T-864-98
IN THE MATTER OF the Privacy Act, R.S.C., 1985, c. P-21, and Section 108 of the Customs Act, R.S.C., 1985, c. C-1;
AND IN THE MATTER OF certain complaints received by the Office of the Privacy Commissioner of Canada in respect of the communication of personal information collected by the Department of National Revenue to the Canada Employment and Insurance Commission;
AND IN THE MATTER OF an application by way of special case stated for opinion of the Federal Court, Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C., 1985, c. F-7.
Indexed as: Privacy Act (Can.) (Re) (T.D.)
Trial Division, Tremblay-Lamer J."Ottawa, November 30, 1998 and January 29, 1999.
Privacy — Disclosure of information by Revenue Canada (Customs) to CEIC pursuant to understanding regarding data capture and release of customs information on travellers (program aimed at catching those receiving UI benefits while out of Canada) not authorized by Privacy Act, s. 8 and Customs Act, s. 108 — Information provided by travellers —personal information— as defined in Privacy Act, s. 3 — Privacy Act, s. 8(2)(b) authorizing disclosure of personal information for any purpose in accordance with any Act of Parliament authorizing disclosure — Customs Act, s. 108(1)(b) authorizing disclosure, but only in limited circumstances, not, as here, pursuant to blanket authorization of disclosure for enforcement of any law of Canada or province.
Customs and Excise — Customs Act — Disclosure of —personal information— by Revenue Canada (Customs) to CEIC pursuant to understanding regarding data capture and release of customs information on travellers (program aimed at catching those receiving UI benefits while out of Canada) not authorized by Privacy Act, s. 8 and Customs Act, s. 108 — Blanket authorization issued by Minister (allowing disclosure of information obtained for Customs Act purposes if required for enforcement of laws of Canada or province) invalid exercise of discretion: under Customs Act, s. 108, confidential information to be disclosed only in limited circumstances; Minister had fettered his discretion, there being no examination of particular circumstances.
Employment insurance — Disclosure of —personal information— by Revenue Canada (Customs) to CEIC pursuant to understanding regarding data capture and release of customs information on travellers (program aimed at catching those receiving UI benefits while out of Canada) not authorized by Privacy Act, s. 8 and Customs Act, s. 108.
Construction of statutes — Disclosure of information by National Revenue (Customs) to CEIC pursuant to understanding regarding data capture and release of customs information on travellers (program aimed at catching those receiving UI benefits while out of Canada) not authorized by Privacy Act, s. 8 and Customs Act, s. 108 — As no Charter argument made, case to be decided by statutory interpretation, using contextual approach—Information provided by travellers —personal information— as defined in Privacy Act, s. 3 — Privacy Act, s. 8(2)(b) authorizing disclosure of personal information for any purpose in accordance with any Act of Parliament authorizing disclosure — Customs Act, s. 108(1)(b) authorizing disclosure, but only in limited circumstances, not, as here, pursuant to blanket authorization of disclosure for enforcement of any law of Canada or province — Reliance on extraneous considerations, fettering of discretion.
The Canada Employment Insurance Commission wanted to set up a program to identify employment insurance claimants who fail to report they are outside Canada while receiving benefits they are not entitled to. To that end, the Commission negotiated an understanding with Revenue Canada, Customs whereby the latter would disclose information provided by travellers: name, date of birth, postal code, purpose of travel, and dates of departure and return to Canada. That information was electronically matched with the Commission's database of employment insurance claimants. The Office of the Privacy Commissioner received certain complaints in respect of the communication of personal information collected by the Department of National Revenue to the Commission. This was an application by way of special case stated for opinion of the Court on whether the disclosure of "personal information" by the Department of National Revenue to the Commission pursuant to the memorandum of understanding for data capture and release of customs information on travellers is authorized by section 8 of the Privacy Act and section 108 of the Customs Act.
Held, the answer was no.
Since the Charter was not invoked herein, the case was based solely on statutory interpretation. In such a case, the courts are to apply a contextual approach: the words of the statute are to be given their ordinary grammatical sense and read harmoniously with the scheme of the Act. The contextual approach provides no basis for courts to engage in legislative amendments.
One of the purposes of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves held by a government agency. The travellers' information released under the program is "personal information" as defined in section 3 of the Privacy Act . Paragraph 8(2)(b) of the Act provides that personal information under the control of a government institution may be disclosed for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure.
Paragraph 108(1)(b) of the Customs Act allows disclosure of information to any person that the Minister may authorize, subject to conditions that the Minister may specify. The program here in question was established pursuant to a blanket authorization, which allows the disclosure of information obtained for the purpose of the Customs Act, when inter alia, the information is required for the administration or enforcement of a law of Canada. The test for reviewing an exercise of discretion by a Minister, as herein, was established by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2: a reviewing court is restricted to considering whether the Minister exercised his or her discretion in good faith, in accordance with the principles of natural justice and whether he or she relied on considerations which are relevant to the Act's purposes.
The authorization issued by the Minister was an invalid exercise of discretion. In exercising his discretion, the Minister is required to rely on considerations which are relevant to the purposes of the Act in question (here, the Customs Act). In Glaxo Wellcome PLC v. M.N.R., [1998] 4 F.C. 439 (C.A.), the Court stated that the purpose of sections 107 and 108 of the Customs Act was to preserve the confidentiality of information gathered in the administration of the Act and to disclose it only in limited circumstances. Despite this, the Minister has issued a blanket authorization purporting to authorize the communication of information for the administration or enforcement of, not simply the Customs Act, but of any Act of Canada or a province. The condition that, in the opinion of certain officials, the information is required for the administration or enforcement of a law of Canada or a province does not constitute "limited circumstances". Furthermore, it indicates a reliance upon considerations extraneous to the statutory objective of the Customs Act , as set out by the Federal Court of Appeal. Also, by issuing a blanket authorization, the Minister has fettered his discretion. There was no examination of the particular circumstances of the matter. Even if the Minister considered the present program as a whole, paragraph 108(1)(b) does not allow the Minister to authorize the investigation described in the memorandum of understanding. To authorize the program would be an exercise of discretion contrary to the purposes of the Customs Act.
statutes and regulations judicially considered
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].
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 107 (as am. by S.C. 1995, c. 41, s. 27), 108 (as am. idem, s. 28).
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(3)(b).
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3 "personal information", 4, 5, 7, 8.
cases judicially considered
applied:
Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; (1996), 139 D.L.R. (4th) 415; 28 B.L.R. (2d) 121; 12 C.C.L.S. 139; 203 N.R. 60; R. v. McIntosh, [1995] 1 S.C.R. 686; (1995), 36 C.R. (4th) 171; 178 N.R. 161; 79 O.A.C. 81; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Glaxo Wellcome PLC v. M.N.R., [1998] 4 F.C. 439; (1998), 162 D.L.R. (4th) 433; 20 C.P.C. (4th) 243; 81 C.P.R. (3d) 372; 228 N.R. 164 (C.A.).
authors cited
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPLICATION by way of special case stated for the opinion of the Court on whether the disclosure of "personal information" by the Department of National Revenue to the Canada Employment and Insurance Commission pursuant to a memorandum of understanding for data capture and release of customs information on travellers is authorized by section 8 of the Privacy Act and section 108 of the Customs Act. Answer to question: no.
appearances:
Brian A. Crane, Q.C. for the Privacy Commissioner of Canada.
Brian Saunders and Darrell Kloeze for Attorney General of Canada.
solicitors of record:
Gowling, Strathy & Henderson, Ottawa, for Privacy Commissioner of Canada.
Deputy Attorney General of Canada for Attorney General of Canada.
The following are the reasons for judgment rendered in English by
Tremblay-Lamer J.: This is an application by way of a special case stated for opinion of this Court, pursuant to paragraph 17(3)(b) of the Federal Court Act.1
AGREED STATEMENT OF FACTS
The facts of this case are contained in the agreed statement of facts and are concisely summarized in the memorandum of the Attorney General as follows:
1. This is a Case stated for the opinion of this Honourable Court pursuant to s. 17(3)(b) of the Federal Court Act by the Privacy Commissioner of Canada and the Attorney General of Canada.
2. The factual background relevant to this Stated Case is set out in the Agreed Statement of Facts. The following highlights elements of the Agreed Statement of Facts.
Agreed statement of Facts, Appendix "A" to the Stated Case.
Employment Insurance
3. The Employment Insurance Act establishes an employment insurance program designed to compensate workers for loss of income from loss of or separation from their employment and to provide them with economic and social security for a time.
4. The employment insurance scheme is essentially self-reporting, relying on claimants to provide the information necessary to prove that they are qualified to receive benefits and that they remain qualified during their benefit periods.
Agreed Statement of Facts, paras. 9, 10.
5. The employment insurance scheme is administered by the Canada Employment Insurance Commission (the "Commission") using officers and employees of the Department of Human Resources Development.
