Ishmela v. Canada (Minister of Citizenship and Immigration), 2003 FC 838

Date: 20030704

Docket: IMM-3733-03

Citation: 2003 FC 838

BETWEEN:

                                                                 OMRAN ISHMELA

                                                                                                                                                     Applicant

                                                                                 and

                                                   THE MINISTER OF CITIZENSHIP

                                                                AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  In allowing the present application for the sought after confidentiality order I note that it is not opposed. However, because the public also has an interest that the Court=s process and the legal process be open, confidentiality orders should never be automatic, nor of excessive scope.

CONSIDERATION

[2]                  Confidentiality orders are provided for under Federal Court Rule 151:

By this Rule I must balance the need of the party or parties for a confidentiality order, against the public interest in open and accessible court proceedings.

[3]                  There are subjective and objective aspects to be considered and satisfied in obtaining a confidentiality order: see for example AB Hassle v. Canada (Minister of National Health and Welfare) (1998), 83 C.P.R. (3d) 428 at 432 and following. In this instance I accept the affidavit of the Applicant, Omran Ishmela, as establishing at least the subjective aspect of the requirement. There being no opposition to the Order, but because the interest of the public must be considered, I have examined the record which the Applicant wishes to file as confidential. On the balance of probabilities that part of the record, which is not already in the public domain, should in fact be confidential. It serves no purpose to try to sort out what material is already in the public domain. Rather the whole record is, subject to what the Supreme Court of Canada had to say in Sierra Club of Canada v. Canada (Minister of Finance) (2002), 211 D.L.R. (4^th) 193, an appropriate document, because of its nature, to consider for a confidentiality order.

[4]                  In Sierra Club (supra) at issue were a very small amount of highly technical documents. Here I recognize that the Sierra Club case involved a claim for confidentiality over commercial material, however the same principles apply in the present instance where disclosure of some of the material would put the Applicant and his family members, who are in Libya, at risk.

[5]                  At page 211 of Sierra Club Mr Justice Iacobucci set out a two-part test for a confidentiality order:

I note the subsequent emphasis, by Mr Justice Iacobucci at pages 211 and 212, that the first part of the test contains various elements, including a real and substantial risk that is well-grounded in the evidence, a balancing of the interests at stake in the context of the fundamentally important open-court rule and a consideration of whether alternative measures are available.

[6]                  The second branch of the test is open-ended, for the Supreme Court points out that it includes Aeffects on the right of civil litigants to a fair trial@ and here I would add the effect that the confidentiality order, or rather a lack of confidentiality order, might have on the Applicant, should he be returned to Libya and upon the Applicant=s family members who remain in Libya. The second part of the test also requires me to consider any negative effect on the open-court principle.

[7]                  I am satisfied that a confidentiality order is necessary to prevent serious risks to both the Applicant and his family who are in Libya. I do not see any reasonably alternative measures which might prevent the risk. As I already indicated the salutary effect of the confidentiality order will be that there will be less risk of reprisal if a confidentiality order is in place. As to any deleterious effect, here I must balance the public interest in open and accessible court proceedings.

[8]                  Not to belittle the Applicant=s case, it does not appear either to be one of general public interest, or to be a situation in which the public would be denied any fundamental right by being unable to access the contents of at least some of the material which the parties may file. Here I also note that an important effect of the confidentiality order may be the lack of open examination of witnesses. However, this process is that of judicial review, not a process in which a witness or witnesses will be examined in open court. Certainly a member of the public, were he or she interested, would be denied access to documents, but I do not see the documents as being of any wide public interest. To grant a confidentiality order, in this instance, would not seriously undermine freedom of speech, in the sense of development of thoughts and ideas or hamper participation by way of a minimal documentary denial of open justice.

[9]                  Taking all of the factors into consideration, including those considered by the Supreme Court of Canada in Sierra Club (supra) and then balancing those factors, a confidentiality order is proper. However I have difficulty with the open scope of the order sought, being an order Atreating all materials in this Action as confidential; ...@. The parties have not produced a draft confidentiality order as is often the case and here I would refer, as an example, to the order set out at page 447 and following of the AB Hassle (supra).

[10]            To grant a confidentiality order in the terms requested would go beyond what is reasonable and here I have in mind a Supreme Court of Canada=s emphasis that one must consider reasonable alternatives. It may be that the parties have in mind a confidentiality order extending only to the affidavits and documentary exhibits, to the records and to cross-examination: that might well be appropriate. However I would like to see what the parties wish set out in a draft order.

[11]            Counsel are to provide a draft order, within 21 days. That order should contain an extension of time provision within which the Applicant=s Record is to be served and filed. In the ev ent that counsel are unable to agree as to the form of a confidentiality order, liberty to apply by telephone.

(Sgd.) AJohn A. Hargrave@

                                                                                 Prothonotary

Vancouver, British Columbia

4 July 2003

                                                                 FEDERAL COURT

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            IMM-3733-03

STYLE OF CAUSE:                        Omran Ishmela v. The Minister of Citizenship and Immigration

REASONS FOR ORDER:            Hargrave P.

DATED:                                              4 July 2003

WRITTEN REPRESENTATIONS BY:                              

SOLICITORS OF RECORD: