Date: 20100707
Docket: DES-1-10
Citation: 2010
FC 733
Ottawa, Ontario,
July 7, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant/Responding Party
and
ABDULLAH ALMALKI, KHUZAIMAH
KALIFAH, ABDULRAHMAN
ALMALKI, by his Litigation Guardian
Khuzaimah Kalifah, SAJEDA ALMALKI,
by her Litigation Guardian Khuzaimah
Kalifah, MUAZ ALMALKI, by his Litigation
Guardian Khuzaimah Kalifah, ZAKARIYY A
ALMALKI, by his Litigation Guardian
Khuzaimah Kalifah, NADIM ALMALKI, FATIMA
ALMALKI, AHMAD ABOU-
ELMAATI, BADR ABOU-ELMAATI, SAMIRA AL
SHALLASH, RASHA ABOU-
ELMAATI, MUAYYED NUREDDIN, ABDUL JABBAR
NUREDDIN, FADILA
SIDDIQU, MOFAK NUREDDIN, AYDIN NUREDDIN,
YASHAR NUREDDIN,
AHMED NUREDDIN, SARAB NUREDDIN, BYDA
NUREDDIN
Respondents/Moving Parties
REASONS FOR ORDER AND ORDER
[1]
Pursuant
to section 38.04 of the Canada Evidence Act, R.S., 1985, c. C-5 (the
“CEA”), the Attorney General of Canada has applied to the Federal Court to
authorize the non-disclosure of information that is the subject of discovery
proceedings in actions filed in the Superior Court of Justice of Ontario. By
motion in writing dated May 13, 2010, the respondents seek an order that
documents filed by the Attorney General in support of the application in the
Federal Court Registry shall be treated as confidential.
[2]
Upon the
Court being informed of the respondents’ intent to bring this motion, the
Registry was instructed to withhold the documents from public access pending a
decision.
Background
[3]
The
respondents are Canadian citizens who have made claims in the Superior Court of
Justice of Ontario against the Government of
Canada and certain named officials, as represented by the applicant, for
complicity in the torture of the three principle plaintiffs, Mr. Almalki, Mr.
Elmaati, and Mr. Nureddin. These claims were held in abeyance until the
conclusion of the Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar, and the consequent report (the O’Connor
Report), and the Internal Commission of Inquiry into the Actions of
Canadian Officials in Relation to Abdullah Almalki, Abou-Elmaati, and Nuayyed
Nureddin, and the consequent report (the Iacobucci Report).
[4]
Following
publication of the Iacobucci Report, the respondents sought the
discovery of documents relating to the claims and, in particular, documents
referenced by Commissioner Iacobucci in making his findings. On July 17, 2009
counsel for the Attorney General produced approximately 400 documents, portions
of which were redacted, in the context of preparation for mediation in the
civil actions. For reasons which are not material to this motion, the
mediation did not proceed.
[5]
On
February 9, 2010, the Attorney General of Canada filed an application pursuant
to section 38.04 of the CEA, for an order with respect to the disclosure of
information redacted in the documents on the ground that it is sensitive or
injurious within the meaning of those terms in the CEA.
[6]
On or
about March 19, 2010, the Attorney General filed documents with the Federal
Court Registry as part of the record in the section 38 proceeding. Clear,
unredacted versions of these documents were tendered as exhibits to private and
ex parte affidavits pursuant to section 38.11 of the CEA. The
unredacted versions are kept in the Court’s secure facilities and are not
accessible to the public.
[7]
Redacted
versions of the documents were filed by the Attorney General as an exhibit in
the form of a disk attached to the public affidavit of Pamela Dawson and are,
presumptively, accessible to the public. It is these documents which the
respondents wish to have sealed. The respondents propose that as conditions for
the issuance of the order that they be ordered to file a further redacted
version of the documents within 60 days, that the nature of the further
redactions be limited and that notice of the order be given to the major
Canadian media outlets. The practical effect of this request, if granted, would
be to allow the respondents to redact information that the government is not
seeking to protect from disclosure in the public versions of the documents.
