KAREN FRASER, JENNIFER SWEET, NICOLE SWEET, KIM SWEET, JOHN SWEET, J. ROBERT SWEET, CHARLES SWEET, PATRICIA CORCORAN, ANN PARKER v. TORONTO POLICE ASSOCIATION, 2021 FC 821

Date: 20210804 Dockets: T-101-18 T-102-18 T-103-18 T-1358-12 T-465-20 T-1884-19 Citation: 2021 FC 821 Ottawa, Ontario, August 4, 2021 PRESENT: Madam Justice McVeigh Dockets: T-101-18 T-102-18 T-103-18 T-1358-12 BETWEEN: KAREN FRASER, JENNIFER SWEET, NICOLE SWEET, KIM SWEET, JOHN SWEET, J.

ROBERT SWEET, CHARLES SWEET, PATRICIA CORCORAN, ANN PARKER AND TORONTO POLICE ASSOCIATION Applicants and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, ATTORNEY GENERAL OF CANADA, CORRECTIONAL SERVICE CANADA, PAROLE BOARD OF CANADA AND CRAIG MUNRO Respondents Docket: T-465-20 AND BETWEEN: DOUG FRENCH, DONNA FRENCH AND DEBORAH MAHAFFY Applicants and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, ATTORNEY GENERAL OF CANADA, PAROLE BOARD OF CANADA, AND PAUL BERNARDO Docket: T-1884-19 AND BETWEEN: CANADIAN BROADCASTING CORPORATION Applicant and PAROLE BOARD OF CANADA Respondent JUDGMENT AND REASONS Table of Contents I.

Introduction 4 II. Background 4 A. First Group 5 B. Second Group 8 C. Third Group 9 D.

Summary of the Three Groups 10 III. Preliminary Matters 11 IV. Issues 14

V. Standard of Review 16 A. The Families’ and CBC’s Submissions 16 B. Canada’s Submissions 17 C. Analysis 18 VI. The Law 19 VII. Analysis 24 A. Is there an s. 2(

b) Charter right to the information requested? 24

(1) Submissions of the Families 24

(2) Submissions of CBC 27

(3) Canada’s Submissions 31

(4) Analysis 33 B. Were the decisions of the Parole Board and CSC unreasonable? 43

(1) Insufficient reasons 43

(2) Pre-Determined Outcome 45

(3) Selection of Factors 45 (4) Section 8(2)(m)(

i) of the Privacy Act 47

(5) Weighing of Factors 49

(6) Inmates’ privacy interests 50

(7) Doré/Loyola 56 VIII. Conclusion 61 IX. Costs 62 I. Introduction [ 1 ] This is regarding judicial review applications of six decisions—four by the Parole Board of Canada [“Parole Board”] and two by the Correctional Service of Canada [“CSC”]—denying requests for the further disclosure of personal information about two incarcerated individuals, Craig Munroe and Paul Bernardo [together the “Inmates”].

Of these requests, five were made pursuant to the Access to Information Act , RSC 1985, c A-1 [“ ATIA ” ] and one by way of letter, requesting disclosure based on the Open Court Principle [“OCP”]. [ 2 ] I will dismiss these applications for the reasons that follow. II.

Background [ 3 ] In their submissions, Canada (the Respondents: Minister of Public Safety and Emergency Preparedness, Attorney General of Canada, Parole Board of Canada), indicates that the files on the Inmates include records relating to: admission and discharge records (i.e. personal effects, valuables); case management reports (i.e. police reports, offender applications); discipline and disassociation reports (i.e. disciplinary measures, segregation records); education and training (i.e. employment records); health care (i.e. medical and surgical, dental and psychiatric assessments); preventative security (i.e. incident reports, modus operandi); psychology (i.e. psychological assessments, treatment records); sentence administration (i.e. victim information, community contact information); and visits and correspondence (i.e. list of visitors, declarations of common law unions).

[See also paragraph 15 for what is sought to be disclosed] [ 4 ] This judicial review comprises of six decisions grouped into three proceedings. The six judicial reviews were heard together in one hearing, and the reasons are consolidated. The Respondent, Inmates did not file materials or participate in the hearing. A. First Group [ 5 ] The first group involves —Court files T-1358-12; T-101-18; T-102-18 and T-103-18 [the “1358 Applications”]—consists of four applications pursuant to s. 41 of the ATIA [Annex A].

These Applications are for the judicial review of Parole Board and CSC decisions denying the disclosure, either in whole or in part, of the personal CSC and Parole Board files on Mr. Munro and the disclosure of recordings of Mr. Munro’s parole hearings. [ 6 ] Mr. Munro was convicted of the brutal murder of Toronto Police Constable Michael Sweet in 1980, in a case that garnered considerable public and media attention due to Mr. Munro’s cruel and repugnant conduct. The 1358 Applications are made by relatives of the deceased Cst.

Sweet, i.e. the Fraser and Sweet families, and by the Toronto Police Association. [ 7 ] In file T-1358-12, the Applicants submitted a Notice of Constitutional Question in 2013. They amended the question in 2020, asking the Court to determine: the constitutional validity and/or applicability and effect of sections 3.1 , 4 (a), (b), (

c) and (e), 26(1) , 27(1) and (2) , 100.1 , 101 (

a) and (b), 102 , 132 , 140(4) , 140(5) , 140(13) , 140(14) , 140.2(1) , (2) and (3) , 142(1) (b), 143(1) and 144(4) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (" CCRA "); sections 2 (1 ), 4(1 ), (2.1), 19(1), (2)(

b) and (

c) and 20(6) of the Access to Information Act , R.S.C., 1985, c. A-1 ; sections 7 , 8(1) , 8(2) (a), 8(2) (m)(i), 12 and 26 of the Privacy Act , R.S.C., 1985, c. P-21 [ 8 ] Neither the original or amended constitutional question was filed with the Court. Rule 73.1 of the Federal Courts Rules, SOR/98- 106 , requires that a Notice of Constitutional Question must be filed with the Registry, with proof of service, after service to all the parties. This was not brought to the attention of the Court by the parties and was only recently discovered neither question had been filed with the Court.

Given Canada did not object and the non-filing could have been because of COVID related issues with the Registry or the parties, I will answer the question regardless of the procedural misstep on the part of the Applicants in the 1358 Applications. [ 9 ] The four files comprising the 1358 Applications are as follows. [ 10 ] File T-1358-12 is an application for the judicial review of the decision of the Parole Board dated June 20, 2011 [“PBC-1”], and the decision of the CSC date-stamped May 6, 2011 [“CSC-1”].

The former was affirmed by the Office of the Information Commissioner [“OIC”] on June 4, 2012, and the latter was affirmed by the OIC on June 4, 2012. The decisions denied the request for full disclosure and production of Mr. Munro’s complete Parole Board and CSC files, and particularly what was before the Parole Board for his parole hearings held on March 30, 2011, March 16, 2010, and February 26, 2009.

In PBC-1 and CSC-1, the request was declined pursuant to s. 19(1) of the ATIA . [ 11 ] File T-102-18 is an application for the judicial review of the decision of the Parole Board dated June 27, 2018 [“PBC-2”] and affirmed by the OIC on September 25, 2018. The decision denied disclosure and production of Craig Munro’s complete Parole Board file regarding his parole hearings, and the audio/video recordings and transcripts of those parole hearings. Note that this decision was a redetermination pursuant to the Order of Prothonotary Aalto dated May 17, 2018.

In PBC-2, the request was declined pursuant to s. 19(1) and 19(2) (

c) of the ATIA . [ 12 ] File T-103-18 is an application for judicial review of the decision of CSC dated July 3, 2018 [“CSC-2”], affirmed by the OIC on October 3, 2018. CSC-2 was a redetermination, pursuant to an Order of Prothonotary Aalto dated May 17, 2018, of the decision of the CSC dated May 17, 2017 declining disclosure pursuant to s. 19(1) of the ATIA . File T-101-18 consists of the judicial review of CSC’s May 17, 2017 decision. CSC-2 declined to disclose records pertaining to the cancellation of Mr.

Munro’s unescorted temporary absences [“UTA”] and his transfer to the Matsqui Institution, and documents included from Exhibits “I” and “J” of the affidavit of Ginette Pilon, sworn on March 21, 2014 and filed in file T-1358-18. In CSC-2, the request was declined pursuant to s. 8(2) (m)(

i) of the Privacy Act , RSC, 1985, c P-21 [ Privacy Act ] [See also para 16 re: intervener]. B. Second Group [ 13 ] The second group consists of file T-465-20 [the “465 Application”] is an application pursuant to s. 41 of the ATIA for the judicial review of the decision of the Parole Board dated March 8, 2019 [“PBC-3”] and affirmed by the OIC, denying the release of Mr. Bernardo’s prison and parole hearing records. Mr. Bernardo was convicted of a series of offenses, most notably the horrific first-degree murders of Ms. Leslie Mahaffy and Ms. Kristen French, in the early 1990s.

This case garnered considerable public and media attention due to Mr. Bernardo’s cruel and abhorrent conduct. The Applicants seek the release of all materials and information that were before and/or available to the Parole Board as well as complete copies of the audio/video recordings and transcript of the parole hearing held on October 17, 2018. [ 14 ] The Applicants in the 1358 Applications and 465 Application made joint written and oral submissions.

I refer to the Applicants in the first two applications collectively as the " “Families” " because they largely consist of family members of the victims of the Inmates [See also para 17 re: intervener]. [ 15 ] The records the Families’ seek (in their own words) are: Their entire CSC files commencing from the first day they entered the Canada correctional system regarding any offence, including trial and sentencing transcripts;

Their entire PBC files commencing from the first time that they came under its jurisdiction regarding any offence including trial and sentencing transcripts; In the case of Craig Munro, details of his 1979 Mandatory Supervision release and the conditions he was on at the time he murdered Police Constable Michael Sweet; More specifically, after Munro’s first ATIP request, all ATIP requests included the disclosure of the entire CSC/PBC files that were directly or indirectly before the PBC for each hearing or which they had access to, as well as the materials that were before and/or used by CSC and the Case Management Team (“CMT”) for the purpose of presenting their position at each parole hearing; In the case of Craig Munro, documentation regarding his institutional offences which resulted in his January 2016 transfer from the minimum security Kwikwexwelhp Institution to the medium security Matsqui Institution; In the case of Craig Munro, documents explaining the breaches and offences leading to the cancellation of his UTAs [unescorted temporary absence] in 2012 and consequently, the cancellation of his 2012 parole hearing, including full details of his positive cocaine tests, his involvement with the sex trade workers and how he went about to hide this activity from his CMT contrary to the conditions of his UTAs; In the case of Craig Munro, the circumstances and facts leading to his February 2016 withdrawal of his application for UTAs; Production of the audio recording and transcript (if they exist) of all of Munro, Bernardo, and Gayle’s parole hearings; In the case of Paul Bernardo, the ATIP request included all documents relating to his application to be relieved from the full consequences of his dangerous offender designation, including all medical records/reports addressing findings supporting the dangerous offender designation and all evidence tendered at his dangerous offender hearing, i.e., Victim Impact Statements of the Scarborough rape victims, transcript of the hearing and reports filed (T-1358 Applicant’s Memorandum of Fact and Law [“AMFL”] at para 8 C.

Third Group [ 16 ] The third group consists of file T-1884-19 [the “CBC Application”]. T-1884-19 is an application for judicial review by the Canadian Broadcasting Corporation [“CBC”] of a decision of the Parole Board denying CBC’s request for withheld personal information about the Inmates similar to the Families requests.

CBC did not request the information pursuant to any specific legislation, however, but rather on the basis of the OCP. [ 17 ] In addition CBC was granted leave to intervene in the judicial review of the Families, and made written and oral submissions before me as regards the applicable standard of review and the legal framework for resolving the 1358 Applications. CBC took no position on the specific outcome of the applications in the proceedings of the Families. D.

Summary of the Three Groups [ 18 ] The submissions of the parties overlap substantially, and some arguments are only advanced on some of the applications. When possible, I will address similar arguments together. [ 19 ] I will refer to the Respondents from all proceedings as " “Canada” " and all of the convicted Respondents as " “Inmates” " . As well as previously set above references will be made to the Families and CBC. The various requested records will be referred to as the " “Withheld Information” " . [ 20 ] As noted at the beginning, these reasons are in regards to all of the Applications. III.

Preliminary Matters [ 21 ] Canada raises a set of preliminary issues in respect of the scope of the Families’ submissions. Canada submits that the Families: improperly made submissions and filed evidence regarding matters not before the Parole Board /CSC when it made the decisions under judicial review; sought the review of decisions made pursuant to CCRA provisions that fall beyond the scope of s. 41 of the ATIA and that are therefore outside of the scope of this judicial review; erroneously introduced evidence and made arguments regarding a decision declining an ATIP request for information regarding Mr.

Clinton Gayle that is not on judicial review before this Court; and improperly sought the disclosure of information in CSC’s possession regarding Mr. Bernardo, given that the judicial review in PBC-3 only covers Parole Board records. [ 22 ] During oral submissions, the Families argued that all evidence submitted was relevant to contextualize the judicial review, and that the Court may decide on the weight given to this evidence. The evidence at issue included a refusal of disclosure by the Parole Board of

information from an inmate who is not a party to these proceedings (Mr. Gayle). I would note that the Parole Board’s decision with respect to Mr. Gayle is not yet properly available for judicial review because the opinion of the OIC has not yet been released. The Families also reference the closed nature of Mr. Munroe’s April 3, 2020 parole hearing due to COVID-19.

There was no decision on an ATIP request before the Court in relation to this issue. [ 23 ] This Court may only consider the evidence before it in the record, and may not accept evidence, or give weight to any evidence which was not before the decision-maker and goes to the merits of the matter, with three exceptions ( Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 at para 20 ).

The exceptions are: general evidence of a background nature; evidence of a breach of procedural fairness; and evidence that demonstrates a lack of evidence before the decision-maker ( Henry v Canada (Attorney General) , 2021 FC 31 at para 15 ). None of these exceptions are present in this case, and so only the information which was before the decision-maker will be considered in this judicial review. [ 24 ] Likewise there is no basis on which the evidence or the submissions relating to Mr. Gayle may be considered as part of this judicial review. While I acknowledge that the families of the victims of Mr.

Gayle [the " “Baylis/Leone” " parties] have agreed to be bound by the outcome of this decision, no s. 41 ATIA application for judicial review has been made regarding their ATIP request for the disclosure of information regarding Mr. Gayle. Any evidence and submissions relating to Mr. Gayle are therefore immaterial to the resolution of the judicial reviews before me. For those same reasons, I cannot bind the Baylis/Leone parties to any outcome resulting from these judicial reviews. [ 25 ] I agree with Canada that s. 20(6) of the ATIA has no application to these proceedings.

That provision applies only if a disclosure refusal was made under s. 20(1) of the ATIA because the sought-after records contained confidential commercial information supplied by a third party. That is manifestly not the case here. [ 26 ] Finally on the point of admissible arguments and evidence, Canada argues that the submissions and evidence regarding the April 3, 2020 parole review hearing of Mr. Munro should be disregarded as they are not part of this judicial review.

I agree. [ 27 ] Canada further submits that several of the arguments on the constitutional invalidity of the ATIP decision-making framework raised by the Families do not reflect the position they took before the administrative decision-makers, and therefore are improperly raised on judicial review. [ 28 ] While the Families did not dispute the constitutional validity of the presumption against disclosure in their ATIP request, they raise a host of constitutional questions in their Notice of Application [see para 7] for Judicial Review and their Notice of Constitutional Question.

Generally speaking, a party may not raise a new issue in a judicial review that they could have raised before the decision- maker ( Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at para 23 ; Forest Ethics Advocacy Association v Canada (National Energy Board) , 2014 FCA 245 at para 37 ). [ 29 ] However, in this case, the new issues arose because of the decision rendered. I therefore disagree with Canada that the Families cannot advance their arguments on constitutional invalidity on account of having not espoused those arguments in their ATIP request.

The Families cannot be expected to bind themselves to their arguments about errors in the statutory delegates’ decisions prior to having seen those decisions. Given that there is no dispute that the Notice of Constitutional Question was properly served and that it adequately reflects the Families’ constitutional arguments raised in their submissions, I am of the view that these questions are properly before me. [ 30 ] As a closing observation, it is useful to restate that this decision is not a judicial review of the parole review decisions concerning the Inmates or their heinous crimes.