Agreed Statement of Facts, para. 8.
6. Claimants are not entitled to receive benefits under the Employment Insurance Act for any period during which they are not in Canada unless they come within an exception prescribed by the Employment Insurance Regulations. At the time of filing their initial claim for benefits, it is standard procedure for claimants to be informed of their rights and obligations while receiving benefits. These include the obligations to search for work at all times while claiming benefits and to report any absences from Canada immediately. Claimants are informed that they can discharge the latter obligation by advising their Canada Employment Centre or by noting their absence on their bi-weekly report cards.
Agreed Statement of Facts, paras. 12, 14;
Schedules H, I, J.
7. Approximately 29,000 claimants reported their absence from Canada in both 1995 and 1996 and had their employment insurance benefits ceased for the period of their absences as a result.
Agreed Statement of Facts, para. 15.
8. The purpose of the Program in issue is to identify employment insurance claimants who fail to report they are outside Canada while receiving benefits and to recover any resulting overpayments, and where appropriate, to impose penalties.
Agreed Statement of Facts, paras. 39, 59.
The Program
9. Persons arriving in Canada must present themselves to an officer of the Department of National Revenue ("Customs" or "Revenue Canada") on arrival at a port of entry and answer any questions asked by the officer in the performance of his duties under the Customs Act or any other Act of Parliament. Persons entering Canada by air must also complete the E-311 Traveller Declaration Card (the "E-311 Card") and provide the information requested.
Agreed Statement of Facts, para. 1.
10. Following a request by the Commission, Customs agreed to disclose to the Commission information from the E-311 Cards which could clearly be used by the Commission in the administration and enforcement of the Employment Insurance Act. Customs concluded that the information could be released to the Commission under s. 108(1)(b) of the Customs Act, without offending the Privacy Act.
Agreed Statement of Facts, paras. 31 to 35;
Schedules O, V.
11. The Commission agreed to use the information disclosed by Customs solely for the purposes of the Employment Insurance Act and not to disclose the information to any third parties.
Agreed Statement of Facts,
Schedule V.
12. Under the Program, certain information from E-311 Cards completed by Canadian residents returning to Canada by air is made available by Customs to be electronically matched with information collected by the Commission. The information made available by Customs consists of the traveller's name, date of birth, postal code, purpose of travel, and dates of departure and return to Canada.
Agreed Statement of Facts, para. 48;
Schedule P.
13. The information from the E-311 Cards is electronically matched with the Commission's database of employment insurance claimants. The Commission retains the E-311 Card information in respect of those Canadian residents who were outside Canada and who received employment insurance benefits any time following January 1994.
Agreed Statement of Facts, paras. 36, 50, 51.
14. The Commission then undertakes a number of further steps to identify claimants who received unemployment insurance benefits during unreported absences from Canada. Those claimants are then contacted and asked to provide information or an explanation in respect of the evidence that they had received employment insurance benefits during an unreported absence from Canada.
Agreed Statement of Facts, paras. 45 to 58.
15. As of November 1997, the Program had resulted in disentitlements being imposed in 31,467 cases. As of August 1998, 98,914 disentitlements had been imposed resulting in overpayments in 83,749 cases totalling $55,146,255. In addition, 40,689 penalties had been assessed as of August 1998 as a result of the Program.
Agreed Statement of Facts, para. 60 (sic).
Office of Privacy Commissioner
16. The Commission conducted a feasibility study on the merits of implementing the Program in 1995. Following the study, the Commission, in January of 1996, notified the Office of the Privacy Commissioner of the Program and told the Office that pilot matches were proposed for the period April 1, 1996 to October 1, 1996 with permanent implementation thereafter. This notification was done to comply with the Treasury Board Policy on Privacy and Data Protection.
Agreed Statement of Facts, paras. 29, 40 to 43,
Schedules K, R, S.
17. By letter dated March 1996, John Bell, Portfolio Leader in the Office of the Privacy Commissioner, informed the Commission:
"Based on our review of the assessment included with the memorandum and later supplemented by written comments received from Mr. David Lintaman, we consider that the requirements of the notification process under the government data match policy have been met. We do not intend to raise any objection to this program, which is intended to identify individuals who may have travelled outside Canada while receiving Unemployment Insurance benefits.
Clearly, unemployment insurance legislation provides statutory authority for collecting this information, and the Customs Act authorizes the disclosure of travellers' information for the proposed datamatch. We accept your assurances that a review of personal information bank descriptions listed in InfoSource is being undertaken and that appropriate amendments will be made both by Human Resources Development Canada and by Revenue Canada. Also, it is understood that Human Resources Development Canada will ensure that a copy of the completed agreement between Human Resources Development Canada and Revenue Canada be provided to this office"
Agreed Statement of Facts, paras. 44, 46;
Schedule T.
18. InfoSource, referred to in the letter from Mr. Bell, is a document published at least yearly to comply with s. 11 of the Privacy Act. Amongst other things, it sets out the purposes for which information contained in personal information banks under the control of a government institution was obtained and lists the uses of the information.
Agreed Statement of Facts,
Schedule W.
19. Subsequently, Human Resources Development and Revenue Canada amended their respective personal information bank descriptions in InfoSource to reflect the use of information collected under the Customs Act by other government departments. In addition, a copy of the completed agreement between the Commission and Revenue Canada in respect of the Program was sent to the Office of the Privacy Commissioner.
Agreed Statement of Facts, paras 45, 60, 61;
Schedules Y and Z.
20. Based in part on the letter of March 19, 1996 from the Office of the Privacy Commissioner, the Program began operating in September 1996.
Agreed Statement of Facts, para. 46.
21. By letter dated January 20, 1997, the Privacy Commissioner wrote to the Minister of National Revenue and the Minister of Human Resources Development and raised concerns in respect of the Program. In his letter, the Commissioner stated that he had obtained legal opinions to the effect that the Program was unconstitutional.
Agreed Statement of Facts,
Schedule BB.
22. In a subsequent letter dated February 5, 1997, the Privacy Commissioner explained that the approval given by his Office in the letter of March 19, 1996 was to the pilot project and nothing more. The Commissioner explained his concerns about the Program in the following manner:
"We could not accept retroactivity and the E-311 had to contain a public notice of the match. When seeking legal advice on these two points, the Charter issue became apparent."
Agreed Statement of Facts,
Schedule DD.
23. In response, on March 4, 1997, the Minister of Human Resources Development wrote to the Privacy Commissioner and stated that, while claimants had already received ample direction to report their absences from Canada, additional steps were being taken to reinforce this obligation with them. In addition, in answer to the concern over the retroactivity of the Program, the Minister agreed that only cases back to January 1994 would be examined for possible overpayments and that there would be no prosecutions on any retroactive cases.
Agreed Statement of Facts, paras. 1, 62, 68;
Schedules AA, GG.
STATED ISSUE
Is the disclosure of "personal information" by the Department of National Revenue to the Canada Employment Insurance Commission pursuant to the Ancillary Memorandum of Understanding for data capture and release of customs information on travellers authorized by section 8 of the Privacy Act [R.S.C., 1985, c. P-21] and section 108 of the Customs Act [R.S.C., 1985 (2nd Supp.), c. 1 (as am. by S.C. 1995, c. 41, s. 28]?
RELEVANT LEGISLATIVE DISPOSITIONS
Privacy Act
2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.
Section 4
4. No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.
Section 5
5. (1) A government institution shall, wherever possible, collect personal information that is intended to be used for an administrative purpose directly from the individual to whom it relates except where the individual authorizes otherwise or where personal information may be disclosed to the institution under subsection 8(2).
(2) A government institution shall inform any individual from whom the institution collects personal information about the individual of the purpose for which the information is being collected.
(3) Subsections (1) and (2) do not apply where compliance therewith might
(a) result in the collection of inaccurate information; or
(b) defeat the purpose or prejudice the use for which information is collected.
Section 7
7. Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or
(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).
Section 8
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.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
Customs Act
Section 108
108. (1) An officer may communicate or allow to be communicated information obtained under this Act or the Customs Tariff, or allow inspection of or access to any book, record, writing or other document obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff, to or by
(a) any officer or any person employed in the Department of National Revenue;
(b) any person, or any person within a class of persons, that the Minister may authorize, subject to such conditions as the Minister may specify; or
(c) any person otherwise legally entitled thereto.
(2) An officer may, on the order or subpoena of a court of record,
(a) give evidence relating to information obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or
(b) produce any book, record, writing or other document obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff.
(3) An officer may show any book, record, writing or other document obtained for the purposes of this Act or the Customs Tariff, or permit a copy thereof to be given, to the person by or on behalf of whom the book, record, writing or other document was provided, or to any person authorized to transact business under this Act or the Customs Tariff as that person's agent, at the request of any such person and on receipt of such fee, if any, as is prescribed.