Issue
[8]
The issue
in this motion is whether the respondents have demonstrated that the test for the
issuance of a confidentiality order has been met?
Analysis
[9]
The
grounds asserted by the respondents in support of the motion are:
a.
Rule 151 of
the Federal Courts Rules authorizes the Court to issue a confidentiality
order when it is satisfied that the material should be treated as confidential
notwithstanding the public interest in open and accessible court proceedings;
b.
that the
documents are the subject of the discovery process in civil proceedings which
the respondents have brought in the Superior Court of Justice of Ontario and in
the normal course of those proceedings would not be placed on the court record
and would not be accessible to the public until introduced as evidence in those
civil actions;
c.
that in
the circumstances, not sealing the documents would endanger family and
associates of the respondents living outside of Canada and that the Government of Canada would
not be able to render assistance to the family and associates if they were so
endangered;
d.
that the
respondents, in particular, the minor respondents, have a right to privacy
which would be violated by placing of the documents on the public record; and
e.
that the
proposed conditions of the sealing order are sufficient to ensure that the open
court principle is not significantly compromised.
[10]
The
Attorney General’s position is that the unredacted content of the versions attached
to the public affidavits is not secret and the filed documents are
presumptively public, as this court has previously held: Toronto Star
Newspapers Ltd. v. Canada, 2007 FC 128, [2007] F.C.J. No. 165 (“Toronto Star
Newspapers Ltd.”). The Attorney General submits that the respondents’
assertion of the need for confidentiality of this information does not meet the
legal requirements for such an order.
[11]
I note
that the Attorney General does not, on the face of the matter, have a direct
interest in the outcome of this motion. In oral submissions, counsel for the
respondents was critical of the Attorney General’s opposition to this motion.
That criticism was misplaced, in my view, as the Attorney General has a duty to
assist the Court in the proper interpretation and application of the law.
[12]
The
requirements for a confidentiality order were framed by the Supreme Court of
Canada in Sierra Club of Canada v. Canada (Minister of Finance), 2002
SCC 41, [2002] S.C.J. No. 42, at para. 53, as follows:
A confidentiality order under Rule 151
should only be granted when:
(a) such an order is necessary in order to
prevent a serious risk to an important interest, including a commercial
interest, in the context of litigation because reasonably alternative
measures will not prevent the risk; and
(b) the salutary effects of the
confidentiality order, including the effects on the right of civil litigants to
a fair trial, outweigh its deleterious effects, including the effects on the
right to free expression, which in this context includes the public interest in
open and accessible court proceedings.
[My Emphasis]
[13]
The
purpose of a protective order is to allow the exchange of confidential
documents between the parties while preventing access by others: Procter
& Gamble Co. v. Kimberly-Clark of Canada Ltd. (F.C.A.), (1989) 25
C.P.R. (3d) 12, [1989] F.C.J. No. 134. The procedure for filing and handling
documents subject to such an order is set out in Rule 152. Unless otherwise
ordered by the Court, only a solicitor of record or solicitor assisting in the
proceeding is entitled to have access to confidential material. Release of the
material to a solicitor requires a written non-disclosure undertaking. Rule
152(3) provides that a confidentiality order continues in effect until the
Court orders otherwise, including after final judgment and the duration of any
appeal. Such orders may remain in place, therefore, indefinitely.
[14]
The
respondents submit that they have endured years of public scrutiny and
continuing public allegations that they are involved in terrorism. Despite the
highly-publicized O’Connor and Iacobucci Inquiries, such allegations continue
to arise, they say. No judicial process, in their submission, can prevent
information being misused against the respondents once that information is on
the public record. The past violation of the respondents’ privacy is said to
be beyond prevention, but the public filing of the Exhibit 1 documents would
lead to further violations, in their submission. They fear retaliation against
themselves and their family members in circumstances where the Canadian
government has no power to protect against or mitigate that risk.
[15]
I note
that the Elmaati respondents filed some of the redacted documents in support of
a motion for production of documents in the Ontario Superior Court. A
preliminary jurisdictional issue was then raised. The documents were attached
to an affidavit of Ephry Mudryk sworn March 19, 2010. No confidentiality order
appears to have been requested for that affidavit in the Superior Court
proceedings. Subsequently, at the request of the Chief Justice of the Federal
Court during a case management teleconference in the CEA section 38
proceedings, the respondents filed the same Mudryk affidavit for the
information of this Court.
[16]
The
Attorney General submits that information contained in the exhibits is also
referenced in other public documents, such as the Iacobucci Report, and in
public court filings including the statements of claim and defence in the
underlying civil actions.
[17]
This Court
has held that confidentiality “will not be lightly ordered and such provisions
will not be ordered based on “bald” assertions of the need for such protection:
Rivard Instruments Inc. v. Ideal Instruments Inc., 2006 FC 1338, [2006]
F.C.J. No. 1711, at para. 2; Lundbeck Canada Inc. v. Canada (Minister of Health), 2007 FC 412, [2007] F.C.J.
No. 564, at para. 18. The moving party, the respondents in this case, bears a
“heavy onus” and must present evidence demonstrating the need for such an
order: Abbott Laboratories Ltd. v. Canada (Minister of Health), 2005 FC
989, [2005] F.C.J. No. 1319, at para. 68; citing A.C. v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1452, [2003] F.C.J. No. 1861, at paras. 18-19.
[18]
I also
take into consideration the following statement of Justice Eleanor Dawson in McCabe
v. Canada (Attorney General), (2000), 99 A.C.W.S. (3d) 241, [2000] F.C.J.
No. 1262, at para.8, indicating that the reliance on one’s interest in privacy
to request a confidentiality order offers no legal grounds for such an order:
8 The
justifiable desire to keep one's affairs private is not, as a matter of law, a
sufficient ground on which to seek a confidentiality order. In order to
obtain relief under Rule 151, the Court must be satisfied that both a
subjective and an objective test are met. See: AB Hassle v. Canada (Minister of
National Health and Welfare), [1999] F.C.J. No. 808,
(A-289-98, A-315-98, A-316-98, May 11, 1999 (F.C.A.)) affirming (1998) 81 C.P.R. (3d) 121.
Subjectively, the party seeking relief must establish that it believes its
interest would be harmed by disclosure. Objectively, the party seeking
relief must prove, on a balance of probabilities, that the information is in fact
confidential. [My Emphasis]
[19]
In the
normal course of discovery in civil actions, a confidentiality order is not
required as the documents produced by the parties are not filed in Court and
are subject to an implied undertaking at common law that they will not be
disclosed to third parties or used for other purposes. Subrule 30.1.01 (3) of
the Ontario Rules of Civil Procedure,
R.R.O. 1990, Reg. 194, provides that all parties and their lawyers are deemed
to undertake not to use evidence or information obtained under discovery for
any purposes other than those of the proceedings in which the evidence was
obtained: O.Reg 575/07, s.4. Rule 152 of the Federal Courts Rules
requires a written undertaking before material filed under a confidentiality
order is released to a solicitor.
[20]
Documents
produced for the purposes of discovery remain the property of the party that
produces them: Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, [1991] S.C.J. No.
23; R. v. Ellard, 2001 BCSC 470, [2001] B.C.J. No. 722, at para. 43; R.
v. Canadian Broadcasting Corp., (2006), 208 C.C.C. (3d) 257, [2006] O.J.
No. 1685, at paras. 13-14; R. v. Giles, 2008 BCSC 1900, [2008] B.C.J.
No. 2830, at para. 64.
[21]
Prior to the
Toronto Star Newspapers Ltd. decision, above, the question of public
access to the documents filed as exhibits in support of applications under
section 38.04 of the CEA did not arise. That is because the Act required that
the proceedings and the information which was the subject matter of the proceedings
be kept confidential. In Toronto Star Newspapers Ltd., Chief Justice
Lutfy held that these confidentiality requirements infringed on the open court
principle. He read the access limitations down to apply only to court sessions
held in private and to court records containing secret information.
[22]
The open
court principle, a core democratic value, is inextricably linked to the
fundamental freedoms of expression and of the media protected under section
2(b) of the Canadian Charter of Rights and Freedoms: Toronto Star
Newspapers Ltd., above, at paras. 2 and 24.
[23]
In
considering the open court principle (Ruby v. Canada (Solicitor General),
[2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, at para. 59) and that the impugned
exhibit remains the property of the party that produces them for discovery
purposes, I adopt the views of Chief Justice Lutfy in Toronto Star
Newspapers Ltd., at para. 80, stating that “subsections 38.04(4) and
38.12(1) reflect Parliament's intent to afford the designated judge the
discretion to adopt any confidentiality measures required to safeguard secret
information” [My emphasis].
[24]
Toronto
Star Newspapers
Ltd., has since been consistently followed in other section 38 proceedings:
see for example, Canada (Attorney General) v. Khawaja, 2007 FC 490,
[2007] F.C.J. No. 622; Canada (Attorney General) v. Canada (Commission of
Inquiry into the Actions of Canadian Officials in Relation to Maher Arar -
O'Connor Commission), [2008] 3 F.C.R. 248, [2007] F.C.J. No. 1081, at para.
22; Abdullah Khadr v. Canada (Attorney General), 2008 FC 549, [2008] F.C.J. No. 770.
[25]
As a
result, in keeping with the open court principle, in section 38 proceedings a
public file is now maintained by the Federal Court Registry in addition to the
private file. The public file includes documents such as the
Attorney-General’s Notice of Application, affidavits and the written
representations of the parties which do not contain sensitive information, and
is accessible to the public. The public file will also contain the unredacted
and presumptively public versions of the documents that are the subject-matter
of the application, attached as exhibits to the affidavits of witnesses for the
Attorney-General.
[26]
In Vickery,
above, at para. 9, the Supreme Court of Canada emphasised that the Court is the
keeper of its records and may exercise its discretion in excluding them from
public access where the circumstances require. As Chief Justice Dickson said
in Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175, at p.
149, “… every court has a supervisory and protecting power over its own
records.” This Court has the right to inquire into the use to be made of the
exhibit and the right to regulate that use: Giles, above, at para. 64;
citing Blue Line Hockey Acquisition Co. v. Orca Bay Hockey Limited
Partnership, 2007 BCSC 1483, [2007] B.C.J. No. 2167, at para. 37; and Ellard,
above, at para. 43; Canadian Broadcasting Corp., above, at paras. 13-14.
[27]
Again in Vickery,
above, at para. 19, the Supreme Court of Canada identified four significant
factors to be assessed when deciding whether access to exhibits (including the
ability to copy and disseminate) should be permitted: (1) the nature of the
exhibits as part of the court record; (2) the right of the court to inquire
into the use to be made of access, and to regulate it; (3) the fact that the
exhibits, having been produced at trial and open to public scrutiny and
discussion, means the open justice requirement has been met; and (4) the fact
that different considerations may govern when the proceedings have concluded
and the discussion is removed from the hearing context: see also Hyde (Re),
2010 NSPC 21, [2010] N.S.J. No. 109, at para. 11.
[28]
In
relation to the instant case, I adopt the recent views of Judge Anne Derrick of
the Nova Scotia
Provincial Court
in Hyde (Re), above, at para. 12, summarizing the important observations
of the majority in Vickery, above:
a.
Exhibits
are not the property of the court. Others will have a proprietary interest in
them. "Once exhibits have served their purpose in the court process, the
argument based on unfettered access as part of the open process lying at the
heart of the administration of justice loses some of its preeminence." (paragraphs
20-23)
b.
The court
is the custodian of the exhibit and "fully entitled" to regulate the
use to which the exhibit is to be put by the access-seeker "by securing
appropriate undertakings and assurances if those be advisable to protect
competing interests ... the court must "protect [someone with a legitimate
competing interest] and accommodate the public interest in access." (paragraphs
24-25)
c.
