Ruby v. Canada (Solicitor General)

Arbour J. — This appeal involves a constitutional challenge to a procedural section of the Privacy Act , R.S.C. 1985, c. P-21 , that provides for mandatory in camera and ex parte proceedings where the government denies an applicant’s request for access to personal information on the grounds of national security or the maintenance of foreign confidences. Specifically, the issue is whether ss. 51(2)(a) and 51(3) of the Act infringe or deny the appellant’s rights and freedoms as guaranteed in ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms .

The constitutional challenge in this case is in fact very narrow. For the purposes of this appeal, the appellant does not challenge the right of a government institution to refuse to confirm or deny the existence of personal information. Nor does the appellant challenge the right of a government institution to refuse to disclose information on the basis of the exemptions enumerated in the Act. The appellant only attacks the procedural requirement under the Act that in certain narrow circumstances it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera and to accept ex parte submissions at the request of the government institution refusing disclosure. To be clear, the appellant only challenges the mandatory nature of this provision and not the discretionary regime that applies for all other exemptions allowing a reviewing court to order a hearing in camera and accept ex parte submissions.

For reasons that I will expand upon below, I conclude that it is constitutional, within this statutory scheme, for the Privacy Act to require a reviewing court to accept submissions ex parte from the government institution refusing disclosure. However, the in camera requirement found in s. 51(2)(a) is overly broad. The provision must be read down to require only the ex parte submissions to be held in camera, with the reviewing court’s retaining the discretion to order the hearing or portions thereof in camera.

An understanding of the legislative framework of the Privacy Act is essential in order to understand this case. I have reproduced all the relevant provisions of the Act as an Appendix to these reasons. I will cite them as necessary in the course of my analysis.

First, a brief overview of the Act. Persons have a right to access personal information held about them by a government institution by virtue of s. 12 of the Act. A government institution may refuse to disclose personal information if able to claim one of the exemptions contained in ss. 19 through 28, inclusive. Section 19 is a mandatory exemption. A government institution shall refuse to disclose personal information requested under s. 12(1) that was obtained in confidence from the government of a foreign state or an international organization, unless that government or organization agrees to the disclosure or makes the information public. This exemption is commonly referred to as the “foreign confidences” exemption. Section 21 is a discretionary exemption. A government institution may refuse to disclose any personal information requested under s. 12(1) if such disclosure can 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 efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities”. This exemption is commonly referred to as the “national security” exemption.

The Act provides for two levels of independent review when a government institution refuses a request for access to personal information: the Privacy Commissioner and the Federal Court of Canada. The Privacy Commissioner has broad powers to carry out investigations. Upon completing an investigation, if the Privacy Commissioner finds that the complaint is well-founded, the Commissioner may recommend that the information be disclosed. The Commissioner does not, however, have the power to compel disclosure. Where the Privacy Commissioner has completed an investigation and a government institution continues to refuse to disclose the personal information, the individual who has been refused access may apply to the Federal Court for judicial review of the refusal. Pursuant to s. 46(1), the reviewing judge must take every reasonable precaution to avoid the disclosure of information that, in the end, may be found to be appropriately withheld. Accordingly, s. 46(1) gives the reviewing judge the discretion to receive representations ex parte and to conduct hearings in camera.

Section 51 changes the discretionary regime of s. 46 to a mandatory one in circumstances where a government institution has claimed an exemption under s. 19(1)(a) or (b) or s. 21 (the “foreign confidences” and the “national security” exemptions). When an exemption has been claimed under these provisions, s. 51(2)(a) mandates that the Federal Court hear the judicial review application or an appeal therefrom in camera. Section 51(3) provides that on the request of the head of the government institution that has refused access to material on the basis of one of these provisions, the court must receive submissions from the government institution on an ex parte basis.

The analysis and outcome of this case do not turn on the facts. However, the facts are useful in order to understand the history of this particular litigation and also as an example of access to information litigation in general.

