Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2021 ABQB 304

Court of Queen’s Bench of Alberta Citation: Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2021 ABQB 304 Date: 20210419 Docket: 2003 16201 Registry: Edmonton Between: Edmonton Police Service Applicant - and - Alberta (Information and Privacy Commissioner) and JF Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Table of Contents Introduction . 2 Background Facts . 2 Standing of the IPC and Submissions . 3 Standard of Review .. 4

The FOIPP Act 5 Issue. 6 The Adjudicator’s Decision. 6 Submissions of EPS. 10 Submissions of the IPC.. 11 Analysis of the Adjudicator’s Decision. 12 Is the impugned Decision of the Adjudicator reasonable?. 13 Decision. 14 Introduction [1] This is an application by the Edmonton Police Service [EPS or Applicant] for judicial review of Order F2020-17 [Decision]a decision of an adjudicator [Adjudicator] of the Alberta Information and Privacy Commissioner [IPC] dated July 20, 2020; and indexedas: Edmonton (Police Service) (Re), (AB OIPC). [2] In the impugned Decision, the Adjudicator found that section 21(1)(

b) of the Freedom of Information and Protection ofPrivacy Act, RSA 2000, c F-25 [FOIPP Act] did not apply to the records at issue; and that the information in the records was collected bythe RCMP acting as a provincial police service under the Police Act, RSA 2000, c P-17. The Adjudicator concluded that as a provincialpolice service, the RCMP are considered a representative of the Government of Alberta, and not an entity under section 21(1) with whichthe Government of Alberta has relations.

Background Facts [3] The background facts are set out in the Brief of the Applicant EPS and the Adjudicator’s Decision. [4] In April 2017, JF, a retired EPS Officer, discussed his personal safety concerns with an EPS detective, Det. R, in connectionwith an interaction that he had with certain individuals at his home in August 2016. The Redwater RCMP attended at JF’s property atthat time and opened a file regarding the incident. [5] Further to JF’s concerns, Det. R conducted a threat assessment. As part of the assessment, she requested information fromthe RCMP through the Canadian Police Information Centre [CPIC].

A three-page police report prepared by the RCMP was provided toDet. R [the RCMP Report]. The pages of the RCMP Report were marked “Protected B,” which is a security classification indicating thatthe record is considered confidential. [6] On July 25, 2017, JF made an access request to the EPS under the FOIPP Act for records from the file created by the RCMP.He wanted to obtain the RCMP Report for the purpose of laying a private information. Det. R told JF to request the RCMP Reportdirectly from the RCMP. [7] JF reiterated his request to the EPS on December 21, 2017.

On January 3, 2018 the request was provided to the EPS FOIPPoffice. [8] On January 11, 2018, EPS responded to JF’s access request and advised that it was withholding three pages of records – theRCMP Report – received from the RCMP, in their entirety, under s 21(1)(

b) of the FOIPP Act. [9] JF submitted a request for review of the decision of the EPS to refuse access to the RCMP Report to the Office of theInformation and Privacy Commissioner [OIPC] on January 26, 2018. The review was concluded by the OIPC on August 24, 2018. [10] On September 7, 2018, JF submitted a request for inquiry to the OIPC, which was referred to adjudication on October 26,2018. A notice of inquiry was issued on June 14, 2019. [11] On August 27, 2019, the EPS became aware that the RCMP had provided JF with a copy of the RCMP Report that had beenredacted in accordance with s 17 of the FOIPP Act.

Upon discovering this, the EPS subsequently reviewed the RCMP Report andapplied s 17 of the FOIPP Act to redact information that would intrude on the privacy of third parties. JF was provided with a copy of theredacted RCMP Report by the EPS. [12] The Respondent JF requested that the IPC review and then conduct an inquiry into the EPS’s response to his access toinformation request. The inquiry resulted in Order F2020-17, in which the Adjudicator held that s 21(1)(

b) of FOIPP Act did not apply tothe records at issue and EPS was ordered to disclose some of the information withheld under s 17(1). [13] EPS seeks judicial review only of the Adjudicator’s findings under s 21(1)(

b) of the FOIPP Act. EPS does not seek review ofthe Adjudicator’s findings under s 17 of the FOIPP Act. The RCMP did not file a brief but in a letter to the Court stated that it supportsEPS’s position. The Respondent JF made brief oral submissions.

Standing of the IPC and Submissions [ 14 ] Typically, administrative decision-makers whose decisions are being challenged in a judicial review are limited to arguing issues of jurisdiction or explaining the record relating to the impugned decision. They are not expected to “enter the arena and argue the correctness of [their] decision”: Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 at para 16 [ Leon’s ] .

However, where the circumstances require, such as in this case where the IPC is recognized as “ very close to being a true party,” the Alberta Court of Appeal has concluded that “the Commissioner should be afforded some latitude in the submissions that he can make to the court”: ibid at para 30. [ 15 ] Our Court of Appeal’s position on the issue of a reviewing court’s discretion vis-à-vis standing and submissions of a tribunal extending beyond the issues identified in Leon’s was endorsed by the Supreme Court of Canada in Ontario (Energy Board) v Ontario Power Generation Inc , 2015 SCC 44 .

In that case, the Court observed that: [53] Several considerations argue in favour of a discretionary approach. Notably, because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome. For example, a tribunal may be able to explain how one

interpretation of a statutory provision might impact other provisions within the regulatory scheme, or the factual and legal realities of the specialized field in which they work. Submissions of this type may be harder for other parties to present. [….] [57] I am thus of the opinion that tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court’s discretion.

In exercising its discretion, the court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. [ 16 ] In the result, and based on the circumstances of the within application, I have exercised my discretion to consider the expanded submissions of the IPC on the

interpretation of the statutory provisions of s 21 of the FOIPP Act – alongside the self- represented second Respondent’s abbreviated oral submissions – in the interest of fully informed adjudication and the need for ensuring tribunal impartiality.

Standard of Review [ 17 ] In Canada (Minister of Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] , the Supreme Court of Canada revised the law on standard of review. [ 18 ] The presumptive standard of review in judicial review proceedings is reasonableness unless any of the two exceptions apply: first, “where the legislature has indicated that it intends a different standard or set of standards to apply [or it] has provided a statutory appeal mechanism from an administrative decision to a court”; or second, “where the rule of law requires that the standard of correctness be applied [for] certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”: Vavilov at para 17 . [ 19 ] This presumption of reasonableness is not rebutted in this case.

The FOIPP Act neither sets out a standard of review or statutory appeal mechanism, nor do the issues raised in this judicial review application rise to the level such that the rule of law requires correctness to be applied. [ 20 ] Accordingly, Order F2020-17 is reviewable on the reasonableness standard in the context of the Adjudicator’s

interpretation of its enabling statute: Vavilov at para 7 , citing Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 . [ 21 ] The Supreme Court in Vavilov at para 15 , also clarified that: In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. [ 22 ] Further, Vavilov at para 106 provided guidance on a number of legal or factual considerations to be taken into account by a reviewing court when evaluating whether or not a given administrative decision is reasonable. They include: (

i) the governing statutory scheme; (ii) other relevant statutory and common law; (iii) the principles of statutory

interpretation; (iv) the evidence before the decision maker and facts of which the decision maker may take notice; (

v) the submissions of the parties; (vi) the past practices and decisions of the administrative body; and (vii) the potential impact of the decision on the individual to whom it applies. The Supreme Court emphasized that these factors do not constitute a “checklist,” but “are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.” The FOIPP Act [ 23 ] The provisions of s 21(1) of the FOIPP Act at the core of this application read:

Disclosure harmful to intergovernmental relations 21(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (

a) harm relations between the Government of Alberta or its agencies and any of the following or their agencies: (

i) the Government of Canada or a province or territory of Canada, (ii) a local government body, (iii) an aboriginal organization that exercises government functions, including (

A) the council of a band as defined in the Indian Act (Canada) , and (

B) an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement with the Government of Canada, (iv) the government of a foreign state, or (

v) an international organization of states, or (

b) reveal information supplied, explicitly or implicitly, in confidence by a government, local government body or an organization listed in clause (

a) or its agencies.

(2) The head of a public body may disclose information referred to in subsection (1)(

a) only with the consent of the Minister in consultation with the Executive Council.

(3) The head of a public body may disclose information referred to in subsection (1)(

b) only with the consent of the government, local government body or organization that supplies the information, or its agency.

(4) This

section does not apply to information that has been in existence in a record for 15 years or more. Issue [ 24 ] Is the Adjudicator’s

interpretation and application of s 21 (1) (

b) of the FOIPP Act reasonable ? In particular, is the Adjudicator’s determination reasonable when it concluded that the RCMP is not a local government body or an agency of a government mentioned in s 21(1)(

a) but rather was acting as an entity representing the Government of Alberta? The Adjudicator’s Decision [ 25 ] The Adjudicator Decision, at paras 17-28, of the impugned Order F2020-17 is reproduced extensively below for ease of analysis, and addressed the issue of the role of the RCMP as follows: [para 17] The Public Body submits that the RCMP is a local government body or an agency of a government mentioned in section 21(1) (a). [para 18] The Act defines “local government body” in

section 1(i). Subsection 1(i)(x)(B), includes a police service as defined in the Police Act , RSA 2000, c P-17 (the Police Act ) in that definition.

Section 1 (i)(x)(

B) of the Act is reproduced below. (i) “local government body” means (

x) any (

A) commission, (

B) police service, or (

C) policing committee, as defined in the Police Act , [para 19] The Police Act defines “police service” in

section 1 (l). (l) “police service” means (

i) a regional police service; (ii) a municipal police service; (iii) the provincial police service;

(iv) a police service established under an agreement made pursuant to

section 5; [para 20] The term “the provincial police service” mentioned in

section 1(l)(iii) above, is defined in

section 1 (

n) of the Police Act . It includes the RCMP when it is operating under an agreement with the Province, pursuant to section 21(1) of the Police Act . Sections 1 (

n) and 21(1) of the Police Act are below. (n) “provincial police service” means the Royal Canadian Mounted Police where an agreement is entered into under section 21(1) ; * * * 21(1) The Lieutenant Governor in Council may, from time to time, authorize the Minister on behalf of the Government of Alberta to enter into an agreement with the Government of Canada for the Royal Canadian Mounted Police to provide a provincial police service. [para 21] While the Public Body did not provide a copy of an agreement respecting policing services provided by the Redwater RCMP under section 21(1) of the Police Act , it states that its understanding is that the Redwater RCMP operates under such an agreement.

The Public Body submits that as a result, it is a police service under the Police Act and consequently a “local government body” as that term is defined in the Act . [para 22] Further, and in the alternative, the Public Body submits that the Redwater RCMP is an agency of a government. It relies on Order F2004-018 in support of its position. The facts in that Order are substantially similar to those here. In Order F2004- 018 the applicant sought records from the same Public Body as here. As here, the Public Body withheld some RCMP records under section 21(1)(b).

After considering the RCMP’s role in relation to the federal government, Former Commissioner Work concluded that the RCMP is its agent. (Order F2004-018 at paras. 49-51). [para 23] However, the manner in which section 21(1) (

b) has been interpreted since Order F2004-018 leads me to the conclusion that the Redwater RCMP is neither an agent of the federal government, nor is it a public body listed in clause 21(1) (

a) with whom the Government of Alberta has relations . [para 24] The Adjudicator in Order F2009-027 revisited the issues of the

interpretation of section 21(1)(

b) of the Act , whether the RCMP is an agent of the federal government, and whether section 21(1) of the Act applies to information provided by the Government of Alberta to another part of the Government of Alberta. She also considered Order F2004-018 specifically . She stated at paras. 41 to 45: In Order F2008-027, I determined t hat section 21(1) (

b) applies to protect “intergovernmental” relations of the Government of Alberta, as opposed to “intragovermental” relations, or intergovernmental relations of an entity other than the Government of Alberta. I said: For the reasons set out below, I find that the purpose of

section 21 is to enable public bodies to withhold information harmful to the intergovernmental relations of the Government of Alberta with other governments and that clause (

b) also serves this purpose. In my view, clause (

b) presumes harm to the intergovernmental relations of the Government of Alberta if information supplied in confidence by an entity listed in clause (

a) to a public body representing the Government of Alberta, is disclosed. I also find that the Government of Alberta, or an entity representing the Government of Alberta, cannot supply information for the purposes of clause (

b) because it is not an entity listed in clause (a). In determining the purpose of

section 21, I have considered standard drafting conventions, the heading, and the language and context of the provision In this case, the information in the records at issue was created by RCMP officers, acting as police officers within the meaning of

section 1 (k)(ii) of the Police Act , employed by a police service as defined under

section 1 (l)(iv) of the Police Act . The authority to collect and exchange this information is provided by the Police Act and not by federal legislation. Further, under

section 2 of the Police Act , a police service acts under the direction of either the Solicitor General and Public Safety or the Minister of Justice and Attorney General when carrying out official duties. Consequently, the exchange of information between an RCMP detachment and the Minister of Justice and Attorney General under the Police Act is intragovernmental in nature, rather than intergovernmental. I find that when the RCMP supplied information to the Public Body, it acted as an entity representing the Government of Alberta, and acted under the direction of the Government of Alberta. The question remains whether section 21(1) (

b) encompasses information supplied by a representative of the Government of Alberta, as I have found the RCMP detachment to be. As discussed in Order F2008-027, the use of the phrase “a government, local government body, or organization listed in clause (a)” as opposed to a more general phrase such as “a government, local government body referred to in clause (a),” or simply “a government, local government body, or organization in clause (a),” means that a specific list in clause (a)is being referred to in clause (b). I interpret subclauses (i) – (

v) in section 21(1) (

a) as creating a list of entities belonging to a single, identifiable class: those entities with whom the Government of Alberta’s relations are to be protected from harm. The Government of Alberta is not included in the list in subclauses (i) – (v), presumably because there is no need to protect the Government of Alberta’s relations with itself. I find that the Government of Alberta [is] not a government listed in clause (

a) for the purposes of section 21(1) (b). As a result, information supplied by RCMP acting as agent for the Solicitor General or the Minister of Justice and Attorney General is not subject to section 21(1) (b). In making this finding, I arrive at a conclusion that is different than that of the Commissioner in Order F2004-018 . In Order F2004-018, the Commissioner adopted the reasoning of the former Information and Privacy Commissioner of British Columbia in Order 02-19 and found that information supplied by the RCMP to the Edmonton Police Service fell un der section 21(1) (b).

In Order 02-19, the former Information and Privacy Commissioner of British Columbia said: The provincial Police Act contemplates some provincial role, through the Canada- British Columbia agreement, in the RCMP’s policing of the province. It could not seriously be suggested, however, that the Police Act , or any agreement under it, somehow makes the RCMP a provincial body or agency. The constitutionality of any attempt by British Columbia to do this would be, at its best, questionable. See,

for example, Attorney General (Quebec), above, and Scowby et al. v. Glendinning (1986), (SCC), 32 D.L.R. (4th) 161(S.C.C.). Constitutional issues aside, I do not see any attempt on the part of British Columbia, through the Police Act, to turn the RCMPinto a provincial agency. See, also, Re Ombudsman for Saskatchewan (1974), (SK KB), 46 D.L.R. (3d) 452 (Sask.Q.B.), where Bayda J. (as he then was) held that the RCMP was not a provincial government agency for the purposes of theSaskatchewan Ombudsman Act.

In determining that information supplied by the RCMP was information supplied in confidence by an agency of the federal government,the former British Columbia commissioner held that British Columbia’s Police Act did not “turn the RCMP into a provincial agency.”However, this case was decided before Société des Acadiens, which is clear that the RCMP act under the direction of the province whenthey act under provincial legislation.

I draw from this case that while the RCMP maintains its status as a federal institution, and is in onesense an “agency” of the Government of Canada, the more important point to be drawn from the case is that when it is acting underprovincial legislation as the provincial police service, it is policing for and under the control of the province. Thus the transfers ofinformation between the RCMP detachment and the Public Body, are intra-governmental.

