Fraser v. Canada (Public Safety and Emergency Preparedness)

Fraser v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-07-27
Neutral citation
2023 FCA 167
File numbers
A-225-21
Decision Content
Date: 20230727
Docket: A-225-21
Citation: 2023 FCA 167
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
KAREN FRASER, JENNIFER SWEET, NICOLE SWEET, KIM SWEET,
JOHN SWEET, J. ROBERT SWEET, CHARLES SWEET, PATRICIA CORCORAN,
ANN PARKER, TORONTO POLICE ASSOCIATION,
DOUG FRENCH, DONNA FRENCH and DEBORAH MAHAFFY
Appellants
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS,
ATTORNEY GENERAL OF CANADA, CORRECTIONAL SERVICE CANADA,
PAROLE BOARD OF CANADA, CRAIG MUNRO,
and PAUL BERNARDO
Respondents
Heard at Toronto, Ontario, on January 23 and 24, 2023.
Judgment delivered at Ottawa, Ontario, on July 27, 2023.
REASONS FOR JUDGMENT BY:
PELLETIER J.A.
CONCURRED IN BY:
WEBB J.A. RIVOALEN J.A.
Date: 20230727
Docket: A-225-21
Citation: 2023 FCA 167
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
KAREN FRASER, JENNIFER SWEET, NICOLE SWEET, KIM SWEET,
JOHN SWEET, J. ROBERT SWEET, CHARLES SWEET, PATRICIA CORCORAN,
ANN PARKER, TORONTO POLICE ASSOCIATION,
DOUG FRENCH, DONNA FRENCH and DEBORAH MAHAFFY
Appellants
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS,
ATTORNEY GENERAL OF CANADA, CORRECTIONAL SERVICE CANADA,
PAROLE BOARD OF CANADA, CRAIG MUNRO,
and PAUL BERNARDO
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
I. Introduction [1] This is an appeal from a decision of the Federal Court (per Justice McVeigh) reported as 2021 FC 821. In that decision, the Federal Court dealt with five applications under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 (the AIA) having to do with the refusals of Correctional Service Canada (Corrections Canada) and the Parole Board of Canada (the Board) to disclose records relating to certain offenders to the families of the victims of those offenders. The Federal Court also had before it an application by the Canadian Broadcasting Corporation (CBC) for copies of the audio recordings of certain Board hearings pursuant to the open court principle. While these applications were separate applications, they were heard together and disposed of in one set of reasons. These reasons deal with the applications brought by the families of the victims. The CBC’s appeal is dealt with in separate reasons released concurrently with these.
[2] In substance, the appellants rested their case largely on their view that the offenders’ incarceration and parole records stood to be disclosed on the same basis as the records produced at their trials because they were part of the offenders’ sentencing. Underlying this argument was the conviction that the offenders had lost their privacy rights in these records because of their violent and highly publicized offences.
[3] In addition, there was an application for leave to file new evidence relating to the treatment of an application dealing with another violent offender. That application will be dealt with later in these reasons.
[4] For the reasons that follow, I would dismiss the appeal.
II. Facts [5] The appellants Karen Fraser, Jennifer Sweet, Nicole Sweet, Kim Sweet, John Sweet, J. Robert Sweet, Charles Sweet, Patricia Corcoran, Ann Parker, and Toronto Police Association applied for the review of the decisions of Corrections Canada and the Board denying disclosure of the “personal [Corrections Canada] and Parole Board files on Mr. Munro and the disclosure of recordings of Mr. Munro’s parole hearings”: Decision at para. 5. Mr. Munro shot Constable Michael Sweet in the course of a botched robbery and allowed him to bleed to death while holding him hostage. The case drew significant media attention. While the Toronto Police Association is not a member of the Sweet family, its interests are the same so that this group of appellants will be referred to as the “Sweet appellants”.
[6] The respondents in the Sweet appellants’ application were the Minister of Public Safety and Emergency Preparedness, the Attorney General of Canada, Correctional Service Canada, the Parole Board of Canada and Craig Munro. The respondents other than Craig Munro – who did not appear – were represented by the Attorney General.
[7] The Sweet appellants sought the review of a number of decisions refusing disclosure of records in relation to a number of Board decisions and two Corrections Canada decisions on the basis of section 19 of the AIA and subsections 8(1) and 8(2) of the Privacy Act, R.S.C. 1985, c. P-21.
[8] The appellants Doug French, Donna French, and Deborah Mahaffy applied for review of the Board’s decision to refuse disclosure of Paul Bernardo’s complete Board file as well as all materials and information that were before and/or available to the Board at its October 17, 2018 hearing. These appellants also requested complete copies of the audio/video recordings and a transcript of Paul Bernardo’s parole hearing held on October 17, 2018: Appeal Book (AB) at p. 225.
[9] I will refer to these appellants as the “French/Mahaffy appellants”.
[10] The respondents in the French/Mahaffy application were the Minister of Public Safety and Emergency Preparedness, the Attorney General of Canada, the Parole Board of Canada and Paul Bernardo. These respondents, other than Paul Bernardo, who did not appear, were represented by the Attorney General.
[11] Given that the Sweet appellants and the French/Mahaffy appellants were represented by the same counsel who made the same arguments in relation to the refusal to disclose the records requested by each of the families, I will refer to them collectively as the “Families”.
[12] Mr. Bernardo and Mr. Munro will be referred to collectively as the “Offenders”.
[13] The Families made their requests to Corrections Canada and the Board under the AIA. When their requests were refused, they referred them to the Information Commissioner pursuant to section 30 of the AIA. The Commissioner investigated their complaints and in all cases upheld the refusal to disclose the records. The Families then applied for a review of each refusal by the Federal Court pursuant to section 41 of the AIA which is reproduced below:
41 (1) A person who makes a complaint described in any of paragraphs 30(1)(a) to (e) and who receives a report under subsection 37(2) in respect of the complaint may, within 30 business days after the day on which the head of the government institution receives the report, apply to the Court for a review of the matter that is the subject of the complaint.
41 (1) Le plaignant dont la plainte est visée à l’un des alinéas 30(1)a) à e) et qui reçoit le compte rendu en application du paragraphe 37(2) peut, dans les trente jours ouvrables suivant la réception par le responsable de l’institution fédérale du compte rendu, exercer devant la Cour un recours en révision des questions qui font l’objet de sa plainte.
III. The decision under appeal [14] To avoid repetition, I will deal briefly with the Federal Court’s conclusions on the issues that were before it, leaving the details of the Court’s reasoning for discussion in the analysis, which follows.
A. Standard of review [15] At paragraph 43 of its decision, the Federal Court held that the question of whether “the Withheld Information falls within the statutory exemption at s. 19(1) of [AIA]” was reviewable on the correctness standard while “the discretionary decision not to disclose information under s. 19(2) of the [AIA] subject to a Doré framework” was reviewable on the reasonableness standard. The Withheld Information is the records whose disclosure was refused, a descriptor that will be used in the balance of these reasons.
B. Section 2(b) of the Charter and Notice of Constitutional Question [16] The Federal Court noted at paragraphs 7 and 8 of its decision that the French/Mahaffy appellants submitted a Notice of Constitutional Question.
[17] The questions raised in the Notice were reproduced in the Court’s reasons as follows:
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.
[18] The Federal Court undertook to deal with these questions but, in the end, it disposed of them on the basis that the open court principle did not apply to the Board:
Given that the jurisprudence does not characterize the Parole Board as either a judicial or a quasi-judicial body, and that no jurisprudence has demonstrated that the [open court principle] or s. 2(b) require the disclosure of the Withheld Information, I am of the view that the Applicants’ constitutional challenge to the disclosure framework does not succeed. CBC and the Families have failed to demonstrate that the statutory disclosure framework infringes their Charter rights.