The issues for determination by this Court are whether the Parole Board and CSC erred in law when they declined to disclose the requested personal information about the Inmates and the audio recordings of their Parole Board hearings while still allowing victims, their families and observers to attend the hearings and victim’s families to have access to audio of hearings they did not attend. IV.

Issues [ 31 ] The Families identify five points at issue related to the denial of the Withheld Information: When an offender seeks to be released from prison on parole and reintegrated back into the community on the basis of the assertion that he/she no longer poses a risk to public safety, are they seeking a “public” remedy or a “private” remedy? Having chosen to seek parole at a “public” hearing, are offenders like Craig Munro, Paul Bernardo and Clinton Gayle entitled to assert a “privacy” interest over documents that (

a) they intend to rely upon at their hearing for the purpose of persuading their respective CSC CMT and/or the PBC, that they no longer pose a risk to public safety, and, therefore entitled to be released back into the community on parole and (

b) are referred to and identified at the hearing and in the decision of PBC? In the event that this Honourable Court determines that offenders can assert a “privacy” right over their institutional files and records, upon which they rely, including documents discussed publicly at their parole hearing and relied upon and referred to in the decision of PBC (which are of public record), as well as assert a privacy interest over the audio recordings and transcripts of their parole hearings, did CSC/PBC (as the case may be) err in concluding under s. 8(2) (m)(

i) of the Privacy Act , that the privacy interests of these types of offenders (that is offenders serving life sentences as distinct from offenders with fixed sentences), outweighed the public interest and the interests of their victims? Does the CCRA , the ATIA and the Privacy Act collectively and/or individually (or as interpreted by PBC/CSC and affirmed by the OIC), create an unconstitutional reverse onus by impermissibly creating a presumption in favour of non-disclosure? To the extent that the impugned legislative regime (the CCRA , the ATIA and the Privacy Act ), prevent disclosure and

production of the materials and information sought by the applicants in their respective ATIP requests, do they violate the open Court principles and free speech rights of the applicants and the general public embedded in s. 2(

b) of the Charter ? (Families AMFL at para 56) [ 32 ] CBC characterizes the issues as: A. Does the constitutional openness principle apply to Parole Board hearings, or should the Recordings have been disclosed under s. 2(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [ Charter ]?

B) Did the Decision reflect a proportionate balancing of the Charter protections at play?

C) Does the Privacy Act bar disclosure? [ 33 ] Addressing all relevant questions from the submissions of the Applicants, I have characterized the issues as follows: A . Is there an s. 2(

b) Charter right to the information requested? B . Were the decisions of the Parole Board and CSC unreasonable? V. Standard of Review A. The Families’ and CBC’s Submissions [ 34 ] The Families submit, both in their written submissions and at the hearing, that the applicable standard of review [“SOR”] is correctness, but provide no jurisprudential support for their claim. During the hearing, counsel for the Families stated that he was adopting CBC’s submissions with respect to the SOR. Nevertheless, the Families asserted that the constitutional issue, the issue of statutory

interpretation, and the balancing of public and private interest pursuant to Privacy Act s. 8(2) (m)(i) [Annex B] are reviewable on a standard of correctness. The Families’ position is that only the Parole Board/CSC’s discretionary decision is reviewable on a standard of reasonableness. [ 35 ] Notwithstanding the Families’ adoption of CBC’s arguments on the SOR, it is useful to recall that the latter made submissions that specifically address the particularities of the 1884 Application.

CBC’s argument on SOR is tailored to its application, and does not transpose well to the decision on review in the Families’ applications. [ 36 ] Specifically, the difficulty arises because the Parole Board/CSC decisions in the Families’ applications do not engage on the topic of the OCP. Unlike CBC application, which considered and then waived the matter, the Parole Board/CSC did not turn their attention to the matter in the Families’ applications. [ 37 ] During the hearing, CBC did not distinguish the applicable SOR as between the 1358 Applications and the 1884 Application.

It likewise did not suggest that a different standard of review applies to CSC and Parole Board decisions. [ 38 ] CBC argues that the questions at issue attract different SOR. As regards the first issue before me, CBC submits that the first question is reviewable on a standard of correctness.

That is, whether the OCP and the DM/Sierra test, (see: paragraphs 54 & 56) apply to the disclosure of government records arising from a parole hearing pursuant to the ATIA is a constitutional question of the type identified in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ], that attracts a correctness standard.

In support of its argument, CBC relies on a recent decision of the Ontario Court of Appeal that held that a decision declining to apply the DM/Sierra test in restricting access to an administrative hearing was reviewable on a correctness standard ( Canadian Broadcasting Corporation v Ferrier , 2019 ONCA 1025 at paras 33-37 [ Ferrier ]). [ 39 ] On the second issue, CBC submits that the Parole Board/CSC’s decision to not disclose the Withheld Information is reviewable on a reasonableness standard as formulated in Doré v Barreau du Québec , 2012 SCC 12 [ Doré ]. B.

Canada’s Submissions [ 40 ] Canada’s submission on the SOR do not exactly track the issues as I have formulated them. Nevertheless, it can be said, regarding the first issue, that Canada’s position seems to be that the " “issues decided by the Board do not fall into any of the limited exceptions " " in " " Vavilov " " ” " . They also submit that a determination on whether the OCP applies in a particular administrative hearing is a matter of

interpretation by an administrative body of its own statute and mandate, which calls for a reasonableness review under Vavilov . [ 41 ] On the second issue, Canada submits that judicial reviews pursuant to s. 41 of the ATIA proceed in two stages: Husky Oil Operations Limited v Canada-Newfoundland and Labrador Offshore Petroleum Board , 2018 FCA 10 at paragraphs 15 & 17 [ Husky ]. First, correctness governs the decision on whether the Withheld Information falls within the statutory exemption to disclosure at s. 19(1) of the ATIA .

Then, reasonableness governs the discretionary decision to refuse to release exempted information under s. 19(2). To the extent that Charter protections are engaged, the reasonableness review at articulated out in Doré is applicable on the second step of the Husky analysis. Notwithstanding that Husky was decided prior to Vavilov , Canada submitted that it remains good law regarding the applicable SOR for judicial reviews pursuant to s. 41 of the ATIA . C. Analysis

[ 42 ] The standard of review applicable to the first question is correctness. I agree with the Ontario Court of Appeal in Ferrier at paragraph 35 that an assessment of whether the OCP applies to Parole Board hearings is reviewable on a correctness SOR. The applicability of Charter rights, here the OCP under s. 2(

b) of the Charter [Annex C], to Parole Board hearings is specifically the type of question that requires that a standard of correctness be applied. This is not a situation like the one envisioned under the Doré analysis where, a Charter right is infringed upon by an administrative decision.

Rather, the question here is a threshold question regarding the applicability of a Charter right — whether Parole Board hearings are subject to the OCP and therefore are decisions on disclosure subject to the test recently reformulated in Sherman Estate v Donovan , 2021 SCC 25 [ Sherman Estate ]—which requires consistency and a " “final and determinate answer” " ( Vavilov , at para 53 ).

The correctness standard is therefore applicable. [ 43 ] Regarding the second question, I agree with Canada that the two-part analysis from Husky , (see above at para 41 ), sets out the applicable SOR for applications for disclosure under s. 41 of the ATIA . I agree with Canada that Vavilov has not altered the application of Husky. A correctness SOR applies to determining whether the Withheld Information falls within the statutory exemption at s. 19(1) of the ATIA .

Conversely, a reasonableness SOR applies to the discretionary decision not to disclose information under s. 19(2) of the ATIA subject to a Doré framework. VI. The Law [ 44 ] The CCRA provides for the disclosure of information to victims. S. 140 through 140.2 of the CCRA [Annex D] set out the law for review hearings, including the information to which the families of victims have access and the circumstances under which the families and other observers can apply to attend review hearings: " 140

(4) Subject to subsections (5) and (5.1), the Board or a person designated, by name or by position, by the Chairperson of the Board shall, subject to such conditions as the Board or person considers appropriate and after taking into account the offender’s views, permit a person who applies in writing therefor to attend as an observer at a hearing relating to an offender, unless the Board or person is satisfied that " " 140

(4) Sous réserve des paragraphes (5) et (5.1), la Commission, ou la personne que le président désigne nommément ou par indication de son poste, doit, aux conditions qu’elle estime indiquées et après avoir pris en compte les observations du délinquant, autoriser la personne qui en fait la demande écrite à être présente, à

titre d’observateur, lors d’une audience, sauf si elle est convaincue que, selon le cas : " " (

a) the hearing is likely to be disrupted or the ability of the Board to consider the matter before it is likely to be adversely affected by the presence of that person or of that person in conjunction with other persons who have applied to attend the hearing; " "

a) la présence de cette personne, seule ou en compagnie d’autres personnes qui ont demandé d’assister à la même audience, nuira au déroulement de l’audience ou l’empêchera de bien évaluer la question dont elle est saisie; " " (

b) the person’s presence is likely to adversely affect those who have provided information to the Board, including victims, members of a victim’s family or members of the offender’s family; " "

b) sa présence incommodera ceux qui ont fourni des renseignements à la Commission, notamment la victime, la famille de la victime ou celle du délinquant; " " (

c) the person’s presence is likely to adversely affect an appropriate balance between that person’s or the public’s interest in knowing and the public’s interest in the effective reintegration of the offender into society; or " "

c) sa présence compromettra vraisemblablement l’équilibre souhaitable entre l’intérêt de l’observateur ou du public à la communication de l’information et l’intérêt du public à la réinsertion sociale du délinquant; " " (

d) the security and good order of the institution in which the hearing is to be held is likely to be adversely affected by the person’s presence. " "

d) sa présence nuira à la sécurité ou au maintien de l’ordre de l’établissement où l’audience doit se tenir. " "

(5.1) In determining whether to permit a victim or a member of the victim’s family to attend as an observer at a hearing, the Board or its designate shall make every effort to fully understand the need of the victim and of the members of his or her family to attend the hearing and witness its proceedings. The Board or its designate shall permit a victim or a member of his or her family to attend as an observer unless satisfied that the presence of the victim or family member would result in a situation described in paragraph (4)(a), (b), (

c) or (d). " "

(5.1) Lorsqu’elle détermine si une victime ou un membre de sa famille peut être présent, à

titre d’observateur, lors d’une audience, la Commission ou la personne qu’elle désigne s’efforce de comprendre le besoin de la victime ou des membres de sa famille d’être présents lors de l’audience et d’en observer le déroulement. La Commission ou la personne qu’elle désigne autorise cette présence sauf si elle est convaincue que celle-ci entraînerait une situation visée aux alinéas (4)a), b),

c) ou d). "

"

(5.2) If the Board or its designate decides under subsection (5.1) to not permit a victim or a member of his or her family to attend a hearing, the Board shall provide for the victim or family member to observe the hearing by any means that the Board considers appropriate. " " [emphasis added] " " " " (5.1), de ne pas autoriser la présence d’une victime ou d’un membre de sa famille lors de l’audience, elle prend les dispositions nécessaires pour que la victime ou le membre de sa famille puisse observer le déroulement de l’audience par tout moyen que la Commission juge approprié.

" " [soulignement ajouté] " [ 45 ] In addition to permitting attendance by victims, victims’ families, and observers at a Parole Board hearing, victims and their families may participate by presenting statements: " 140

(10) If they are attending a hearing as an observer, " " 140

(10) Lors de l’audience à laquelle elles assistent à

titre d’observateur : " " (

a) a victim may present a statement describing the harm, property damage or loss suffered by them as the result of the commission of the offence and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender; and " "

a) d’une part, la victime peut présenter une déclaration à l’égard des dommages ou des pertes qu’elle a subis par suite de la perpétration de l’infraction et des répercussions que celle-ci a encore sur elle, notamment les préoccupations qu’elle a quant à sa sécurité, et à l’égard de l’éventuelle libération du délinquant; " " (

b) a person referred to in subsection 142(3) may present a statement describing the harm, property damage or loss suffered by them as the result of any act of the offender in respect of which a complaint was made to the police or Crown attorney or an information laid under the Criminal Code , and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender. " "

b) d’autre part, la personne visée au paragraphe 142(3) peut présenter une déclaration à l’égard des dommages ou des pertes qu’elle a subis par suite de la conduite du délinquant — laquelle a donné lieu au dépôt d’une plainte auprès de la police ou du procureur de la Couronne ou a fait l’objet d’une dénonciation conformément au Code criminel — et des répercussions que cette conduite a encore sur elle, notamment les préoccupations qu’elle a quant à sa sécurité, et à l’égard de l’éventuelle libération du délinquant. " "

(10.1) The Board shall, in deciding whether an offender should be released and what conditions might be applicable to the release, take into consideration any statement that has been presented in accordance with paragraph (10)(

a) or (b). " "

(10.1) Lorsqu’elle détermine si le délinquant devrait bénéficier d’une libération et, le cas échéant, fixe les conditions de celle- ci, la Commission prend en considération la déclaration présentée en conformité avec les alinéas 10a) ou b). " "

(11) If a victim or a person referred to in subsection 142(3) is not attending a hearing, their statement may be presented at the hearing in the form of a written statement, which may be accompanied by an audio or video recording, or in any other form prescribed by the regulations. " "

(11) La déclaration de la victime ou de la personne visée au paragraphe 142(3), même si celle-ci n’assiste pas à l’audience, peut y être présentée sous la forme d’une déclaration écrite pouvant être accompagnée d’un enregistrement audio ou vidéo, ou sous toute autre forme prévue par règlement. " "

(12) A victim or a person referred to in subsection 142(3) shall, before the hearing, deliver to the Board a transcript of the statement that they plan to present under subsection (10) or (11). " "

(12) La victime et la personne visée au paragraphe 142(3) doivent, préalablement à l’audience, envoyer à la Commission la transcription de la déclaration qu’elles entendent présenter au

titre des paragraphes (10) ou (11). " [ 46 ] S. 140(14) indicates that because the information and documents were discussed at the hearing that does not mean it was publicly available within the meaning of the ATIA and Privacy Act : " 140

(14) If an observer has been present during a hearing or a victim or a person has exercised their right under subsection (13), any information or documents discussed or referred to during the hearing shall not for that reason alone be considered to be publicly available for purposes of the Access to Information Act or the Privacy Act . " "

(14) Si un observateur est présent lors d’une audience ou si la victime ou la personne visée au paragraphe 142(3) a exercé ses droits au

titre du paragraphe (13), les renseignements et documents qui y sont étudiés ou communiqués ne sont pas réputés être des documents accessibles au public aux fins de la

Loi sur la protection des renseignements personnels et de la

Loi sur l’accès à l’information . " [ 47 ] A victim or family member can request to listen to the audio recording, subject to conditions imposed by the Board and privacy interests:

"140

(13) Subject to any conditions specifiedby the Board, a victim, or a person referred toin subsection 142(3), is entitled, on request,after a hearing in respect of a review referredto in paragraph (1)(

a) or (b), to listen to anaudio recording of the hearing, other thanportions of the hearing that the Boardconsiders " "

(13) La victime ou la personne visée auparagraphe 142(3) a le droit, sur demande etsous réserve des conditions imposées par laCommission, une fois l’audience relative àl’examen visé aux alinéas

(1) a) ou b)terminée, d’écouter l’enregistrement sonorede celle-ci, à l’exception de toute

partie del’enregistrement qui, de l’avis de laCommission : ""(

a) could reasonably be expected tojeopardize the safety of any person or reveal asource of information obtained in confidence;or " "

a) risquerait vraisemblablement de mettre endanger la sécurité d’une personne ou depermettre de remonter à une source derenseignements obtenus de façonconfidentielle; ""(

b) should not be heard by the victim or aperson referred to in subsection 142(3)because the privacy interests of any personclearly outweighs the interest of the victim orperson referred to in that subsection. " "

b) ne devrait pas être entendue par la victimeou la personne visée au paragraphe 142(3)parce que l’intérêt de la victime ou de lapersonne ne justifierait nettement pas uneéventuelle violation de la vie privée d’unepersonne. " [48] Pursuant to s. 144 of the CCRA, a person who demonstrates an interest in a case is entitled to receive a copy of the Parole Boarddecision. [49] There is a provision that if a transcript of the hearing is made, then on request a copy can be provided to the victim or their familyproviding for ATIA and Privacy Act exceptions (CCRA s. 140.2(1)).

