Date: 20031211
Docket: IMM-4678-02
Citation: 2003 FC 1452
Ottawa, Ontario, this 11th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
A.C. and B.D.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] As an ancillary matter to their judicial review application, the Applicants have brought a motion dated August 6, 2003, for an order pursuant to ss 151 and 152 of the Federal Court Rules, 1998, sealing the record in this case.
[2] The motion was brought on the eve of the hearing of the underlying judicial review application which took place on August 7, 2003, in Toronto.
[3] In the interests of time and economy, both parties agreed that I should consider the motion on the basis of the written materials filed and dispose of it prior to issuing an order on the judicial review application.
[4] A similar motion was brought in writing by the Applicants dated November 19, 2002, and was disposed of by Prothonotary Lafrenière in an order dated December 10, 2002.
[5] Prothonotary Lafrenière dismissed the motion "without prejudice to the Applicants' right to renew its (sic) request before the hearings judge, if so advised."
[6] The reasons why Prothonotary Lafrenière dismissed the November 19, 2002, written motion are set out in his order, which reads as follows:
After their Convention Refugee claims were rejected by the Refugee Division, the Applicants brought an application for leave and for judicial review on October 2, 2002. Their application record was filed with the Court and served on the Respondent on November 1, 2002. The Applicants now seek an order to amend the style of cause to reflect the Applicants' names only by their initials and to have their record, which is already filed with the Court, sealed and treated confidentially. The grounds for the motion is that the Applicants, as well as witnesses who testified at their refugee hearing, face a risk of harm if returned to [country of origin] or have relatives in that country who could face harm if it were known that they had provided testimony in support of the male Applicant. The motion is opposed by the Respondent on the grounds that the Applicants have failed to identify any salutary effects of a confidentiality order, such as to override the public interest in open Courts.
It is not disputed that a number of witnesses testified before the Refugee Division upon receiving assurances that their evidence would be treated confidentially. Although the concerns of these witnesses of potential reprisal cannot be minimized, it was incumbent on the Applicants to establish that the disclosure of the information they seek to shield from the public would impose a serious, real and substantial risk. On the evidence before me on this motion, including the Applicants' Record, I am unable to conclude that such a risk exists or that a confidentiality order is otherwise justified.
To begin with, the information in question is already in the public domain. Any attempt to retroactively correct the error of counsel in advertently disclosing the allegedly confidential information is fraught with difficulties. Moreover, the scope of the order requested by the Applicants is simply too broad; it encompasses all the documents, evidence tribunal record and identities of the witnesses and the Applicants. No attempt was made to identify specific information which, in the Applicants' assessment, would cause serious risk of harm. It is not for the Court to sift through the evidence and attempt to identify information that could be viewed as detrimental to the Applicants and their witnesses.
In the circumstances, the public interest must prevail over the speculative risk of harm raised by the Applicants. The motion is dismissed, without prejudice to the Applicants' right to renew its request before the hearings judge, if so advised.
[7] In the present motion, the Applicants have attempted to remedy some of the deficiencies and difficulties referred to by Prothonotary Lafrenière. In effect, they have provided the Court with more specific details of those parts of the record that, if revealed, would pose a serious risk of harm. However, significant difficulties remain.
[8] To begin with, the information in question has now been in the public domain since November 1, 2002. Rule 151, on its face, applies to "material to be filed" and rule 152 requires "a party who files the material [to] separate and clearly mark it as confidential, identifying the legislative provision or the Court order under which it is required to be treated as confidential." Hence, the rules relied upon by the Applicants clearly anticipate that the material in question will not be filed before an order for confidentiality has been obtained. In addition, of course, it is difficult to see how information that has been a matter of public record for approximately a year is confidential by any objective standard.
[9] By way of explanation, the Applicants merely acknowledge that the failure to seek the order at any earlier time occurred through inadvertence and that, even if the court file is public, in all likelihood, no one will have looked at it to date.
[10] The Respondent takes strenuous objection to the motion on the grounds that the public interest is engaged in this matter and the Applicants have not shown the serious, real and substantial risk required to justify a derogation from the fundamental principle of open and accessible court proceedings. The Respondent's argument is summarized as follows in the written memorandum filed with the Court:
In the final analysis, then, the issuing of a confidentiality order by this Court would have no salutary effects on the one hand and substantial deleterious effects on the other. In view of this and the fact that the Applicants have divulged both their names and record to the public, and that there is no "real and substantial risk", this Court should not issue such an order according to the Supreme Court's holding in Sierra Club.
