Docket: T-1156-15
Citation:
2016 FC 493
Ottawa, Ontario, May 4, 2016
PRESENT: The Honourable Madam Justice Mactavish
IN
THE MATTER OF THE CANADA EVIDENCE ACT AND IN THE MATTER OF AN OBJECTION
PURSUANT TO SECTION 37 OF THE CANADA EVIDENCE ACT
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BETWEEN:
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ZHENUA WANG
& CHUNXIANG YAN
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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PUBLIC ORDER AND REASONS
[1]
The applicants are Chinese citizens who are
seeking refugee protection in Canada, asserting that they are at risk of
persecution in China because of their Christian religious faith. The applicants
further claim to have a well-founded fear of persecution at the hands of the Chinese
authorities, who, the applicants say, have unjustly accused them of
participating in a large-scale Ponzi-type fraud involving millions of dollars
and thousands of Chinese victims.
[2]
The applicants claim that they are the victims
of a fraud that has been perpetrated against them by their former associates Xi
“Jessica” Chen and Chileung “Louis” Szeto. According to the applicants, Chen
and Szeto initially offered to assist them in obtaining status in Canada, and
later became involved in several business ventures with the applicants. The
applicants claim that Chen and Szeto then cheated them out of millions of
dollars which the applicants have endeavoured to recover by commencing a civil
action against Chen and Szeto in the Superior Court of Ontario. The applicants
also reported Chen and Szeto’s alleged criminal activity to the York Regional
Police. The applicants allege that in retaliation, Chen and Szeto then reported
the applicants to the Canada Border Service Agency, the American Department of
Homeland Security, and citizenship and immigration authorities in the Dominican
Republic.
[3]
The Minister of Public Safety and Emergency
Preparedness has intervened in the applicants’ refugee hearing, seeking to have
the applicants excluded from the protection of the Refugee Convention.
In so doing, the Minister is relying, in part, on information obtained from
Chen and Szeto.
[4]
The Refugee Protection Division of the
Immigration and Refugee Board has now held 22 days of hearings in relation to
the applicants’ refugee claims, and the case is not yet complete.
[5]
On July 8, 2015, the last day of hearings, the
presiding member ordered the Minister to produce “… all
documentation from China, from York Regional Police and all documentation
emanating from Chen and Szeto related to the issues in this application …”.
[6]
The Minister has objected to producing certain
documents and videotapes to the applicants in accordance with the Board’s July
8, 2015 order, arguing that this material is protected by a specified public
interest privilege under section 37 of the Canada Evidence Act, R.S.C.
1985, c. C-5. The Minister claims that the disclosure of the documents and
videos in question would compromise one or more ongoing investigation(s) being
carried out by the Canada Border Services Agency.
[7]
In response, the applicants have commenced this
application, seeking, amongst other things, to have this Court determine the
validity of the Minister’s privilege claim.
[8]
As will be explained below, I have concluded
that many of the documents that the Minister has produced in relation to its
claim of public interest privilege are not in fact within the scope of the
Board’s production order and thus need not be produced. I have, moreover,
determined that certain other documents are indeed protected by public interest
privilege and need not be produced as their disclosure would indeed compromise
one or more ongoing investigation(s), and that the balance of relevant
considerations favours the Minister. It has not, however, been demonstrated
that the remaining documents over which the Minister claims public interest
privilege are properly protected by section 37 of the Canada Evidence Act,
and their disclosure to the applicants will accordingly be ordered.
[9]
Finally, I am satisfied that the videotapes of
the interviews of Chen and Szeto that were conducted by the York Regional
Police should be produced to the applicants, with only very minor redactions.
I.
The Format of These Reasons
[10]
Before considering the substance of the section
37 issues, I would start by noting that in the interest of transparency, I have
elected to prepare a single set of reasons rather than separate public and
confidential reasons, as is sometimes done in such cases. The body of these
reasons will be provided to the applicants and their counsel, and will be
included in the public record. Where it is necessary to discuss specific
documents or matters from the in camera hearings, I will do so in
footnotes, the content of which will be redacted from the reasons before my
decision is made public. My reasons will otherwise be identical in their public
and confidential forms.
II.
Procedural Background
[11]
The applicants first came to Canada on September
30, 2012. They were arrested on March 7, 2014, and were held in immigration
detention until their release under house arrest in November of 2015. The
reason for their detention was the concern that they were flight risks and
fugitives from justice.
[12]
The applicants applied for refugee protection
in July of 2014. As was noted earlier, the applicants claim to have a well-founded
fear of persecution at the hands of the Chinese authorities based upon their
religious faith and their alleged participation in a large-scale fraud –
something that the applicants vehemently deny.
