request the information pursuant to any specific legislation, however, but rather on the basis of the OCP.
[17] In addition CBC was granted leave to intervene in the judicial review of the Families, and made written and oral submissions before me as regards the applicable standard of review and the legal framework for resolving the 1358 Applications. CBC took no position on the specific outcome of the applications in the proceedings of the Families.
D. Summary of the Three Groups
[18] The submissions of the parties overlap substantially, and some arguments are only advanced on some of the applications. When possible, I will address similar arguments together.
[19] I will refer to the Respondents from all proceedings as “Canada” and all of the convicted Respondents as “Inmates”. As well as previously set above references will be made to the Families and CBC. The various requested records will be referred to as the “Withheld Information”.
[20] As noted at the beginning, these reasons are in regards to all of the Applications.
III. Preliminary Matters
[21] Canada raises a set of preliminary issues in respect of the scope of the Families’ submissions. Canada submits that the Families:
improperly made submissions and filed evidence regarding matters not before the Parole Board /CSC when it made the decisions under judicial review;
sought the review of decisions made pursuant to CCRA provisions that fall beyond the scope of s. 41 of the ATIA and that are therefore outside of the scope of this judicial review;
erroneously introduced evidence and made arguments regarding a decision declining an ATIP request for information regarding Mr. Clinton Gayle that is not on judicial review before this Court; and
improperly sought the disclosure of information in CSC’s possession regarding Mr. Bernardo, given that the judicial review in PBC-3 only covers Parole Board records.
[22] During oral submissions, the Families argued that all evidence submitted was relevant to contextualize the judicial review, and that the Court may decide on the weight given to this evidence. The evidence at issue included a refusal of disclosure by the Parole Board of information from an inmate who is not a party to these proceedings (Mr. Gayle). I would note that the Parole Board’s decision with respect to Mr. Gayle is not yet properly available for judicial review because the opinion of the OIC has not yet been released. The Families also reference the closed nature of Mr. Munroe’s April 3, 2020 parole hearing due to COVID-19. There was no decision on an ATIP request before the Court in relation to this issue.
[23] This Court may only consider the evidence before it in the record, and may not accept evidence, or give weight to any evidence which was not before the decision-maker and goes to the merits of the matter, with three exceptions (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20). The exceptions are: general evidence of a background nature; evidence of a breach of procedural fairness; and evidence that demonstrates a lack of evidence before the decision-maker (Henry v Canada (Attorney General), 2021 FC 31 at para 15). None of these exceptions are present in this case, and so only the information which was before the decision-maker will be considered in this judicial review.
[24] Likewise there is no basis on which the evidence or the submissions relating to Mr. Gayle may be considered as part of this judicial review. While I acknowledge that the families of the victims of Mr. Gayle [the “Baylis/Leone” parties] have agreed to be bound by the outcome of this decision, no s. 41 ATIA application for judicial review has been made regarding their ATIP request for the disclosure of information regarding Mr. Gayle. Any evidence and submissions relating to Mr. Gayle are therefore immaterial to the resolution of the judicial reviews before me. For those same reasons, I cannot bind the Baylis/Leone parties to any outcome resulting from these judicial reviews.
[25] I agree with Canada that s. 20(6) of the ATIA has no application to these proceedings. That provision applies only if a disclosure refusal was made under s. 20(1) of the ATIA because the sought-after records contained confidential commercial information supplied by a third party. That is manifestly not the case here.
[26] Finally on the point of admissible arguments and evidence, Canada argues that the submissions and evidence regarding the April 3, 2020 parole review hearing of Mr. Munro should be disregarded as they are not part of this judicial review. I agree.
[27] Canada further submits that several of the arguments on the constitutional invalidity of the ATIP decision-making framework raised by the Families do not reflect the position they took before the administrative decision-makers, and therefore are improperly raised on judicial review.
[28] While the Families did not dispute the constitutional validity of the presumption against disclosure in their ATIP request, they raise a host of constitutional questions in their Notice of Application [see para 7] for Judicial Review and their Notice of Constitutional Question. Generally speaking, a party may not raise a new issue in a judicial review that they could have raised before the decision-maker (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 23; Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at para 37).
[29] However, in this case, the new issues arose because of the decision rendered. I therefore disagree with Canada that the Families cannot advance their arguments on constitutional invalidity on account of having not espoused those arguments in their ATIP request. The Families cannot be expected to bind themselves to their arguments about errors in the statutory delegates’ decisions prior to having seen those decisions. Given that there is no dispute that the Notice of Constitutional Question was properly served and that it adequately reflects the Families’ constitutional arguments raised in their submissions, I am of the view that these questions are properly before me.
[30] As a closing observation, it is useful to restate that this decision is not a judicial review of the parole review decisions concerning the Inmates or their heinous crimes. The issues for determination by this Court are whether the Parole Board and CSC erred in law when they declined to disclose the requested personal information about the Inmates and the audio recordings of their Parole Board hearings while still allowing victims, their families and observers to attend the hearings and victim’s families to have access to audio of hearings they did not attend.
IV. Issues
[31] The Families identify five points at issue related to the denial of the Withheld Information:
When an offender seeks to be released from prison on parole and reintegrated back into the community on the basis of the assertion that he/she no longer poses a risk to public safety, are they seeking a “public” remedy or a “private” remedy?
Having chosen to seek parole at a “public” hearing, are offenders like Craig Munro, Paul Bernardo and Clinton Gayle entitled to assert a “privacy” interest over documents that (a) they intend to rely upon at their hearing for the purpose of persuading their respective CSC CMT and/or the PBC, that they no longer pose a risk to public safety, and, therefore entitled to be released back into the community on parole and (b) are referred to and identified at the hearing and in the decision of PBC?
In the event that this Honourable Court determines that offenders can assert a “privacy” right over their institutional files and records, upon which they rely, including documents discussed publicly at their parole hearing and relied upon and referred to in the decision of PBC (which are of public record), as well as assert a privacy interest over the audio recordings and transcripts of their parole hearings, did CSC/PBC (as the case may be) err in concluding under s. 8(2)(m)(i) of the Privacy Act, that the privacy interests of these types of offenders (that is offenders serving life sentences as distinct from offenders with fixed sentences), outweighed the public interest and the interests of their victims?
Does the CCRA, the ATIA and the Privacy Act collectively and/or individually (or as interpreted by PBC/CSC and affirmed by the OIC), create an unconstitutional reverse onus by impermissibly creating a presumption in favour of non-disclosure?
To the extent that the impugned legislative regime (the CCRA, the ATIA and the Privacy Act), prevent disclosure and production of the materials and information sought by the applicants in their respective ATIP requests, do they violate the open Court principles and free speech rights of the applicants and the general public embedded in s. 2(b) of the Charter?
(Families AMFL at para 56)
[32] CBC characterizes the issues as:
A. Does the constitutional openness principle apply to Parole Board hearings, or should the Recordings have been disclosed under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]?
B) Did the Decision reflect a proportionate balancing of the Charter protections at play?
C) Does the Privacy Act bar disclosure?
[33] Addressing all relevant questions from the submissions of the Applicants, I have characterized the issues as follows:
Is there an s. 2(b) Charter right to the information requested?
Were the decisions of the Parole Board and CSC unreasonable?
V. Standard of Review
A. The Families’ and CBC’s Submissions
[34] The Families submit, both in their written submissions and at the hearing, that the applicable standard of review [“SOR”] is correctness, but provide no jurisprudential support for their claim. During the hearing, counsel for the Families stated that he was adopting CBC’s submissions with respect to the SOR. Nevertheless, the Families asserted that the constitutional issue, the issue of statutory interpretation, and the balancing of public and private interest pursuant to Privacy Act s. 8(2)(m)(i) [Annex B] are reviewable on a standard of correctness. The Families’ position is that only the Parole Board/CSC’s discretionary decision is reviewable on a standard of reasonableness.
[35] Notwithstanding the Families’ adoption of CBC’s arguments on the SOR, it is useful to recall that the latter made submissions that specifically address the particularities of the 1884 Application. CBC’s argument on SOR is tailored to its application, and does not transpose well to the decision on review in the Families’ applications.
[36] Specifically, the difficulty arises because the Parole Board/CSC decisions in the Families’ applications do not engage on the topic of the OCP. Unlike CBC application, which considered and then waived the matter, the Parole Board/CSC did not turn their attention to the matter in the Families’ applications.
[37] During the hearing, CBC did not distinguish the applicable SOR as between the 1358 Applications and the 1884 Application. It likewise did not suggest that a different standard of review applies to CSC and Parole Board decisions.
[38] CBC argues that the questions at issue attract different SOR. As regards the first issue before me, CBC submits that the first question is reviewable on a standard of correctness. That is, whether the OCP and the DM/Sierra test, (see: paragraphs 54 & 56) apply to the disclosure of government records arising from a parole hearing pursuant to the ATIA is a constitutional question of the type identified in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], that attracts a correctness standard. In support of its argument, CBC relies on a recent decision of the Ontario Court of Appeal that held that a decision declining to apply the DM/Sierra test in restricting access to an administrative hearing was reviewable on a correctness standard (Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 at paras 33-37 [Ferrier]).