(4) The Governor in Council may make regulations prescribing the circumstances in which fees may be charged for providing information, allowing inspection of or access to documents or making or certifying copies thereof pursuant to this section and the amount of any such fees.
ANALYSIS
1. Statutory interpretation
The case before me is based solely on statutory interpretation. The Supreme Court of Canada has stated many times that in such a case the courts are to apply a contextual approach: the words of the statute are to be given their ordinary grammatical sense and read harmoniously with the scheme of the Act. This principle, taken from Professor Sullivan's revision of Driedger on the Construction of Statutes,2 was recently enunciated in Verdun v. Toronto-Dominion Bank.3
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament . . . . Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island [[1921] A.C. 384, at p. 387] put it this way:
In the construction of statutes their words must be interpreted in their ordinary sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.
This contextual approach, however, provides no basis for the courts to engage in legislative amendments. As stated in McIntosh, an earlier decision of the Supreme Court of Canada:
. . . a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise . . . .
. . .
Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say . . . .
The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.4
It is important to recall that the present reference is based only on the interpretation of statutory principles. This is not a Charter [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]], case where, as a remedy, the Court can "read in" missing elements of the legislation. As stated by Lamer C.J. in Canada (Attorney General) v. Mossop , absent a Charter challenge, the Charter cannot be used to give the legislation an effect Parliament did not intend.5
Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail.
But I repeat, absent a Charter challenge, the Charter cannot be used as an interpretative tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have.
Therefore, as the parties have chosen to bring the Charter issue separately, this reference must proceed on the question of statutory interpretation alone.
2. The Privacy Act
The purpose of the Privacy Act, as set out in section 2, is twofold: to protect the privacy of individuals with respect to personal information about themselves held by a government agency; and, to provide individuals with a right of access to that information. The present reference is concerned with the first purpose, that is to forbid the non-consensual release of personal information except in certain specified circumstances.
(a) Personal Information
The information released under the program consists of the traveller's name, date of birth, postal code, dates that the traveller left and returned to the country, and the general purpose of the trip.6 This is "personal information" as defined in section 3 of the Privacy Act .
(b) Disclosure of personal information under the Privacy Act
(i) General protection against disclosure
Except in certain situations, the Privacy Act provides a general protection against the disclosure of personal information.
More specifically, subsection 8(1) states that personal information shall not be disclosed by a government institution unless the individual has consented or unless it falls under one of the exceptions contained in section 8(2).
(ii) Exceptions under subsection 8(2)
The exceptions listed in subsection 8(2) range from the very narrow to the very broad. For example, under paragraph 8(2)(c), disclosure is limited to where it is for the purpose of complying with a warrant or order and where the person or body issuing the order has the proper jurisdiction. Under paragraph 8(2)(g), on the other hand, personal information may be disclosed "to a member of Parliament for the purpose of assisting the individual to whom the information relates in resolving a problem." In the present reference, the two exceptions at issue are found in paragraphs 8(2)(b ) and (m), both of which are very broad.
Paragraph 8(2)(m) authorizes disclosure of personal information where the head of the institution, in this case the Minister, is of the opinion that "the public interest in disclosure clearly outweighs any invasion of privacy that could result" or where "disclosure would clearly benefit the individual to whom the information relates." On the evidence before me, this paragraph is not applicable.
Paragraph 8(2)(b), on the other hand, authorizes the disclosure of personal information for any purpose where authorized by another Act of Parliament. It reads as follows:
8. (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure; [Emphasis added.]
The applicant submits that the use of the possessive pronoun "its", with reference to the disclosure, is an indication of Parliament's intention that the disclosure of personal information must be specifically authorized by an Act of Parliament.
I disagree with the applicant's argument. The Privacy Act does not deal with information in general, only with personal information. As a result, the Act can only authorize the disclosure of personal information; the use of the possessive pronoun "its" simply indicates the limited scope of the Act.
Therefore, pursuant to paragraph 8(2)(b), disclosure of personal information is authorized for any purpose in accordance with any Act of Parliament that authorizes the disclosure.
3. The Customs Act
(a) Authorization of Disclosure
Paragraph 108(1)(b) of the Customs Act allows the disclosure of information to any person that the Minister may authorize, subject to conditions that the Minister may specify.
The broad language of paragraph 108(1)(b) does not expressly exclude personal information from the ambit of the section. Therefore, an ordinary and normal construction of the words of the provision leads to the conclusion that any information, whether personal or not, may be disclosed where authorized by the Minister.
