2011 FC 983, 2011 FC 983

[2013] 2 F.C.R. 563 T-1680-09 2011 FC 983 Jim Bronskill ( Applicant ) v. Minister of Canadian Heritage ( Respondent ) and Information Commissioner of Canada ( Intervener ) Indexed as: Bronskill v. Canada (Canadian Heritage) Federal Court, Noël J.—Ottawa, April 28 and August 11, 2011.

Access to Information — Judicial review of Library and Archives Canada’s (LAC) refusal to disclose portions of Royal Canadian Mounted Police (RCMP) Security Intelligence Division dossier on Thomas Clement Douglas — Canadian Security Intelligence Service (which replaced Security Intelligence Division in 1984) providing LAC with umbrella rationale for exemptions — Office of the Information Commissioner not finding exemptions excessive — Prior to public hearing, second review conducted — Applicant arguing documents made public through second review showing flawed logic in assessment of records, portions of documents missing from record — Whether documents properly considered as exempted under Access to Information Act , s. 15 , whether exercise of discretion reasonable, what factors are to be considered in exercise of discretion under s. 15 ? — Initial withholding of information running counter to Act ’s principles, LAC’s mandate — LAC failing to exercise residual discretion under s. 15 — Documentation still inconsistently redacted after second release — Information relating to current operational interests, technical, human sources meeting s. 15 injury test — However, no reasonable expectation of probable harm in disclosing targets of “transitory nature” — Definition of “prevention and detection of subversive or hostile activities” in context of s. 15 not to be overbroadly used — Refusing disclosure of historical events herein unacceptable — No reasonable cause for probable harm when threats of the time having eroded, “transitory targets” made public — Umbrella rationale in assessing reports from RCMP officers fettering injury assessment required by Act , s. 15 — Not disclosing documents where Thomas Douglas mentioned in passing inconsistent with Act — Erroneous to separate portions of dossier based on relevance — No reasonable expectation of probable harm resulting from disclosure of opinions about Thomas Douglas emitted “incidentally” — Scope of Act, s. 15 exceeded in both reviews — Office of Information Commissioner not duly acquitting itself of duties in regards to discretion —No indicium of discretion considered in second review — Discretion not exercised in reasonable manner — Factors to be considered including principles, objectives of Act , public interest, historical value, passage of time, prior public disclosure — These factors essential to exercise of discretion under s. 15 — Application allowed.

This was an application for judicial review pursuant to

section 41 of the Access to Information Act ( Act ) of Library and Archives Canada’s (LAC) refusal to disclose portions of the Royal Canadian Mounted Police (RCMP) Security Intelligence Division (replaced by the Canadian Security Intelligence Service (CSIS) in 1984) dossier on Canadian politician Thomas Clement Douglas. LAC consulted with CSIS as to the nature of the documentation and the applicability of the Act ’s exemptions. CSIS relied upon an “umbrella rationale” that gave an appreciation to LAC analysts about the general rationale behind exemptions, but not case-specific evidence.

Some of the records reviewed by CSIS were initially withheld under the exemptions provided by sections 15 and 19 of the Act . The applicant complained to the Office of the Information Commissioner (Commissioner), protesting the excessive number and scope of the exemptions. The Commissioner reviewed the documents strictly under the prism of subsection 15(1) of the Act and found that the applicant’s complaint was not justified.

Prior to the public hearing of the application, the respondent undertook a second review of the records claiming, inter alia , that more than five years had passed between the original request and the hearing of the application, and inconsistencies in the withholding of information. The exemption of subsection 19(1) was no longer relied upon in the second review. The applicant argued that the documents made public through the second review showed the flawed logic behind the respondent’s initial assessment of the records, and that portions of documents were missing from the record.

At issue was whether the documents were properly considered as

section 15 exempted documents, whether the exercise of discretion was reasonable in the circumstance, and what factors are to be considered in the exercise of discretion under

section 15 . Held , the application should be allowed. The information that was first withheld was done in a manner than runs counter to the Act ’s principles, as well as to the mandate of LAC. LAC failed to exercise its residual discretion once the documents had been seen to be covered by the

section 15 exemption. The documentation was still inconsistently redacted after the second release of information. The injury test set out in

section 15 was met in regards to information related to current operational interests. The respondent’s approach with respect to technical sources was also reasonable. Information pertaining to human sources was exempted as anticipated by paragraph 15(1) (

f) of the Act . The identity of human sources must be protected and this may be done by reasonably severing records under

section 25 of the Act . The first response to the access to information request was erroneous in respect to past targets of the RCMP’s Intelligence Branch. There was no reasonable expectation of probable harm in disclosing most targets of a “transitory nature”. The Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police expressed concerns over the broad definition of subversion. In the context of the present application, there were similar concerns in regards to the use of an overbroad definition of “prevention and detection of subversive or hostile activities” in the context of

section 15 . There is no reasonable ground for injury preventing the release of these documents. History and Canadian democracy require that historical facts, like the monitoring of legitimate political activities, be known. Refusing disclosure under the Act of these historical events is unacceptable. There is also no “reasonable cause for probable harm” when the perceived threats of the time have eroded and the “transitory targets” are made public. The approach followed in terms of targets of a

“transitory nature” during the course of the second review was thus reasonable. LAC’s umbrella rationale in assessing reports fromRCMP officers fettered the injury assessment required by

section 15 and the redactions made in regards to their names were inconsistent.The names of all the RCMP officers must be disclosed save for those involved in covert operations as infiltrators or sources. Therespondent’s approach, even within the second review, of not disclosing documents where Thomas Clement Douglas was onlymentioned in passing was inconsistent with the Act. Separating portions of a dossier under the premise that they are not related is an errorin law. LAC must consider the documents sought under the Act as they are.

Government institutions must not attempt to portion them offinto categories based on relevance. “Incidental reporting” constitutes relevant information on a person and his or her place in history.There is no reasonable expectation of probable harm under

section 15 resulting from the disclosure of opinions about Thomas ClementDouglas emitted “incidentally”. The scope of

section 15 was exceeded in both reviews of the documentation, as well as in theCommissioner’s review of the documents. Thus, documents where incidental reporting was the premise of the refusal of disclosureshould be made public. The opinions of RCMP officers in regards to Thomas Clement Douglas constitute “opinions made during thecourse of employment” and should be made public. There are no “reasonable grounds for injury” under

section 15 resulting fromdisclosure of those documents. The Office of the Information Commissioner did not duly acquit itself of its duties in regards to discretion. The Commissioner did notconduct a thorough investigation or undertake the analysis of

section 19, deeming that all the records were properly withheld during thecourse of the first review. The Commissioner must not be dazzled by claims based on national security as a thorough and independentreview must be undertaken with a critical mind, in keeping with the legislative objectives at play. The second review was the result ofmuch more than the exercise of discretion, and as such, no indicium of discretion was considered, despite the generic statement to thecontrary. Had Parliament recognized the interests protected by

section 15 as always being prejudiced by disclosure, it would haveadopted a class-based and non-discretionary exemption. Considering the reasons given for the second review, and the “generic”statement that discretion was exercised, discretion was not exercised, or was not done in a reasonable manner. Factors to be considered in the course of the analysis of a

section 15 exemption include the principles and objectives of the Act and ofthe Library and Archives of Canada Act; the public interest in access to information requests, which is implicit given the principles ofthe Act and the qualification of LAC’s mandate; the historical value of a document; the passage of time between the inception of thedocument and the access to information request; and prior public disclosure of information. Recognizing those factors as essential to theexercise of LAC’s discretion under

section 15 is necessary for the Act to be given its full scope and for its principles to be given theirproper weight. Finally, as to the completeness of the file before the Court, LAC interpreted restrictively the access to information request as the“record” on Thomas Clement Douglas, which would only be the intelligence file itself, and not whether more information, if not all, theinformation on the individual in LAC’s control was sought. That information was sought. It is an access to information request that wasaddressed to LAC, not a literal access to records request. The respondent’s possible restrictive

interpretation of the access to informationrequest was a possible refusal of disclosure in and of itself. With respect to the request to appoint an amicus curiae to help the Court with its analysis and review of the documentation, such a poweris not expressly provided for within the Act. For the purposes of the present case, it was assumed that such an appointment was withinthe ambit of the broad powers of

section 50 of the Act. However, no amicus was appointed, notably because the request was not broughtin a timely manner, and because involving an amicus at this stage would not contribute anything more. The matter was sent for redetermination to LAC with specific guidance to consider the reasons herein, their spirit, as well as examples ofimproperly withheld documents.

