Date: 20011005
Docket: IMM-5693-00
Neutral Citation: 2001 FCT 1093
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ANBESSIE DEBELE TIKY
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion brought by the respondent for:
1. An order that access to the Court records in this file be prohibited without leave of the Court;
2. An order that the style of cause in these files be amended so that the respondent's name reads as "A.A.".
[2] This motion was filed on August 15, 2001.
[3] The hearing of the judicial review application was held on August 16, 2001.
[4] On August 17, 2001, the respondent also filed and served another motion for:
1. An order that the respondent may serve and file the affidavit of ANBESSIE DEBELE TIKY dated August 17, 2001 in relation to the motion for confidentiality (notice of motion dated August 13, 2001); and
2. That the Minister (respondent on the motion) be granted 30 days from the date of service of the affidavit of ANBESSIE DEBELE TIKY dated August 17, 2001 to file a supplementary respondent motion record in response.
[5] First of all, I should say that these two motions were brought at the last minute. Specifically, the motion brought for confidentiality was filed the day before the hearing.
[6] Hearings before the Refugee Division are confidential. Nevertheless, when the applicant, the Minister of Citizenship and Immigration, decided to file and serve an application for leave and for judicial review on November 2, 2000, the case was in the public domain.
[7] All of the reasons and arguments provided by the respondent for the motion for confidentiality could have been presented after November 2, 2000. I do not know why the order for confidentiality is so important now when it was not so important in November 2000.
[8] I will first deal with the motion by the respondent to file and serve a supplementary affidavit of the respondent.
[9] It was the respondent's decision to file and serve the motion for confidentiality the day before the hearing of the judicial review application.
[10] The information in the applicant's record and response to the respondent's notice of motion that was filed on August 16, 2001, was already known by the respondent.
[11] Even the discussion that took place by phone between the respondent and a reporter of the Globe and Mail was already known by him and by his counsel.
[12] The respondent failed to provide any relevant evidence that could justify why this Court should allow the respondent to file and serve a supplementary affidavit in relation to the motion for confidentiality.
[13] I have carefully reviewed the motion records and the affidavits of both parties and I have decided that the motion brought by the respondent seeking to file and serve a supplementary affidavit in relation to the motion for confidentiality is dismissed.
[14] To succeed on a motion for confidentiality, the respondent has to demonstrate why the Court should depart from the principle that Court proceedings are to be conducted in public and Court files are to remain open.
[15] In this case, the Adjudicator issued a partial publication ban preventing the media from publishing his photograph, his physical appearance and the status of this case.
[16] Nevertheless, the respondent decided to attend an interview with Andrew Mitrovica, a reporter for the Globe and Mail. Following the interview, an article was published in the Globe and Mail on Saturday, May 26, 2001. The respondent is an economist who holds a Bachelor of Arts degree in Economics (with distinction) from Addis Ababa University and a Master of Arts degree in Public Policy from Duke University. He is a very well educated person and it is very surprising that as he was aware of the publication ban imposed by the Adjudicator regarding the publishing of information about himself and about the status of his case, he decided to provide information about the situation in Ethiopia and about his personal case of his own accord.
[17] In Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835, the Supreme Court of Canada held at paragraph 73:
[para 73] It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution": Dolphin Delivery, supra, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
If the ban fails to meet this standard (which clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter), then, in making the order, the judge committed an error of law and the challenge to the order on this basis should be successful.
[18] I have no hesitation in concluding that the respondent has failed to convince the Court that he has met the conditions described by the Supreme Court of Canada.
[19] In my view, the respondent has failed to convince the Court that there are valid reasons to justify the granting of the motion for confidentiality by this Court.
[20] For all these reasons the motion for confidentiality is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 5, 2001
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