T‑421‑04
2006 FC 132
The Information Commissioner of Canada (Applicant)
v.
The Minister of Industry (Respondent)
Indexed as: Canada (Information Commissioner) v. Canada (Minister of Industry) (F.C.)
Federal Court, Kelen J.—Ottawa, January 25, 26 and February 13, 2006.
Access to Information — Judicial review of Chief Statistician of Canada’s refusal to disclose individual census returns to Algonquin Bands seeking to research, validate Aboriginal land claim — Chief Statistician relying on Statistics Act, s. 17(1), prohibiting disclosure of individual returns subject to exceptions under s. 17(2) — Whether information sought by Bands “information available to the public under any statutory or other law” pursuant to Statistics Act, s. 17(2)(d) — Here, information available to member of public (Algonquin Bands) pursuant to statutory or other law (Constitutional Act, 1982, s. 35; Privacy Act, s. 8(2)(k); Crown’s common‑law duties towards Aboriginal people) — Application allowed.
Constitutional Law — Aboriginal and Treaty Rights — Three Algonquin Bands seeking disclosure of individual census returns to research, validate Aboriginal land claim — Crown having common‑law duty to act honourably, in good faith, as fiduciary with respect to Aboriginal land claims — These duties, now part of Constitution Act, 1982, s. 35, requiring Crown to disclose records sought — In event Statistics Act, s. 17, prohibiting disclosure of returns, that section inconsistent with Constitution Act, 1982, s. 35, of no force or effect pursuant to s. 52 of that Act as inconsistency not justified.
Privacy — Three Algonquin Bands seeking disclosure of individual census returns pursuant to Privacy Act, s. 8(2)(k) — That section, allowing disclosure of personal information to Indian band for purpose of researching, validating land claim, statutory law within meaning of Statistics Act, s. 17(2)(d) (exception to Statistics Act, s. 17(1) prohibiting disclosure of individual census records).
Construction of Statutes — Statistics Act, s. 17(2)(d), providing exception to prohibition against disclosing individual census returns — Phrase “information available to the public” denoting records obtainable by general public, members or sections thereof, having right of access.
This was an application for judicial review of the Chief Statistician of Canada’s refusal to disclose individual census returns. The refusal was made on the basis of subsection 17(1) of the Statistics Act, which prohibits the disclosure of such returns. The disclosure of the census records in issue was sought by Algonquin First Nation Bands researching and validating an Aboriginal land claim. Such a claim requires evidence of community continuity through time in terms of membership, land use and occupancy, and because no Band Lists existed before 1951, the records were allegedly a critically important source of proof. According to the Chief Statistician, paragraph 8(2)(k) of the Privacy Act, which allows the disclosure of personal information to an Indian band for the purpose of researching or validating a land claim, was subject to subsection 17(1) of the Statistics Act.
Held, the application should be allowed.
The census records sought were necessary and important for the Algonquin Bands to properly document their land claim. However, in order to determine whether the records were subject to production under the Access to Information Act, regard was had to section 24 of that Act, which provides that the head of a government institution shall refuse to disclose information where disclosure is restricted by or pursuant to any provision set out in Schedule II of the Act. Section 17 of the Statistics Act is one such provision, and it prohibits disclosure of information obtained under the Act subject to the discretionary exceptions under subsection 17(2). Paragraph 17(2)(d) allows the Chief Statistician to disclose “information available to the public under any statutory or other law.” The question was whether the information sought met this criteria.
Section 35 of the Constitution Act, 1982, which protects Aboriginal and treaty rights, is “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act. This is because the Crown has a common‑law duty to act honourably, in good faith and as a fiduciary with respect to the Algonquin Bands’ land claim, duties which have also been constitutionalized to the extent that they relate to the Crown’s legal obligations under section 35 of the Constitution Act, 1982 with respect to Aboriginal land claims. Paragraph 8(2)(k) of the Privacy Act is also statutory law within the meaning of paragraph 17(2)(d) of the Statistics Act.
As to the meaning of the phrase “information available to the public” in paragraph 17(2)(d) of the Statistics Act, the word “public” is used in that phrase as a noun. According to the Canadian Oxford Dictionary, the noun “public” has three meanings: the entirety of the community, members of the community, or a section of the community sharing a common status or interest. Each of these meanings is sufficient to meet the definition of “public” in paragraph 17(2)(d). The definition of the adjective “available” in that same dictionary suggested that the words “information available to the public” denote records capable of being obtained by the entire general public, or by members or sections thereof. To be capable of obtaining a given record requires a right of access.