[11] The grounds for the motion remain the same as in the motion of November 19, 2002, dealt with by Prothonotary Lafrenière: the Applicants, as well as witnesses who testified at their refugee hearing, face a risk of harm if returned to their country of origin, as do their relatives in that country. The harm alleged is in the form of reprisals for their having testified on behalf of the Applicants at the refugee hearing.
[12] In the immigration context, it seems to me that there is some merit in considering a motion of this nature. Witnesses who testify before the Refugee Division after receiving assurances that their evidence will be treated in confidence should not be exposed to serious and substantial risk of harm if the matter proceeds to the judicial review stage.
[13] When warranted in immigration cases, this court has been open to granting confidentiality orders. For instance, in Ishmela v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1085, Prothonotary Hargrave noted:
3. There are subjective and objective aspects to be considered and satisfied in obtaining a confidentiality order: see for example AB Hassle v. Canada (Minister of National Health and Welfare) (1998), 83 C.P.R. (3d) 428 at 432 and following. In this instance I accept the affidavit of the Applicant, Omran Ishmela, as establishing at least the subjective aspect of the requirement. There being no opposition to the Order, but because the interest of the public must be considered, I have examined the record which the Applicant wishes to file as confidential. On the balance of probabilities that part of the record, which is not already in the public domain, should in fact be confidential. It serves no purpose to try to sort out what material is already in the public domain. Rather the whole record is, subject to what the Supreme Court of Canada had to say in Sierra Club of Canada v. Canada (Minister of Finance) (2002), 211 D.L.R. (4th) 193, an appropriate document, because of its nature, to consider for a confidentiality order.
4. In Sierra Club (supra) at issue were a very small amount of highly technical documents. Here I recognize that the Sierra Club case involved a claim for confidentiality over commercial material, however the same principles apply in the present instance where disclosure of some of the material would put the Applicant and his family members, who are in Libya, at risk.
5. At page 211 of Sierra Club Mr. Justice Iacobucci set out a two-part test for a confidentiality order:
A confidentiality order under Rule 151 should only be granted when:
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and,
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
I note the subsequent emphasis by Mr. Justice Iacobucci at pages 211 and 212, that the first part of the test contains various elements, including a real and substantial risk that is well-grounded in the evidence, a balancing of the interests at stake in the context of the fundamentally important open-court rule and a consideration of whether alternative measures are available.
6. The second branch of the test is open-ended, for the Supreme Court points out that it includes "effects on the right of civil litigants to a fair trial" and here I would add the effect that the confidentiality order, or rather a lack of confidentiality order, might have on the Applicant, should he be returned to Libya and upon the Applicant's family members who remain in Libya. The second part of the test also requires me to consider any negative effect on the open-court principle.
7. I am satisfied that a confidentiality order is necessary to prevent serious risks to both the Applicant and his family who are in Libya. I do not see any reasonably alternative measures which might prevent the risk. As I already indicated the salutary effect of the confidentiality order will be that there will be less risk of reprisal if a confidentiality order is in place. As to any deleterious effect, here I must balance the public interest in open and accessible court proceedings.
8. Not to belittle the Applicant's case, it does not appear either to be one of general public interest, or to be a situation in which the public would be denied any fundamental right by being unable to access the contents of at least some of the material which the parties may file. Here I also note that an important effect of the confidentiality order may be the lack of open examination of witnesses. However, this process is that of judicial review, not a process in which a witness or witnesses will be examined in open court. Certainly a member of the public, were he or she interested, would be denied access to documents, but I do not see the documents as being of any wide public interest. To grant a confidentiality order, in this instance, would not seriously undermine freedom of speech, in the sense of development of thoughts and ideas or hamper participation by way of a minimal documentary denial of open justice.
[14] Also, in the particular circumstances in A.B. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1528 (F.T.D.) MacKay J. granted a confidentiality order and allowed an amendment to the style of cause to A.B.:
The confidentiality order sought
38. As indicated early in these reasons, a motion on behalf of the applicant in all three files sought an order that the Court's files in this matter be sealed as confidential, with access only by order of the Court, and that the name of the applicant in the style of cause be varied to "A.B.". The purpose of the motion was to avoid publication of the name of the applicant or of the existence of the Court files, out of an abundance of caution because of the applicant's fear that the fact of his seeking judicial intervention and the basis on which that is sought would be used against him in any proceedings that might be pursued in his absence, or upon his being returned to his home country. Immigration Regulations, SOR/78-172 provide for certain hearings under the Immigration Act to be conducted in confidence. In my view, the same general considerations, for the protection of individuals from any notoriety or adverse implications perceived to arise from such proceedings, support the Court, at this stage, ordering that its files in regard to the action or judicial review proceedings of the applicant be held in confidence. An Order issued at conclusion of the hearing that the Court's files be so held, pending the outcome of the inquiry concerning the applicant. Thereafter, the confidentiality order should be reviewed, on the initiative of counsel, and in light of the Court's general policy that its files are open and public.
[15] Noteworthy in this case is that MacKay J. allowed for subsequent review of the confidentiality imposed in order to protect the Court's general policy on open and public files and hearings.
[16] In Canada (Minister of Citizenship and Immigration) v. Fazalbhoy, [1999] F.C.J. No. 51
(F.T.D.), however, Gibson J. rejected the respondent's motion seeking a confidentiality order:
... 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.
...
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) (1991), 127 N.R. 325 at 335 (F.C.A.):
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."
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.
[17] As the cases cited make clear, the principles and competing interests to be weighed in an application of this nature are well recognized.
[18] On the facts of the present case, even if the Applicant could establish a serious risk of harm (and this is by no means clear given the arguments raised by the Respondent concerning the regime presently in power in the country of origin), the Application is still fraught with difficulties because it remains at bottom an "attempt to retroactively correct the error of counsel," as Prothonotary Lafrenière pointed out in his Order. The information in question has been a matter of public record for some time and so cannot be regarded as confidential, and there are significant practical difficulties in complying with Rule 152 now that all of the material has been filed and placed in the public domain. In addition, the harm envisaged by the Applicants and their various witnesses is not clearly established and remains somewhat speculative. One of the witnesses, for instance, who provided expert testimony on the situation in the country of origin, merely says that he has on-going contacts with individuals in that country and he is concerned about his own position because of this. Other witnesses speak of a general fear that, if it were known that they gave evidence to support the Applicants, they and their families would be at risk. They point out that they did not give evidence for the Applicants in the court proceedings in the country of origin for fear that, had they done so, the government might have killed them and members of their family. But changes of government have occurred and it is not clear what risks the Applicants and their witnesses are exposed to. There is no clear evidence before me that the risk is "real and substantial" or is "well-grounded in the evidence" and poses a "serious threat" to the Applicants and their witnesses other than the bare statements assertions of the Applicants and their witnesses.
[19] I am sure that the concerns of the Applicants and their witnesses are genuinely felt in this regard, but on the present application I am not satisfied that the Applicants have satisfied the heavy onus that would justify a departure from the principle of an open and accessible court. On the other hand, I see no reason why the Applicants and their witnesses who came forward at the refugee hearing on the basis of confidentiality should now be exposed to any kind of risk if the open court principle can be preserved and I think that what is required in the circumstances is an appropriate balance between the need for an open and accessible court and the need to avoid excessive promotion of this case in the country of origin.
ORDER
THE COURT HEREBY ORDERS THAT:
The Court's record of this proceeding as it is maintained on the Court's website shall, until otherwise ordered by a judge of the Court, be amended:
1. to show the style of cause as it is set out at the commencement of this Order; and
2. by henceforth deleting from the text of any order or reasons the names of the Applicants and replacing those names with the initials A.C. and B.D. respectively; and
3. by henceforth deleting the names of the Applicants' witnesses and other identifying features from the text of any order or reasons and replacing them with such alternatives as the judge or prothonotary concerned deems appropriate in the circumstances.
"James Russell"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-358-03
STYLE OF CAUSE: A.C. and B.D.
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY AUGUST 7, 2003
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
APPEARANCES BY: Ms. Barbara Jackman
For the Applicants
Mr. Jerimiah Eastman
For the Respondent
SOLICITORS OF RECORD: Ms. Barbara Jackman
596 St. Clair Ave W
Toronto, Ontario, Suite 3
M6C 1A6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031211
Docket: IMM-4678-02
BETWEEN:
A.C. and B.D.
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER