2016 FC 448, 2016 FC 448

[2016] 4 F.C.R. 281 T-911-14 T-912-14 2016 FC 448 The Information Commissioner of Canada and Daphné Cameron ( Applicants ) v. The Minister of Transport ( Respondent ) Indexed as: Canada (Information Commissioner) v. Canada (Transport) Federal Court, Noël J.—Ottawa, January 20, 21 and April 20, 2016. Access to Information — Judicial review of decision by Transport Canada’s Access to Information and Privacy (ATIP) Director (ATIP Director or decision maker) not to disclose number of persons or number of Canadian citizens on Specified Persons List (SPL) — ATIP Director invoking exemption found in Access to Information Act , s. 15(1) (

c) to justify refusal to disclose — In 2010, applicant Cameron, journalist, filing two ATIP requests with Transport Canada to obtain number of Canadian citizens, total number of individuals included on SPL for period from 2006-2010 inclusive under Transport Canada’s Passenger Protect Program (PPP) — In response, Transport Canada’s ATIP Director refusing to provide requested information — Applicant Cameron filing complaint with Office of Information Commissioner regarding decision — Commissioner beginning investigation, issuing recommendations but those recommendations rejected by ATIP Director — Whether decision maker reasonably qualifying information sought as falling under Act, s. 15(1) allowing him to invoke exemptions to general rule requiring disclosure of information — If decision maker making proper qualification, whether respondent’s representative exercising reasonable discretion in refusing to disclose information after Commissioner’s recommendations — PPP screening measure used to ensure safety of passengers travelling to/from Canada by plane — SPL unique screening measure essential to ensuring safety of passengers, crews, aircraft — PPP working well as designed, implemented; meeting flight safety objectives for which created — Decision maker explaining in reasonable manner reason for denying request — Explanation provided not speculation or hypothetical — Disclosing requested confidential information (RCI) would create reasonable risk of probable harm — As for reasonableness of decision maker’s exercise of discretion, when decision maker stating reasons for decision, never addressing or barely addressing arguments raised by applicants — Therefore, ATIP Director’s discretion not reasonably exercised — Some of decision maker’s arguments supported by little or no evidence or having almost no grounds — Application allowed in part.

This was an application for judicial review of the decision made by Transport Canada’s Access to Information and Privacy Director (ATIP Director or decision maker) not to disclose the number of persons or the number of Canadian citizens on the Specified Persons List (SPL). The ATIP Director invoked the exemption found in paragraph 15(1) (

c) of the Access to Information Act (Act) to justify his refusal to disclose. In 2010, Ms. Cameron, a journalist and one of the applicants, filed two ATIP requests with Transport Canada to obtain the number of Canadian citizens and the total number of individuals included on the SPL for the period from 2006-2010 inclusive under Transport Canada’s Passenger Protect Program (PPP). In response, Transport Canada’s ATIP Director refused to provide the requested information stating that making this information public could be injurious to the detection, prevention or suppression of subversive or hostile activities.

Further to this refusal, Ms. Cameron filed a complaint with the Office of the Information Commissioner regarding the decision. The Commissioner began an investigation and issued recommendations but these were rejected by the ATIP Director. In essence, the Commissioner was not convinced of any harm resulting from the disclosure of the information requested or that the decision maker had exercised his discretion in denying the request. Ms. Cameron and the Commissioner filed applications for judicial review with the Federal Court regarding this matter.

The applicants argued in particular that the refusal to disclose the requested information was made in a manner contrary to the principles of the Act and contrary to its quasi-constitutional status. The issues were whether the decision maker reasonably qualified the information as falling under subsection 15(1) of the Act allowing him to invoke the exemptions to the general rule requiring the information to be disclosed.

If he made the proper qualification, it then had to be determined whether the respondent’s representative exercised reasonable discretion in refusing to disclose the information after the Commissioner’s recommendations. Held , the application should be allowed in part. The PPP, in existence since 2007, is one of the screening measures used to ensure the safety of passengers travelling to or from Canada by plane. The SPL is a screening measure that, based on the evidence, is applied before passengers obtain their boarding passes and then again before they board the airplane.

It is a unique screening measure essential to ensuring the safety of passengers, crews and aircraft. The SPL is not comparable to other lists examined and has a specific purpose that is not reflected in other lists. It had to be concluded in this case that the PPP, as it was designed and implemented, works well and seems to meet the flight safety objectives for which it was created. The evidence submitted did not permit the conclusion that the list is badly designed or poorly managed or that it contains inconsistencies. The PPP’s purpose is to protect passengers and based on history it has achieved its goals.

The information qualification conducted by the decision maker was analyzed. Paragraph 15(1) (

c) of the Act aims specifically to protect information that would be useful to those wishing to engage in subversive or hostile activities such as activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states. In his letter denying the applicant’s request, the decision maker explained in a reasonable manner that publicizing the requested confidential information (RCI) would provide the keen observer with some very useful information. The explanation provided was not speculation or hypothetical: disclosing the RCI, namely

the total number of individuals and the number of Canadian citizens on the SPL, would allow the keen observer to obtain additional datathat he or she could use for his or her own ends. Therefore, disclosing the RCI would create a reasonable risk of probable harm; the howand why of the harm are evident. In the interest of Canadians, and in particular those who travel by air, it is not appropriate to create thisprobable risk. Thus, the ATIP Director correctly qualified the information as being protected by the exemption in paragraph 15(1)(

c) inthat it could be expected to be injurious to the detection, prevention or suppression of subversive or hostile activities. As to the reasonableness of the decision maker’s exercise of discretion, the applicants raised a number of points including the passage oftime and the historical nature of the requested information; the public interest in knowing the RCI; a statement made by a formerTransport Minister; and international relations.

The passage of time and the historical nature of the requested information were barelyaddressed in the decision drafted by the ATIP Director in June 2013 except to note that this type of information has always beenprotected by the respondent but no specific reason was given for this argument. This was hardly an intelligible explanation under suchcircumstances. The argument that this type of information has always been protected did not respond to the argument that time haspassed and that this type of information no longer holds the same importance it initially did.

The interest of the Canadian public inknowing the requested information also went nearly unmentioned in the decision maker’s letter and the response provided did not justifythe refusal to disclose the RCI and did not sufficiently take into account the public’s interest in knowing this information. As for thestatement (that there were between 500 and 2000 individuals meeting the criteria for inclusion in the SPL) made to the press by the thenTransport Minister when the PPP came into force, it could be problematic and the decision maker barely discussed it except to minimizeit.

The decision maker did not feel that it was appropriate to discuss the number of individuals on the list, which was unacceptable andconstituted a flagrant lack of transparency and reasonableness in the exercise of discretion given the circumstances. Regardinginternational relations, the respondent maintained that international relations between Canada and its key partners would be damaged ifthe RCI were disclosed. However, the explanation given by the respondent to support this point and demonstrate adequate exercise ofdiscretion seemed defective and inappropriate.

In conclusion, the ATIP Director’s discretion was not reasonably exercised. Some of the decision maker’s arguments were supported bylittle or no evidence or had almost no grounds. In addition, when the decision maker stated the reasons for his decision, he did notaddress the arguments raised by the applicants.

There were three reasons why the exercise of discretion was unreasonable: few groundsfor addressing the passage of time; a refusal to seriously address the Minister of Transport’s statement; and a total lack of evidence tosupport the argument that international relations with the United States and others would be negatively affected. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 15 “defence of Canada or any state allied or associated with Canada”, “subversiveor hostile activities”, 35(2)(b), 42, 49, 50. Canada Evidence Act, R.S.C., 1985, c. C-5, s. 38.

