Judgments

[1996] 3 F.C. 134

T-638-91

Clayton Charles Ruby (Applicant)

v.

The Solicitor General (Respondent)

Indexed as: Ruby v. Canada (Solicitor General) (T.D.)

Trial Division, Simpson J.—Ottawa, March 6 and May 31, 1996.

Privacy — Act, s. 51 (providing for in camera and ex parte hearings in case of request for access to sensitive information) infringing right to freedom of press guaranteed in Charter, s. 2(b) — Infringement justified under Charter, s. 1.

Constitutional law — Charter of Rights — Limitation clause — Privacy Act, s. 51 (providing for in camera and ex parte hearings in case of request for access to sensitive information) infringing right to freedom of press guaranteed in Charter, s. 2(b) — Infringement justified under Charter, s. 1 — Pressing and substantial objective — Meeting proportionality test.

Security intelligence — In context of request to CSIS for access to sensitive information under Privacy Act, s. 12 and exemption claims by CSIS under Act, ss. 19, 21, 22 and 26, constitutionality of Privacy Act, s. 51 challenged — S. 51 (providing for in camera and ex parte hearings in case of request for access to sensitive information) infringing right to freedom of press guaranteed in Charter, s. 2(b) but justified under Charter, s. 1.

The applicant made a request for information under subsection 12(1) of the Privacy Act to obtain access to documents containing his personal information in a CSIS counter terrorism data bank. CSIS claimed exemptions, inter alia, under sections 19 and 21 of the Act. When the applicant realized that his application for judicial review, brought pursuant to section 41 of the Act, would have to proceed in compliance with section 51 of the Act (in camera and ex parte hearings), he decided, as a preliminary question, to challenge the constitutionality of paragraph 51(2)(a) and subsection 51(3). The Court held that the impugned provisions infringed the right to freedom of the press guaranteed by paragraph 2(b) of the Charter.

The issue herein, left open by the first decision, was whether the impugned provisions could be saved under section 1 of the Charter.

Held, the applicant’s challenge to the constitutionality of the impugned provisions should be dismissed.

Section 51 comes into play only when the exemptions claimed deal either with material received in confidence from foreign governments or international organizations of states, or with material which could injure international affairs or harm national security. When a review is governed by section 51, and when exemptions under paragraph 19(1)(a) or (b) or section 21 are among the exemptions claimed, a confidential affidavit must be accepted and ex parte evidence must be received. As well, the review must be held in camera.

The principles for a section 1 analysis described in the Supreme Court of Canada decision in R. v. Oakes still apply, but must be regarded as criteria or guidelines and not as rigid tests: RJR-MacDonald Inc. v. Canada (Attorney General).

(1) The objective the impugned provisions are designed to achieve must be sufficiently pressing and substantial to warrant overriding the constitutionally protected right or freedom. The respondent’s evidence (affidavits in respect of the operations of CSIS, the RCMP, the Department of National Defence and the Department of Foreign Affairs) indicates that the objective is to avoid the perception on the part of Canada’s allies and information sources that an inadvertent disclosure of sensitive information might occur. This perception would jeopardize Canada’s present level of access to information provided by foreign sources. Based on the evidence, the impugned provisions are directed to a significant objective of pressing and substantial importance.

(2) There was a rational connection between the impugned provisions and the objective. To have in camera proceedings with ex parte representations reduces the risk of an inadvertent disclosure of sensitive information. After reviewing the situation in Canada, Australia and the United States of America, the conclusion was that the impugned provisions represented a minimal impairment of the applicant’s paragraph 2(b) Charter rights. The provisions met the overall proportionality test first stated in Oakes and restated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp.: there must be a proportionality between the deleterious and the salutary effects of the measures.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, s. 15.

Archives Act 1983, No. 79, 1983 (Aust.), ss. 44, 47.

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(b), 7.

Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 12, 13 (as am. by S.C. 1995, c. 5, s. 25), 14, 15, 16 (as am. idem), 17 (as am. idem), 18, 19 (as am. idem), 20, 39(1).

Exec. Order No. 12958, 60 Fed. Reg. 19825 (1995) (U.S.).

Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19).

Freedom of Information Act, 5 U.S.C. § 552 (1994).

Privacy Act, R.S.C., 1985, c. P-21, ss. 12(1), 16(2), 19, 21, 22, 23, 24 (as am. by S.C. 1994, c. 26, s. 56), 25, 26, 27, 28, 41, 46(1), 51, 52.

CASES JUDICIALLY CONSIDERED

APPLIED:

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 417; 31 C.R.R. (2d) 189; 187 N.R. 1; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; (1994), 120 D.L.R. (4th) 12; 94 C.C.C. (3d) 289; 34 C.R. (4th) 269; 25 C.R.R. (2d) 1; 175 N.R. 1; 76 O.A.C. 81.

DISTINGUISHED:

R. v. Durette, [1994] 1 S.C.R. 469; (1994), 28 C.R. (4th) 1.

AUTHORS CITED

Access and Privacy: The Steps Ahead. Ottawa: Minister of Supply and Services Canada, 1987.

Australia. Parliamentary Joint Committee on the Australian Security Intelligence Organization. ASIO and the Archives Act: The Effect on ASIO of the Operation of the Access Provisions of the Archives Act. April 1992.

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 94 (8 June 1982).

Canada. House of Commons. Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act. Report: Open and Shut: Enhancing the Right to Know and the Right to Privacy. Ottawa: Queen’s Printer, 1987.

United States. Department of Justice. Guide to the Freedom of Information Act. U.S.G.P.O., 1995.

CONSTITUTIONAL QUESTION — In the context of an application for judicial review of a refusal of a request to CSIS for information under the Privacy Act , stage two (Charter, section 1 analysis) of the question of the constitutional validity of paragraph 51(2)(a) and subsection 51(3) of the Privacy Act, which were found, in a first stage (Ruby v. Canada (Solicitor General) (1994), 22 C.R.R. (2d) 324; 80 F.T.R. 81 (F.C.T.D.)), to infringe the right to freedom of the press guaranteed in paragraph 2(b) of the Charter. Challenge to the constitutional validity of the impugned provisions dismissed.

COUNSEL:

Jill Copeland for applicant.

Barbara A. McIsaac, Q.C. for respondent.

SOLICITORS:

Ruby & Edwardh, Toronto, for applicant.

McCarthy Tétrault, Ottawa, for respondent.

The following are the reasons for order rendered in English by

Simpson J.:

BACKGROUND

This matter was commenced by the delivery of a request for information dated March 22, 1988. The request was made by Clayton Ruby (the applicant) to the Canadian Security Intelligence Service (CSIS) under subsection 12(1) of the Privacy Act, R.S.C., 1985, c. P-21 (the Act). The applicant sought access to documents containing his personal information (the information) in Personal Information Bank SIS/P-PU-O10 (Bank 10). This bank is controlled by CSIS and is described in an affidavit sworn by Robert MacEwan on February 18, 1993 (the MacEwan affidavit). Mr. MacEwan made his affidavit as CSIS’ Director General of Counter Terrorism. In the MacEwan affidavit, Bank 10 is described as the bank which contains sensitive and current operational information about individuals whose activities may, on reasonable grounds, be suspected of directly relating to espionage or sabotage that is against or is detrimental to the interests of Canada. Although the applicant’s request related only to Bank 10, CSIS also processed it in respect of information in Personal Information Bank SIS/P-PU-015 (Bank 15). Bank 15 is described in the MacEwan affidavit as containing information which is similar to that found in Bank 10, but which is less current and less sensitive.

The applicant received information from Bank 15 both before and after the intervention of the Privacy Commissioner. However, CSIS has claimed exemptions under sections 19, 21, paragraphs 22(1)(a) and (b) of the Act for the balance of the information in Bank 15. It, therefore, continues to be withheld from the applicant. With regard to Bank 10, CSIS relies on subsection 16(2) of the Act and has refused to confirm or deny whether information exists. CSIS has also said that, if there is information in Bank 10, it will invoke exemptions under sections 19, 21, 22 and 26 of the Act.

The applicant in this case does not accept any of the exemptions claimed by CSIS and has applied for judicial review, pursuant to section 41 of the Act (the review). Because the exemptions claimed by CSIS include exemptions under sections 19 and 21 of the Act, the review must proceed in compliance with the provisions of section 51 of the Act (section 51).

The review has not yet begun because, by notice dated April 29, 1994 and filed pursuant to section 57 of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 19], the applicant challenged the constitutionality of section 51. In particular, he challenged the provisions for in camera and ex parte hearings which are found in paragraph 51(2)(a) and subsection 51(3) (the impugned provisions).

In my decision dated June 6, 1994 [(1994), 22 C.R.R. (2d) 324], I concluded that the impugned provisions infringe the right to freedom of the press found in paragraph 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) [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]]. I have now amended that decision on page 8 to clarify that it was only paragraph 51(2)(a) and subsection 51(3) which are the infringing provisions. Attached hereto as Schedule “A” and forming part of these reasons, is a copy of the amended reasons for that decision.*

At the request of counsel for both parties, I left open for future argument the question of whether the impugned provisions could be saved under section 1 of the Charter (section 1). The respondent elected to pursue the section 1 issue. It was to have been argued in September 1995. However, due to the late filing of the applicant’s material, argument was adjourned at the respondent’s request. The matter was rescheduled and the section 1 argument was heard on March 6, 1996. Accordingly, this portion of my reasons deals with section 1 and with costs.

I should note that there is a second file, file T-867-90 which is also the subject of the review. However, the impugned provisions are not at issue in that file. Accordingly, these reasons do not apply to file T-867-90.

RELEVANT STATUTES

Section 51 of the Act reads as follows:

51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21, and any application under section 43 in respect of a file contained in a personal information bank designated as an exempt bank under section 18 to contain files all of which consist predominantly of personal information described in section 21, shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications.

(2) An application referred to in subsection (1) or an appeal brought in respect of such application shall

(a) be heard in camera; and

(b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

(3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte. [My emphasis throughout.]

The Act contains a wide variety of exemptions which justify the non-disclosure of personal information. However, in general terms, section 51 only comes into play when the exemptions claimed deal either with material received in confidence from foreign governments or international organizations of states, or with material which could injure international affairs or harm national security. These exemptions are found in paragraphs 19(1)(a) and (b) and section 21 of the Act.

Paragraphs 19(1)(a) and (b) provide for mandatory exemptions and read as follows:

19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from

(a) the government of a foreign state or an institution thereof;

(b) an international organization of states or an institution thereof; [My emphasis.]

Section 21 provides discretion to exempt information in the following terms:

21. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as defined in subsection 15(2) of the Access to Information Act, including, without restricting the generality of the foregoing, any such information listed in paragraphs 15(1)(a) to (i) of the Access to Information Act. [My emphasis.]

I will hereinafter describe the information exempted by paragraphs 19(1)(a) and (b) and section 21 of the Act as the “sensitive information”. Section 21 of the Act refers to section 15 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Access Act). For completeness, it is appended hereto as Schedule “B”. It deals with information relating to matters such as military operations, defence equipment, the detection of subversive activities, international negotiations, diplomatic correspondence and communications, and intelligence gathering systems.

There are also exemptions in paragraphs 19(1)(c) and (d), and sections 22 to 28 of the Act [section 24 (am. by S.C. 1994, c. 26, s. 56)] which deal with information received in confidence from provincial and municipal governments and with information relating to police investigations, provincial law enforcement, threats to the security of Canada, security clearances and parole reports, if the disclosure of such information could reasonably be expected to cause specified injuries. These sections also exempt information from disclosure, if disclosure could threaten the safety of others, reveal information about others or breach solicitor-client privilege. In the case of medical records, information is exempt if its release would be contrary to the best interests of an applicant. During hearings to consider the validity of claims for these exemptions, the mandatory provisions for in camera and ex parte provisions in section 51 do not apply. Rather, subsection 46(1) of the Act applies. It provides that a judge who considers exemptions (other than those in paragraphs 19(1)(a) and (b) and section 21) has discretion to hear submissions in camera or ex parte.

Subsection 46(1) reads:

46. (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of

(a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or

(b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists.

THE PRACTICAL CONTEXT

Review proceedings under section 41 of the Act are commenced by a notice of application. I am advised that, typically, the application is supported by an affidavit which is filed on the public record. In this case, the MacEwan affidavit fulfils that role. In broad terms, it sets out the history of the applicant’s request for access and the access provided. It describes the relevant information banks and their contents and discusses the justification for the collection of the information they contain. It then describes why the information, which has not yet been provided, is subject to exemptions and what types of injury could occur in the event of disclosure.

Throughout the MacEwan affidavit, reference is made to a secret affidavit (the secret affidavit). This is an affidavit which Mr. MacEwan has sworn and which counsel for the respondent proposes to tender on the basis that it must be accepted as an ex parte submission pursuant to subsection 51(3). Pending a resolution of the constitutional issue, the secret affidavit has not been submitted for filing. However, according to the MacEwan affidavit, the secret affidavit will annex all information in Bank 15 for which exemptions are sought and will correlate each item of information with the relevant exemption. As well, the secret affidavit will indicate whether, in fact, information about the applicant exists in Bank 10. If it exists, the information will be annexed and the relevant exemptions will be set out and justified.

At the outset of a review to which section 51 does not apply, counsel for the respondent would presumably also file an affidavit on the public record which would set forth the history of the application. Counsel for the respondent would then discuss the general nature of the exemptions claimed and the information sought. At any time, the respondent’s counsel could ask the reviewing judge to exercise his or her discretion to exclude the public, accept a secret affidavit or otherwise receive submissions in camera or ex parte pursuant to section 46 of the Act. The only difference when a review is governed by section 51 is that, because exemptions under paragraph 19(1)(a) or (b) or section 21 are among the exemptions claimed, a confidential affidavit must be accepted and ex parte evidence must be received. As well, the review must be held in camera.

SECTION 1 OF THE CHARTER

I approach this analysis with the benefit of the Supreme Court of Canada’s recent decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 (RJR). Based on RJR, I have concluded that the principles for a section 1 analysis described in the Supreme Court’s decision in R. v. Oakes, [1986] 1 S.C.R. 103 (Oakes) are to be regarded as criteria or guidelines and not as rigid tests. As well, I note that I am to take a flexible and realistic approach which applies common sense and which allows both intuition and rational inferences a role in the application of the normal civil standard of proof. Finally, there must be a reasoned and demonstrated justification. With all this in mind, I turn to the Oakes factors as they bear on this case.

i)          Pressing and Substantial Objective

The objective the impugned provisions are designed to achieve must be sufficiently pressing and substantial to warrant overriding the constitutionally protected right or freedom. The respondent’s evidence, when viewed as a whole, indicates that the objective is to avoid the perception on the part of Canada’s allies and information sources that an inadvertent disclosure of sensitive information might occur (the objective). This perception would jeopardize Canada’s present level of access to information provided by foreign sources.

The respondent filed five affidavits for the section 1 argument in addition to the MacEwan affidavit. They were filed in respect of the operations of CSIS, the RCMP, the Department of National Defence and the Department of External Affairs (now Foreign Affairs). Only Mr. MacEwan was cross-examined on his affidavit. I will describe each of the additional affidavits in turn.

a)         CSIS

The affidavit of Margaret Ann Purdy is dated October 31, 1994 (the Purdy affidavit). At that time, she was the newly appointed Director General of the Counter Terrorism Branch. She had previously been Deputy Director General. She described her previous employment as follows:

2. From 1975 through 1980 and again from 1982 through 1988, I was a civilian member of the Royal Canadian Mounted Police (“RCMP”) working at National Headquarters in the areas of protective policing and national security and criminal intelligence and investigations. From 1988 through 1990 I was a senior policy advisor in the office of the Inspector General of CSIS, Ministry of the Solicitor General. I became an employee of CSIS in April of 1992.

Ms. Purdy also deposed in paragraph 3 of her affidavit that “her experience with foreign governments and agencies has been in connection both with the exchange of information relating to criminal intelligence and intelligence relating to the security of Canada and international terrorism.” In that context, she regularly dealt with the exchange of information between foreign governments and foreign police and security agencies on one hand and CSIS on the other hand.

The Purdy affidavit describes CSIS’ mandate and makes it clear that CSIS is required to collect and retain information related to suspected threats to the security of Canada. These threats are defined in sections 12 through 20 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 (the CSIS Act) [sections 13, 16, 17 and 19 amended by S.C. 1995, c. 5, s. 25]. In fulfilling its mandate and, after specified approvals and consultations, CSIS, under paragraph 17(1)(b) of the CSIS Act, is entitled to enter into and has entered into co-operation agreements which include information sharing agreements with governments of foreign states and institutions, and international organizations of states.

According to paragraph 14 of the Purdy affidavit, CSIS receives sensitive information which is “invariably provided in confidence and on the explicit or implicit understanding that neither the information nor its source will be disclosed without the prior consent of the entity which provided it”. Ms. Purdy then indicates that this principle is widely recognized within the policing and security intelligence communities and is known as the “third party rule”. CSIS provides and accepts information subject to this rule.

The Purdy affidavit further indicates that CSIS receives sensitive information, not just because of the third party rule which requires CSIS to treat the information as confidential, but also because there is confidence on the part of information providers that the Canadian government understands the need for confidentiality and has in place practices and procedures to safeguard information. Ms. Purdy is satisfied that Canada’s information sources are aware of the safeguards in section 51. In conclusion on this topic, the Purdy affidavit indicates in paragraphs 18, 19, 23, 25, 26 and 29 that, in her opinion, if such entities were to lose faith in either the commitment or the ability of CSIS and the Government of Canada to protect such sensitive information, there would be a significant detrimental impact on the ability of CSIS to continue to collect such information and carry out its mandate.

Ms. Purdy believes that, if section 51 is no longer available as a mandatory safeguard against the inadvertent disclosure of sensitive information during the judicial review process, CSIS may be obliged to advise its allies and associates of the fact that its ability to protect their information has been diminished. In her view, it is reasonable to expect that our allies’ reactions to a loss of the mandatory provisions of section 51 may vary. Some may discontinue the alliance or association. Others may continue their alliance, but with a reluctance to be candid. In her opinion, the absence of mandatory provisions would also tend to discourage the development of relationships with new allies and associates. Whatever the case, any reduction in the protection for sensitive information would impact in a negative fashion on the flow and quality of such information and it is necessary to help ensure the security and defence of Canada and states allied or associated with Canada.

In Ms. Purdy’s opinion, it is necessary to protect information which would tend to identify human sources or targets of investigations or otherwise compromise CSIS’ ability to fulfil the mandate which Parliament has accorded it under the CSIS Act. She then makes the point that, when the ability of CSIS to collect sensitive information is lessened, its ability to engage in the detection, prevention or suppression of subversive or hostile activities is compromised, as is the safety of Canadians.

b)         The RCMP

François M. J. Hummel swore an affidavit dated November 4, 1994 (the Hummel affidavit). At that time, he was a superintendent in the RCMP and the officer in charge of the RCMP’s International Law Enforcement Liaison Branch, Immigration and Foreign Services Directorate. He described his present duties and past responsibilities in the following terms in paragraphs 2 and 10 of his affidavit:

2. I am responsible for managing the activities of the RCMP relating to the International Criminal Police Organization (ICPO) generally known as Interpol, Foreign Service projects, and the Canadian Police Information Centre (CPIC) and National Law Enforcement Telecommunications System (NLETS) interface (Automated Canada/USA Police Information Exchange system (ACUPIES)). I also monitor the overseas operations of our Liaison Officers who are posted to other countries.

…

10. In past positions, I frequently dealt with and I continue to deal with representatives of foreign governments and foreign police and security agencies with respect to the exchange of information between such agencies and the RCMP. Such information relates to criminal intelligence and to international terrorism. During my posting in Berne, Switzerland, from 1980 to 1984, I also dealt with intelligence relating to the security of Canada.

The Hummel affidavit describes the RCMP’s broad mandate to deal with matters which include drug enforcement, economic and computer crime, customs and immigration issues, and counterfeiting. The RCMP is also the National Central Bureau for Canada in the International Criminal Police Organization, known as Interpol. As well, the RCMP is responsible for performing peace officer duties in respect of conduct which constitutes a threat to the security of Canada under the CSIS Act.

The Hummel affidavit makes it clear that, in connection with most of its activities, the RCMP requires information and intelligence from abroad. To secure such information, the RCMP has entered into agreements with foreign police forces, agencies, governments and international organizations such as Interpol. These agreements operate on the basis that the information exchanged will be kept confidential.

Concerning the importance of section 51, Mr. Hummel testified as follows in paragraph 32 of his affidavit:

Should section 51 of the Privacy Act become unavailable as a secure method for the review by a court of confidential information received from foreign police agencies, prior to its possible disclosure, the RCMP would be in a position where it would be obliged to inform those foreign agencies from which it receives police and security information that its capacity to protect the confidentiality of such information has been reduced. As noted above, this could cause a halt to the receipt of information or a reduction in the receipt of useful information.

c)         The Department of National Defence

The affidavit of Brigadier General Barry Wayne Ashton (Ashton) was sworn on November 7, 1994 (the Ashton affidavit). At the time he made his affidavit, Ashton was the Director General Military Plans and Operations/Chief of Staff J3 at Canadian Forces National Defence Headquarters of the Department of National Defence. Among other matters, Ashton was responsible for the direction and control of the military operations of the Canadian Forces (CF). Those operations included the planning and the actual deployment of our forces on Canadian domestic and international operations. As well, Ashton was responsible for the deployment of the CF to assist the RCMP. This assistance is usually given in counter-drug operations involving the illegal importation of drugs by air or sea.

Ashton’s work involved the exchange of information between co-operating armed forces and his evidence was that some material as it related to technology, strategy, tactics and operations was sensitive and that its disclosure could have endangered the lives of armed services personnel. He further testified that information was exchanged in confidence on the basis that it would only be disclosed to those with a need to know. His conclusion on the importance of section 51 is found in paragraphs 15 and 16 of his affidavit. They read as follows:

15. The legal review of a decision not to release certain “in confidence” information obtained from foreign military sources, as provided in the Access to Information Act and the Privacy Act, should, in my view, absolutely limit the number of persons with access to the detailed information being sought. A legal review process which might increase the number of persons having access to the information and which could result in public disclosure of the information would almost certainly restrict, if not completely eliminate, the possibility of Canada receiving such information from like-minded nations in the future.

16. The CF would be very severely constrained in its ability to meet Canada’s alliance commitments and to conduct operations and exercises with alliance partners or other military forces if information and intelligence is not readily available to the CF. Additionally, Canadian missions and personnel would be jeopardized if timely, detailed intelligence were not available from allied sources about the risks present in locations where CF personnel are deployed or may be deployed.

d)         Department of Foreign Affairs

i) Alan Franklin Bowker’s affidavit was sworn on November 9, 1994 (the Bowker affidavit). He stated that he had served the Department of Foreign Affairs (DFA) for 21 years as a rotational foreign service officer and had developed a detailed knowledge of the workings and policy imperatives of virtually all sectors of the DFA. He was, at the time his affidavit was sworn, the coordinator, Access to Information and Privacy Protection.

The Bowker affidavit stressed the importance to the DFA of a steady flow of accurate current information on political, military, economic and commercial developments. It noted that information received from foreign governments and international organizations, whether conveyed formally or informally, was critical to the effective conduct of Canada’s external relations. He further noted that international convention and practice dictates that such information is received in confidence unless there is express agreement to the contrary.

In Mr. Bowker’s view, any impairment of Canada’s ability to protect information obtained in confidence from foreign governments would affect their willingness to share sensitive information with us. He said that our ability to protect information received in confidence must be unqualified and be seen to be so. He opined that a procedural regime which could result in the inadvertent disclosure of sensitive information and/or its source would cause severe damage to foreign states’ confidence in Canada’s ability to protect confidential information.

The Bowker affidavit continued by observing in the following terms that Canada is a net importer of information:

14. Canada is not a great power. It does not have the information gathering and assessment capabilities of, for instance, the United States, the United Kingdom or France. Canada does not have the same quantity or quality of information to offer in exchange for the information received from the countries which are our most important sources. If the confidence of these partners in our ability to protect information is diminished, the fact that we are a relatively less important source of information increases our vulnerability to having our access to sensitive information cut off.

15. Other governments that provide Canada with information, including personal information, are aware that Canada has privacy and access to information legislation. The Canadian government can draw their attention to Sections 19 and 21 of the Privacy Act to assure them that personal information given in confidence by a foreign government and information the disclosure of which would be injurious to the conduct of international relations can be protected under that Act. These governments are aware that any refusal by the Government of Canada of a request for disclosure of personal information can be challenged in the Canadian courts. They are also aware that because the Canadian court system is essentially an open system, there is a potential danger that such information might be disclosed inadvertently or as necessarily incidental to the determining of issues in a hearing. The mandatory in camera nature of the hearing and the right to make ex parte representations provisions in section 51 of the Privacy Act ensure that such disclosures cannot be made and can be cited by the Government of Canada to assure the governments of foreign states that there will be no inadvertent disclosure of sensitive information. Without these extra procedural protections the substantive protections in sections 19 and 21 are greatly diminished in value. The confidence of foreign states would be diminished because, while the Government of Canada could give assurances that a request for such information could and would be refused under Canadian law, it could not give assurances that it would necessarily be protected from inadvertent disclosure during a hearing.

ii) Professor John M. Fraser, a former member of the Canadian Foreign Service, swore his affidavit on November 16, 1994 (the Fraser affidavit). Professor Fraser was, at that time, an adjunct professor and sessional lecturer at Carleton University in Ottawa. However, from 1987 to 1992, Professor Fraser was the director general, Foreign Intelligence Bureau of the Department of External Affairs. In earlier years, he served as Ambassador to Yugoslavia with concurrent accreditation to Bulgaria and as Ambassador to Poland with concurrent accreditation to the German Democratic Republic. During this period, Poland underwent significant changes with the foundation of the Solidarity Trade Union, the imposition of martial law and its eventual removal. Prior to 1980, Mr. Fraser’s postings involved dealings with countries which are placed geographically from Lybia to Iran. It was a turbulent period which he described as follows:

7. … Developments during my period in this capacity included President Sadat’s visit to Jerusalem and the subsequent Camp David Agreements, the fall of the Shah of Iran and the coming to power of the Ayatollah Khnomeini and the seizing of the American Embassy in Teheran. I was involved in dealing with issues related to Canada’s vote on innumerable resolutions on the Middle East in the United Nations General Assembly and the development (in cooperation with the Department of Industry, Trade and Commerce) of government policy on the Arab boycott of Israel, and measures to discourage or prevent Canadian firms from accepting that boycott.

Before this period, Mr. Fraser opened the Canadian embassy in the People’s Republic of China as chargé d’affaires.

Exhibit “A” to the Fraser affidavit is Professor Fraser’s report (the Fraser Report) which is based on his extensive experience, and which deals with the collection and sharing of diplomatic and intelligence information in the international community. The Fraser Report makes the following points:

4. A. Despite a trend towards less secrecy and a very large body of published work on the subjects of diplomacy, intelligence, and security, confidentiality remains a fundamental and necessary characteristic of all three.

B. Protection of sources and methods is a core requirement for security and intelligence agencies in all countries. Protection of sources is also of very great importance in diplomatic reporting.

C. Guaranteed protection for information received in confidence from other governments is a pre-requisite for their continued willingness to supply such information.

D. The exchange of information and assessments with our major allies and other friendly countries is of very great importance to Canada’s security and intelligence and foreign policy interests. In both areas Canada receives a good deal more than we contribute.

E. The existence and operations of our Access to Information and Privacy Acts have given rise to concern on the part of some of our intelligence allies about our ability to ensure the protection of information they give us in confidence. Any perception of a weakening in our ability to ensure such protection could create some degree of hesitancy in giving us sensitive information, and would probably result in a down-grading of the quantity and/or quality of the information they were willing to share.

…

18. A failure to protect any kind of information received in confidence, or the weakening of legal or structural protection against disclosure, would result in a reduced willingness to share information with Canada. This is not to say that the cutting off of information would be total or immediate. Unless the breach had been egregious, concerns about our ability to protect information would probably be reflected by a drying up of intelligence material made available to Canada about which we might not even be informed. It would be hard to verify; you don’t know what you are not getting.

19. With intelligence as with diplomatic confidences, reactions to disclosure or the possibility that sensitive information given to us in confidence might be disclosed would only be related in a limited degree to the content of that information. A perception that we were a less reliable confidant that [sic] we are at present would be enough to cause senior officials in other countries to be wary about talking frankly to Canadian diplomats and foreign intelligence agencies to screen the information they passed to us in light of the potential danger of compromise.

…

23. Other countries share information and intelligence with us because they consider it in their interests to do so. In almost any circumstances they would still consider it in their interest to share some information with us, but their calculations of risk and benefit might well be different in many cases if they considered us potentially unreliable in terms of our ability to guarantee the protection of information they give us in confidence.

…

27. We can be sure that any lessening of our ability to guarantee the protection of information they give us in confidence will not pass unnoticed. To substitute for mandatory ex parte and in camera hearings their dependence on the discretion of the Court on a case-by-case basis would certainly be seen as a significant, albeit, in most cases, small dilution of our ability to ensure such protection. While everybody realizes that leaks, indiscretions and other breaches of security can take place despite the most comprehensive measures to prevent them (and there is probably no country in which they have never taken place), this does not lessen the importance our allies and intelligence partners place on having as many barriers as possible to protect the inadvertent or wilful disclosure of sensitive information. Section 51 of the Privacy Act and analogous sections of other relevant legislation are an important class of such barriers.

Following a review of the affidavits, I was directed to the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs for June 8, 1982.[1] At that time, Clause 53 of the proposed Privacy Act (now section 51 of the Act) was being considered and the Honourable Francis Fox, then Minister of Communications, made the following statement:

… Mr. Chairman, this is an amendment that deals with requests for access to documents which relate to international affairs and defence. We are talking about some of the documents that are the most sensitive to the interests of Canada.

The proposals you have before you would see to it that review of denials, if there were a denial based on these provisions, would be made according to a number of special rules set out in the motion which would prevent any of these documents that have been denied from becoming public accidentally. If the judge, of course, comes to the conclusion that there are no reasonable grounds on the part of the minister, then they would be made public.

Until that decision is made, these amendments would ensure that the hearing would be held in camera, that the hearing would be in front of the Associate Chief Justice of the Federal Court or his designate, that it would be done in the National Capital area, if requested by the refusing institution, so that we do not have to send documents of a particularly sensitive nature to all parts of the country—and to ensure that the court would allow representations to be made ex parte where the head of the government institution so requests, which basically means that during the in camera hearing, the head of the government institution would be allowed to make representations to the designated judge on why he has reasonable grounds to believe disclosing documents would result in injury to the country. [My emphasis.]

Based on all of the evidence just described, I have no difficulty concluding that the impugned provisions are directed to a significant objective of pressing and substantial importance.

ii)         Proportionality

(a)       Rational Connection

I have also concluded that there is a rational connection between the impugned provisions and the objective. There is no question in my mind that to have in camera proceedings with ex parte representations reduces the risk of an inadvertent disclosure of sensitive information. I should note for clarity that, in my view, in this context, an in camera proceeding is one in which those present are forever precluded from discussing the proceedings with anyone who was not in the courtroom.

(b)       Minimal Impairment

In considering this topic, I have focussed on the question whether, from a practical perspective, there is a means to achieve the objective which would intrude to a lesser extent on the applicant’s rights under paragraph 2(b) of the Charter. Those rights are not personal to or specific to the applicant. For example, this case does not deal with the extent of disclosure to which Mr. Ruby ought to be entitled as a party seeking access to his information under the Act. The applicant, for the purposes of this discussion, stands in the shoes of members of the press who, in turn, are understood to function as surrogates for members of general public.

Counsel for the respondent suggests that section 51 embodies the principle of minimal impairment because it only applies when exemptions under paragraphs 19(1)(a) and (b) and section 21 are actually being considered. She submits that the entire proceeding need not be in camera and that ex parte representations need only be received as a mandatory matter, on the paragraphs 19(1)(a) and (b) and section 21 exemptions. I agree only with the second part of this submission. In my view, if the paragraphs 19(1)(a) and (b) and section 21 exemptions are among those at issue and presuming, as I have been told is the case, that a secret affidavit is accepted for filing at the outset, the entire review must be in camera to effectively prevent inadvertent disclosure. However, it is clear to me that the receipt of ex parte representations is only mandatory to the extent that those representations deal with paragraphs 19(1)(a) and (b) and section 21 exemptions for sensitive information.

The respondent’s counsel also argues that, given the contents of the MacEwan affidavit, which is on the public record, the public’s need to understand the case is satisfied and the rationale behind the various exemptions is made known. She stresses that the secret affidavit is limited in that it deals only with the sensitive information and its connection to the exemptions. She also notes that a judge who thinks that a public affidavit is deficient may order the disclosure of more information on the public record. She further submits that the operation of the impugned provisions may be of short duration. In the event that a judge decides that the exemptions claimed are unjustified, the information withheld on the basis of unjustified exemptions will be made public.

The applicant, on the other hand, takes the position that a procedure akin to that approved by the Supreme Court of Canada[2] for the review of affidavits used to obtain wiretaps is illustrative of minimal impairment. That procedure is undertaken in open court. The judge reviews the affidavit which is before Crown counsel, but not before counsel for the accused. The reviewing judge edits the affidavit by blacking out sensitive material such as the names of sources or investigative techniques. During the editing process, both counsel make general submissions. In the end, the judge produces an affidavit with deletions and an inoffensive summary of the deleted material. This procedure was developed to protect the rights of an accused under section 7 of the Charter.

In my view, a procedure of this kind, even if held in camera, would often be impractical. For example, it would not work in a case such as this one where the respondent refused to confirm or deny the existence of information. As well, it would not be feasible in cases involving large numbers of documents or a small number of complicated documents. I should also note that section 7 of the Charter is not at issue during the review process.

The applicant’s witness is Professor Reg Whitaker of York University. His B.A. and M.A. were granted by Carleton University and he was a member of its Political Science Department from 1972 to 1984. During that period, he obtained a Ph.D. in Political Economy from the University of Toronto and, in 1984, he assumed his present position as a professor of Political Science at York University. His affidavit was sworn on September 14, 1995 (the Whitaker Affidavit). He describes his expertise in the following terms:

2. I am a specialist in security and intelligence issues, and have published books and articles in scholarly journals on this subject. I teach graduate and under-graduate classes in the Politics of Security and Intelligence at York University. I am a member [and past-member] of the Executive of the Canadian Association for Security and Intelligence Studies, an organization that includes both academics and practitioners and holds annual and special conferences (some of which have been supported by various agencies of the Federal Government). I have in the past been consulted by the Security Intelligence Review Committee (SIRC) and by parliamentary committees on national security. I have also appeared as an expert witness before SIRC and before Immigration, Deportation and Refugee hearings on matters concerning intelligence. I was an invited participant in a seminar for members of SIRC on the five-year review of the CSIS Act in June 1989. I have been invited to take part in SIRC-sponsored conferences as a speaker. As well, I was invited by the Special Committee on the Review of the CSIS Act to make submissions on [sic] to the Committee. I made those submissions in June 1989. I was qualified as an expert witness on security intelligence matters in Baroud v. M.E.I. in the Federal Court of Canada.

3. In the course of my research, I have had opportunity to make extensive use of the Access to Information Act and the Privacy Act regarding national security records, and I am indeed one of the most experienced users of access legislation in this area in Canada. As a result of this extensive experience, I have often been invited to address conferences and public forums on access to information issues. From 1987 to 1990, I was a member of an advisory council on government records that included public servants and a small number of non-governmental representatives to advise on the disposal of government records. Since 1991, I have been appointed to an advisory body to the National Archives of Canada, the Researchers’ Forum. I am expert on the issues of the danger or otherwise of release of government information as a security concern.

Professor Whitaker presents the American and Australian situations. He says that the United States’ Freedom of Information Act, 5 U.S.C. § 552 (1994) provides no special protection for information, even for national security information received by the United States in confidence. He goes on to say that:

The United States is the senior partner in the Western alliance and is far and away the most important producer of intelligence that is exchanged through the Western intelligence network. Yet the United States offers no reciprocal protection against disclosure of information it receives from its allies in confidence.

This statement is inaccurate. Section 552(b)(1)(A) of the United States’ Freedom of Information Act provides that agencies are exempt from making public matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”. The President’s Executive order 12958 dated April 20, 1995 [60 Fed. Reg. 19825] deals with what constitutes classified national security information. Section 1.5 of the Executive order, when read with the introduction to the order, recognizes that the U.S. national interest requires that certain information from foreign governments and information relevant to national security may be kept in confidence to protect, inter alia , the United States’ position within the community of nations. If such information is classified and its disclosure is refused, the member of the public who requested the information may complain under section 552(a)(4)(B) of the United States Code, Title 5. In that case, the district court of the United States:

… has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.

Accordingly, there is some measure of protection by way of a discretionary in camera process even if a hearing is held.

Finally, the United States’ Justice Department Guide to the Freedom of Information Act dated September 1995, at page 67 notes that, like Canadian authorities, U.S. agencies may refuse to confirm or deny the existence or non-existence of information when its existence or non-existence is classified under Executive order 12958.

The question is whether the United States’ practice should be a model for minimal impairment in the Canadian context. I have concluded that it is not an appropriate model because the evidence discloses that the United States’ position is very different from our own. The United States is a net exporter of information and this exercise is supported by a massive intelligence gathering network. Canada, in contrast, is a net importer with far fewer resources. In these circumstances, it makes sense that Canada should have a greater concern about its allies’ perception of the effectiveness of its ability to maintain the confidentiality of sensitive information.

Professor Whitaker also testified that the Australian practice is governed by the Archives Act 1983 [No. 79, 1983]. Section 44 describes the powers and procedures of the Administrative Appeals Tribunal (AAT). The AAT reviews decisions about access made by the Australian Archives. However, the AAT cannot make an order requiring the disclosure of a record which has been given an exemption by a certificate. The AAT can, however, determine that no reasonable grounds exist for the non-disclosure and the relevant Minister then has 28 days to review the matter. The Minister must report to Parliament if he maintains the non-disclosure.

Paragraph 47(2)(a) of the Archives Act 1983 provides for mandatory in camera proceedings when exempt matters are at issue and, in subsection 47(3), discretion is given to hold ex parte proceedings and issue publication bans. One might reasonably ask whether mandatory in camera and discretionary ex parte proceedings following the Australian model would constitute minimal impairment. Two points are relevant here. Firstly, the applicant did not make this argument preferring to advance the wiretap affidavit review procedure as the only acceptable model for minimum impairment. Secondly, in April of 1992, the Australian Security Intelligence Organization (the ASIO) took the position before the Australian Parliamentary Joint Committee on the ASIO (the Committee) that material received in confidence from foreign sources should be exempt from disclosure and from AAT review for the length of time applicable in the country of origin. The ASIO’s witnesses shared the concerns expressed by the deponents of the respondent’s affidavits in this case. The evidence was discussed in the following term:[3]

3.1.7 The Committee received a submission from the Minister for Foreign Affairs, Senator the Hon. Gareth Evans, MP. After stating that he supported the principle of freedom of information and access to government records, the Minister went on to say:

“must nevertheless stress that it is important that Australia maintain the confidence of its friends and allies that we can protect the assessments and intelligence materials that they pass to us in confidence. This confidence can only be maintained as long as we can demonstrate that we have in place the institutional and legal basis to protect material so provided. Such exchanges of in-confidence information are an essential element in the effective conduct of diplomatic relations and in the formation of foreign and defence policies. While ASIO’s activities are domestic there will inevitably be some foreign material held on their files. The consequences of failure to protect this information from disclosure could include the disruption of the flow of valuable intelligence material and thus compromise our national interests.”

3.1.8 He went on to stress that there was an equal need to protect from release material from whatever source which, if publicised, would damage Australia’s foreign relations or our defence and security interests. Such material would of course include Australia’s intelligence assessments. The Office of National Assessments (ONA) made similar points in evidence to the Committee. In a letter to the Committee on behalf of the Department of the Prime Minister and Cabinet, the Secretary of that Department, Mr. M H Codd, AC made similar submissions when he referred to:

“the concern expressed by some foreign government Intelligence Agencies that the Government is unable to give absolute (as opposed to qualified) assurances that information provided to Australia in confidence is protected from release. If overseas governments were reluctant to continue to provide certain sensitive intelligence information to us, then this would have serious adverse implications for our own capabilities, and for the maintenance of productive general liaison arrangements.”

3.2.1 It is important that Australia’s international relations and defence interests should not be imperilled by the release of material, whether deliberately or inadvertently, that has the capacity to damage those relations or interests. The question is, therefore, whether these interests are sufficiently protected under the present arrangements. Submissions to the Committee from the Intelligence Agencies expressed concern as to the effect on the activities of ASIO should the existing restrictions on the release of foreign-sources material appear to be reduced.

…

3.2.3 It would appear that unwanted information has never been released. The concern is that the potential is perceived to exist and that this perception is sufficient to undermine the confidence of some supplying nations that their material is absolutely protected from disclosure. This distrust has the potential to cause the kind of adverse reaction leading to the consequences referred to by ASIO in its submission.

In its Report,[4] the Committee made the following recommendations:

RECOMMENDATION 1:

That guidelines be issued by the Minister to the Intelligence Agencies requiring that foreign material received in confidence should be exempted from disclosure for such period as that material is restricted from public access in the country of origin.

RECOMMENDATION 2:

That the Archives Act should be amended to preclude any appeal to the Administrative Appeals Tribunal from a certification by the Inspector-General of Intelligence and Security that the guidelines issued by the Minister respecting protection of foreign-derived material has been properly observed.

As yet, no legislative changes have been made to implement these recommendations.

Given this background, however, I am not prepared to conclude that the current Australian practice represents a reasonable example of minimal impairment.

In 1987, a standing committee of the Parliament of Canada[5]⁵ made recommendations which, had they been implemented, would have involved reduced restrictions at the time exemptions were claimed. The relevant recommendation was that the exemption in section 19 of the Act not be mandatory for the head of the government institution and that an injury test be used to justify non-disclosure. However, the excerpt from Chapter 3 of the Standing Committee Report, which appears as Exhibit C to the Whitaker affidavit, does not address the review process or the impugned provisions.

The Government responded to the Committee’s recommendation in a document entitled Access and Privacy: The Steps Ahead. It was published in 1987 by the Minister of Supply and Services Canada. At page 37 and following, the concept of significant injury as a basis for the application of exemptions was rejected and the exemption for information received in confidence from other governments was justified at page 39 on the basis that, “[t]he willingness of other governments to continue to share their information with Canada would likely be adversely affected by the lesser degree of protection which would be given if these recommendations were implemented”. Again, as was the case with the Standing Committee’s Report, the impugned provisions and the review process were not addressed.

The Australian and Canadian experiences demonstrate that there is ongoing debate about the best way to balance access to information rights against the need for co-operation in the international exchange of confidential information. However, in my view, these debates have not suggested an alternative to the impugned provisions which would meet the objective with a lesser impairment of paragraph 2(b) of Charter rights.

Finally, on this topic, I was asked to reflect on the procedure used by Canada’s Security Intelligence Review Committee (SIRC). A protocol between CSIS and SIRC was attached as Exhibit “E” to the Whitaker affidavit. It provides that SIRC is entitled to all CSIS information except Cabinet confidences. However, if the information the SIRC requests comes from third parties the following is agreed:

When information obtained from third parties is to be provided to SIRC, CSIS will be given reasonable time to inform the originating agency. That agency may forward to SIRC, via CSIS, any comments, supplementary caveats, or explanations deemed appropriate. SIRC will then observe any special precautions requested by the agency.

Information provided by CSIS to SIRC which originated with third parties will be clearly labelled. Information so labelled will be treated with extreme care by SIRC.

SIRC will not disclose “third-party” information to others, except with the specific previous authority of the originating agency.

SIRC is part of the Security Intelligence system set up by the CSIS Act, and thus is bound by the CSIS Act’s constraints regarding the protection of National Security, and information pertaining thereto. With regard to “third-party” information provided to SIRC, the Committee will be bound by any caveat accompanying such information unless specifically released from such caveat by the originating agency.

In my view, although subsection 39(1) of the CSIS Act gives SIRC the right to determine its own procedures and does not require SIRC to hold mandatory in camera and ex parte hearings, the protocol makes it clear that it will use such procedures as are necessary to protect confidential information from third parties. The protocol also makes it clear that SIRC is part of CSIS and accepts the importance of protecting third party information. In these circumstances and in the absence of evidence on SIRC’s actual practice in the performance of its various functions, I am not prepared to treat SIRC procedures as a compelling blue print for minimal impairment which should apply in an independent institution such as the Federal Court.

In all of the circumstances, I am prepared to find that the impugned provisions represent a minimal impairment of the applicant’s paragraph 2(b) Charter rights.

(c)        Overall Proportionality

This part of the Oakes test was recently restated by Chief Justice Lamer, when he spoke for the majority of the Court, in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (Dagenais). In that case, His Lordship stated (at page 889):

I would … rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.

The Chief Justice explained the rationale behind the reformulation of the proportionate effects test in Dagenais (at page 887):

In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective.

Professor Fraser, on the respondent’s behalf, says that the removal of the impugned provisions from the Act would create a perception in the minds of Canada’s intelligence allies that our ability to protect sensitive information had weakened and that perception “would probably result in a down-grading of the quantity and/or quality of the information they were willing to share”. He says that the cutoff of information would not be total nor immediate. It would more likely take the form of a drying up and would be hard to verify. He concludes by saying that any change which replaces the impugned provisions with discretionary protections will be noticed by our intelligence allies and will be seen as a “significant” though “small” diminution of our ability to protect sensitive information from inadvertent disclosure.

On the other side of this issue, the applicant says that the evidence about the good achieved by the impugned provisions is weak and speculative. I agree that the evidence of possible harm is speculative, but I accept the opinions of the respondent’s witnesses as credible and well founded. It is also, I believe, the best evidence available. It would be unreasonable to suppose that one of Canada’s allies or an individual informant would file affidavits indicating with any precision how they would react if the impugned provisions were not longer in force.

I have concluded that the salutary effects of the impugned provisions are hard to quantify. They involve a small but significant diminution in our ability to gather sensitive information.

I have also concluded that the deleterious effects of the impugned provisions on freedom of the press are minimal. I say this because, even if the mandatory impugned provisions were not available, I consider it to be virtually certain that, if the respondent presented appropriate evidence that the sensitive information and related exemptions under review involved national security issues or issues of highest confidence, a judge, in the exercise of his or her discretion under subsection 46(1), would hear such matters in camera and, if asked, ex parte.

In all these circumstances, I have concluded that the objective has been protected in a sensible fashion by the impugned provisions and that overall proportionality has been achieved.

Conclusion

The impugned provisions of the Act are saved by section 1 of the Charter. Accordingly, the applicant’s challenge to the constitutionality of the impugned provisions will be dismissed.

Costs

The applicant concluded by asking for costs and both parties filed written submissions on this issue. The applicant’s submissions were based on section 52 of the Act which provides:

52. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.

(2) Where the Court is of the opinion that an application for judicial review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result. [Emphasis mine.]

In written submissions, the applicant relied on subsection 52(1) of the Act in the event of success on the Charter issue. Otherwise, the applicant asked for costs of the Charter argument under subsection 52(2). The respondent has not asked for costs at this time.

With regard to subsection 52(1), the applicant succeeded in persuading me that the impugned provisions were unconstitutional. However, the respondent’s section 1 argument later prevailed. In these circumstances, I am going to exercise my discretion to make no order as to costs under subsection 52(1).

In my view, subsection 52(2) governs only the application for judicial review as it relates to the merits of the review. As the review has not occurred, it would be premature to apply subsection 52(2) at this point in the proceedings.

SCHEDULE “B”

Access to Information Act, section 15

15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably 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, including, without restricting the generality of the foregoing, any such information

(a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities;

(b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment;

(c) relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;

(d) obtained or prepared for the purpose of intelligence relating to

(i) the defence of Canada or any state allied or associated with Canada, or

(ii) the detection, prevention or suppression of subversive or hostile activities;

(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;

(f) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such information;

(g) on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations;

(h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or

(i) relating to the communications or cryptographic systems of Canada or foreign states used

(i) for the conduct of international affairs,

(ii) for the defence of Canada or any state allied or associated with Canada, or

(iii) in relation to the detection, prevention or suppression of subversive or hostile activities.

(2) In this section,

“defence of Canada or any state allied or associated with Canada” includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada;

“subversive or hostile activities” means

(a) espionage against Canada or any state allied or associated with Canada,

(b) sabotage,

(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,

(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,

(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and

(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.

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