Had the Commissioner had the benefit ofSociété des Acadiens when Order F2004-018 was decided, in which the Supreme Court of Canada found that an RCMP officer actingunder provincial policing legislation acts as “institution of the legislature or government,” the outcome may have been different. [para 25] I agree with the Adjudicator in Order F2009-027. In this case, according to the Public Body, the RCMP also were acting underthe authority of the Police Act, as a police service.

Consequently, the disclosure of information from the RCMP to the Public Body wasintragovernmental rather than intergovernmental in nature. It is not captured under section 21(1)(b). [para 26] In reaching this conclusion, I have considered Order F2011-009. In that Order, the Adjudicator considered information placedon CPIC by police forces from other provinces. The Adjudicator found at para. 34 that to the extent the RCMP operates CPIC, it isacting as an agency of the Government of Canada.

The Adjudicator also made clear that the RCMP does not supply information to theGovernment of Alberta by merely operating CPIC. Rather, the Adjudicator found that information in CPIC was supplied by the variousextra-provincial law enforcement agencies which had placed the information on CPIC. (Order F2011-009 at paras. 35 to 37.) [para 27] In this case, the information in CPIC was placed there by the RCMP. However, unlike in Order F2011-009 it was acting as aprovincial police service in Alberta when it did this.

Accordingly, the information was placed there by an entity representing theGovernment of Alberta, and as such was not supplied by an entity listed in clause 21(1)(a). The result is that the Government of Albertawas the one supplying the information to the Public Body. [para 28] In respect of the above, I find that the Public Body incorrectly applied s 21(1)(

b) to the records at issue. [Footnotes omitted; emphasis added] Submissions of EPS [26] EPS submits that the reasons of the Adjudicator in interpreting s 21(1)(

b) of the FOIPP Act are unreasonable and the decisionshould be quashed. [27] EPS submits that: a. The Adjudicator failed to account for significant distinguishing factors in an Order (i.e. Order F2009-027) that he relied upon; b. The Adjudicator failed to engage in the required statutory

interpretation exercise and consider the text and scheme of thelegislation; c. The Adjudicator failed to explain why a decision (i.e. Order F2004-018) with similar facts that came to a contrary conclusion – thatthe RCMP was an agent of the federal government – was disregarded; and d. The Adjudicator’s

interpretation of the legislation would lead to impractical consequences. [28] The EPS submits that: a. Subsection 21(1)(

b) of the FOIPP Act applies where information is shared in confidence by a government or local governmentbody to a public body; b. Where a public body withholds a record pursuant to s 21(1)(b), there is no requirement for the public body to establish thatdisclosure would harm the relations of the Government of Alberta; c. The RCMP is either an agency of the Government of Canada or a local government body, and accordingly information provided inconfidence by the RCMP to the EPS falls within the scope of s 21(1)(b); and d.

The RCMP Report was provided to the EPS in confidence, and the EPS was entitled to withhold it pursuant to s 21(1)(b). [29] EPS submits that critically the Adjudicator did not make a finding concerning whether or not the RCMP was a localgovernment body and that an analysis on that issue would lead to a finding that the RCMP was a local government body to which s 20(1)(

b) would apply. [30] The EPS says it was an error for the Adjudicator to adopt an

interpretation that conflates sections 21(1)(

a) and 21(1)(

b) of theFOIPP Act by reading into section 21(1)(

b) the requirement that a “government, local government body or an organization that is listedin clause (a)” must also have relations with the Government of Alberta that must be protected from harm. In the Applicant’s opinion, thescheme of

section 21 reveals that it is designed to protect two different categories of information; such that s 21(1)(

b) is directed towards

non-disclosure of “information provided in confidence, which is distinguishable from non-disclosure of information that would harm relations between the Government of Alberta and another entity (under s 21(1)(a). Submissions of the IPC [ 31 ] The IPC submits that the Adjudicator was alert to past decisions of the IPC under s 21(1)(

b) of the FOIPP Act and considered the relevant ones in its analysis and findings. Critically, the Adjudicator in the impugned Order F2020-17 discussed the historical development around the

interpretation of s 21(1)(

b) and adopted similar reasoning: Adjudicator’s Decision at paras 22-27. [ 32 ] The IPC notes that the Adjudicator referenced the reasoning in Order F2008-027 – where the departure from Order F2004-018 (issued by Commissioner Work) – was first established. It excerpted statements made in Order F2008-027 on the

interpretation of FOIPP Act , s 21 that included, inter alia (at paras 75-76) the following: [para 75] Subclauses (i) – (

v) create an exhaustive list of entities belonging to a single, identifiable class: those entities with whom the Government of Alberta’s’ relations are to be protected from harm. Consequently, the Government of Alberta is, by implication, not included in subclause (i), and, as it is not listed in clause (a), cannot be the supplier of confidential information in clause (b). I find that the Government of Alberta is not an entity listed in clause (

a) for the purposes of clause (b). Even though Alberta is a province of Canada, context indicates that it is not included in subclause (i). As noted above, clause (

a) creates a dichotomy between the Government of Alberta and the entities listed in subclauses (i) – (v). The provinces referred to in subclause (

i) are those with which the Government of Alberta has governmental relations. [para 76]

Section 21 addresses harm to the intergovernmental relations of the Government of Alberta. It therefore follows that the information supplied in clause (

b) must be supplied to a public body representing the Government of Alberta, before this provision applies. If information is supplied to any entity other than a representative of the Government of Alberta, it would be illogical to presume that harm would result to the intergovernmental relations of the Government of Alberta from disclosure of that information.

Similarly, it would be absurd to presume that harm would result to the intergovernmental relations of the Government of Alberta through the disclosure of information it supplies to itself. [ Emphasis in original ] [ 33 ] The IPC notes that the burden is on the party challenging the decision to show that it is unreasonable. It submits there are no shortcomings sufficiently serious to require this Court’s intervention in Order F2020-17 .

Analysis of the Adjudicator’s Decision [ 34 ] The key issue in this judicial review is whether the Adjudicator’s determination that the RCMP was acting as an entity representing the Government of Alberta when it provided the information to the EPS is reasonable. The Adjudicator decided it was and therefore s 21(1)(

b) of FOIPP Act did not apply to the records at issue. EPS was ordered to disclose some of the information withheld under s 17(1). [ 35 ] The Adjudicator concluded that the sharing of information between the RCMP and the EPS was intra -governmental rather than inter -governmental and therefore s 21(1)(

b) of FOIPP Act did not apply. [ 36 ] Having reviewed the impugned administrative decision – i.e.

Order F2020-17 – as prescribed by the Supreme Court in Vavilov under a reasonableness review, I find that it is apparent that past IPO Orders (F2004-018, F2008-027 and F2009-027) informed the Adjudicator’s analysis and conclusions concerning the role of the RCMP and in particular the question of when the RCMP was acting as an agent of the provincial government. [ 37 ] The Adjudicator also recognized that there had been a significant change in the legal landscape concerning the characterization of the role of the RCMP since IPO Order F2004-018.

In particular, the Adjudicator’s analysis in the impugned Order observed that Order F2009-027 (at paras 40 and 45) referred to the 2008 Supreme Court of Canada case of Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc v Canada , 2008 SCC 15 [ Société des Acadiens ] . [ 38 ] Société des Acadiens at paras 16-19 , specifically addressed the role of the RCMP when operating as a provincial police force.

The Supreme Court concluded in that case that the RCMP when acting as a provincial police force does not act as a separate federal institution in administering justice; it assumes, by way of contract, obligations related to the police service function set out in the provincial legislation. [ 39 ] Also of significance is that the reasons in Order F2008-027 and Order F2009-027 confirm that the adjudicator in that inquiry requested submissions and engaged in a lengthy and detailed exercise of statutory

interpretation in relation to s 21(1)(b). She discussed the purpose of the section, considered standard drafting conventions, the heading, and the language and context of the provision. That analysis included a discussion of the ambiguity in s 21(1)(b), the history of the introduction of access to information legislation in Canada and various other relevant principles of statutory