[13]
In September of 2014, the Minister gave notice
of his intent to intervene in the applicants’ application for refugee
protection, alleging that the applicants should be excluded from refugee
protection pursuant to section 98 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27. The Notice alleges that the applicants had
committed serious non-political crimes before coming to Canada. The Minister’s
Notice also raised concerns with respect to the applicants’ credibility. The
Minister subsequently amended his Notice of Intent to Intervene on July 21,
2015, adding additional grounds of exclusion.
[14]
As stated in the Minister’s Amended Notice of
Intent to Intervene, Zenhua Wang is alleged to have illegally obtained and used
a Chinese passport in the name of Changzhi Xie, and to have fraudulently represented
himself as Changzhi Xie for the purposes of executing a business transaction in
the Bahamas. It is further alleged that Mr. Wang served as a member of
the Board of Directors of Inzon Corporation, a Nevada company, while holding an
ownership stake in the corporation under the name Chang Zhi Xie According to
the Minister’s Amended Notice, this violated Nevada law.
[15]
The Minister asserts that Mr. Wang’s
actions constitute the offences of False Pretense and Other Fraud pursuant to
the Bahama Penal Code Section 58, 59, 60 and 62, as well as offences under
sections 205.380 and 205.095 of the Nevada Criminal Code, namely Obtaining
Money, Property, Rent or Labor by False Pretense and Other Acts Constituting
Forgery. Had these offences been committed in Canada, the Minister says that
these acts would constitute serious criminal offences under the Criminal
Code of Canada, R.S.C. 1985, c. C-46, specifically Section 362(1)(a)
False Pretense or False Statement, an offence that is punishable by a term of
imprisonment not exceeding ten years. The Minister further asserts that
Mr. Wang has committed offences contrary to sections 366(1), 366(2), and
368(1)(a) of the Criminal Code, namely Forgery, Making False Document,
and the Use, Trafficking or Possession of Forged Document, all of which are
offence that are also punishable by a term of imprisonment not exceeding ten
years. Finally, it is alleged that Mr. Wang has committed offences
contrary to Section 57(1) of the Criminal Code, namely Forgery of or
Uttering Forged Passport, an offence that is punishable by a term of
imprisonment not to exceed 14 years.
[16]
The Minister asserts that Chunxiang Yan (who is
Mr. Wang’s wife), also holds Chinese passports in two different names -
Fen Yan (which the Chinese authorities believe to be her real identity) and
Chunxiang Yan, an identity that was allegedly obtained illegally. The Minister
asserts that these actions constitute the offences of Obtaining a Passport in a
False Name and Use of a Passport in a False Name that, if committed in Canada,
would constitute serious criminal offences under sections 366(2) and 368(1)(a)
of the Criminal Code, being offences that are punishable by terms of
imprisonment not exceeding ten years.
[17]
The Minister further alleges that the applicants
should also be excluded from refugee protection under Article 1E of the Refugee
Convention and section 98 of IRPA because they enjoy permanent
resident status in Malaysia, and because there is, moreover, a safe country of
reference for the applicants as they are citizens of the Dominican Republic, in
addition to being Chinese citizens.
[18]
The Board determined early on in the proceedings
that the applicants’ refugee hearings should be bifurcated: that is, the Board
would deal first with the issue of exclusion, and then, if necessary, would
consider the issue of inclusion. The circumstances surrounding the applicants’
becoming citizens of the Dominican Republic is thus relevant to the issue of
exclusion, in addition to their alleged criminality in China.
[19]
The Minister filed 13 volumes of evidence at the
applicants’ refugee hearing. These documents contain numerous references to
Chen and Szeto and to the relationship between the applicants and these two
individuals. Amongst other things, the Minister has disclosed documents and
videotapes emanating from the York Regional Police and the CBSA relating to
criminal complaints made by the applicants against Chen and Szeto, as well as a
complaint that the applicants submitted to the Chinese Embassy with respect to
Chen and Szeto. The Minister has also produced numerous documents relating to
the civil action that the applicants have commenced against Chen and Szeto in
the Ontario Superior Court of Justice.
[20]
The applicants brought several motions during
their refugee hearing seeking disclosure of various types of information from
the Minister. Most of these motions were not ruled on, and they appear to have
been held in abeyance.
[21]
Mr. Wang has thus far been examined by the
Minister’s representative over a period of nine days. During the hearing, Mr.
Wang was questioned extensively regarding his and Ms. Yan’s business
relationship with Chen and Szeto and their involvement in the applicants’
immigration matters, including their involvement in obtaining Dominican
Republic passports for the applicants. Mr. Wang has also been examined at
length regarding his own involvement with a number of companies including Hong
Kong Yingxin in Hong Kong, Mixculture Tourism in Canada, Inzon in the United
States, and Mixculture Capital in the Bahamas. The Minister’s representative
also questioned Mr. Wang about his complaint to the York Regional Police
regarding Chen and Szeto and about the applicants’ civil action against Chen
and Szeto.