However, there is no requirement to make a transcript. Outside ofthese situations, there is no provision for observers or others to obtain a transcript. [50] S.19 and 20 of the ATIA provide that the head of a government institution shall refuse to disclose any record which contains personalinformation, with some exceptions, including when it is in accordance with s. 8 of the Privacy Act, also reproduced below. S. 8(2)(m)(i)allows disclosure when "“the public interest in disclosure clearly outweighs any invasion of privacy that could result form thedisclosure…”" VII. Analysis A. Is there an s. 2(

b) Charter right to the information requested? [51] For the reasons below, I find that the Applicants did not have an s. 2(

b) Charter right to the Withheld Information because hearingsof the Parole Board are not judicial or quasi-judicial in character. Stemming from that determination, all of the Applicants’ constitutionalchallenges fail.

(1) Submissions of the Families [52] The Families apply for judicial review of the CSC/Parole Board decisions denying the disclosure of the parts of their ATIP requeststhat were not disclosed pursuant to s. 41 of the ATIA. They seek the disclosure of the Withheld Information and a declaration that thelegislative regime governing ATIP requests as employed by the CSC/Parole Board is unconstitutional.

The Families’ position is that theParole Board erred in failing to apply the DM/Sierra test in its decision not to disclose the Withheld Information. [53] The submissions regarding the CCRA, the ATIA, and the Privacy Act consist of summaries of the provisions or critiques of thestatutory framework.

The Families emphasize these statutes’ statements of purpose and principles, notably as they relate to serving thepublic interest, transparency, accountability and openness. [54] The arguments are that any restriction on disclosure and the OCP must be justified on the basis of the test set out in Dagenais vCBC, (SCC), [1994] 3 SCR 835, R v Mentuck, 2001 SCC 76 and Sierra Club of Canada v Canada (Minister ofFinance), 2002 SCC 41. [55] Their position is that the legislative framework governing ATIP applications creates a presumption against the disclosure of personalinformation which violates the OCP that exists under s. 2(

b) of the Charter (Toronto Star v AG Ontario, 2018 ONSC 2586 at para 65[Toronto Star 2018]).

They submit administrative tribunals are subject to the OCP, and cite Southam Inc v Canada (Minister ofEmployment and Immigration), (FC), [1987] 3 FC 329 at para 9, 13 FTR 138 [Southam MCI]. [56] To better understand the Applicants’ argument, a brief description of the test is that the test provides that a presumption of opennessis overridden only where a restriction is necessary to prevent a serious risk to the public interest and where the salutary effects outweighthe deleterious effects of the restriction [the "“DM/Sierra”" test].

It is worth noting here that the Supreme Court of Canada [“SCC”] hasrecently updated the test for rebutting the presumption of the OCP in Sherman Estate. The parties provided further written submissionsafter the release of Sherman Estate. I will proceed with my analysis under the new state of the law. [57] While they do not expressly state it, the Families implicitly argue that the DM/Sierra test is not satisfied under the circumstances,and that the ATIP decision-making framework therefore infringes on s. 2(

b) of the Charter. Then, the assertion is that the infringementon s. 2(

b) is not justified under s. 1 of the Charter.

[58] The Families cite a series of cases (see below) that contain statements of principle relating to the importance of public accessibilityand openness to maintaining the public’s confidence in the administration of justice.

These principles, they assert, weigh in favour ofgranting the disclosure of the Withheld Information (Toronto Star 2018; CTV Television v Ontario Superior Court of Justice, (ON CA), [2002] OJ No 1141, 59 OR (3d) 18; Attorney General of Nova Scotia v MacIntyre, (SCC),[1982] 1 SCR 175; Canadian Broadcasting Corporation v New Brunswick (Attorney General), (SCC), [1996] 3 SCR480; Edmonton Journal v Alberta (Attorney General), (SCC), [1989] 2 SCR 1326; and Dodd v Cossar, [1998] OJ No335, 77 ACWS (3d) 287; Canadian Broadcasting Corporation v Lessard, (SCC), [1991] SCJ No 87, 67 CCC (3d) 517). [59] Finally, the Families in their written submissions fault the Parole Board for its reliance on

article 1.3.3 of the Parole Board’sDecision-Making Policy Manual for Board Members (2018 edition) [Annex E], which provides that only victims and families who donot attend a hearing are entitled to listen to audio recording under s. 140(13) of the CCRA. They argue that there is further fault becausethis right is limited to the recording of the most recent parole hearing.

The Families suggest this reliance on the manual was a reviewableerror given that s. 140(13) of the CCRA contains no such restrictions. [60] In post-hearing written submissions on Sherman Estate, the Families submitted that the decision of the SCC bolsters their argument.They say that the decision stands for a strong presumption of openness, and that the exceptional circumstances required for rebutting theprinciple of openness has not been met. They characterize the SCC’s decision as requiring the affront to dignity being required to rise toa level of public importance, which they assert is not the case here.

They also deny the facts of this matter even go to the issue of humandignity, and even if they do, there is no affront to the human dignity of the Inmates.

(2) Submissions of CBC [61] CBC takes no position on the disposition of the applications in T-1358-12 or T-465-20. Note that in addition to its submissions in T-1358-12 as intervener, it adopts and relies on its submissions in T-1884-19, summarized below, whereby the OCP applies to parolehearings and therefore requires that presumptive access be granted unless a restriction is justified under the DM/Sierra test. [62] CBC’s core submission is that requests for records from Parole Board hearings should be presumed to meet the public interestthreshold under s. 8(2)(m)(

i) of the Privacy Act unless restrictions are warranted under the DM/Sierra test. CBC makes submissions onthree issues grounded in the OCP and s. 2(

b) of the Charter, and suggests a new test they believe the Court should adopt. [63] CBC argues that the framework governing ATIP disclosures under the ATIA and the Privacy Act must operate consistently with s.2(

b) of the Charter. Since competing interests of public access to adjudicative records and privacy are at issue, CBC invokes the OCPand the DM/Sierra Test. [64] CBC cites Lukács v Canada (Transport, Infrastructure and Communities), 2015 FCA 140 at para 37 [Lukács], as an authority forthe proposition that quasi-judicial administrative decision-makers are subject to the DM/Sierra test. As such, CBC suggests thatincorporating the DM/Sierra test into the assessment of ATIP disclosures insulates the framework from Charter scrutiny. [65] CBC contends that the OCP and s. 2(

b) of the Charter apply to parole hearings and that the DM/Sierra test for withholding thehearing recordings is not satisfied.

CBC relies on jurisprudence indicating that administrative tribunals are subject to the Charter and thatthe OPC applies to tribunals engaged in quasi-judicial acts. [66] CBC submits that Parole Board hearings satisfy the four-part Coopers & Lybrand framework (see Minister of National Revenue vCoopers and Lybrand, (SCC), [1979] 1 SCR 495 [Coopers & Lybrand]) for determining whether a tribunal is acting in aquasi-judicial capacity: a hearing is contemplated; individual rights are directly affected; the hearing can be adversarial; and the boardapplies substantive rules to individual cases.