[39] On the second issue, CBC submits that the Parole Board/CSC’s decision to not disclose the Withheld Information is reviewable on a reasonableness standard as formulated in Doré v Barreau du Québec, 2012 SCC 12 [Doré].
B. Canada’s Submissions
[40] Canada’s submission on the SOR do not exactly track the issues as I have formulated them. Nevertheless, it can be said, regarding the first issue, that Canada’s position seems to be that the “issues decided by the Board do not fall into any of the limited exceptions in Vavilov”. They also submit that a determination on whether the OCP applies in a particular administrative hearing is a matter of interpretation by an administrative body of its own statute and mandate, which calls for a reasonableness review under Vavilov.
[41] On the second issue, Canada submits that judicial reviews pursuant to s. 41 of the ATIA proceed in two stages: Husky Oil Operations Limited v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 10 at paragraphs 15 & 17 [Husky]. First, correctness governs the decision on whether the Withheld Information falls within the statutory exemption to disclosure at s. 19(1) of the ATIA. Then, reasonableness governs the discretionary decision to refuse to release exempted information under s. 19(2). To the extent that Charter protections are engaged, the reasonableness review at articulated out in Doré is applicable on the second step of the Husky analysis. Notwithstanding that Husky was decided prior to Vavilov, Canada submitted that it remains good law regarding the applicable SOR for judicial reviews pursuant to s. 41 of the ATIA.
C. Analysis
[42] The standard of review applicable to the first question is correctness. I agree with the Ontario Court of Appeal in Ferrier at paragraph 35 that an assessment of whether the OCP applies to Parole Board hearings is reviewable on a correctness SOR. The applicability of Charter rights, here the OCP under s. 2(b) of the Charter [Annex C], to Parole Board hearings is specifically the type of question that requires that a standard of correctness be applied. This is not a situation like the one envisioned under the Doré analysis where, a Charter right is infringed upon by an administrative decision. Rather, the question here is a threshold question regarding the applicability of a Charter right — whether Parole Board hearings are subject to the OCP and therefore are decisions on disclosure subject to the test recently reformulated in Sherman Estate v Donovan, 2021 SCC 25 [Sherman Estate]—which requires consistency and a “final and determinate answer” (Vavilov, at para 53). The correctness standard is therefore applicable.
[43] Regarding the second question, I agree with Canada that the two-part analysis from Husky, (see above at para 41), sets out the applicable SOR for applications for disclosure under s. 41 of the ATIA. I agree with Canada that Vavilov has not altered the application of Husky. A correctness SOR applies to determining whether the Withheld Information falls within the statutory exemption at s. 19(1) of the ATIA. Conversely, a reasonableness SOR applies to the discretionary decision not to disclose information under s. 19(2) of the ATIA subject to a Doré framework.
VI. The Law
[44] The CCRA provides for the disclosure of information to victims. S. 140 through 140.2 of the CCRA [Annex D] set out the law for review hearings, including the information to which the families of victims have access and the circumstances under which the families and other observers can apply to attend review hearings:
140 (4) Subject to subsections (5) and (5.1), the Board or a person designated, by name or by position, by the Chairperson of the Board shall, subject to such conditions as the Board or person considers appropriate and after taking into account the offender’s views, permit a person who applies in writing therefor to attend as an observer at a hearing relating to an offender, unless the Board or person is satisfied that
140 (4) Sous réserve des paragraphes (5) et (5.1), la Commission, ou la personne que le président désigne nommément ou par indication de son poste, doit, aux conditions qu’elle estime indiquées et après avoir pris en compte les observations du délinquant, autoriser la personne qui en fait la demande écrite à être présente, à titre d’observateur, lors d’une audience, sauf si elle est convaincue que, selon le cas :
(a) the hearing is likely to be disrupted or the ability of the Board to consider the matter before it is likely to be adversely affected by the presence of that person or of that person in conjunction with other persons who have applied to attend the hearing;
a) la présence de cette personne, seule ou en compagnie d’autres personnes qui ont demandé d’assister à la même audience, nuira au déroulement de l’audience ou l’empêchera de bien évaluer la question dont elle est saisie;
(b) the person’s presence is likely to adversely affect those who have provided information to the Board, including victims, members of a victim’s family or members of the offender’s family;
b) sa présence incommodera ceux qui ont fourni des renseignements à la Commission, notamment la victime, la famille de la victime ou celle du délinquant;
(c) the person’s presence is likely to adversely affect an appropriate balance between that person’s or the public’s interest in knowing and the public’s interest in the effective reintegration of the offender into society; or
c) sa présence compromettra vraisemblablement l’équilibre souhaitable entre l’intérêt de l’observateur ou du public à la communication de l’information et l’intérêt du public à la réinsertion sociale du délinquant;
(d) the security and good order of the institution in which the hearing is to be held is likely to be adversely affected by the person’s presence.