TREATIES AND OTHER INSTRUMENTS CITED United Nations Security Council Resolution 1267 (1999), adopted by the Security Council at its 4051st meeting on 15 October 1999,UN Doc S/RES/1267 (1999), online: <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1267(1999)>. CASES CITED APPLIED: Bronskill v. Canada (Canadian Heritage), 2011 FC 983, [2013] 2 F.C.R. 563; Canada (Information Commissioner) v. Canada (PrimeMinister), (FC), [1993] 1 F.C. 427, (1992), 12 Admin. L.R. (2d) 81 (T.D.). CONSIDERED: 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 F.C. 421; Merck Frosst Canada Ltd. v.

Canada(Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Attaran v. Canada (Foreign Affairs), 2011 FCA 182, 337 D.L.R. (4th) 552; Suresh v. Canada(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3. REFERRED TO: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306; Dagg v. Canada(Minister of Finance), (SCC), [1997] 2 S.C.R. 403, (1997), 148 D.L.R. (4th) 385; Canada Packers Inc. v. Canada(Minister of Agriculture), (FCA), [1989] 1 F.C. 47, (1988), 53 D.L.R. (4th) 246 (C.A.); Dunsmuir v.

New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada(Attorney General) v. Abraham, 2012 FCA 266, [2013] 1 C.T.C. 69; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3;Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193.

AUTHORS CITED Galloway, Gloria. “No-fly list grounds up to 2,000 people” The Globe and Mail (June 19, 2007), online:<http://www.theglobeandmail.com/news/national/no-fly-list-grounds-up-to-2000-people/article1087262/>. APPLICATION for judicial review of the decision made by Transport Canada’s Access to Information and Privacy Director not todisclose the number of persons or the number of Canadian citizens on the Specified Persons List as requested by Ms. Cameron, one ofthe applicants. Application allowed in part. APPEARANCES

Sylvain Lussier and Diane Therrien for applicant Information Commissioner of Canada. Christian Leblanc for applicant Daphné Cameron. Sara Gauthier and Marieke Bouchard for respondent. SOLICITORS OF RECORD Osler, Hoskin & Harcourt LLP , Montréal, and Office of the Information Commissioner , Gatineau, Quebec, for applicant Information Commissioner of Canada. Fasken Martineau DuMoulin LLP , Montréal, for applicant Daphné Cameron. Deputy Attorney General of Canada for respondent. The following is the English version of the reasons for judgment and judgment rendered by Noël J.: I.

SUMMARY [ 1 ] The co-applicants, Ms. Cameron and the Information Commissioner, are making an application for judicial review of the decision made by Transport Canada’s Access to Information and Privacy (ATIP) Director not to disclose the number of persons or the number of Canadian citizens on the Specified Persons List (SPL). The ATIP Director invokes the exemption found in paragraph 15(1) (

c) of the Access to Information Act , R.S.C., 1985, c. A-1 (the ATIA [or the Act]), in order to justify his refusal to disclose. The ATIP Director correctly qualified the information as being protected by the exemption in paragraph 15(1)(c); that is to say that it could be expected to be injurious to the detection, prevention or suppression of subversive or hostile activities. However, I find that, in the following step, the ATIP Director failed to exercise reasonable discretion.

For the following reasons, I would allow the applications for judicial review in part, and I return the applications, so that they may be examined by a new decision maker. II. FACTS A. General facts [ 2 ] On March 17, 2010, the applicant, Ms.

Cameron, a journalist for the newspaper La Presse , filed two ATIP requests with Transport Canada, to obtain the number of Canadian citizens as well as the total number of individuals included on the SPL for the period from 2006–2010 inclusive under Transport Canada’s Passenger Protect Program (the PPP). [ 3 ] On June 4, 2013, Transport Canada’s ATIP Director (the Director or Mr. O’Reilly) refused to provide the requested information. The Director invoked paragraph 15(1)(

c) of the ATIA and stated that making this information public could be injurious to the detection, prevention or suppression of subversive or hostile activities. [ 4 ] Following the Director’s refusal to disclose the information, Ms. Cameron requested assistance from the Information Commissioner (the Commissioner). The Commissioner is the second applicant in this case. Each applicant has filed a memorandum of fact and law. [ 5 ] The Government of Canada implemented the PPP following the events of September 11, 2001.

The PPP aims to identify those persons who represent a threat to flight safety and to take measures to counter this threat. The Minister of Public Safety has been handling decisions regarding which names to include on the SPL since February 2011. Prior to February 2011, the Minister of Transport handled these decisions.

The decision to include an individual’s name on the SPL is based on the recommendations of an advisory group comprising Transport Canada, the Canadian Security and Intelligence Service (CSIS) and the Royal Canadian Mounted Police (the RCMP). [ 6 ] When a person whose name appears on the SPL arrives at an airport to board a flight, he or she will be subject to additional screening. The Minister of Transport will be notified and will be asked to determine whether the individual poses an immediate threat.

If the individual poses an immediate threat to aviation security, the Minister of Transport may issue an emergency direction to mitigate the threat, particularly by denying the individual boarding. The identity of those individuals on the SPL is not disclosed. B. Factual perspective for processing access requests [ 7 ] The PPP was launched on June 18, 2007. That same day, the Minister of Transport at the time, the Honourable Lawrence Cannon, stated that there were between 500 and 2000 names on the SPL. [ 8 ] On March 17, 2010, Ms.

Cameron filed an ATIP request with Transport Canada, requesting disclosure of the number of persons and the number of Canadian citizens on the SPL. Following her request, on April 9, 2010, Transport Canada’s ATIP Director at the time, Mr. Réginald Laurent, consulted with the ATIP offices at CSIS and the RCMP in order to determine their positions regarding the information request. [ 9 ] CSIS responded and recommended that the information requested by Ms. Cameron should be exempt from disclosure under subsection 15(1) of the ATIA.

The RCMP, for its part, indicated in its response that it was not too worried about disclosing the information. The RCMP’s representative indicated that the RCMP would not apply subsection 15(1) of the ATIA in these circumstances, but that the RCMP would not object to Transport Canada invoking the exemption. [ 10 ] After this response, in order to gain clarification, Ms. Nathalie Morin, from Transport Canada’s ATIP office, attempted to contact the RCMP’s ATIP office on May 18, 2010. The next day (May 19, 2010), the RCMP’s ATIP office sent an email indicating that they

were not too worried about disclosing this information: … As such, we don’t see the need to withhold the information. Even the release of the global number of people does not concern us overmuch. Therefore, we would not apply section 15(1) of the Act to the documents you sent but we also don’t have any objections to you applying it. [ 11 ] On June 7, 2010, Mr. Laurent sent a letter to Ms. Cameron, indicating his refusal to disclose the requested information on the basis of paragraph 15(1)(

c) of the ATIA. On July 28, 2010, Ms. Cameron filed a complaint with the Office of the Information Commissioner regarding the decision made by Transport Canada’s ATIP Director not to disclose the requested information. [ 12 ] The Commissioner investigated and shared her observations with Mr. Laurent on September 8, 2011. The Commissioner informed Mr.

Laurent that she was not convinced risk of harm to the detection, prevention or suppression of subversive or hostile activities would result from the disclosure of this information, nor was she convinced that the decision maker had exercised his discretion in denying the request. [ 13 ] Following these observations, Mr. Laurent consulted Mr. Chris Free, an aviation safety specialist working for Transport Canada. Mr. Free contacted his counterpart in charge of the PPP at the RCMP to clarify the RCMP’s position. Mr. Free informed Mr.