On March 22, 1988 the appellant, Clayton Ruby, requested access to personal information held in personal information bank SIS/P-PU-010 (“Bank 010”) maintained by the Canadian Security Intelligence Service (“CSIS”). The request was made pursuant to s. 12(1)(a) of the Act. The request to CSIS was only one of a number of access to information requests made by the appellant to the Royal Canadian Mounted Police (“RCMP”) and the Department of External Affairs. Only CSIS named ss. 19 and 21 as exemptions and therefore the constitutional challenge to s. 51 involves only the request to CSIS. In the original application the respondent filed an affidavit of Robert Ian MacEwan, Director General, Counter Terrorism, CSIS. In order to describe the information contained in Bank 010, the affidavit reproduced the Personal Information Index published in 1987 in accordance with s. 11 of the Act:

This bank contains information on 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; or, activities directed toward or in support of such activity; foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada, and are clandestine or deceptive, or involve a threat to any person; activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state; and, activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. This bank may also contain personal information that, in relation to the defence of Canada or to the conduct of the international affairs of Canada, pertains to the capabilities, intentions; or activities of any foreign state or group of foreign states; of any person other than a Canadian citizen or permanent resident; or, any corporation except one incorporated pursuant to the laws of Canada or of any province. Information is also held in respect to CSIS providing advice relating to the Citizenship or Immigration Acts.

Although the appellant’s access request was with respect to personal information contained in Bank 010, CSIS took the liberty of also searching personal information bank SIS/P-PU-015 (“Bank 015”). Bank 015 is described in the Personal Information Index published in 1987 as containing information similar in nature to that in Bank 010 but of a less current and less sensitive nature.

CSIS responded to the appellant’s request by letter dated August 12, 1988. With respect to Bank 010 CSIS would neither confirm nor deny the existence of information but if such information did exist CSIS refused to disclose the information claiming the exemptions in ss. 19, 21, 22, and 26 of the Act. With respect to information in Bank 015, CSIS disclosed 41 pages, portions of which were excised and claimed as exempt under ss. 21 and 26. CSIS disclosed a further 71 pages from a different source, or portions therefrom, claiming exemptions under s. 21 of the Act for the excised portions.

The appellant filed a complaint with the federal Privacy Commissioner pursuant to s. 29 of the Act regarding the refusal of CSIS to disclose information in Banks 010 and 015. Subsequent to the complaint the appellant was informed by CSIS that two more documents containing personal information about him existed in Bank 015 but were being claimed as exempt pursuant to ss. 19, 21, 22(1)(a)(iii), 22(1)(b) and 26. CSIS later amended the exemption to s. 22(1)(a)(ii) as opposed to s. 22(1)(a)(iii). As a result of the investigations by the Privacy Commissioner, CSIS disclosed an additional four pages, portions of which were excised claiming exemptions under ss. 21 and 26 of the Act.

The Acting Privacy Commissioner conducted an investigation and concluded that CSIS’s refusal to neither confirm or deny the existence of information in Bank 010 was within the requirements of s. 16(2) of the Act and thus the complaint in regard to this refusal was not well-founded. In regards to the exemptions claimed in respect of information held in Bank 015, the Privacy Commissioner concluded that, with the exception of two documents, the undisclosed material was properly exempted under the Act. The Privacy Commissioner asked the Solicitor General to disclose two documents but the request was refused. The Commissioner informed the appellant that this was the first case in which a Minister had refused to accept a recommendation that information be disclosed. The documents were subsequently disclosed, with portions excised, after the judicial review proceeding was initiated.

Three years after the original access request, the appellant filed an application in the Federal Court, Trial Division under s. 41 of the Act for a review of CSIS’s refusal to disclose the information. Section 41 provides that where a person has requested access to information, has been denied, and has filed a complaint with the Privacy Commissioner, he or she may then apply to the Federal Court for a judicial review of the refusal.

CSIS released additional documents to the appellant in July 1992. CSIS disclosed 211 pages, portions of which were excised claiming exemptions under ss. 19, 21, 22(1)(a), 22(1)(b) and 26 of the Act. CSIS maintains its position of non-disclosure with respect to all documents contained in Bank 010 and the remainder of documents in Bank 015, including the excised portions therefrom, based on disclosure exemptions in ss. 19, 21, 22 and 26 of the Act.

Prior to the commencement of the judicial review hearing, the appellant filed notice of intent to challenge the s. 51 mandatory procedure provision under ss. 7 , 8 and 2(b) of the Charter .

In the application, CSIS submitted a secret affidavit of an officer of CSIS, filed on order of the court. The affidavit informed the court whether personal information about the appellant existed in Bank 010 and if it did exist, the documents were provided with an explanation of the claimed exemptions for examination by the court. The undisclosed information that was contained in Bank 015 was also provided for examination by the court with an explanation of the exemption claimed.

Both the Trial Division and appellate level of the Federal Court ruled that s. 51(2)(a) and (3) violated s. 2(b) of the Charter but that they were saved by s. 1. Both levels of the Federal Court also found that the mandatory procedure in s. 51 did not violate s. 7, however they differed with respect to their characterizations of a right to privacy under s. 7.

The appellant appeals to this Court on the issues as to whether s. 7 of the Charter is engaged by s. 51(3), whether the violation of s. 2(b) is justifiable under s. 1 and costs. The Solicitor General cross-appeals on an issue of interpretation of s. 22(1)(b) of the Act and whether “injury” contemplated in that section is restricted to injury to current ongoing or identifiable prospective investigations.

The constitutional validity of s. 51 and the merits of the exemptions claimed by CSIS were determined separately in the Federal Court, Trial Division. The Court of Appeal consolidated the appeals on the constitutional question and the merits of the exemptions.

A. Federal Court, Trial Division (1994), 80 F.T.R. 81 and [1996] 3 F.C. 134

Simpson J. ruled in the preliminary proceeding on the constitutional validity of s. 51. She held that any privacy rights protected by the Charter were not engaged by s. 51. She did, however, find that s. 51 was contrary to s. 2(b) of the Charter but that such violation was saved by s. 1.

B. Federal Court of Appeal, [2000] 3 F.C. 589

The Federal Court of Appeal held that the mandatory in camera and ex parte provisions did not engage the liberty interest enshrined in s. 7. The court agreed with the decision of Simpson J. that the provisions are procedural in nature and do not interfere with the right of access granted by the Privacy Act . The Solicitor General did not appeal Simpson J.’s finding that the mandatory provisions in s. 51 violate s. 2(b). The Court of Appeal held that the provisions were saved by s. 1.

The following constitutional questions were stated by Order of this Court on June 21, 2001:

1. Do ss. 51(2) (a) and 51(3) of the Privacy Act , R.S.C. 1985, c. P-21 , as amended, infringe or deny the appellant’s rights or freedoms guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms ?

2. If the answer to Question 1 is in the affirmative, are ss. 51(2) (a) and 51(3) of the Privacy Act reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?

3. Does s. 51(3) of the Privacy Act infringe or deny the appellant’s rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?

4. If the answer to Question 3 is in the affirmative, is s. 51(3) of the Privacy Act a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?

It is important to clarify at the outset the meaning and effect of the mandatory in camera and ex parte provisions. Section 51 reads:

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 . . . 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.

Section 51 requires a court, in an application for judicial review brought under s. 41 of the Act, to hear the application or any appeal therefrom in camera. Simpson J., in her s.1 analysis, noted that there was a judicial practice of reading down s. 51 as requiring only those portions of the hearing in which the ex parte submissions are received to be in camera. I will discuss this practice later in my reasons. Suffice it to say, at this point, however, that such an interpretation cannot be reasonably supported on a plain reading of the Act. The provision is clear that the entire hearing and any appeal therefrom, are to be held in camera.

Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party: Attorney General of Manitoba v. National Energy Board, [1974] 2 F.C. 502 (T.D.). The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given. For instance, temporary injunctions are often issued ex parte in order to preserve the status quo for a short period of time before both parties can be heard (to prevent the demolition of a building, for example).

Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., [1994] 5 W.W.R. 337 (Alta. Q.B.), at para. 10, aff’d [1997] 6 W.W.R. 715 (Alta. C.A.), aff’d (without reference to this point) [1999] 3 S.C.R. 408. On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera.

In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.

Section 51 of the Privacy Act contemplates the following: where a “foreign confidence” or “national security” exemption is claimed by a government institution, the hearing must be held in camera (s. 51(2)(a)). This means that the hearing is not open to the public but the applicant is not excluded and may participate. In the course of that in camera hearing, the government institution may request that the applicant be excluded and, in such a case, the court must hear the government ex parte (s. 51(3)) (and, of course, still in camera). Therefore it is only through the operation of ss. 51(2)(a) and 51(3) together that the appellant is excluded from the proceeding.

Properly understood, the constitutional challenge on the basis of s. 7 relates essentially to the appellant’s exclusion from the hearing as a result of the operation of ss. 51(2)(a) and 51(3) together, resulting in portions of the government’s submissions being ex parte and in camera and therefore unavailable to the appellant. It is the exclusion of the appellant from portions of the government’s submissions that is alleged to be contrary to the principles of fundamental justice. As for the s. 2(b) challenge, it relates to the statutory requirement that the entire hearing be in camera, inclusive of the ex parte submissions. It is the mandatory exclusion of the public and the media, (of which the appellant is a member) from the proceedings that the appellant alleges violates s. 2(b) of the Charter .

In addition to his claim under s. 7, the appellant also argued a violation of s. 8 of the Charter . The arguments presented under s. 8 are entirely subsumed under s. 7 and need not be addressed independently.

The appellant argues that the right to security of the person protected by s. 7 of the Charter protects the right to privacy in a biographical core of information to which an individual would wish to control access. This biographical core of information includes information which tends to reveal intimate details of lifestyle and individual personal or political choices. This right to privacy is said to include a concomitant right of access to personal information in the hands of government in order that an individual may know what information the government possesses. This, in turn, will ensure that government action in the collection of personal information can be scrutinized and inaccuracies in the information collected may be corrected. Any limit on this right to access must accord with the principles of fundamental justice. Following this argument, the appellant submits that the procedural provisions in s. 51 directly affect an individual’s ability to “control such information in the hands of the state” and for that reason the procedural unfairness created by s. 51 violates s. 7 of the Charter .

The Federal Court of Appeal, citing R. v. Dyment, [1988] 2 S.C.R. 417, R. v. Beare, [1988] 2 S.C.R. 387, B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, and R. v. O’Connor, [1995] 4 S.C.R. 411, observed that there is an emerging view that the liberty interest in s. 7 of the Charter protects an individual’s right to privacy. They accepted the appellant’s view that in order for the right to informational privacy to have any substantive meaning it must be concerned both with the acquisition and the subsequent use of personal information. Recognizing that one has a legitimate interest in ensuring that information has been properly collected and is being used for the proper purpose, the Court of Appeal held that the right to privacy includes the ability to control the dissemination of personal information obtained by the government. To this end the court stated (at para. 169):

In a case such as this where an individual may not be fully aware of the information collected and retained by the government, the ability to control the dissemination of personal information is dependent on a corollary right of access, if only to verify the information’s accuracy. In short a reasonable expectation of access is a corollary to the reasonable expectation of privacy.

In my view, it is unnecessary to the disposition of this case to decide whether a right to privacy comprising a corollary right of access to personal information triggers the application of s. 7 of the Charter . Assuming, for the purposes of this analysis, that the appellant has suffered a deprivation of his liberty or security of the person interest, that deprivation is not contrary to the principles of fundamental justice. In order to determine whether an alleged deprivation of the right to life, liberty and security of the person is or is not in accordance with the principles of fundamental justice, it is necessary to appreciate the exact nature of the deprivation. Here, without deciding if there is a deprivation of a liberty or security interest, we can take the alleged deprivation to be as stated by the appellant: he claims that he has a right to access personal information already in the hands of government in order to correct inaccurate information and ensure that the information was collected lawfully. He then asserts that this component of his liberty and security interest is infringed by the mandatory secrecy of some of the government’s submissions.

The appellant stresses that it is the mandatory nature of s. 51(3) that does not comply with the principles of fundamental justice. Because the provisions are mandatory, the court does not have the discretion to control what information should be provided to an applicant in order to enable him or her to challenge effectively the government’s refusal to disclose information and the legitimacy of the exemption claimed. The appellant submits that a provision permitting ex parte and in camera proceedings must contain a judicial discretion to provide the applicant with sufficient information in order to answer the government’s case effectively. This could be accomplished, the appellant submits, through the use of judicial summaries similar to those that are used in wiretap proceedings.

I agree with the view expressed by the Federal Court of Appeal that there is a disharmony between the appellant’s proposed solution of judicial summaries and the alleged Charter violation brought about by the mandatory ex parte submissions at the request of a government institution. Section 46 of the Act provides a court with the authority to receive representations ex parte and conduct hearings in camera in order to guard against the inadvertent disclosure of information the government institution may have legitimately refused to confirm exists, as well as information that may be found to be properly exempted:

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.

(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof.

When a court exercises its discretion under s. 46 to receive evidence ex parte, either through a confidential affidavit or otherwise, there is no obligation to provide the applicant with a judicial summary. The Privacy Act does not impose an obligation on a court to prepare a judicial summary of evidence in any circumstance. The appellant has not challenged the discretionary power of a court to accept ex parte submissions under s. 46 . The alternative to the mandatory in camera and ex parte provisions in s. 51 is therefore the discretion conferred on the court under s. 46 to order proceedings in camera or accept submissions ex parte.

In any event, I fail to see how a judicial summary of the evidence would assist the appellant. Where the institution body has refused to confirm or deny the existence of information a judicial summary is simply inappropriate. Where the existence of information is known to the appellant, the use of judicial summaries would not appreciably increase the amount of information already available to the appellant through the public affidavits. The public affidavits outline the purpose of the exemption, its importance and the risk associated with disclosure. The secret affidavit and the ex parte submissions directly involve the information exempted, if any exists. I accept the respondent’s claim that a judicial summary could not provide any further detail without compromising the very integrity of the information.

