Alberta (Attorney General) v. Krushell, 2003 ABQB 252 Date: Action No

Alberta (Attorney General) v. Krushell, 2003 ABQB 252 Date: 20030318 Action No. 0203 19075 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON IN THE MATTER OF the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 AND IN THE MATTER OF Order F2002-022 of the Information and Privacy Commissioner dated August 28, 2002 AND IN THE MATTER OF an application for judicial review AND IN THE MATTER OF an application for relief based on the Court s inherent jurisdiction BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA and THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF ALBERTA - and - Applicants JAY KRUSHELL and THE INFORMATION AND PRIVACY COMMISSIONER REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE M. B. BIELBY Respondents

Page: 2 APPEARANCES: Tim Hurlburt for the Applicants Ritu Khullar for the Respondent, The Information and Privacy Commissioner Jay Krushell Respondent, acting on his own behalf DECISION: [1] The lists of the names of accused persons, the charges they face and ancillary information prepared daily in relation to matters to be dealt with in each criminal docket court in the Provincial Court of Alberta ("the criminal dockets") are records which are excluded from the operation of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 ("the Act"). The information contained in the criminal dockets, being "information in a court file" is excluded from the operation of the Act pursuant to the provisions of s. 4(1). The exclusion for "information in a court file" is not limited to the contents of the paper file which may be accessed by the public doing a counter-search at any courthouse. It includes any information taken from that file and compiled into a criminal docket, as the legislative purpose in creating that exception would not be achieved by limiting the exception to the contents of the paper file. [2] Section 4(1) is to be interpreted by reference to the legislative purposes in creating that exclusion. Section 2 of the Act expressly describes those purposes. The only purpose therein described which relates to the information in a court file is that of controlling disclosure of that information. [3] Further, the reason for excluding that information from the operation of the Act must include the goal of protection of the privacy of persons who are charged but have not yet and may never be convicted of a criminal offence. While such interests might in part or in full be protected by subsequent editing pursuant to s. 17, the privacy concerns surrounding the unconvicted accused are without exception, and so support the initial exclusion of that information from the operation of the Act, to avoid triggering the expense of having Alberta Justice subsequently locate and edit such documents to remove the names of accused persons pursuant to the s. 17 provisions of the Act. The legislative purpose in excluding the information contained in court files includes avoiding mischief, defamation arising from mistaken identity, courthouse security concerns, and judge-shopping.

Page: 3 HISTORY OF APPLICATION: [4] The Applicants seek to prevent the Respondent Krushell from obtaining access to the lists of names of accused persons and the charges they face which are and were produced for each criminal docket court each business day in each Provincial Court facility in Alberta from 1990 to 2005. Krushell seeks this information so that he may offer it for sale to the public via the internet. [5] The Respondent, the Office of the Information and Privacy Commissioner ("the Privacy Commissioner"), granted an Order concluding that the Act applied to criminal dockets. Krushell applied for this Order after his request for the criminal dockets had been declined by the public body, Alberta Justice, having custody or control over them. The Privacy Commissioner concluded that the criminal dockets were subject to the Act as they were records in the custody or under the control of a public body and did not fall within the s. 4(1)(a) exclusion for information contained in various court records, nor within the s. 4(1)(k) exclusion for records relating to ongoing prosecutions, nor within the s. 4(1) and (3) exclusion relating to "judicial administration records". [6] From that decision the Applicants bring this application for judicial review or, in the alternative, for a declaration that, notwithstanding the Order of the Privacy Commissioner for production, the criminal dockets should not be produced to Krushell for his proposed purpose pursuant to the inherent power of the Court to control its own processes. [7] The Applicants have not argued in this application that the criminal dockets fall within the s. 4(1)(k) exclusion, but maintain the Privacy Commissioner was incorrect in law when he concluded one or more of s. 4(1)(a), s. 4 (1) and s. 4(3) did not exclude them. SCOPE OF THE ACT: [8] The purposes of the Act briefly are to allow limited public access to records in the custody or control of a public body, to control the collection of information by those bodies and to control disclosure of information by those bodies (s. 2). To commence the process of obtaining access to a record a person must apply to the public body which has custody or control of it (s. 7). If the request is refused, an applicant may request a review of that refusal by the Privacy Commissioner (s. 65). The Privacy Commissioner may authorize mediation (s. 68) and, if that fails, must conduct an inquiry (s. 69) which may proceed orally or by written briefs alone. [9] All of these steps were undertaken, with the Order which is the subject of this application for judicial review ultimately issuing from the Privacy Commissioner. He conducted the inquiry by way of written submissions from the Applicants and Krushell, copies of which are contained in the Record filed by the Privacy Commissioner in response to this application for judicial review. Curiously, no evidence was placed before the Privacy Commissioner during this process but the parties made certain statements in their written

Page: 4 submissions to him which they agreed, before me, should be considered as if he had heard evidence on those points. No party took issue with my treatment of facts contained in any uncontradicted statement made in any of these written submissions as if it had been evidence before the Privacy Commissioner. In any event, the facts before the Privacy Commissioner were not contested before me, at the end of the day. [10] I am advised that the practice upon the Privacy Commissioner deciding that certain records fall within the ambit of the Act is to have the public body, in this case Alberta Justice, then determine the cost of producing the records. Once Krushell paid those costs, Alberta Justice would review the records for the first time to determine if any privacy concerns were raised therein and, if so, would edit the records to address those concerns by, for example, removing the names of the accused persons. If Krushell were to be dissatisfied with the result he could again ask for a review from the Privacy Commissioner which would trigger the process once again. These steps have not yet been engaged, as a result of this application for judicial review having been made. [11] The subject of this application dealt, therefore, with whether the criminal dockets are the types of documents which were subject to the Act and could potentially be ordered produced thereunder. It did not (yet) deal with whether, if the documents were producible, they should be edited to prevent the disclosure of personal information which would constitute an unreasonable invasion of a third person' s privacy (s. 17). FACTS: [12] Criminal dockets are produced from court files by staff in each courthouse in the province, normally early on the day to which they relate. They are printed and distributed to the courthouse by approximately 6:00 a.m., to be posted by court staff in a prominent public place within the building prior to court sessions commencing that day. Accused persons and witnesses may use the criminal dockets to locate the number of the courtroom at which they should attend. [13] The criminal dockets appear to be computer generated and contain several columns of information relating to each charge to be dealt with in a particular docket courtroom that day. There is a column for the court file number, the full name of each accused person, the legislation under which the charge is laid, the section number of the charge, a brief description of the offence charged, whether the charge relates to a summary, indictable or a hybrid offence, the name of the police agency from which the charge emanated, the police file number, and the type of proceeding anticipated for that day, i.e. first appearance, bail hearing, summary disposition. While there is a place for the name of the judge expected to hear the listed matters, that name has been removed from the sample lists produced for examination by the Privacy Commissioner.

Page: 5 ISSUES: 1. Should judicial review issue if the decision of the Privacy Commissioner was reasonable, although not correct in law? 2. Are criminal dockets excluded from production under the Act because: a. the information contained in them emanates from court files? b. they are, or come from, judicial administration records? 3. If judicial review does not issue, can and should this Court, pursuant to its inherent jurisdiction, nonetheless prohibit the production of the criminal dockets to Krushell to avoid an impediment to the proper administration of justice? ANALYSIS: 1. Should judicial review issue if the decision of the Privacy Commissioner was reasonable, although not correct in law? [14] The Applicants argue that this Court should set aside the Order of the Privacy Commissioner if it is incorrect, that there is no discretion which resides with him to arrive at a reasonable, although arguably incorrect decision. They further argue that s. 4 of the Act limits the operation of the Act and with it the jurisdiction of the Privacy Commissioner; on its express wording it does more than create exceptions to the Act (as does, for example, s. 17) but rather delineates areas which are not touched by the legislation at all. Clearly, on the literal wording of s. 4 this argument is correct: "This Act applies to all records in the custody or under the control of a public body... but does not apply to the following: (a) information on a court file..." (emphasis added). [15] They further argue that in the case of statutory provisions which limit a tribunal' s jurisdiction, the standard of review is correctness, that no tribunal can have a particular expertise to which deference should be accorded on questions of jurisdiction. [16] The Privacy Commissioner argued that the Supreme Court of Canada left the door open to another conclusion in Macdonell v. Quebec, 2002 S.C.C. 71. [17] However, the Supreme Court of Canada very recently concluded that a standard of correctness is the applicable standard of review in relation to the interpretation of federally privacy legislation in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 S.C.C. 8. [18] The Privacy Commissioner argues that this authority may be fully distinguished because of the differences between federal and provincial privacy legislation, with the former lacking the provision of the role of an independent Privacy Commissioner to review document

Page: 6 requests. I disagree; this difference is irrelevant to considering the issue of any possible expertise a Privacy Commissioner might have in regard to statutory interpretation for the reasons stated above. [19] University of Alberta v. Pylypiuk (2002), 2 Alta. L.R. (4 th ) 332 (Q.B.) which appears to be the only relevant reported case in this jurisdiction considering the Alberta legislation also suggests a standard of correctness applies to statutory interpretations made by the Privacy Commissioner. [20] In the case at bar as well the Privacy Commissioner has no special expertise in determining the intent of the Legislature in creating the exceptions to the operation of the Act. Indeed, his error in relying on information which did not constitute a proper aid to statutory interpretation, as will be seen below, evidences a lack of expertise in proper techniques of statutory interpretation. Volume of files managed, familiarity with the culture and processes of the administrative record-keeping of public bodies and familiarity with frequent players may, given the nature of some of the problems which come before the Privacy Commissioner, create a special expertise in him as a decision-maker but not where the question is one of interpreting the statutory limits of the exceptions to the Act. Further, the Court is in a better position than the Privacy Commissioner to rule on questions concerning its own processes. [21] The standard of review against which to judge the decision of the Privacy Commissioner is therefore that of correctness. 2. Are criminal dockets excluded from production under the Act because: a. the information contained in them emanates from court files? b. they are, or come from, judicial administration records? [22] Not all records in the custody or control of Alberta Justice are subject to production under the Act. Section 4 lists a number of types of records which are excluded from its operation: 4(1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following: (a) information in a court file,...(or) a judicial administration record... (3) In this section, "judicial administration record" means a record containing information relating to a judge of the Court of Appeal of Alberta, the Court of Queen' s Bench of Alberta or The Provincial Court of Alberta or to a master of the Court of Queen's Bench of Alberta or a sitting justice of the peace or a presiding justice of the peace under the Justice of the Peace Act, and includes

Page: 7 (a) the scheduling of judges and trials, (b) the content of judicial training programs, (c) statistics of judicial activity prepared by or for a judge, and (d) any record of the Judicial Council established under Part 6 of the Judicature Act. [23] The Act does not contain a definition of court files or court administration records. a. Court Records [24] The Commissioner held that criminal dockets are not to be considered part of court files notwithstanding that the information from which they are compiled comes from court files. In effect, he concluded that the act of removing the information from court files to a compiled document caused a change in its character so that it falls within the operation of the Act. He concluded that the only information caught by the "information contained in court records" exclusion contained in paragraph 4(1)(a) of the Act was the information contained in the paper files available to the public upon doing counter-searches at Alberta courthouses. [25] The Applicants argue that he was in error in arriving at this interpretation of s. 4(1)(a) and that it extends to all information contained in court files when it is copied from those files and reformatted to create the criminal dockets. [26] The Privacy Commissioner arrived at his conclusion based on comments which he believed to have come from Hansard in the following extract from his decision: As stated in Hansard, information in court files has been excluded from the Act because:...there has long been a process whereby people can go to the courthouse and obtain access to court records, subject to orders of the court saying: these records will be sealed, and you can' t get at them. That' s primarily what we were after there. There' s already a process in place for access to court records, and because of the importance of openness of the courts the provisions of privacy have been set aside for a higher social policy of allowing people to see what' s going on in the court system. So that' s the reason they' re excluded, primarily. As contemplated by the statements in Hansard, "information in a court file" would include what a judge has in front of him or her when sitting as a judge. That is the essence of what would be in a court file to which the public would have access through the court. At a minimum, it is clear that the court has jurisdiction over information in a court file that is physically before a judge.

Page: 8 I am also mindful of the fundament principle that our judicial system is open. Trials are not conducted in secret unless the court so orders. It is therefore fair to say that there is a public interest in knowing what is going on before the court. Once a matter is before the court, the court has exclusive jurisdiction over the "information in a court file" before it. The Act does not apply to that information. [27] Traditionally the debates in Parliament before a Bill was enacted, as recorded in Hansard, were not admissible as evidence of legislative intent and therefore as an aid to statutory interpretation in the case where more than one interpretation could be given to a provision in a statute; see Odgers Construction of Deeds and Statutes (London: Sweet & Maxwell, 1967), p. 326. The current rule has been described as being in a state of flux; see Ruth Sullivan's Driedger on the Construction of Statutes, 3 rd ed. (Toronto: Butterworths, 1994), p. 432. [28] However, whether or not these debates in the Legislature prior to the passage of the Act should properly be considered by the Privacy Commissioner in construing the meaning of "information in a court file" is irrelevant to this application because that is not what he did. The extract he relied on did not come from any legislative debate, nor did it come from the mouth of a member of the Legislative Assembly. [29] Simply because material of other types may be published in Hansard does not make that material an acceptable aid to statutory interpretation. While the Privacy Commissioner did not identify the date and location of this material, some investigation revealed that this extract is taken from the minutes of a Freedom of Information and Protection of Privacy Act Review Committee meeting held on October 5, 1998. The speaker was not a member of the Legislative Assembly but rather was Clark Dalton, a lawyer apparently retained to advise the Committee on various legal matters. [30] His comments were made 2.5 years after the relevant portions of the Act became law. The Committee to whom he made them was an all-party Committee struck three days earlier to review the Act with a mandate of determining whether it was meeting the intent of the original legislation in balancing access to information with protecting the privacy of individuals. That Committee ultimately reported to the Legislature, making certain recommendations for amendment to the Act. [31] The Act has been amended several times since that time, but there has been no amendment to the portion of s. 4(1)(a) relating to information in a court file, nor do any of the amendments made bear on the matters at issue in this litigation. [32] Therefore, the comments made by Mr. Dalton to the Committee cannot be considered to reflect the intent of the Legislature in passing the Act. They are, with respect, no more than his personal opinion on possible reasons for the creation of the s. 4(1)(a) exclusion.

Page: 9 [33] As a result, even if this Court were to adopt the modern trend of allowing consideration of legislative debate as an aid to statutory interpretation, the materials considered by the Privacy Commissioner in making his decision simply do not fall within the definition of such a permitted aid. [34] There was no evidence before the Privacy Commissioner nor offered to this Court of what, if anything, was said during the legislative debate preceding the passage of the Act in 1995 in regard to s. 4. Therefore, this source, through Hansard, is not available as an interpretative aid. [35] The Privacy Commissioner next went on to conclude that the intention of the Legislature in passing s. 4(1)(a) of the Act was to conclude that the public interest in knowing what is going on in court has primacy. He did not say why he came to that conclusion; from the wording of Mr. Dalton' s comments upon which he erroneously relied, the Privacy Commissioner may have drawn this conclusion from that source as well. [36] The Privacy Commissioner was, however, on the right path to interpreting the statute, by purporting to determine the purpose of the section as an aid to deciding which of two possible interpretations should be given to it. [37] Driedger, supra, describes this matter of ascertaining legislative intent at 51: The other way [aside from reference to legislative debate] of establishing purpose relies on inferences drawn by courts based on their own reading of the legislation. This is a sophisticated form of interpretation in which the court constructs a plausible account of purpose out of the words of the legislation read in context. A purpose constructed in this way will be plausible in so far as it accounts with accepted values and assumptions. The advantage of establishing purpose through inference is that judges can be responsive to the full complexity of purpose. They can take into account the different types of reasons that constitute legislative purpose and they can allow for the possibility of multiple and perhaps conflicting purposes... [38] The purpose of a piece of legislation may therefore be considered in addressing problems with its interpretation. Unfortunately, the Privacy Commissioner failed to engage the proper analytical tools to determine purpose. [39] Indeed, his own reasons reflect some uncertainty in regard to his conclusion as to purpose. While he finds that criminal dockets are included within the ambit of the Act, he follows this finding with the contradictory observation that, "Once a matter is before the court, the court has exclusive jurisdiction over the "information in a court file" before it. The Act does not apply to that information." However, those court files can be used to create criminal dockets after the matter is before the Court; presumably on any appearance after the initial

Page: 10 appearance that would be the case. Those dockets should therefore presumably be excluded from the operation of the Act. [40] What, then, is the proper approach to determining the Legislature' s purpose in creating the s. 4(1)(a) exclusion? As the standard of review in this matter is correctness, I am in as good a position as the Privacy Commissioner to determine this issue and, indeed, it would be helpful to do so rather than simply remit the issue to him in a vacuum. [41] First, a classic aid to interpreting a phrase in a statute is the legislative context in which the phrase occurs; see Driedger, supra, at 13. The context in which the phrase "information on a court file" appears is that of a list of exclusions from the operation of the Act. This context suggests that the Act is to be interpreted to exclude the contents of a court file. In other words, the literal meaning of the phrase supports complete exclusion. [42] Second, a priority of purpose for the ensuring of openness to the judicial system cannot be ascertained from the context or structure of the Act. While Part 1 of the Act is entitled "Freedom of Information" and Part 2 is entitled "Protection of Privacy", s. 4 is located outside both of these Parts. [43] Third, we are fortunate in interpreting the Act because it, unlike most other legislation, contains an express statement of purpose. Section 2 of the Act which sets out this purpose, however, does not include the purpose described by the Privacy Commissioner, ensuring openness to trials and the judicial system. Had the Legislature so intended it surely would have included that purpose as one of those listed in s. 2. [44] Section 2 reads: The purposes of this Act are (a) to allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions as set out in this Act, (b) to control the manner in which a public body may collect personal information from individuals, to control the use that a public body may make of that information and to control the disclosure by a public body of that information, (c) to allow individuals, subject to limited and specific exceptions as set out in this Act, a right of access to personal information about themselves that is held by a public body, (d) to allow individuals a right to request corrections to personal information about themselves that is held by a public body, and

Page: 11 (e) to provide for independent reviews of decisions made by public bodies under this Act and the resolution of complaints under this Act. ( emphasis added) [45] Subsections (c), (d) and (e) do not appear to apply to this analysis. Krushell is not seeking information about himself, he is not seeking to correct information about himself and the criminal dockets are not being sought to assist in a review of a decision made by Alberta Justice or the Privacy Commissioner. [46] Rather, subsections (a) and (b) appear to define the relevant possible purposes, each at the opposite end of the balance of interests addressed by the Act. Subsection (a) says that exceptions are to be limited and specific which favours a wide and liberal interpretation but subsection (b) suggests the opposite, that disclosure is to be controlled. [47] Which purpose takes precedence? To start, one notes that s. 4 describes not exceptions from the Act but rather creates a list of exclusions of documents which never come within the ambit of its requirements in the first instance. Exceptions are created later in the Act, such as by s. 17. As such, s. 2(a) which refers only to exceptions does not apply to the exclusions in s.4. This analysis leaves only the purpose of control of disclosure to apply to an interpretation of s. 4(1)(a). [48] Perhaps more usefully, one might consider the possible reasons for excluding court records from disclosure as an aid to determining which purpose s. 4(1)(a) was created to address. One such reason may indeed be that an ongoing alternate system for access to information is available. However, another may be the desire to protect the privacy of persons who are charged but have not yet and may never be convicted of a criminal offence. While such interests might be protected through the subsequent operation of s. 17 it is also likely that the privacy concerns surrounding the unconvicted accused are without exception, and so should be excluded in the first instance from the operation of the Act rather than triggering the expense of having Alberta Justice having to subsequently locate and edit such documents under the s. 17 provisions. [49] The mischief which could be created by allowing ready public access to the names of unconvicted accused is not difficult to imagine. Statutorily prescribed punishments for the convicted would pale in many cases in comparison to the de facto punishment created by posting information on the criminally charged for the benefit of the gossip and the busybody. Similarity of names might create defamatory impressions. Same-day internet postings would create concern about courthouse security and judge-shopping which could affect the administration of justice and thus judicial independence in ways the Legislature clearly attempted to avoid by so carefully exempting all matters relating to the judiciary in other subsections of s. 4. [50] While there is currently limited public access to this information via the physical daily posting of the criminal dockets on site, that does not justify posting world-wide for all time to all of those with access to the internet. Currently privacy is protected by the practical obscurity

Page: 12 created by the physical inconvenience of attending at each courthouse to examine the criminal dockets by others than those who have personal involvement in the matters then before the courts: United States Department of Justice et al v. Reporters Committee for Freedom of the Press et al, 489 U.S. 749, 109 S.Ct. 1468 (1989) (U.S.S.C.). Similarly, the transitory purpose of these documents described by the Privacy Commissioner in his reasons, in that they are created and used only for one day in each courthouse, does not translate into the permanent record that would be created by providing them to Krushell for posting on the world-wide web. [51] These concerns, in conjunction with the s. 2(b) purpose of control of information disclosure lead to the conclusion that what is to be excluded as part of "information in a court file" pursuant to s. 4(1)(a) is anything which would allow a third party to ascertain the identity of an accused person, which would include the criminal dockets. The fact that controlled disclosure could subsequently be achieved through a s. 17 editing of the criminal dockets does not drive the conclusion that limits on disclosure should not be considered a purpose of s. 4(1)(a) as well. If, as I conclude they are, criminal dockets are excluded from the operation of the Act the stage where such editing must be considered never needs to be reached. [52] The information contained in the criminal dockets comes from court files. If one were to apply the Privacy Commissioner' s apparently self-contradictory comments, "the Act would not apply to that information". The mere fact it is extracted from those files and appears in a different format does not change the purpose of the legislation, which is to exclude the information contained in those materials from the ambit of the Act. The purpose of the Legislature was to exclude the information, not merely the paper format in which some of it originally appears. Whether it is contained in a physical paper file, or is removed from that file to another format it is excluded from production under the Act. [53] In particular, the purpose of avoiding extrajudicial consequences resulting from a criminal charge of mistaken identity arising through similarity of names, of courthouse security concerns and the avoidance of potential delays arising from attempts to bring matters before certain members of the judiciary and not others are not goals which could be met simply by excluding the paper version of the court files from the operation of the Act. The Legislature must have intended to protect the information in those files in whatever format it might ultimately take, rather than simply the files themselves. [54] The Privacy Commissioner was therefore in error in concluding to the contrary. His decision that the Act applies to the criminal dockets is quashed. In light of my conclusion that s. 4(1)(a) of the Act must be interpreted to exclude criminal dockets from the operation of the Act, there is no reason to remit the matter back to him as there is nothing further to be considered by him; criminal dockets are not within his jurisdiction.

b. Judicial Administration Records Page: 13 [55] It is therefore unnecessary to determine whether a criminal docket also falls within the definition of judicial administration record and for that reason is exempted from the operation of the Act. 3. If judicial review does not issue, can and should this Court, pursuant to its inherent jurisdiction, nonetheless prohibit the production of the criminal dockets to Krushell to avoid an impediment to the proper administration of justice? [56] It is not necessary to deal with this issue either, in light of the above conclusion. That said, absent the possible application of the Charter of Rights and Freedoms which has not been invoked by any party to this application, one cannot immediately see how any inherent jurisdiction of the Court over its own process could in and of itself modify or defeat any legislative provision in this area. HEARD on the 25 th day of February 2003. DATED at Edmonton, Alberta this 18 th day of March 2003. J.C.Q.B.A.