Date: 19990113
Docket: T-2589-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
FATEHALI FAZALBHOY
Respondent
REASONS FOR ORDER
GIBSON J.
[1] The respondent seeks an order of confidentiality in respect of "...all material filed by the respondent in relation to this appeal." The grounds for the motion are stated to be Rule 151 of the Federal Court Rules, 19981. That Rule reads as follows:
151. (1) On motion, the Court may order that material to be filed shall be treated as confidential.
151. (1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels.
(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
(2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l'intérêt du public à la publicité des débats judiciaires.
[emphasis added]
[je souligne]
[2] The respondent applied for Canadian citizenship on the 18th of December, 1996. He initiated his application by filing a form entitled "Application for Canadian Citizenship Adult" apparently provided by the appellant (the "Minister"). The respondent identified his mailing address for communications in respect of his application as the address of his counsel. Thus, it would appear that at all relevant times, the respondent had the advice of counsel. On the first and third pages of the form, the words "protected when completed" appear. Additionally, one the third page, the following notation appears:
| Protected Information |
| Personal Information Bank SSC/P-PU-050 |
| Information in this form is collected under the Citizenship Act to determine eligibility for the grant of Canadian Citizenship and to maintain a record of persons to whom citizenship certificates were issued. Under the Privacy Act, you have the right to access, request correction of or have a notation attached to the information concerning yourself. |
[3] In support of his application, the respondent filed with the Minister substantial additional personal information and documentation.
[4] The applicant's application for Canadian citizenship was granted by a Citizenship Court Judge on the 29th of September, 1997, notwithstanding that he had been absent from Canada in the years immediately preceding the date of his application for substantially longer periods of time than would normally be permitted in order for him to qualify.
[5] The Minister filed a Notice of Appeal from the Citizenship Court Judge's decision on the 27th of November, 1997. On the 21st of May, 1998 the Citizenship Court filed with this Court a certified copy of the record that was before the Citizenship Court Judge. Thus, the respondent's application for Canadian citizenship and supporting documentation found their way onto the open files of the Registry of this Court, through no initiative of the respondent and without his consent, either express or implied.
[6] On the 21st of December, 1998 seven months after the certified record was filed in this Court, the respondent filed his application for a confidentiality order.
[7] I will comment briefly on three preliminary issues not raised before me. The first is the delay between the time of filing of the certified record and the filing of the application before me. Such delay can only cast doubt on the depth of the respondent's concern regarding confidentiality of his personal information by reason of the filing of the certified record. Second, the motion before me seeks confidentiality "... in respect of all material filed by the respondent in relation to this appeal." The certified record was, of course, not filed in this Court by the respondent. Finally, Rule 151(1) speaks of a motion for confidentiality in respect of "...material to be filed...", as highlighted in the quotation of the Rule that appears earlier in these reasons. The motion before me is, of course, not for confidentiality in respect of material to be filed, but rather in respect of material filed some months ago.
[8] I turn then to the substance of the argument before me.
[9] Counsel for the respondent urged that the respondent was entitled to rely on the notations regarding protection of information that appeared on the application for Canadian citizenship that he completed. Further, counsel noted that the respondent swore in his affidavit in support of this application:
| I understood these words [the words "protected when completed" on the Application] to mean that the information that I was providing would remain confidential as between myself and the Minister of Citizenship and Immigration. I provided the information with that understanding in mind, as I like to keep my affairs private. |
Finally, counsel urged that the "... public interest in open and accessible court proceedings" referred to in Rule 151(2) would not be compromised by providing confidentiality in respect of the tribunal record because the hearing of the appeal regarding the grant of citizenship to the respondent would, itself, be open.
[10] Counsel for the Minister referred me to the following extract from the reasons of Mr. Justice McGuigan in Pacific Press Ltd. v. Canada (Minister of Employment and Immigration)2:
| When we turn to s. 2(b) of the Charter, we find that the principle of public access to the courts was established even before the Charter itself came into being in 1982. In Attorney General of Nova Scotia v. MacIntyre [1982] 1 S.C.R. 175, ... where the issue was the access of a journalist to court records, a majority of the Supreme Court endorsed the statement by Dickson J. (at 189...) that "the presumption... is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right." Dickson J. (at 185-186...) also enunciated the principle that "curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance." |
| In the recent Charter decision, Edmonton Journal v. Alberta (Attorney General) [1989] 2 S.C.R. 1326..., which concerned provisions of the Alberta Judicature Act limiting the publication of details of matrimonial proceedings and civil proceedings generally, Cory J., for three of the seven members of the Court (at 1336) referred to the "absolute terms" of s. 2(b), which "should therefore only be restricted in the clearest of circumstances". He spoke of the role of the press in relation to the courts as follows (at 1337 and 1346...): |
| There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public. |
| ... |
| In today's society it is the press reports of trials that make the courts truly open to the public. |
| Wilson J., also in the majority, agreed (at 1362...) that "there would have to be very powerful considerations in order to justify inroads into the open court process." |
| [emphasis added] [some citations omitted] |
[11] To justify a derogation from the principle of open and accessible court proceedings, and I am satisfied that that principle extends to open and accessible court records, Rule 151(2) requires that the Court must be satisfied that the material sought to be protected from access should be treated as confidential. The extract from Pacific Press (supra), makes it clear that the onus on an applicant such as the respondent here to so satisfy the Court is a heavy one. I simply am not satisfied that the respondent has met that onus on the facts before me. Any undertaking of confidentiality given by the Minister is not binding on this Court. The respondent has provided no special reasons to justify protection of his personal information on the records of this Court. His reliance on the words on the form provided for his use, the desire to which he attests to keep his affairs private and the fact that his personal information is before this Court not by reason of his own initiative provide a basis for sympathy for the respondent's position. But those considerations do not discharge the onus on him to justify a confidentiality order.
[12] That being said, the respondent's application will be dismissed.
[13] I recommend for the Minister's consideration, the addition of words to the citizenship application forms in use in her Ministry that would identify the reality that the protection afforded to such forms and related materials does not extend to circumstances where the forms and related materials in the Ministry are required by law to be provided for use in Court proceedings.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 13, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2589-97
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| FATEHALI FAZALBHOY |
DATE OF HEARING: MONDAY, JANUARY 11, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, JANUARY 13, 1999
APPEARANCES: Mr. Kevin Lunney
For the Appellant
Barbara Jo Caruso and
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Appellant
Smith Lyons
| Barristers & Solicitors |
| Scotia Plaza |
| Suite 5800 |
| 40 King Street West |
| Toronto, Ontario |
| M5H 3Z5 |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19990113
Docket: T-2589-97
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Appellant
- and -
| FATEHALI FAZALBHOY |
Respondent
REASONS FOR ORDER
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