d) sa présence nuira à la sécurité ou au maintien de l’ordre de l’établissement où l’audience doit se tenir.
(5.1) In determining whether to permit a victim or a member of the victim’s family to attend as an observer at a hearing, the Board or its designate shall make every effort to fully understand the need of the victim and of the members of his or her family to attend the hearing and witness its proceedings. The Board or its designate shall permit a victim or a member of his or her family to attend as an observer unless satisfied that the presence of the victim or family member would result in a situation described in paragraph (4)(a), (b), (c) or (d).
(5.1) Lorsqu’elle détermine si une victime ou un membre de sa famille peut être présent, à titre d’observateur, lors d’une audience, la Commission ou la personne qu’elle désigne s’efforce de comprendre le besoin de la victime ou des membres de sa famille d’être présents lors de l’audience et d’en observer le déroulement. La Commission ou la personne qu’elle désigne autorise cette présence sauf si elle est convaincue que celle-ci entraînerait une situation visée aux alinéas (4)a), b), c) ou d).
(5.2) If the Board or its designate decides under subsection (5.1) to not permit a victim or a member of his or her family to attend a hearing, the Board shall provide for the victim or family member to observe the hearing by any means that the Board considers appropriate.
[emphasis added]
(5.1), de ne pas autoriser la présence d’une victime ou d’un membre de sa famille lors de l’audience, elle prend les dispositions nécessaires pour que la victime ou le membre de sa famille puisse observer le déroulement de l’audience par tout moyen que la Commission juge approprié.
[soulignement ajouté]
[45] In addition to permitting attendance by victims, victims’ families, and observers at a Parole Board hearing, victims and their families may participate by presenting statements:
140 (10) If they are attending a hearing as an observer,
140 (10) Lors de l’audience à laquelle elles assistent à titre d’observateur :
(a) a victim may present a statement describing the harm, property damage or loss suffered by them as the result of the commission of the offence and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender; and
a) d’une part, la victime peut présenter une déclaration à l’égard des dommages ou des pertes qu’elle a subis par suite de la perpétration de l’infraction et des répercussions que celle-ci a encore sur elle, notamment les préoccupations qu’elle a quant à sa sécurité, et à l’égard de l’éventuelle libération du délinquant;
(b) a person referred to in subsection 142(3) may present a statement describing the harm, property damage or loss suffered by them as the result of any act of the offender in respect of which a complaint was made to the police or Crown attorney or an information laid under the Criminal Code, and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender.
b) d’autre part, la personne visée au paragraphe 142(3) peut présenter une déclaration à l’égard des dommages ou des pertes qu’elle a subis par suite de la conduite du délinquant — laquelle a donné lieu au dépôt d’une plainte auprès de la police ou du procureur de la Couronne ou a fait l’objet d’une dénonciation conformément au Code criminel — et des répercussions que cette conduite a encore sur elle, notamment les préoccupations qu’elle a quant à sa sécurité, et à l’égard de l’éventuelle libération du délinquant.
(10.1) The Board shall, in deciding whether an offender should be released and what conditions might be applicable to the release, take into consideration any statement that has been presented in accordance with paragraph (10)(a) or (b).
(10.1) Lorsqu’elle détermine si le délinquant devrait bénéficier d’une libération et, le cas échéant, fixe les conditions de celle-ci, la Commission prend en considération la déclaration présentée en conformité avec les alinéas 10a) ou b).
(11) If a victim or a person referred to in subsection 142(3) is not attending a hearing, their statement may be presented at the hearing in the form of a written statement, which may be accompanied by an audio or video recording, or in any other form prescribed by the regulations.
(11) La déclaration de la victime ou de la personne visée au paragraphe 142(3), même si celle-ci n’assiste pas à l’audience, peut y être présentée sous la forme d’une déclaration écrite pouvant être accompagnée d’un enregistrement audio ou vidéo, ou sous toute autre forme prévue par règlement.
