Ruby v. Canada (Solicitor General),  3 F.C. 589 (C.A.), reversed in part 2002 SCC 75
Summary: The provision in the Privacy Act requiring a mandatory in camera hearing when certain exemptions are claimed is unconstitutional. Various other reasons to refuse disclosure of information were accepted.
Facts: The appellant, a lawyer, requested access to personal information held by CSIS, the RCMP and the Department of External Affairs. Those requests were dealt with separately by each government institution.
CSIS refused to confirm or deny the existence of any records but, if the records did exist, they were exempt by virtue of ss. 19 (confidence of another government), 21 (international affairs and defence), 22 (harm to investigations) and 26 (personal information about a third party) of the Privacy Act. The Privacy Commissioner concluded that some of CSIS’s objections were not well founded, and CSIS disclosed some documents. The Federal Court agreed with that conclusion. The Federal Court also decided that s. 51 of the Privacy Act – which requires an in camera and ex parte hearing to deal with an allegation involving ss. 19 or 21 of the Act – was constitutional.
The RCMP initially refused to disclose a large amount of information on the basis of ss. 22 and 27 (solicitor-client privilege) of the Privacy Act. The Privacy Commissioner upheld the refusal. When the appellant brought an application before Federal Court, the RCMP decided to release some documents. By the time the matter had to be decided by the Court, only a single document was at issue: a letter about possible investigations. The Court concluded that the RCMP could properly refuse to disclose that record.
Department of External Affairs Request
The Department of External Affairs refused to confirm or deny the existence of any records under s. 16 of the Privacy Act but, if there were any records, they were exempt under s. 22 of the Act. The Privacy Commissioner agreed, as did the Federal Court.
The appellant appealed all of these decisions to the Federal Court of Appeal.
Federal Court of Appeal Decision: The Federal Court of Appeal overturned the lower Court’s decision in part.
The Court of Appeal concluded that a government institution could refuse to disclose whether or not personal information existed on the basis of a general policy instead of on a case-by-case basis. Neither government department erred by doing so in this case.
In respect of s. 19, the Court of Appeal concluded that CSIS had to make reasonable efforts to seek the consent of the other government before refusing disclosure. CSIS did later ask for permission – which was refused – and the Federal Court upheld that decision in a later case (Ruby v. Canada (Solicitor General), 2004 FC 595).
In respect of personal information about other individuals, the Court of Appeal concluded that CSIS was required to consider its discretion under s. 8(2)(m) of the Act to release the personal information in the public interest. The Court of Appeal returned the issue to CSIS. CSIS later decided that the public interest did not warrant disclosure, a decision upheld in the later Federal Court decision cited above.
On the RCMP file, the Court of Appeal noted that the appeal was now moot: the s. 22(1)(a) exemption for information obtained or prepared by an “investigative body” specified in the regulations only lasts for 20 years, and the record was 20 years old by the time the appeal was heard.
Finally, the Court of Appeal concluded that the lower Court erred by not explicitly considering the Department of External Affairs’ decision under s. 22(1)(a) of the Act and ordered the matter sent back for that re-determination. The Court of Appeal also concluded that the s. 22(1)(b) exclusion only applied to current investigations. When the matter was sent back to the Federal Court, the Court eventually decided that the Department could rely upon s. 22(1)(a) in the 2004 case cited above.
Decision of the Supreme Court of Canada: The matter proceeded to the Supreme Court of Canada on only two issues: the constitutional validity of the in camera hearing, and whether s. 22(1)(b) applied to current or future investigations.
On the constitutional issue, the Supreme Court of Canada concluded that the in camera hearing violated s. 2(b) of the Charter as it violated the open court principle that forms part of freedom of expression. The Court also concluded that this violation could not be justified under s. 1 of the Charter, as the in camera hearing provision was overbroad because it required that the entire court hearing be held in camera. Instead, the Supreme Court ruled that the provision in s. 51(2)(a) requiring in camera hearings would be read down so that only the portion of the hearing that involved ex parte evidence and submissions under s. 51(3) of the Act – i.e. evidence and submissions given confidentially to the court in the absence of the other party – would have to be in camera. This splitting of the hearing would be sufficient to prevent inadvertent disclosure of secret information.
On the s. 22(1)(b) issue, the Supreme Court confirmed its earlier decision in Lavigne v. Canada (Office of the Commissioner of Official Languages): s. 22(1)(b) applies to the impact on future investigations and not just ongoing investigations.
- An in camera hearing in Federal Court is only required with respect to ex parte submissions made pursuant to s. 51(3) of the Act. The rest of the hearing takes place publicly.
- A government institution must ask a foreign state or other government for permission to disclose a document (either on a case-by-case basis or by way of a standing policy) before refusing to disclose the document under s. 19 of the Privacy Act.
- A government institution must consider releasing personal information about other individuals on the basis of the public interest pursuant to s. 8(2)(m) of the Act before refusing to disclose that personal information.
- The exemption in s. 22(1)(b) applies when disclosing the information could harm future investigations and not just ongoing investigations.
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