Fitzgerald v. Public Prosecution Services

Fitzgerald v. Public Prosecution Services Court Supreme Court Date 2014-05-15 Citation 2014 NSSC 183 Docket Hfx 421887 Judge/Registrar/Adjudicator Warner, Gregory M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Fitzgerald v Public Prosecution Services, 2014 NSSC 183 Date: 2014-05-15 Docket: Halifax No. 421887 Registry: Halifax Between: Gordon Howard Fitzgerald Appellant v. Her Majesty the Queen in right of Nova Scotia (Public Prosecution Service) Respondent Revised Decision: The text of the original decision has been corrected according to the attached erratum dated June 6, 2014. Judge: The Honourable Justice Gregory M. Warner Heard: March 27, April 11 and April 25, 2014, in Halifax, Nova Scotia Counsel: Gordon Howard Fitzgerald by his Power of Attorney L. Allison Jones, self-represented Agnes E. MacNeil and Debbie Brown, counsel for the respondent By the Court: Part I Background [1] This is an appeal pursuant to s. 41 of the Freedom of Information and Protection of Privacy Act of Nova Scotia (“Act”). [2] Gordon H. Fitzgerald was charged with having sex without consent (rape) with a client in his law office on March 29, 1979. After a three-day preliminary in October 1979, in which 15 witnesses testified, and a five-day trial, commencing May 12, 1980, during which 12 crown witnesses and 15 defence witnesses testified, he was convicted. He was sentenced to five years imprisonment. He was released on parole after serving 10 months on September 17, 1981. [3] His appeal to the Nova Scotia Court of Appeal was dismissed on December 14, 1980. Leave to appeal to the Supreme Court of Canada was dismissed on April 6, 1981. [4] On June 2, 1981, Welsford G. MacArthur, Q.C., filed an application pursuant to then s. 617 of the Criminal Code for “the mercy of the Crown” on the basis that the appellant’s conviction was a miscarriage of justice. [5] Mr. MacArthur filed several statutory declarations, documents and written submissions respecting the Appellant’s alibi evidence and the complainant’s credibility. The Federal Minister of Justice forwarded these materials to the Nova Scotia Department of Attorney General (Public Prosecution Service (“PPS”) and the Halifax Police Department on August 25, 1981, asking them to examine the materials and to respond to the application. The Department of the Attorney General responded. [6] On January 25, 1982, the Federal Minister of Justice declined to intervene or grant mercy. [7] On May 1982, Mr. MacArthur met with, and provided documents to, the Nova Scotia Deputy Attorney General for the purpose of having the complainant (victim) of the rape charged with perjury. On June 25, 1982, the Department of Attorney General determined that it would not do so. [8] About January 1983, Mr. MacArthur met with the new Federal Minister of Justice who agreed to review the mercy application for a second time. [9] In February 1983, the Nova Scotia Department of Attorney General received Mr. MacArthur’s new submissions to the Federal Minister of Justice. On July 12, 1983, the Federal Justice Minister again declined to intervene or grant mercy. [10] In 2009, the Appellant filed applications under the Act with PPS for disclosure of its two files in respect of the criminal prosecution and mercy application. He received some disclosure. [11] On April 13, 2012, he filed another request under the Act for more disclosure. On June 12, 2012, more disclosure was provided but some was withheld. Mr. Fitzgerald appealed the withholding of information pursuant to s. 32(3) of the Act to the Nova Scotia Supreme Court. That appeal was eventually withdrawn. Instead Mr. Fitzgerald filed a request for a review by the FOIPOP review officer, first on August 17, 2012, and again on November 15, 2012. [12] The FOIPOP review officer conducted a review. This included many communications between her, the PPS and the Appellant. On September 20, 2013, the review officer released a report prepared pursuant to s. 39(1) of the Act recommending that PPS disclose the documents that PPS had not disclosed. [13] In its October 23, 2013, response, PPS did not accept the review officer’s recommendation (s. 40 of the Act). [14] On November 22, 2013, Mr. Fitzgerald, by his Power of Attorney, his daughter L. Allison Jones, filed this appeal. [15] The stated purpose of the application and this appeal is to obtain new evidence to support an application for ministerial review of a miscarriage of justice pursuant to s. 696.1 of the Criminal Code, which section appears, with some different wording, to be the successor section to s. 617 of the Criminal Code, RSC 1970, C-34, and s. 690, RSC 1985, C-46. [16] During the hearing, an exchange between the PPS and the Court led Ms. Jones to state that Mr. Fitzgerald had at some point subsequent to 1982 been granted a pardon. No written record of the pardon, or when and how that pardon was granted, is in evidence before the Court. A pardon may be granted in accordance with s. 748(2) of the current Criminal Code (s. 683, RSC 1970 C-34, and s. 749, RSC 1985 C-46). [17] Also during the last day of the hearing, Ms. Jones produced a substantial volume of documents, which appeared to be a package prepared by Mr. MacArthur in respect of one or both of the “mercy of the Crown” applications made for Mr. Fitzgerald. The Court asked PPS, with the permission of Ms. Jones, to review the volume to determine whether the volume contained documents withheld by PPS. Upon its review, PPS acknowledged that the volume contained many documents for which exemption from disclosure had been claimed. [18] PPS filed with the Court, in a sealed package, 11 volumes of documents indexed as to whether the documents had been fully disclosed to the Appellant, partially disclosed (redacted), or withheld. The Court reviewed all of the documents. [19] In the open hearing, counsel for PPS submitted that the documents filed with the Court were all of the materials in the possession of PPS related to the criminal prosecution and the mercy of the Crown applications of the Appellant. The Court suggested to PPS that the Court’s review of the documents showed that the files did not contain any substantive working notes of Crown Counsel at trial or on appeal, except a few marginal notes on copies of case law, and on the parties’ appeal briefs. [20] The files do not indicate which of the documents in the files were disclosed to Mr. Fitzgerald or his counsel as part of the criminal proceedings or the “mercy of the Crown” applications, and which of the documents had been provided by the Appellant or his counsel to PPS or to the Federal Department of Justice (and by the Federal Department to PPS). [21] The Court made the observation to PPS that it was clear from the Court’s review of the file that most, if not all, of the working notes of the Crown in respect of both files, which common sense dictates would have had to exist during the criminal proceedings and the “mercy of the Crown” applications, were not in the file. [22] Counsel for PPS was unable to advise the Court which of the approximate 2,000 pages of documents in the package would have been disclosed to the Appellant during the criminal proceedings or the “mercy of the Crown” proceedings. A reading of the trial transcript, disclosed by PPS as part of the Case on Appeal redacted per s. 15(1)(f), reveals that the Appellant’s trial counsel unsuccessfully objected to evidence being received from only one witness on the basis that “no statement as to the purport of his testimony was given to the defence at any stage”. I infer that the statements of the other crown witnesses were disclosed to the Appellant, as the common law at that time required. [23] It was also clear that many of the documents, both redacted and withheld documents, were produced and provided to PPS directly and through the Federal Department of Justice, by the Appellant. [24] In this context, the Court asked the Appellant’s agent why the Appellant sought documents that either originated from the Appellant’s trial counsel or counsel on the mercy applications. Ms. Jones replied that circumstances caused the much of the Appellant’s various counsels’ files to be lost. [25] Part of the submissions by counsel for PPS was that the purpose for the request for disclosure was irrelevant and, alternatively, the Appellant had another means of obtaining the disclosure; that is, disclosure from the Federal Department of Justice as part of the application for ministerial review pursuant to s. 696.1 of the Criminal Code. It is not clear to the Court that s. 696.1 of the Criminal Code provides for full disclosure of PPS’s file. [26] The Court’s observation from its review of the redacted and/or withheld documents is that they would not likely assist the Appellant in establishing the grounds for a miscarriage of justice pursuant to s. 696.1 of the Criminal Code. They do not appear to support the submissions and allegations of a miscarriage of justice in the affidavits of Ms. Jones, Mr. Fitzgerald, and Mr. Clare, and the attached documents. Part II This Proceeding [27] In support of the appeal, Ms. Jones filed an affidavit, to which is attached: a) correspondence with the PPS and the FOIPOP review office together with copies of communications amongst the Review Officer, PPS and Appellant; b) an affidavit of Mr. Fitzgerald, c) an affidavit of Larry Clare (one of the police investigators involved in the original criminal prosecution), and, d) witness statements and correspondence intended to suggest that Mr. Fitzgerald was wrongfully convicted. [28] The Respondent PPS objected to the admissibility of some contents and attachments to Ms. Jones and Mr. Fitzgerald’s affidavits. On March 27, 2014, this Court received submissions and, in an oral decision, struck some of the contents and attachments to Ms. Jones and Mr. Fitzgerald’s affidavits. [29] PPS filed an affidavit of Denise C. Smith, Q.C., PPS’s Deputy Director, sworn February 28, 2014. It contained opinion evidence respecting: a) prosecutorial discretion and the law respecting the disclosure of the Crown’s file, b) the effect of the disclosure of sensitive personal information and third party information of victims and witnesses in certain types of criminal cases, c) the policy and practice of PPS respecting the protection of victims of crime, and d) her understanding of the purpose of s. 696.1 of the Criminal Code (wrongful conviction reviews) and s. 748 of the Criminal Code (mercy of the Crown applications). This Court expressed reservations about the admissibility of most of the contents of the Smith affidavit as opinion evidence, but made no determination on its admissibility. [30] Neither party sought to cross-examine the affiants. [31] The hearing was organized into three parts: a) The first involved PPS’s motion to strike parts of the Appellant’s affidavits. b) The second involved submissions by the parties on the factual and legal issues, including: i) the nature of a FOIPOP appeal and authority of the appeal court; ii) the scope and purpose of the Act; iii) the interpretation and application of the exemption from disclosure of third party personal information (s. 20 of the Act); and iv) the interpretation and application of the exemption from disclosure of information that could reasonably be expected to reveal information related to or used in the exercise of prosecutorial discretion (s. 15(1)(f) of the Act). c) The third part was conducted in camera, pursuant to s. 42(1)(b) and 42(3) of the Act, with counsel for PPS present, for the purpose of examining the redacted and withheld records as well as receiving representations from PPS in a manner that would avoid disclosure of any record or part of any record that the Court eventually determined should not be disclosed. Part III The Three Issues Issue #1 The nature of a FOIPOP appeal [32] PPS submits that this is not a judicial review. The review officer made no decisions, only recommendations. The issue of deference to the decision maker is not relevant. In any event, PPS argues, application of the law to this Act is a matter of special expertise of the Court. [33] It appears to the Court that the principles of judicial review may be relevant to this proceeding. This proceeding is an appeal. It is not the recommendations of the review officer that is the subject of the review, but rather the decision of the “head of the public body” (in this case PPS) made pursuant to s. 40 of the Act in response to the review officer’s recommendations that is the subject matter of the appeal. [34] If this appeal is a judicial review, to the extent that the decision of the PPS involved a question of law, the standard of review would be correctness. To the extent that the decision involves the application of the law to a claim for exemption of a record, the standard of review would be more nuanced. [35] PPS submitted that no deference is due to the Review Officer’s recommendations. This submission suggests that the standard of review to the application of law to each claimed exemption would involve the standard of review of correctness. There is no reason for PPS’s submission to be different for judicial review of the decision of PPS than it submits is applicable to those of the Review Officer. [36] Context relevant to the standard of review analysis would include the fact that in s. 20 and s. 15 of the Act, the decisions to be made by the head of the public body require him or her, in the case of s. 20(2), to consider and weigh a non-exhaustive list of relevant circumstances. This would include determination whether the disclosure of certain information would be an unreasonable invasion of a third party’s personal privacy. In the case of prosecutorial discretion (s. 15(1)(f)), it would require determination whether the disclosure could reasonably be expected to reveal any information related to the exercise of prosecutorial discretion. [37] The question of whether this appeal constitutes a form of judicial review is addressed in some of the cases cited to the Court by PPS. [38] In Canadian Association of Elizabeth Fry Societies v Canada, 2010 FC 470, at para 37, the Court quotes s. 41 of the Federal Privacy Act as providing that an individual may “. . . apply to the Court for a review of the matter” and at paras 43 to 45, the Court describes the standard of review in terms of judicial review, applying Dunsmuir v Canada, 2008 SCC 9. [39] In Lavigne v Canada, 2002 SCC 53, again respecting the Federal Privacy Act, the Court described the application as one of judicial review. [40] In Ontario v Criminal Lawyer’s Association, 2010 SCC 23, after dealing with constitutional questions related to Ontario’s FOIPOP legislation, the Court at paras 62 to 75 dealt with the decisions of the Minister and Commission as being assessed, in respect of discretionary exemptions from disclosure, on the basis of whether their exercise of discretion was reasonable. [41] In Re House, 2000 Carswell NS 427 (NSSC), Justice Moir did not address judicial review. He adopted his own four-step analysis for a claim by a government body for exemption from access based on an interpretation of s. 3(1)(i), s. 20(3) and s. 45(2) of the Act. [42] In Cummings v Nova Scotia, 2011 NSSC 38, Justice Wright did not directly address judicial review. At paragraphs 10 to 17, he simply cites the provisions of the Act to identify the purpose of the Act (s. 2); the right to access unless expressly exempted (s. 5); the exemptions, including the one relevant in that case (s. 15(1)(f)); the powers of the courts (s. 14); the standard of review (s. 42(1)) and the burden of proof (s. 45(1)). [43] This Court notes with interest the observation of the review officer at page two of her September 20, 2013 report. It was her view that this Court did not have the same power as the review officer when it came to discretionary exemptions in circumstances where the Review Officer found that PPS exercised its discretion in a manner inconsistent with the Act. [44] If this appeal was under s. 41 of the Federal Privacy Act or Ontario’s Act, I would find that this appeal is a judicial review. The standard of review would be determined by application of the Dunsmuir principles, which include correctness with regards to matters of law, and, depending on the circumstances, correctness or reasonableness in the application of the law to the facts. In the case of discretionary decisions by a governing body, the standard of review would normally be reasonableness, as was held in the cases cited above. [45] However, s. 41 of the Act provides for an appeal and s. 42(1) provides that the Court may determine the matter de novo and, for that purpose, many examine any record in camera to “. . . determine on the merits whether the information within the record may be withheld pursuant to this Act.” [46] By reason of the express wording of s. 42(1), and PPS’s acknowledgment at the hearing of this appeal that the Court is free to determine the matter de novo, I adopt the position that this Court is in the same position as the PPS in interpreting the legislation and, in particular, the claims for exemption pursuant to s. 20 and s. 15(1)(f). [47] Section 5 of the Act expressly provides that a person has a right of access to any record in the custody or under the control of a public body upon complying with the Act. This section does not extend to information exempted from disclosure pursuant to the Act. [48] Section 45 of the Act reads as follows: Burden of proof 45 (1) At a review or appeal into a decision to refuse an applicant access to all or part of a record, the burden is on the head of a public body to prove that the applicant has no right of access to the record or part. (2) Where the record or part that the applicant is refused access to contains personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy. (3) At a review or appeal into a decision to give an applicant access to all or part of a record containing information that relates to a third party, (a) in the case of personal information, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy; and (b) in any other case, the burden is on the third party to prove that the applicant has no right of access to the record or part. [49] The relevant portions of s. 20 (disclosure harmful to personal privacy) reads as follows: Personal information 20 (1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy. (2) In determining pursuant to subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party’s personal privacy, the head of a public body shall consider all the relevant circumstances, including whether (a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Nova Scotia or a public body to public scrutiny; (b) the disclosure is likely to promote public health and safety or to promote the protection of the environment; (c) the personal information is relevant to a fair determination of the applicant’s rights; (d) the disclosure will assist in researching the claims, disputes or grievances of aboriginal people; (e) the third party will be exposed unfairly to financial or other harm; (f) the personal information has been supplied in confidence; (g) the personal information is likely to be inaccurate or unreliable; and (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant. (3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if (a) the personal information relates to a medical, dental, psychiatric, psychological or other health-care history, diagnosis, condition, treatment or evaluation; (b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; (c) the personal information relates to eligibility for income assistance or social-service benefits or to the determination of benefit levels; (d) the personal information relates to employment or educational history; (e) the personal information was obtained on a tax return or gathered for the purpose of collecting a tax; (f) the personal information describes the third party’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness; (g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations; (h) the personal information indicates the third party’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations; or (i) the personal information consists of the third party’s name together with the third party’s address or telephone number and is to be used for mailing lists or solicitations by telephone or other means. (4) A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if (a) the third party has, in writing, consented to or requested the disclosure; (b) there are compelling circumstances affecting anyone’s health or safety; (c) an enactment authorizes the disclosure; (d) the disclosure is for a research or statistical purpose and is in accordance with Section 29 or 30; (e) the information is about the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff; (f) the disclosure reveals financial and other similar details of a contract to supply goods or services to a public body; (g) the information is about expenses incurred by the third party while travelling at the expense of a public body; (h) the disclosure reveals details of a licence, permit or other similar discretionary benefit granted to the third party by a public body, not including personal information supplied in support of the request for the benefit; or (i) the disclosure reveals details of a discretionary benefit of a financial nature granted to the third party by a public body, not including personal information that is supplied in support of the request for the benefit or is referred to in clause (c) of subsection (3). [50] The relevant portions of the Act related to the claimed exemption respecting prosecutorial discretion read as follows: Law enforcement 15 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm law enforcement; (b) prejudice the defence of Canada or of any foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism; (c) harm the effectiveness of investigative techniques or procedures currently used, or likely to be used, in law enforcement; (d) reveal the identity of a confidential source of law enforcement information; (e) endanger the life or physical safety of a law-enforcement officer or any other person; (f) reveal any information relating to or used in the exercise of prosecutorial discretion; (g) deprive a person of the right to a fair trial or impartial adjudication; (h) reveal a record that has been confiscated from a person by a peace officer in accordance with an enactment; (i) be detrimental to the proper custody, control or supervision of a person under lawful detention; (j) facilitate the commission of an offence contrary to an enactment; or (k) harm the security of any property or system, including a building, a vehicle, a computer system or a communications system. (2) The head of a public body may refuse to disclose information to an applicant if the information (a) is in a law-enforcement record and the disclosure would be an offence pursuant to an enactment; (b) is in a law-enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record; or (c) is about the history, supervision or release of a person who is in custody or under supervision and the disclosure could reasonably be expected [51] The starting point of the analysis is recognition of the purposes of the Act, including: a) to ensure accountability of public bodies by giving the public (not relevant to this matrix) and individuals a right of access to personal information about themselves, subject to specified limited exceptions and independent review of access decisions (s. 2(a) of the Act); and, b) to protect the privacy of individuals with respect to personal information held by public bodies and to provide them with a right to access that information (s. 2(c) of the Act). [52] PPS submits that the reason that the right of access to personal information is set out twice is that the purpose of s. 2(a), which ensures accountability for information the Government collects (transparency), is a public policy, while the purpose of s. 2(c), to ensure respect for a person’s privacy with respect to the collection of personal information, is not a public policy but a personal entitlement. [53] The Court notes that the reference in s. 2 to the exceptions to access to personal information about an individual is in s. 2(a). [54] In this case, PPS redacted 57 documents: 17 in the criminal file and 40 in the mercy file. Seventeen of the redacted documents were in the Appellant’s package of materials related to his mercy application (compared by PPS counsel to their list on April 25th), thus leaving 40 remaining redacted documents that are subject to this appeal. [55] Of the remaining 40 redacted documents, 20 are redacted on the basis of an exception under s. 20(3)(b); 12 were reacted on the basis of an exception under s. 15(1)(f); 1 on the basis of both subsections and the remaining 7 on the basis that they were out of scope of the Act (1 document), or on the basis of s. 20(3)(b) and 20(2)(h) (5 documents), or a combination of s. 20(3)(b) and s. 16 (1 document). [56] PPS withheld 41 documents, 17 in the criminal file and 24 in the mercy file. Ten of the withheld documents were in the Appellant’s mercy package, thus leaving 31 withheld documents that are subject to this appeal. [57] Of the remaining withheld documents, the claimed exception was s. 20(3)(b) for 4 documents, s. 15(1)(f) for 8 documents, and both subsections for the remaining 19 documents. [58] In summary, 49 of the claimed exemptions involve s. 20(3)(b) and 39 involve s. 15(1)(f). Issue #2 Would it be an unreasonable invasion of third party’s personal privacy to release their personal information which was redacted or withheld pursuant to s. 20? [59] The focus of the analysis is ensuring that the individual can obtain access to their personal information held by a public body and, where that document involves personal information of a third party, the disclosure would not be an unreasonable invasion of the third party’s personal privacy. [60] The section 2(a) right of access to information held by a public body about an individual may come in conflict with the s. 2(c) right to protection of a third party’s privacy in their personal information. It is in that circumstance that the public body, and in this case the Court, must reconcile the dual purposes of the Act. [61] PPS has the burden to prove that the Applicant has no right of access to a record (s. 45(1)) but where the record contains personal information about a third party, the Appellant must prove that the disclosure would not be an unreasonable invasion of the third party’s personal privacy. [62] Section 20 is all about what constitutes an unreasonable invasion of a third party’s personal privacy. [63] Section 20(2) sets out a non-exhaustive list of eight relevant circumstances to be considered when balancing the two rights. The Appellant focussed on s. 20(2)(c): “The personal information is relevant to a fair determination of the applicant’s rights”. [64] PPS focussed on ss. 20(2)(e) to (h) inclusive: unfairly exposure of the third party to financial or other harm; the personal information was supplied in confidence; the personal information is likely to be inaccurate or unreliable; and the disclosure may unfairly damage the reputation of a person referred to in the record. [65] Section 20(3) lists nine types of personal information, the disclosure of which is “presumed to be” an unreasonable invasion of a third party’s personal privacy. [66] Section 20(4) lists nine circumstances where the disclosure of a person’s personal information is “not” an unreasonable invasion of a third party’s personal privacy. Seven of the nine circumstances are not relevant to the matrix of this case. The two that may be relevant provide that disclosure is not an unreasonable invasion where the third party has in writing consented to disclosure, or where an enactment authorizes the disclosure. [67] With respect to the consent provision, the documents for which disclosure is sought are over 30 years old. Counsel for PPS submits that it attempted to contact the third parties, in respect of whom documents have been redacted or withheld. PPS acknowledges that it was unable to locate most of the third parties and has no information even about whether they are alive. No evidence was tendered to the Court, in camera or otherwise, of the nature of steps undertaken to contact, or attempt to contact, the parties whose names are redacted, or which were located. PPS did provide one letter from a third party, objecting to the disclosure of his personal information. That third party was a witness in the trial of the Appellant. [68] An analytical framework for deciding a s. 20 exception is set out in Justice Moir’s decision in House and involves four questions: i. Is the requested information “personal information” within s. 3(1)(i)? If not, that is the end of the analysis. ii. Are any of the conditions of s. 20(4) satisfied? If so, that is the end of the analysis. iii. Is the personal information presumed to be an unreasonable invasion of personal privacy pursuant to s. 20(3)? iv. In light of any s. 20(3) presumption, and in light of any burden upon the appellant established by s. 45(2), does the balancing of all relevant circumstances, including those listed in s. 20(2), lead to the conclusion that disclosure would result in an unreasonable invasion of privacy? [69] The first question depends upon the meaning of “personal information”. It is defined in s. 3(1)(i) as follows: “personal information” means recorded information about an identifiable individual, including (i) the individual’s name, address or telephone number, (ii) the individual’s race, national or ethnic origin, colour, or religious or political beliefs or associations, (iii) the individual’s age, sex, sexual orientation, marital status or family status, (iv) an identifying number, symbol or other particular assigned to the individual, (v) the individual’s fingerprints, blood type or inheritable characteristics, (vi) information about the individual’s health-care history, including a physical or mental disability, (vii) information about the individual’s educational, financial, criminal or employment history, (viii) anyone else’s opinions about the individual, and (ix) the individual’s personal views or opinions, except if they are about someone else; [70] PPS submits that a party’s name and address [s. 3(1)(i)(i)] is personal information and the Appellant has no right of access unless he satisfies the Court that the Act authorizes disclosure. [71] In addition, PPS argues that information about the victim’s health-care history [s. 3(1)(i)(vi)], and a third party’s personal views and opinions [s. 3(1)(i)(ix)] fall within the realm of personal information. [72] For the most part, PPS’s claims for exemption under s. 20(3)(b) relate to redaction of the name of the third party, or the withholding of the documents of a third party, on the basis that the document contains the name of the third party and their observations (facts) about the Appellant. [73] The Court has a problem with this submission. The documents redacted and withheld based on s. 20(3)(b) are not about the third party but about the Appellant and his involvement in the crime for which he was convicted, based upon their evidence. They are not opinion about an individual, they are statements of fact about the Appellant. To the extent that they may be the third party’s personal views or opinions as defined in s. 3(1)(i)(ix), they are not personal information because they are about the Appellant, and therefore not personal information. [74] For the most part, the only third party personal information is the name of the victim and other trial witnesses. One exception is the note of the doctor, upon whom the victim attended shortly after the sexual assault, which note contains some of the evidence given by the examining doctor at the trial. That note is not the type of record that would have been or is now protected from disclosure under ss. 278.1 to 278.91 of the Criminal Code, as discussed in R v Mills, [1999] 3 SCR 668. [75] Of the documents redacted solely on the basis that they contain the name of a witness or the victim and their “opinion” (factual evidence) about the Appellant, the only portion of the document that may be subject to redaction, pursuant to s. 20(3)(b) on the House analysis, could be the name of the witness or the victim. [76] The second House question asked whether any of the conditions of s. 20(4) are satisfied. The redactions or withholding of documents were in respect of third parties whose written consent to disclosure was not received. [77] PPS submits that no enactment authorizes the release of the redacted or withheld information. It relies upon the affidavit of Ms. Smith outlining the changes in the Criminal Code to protect witnesses and victims of crime from having their information unnecessarily released. [78] The submission is based upon the changes in the Criminal Code, considered in detail in Mills where the court recognized the balancing of the rights of privacy of victims and witnesses with the accused’s right to a full answer and defence, protected by s. 7 of the Charter. [79] While the Court agrees with the PPS that there are limits recognized in the Criminal Code and by the courts with respect to what information of a victim or witness is disclosable to an accused person, none of the information redacted or withheld by PPS in this case would qualify as the type of Crown information protected from disclosure by reason of its interference with the reasonable right to privacy protected by s. 8 of the Charter. [80] PPS submits that the matter before this Court is not in relation to an active prosecution or appeal, both of which were concluded almost 35 years ago. PPS submits that, even in an active prosecution, the Appellant does not unlimited access to information, pursuant to the Criminal Code and s. 7 of the Charter. [81] While acknowledging that the redacted or withheld documents relate to the victim and witnesses who participated in the trial, PPS submits that it is in the interest of justice that victims and witnesses be afforded the comfort of knowing that their involvement in the judicial system will come to an end. Otherwise such persons may be unwilling to participate in the process in future. This latter submission is relevant to the fourth House question. [82] PPS’s submission is complicated by the fact that there is no record in the materials filed with the Court as to what was disclosed by the Crown to the Appellant during the earlier criminal proceedings. However, there are the transcripts of the preliminary hearing and trial before the Court, which set out the information about which the witnesses and victim testified. Their evidence was the same as the information in the redacted and withheld documents. I infer from the Appellant’s trial counsel’s objection to evidence being received from one Crown witness for non-disclosure of his evidence before trial, that the statements of the other witnesses were disclosed. [83] Also relevant is the fact that many of the redacted or withheld documents appear to be sworn witness statements obtained, and submissions made, by the Appellant and provided to PPS either directly by the Appellant’s then-counsel in an effort to get PPS to charge the victim with perjury or indirectly in respect of the mercy applications. [84] This Court has difficulty with PPS’s submission that an enactment does not authorize disclosure of the evidence tendered at a criminal trial against the Appellant or submitted by PPS in response to the Appellant’s mercy applications made pursuant to the Criminal Code. While the entitlement to disclosure of the Crown’s case before the Charter was based on the common law, that common law became a right recognized and protected by the Charter. [85] While the Crown’s proceeding against the Appellant may have ended more than 30 years ago, the Appellant’s intention to obtain through his FOIPOP application “new matters of significance” that were not “previously considered” to found an application pursuant to s. 696.1 of the Criminal Code, is a statutory right. [86] Between the first and second hearing dates, PPS provided the Court with case law which refers to this issue: Victoria Police Department, Re, 1995 CanLII (BCIPC)(Order F58-1995). The applicant was described as a dangerous person, a convicted murderer, still in prison, seeking disclosure of the police file relating to his conviction. [87] The Commissioner, citing several sections of the BC FOIPOP legislation, upheld the redaction and withholding of the requested material pursuant to four sections exempting material from disclosure, including that disclosure could reasonably be expected to threaten a person’s safety and interfere with public safety. His “discussion” that a request for disclosure based on an intent to file a s. 696.1 of the Criminal Code application respecting a completed prosecution did not constitute an entitlement to use the FOIPOP Act to access these records, was short and without reference to any authority. [88] With respect, I do not agree with that conclusion. [89] The third House question is whether any of the personal information is presumed to be an unreasonable invasion of privacy pursuant to s. 20(3). [90] PPS submits that the personal information of the third parties, as above identified, is presumed to be an unreasonable invasion of a person’s privacy on the basis that it is personal information that “was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecution the violation or to continue the investigation”. [91] Said differently, PPS submits that the information was gathered by the police as part of the investigation and prosecution of the Appellant and that its disclosure ceased to be necessary when the prosecution and investigation ended. [92] Based on this Court’s review of the documents redacted or withheld on the basis of s. 20(3)(b), only one withheld document contains a statement by a third party which appears never to have been acted upon by the PPS in the criminal proceeding nor disclosed to the Appellant. That document identifies a person who did not testify. The document’s purpose appears to be relevant to the question of whether the Crown should continue the prosecution – one of the core elements of prosecutorial discretion discussed in the third issue. [93] For all other documents, for which exception is claimed on the basis on an unreasonable invasion of personal privacy of a third party, the third parties testified at trial. There is no basis to find (nor was it submitted) that the disclosure of their statements would not have been necessary under the common law, later codified in the Charter, as part of the prosecution of the Appellant. [94] Said differently, with the exception of one document, which did not form part of the evidence of trial, and which appears relevant to the PPS’s decision to continue the prosecution, the statements were required by law, now codified, to be disclosed in the criminal proceeding. [95] In the event that I am in error in finding that all but one document in the PPS file, for which exemption is claimed based on s. 20 of the Act, is either not personal information (except for the name of the third party), or, in the case of witnesses who have not been found and not given written consent to disclosure, is required by the Charter to disclosed to the Appellant, then I agree with PPS that the purpose for which they were compiled was in respect a violation of the law and disclosure is not now necessary for prosecution or continued investigation. The remaining personal information (that is, the name of the witnesses and victim) is presumed to be an unreasonable invasion of that third party’s personal privacy. [96] The fourth House question requires that I consider the relevant factors in s. 20(2) in determining whether the disclosure of personal information, presumed to be an unreasonable invasion of personal privacy, does constitute an unreasonable invasion of a third party’s personal privacy. The burden is on the Appellant. [97] The presumption of an unreasonable invasion of personal privacy in s. 20(3) does not constitute the end of the analysis. Clearly s. 20(2) requires that, where a presumptive finding is made, pursuant to s. 20(3), the issue of whether the disclosure of personal information constitutes an unreasonable invasion of a third party’s personal privacy, must still be considered based upon all the relevant circumstances. [98] In this case, in respect of all but one of the documents for which exemption is claimed by reason of s. 20 of the Act, the Court is satisfied the personal information of the third parties consists of the name of the witnesses and the victim who provided information about the Appellant relevant to the criminal prosecution. The statements and evidence could not have been given with an expectation of confidentiality. Their evidence was the subject matter of a public process. Many of the statements of witnesses and documents were provided to PPS by the Appellant’s various counsels. [99] There is no basis for finding that the personal information is inaccurate or unreliable. There is no basis for finding that the reputation of any third party would be damaged at this point. The Court was not directed to any sensitive personal information, relevant to the prosecution, which might now cause harm to the victim, or a witness, or to their reputation. There is no basis for finding that any third party witness would be unfairly exposed to financial or other harm. [100] Because counsel for the Appellant claimed at the time he appealed his conviction, and in the mercy applications, that the victim committed perjury, he could conceivably have commenced civil proceedings against her, but the limitation periods for any such proceeding have long expired. There is no basis for finding that she would now be exposed unfairly to financial or other harm. [101] The Appellant seeks disclosure for the purpose of obtaining new material of significance that might justify an application pursuant to s. 696.1 of the Criminal Code. Part of his claim that new information exists is found in the affidavit of Officer Larry Clare to the effect that the Crown had concerns about the credibility of the complainant, who therefore swore the Information herself, even though the Crown appears to have conducted the prosecution from the beginning. It is a relevant consideration of some significance that the Appellant seeks disclosure of the PPS file related to the investigation and prosecution of him, and the response to his initial application for mercy of the Crown, to enable him to seek a fair determination of his rights pursuant to s. 696.1 of the Criminal Code. [102] It is also a valid consideration that the disclosure of the victim’s name may cause her name to be reintroduced to the public more than 35 years after the trial. [103] The witnesses’ evidence and statements was not such that disclosure at this time would cause any of them distress, harm or loss of reputation. Furthermore, most of them could not be found when PPS attempted to notify them of the Appellant’s application. [104] Disclosure of all the documents redacted or withheld on the basis of s. 20 of the Act, with the exception of document number 6 in the mercy file, would not constitute an unreasonable invasion of any third party’s personal privacy. [105] In my view, this conclusion is consistent with the analysis of s. 20 exemption claims in French v Dalhousie University, 2002 NSSC 22; Doctors Nova Scotia v Nova Scotia, 2006 NSCA 59; Griffiths v Nova Scotia, 2009 NSCA 48, and Coates v Capital District Health Authority, 2012 NSCA 4. Issue #4 Could the disclosure of information redacted or withheld be reasonably expected to reveal any information related to or used in the exercise of prosecutorial discretion? [106] PPS tendered the Affidavit of Denise Smith. Paragraphs 7 to 18 describe her understanding of prosecutorial discretion under three headings: prosecutorial discretion, the Crown’s file, and disclosure of the Crown’s file. It contains the substance of counsel’s submissions to the Court during the three days of hearing. [107] It essentially opines that everything in the Crown’s file can be reasonably expected to reveal information related to or used in the exercise of prosecutorial discretion, and should therefore be exempt from disclosure pursuant s. 15(1)(f) of the Act. Counsel for PPS reiterated in her oral submissions that this is PPS’s position. [108] Ms. Smith’s affidavit reads in part: 7. A Crown uses his or her discretion in making any and all decisions while conducting a criminal prosecution. A Crown’s discretion is therefore exercised during all stages of a criminal case. … 9. … A Crown’s discretion is a decision to be made which has an impact on the accused. It is also exercised with respect to many aspects of the conduct of the prosecution, including, but not limited to: a. Whether the correct charge was laid, or whether additional charges ought to be brought; b. Whether to proceed by way of summary or indictable offence; c. What penalty or sentence to seek; d. Whether a publication ban should be sought; e. Whether release should be opposed or terms of release sought; and f. A variety of decisions regarding a preliminary hearing or trial strategy.(Court’s emphasis) … 13. The file received from the police is used in the exercise of the Crown’s discretion. In addition, as the Crown Attorney adds to the file, including research materials, and their own notes and memos, those materials also become part of the documentation used by the Crown Attorney in the exercise of their discretion. … 15. The exercise of Crown discretion is not always evident from the file materials, through a given note or sequence of notes, but rather the Crown’s discretion may be revealed through the course of action taken. Notations which might appear to be innocuous might in fact have a significant bearing on the Crown’s discretion or, in fact, represent the exercise of the Crown’s discretion. 16. The materials contained in a Crown’s file go to the heart of prosecutorial discretion. (Court’s emphasis) The Crown’s file 17. Detailed Crown notes are an essential part of the Crown file and key to any prosecution. Crown notes are made throughout the prosecution, and can relate to the exercise of the Crown’s discretion regarding many different aspects of the case. The notes are important as the same Crown who is involved in the earlier stages of the prosecution may not necessarily be the Crown who takes the case to trial, or on appeal. 18. If Crown Attorneys had the knowledge that their notes could be disclosed it could result in them making fewer notes. This may lead to poor communication between Crown Attorneys where the file is transferred from one to another, resulting in poor representation by the Crown in protecting the public interest in prosecuting the crime. 19. Disclosure of a Crown Attorney’s notes may lead to misinterpretation if taken out of context. [109] As indicated earlier in this decision, there were extremely few working notes of Crown counsel in these files. Crown counsel, at trial and on appeal, could not have conducted the prosecution and appeals without far more notes than are in the file disclosed to the Court. [110] Most of the notes for which the Crown sought exemption from disclosure were marginal notes on appellate factums and case law related to the appeal of the conviction. [111] Prosecutorial discretion is not defined in the Act. PPS refers the Court to paras 20 and 21 in Cummings, a decision based on a FOIPOP application for the Crown’s file by an accused in respect of two charges: one in which she was found not criminally responsible and a second which was withdrawn and therefore dismissed. Justice Wright accepted the definition in the BC FOIPOP legislation. In his view, this definition was consistent with the comments at paras 46 and 47 in Kreiger v Law Society of Alberta, 2002 SCC 64. [112] Kreiger was not a decision respecting FOIPOP legislation. It dealt with a Crown prosecutor’s challenge to the jurisdiction of the Provincial Bar Society to review his conduct in a case. In Kreiger, the complaint involved the Crown’s failure to disclose relevant exculpatory evidence to an accused. [113] The Supreme Court confirmed the Law Society’s jurisdiction to review the prosecutor’s conduct. The Court held that conduct involving the exercise of prosecutorial discretion would not be reviewable, except in cases of flagrant impropriety. It articulated what did and did not constitute the exercise of prosecutorial discretion. The Court held that the prosecutor’s conduct in Kreiger did not constitute the exercise of prosecutorial discretion. [114] Paragraphs 42 to 47 of Kreiger describes what the exercise of prosecutorial discretion does and does not encompass as: D. Prosecutorial Discretion 42 In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorial discretion. This discretion is generally exercised directly by agents, the Crown attorneys, as it is uncommon for a single prosecution to attract the Attorney General’s personal attention. 43 “Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence. 44 L’Heureux-Dubé J., in quoting David Vanek’s work, “Prosecutorial Discretion” (1987-88), 30 Crim. L.Q. 219, at p. 219, said that “[p]rosecutorial discretion refers to the discretion exercised by the Attorney‑General in matters within his authority in relation to the prosecution of criminal offences” (Power, supra, at p. 622). 45 As discussed above, these powers emanate from the office holder’s role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies. 46 Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General. 47 Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [115] From Kreiger, it is clear that prosecutorial discretion does not include every Crown action in the conduct of a criminal prosecution. [116] The Crown’s submission that virtually all, if not all, of the criminal prosecution file relates to or is used in the exercise of prosecutorial discretion is not the law as described in Kreiger. The fact that the entire contents of the prosecution file may influence whether the Crown proceeds with a charge or what charges, or whether it stays a charge, or discontinues a prosecution, or determines what position to take with respect to sentence, does not protect from disclosure under s.15(1)(f) the steps taken in the investigation of the offence, the preparation for trial, the conduct of the trial, the preparation for appeal and the conduct of the appeal. [117] Other recent decisions, not related to FOIPOP disclosure, that provide useful guidance with respect to what constitutes the exercise of prosecutorial discretion and distinguishes it from other actions related to Crown prosecutor’s tactics and conduct before the Court are R v Gill, 2012 ONCA 607, and R v Nixon, 2011 SCC 34. [118] Related to PPS’s claimed exemption from disclosure pursuant to s. 15(1)(f) is the relationship between the Act and the common law principles of litigation privilege and solicitor-client privilege. While not articulated by PPS as a reason to refuse disclosure in its written or oral argument, paras 17 to 21 of the Smith affidavit do contain practices and reflect concerns that relate to the principle of litigation privilege, referred to as “work product privilege” in the criminal context, and solicitor-client privilege. They were the subject matter of the decision of the Supreme Court in Ontario v Criminal Lawyer’s Association, 2010 SCC 23, decided under Ontario’s FOIPOP legislation. [119] In determining which of the documents in this case should be exempt from disclosure by reason of s. 15 and s. 16 (solicitor-client privilege) of the Act, I have taken into consideration the analysis contained in the text by Robert Hubbard, Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada, volume 2 (Toronto: Canada Law Book, looseleaf to July 2013) ch. 12 and, in particular, section 12.270. The Appellant is not entitled by means of this Act to receive disclosure than he would be entitled to receive under the Charter or criminal law. [120] Some documents, redacted and withheld pursuant to s. 15(1)(f), could reasonably be expected to reveal information relating to or used in the exercise of prosecutorial discretion. [121] Other documents were redacted that reveal the thought processes of PPS in the conduct of the trial and appeals, in particular, the redacted marginal notes related to the evidence and the law, contained in transcripts, appeal factums, case law, submissions by counsel for the Appellant, and the written advice given by PPS to the Director of Criminal Prosecutions respecting the submissions made by counsel for the Appellant in the mercy applications. PPS is entitled to react or withhold those on the basis of solicitor-client and work product privilege. [122] Other documents redacted or withheld pursuant to s. 15(1)(f) were documents prepared for and provided to PPS by the Appellant’s counsel, or were documents that reflected steps taken by PPS in the conduct of the proceeding and do not reflect the thought processes of PPS during the proceedings. PPS’s claim for exemption from disclosing those documents is denied. Part IV Conclusion [123] A few documents were not disclosed because they were matters of public record and thus outside the scope of the Act pursuant to s. 4(2)(b). This decision makes no order for disclosure of public documents or the documents already in the possession of the Appellant. [124] Appendix A to this decision sets out which documents this Court directs PPS to disclose to the Appellant, and which documents it directs PPS not to disclose. The Appendix is based upon the index of all documents in each of the two files, the criminal prosecution file and mercy file, and called by PPS “FOIPOP Request INDEX SEALED (All Documents)”. [125] Absent agreement between the parties, the Court will hear the parties on costs by written submission at their request. Warner, J. Appendix A Of the 111 documents in the criminal file and 91 documents in the mercy file, 104 were released by the Crown; 57 were redacted and 41 were withheld. During the hearing, it became apparent that the Appellant had 17 of the redacted documents and 10 of the withheld documents. This Appendix itemizes which of the remaining 40 redacted documents and 31 withheld documents that are ordered to be disclosed and ordered not to be disclosed. Redacted Documents Documents redacted by reason of s. 20 and directed to be disclosed without redaction: Criminal File: Tabs 5 and 12. Mercy File: Tabs 2, 3, 12, 29, 30, 31, 32, 37, 38, 52, 53, 56, 59, 62, 69, 73, 75, 83, 84, 85, 86, 87, 88, 89 and 91. Documents redacted on the basis of s. 15(1)(f) that are ordered to be disclosed without redaction: Criminal File: Tab 57. Mercy File: Tab 7. Documents redacted by the Crown on the basis of s. 15(1)(f), and privileged notes containing the thought processes of the Crown that are ordered not be unredacted: Criminal File: Tabs 11, 24, 28, 32, 46, 47, 63, 64, 76, 108 (out of scope) and 110. Withheld Documents Of the 31 remaining withheld documents, those that constitute statements and records of the witnesses and the victim, or documents originating with counsel for the Appellant, are ordered to be disclosed. Those that contain analytical notes, and communications that relate to prosecutorial advice are not ordered to be disclosed. Withheld documents ordered to be disclosed: Criminal File: Tabs 3, 4, 7, 8, 9, 10, 50, 100, 101, 102, 103, 104, 105 and 107. Mercy File: Tabs 5, 19, 34, 40, 46 and 77. Withheld documents ordered not to be disclosed: Criminal File: Tabs 14 (out of scope), 15 and 106. Mercy File: Tabs 6, 43, 44, 45, 51, 58, 76 and 78. SUPREME COURT OF Nova Scotia Citation: Fitzgerald v Public Prosecution Services, 2014 NSSC 183 Date: 2014-05-15 Docket: Halifax No. 421887 Registry: Halifax Between: Gordon Howard Fitzgerald Appellant v. Her Majesty the Queen in right of Nova Scotia (Public Prosecution Service) Respondent Judge: The Honourable Justice Gregory M. Warner Heard: March 27, April 11 and April 25, 2014, in Halifax, Nova Scotia Counsel: Gordon Howard Fitzgerald by his Power of Attorney L. Allison Jones, self-represented Agnes E. MacNeil and Debbie Brown, counsel for the respondent ERRATUM: By the Court: [1] In the first sentence of paragraph 16, the word “the” before “Mr. Fitzgerald” was replaced with “that”. [2] In the second sentence of paragraph 22, the phrase “except for marginal Crown notes” is deleted. [3] In the last sentence of paragraph 24, the phrase “become lost” was replaced with “be lost”. [4] In the first sentence of paragraph 47, the word “become” is inserted before the phrase “complying with the Act.” [5] In the first line of paragraph 117, the word “provides” was replaced with the word “provide”. [6] In the first sentence of paragraph 124, the word “set” was replaced with the word “sets”. [7] In the first sentence of the Appendix, the number “104” was replaced with “106” in the phrase “104 were released by the Crown”. Warner J.