Docket: T-517-15
Citation:
2016 FC 307
Ottawa, Ontario, March 10, 2016
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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HENDRIK TEPPER
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Attorney General of Canada (AGC) seeks to
protect certain documents from disclosure to Mr Hendrik Tepper, a plaintiff in
an action against the Crown, on grounds of public interest immunity. In his
action, the plaintiff alleges that he was denied adequate assistance while he
was detained in Lebanon pursuit to an Interpol warrant.
[2]
The AGC raises public interest immunity in
respect of portions of all or part of 424 documents in its possession, relying
on s 37 of the Canada Evidence Act, RSC 1985, c C-5. There are three
main grounds on which the AGC invokes s 37: The information sought to be
protected relates to (1) information about other persons who sought consular
assistance from Canada, not relevant to Mr Tepper’s claim; (2) information
relating to foreign or bilateral relations, unconnected to Mr Tepper’s
circumstances; and (3) information obtained through international policing
activities.
[3]
The AGC submits that disclosure of the
information in issue would, respectively, compromise the integrity of its
consular activities and violate the privacy expectations of other Canadian
citizens; undermine Canadian diplomatic activities; and jeopardize cooperation
with international policing organizations.
[4]
Mr Tepper submits that 150 of the 424 documents
in issue have already been disclosed to him and, therefore, that the AGC cannot
now object to their disclosure on public interest grounds. Further, he
maintains that the public interest in disclosure of the contested documents
outweighs any public interest immunity.
[5]
In the face of a s 37 application, the Court
must decide if it can be granted on the face of the supporting affidavits or if
the documents in issue must be examined before deciding the application. In
this case, based on the parties’ written and oral submissions, I decided that the
plaintiff’s concerns had sufficient merit to justify reviewing the documents themselves
to determine whether the grounds for the claimed immunity were justified. In
arriving at that conclusion, I considered the nature of the public interests put
forward by the AGC, the degree of connection between the documentary evidence
and the pleadings, the serious nature of the plaintiff’s allegations, and the
other evidence available to the plaintiff (having regard to the factors set out
in Khan v Canada (TD), [1996] 2 FC 316, at para 26).
[6]
After careful review of each of the 424
documents in issue and the AGC’s proposed redactions, I have concluded that the
public interest immunity claimed by the AGC is justified. Accordingly, I will
grant the AGC’s application.
[7]
Two issues arise on this application:
1. Can the AGC assert public interest immunity in respect of documents
already produced?
2. Should the public interest immunity be granted?
II.
Issue One – Can the AGC assert public interest
immunity in respect of documents already produced?
[8]
Mr Tepper argues that the AGC has already turned
over 150 documents in an unredacted form and cannot now claim public interest
immunity in respect of their contents.
[9]
The AGC points out that these documents were
never “disclosed” to Mr Tepper. Rather, the AGC
granted Mr Tepper’s counsel permission to review them in an effort to
demonstrate that the documents were irrelevant to this action. The AGC claims
that claims of immunity or privilege in respect of them were never relinquished.
[10]
In the circumstances, I agree with the AGC.
[11]
At various points when the parties were before
me to address issues relating to the production of documents, counsel for the
AGC repeatedly advised that issues of privilege or immunity remained to be
determined. Even as it made documents available to the plaintiff for purposes
of resolving issues relating to relevancy, at no point did the AGC abandon the
right to make claims for public interest immunity or other grounds of
non-disclosure. In fact, the AGC repeatedly reminded the Court that these
issues remained to be determined.
[12]
Accordingly, in the circumstances, I cannot
agree with the plaintiff that the AGC has waived public interest immunity in
respect of the documents in issue.
III.
Issue Two – Should public interest immunity be
granted?
[13]
Mr Tepper argues that the public interest
favours disclosure of the contents of the documents in issue. The information
that the AGC proposes to redact, he says, are relevant to his claim against the
Crown and, therefore, the interest in disclosing it supersedes the Crown’s
interest in shielding it.
[14]
I disagree. Having reviewed all of the documents
in their entirety and considered the proposed redactions in their context, I am
satisfied that the public interest in non-disclosure exceeds any benefit Mr
Tepper might derive from disclosure.
[15]
In balancing the benefits of disclosure against
the public interest in non-disclosure, I took account of the following factors:
•
The probative value of the evidence;
•
The nature of the plaintiff’s action, including
the allegations of government wrongdoing;
•
The effect that non-disclosure would have on the
public’s perception of the justice system; and
•
The timing, source, and sensitivity of the
information in issue.
(See Carey v Ontario, [1986] 2 S.C.R. 637 at para 80; Sopinka,
Lederman and Bryant, The Law of Evidence in Canada, 4th ed (Markham:
LexisNexis, 2014) at 1059, 1067).
[16]
I find that almost all of the proposed
redactions relate to information that is simply not relevant to this action.
For example, a large proportion of the redactions relate to cases of other
Canadian citizens who were in need of consular assistance. While Mr Tepper
asserts that that information would be relevant in the sense that it might show
that other citizens received more attention and assistance than did he (a
suggestion that I do not see reflected in the pleadings), in fact, the
information about those other persons contained in the contested documents
amounts merely to periodic status reports. Little or none of that information
reflects the degree of effort or involvement of Canadian officials in trying to
secure the release of those persons or to provide any other assistance they may
have sought. I saw nothing that would have advanced Mr Tepper’s own claim
against the Crown.
[17]
Similarly, almost none of the redactions based
on foreign or bilateral relations relate in any way to Mr Tepper. There were
only a very few comments from foreign officials about Mr Tepper’s situation,
but they did not relate in any way to the issues in this action. Again, I saw
nothing that would advance Mr Tepper’s claim.
[18]
Regarding the third head of immunity asserted by
the AGC, police communications, there were only five documents involved. Based
on my review of them, the information relating to Mr Tepper could be described
as boilerplate. There is no analysis or opinions or recommendations or anything
else that I could see as being relevant to this action. I saw nothing that
would advance Mr Tepper’s claim.
[19]
In my view, the probative value of all of the
evidence in issue in this application is negligible. Clearly, the plaintiff has
raised serious allegations of government wrongdoing. However, the redactions
proposed by the AGC do not interfere with the plaintiff’s capacity to advance his
claims. Accordingly, in the circumstances, I do not believe that non-disclosure
would have a negative effect on the public’s perception of the justice system. While
many of the redacted documents were generated during the time when the
plaintiff was seeking government assistance, and were authored by senior
government officials or advisors, their contents are of little or no relevance
or value to the plaintiff. I cannot conclude that the plaintiff’s interests in
disclosure exceed the public interest in non-disclosure.
[20]
Based on having reviewed some unredacted
documents, Mr Tepper has referred specifically to several of them that he says contain
information that would likely be important to his claim. I will address each of
the redactions in these documents with reference to their production numbers:
[21]
AGCA 0724: Mr Tepper argues that this document “appears to indicate that the federal government was much
more proactive and aggressive in other consular files”. I disagree. In
fact, this document mainly contains general information about possible actions
that could be taken in consular cases. There is little information regarding
other individuals.
[22]
AGCA 0860: Mr Tepper says that this document “seems to indicate that in certain cases the federal
government did not find it inappropriate to intervene by corresponding with
high-ranking officials”. I do not agree with that characterization. The
document summarizes the status of other consular cases and makes a single
reference to a contact having been made by a head of mission.
[23]
AGCA 1791: Mr Tepper submits that this document “shows that where a citizen is detained in non-politically
favoured states such as Iran, the federal government has taken a much stronger
stance (as shown in Question Period and media lines)”. I do not see a
basis for that submission. The document merely provides a status report on
other cases and sets out possible media lines parallel to those suggested in
respect of Mr Tepper’s case.
[24]
AGCA 4110: Mr Tepper maintains that this
document “seems to support the idea that the Government’s
decision not to intervene in Mr Tepper’s case was influenced by the fact that
he was suing the Government of Canada and that its motivations were political
considerations”. That is not an accurate description. The document
simply sets out information relating to other individuals and a diplomatic
communication. It says nothing about Mr Tepper’s law suit.
[25]
AGCA 0886 and 0888: Mr Tepper contends that
these documents “contain content on whether or not a
political visit to Tepper during his incarceration would be advisable”.
That is not a valid description of the redacted information. In fact, the
redactions relate to a bilateral issue with Lebanon unconnected to Mr Tepper.
[26]
AGCA 1108 and 1215: Mr Tepper asserts that these
documents “contain no information which could identify
a particular consular subject” and “provide a
specific example and general information regarding the inhumane detention
conditions in Algeria”. That assertion is not well-founded. In fact,
both documents contain information about a particular individual. The
unredacted portions describe conditions in Algeria, information relating to Mr
Tepper, and general issues relating to consular relations with Algeria.
[27]
AGCA 1335, 1573 and 2781: Mr Tepper claims that
these documents “appear to indicate that the political
climate surrounding Lebanon at the time . . . affected the federal government’s
actions toward and treatment of the Plaintiff”. In particular, the third
document “shows that it intentionally restricted its efforts to non-Hezbollah
members” of Parliament. I do not agree with that assessment. The first
two documents contain redactions relating to bilateral issues with Lebanon. The
third simply contains a question about whether certain Lebanese officials were
members of Hezbollah.
[28]
AGCB 0324: Mr Tepper, who has not seen this
particular document, states that “it is hard to
understand how document AGCB 0324 titled “results for TEPPER” could be
qualified as irrelevant to this action”. The AGC claims public interest
immunity in respect of this document because it contains information available
only to law-enforcement authorities. However, in any case, the information is
not particularly revealing. The document merely contains boilerplate
information about the Algerian arrest warrant.
[29]
In summary, therefore, I am not satisfied that
the public interest in disclosing the redacted information to Mr Tepper exceeds
the public interest in non-disclosure.
IV.
Conclusion and Disposition
[30]
Having reviewed all of the 424 documents in
issue, I am satisfied that the AGC’s assertion of public interest immunity over
them, or the redacted portions of them, is justified. Therefore, I will grant
the AGC’s application with costs.
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