KARL WILSON, – v. –, 2024 NBKB 27

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Karl Wilson v. Attorney General of New Brunswick 2024 NBKB 027 MM/205/2023 BETWEEN: KARL WILSON, – and – ATTORNEY GENERAL OF NEW BRUNSWICK DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: January 31, 2024 DATE OF DECISION: February 13, 2024 APPEARANCES: Karl Wilson, per se Jillian Trail, for the Attorney General

DYSART, J. INTRODUCTION [1] This matter came before the Court as a referral pursuant to s. 65 of the Right to Information and Protection of Privacy Act,S.N.B. 2009, c. R-10.6 (the “Act”.) [2] Mr. Wilson initially made a request to the Government of Canada, seeking: “Full and Complete information of the Crown Attorney file #2021-35501001; including specifics such as e-mails, faxes, photocopies, filenotes and audio recordings.” [3] That request was subsequently directed to the office of the Attorney General for New Brunswick. Ultimately, Mr.

Wilson’srequest for documents and information was denied by the Attorney General, leading to this referral. [4] Mr. Wilson’s request for documents is related to his struggle against the Attorney General with respect to an ancillary orderissued by this Court in 2007. By way of background, Mr. Wilson pleaded guilty to a charge of manslaughter in 2007 and was sentencedto a period of federal incarceration.

The sentencing judge also issued an order for the taking of bodily substances for forensic DNAanalysis, which is a mandatory ancillary order. [5] Through inadvertence, the collection of those bodily substances did not occur. Some fourteen years later, when the error wasdiscovered, the RCMP attempted to obtain those bodily substances from Mr. Wilson, who refused to provide them. After severalattempts to obtain Mr. Wilson’s cooperation, an Information was eventually laid, charging him with failing to comply with a court order. A Judge of the Provincial Court then issued a warrant for Mr. Wilson’s arrest.

He was arrested and detained. The following day, hevoluntarily provided the sample to the RCMP, and the charge was withdrawn by the Crown at the next court appearance. [6] Much of this background is set out in two decisions, one from this Court (Wilson v. Canada (Attorney General), 2022 NBQB 61) and one from the Court of Appeal of New Brunswick (Wilson v. Attorney General of Canada, 2022 NBCA 58 ). Mr.Wilson, after he gave his sample and after the charge was withdrawn by the Crown, filed an Application in which he sought variousremedies including: (

i) An Order that the warrant of arrest issued in July 2021 pursuant to the ss. 127(1)(

b) charge was of no force and effect; (ii) an Order that his confinement and the collection of DNA samples under force on July 13, 2021, was unlawful; (iii) an Order compelling an independent tribunal to investigate the RCMP’s conduct; (iv) an Order compelling the Attorney General of Canada to provide him with a certified copy of disclosure which he has not received;and (

v) an Order that the RCMP was in contempt of court and failed to comply with a court order authorizing the collection of DNAsamples from him. [7] In her decision on behalf of this Court, Justice Denise LeBlanc (then a Justice of this Court) dismissed Mr. Wilson’sApplication. For the present purposes, the key findings from that decision were that: 1) the Order requiring Mr. Wilson to provide asample of his bodily substances for DNA analysis had not expired; and 2) that his claim for disclosure with respect to the Informationcharging that he failed to comply with a court order was without merit.

Justice LeBlanc wrote: 25. I am as well unable to grant Mr. Wilson’s request for an Order for disclosure. If this request is grounded on the matter whichcame before the Provincial Court in July 2021, Mr. Wilson cannot seek disclosure on the basis that he requires disclosure to mount hisdefence on the charge as it has been withdrawn. […] [8] Mr. Wilson, who stated at the referral hearing in this matter that his intention is to pursue a legal action against the AttorneyGeneral and/or the RCMP, has requested a complete copy of the Crown’s file related to that withdrawn charge.

[9] In correspondence dated July 26, 2023, the Attorney General refused Mr. Wilson’s request. Firstly, the Attorney Generaladvised that some of the documents and information requested were likely in the file maintained by the Provincial Court, which wasoutside the scope of the Act and which Mr.

Wilson was entitled to review upon request to the Provincial Court. [10] Secondly, the Attorney General maintained that other documents and information requested were records which pertained to theperformance of the duties and legal functions of the Attorney General, and specifically the prosecution of offences within the Provinceof New Brunswick, and that such documents are specifically exempted from the application of the Act.

Further, the Attorney Generalstated that some of the materials would also be covered by a privilege set out in the Act pertaining to advice given to a public body, or bysolicitor-client privilege. [11] The Attorney General, in his response to Mr. Wilson, provided copies of the relevant excerpts from the Act and An ActRespecting the Role of the Attorney General. [12] Mr.

Wilson, being unsatisfied with the denial, now seeks a determination from this Court as to whether the Attorney General isrequired to produce the information and documents sought, or any part of them. [13] To be clear: this Court has already determined that Mr. Wilson is not entitled to disclosure of the police investigation and Crownfile materials as would be required for anyone facing a criminal charge, per the rule in Stinchcombe. As was held by Justice LeBlanc,once the charge was withdrawn against Mr. Wilson, that disclosure obligation ended.

What he now seeks, and the only remedy thatmight be available to him on this referral, must fall under the provisions of the Act. THE STANDARD OF REVIEW [14] At the hearing, counsel for the Attorney General argued that the correct standard of review for the refusal to produce theinformation and documents requested by Mr. Wilson is the reasonableness standard applicable to applications for judicial review, asdescribed by the Supreme Court of Canada in Canada (Attorney General of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

At the hearing, this Court expressed some doubt that the reasonableness standard would apply to a referral under the Act.Subsequent to the hearing, Counsel for the Attorney General sent the Court a copy of the very recent decision from the Supreme Court ofCanada in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 .

Here is adescription of the issues before the Supreme Court on that case, taken from the headnote: A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his Attorney Generals shortlyafter forming government in 2018. The letters set out the Premier’s views on policy priorities for the government’s term in office.Cabinet Office declined the journalist’s request.

It claimed the letters were exempt from disclosure under the Cabinet records exemptionin s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”), which protects, in its opening words, theconfidentiality of records that would reveal the “substance of deliberations” of Cabinet or its committees. The CBC appealed to theInformation and Privacy Commissioner of Ontario (“IPC or Commissioner”), who found that the letters were not exempt and orderedtheir disclosure.

On judicial review, the Divisional Court found that the IPC’s decision was reasonable and a majority of the Court ofAppeal agreed. [15] As can be seen, the “decision” which was the subject of the judicial review in that case was made by Ontario’s Information andPrivacy Commissioner. Hence, that case was properly framed as an application for judicial review, which would be subject to theVavilov standard of review – presumptively, reasonableness. [16] But this is not an application for judicial review of a decision.

Counsel for the Attorney General argues that it is – that it is areview of the Attorney General’s refusal to disclose the requested information. But the Attorney General, in the present context, is not adecision-making authority or body. Rather, he is a party who has refused to produce requested information and documents. [17] An individual who is not satisfied with a refusal to disclose information and documents by the head of a government body hastwo options – lodge a complaint with the Ombud (under s. 67 of the Act) or file a referral directly to this Court (pursuant to s. 65).

Theperson may not do both. [18] On a referral such as this, s. 66 of the Act sets out the Court’s role: 66(1) If a matter is referred to a judge of The Court of King’s Bench of New Brunswick under subsection 65(1), the judge shall hold a

hearing and, (

a) if the person who referred the matter is the applicant (

i) if the head of a public body refused a request for access to a record, in whole or in part, the judge may (

A) order the head of the public body to grant the request in whole or in part, or (

B) confirm the head of a public body’s decision to refuse a request for access to a record, in whole or in part, and (ii) if the head of a public body failed to reply to a request for access to a record, the judge may order the head of the public body to grant or to refuse the request in whole or in part, (

b) if the person who referred the matter is a third party who was given a notice under

section 36, the judge may order the head of the public body to grant access to the record in whole or in part or to refuse access to the record, or (

c) may make any other order that is, in the opinion of the judge, necessary. [ 19 ] The Act goes on to states that: 84(1) In any proceeding under this Act , the burden is on the head of the public body to prove that the applicant has no right of access to the record or part of the record. [ 20 ] In my view, this is clearly not an application for judicial review, as was the case before the Supreme Court in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) , supra.

I do not agree that the standard of review is reasonableness, which involves a healthy deference being owed to the decision-maker, such that the decision can only be overturned if it is unreasonable – a high standard. [ 21 ] Here, the legislation clearly calls on this Court to determine whether the head of the public body (here, the Attorney General) has properly refused Mr. Wilson’s request, and it is the Attorney General who bears the burden of proving that on the balance of probabilities.

The scheme adopted by the Legislature is totally inconsistent with the application of a reasonableness standard. [ 22 ] As a result, I reject the suggestion that this Court’s role is to review the Attorney General’s refusal to disclose the requested information on a reasonableness standard.

This Court will apply the law, which requires the Attorney General to prove on the balance of probabilities that the requested information and documents may be withheld, either because they fall within a category of documents which may not be disclosed, or within a category over which the Attorney General has a discretion to disclose or not disclose.

THE ATTORNEY GENERAL’S GROUNDS [ 23 ] Before examining the grounds upon which the Attorney General maintains he is not obligated to disclose these documents, let us first identify what those documents are. [ 24 ] In the affidavit evidence filed in opposition to this referral, the Attorney General has identified 12 documents which he maintains are protected from disclosure under the Act . They are: 1. Emails exchanged between Sgt. Tardif of the RCMP and Michel LeBlanc of the Moncton Crown office between January 5 and February 8, 2021. These emails relate to Mr. Wilson’s 2007 conviction and sentence.

2. Emails exchanged between Sgt. Tardif of the RCMP and Michel LeBlanc of the Moncton Crown office between April 15 and 16, 2021. These emails relate to Mr. Wilson’s 2007 conviction and sentence. 3. Emails exchanged between Sgt. Tardif of the RCMP and Michel LeBlanc of the Moncton Crown office between April 20 and 30, 2021. These emails relate to the DNA Order from 2007. 4. Email exchanged between Sgt. Tardif of the RCMP and Michel LeBlanc of the Moncton Crown office on May 3, 2021. This email relates to the DNA Order from 2007. 5.

Emails exchanged between Michel LeBlanc of the Moncton Crown office and Sebastien Michaud, Regional Director of Court Services between May 3 and 5, 2021. These emails relate to the DNA Order from 2007. 6. Crown Information Sheet dated May 21, 2021, relating to the charge under s. 127(1) of the Criminal Code . 7. Email between Sgt. Tardif of the RCMP, and Rémi Allard and Sylvie Godin-Blanchard of the Moncton Crown office, and David Swansberg, Greg Lupson and Eric Hanson, all of the RCMP, on July 13, 2021. This email relates to Mr. Wilson. 8.

Crown Further Disclosure Packet, dated July 13, 2021, related to the charges under s. 127(1) of the Criminal Code . 9. Email between Michel LeBlanc of the Moncton Crown office, Pierre Roussel who was Assistant Deputy Attorney General (Public Prosecutions), Diane Audet who was Deputy Attorney General (Legal Services Branch) and Denis Theriault who was Executive Director of Legal Services Branch, dated October 28, 2021. This email relates to Mr. Wilson’s Application for judicial review heard by Justice LeBlanc. 10. Email between Sgt.

Tardif of the RCMP, Victor Ryan who is a lawyer with the federal Department of Justice, and Michel LeBlanc of the Moncton Crown office, dated March 9, 2022. This email relates to Mr. Wilson’s application for judicial review. 11. Email between Moncton Crown office and Disclosure, Government of New Brunswick dated April 6, 2022. This email relates to a request by Mr. Wilson for disclosure of his file. 12.

Email between Faye Morehouse who is the Right to Information Coordinator with the Department of Justice and Public Safety and Sylvie Dober who is a lawyer with Legal Services Branch of the Office of the Attorney General, dated August 29, 2023. This email relates to Mr. Wilson’s request for disclosure. [ 25 ] The Attorney General claims that the documents are protected from disclosure under various provisions of the Act . Firstly, under s. 4(

b) which reads: 4. This Act does not apply to […] (

b) a record pertaining to legal affairs that relate to the performance of the duties and functions of the Office of the Attorney General, […] [ 26 ] Secondly, the Attorney General claims that the documents fall within s. 26(1) (

a) of the Act , which reads: 26(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal

(

a) advice, opinions, proposals or recommendations developed by or for the public body or a Attorney General of the Crown, […] [ 27 ] Finally, the Attorney General argues that the documents all fall within s. 27 of the Act , which reads: 27 Subject to paragraph 4(

b) and

section 22.1, the head of a public body may refuse to disclose to an applicant (

a) information that is subject to solicitor-client privilege, (

b) information prepared by or for an agent or lawyer of the Office of the Attorney General or the public body in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence, or (

c) information in a communication between an agent or lawyer of the Office of the Attorney General or the public body and any other person in relation to a matter involving the provision of legal advice or legal services or in relation to the investigation or prosecution of an offence. [ 28 ] Based on the descriptions provided for each of the documents, they would seem to fall into two broad categories: First, Documents 1 through 8 all relate to the RCMP’s efforts to collect a DNA sample from Mr.

Wilson in accordance with the 2007 Order and the decision to eventually charge him with an offence (refusing to comply with an order). Those documents would all seem to relate to the prosecution of an offence – i.e. the ancillary order for a DNA sample arising from the 2007 manslaughter conviction and the 2021 charge for failure to comply with a court order.

Except for items 6 and 8, which are documents prepared by the Crown as part of its function in prosecuting offences, the documents are all communications with and between Crown counsel with respect to the outstanding DNA order and the eventual charge against Mr. Wilson for failure to abide by the DNA order. [ 29 ] The second group of documents, Documents 9 through 12, all seem to relate to Mr. Wilson’s application for judicial review and his request for disclosure, which was addressed by Justice LeBlanc and later the Court of Appeal.

Those emails are either to or from a lawyer (either with the Prosecution office, Legal Services Branch, or another role under the umbrella of the office of the Attorney General) and they all relate to the litigation commenced by Mr. Wilson. [ 30 ] As noted above, s. 4 of the Act provides that the Act does not apply to any documents which relate to the performance of the duties and functions of the Office of the Attorney General.

The Attorney General states that, in order to appreciate the duties and functions of the Office of the Attorney General, one needs to consider An Act Respecting the Role of the Attorney General , RSNB 2011, c 116 , and specifically s. 2 which provides: 2 The Attorney General is the law officer of the Executive Council and shall do the following: (

a) see that the administration of public affairs is in accordance with the law; (

b) perform the duties and have the powers that at common law belong to the Attorney General, so far as those duties and powers are applicable to New Brunswick, and perform the duties and have the powers that, until the Constitution Act, 1867 came into effect, belonged to the Office of the Attorney General in the Province of New Brunswick and which are, under the provisions of that Act , within the scope of the powers of the Legislature; (

c) carry out the duties and exercise the powers that are attendant to the prosecution of offences by and in proceedings under statutes and regulations in which offences are created; (

d) advise the government on all matters of law connected with legislative enactments and on all matters of law referred to him or her by the government; (

e) advise the heads of government departments on all matters of law connected with those departments;

(

f) conduct and regulate all litigation for and against the Crown; (

g) advise government on all matters of a legislative nature and superintend and draft all government measures of a legislative nature; (

h) perform such other functions as are assigned to him or her by the Legislature or by the Lieutenant-Governor in Council. [emphasis added] [ 31 ] Counsel for the Attorney General argues that all 12 of the documents which he has refused to produce to Mr. Wilson fall somewhere within these categories, and are thus exempt from disclosure under the Act . Documents 1 to 8 [ 32 ] Each of Documents 1, 2, 3, 4, 5 and 7 from the list above involves communications between the RCMP and the Crown with respect to the 2007 DNA order and its enforceability, and the eventual decision to charge Mr. Wilson under s. 127(1) (

b) of the Criminal Code . Documents 6 (Crown Information Sheet) and 8 (Crown Further Disclosure Packet), both with respect to the charge under s. 127(1) of the Criminal Code , clearly relate to the prosecution of that charge. [ 33 ] So, would they fall within the meaning of “ legal affairs that relate to the performance of the duties and functions of the Office of the Attorney General ,” as required by S. 4(b)? This Court has held that a narrow, purposive definition of “legal affairs” must be adopted (see: Charleston v. New Brunswick (Attorney General) , 2013 NBQB 48 , per Clendening, J.; and Bray v.

Attorney General of New Brunswick et al. , 2016 NBQB 203 , per Justice Garnett). [ 34 ] In my view, those documents fall within the definition. They are clearly related to “legal affairs.” The subject matter was not political or broadly policy-related. The role of the Attorney General, through its Crown prosecutors, was related to one of the enumerated roles and responsibilities of the Attorney General, i.e. the prosecution of offences, per s. 2 (

c) of An Act Respecting the Role of the Attorney General , supra. Advising members of the RCMP as to the execution of a Court Order in the context of Mr. Wilson’s repeated refusal to give a DNA sample and his insistence that his lawyer advised him that the DNA order had expired, as well as the eventual decision to bring a charge against Mr. Wilson for his failure to comply with that DNA order is, in my view, within the parameters of s. 4(

b) of the Act . And, while some of those documents might have fallen into a category of documents that would have been part of the Stinchcombe disclosure (had the charge not been withdrawn), any such disclosure obligation ended with the withdrawal of the charge. As Justice LeBlanc has already held, Mr. Wilson is longer entitled to disclosure. [ 35 ] As a result, I am satisfied that the provisions of the Act do not apply to Documents 1 through 8. Hence, the Attorney General was justified in refusing to disclose them to Mr. Wilson.

Documents 9 to 12 [ 36 ] As for Documents 9 through 12, those are, again, communication with lawyers within the Prosecution office, Legal Services Branch, or another division or role under the umbrella of the office of the Attorney General. Further, the evidence satisfies me that they all relate to Mr. Wilson’s Application for judicial review, wherein he argued that the DNA Order had expired and that he was entitled to his disclosure. [ 37 ] Again, that clearly brings the issues within the “legal affairs” requirement of s. 4(

b) of the Act . Also, I am further satisfied that those documents also fall within s. 2 (

f) of An Act Respecting the Role of the Attorney General , i.e. they relate to litigation against the Crown, i.e. Mr. Wilson’s 2021 Application for judicial review. [ 38 ] As a result, I am satisfied on the balance of probabilities that the Attorney General has shown that Documents 9 through 12 also fall outside the scope of the Act , and thus need not be produced to Mr. Wilson.

OTHER GROUNDS RELIED UPON BY THE ATTORNEY GENERAL [ 39 ] Since the Court has already decided the Attorney General was justified in refusal Mr. Wilson’s request under the Act , there is no need to consider the additional grounds relied upon under ss. 27 (solicitor-client privilege) and 26 (advice to a public body). DISPOSITION [ 40 ] Mr. Wilson’s referral and his request for the disclosure of “Full and Complete information of the Crown Attorney file #2021- 35501001; including specifics such as e-mails, faxes, photocopies, file notes and audio recordings” is dismissed.

COSTS [ 41 ] The availability of costs on a referral is addressed in s. 76 of the Act , which reads: 76(1) If a matter is referred to a judge of The Court of King’s Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of King’s Bench of New Brunswick under

section 75, the judge shall award costs in favour of the person who referred or appealed the matter (

a) where the person is successful, and (

b) where the person is not successful, if the judge considers it to be in the public interest. 76(2) Despite subsection (1), a judge of The Court of King’s Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access. [ 42 ] Given that Mr. Wilson was not successful, the question is whether it would be in the public interest to awards costs against him, or whether Mr.

Wilson’s referral was “frivolous or vexatious or amounts to an abuse of the right to access.” [ 43 ] This Court is concerned that, during the hearing, Mr. Wilson acknowledged that his motivation in requesting the documents and in bringing the referral is his dogged belief that the DNA Order had expired and that the RCMP and the Crown prosecutors involved in his case had wrongfully arrested him in 2021.

He remains convinced of that position, even after this Court dismissed his Application for judicial review and even after the Court of Appeal dismissed his appeal as being moot (because the DNA sample was voluntarily given). [ 44 ] While Mr. Wilson’s unfaltering belief that the DNA Order had expired and his apparent refusal to accept Justice LeBlanc’s ruling are concerning, and while one could argue that his pursuit of this unsuccessful referral amounts to an abuse of process, I am unable to conclude that it is frivolous, vexatious or an abuse of process.

And, I have no desire to discourage those who seek transparency from their government. The right to information is a cornerstone of democracy. [ 45 ] Therefore, I make no order as to costs. DATED at Moncton, New Brunswick this 13 th day of February, 2024. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick