[ENGLISH TRANSLATION]
Ottawa, Ontario, this 27th day of November 2008
PRESENT: The Honourable Mr. Justice Orville Frenette
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF TRANSPORT,
INFRASTRUCTURE
AND COMMUNITIES,
TRANSPORT CANADA
[1] This proceeding was filed as part of an application for judicial review of a decision issued on June 4, 2008 by the Minister of Transport, Infrastructure and Communities, adding the applicant’s name to the at-risk persons list, under the Passenger Protect Program.
[2] The applicant also filed a notice raising issues regarding the unconstitutionality of the Aeronautics Act in relation to the aforementioned ministerial decision. In that context, the applicant filed a motion to require the respondents to disclose all of the required information, which they have refused to disclose, citing section 38 of the Canada Evidence Act, R.S.C. (1985), c. C-5 (the Act).
[3] The applicant, who is originally from Palestine, became a permanent resident in Canada on January 22, 2004.
[4] On June 4, 2008, he went to the Pierre Elliott Trudeau Airport in Montréal for a flight to Saudi Arabia, when was refused access to the aircraft because he had been placed by the respondent Minister on an at-risk persons list for airline security.
[5] Through his counsel, he submitted a request for reconsideration of that decision, which was dismissed.
[6] On June 19, 2008, he filed an application for judicial review of the Minister’s decision.
[7] From the perspective of this proceeding, he is renewing his request to obtain all information regarding the ministerial decision, citing section 317 of the Federal Court Rules, SOR/98-106.
[8] The respondents voluntarily provided counsel for the applicant with certain documents, but refused to provide others, citing confidentiality under subsection 38.01(1) of the Act.
[9] On July 17, 2008, the Honourable Chief Justice Lutfy issued an order under rules 8, 55 and 383 of the Federal Court Rules assigning administrative management of this case to Prothonotary Richard Morneau, [translation] “assigned as judge responsible for the management of this proceeding.”
[10] On September 17, 2008, de Montigny J. issued a decision dismissing the motion to obtain a confidentiality and non-disclosure order and a publication ban.
[11] In this motion, the applicant is asking that the respondents be ordered to produce and disclose to the applicant the entire file from the federal office regarding the applicant, subject to his other actions.
[12] The respondents oppose the motion as presented on three main grounds: (a) the provisions of the Act create a particular and precise system for the disclosure of potentially prejudicial information; (b) a special procedure is set out in the Act for determining those elements, and that procedure has precedence over the one set out in rules 317 and 318 of the Federal Court Rules; and (c), paragraph 38.02(1)(a) of the Act prohibits disclosure, in connection with a proceeding, of information about which notice is given under any of subsections 38.01(1) to (4).
[13] Before analyzing the issues raised in this proceeding, I feel that it is useful to cite the relevant paragraphs of section 38 of the Act and to briefly note the particular nature of this section, its procedure and its purpose.
[14] Lutfy C.J. analyzed the purpose, provisions and procedure under section 38 of the Act regarding the disclosure of information related to national security in Toronto Star Newspapers Ltd. and Kassim Mohamed v. Canada (Her Majesty the Queen in Right of Canada), [2007] 4 F.C.R. 434.
[15] In that case, the applicant Mohamed had initiated an action for damages and other remedies against the respondent on the grounds that the Royal Canadian Mounted Police and the Canadian Security Intelligence Service had disclosed personal information to foreign security agencies and that, following that disclosure, Egyptian authorities had detained him for two weeks.
[16] The Attorney General of Canada served a notice under section 38 of the Act objecting to the disclosure of “secret information” in a separate proceeding, DES‑1‑06. Lutfy C.J. summarized the provisions applicable to such a proceeding in paragraphs 29 to 38 of his decision, above.
[17] The debate was basically whether section 38 of the Act infringed on paragraph 2(b) of the Canadian Charter of Rights and Freedoms. He found that, in response to the constitutional issues raised, subsections 38.04(4), 38.11(1) and 38.12(2) of the Act infringed on paragraph 2(b) of the Charter and that those infringements were not justified within the meaning of The Queen v. Oakes, [1986] 1 S.C.R. 103.
[18] Lutfy C.J. held that the passages “an application under this section is confidential” in subsection 38.04(4) , “shall be heard in private” in section 38.11, and “the Court records relating to the hearing, appeal or review are confidential” in subsection 38.12(2) only applied to the ex parte representations provided for in subsections 38.11(1) and (2) of the Act.
[19] Here, the applicant is seeking to obtain his “complete” file from the federal office to find out the grounds that justified him being added to the at-risk persons list, which led to the denied boarding on an aircraft on June 4, 2008.
[20] The respondent produced certain information in part from its file, but refused to provide everything for security reasons. It cited the notice issued under subsection 38.01(1) of the Act and argued that this proceeding should be suspended and a separate proceeding begun to rule on the disclosure of the desired information.
[21] The applicant cited the judicial interpretation of section 38 of the Act and rules 317 and 318 of the Federal Court Rules, which read as follows:
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(2) An applicant may include a request under subsection (1) in its notice of application.
(3) If an applicant does not include a request under subsection (1) in its notice of application, the applicant shall serve the request on the other parties.
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317. (1) Toute partie peut demander la transmission des documents ou des éléments matériels pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande, en signifiant à l’office une requête à cet effet puis en la déposant. La requête précise les documents ou les éléments matériels demandés.
(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.
(3) Si le demandeur n’inclut pas sa demande de transmission de documents dans son avis de demande, il est tenu de signifier cette demande aux autres parties. |
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318. (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit (a)a certified copy of the requested material to the Registry and to the party making the request; or (b)where the material cannot be reproduced, the original material to the Registry.
(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).
(4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.
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318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l’office fédéral transmet : a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause; b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
(2) Si l’office fédéral ou une partie s’opposent à la demande de transmission, ils informent par écrit toutes les parties et l’administrateur des motifs de leur opposition.
(3) La Cour peut donner aux parties et à l’office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d’une opposition à la demande de transmission.
(4) La Cour peut, après avoir entendu les observations sur l’opposition, ordonner qu’une copie certifiée conforme ou l’original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.
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[22] The respondent is correct in this regard, as the Henrie v. Canada (Security Intelligence Review Committee et al.), [1989] 2 F.C. 229, affirmed on appeal ([1992] F.C.J. No. 100 (QL)), held that it would be inappropriate to use rules 317 and 318 to circumvent the provisions of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21, regarding the protection of international relations and national defence and security.
[23] The Aeronautics Act, R.S.C. (1985), c. A-2, at paragraph 4.71(2)c) states:
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4.71 (2) Without limiting the generality of subsection (1), regulations may be made under that subsection [. . .] (c) respecting the screening of persons entering or inside an aircraft or an aerodrome of other aviation facility;
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4.71 (2) Les règlements visés au paragraphe (1) peuvent notamment : [. . .] c) régir le contrôle des personnes qui pénètrent ou se trouvent dans un aéronef, un aérodrome ou d’autres installations aéronautiques;
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[24] Section 3 of the Identity Screening Regulations, SOR/2007-82, states :
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3. (1) An air carrier shall, before issuing a boarding pass to any person who appears to be 12 years of age or older, screen the person by comparing his or her name with the names of persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.
(2) If the name of the person is the same as that of a person specified to the air carrier, the air carrier shall ask the person for one piece of government-issued photo identification that shows his or her name, date of birth and gender or for two pieces of government-issued identification at least one of which shows his or her name, date of birth and gender.
(3) If the name, date of birth and gender on the identification are the same as those of a person specified to the air carrier, the air carrier shall immediately so inform the Minister.
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3. (1) Le transporteur aérien effectue le contrôle de toute personne qui semble être âgée de 12 ans ou plus en comparant son nom avec ceux des personnes qui lui sont précisées par le ministre en application de l’alinéa 4.81(1)b) de la Loi avant de lui remettre une carte d’embarquement.
(2) Si le nom de la personne correspond à celui d’une personne qui lui est précisée, le transporteur aérien demande à celle-ci une pièce d’identité avec photo délivrée par un gouvernement qui comporte ses nom, date de naissance et sexe ou deux pièces d’identité délivrées par un gouvernement dont au moins une comporte ses nom, date de naissance et sexe.
(3) Si les nom, date de naissance et sexe qui figurent sur la pièce d’identité correspondent à ceux d’une personne qui lui est précisée, le transporteur aérien en informe immédiatement le ministre.
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[25] Citing jurisprudence, the applicant argues that he is entitled to obtain the desired information (Baker v. Canada, [1999] 2 S.C.R. 817; Canada (Attorney General) v. Ribic, [2005] 1 F.C.R. 33, at paras 17 to 22; Khadr v. Minister of Foreign Affairs, 2005 FC 135, at para 17; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 and Charkaoui v. Minister of Citizenship and Immigration, 2008 SCC 38, 376 N.R. 154, at para 56).
[26] The applicant argues that the respondent’s claim that there must be a separate case to decide the issues raised by the confidentiality of the desired information can be dealt with in this case, by way of this motion, in obiter in the case without having a completely separate or new case.
[27] The respondent submits that the Court does not have the jurisdiction to decide this motion and that it must proceed by way of the notice set out in section 38.04(1) of the Act.
[28] The applicant replied that the respondent did not respond to the request or send the notice and that the motion is sufficient to open the debate. He argues that all these issues are decided by a judge of the Federal Court and that the Court has sufficient jurisdiction to decide the subject of the motion. In his view, the fact that the proceeding in Toronto Star Newspapers Ltd., above, was initiated by the Attorney General of Canada does not mean that it is mandatory, that it can only be initiated by the Attorney General, and that a party to the litigation cannot do so of his or her own initiative.
[29] Section 38 of the Act creates a special system and a procedure for determining the disclosure of confidential information, by means of notices that trigger the proceeding before the Federal Court.
[30] The applicant argues that his motion is well-founded in law in terms of the procedural vehicle supported in Mohammed v. Minister of Citizenship and Immigration. That case was related to a motion for disclosure of evidence opposed on the grounds of national security, in an application for judicial review of an immigration officer’s refusal of an application for permanent residency in Canada under the Immigration and Refugee Protection act, S.C. 2001, c. 27. The respondent opposed that motion in a written objection on the grounds of national security. On October 11, 2006 (IMM-7498-05), Lutfy C.J. ordered: (a) that an ex parte hearing be held in private, and (b) that a public hearing of the respondent’s motion be held in the presence of counsel for the parties.
[31] Von Finckenstein J. allowed the motion and ordered a “hearing” for the motion in two stages: a public hearing and an “ex-parte” hearing (Mohammed v. Canada (Minister of Citizenship and Immigration, [2007] 4 F.C.R. 300). To justify his decision, he explained that the issue was to determine which proceeding would apply, the one set out in section 38 of the Act or the one set out in sections 86 and 87 of the Immigration and Refugee Protection Act. He stated the following at paragraph 23 of his decision:
[23] The parties also agree that the procedure in section 38 of the CEA is unduly complicated, would require a separate application and would involve another party, the Attorney General of Canada. I agree and, in the spirit of dealing with applications for judicial review expeditiously, I discard the CEA option.
[32] That view gave rise to another judicial theory that, in such situations, requires the procedural recourse set out in section 38 of the Act (see Henrie, above).
[33] In Henrie, Addy J. of the Federal Court was the judge assigned to decide the objection to disclosure of confidential evidence on the grounds of national security, as certified by the Minister. He dismissed the application under Rule 1402 of the Federal Court Rules, C.R.C., c. 663, on the grounds that, inter alia, the issue had to be decided by the procedure set out in subsection 36.2(3) of the Act, as it existed at that time.
[34] In Toronto Star Newspapers Ltd., above, Lutfy C.J. was not required to determine the procedural issue, as he proceeded following a notice of non-disclosure by the Attorney General of Canada under section 38 of the Act. At paragraph 29, the learned Chief Justice wrote:
[29] A section 38 application is to be heard by the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. This provision has existed since 1982 [s. 36.2].
[35] Lutfy C.J. proceeded with the hearing of the case under sections 38 et seq. of the Act to decide the Charter issue.
[36] In Canada (Attorney General) v. Ribic, above, the Federal Court of Appeal did not directly examine the procedural aspect raised, so it did not raise any doubt in that regard.
[37] In light of the text and purpose of section 38 of the Act and the reasoning of the second judicial theory interpreting that text, I must agree with that interpretation. The motion, as presented is therefor not well-founded.
[38] For all these reasons, the Court orders that the applicant’s motion, as worded, be dismissed and orders the suspension of the proceeding to allow a separate proceeding to be presented and disposed of to determine the disclosure of the evidence by the Chief Justice of the Federal Court or a judge appointed by the Chief Justice under section 38 of the Act to hear the case.
ORDER
The applicant’s motion is dismissed. The Court orders the suspension of the proceeding to allow a separate proceeding to be presented and disposed of to determine the disclosure of the evidence by the Chief Justice of the Federal Court or a judge who may be appointed by the Chief Justice under section 38 of the Canada Evidence Act, R.S.C. (1985), c. C-5, to hear the case.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-973-08
STYLE OF CAUSE: HANI AL TELBANI v. THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES, TRANSPORT CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 3, 2008
AND ORDER: The Honourable Mr. Justice Orville Frenette
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Linda Mercier
Bernard Letarte FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon and Associates FOR THE APPLICANT
Montréal, Quebec
John H. Sims, QC FOR THE RESPONDENT
Deputy Attorney General of Canada