Jose Pereira E Hijos S.A. v. Canada (Attorney General), 2001 FCT 1434

Date: 20011224

Dockets: DES-2-01

and DES-3-01

Neutral citation: 2001 FCT 1434

BETWEEN:

                                                          JOSE PEREIRA E HIJOS, S.A.

                                                   and ENRIQUE DAVILA GONZALEZ

                                                                                                                                                         Plaintiffs

                                                                             - and -

                                                THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                    Defendant

                                                               REASONS FOR ORDER

NADON J.

[1]                 The plaintiffs seek Orders directing the defendant to answer questions posed during the examination on discovery of Leo Strowbridge, a Crown official, on July 13, 2001. The facts relevant to the determination which I must make are as follows.

[2]                 Canada and other countries are members of the Northwest Atlantic Fisheries Organization ("NAFO"). NAFO sets fishing quotas for member states as voted on by those member states for areas known as Convention areas - areas of ocean not contained within any country's 200 mile territorial limit. This means that countries will voluntarily agree not to fish over the amount of the NAFO-set quotas. However, any country can object to a quota and opt out of any agreement, if not satisfied with the outcome of a particular vote.

[3]                 In September 1994, for conservation purposes, NAFO set the 1995 Greenland halibut ("turbot") fishery quota for a Convention area off the Grand Banks at a total allowable catch ("TAC") of 27,000 tons. No country or the European Union ("EU") objected to the TAC for turbot collectively set by NAFO for 1995. All members also understood that at a subsequent meeting, the TAC of 27,000 tons would be allocated to various countries by way of a vote.

[4]                 Between January 30 and February 1, 1995, NAFO held a meeting in Brussels, Belgium, where member countries voted on how the TAC should be allocated among member countries. By way of a proposal submitted by Cuba and subsequently ratified by NAFO vote, Canada obtained the right to fish 60% of the turbot TAC, i.e. 16,200 tons. Under the same proposal, the EU received a quota of 3,400 tons.

[5]                 The EU (Spain and Portugal) was outraged, as its allocation was only 3,400 tons. The EU objected to the NAFO allotment and unilaterally set for itself a turbot quota of 18,630 tons. The NAFO-sanctioned quota and the unilaterally-set EU quota, if both fished fully, could pose an undue conservation risk on turbot stock.

[6]                 It appears that Canada became concerned that Spain and Portugal might overfish the Convention area in contravention of the NAFO TAC. Consequently, Canada passed regulations on March 3, 1995, pursuant to the Coastal Fisheries Protection Act, in order to protect a potentially dwindling stock. Regulation SOR/95-136 precluded ships flying either the Spanish or the Portugese flag, from fishing in the Convention area.

[7]                 On March 9, 1995, the plaintiffs' vessel, the "Estai", a Spanish fishing trawler, was seized by Canada approximately 240 miles east of Canada. At the time of the seizure, the vessel was fishing for Greenland halibut.

[8]                 Specifically, after numerous warnings were given to the "Estai" by those on board the Canadian vessel "Cape Roger" - a vessel owned by Her Majesty the Queen in Right of Canada and operated by employees, servants and agents of Her Majesty under the direction of the Minister of Fisheries and Oceans - members of the Royal Canadian Mounted Police and Canadian fisheries officers boarded and took over the "Estai".

[9]                 Canada's position is that, at the time of the seizure, the "Estai" was fishing Greenland halibut in contravention of section 5.2 of the Coastal Fisheries Protection Act, R.S.C. 1985 c. C-103, which provides:

[10]            By SOR/95-136, published in the Canada Gazette on March 22, 1995, but coming into force on March 3, 1995, section 21 of the Coastal Fisheries Protection Regulation was amended to include "foreign fishing vessels flying the flag of Spain" as a "prescribed class" for purposes of section 5.2 of the Coastal Fisheries Protection Act.

[11]            As a result of the foregoing, the plaintiffs commenced legal proceedings in this Court against Her Majesty the Queen. The plaintiffs claim damages, trespass, assault and negligent navigation against the defendant. In addition, the plaintiffs seek punitive and exemplary damages.

[12]            In support of their claim, the plaintiffs allege that section 6 of the Coastal Fisheries Protection Act did not authorize Canada to make regulations that discriminate on the basis of national origin of the fishing vessel. Furthermore, the plaintiffs allege that regulation P.C. 1995-373 of March 3, 1995, was ultra vires the regulation making authority given to the Governor in Council in section 6 of the Coastal Fisheries Protection Act. Finally, the plaintiffs allege that the impugned regulation discriminates against Spanish nationals, contrary to section 15 of the Charter.

[13]            On October 4, 2000, MacKay J. made an Order allowing the plaintiffs to amend their Statement of Claim. Specifically, MacKay J. allowed the plaintiffs to add two paragraphs to support their claim regarding the vires of the impugned regulation. New paragraphs 34 and 35 of the Statement of Claim read as follows:

34.           The plaintiffs state further that the Regulation (P.C.1995-372) was not enacted for the purposes of sound conservation and management or for any other purpose authorized by the Coastal Fisheries Protection Act, and was ultra vires the authority conferred by the Coastal Fisheries Protection Act.

35.           The plaintiffs state further that the defendant engaged in vote buying to obtain an unfair proportion of the total allowable catch of Greenland Halibut, and that such vote buying precipitated in breakdown in international agreements for fishing the international sea. The plaintiffs state the authority conferred by the Coast Fisheries Protection Act for the management of fishing in international waters did not authorize vote buying by Canada.

[14]            Following the filing of the plaintiffs' Amended Statement of Claim on October 20, 2000, the defendant filed an Amended Statement of Defence on November 3, 2000. On November 10, 2000, the plaintiffs filed a Reply to the defendant's Amended Statement of Defence.

[15]            On July 13, 2001, Leo Strowbridge, a Crown official, was examined on discovery by the plaintiffs. During the course of the examination, Mr. Strowbridge was questioned regarding the circumstances of the NAFO meeting and vote which took place in Brussels on January 30-February 1, 1995. Counsel for the defendant objected to certain questions and invoked sections 37and 38 of the Canada Evidence Act. In their Notice of Motion filed July 23, 2001, the plaintiffs seek an Order compelling the defendant to answer the following questions:

(a)        Did Canada give quotas within Canadian waters to Cuba in exchange for its vote?

(b)        Was there a link between fishing rights for Cuba provided by Canada and Cuba's vote at the Brussels meeting in question?

(c)        Were any concessions made or offered by Canada to Cuba, either fishing or non-fishing, for its vote or support at the NAFO meeting in Brussels on January 30-February 1, 1995?

[16]            The plaintiffs also seek an Order compelling the defendant to answer the following additional questions:

(a)        Were any concessions made or offered to Japan either fishing or non-fishing for its vote or support by Canada at the NAFO meeting in Brussels, January 30-February1, 1995?

(b)        Did the Minister of Fisheries & Oceans call in the delegate from Korea and tell the delegate from Korea that if the Koreans couldn't vote with Canada, they had better abstain?

(c)        Was there a threat to Korea either to vote with the Canadian position or to abstain?

(d)        Was Poland offered a little bit of silver hake for its support of the Canadian position?

(e)        Was there a link between Japan's support of the vote and its tuna contract in Canadian waters?

(f)         Were any concessions made or offered to Russia either fishing or non-fishing for its vote or support at the NAFO meeting in Brussels?

(g)        Were any concessions made or offered to Iceland either fishing or non-fishing for its voted or support at the NAFO meeting in question?

(h)        Were any concessions made or offered to Norway either fishing or non-fishing for its support at the NAFO meeting in question?

(i)         Were any concessions made or offered to Denmark either on behalf of the Faroe Islands or on behalf of Greenland for its vote or support at the NAFO meeting in question?

(j)         Were any concessions made or offered to Korea either fishing or non-fishing for its vote or support at the NAFO meeting in question?

(k)        Were any concessions made or offered to the European Union, Poland, Latvia, Lithuania, or Estonia in support or in exchange for its vote or support at the NAFO meeting in question?

[17]            Canada objects to these questions on the ground of sections 37 and 38 of the Canada Evidence Act, for the reasons that appear in parts D and E of Brian Buckley's Certificate, dated April 10, 2001.

[18]            The issue for determination before me is whether the defendant ought to be compelled to answer the questions objected to on the basis of sections 37 and 38 of the Canada Evidence Act, which read as follows:

[19]            As I have just indicated, the defendant's objection to answering the questions in respect of which the plaintiffs seek Orders, is based on the reasons given by Brian Buckley in parts and D and E of his Certificate, dated April 10, 2001. Paragraphs 18 to 23 of the Certificate, under the headings "D. CONTINUING CONTACTS AND SOURCES OF INFORMATION" and "E. STRATEGIES AND POSITIONS IN NEGOTIATIONS AND BILATERAL OR MULTILATERAL RELATIONS", read as follows:

D.            CONTINUING CONTACTS AND SOURCES OF INFORMATION

18.           Governments of foreign states or institutions or international organizations thereof, and contacts and sources with those states and institutions and international organizations, often provide information concerning international relations under the expressed or implied condition that the information and/or the identities of the sources and contacts be protected from disclosure. Such information may be provided by and received from sources and contacts in Canada and abroad, respecting a wide variety of sensitive matters, including economic and social policies.