[22]
Ms. Yan has thus far been examined over
some four and a half days, and her examination is ongoing. Ms. Yan has
been questioned extensively by the Minister’s representative with respect to
her relationship with Chen and Szeto, their role in obtaining Dominican
Republic passports for Ms. Yan and her husband, the applicants’ civil action
against Chen and Szeto, and Chen and Szeto’s involvement in the applicants’
companies.
[23]
In June of 2015, it became apparent to the
applicants that the Minister had documents that had been obtained from the York
Regional Police with respect to the applicants and Chen and Szeto, as well as
documents that had been obtained from Chen and Szeto directly, all of which had
not previously been disclosed to the applicants. Consequently, the applicants
renewed their motion for disclosure, seeking disclosure of all of the evidence
that was in the possession of the Minister emanating from Chen and Szeto, as
well as evidence obtained from the York Regional Police and the Chinese
authorities.
[24]
The Minister responded by informing the Board
that Chen and Szeto are currently under investigation by the CBSA, and that the
existence of this investigation had not yet been made public. As a result, the
Minister stated that if applicants’ motion for disclosure was granted, he would
object to the disclosure of any evidence relating to Chen and Szeto pursuant to
section 37 of the Canada Evidence Act.
[25]
It is notable that while the Minister’s
representative took the position before the Board that publicly disclosing the
existence of the CBSA’s investigation into Chen and Szeto would compromise that
investigation, this information is contained in the record that was filed by
the applicants in this matter. The Minister did not seek a confidentiality
order protecting this information from public disclosure, with the result that
the existence of the investigation into Chen and Szeto is now a matter of
public record.
[26]
The Board granted the applicants’ disclosure
motion on July 8, 2015, ordering the Minister to produce “… all documentation from China, from York Regional Police
and all documentation emanating from Chen and Szeto related to the issues in
this application …”. At a case management conference held the following
day, the Board further ordered that the applicants’ refugee hearing would not
resume until such time as the section 37 issues were resolved.
[27]
Pursuant to subsection 37(1) of the Canada
Evidence Act, the Minister subsequently produced a Certificate from Linda
Robertson, an Assistant Director with the CBSA, in which Ms. Robertson
certifies that the evidence the Minister seeks to withhold is information
respecting one or more ongoing investigation(s) into one or more person(s), the
disclosure of which could compromise such investigations.
[28]
Ms. Robertson further asserted that the
disclosure of the evidence in question could undermine CBSA’s ability to take
enforcement action against the subject or subjects of the ongoing
investigation(s), in that it could lead to evidence being destroyed or cause
the subject or subjects to flee. As a result, Ms. Robertson certified that
the disclosure of any portion of the evidence in question would be injurious to
a specified public interest under section 37 of the Canada Evidence Act.
[29]
Ms. Robertson also certified that the
Minister does not intend to rely on the evidence in question to support his
claim that the applicants should be excluded from the protection of the Refugee
Convention. This position was maintained in the Minister’s Amended Notice
of Intent to Intervene.
[30]
Ms. Robertson had not, however, reviewed
the applicants’ file before certifying that it would be injurious to one or
more investigation(s) if the material in issue was disclosed to them. Nor did
Ms. Robertson have any knowledge of the issues that were raised in the
applicants’ case, beyond what was stated in the Minister’s Notice of Intent to
Intervene. Indeed, she was not even clear as to the basis for the Minister’s
intervention, as her affidavit indicates that the Minister was intervening in
the applicants’ refugee hearing on the ground of “misrepresentation”,
a patently inaccurate position that was subsequently maintained in her
cross-examination.
[31]
The applicants have brought this application in
which they seek a determination that the Minister’s objection pursuant to
section 37 of the Canada Evidence Act is not sustainable, and an order
directing the Minister to disclose un-redacted versions of the evidence in
question forthwith. In the alternative, the applicants seek an order providing
them with fulsome summaries of the withheld information or admissions of facts.
In the further alternative, the applicants seek an order declaring that the
respondents’ objection is an abuse of process, and an order directing the
respondents to provide the applicants with the evidence in question.
III.
The Applicable Legal Framework
[32]
Before turning to consider the merits of the
applicants’ application, it is important to identify the legal principles that
govern the assessment of objections under section 37 of the Canada Evidence
Act.
[33]
Section 37 of the Canada Evidence Act
permits a Minister of the Crown to object to the disclosure of information by
certifying orally or in writing that the information should not be disclosed on
the grounds of a specified public interest such as prejudice to an ongoing
investigation: subsection 37(1).
[34]
Pursuant to subsection 37(4.1) of the Act, a
Court may order the disclosure of the information in question unless the Court
determines that such disclosure would encroach upon a specified public
interest. If disclosure of the information in question would not encroach on a
specified public interest, then the Court may order disclosure: Goguen v.
Gibson, [1983] 1 F.C. 872.
[35]
In so doing, the Court must guard against
reliance on “… generalized assertions of possible
disadvantage to an ongoing investigation …”: R. v. Toronto Star
Newspapers Ltd., (2005), 204 C.C.C. (3d) 397 at para. 15, [2005] O.J. No.
5533 (S.C.J.). Rather, the onus is on the Minister to establish that the
disclosure of the information in question would have a concrete deleterious
effect on the ongoing investigation.
[36]
If the Court is satisfied that disclosure of the
evidence in question would indeed encroach on a specified public interest, it
must then consider whether the public interest in protecting an ongoing
investigation is outweighed by the public interest in disclosure: subsection
37(5), R. v. Richards (1997) 34 O.R. (3d) 244 at 248-249, 100 O.A.C. 215
(C.A.). If it is determined that the public interest in disclosure outweighs
the public interest in protecting an ongoing investigation, then the Court may order
the disclosure of all, part, or summaries of the information in question and
may impose any conditions on that disclosure that the Court considers
appropriate.
[37]
In carrying out this balancing exercise,
Justice Rothstein noted in Khan v. Canada (Minister of Citizenship and
Immigration), [1996] 2 F.C. 316, 110 F.T.R. 81 at paragraph 25, that the
following factors should be considered:
(a) the nature of the public interest sought
to be protected by confidentiality […];
(b) whether the evidence in question will
“probably establish a fact crucial to the defence” […];
(c) the seriousness of the charge or issues
involved […];
(d) the admissibility of the documentation
and the usefulness of it […];
(e) whether the applicants have established
that there are no other reasonable ways of obtaining the information […]; and
(f) whether the disclosures sought amount to
general discovery or a fishing expedition.”
[citations omitted throughout]
See also Canada (Attorney General) v.
Tepper, 2016 FC 307 at para. 15, [2016] F.C.J. No. 288, citing Sopinka,
Lederman and Bryant, The Law of Evidence in Canada, 4th ed. (Markham:
LexisNexis, 2014) at 1073-1074.
[38]
If the Court does not order disclosure pursuant
to subsection 37(4.1) or subsection 37(5), then the Court shall prohibit
disclosure of the information in question, pursuant to subsection 37(6).
IV.
The Procedural History of this Application
[39]
When faced with an application under section 37
of the Canada Evidence Act, the Court must first decide whether the
application can be dealt with based upon the affidavit material filed with the
Court, or whether an “apparent case” for
disclosure has been made out requiring that the Court to examine the evidence
in question in order to determine the validity of the privilege claim: Khan,
above, at para. 24.
[40]
After carefully reviewing the public record and
the affidavit material that was filed by the Minister on a confidential basis,
I determined that an “apparent case” for
disclosure had been established by the applicants, and that it was necessary
for me to examine the documents and videotapes in question in order to
determine the validity of the Minister’s claims of public interest privilege.
Consequently, I ordered that the Minister produce this material for my
inspection.
[41]
The applicants brought a motion for appointment
of an amicus curiae to assist the Court in any ex parte
proceedings dealing with the Minister’s section 37 objection. I concluded that
an amicus curiae would be of assistance to me in dealing with the
Minister’s objection, and Mr. Gordon Cameron was appointed as amicus
curiae in this case.
[42]
The applicants’ Notice of Application also
raises a constitutional challenge to section 37 of the Canada Evidence Act.
Counsel for the applicants confirmed during the case management process,
however, that they would not be proceeding with this challenge at this stage of
the process. Rather, the applicants will decide after the section 37 objection
is dealt with by the Court whether it is necessary to pursue their challenge to
the constitutionality of the section 37 regime.
[43]
Finally, the applicants assert that the failure
of the Minister to object to disclosing relevant evidence in a timely fashion
constitutes an abuse of process. This abuse is compounded, the applicants say,
by virtue of the fact that they had already been questioned for days on end by
the Minister’s representative, without being aware of the existence or content
all of the evidence in issue in this proceeding.
[44]
The applicants have confirmed that the abuse of
process question will ultimately have to be decided by the Board. While I have
certainly been mindful of the applicants’ abuse of process arguments is
assessing the section 37 issues in this case, I will make no comments as to the
merits of these arguments, given that they will have to be determined by the
Board in due course.