interpretation. [ 40 ] The Adjudicator in the Decision under review took into account this exhaustive statutory

interpretation analysis contained in Order F2008-027 and Order F2009-027 and essentially adopted and incorporated by reference these previously applied principles of statutory

interpretation from both orders. This was a logical and reasonable approach. The Adjudicator was not expected or required to redo that analysis. [ 41 ] In

summary, the Adjudicator concluded Order F2004-018 has been overtaken and replaced by Order F2008-027 and Order F2009-027 (both of which relied on the Supreme Court decision in Société des Acadiens ). The result is that the confidentiality

requirement in section 21(1) (

b) did not apply between the EPS and RCMP in the circumstances of this case. Is the impugned Decision of the Adjudicator Reasonable? [ 42 ] In Vavilov at para 131 , the Supreme Court discussed the role of previous decisions of administrative decision makers: [131] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable.

Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons . If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker , at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts.

Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified , thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole. [ Emphasis added ]. [ 43 ] The Adjudicator in this case reviewed and applied past decisions of the IPO concerning the role of the RCMP and in particular where the RCMP was an agent of the federal government (see paras 23-27 of the Order).

The Adjudicator recognized that a previous decision of the IPO was no longer applicable, and it justified a departure from that previous decision. The decision under review is consistent both with the text and scheme of the FOIPP Act and other relevant developments in the law. [ 44 ] To the extent that the provisions of s 21 of the FOIPP Act are relatively ambiguous as to permit two reasonable

interpretations, the Supreme Court in McLean v British Columbia (Securities Commission) , 2013 SCC 67 at paras 39-41 , said: [39] ... As between the two possible

interpretations put forward with respect to the meaning of [the relevant statutory provisions], both find some support in the text, context, and purpose of the statute. In a word, both

interpretations are reasonable. The litmus test, of course, is that if the Commission had adopted the other

interpretation — that is, if the Commission had agreed with the appellant — I am hard-pressed to conclude that we would have rejected its decision as unreasonable. [40] The bottom line here, then, is that the Commission holds the interpretative upper hand: under reasonableness review, we defer to any reasonable

interpretation adopted by an administrative decision maker, even if other reasonable

interpretations may exist. Because the legislature charged the administrative decision maker rather than the courts with “administer[ing] and apply[ing]” its home statute […], it is the decision maker, first and foremost, that has the discretion to resolve a statutory uncertainty by adopting any

interpretation that the statutory language can reasonably bear. Judicial deference in such instances is itself a principle of modern statutory

interpretation. [41] Accordingly, the appellant’s burden here is not only to show that her competing

interpretation is reasonable, but also that the Commission’s

interpretation is unreasonable. And that she has not done. Here, the Commission, with the benefit of its expertise, chose the

interpretation it did. And because that

interpretation has not been shown to be an unreasonable one, there is no basis for us to interfere on judicial review — even in the face of a competing reasonable

interpretation. [ Emphasis in original ] [ 45 ] In the present case, I conclude that the Adjudicator’s

interpretation of s 21(1)(

a) and (

b) of the FOIPP Act in F2020-17 – which demonstrably considered past decisions of OIPC Adjudicators as well as the Supreme Court of Canada’s jurisprudence – has not been shown by the Applicant EPS to be an unreasonable one. [ 46 ] The Adjudicator’s decision is transparent, intelligible and justified; and his conclusions are reasonable . Decision [ 47 ] I find the decision of the Adjudicator in Order F2020-17 to be reasonable. [ 48 ] The application for judicial review is dismissed. Heard on the 31 st day of March, 2021. Dated at the City of Edmonton, Alberta this 19 th day of April, 2021.

J.J. Gill J.C.Q.B.A. Appearances: Katrina M Haymond and Adam Ollenberger, of Field LLP for the Applicant, Edmonton Police Service JF – Self-represented Respondent Glenn Solomon, JSS Barristers and Jillian Harker (for the record) Office of the Information and Privacy Commissioner for the Respondent, Office of the Information and Privacy Commissioner William C. Morrissy (for the record), Department of Justice for Affected Party, Royal Canadian Mounted Police (RCMP)