Ruby v. Canada ( Solicitor General )
T-638-91
Simpson J.
6/6/94
8 pp.
Application for review of Solicitor General's refusal to provide personal information held by Canadian Security Intelligence Service (CSIS) in exempt Bank 15 and to acknowledge existence of personal information in Bank 10 -- As Bank 10 relating to CSIS' current and most sensitive investigations, disclosure requested could jeopardize CSIS' investigations by enabling certain individuals or organizations to know whether CSIS is interested in activities -- CSIS acknowledging existence of and providing older, less sensitive personal information in Bank 15 except that which, in CSIS' view, remaining exempt from production -- Respondent willing to make ex parte representations to satisfy Court refusal justified under Act -- Privacy Act, s. 51 requiring Court, if asked, in applications for review under s. 41, to hear representations from government on ex parte basis -- Such applications must be heard in camera -- Applicant alleging right to privacy protected by both Charter, ss. 7, 8 -- Whether s. 51 breaching Charter ss. 7, 8, 2(b), and if so whether justified -- Whether focus on privacy proper in this case -- S. 51 relevant only where personal information obtained in confidence from foreign state or related institutions, from international organization of states or related institutions, or where disclosure of personal information reasonably expected to be injurious to conduct of international affairs, defence of Canada and allies, or Canada's efforts in detection, prevention or suppression of subversive or hostile activities -- S. 46 also giving Court general discretion to prevent improper disclosure of any personal information -- Privacy Act concerned with both privacy and access issues -- S. 41 review concerned principally with access issues -- Whether privacy rights also affected in particular case depending on scope and nature of personal information involved and on what may be determined to be individual's reasonable expectation of privacy -- S. 51 one step further removed from privacy issues -- Simply procedural section establishing rules for conduct of s. 41 reviews -- Court not accepting Charter challenge to s. 51 based on privacy rights -- Charter, s. 2(b) guaranteeing freedom of expression, press -- S.C.C. recognizing principle press serving as surrogate for general public because reporting on proceedings members of public cannot attend -- Press reports of court proceedings making them proceedings truly public: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 -- Applicant's rights as reader directly affected if hearing held in camera and ex parte submissions made -- As member of reading public, applicant entitled to raise s. 2(b) against mandatory requirements for ex parte and in camera proceedings in s. 51 -- Where public disclosure of personal information could be destructive of interests protected, necessary and in public interest, to deal with disclosure of personal information in camera and ex parte -- To provide such personal information must automatically be dealt with in camera and ex parte offending Charter, s. 2(b) -- Inappropriate to hold court in private unless, on case-by-case basis, Crown demonstrating to satisfaction of judge in exercise of discretion in camera and/or ex parte proceedings justified when weighed against public interest in open and accountable judicial system -- Although s. 2(b) not considered in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, Court's conclusion that ex parte proceedings not violating principles of fundamental justice when conducted following exercise of discretion, supporting decision herein that in camera and ex parte proceedings sanctioned by mandatory provisions in statute, constituting restriction on rights in s. 2(b) -- Privacy Act, s. 51(1) restricting rights protected in s. 2(b) -- Whether restriction justified under Charter, s. 1 outstanding -- Privacy Act, R.S.C., 1985, c. P-21, ss. 19, 21, 41, 46, 51 -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2, 7, 8.