LAC was ordered to detail and evidence the steps and approach taken for the third review of thedocumentation, including how it exercised its discretion, and justify in writing whether it has more information on Thomas ClementDouglas in its control, beyond what has already been disclosed. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c.

A-1, ss. 2, 4(2.1), 6, 9(1)(b), 10, 13 (as am. by S.C. 2000, c. 7, s. 21; 2005, c. 1, s. 107; 2006,c. 10, s. 32; 2008, c. 32, s. 26; 2009, c. 18, s. 20), 14, 15, 16(1)(c),(d), 18(d) (as am. by S.C. 2006, c. 9, s. 146), 19, 20 (as am. by S.C.2007, c. 15, s. 8), 21(1)(a), 23, 25, 30 (as am. by S.C. 1992, c. 21, s. 4), 36(1)(a),(b),(c),(d),(2), 37(1),(2),(5), 41, 42, 45 (as am. by S.C.2002, c. 8, s. 182), 46, 47 (as am. by S.C. 2006, c. 9, s. 154), 49, 50, 52 (as am. by S.C. 2002, c. 8, s. 112). Canada Evidence Act, R.S.C., 1985, c.

C-5, ss. 38.04 (as enacted by S.C. 2001, c. 41, ss. 43, 141(7)), 38.12 (as enacted idem, s. 43), 39(as am. by S.C. 1992, c. 1, s. 144, Sch. VII, item 5(F)). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, s. 18. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 83(1)(d) (as am. by S.C. 2008, c. 3, s. 4). Library and Archives of Canada Act, S.C. 2004, c. 11,

preamble, ss. 2 “government institution” (as am. by S.C. 2006, c. 9, s. 179.1),“government record”, “ministerial record”, 7, 12. Privacy Act, R.S.C., 1985, c. P-21, ss. 2 “personal information”, 3(j)(v). Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 3. CASES CITED applied: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R.66, 224 D.L.R. (4th) 1, 47 Admin. L.R. (3d) 1; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, 219 D.L.R. (4th)385, 49 Admin. L.R. (3d) 1, revg in part (FCA), [2000] 3 F.C. 589, 187 D.L.R. (4th) 675, 42 Admin. L.R. (3d) 214

(C.A.); Attaran v. Canada (Foreign Affairs), 2011 FCA 182, 337 D.L.R. (4th) 552, 420 N.R. 315, revg 2009 FC 339, 191 C.R.R. (2d)44, 342 F.T.R. 82; Canada (Information Commissioner) v. Canada (Prime Minister), (FC), [1993] 1 F.C. 427, (1992),12 Admin. L.R. (2d) 81, 49 C.P.R. (3d) 79 (T.D.); Canada Packers Inc. v. Canada (Minister of Agriculture), (FCA),[1989] 1 F.C. 47, (1988), 53 D.L.R. (4th) 246, 32 Admin. L.R. 178 (C.A.); Harkat (Re), 2009 FC 204, [2009] 4 F.C.R. 370, 306 D.L.R.(4th) 269, 339 F.T.R. 65. distinguished: Sheldon Blank & Gateway Industries Ltd. v.

Canada (Minister of the Environment), 2001 FCA 374, 41 C.E.L.R. (N.S.) 59, 281 N.R.388; Blank v. Canada (Minister of Justice), 2007 FCA 147; Murchison v. Export Development Canada, 2009 FC 77, 354 F.T.R. 18. considered: 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 F.C. 421, 45 Admin. L.R. (3d) 182, 14 C.P.R. (4th)449; Kitson v. Canada (Minister of National Defence), 2009 FC 1000, [2010] 3 F.C.R. 440, 354 F.T.R. 201; Maislin Industries Limitedv. Minister for Industry, Trade and Commerce, (FC), [1984] 1 F.C. 939, (1984), 10 D.L.R. (4th) 417, 8 Admin. L.R.305 (T.D.); Statham v.

Canadian Broadcasting Corporation, 2010 FCA 315, [2012] 2 F.C.R. 421, 326 D.L.R. (4th) 228, 409 N.R. 350;Steinhoff v. Canada (Minister of Communications) (1998), 10 Admin. L.R. (3d) 232, 83 C.P.R. (3d) 380 (F.C.T.D.); X. v. Canada(Minister of National Defence) (1992), 58 F.T.R. 93 (F.C.T.D.); Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), (FC), [1997] 2 F.C. 907, (1997), 143 D.L.R. (4th) 746, 71 C.P.R. (3d) 447 (T.D.), affd , 173D.L.R. (4th) 515, 86 C.P.R. (3d) 289 (F.C.A.); Ontario (Public Safety and Security) v.

Criminal Lawyers’ Association, 2010 SCC 23,[2010] 1 S.C.R. 815, 319 D.L.R. (4th) 385, 1 Admin. L.R. (5th) 235; Saint John Shipbuilding Ltd. v. Canada (Minister of Supply andServices) (1988), 24 F.T.R. 32 (F.C.T.D.), affd (1990), (FCA), 67 D.L.R. (4th) 315, 107 N.R. 90 (F.C.A.); X v.Canada (Minister of National Defence), (FC), [1992] 1 F.C. 77, (1991), 46 F.T.R. 206 (T.D.); Babcock v.

Canada(Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, 214 D.L.R. (4th) 193, [2002] 8 W.W.R. 585; Canada (Attorney General) v.Almalki, 2011 FCA 199, 333 D.L.R. (4th) 506, 271 C.C.C. (3d) 63, 320 N.R. 91, revg 2010 FC 1106, 377 F.T.R. 186; R. v. NationalPost, 2010 SCC 16, [2010] 1 S.C.R. 477, 318 D.L.R. (4th) 1, 254 C.C.C. (3d) 469. referred to: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, 331 D.L.R. (4th)513, 18 Admin. L.R. (5th) 181; Canada Post Corp. v. Canada (Minister of Public Works), (FCA), [1995] 2 F.C. 110,(1995), 30 Admin.

L.R. (2d) 242, 60 C.P.R. (3d) 441 (C.A.); Rubin v. Canada (Minister of Transport), (FCA), [1998]2 F.C. 430, (1997), 154 D.L.R. (4th) 414, 221 N.R. 145 (C.A.); R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, 206Nfld. & P.E.I.R. 304, 203 D.L.R. (4th) 513; R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, (1991), 120 A.R. 161,[1992] 1 W.W.R. 97; Byer v. Canada (Information Commissioner), 2004 FC 119; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R.339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th) 1; Canada (Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 253,41 Admin. L.R. (3d) 19, 14 C.P.R. (4th) 484; Sherman v. Canada (Minister of National Revenue), 2002 FCT 586, 20 C.P.R. (4th) 508,[2002] 3 C.T.C. 349, 222 F.T.R. 145; Canadian Council for Christian Charities v. Canada (Minister of Finance), (FC), [1999] 4 F.C. 245, [1999] 3 C.T.C. 123, (1999), 99 D.T.C. 5337 (T.D.); Khadr v. Canada (Attorney General), 2008 FC 46, [2008]3 F.C.R. 306, 54 C.R. (6th) 76, 166 C.R.R. (2d) 134; Sherman v.

M.N.R., 2004 FC 1423, 245 D.L.R. (4th) 758, 23 Admin. L.R. (4th)114, 35 C.P.R. (4th) 432; Rubin v. Canada (Canada Mortgage and Housing Corp.), (FCA), [1989] 1 F.C. 265, (1988)52 D.L.R. (4th) 671, 32 Admin. L.R. 196 (C.A.); Carey v. Ontario, (SCC), [1986] 2 S.C.R. 637, (1986), 35 D.L.R. (4th)161, 22 Admin. L.R. 236; Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials inRelation to Maher Arar), 2007 FC 766, [2008] 3 F.C.R. 248, 72 Admin. L.R. (4th) 68, 316 F.T.R. 279; Bisaillon v. Keable, (SCC), [1983] 2 S.C.R. 60, (1983), 2 D.L.R. (4th) 193, 4 Admin. L.R. 205; R. v.

Leipert, (SCC), [1997] 1 S.C.R.281, (1997), 143 D.L.R. (4th) 38, [1997] 3 W.W.R. 457; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, 285D.L.R. (4th) 193, [2008] 1 W.W.R. 223; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592, 325 D.L.R.(4th) 193, 94 C.P.C. (6th) 1; Charkaoui (Re), 2008 FC 61, [2009] 1 F.C.R. 507, 316 F.T.R. 236. AUTHORS CITED Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald Commission). SecondReport: Freedom and Security under the Law, Vol. 1. Ottawa: Supply and Services Canada, August 1981.

Côté, Pierre-André. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis Canada, 2008. Wigmore, John Henry. Evidence in Trials at Common Law, McNaughton Revision, Vol. 8. Boston: Little, Brown & Co., 1961. application for judicial review pursuant to

section 41 of the Access to Information Act of Library and Archives Canada’s refusal todisclose portions of the Royal Canadian Mounted Police Security Intelligence Division (now the Canadian Security Intelligence Service)dossier on Canadian politician Thomas Clement Douglas. Application allowed. APPEARANCES Paul Champ for applicant. Gregory S. Tzemenakis for respondent. Patricia Boyd for intervener.

SOLICITORS OF RECORD Champ & Associates , Ottawa, for applicant. Deputy Attorney General of Canada for respondent. Senior Counsel, Office of the Information Commissioner, Ottawa, for intervener. Table of Contents Paragraphs I. Background A. Thomas Clement Douglas’ life 3 B. The applicable law 4–27 C. History of the proceeding 28–46 D. The second review of the Douglas file 47–61 E. The applicable standards of review 62–82 F. Determinative questions 83–85 II. Analysis A. Preliminary matters

(1) The completeness of the file before the Court 86–109

(2) The amicus curiae request 110–114

(3) The evidence in support of confidentiality 115–122 B. Were the documents properly considered as

section 15 exempted documents?

(1) General considerations 123–139

(2) Current operational interest 140–141

(3) Human sources 142–155

(4) Technical sources 156–158

(5) Targets of “transitory nature” 159–171

(6) Identity of RCMP officers 172–177 (7) “Incidental reporting” 178–189

(8) RCMP’s assessment of T. C. Douglas 190–193 C. Was the exercise of discretion reasonable in the circumstances 194–209 D. What factors are to be considered in the exercise of discretion 210–223 III. Conclusion 224–228 IV. Annex The following are the reasons for judgment and judgment rendered in English by [ 1 ] Noël J.: The present application is brought under

section 41 of the Access to Information Act , R.S.C., 1985, c. A-1 (the Act ), whereby the Federal Court is to review Library and Archives Canada’s (LAC) refusal to disclose portions of the Royal Canadian Mounted Police’s [RCMP] dossier on Tommy Clement Douglas, a Canadian politician, deceased on February 24, 1986.

The applicant, Jim Bronskill, is a journalist with the Canadian Press. [ 2 ] At issue is what portions, if any, of the 1 142-page of LAC’s Douglas file should be made public, additionally to what had been initially disclosed by LAC after the access to information request (ATI request), and what has also emerged from the application prior to this Court’s judgment. It should be noted that the scope of the present judgment and the underlying ATI request does not extend to the full record on T. C. Douglas.

It only deals with the portions of the record which LAC deemed responsive to the ATI request (see transcript of the public hearing of February 23, 2011, at page 138). I. Background A. Thomas Clement Douglas’ Life [ 3 ] Thomas Clement Douglas held the office of Premier of Saskatchewan from 1944 to 1961, when he led the first arguably social democratic government in North America. In 1961, he became the first leader of the newly formed New Democratic Party, a title which he held for close to 10 years.

Much can be said of his accomplishments both as a Member of Parliament and as a member of the Legislative Assembly of Saskatchewan. The Court mentions in passing Douglas’ spearheading of the creation of the first provincial Medicare plan. It is clear that both history and Canadians from coast to coast have much to learn about Mr. Douglas, and this application can be seen as contributing in this respect. It can also be said that access to information, whether the subject of the request is well known or not, benefits all Canadians. B.

The Applicable Law [ 4 ] The public’s right to information detained by government is governed by the Access to Information Act and the Privacy Act , R.S.C., 1985, c. P-21 . The purpose of the Access to Information Act is to enshrine an essential component of democracy: the public’s right to government information (section 2 of the Act ). This right to government information is mandatory for both public scrutiny of

government activities, as well as the full and meaningful participation in public debate and discussion. If the adage that information ispower holds true, then our democracy depends on the broad and liberal

interpretation of the Act, subject to valid concerns represented bythe exemptions provided. The Act has been recognized as having a quasi-constitutional status by the Supreme Court in Canada(Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306. [5] The Act itself is unambiguous as to its scope and purpose. Firstly, the Act’s purpose is to extend the public’s right to access toinformation, and that the Act was not meant to “limit in any way” access to government information (section 2 of the Act).

Section 2 ofthe Act also requires that the exemptions to the right of access should be “limited and specific”. This limited scope of the exemptionsprovided in the Act is essential to the Court’s

interpretation of any application brought forth, and Courts have consistently recognizedthis policy objective as being a core component of the review of refusals of disclosure (Canada Post Corp. v. Canada (Minister of PublicWorks), (FCA), [1995] 2 F.C. 110 (C.A.), at page 129): It also appears clearly from these two provisions that Parliament intended the Act to apply liberally and broadly with the citizen’s right ofaccess to such information being denied only in limited and specific exceptions. See also, inter alia, Canada (Information Commissioner) v.

Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC8, [2003] 1 S.C.R. 66; Rubin v. Canada (Minister of Transport), (FCA), [1998] 2 F.C. 430 (C.A.). [6] The process for access to information begins with a written and sufficiently detailed request made to the institution that has therecords sought (section 6 of the Act). In this case, the applicant made a request directly to LAC. There is currently no direct process bywhich citizens may know which access requests are pending and the records sought after in these requests.

The “head of a governmentinstitution”, as defined by the Act, is responsible for responding accurately and completely to the ATI request (subsection 4(2.1) of theAct). Furthermore, the Act instructs that the head of a government institution shall, “subject to the regulations, provide timely access tothe record” without regard to the identity of the person making the ATI request (subsection 4(2.1) of the Act). [7] The head of a government institution may refuse access to the records sought: Where access isrefused 10.

(1) Where the head of a government institution refuses to give access to a record requested under this Act or apart thereof, the head of the institution shall state in the notice given under paragraph 7(a) (

a) that the record does not exist, or (

b) the specific provision of this Act on which the refusal was based or, where the head of the institution does notindicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if therecord existed, and shall state in the notice that the person who made the request has a right to make a complaint to theInformation Commissioner about the refusal. Existence of a recordnot required to bedisclosed

(2) The head of a government institution may but is not required to indicate under subsection (1) whether a recordexists. Deemed refusal togive access

(3) Where the head of a government institution fails to give access to a record requested under this Act or a partthereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, bedeemed to have refused to give access. [8] For it to have sufficient traction, the Act enshrines the independent review of refusals of disclosure as another core principle(subsection 2(1)).