On July 26, 1991, the Minister issued a blanket authorization, which allows the disclosure of information obtained for the purpose of the Customs Act, when inter alia, the information is required for the administration or enforcement of a law of Canada:
Pursuant to paragraph 108(1)(b) of the Customs Act, I hereby authorize an officer employed in the Department of National Revenue, Customs and Excise, to communicate or allow to be communicated information obtained under the Act, or allow inspection of or access to any book, record, writing or other document obtained by me or on my behalf for the purposes of the Act:
. . .
(b) to or by any person employed by other federal government institutions or the government of a province, or an institution thereof, who is charged with the administration or enforcement of a law of Canada or a province, on condition that, in the opinion of any of the persons listed in Appendix A, the information is required for the purpose of preparing to implement, administering or enforcing any law of Canada or a province, or for carrying out a lawful investigation.
The program in question was established pursuant to this authorization.
(b) Review of the Minister's authorization pursuant to paragraph 108(1)(b)
The test for reviewing an exercise of discretion by a Minister was established by the Supreme Court of Canada in Maple Lodge Farms:7
. . . a reviewing court is restricted to considering whether the Minister exercised his or her discretion in good faith, in accordance with the principles of natural justice and whether he or she relied on considerations which are relevant to the Act's purposes. [Emphasis added].8
In Glaxo Wellcome PLC,9 the Federal Court of Appeal reiterated this test in the context of an authorization to disclose information under paragraph 108(1)(b). As the Minister is purported to have authorized the disclosure under paragraph 108(1)(b) in this case, the same test applies here.
Based on this test, I am of the opinion that the authorization issued by the Minister was an invalid exercise of discretion, for two reasons.
First, in exercising his or her discretion, a Minister is required to rely on considerations which are relevant to the purposes of the Act in question. In this case, the Act in question is the Customs Act.
In Glaxo [at page 457], the Federal Court of Appeal articulated the purpose of sections 107 [as am. by S.C. 1995, c. 41, s. 27] and 108 of the Customs Act as follows:
. . . to preserve the confidentiality of information gathered in the administration of the Act and to disclose it only in limited circumstances.
Despite this fact, the Minister has issued a blanket authorization purporting to authorize the communication of information for the administration or enforcement of, not simply the Customs Act, but of any law of Canada or a province.
In my opinion, the blanket authorization issued by the Minister flies in the face of the objective of the Customs Act. The condition that, in the opinion of certain officials, the information is required for the administration or enforcement of a law of Canada or a province does not constitute "limited circumstances."
Furthermore, to determine disclosure based on an assessment of whether or not the information is required to administer or enforce a law of Canada or a province indicates a reliance upon considerations extraneous to the statutory objective of the Customs Act, as set out by the Federal Court of Appeal.
Second, as stated in Glaxo, "[t]he essence of discretion requires nevertheless that each matter be examined on its own merits and in relation to its own particular facts and circumstances."10
In this case, by issuing a blanket authorization, the Minister has fettered his discretion. There was no examination of the particular circumstances of the matter. At the very least, the Minister himself ought to have considered the program as a whole. Instead, the Minister's sweeping authorization undermines the entire purpose of paragraph 108(1)(b), which is to preserve confidentiality and to disclose information only in limited circumstances.
Even if the Minister considers the present program, however, it is my opinion that, as discussed above, paragraph 108(1)(b) does not allow the Minister to authorize the investigation described in the Memorandum of Understanding. To authorize the program would be an exercise of discretion contrary to the purposes of the Customs Act, as stated by the Federal Court of Appeal in Glaxo.
CONCLUSION
Is the disclosure of "personal information" by the Department of National Revenue to the Canada Employment Insurance Commission pursuant to the Ancillary Memorandum of Understanding for data capture and release of customs information on travellers authorized by section 8 of the Privacy Act and section 108 of the Customs Act?
Answer: No.
1 R.S.C., 1985, c. F-7.
2 Driedger on the Construction of Statutes, 3rd., ed. R. Sullivan (Toronto: Butterworths, 1994).
3 [1996] 3 S.C.R. 550, at p. 559.
4 R. v. McIntosh, [1995] 1 S.C.R. 686, at paras. 18 and 26, pp. 697 and 701.
5 [1993] 1 S.C.R. 554, at pp. 581-582.
6 Agreed statement of facts, at paras. 48-49.
7 Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2.
8 Glaxo Wellcome PLC v. M.N.R., [1998] 4 F.C. 439 (C.A.), at pp. 455-456.
9 Ibid.
10 Supra, note 9, at p. 456.