19.           The release of such information, and/or the names, titles and other identifying features of continuing contacts and sources of that information, could be injurious to Canada's international relations because it could compromise or impair the trust or confidence of the governments, institutions, international organizations or individuals from which or from whom the information originated, and thereby jeopardize the ability of the Department of Foreign Affairs and International Trade or the Government of Canada to continue to benefit from such relationships and to conduct diplomatic and consular relations effectively.

20.           In addition, it is essential for the effective conduct of diplomatic and consular relations and international negotiations that Canadian officials who obtain information from contacts and sources be permitted to be candid in reporting that information, as well as their opinion, views or recommendations respecting the information and contacts and sources with whom they deal, to or within the Government of Canada. Releasing the identifies of Canadian officials and their sources or contacts together with the opinions, views or recommendations of the officials may in some circumstances compromise or impair the trust or confidence of continuing sources and contacts for those officials and thereby jeopardize the ability of the Department of Foreign Affairs and International Trade of the Government of Canada to continue to benefit from such relationships and to conduct diplomatic and consular relations effectively.

E.             STRATEGIES AND POSITIONS IN NEGOTIATIONS AND BILATERAL OR MULTILATERAL RELATIONS

21.           Information on the positions adopted or to be adopted by the Government of Canada, or governments of foreign states or international organizations for the purpose of relating to negotiations, or to bilateral or multilateral relations more generally, is also communicated to, by or within the Government of Canada, generally on an understanding that it will not be made public. This includes particulars of the negotiating strategies and positions of Canada and other Northwest Atlantic Fisheries Organization members (hereinafter referred to as "NAFO"), as well as non-NAFO members, on issues addressed at or relevant to the NAFO organization, and opinions expressed by Government of Canada officials on the strategies and positions and officials with foreign states.

22.           The release of such information could reasonably be injurious to Canada's international relations because it could compromise present or future negotiations between Canada and foreign states or international organizations, and Canada's bilateral or multilateral relations with foreign states or international organizations more generally, by revealing the strategies and motivations underlying the position of Canada and other states or international organizations on current negotiations and issues.

23.           Moreover, the conduct of international negotiations, and of bilateral and multilateral relations more generally, normally require a degree of candor on the part of Canadian and foreign representatives regarding the relative positions, objectives and personalities involved in those negotiations and relations, including criticisms by government officials of the position of their own or other governments or international organizations. Releasing information of this nature could reasonably be expected to have a chilling effect on the degree to which the representatives of Canada and foreign states or international organizations may be forthright in their negotiations and relations, and thereby inhibit the effectiveness, and in some circumstances the continuation, of those negotiations and relations.

[20]            Mr. Buckley, a retired Canadian foreign service officer, reviewed 1,069 documents and concluded that 676 documents should not be disclosed on the grounds of public interest. The 1,069 documents reviewed by Mr. Buckley are those documents found in Schedule II of the Affidavit of Documents dated March 30, 1999, of Leo Strowbridge. More particularly, the 1,069 documents appear under the heading "Bundle ‘C' - International Relations". Under that heading, the following appears:

The Defendant objects, pursuant to section 37 and 38 of the Canada Evidence Act, to produce the documents in Bundle "C" numbered from 1 to 1069 on the ground that disclosure of the documents would be injurious to Canada's international relations or national defence and security.

[21]            On April 5, 2001, Mr. Strowbridge filed a Supplementary Affidavit of Documents. With respect to Schedule II of his Affidavit of Documents, dated March 30, 1999, Mr. Strowbridge, makes the following statement:

5.             I repeat and rely upon that which I listed and described in Schedule II in my Affidavit sworn on March 30, 1999 all of the relevant documents, or bundles of relevant documents, that are or were in the Defendant's possession, power or control and for which privilege is claimed and have stated in that Schedule the grounds for each claim of privilege in respect of a document or bundle of documents.

[22]            Mr. Buckley's Certificate, dated April 10, 2001, was served upon the plaintiffs on April 12, 2001. At paragraphs 8 to 15, Mr. Buckley states his grounds for objecting to the disclosure of certain documents:

8.             After personally examining and carefully considering some 1969 documents, I concluded that the 676 documents, listed in Schedule "A", should not be disclosed on the grounds of public interest. The remaining documents are duplicates, irrelevant or are included in the Supplementary Affidavit of Leo Strowbridge sworn on April 5, 2001.

9.             I have examined and carefully reviewed the documents listed in Schedule "A" attached hereto for the purpose of determining whether they contain information which should not be disclosed on the grounds of public interest, specifically that disclosure would be injurious to international relations and national security pursuant to sections 37 and 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

10.           I certify to this Honourable Court, pursuant to sections 37 and 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5, that the documents referred to in the said Schedule are documents that should not be released on the grounds of public interest for the reasons set out in the Schedule "A" attached hereto and I object to the disclosure of these documents and the information contained therein.

11.           More particularly, Schedule "A" contains documents and information therein the disclosure of which would jeopardize international relations by disclosing:

(a)            the identifies of continuing contacts and sources of confidential information, as well as confidential information obtained from these sources;

(b)           information on the positions or strategies adopted or to be adopted by the government of Canada or the governments of foreign states for the purpose of or relating to negotiations or to bilateral or multilateral relations.

12.           Further, Schedule "A" contains documents and information therein the disclosure of which would be contrary to the public interest by disclosing diplomatic positions, strategies and techniques adopted by the Government of Canada.

13.           Further, Schedule "A" contains documents and information therein the disclosure of which would be contrary to national security by disclosing plans and information gathered for purposes of national defence.

14.           I further certify that the public interest in preventing the injury caused by the release of the information contained in the documents referred to in Schedule "A" would significantly outweigh any public interest in the disclosure of this information for the purposes of this proceeding.

15.           If oral evidence were sought to be given on the contents of these documents to the disclosure of which I have in this certificate objected, I would object to such evidence on the same grounds as those herein set out in relation to the documents in question. [Emphasis added]

[23]            Although served on April 12, 2001, the plaintiffs have not contested Mr. Buckley's grounds of objection to disclosure. I should add that concerning the 676 documents in respect of which he concluded that there should be no disclosure, Mr. Buckley gave a description of each document and the reasons for his objection.

[24]            In Singh (J.B.) v. Canada (Attorney Genera) 2000, 186 F.T.R. 1, MacKay J., at pages 6, 7, 14 and 15, sets forth the relevant principles regarding the determination of whether disclosure ought to be directed:

[10]         The seminal case in matters such as this, Goguen and Albert v. Gibson, sets out a two stage process that has been followed in all subsequent applications under ss. 37 and 38. Perusal of the information that is subject to the objection to disclose is not undertaken by the designated judge unless, as a preliminary matter, the judge is satisfied that the public interest in disclosure is sufficiently compelling to require that the information be examined in order to determine where the balance lies between that public interest and the public interest in not disclosing the information. Mr. Chief Justice Thurlow discussed the first step that must be taken before a decision is made regarding an inspection of the documents in question:

" ... it appears to me that the nature of the application is such that before exercising the authority to examine the information the judge hearing the application will have to be persuaded on the material that is before him either that the case for disclosure, that is to say, the importance of the public interest in disclosure, in the circumstances outweighs the importance of the public interest in keeping the information immune from disclosure or, at the least, that the balance is equal and calls for examination of the information in order to determine which public interest is more important in the particular circumstances."

[11]         The onus is on the party making the application for disclosure to demonstrate that the public interest served by disclosure outweighs the public interest in maintaining the secrecy of the information in question. Further, Thurlow, C.J., continued in Goguen:

"On the other hand, if no apparent case for disclosure has been made out, if the balance does not so much as appear to be even, the preponderance obviously favours the upholding of the objection and in such a situation I do not think the subsection requires the Court to examine the information to see if it will tip the balance the other way."

Mr. Justice Marceau, in his minority concurring judgement at the Court of Appeal, considered the two-stage procedure and was of the opinion that it was inevitable. Inspection should only take place, he wrote:

"If, and only if, [the Court] is persuaded that it must do so to arrive at a conclusion or, put another way, if, and only if, on the sole basis of the material before it, it cannot say whether or not it will grant or refuse the application."

[12]         At this stage, in assessing where the balance may lie between disclosure and nondisclosure, various factors have been considered by the Court. In R. v. Khan (N.M.) et al., Mr. Justice Rothstein, then of the Trial Division, summarized the factors that have been considered in previous cases:

"(a) The nature of the public interst sought to be protected by confidentiality;

(b) Whether the evidence in question will ‘probably establish a fact crucial to the defence';

(c) The seriousness of the charge or issues involved;

(d) The admissibility of the documentation and the usefulness of it;

(e) Whether the applicants have established that there are no other reasonable ways of obtaining the information;

(f) Whether the disclosures sought amount to general discovery or a fishing expedition."

                                                                          [...]

[38]         I am not persuaded that the onus is on government, at this stage, to demonstrate that disclosure will cause injury to the public interests identified, particularly in regard to national security and international relations. Rather, as I under the jurisprudence following Goguen v. Gibson, at this stage of an application under s. 38 of the Canada Evidence Act, to challenge an objection to disclosure of information, based on grounds that disclosure would be injurious to international relations or national security, the onus is upon the applicant to persuade the Court that the information, if relevant as is here acknowledged, is crucial to the public interests which are at issue in the circumstances of the applicants. An assumption of regularity, of applying the law properly, supports the objections filed by responsible officers of the Crown, whether the Court decides to examine or not to examine the information in question. It is the public interests relied upon in those objections which are to be weighed against the public interests in disclosure.

[25]            As Mr. Justice MacKay clearly explains, the issue of whether disclosure ought to be ordered is dealt with in a two-stage process. In the first stage, the onus is upon the plaintiffs herein to convince me "that the public interest in disclosure is sufficiently compelling to require that the information be examined in order to determine where the balance lies between that public interest and the public interest in not disclosing the information".

[26]            For the reasons that follow, I am of the view that the plaintiffs have not met their onus and, hence, the Orders which they seek will be denied. Let me first state that I am satisfied that there is a public interest in not disclosing the information sought by the plaintiffs. More particularly, I am satisfied that disclosure of the sought-after information would be injurious to Canada's international relations. In my view, this conclusion does not require any elaboration. It is undeniable that disclosure would have a "chilling effect" on Canada's international relations.

[27]            In R. v. Khan, [1996] 2 F.C. 316, to which MacKay J. referred in his Reasons in Singh, supra, Mr. Justice Rothstein (as he then was), summarized the factors which ought to be considered in coming to a determination in regard to the first stage. Factors (b), (c) and (d) are the following:

                (b) Whether the evidence in question will ‘probably establish a fact crucial to the defence';

(c) The seriousness of the charge or issues involved;

(d) The admissibility of the documentation and the usefulness of it;

[28]            In my view, the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs' case. I have great difficulty understanding how the answers which the plaintiffs seek are relevant to the issues which the trial judge will have to decide. The plaintiffs are claiming damages, a declaration that the regulation precluding Spanish vessels from fishing in the Convention area violates section 15 of the Charter, and a declaration that the impugned regulation is ultra vires.

[29]            There cannot be much doubt that the questions to which the plaintiffs seek answers are not relevant to the plaintiffs' Charter argument. I also fail to see how the means used by Canada to obtain support or concessions from foreign states in regard to the NAFO vote have any bearing on or relevance to the issue of whether regulations under the Coastal Fisheries Protection Act were authorized by the enabling statute.

[30]            The plaintiffs argument appears to stem from the premise that because Canada made deals with other countries to secure a larger quota for itself, the impugned regulation is ultra vires. I cannot understand the rationale behind this argument. At best for the plaintiffs, the argument might point to an irregular NAFO vote. However, that is not, in my view, a relevant issue for this Court. Whether Canada engaged in "vote buying" at NAFO to ensure for itself a larger amount of the turbot quota is irrelevant to the issues before this Court. The plaintiffs' Statement of Claim claims damages arising from the defendant's alleged unlawful seizure of the "Estai" and her crew. The plaintiffs might succeed if they can demonstrate that the impugned regulation was of no force or effect when their vessel was seized. The plaintiffs might be able to demonstrate that the regulation was passed either for an improper purpose or that it was not properly promulgated at the time of the seizure. However, it is difficult to see how evidence concerning Canada's relations with other countries, and particularly Canada's relations regarding the granting of concessions to and by other countries, can be relevant to the issues before this Court.

[31]            To put it bluntly, I am of the view that whether Canada obtained support for a NAFO resolution through "vote-buying" has nothing to do with whether Canada violated section 15 Charter rights or whether the impugned regulation is ultra vires.

[32]            Consequently, I have no hesitation in concluding that the defendant need not answer the questions posed on July 13, 2001. In my view, Canada's interest in protecting its present and future international relations with foreign countries, as explained by Mr. Buckley in his Certificate, clearly outweighs the plaintiffs' economic interest in disclosure of the information sought by its questions.

[33]            The plaintiffs' motions shall therefore be dismissed. Costs shall be in the cause.

                                                                                               Marc Nadon

                                                                                                       JUDGE

O T T A W A, Ontario

December 24, 2001