The Office of the Information Commissioner of Canada is statutorily mandated to review refusals of disclosure if acomplaint is made in writing, and may initiate an investigation on its own behalf (section 30 [as am. by S.C. 1992, c. 21, s. 4]). Itsinvestigative powers are clearly set out in the Act, and include the power to summon and enforce the appearance of persons (paragraph36(1)(a)); the power to administer oaths and evidence (paragraphs 36(1)(

b) and 36(1)(c)); and the power to access all governmentrecords, subject to security clearance of staff (paragraph 36(1)(

d) and subsection 36(2)). [9] The Information Commissioner’s investigative mandate is complemented by its obligation to report to the government institutionif it finds a complaint to be well founded, and must provide its findings in support (subsection 37(1)). In this respect, the InformationCommissioner may also make recommendations and make a request that notice be given of the steps taken or proposed to implementthese recommendations, or alternatively, reasons why these are not implemented (subsection 37(2) of the Act).

Where, following theinvestigation of a complaint, the head of a government institution maintains the refusal of disclosure of the record, the InformationCommissioner informs the complainant that a right of review before the Federal Court is available (subsection 37(5) of the Act).However, the Court’s review is of the decision of the head of the government institution to refuse disclosure, not the decision of theInformation Commissioner (3430901 Canada Inc. v.

Canada (Minister of Industry), 2001 FCA 254, [2002] 1 F.C. 421 (herein referred toas Telezone), at paragraph 42). [10] It should also be noted that the Information Commissioner’s mandate is broader than what is alluded to in the present reasons.Suffice to say that the Information Commissioner’s mandate is one that should be taken with the utmost vigour and energy.

Truly, theInformation Commissioner is one of the custodians of our democracy. [11] Once the Information Commissioner’s review is completed, and if the head of the government institution’s refusal is maintained,the complainant may file an application before the Federal Court for a review of the refusal of disclosure (section 41). The InformationCommissioner may file this application as well, and even appear on behalf of the initial complainant (section 42).

The Court must begranted access to all the relevant documentation (section 46), and ultimately, is responsible for not divulging any of the protectedinformation during the process of the application (section 47 [as am. by S.C. 2006, c. 9, s. 154]). The nature of the review undertaken bythe Court will be discussed below.

[ 12 ] In the case at bar, the exemption that was chiefly claimed is that of

section 15 of the Act . Initially, LAC had refused access on the basis of

section 19 as well. These provisions read as follows: International affairs and defence 15.

(1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information (

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

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

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

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

i) the defence of Canada or any state allied or associated with Canada, or (ii) the detection, prevention or suppression of subversive or hostile activities; (

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

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

d) or (

e) or on sources of such information; (

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

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

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

i) for the conduct of international affairs, (ii) for the defence of Canada or any state allied or associated with Canada, or (iii) in relation to the detection, prevention or suppression of subversive or hostile activities.

Definitions

(2) In this section, “defence of Canada or any state allied or associated with Canada” « défense du Canada ou d’États alliés ou associés avec le Canada » “defence of Canada or any state allied or associated with Canada” includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada;

“subversive or hostile activities” « activités hostiles ou subversives » “subversive or hostile activities” means (

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

b) sabotage, (

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

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

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

f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada. … Personal information 19.

(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in

section 3 of the Privacy Act . Where disclosure authorized

(2) The head of a government institution may disclose any record requested under this Act that contains personal information if (

a) the individual to whom it relates consents to the disclosure; (

b) the information is publicly available; or (

c) the disclosure is in accordance with

section 8 of the Privacy Act . [Emphasis added.] [ 13 ] The exemptions laid out in the Act are to be considered in two aspects by the reviewing Court. Firstly, exemptions in the Act are either class-based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive in and of itself. For example, the

section 13 exemption is related to information obtained from foreign governments, which, by its nature, is a class-based exemption. Injury-based exemptions require that the decision maker analyse whether the release of information could be prejudicial to the interests articulated in the exemption.

Section 15 is an injury-based exemption: the head of the government institution must assess whether the disclosure of information could “be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. [ 14 ] In the case at bar, while LAC had custody of some of the sought-after records, it was required by the Act and Treasury Board policy to consult with the institution from which the records originated.

In this case, the record originated from the RCMP’s Security Intelligence Division. As this division was replaced by a civilian intelligence service, the Canadian Security Intelligence Service (CSIS), in 1984, LAC consulted with that organization as to the nature of the documentation and the applicability of the Act ’s exemptions. [ 15 ] The second component of the exemptions under the Act is to determine whether the exemption is mandatory or discretionary.

In the case of mandatory exemptions, the provisions of the Act mandate that the decision maker “shall refuse to disclose” the records when they fall under the exemption (see, inter alia ,

section 19). In the case of discretionary exemptions, the decision maker “may refuse” to disclose the record.

Section 15 is a discretionary exemption, the aspects of which will be considered at length in the present reasons. [ 16 ] The Library and Archives of Canada Act , S.C. 2004, c. 11 is inextricably linked to the Act . The most obvious link in the present application is that LAC is the respondent to the ATI request, but over and above that, the Library and Archives of Canada Act should be considered in every review of an ATI request, regardless as to the department or decision maker involved. The responsibilities conferred by

section 12 of the Library and Archives of Canada Act to the Librarian and Archivist , the head of LAC support this contention: Destruction and disposal 12.

(1) No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents. [ 17 ] Considering the broad

definitions of “government record” or “ministerial record” and “government institution” [as am. by S.C. 2006, c. 9, s. 179.1 ] found within the Library and Archives of Canada Act [in

section 2 ], it can be said that the ultimate approval of destruction and retention of documentation is an integral part of LAC’s mandate. Evidently, Parliament considers access to information in Canada and document retention as essential components of citizens’ right to government information. [ 18 ] LAC’s objectives are to be considered by any government institution assessing ATI requests as these objectives further compound the Act ’s objectives and reinforce the importance of access to government records. In all clarity, LAC’s statutory mandate is defined as:

Objects7. The objects of the Library and Archives of Canada are (

a) to acquire and preserve the documentary heritage; (

b) to make that heritage known to Canadians and to anyone with an interest in Canada and to facilitate access to it; (

c) to be the permanent repository of publications of the Government of Canada and of government and ministerial records thatare of historical or archival value; (

d) to facilitate the management of information by government institutions; (

e) to coordinate the library services of government institutions; and (

f) to support the development of the library and archival communities. [19] This mandate is not a passive one. LAC is instructed by Parliament to “acquire and preserve” the documentary heritage ofCanadians. It is also instructed to “make that heritage known” as well as “facilitating access” to it. Insomuch as facilitating access togovernment documentation is the very objective of the Act, LAC’s mandate is not only similar; it is the logical extension of the Act. Thepreamble of the Library and Archives of Canada Act reinforces this synergy between the Act and LAC’s mandate:

PreambleWHEREAS it is necessary that (

a) the documentary heritage of Canada be preserved for the benefit of present and future generations; (

b) Canada be served by an institution that is a source of enduring knowledge accessible to all, contributing to the cultural,social and economic advancement of Canada as a free and democratic society; (

c) that institution facilitate in Canada cooperation among the communities involved in the acquisition, preservation anddiffusion of knowledge; and (

d) that institution serve as the continuing memory of the government of Canada and its institutions; [20] The use of the

preamble of

an act to fully grasp its purpose is a method that is without controversy and a useful tool to understandLAC’s mandate and the mission with which it was entrusted with by Parliament. Professor Ruth Sullivan has stated that

preambles andpurpose statements are “the most authoritative evidence of purpose” (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed.,Markham, Ont.: LexisNexis Canada, 2008, at page 271). Professor Côté offers the view that the case law has evolved in a manner suchthat the

preamble is to be considered, unless the circumstances, such as the clarity of the dispositions to be interpreted, justify notconsidering the indicia of intent that the

preamble offers (Pierre-André Côté, in collaboration with Stéphane Beaulac and MathieuDevinat, The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011, at pages 66–67). [21] The Library and Archives of Canada Act emphasizes the accessibility of documentation, as well as its contributory role toCanada’s democracy (“enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada asa free and democratic society”). Again, LAC is mandated with a pragmatic mission: “acquisition, preservation and diffusion ofknowledge” (emphasis added).