Laurent that those members of the RCMP who were involved with the PPP felt that disclosing the requested information would jeopardize national security, contrary to the opinion of the RCMP’s ATIP office. [ 14 ] On November 17, 2011, Mr. Laurent presented his observations to the Commissioner, in compliance with paragraph 35(2)(

b) of the ATIA. These observations were supported by assessments from CSIS and from the Minister of Public Safety. Mr. Laurent also indicated that he felt the RCMP had contradicted itself. [ 15 ] Then, during a period of more than a year, the Commissioner investigated and requested additional representations from Transport Canada. On May 10, 2013, at the end of her investigation, the Commissioner issued her recommendations. [ 16 ] On June 4, 2013, Mr. Shaun O’Reilly, who had replaced Mr.

Réginald Laurent as Transport Canada’s ATIP Director, rejected the Commissioner’s recommendations and issued the refusal to disclose the requested information. [ 17 ] On March 4, 2014, Ms. Cameron received the Commissioner’s report on the conclusions of her investigation. Ms. Cameron then gave her consent for this application for judicial review of the respondent’s decision pursuant to

section 42 of the ATIA. On April 15, 2014, the Commissioner filed two applications for judicial review with the Federal Court. On August 12, 2014, the applications were joined by order of the judge responsible for managing the proceeding. The applicant Ms. Cameron then joined the application filed by the Commissioner. III. ARGUMENTS [ 18 ] The parties are not in agreement regarding the applicability of principles to the facts, nor regarding the weight that the Court should give to certain legal precepts.

In the next section, I divide the parties’ arguments into five main topics: public interest and ATIA objectives; applicable standards of review; appropriate burdens of proof; exercise of qualification; and exercise of discretion. A. Public interest and objectives of the Act [ 19 ] The applicants are asking the Court to rule that the refusal to disclose the requested information was made in a manner contrary to the principles of the ATIA and contrary to its quasi-constitutional status.

They submit that the ATIA has a clear objective, namely to increase access to government information by defending the public’s right to its disclosure. The necessary exemptions to this right are limited and specific; and decisions regarding disclosure of government information are subject to review, independent of government.

In particular, the Canadian public must have the right to obtain the required information on the PPP and the SPL in order to be able to assess the efficiency and effectiveness of these measures and to determine if they are worth the sums invested in them by taxpayers. [ 20 ] The respondent replies that the decision not to disclose the RCI [requested confidential information] by invoking paragraph 15(1) (

c) of the ATIA respects these principles. The Court must show a certain deference to the decision maker, given the executive’s institutional expertise with regard to national security. B. Applicable standard of review and scope of this standard [ 21 ] The applicants submit that the reasonableness standard must be tempered.

They maintain that the decision maker’s discretionary power, pursuant to the ATIA, in fact falls at the lower end of the spectrum, and that the Court has full jurisdiction and power to examine both the exemptions invoked and the exercise of discretionary power. [ 22 ] The respondent retorts that a matter that could be injurious to the prevention or suppression of subversive or hostile activities calls for a broad and flexible approach, since the decision maker must weigh the specific facts as well as the policy in general. [ 23 ] The applicants do not agree with the respondent’s argument that the Court should show deference when the decision maker makes a decision regarding the prevention or suppression of subversive or hostile activities, since the ATIA sets out specific and limited exemptions, which do not apply in this instance.

C. Burden of proof [ 24 ] The applicants argue that the ATIP Director did not discharge his heavy burden of proof. In fact, at the qualification stage, the Director did not demonstrate a reasonable risk of probable harm: he did not use a specific approach and did not demonstrate a clear and direct link between the evidence presented and the alleged harm. The applicants also maintain that the ATIP Director did not discharge his burden of proof when exercising his discretion, if he did exercise it at all. If the decision maker truly did exercise his discretion, he

did so in a manner contrary to the analytical framework of

section 15 , contrary to the objectives of the ATIA, and also contrary to the case law and the factors to be considered. [ 25 ] The respondent replies that direct evidence of danger is not required. Furthermore, the respondent maintains that the decision maker’s conclusion as to the existence of a risk of jeopardizing the prevention or suppression of subversive or hostile activities rests largely on the facts and the policy in a broad sense.

The respondent suggests that the evidence regarding past, present and anticipated events could justify a conclusion of the existence of a threat or injury to the prevention or suppression of subversive or hostile activities. Thus, given the matter of national security implicit in the criteria of paragraph 15(1)(

c) of the ATIA, the respondent argues that the Court must show restraint when assessing a decision regarding any risk of jeopardizing the prevention or suppression of subversive or hostile activities. The respondent feels that the Court should take a broad and flexible approach when dealing with decisions on matters of national security, as well as when some of Canada’s international obligations are at play. D. Existence of a threat [ 26 ] The applicants suggest that the arguments invoked by Mr. O’Reilly are speculative, hypothetical and unfounded.

The decision maker did not establish how disclosing the RCI [Requested Confidential Information] could diminish the effectiveness of the PPP, or how international relations would be damaged. The allegations of injury are general in nature and without any specific link to the requirements of

section 15 of the ATIA. Citing generic reasons vaguely related to national security does not constitute sufficient grounds to restrict the public’s right to access the RCI; the injury must be greater than a probability or a speculation. [ 27 ] The applicants state that Mr. Free is a public servant who has been obstinately opposed to disclosure since becoming involved. They are also of the opinion that Mr. O’Reilly has only recently assumed the position of ATIP Director, and that he has almost no experience in matters of national security.

The evidence indicates that the RCMP ATIP office had not been opposed to disclosing the information prior to Mr. Free’s intervention in the RCMP department that deals with the PPP and the SPL. The RCMP then changed its mind. [ 28 ] The respondent presents no evidence that Canada’s international relations with its key partners would be affected if the information about the RCI were disclosed. In fact, Mr. Free was unable to support his speculations after having agreed to produce a document to this effect. Mr.

O’Reilly, in cross-examination, was equally unable to underpin his hypotheses about how Canada’s international relations would suffer following disclosure of the RCI. [ 29 ] The applicants allege that the PPP and the SPL are redundant components of Canada’s security system, and that therefore, Canada would not suffer any injury if the RCI were disclosed. Moreover, the existence of many other complementary deterrent programs argues in favour of disclosure, since their existence further limits any injury that could result from disclosure of the RCI.

Furthermore, given that certain SPL criteria are common knowledge, in particular that it does not apply to minors, a terrorist organization could easily circumvent it. Disclosing the RCI, therefore, does not render the program any more vulnerable than it already is. [ 30 ] By contrast, the respondent maintains that the PPP and the SPL are measures that are part of a multi-layered security system that aims to ensure public safety.

The respondent criticizes the fact that the applicants are essentially alleging that the PPP is superfluous, useless or ineffective, and that it is no longer worth protecting information that could compromise the PPP’s effectiveness and, incidentally, flight safety in Canada. [ 31 ] The respondent argues that, these days, the approach of trying to ensure infrastructure security using “guns, guards and gates” is outdated, given the scope of the infrastructure at risk and the nature of the threat of modern terrorism.

This layered approach, by intermeshing overlapping measures, ensures that if one provision is foiled, then another will still able to prevent an attack. We must not weaken an important measure like the PPP simply because there are other measures that complement it. Furthermore, the respondent alleges that modern flight safety is interconnected with flight safety in Canada’s international partner countries. Thus, weakening one layer by disclosing the number of persons and the number of Canadians on the SPL would affect the confidence that other countries have in Canada.

Canada could even see its exemption from using the U.S. “no-fly list” revoked. [ 32 ] Lastly, the respondent makes the point that not disclosing the RCI has a deterrent effect on the planning and execution of terrorist attacks, since it leaves these groups with no concrete information with which to measure the risk. Thus, it was reasonable for Mr. O’Reilly to conclude that disclosing the RCI would create a reasonable risk of probable injury, thus allowing him to invoke the exemption in paragraph 15(1)(

c) of the ATIA. Allowing the disclosure of information, even information that is several years old, would allow individuals with malicious intentions to make several requests over time and to gain an idea of Canada’s defence capabilities. E. Exercise of discretion [ 33 ] The applicants argue that the decision maker indulged in an unthinking or knee-jerk exercise of discretion and qualification, backing up his decision using platitudes, generalizations and hypotheses that are not supported by the evidence. The applicants insist that the decision maker, Mr.

O’Reilly, who has not been in his position for very long, blindly deferred to the opinion of specialists and therefore did not truly use his own judgment. It is also possible that the decision not to disclose the information is some sort of attempt to save face, since the Minister of Transport at the time the PPP was implemented, the Honourable Lawrence Cannon, allegedly stated, according to a Globe and Mail

article [by Gloria Galloway. “No-fly list grounds up to 2,000 people” The Globe and Mail (June 19, 2007)], that there were between 500 and 2000 names on the SPL. This statement can also be seen as a “ de facto ” disclosure. [ 34 ] The respondent countered that it is not important how long the ATIP Director has held this particular position and that the evidence shows Mr. O’Reilly to be a competent individual. In addition, there is no evidence indicating that any embarrassment or bad faith is at the source of the refusal to disclose the RCI. On the contrary, the evidence shows that Mr.

O’Reilly’s only concern was the existence of an injury to national security. The respondent is of the opinion that a discretionary decision is unreasonable only if it is determined that the decision was not made in keeping with the Act, that it was made in bad faith, that it was unjustified, that it was made based on irrelevant factors or that it was made without consideration of relevant factors. In light of these criteria, Mr. O’Reilly’s exercise of discretion was reasonable.

Furthermore, given the circumstances, it was appropriate for the decision maker to consult specialists as well as the relevant services and departments. Regarding the minister’s statement, the respondent asserts that he cannot make inferences

as to the minister’s intention. [ 35 ] The applicants suggest that the historical nature of the information was not at all addressed in Mr. O’Reilly’s decision. Neither did Mr. O’Reilly comment on the Canadian public’s interest in judging the program’s efficiency and effectiveness in relation to its cost (approximately $13.8 million per year for the first five years of operation, and $2.9 million for the subsequent years). Consequently, the applicants argue that the injury alleged by the respondent is more likely of a political nature than it is related to factors governed by the exemption under paragraph 15(1)(

c) of the ATIA. Specifically, if the disclosure of the RCI reveals a small number, the PPP’s usefulness will be called into question; whereas if the number is high, it may be thought that the program is too lenient, or that Canada is overflowing with terrorists who threaten civil aviation. The applicants reiterate that it is unacceptable for the decision maker to assume that there is enough information in the public domain regarding the PPP for the public to be able to evaluate it. This consideration is arbitrary and is contradicted by the simple fact that Ms. Cameron made an ATIP request.

Furthermore, even the United States makes the data contained in its “no-fly list” available to the public. [ 36 ] The respondent retorts that Mr. O’Reilly, the decision maker, exercised reasonable discretion. The respondent maintains that Mr. O’Reilly studied all of the relevant factors, having specifically annotated the Commissioner’s recommendations, consulted specialists within the relevant departments and services, considered the importance of the information for the public and taken into account that the information requested dates from 2007–2010, as well as the objectives of the ATIA.

In the end, the similar programs and other lists that exist, specifically the RCMP’s list of high-risk travellers, are in no way comparable to the SPL, either in who they target or in their goals or inclusion criteria. IV.

ISSUES [ 37 ] Firstly, the Court must determine whether the decision maker reasonably qualified the information as falling under subsection 15(1) of the ATIA, allowing him to invoke the exemptions to the general rule requiring the information to be disclosed. [ 38 ] If the answer to the first question is yes, then the Court must also determine whether the minister’s representative exercised reasonable discretion in refusing to disclose the information, after the Commissioner’s recommendations. V. LEGAL CONTEXT [ 39 ] In this section, I will provide a brief

summary of the applicable law. Firstly, I will describe the general procedure for making an access to information request. Then, I will outline the relevant legislation. Lastly, I will state the law that applies specifically to judicial review when the decision maker invokes an exemption under the ATIA. A. Procedure for making an ATIP request pursuant to the ATIA [ 40 ] To provide some context for this application for judicial review, it is useful to understand the progression of an ATIP request. Bronskill v.

Canada (Canadian Heritage) , 2011 FC 983 , [2013] 2 F.C.R. 563 ( Bronskill ), is a good starting point to familiarize oneself with access to information rights. Paragraphs 4–15 and 62–85 of this case law are particularly relevant. The Supreme Court also synthesized the procedure clearly in paragraphs 18–20 of the decision in Canada (Information Commissioner) v. Canada (Minister of National Defence) , 2011 SCC 25 , [2011] 2 S.C.R. 306 ( Commissioner v. Defence ).

However, I will not go into as much detail today; here is the gist of it: [ 41 ] Firstly, a sufficiently detailed written request is sent to the organization that has the information. The person in charge at the federal institution is responsible for replying. The individual responsible must grant access to the documents within a reasonable time frame, regardless of who makes the request. If the organization refuses to disclose the information and the person files a complaint, the Information Commissioner must review the refusal.

There is no direct process to determine which requests are active and which documents have been requested. The Commissioner can make recommendations and require a report from the organization in question ( Bronskill , above, at paragraphs 6 and 7 ). [ 42 ] Secondly, if, following the Commissioner’s recommendations, the organization in question still refuses to disclose the information, the Commissioner informs the person of his or her right to judicial review of the organization’s decision before the Federal Court.

It should be noted that the right to judicial review refers to a judicial review of the organization’s decision—not a judicial review of the Information Commissioner’s decision to support (or not) the individual’s request. The Information Commissioner may, together with the individual, acting alone, or jointly, pursue the application for judicial review ( Bronskill , above, at paragraphs 7 and 8 ). [ 43 ] Lastly, the Federal Court must have access to all of the relevant documents. The Federal Court has the responsibility to protect and disclose the information if necessary. Contrary to the procedure pursuant to

section 38 of the Canada Evidence Act , R.S.C., 1985, c. C-5, the Federal Court does not explicitly have the power to publish summaries of the information concerned ( Bronskill , above, at paragraphs 11, 26 and 27 ). [ 44 ] In this case, the Federal Court reviews the last decision made by Transport Canada’s ATIP Director in its entirety, namely the exercise of qualification and discretion that followed the Commissioner’s recommendations. It is by evaluating the decision as a whole that the Court can then rule on its reasonableness.

The Court must, inherently, show a certain deference; however, the Court cannot accept a decision whose conclusions are unreasonable ( 3430901 Canada Inc. v. Canada (Minister of Industry) , 2001 FCA 254 , [2002] 1 F.C. 421 ( Telezone ), at paragraph 100 and Bronskill , at paragraph 9 ). In short, the Court reviews the reasonableness both of the decision regarding the qualification of the information, and of the exercise of discretion in allowing the disclosure of information under

section 15 of the ATIA, notwithstanding an exemption authorizing the decision maker not to disclose the RCI ( Bronskill , above, at paragraphs 62– 64, 69, 76 ). B. Relevant legislation [ 45 ] The legislation relevant to this case is included in the appendix of this decision.

C. Specific legal principles

(1) Scope of the public’s right to access to information [46] Access to government information is essential to ensure a healthy democratic system as indicated in Dagg v. Canada (Minister ofFinance), (SCC), [1997] 2 S.C.R. 403 (Dagg), at paragraph 61, and Bronskill, at paragraphs 4 and 5. In Merck FrosstCanada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 (Merck Frosst), the Supreme Court summarizes this three-pointprinciple at paragraph 21: The purpose of the Act is to provide a right of access to information in records under the control of a government institution.

The Act hasthree guiding principles: first, that government information should be available to the public; second, that necessary exemptions to theright of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewedindependently of government (s. 2(1)). [47] Each day, the government is called upon to make important decisions on behalf of the community. To do so, it bases its decisionson information vital to the decision-making process, prepared by the government apparatus.

The public has the right to know thisinformation, with the purpose of ensuring a dialogue surrounding the topics discussed. Without this information, there can be no healthydebate. The ATIA states this public right in

section 2. The Supreme Court has given the ATIA quasi-constitutional status, specifically inthe case of Commissioner v. Defence, above, at paragraph 40 (see also Bronskill, above, at paragraphs 4 and 5). [48] However, this right to access, which is meant to be broad, is restrained by certain exemptions found in the ATIA.

Theseexemptions must be specific and limited, the principle being that the general rule advocates for access except under clearly identified andjustified circumstances (Bronskill, above, at paragraphs 4 and 5). [49] In order to implement these principles, sections 49 and 50 of the ATIA acknowledge that the Court has a broad remedial powerfollowing any government authority’s refusal to disclose information (see also Bronskill, above, at paragraphs 27, 67, 77, 103, 105, 110,114). [50] Paragraph 67 of Bronskill briefly outlines the differences between sections 49 and 50 of the ATIA:

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

section

Section 50 itself gives the Court power to intervene in matters arising fromsection 14 (federal-provincial affairs),

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

section 50 is that the head of thegovernment institution refusing disclosure has the discretion to do so, and the exemptions are injury-based, not class-based. [51] In this case, as I will explain in more detail below, the Court’s remedial power is that which is conferred by

section 50, given thetype of exemption invoked.

(2) General procedure when invoking an exemption in the ATIA [52] The general rule of the ATIA is that the information must be disclosed. There are two types of exemptions that justify non-disclosure of the requested information: the first type of exemption is class-based. The second type of exemption is injury-based, and isrelated to the potential injury that could result from disclosure of the requested information. Paragraphs 13 and 15 of Bronskill clearlyoutline this procedure: The exemptions laid out in the Act are to be considered in two aspects by the reviewing Court.

Firstly, exemptions in the Act are eitherclass-based or injury-based. Class-based exemptions are typically involved when the nature of the documentation sought is sensitive inand of itself. For example, the

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

Section 15 is an injury-based exemption: the head of the government institutionmust assess whether the disclosure of information could “be expected to be injurious to the conduct of international affairs, the defenceof Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. … The second component of the exemptions under the Act is to determine whether the exemption is mandatory or discretionary. In the caseof mandatory exemptions, the provisions of the Act mandate that the decision maker “shall refuse to disclose” the records when they fallunder the exemption (see, inter alia,

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

Section 15 is a discretionary exemption, the aspects of which will be considered at length in the present reasons. [53] Before launching into descriptions of the applicable standards and burdens of proof at the various stages, it is worth clarifyingthat the qualification and the exercise of discretion are reviewed by the Court, taking into account all of the information as well as theroles played by the parties. The Court has before it all of the evidence used by the decision maker when making decisions, including theposition taken by the Commissioner, as well as the grounds that, according to the Commissioner, justify the disclosure of the RCI(Bronskill, above, at paragraph 11).

(3) Qualification [54] In this case, the decision maker qualifies the information as meeting the criteria for an exemption related to the potential injurythat could result from disclosure of the requested information. Transport Canada’s ATIP Director feels that disclosing the RCI would goagainst subsection 15(1) and paragraph 15(1)(

c) of the ATIA; that is to say, would hinder the detection, prevention or suppression ofsubversive or hostile activities. It is submitted that disclosing the RCI could facilitate the perpetration of acts of terrorism, including

hijacking, in or against Canada or foreign states—the very definition of subversive or hostile activities found in subsection 15(2) of theATIA. [55] Paragraph 69 of Bronskill provides a good

summary of why the reasonableness standard applies: … the applicability of the injury-based exemption of

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

section 50 and

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

section 15 exemptions (Do-Ky v.Canada (Minister of Foreign Affairs and International Trade), (FCA), 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 rangeof 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…. [56] In paragraphs 22–27 of the decision in Attaran v. Canada (Foreign Affairs), 2011 FCA 182, 337 D.L.R. (4th) 552 (Attaran), the[Federal] Court of Appeal explores the case law regarding the standard and the burden of proof in various circumstances. Inparagraph 24, the Federal Court of Appeal indicates “that the burden of proof would depend upon the circumstances before the Court.”(Attaran, above, at paragraph 24). [57] In this case, Ms. Cameron did not have access to the RCI or to the closed hearing in which the respondent and the Commissionerparticipated.

The facts in this case differ from those in the existing case law: contrary to Bronskill (at paragraphs 125 and 126), Attaran(at paragraphs 25–27), and Telezone (at paragraphs 93–96), the Information Commissioner supports Ms. Cameron’s application andparticipates in the proceedings as a co-applicant. Despite the fact that Ms.

Cameron had no access to the redacted evidence or to the RCI,the Commissioner did benefit from all of the evidence and the RCI, and participated in both the closed hearing and the public hearing.The burden of proof at the various stages of analysis is therefore defined according to these facts. [58] Under these circumstances (that is to say, when the Commissioner participates in the closed hearing and the public hearing), toinvoke the exemption found in paragraph 15(1)(

c) of the ATIA, the decision maker must show that it was reasonable to determine thatthe information in question reasonably be expected to cause probable injury to the prevention or suppression of subversive or hostileactivities. For this purpose, the relevant factors are: there exists a presumption in favour of disclosing government-held information; thedetails given in the exercise of qualification pursuant to

section 15 of the ATIA must be precise and detailed; the alleged injury must notbe abstract or speculative. See Canada Packers Inc. v. Canada (Minister of Agriculture), (FCA), [1989] 1 F.C. 47(C.A.) (Canada Packers) and Canada (Information Commissioner) v. Canada (Prime Minister), (FC), [1993] 1 F.C.427 (T.D.) (Canada v. Prime Minister). [59] The decision maker must do more than simply demonstrate that the injury could occur. Paragraph 196 of Merck Frosstelaborates on what this means in practice: It may be questioned what the word “probable” adds to the test.

At first reading, the “reasonable expectation of probable harm” test isperhaps somewhat opaque because it compounds levels of uncertainty. Something that is “probable” is more likely than not to occur. A“reasonable expectation” is something that is at least foreseen and perhaps likely to occur, but not necessarily probable. When the twoexpressions are used in combination — “a reasonable expectation of probable harm” — the resulting standard is perhaps not immediatelyapparent.

However, I conclude that this long-accepted formulation is intended to capture an important point: while the third party neednot show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the third party mustnonetheless do more than show that such harm is simply possible. Understood in that way, I see no reason to reformulate the way the testhas been expressed. [Underlining in the original version.] [60] The Court then discusses the causal link between disclosure and harm (at paragraph 197): ….

As for the causal link between disclosure and harm, the Court indicated that there need not be a causal relationship as in tort law, butthat there must be proof of a “clear and direct connection between the disclosure of specific information and the injury that is alleged”(Lavigne, at para. 58; see also Canada Packers, at pp. 58–59). [61] If the Court concludes at the first stage, that is to say, during the qualification analysis, that the exemption related to potentialharm due to disclosure is justified based on the evidence on record, then it is appropriate to continue on to the second stage for thepurposes of subsection 15(1) of the ATIA, namely the analysis of the exercise of discretion, since the decision maker can envisiondisclosing the information based on the facts at play.

(4) Exercise of discretion [62] As indicated in the preceding paragraphs, since the Commissioner has access to all of the relevant information and participated inall of the proceedings, the burden rests firstly with the Commissioner to establish that the decision maker’s exercise of discretion wasunreasonable. If the Commissioner succeeds in discharging her burden of proof, then the burden is reversed and the decision maker mustprove that he did in fact exercise his discretion in a reasonable manner.

Nevertheless, this standard must take into account the objectivesof the ATIA, and the decision maker must exercise his discretion, taking the following into account (Attaran, above, at paragraphs 19–27, 30, 36 and Bronskill, at paragraphs 194, 204). [63] By consulting the following cases, one can gain a clear understanding of the criteria related to the exercise of discretion whendealing with access to information or protection of personal information: Canada Packers, above, at paragraphs 46–48, 66; Attaran,above, at paragraph 14; Dunsmuir v.

New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 , at paragraph 47; Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 59; Canada (Attorney General) v. Abraham, 2012 FCA 266,[2013] 1 C.T.C. 69, at paragraphs 41–44; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, at paragraph 52; Ontario(Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 (Ontario Criminal Lawyers), at

paragraph 71; Dagg, above, at paragraphs 110 and 111; Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at paragraph 53; and Telezone, above, at paragraphs 112–116. [64] Thus, from this corpus, I take away the following essential points: when assessing the reasonableness of the decision maker’sexercise of discretion for the purposes of judicial review of a decision made under the aegis of the ATIA, the Court must consider thegrounds for justification invoked by the decision maker, as well as the transparency and the intelligibility of the decisional path withregard to the facts in evidence.

In addition, when the Commissioner is a party to the proceedings, the Court must consider her argumentsand suggestions and analyze how the decision maker discusses them and takes them into consideration.

In making his decision, thedecision maker must show that he understands the access requests, that he understands the arguments in favour of disclosure and that hehas carefully considered these arguments, all while taking into account the objectives of the ATIA. [65] Furthermore, the Court must take into consideration all of the interests at play, including the public interest in the informationheld by the federal government (Ontario Criminal Lawyers, above, at paragraphs 66, 211): … the [Minister] must go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosureshould be made. [66] That being said, I must reiterate that the decision maker cannot simply state that he has considered all of the relevant factors; hemust concretely demonstrate how he has considered them.

To this end, the [Federal] Court of Appeal explains this important distinctionvery well at paragraph 36 of Attaran: … just as the absence of express evidence about the exercise of discretion is not determinative, the existence of a statement in a recordthat a discretion was exercised will not necessarily be determinative. To find such a statement to be conclusive of the inquiry would be toelevate form over substance, and encourage the recital of boilerplate statements in the record of the decision-maker. In every caseinvolving the discretionary aspect of

section 15 of the Act, the reviewing court must examine the totality of the evidence to determinewhether it is satisfied, on a balance of probabilities, that the decision-maker understood that there was a discretion to disclose and thenexercised that discretion.

This may well require the reviewing court to infer from the content of the record that the decision-makerrecognized the discretion and then balanced the competing interests for and against disclosure, as discussed by the Court in Telezone, atparagraph 116. [67] Under such circumstances, the decision maker must show that he has considered not only non-disclosure, but also disclosure,having considered the arguments in favour of disclosure in a complete and transparent fashion. He must weigh these arguments againstthe objectives of the ATIA.

This requires a serious intellectual effort that allows the observer to conclude that the arguments in favour ofdisclosure were truly considered. VI. ANALYSIS A. Introduction [68] To address the issues in this case, it is important to properly situate the Passenger Protect Program (the PPP) and the resultingSpecified Persons List (the SPL) within the factual context of Canadian aviation safety. [69] Then, we will proceed in two stages. Firstly, we will analyze the decision maker’s qualification of the information with regard toany probable harm to the prevention or suppression of subversive or hostile activities.

Given our agreement with the qualification of theinformation as being related to paragraph 15(1)(

c) of the ATIA, we will then proceed with an analysis of the discretion exercised by thedecision maker in arriving at the conclusion that the requested confidential information (RCI) should not be disclosed. [70] To do this, I will consider the redacted information, the RCI, the submissions heard at the closed hearing, the parties’ publicrecords and their submissions presented at the public hearing.

I will consider both the decision made by Transport Canada’s ATIPDirector on June 4, 2013, and the body of evidence, that is to say, all of the evidence presented since the initial access request was madeon June 7, 2010. I also take into account the examinations on the affidavits and the evidence filed by the Commissioner. [71] There is no need for confidential reasons, since the redacted facts speak for themselves.

These grounds clearly explain thereasons for the present decision, while preserving the redacted evidence and the RCI. [72] Let us now proceed to the analysis of the PPP and the SPL—essential to properly understanding the access requests, the currentproceeding and its outcome. B. The PPP and the SPL [73] Let us recall that the PPP has existed since June 18, 2007. It was at this time that the first SPL was created and implemented.Based on the evidence, the SPL is constantly being revised and periodically modified.

Until February 2011, the Minister of Transportwas responsible for it, and since that time, the Minister of Public Safety has taken over. For the period in question (2007–2010), aTransport Canada advisory board composed of a senior representative from the Canadian Security and Intelligence Service (CSIS), theRoyal Canadian Mounted Police (RCMP) and departmental representatives, as well as representatives from other interested governmentdepartments and agencies, created the list using CSIS and RCMP information.

The group made recommendations to the Minister ofTransport regarding specified persons to be added to the list. [74] Specified persons, for the purposes of the SPL, are individuals identified by the advisory board as posing immediate threats toflight safety. The factors to be considered in identifying these persons are: any person who is or has been involved with a terrorist groupand who might reasonably be suspected of endangering the safety of an airplane, an airport, or the public, or the passengers or crew ofdomestic or international flights.

This list targets a specific class of individuals related to the disruption of flight safety for flights leavingCanada and arriving in Canada or elsewhere, and for flights arriving at Canadian airports.

[ 75 ] Individuals on the SPL will not be issued a boarding pass unless it is authorized by a person capable of granting this permission. Consequently, air carriers, secretly having access to this list, must also check their own passenger list, to see if any of them are on the SPL. An individual on the SPL cannot know that he or she is on the list unless he or she travels by air. Individuals on the SPL can contest their name’s entry on the list by following set procedures. [ 76 ] The PPP is one of the screening measures used to ensure the safety of passengers travelling to or from Canada by plane.

The PPP’s other precautionary measures include, but are not limited to: screening every passenger, associating passengers on board the airplane with checked luggage, etc. The SPL is a screening measure that, based on the evidence, is applied before passengers obtain their boarding passes and then again before they board the airplane. This twofold approach does not compare to the other screening tools used. It is an addition to these measures that cannot be replaced by the other means currently in force. C.

Other lists [ 77 ] There are other passenger lists that, according to the evidence presented, do not compare to the SPL. We have already explored the criteria that might cause an individual to be placed on the SPL and concluded that the SPL targets a very specific group. Some other lists use some of these criteria as well, but in every case, these other lists also apply other criteria not used by the SPL.

(1) The U.S. “no-fly list” [ 78 ] The U.S. “no-fly list” is a list containing information from a number of organizations, and it applies criteria that are much more general. According to the evidence, it includes more than 16 000 names and, of these, fewer than 500 are U.S. citizens (data from 2011). This U.S. “no-fly list” applies to all flights leaving Canada that will arrive at U.S. airports or that will pass over U.S. territory en route to a destination other than Canada. Flights departing from one Canadian airport to arrive at another Canadian airport after passing over U.S. territory received an exemption from U.S. authorities in March 2012.

(2) The UN List [ 79 ] Another list is that of the United Nations (the UN List), created by the Security Council with the adoption of Resolution 1267 in 1999 [at its 4051st meeting on 15 October 1999]. Resolution 1267 aimed to encourage UN members to adopt measures against terrorist groups and individuals. The UN List includes approximately 222 names of individuals associated with Al-Qaida or other terrorist groups and approximately 66 designated groups. Each UN member country is responsible for enforcing the list. Although it targets individuals involved with terrorist groups, the UN List does not use the same criteria as the SPL for including names.

(3) Air carrier lists [ 80 ] There are also other lists produced by air carriers, identifying persons that the carriers associate with flight safety based on their behaviour on board the plane or their background information. These lists, which belong to each carrier, cannot be shared with other carriers. These lists, as we see, are not related to the SPL.

(4) The RCMP list [ 81 ] There is one final list, produced by the RCMP, which contains approximately 90 names of persons allegedly planning to travel abroad to participate in combat for terrorist groups. The individuals on this list have a different objective than those included on the SPL. D. Conclusions regarding the SPL [ 82 ] Considering the evidence submitted, it is clear that the SPL is not comparable to the other lists mentioned above.

The SPL has a specific purpose that is not reflected in the other lists. [ 83 ] In a 2009 report, the Privacy Commissioner conducted a detailed study of the PPP, having access to all of the information, including the RCI and the names on the list. Evidently, her first concern was protecting the privacy of the persons involved. The Commissioner referred to the PPP as a secret program dealing with personal information obtained and used without the consent of the persons involved.

The report reveals that, at that time, the PPP was centralized at Transport Canada’s main office and approximately 20 people worked on it. In 2007, the cost of getting the program up and running was estimated at $13.8 million for the first five years and after that, at a little under $3 million annually. [ 84 ] Considering that which is mentioned above as well as the evidence filed by the parties, it must be concluded that the PPP, as it was designed and implemented, works well and seems to meet the flight safety objectives for which it was created.

The evidence submitted does not permit the undersigned to conclude that the list is badly designed or poorly managed or that it contains inconsistencies; in any case, that is not the purpose of this proceeding. The PPP’s purpose is to protect passengers, and history shows that since its entry into force in 2007, it has fully achieved its goals. [ 85 ] Before I launch into an analysis of the qualification, I would like to point out that the expression “national security” is not explicitly used in the ATIA.

Nevertheless, it is evident that the concept of national security is implicit in exemption of subsection 15(1) of the ATIA since the

definitions of “subversive or hostile activities” found in subsection 15(2) use the same vocabulary as that used in this field. The Supreme Court notably discussed at length the terminology related to national security in Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3, at paragraphs 80–99 . The links between national security and “subversive or hostile activities” are evident.

On the whole, I am of the opinion that it is perfectly acceptable to invoke the concepts and the case law from the field of national security if it is necessary and appropriate to do so in the circumstances at hand. E. The information qualification conducted by the decision maker [ 86 ] Would publishing the number of individuals and Canadian citizens on the SPL from 2007–2010 reasonably be expected to create probable harm to national security by facilitating the perpetration of acts of terrorism, specifically the hijacking of Canadian or foreign

aircraft? [87] This is the big question that we are asked to answer as a first step; we must therefore analyze the information qualificationconducted by the decision maker. The question that this Court must answer is: “Was the decision maker’s judgment reasonable when heconcluded that subsection 15(1) and paragraph 15(1)(

c) of the ATIA applied in this case?” Mr. Justice Rothstein—while he was with theFederal Court—stated, in the case of Canada (Information Commissioner) v. Canada (Prime Minister) [cited above], at page 479: …. Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and directlinkage between the disclosure of specific information and the harm alleged. The Court must be given an explanation of how or why theharm alleged would result from disclosure of specific information.

If it is self-evident as to how and why harm would result fromdisclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. Themore specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficultit would be for a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged. In addition, allegations of harm from disclosure must be considered in light of all relevant circumstances.

In particular, this includes theextent to which the same or similar information that is sought to be kept confidential is already in the public realm.

While the fact thatthe same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectationof harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality would, in suchcircumstances, be more difficult to satisfy. [88] In this same judgment, Rothstein J. also enumerates a series of very useful factors to consider when a Court must evaluate thequalification given by a decision maker (Canada (Information Commissioner) v.

Canada (Prime Minister) [cited above], at pages 444–446): The Canadian jurisprudence interpreting the Access to Information Act has established guidelines that can be useful in assessing whetheror not there is a reasonable expectation of probable harm from disclosure in a given situation and the procedures to be followed. Thefollowing are not exhaustive: 1. The exemptions to access require a reasonable expectation of probable harm: Canada Packers, supra, at page 60. 2. The considered opinion of the Information Commissioner should not be ignored: Rubin v.

Canada (Canada Mortgage and HousingCorp.), (FCA), [1989] 1 F.C. 265 (C.A.), at page 272. 3. Use of the information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probableharm: Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), at page 210. 4.

It is relevant to consider if the information sought to be kept confidential is available from sources otherwise available by the publicand whether it could be obtained by observation or independent study by a member of the public acting on his or her own: Air Atonabee,supra, at page 202. 5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure: Canada Packers,supra, at page 63; Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), (FC), [1989] 2 F.C. 480(T.D.), at page 488. 6.

Evidence of the period of time between the date of the confidential record and its disclosure is relevant: Ottawa Football Club, supra,at page 488. 7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short ofmeeting the burden of entitlement to an exemption from disclosure: Ottawa Football Club, supra, at page 488; Air Atonabee, supra, atpage 211. 8.

Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contentsof the release are bound to have considerable bearing on the reasonable consequences of its disclosure: Canada Packers, supra, at page64.

Section 25 of the Act provides for severance of material in a record that can be disclosed from that which is protected from disclosureunder an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless: MontanaBand of Indians v. Can. (Min. of Indian & Nor. Affairs), (FC), [1988] 5 W.W.R. 151 (F.C.T.D.), at page 166. 10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record: Ternettev.

Canada (Solicitor General), (FC), [1992] 2 F.C. 75 (T.D.), at pages 109-110; and Merck Frosst Canada Inc. v.Canada (Department of Health and Welfare Protection Branch) (1988), 20 C.P.R. (3d) 177 (F.C.T.D.), at page 179. [89] In light of this list of potentially useful factors, let us apply those factors that are relevant to the case at hand. [90] The respondent maintains that Mr. O’Reilly, the decision maker, correctly concluded that disclosing the RCI could be injuriousto the prevention or suppression of subversive or hostile activities, in compliance with paragraph 15(1)(

c) of the ATIA. [91] As seen earlier, in order to effectively render such a decision, the decision maker must show, in his or her reasons, that disclosingthe RCI would reasonably be expected to be injurious to the detection, prevention or suppression of subversive or hostile activities. Thepossible harm to be established must be one that is probable based on the facts and must not be hypothetical or speculative. Nonetheless,the fact remains that the harm does not necessarily have to result from the disclosure, since it would be impossible to obtain evidence ofthis.

[ 92 ] We have already described the PPP, its purpose and its details. The PPP is one of the screening measures used to ensure the safety of passengers travelling to or from Canada by plane.

In addition, the SPL is unique and is among the many screening measures essential to ensuring the safety of passengers, crews, and aircraft. [ 93 ] The SPL contains the names of individuals who have been, by their past, linked to terrorist groups; who could be suspected of endangering the safety of persons travelling by plane; who have allegedly been found guilty of crimes threatening flight safety; or who have allegedly committed crimes endangering the lives of individuals and who could threaten flight safety.

These criteria are specific and mainly target persons involved with terrorist groups and their potential links to air transport. This is a well-defined category. Mr.

O’Reilly, the decision maker, recognizes this fact in his June 2013 letter, when he writes: Upon implementation of these guidelines, specified persons have consistently been individuals, terrorists, and members of terrorists groups who have recorded or historical involvement in acts targeting aviation; have the capability to target aviation; and/or who have a stated intent to target aviation. [ 94 ] The applicants maintain that the alleged harm is less probable since the RCMP initially claimed to be indifferent to the Transport Canada decision maker’s invocation of paragraph 15(1)(

c) of the ATIA and then changed its mind after communicating with Mr. Free. I am not of the opinion that the RCMP’s change of opinion is relevant, since it is just one piece of information among so many others at the decision maker’s disposal. [ 95 ] It is also important to note that the SPL, as constituted, is not comparable to the other lists of travellers prohibited from travelling by plane. As I have already mentioned, the U.S. “no-fly list” and the UN List do not use the same selection criteria as the SPL.

Therefore, the SPL, as part of the PPP, serves a unique and specific purpose and cannot be replaced by the other lists that prohibit certain individuals from travelling by plane. [ 96 ] For the purposes of this analysis, and with the goal of clearly understanding the decision maker’s decision, I take into consideration the communications exchanged between the Office of the Information Commissioner and Transport Canada. It is evident that the decision maker’s main justification for refusing to disclose the RCI is the loss of the deterrent effect of the SPL.

According to the decision maker, this loss meets the requirement of the existence of harm necessary to qualify the information under the aegis of paragraph 15(1)(c). In both the November 17, 2011 letter and the June 2013 letter, Mr. O’Reilly, the decision maker, explains in detail that revealing the RCI would provide the keen observer with information that he or she could use for his or her own purposes. In the modern global context where the threat of violent plots is significant, information and its collection are very important.

It is well known that certain groups use information, analyze it and then plan their future actions, at least in part, on this basis. [ 97 ] I am well aware that Canada is a known target for civil aviation terror plots, as history shows: Air India (flight 182); the explosion at Narita International Airport in Japan; the 2006 terrorist plot involving two planes flying from London to Montréal and Toronto; the Underwear Bomber and the flight on Christmas Day 2009, which passed over Canadian airspace; and the 2013 interception of an individual in possession of explosives at Pierre Elliott Trudeau Airport.

In addition, the evidence establishes that Canada remains a target of interest for terrorist groups like Al-Qaida, among others. These groups develop new sophisticated methods for circumventing screening measures. [ 98 ] The SPL is one screening measure among many, which cannot be replaced by another. As already seen, the SPL plays a unique role among all of the screening measures. It is the only Canadian safety precaution that applies to flights coming to Canada from abroad.

For foreign airports that do not use the same pre-boarding screening measures as Canada, the SPL is the only obligatory Canadian measure used to screen travellers coming from abroad. [ 99 ] It was proposed that the fact that the United States disclosed the number of names on its list (along with the percentage of American citizens on it) should justify disclosing the Canadian RCI. I disagree. The PPP is a separate program from that of the United States and was not developed to address the same objectives. These two lists cannot be compared.

As for the UN List, it does not have the same objectives either: it addresses just one category of individuals associated with Al-Qaida or similar groups. It cannot be compared to the SPL either, since the SPL has its unique role among the many screening measures in place in Canada. The RCMP list does not target the same type of individuals. Indeed, the RCMP list targets individuals who might leave Canada to participate in terrorist combat abroad. These lists cannot be compared to the SPL either.

The same goes for the lists held by various air carriers, targeting individuals that the carriers do not want on board, each for individual specific reasons. [ 100 ] Paragraph 15(1)(

c) of the ATIA aims specifically to protect information that would be useful to those wishing to engage in subversive or hostile activities such as activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states. [ 101 ] In his June 2013 letter, on pages 2 and 3, the decision maker explains in a reasonable manner that publicizing the RCI would provide the keen observer with some very useful information: Without deterrence, terrorists would view targeting Canadians or Canadian Bound Aircrafts as soft targets, increasing the likelihood of attack. [ 102 ] Such a statement is not speculation or a hypothesis: disclosing the RCI, namely the total number of individuals and the number of Canadian citizens on the SPL, would allow the keen observer to obtain additional data that he or she could use for his or her own ends.

For this observer, in the current state of the matter, this is relevant and useful information. On this basis, I conclude that disclosing the RCI would create a reasonable risk of probable harm; the how and the why of the harm are evident. In the interest of Canadians and in particular those who travel by air, it is not appropriate to create this probable risk. [ 103 ] In arriving at this conclusion, I have also taken into account the Commissioner’s arguments regarding the exemption found in paragraph 15(1)(c). I cannot agree with them for the above-mentioned reasons.

However, I add that my conclusion with regard to the qualification was arrived at based on the specific facts in the case at hand. If the facts change in the future, these findings may also change.

[ 104 ] I would like to clarify that such a culmination of the qualification stage is not a determining factor with regard to the following stage, namely the analysis of the reasonableness of the decision maker’s exercise of discretion. Indeed, paragraph 211 of the Bronskill case states: “The conferral of discretion by the Act is the embodiment of a clear legislative intent that some information may well be disclosed despite an alleged injury.” F. The decision maker’s exercise of discretion [ 105 ] As a reminder,

section 15 of the ATIA grants the decision maker the right to disclose the RCI or not, according to his or her assessment. As explored earlier in the

section “Specific legal principles” (see paragraphs 63 and 64), after analyzing a corpus of case law, I indicated that the Court must consider the grounds for justification invoked by the decision maker, transparency, and the intelligibility of the decisional path with regard to the facts in evidence. In addition, when the Commissioner is a party to the proceedings, the Court must consider the Commissioner’s arguments and suggestions and analyze how the decision maker discusses them and takes them into consideration.

In making his or her decision, the decision maker must show that he or she is familiar with the access requests, that he or she understand the arguments in favour of disclosure and that he or she has carefully considered these arguments, all while taking into account the objectives of the ATIA. [ 106 ] It is also plausible for the judge to add factors if the matter requires it.

Although the factors put forth by Rothstein J. deal with qualification (see paragraph 88 above), they may also be useful in analyzing the reasonableness of the exercise of discretion. [ 107 ] With respect to the matter before the Court today, the principles that are relevant in analyzing the reasonableness of the exercise of discretion can be synthesized into three central questions: 1. Are the grounds supporting the exercise of discretion sufficient? 2. Do the grounds address the arguments raised by the Commissioner and applicant Cameron, specifically the public interest? 3.

Is the decision as a whole intelligible and justifiable according to its conclusions? [ 108 ] At the step of analyzing the reasonableness of the exercise of discretion, the Commissioner, being fully aware of the matter, bears the burden of establishing the unreasonableness of the decision maker’s decision. Being fully informed, the Commissioner can put forward all of the arguments she feels appropriate. The Commissioner and applicant Cameron raise the following points regarding the exercise of discretion: 1. The passage of time and the historical nature of the requested information; 2.

The public interest in knowing the RCI; 3. The decision maker’s reliance on other people’s opinions; 4. The June 2007 statement made by former Transport Minister, Lawrence Cannon; 5. International relations.

(1) The passage of time and the historical nature of the requested information [ 109 ] The passage of time and the historical nature of the requested information are relevant factors, both in assessing the harm and in the exercise of discretion, as indicated in Bronskill , at

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