Decision at para. 92
[19] The Court then addressed the test set out in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 [Criminal Lawyers’ Association]. That case speaks of when section 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 (U.K.), 1982, c. 11 [Charter] entitles a party to access documents in the government’s hands. The Court concluded that access to the Withheld Information was not necessary for meaningful discussion and criticism on matters of public interest given the attendance of the public and the media at Board hearings.
[20] This led the Court to restate its disposition of the constitutional question succinctly in paragraph 97 of its Decision:
There is consequently no constitutional right of access to records, and s. 2(b) of the Charter has not be [sic] violated. Due to this finding, I answer the constitutional question that the sections noted are not in violation of the Charter.
[21] In the alternative, the Federal Court found that, if it was wrong about the quasi-judicial nature of Board hearings, the open court principle was rebutted following the Supreme Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 [Sherman Estate]. Specifically, the Federal Court found that: (1) the highly sensitive nature of the information requested went to the dignity of the Offenders, an important public interest; (2) there was no control over the dissemination of the records once released; and (3) the release of the information would have no impact on the parole status of the Offenders.
C. Reasonableness of the Board and Corrections Canada Decisions [22] The Federal Court found, at paragraph 114 of its decision, that “the record in each instance [of refusal to disclose] discloses sufficient reasons and evidence to understand the decisions and to assess whether they were reasonable”.
[23] The Federal Court also found that, notwithstanding the use of boiler-plate language, the refusal decisions were justified, transparent and intelligible: Decision at para. 115.
[24] In response to the allegations that Corrections Canada erred in its selection of the factors it considered, the Federal Court found that:
It is apparent on reviewing the decisions that the Parole Board and [Corrections Canada] considered the requirements of s. 19(2)(c) of the ATIA and s. 8(2)(m)(i) of the Privacy Act, assessed the nature of the sought-after evidence through the prism of the public interest in disclosure and the intrusion upon the Inmates’ privacy interests, and arrived at a decision grounded in their assessment of the evidence.
Decision at para. 118
[25] As for the Offenders’ privacy rights, the Federal Court noted that the institutional decision-makers rejected the suggestion that Offenders have no privacy rights in relation to their sentence administration. Offenders expected that their personal information would remain protected from public disclosure: Decision at para. 124.
[26] The Court agreed with the respondents that the records whose disclosure was refused contained personal information and therefore fell within the exemption prohibiting disclosure at subsection 19(1) of the AIA. The Federal Court also agreed with the respondents that the information contained in the Withheld Information was not publicly available and that its release had not been consented to by the Offenders. Finally, the Federal Court agreed that the disclosure of the information was not necessary to enable a public discussion: Decision at paras. 135–36, 145.
[27] As for the potential infringement of Charter rights, the Federal Court reviewed the analytic framework established in the Supreme Court’s decisions in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola] which, taken together, set out the Doré/Loyola framework. In the end, it decided that the decisions in issue considered the relevant factors in a Doré/Loyola analysis: “The decision contemplates the effects of disclosure with the effectiveness of the legislative scheme, the potential for public safety and harming reintegration”: Decision at para. 151.
[28] Taking all of these factors into account, the Federal Court concluded that the decision refusing disclosure of the records in issue was reasonable.
IV. Statement of Issues [29] The Families served and filed their Amended Notice of Constitutional Question in this Court. It is identical to that filed in the Federal Court. The core of the Families’ argument is found in the following paragraph:
To the extent that the impugned legislative regime (the Corrections and Conditional Release Act, the Access to Information Act and the Privacy Act), prevents disclosure and production of the materials and information requested by the applicants, it violates the open Court principle and free speech rights of the applicants embedded in s. 2(b) of the Charter.
[30] The Notice of Constitutional Question challenges 36 statutory provisions contained in three statutes. None of the parties or the Federal Court dealt with the Notice of Constitutional Question in a systematic way. No attempt was made to lay out the evidence and the arguments as to the invalidity of each of these provisions, though there was some discussion of the impact of the open court principle on some of them. Significantly, the Attorney General did not lead evidence or argument justifying the impugned provisions under section 1 of the Charter.
[31] It is not for the Court to do for the parties what they have not done for themselves. As a result, there will not be a systematic examination of the allegations made in the Notice of Constitutional Question, though some constitutional questions will be addressed as they arise.
[32] While the Families raise a series of policy questions relating to the Offenders’ privacy rights, in the end this appeal is about the application of subsections 19(1) and 19(2) of the AIA, subparagraph 8(2)(m)(i) of the Privacy Act, and section 2(b) of the Charter to the disclosure of documents containing personal information about the Offenders. In the result, the issues are:
What is the standard of review? Should the Court receive the new evidence on appeal tendered by the Families? Did the Federal Court fall into palpable and overriding error when it found that the Withheld Information contained personal information? If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing those documents pursuant to the open court principle? If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing that information pursuant to subparagraph 8(2)(m)(i) of the Privacy Act and section 2(b) of the Charter?
V. Analysis A. What is the standard of review? [33] This case has a novel element which calls for particular attention to the standard of review. That element is subsection 44.1 of the AIA which is reproduced below:
44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.
44.1 Il est entendu que les recours prévus aux articles 41 et 44 sont entendus et jugés comme une nouvelle affaire.
[34] The fact that an application for review should be “heard and determined as a new proceeding” means that the Federal Court is not reviewing the Information Commissioner’s or the department head’s refusal to disclose the requested information but is instead conducting a de novo hearing.
[35] In Canada (Health) v. Elanco Canada Limited, 2021 FCA 191, 337 A.C.W.S. (3d) 153 [Elanco], this Court dealt with the issue of the standard of review to be applied by this Court to the Federal Court’s review of a refusal to disclose certain information in light of section 44.1 of the AIA. In that case, the information was third-party information, which is exempted from disclosure by section 20 of the AIA. This Court noted that the Federal Court judge who heard the application was not reviewing the Minister’s refusal but was rather making their own determination as to whether the exemption from disclosure as set out in section 20 of the AIA was applicable: Elanco at para. 23. As a result, the reviewing judge was in the same position as a trial judge who makes findings of fact and applies the law to those facts.
[36] The Court then reviewed the debate in the jurisprudence, prior to the passage of section 44.1, as to whether the appropriate standard of review on appeals from a section 41 or 44 review was the administrative law standard (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559) or the appellate standard (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen]). After concluding its review of the jurisprudence, this Court found that:
In my view, to the extent that there was any dispute with respect to the applicable standard of review to be applied on an appeal from a decision of the Federal Court on an application under section 44 of the Act, the addition of section 44.1 to the Act ends any such debate. The principles as set out in Housen are applicable in this appeal.
Elanco at para. 32
[37] As a result, the Federal Court’s determinations of questions of law are reviewable on the correctness standard while its determinations of questions of fact or questions of mixed fact and law are reviewable on the standard of palpable and overriding error: Elanco at para. 33. While this Court’s analysis in Elanco did not deal with extricable questions of law, there is no reason to doubt that the Housen standard of correctness would apply to those questions.
[38] It should be noted that because the case was argued as an application for judicial review, the Federal Court did not approach the issues on the basis of a de novo hearing. For the purposes of this appeal, the conclusions to which the Court came will be treated as its conclusion, notwithstanding the fact that it may have applied a deferential standard to the administrative decision-maker’s decision.
[39] Given the direction in section 45 of the AIA that applications are to be heard and determined in a summary way, the Families were correct to proceed by way of application but the relief available to them was not judicial review but a de novo hearing.