Ultimately, LAC is the custodian of our documentary heritage and the information contained therein(“continuing memory” or “mémoire permanente”). Whether or not the records are in LAC’s possession or not is beside the point, allgovernment institutions answer to the Librarian and Archivist and those with his delegated authority in terms of document retention. Anydecision to dispose of these records thus falls to the Librarian and Archivist or those with his delegated authority (section 12 of theLibrary and Archives of Canada Act). [22] Not only do the principles of statutory

interpretation allow for consideration of statutes adopted on similar issues, the coherenceof the Canadian legal order requires that the inherent principles of statutes in similar matters be considered fully complementary,especially in an issue as important as access to information. It is clear that the complimentary purposes of the Act and the Library andArchives Act of Canada are such that they are inextricably linked, as would the aims of the Privacy Act if it was to be considered by theCourt in the present application.

Professor Sullivan offered a learned perspective on statutes on the same subject (Ruth Sullivan, Sullivanon the Construction of Statutes, above, at page 412): The presumptions of coherence and consistent expression apply as if the provisions of these statutes were part of a single Act.Definitions in one statute are taken to apply in the others and any purpose statements in the statutes are read together. [Emphasis added.] [23] This approach is consistent with the approach of the Supreme Court in R. v.

Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2S.C.R. 867, in terms of interpreting statutes in similar matters. [24] It should be noted that Madam Justice Sharlow of the Federal Court of Appeal has stated in Sheldon Blank & Gateway IndustriesLtd. v. Canada (Minister of the Environment), 2001 FCA 374, 41 C.E.L.R. (N.S.) 59 [at paragraph 12] that “the Court should consideronly the Act and the jurisprudence guiding its

interpretation and application. Laws requiring disclosure in other legal proceedings cannotnarrow or broaden the scope of disclosure required by the Access to Information Act.” However, in Sheldon Blank, the Court was askedto import the Stinchcombe standard of disclosure in criminal matters to the ATI requests [R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326]. The Court distinguishes the Sheldon Blank case with the present application and comments therein with regards tothe Library and Archives of Canada Act.

Again, the Library and Archives of Canada Act and the Access to information Act are statutesadopted in pari materia, and are thus not incompatible and do not have the same implications as importing the Stinchcombe standard ofdisclosure of criminal law to ATI requests. [25] Thus, the dynamic mandate and purpose of LAC, including the intrinsic value of documentary archives and access thereof, must

be considered by any decision maker when considering ATI requests, as these fully complement the objectives and spirit of the Act itself. [ 26 ] This Court is mandated with the important task of safeguarding the confidentiality of the information it is to assess and must take “every reasonable precaution” to protect it from disclosure (

section 47 of the Act ). The Federal Court is also mandated with a similar task in other national security matters. Under the Canada Evidence Act , R.S.C., 1985, c. C-5,

section 38.12 [as enacted by S.C. 2001, c. 41 , s. 43] and subsection 38.04(4) [as enacted idem , s. 141(7)] entrust the Court with the responsibility of protecting confidential information. Under the Immigration and Refugee Protection Act , S.C. 2001, c. 27, paragraph 83(1) ( d ) [as am. by S.C. 2008, c. 3, s. 4 ] confers to the Court the responsibility to protect the information submitted in the context of security certificates. [ 27 ] However, under the Canada Evidence Act and under the Immigration and Refugee Protection Act , the power to draft summaries of the information is clearly provided for by statute.

This power has not been clearly given by Parliament to the Information Commissioner or the decision maker. The

summary accomplishes a balance between the protection of national security information and the right to know a case or to be provided with relevant information. In the context of access to information, the right to access to information in and of itself could be balanced with national security information by providing summaries. While the Court could consider the issuance of summaries under the broad powers of

section 50 , it should be noted that this is a lengthy and resource-intensive exercise. It can be anticipated that the present application could have proceeded more efficiently if the head of the government institution and the Information Commissioner had the power to issue summaries, which could then be reviewed by the Court. C.

History of the Proceeding [ 28 ] Since the applicant’s original ATI request in November 2005, the request and subsequent proceedings have evolved in such a way that a general history is required to render a clear picture of the situation, as it may be illustrative of the dynamics of access to information in Canada. Applications under the Act are supposed to proceed in a

summary way (

section 45 [as am. by S.C. 2002, c. 8, s. 182 ] of the Act ). As will be seen, the nature and volume of the records were such that proceeding in a

summary way was not possible. It would be expected that such a historical file would be processed more efficiently through all stages. [ 29 ] The applicant’s request was brought to LAC in November 2005 and stated the following: A copy of the RCMP Security Service File(

s) on Thomas Clement (Tommy) Douglas. (see attached biography). The 20 th anniversary of Mr. Douglas’s death is February 24, 2006. I ask that you begin processing this request immediately as it will likely involve several weeks of preparation given the backlogs in handling applications under the Access to Information Act . [ 30 ] As indicated by the public affidavit of Nicole Jalbert, Access to Information and Privacy Coordinator for the Canadian Security Intelligence Service (CSIS), the Douglas dossier was to be retained “because of its historical significance”.

It was transferred to the National Archives of Canada, as it was then, in April 2000. [ 31 ] As the records were contained in the “RG146 — Records of the Canadian Security Intelligence Service” file, LAC proceeded to consult with CSIS. After this initial consultation, the senior analyst in charge of the file wrote to the applicant on December 9, 2005, indicating that an extension of up to 390 days was required beyond the statutory 30-day limit, as a result of the required consultations with CSIS, as prescribed under paragraph 9(1) (

b) of the Act . [ 32 ] By way of a letter from the senior analyst at LAC, CSIS was instructed as follows (Exhibit 1 to the cross-examination of Nicole Jalbert, March 2, 2010): If you wish us to withhold these records or portions thereof, please mark them accordingly. We require a detailed written rationale demonstrating that the information recommended for exemption falls under one or more provisions of the Access to Information Act .

Other substantiating information you can produce which will help us to support an exemption would also be useful. [ 33 ] Citing concerns of administrative expediency, Nicole Jalbert indicated during her cross-examination that CSIS only relied upon “sort of an umbrella rationale”, which gives an appreciation to LAC analysts about the general rationale behind exemptions, but not case- specific evidence (pages 40–41 of the cross-examination of Nicole Jalbert, January 21, 2010). The review undertaken by CSIS aimed to see if the documents properly fell within the subsection 15(1) exemption of the Act .

On October 31, 2006, CSIS provided LAC with the redacted documents with an indication of what exemption was claimed over the portions of the record (cross-examination of Bill Wood, March 8, 2010). [ 34 ] The rationale document provided by CSIS was submitted in the public documentation, albeit in a redacted form. As will be seen later, as a result of the ex parte , in camera portion of the application, redacted portions of this document became public.

The rationale document, as well as the “Library and Archives (LAC) Consultations” document, are now publicly available as a result of the present application. [ 35 ] The internal review of the record indicates that the senior analyst assigned to the review of CSIS’ recommendations was given the file on December 5, 2006 (“Access to Information Request — A-2005-00450/MIC — Bronskill, Jim (Media)”, Exhibit 2 to the cross-examination of Bill Wood, March 8, 2010). [ 36 ] On December 12, 2006, LAC’s senior analyst wrote to the applicant indicating that 456 records from the file could be disclosed, but that the others were to be withheld under the exemptions provided by sections 15 and 19 of the Act .

It was indicated that

section 10 was also relied upon, whereby the institution was refusing to confirm or deny the existence of the records. It was later indicated that the reference to

section 10 was said to be inadvertent. [ 37 ] On January 17, 2007, the applicant made a formal complaint to the Information Commissioner of Canada, protesting “the excessive number and scope of the exemptions applied to the records”. [ 38 ] By way of a letter dated August 27, 2009, more than two years after this complaint was filed, the Information Commissioner

found that the applicant’s complaint was not justified. Further, the Information Commissioner indicated that its office had reviewed thedocuments strictly under the prism of subsection 15(1) of the Act, and that it was not necessary to review the documents undersubsection 19(1), as the documents were deemed to be properly withheld under subsection 15(1). [39] The application for judicial review pursuant to

section 41 of the Act was brought before this Court in October 2009. Pursuant tosection 52 [as am. by S.C. 2002, c. 8, s. 112] of the Act, Madam Prothonotary Aronovitch granted leave to the respondent to fileevidence on an ex parte basis by way of an order dated December 9, 2009. The respondent sought to strike two affidavits from therecord, which were deemed irrelevant and opinion based. While acquiescing that some of the portions of the affidavits of Wesley Warkand Craig Heron were opinionated, Madam Prothonotary Tabib denied the Minister’s motion to strike the affidavits by an order datedFebruary 11, 2010. [40] Pursuant to

section 52 and the nature of the

section 15 exemption claimed, Chief Justice Lutfy assigned this Court to hearing theapplication, both for the in camera portion, as well as the public hearing (order dated September 7, 2010). [41] The ex parte portion of the hearing took place in Ottawa on November 30, 2010. In light of the concerns highlighted by theSupreme Court in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 and Chief Justice Lutfy in Kitson v.

Canada(Minister of National Defence), 2009 FC 1000, [2010] 3 F.C.R. 440, and recently confirmed by the Federal Court of Appeal in Attaran v.Canada (Foreign Affairs), 2011 FCA 182, 337 D.L.R. (4th) 552, it was clear for all the parties involved, including the Court, that the exparte, in camera hearing of the application was to be limited to the very minimum, so as to not adversely affect the open court principleas well as the applicant’s interests. As related by Associate Chief Justice Jerome in Maislin Industries Limited v.

Minister for Industry,Trade and Commerce, (FC), [1984] 1 F.C. 939 (T.D.), at page 942, the directions for proceeding on an ex parte, incamera basis “should be such as to safeguard the public interest in the administration of justice, and the rights of any parties notpermitted to participate.” The Court independently also reviewed the complete, unredacted record before proceeding to this ex parte, incamera hearing. [42] After an ex parte teleconference, a

summary of the ex parte, in camera hearing was prepared by counsel for the respondent at therequest of the Court. It was approved by the Court and filed. Summarily, it related the process followed during the closed hearing, aswell as the Court’s concerns. The

summary indicates the following: i. Concerns addressed by the Court were: a. Whether additional information could be released in two of the documents previously released to the Applicant, entitled “RationaleDocument for CSIS exemptions used by National Archives” and “Library and Archives (LAC) Consultations”. b. To what extent is the mandate of Library and Archives Canada addressed in the evidence. c. How was the discretion under

section 15 exercised by Library and Archives Canada? d. To what extent was that exercise of discretion reasonable? ii. Counsel for the Minister brought precision to the categories of information that had been protected by presenting the Court with aseries of examples through specific reference to the documents. iii. Counsel for the Minister advised the Court of its intention, and undertook, to review a number of documents for possible release. iv. The Court presented counsel for the Minister with a number of documents that were of concern; the purpose of which was to examinethe extent to which the mandate of Library and Archives Canada was considered during the exercise of discretion under

section 15. [43] Due to extraneous circumstances, the public hearing which was to be held on December 14, 2010 was adjourned on consent andwas to be rescheduled. In the meantime, counsel for the Minister submitted by way of a letter dated December 13, 2010, that the matterbe adjourned for 90 days while the respondent undertook a review of the documents in good faith in order to release more informationfurther to the in camera hearing. Additional disclosure was to be made before March 31, 2011.

At the time, counsel for the applicantopposed this new review of documentation, as it was argued that the record should be evaluated as it was initially placed before theCourt. It was nonetheless filed before the Court on February 16, 2011. [44] The Court indicated in a teleconference with the parties on December 17, 2010, that the present application could proceeddirectly to judgment on the basis of the written representations of the parties. However, counsel for the parties instructed that the mattershould proceed to a public hearing, as there were live issues to be debated in a public forum.

The hearing was set for February 23, 2011,in Ottawa and went ahead as scheduled. [45] The public hearing allowed the parties to make representations on the nature of the subsection 15(1) exemption of the Act, aswell as other issues that will be dealt with in the present reasons.

However, through a letter submitted on February 24, 2011, counsel forthe respondent clarified certain aspects of the representations made during the public hearing. [46] Apart from the considerations pertaining to the second review of the documentation, counsel for the respondent clarified whatwas alluded to in terms of changes in policy within CSIS and LAC as a result of the proceedings. In the letter of February 24, 2011, itwas said that “CSIS recommended the release of most of the records obtained through technical sources (intercepts and surveillance)when the subject of interest was transitory in nature.

This recommendation will be applied to all CSIS files that were transferred to LAC,because of their historical importance, from this point forward”. This was noted to be a “significant departure” in which historical recordswere reviewed by CSIS and LAC. However, what consists of a subject of interest of transitory nature remains to be defined with moreprecision. D. The Second Review of the Douglas File

[ 47 ] As noted above, a second review of the Douglas file was undertaken by the respondent and filed before the Court just before the public hearing. [ 48 ] Firstly, in the letter dated February 24, 2011 (see paragraph 46 of these reasons), counsel for the respondent clarified the three reasons why a second review of the documentation was undertaken by the respondent.

These three reasons alluded to were: more than five years had passed between the original request and the hearing of the application; the respondent had acknowledged to the Court that there were inconsistencies in the withholding of information; and a number of comments during the in camera hearings were such that it “made it appropriate to conduct a further review”. [ 49 ] Secondly, in the letter dated February 24, 2011, the rationale for the release of additional information was further detailed by counsel for the respondent.

In this letter, counsel for the respondent also stated that the exemption of subsection 19(1) was no longer relied upon. During the review of the documentation, the Court found that subsection 19(1) concerns could still be found within the documents. However, as

section 19 was not argued or relied upon, the analysis strictly deals with subsection 15(1) . [ 50 ] In light of the second review of the litigated file, the Court was faced with an important question: what was the nature of this second review of the documents? Is it a de novo decision, which should proceed before the Information Commissioner before the Court can validly review them? At first glance, it could appear as though the requirements of

section 41 imply that the matter be put to the Information Commissioner before being put before the Court. This is also the

interpretation this

section received recently in Statham v. Canadian Broadcasting Corporation , 2010 FCA 315 , [2012] 2 F.C.R. 421, at paragraph 64 . [ 51 ] This issue was raised during the public hearing, but was left open as the parties required time to make supplementary submissions.

In this respect, the Court also instructed the parties to contact the Office of the Information Commissioner in the view of obtaining its position on whether the Court had jurisdiction to consider this second review of the Douglas dossier. [ 52 ] By consent of the parties, the Information Commissioner brought a motion in writing to be granted intervener status for the jurisdictional issue.

Leave was granted by the Court by an order dated March 28, 2011, for the Information Commissioner to be granted status as an intervener in regards to the jurisdictional issue. [ 53 ] The Commissioner framed the jurisdictional issue as follows: Does the requirement in s.41 of the ATIA that the Commissioner investigate a refusal to disclose records, or parts thereof, prior to the commencement of a s.41 ATIA application for review remove the jurisdiction of the Federal Court to review the information released by LAC on February 16, 2011? [ 54 ] Relying on Byer v.

Canada (Information Commissioner) , 2004 FC 119 , the Information Commissioner submitted that once the subsection 37(2) of the Act report was provided, the office was functus officio for the purpose of the application, absent a new complaint made to the Office of the Information Commissioner. Furthermore, as the same exemption was claimed in the new review of the documents, the Commissioner had thus examined the first release of documents and found the complaint not to be founded. Hence, no new exemptions were raised, and the documents at issue were the very same.

As such, the Information Commissioner is argued to be functus officio for the application. [ 55 ] By an oral direction dated April 5, 2011, the Court granted the parties leave to file supplementary submissions to address the second review of documents more elaborately. [ 56 ] Counsel for the applicant submitted further representations in regards to the supplementary disclosure. Counsel appropriately highlighted that the documents made public through the second review showed the flawed logic behind the respondent’s initial assessment of the records.

Furthermore, counsel for the applicant pointed out that portions of documents were missing from the record. [ 57 ] The essential question of the missing documentation and the fragmentation of the Douglas dossier will be dealt with in the present reasons, as it is a critical element of the application. [ 58 ] The respondent has argued that disclosure was refused when information taken out of context could be unfair to Mr. Douglas.

The applicant submitted that this was unjustified and that it is a “patronizing approach”. [ 59 ] Citing a precedent from the United Kingdom, the applicant also suggested that an amicus curiae or a special advocate be appointed at the late stage in the application to conduct the review of the records.

It is said that the nature and extent of the documents concerned were such that they could constitute a burden on the Court. [ 60 ] Counsel for the respondent vigorously opposed this request for several reasons: firstly, it was said that all the issues have been fully presented to the Court; secondly, that it was for the Court to conduct a de novo review; thirdly, that appointing an amicus curiae would render the role of the Information Commissioner meaningless; and, lastly, that the authorities provided were to be distinguished as they arose in different legal contexts. [ 61 ] As the thorough history of this application has been dealt with, it is proper to address the question of the applicable standards of review in this application.

E . The Applicable Standards of Review [ 62 ] As indicated, the application was brought under

section 41 of the Act . Moreover, the exemption claimed by LAC in this instance is the

section 15 national security exemption.

Section 50 calls upon the Court to determine if the head of the institution had “reasonable grounds on which to refuse” disclosure, full or partial, of the records in question. [ 63 ] At face value, the plain reading of

section 50 indicates that the review proceeds on the assessment of the reasonableness of LAC’s refusal of disclosure. Indeed, “reasonable grounds” for withholding the information is the standard provided by

section 50.

Furthermore,

section 15 instructs that the head of the government institution may refuse disclosure if the disclosure could “reasonably beexpected to be injurious” to the subject matters identified in

section 15. On the basis of the plain reading of these sections, the Courtcould satisfy itself that the review of the refusal of disclosure should proceed on the assessment of a reasonableness standard. [64] Indeed, this Court has applied the reasonableness standard of review to the applications brought under

section 50 (see, inter alia,Steinhoff v. Canada (Minister of Communications) (1998), 10 Admin. L.R. (3d) 232 (F.C.T.D.); X v. Canada (Minister of NationalDefence) (1992), 58 F.T.R. 93 (F.C.T.D.) (per Strayer J.); Kitson, above). The pragmatic and functional analysis required to assess thestandard of review could be resolved on the basis of the statute and the case law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190, at paragraph 57 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 18). [65] However, what decision is the Court to review?

Should the Court proceed in a one-step analysis of the refusal to disclose underthe grounds provided under

section 15, or is there more under sections 15 and 50 that is required of the Court? [66] This Court has adopted different approaches to its powers of review provided by the Act under sections 49 and 50. Indeed,sections 49 and 50 remain distinct, and the assessment of the standards of review needs to adapt itself to the particular realities of theseprovisions of the Act. The determination of the standards of review under

section 49 cannot be imported in the analysis under

section 50.Likewise, the Court’s analysis cannot subsume one exemption to another, even if the Court’s power is derived from the same section,i.e.

section 49 or

section 50. The nature of the exemptions provided in the Act is such that the standard of review is not to be found insection 49 or 50, but rather, in the wording of the exemption itself, in this case,

section 15. [67]

Section 49 gives the Court power to order disclosure or to make any order deemed appropriate arising from the refusal ofdisclosure under sections of the Act that are not referred to in

section

Section 50 itself gives the Court power to intervene in mattersarising from

section 14 (federal-provincial affairs),

section 15 of the Act (national security and international affairs), paragraph 16(1)(c)(enforcement of laws and conduct of an investigation), paragraph 16(1)(d) (security of penal institutions) and paragraph 18(d) [as am. byS.C. 2006, c. 9, s. 146] (financial interests of government). What is common between the refusals reviewed under

section 50 is that thehead of the government institution refusing disclosure has the discretion to do so, and the exemptions are injury-based, not class-based. [68] This dichotomy between mandatory and discretionary exemptions as well as injury-based and class-based exemptions in the Actimplies that the Court’s review of refusals to disclose is highly contingent of the

section under which the exemption was claimed. Class-based exemptions are provided when the nature of the information is such that it can be determined on the standard of correctnesswhether the exemption claimed under the Act applies or not (Telezone, above; Canada (Information Commissioner) v. Canada (Ministerof Industry), 2001 FCA 253, 41 Admin. L.R. (3d) 19; Sherman v. Canada (Minister of National Revenue), 2002 FCT 586, 20 C.P.R.(4th) 508). It is feasible for the Court to assess whether a document falls within a class-based exemption or another. For example, eitherinformation was obtained in confidence from a foreign government or it was not (paragraph 13(1)(

a) of the Act). Either information ispersonal information under

section 19 of the Act or it is not. The determination of a class-based exemption is indeed one that lends itselfto a review on a correctness basis, as counsel for the applicant noted during the public hearing; these exemptions are of a “binary”nature. [69] However, the applicability of the injury-based exemption of

section 15 is to be determined on the standard of reasonableness.Firstly, this is what is instructed by

section 50 and

section 15 themselves (“reasonable grounds … to refuse to disclose”, “reasonably beexpected to be injurious”). Secondly, this Court has proceeded with the reasonableness standard when dealing with

section 15exemptions (Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), , 173 D.L.R. (4th) 515 (F.C.A.),at paragraph 7; Kitson v. Canada (Minister of National Defence), above; Steinhoff v. Canada (Minister of Communications), above; X v.Canada (Minister of National Defence), above (per Strayer J.); Canada (Information Commissioner) v. Canada (Prime Minister), (FC), [1993] 1 F.C. 427 (T.D.)). Thirdly, the Court notes the nature of the information falling under

section 15 is such that“a range of acceptable outcomes defensible in fact and in law” does exist in terms of what constitutes information injurious to the mattershighlighted in

section 15. Reasonable people can reasonably disagree as to what falls within

section 15, and the present application is theperfect example of this. [70] Thus, for an application under

section 50 contesting the application of the

section 15 exemption, the first step is to assesswhether the information could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada orany allied or associated state, or the detection, prevention or suppression of subversive or hostile activities, as defined by

section 15. Thestandard of proof in this respect is that of the reasonable expectation of probable harm, as indicated in Canada Packers Inc. v. Canada(Minister of Agriculture), (FCA), [1989] 1 F.C. 47 (C.A.). [71] The assessment of the applicable standards of review also calls for the assessment of the other component of

section 15: itsdiscretionary nature. The dichotomy between mandatory and discretionary exemptions needs to be emphasized by the Court in theassessment of the review to be undertaken. If an exemption is mandatory, the first step, i.e. the evaluation of whether information fallswithin an exemption, will be sufficient. In these cases, as there is no discretion, the head of the government institution has an obligationto refuse to disclose if the exemption applies.

Thus, there is only one decision to review: whether the application of the exemption iscorrect or reasonable, according to the exemption claimed. [72] When the Court is faced with a discretionary exemption, it must also review the exercise of the head of the institution’sdiscretion in refusing disclosure. This was expressly discussed by Justice Rothstein, as he then was, in the case of Canada (InformationCommissioner) v.

Canada (Prime Minister), above, when the following was noted at page 439: In the case of mandatory exemptions, the only decision to be made is whether the record comes within the description that the Actrequires be exempted from disclosure. In the case of discretionary exemptions such as that under

section 14, two decisions are necessary:first, does the record come within the description that is contemplated by the statutory exemption invoked in a particular case; andsecond, if it does, should the record nevertheless be disclosed. [Emphasis added.] [73] This two-step analysis for the refusal of disclosure under discretionary exemptions was confirmed by Justice Nadon, as he thenwas, in the case of Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), (FC), [1997] 2 F.C. 907

(T.D.), at paragraph 32, a judgment which was appealed on other grounds and confirmed by the Appeal Division of the Federal Court ofCanada, as it then was (Do-Ky (C.A.), above). Also, while this case dealt with paragraph 21(1)(a) [of the Act], the Federal Court ofAppeal confirmed in Telezone, above, at paragraph 47, that the exercise of discretion was also to be reviewed “on the grounds normallyavailable in administrative law for the review of administrative discretion, including unreasonableness.” The Federal Court of Appealalso adopted a two-step approach in Canada (Information Commissioner) v.

Canada (Minister of Industry), 2001 FCA 253 [citedabove]. More recently, although considering a provincial statute, the Supreme Court confirmed that not only is the qualification of therecords to be reviewed, but also the exercise of discretion when

an act confers it to the decision maker (Ontario (Public Safety andSecurity) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815). [74] It appears as though the two-step analysis for discretionary exemptions has not always been clearly and consistently applied bythis Court.

However, for the Act’s objects and purpose to be given full meaning and breadth, the two-step analysis, where the exercise ofdiscretion must also be reviewed on a reasonableness standard, must prevail. [75] Firstly, the Act clearly sets out that decisions on the disclosure of government information should be reviewed independently ofgovernment. It is the Office of the Information Commissioner that assumes part of this essential duty of independently reviewing refusalsof disclosure under its statutory mandate. However, this statutory power falls short of ordering disclosure of documents.

While theCommissioner has a crucial role to play in access to information requests, it is clear that the Commissioner’s powers can only go so far,and whose recommendations are within the realm of political sanctions. It is the Federal Court that has the power to order disclosure, andto make any other orders as deemed appropriate, as per sections 49 and 50 of the Act.

Thus, for the review to be truly independent ofgovernment, both the application of the exemption and the exercise of discretion, if applicable, are to be reviewed by the Court. [76] The two-step approach to the analysis and review of claimed exemptions under

section 15 of the Act, under reasonableness forboth issues, has recently been confirmed by the Federal Court of Appeal in Attaran v. Canada (Foreign Affairs), above. [77] These elements indicate that applications under the Act are more than a typical application for judicial review. This is supportedby the fact that applications for review are brought directly under the Act and that broad remedies are available to the Court, implyingthat this is not a question of standards of review per se.

The Court’s role in the process is also broader: in camera hearings are conductedand submissions from applicants can only argue in abstracto as to why refusals of disclosure are not justified (Ruby v. Canada (SolicitorGeneral), (FCA), [2000] 3 F.C. 589 (C.A.), at paragraph 36; Attaran v. Canada (Foreign Affairs), above, atparagraph 26). In another respect, depending on the exemption claimed, a decision maker’s discretion may be at play, calling for someor no deference from the Court. [78] In Canada (Information Commissioner) v.

Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 [citedabove], the Supreme Court interpreted the scope and purpose of the Act, although this was done in the context of

section 19, a class-based, mandatory exemption, pertaining to personal information. Justice Gonthier conducted a full pragmatic and functional analysis ofthe standard of review under

section 19 of the Act. In this respect, Justice Gonthier emphasized the principle of independent reviewprovided for by the Act, as well as the fact that applying exemptions of the Act imply legal analysis, something the RCMPCommissioner had no expertise in. This led the Supreme Court to conclude that there was a less deferential standard to be considered.More precisely, the following was noted in respect to the Act’s objectives [at paragraphs 17–18]: In my opinion, this purpose is advanced by adopting a less deferential standard of review.

Under the federal scheme, those responsiblefor answering access to information requests are agents of a government institution. This is unlike the situation under many provincialaccess to information statutes, where information requests are reviewed by an administrative tribunal independent from the executive(Macdonell v. Quebec (Commission d’accès à l’information), [2002] 3 S.C.R. 661, 2002 SCC 71).

A less deferential standard of reviewthus advances the stated objective that decisions on the disclosure of government information be reviewed independently of government.Further, those charged with responding to requests under the federal Access Act might be inclined to interpret the exceptions toinformation disclosure in a liberal manner so as to favour their institution (3430901 Canada Inc. v. Canada (Minister of Industry), [2002]1 F.C. 421, 2001 FCA 254, at para. 30).

As such, the exercise of broad powers of review would also advance the stated purpose ofproviding a right of access to information in records under the control of a government institution in accordance with the principle thatnecessary exceptions to the right of access should be limited and specific. Finally, the nature of the issue before the Court also militates in favour of providing broad powers of review.

The dispute requires theRCMP Commissioner to interpret s. 3(j), and in particular, the statement that personal information does not include “information about anindividual who is or was an officer or employee of a government institution that relates to the position or functions of the individual …”.Thus, the Commissioner is called upon to interpret the Access Act and the Privacy Act, taking into account the general principlesunderlying them. This is a question of law that does not turn on any finding of fact.

It is also a question of a highly generalized nature,owing to the fact that the Access Act and the Privacy Act determine the disclosure obligations for each of the many institutions governedby the Access Act. These factors further indicate that courts ought not to be restrained in reviewing the Commissioner’s decisions.[Emphasis added.] [79] This Court cannot import the totality of the Supreme Court’s learned reasoning in Canada (Information Commissioner) v.Canada (Commissioner of the Royal Canadian Mounted Police), above, as the exemption claimed was different.

Furthermore,correctness cannot be adopted as the standard of review, namely because it runs counter to the plain reading of

section 15 of the Act andbecause the decision maker retains some discretion in the decision to withhold information from disclosure. [80] However, some of the Supreme Court’s findings give proper context to the underlying dynamics of access to information law inCanada. Firstly, as the Federal Court of Appeal noted in Telezone, above, which was cited approvingly by Justice Gonthier, institutionsresponding to access to information requests may tend to apply exemptions liberally so as to limit disclosure and scrutiny of theirorganization. Also, it remains true that decisions on access to information require an

interpretation of the Act, which is inherently a legalquestion for which the reviewing Court is indeed the proper forum for such a determination. [81] It should also be noted that counsel for the respondent indicated, while discussing another topic during the cross-examination ofNicole Jalbert, that “a judicial review application is a de novo review by the Federal Court and a judge of the Federal Court sees the

records and makes their own determination on whether the claimed exemptions apply to the records” (transcript of the cross-examinationof Nicole Jalbert, March 2, 2010, at page 9). [82] Considering these elements, and for exemptions under the Act to be truly “limited and specific”, as required by law, as well asthe fact that the Act is to be interpreted in a “purposive and liberal manner (Statham v.

Canadian Broadcasting Corporation, 2010 FCA315 [cited above]), it is clear that the Court reviewing refusals of disclosure under discretionary exemptions is to review (1) whether thedocuments fall within the exemption claimed, and (2) whether discretion was exercised properly. However, the Act’s objectives andtheir

interpretation by the courts is such that this discretion is on the lower end of the spectrum, and that the Court is given amplejurisdiction and powers to review the exemptions claimed, as well as the exercise of discretion. This conclusion is necessary for the Actto be given its full meaning and breadth. As the Federal Court of Appeal noted in Telezone, above, at paragraph 36, “if the Court were toconfine its duty under

section 41 to review ministerial refusals of access requests by deferring to ministerial

interpretations andapplications of the Act, it would,

[…]