For these reasons, the information sought by the Algonquin Bands was “information available to the public under any statutory or other law” pursuant to paragraph 17(2)(d) of the Statistics Act and could be disclosed to the Bands pursuant to paragraph 8(2)(k) of the Privacy Act.
In the alternative, if the respondent was prohibited from disclosing the individual census returns pursuant to section 17 of the Statistics Act, that section would have been inconsistent with section 35 of the Constitutional Act, 1982 and, as such, of no force or effect pursuant to section 52 of that same Act unless the inconsistency could be justified, which it could not in the case at bar. It would be absurd if the Crown, which has the obligation to assist Aboriginal peoples with respect to their land claims, could suppress the evidence necessary for the proof of those claims.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A‑1, ss. 4 (as am. by S.C. 1992, c. 1, s. 144(F); 2001, c. 27, s. 202), 19, 24, 41, 42, 48, 49, Sch. II.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 35, 52.
Privacy Act, R.S.C., 1985, c. P‑21, s. 8(2)(k) (as am. by S.C. 2000, c. 7, s. 26).
Statistics Act, R.S.C., 1985, c. S‑19, s. 17(1),(2) (as am. by S.C. 1992, c. 1, s. 131), 18.1 (as enacted by S.C. 2005, c. 31, s. 1).
cases judicially considered
applied:
Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2002] 5 W.W.R. 1; 179 B.C.A.C. 170; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 302 N.R. 34; 2003 SCC 19; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66; (2003), 224 D.L.R. (4th) 1; 47 Admin. L.R. (3d) 1; 24 C.P.R. (4th) 129; 301 N.R. 41; 2003 SCC 8; Pfizer Co. Ltd. v. Deputy Minister of National Revenue for Customs & Excise, [1973] F.C. 3; (1973), 34 D.L.R. (3d) 537 (C.A.); Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; (2005), 252 D.L.R. (4th) 529; 28 Admin. L.R. (4th) 1; 41 C.C.E.L. (3d) 1; 333 N.R. 314; 2005 SCC 30; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241.
considered:
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; (1997), 153 D.L.R. (4th) 193; 99 B.C.A.C. 161; [1998] 1 C.N.L.R. 14; 220 N. R. 161; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; (2004), 245 D.L.R. (4th) 33; [2005] 3 W.W.R. 419; 19 Admin. L.R. (4th) 195; 206 B.C.A.C. 52; 36 B.C.L.R. (4th) 282; 11 C.E.L.R. (3d) 1; 327 N.R. 53; 2004 SCC 73.
authors cited
Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford Univ. Press, 2004, “available”, “public”.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “available”, “public”.
APPLICATION for judicial review of a decision by the Chief Statistician of Canada refusing to disclose individual census returns to Algonquin Bands seeking the records to research and validate an Aboriginal land claim. Application allowed.
appearances:
Daniel Brunet and Jennifer Francis for applicant.
Patrick D. Bendin for respondent.
solicitors of record:
Office of the Information Commissioner of Canada, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Kelen J.: The Information Commissioner seeks review under section 42 of the Access to Information Act, R.S.C., 1985, c. A‑1 (the Access Act) of the refusal of the Chief Statistician of Canada to disclose certain census records for the years 1911, 1921, 1931 and 1941. Subsection 17(1) of the Statistics Act, R.S.C., 1985, c. S‑19 prohibits disclosure of individual census returns. The Information Commissioner submits, inter alia, that the Crown has a constitutional obligation under section 35 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] to disclose this information to an Aboriginal government for the purpose of validating a land claim.
Facts
[2]The following three Algonquin First Nation Bands (the Algonquin Bands) are located in north western Quebec and eastern Ontario:
1. the Barriere Lake Band;
2. the Wolf Lake Band; and
3. the Timiskaming Band.
On November 1, 2001 the Algonquin Bands made an access to information request to Statistics Canada, a part of the Department of Industry, for the census returns of 1911, 1921, 1931, and 1941 for the districts of Nipissing, North Renfrew, Renfrew and Timiskaming in the province of Ontario, and the districts of Pontiac, Témiskamingue, Wright and Yamaska in the province of Quebec.
[3]The access request was made by Mr. Peter D. I. Gangi, Director of the Algonquin Nation Secretariat, which represents the rights of the three Algonquin Bands.
[4]The Algonquin Bands are researching and validating an Aboriginal land claim which requires evidence of community continuity through time in terms of membership, land use and occupancy. Because of an absence of Band Lists before 1951, and other departmental files relating to their history, the census records are allegedly a critically important source of proof.
[5]On November 23, 2001 Statistics Canada denied the access request. The Algonquin Bands’ communities complained to the Information Commissioner who investigated, and on December 3, 2003, reported to the respondent that the complaint was well founded and recommended that the respondent comply by disclosing the census records.
