Docket: A-116-17
Citation: 2018 FCA 7
|
CORAM:
|
WEBB J.A.
BOIVIN J.A.
GLEASON J.A.
|
|
BETWEEN:
|
|
SHIYUAN SHEN
|
|
Appellant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR
JUDGMENT
BOIVIN J.A.
I.
Introduction
[1]
The Appellant appeals from an Order by
Fothergill J. of the Federal Court dated March 23, 2017 [2017 FC 118]
allowing the Respondent Attorney General of Canada’s (the Crown) application, under
section 38 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (the CEA),
to withhold disclosure of portions of two documents on the grounds that
disclosure would be injurious to international relations.
[2]
The two documents at issue in this appeal are
authored by the Canada Border Services Agency (CBSA), and relate to an
inadmissibility assessment conducted in respect of an officer with the Chinese
Public Security Bureau (the Chinese PSB). The Appellant contends that he
requires access to the unredacted portions of the two CBSA documents because
they are relevant to his application for refugee status in Canada, as well as
to his on-going claims against the Crown before the Refugee Protection Division
of the Immigration and Refugee Board of Canada (the RPD) based on allegations of
breach of the duty of candour and abuse of process. It is noteworthy that, after
the hearing before this Court, the Appellant brought to this Court’s attention
a decision rendered by the RPD on October 31, 2017, wherein the RPD found
that the Crown’s conduct had in fact amounted to an abuse of process and ruled
that much of the evidence that the Crown sought to tender from China (including
the testimony of the PSB officer) was inadmissible (RPD Decision October 31,
2017, File No. VB1-00704 (paras. 5 and 18). This decision would render the
present appeal largely moot as the issues in question were resolved in favour
of the Appellant. However, the Crown filed an application for leave and
judicial review of that decision on November 30, 2017 (IMM-5127-17)) which is
still pending. Accordingly, notwithstanding the RPD’s October 31, 2017 decision,
it is still relevant for this Court to review Fothergill J.’s Order with
respect to the Crown’s section 38 application.
[3]
For the reasons set out below, I would dismiss
the appeal, but, in light of the conduct of the Crown in these matters, would
not make any award of costs.
II.
Factual background and procedural history
[4]
The procedural lead-up to this appeal is rather
lengthy and roundabout. The following chronological list of events is meant to
provide an overview to better situate the Appellant’s proceedings leading to
this appeal.
[5]
The Appellant is a citizen of China. He left
China over 15 years ago on February 3, 2002 and arrived in the United States on
or about February 22, 2002 (Appeal Book, Vol. 1, Tab 5, Exhibit F, p. 220 at
para. 10). Shortly after his departure from China, on April 3, 2002, the
Chinese authorities issued an arrest warrant for his alleged involvement in contract
fraud (Appeal Book, Vol. 1, Tab 5, Exhibit A, p. 41 at para. 4). Five years
later, on May 26, 2007, the Appellant entered Canada. When he applied for
permanent residence thereafter – at an unknown date – he was arrested.
[6]
On March 9, 2011, the Appellant applied for
refugee status in Canada. His application was denied by the RPD on May 6, 2013.
The RPD’s denial was made pursuant to article 1F(b) of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969]
Can. T.S. No. 6, due to his alleged past involvement in a serious
non-political crime in China (Appeal Book, Vol. 1, Tab. 5, Exhibit F, pp.
218-249).
[7]
The Appellant sought judicial review of the
RPD’s decision denying his application for refugee status claiming that the
Crown had not provided him with full disclosure. The Crown conceded that there
had been insufficient disclosure of information to the Appellant and consented
to the application for judicial review for a new hearing before the RPD.
[8]
Thereafter, the Crown nonetheless refused to
provide the Appellant with certain documents. As a result, the Appellant sought
and obtained an Order on September 15, 2014 from Beaudry J. of the
Federal Court (Shen v. Canada (The Minister of Citizenship and Immigration),
docket no. IMM-3740-13) directing the Crown:
… to provide to the Applicant [Appellant]
full disclosure of all materials relating to the Applicant [Appellant]’s matter
which are in the Respondent [Crown]’s possession, in particular full disclosure
of all documents received from the Public Security Bureau in China relating to
the charges against the Applicant [Appellant].
(Appeal Book, Vol. 1, Tab 5, Exhibit H, p.
265)
[9]
Following this Order, the Crown disclosed to the
Appellant the evidence it had obtained from the Chinese PSB – over 1,000 pages
of documents. Reviewing this evidence, the Appellant found that much of it was
relevant to his case and some was exculpatory towards him. Moreover, he was of
the view that the evidence – particularly a statement made by the Appellant’s
sister – was likely obtained through the use of torture by the Chinese PSB. At
this stage of the proceedings, the Crown had not yet disclosed to the Appellant
the two CBSA documents at issue in this appeal, nor was the Appellant made
aware of their existence.
[10]
Following the disclosure by the Crown of the new
evidence, the Appellant brought two motions before the RPD. The first motion
sought to exclude all of the evidence that the Crown had obtained from the
Chinese PSB on the basis that it was derived from torture. The second motion
sought to stay the Crown’s intervention in the Appellant’s application for
refugee status on the basis that the Crown’s failure to provide timely and full
disclosure amounted to a breach of its duty of candour and to an abuse of process.
[11]
The RPD dismissed both of these motions. With
respect to the requested exclusion of the evidence from the Chinese PSB, the
RPD found that the Appellant had raised a presumption that the evidence was
derived from torture, but concluded that the Crown had successfully rebutted
that presumption through the evidence of a Chinese PSB officer, whom it called
to testify. With respect to staying the intervention of the Crown in the
Appellant’s application for refugee status, the RPD did not accept that “the [Crown]’s failure to disclose all of the documents …
tainted the process to such a degree that it amounts to the clearest of cases”
warranting a stay (2015 CanLII 107868 (C.A. I.R.B.) at para. 25). The Appellant then sought judicial review of the
RPD’s disposal of these motions before the Federal Court.
[12]
On January 21, 2016, Fothergill J. of
the Federal Court, the same Judge who rendered the decision that is the subject
of this appeal, concluded that the Appellant’s application for judicial review
should be allowed in part (Shen v. Canada (The Minister of Citizenship and
Immigration), 2016 FC 70 [2016 FC 70]). He declined to intervene in respect
of the RPD’s decision denying the requested exclusion of the Chinese PSB’s
evidence allegedly derived from torture on the basis that such an exclusion
would be premature (2016 FC 70 at paras. 23-24). However, Fothergill J.
found that it was necessary to inquire into whether the Crown breached its duty
of candour toward the Appellant, as well as into whether an abuse of process
had occurred. Fothergill J. thus remitted the matter back for
redetermination to the same member of the RPD who was directed to hear questions
relating to the Crown’s duty of candour and abuse of process, and to determine
the appropriate remedy, if necessary.
[13]
On October 28, 2016, days prior to the
hearing on redetermination before the RPD, the Crown disclosed the two CBSA
documents at issue in this appeal to counsel for the Appellant (Appeal Book,
Vol. 2, Tab 5, Exhibit N, pp. 482-511). The first document consists of an
inadmissibility assessment conducted by the CBSA in respect of the officer with
the Chinese PSB. The second document is a note to file with respect to the same
matter. Both documents contained redactions. The Crown informed the Appellant’s
counsel that it would remove a certain number of redactions provided he agreed to
certain confidentiality conditions. The less redacted version of the two
documents would also be shared with the RPD and the Federal Court Judge, but
would not be shared with the Appellant himself. Their use would be limited to
the proceedings relating to the Appellant’s application for refugee status. The
Appellant’s counsel agreed to these conditions, and hence received the less
redacted version of the two CBSA documents leaving only small redacted portions.
On November 16, 2016, the Crown brought an application before the Federal
Court, pursuant to section 38 of the CEA, for an order to maintain the
confidentiality of the small redacted portions of the two CBSA documents on the
grounds that their disclosure would be injurious to international relations.
[14]
In the meantime, given the new disclosure of the
two CBSA documents at issue in this appeal, the Appellant’s motion for abuse of
process had been adjourned by the RPD.
[15]
Given this new turn of events, the Appellant
brought a motion before Fothergill J. of the Federal Court pursuant to
Rule 399(2) of the Federal Courts Rules, S.O.R./98-106 for reconsideration
and variance of his above-described Judgment dated January 21, 2016 (2016
FC 70). The Appellant argued that the Crown’s failure to disclose the two CBSA
documents – which had been authored by the CBSA in 2012 – or even their
existence, was a clear breach of its duty of candour and amounted to an abuse
of process.
[16]
On January 30, 2017, Fothergill J.
issued an Order with reasons declining to reconsider and vary his judgment (Shen
v. Canada (Minister of Citizenship and Immigration), 2017 FC 115 [2017 FC
115]). He stated that even if the Crown’s failure to disclose the two CBSA documents
had been known at the time of the earlier application, the outcome would have
been the same: remit the matter to the RPD for a new inquiry into whether the
Crown breached its duty of candour or whether an abuse of process had occurred.
Nonetheless, the Court noted that “[t]he Crown’s
explanation for its refusal to disclose the [two] CBSA documents to Mr. Shen
[the Appellant] until late 2016 is far from satisfactory” (2017 FC 115
at para. 30). Hence, he awarded costs to the Appellant (2017 FC 115 at paras. 35-36).
[17]
Regarding the Crown’s application dated November 16,
2016 pursuant to section 38 of CEA, Fothergill J. (hereafter referred
to as the Judge) issued an Order maintaining the confidentiality of the
redacted portions of the two CBSA documents and issued confidential reasons on
January 30, 2017. The Judge then provided the Crown with an opportunity to
determine whether any portion of his reasons should be redacted and, following
an ex parte hearing on March 7, 2017, the Judge issued public partially
redacted reasons on March 23, 2017 (2017 FC 118). It is this Order from
which the Appellant appeals.
III.
The Judge’s Order
[18]
In assessing the Crown’s application under
section 38 of CEA, the Judge applied the test developed by this Court in Ribic
v. Canada (Attorney General), 2003 FCA 246, [2005] 1 F.C.R. 33 [Ribic]
to the facts of this case. This required the Judge to address the three
following questions:
1.
Is the redacted information relevant to the
Appellant’s claim for refugee protection, or his arguments with respect to the
duty of candour or abuse of process?
2.
Would disclosure of the redacted information be
injurious to international relations?
3.
If the answer to question 2 is yes, then does
the public interest weigh in favour of maintaining confidentiality or ordering
public disclosure?
[19]
With respect to the first question, the Crown
had conceded that the redacted information was “potentially
relevant” to the Appellant’s arguments that it had breached its duty of
candour and engaged in an abuse of process and that the evidence it relied upon
may have been derived from torture (2017 FC 118 at para. 5). On that
basis, the Judge found that the first branch of the Ribic test was met.
[20]
The Judge then turned to the second question – i.e.
second branch of the Ribic test. In this regard, the Appellant submitted
two Canadian decisions – Han v. Canada (Minister of Citizenship and
Immigration), 2006 FC 432, 147 A.C.W.S. (3d) 1029 [Han]; and Yuan
v. Canada (Public Safety and Emergency Preparedness), 2015 CanLII 97787
(C.A.I.R.B.) [Yuan] – which dealt with the admissibility into Canada of
Chinese PSB officials. The Appellant claimed that, to the extent the redactions
at issue included similar statements to those contained in the Han and Yuan
decisions, there was little likelihood of injury to international relations
from their disclosure.
[21]
The Crown responded to this point in a closed ex
parte hearing and Mr. David Hartman, a senior official with Global
Affairs Canada, provided an ex parte affidavit as well as oral testimony
in the closed ex parte hearing. Although the Judge’s public reasons
contain redactions with respect to Mr. Hartman’s affidavit and testimony,
they mention that Mr. Hartman was “unaware of any
expression of concern by China” regarding (i) the Han and Yuan
decisions; or (ii) the public versions (i.e., redacted) of the two CBSA
documents disclosed in the ongoing proceedings (2017 FC 118 at para. 11). The
Judge also observed that “[t]he Crown’s assessment of
the injury to international relations that would result from disclosure of the
protected information contained in the two CBSA documents is entitled to
deference”, but that the Crown was nonetheless required to provide some
factual basis for its claim that injury to international relations would occur
(2017 FC 118 at para. 6).
[22]
In assessing Mr. Hartman’s testimony, the Judge
found him to be a “credible and capable witness”
(2017 FC 118 at para. 13). The Judge further remarked that
Mr. Hartman’s oral testimony was a “significant
expansion” on his affidavits (both public and ex parte) and that,
although some of his evidence regarding the injury to international relations
was “speculative”, it was nonetheless owed
deference since it related to the “conduct of foreign
affairs” (2017 FC 118 at paras. 12-13). Ultimately, the Judge
acknowledged Mr. Hartman’s “undoubted expertise”
and found that he had provided “concrete examples”
of the injury that would result from disclosure (2017 FC 118 at para. 14).
This satisfied the Judge that the second branch of the Ribic test was
met.
[23]
As for the third question, i.e. the third
branch of the Ribic test, the Judge recalled that “the vast majority of the
information contained in the two CBSA documents has been disclosed to Mr. Shen
[the Appellant] without redactions. Less-redacted versions of both documents have
been disclosed, subject to an undertaking of confidentiality” (2017 FC
118 at para. 15). As such, the Appellant’s counsel was made aware of the
conclusion of the CBSA’s inadmissibility assessment, and there was “[n]o further factual basis for the [Canadian] officials’
opinions in the protected portions of the two CBSA documents” (2017 FC
118 at para. 16).
[24]
In engaging in the public interest balancing
test and assessing whether the public interest weighed in favour of maintaining
confidentiality or ordering public disclosure, the Judge identified the
following relevant factors at paragraph 18 of his reasons:
•
the extent of the anticipated injury;
•
the importance of the underlying proceedings;
•
the relevance or usefulness of the information;
and
•
the availability of the information through
other means.
[25]
The Judge found that in this instance the public
interest favoured the protection of the redacted information (2017 FC 118 at
para. 18). The Judge recalled that the redactions at issue related to
observations made by the CBSA, and would be of little use to the Appellant. He
also noted that without the redacted portions of the two CBSA documents, the
Appellant was still “well-positioned” to advance
his arguments with respect to the possibility that the evidence relied on by
the Crown to oppose the Appellant’s refugee claim may have been derived from
torture, as well as with respect to the Crown’s abuse of process or breach of
duty of candour (2017 FC 118 at para. 19).
IV.
Issues
[26]
The issues in this appeal are as follows: Did
the Judge err in his application of the Ribic test when he found that
(i) the disclosure of the withheld information would be injurious to
international relations; and (ii) the public interest, on balance, favoured
non-disclosure.
V.
Analysis
A.
Standard of Review
[27]
The Judge’s application of the Ribic test
in the present matter involved questions of mixed fact and law. His conclusions
are therefore reviewable only for palpable and overriding error (Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
B.
Did the Judge err in finding that disclosure of
the withheld information would be injurious to international relations?
[28]
The Appellant challenges the Judge’s conclusion
that disclosing the withheld information would be injurious to international
relations. In this regard, he argues that the Judge erred in defining the
threshold for non-disclosure and failed to consider the fact that the
information at issue was already in the public domain. Yet, the Judge was
careful to note in his reasons that he would not “blindly
endorse” the Crown’s applications for non-disclosure (2017 FC 118 at
para. 6.) Although the Judge was precluded from providing further details
in his public reasons, he had the benefit of hearing and assessing Mr. Hartman’s
testimony and found that (i) he was a credible witness with “undoubted expertise”; and (ii) he had provided “concrete examples of the harm that would result if the
protected information were disclosed”. As such, the Judge carefully weighed
the evidence and properly deferred to Mr. Hartman’s expertise in the area
of Chinese-Canadian relations for the purpose of drawing the conclusion that
international relations would be adversely affected by disclosure.
[29]
The Appellant also submits that the Crown was
required to provide a factual basis to show that injury to international
relations would result (not merely could result) from disclosure
of the redacted information, and that the Judge failed to hold the Crown to
this requirement (Appellant’s Memorandum of Fact and Law at para. 65). However,
the Judge did not, as the Appellant suggests, misunderstand the threshold for
non-disclosure as requiring the mere possibility of harm. The Judge’s repeated
use of the word “would” at paragraph 14 of
his reasons is sufficient to reject the Appellant’s argument. Indeed, the
Judge’s reasons demonstrate that he was satisfied that injury to international
relations was likely to occur should the redacted information be disclosed.
[30]
Furthermore, the Appellant contends that the
redacted information at issue is already in the public domain and that there is
accordingly no possibility of injury by virtue of its disclosure. It should be
recalled that the Judge found that “[t]he remaining
protected portions of the two CBSA documents consist of observations by CBSA
officials” (2017 FC 118 at para. 16). According to the Appellant,
these observations are similar to the statements contained in the Han
and Yuan decisions and, as such, are already in the public domain. Even
if the redacted portions did contain, as the Appellant suggests, expressions
similar to those in the Han and Yuan decisions provided by him,
that does not necessarily mean that the specific observations redacted in the
two CBSA documents are already in the public domain.
[31]
It follows that the Appellant has not
demonstrated that the Judge committed any palpable and overriding error in
finding that disclosure of the redacted portions of the two CBSA documents
would likely cause injury to international relations. The Appellant’s challenge
in this regard must therefore be dismissed.
C.
Did the Judge err in finding that the public
interest, on balance, favoured non-disclosure?
[32]
The Appellant challenges the Judge’s conclusion
regarding the public interest in not disclosing the redacted information at
issue. On this point, the Appellant contends that the Judge unduly minimized
the importance of the redacted information, failed to consider the broader
public interest in disclosure, and also failed to consider the possibility of
alternative disclosure to the Appellant’s counsel only.
[33]
Firstly, the Appellant contends that there are
two competing public interests at issue in the present case: (i) the need
to protect confidential information; and (ii) the need to hold the Crown
accountable to the public for misconduct (Appellant’s Memorandum of Fact and
Law at para. 80). On the basis of the Crown’s misconduct in this case, this
Court, argues the Appellant, should not permit the Crown to rely on
international relations to “cloak itself” from criticism
or accountability and the balance should therefore weigh heavily in favour of
disclosure (Appellant’s Memorandum of Fact and Law at para. 85).
[34]
The Appellant’s contentions are misplaced. In
the circumstances, the need to hold the Crown accountable to the public for
misconduct is not a factor that ought to be weighed in favour of disclosure.
Rather, the need to protect confidential information needs to be balanced with
the benefit it may bring to the Appellant in his underlying proceedings for
refugee status. Indeed, as noted earlier, the Judge identified the four factors
which he considered the most relevant in this case, namely: the extent of the
anticipated injury; the importance of the underlying proceedings; the relevance
or usefulness of the information; and the availability of the information
through other means (2017 FC 118 at para. 18).
[35]
In so doing, the Judge focused mainly on the
relevance or usefulness of the redacted information to the Appellant. This
focus was entirely appropriate since the other factors had already been
assessed in other portions of the Judge’s reasons. The Judge had accepted that
an injury to international relations would occur. Likewise, it was not in
dispute that the underlying proceedings were important to the Appellant.
Finally, the vast majority of the information had been disclosed to the
Appellant, as it was only the CBSA’s observations that remained protected.
[36]
With respect to the relevance or usefulness of
the remaining redacted information, I agree with the Appellant that the appropriate
inquiry is not whether the Appellant was well-positioned to advance his
arguments without the redacted information but rather the degree to which such
information was relevant to the Appellant’s case before the RPD. When fairly
read, the Judge’s reasons demonstrate that he considered the latter issue and
concluded that the redacted information was of limited relevance because it
would be of limited benefit to the Appellant. It is true that the Appellant is
unable to see the information and make his own determination. But the reality
is that the Appellant has access to the bulk of the information contained in
the two CBSA documents, and furthermore, the Appellant’s counsel has knowledge
of the CBSA’s conclusion with respect to the inadmissibility assessment of the
Chinese PSB officer. With all this information available to the Appellant and
his counsel, it was open to the Judge to conclude that the relevance of the
redacted information did not outweigh the public interest in maintaining its
secrecy due to the impact of disclosure on international relations.
[37]
Furthermore, upon review of the evidence, I
agree with the Crown’s emphasis that the vast majority of the information in
the two CBSA documents consists of excerpts from publicly available reports of
government bodies and non-governmental organizations. The remaining undisclosed
information consists of “brief observations and
conclusions … based exclusively on the unredacted information” (Respondent’s
Memorandum of Fact and Law at para. 36). This further illustrates that the
Judge did not err in concluding that it would be of limited relevance or
usefulness to the Appellant.
[38]
Finally, regarding the Appellant’s contention
that the Judge did not consider the appropriateness of limited disclosure, namely
disclosure of the entire documents to the Appellant’s counsel only, the
following passage from the Judge’s reasons demonstrates that he turned his mind
to that possibility:
The protected information contained in the
two CBSA documents provides little, if any, additional evidence of the matters
that [the Appellant] wishes to establish before either the RPD or this Court [Federal
Court]. It was apparent during the public hearing of this application that,
even without access to the protected information, [the Appellant]’s counsel are
well-positioned to advance their argument regarding the risk that the evidence
relied on by the Crown to oppose [the Appellant]’s refugee claim was derived
from torture. They are also well-positioned to advance their argument regarding
the Crown’s alleged breaches of the duty of candour and abuse of process, both
before the RPD and before this Court [Federal Court].
(2017 FC 118 at para. 19)
[39]
On the basis of the record before him, the Judge
did not commit any palpable and overriding error in finding that the public
interest, on balance, favoured maintaining non-disclosure of the redacted portions
of the two CBSA documents.
VI.
Conclusion
[40]
For these reasons, the appeal should be
dismissed without costs.
“Richard Boivin”
“I agree
Wyman W. Webb
J.A.”
“I agree
Mary J.L. Gleason J.A.”
Email this Content