[45]
Following an exchange of public and confidential
affidavits and written submissions, a public hearing was held in this matter on
March 23, 2016, and ex parte, in camera hearings were held on March 24
and April 14, 2016 in the presence of the amicus curiae. In the course
of the in camera hearing I heard testimony from the Minister’s witness,
explaining the basis of the claim of public interest privilege. I also received
submissions from counsel for the Minister and the amicus curiae.
[46]
The issue for determination is thus whether the
Minister has established that the disclosure of the information in issue here
would indeed compromise one or more CBSA investigation(s), and if so, whether
the applicants’ right to disclosure and the public interest in the
administration of justice outweighs the public interest in non-disclosure in
this case.
V.
Determining the Relevance of the Information in
Question
[47]
In determining whether the information that the
Minister seeks to protect should be disclosed to the applicants, I must first
determine whether the information is relevant to the issues that are before the
Board. In considering this question, I must also consider the significance of
the Board’s disclosure order, and what role, if any, that order should play in
my assessment of the relevance of the documents and videotapes in question.
[48]
By making its disclosure order, the Board has
implicitly found that the information that is the subject of the disclosure order
is relevant to the issues before it. The Board has conducted some 22 days of
hearings in this matter, and has also held a number of case management
conferences. It has heard copious amounts of evidence regarding the complex web
of dealings between the applicants (and their various corporate vehicles) and
Chen and Szeto. The Board is thus intimately acquainted with the issues before
it, and the potential significance of the information in question, all of which
militates in favor of according considerable weight to the Board’s finding that
the documents and videotapes within the scope of the order are relevant to the
applicants’ refugee case.
[49]
That said, the Board had not inspected any of
the documents or the videotapes in question before making its disclosure order,
and it was thus unaware of the actual content or significance of this material.
[50]
In these circumstances, while I am mindful of
the fact that the Board was clearly of the view that the information being
sought by the applicants was potentially relevant to the issues before it, I
must nevertheless make my own determination as to the relevance of the
documents and videotapes in question.
[51]
In making that determination it necessary to
have a clear understanding of what issues are before the Board. The Minister
takes a narrow view of the issues before the Board, submitting that the Board
is only dealing with the applicants’ exclusion at this point and that the only
issues in are those set out in the Amended Notice of Intent to Intervene.
Insofar as Mr. Wang is concerned, these issues are his possession and use
of the Changzhi Xie identity, including his use of the Xie identity for the
purposes of executing a business transaction in the Bahamas, and his use of the
Xie identity to hold shares in Inzon Corporation. Insofar as Ms. Yan is
concerned, the only issues before the Board relate to her possession and use of
the Fan Yan identity.
[52]
The applicants take a much more expansive view
of the issues before the Board, submitting that these include issues that have
emerged over the course of the proceeding. The applicants point out that the
Minister has disclosed videotapes of their own interviews with the York
Regional Police, as well as other evidence received from Chen. According to the
applicants, this demonstrates the Minister’s own understanding that information
from these sources is relevant to the issues before the Board.
[53]
The applicants further note that they have been
questioned extensively by the Minister’s representative on subjects beyond
those set out in the Amended Notice to Intervene, including the nature and
extent of their relationship with Chen and Szeto, and their business dealings
in China, Hong Kong, Canada, the United States and the Bahamas, placing all of
these subjects at issue in the proceeding. The applicants further argue that
their personal history with Chen and Szeto is central to their defence, and
has, moreover, become crucial in the determination of the applicants’
credibility.
[54]
Finally, the applicants submit that the issues
of inclusion and country of reference remain live issues before the Board.
[55]
The issue of country of reference is clearly a
live issue before the Board at this point, as the Minister is seeking to have
the applicants excluded under Article 1E of the Refugee Convention and
section 98 of IRPA on the basis that there is a safe country of
reference for them based on the fact that they are citizens of the Dominican
Republic. As a consequence, issues relating to how the applicants became
citizens of the Dominican Republic and the legitimacy of that citizenship are
squarely in issue at this stage of the proceedings, as is the role that Chen
and Szeto played in helping the applicants obtain that citizenship.
[56]
I also agree with the applicants that the issues
in their refugee proceedings cannot be determined solely by reference the
Minister’s Amended Notice of Intent to Intervene. While I agree with the
Minister that the grounds of exclusion identified in the Notice provide the
foundation for what is at issue during this phase of the applicants’ refugee
proceeding, the scope of those issues must be considered within the context of
the proceedings as they have actually unfolded. As the Federal Court of Appeal
has held, the relevance of the evidence at issue in a section 37 application is
not to be determined “in the narrow sense of whether it
is relevant to an issue pleaded, but rather to its relative importance in
proving the claim or defending it”: Jose Pereira E Hijos, S.A. v.
Canada (Attorney General), 2002 FCA 470 at para. 17, 235 F.T.R. 158.
[57]
It is evident from a review of the transcript of
the applicants’ refugee hearing that the Minister’s representative has
questioned the applicants extensively on a variety of topics that go well
beyond the specific grounds of exclusion identified in the Amended Notice of
Intent to Intervene. This includes numerous questions with respect to the
applicants’ relationship with Chen and Szeto and their involvement in the
applicants’ various companies.
[58]
Further, when faced with the applicants’
repeated objections to these lines of questioning, the Minister’s
representative justified his expansive cross-examination by arguing that these
other areas of questioning were indeed relevant to the determination of the
identified grounds of exclusion and to the applicants’ credibility – something
else that was clearly raised as an area of concern in the Minister’s Notices of
Intent to Intervene. This undermines the Minister’s claim in this Court that
the only issues under consideration by the Board are those strictly related to
the specific allegations contained in the Minister’s two Notices of Intent to
Intervene.
[59]
It is also significant that the Board has
consistently allowed the Minister’s representative to cross-examine the
applicants on a wide range of topics on the basis that these questions were in
fact relevant to the determination of the issues before the Board.
[60]
As a result, I am of the view that the issues
that have been canvassed by the Board have not been strictly confined to the
narrow grounds of exclusion raised in the Amended Notice of Intent to
Intervene, but have encompassed a wide variety of subjects relating to the
applicants’ personal history with Chen and Szeto, and the applicants’ business
dealings in Hong Kong, Canada, the United States, and the Bahamas.
[61]
With this understanding of the nature and scope
of the hearing before the Board, I will next consider the merits of the
Minister’s claim that various documents and videotapes should be exempt from
disclosure on the basis of public interest privilege.
VI.
Should the Information in Issue be Disclosed to
the Applicants in this Case?
A.
Category One Documents
[62]
The Minister and the amicus curiae agree
that there are 24 documents or groups of documents that have been produced by
the Minister in response to the applicants’ application that clearly do not
come within the parameters of the Board’s July 8, 2015 disclosure order because
the documents do not emanate from China, nor were they received by the CBSA
from either the York Regional Police or from Chen and Szeto. I agree with that
assessment.
[63]
As I understand the evidence of the Minister’s
witness, these documents were produced – not because the Board has ordered
their production – but to provide the Court with an understanding of the nature
and extent of the CBSA’s ongoing investigation(s).
[64]
My task is to determine whether the material
that the Board has ordered be produced by the Minister should be exempted from
disclosure (in whole or in part) on the basis of a specified public interest
privilege. Given that the documents identified in footnote 1 are not within the
scope of the Board’s production order, no section 37 issue arises in relation
to these documents and they need not be produced by the Minister.
B.
Category Two Documents
[65]
There is a second group of 14 documents or
groups of documents.
Two of these documents also fall within Category One, while three others
clearly fall within the scope of the Board’s disclosure order. This leaves nine other
documents that potentially come within the scope of the Board’s order. I say “potentially”, because the Minister has failed to
provide any evidence regarding the provenance of a number of the documents
under review.
[66]
The source of the documents in the possession of
the CBSA is a matter within the knowledge of the CBSA and the applicants have
no way of ascertaining where these documents came from. As a result, I
understand the Minister’s counsel to agree that where the Minister has failed
to provide evidence as to how he came into possession of certain documents, it
is appropriate to draw an adverse inference against the Minister, and assume
that the documents in question do fall within the parameters the Board’s
disclosure order.
[67]
Counsel for the Minister and the amicus
curiae agree that the documents in Category Two are indeed protected by
investigative privilege. They further agree, moreover, that the salutary
benefit of disclosing the documents to the applicants is outweighed by
deleterious effect that such disclosure would have on one or more CBSA
investigation[s]. Having carefully examined these documents, I agree with
counsel’s assessment.
[68]
These documents relate to ongoing CBSA
investigation(s) into matters that are not at issue before the Board. I am,
moreover, satisfied that the disclosure of these documents to the applicants
would indeed jeopardize ongoing CBSA investigation(s) and that this is not a
situation where the impact on the ongoing investigation(s) could be mitigated
by the production of summaries or redacted forms of the documents in question. Consequently the
balance favours the Minister in relation to the Category 2 documents and
disclosure of these documents will not be ordered.
C.
Category Three – The Videotapes
[69]
The Board’s July 8, 2015 disclosure order
required the production of all information in the possession of the Minister
that emanated from Chen and Szeto or was obtained from the York Regional
Police. The Minister has refused to produce some seven hours of videotaped
interviews of Chen and Szeto that were conducted by the York Regional Police.
[70]
These videotapes are clearly within the scope of
the Board’s disclosure order, as they were provided to the CBSA by the York
Regional Police. They are, moreover, clearly relevant to the issues that are
before the Board, as the applicants’ relationship with Chen and Szeto has
assumed a central role in the applicants’ refugee hearings. Indeed, the
Minister’s own representative submitted to the Board that “we have to understand the relationship between
Mr. Wang, Ms. Yan and [Chen]. It is these actions that they take
amongst one another that go to the heart of the fraud”.
[71]
Further, the applicants’ relationship with Chen
and Szeto is relevant to one of the Minister’s allegations in his Amended
Notice of Intent to Intervene regarding Mr. Wang’s alleged involvement with
a Bahamian company using two different identities. The applicants’ defence to
this allegation is that Mr. Wang did not sign the document giving rise to
the allegation, and that it was either Chen or Szeto who signed the document in
question in the name of “Changzhi Xie”, as part
of a larger scheme to defraud the applicants out of millions of dollars.
[72]
The Minister’s representative has, moreover,
already provided the Board with a number of documents emanating from Chen and
Szeto, further confirming the relevance of the relationship of the applicants
to Chen and Szeto insofar as the applicants’ refugee claims are concerned.
This Court has previously held that once the Minister chooses to disclose
information dealing with an issue, fairness requires that any such disclosure
must be complete: B135 v. Canada (Minister of Citizenship and Immigration),
2013 FC 871 at para. 26, 438 F.T.R. 128.
[73]
The question, then, is whether the Minister has
established that the disclosure of the videotapes of the Chen and Szeto interviews
would compromise one or more CBSA investigation(s) and where the balance for
and against disclosure should be struck.
[74]
Disclosure obligations in the refugee context
are not absolute and can be limited by valid claims of privilege or other
mechanisms for withholding disclosure: Suresh v. Canada (Minister of
Citizenship and Immigration), 2001 SCC 1 [2002] at para. 122, [2002] 1
S.C.R. 3; Charkaoui v. Canada (Minister of Citizenship and Immigration),
2007 SCC 9 at paras. 53, 57-61, [2007] 1 S.C.R. 350.
[75]
Investigative privilege is not a class
privilege: Conway v. Rimmer et al., [1968] A.C. 910, [1968] 1 All E.R.
(H.L.); Sopinka, Lederman and Bryant, The Law of Evidence in Canada,
above at 1084. The Ontario Court of Appeal has, moreover, determined that while
there is “an obvious reason for caution in disclosing
the contents of any document in the possession of police … this has never been
accepted as a reason for excluding such documents as a class”: Smerchanski
v. Lewis Smerchanski v. Asta Securities Corporation Limited, (1981), 31
O.R. (2d) 705 at para. 20, 120 D.L.R. (3d) 743 (C.A.).
[76]
Investigative privilege has, moreover, been
described as a “fairly narrow” basis for secrecy
– and “one that of necessity needs to be determined on
a case by case basis”: R. v. Toronto Star Newspapers Ltd., (2005)
204 C.C.C. (3d) 397 at para. 14, [2005] O.J. No. 5533 (S.C.J.).
[77]
There is no evidence in this case that would
suggest that either Chen or Szeto were police informers, or that they were
given any promise of confidentiality with respect to the information that they
provided in their police interviews. Chen and Szeto are obviously aware of the
fact that they were interviewed by the York Regional Police, and they would,
moreover, know what they told the police. Chen and Szeto would also be aware
that they were under investigation, at least by the York Regional Police, as
they were advised of their right to counsel before the interviews started, and
their statements were given under caution.
[78]
The applicants are, moreover, already aware of
the fact that Chen and Szeto are under investigation by the CBSA, as the
Minister’s representative expressly advised the Board of this fact at the July
8, 2015 hearing. I also have to question the depth of the Minister’s concern as
to the deleterious effect that the disclosure of the existence of the CBSA’s
investigation of Chen and Szeto would have on that investigation, given that no
attempt was made by the Minister to protect this information from disclosure in
this section 37 proceeding, with the result that it is now part of the public
record.
[79]
While I have not been provided with all of the
documents that have been produced in the context of the applicants’ civil
action against Chen and Szeto, it is apparent from the applicants’ public
record that Chen and Szeto have made many different allegations of misconduct
on the part of the applicants in that action.
It is also evident that Chen and Szeto have provided extensive documentary
disclosure in the civil action, producing many documents relating to their
dealings with the applicants and their various companies. The Minister has not
identified any specific information that is disclosed in either Chen or Szeto’s
police interviews that has not already been disclosed to the applicants in the
context of the civil action.
[80]
Chen and Szeto’s interviews were provided in the
context of a police investigation into specific allegations or criminality that
had been made against them by the applicants. While the interviews would
naturally cover subjects that may have been of interest to the York Regional
Police, the videotapes do not disclose anything about what topics might be of
interest to the CBSA in the context of its own investigation(s).
[81]
As a result, the Minister has failed to
establish that the disclosure of the videotapes of Chen and Szeto’s interviews
with the York Regional Police should be protected from disclosure on the basis
that their disclosure would compromise one or more CBSA investigation(s). The
Minister will, therefore, be ordered to provide the applicants with copies of
Chen and Szeto’s interviews with the York Regional Police within 30 days of the
date of my Order in this matter.
[82]
That said, there are four very brief portions of
the videotapes that are similar in nature to the information contained in the
Category 2 documents.
I have already concluded that the disclosure of this type of information would
jeopardize one or more ongoing CBSA investigation(s) and that this is not a
case where the impact on ongoing investigations(s) could be mitigated by the
production of summaries or redacted forms of the video extracts in question.
Consequently the balance favours the Minister in relation to the brief extracts
of the videotapes identified in footnote 8, and these portions of the videos
should be protected from disclosure.
[83]
The amicus curiae and the Minister shall
consult with each other in order to ensure that only the portions of the videos
relating to the information referred to in footnote 8 are edited from the
videos before they are disclosed to the applicants in accordance with these
reasons. If there is any question or dispute as to the extent of the redactions
required, I may be spoken to.
D.
Category Four Documents
[84]
There are a number of documents that clearly
emanate from Chen and/or Szeto and thus come squarely within the parameters of
the Board’s disclosure order.
[85]
The first is a group of 13 documents that were
provided to the York Regional Police by Chen during one of her police
interviews.
The fact that the documents are now in the hands of the CBSA does not reveal
anything about the CBSA’s own areas of interest, or the nature or scope of any
ongoing CBSA investigations. The Minister further acknowledges that several of
these documents have already been produced in the context of the Ontario
litigation.
I have not been persuaded that the disclosure of most of these documents would
have any negative effect on any ongoing CBSA investigation(s). The documents
discussed in footnote 12 must therefore be produced, subject to the exceptions
discussed in footnote 13.
[86]
There is a second group of documents that the
CBSA obtained directly from Chen that are therefore clearly within the
parameters of the Board’s disclosure order.
I have not been persuaded that the disclosure of most of these documents would
have any detrimental effect on any ongoing CBSA investigation(s). The documents
identified in footnote 14 must therefore be produced, subject to the redactions
identified in the footnote.
E.
Miscellaneous Documents
[87]
This leaves five documents or groups of
documents that do not fit neatly into any of the previously discussed
categories of documents. These documents will, therefore, be considered on a
document-by-document basis.
[88]
The first document appears twice in the
Minister’s affidavits.
The Minister has not provided any evidence regarding the provenance of this
document, and for the reasons previously given, I will assume that the document
falls within the parameters the Board’s disclosure order.
[89]
This document is relevant to the issues before
the Board. Given that there is no information regarding the source of the
document, I have thus not been persuaded that the disclosure of this document
would cause any harm to any investigation(s) being carried out by the CBSA as
it has not been established that the disclosure of the document would reveal anything
about any CBSA area of interest. The document described in footnote 15 must
therefore be disclosed.
[90]
These latter comments also apply to a second
group of documents.
Here again, I have not been provided with any information as to the source of
the documents in question, and I have thus not been persuaded that their
disclosure would cause any harm to any investigation(s) in which the CBSA may
be involved, and the documents must therefore be disclosed.
[91]
There are two other documents whose origins are also
unknown, and I will therefore assume that these documents fall within the scope
of the Board’s disclosure order.
I have not, however, been persuaded that these documents are relevant to the
issues before the Board, and they thus need not be produced.
[92]
The last document emanates from the York
Regional Police and thus falls within the scope of the Board’s production
order.
We do not know who prepared the document in question, but given that it comes
from the York Regional Police, it does not disclose anything about what areas
might be of interest to the CBSA in the context of its own investigation(s). The document
described in footnote 18 must therefore be produced.
VII.
Conclusion
[93]
For these reasons, the applicants’ challenge to
the Minister’s assertion of a public interest investigative privilege under
section 37 of the Canada Evidence Act is granted, in part. The Minister
shall, within 30 days of this decision, disclose the documents and videotapes
that have been identified for disclosure in these reasons, in the form
discussed in the footnotes to these reasons. The costs of this motion shall be
in the cause.
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