Furthermore, the use of judicial summaries would increase the risk of inadvertent disclosure of the information or its source. Parliament has seen fit, in those cases involving national security or foreign confidences, to provide for the maximum protection against disclosure. For a court to embark upon preparing summaries of confidential information would imperil confidentiality without adding much to the transparency requested by the appellant.

It remains to determine whether the requirement in s. 51(3) that a court accept ex parte submissions on request of the government institution refusing to disclose information is contrary to the principles of fundamental justice. As I have already noted, the circumstances in which a court will accept ex parte submissions are exceptional. The circumstances in which a court will be obliged to hear ex parte submissions at the request of one party are even more exceptional. The question is whether, in the context of this case, such a provision is consistent with the principles of fundamental justice. I believe that it is.

The principles of fundamental justice are informed in part by the rules of natural justice and the concept of procedural fairness. What is fair in a particular case will depend on the context of the case: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 743. As stated by La Forest J. for the majority in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, and quoted with approval in Chiarelli, supra, at p. 743:

It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

In assessing whether a procedure accords with the principles of fundamental justice, it may be necessary to balance the competing interests of the state and individual: Chiarelli, supra, at p. 744, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539. It is also necessary to consider the statutory framework within which natural justice is to operate. The statutory scheme may necessarily imply a limit on disclosure. “The extent of the disclosure required by natural justice may have to be weighed against the prejudice to the scheme of the Act which disclosure may involve”: W. Wade and C. Forsyth, Administrative Law (8th ed. 2000), at p. 509. See also Baker, supra, at para. 24.

As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position: see generally Wade and Forsyth, supra, at p. 506; S. A. de Smith, J. Jowell and H. Woolf, Judicial Review of Administrative Action (5th ed. 1995), at p. 441; D. P. Jones and A. S. de Villars, Principles of Administrative Law (3rd ed. 1999), at p. 261. The exclusion of the appellant from portions of the government’s submissions is an exceptional departure from this general rule. The appellant operates in an informational deficit when trying to challenge the legitimacy of the exemptions claimed by the government. However, the general rule does tolerate certain exceptions. As indicated earlier, some situations require a measure of secrecy, such as wiretap and search warrant applications. In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal. In other cases, for instance where a privilege is successfully asserted, the content of the disputed information may never be revealed (see R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14).

The context of this case is therefore critical. As I indicated earlier, the constitutional challenge is very narrow. The s. 7 challenge relates only to the lack of discretion of the court to decide whether a government institution which refuses to disclose information should be allowed to make ex parte submissions. Section 51(3) requires a court to hear submissions ex parte at the request of a government institution. The appellant is not challenging the right of a government institution, when faced with an access to information request under s. 12 of the Act, to refuse to disclose certain information on the basis of the exemptions enumerated in the Act. The appellant also does not challenge the right of the government under s. 16(2) to refuse to confirm or deny the existence of personal information when claiming an exemption. Within the context of a valid statutory scheme that permits the government to refuse to confirm or deny the existence of information (we must assume that it is valid since it is not challenged) and where the judicial review may conclude that the information was properly withheld and must therefore not be disclosed, it necessarily follows that a government institution must be able to make submissions ex parte. Accepting that it is appropriate for the government to refuse to disclose information when there is a legitimate exemption and accepting that it is not inappropriate for the government, when claiming an exemption, to refuse to confirm or deny the existence of information, it can only follow that the government must have the capacity to proceed ex parte.

For all the exemptions in the Act other than s. 19(1)(a) or (b) or s. 21 the government’s ability to make ex parte submissions is subject to the discretion of the reviewing court. Through the mandatory ex parte provision in s. 51(3), Parliament has seen fit to assert the special sensitive nature of the information involved and has provided added protection and assurance against inadvertent disclosure. Even though the adversarial challenge to the claim of exemptions in such cases is limited, recourse to the Privacy Commissioner and to two levels of court who will have access to the information sought and to the evidence supporting the claimed exemption is sufficient, in my view, to meet the constitutional requirements of procedural fairness in this context.

The purpose of the exemption contained in s. 19(1)(a) and (b) is to prevent an inadvertent disclosure of information obtained in confidence from foreign governments or institutions. This provision is directly aimed at the state’s interest in preserving Canada’s present supply of intelligence information received from foreign sources. Section 21 is aimed at Canada’s national security interests. The appellant acknowledges that the state’s legitimate interest in protection of information which, if released, would significantly injure national security is a pressing and substantial concern. This Court recognized the interest of the state in protecting national security and the need for confidentiality in national security matters in Chiarelli, supra, at p. 745.

