Canada (Minister of Public Safety and Emergency Preparedness) v. Maydak

Canada (Minister of Public Safety and Emergency Preparedness) v. Maydak Court (s) Database Federal Court of Appeal Decisions Date 2005-05-19 Neutral citation 2005 FCA 186 File numbers A-518-04 Notes Digest Decision Content Date: 20050519 Docket: A-518-04 Citation: 2005 FCA 186 CORAM: NOËL J.A. NADON J.A. MALONE J.A. BETWEEN: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Appellant and KEITH MAYDAK Respondent Heard at Vancouver, British Columbia, on May 11, 2005. Judgment delivered at Ottawa, Ontario, on May 19, 2005. REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: NOËL J.A. MALONE J.A. Date: 20050519 Docket: A-518-04 Citation: 2005 FCA 186 CORAM: NOËL J.A. NADON J.A. MALONE J.A. BETWEEN: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Appellant and KEITH MAYDAK Respondent REASONS FOR JUDGMENT NADON J.A. [1] The appellant seeks to set aside a decision of Rouleau J. of the Federal Court dated August 24, 2004 who concluded that the Royal Canadian Mounted Police's (the "RCMP") refusal to disclose to the respondent personal information, sought under subsection 12(1) of the Privacy Act, R.S.C., 1985, c. P- 21 (the "Act"), could not be justified under paragraph 22(1)(a) of the Act. [2] Paragraph 22(1)(a) of the Act, which is at the heart of the dispute herein, provides as follows: 22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) (a) that was obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to (i) the detection, prevention or suppression of crime, (ii) the enforcement of any law of Canada or a province, or (iii) activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act, if the information came into existence less than twenty years prior to the request; [Emphasis added] 22. (1) Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) : a) soit qui remontent à moins de vingt ans lors de la demande et qui ont été obtenus ou préparés par une institution fédérale, ou par une subdivision d'une institution, qui constitue un organisme d'enquête déterminé par règlement, au cours d'enquêtes licites ayant trait : (i) à la détection, la prévention et la répression du crime, (ii) aux activités destinées à faire respecter les lois fédérales ou provinciales, (iii) aux activités soupçonnées de constituer des menaces envers la sécurité du Canada au sens de la Loi sur le Service canadien du renseignement de sécurité [Le souligné est le mien] [3] In the learned Judge's view, as the respondent's personal information was not information obtained by the RCMP "in the course of lawful investigations", the section 22(1)(a) exemption did not apply. [4] In my opinion, the decision cannot stand. There can be little doubt that the information at issue was obtained by the RCMP for the specific purpose of giving effect to the extradition proceedings commenced by the Department of Justice against the respondent, at the request of the United States of America. More particularly, the United States was seeking the respondent's extradition in order to prosecute him for a violation of supervised release resulting from a 1994 fraud conviction. [5] Following the request made by the United States, Ms. Cathy Chalifour of the Department of Justice, Counsel, International Assistance Group, requested the RCMP's assistance in connection with the United States' request for the respondent's extradition. It is in that specific context, that the information at issue was obtained by the RCMP. [6] I am satisfied that the personal information in respect of which the respondent seeks disclosure is information obtained by the RCMP for the purpose, inter alia, of locating and arresting the respondent so as to facilitate his extradition to the United States if the extradition proceedings were successful. [7] The thrust of the Judge's reasons for concluding as he did appears at paragraphs 23 to 26 of his decision where he says: 23. Having reviewed the file, it is clear to me that the RCMP simply received information from the Department of Justice of Canada that the United States sought the Applicant for a supervised release violation having submitted an extradition request. 24. A review of the documents clearly indicates that the only actions taken involved placing, and subsequently removing, the Applicant's name from the CPIC, a Canadian police database, and communicating by email with the Department of Justice relating to the status of the extradition proceedings. 25. Certainly, this type of activity does not constitute an investigation within the meaning of the statute exempting the information from disclosure. 26. While there may be cases where the RCMP did conduct an investigation to assist an extradition proceeding, it appears clear that the RCMP Interpol did not do so in this case. In fact, it appears to have taken no investigatory actions. [8] Two comments regarding these paragraphs are in order. The first one is that the fact that the information obtained by the RCMP may be of no consequence or great value is, in my view, irrelevant to the determination which had to be made under paragraph 22(1)(a) of the Act. Whatever the value of the information, if it was obtained in the circumstances described in paragraph 22(1)(a), the exemption to disclosure applied. [9] Secondly, the Judge appears to have taken a narrow view of the word "investigation". The Oxford English Dictionary, 1978 edition, Volume V, H-K at page 457, defines the word "investigation" as follows: The action of investigating; the making of a search or inquiry; systematic examination; careful and minute research. [10] Black's Law Dictionary (5th edition) defines the word "investigate" in the following terms: To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry. [11] Hence, the ordinary meaning of the words "investigation" and "investigate" is a broad one, certainly broad enough, in my view, to encompass the activities of the RCMP in obtaining the information in respect of which the respondent seeks disclosure. I also find support for the view that the word "investigation" must be given a broad meaning in the Supreme Court of Canada's decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773. [12] In Lavigne, supra, the issue before the Supreme Court of Canada was whether disclosure of personal information sought by the respondent could reasonably be expected to be injurious to the conduct of lawful investigations by the Commissioner of Official Languages. [13] In order to decide that question, the Supreme Court had to examine paragraph 22(1)(b) and subsection 22(3) of the Act where the words "lawful investigations" and "investigation" appear. These provisions read as follows: 22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) ... (b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (i) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation; or ... (3) For the purposes of paragraph (1)(b), "investigation" means an investigation that (a) pertains to the administration or enforcement of an Act of Parliament; (b) is authorized by or pursuant to an Act of Parliament; or (c) is within a class of investigations specified in the regulations. 22. (1) Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) : .. b) soit dont la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment : (i) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée, (ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle, (iii) des renseignements obtenus ou préparés au cours d'une enquête; ... (3) Pour l'application de l'alinéa (1)b), « enquête » s'entend de celle qui : a) se rapporte à l'application d'une loi fédérale; b) est autorisée sous le régime d'une loi fédérale; c) fait partie d'une catégorie d'enquêtes précisée dans les règlements. [14] With respect to the word "investigation" which appears at subsection 22(3), the Supreme Court made the following comments at page 807: That definition does not suggest that the word is limited to a specific investigation, or an investigation that is circumscribed in time. Indeed, Parliament has not limited the scope of that expression by any qualifier whatever. None of the paragraphs of s. 22(3) limits the word "investigation" to investigations that are underway, or excludes future investigations or the investigative process in general from its protection. It therefore seems, prima facie, that the word retains its broad meaning and may refer equally to investigations that are underway, are about to commence, or will take place. We shall now consider whether Parliament restricted the scope of that definition for the purpose of the application of the exception to disclosure set out in s. 22(1)(b). [emphasis added] [15] With respect to the word "investigations" found at paragraph 22(1)(b), the Supreme Court remarked as follows at page 808: 54. In short, there is nothing in s. 22(1)(b) that should be interpreted as restricting the scope of the word "investigation" to investigations that are underway or are about to commence, or limiting the general meaning of that word to specific investigations. There is therefore no justification for limiting the scope of that section. [16] As the meaning of the word "investigations" found at paragraph 22(1)(a) and 22(1)(b) of the Act is without doubt, the same, I am satisfied that the information obtained by the RCMP was obtained for the making of a search or enquiry, i.e., for the purpose of locating and arresting the respondent so as to give effect to the extradition proceedings. I therefore agree with the appellant's submission that the RCMP's activities in the present matter which, in effect, consisted in monitoring the respondent's progress throughout the extradition process and gathering information regarding that process, constitute an investigation within the meaning of paragraph 22(1)(a) of the Act. [17] In my view, considering the meaning of the word "investigations" found at paragraph 22(1)(a) of the Act and considering the nature of the activities in the course of which the RCMP obtained the personal information at issue, the Judge was clearly wrong to conclude, as he did, that the information was not obtained in the course of an "investigation". Hence, as the Judge failed to provide the correct interpretation, I would allow the appeal with costs, set aside his decision and, rendering the decision which ought to have been rendered, I would dismiss the respondent's judicial review application. [18] One last point. At the end of his submissions before us on behalf of the appellant, Mr. Workun sought our leave to amend the style of cause so as to substitute as appellant the Minister of Public Safety and Emergency Preparedness for the Solicitor General of Canada. We granted his motion and, as a result, the style of cause will henceforth reflect the Minister of Public Safety and Emergency Preparedness as a party. "M. Nadon" _____________________________ J.A. "I agree. Marc Noël J.A." "I agree. B. Malone J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD (Appeal from an Order of the Federal Court, dated August 24, 2004. File T-73-04) DOCKET: A-518-04 STYLE OF CAUSE: Minister of Public Safety and Emergency And Emergency Preparedness v. K. Maydak PLACE OF HEARING: Vancouver, B.C. DATE OF HEARING: May 11, 2005 REASONS FOR JUDGMENT BY: NADON J.A.. CONCURRED IN BY: NOËL J.A.. MALONE J.A. DATED: May 19, 2005 APPEARANCES: Mr. Curtis Workun FOR THE APPELLANT Mr. Keith Maydak DID NOT APPEAR FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. John Sims FOR THE APPELLANT Deputy Attorney General of Canada Vancouver, British Columbia