Docket: DES-3-16
Citation:
2016 FC 795
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 12, 2016
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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DANIEL TURP
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Respondent
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ORDER AND REASONS
I.
Background to proceedings
[1]
On March 21, 2016, Daniel Turp,
the respondent in this application under subsection 38.04(1) of the Canada
Evidence Act, R.S.C. 1985, c. C-5 (section 38) [CEA], filed a notice
of judicial review (Court file No. T-462-16), initially seeking an order
from the Court prohibiting the issue of permits to allow the export of light
armoured vehicles [LAVs] to Saudi Arabia.
[2]
On March 24, 2016, the Minister of
Foreign Affairs filed a notice of appearance in the underlying proceeding (Court
file No. T-462-16).
[3]
On March 31, 2016, my colleague
Mr. Justice Noël was assigned to act as a case management judge in the
underlying proceeding (Court file No. T-462-16).
[4]
On April 11, 2016, in response to the
request for disclosure filed by the respondent, the Minister of Foreign Affairs
filed a certificate from Wendy Gilmour, Director General, Trade Controls
Bureau, along with the file sought in the application for judicial review
pursuant to section 317 of the Federal Courts Rules, SOR/98-106
[Rules], which included precisely a copy of the decision made by the Minister
on April 8, 2016, approving the permits allowing the export of LAVs
and associated weaponry subject to a contract entered into between the Canadian
Commercial Corporation [CCC] and the Kingdom of Saudi Arabia in a
nine-page memorandum entitled “Memorandum for Action,”
dated March 21, 2016.
[5]
On April 11, 2016, the respondent
specified that he sought disclosure of the information in only one paragraph of
the said memorandum, specifically the second and third lines of
paragraph 6.
[6]
The Minister was unwilling to disclose the other
documents requested, particularly the contract for the sale of vehicles between
CCC and Saudi Arabia, given its confidential nature.
[7]
On April 21, 2016, the respondent
filed an amended notice of application for judicial review in the underlying
proceeding in light of the April 8, 2016 decision, now asking
the Court to rescind the permits.
[8]
On May 16, 2016, Michèle Lavergne,
Senior Counsel for Justice Canada, told the Attorney General of Canada that she
was required to disclose sensitive or potentially injurious information from
the nine-page memorandum (Memorandum for Action, dated
March 21, 2016) to comply with the request for disclosure as per
Rule 317 of the Rules.
[9]
On June 7, 2016, the Attorney General
of Canada decided, pursuant to subsection 38.03(1) of the CEA, to
authorize the disclosure of the redacted version of the document and to uphold
non-disclosure of the redacted information in lines two and three of paragraph 6
of the said document, being of the view that this redacted information was
subject to statutory privilege under section 38 of the CEA and that its
disclosure would be injurious to international relations.
[10]
On June 21, 2016, the Attorney General
of Canada filed an amended application that is the subject of this proceeding
under subsection 38.04(1) of the CEA, seeking an order from this Court
confirming prohibition of disclosure of the information identified in the
notice given by Ms. Lavergne (as amended on May 30, 2016) under
subsection 38.01(1) of the CEA.
[11]
Therefore, it is important to note that, for the
purposes of this proceeding, only the redacted information in lines two and
three of paragraph 6 of the aforementioned document is subject to
section 38.
II.
Issue
[12]
The only issue, common to all proceedings under
the CEA, is whether the Court should, pursuant to subsection 38.06(3),
confirm the prohibition of disclosure of the information identified by the
Attorney General, as provided in paragraph 38.02(1)(a) of the CEA, or
authorize the disclosure, subject to conditions, of all of the information, a
part or summary of the information, or a written admission of facts relating to
the information, under subsection 38.06(1) or (2) of the CEA.
III.
Analysis
[13]
The parties did not dispute the three-step test
that was so clearly set out in Canada (Attorney General) v. Ribic, 2003 FCA 246
[Ribic] and that has since been fully adopted in a number of cases,
including Canada (Attorney General) v. Telbani, 2014 FC 1050; Canada
(Attorney General) v. Almalki, 2010 FC 1106; Canada (Attorney
General) v. Khawaja, 2007 FC 490; Canada (Attorney General) v.
Canada (Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar), 2007 FC 766; and Khadr v. Canada (Attorney
General), 2008 FC 549.
[14]
Thus, the judge designated by the Chief Justice
of the Federal Court to make an order under the CEA must first determine
whether or not the information sought to be disclosed is relevant to the
underlying proceeding in which the respondent intends to use it. The applicant
for disclosure bears that burden. If the judge is satisfied that the
information is relevant, the judge must then determine whether disclosure of
that information would be injurious to international relations, national
defence or national security. At this stage, the Attorney General must prove
the potential injury if disclosure of the information were to be ordered.
Finally, if satisfied that the disclosure of the information would be injurious
to international relations or national defence or national security, but that
the public interest in disclosure outweighs in importance the public interest
in non-disclosure, the judge may, by order, after considering the public
interest in disclosure, authorize the disclosure of all or part of the
information, subject to those conditions to disclosure that are most likely to
limit any injury to international relations or national defence or national
security.
[15]
As stated in Ribic, cited above, and as
has since been repeated many times in the jurisprudence, the threshold for
determining whether the information for which an order confirming prohibition
is sought by the Attorney General is relevant to the underlying judicial review
is a low one.
[16]
At the outset, it is important to note that the
respondent’s application is very specific; he seeks disclosure of the
information in only lines two and three of paragraph 6 of the
March 21, 2016 “Memorandum for Action,”
at the very heart of the document constituting the decision under review. For
this reason, I have no difficulty finding that the information is relevant and
that the respondent has met his burden with regard to this first task.
[17]
Next, the Court must determine whether the
disclosure of this information would be injurious to international relations or
national defence or national security. Here, the Attorney General bears the
burden of proving the potential injury if disclosure of the information were to
be ordered.
[18]
The Attorney General rebuts the respondent’s
assertion that the information sought to be disclosed is already in the public
domain, saying that it is clearly based on speculation, as the respondent has
not seen the information in question.
[19]
The respondent submits that the context of the
sentence containing the redacted words makes it clear that they pertain to the
weaponry aboard the LAVs, and that this information is of prime importance in
assessing the destructive capabilities of the LAVs, including the possibility
that they will be used against civilians. Moreover, in support of his
assertion, he says that the redacted information was made public in response to
an access to information request made by a Globe and Mail reporter. The
respondent adds that even if the information that the Attorney General seeks to
protect were different than that made public, this proves that the disclosure
of such information is not injurious to international relations.
IV.
Conclusion
[20]
After reading the parties’ written
representations and the public and confidential affidavits filed by the
Attorney General in support of her position, the Court is of the opinion that
the disclosure of the information about which notice was given would be
injurious to international relations or national defence or national security.
Moreover, after reviewing the information for which an order for non-disclosure
is sought, I find that the Attorney General has met her burden of establishing
that the full disclosure of the redacted information would be injurious to
international relations or national defence or national security and that,
subject to the outcome of the judicial review, the public interest in
non-disclosure outweighs in importance the public interest in disclosure.
[21]
I am also satisfied that the argument the
respondent intends to make can very well be made by counsel in the absence of
information confirming or refuting his contention; if the reviewing judge can
read the information in question, then the Court will be able to make a
decision based on full evidence. The application for judicial review will
therefore be heard by the undersigned.
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