The mandatory ex parte in camera provision is designed to avoid the perception by Canada’s allies and intelligence sources that an inadvertent disclosure of information might occur, which would in turn jeopardize the level of access to information that foreign sources would be willing to provide. In her reasons, Simpson J. reviewed five affidavits filed by the respondent from CSIS, the RCMP, the Department of National Defence (“DND”), and two from the Department of External Affairs (“DEA”). These affidavits emphasize that Canada is a net importer of information and the information received is necessary for the security and defence of Canada and its allies. The affidavits further emphasize that the information providers are aware of Canada’s access to information legislation. If the mandatory provisions were relaxed, all predict that this would negatively affect the flow and quality of such information. This extract from one of the affidavits from the DEA is typical:

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.

. . . Without these extra procedural protections [the mandatory in camera nature of the hearing and the right to make ex parte representations provided for in s. 51] the substantive protections in sections 19 and 21 are greatly diminished in value. The confidence in 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.

In her reasons Simpson J. provided a brief overview of the affidavit evidence. The affidavit from CSIS stated that sensitive information is received on the understanding that neither the source nor the information will be disclosed unless the provider consents. The affidavit from the RCMP representative discussed the agreements, as for example with Interpol, which operate on the basis that information will be kept confidential. The DND affidavit predicts that increasing the number of persons with access to information during the legal review process would “almost certainly restrict, if not completely eliminate” the possibility of Canada receiving information in the future. One of the affidavits from DEA observed that international convention and practice dictates that such information is received in confidence unless there is an express agreement to the contrary. The other DEA affidavit noted first that confidentiality is necessary to protect information critical to diplomacy, intelligence, and security. This affidavit acknowledged that whether the predicted drying up of information would actually occur if the mandatory protections were loosened would be hard to know since “you don’t know what you are not getting”, but he stressed his belief that under a different calculation of risks and benefits, foreign sources would likely screen information passed to Canada for fear that it would be compromised.

In the Privacy Act Parliament has recognized and attempted to balance the interests of the appellant in accessing personal information held by government institutions with the significant and legitimate interest of the state in national security and in maintaining foreign confidences. Only in the exceptional and limited circumstance where a government institution is claiming an exemption on the basis that the information involves national security and foreign confidences will the procedural regime in s. 51 requiring ex parte in camera proceedings be activated. The principles of fundamental justice do not require that the applicant have the most favourable proceedings. They do require that the proceedings be fair: Lyons, supra, at p. 362; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, at para. 130; B. (R.), supra, at para. 101.

The Privacy Act includes alternative procedural protections in order to protect the interests of applicants. The government does not have unrestrained use of the exemptions. The government bears the burden of establishing that the information is properly exempted (s. 47). As mentioned before, when making ex parte submissions to the reviewing court, the government institution is under a duty to act in utmost good faith and must make full, fair and candid disclosure of the facts, including those that may be adverse to its interest. I also stress again that recourse to these exemptions is subject to two independent levels of scrutiny: the Privacy Commissioner and the Federal Court on a judicial review application under s. 41. Both the Privacy Commissioner and the reviewing court have access to the information that is being withheld (ss. 34(2) and 45) in order to determine whether an exemption has been properly claimed. In addition, the Federal Court has the power to order the release of the personal information if the court determines that the material was not received in confidence from a foreign source or is not within the bounds of the national security exemption.

The appellant argues that the provision for discretion in other contexts involving national security, such as those at issue in Chiarelli, supra, shows that there is neither the need, nor the constitutional justification for the mandatory rule in s. 51 of the Act. It is true that s. 51(3) grants no discretion to the reviewing court to receive submissions ex parte. However, in order to determine whether the procedure accords with the principles of fundamental justice, in this case, it must be considered in the specific context in which it arises.

I agree with the observations of both Simpson J. and the Federal Court of Appeal that if the statutory scheme in s. 51 were discretionary as opposed to mandatory, it is virtually certain that a reviewing court would exercise its discretion to hear the matter in camera and accept submissions ex parte whenever the government presented appropriate evidence that the undisclosed material was received in confidence from foreign sources or involved national security.

It is also important to understand that the information withheld from an applicant under these exemptions may be quite innocuous to the applicant but, rather, reveal the interest of a government institution in other persons or groups or reveal the source of information, as in the case of information received from foreign sources. Section 19 protects information received in confidence from foreign sources regardless of how innocuous it may be as it relates to the applicant.

In this case, given the statutory framework, the narrow basis of the appellant’s constitutional challenge and the significant and exceptional state and social interest in the protection of information involved, I find that the mandatory ex parte and in camera provisions do not fall below the level of fairness required by s. 7.

The respondent did not appeal the finding of the motions judge (Simpson J.) that the mandatory nature of ss. 51(2)(a) and 51(3) infringe the appellant’s rights and freedoms as guaranteed by s. 2(b). Simpson J. held that the appellant’s rights as a reader were directly affected if the hearing was held ex parte and in camera. In such situations, members of the public, including the press, are excluded. As a member of the reading public the appellant was entitled to raise s. 2(b) to challenge the mandatory ex parte and in camera provision in s. 51. In support of this, Simpson J. cited Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, for the principle that freedom of expression in s. 2(b) protects both listeners and readers.

The concept of open courts is deeply embedded in our common law tradition and has found constitutional protection in s. 2(b) of the Charter . This Court confirmed in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, the importance of this principle, which is inextricably linked to the rights guaranteed by s. 2(b). As stated by La Forest J. at para. 23:

Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states:

That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public’s entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. [Emphasis added by La Forest J.]

To the extent that the in camera provision excludes both the appellant and the public from the proceedings it is clear that the provision violates s. 2(b). The respondent did not appeal the finding of Simpson J. that the mandatory nature of ss. 51(2)(a) and 51(3) infringe the appellant’s rights and freedoms as guaranteed by s. 2(b). The respondent has not challenged the appellant’s standing to challenge the provision under s. 2(b). I therefore assume, without comment, that he has standing to do so.

It remains to determine whether the in camera provision in s. 51(2)(a) can be saved by s. 1 as a reasonable limit that can be demonstrably justified in a free and democratic society. I conclude that it cannot. In relation to s. 21, the appellant concedes that the protection of information which could reasonably be expected to be injurious to Canada’s national security is a pressing and substantial concern. In reference to s. 19(1)(a) and (b) I agree with Simpson J. that the preservation of Canada’s supply of intelligence information from foreign sources is also a pressing and substantial objective. In camera hearings reduce the risk of an inadvertent disclosure of sensitive information and thus the provision is rationally connected to the objective.

The provision fails, however, on the question of minimal impairment. Simpson J. identified a judicial practice of reading down s. 51 as requiring only those portions of the hearing in which the ex parte submissions are received to be in camera. Indeed, it is evident from her reasons that the Solicitor General consented to proceeding on such a basis in this case ((1994), 80 F.T.R. 81, at para. 5). As an example of this judicial practice Simpson J. cited Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.).

Ternette was an application under s. 41 of the Act for a review of a refusal to disclose personal information pursuant to s. 21. Although the respondent Solicitor General filed a notice of motion in advance of the hearing for the hearing to be conducted in camera, at the commencement of the hearing the Solicitor General proposed, with the consent of the applicant and the intervener Privacy Commissioner, that the hearing proceed in open court with the exception that the ex parte submissions would be made in camera. The motions judge acknowledged that s. 51(2) provides that in an application such as the one before him, where the refusal to disclose personal information is based on s. 21, the hearing “shall be heard in camera” (emphasis added). Despite this, he ordered that the hearing proceed in public, as proposed, with the opportunity for the Solicitor General to make submission ex parte and in camera. He explained the reason for his order as follows (at p. 89):

That order was based on the principle that the Court’s proceedings are open and public unless there be a particular ground urged by a party that is deemed to warrant exceptional proceedings in camera or ex parte. Such a ground exists by virtue of subsections 51(2) and (3). That provision is intended for the protection of public and private interests in information. If it is not seen as necessary for protection of those interests for the entire proceedings but only for a portion of them to be held in camera, by counsel representing the head of the government institution concerned, by the applicant, or by the Privacy Commissioner, in my view it would be contrary to the longstanding tradition of our judicial system and the Rules of this Court (Federal Court Rules, C.R.C., c. 663) for the Court ex proprio motu to direct that the hearing be fully in camera.

In our case, counsel for the Solicitor General informed the Court during oral argument that the hearing in this case before MacKay J. with respect to the merits of the exemptions claimed, was heard in camera. On the other hand, the hearings before Simpson J. on the constitutional questions were conducted in public. Counsel for the Solicitor General further represented to the Court that the Department of Justice has interpreted s. 51 narrowly, limiting the in camera requirement only to those portions of a hearing that concern the merits of the exemptions claimed under s. 19(1)(a) or (b) or s. 21 but allowing the Crown to consent to “collateral” issues (i.e., constitutional or procedural issues) being heard in open court.

Aside from the constitutional issue, the Solicitor General’s interpretation of s. 51(2)(a) is not one that the statute can reasonably bear. Section 51(2)(a) mandates that the hearing of an application under s. 41 and an appeal therefrom relating to personal information that a government institution has refused to disclose by reason of s. 19(1)(a) or (b) or s. 21 be heard in camera. Contrary to the apparent practice referred to by the Solicitor General, the statute does not limit the in camera requirement to only those parts of a hearing that involve the merits of an exemption. It is not open to the parties, even on consent, to bypass the mandatory in camera requirements of s. 51. Nor is open to a judge to conduct a hearing in open court in direct contradiction to the requirements of the statute, regardless of the proposal put forth by the parties. Unless the mandatory requirement is found to be unconstitutional and the section is “read down” as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature.

The existence of this judicial practice makes clear, though, that the requirement that the entire hearing of a s. 41 application or appeal therefrom be heard in camera, as is required by s. 51(2)(a), is too stringent. The practice endorsed by the Solicitor General and courts alike demonstrates that the section is overbroad in closing the court to the public even where no concern exists to justify such a departure from the general principle of open courts.

I have already concluded that the Privacy Act validly obliges a reviewing court to accept ex parte submissions from a government institution, on request, in order to prevent the inadvertent disclosure of sensitive information. It follows, for the same reasons, that these ex parte submissions must be received in camera. The appropriate remedy is therefore to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof, either in public, or in camera, or in camera and ex parte.

Subsequent to the decision of Simpson J. in respect of the constitutionality of the provisions, MacKay J. ruled on the applicability of the various exemptions claimed. The cross-appeal concerns the decisions of MacKay J. ([1998] 2 F.C. 351) and the Federal Court of Appeal ([2000] 3 F.C. 589) with regards to the exemption in s. 22(1)(b) specifically. MacKay J. held that CSIS was justified in claiming the exemption based on s. 22(1)(b) as they had established a reasonable expectation of probable injury to investigations in general. MacKay J. commented that the only evidence on the public record before him was the public affidavit filed by CSIS. The evidence was uncontradicted and strengthened by CSIS’s secret affidavit.

Soon after MacKay J. issued his reasons on the merits of the exemptions, the Federal Court of Appeal released its decision in Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430. Rubin involved the interpretation of s. 16(1) (c) of the Access to Information Act , R.S.C. 1985, c. A-1 , a similar, almost identical, provision to s. 22(1)(b) of the Act. The court in Rubin held that the exemption involved was limited to circumstances where a reasonable expectation of harm could be established to a current specific investigation or identifiable prospective investigation. The Federal Court of Appeal cited Rubin with approval and held that MacKay J. should not have extended the notion of injury in s. 22(1)(b) to investigations in general. The material was ordered sent back for a new review.

In light of this Court’s decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53, the cross-appeal must be allowed and the decision of the motions judge restored. The motions judge interpreted s. 22(1)(b) in a manner consistent with this Court’s ruling in Lavigne. The exemption in s. 22(1)(b) is not limited to current investigations or an identifiable prospective investigation. The appellant, respondent on cross appeal, did not challenge the finding of the motions judge that the Solicitor General had established a reasonable expectation of harm. The decision of MacKay J. is therefore restored.

The appellant requested but was not awarded costs of his original application for a declaration that s. 51 was unconstitutional. Nor was he awarded costs on his appeal to the Federal Court of Appeal dealing with the constitutionality of s. 51. He asks this Court to award him costs on this appeal, the original constitutional application before Simpson J. of the Federal Court, Trial Division and on the appeal of the constitutional issue to the Federal Court of Appeal.

Although routinely costs follow the outcome of a case, this Court has the discretion, pursuant to s. 47 of the Supreme Court Act , R.S.C. 1985, c. S-26 , to award costs on an appeal regardless of the outcome. It also has the discretion to order the payment of costs of the proceedings in the courts below.

The Privacy Act specifically contemplates an award of costs to an unsuccessful party where an important and novel issue has been raised.

52. . . .

(2) Where the Court is of the opinion that an application for 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.

The spirit and purpose of s. 52(2) is a relevant consideration for this Court in the exercise of its discretion. The constitutional issues raised by the appellant in this case were serious, important and novel in the context of access to information litigation.

The appeal is allowed in part. I am of the opinion that it is appropriate in this case to award costs of the proceedings, here and in the courts below, to the appellant. The cross-appeal is allowed with costs to the respondent, appellant on the cross-appeal. The constitutional questions are answered as follows: