Docket: A-353-14
Citation: 2015 FCA 155
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CORAM:
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PELLETIER J.A.
GAUTHIER J.A.
SCOTT J.A.
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IN THE MATTER OF THE PROCEEDS OF
CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT, S.C. 2000, C. 17
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Appellant
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and
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VIOLATOR No. 10
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Respondent
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REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
The issue in this appeal of an interlocutory
judgment rendered by Justice Noël of the Federal Court is whether the
provisions of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, S.C. 2000, c. 17 (the Act), relating to the protection of
confidential information can justify a confidentiality order covering only the
style of cause of this case. This appeal arises against the backdrop of an
appeal of a decision of an administrative body stating that the requirements of
the Act were not met. The order rendered by the judge provided for the
possibility of making public certain documents at the end of a consultation
between the parties to identify the information in the record that should not
be disclosed, in accordance with subsection 55(1) of the Act. At the end
of this consultation, the parties reached an agreement. Redaction of the
passages containing confidential material would render unintelligible anything
that could be made public. Accordingly, the appeal pertains only to the
confidentiality of the style of cause.
[2]
The Financial Transactions and Reports Analysis
Centre of Canada (the Centre) was created under section 41 of the Act. Sections 7
and 9 of the Act impose certain duties on the persons and entities described in
section 5. They must report to the Centre every financial transaction that
occurs or that is attempted in the course of their activities and in respect of
which there are reasonable grounds to suspect that the transaction is related
to money laundering or terrorist activity financing. They must also report to
the Centre certain financial transactions covered by ministerial directive or
by regulation. This means that
the Centre controls a large database of confidential information. The Act
imposes certain obligations on the Centre with respect to this information,
such as the obligation to keep it confidential:
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55. (1) Subject to subsections (3) and
(6.1), sections 52, 55.1, 56.1 and 56.2, subsection 58(1) and sections
65 to 65.1 and 68.1 of this Act and to subsection 12(1) of the
Privacy Act, the Centre shall not disclose the following:
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55. (1) Sous réserve des paragraphes (3) et (6.1), des articles
52, 55.1, 56.1 et 56.2, du paragraphe 58(1) et des articles 65 à
65.1 et 68.1 de la présente loi et du paragraphe 12(1) de la Loi
sur la protection des renseignements personnels, il est interdit au
Centre de communiquer les renseignements :
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(a) information set out in a report
made under section 7;
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a) contenus
dans une déclaration visée à l’article 7;
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(a.1) information set out in a
report made under section 7.1;
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a.1)
contenus dans une déclaration visée à l’article 7.1;
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(b) information set out in a report
made under section 9;
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b) contenus
dans une déclaration visée à l’article 9;
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(b.1) information set out in a
report referred to in section 9.1;
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b.1)
contenus dans une déclaration visée à l’article 9.1;
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(b.2) information provided under
sections 11.12 to 11.3 except for identifying information referred
to in subsection 54.1(3);
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b.2) qui ont
été fournis sous le régime des articles 11.12 à 11.3, à l’exclusion des
renseignements identificateurs visés au paragraphe 54.1(3);
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(c) information set out in a report
made under subsection 12(1), whether or not it is completed, or section 20;
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c) contenus
dans une déclaration — complète ou non — visée au paragraphe 12(1) ou un
rapport visé à l’article 20;
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(d) information voluntarily provided
to the Centre about suspicions of money laundering or of the financing of
terrorist activities;
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d) se
rapportant à des soupçons de recyclage des produits de la criminalité ou de
financement des activités terroristes qui lui sont transmis volontairement;
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(e) information prepared by the
Centre from information referred to in paragraphs (a) to (d);
or
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e) préparés
par le Centre à partir de renseignements visés aux alinéas a) à d);
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(f) any other information, other
than publicly available information, obtained in the administration or
enforcement of this Part.
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f) obtenus
dans le cadre de l’administration et l’application de la présente partie, à
l’exception de ceux qui sont accessibles au public.
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[3]
To the extent that this information is
incorporated into an appeal record or filed as evidence, the Court is required
to keep it confidential:
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73.21(4) In an appeal, the Court shall take
every reasonable precaution, including, when appropriate, conducting hearings
in private, to avoid the disclosure by the Court or any person or entity of
information referred to in subsection 55(1).
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73.21(4) À
l’occasion d’un appel, la Cour fédérale prend toutes les précautions
possibles, notamment en ordonnant le huis clos si elle le juge indiqué, pour
éviter que ne soient communiqués de par son propre fait ou celui de quiconque
des renseignements visés au paragraphe 55(1).
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[4]
These provisions form the backdrop to this
appeal, in which the issue is the confidentiality of the style of cause of the
case in order to protect the identity of a person or entity challenging the
conclusion of the Director of the Centre that that person or entity has committed
a violation under the Act. Section 73.21 provides that the interested
party may appeal from the Director’s decision to the Federal Court. According
to the standard practice of the Registry and the open court principle, the
notice of appeal and any other pleading filed with the Registry are public
documents. In this case, the respondent asked the Registry to have his notice
of appeal filed under seal, on the understanding that he would obtain an order
of confidentiality in his motion for an order of confidentiality. This is the
motion that Justice Noël decided.
[5]
The publication of the decision of the Director
of the Centre would damage his reputation, which is why the respondent filed
his motion. He based his motion on section 73.22, which reads as follows:
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73.22 When proceedings in respect of a
violation are ended, the Centre may make public the nature of the violation,
the name of the person or entity that committed it, and the amount of the
penalty imposed.
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73.22 Au terme de la procédure en
violation, le Centre peut rendre public la nature de la violation, le nom de
son auteur et la pénalité imposée.
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[6]
The respondent submits that section 73.22 of
the Act would be rendered completely meaningless if the information referred to
in it were made public from the time a notice of appeal is filed, which would
be the case in the absence of a confidentiality order. The appellant, on the
other hand, submits that section 73.22 binds only the Centre, and that the
open court principle set out in Sierra Club of Canada v. Canada (Minister of
Finance), [2002] 2 S.C.R. 522 (Sierra Club), requires that any
information not expressly protected by the Act or the common law be made
available to the public.
[7]
Citing the Federal Court’s decision in British Columbia Lottery Corporation v. Canada (Attorney General), 2012 FC 1204, affirmed in British Columbia Lottery
Corporation v. Canada (Attorney General), 2013 FC 307 (B.C.
Lottery), Justice Noël held that subsection 73.21(4) afforded the
Court no discretion with respect to the protection of the information covered
by subsection 55(1). However, because the parties agreed during the
hearing before Justice Noël, that the style of cause contained none of the
information covered by section 55, he based his decision regarding the
style of cause on section 73.22 of the Act.
[8]
I agree that the name of a person or entity
subject to the reporting obligation set out in the Act is not in and of itself
information covered by subsection 55(1). That said, the situation changes
completely when the Director of the Centre finds that this same person or
entity has contravened the Act. This finding is necessarily “information, other than publicly available information,
obtained in the administration or enforcement of this Part”: see
paragraph 55(1)(f) of the Act. The Director’s conclusion is
necessarily “…information, other than publicly
available information, obtained in the administration or enforcement of the Act”:
see paragraph 55(1)(f) of the Act. I conclude that the name
of a person or entity found to have contravened the Act is, indeed, information
covered by subsection 55(1) of the Act.
[9]
Since subsection 73.21(4) requires the
Court to take every possible precaution to ensure the confidentiality of the information
covered by subsection 55(1), the Court must make any confidentiality order
necessary to fulfil that duty. In the very specific context of the Act, this duty
extends, exceptionally, to the name of the violator challenging the decision of
the Director of the Centre, hence the confidentiality order with respect to the
style of cause.
[10]
Although this may appear to go against the open
court principle, one must keep in mind that common law rules, including the
open court principle, may be modified by statute: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 129; Ocean Port
Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing
Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at paragraphs 19-20. It
should also be noted that this case can be distinguished from Sierra Club,
which addressed the principles applicable to confidentiality orders rendered by
courts exercising their inherent jurisdiction to control their own procedures. In
this case, the issue involves, rather, the interpretation and application of
provisions of the Act, provisions that must be considered binding until they
are declared to be unconstitutional by a court.
[11]
Subsection 73.21(4) and section 73.22 must
be read with subsection 55(1) in mind. That provision imposes a duty of
confidentiality on the Centre, a duty that would continue even after the
violation proceedings have come to a close, were it not for section 73.22.
That section suggests that Parliament was aware of the dissuasive power of
publishing the identity of violators, the nature of their violations and the
penalties imposed on them, and that it chose to give this mandate to the Centre
itself rather than leave it to the vicissitudes of public access to the Court’s
records.
[12]
That said, in the event that the media wishes to
challenge such a confidentiality order, it is entitled to a minimum amount of
information to enable it to make an informed decision. I would amend Justice
Noël’s order in the following fashion. In order to highlight the nature of the
proceedings, I would add to the style of cause the following preamble: “In the matter of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, S.C. 2000, c. 17”. I would designate the appellant as
“Violator No. 10”, which would make it possible to distinguish subsequent
cases by incrementing the number. I would also lift the veil on the identity of
the respondent, the Attorney General of Canada, since it is clear from reading
these reasons that this is a review of a decision of the Centre. The Centre’s
identity is not information protected by subsection 55(1). I order
that these changes be effective immediately.
[13]
No costs are awarded.
“J.D. Denis Pelletier”
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“I agree.
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Johanne
Gauthier J.A.”
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“I agree.
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A.F. Scott J.A.”
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TRADUCTION
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