Date: 19990506
Docket: A-200-97
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
HIEN DO-KY
VIETNAMESE REFUGEE SPONSORSHIP COMMITTEE
Appellants
(Applicants),
- and -
THE MINISTERS OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE
Respondent
(Respondent),
REASONS FOR JUDGMENT
SEXTON J.A.
[1] This is an appeal of the February 6, 1997 decision of Mr. Justice Nadon in which he denied the appellant's application for judicial review of a decision of the Minister of Foreign Affairs and International Trade, which denied the applicant's request for disclosure of four diplomatic notes exchanged between Canada and another foreign state ("Country D"). A large portion of the material in this appeal, including the diplomatic notes were filed on a confidential basis, and the appeal proceeded in conformity with section 47(1) of the Access to Information Act1 which provides:
| 47(1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of |
| (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; . . . |
FACTS
[2] The issue in the case involves whether or not the four diplomatic notes should be disclosed under the Access to Information Act. Three of the diplomatic notes were sent from Canada to Country D and one diplomatic note was sent from Country D to Canada. The notes constitute a dialogue relating to one specific subject and consequently, were dealt with as a package by the trial judge, who found:
| ". . . as the notes do in fact form a conversation between governments, it would serve little purpose to maintain the confidentiality of one half of the conversation when that half could be inferred from a reading of the other half."2 |
[3] After some dialogue had taken place between the applicant and the Foreign Affairs Coordinator, Access to Information and Privacy, the Coordinator took the position that with one small exception, the notes could be released provided that Country D had no objection to the release of the notes. When the request was made of Country D, the government of that country notified the Government of Canada that it objected to the release of the notes because the issues discussed in the notes continued to be sensitive topics in that state. The Coordinator took the position that the Canadian government could not release these notes in the face of a direct request to keep the notes confidential. As a result the Department of Foreign Affairs took the position that all of the notes were exempt from release under section 15(1) of the Act. The Information Commissioner (under the Act) agreed with the Department of Foreign Affairs. The Information Commissioner upheld the non-disclosure of all of the documents on the basis of section 15(1) of the Act because the release "could reasonably be expected to be injurious to the conduct of international affairs" in that "in the absence of consent from Country D Canada would risk breaching diplomatic conventions by disclosing such notes. . .such a breach could adversely affect Canada's diplomatic exchanges. . .with other countries as well".
[4] The relevant sections of the Act are as follows:
| 13(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from |
| (a) the government of a foreign state. . . |
| 13 (2) The head of a government institution may disclose any record requested under this Act that contains information described in subsection (1) if the government, organization or institution from which the information was obtained |
| (a) consents to the disclosure; or |
| (b) makes the information public |
| 15(1) ... |
| (h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad... |
[5] Although it would have been open to the motions judge to exempt from disclosure the diplomatic note emanating from Country D based upon section 13 of the Act, he chose instead to deal with the notes as a package and found that all of the notes were exempt from disclosure under section 15. It was accepted before us that the note from Country C was exempted from disclosure under section 13.
[6] The motions judge examined the notes as well as the confidential record and concluded as follows at page 17 of his reasons:
| In consideration of the fact that the nature of these notes must be taken into account in assessing the probability of harm which would result from their disclosure, and given the affidavit evidence adduced by the Respondent, I have no difficulty in finding that the government had and continues to have a reasonable apprehension of harm if they were to disclose these notes in this case. |
[7] We have also examined the notes and the confidential record and are satisfied that there was sufficient evidence upon which the motions judge could reasonably conclude that the diplomatic notes contain specific information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs. It is therefore unnecessary for us to consider the other more general issues addressed by the motions judge relating to whether diplomatic notes must be disclosed.
[8] We should stress however that there is no "class exemption" for diplomatic notes. Under section 15(1) there is no presumption that such notes contain information the disclosure of which could reasonably be expected to be injurious to the conduct of international relations. There must be evidence of this. Certainly where the documents contain information which, for example, might cast doubt on the commitment of another country to honour its international obligations and that other country objects to the disclosure, the case for exemption will have been made out.
SEVERABILITY
[9] The respondent takes the position that the diplomatic notes in issue cannot be dealt with individually as they together constitute a single dialogue. When the Department of Foreign Affairs approached Country D with the request as to whether or not the notes could be disclosed they were dealt with as a package and Country D responded on this basis.
[10] Our review of the notes confirms that they contain a dialogue relating to a specific subject matter. There is authority for the proposition that in these circumstances there should not be any severance. In Canada Packers Inc. v. The Minister of Agriculture and The Information Commissioner of Canada:
| I take it from the introductory words of subsection 20(1), viz., that "the head of a government institution shall refuse to disclose any record requested under this Act . . .", that a decision must be taken with respect to each distinct audit report. Nevertheless, since the judgment that is required involves the measurement of reasonable expectations, in my opinion it is necessary to view each report in the context of other reports requested for release with it, as the total contents of a release are bound to have considerable bearing on the reasonable consequences of its disclosure.3 |
[11] We therefore are of the view that it was proper to treat these four diplomatic notes as one dialogue and to deal with them as one package.
[12] In the circumstances therefore this appeal will be dismissed without costs.
J. Edgar Sexton
J.A.
Winnipeg, Manitoba
May 6, 1999
Date: 19990506
Docket: A-200-97
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
HIEN DO-KY
VIETNAMESE REFUGEE SPONSORSHIP COMMITTEE
Appellants
(Applicants),
- and -
THE MINISTERS OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE
Respondent
(Respondent),
Heard at Winnipeg, Manitoba on May 3, 1999.
Judgment rendered at Winnipeg, Manitoba on May 6, 1999
REASONS FOR JUDGMENT BY: SEXTON J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-200-97
APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DATED FEBRUARY 6, 1997, TRIAL DIVISION FILE NO. T-2366-95.
| STYLE OF CAUSE: HIEN DO-KY VIETNAMESE REFUGEE SPONSORSHIP COMMITTEE v. THE MINISTERS OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 3, 1999
REASONS FOR JUDGMENT STRAYER J.A.
OF THE COURT: ROBERTSON J.A.
SEXTON J.A.
DELIVERED BY: SEXTON JA.
DATED: May 6, 1999
APPEARANCES
David Matas for the Appellants
Brian Saunders
Department of Justice
Ottawa, Ontario for the Respondent
SOLICITORS OF RECORD
David Matas
Barrister and Solicitor
602 - 225 Vaughan Street
Winnipeg, Manitoba
R3C 1T7 for the Appellants
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
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