[6]On December 11, 2003, the Chief Statistician advised the applicant that the recommendation would not be followed. On February 26, 2004 the applicant, with the consent of the Algonquin Bands, commenced this review of the respondent’s decision refusing to disclose the census records.
[7]Since this access request, the Statistics Act has been amended [S.C. 2005, c. 31] to release the 1911 census records to the public. The amendment, which is set out in Appendix A, provides that census records will be released to the public after 92 years. Accordingly, for example, the 1921 census records will be released to the public in 2013.
[8]The census enumerators during the material times went from household to household, with a translator, throughout the territory presently occupied by the three Algonquin Bands. The enumerators gathered information including the name, address or geographic location, the racial or tribal origin, the language, and other personal information from each person and family residing in that territory.
[9]The Algonquin Bands making this claim for Aboriginal land title claim must satisfy the following three criteria, as succinctly set out by the Supreme Court of Canada:
i. the land must have been occupied prior to sovereignty;
ii. if present occupation is relied on as proof of occupation pre‑sovereignty, there must be a continuity between present and pre‑sovereignty occupation by their ancestors; and
iii. at sovereignty, that occupation must have been exclusive.
See Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 per Lamer C.J. (as he then was), at paragraph 143.
[10]In this case, the Algonquin Bands have obtained the necessary evidence for the 19th century, but are missing proof of continuity of occupation for the 20th century until 1951, when [at the time the Department of Citizenship and Immigration] the Department of Indian and Northern Affairs first maintained Band Lists. The Algonquin Bands state that the census records constitute accurate proof of who was living in the territories in question, as the enumerators travelled to each Aboriginal settlement in the course of their census record duties.
[11]The Algonquin Bands received funding from 1997 to 2004 from the federal government for the purpose of researching and preparing this land claim. This funding provided for research including:
i that the Algonquin Bands have traditionally used and occupied the territory in question and that this use and occupation continues; and
ii. a description of the extent and location of the land use and occupancy.
The Decision under Review
[12]The decision under review is of the Chief Statistician of Canada, Mr. Ivan P. Fellegi, dated December 11, 2003 advising the Information Commissioner:
. . . I am unable to follow your recommendation in this matter to make the records at issue available to the requestor. For the reasons set out in my letter to you of December 5, 2002 (one year earlier), I strongly believe that such a disclosure is contrary not only to the provisions of the Statistics Act but to the Privacy Act as well.
[13]The “reasons” in the letter dated December 5, 2002 include:
1. that paragraph 8(2)(k) [as am. by S.C. 2000, c. 7, s. 26] of the Privacy Act [R.S.C., 1985, c. P-21] is subject to subsection 17(1) of the Statistics Act so that it does not apply; and
2. that there is no obligation owed to the Algonquin Bands because:
a. it is difficult to identify the Aboriginal rights in this context;
b. the Aboriginal claimants must prove in a court of law that they have an Aboriginal right;
c. there is no fiduciary duty owed by Statistics Canada to the Algonquin Bands;
d. the Algonquin Bands should make use of the 1940 National Registration records which are an alternative source of evidence to validate the land claims.
Confidentiality Undertaking
[14]Dr. James Morrison, a respected and qualified ethnohistorian researching this land claim for the Algonquin Bands, deposed that if the census records are disclosed to him on behalf of the Algonquin Bands, he will undertake to maintain the confidentiality of the census records not related to the ancestors of the Algonquin Bands so that the personal information of non‑Algonquin persons would continue to be kept confidential.
Notice of Constitutional Question
[15]The Information Commissioner served a notice of constitutional question on the provincial attorney generals and the attorney general of Canada with respect to the constitutional effect of section 35 of the Constitution Act, 1982 in the context of the facts in this case. None of the provincial attorney generals have intervened or made any representations.
Relevant Legislation
[16]The relevant legislation is as follows:
1. the Access Act;
2. the Privacy Act;
3. the Statistics Act;
4. the Constitution Act, 1982;
The relevant excerpts of these statutes are set out in Appendix A.
Standard of Review
[17]In the case at bar, the Court is called upon to review a decision of the Chief Statistician on a question of information disclosure under the Access Act. The parties submit, and the Court agrees, that the appropriate standard against which to review the decision is correctness. The Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 held, at paragraph 26, that the Court deciding the appropriate standard of review must apply a pragmatic and functional approach.
[18]The first factor the Court must consider is the presence or absence of a privative clause or statutory right of appeal. This factor was assessed by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66. At paragraph 15, Justice Gonthier held that the Access Act does not contain a privative clause insulating decisions of heads of government institutions on questions of access to information, and sections 41 and 42 of that Act provide a statutory right of judicial review of these decisions before the Federal Court. Accordingly, this factor warrants no deference.
[19]The second factor to consider is the expertise of the decision maker relative to the Court. The finding under review is the statutory interpretation of the Chief Statistician of the interplay of provisions under the Access Act, Privacy Act, Statistics Act, and Constitution Act, 1982. Relative to the reviewing judge, this decision maker has no expertise in statutory interpretation. The Court is better able to decide questions of law than the Chief Statistician. Accordingly, this factor militates no deference to the decision under review.
[20]The third factor to consider is the purpose of the applicable legislation, namely that of the Access Act, Privacy Act, Statistics Act, and Constitution Act, 1982. In Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), the Supreme Court, per Gonthier J., at paragraph 17 determined that the purpose of the Access Act is advanced by adopting a less deferential standard of review.
[21]In my view, the purpose of the secrecy and disclosure provisions of section 17 [s. 17(2) (as am. by S.C. 1992, c. 1, s. 131)] of the Statistics Act are similarly advanced by adopting a less deferential standard of review. The purpose of maintaining the authorized secrecy of records held by Statistics Canada is not advanced by affording greater curial deference to a decision maker who may be inclined to favour his or her own department.
[22]The purpose of section 35 of the Constitution Act, 1982, which includes respecting and recognizing Aboriginal land claims, was not considered at all by the Chief Statistician, even though the Information Commissioner requested the Chief Statistician consider this law in authorizing the disclosure of the census records. Similarly, the Chief Statistician did not consider the purpose of paragraph 8(2)(k) of the Privacy Act, which is to disclose personal information to an Indian band for the purpose of researching a land claim. Therefore, the Court will not accord deference to the Chief Statistician in his decision with respect to the purposes of these four statutes.
[23]The fourth factor to be addressed is the nature of the question, whether it is one of law, fact, or mixed law and fact. The Court will accord greater deference to the head of government’s factual findings, and less deference on questions of legal principle or interpretation. The question in the review at bar involves a statutory interpretation of the interplay of provisions under the Access Act, Privacy Act, Statistics Act, and Constitution Act, 1982 with respect to the census records sought for an Aboriginal land claim. This is a question of law, which warrants no deference.
[24]Having regard to the four factors, the Court agrees that the decision of the Chief Statistician to refuse disclosure should be assessed on the correctness standard.
Burden of Proof
[25]On judicial review, section 48 of the Access Act provides that the head of the government institution bears the burden of establishing that an access request was denied in accordance with law:
48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
Therefore, in the review at bar the Minister must satisfy the Court, on the balance of probabilities, that the decision of the Chief Statistician to refuse access to the census records was correct.
Issues
[26]The issues are as follows:
1. Are the census records necessary for the land claim of the Algonquin Bands?;
2. Are the census records in this case subject to production under the Access Act?;
3. Is section 35 of the Constitution Act, 1982 “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act?;
4. Is paragraph 8(2)(k) of the Privacy Act “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act?;
5. What is “information available to the public” within the meaning of paragraph 17(2)(d) of the Statistics Act?; and
6. In the alternative that the respondent was prohibited from disclosing census records pursuant to section 17 of the Statistics Act, what would be the effect of section 52 of the Constitution Act, 1982?
Analysis
Issue No. 1: Are the census records necessary for the land claim of the Algonquin Bands?
[27]The Government of Canada funding to the Algonquin Bands from 1997 to 2004 for the research of this land claim demonstrates that the Government of Canada has accepted that the Algonquin Bands may have a legitimate land claim.
[28]The Court is satisfied, upon reviewing the evidence, that the census information sought is necessary and important for the Algonquin Bands to properly document their land claim. This census information is probably the best evidence of the proof required to complete the evidence of their continued occupation of the territory in question.
[29]The respondent submits that this evidence is not critically important because there was a national register in 1940 prepared for conscription purposes and that this national register listed all persons over the age of 16 years. The Court is satisfied that this national register is not adequate evidence for several reasons:
1. it does not deal with the time period between 1900 and 1940;
2. it was completed for purpose of identifying young men of conscription age. Many such persons sought to avoid conscription and took steps to avoid being registered;
3. this national register did not record the names of persons under the age of 16 years which would be part of the proof required for this land claim;
4. the national register was not compiled in the same comprehensive manner as for census enumeration; and
5. part of the national register is missing.
Issue No. 2: Are the census records in this case subject to production under the Access Act?
[30]This issue, and the subsequent four issues, involve the interpretation and interplay of four statutes. Counsel for the applicant described this legal exercise as “intense legal gymnastics.” The Court agrees that this case requires a multi‑step exercise in statutory interpre-tation.
[31]Section 4 [as am. by S.C. 1992, c. 1, s. 144(F); 2001, c. 27, s. 202] of the Access Act provides that every citizen has a right of access to any record under the control of a government institution, subject only to the Access Act and notwithstanding any other Act of Parliament:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
[32]This general right of access to information is attenuated by operation of section 24 of the Access Act, which mandates the head of government institutions to refuse disclosure of information that is restricted pursuant to any provision enumerated in Schedule II to the Access Act, which includes section 17 of the Statistics Act.
[33]Subsection 24(1) of the Access Act incorporates by reference to Schedule II the restriction on the disclosure of census records mandated by section 17 of the Statistics Act.
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
. . .
SCHEDULE II
(Section 24)
. . .
Statistics Act, section 17
[34]Absent any exemption, paragraph 17(1)(b) of the Statistics Act would require the respondent refuse to disclose the census records.
SECRECY
17. (1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12 and except for the purposes of a prosecution under this Act but subject to this section,
. . .
(b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization. [Emphasis added.]
[35]However, the mandatory prohibition against disclosure mandated by subsection 17(1) of the Statistics Act is subject to the discretionary exemptions under subsection 17(2). In the review at bar, the applicant submits that paragraph 17(2)(d) is engaged to exempt the bar against disclosure because the census records are “information available to the public under any statutory or other law”:
17. . . .
(2) The Chief Statistician may, by order, authorize the following information to be disclosed:
. . .
(d) information available to the public under any statutory or other law; [Emphasis added.]
[36]The applicant submits that both paragraph 8(2)(k) of the Privacy Act and section 35 of the Constitution Act, 1982 operate to satisfy the exemption requirement that the census records are “information available to the public under any statutory or other law”.
[37]The respondent submits that section 24 of the Access Act is a mandatory prohibition since the disclosure of the census records are “restricted by or pursuant to any provision set out in Schedule II,” which includes section 17 of the Statistics Act. The Court does not agree. The restriction in subsection 17(1) of the Statistics Act must be read subject to the discretionary exceptions set out in subsection 17(2) of the Statistics Act.
[38]The meaning of paragraph 17(2)(d) of the Statistics Act in this case involves a three-step analysis, which logically should be undertaken in the following sequence.
Issue No. 3:
STEP 1
Is section 35 of the Constitution Act, 1982 “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act?
[39]Section 35 of the Constitution Act, 1982 protects Aboriginal and treaty rights that exist already by established land claim agreements or those rights which may be acquired pursuant to such claims to Aboriginal title:
PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. [Emphasis added.]
[40]In 1997, the Supreme Court of Canada in Delgamuukw, held per Lamer C.J., at paragraph 2 that Aboriginal title was a distinct species of Aboriginal right recognized and affirmed under section 35 of the Constitution Act, 1982:
In Adams, and in the companion decision in Côté, I considered and rejected the proposition that claims to aboriginal rights must also be grounded in an underlying claim to aboriginal title. But I held, nevertheless, that aboriginal title was a distinct species of aboriginal right that was recognized and affirmed by s. 35(1). Since aboriginal title was not being claimed in those earlier appeals, it was unnecessary to say more. This appeal demands, however, that the Court now explore and elucidate the implications of the constitutionalization of aboriginal title. The first is the specific content of aboriginal title, a question which this Court has not yet definitively addressed, either at common law or under s. 35(1). [Emphasis added.]
[41]Then Chief Justice Lamer held, at paragraph 133, that subsection 35(1) does not create Aboriginal rights, rather it accorded constitutional status to those rights which existed in 1982. In paragraph 143, the Chief Justice held that a claim to Aboriginal title must show continuity between present and pre‑sovereignty occupation of the territory over which Aboriginal title is claimed. (The census records sought in the case at bar are for that purpose.) The Chief Justice held in paragraph 186 that the Crown is under a moral, if not a legal, duty to enter into and conduct Aboriginal land title negotiations in good faith. It is through such negotiated settlements that the basic purpose of subsection 35(1) will be achieved. The Chief Justice stated that the basic purpose of the negotiations is the:
. . . reconciliation of the pre‑existence of aboriginal societies with the sovereignty of the Crown.” Let us face it, we are all here to stay.
In Delgamuukw, the Chief Justice was speaking for himself and two other Judges.
[42]In 2004 Chief Justice McLachlin delivered the unanimous judgment of the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R 511 which set out the legal obligations of the Crown in its dealings with Aboriginal peoples from the assertion of sovereignty to the resolution of their land claims. The Chief Justice held, and I paraphrase except where shown in quotation marks:
1. The “honour of the Crown” means that the Crown must act honourably in its dealings with Aboriginal peoples to achieve “the reconciliation of the pre‑existence of Aboriginal societies with the sovereignty of the Crown.” See paragraph 17 of Haida;
2. “The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. . . . the duty’s fulfillment requires that the Crown act with reference to the Aboriginal group’s best interests.” See paragraph 18 of Haida;
3. Where treaties (and I take this to include land claims which may lead to treaties) are involved, “the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims”. See paragraph 20 of Haida;
4. “It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests”. See paragraph 20 of Haida;
5. “Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.” See paragraph 25 of Haida; and
6. The “honour of the Crown requires that the Crown act with good faith”. See paragraph 41 of Haida.
[43]Based upon Haida, I conclude that the Crown’s duty to act honourably with respect to the Algonquin Bands’ land claim in this case requires that the Crown disclose the census records in its possession which may prove continuity of occupation between present and pre‑sovereignty occupation, one of the proofs required for Aboriginal land title.
[44]The Court is also of the view that the honour of the Crown gives rise to a fiduciary duty with respect to these census records being kept by the Crown. This duty requires that the Crown act with reference to the Aboriginal bands’ best interests and disclose these census records which relate to the Aboriginal rights in the territories at stake.
[45]It is also the Court’s view that the honour of the Crown requires good faith negotiations leading to a just settlement of the Aboriginal claims. This duty to negotiate in good faith, which is an implied part of section 35, means that the Crown disclose census records in the possession of the Crown which are relevant to the proof of Aboriginal title.
[46]It would be absurd and wrong if the Crown had the evidence the Aboriginal people required to prove their land claim, but the Government was entitled to suppress it. This would be inconsistent with section 35 of the Constitution Act, 1982.
[47]The duty to act honourably, in good faith and as a fiduciary are common-law duties that have now been constitutionalized to the extent that they relate to the Crown’s legal obligations under section 35 of the Constitution Act, 1982 with respect to Aboriginal land claims. Accordingly, section 35 and the aforementioned common-law duties are “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act.
Issues No. 4:
STEP 2
Is paragraph 8(2)(k) of the Privacy Act “statutory or other law” within the meaning of paragraph 17(2)(d) of the Statistics Act?
[48]Paragraph 8(2)(k) of the Privacy Act exempts census records from the prohibition against disclosure of personal information under subsection 19(1) of the Access Act. It is “statutory law”.
Privacy Act, R.S.C., 1985, c. P‑21
8. . . .
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(k) to any aboriginal government, association of aboriginal people, Indian band, government institution or part thereof, or to any person acting on behalf of such government, association, band, institution or part thereof, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada; [Emphasis added.]
[49]The respondent submits that the reference to “statutory law” in paragraph 17(2)(d) [of the Statistics Act] cannot mean subsection 19(2) of the Access Act since this is a circular argument, i.e. section 24 of the Access Act refers to section 17 of the Statistics Act which refers to subsection 19(2) of the Access Act. (Subsection 19(2) of the Access Act refers to section 8 of the Privacy Act. See Appendix A.) While the Court agrees that this is circular, the exemption at paragraph 8(2)(k) of the Privacy Act is obviously “statutory law”, and the intent of Parliament in enacting this law is obvious, namely personal information under the control of a government institution may be disclosed to an Indian band for the purpose of researching or validating a land claim. Accordingly, paragraph 8(2)(k) of the Privacy Act is “statutory law” within the meaning of paragraph 17(2)(d) of the Statistics Act.
Issue No. 5:
STEP 3
What is “information available to the public” within the meaning of paragraph 17(2)(d) of the Statistics Act?
[50]The meaning of the phrase “information available to the public” in paragraph 17(2)(d) of the Statistics Act is a question of law to be determined by the Court with the aid of dictionaries. See Pfizer Co. Ltd. v. Deputy Minister of National Revenue for Customs & Excise, [1973] F.C. 3 (C.A.), per Jackett C.J., at page 7:
In legal theory, as I understand the law, the general rule is that a word in a document such as a statute or order in council having the effect of law is to be given its ordinary or popular meaning according to the context and that meaning is a question of law to be determined by the Court with the aid of dictionaries and other legitimate aids to construction. . . .
[51]The respondent submits that the word “available” means accessible as a matter of right or legal certainty. The Oxford English Dictionary, 2nd ed. (Oxford, U.K.: Clarendon Press, 1989) defines “available” as “Capable of being employed with advantage or turned to account; hence, capable of being made use of, at one’s disposal, within one’s reach.”
[52]The respondent submits that the word “public” must be interpreted to denote the public at large, and not some element or subset of the public. The Oxford English Dictionary, defines the adjective “public” as, inter alia: “1. Of or pertaining to the community as a whole; belonging to, affecting, or concerning the community or nation. . . . Open or available to, used or shared by all members of a community; not restricted to private use.”
[53]With respect, the Court does not agree with the respondent. The definition cited by the respondent relates to the word “public” as an adjective, not as a noun. In the words “available to the public” in the review at bar, the word “public” is a noun. In determining the grammatical and ordinary sense of words used by Canadians, the Court prefers definitions provided in the Canadian Oxford Dictionary, 2nd ed., (Toronto: Oxford University Press, 2004). The Canadian Oxford Dictionary defines the noun “public” as:
1. the community in general, or members of the community. 2. a section of the community having a particular interest or some special connection . . .
The noun “public” thus has three meanings, referring to either the entirety of the community, to members of the community, or to a section of the community sharing a common status or interest. Each of these meanings is sufficient to meet the definition of “public” in paragraph 17(2)(d) of the Statistics Act.
[54]The Canadian Oxford Dictionary defines the adjective “available” as:
1. capable of being used; at one’s disposal; obtainable.
Accordingly, the words “information available to the public” denote records capable of being obtained by the entire general public, or by members or sections thereof. To be capable of obtaining a given record, the member of the public must have a right of access.
[55]In the alternative that the meaning of “available to the public” was equivocal, ambiguous or unclear, in Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, the Supreme Court of Canada, per Binnie J. held, at paragraph 80 that the appropriate approach to statutory interpretation is to read the words of a statute in their entire context, liberally construed, and in their ordinary sense in accordance with the intention of Parliament:
the “presumption” suggested by Lord Hatherley 135 years ago is out of step with modern principles of statutory interpretation accepted in Canada, as set out in Driedger’s Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [p. 87]
This approach was recently affirmed in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, and R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, and is reinforced by s. 12 of the Interpretation Act, R.S.C. 1985, c. I‑21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. Such interpretative principles apply with special force in the application of human rights laws. [Emphasis added.]
[56]The information in the census records requested by the Algonquin Bands is exactly the type of information which Parliament intended under the Privacy Act may be disclosed to an Aboriginal people or Indian band. Similarly, it is exactly the type of information which the Crown is obliged to provide an Aboriginal people or Indian band under section 35 of the Constitution Act, 1982. Applying the modern approach to statutory interpretation, the words “available to the public” should be liberally construed and interpreted to mean a member of the public, and not only the public as a whole.
[57]Further in the alternative that the meaning of “available to the public” was unclear, the respondent would not have met his burden of proof under section 48 of the Access Act in that I am not satisfied on the balance of probabilities that the respondent’s interpretation of “available to the public” was correct. On this basis, I would allow this application.
Conclusion with Respect to Issues 3, 4, and 5
[58]In conclusion, the correct statutory interpretation in the review at bar is that paragraph 17(2)(d) of the Statistics Act is engaged because a member of the public, i.e. the Algonquin Bands, has a right of access to the information by statute or other law, namely section 35 of the Constitution Act, 1982, the common-law duties referred to in paragraph 46, and paragraph 8(2)(k) of the Privacy Act. I note that only one statute or common-law duty is sufficient to satisfy the requirement of paragraph 17(2)(d) of the Statistics Act.
Issue No. 6:
In the alternative that the respondent was prohibited from disclosing census records pursuant to section 17 of the Statistics Act, what would be the effect of section 52 of the Constitution Act, 1982?
[59]Subsection 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the Constitution of Canada is, to the extent of the inconsistency, of no force or effect:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[60]The Crown has an obligation independent of the Access Act to provide the Algonquin Bands with those parts of the census records required to prove their land title claim. This obligation has been constitutionalized in section 35 of the Constitution Act, 1982. In accordance with section 52 of the Constitution Act, 1982 and to the extent that section 17 of the Statistics Act is inconsistent, section 17 is of no force or effect unless it can be justified.
[61]In R v. Sparrow, [1990] 1 S.C.R. 1075, at paragraphs 59-62 the Supreme Court of Canada held that legislation can restrict Aboriginal constitutional rights, but the Courts demand justification for such government regulation. Therefore, if section 17 of the Statistics Act prohibits the disclosure of the census records in this case, it is not automatically of no force or effect by the operation of section 52 of the Constitution Act, 1982. This legislation is valid if it meets the test for justifying an interference with the Aboriginal right under subsection 35(1).
[62]In the case at bar, the Court concludes that section 17 does not meet the test for justifying an interference with the right of the Aboriginal peoples to obtain their own census records necessary to prove their land title claims. It would be absurd if the Crown, which has the obligation to assist Aboriginal peoples with respect to their land claims, could suppress the evidence necessary for the proof of these land claims. The respondent has not offered any justification for overriding this constitutional right. While the confidentially of census records are necessary to ensure full and frank responses to enumerators, the census records sought are more than 60 years old, and can be disclosed subject to a confidentiality undertaking referred to herein. Recent census records are not being sought or disclosed, nor are they necessary, because the Band Lists which began in 1950 provide the evidence necessary for a land claim. Accordingly, the disclosure of the census records for 1941 and earlier will not deter full and frank census records in the future.
Remedy
[63]In the review at bar, the Chief Statistician erred in law with respect to:
i. section 35 of the Constitution Act, 1982,
ii. the common-law obligations of the Crown to disclose the information to the Algonquin Bands with respect to their land claim; and
iii. paragraph 8(2)(k) of the Privacy Act.
Since the decision under review was based on errors of law, it should be set aside and referred back to the Chief Statistician with directions to consider the access request under paragraph 17(2)(d) of the Statistics Act in accordance with these reasons for order, and with a direction that the census records for 1921, 1931 and 1941 can be disclosed to Dr. James Morrison on behalf of the Algonquin Bands upon his undertaking that he will keep confidential the personal information in the census records with respect to non‑Aboriginal persons. The 1911 census records have been made public so the right to access their disclosure is moot.
[64]Both parties advised the Court that they are not seeking costs in this case. Accordingly, the Court will make no order as to costs.
APPENDIX A
1. Access to Information Act, R.S.C., 1985, c. A‑1
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
. . .
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
. . .
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
. . .
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty‑five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty‑five days, fix or allow.
42. (1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;
(b) appear before the Court on behalf of any person who has applied for a review under section 41; or
(c) with leave of the Court, appear as a party to any review applied for under section 41 or 44.
. . .
48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
SCHEDULE II
(Section 24)
Statistics Act, section 17
[Emphasis added]
. . .
2. Privacy Act, R.S.C., 1985, c. P‑21 (assented to July 1, 1983)
8. . . .
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(k) to any aboriginal government, association of aboriginal people, Indian band, government institution or part thereof, or to any person acting on behalf of such government, association, band, institution or part thereof, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada; [Emphasis added.]
3. Statistics Act, R.S.C., 1985, c. S‑19
SECRECY
17. (1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12 and except for the purposes of a prosecution under this Act but subject to this section,
(a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; and
(b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization.
(2) The Chief Statistician may, by order, authorize the following information to be disclosed:
(a) information collected by persons, organizations or departments for their own purposes and communicated to Statistics Canada before or after May 1, 1971, but that information when communicated to Statistics Canada shall be subject to the same secrecy requirements to which it was subject when collected and may only be disclosed by Statistics Canada in the manner and to the extent agreed on by the collector thereof and the Chief Statistician;
(b) information relating to a person or organization in respect of which disclosure is consented to in writing by the person or organization concerned;
(c) information relating to a business in respect of which disclosure is consented to in writing by the owner for the time being of the business;
(d) information available to the public under any statutory or other law;
(e) information relating to any hospital, mental institution, library, educational institution, welfare institution or other similar non‑commercial institution except particulars arranged in such a manner that it is possible to relate the particulars to any individual patient, inmate or other person in the care of any such institution;
(f) information in the form of an index or list of individual establishments, firms or businesses, showing any, some or all of the following in relation to them:
(i) their names and addresses,
(ii) the telephone numbers at which they may be reached in relation to statistical matters,
(iii) the official language in which they prefer to be addressed in relation to statistical matters,
(iv) the products they produce, manufacture, process, transport, store, purchase or sell, or the services they provide, in the course of their business, or
(v) whether they are within specific ranges of numbers of employees or persons engaged by them or constituting their work force; and
(g) information relating to any carrier or public utility. [Emphasis added.]
4. An Act to amend the Statistics Act, S.C. 2005, c. 31 (assented to June 29, 2005)
1. The Statistics Act is amended by adding the following after section 18:
18.1 (1) The information contained in the returns of each census of population taken between 1910 and 2005 is no longer subject to sections 17 and 18 ninety‑two years after the census is taken.
(2) The information contained in the returns of each census of population taken in 2006 or later is no longer subject to sections 17 and 18 ninety‑two years after the census is taken, but only if the person to whom the information relates consents, at the time of the census, to the release of the information ninety‑two years later.
(3) When sections 17 and 18 cease to apply to information referred to in subsection (1) or (2), the information shall be placed under the care and control of the Library and Archives of Canada.
5. Constitution Act, 1982, being Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
PART II
Rights of the Aboriginal Peoples of Canada
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
. . .
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Emphasis added.]