CBC asserts that the Parole Board’s reliance on Mooring v Canada (National ParoleBoard), (SCC), [1996] 1 SCR 75 [Mooring] is misplaced in light of the SCC’s subsequent decision in R v Bird, 2019SCC 7 [Bird]. They say that Bird held that the Parole Board was a court of competent jurisdiction for the purpose of granting Charterremedies. [67] CBC’s position that the Parole Board’s current practice with respect to ATIP disclosures erroneously creates "“an unconstitutionalpresumption of non-disclosure for all personal information.”" This approach they say is inconsistent with s. 2(

b) of the Charter and theOCP because it places on the ATIP requestor the onus of satisfying that an exception to the default rule of non-disclosure is met. Rather,quasi-judicial proceedings and connected records are required to be open and accessible subject to the restrictions of the DM/Sierra Test.CBC relies on Toronto Star 2018, Langenfeld v Toronto Police Services Board, 2019 ONCA 716 [Langenfeld] and Ferrier for itsconclusion that the presumption against disclosure infringes s. 2(

b) regardless of whether the openness principle is found to beapplicable. [68] CBC says that the Parole Board/CSC erroneously applies a "“reverse onus”" that improperly subordinates interests under s. 2(

b) ofthe Charter to an overly expansive

interpretation of "“invasion of privacy”". In conducting an ATIP disclosure analysis, the first branchof the DM/Sierra test should involve only necessity because proportionality—i.e. balancing—should occurs at the second step. Thissequencing CBC says helps ensure that interests under s. 2(

b) of the Charter are not improperly subordinated to privacy interests.Conversely, they say that the Parole Board/CSC improperly started with a presumption of non-disclosure and require the party seekingdisclosure to demonstrate that one of the exceptions is met. Given that the Parole Board has acknowledged that the public interestoutweighs an inmate’s privacy interests only under very restricted circumstances, such an approach, they say, is inconsistent withDM/Sierra test, and, as a result also being inconsistent with s. 2(

b) of the Charter. [69] In the alternative, if the Court disagrees that the ATIP framework should begin with a presumption of disclosure, CBC asserts thatthe statutory framework violates s. 2(

b) and cannot be saved by s. 1 of the Charter. They provide no further argument in support of thisassertion. [70] CBC’s position is that systemic delays in obtaining adjudicative records from Parole Board hearings create an ongoing violation ofs. 2(

b) rights. Freedom of the press, as protected under s. 2(

b) of the Charter, requires that it have timely access to the subject of its

reporting. Delays in public access, it notes, has a deleterious effect on the public’s right to be informed. [71] Finally, in their submissions on file T-1884-19, CBC suggests that the Court adopt a "“modern functional public interest test”"where any tribunal deciding matters involving important public interest must be open to the public.

They argue that this would be in linewith the modern approach to tribunal openness, and not a significant departure from jurisprudence and the Coopers & Lybrand test. [72] With this approach, any administrative tribunal deciding matters of public interest is subject to the openness principle, subject onlyto the DM/Sierra test.

CBC’s position is that the public interest in Parole Board hearings in general is manifest in the CCRA itself, andthe public interest in these specific hearings is clear on account of the Inmates’ violent offences and the public’s right to observe thefunctioning of the criminal justice system. [73] Given that the OCP and s. 2(

b) of the Charter apply, CBC submits the Parole Board erred in its analysis when they declined torelease the hearing recordings to them. The Parole Board erred CBC says in not applying the DM/Sierra test in its decision. The ParoleBoard’s application of the test for the disclosure of documents in government hands from Ontario (Public Safety and Security) vCriminal Lawyers' Association, 2010 SCC 23 [Criminal Lawyers] to the hearing recordings was erroneous, given that the recordings areadjudicative records and not government information, and that CBC’s request was not made pursuant to the ATIA.

Rather, CBC submitsthat on a proper application of the DM/Sierra test, there is no serious risk to a public interest, and the salutary effects of withholdingaccess do not outweigh the rights and interests of the public. The Parole Board’s refusal to release the hearing recordings was notjustified. [74] In post-hearing submissions, CBC argues that Sherman Estate does not assist the Respondent. They say that there is no serious riskof harm to dignity such that society as a whole has a stake in protecting, and that there must be a serious risk well grounded in the recordor the circumstances of the particular case.

(3) Canada’s Submissions [75] As regards the Families’ applications, Canada stated that the CSC and Parole Board "“correctly determined that the withheld recordscontain personal information, and reasonably exercised their discretion not to disclose them after balancing the two competing values ofgovernmental disclosure and individual privacy as required by the ATIA.”" [76] They argue that the Privacy Act and the ATIA act together to reconcile two competing values: governmental disclosure andindividual privacy.

They cite Dagg v Canada (Minister of Finance), (SCC), [1997] 2 SCR 403 [Dagg] for the principlethat a court reviewing under s. 41 of the ATIA must have regard to the purpose of both statutes, balancing privacy and disclosure. [77] Canada strongly asserts that decisions made by the CSC under the CCRA and parole reviews are neither judicial nor quasi-judicial,but rather inquisitorial.

For the CSC decisions, they cite Boudreau v Canada, at para 7 (FCTD); Canada(Correctional Services) v Plante, [1995] FCJ No 1509 at para 6 (FCTD); Hendrickson v Kent Institution, [1990] FCJ No 19, 1990CarswellNat 771 at para 10 (FCTD); Blanchard v Millhaven Institution, (FC), [1983] 1 FC 309, 1982 CarswellNat 78at para 2 (FCTD); Martineau v Matsqui Institution, (SCC), [1980] 1 SCR 602 at 631-632.

For the Parole Boardhearings, they cite Mooring, at paragraph 25 and Smith v Canada, 2019 FC 1658 at paragraph 64. [78] In support of the argument that Parole Board reviews are not judicial or quasi-judicial proceedings, Canada provided a number ofconsiderations. They noted that parole reviews do not always involve hearings and that the parole review is conducted in a non-adversarial, inquisitorial capacity without contending parties irrespective of whether there is a hearing or not.

Other factors that point tothe fact that the Parole Board is not judicial or quasi-judicial board is that there is no evidence received under oath, and the tribunal is notbound to apply rules of evidence. The Parole Board, they argue, acts on information, and must consider all relevant availableinformation, including that which is received from the CSC and victims which is evidence they are not judicial or quasi-judicial. As well,there is no right of cross-examination, and while the offender may be assisted by someone, that person’s role is not equivalent to that of alawyer.

Nor are the Parole Board members required to have legal training, and they may not issue subpoenas which are matters that arejudicial in nature. While the reasons for decisions of the Parole Board are available to the public, the audio recordings of the hearings arenot part of the record. [79] Canada submits that a person must apply in writing to attend a hearing for a parole review as an observer. The Parole Board mayrefuse attendance if they are satisfied that the person’s presence is likely to adversely affect: "“(

i) the security and good order of theinstitution where the hearing is to be held; (ii) the Parole Board’s ability to consider the matter; (iii) those who have providedinformation to the Parole Board including victims; or (iv) the balance between the public’s interest in knowing and the public’s interestin the effective reintegration of the offender into society”". They cite s. 140(4) of the CCRA. [80] Canada also points out that s. 140(13) of the CCRA was amended effective June 21, 2019. The amendment allows victims to listento audio recordings of proceedings irrespective of whether they attended the hearing.

The Applicants’ submissions do not reflect thisamendment which Canada indicates is a proper balancing and also shows that parliament is open to amendments when appropriate. [81] Regarding CBC Application, Canada argues that the Parole Board reasonably exercised its discretion in refusing to disclose thehearing recordings after considering all relevant, including constitutional, factors.

Canada notes that there was no formal request forinformation under the ATIA, and so that the only applicable statutory provisions come from the CCRA and the Privacy Act. [82] Regarding Sherman Estate, Canada asserts that the case is not applicable because the instant matters are not judicial or quasi-judicial.

(4) Analysis [83] To summarize, the Applicants base their position on the characterization of the Parole Board hearing as being a judicial or quasi-judicial proceeding. From that position, their argument is that since the public has a considerable and legitimate interest in the hearings,

the additional material they seek should be disclosed. [84] The first step in deciding this issue is determining whether Parole Board hearings are judicial or quasi-judicial in nature.

I find thatthey are not. [85] The SCC in Mooring addressed this issue and held that a Parole Board hearing is inquisitorial rather than judicial or quasi-judicial.Admittedly in a somewhat different context, Justice Sopinka addressed the character of parole hearings in Mooring at paragraph 25,writing "“[t]he Parole Board acts in neither a judicial nor a quasi-judicial manner.”" He noted several factors that distinguish parolehearings from hearings before a court, including: the limited role of counsel; the inquisitorial nature of the hearing; and theinapplicability of rules of evidence or the presumption of innocence (Mooring, at paras 25-26). [86] This Court has subsequently followed Mooring for the proposition that parole hearings are not judicial or quasi-judicial in nature inGallone v Canada (Attorney General), 2015 FC 608 at paragraph 16; Elliott v Canada (Attorney General), 2018 FC 673 at paragraph 20;Barrett v Canada (Public Safety and Emergency Preparedness), 2017 FC 1030 at paragraph 43; Bilodeau-Massé v Canada (AttorneyGeneral), 2017 FC 604 at paragraph 173.

See also MacInnis v Canada (Attorney General), (FCA), [1997] 1 FC 115at page 9 (FCA). [87] This Court has consistently followed Mooring and I see no reason to depart from those precedents on these facts. The Coopers &Lybrand test for determining whether a decision is judicial or quasi-judicial in nature provides no assistance to the Applicants given theestablished jurisprudential findings regarding the Parole Board. [88] I agree with Canada that the SCC’s decision in Bird neither overturns nor displaces Mooring.

The decision in Bird merelydistinguishes Mooring given that the Court in the latter took no position on whether a Parole Board could award Charter remedies otherthan remedies under s. 24(2) of the Charter (Bird, at para 54).

That said, the Court in Bird did acknowledge that there was an openquestion as to whether Mooring remains good law, in light of a subsequent SCC decision in R v Conway, 2010 SCC 22 (Bird, at para 54).Nevertheless, in light of the subsequent treatment of Mooring by this Court, it remains a valid precedent for the proposition that federalParole Boards are neither judicial nor quasi-judicial bodies. [89] CBC’s position is that I should instead rely on the decision of Justice Morgan in Toronto Star 2018, in which he found thatOntario’s application of parts of the Freedom of Information and Protection of Privacy Act [“FIPPA”]—a regime similar to the ATIA andPrivacy Act—violated the OCP under s. 2(

b) of the Charter. The Court held that the statutory imposition of an onus on the requestingparty in order to obtain the disclosure of an "“Adjudicative Record”" was unconstitutional (Toronto Star 2018, at paras 57-65). [90] That is not the case before me with the Parole Board and the binding decision in Mooring. I am not bound by Toronto Star 2018and, in any event, it is distinguishable since it addressed the application of the FIPPA to tribunals that "“preside over adversarialprocesses… and act judicially or quasi-judicially”" (Toronto Star 2018, at para 2).

For the reasons discussed above, I am of the opinionthat the Parole Board cannot be so characterized. Indeed, the Court did not list the Ontario Parole Board as one of the administrativetribunals to which the OCP applies (Toronto Star 2018, at endnote 2). [91] I agree with Canada that the jurisprudence advanced by both CBC and the Families applying s. 2(

b) of the Charter to courtsexercising judicial functions is of no assistance in this case. Canada puts it succinctly: "“Courts exercising judicial functions andtribunals exercising quasi-judicial functions involving adversarial processes operate in an entirely different legal and institutional context,compared to government organizations exercising administrative functions.”" [92] Given that the jurisprudence does not characterize the Parole Board as either a judicial or a quasi-judicial body, and that nojurisprudence has demonstrated that the OCP or s. 2(

b) require the disclosure of the Withheld Information, I am of the view that theApplicants’ constitutional challenge to the disclosure framework does not succeed. CBC and the Families have failed to demonstrate thatthe statutory disclosure framework infringes their Charter rights. [93] Further the "“Modern Functional Public Interest Test”" proposed by CBC is also not supported in the authorities.

The two decisionscited by CBC, Southam MCI and Canadian Broadcasting Corp v Summerside (City) (1999), (PE SCTD), 170 DLR(4th) 731 (PEI SC (TD)), both involved proceedings that were judicial or quasi-judicial in nature, and are therefore unhelpful in thepresent circumstances. CBC seems merely to be trying to attempt to alter the legislative framework to better suit its interests in broad-based disclosure by administrative tribunals.

It provides no judicial support for engaging in such a far-reaching change. [94] This Court will not engage in legislative reform in this judicial review and these are arguments for Parliament. For example s.140(13) of the CCRA was amended effective June 21, 2019. That amendment allows victims to listen to audio recordings of proceedingsirrespective or whether or not they attended the hearing. Over the course of time other amendments have been made and it is possibleparliament will see fit to make future amendments. [95] As well, the SCC in Criminal Lawyers establishes the test for circumstances in which s. 2(

b) of the Charter entitles a party to accessdocuments in the government’s possession. Justices Abella and McLachlin, writing for the Court, note that "“s. 2(

b) does not guaranteeaccess to all documents… access is a derivative right which may arise where it is a necessary precondition of meaningful expression onthe function of government”" (Criminal Lawyers at para 30). The Court articulated a two-step test, whereby s. 2(

b) entitles access: "“onlywhere it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatiblewith the function of the institution concerned”" (Criminal Lawyers at para 5). [96] While the Families have not made detailed submission on this point, I am of the view that the Criminal Lawyers test is not satisfied.On the first condition, it is not apparent that access to the Withheld Information is "“a necessary precondition of meaningfulexpression”".

The meaning of that phrase was further discussed in Criminal Lawyers, with the Court writing that a right of access existswhere, in its absence, "“meaningful discussion and criticism on matters of public interest would be substantially impeded”" (CriminalLawyers at para 37). That exacting standard is not met here. After all, Parole Board hearings may be attended by the public and themedia.

Although the matters at hand are certainly of public interest, there is no reason to believe that meaningful discussion issubstantially impeded by the decision to withhold the sought-after records yet allow persons to attend the hearings themselves.

[ 97 ] There is consequently no constitutional right of access to records, and s. 2(

b) of the Charter has not be violated. Due to this finding, I answer the constitutional question that the sections noted are not in violation of the Charter . [ 98 ] If I am wrong about the non-judicial nature of the proceedings, then I must proceed to analyze whether the presumption of an open court is rebutted in this case. As explained below, I believe the presumption has been rebutted. [ 99 ] A unanimous SCC in Sherman Estate , in a decision penned by Justice Kasirer, restated the test to rebut the presumption of the OCP.

The decision re-characterizes the DM/Sierra test into a three step process, requiring that those asking a court to limit the OCP must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd. v.

Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188, at paras. 7 and 22 ). ( Sherman Estate at para 38 ) [ 100 ] Justice Kasirer goes on to say that privacy does have some social importance beyond the person most immediately concerned, and cannot be simply excluded as an interest that could limit court openness ( Sherman Estate at para 46 ).

He then connects the types of privacy rights that could justify limits to the OCP as ones related to the protection of dignity ( Sherman Estate at para 46 ), and says that there will be times when interests in protecting personal privacy will have a public interest ( Sherman Estate at para 52 ). [ 101 ] He notes that " “in order to preserve the integrity of the open court principle, an important public interest concerned with the protection of dignity should be understood to be seriously at risk only in limited cases” " ( Sherman Estate at para 63 ).

He clarifies that " “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner…” " ( Sherman Estate at para 71 ). [ 102 ] Specifically, he notes that: [72] Where dignity is impaired, the impact on the individual is not theoretical but could engender real human consequences, including psychological distress … Viewed in this way, a privacy interest, where it shields the core information associated with dignity necessary to individual well-being, begins to look much like the physical safety interest also raised in this case, the important and public nature of which is neither debated, nor, in my view, seriously debatable.

The administration of justice suffers when the operation of courts threatens physical well-being because a responsible court system is attuned to the physical harm it inflicts on individuals and works to avoid such effects. Similarly, in my view, a responsible court must be attuned and responsive to the harm it causes to other core elements of individual well-being, including individual dignity.

This parallel helps to understand dignity as a more limited dimension of privacy relevant as an important public interest in the open court context. [73] I am accordingly of the view that protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test. ( Sherman Estate at paras 72-3 ) [ 103 ] He further expands these principles: …The presumption of openness means that mere discomfort associated with lesser intrusions of privacy will generally be tolerated.

But there is a public interest in ensuring that openness does not unduly entail the dissemination of this core information that threatens dignity — even if it is “personal” to the affected person. ( Sherman Estate , at para 75 ) [ 104 ] The SCC leaves the list of possible examples of what will qualify open, but does note that stigmatized medical conditions and sexual orientation (among other listed examples) would potentially qualify.

He says that " “[t]he question in every case is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences” " ( Sherman Estate at para 77 ). [ 105 ] Finally, Justice Kasirer notes that for the risk to justify a limit, an applicant must show that " “the threatened loss of control over information about oneself is so fundamental that it strikes meaningfully at individual dignity” " ( Sherman Estate at para 84 ). [ 106 ] Although these Inmates’ crimes are repugnant beyond reproach or human decency, this legislation equally applies to all inmates.

I have to see the intensely intimate details of the requests by the Applicants as potentially striking at individual dignity, and thereby rebutting the presumption of the OCP. Not only are copies of medical records and psychological assessments asked for, but every detail of their lives since their incarceration. Parliament must have considered this given they specifically address that, though attendees can hear what is said regarding the reports for instance they may not receive copies it and it is not considered as being public (see paragraph 46).

[ 107 ] I do not read Sherman Estate as the Families do. They seem to argue that the affront to dignity must specifically be something that society as a whole has a stake in protecting. I disagree. When reading the whole decision, and specifically the paragraph cited by the parties for this, it seems to me that the Court has recognized a concept of " “dignity” " (as opposed to simple privacy) which must be protected, and that society as a whole has a stake in protecting it: Personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity.

Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club. Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large.

A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information.

The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting. ( Sherman Estate at para 33 , emphasis added) In my view, the highly sensitive nature of the information requested does go to the dignity of the Inmates. This satisfies the first stage of the test. [ 108 ] As for the other two stages of the test, I am of the view that they are satisfied in this case.

For the second stage, when the records are released, there is no control over if or how widely they will be distributed. For the final stage of the test, there is no reason to believe that the release of this information will have any bearing on the parole status of the Inmates given that the tribunal which actually makes the decision will have unfettered access to the information. [ 109 ] I understand the Families need to put forth the emotional argument that the Inmates do not deserve any right to privacy given their crimes, but on this judicial review that may not be considered.

The Parole Board is charged with hearing the impact on the victims and making decisions concerning their incarceration. The Families submits that if they attend the hearing then they can hear the details, so it is illogical that they cannot have the underlying documents and the recordings. CCRA s. 140(14) indicates that because the information and documents were discussed at the hearing that does not mean it was publicly available within the meaning of the ATIA and Privacy Act . My answer to the Applicants is that parliament has chosen to draw a line, and it is not this Court’s job to alter it. B.

Were the decisions of the Parole Board and CSC unreasonable? [ 110 ] The Families and CBC advance a series of arguments on the Parole Board/CSC’s decisions with respect to their ATIP requests. These arguments, and my analysis, are grouped thematically below.

(1) Insufficient reasons [ 111 ] The Families argue that the Parole Board and CSC provided insufficient reasons for rejecting the ATIP requests and instead relied on " “boiler-plate” " language in their reasons and that the Parole Board and CSC decisions " “are completely devoid of any reasons or analysis.” " The submissions are that the outcome of the ATIP requests was pre-determined and that the Parole Board failed to adequately assess the particular merits of each request.

They also state that the Parole Board/CSC provided no evidence that granting the ATIP requests would " “subvert the ends of justice” " or result in a " “serious danger of an injustice” " and then provided insufficient reasons for which the public interest in disclosure was not satisfied.

The Families cite no jurisprudence for their various arguments relating to the insufficiency of reasons. [ 112 ] As regards the sufficiency of reasons, the SCC instructs that " “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met” " ( Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 16 ).

I find that the reasons satisfy this requirement. [ 113 ] In judicial reviews of a decision to withhold information under the ATIA , the reviewing court may consult " “all of the evidence in the record, including the entire history of the OIC’s investigation and the correspondence provided by the [decision maker] during the investigation” " ( Canada (Information Commissioner) v Toronto Port Authority , 2016 FC 683 at para 206 ).

The FCA has likewise noted that correspondence and memoranda relating to the OIC investigation may be considered in assessing whether there is a sufficiently clear account of why officials opposed disclosure ( 3430901 Canada Inc v Canada (Minister of Industry) , 2001 FCA 254 at para 114 ; also see Vavilov at para 96 ).

Contrary to what the Families argue, the justifications for the decision under review are not limited to what is contained in the decision-maker’s written response to the ATIP requestor. [ 114 ] On that basis, and on a review of the six Parole Board/CSC decisions, the correspondence between the Parole Board /CSC and the OIC, and the OIC investigative reports, I am of the view that the record in each instance discloses sufficient reasons and evidence to understand the decisions and to assess whether they were reasonable.

The Families are correct in stating that the letters communicating the outcome of the decisions in PBC-1 and CSC-1 are devoid of analysis. However, those letters are supported in the record by letters from Parole Board and CSC, respectively, which outline the rationale for those decisions. As for the remaining decisions, PBC-2, CSC- 2, PBC-3, and the letter from the Parole Board to CBC, they all contain analysis justifying the decision to withhold information.

These materials identify the basis on which the decision-makers weighed the Inmates’ privacy interests against the public interest in disclosure, identify the variety of factors under consideration by the decision makers, and provide an overall basis to understand how the decision- makers arrived at their decisions.

(2) Pre-Determined Outcome

[ 115 ] The Families’ argument that " “use of boiler-plate paragraphs for the substantive part of the analysis demonstrates the outcome of the ATIP requests has been pre-determined” " is likewise misplaced. While portions of the decisions do indeed use identical language in describing their statutory obligations and the general framework within which decisions are made, the analysis is varied across the impugned decisions. The factors that are considered and weighed across the decisions are largely similar, but this does not mean the decisions had been pre-determined.

Indeed, four of the five decisions (PBC-1, CSC-1, PBC-2, and CSC-2) arise from two ATIP applications in relation to the same inmate. It is therefore reasonable that decision-makers would have considered similar factors. On balance, the decisions were justified, transparent and intelligible. There is no basis on which to intervene in this regard.

(3) Selection of Factors [ 116 ] The Families’ submissions are that the Parole Board committed a series of reviewable errors in selecting the factors it considered. First, they argue that the Parole Board erred in not considering the interests of the victims’ families—which they claim are " “entirely aligned” " with the public interest—in their assessment of the public interest under s. 8(2) (

m) of the Privacy Act . Second, the Parole Board and CSC erred as they were " “blindly driven” " by the motive of facilitating the offenders’ safe re- integration into the community. Third, the Families say that the Parole Board/CSC failed to account for the dangerous offender designation of the Inmates in the decision making process. Fourth, the Parole Board failed to consider the public interest arising from the threat to public safety that would arise if the inmates were released from prison.

Fifth, the Parole Board erred in failing to determine an identifiable group that had a genuine stake in the information sought by the ATIP request. [ 117 ] I disagree. The records containing the decision-makers’ analysis demonstrate that they considered and weighed a variety of factors in their assessment of the Applicants’ requests.

These factors include: the sensitive nature of the information; the existence of an imminent need for disclosure; a risk to public safety, the statutory framework; the mandate and role of the Parole Board and CSC; the adverse effect on rehabilitees and reintegration; the high probability of injury; the inmate’s expectation of non-disclosure; the Families’ private interest in disclosure; the risk of personal information being widely dispersed; and the absence of an identifiable group with a genuine stake in disclosure. [ 118 ] It is apparent on reviewing the decisions that the Parole Board and CSC considered the requirements of s. 19(2)(

c) of the ATIA and s. 8(2) (m)(

i) of the Privacy Act , assessed the nature of the sought-after evidence through the prism of the public interest in disclosure and the intrusion upon the Inmates’ privacy interests, and arrived at a decision grounded in their assessment of the evidence. [ 119 ] Of note is that Vavilov provides that " “where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language” " ( Vavilov , at para 110 ).

While the Families and CBC disagree with the Parole Board and CSC’s determination about the nature and character of the public interest, I do not agree that they have demonstrated that the decisions at issue were unreasonable in this regard. (4) Section 8(2)(m)(

i) of the Privacy Act [ 120 ] Both the Families and CBC suggest that the decision-maker erred in their assessment of the privacy interests of the Inmates and in their approach to the concept of the invasion of privacy. Both argue that the inmates had no reasonable expectation of privacy as it relates to records that were adduced or discussed at the hearing and to the hearing recordings, and that there was therefore no invasion of privacy in disclosing the Withheld Information. CBC further submits that the decision-makers erred in failing to adopt a contextual analysis of privacy, instead relying on " “a blanket asse

[…]