(12) A victim or a person referred to in subsection 142(3) shall, before the hearing, deliver to the Board a transcript of the statement that they plan to present under subsection (10) or (11).
(12) La victime et la personne visée au paragraphe 142(3) doivent, préalablement à l’audience, envoyer à la Commission la transcription de la déclaration qu’elles entendent présenter au titre des paragraphes (10) ou (11).
[46] S. 140(14) indicates that because the information and documents were discussed at the hearing that does not mean it was publicly available within the meaning of the ATIA and Privacy Act:
140 (14) If an observer has been present during a hearing or a victim or a person has exercised their right under subsection (13), any information or documents discussed or referred to during the hearing shall not for that reason alone be considered to be publicly available for purposes of the Access to Information Act or the Privacy Act.
(14) Si un observateur est présent lors d’une audience ou si la victime ou la personne visée au paragraphe 142(3) a exercé ses droits au titre du paragraphe (13), les renseignements et documents qui y sont étudiés ou communiqués ne sont pas réputés être des documents accessibles au public aux fins de la Loi sur la protection des renseignements personnels et de la Loi sur l’accès à l’information.
[47] A victim or family member can request to listen to the audio recording, subject to conditions imposed by the Board and privacy interests:
140 (13) Subject to any conditions specified by the Board, a victim, or a person referred to in subsection 142(3), is entitled, on request, after a hearing in respect of a review referred to in paragraph (1)(a) or (b), to listen to an audio recording of the hearing, other than portions of the hearing that the Board considers
(13) La victime ou la personne visée au paragraphe 142(3) a le droit, sur demande et sous réserve des conditions imposées par la Commission, une fois l’audience relative à l’examen visé aux alinéas (1)a) ou b) terminée, d’écouter l’enregistrement sonore de celle-ci, à l’exception de toute partie de l’enregistrement qui, de l’avis de la Commission :
(a) could reasonably be expected to jeopardize the safety of any person or reveal a source of information obtained in confidence; or
a) risquerait vraisemblablement de mettre en danger la sécurité d’une personne ou de permettre de remonter à une source de renseignements obtenus de façon confidentielle;
(b) should not be heard by the victim or a person referred to in subsection 142(3) because the privacy interests of any person clearly outweighs the interest of the victim or person referred to in that subsection.
b) ne devrait pas être entendue par la victime ou la personne visée au paragraphe 142(3) parce que l’intérêt de la victime ou de la personne ne justifierait nettement pas une éventuelle violation de la vie privée d’une personne.
[48] Pursuant to s. 144 of the CCRA, a person who demonstrates an interest in a case is entitled to receive a copy of the Parole Board decision.
[49] There is a provision that if a transcript of the hearing is made, then on request a copy can be provided to the victim or their family providing for ATIA and Privacy Act exceptions (CCRA s. 140.2(1)). However, there is no requirement to make a transcript. Outside of these situations, there is no provision for observers or others to obtain a transcript.
[50] S.19 and 20 of the ATIA provide that the head of a government institution shall refuse to disclose any record which contains personal information, with some exceptions, including when it is in accordance with s. 8 of the Privacy Act, also reproduced below. S. 8(2)(m)(i) allows disclosure when “the public interest in disclosure clearly outweighs any invasion of privacy that could result form the disclosure…”
VII. Analysis
A. Is there an s. 2(b) Charter right to the information requested?
[51] For the reasons below, I find that the Applicants did not have an s. 2(b) Charter right to the Withheld Information because hearings of the Parole Board are not judicial or quasi-judicial in character. Stemming from that determination, all of the Applicants’ constitutional challenges fail.
(1) Submissions of the Families
[52] The Families apply for judicial review of the CSC/Parole Board decisions denying the disclosure of the parts of their ATIP requests that were not disclosed pursuant to s. 41 of the ATIA. They seek the disclosure of the Withheld Information and a declaration that the legislative regime governing ATIP requests as employed by the CSC/Parole Board is unconstitutional. The Families’ position is that the Parole Board erred in failing to apply the DM/Sierra test in its decision not to disclose the Withheld Information.
[53] The submissions regarding the CCRA, the ATIA, and the Privacy Act consist of summaries of the provisions or critiques of the statutory framework. The Families emphasize these statutes’ statements of purpose and principles, notably as they relate to serving the public interest, transparency, accountability and openness.
[54] The arguments are that any restriction on disclosure and the OCP must be justified on the basis of the test set out in Dagenais v CBC, [1994] 3 SCR 835, R v Mentuck, 2001 SCC 76 and Sierra Club of Canada v Canada (Minister