Docket: IMM-3622-14
Citation:
2014 FC 693
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 18, 2014
PRESENT: The Honourable Madam Justice Bédard
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BETWEEN:
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ABOUBACAR BAH
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
This order follows the confidentiality order
issued orally at the hearing on July 10, 2014, and completes it.
I.
Background
[2]
This is a motion for an order of confidentiality
submitted by the respondent, the Minister of Citizenship and Immigration [the
Minister], in the application filed by the applicant for leave and judicial
review of a decision dated April 10, 2014, by the Refugee Protection
Division of the Immigration and Refugee Board [the RPD], rejecting his refugee
claim. This application for leave has not yet been dealt with by the Court.
[3]
The hearing of the motion took place in
camera.
[4]
The Minister is requesting that Exhibit M‑13
of the applicant’s record and any reference to that exhibit or its contents in
the applicant’s record and in the RPD’s decision that is the subject of the
application for leave and judicial review be declared confidential and sealed.
[5]
Exhibit M‑13 consists of an investigation
report [the investigation report] prepared by the Intelligence
Division of the Canada Border Services Agency [CBSA]. The investigation
was initiated to review the files of a number of refugee claimants that
contained numerous similarities; this was done to determine whether the methods
and networks used by these persons to enter Canada were a threat to the
integrity of Canadian immigration programs. Generally, the purpose of the
investigation was to examine whether the refugee claimants at issue were members
of a group that used the same fraudulent, organized scheme to enter Canada and seek refugee status there. The investigation report refers to the research,
methodology and analysis that was done and the CBSA’s findings. It also
contains the identification numbers of the persons under investigation.
[6]
The applicant was one of the persons under
investigation by the CBSA. It appears from the evidence that the RPD did not
hear all the refugee claims of the other persons involved in the CBSA
investigation.
[7]
The Minister intervened in the applicant’s
hearing before the RPD to oppose his refugee claim because he had entered Canada fraudulently. In support of his opposition, the Minister filed the CBSA’s
investigation report. It is helpful to note that the hearing before the RPD was
held in camera but that counsel for the Minister sent the RPD and
applicant’s counsel a complete, unredacted version of the CBSA’s investigation
report (Exhibit M‑13 to the applicant’s record). The RPD rejected the
applicant’s refugee claim, and its decision was based in part on the CBSA’s
investigation report.
[8]
The Minister argues that the investigation
report, in its complete version and with no measures taken to maintain its
confidentiality to protect the identity of the persons under investigation, was
sent to the applicant and filed before the RPD in error, contrary to the CBSA’s
guidelines. The affidavits of two CBSA officers filed in support of the motion for
a confidentiality order confirm this allegation.
[9]
In his motion for a confidentiality order, the
Minister initially requested that the CBSA’s investigation report (Exhibit
M-13) be removed in its entirety from the Court file. The applicant, for his
part, did not object to the investigation report being declared confidential but
did object to it being removed in its entirety from the file on the basis that
it was relevant evidence for the purposes of determining the application for
leave and judicial review of the RPD’s decision. I share the applicant’s view
in this regard. At the hearing, I indicated to the parties that, in the
circumstances of this case, it seemed clear to me that the CBSA’s investigation
report was relevant for the purposes of determining the application for leave
and judicial review because the RPD’s decision was, in part, based on the
investigation report. In addition, this report was introduced into evidence
before the RPD by the Minister himself in support of his intervention. In my opinion,
the Minister cannot, a posteriori and after using the report to
justify his opposition to the applicant’s refugee claim, ask the Court to
simply remove it from the file. Exchanges between counsel and the undersigned resulted
in an agreement between the parties and permitted me to order measures (which I
will repeat in the conclusions of this order) that I consider appropriate to
protect the confidentiality of the CBSA’s report (Exhibit M‑13 to the
applicant’s record) without infringing the applicant’s right to put forward all
his arguments in support of his application for leave and judicial review.
II.
Analysis
(a)
Legal framework
[10]
Rule 151 of the Federal Courts Rules,
SOR/98-106, [the Rules] governs motions for an order of confidentiality and
reads as follows:
Motion for
order of confidentiality
151. (1) On
motion, the Court may order that material to be filed shall be treated as
confidential.
Demonstrated need for confidentiality
(2) Before making an order under subsection
(1), the Court must be satisfied that the material should be treated as
confidential, notwithstanding the public interest in open and accessible court
proceedings.
151 REQUÊTE EN CONFIDENTIALITÉ
(1) La Cour peut, sur requête, ordonner que des
documents ou éléments matériels qui seront déposés soient considérés comme
confidentiels.
(2) Circonstances justifiant la
confidentialité –
Avant de rendre une ordonnance en application
du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer
les documents ou éléments matériels comme confidentiels, étant donné l’intérêt
du public à la publicité des débats judiciaires.
[11]
Rule 151 of the Rules deals specifically with
cases where the documents for which one party claims confidentiality have not
yet been filed in the Court file. Rule 152 deals with the applicable terms and
conditions and the parties’ obligations where material is declared confidential
under rule 151.
[12]
The situation in this case is different because
the CBSA’s investigation report is included in the applicant’s record, which
was already filed with the Court. It is therefore already in the public domain,
which causes problems with respect to the real scope of a confidentiality
order. Moreover, the RPD’s decision, which was also filed in the Court file in
its entirety, contains excerpts from this report.
[13]
I find that section 44 of the Federal
Courts Act, RSC 1985, c F-7 as well as rules 4 and 26(2) of the Rules
give the Court the power to deal with a motion for a confidentiality order even
where the documents in question have already been placed in the Court file and
to apply, by analogy, the principles set out in rules 151 and 152 (Sellathurai
v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA
223 at para 20, 30, 32-38, 42-46; Sellathurai v Canada (Minister of Public
Safety and Emergency Preparedness), 2012 FCA 299 at para 16). I also find,
for the reasons that follow and despite the fact that the CBSA’s investigation
report and the references to its content in other documents are already in the
public domain, that the investigation report should be declared confidential
and that it is appropriate to issue a confidentiality order to protect the
confidentiality of the report to the extent possible
[14]
Under rule 151 of the Rules, before making
a confidentiality order, the Court must be satisfied that the material should
be treated as confidential, notwithstanding the public interest in open and
accessible court proceedings. It is clear from the rule and the jurisprudence
on confidentiality orders that confidentiality is an exception to the general
rule of open and accessible court proceedings that must be applied with caution
and rigour. In Sierra Club of Canada v Canada (Minister of Finance),
2002 SCC 41, [2002] 2 S.C.R. 522 [Sierra Club], the Supreme Court set out the
guidelines and the test that the Court must apply on a motion for a confidentiality
order. Prior to issuing a confidentiality order, the Court must be satisfied
that the need to protect the confidentiality of a document outweighs the public
interest in open and accessible court proceedings. The Court repeated and
adapted the two‑part test set out in previous decisions (Dagenais v
Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) [Dagenais];
Canadian Broadcasting Corp. v New Brunswick (Attorney General), [1996] 3
SCR 480, 1996 CanLII /84 (SCC); R v Mentuck, 2001 SCC 76, [2001] 3 SCR
442) [Mentuck]) to the context of the case that was before it. Accordingly,
a confidentiality order will be made only if the Court considers that
(1)
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.
(2)
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.
(Sierra Club
at pp. 543-544; see also British Columbia Lottery Corporation v Canada (Attorney
General), 2013 FC 307 at para 35-36 [British Columbia])
[15]
The Court also reiterated that three elements
must be considered under the first part of the test: (1) the risk must be
serious and well grounded in evidence; (2) the Court must ensure that it does
not prevent the disclosure of an excessive number of documents; and (3) the
Court must determine whether reasonable alternatives are available and must
restrict the order as much as possible (Sierra Club at pp. 540, 543, 544).
[16]
In Canadian Broadcasting Corp v The Queen,
2011 SCC 3, [2011] 1 S.C.R. 65 at para 13, the Court pointed out that the
analytical approach developed in Dagenais and Mentuck applies to
all discretionary decisions that affect the openness of proceedings.
[17]
In Mccabe v Canada (Attorney General),
2000 CanLII 15987 (FC), Justice Dawson addressed the relevant criteria and
the onus on the party seeking a confidentiality order:
[6] This application is made against the
backdrop of the general principle that judicial proceedings in this country are
open to the public. That principle has been extended to documents filed with
the Court. The circumstances where that principle of openness is departed from
are narrowly circumscribed.
[7] In Canada
(Minister of Citizenship and Immigration) v. Fazalbhoy (T-2589-97, January 13, 1999 (F.C.T.D.)) my colleague Gibson, J.
stated:
[11] To justify a derogation from the
principle of open and accessible court proceedings, and I am satisfied that
that principle extends to open and accessible court records, Rule 151(2)
requires that the Court must be satisfied that the material sought to be
protected from access should be treated as confidential. The extract from Pacific Press (supra), makes it clear
that the onus on an applicant such as the respondent here to so satisfy the
Court is a heavy one.
[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) (A-289-98, A-315-98, A-316-98, May 11, 1999 (F.C.A.)) affirming
(1998) 1998 CanLII 7657 (FC), 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.
(see also British Columbia at para 36)
(b)
Confidentiality of the CBSA’s investigation report
(Exhibit M‑13 to the applicant’s record)
[18]
It should be reiterated that the applicant did
not object to the investigation report being declared confidential. However, a
consent to a motion for a confidentiality order is not sufficient for the Court
to issue it (Stoney First Nation v Shotclose, 2011 FCA 232; British Columbia at para 34). The Court must be satisfied that the order is
warranted based on the assessment criteria developed in the jurisprudence.
[19]
In this case, the Minister has satisfied me that
the CBSA’s investigation report (Exhibit M‑13 to the applicant’s record) should
be declared confidential.
[20]
What is the serious risk for an important
interest that the Minister seeks to prevent through his motion for a
confidentiality order?
[21]
The Minister’s motion is supported by the
affidavits of two CBSA officers. It is clear from these affidavits that the
purpose of the CBSA’s investigation, which led to the investigation report, was
to review whether the refugee claimants who had submitted applications with a
number of similarities had used a fraudulent, organized scheme to enter Canada illegally. This type of investigation falls under the CBSA’s functions. The mission
of the CBSA is set out in section 5 of the Canada Border Services
Agency Act, SC 2005, c 38:
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5. (1) The Agency is responsible for providing integrated border
services that support national security and public safety priorities and
facilitate the free flow of persons and goods, including animals and plants,
that meet all requirements under the program legislation, by
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5. (1) L’Agence est chargée de fournir des services frontaliers
intégrés contribuant à la mise en œuvre des priorités en matière de sécurité
nationale et de sécurité publique et facilitant le libre mouvement des
personnes et des biens — notamment les animaux et les végétaux — qui
respectent toutes les exigences imposées sous le régime de la législation
frontalière. À cette fin, elle:
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(a)
supporting the administration or enforcement, or both, as the case may be, of
the program legislation;
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a) fournit l’appui nécessaire à
l’application ou au contrôle d’application, ou aux deux, de la législation
frontalière;
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(b) implementing agreements between the Government of
Canada or the Agency and a foreign state or a public body performing a
function of government in a foreign state to carry out an activity, provide a
service or administer a tax or program;
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b) met en œuvre tout accord conclu
entre elle ou le gouvernement fédéral et un État étranger ou un organisme
public remplissant des fonctions gouvernementales dans un État étranger et
portant sur l’exercice d’une activité, la prestation d’un service,
l’administration d’une taxe ou l’application d’un programme;
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(c)
implementing agreements between the Government of Canada or the Agency and
the government of a province or other public body performing a function of
the Government in Canada to carry out an activity, provide a service or
administer a tax or program;
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c) met en
œuvre tout accord conclu entre elle ou le gouvernement fédéral et le
gouvernement d’une province ou un organisme public remplissant des fonctions
gouvernementales au Canada et portant sur l’exercice d’une activité, la
prestation d’un service, l’administration d’une taxe ou l’application d’un
programme;
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(d)
implementing agreements or arrangements between the Agency and departments or
agencies of the Government of Canada to carry out an activity, provide a
service or administer a program; and
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d) met en œuvre tout accord ou entente
conclu entre elle et un ministère ou organisme fédéral et portant sur
l’exercice d’une activité, la prestation d’un service ou l’application d’un
programme;
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(e)
providing cooperation and support, including advice and information, to other
departments and agencies of the Government of Canada to assist them in
developing, evaluating and implementing policies and decisions in relation to
program legislation for which they have responsibility.
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e) fournit aux autres ministères ou
organismes fédéraux l’appui et la collaboration nécessaires, notamment par la
prestation d’avis ou de renseignements, pour les aider dans l’élaboration,
l’examen et la mise en œuvre des orientations et des décisions relatives à la
législation frontalière qui relève d’eux.
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[22]
This type of report, prepared in line with the
CBSA’s investigation powers, appears to me to be a document covered by the
exception in section 16 of the Access to Information Act, RSC 1985,
c 1 (2nd Supp.), which would enable the CBSA to refuse to publicly disclose it.
[23]
It is also clear from the evidence that the CBSA
did not intend for this investigation report to be in the public domain and
that it was not until June 25, 2014, that its officer was informed that it
had been filed before the RPD and in the Court file. Indeed, the first page of
the report contains a warning that dissemination of it is strictly controlled
and reproduction of it is prohibited without the written authorization of the Intelligence
Division of the CBSA. The evidence also shows that the CBSA did not authorize
the disclosure or filing of the investigation report and that it would not have
authorized the filing of this report without first redacting the information
that the CBSA considered confidential.
[24]
Accordingly, the evidence establishes that the
filing of the complete version of the investigation report at the hearing of
the applicant’s refugee claim before the RPD was an error on the part of the
Minister and was done without the CBSA being informed of it.
[25]
The report clearly contains information that identifies
the persons who were under investigation and also reveals the CBSA’s methods
and investigation techniques as well as the research and reviews it conducted. Apart
from the applicant, the persons investigated by the CBSA and identified in the
investigation report are not involved in this case. In addition, the evidence
shows that the RPD has not heard all the refugee claims of the other persons
identified in the investigation report. I find, in light of the evidence and
the contents of the report, that public access to the investigation report, in
its current form, could adversely affect the ongoing proceedings relating to
the refugee claims of the other persons identified in the CBSA’s investigation
report.
[26]
In the circumstances, it appears to me that this
motion for a confidentiality order is aimed at preventing a serious risk—a
possible interference with the normal course of the refugee claims of the
persons identified in the investigation report—that is well grounded in the
evidence.
[27]
The evidence establishes that, before it was filed,
the investigation report should have been internally redacted by the CBSA so
that confidential information would be expunged. No redacted version of the
report was available at the hearing, and it appears difficult to me, based on
the evidence and the stage of the proceedings, to identify the information in the
investigation report that could remain in the public domain without the
redacted report being an empty, incomprehensible shell. Consequently, in light
of the information I have, it appears difficult to me to identify a reasonable
alternative that would avoid sealing the investigation report (Exhibit M‑13
to the applicant’s record).
[28]
Considering the impact that the disclosure of
the CBSA’s investigation report could have on processing the refugee claims of
the other persons who were investigated, I find that the salutary effects of a
confidentiality order fall within the smooth operation of administrative and
legal procedures and challenge the effectiveness of the administration of
justice. Moreover, the benefits of a confidential order in the circumstances of
this case outweigh, in my view, its deleterious effects including its effects on
freedom of expression, which encompasses the public interest in open and
accessible court proceedings.
[29]
At this stage of the proceedings, and given the
circumstances and the exchanges I had with the parties at the hearing, I find
it is reasonable to order that the measures necessary for maintaining the
confidentiality of the CBSA's investigation report be implemented. Moreover,
this case is only at the stage of the application for leave to seek judicial
review of the RPD’s decision rejecting the applicant’s refugee claim. If the
application for leave is granted, the case will proceed, and it is possible
that the circumstances presented to me will evolve over time. If necessary, it
will be up to the parties, if they consider it advisable, to bring the matter
back to Court in order for it to determine whether this order is still
appropriate and, if that is the case, to identify the measures that must be implemented
to maintain the confidentiality of the investigation report (Exhibit M‑13
of the applicant’s record) or of certain information contained in the report
for the purpose of the judicial review hearing.
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