Date:
20070314
Docket: A-134-06
Citation: 2007 FCA 109
CORAM: NADON J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
JOSE
VALLE LOPEZ
Appellant
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF CITIZENSHIP AND IMMIGRATION,
and
SOLICITOR GENERAL OF CANADA
Respondents
Heard at Toronto,
Ontario, on March 14,
2007.
Judgment delivered from the Bench at Toronto, Ontario, on March 14, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date:
20070314
Docket: A-134-06
Citation: 2007
FCA 109
CORAM: NADON
J.A.
SHARLOW
J.A.
MALONE
J.A.
BETWEEN:
JOSE VALLE LOPEZ
Appellant
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF CITIZENSHIP AND IMMIGRATION,
and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on March 14, 2007)
SHARLOW J.A.
[1]
This
is an appeal of a judgment of Chief Justice Lutfy (2006 FC 347) granting the
motion of the respondents to strike the application of the appellant Mr. Lopez.
[2]
It
is well established that an application in the Federal Court will not be struck
unless it is so clearly improper as to be bereft of any possibility of success:
David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1
F.C. 588. It is argued for Mr. Lopez that Chief Justice Lutfy misapplied that
test. We do not agree, and will dismiss this appeal for the following reasons.
[3]
Mr.
Lopez is the subject of an admissibility hearing to be conducted under
subsection 44(2) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, on the basis of the report of an immigration officer that Mr. Lopez
is inadmissible.
[4]
Mr.
Lopez has given notice to the Attorney General that he expects to disclose at
his admissibility hearing information that he believes to be “sensitive
information” or “potentially injurious information” within the meaning of
section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5. That notice
was given to comply with section 38.01 of the Canada Evidence Act.
[5]
The
sensitive or potentially injurious information is described in the section
38.01 notice as follows:
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1. Mr. Valle Lopez will provide details of the
manner in which he was trained to commit crimes against humanity;
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2. He will provide details, including names, of
the relationship between the Honduran Army and the members of the United
States Armed Forces and members of other United States governmental agencies
who at the request of the government of Honduras and with the consent of the
United States government trained him in methods and techniques to use in
committing crimes against humanity;
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3. He will provide details, particularly
including the names and photographs of individual members of the CIA who
personally trained him in methods and techniques to use in committing crimes
against humanity;
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4. He will provide details of the documents,
created and provided to him by representatives of the Untied Sates
government, to assist in his training to commit crimes against humanity, such
as the CIA Torture Manual of that date;
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5. He will provide details, including identity,
of not less than one current senior member of the administration of the
current United States president Bush who actively, knowingly and
enthusiastically participated and facilitated Mr. Valle Lopez education in
how to commit crimes against humanity in a manner consistent with the
standards and practices expected of those trained to commit such crimes on
behalf of the united States of America;
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6. He will provide details of how he arranged
through the United Nations High Commission for Refugees to flee Honduras and
gain asylum in the Canadian embassy in Mexico City, in order to provide
testimony of the existence and nature of crimes against humanity that were
being organized and conducted by and on behalf of the government of Honduras,
with the assistance of the government of the United States;
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7. He will provide evidence that the Canadian
government was aware that he had committed crimes against humanity prior to
being given permission to enter the Canadian embassy in Mexico City;
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8. He will give evidence of his continuous stay
within the Canadian embassy while he was debriefed regarding his training
for, and commission of crimes against humanity;
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9. He will give evidence of the names and
identity of the individuals acting on behalf of the Canadian government who
debriefed him, or with whom he had conversations regarding these matters;
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10. He will give evidence of the documents he
generated himself while being debriefed over a period of days, the documents
prepared by these individuals for his review and for his confirmation of
their contents, and of the contents of conversations between himself and
these individuals regarding these matters;
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11. He will give evidence that the Canadian
government was well aware of the totality of his training and of the crimes against
humanity committed by him prior to his being granted a Minister's permit to
enter Canada, including confirmation that these crimes included murder, which
was an offence sufficiently serious at the time to bar Mr. Valle Lopez from
entry into Canada without a Minister's permit;
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12. He will give evidence that the Canadian
government has admitted into Canada, since the Crimes Against Humanity
legislation received royal assent, one or more individuals associated with,
or member of, the United States and/or Honduran governments, who it knew at
that time to have been inadmissible due to information provided to the
Canadian government by Mr. Valle Lopez in Mexico City;
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13. He will give evidence that he did not omit
any relevant information during this process in general and in particular
that to the best of his knowledge nothing such as would constitute new
evidence before the Minister sufficient for the Minister to initiate
admissibility proceedings can or does exist.
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[6]
Section
38.03 permits the Attorney General to authorize the disclosure of any
information set out in a section 38.01 notice, subject to such conditions as
the Attorney General thinks appropriate. Subsection 38.04(2) provides, among
other things, that if the Attorney General authorizes the disclosure of only
part of the information in a notice, or authorizes disclosure subject to
conditions, the Attorney General “shall” apply to the Federal Court for an
order. That application begins a process in which the Federal Court may make a
number of determinations, including a determination as to whether or not to
authorize the disclosure and on what terms.
[7]
In
this case the Attorney General responded to Mr. Lopez’ notice with a letter
stating as follows:
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The Attorney General of Canada has now reached a
decision with respect to the disclosure of this information and is
authorizing the disclosure of all the information referred to in the Notice.
Please note, however, that the authorization to disclose information extends
only to the information that appears on the face of the thirteen paragraphs;
specifically, this authorization should not be understood to be authorization
to disclose the details and documents that are alluded to in the thirteen
paragraphs but that are not either included or described in those paragraphs.
You will understand that the Attorney General of Canada cannot make a
decision with respect to the disclosure of information of which he is
unaware.
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[8]
Counsel
for Mr. Lopez responded with a letter pointing out that the documents referred
to in the notice are in the possession of the Attorney General, and asserting
that Mr. Lopez intends to disclose all evidence to which the notice refers,
directly or indirectly. He also filed a notice of application seeking four
alternative remedies, which may be summarized as follows:
(1) a
declaration that the Attorney General is required by law to bring an
application under paragraph 38.04(2)(a) of the Canada Evidence Act,
(2) an order
compelling the Attorney General to bring such an application,
(3) a declaration
that, if the Attorney General does not bring such an application, Mr. Lopez is
free to give any and all evidence in his own defence in the admissibility
hearing, or
(4) a
declaration that certain provisions of the Canada Evidence Act are
unconstitutional.
[9]
It
is that application that the respondents moved to strike. Chief Justice Lutfy
granted the motion on the basis that an essential precondition for an
application under subsection 38.04(2) is a decision by the Attorney General to
authorize only part of the information in the section 38.01 notice, or to
impose conditions on the disclosure. He read the Attorney General’s letter as
an unconditional authorization to disclose the information in the notice. We
read that letter the same way. That compels the conclusion that there is no
foundation for an application under subsection 38.04(2), and necessarily
defeats the application of Mr. Lopez for the first and second remedies listed
above.
[10]
As
to the third remedy, Chief Justice Lutfy said (at paragraph 23 of his reasons),
and we agree, that if there is any evidence Mr. Lopez wishes to present at the
admissibility hearing that is not mentioned specifically in the section 38.01
notice he has given, he is free to give a further notice. That can be done by
a formal notice now or in the course of the hearing as the need arises. Until
he does so, the application discloses no factual foundation for the third
remedy listed above. Similarly, until the proper procedure is played out, there
is no factual foundation for a constitutional challenge.
[11]
This
appeal will be dismissed with costs, fixed at $1,000.00.
“K.
Sharlow”
FEDERAL
COURT OF APPEAL
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET:
A-134-06
STYLE OF CAUSE: JOSE
VALLE LOPEZ
Appellant
and
ATTORNEY GENERAL OF CANADA ET AL.
Respondents
PLACE OF HEARING:
TORONTO, ONTARIO
DATE OF HEARING:
March 14, 2007
REASONS FOR JUDGMENT OF
THE COURT BY: (NADON,
SHARLOW & MALONE JJ.A.)
DELIVERED FROM THE
BENCH BY: SHARLOW
J.A.
APPEARANCES:
Rocco
Galati
FOR THE APPELLANT
Jan Brongers
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Galati ,
Rodrigues and
Associates
FOR THE APPELLANT
Barristers & Solicitors
Toronto, Ontario
John H. Sims,
Q.C.
Deputy Attorney General of Canada FOR
THE RESPONDENTS
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