The open
justice requirement is met by production at trial of an exhibit and its
exposure to public scrutiny and discussion. Privacy rights may be surrendered
during a court proceeding, but they are not "surrendered for all
time." (paragraphs 26-29)
d.
Public
access to and reporting of proceedings is a price to be paid in the interests
of ensuring accountability of those engaged in the administration of justice.
"The subsequent release of selected exhibits is fraught with risk of
partiality, with a lack of fairness." (paragraphs 30-31)
[29]
In this
case, the respondents’ privacy is somewhat surrendered to the judicial process
that is taking place due to the claims that they filed in the Superior Court of
Justice of Ontario against the Government of Canada. It is trite law that
public access to and reporting of those proceedings is a price that the
respondents must pay in the interests of ensuring the accountability of those
engaged in the administration of justice: Vickery, above, at para, 31; Hyde
(Re), above, at para. 12.
[30]
In Khawaja,
above, the documents that were the subject of the Attorney General’s
application for a protection order were disclosed to Mr. Khawaja and his
counsel in keeping with the Crown’s disclosure obligations. Redacted and
unredacted versions of these documents were filed in the Federal Court Registry
as exhibits to public and private affidavits. In response to requests by
members of the press to examine the redacted versions of the documents, I
directed the Registry not to permit access to the documents. My primary reason
for doing so was that this information would not form part of the court record
in the criminal proceedings unless and until it was introduced as evidence by
either party. To permit access to the information filed in the Federal Court
could have resulted in prejudice to the accused’s fair trial rights in another
court. That consideration does not arise in this case.
[31]
While I am
sympathetic to the respondents’ submissions that they have suffered gravely
from uncontrolled publication of information about themselves, due to their
involvement in very public proceedings, I am unable to find that the
respondents have established a “real and substantial” risk of harm that is
“well-grounded in the evidence (…)”: Abbott Laboratories Ltd., above, at
para. 68; citing A.C., above, at paras. 18-19. The respondents have the
onus of demonstrating that the test for the issuance of a confidentiality order
has been met.
[32]
In this
case, the concerns cited by the respondents, absent subjective and objective
criteria on which to assess them, do not appear to be sufficient to grant the
requested order: Charkaoui (Re), 2009 FC 342, [2009] F.C.J. No. 396, at
para. 39; citing McCabe, above, at para. 8; Canada (Minister of Citizenship and
Immigration) v. Fazalbhoy,
(1999), 162 F.T.R. 57, [1999] F.C.J. No. 51, at para. 11.
[33]
In the
present motion, the respondents have given the Court no indication of what
specific information is to be treated as confidential, requesting only “sealing
the disk of redacted public documents, filed by the Attorney General as Exhibit
1 to the Affidavit of Pamela Dawson” and that they file a “further-redacted
version of those documents within 60 days.” This request for a confidentiality
order is, in my view, not tailored to the information that must be kept
confidential: Burnett v. Canada (Minister of National Revenue - M.N.R.), (1998), 158 F.T.R. 146,
[1998] F.C.J. No. 1678, at paras. 20-21.
[34]
In the
circumstances, I do not consider that I have sufficient evidence before me on
which I could grant the requested sealing order. I recognize, however, that
afforded the opportunity the respondents may be able to present evidence sufficient
to demonstrate that disclosure of the information would present a serious risk
to an important interest. I am also mindful of the fact that these proceedings
are taking place at an early stage of a discovery process that is likely to be
lengthy and involve many thousands of documents. If the actions proceed to
trial, any documents tendered in evidence will be submitted in an open court
process.
[35]
This
motion is, therefore, adjourned sine die without prejudice to the motion
being brought back on before the undersigned with a particularized list of the
information which the respondents wish be kept confidential and evidence of the
harm that disclosure of that information would cause. In the interim, and
pending the disposition of this application, the direction to the Registry to withhold
the exhibits from public access will be maintained.
ORDER
THIS COURT ORDERS that the respondents’ motion is
adjourned sine die. The Registry is directed to withhold the exhibits
attached to the public affidavit of Pamela Dawson from public access pending
further direction from the Court.
“Richard
G. Mosley”
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