B. Should the Court receive the new evidence on appeal tendered by the Families? [40] In the course of the hearing of this appeal, the Families argued that this Court should receive as new evidence the AIA request made by the Baylis/Leone families and the Toronto Police Association for Clinton Gayle’s Corrections Canada and Parole Board records. The center-piece of that evidence is described in paragraph 14 of the Families’ notice of motion:
The strongest example of this is the evidence that was before Justice Nordheimer at Clinton Gayle’s early release hearing pursuant to s. 745.61 of the Criminal Code. Significant evidence from Gayle’s institutional records containing so-called “highly sensitive” materials were part of the public record on that application and therefore not impressed with any privacy interest. When the Baylis/Leone families requested the same materials as part of their ATIP request, these same public documents became impressed with the offender’s privacy interest, an interest that [Parole Board] and the [Office of the Information Commissioner] held outweighed the public interest.
[41] The “new” evidence was included in the Appeal Book but the Federal Court ruled that it would not consider it, relying on the principle that on judicial review, the Court will only consider the material that was before the decision-maker, subject to certain exceptions. The Families argued that the evidence fell within the exception for information that provided context for the decision under review, by illustrating the context within which their requests for the Withheld Information had been decided.
[42] Ground 20 of the Families’ notice of appeal provides that:
The learned applications court judge erred in disregarding the evidentiary record concerning Clinton Gayle, when this evidence was highly relevant to the constitutional issues, statutory interpretation and contextual considerations.
[43] As a result, the Families seek to have this Court accept as new evidence, material that is already in the Appeal Book and that the Federal Court refused to consider. Since the issue is raised in the notice of appeal, the notice of motion seeking to introduce this material as new evidence is redundant. The material is already in the record and has been ruled on by the Federal Court. In effect, the Families are arguing that the Federal Court erred in law in refusing to consider this evidence.
[44] In fact, the Federal Court erred by applying the wrong test to the reception of this material since its role, as provided by section 44.1 of the AIA, was to conduct a de novo review. Given that the issue in that review was the refusal to disclose the Withheld Information, the fate of a different application was simply irrelevant to the Federal Court’s task. Whether the Withheld Information contained personal information and whether their disclosure was justified or not has nothing to do with the disclosure of other documents in other files. As a result, the Families’ motion to introduce new evidence should be dismissed and ground 20 of the notice of appeal should also be dismissed.
C. Did the Federal Court fall into palpable and overriding error when it found that the Withheld Information contained personal information? [45] The records maintained by Corrections Canada were set out in paragraph 3 of the Federal Court’s decision as follows:
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).
[46] It is apparent that the contents of those records will contain practically only personal information. The Court can take notice that offenders, in their relations with Corrections Canada, have very little expectation of privacy. They are under constant supervision and assessment, for security purposes and for program purposes. As a result, the records maintained by Corrections Canada, taken together, contain an exceptional amount of personal information compared to other government institutions, with the possible exception of the police.
[47] The Families’ memorandum of fact and law argues that the Offenders have lost any privacy rights they might otherwise have had relating to their crimes and their sentences. A few examples follow:
By virtue of seeking a public remedy, at a public parole hearing, arising from a public crime, following a public trial, public sentencing and public appeals, there can be no reasonable expectation of privacy and certainly no greater expectation of privacy than that which they experienced heretofore. If these offenders enjoyed any privacy right during the prosecution stage related to the offence, they were waived or must give way to the public interest when seeking release from the full consequences of their life sentences. There is nothing private about parole.
Para. 3
If the privacy rights of Canada’s most dangerous offenders who have committed the most serious of criminal offences, with a complete disregard for human life and the dignity of their victims trump the public interest when these offenders seek a public remedy, then facts do not matter and the public interest is rendered meaningless.
Para. 5
The overwhelming public nature of the types of crimes sought to be caught by the ATIP requests herein has been reaffirmed repeatedly by some of the most distinguished and experienced judges in Canada. … there is nothing private about these crimes. These judges made it clear in their respective decisions that the crimes these offenders had committed were very public crimes against society and humanity itself.
Para. 6
Everything about these murders were public – from the investigations, arrests, trials, convictions, to the sentencing and the appeals. The parole hearings for Munro, Bernardo and Gayle were also public. In the case of Paul Bernardo, there was a massive media presence at his parole hearing. To somehow impress these cases with an offender’s privacy interest for the purpose of parole hearings and to keep secret, facts highly relevant to the issue of public safety which could never have been kept secret at trial and on sentencing, simply strains the boundaries of credulity.
Para. 64
Justice McVeigh did not give any weight to these factors in reviewing how [Corrections Canada]/[the Parole Board] balanced the interests of those who committed the act of murder, with the public interest, as aligned with the families, whose loved ones had their privacy rights ripped apart by unspeakable acts of violence committed by the very people who assert that their privacy rights must prevail.
Para. 65
When the herein offenders ask for a benefit by seeking parole, they are instituting a legal proceeding, whilst asserting a privacy interest in the very materials they rely upon for the purpose of obtaining parole, including the recording and/or transcript of the public hearing itself. In these circumstances, any privacy rights are necessarily waived. The offender cannot have it both ways.
Para. 82
The notion that protecting the “human dignity” of offenders convicted of first-degree murder who are seeking parole after committing unspeakable public crimes, rising to the level of “public importance” to displace the open justice principle, is untenable. The purported “private” information is not private at all, as it is vitally important in determining whether parole should be granted or not.
Para. 83
(emphasis in original)
[48] These passages vividly demonstrate how strongly the Families feel about the Offenders’ privacy rights. But the law is not on their side on this issue. Paragraph 4(d) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Corrections Act) provides that:
4 The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
4 Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants :
…
…
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
d) le délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux dont la suppression ou la restriction légitime est une conséquence nécessaire de la peine qui lui est infligée;
[49] The Offenders’ privacy rights are protected by section 3 of the AIA, which is incorporated by reference into the Privacy Act, as well as by sections 19 of the AIA and 8 of the Privacy Act:
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
…
…
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;
…
…
(g) the views or opinions of another individual about the individual,
(g) les idées ou opinions d’autrui sur lui;
19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information.
19 (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant des renseignements personnels.
(2) The head of a government institution may disclose any record requested under this Part that contains personal information if
(2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
(a) the individual to whom it relates consents to the disclosure;
a) l’individu qu’ils concernent y consent;
(b) the information is publicly available; or
b) le public y a accès;
(c) the disclosure is in accordance with section 8 of the Privacy Act.
c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
8 (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
8 (1) Les renseignements personnels qui relèvent d’une institution fédérale ne peuvent être communiqués, à défaut du consentement de l’individu qu’ils concernent, que conformément au présent article.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
…
…
(m) for any purpose where, in the opinion of the head of the institution,
m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
...
…
[50] The Families seek to avoid the application of the relevant statutory provisions to this information by arguing that there is no distinction between the trial and sentencing of these Offenders and the administration of their period of incarceration. Nothing in the Criminal Code, R.S.C. 1985, c. C-46 or the Corrections Act compels that conclusion. The Offenders’ trial and sentencing took place in open court and were covered by the open court principle. The Offenders’ incarceration is administered by Corrections Canada and the Parole Board, neither of whom, as we shall see, is covered by the open court principle and both of whom are subject to the AIA and the Privacy Act.
[51] The Families’ insistence upon the fact that applicants for parole are seeking a public remedy that is inconsistent with privacy rights is not conclusive. It is true that parole hearings are open to the public, subject to the screening criteria set out in paragraphs 140(4)(a) to (d) of the Corrections Act, but the information disclosed in those proceedings is deemed not to be publicly available by subsection 140(14) of that 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.
140 (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.
[52] The Families shake their heads at the inanity of declaring that something disclosed in a public forum is not publicly available. But this inanity is irrelevant to their classification of parole as a “public” remedy, by which they suggest that there are no privacy issues associated with parole. Privacy issues arise because paragraph 4(d) of the Corrections Act preserves offenders’ rights to privacy and their sentences and parole applications are administered by agencies who are subject to the AIA and the Privacy Act.
[53] It follows from this that, until the contrary is shown, offenders have the same privacy rights as all members of society except insofar as they are necessarily and lawfully removed or restricted. The Federal Court and the heads of Corrections Canada and the Parole Board did not fall into error in concluding that the information that the Families sought was personal information and protected by the AIA and the Privacy Act.
D. If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing those documents pursuant to the open court principle? [54] The Families argued that the material in the Parole Board’s hands, including audio recordings and the documents that the Board considered in dealing with Mr. Munro’s and Mr. Bernardo’s applications for parole, should have been released pursuant to the open court principle.
[55] The open court principle does not apply to Corrections Canada as it is a government institution listed in Schedule 1 to the AIA. Its mission is to operate correctional institutions for offenders with a view to returning them to society as law-abiding citizens. In the course of that mandate, it collects information and creates records about the persons in its charge for the purpose of managing their experience so as to achieve its ultimate mission. As the list of the records it creates and maintains set out in paragraph 45 above indicates, most if not all of that information is personal information. It is not a tribunal, let alone an adjudicative tribunal, and is therefore not subject to the open court principle.
[56] This Court dealt with the application of the open court principle to the Parole Board in Canadian Broadcasting Corporation v. Parole Board of Canada, 2023 FCA 166, [CBC] released contemporaneously with these reasons. In that decision, the Court examined the jurisprudence underlying the application of the open court principle to administrative tribunals. The Court found that the application of that principle to a tribunal based on whether it was quasi-judicial was no longer relevant. It decided instead that a better indicator of whether the open court principle applied was whether the tribunal in question was an adjudicative tribunal, that is, a tribunal that presided over adversarial proceedings in which questions of rights and obligations were decided.
[57] The Federal Court agreed with the Parole Board when it said that it was not subject to the open court principle because the proceedings before it were not adversarial but inquisitorial. The fact that the state’s interest was not represented before the Board was indicative of the absence of adversarial proceedings. In addition, the Board argued that it did not adjudicate rights but rather assessed risk.
[58] In their memorandum of fact and law, the Families write at length about the open court principle, but their submissions are unpersuasive. For example, they argue that the open court principle has equal application to all administrative tribunals, including the Parole Board, as the legitimacy of their proceedings can be effectively monitored only if their proceedings are open to the public, citing Southam Inc. v. Canada Minister of Employment and Immigration, [1987] 3 F.C. 329, 13 F.T.R. 138 (T.D.) [Southam]. Of course, Board hearings are open to the public. As for Southam, it dealt with the application of the open court principle to quasi-judicial tribunals. The Families go on to rely on Justice Morgan’s learned decision in Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, but that case concerned 13 adjudicative tribunals, all of which are designated as “institutions” in the Schedule to the Freedom of Information and Protection of Privacy Act, a designation which created the conflict between those tribunals and the freedom of information legislation.
[59] Other cases which the Families relied on all dealt with the application of the open court principle to courts of law: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (application in the Ontario Court of Justice), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (application in the Federal Court of Canada), CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 59 O.R. (3d) 18, 5 C.R. (6th) 189 (C.A.) (application in the Ontario Superior Court of Justice), Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20, [1989] 2 S.C.R 1326, (Alberta Judicature Act), Sherman Estate (application in the Ontario Superior Court of Justice).
[60] In addition, none of those cases holds that privacy interests must always be subordinated to the open court principle. The Sherman Estate case says the opposite:
… Further, in assessing the constitutionality of a legislative exception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantial objective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” was explicitly noted). …
… In F.N. (Re), this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging their personal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect for rehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest. …
Sherman Estate at paras. 52–53
[61] In the result, the Families have not shown that the open court principle applies to the Parole Board or to Corrections Canada. In CBC, this Court found that the CBC was not entitled to copies of audio