Date: 20050401
Docket: IMM-9277-04
Ottawa, Ontario, April 1, 2005
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
IKEMFUMA AYALOGU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally)
[1] This is a motion by the respondent, under subsection 87(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), requesting an order for non-disclosure of information.
[2] Mr. Ayalogu, a Nigerian citizen, arrived in Canada sometime in 1998 or 1999 when he was 15 years of age. He later made a refugee claim. The hearing of his claim was suspended pursuant to subsection 103(1) of IRPA when the matter was referred to the Immigration Division of the Immigration and Refugee Board (ID) to determine whether he was inadmissible under paragraph 37(1)(a) of IRPA on grounds of organized criminality. The Minister alleges that he is a member of a street gang known as Ledbury Banff Crips (LBC) in the south end of Ottawa.
[3] At the inadmissibility hearing, the Minister applied to the ID for non-disclosure of certain information. The application was allowed in part and the ID decided that it would consider, but not disclose to the applicant, certain relevant evidence. The ID provided (subsection 78(h) of IRPA) a summary of the non-disclosed information to the applicant who took the position that the summary did not enable him to be reasonably informed of the circumstances giving rise to the Minister's action. By decision dated October 29, 2004, the ID determined that Mr. Ayalogu was inadmissible pursuant to paragraph 37(1)(a) of IRPA and issued a deportation order. Mr. Ayalogu filed an application for leave to apply for judicial review of the decision.
[4] After his receipt of a negative pre-removal risk assessment (PRRA), Mr. Ayalogu was scheduled to be removed from Canada. By order of this Court, his removal was stayed pending determination of his leave application. Leave was granted on January 18, 2005, and the judicial review hearing is scheduled for this coming Monday. The Minister may, in a judicial review, apply to a judge for non-disclosure of the non-disclosed information that was considered by the ID in its inadmissibility determination. The Minister did so, as noted earlier, pursuant to subsection 87(1) of IRPA.
[5] The nature of a section 87 proceeding and the various statutory provisions relevant to it are described and referred to in detail in Sogi v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 427 (F.C.) aff'd., [2005] 1 F.C.R. 171 (C.A.); Gariev v. Canada (Minister of Citizenship and Immigration) 2004 FC 531 (F.C.); Andeel v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 1 (F.C.); Alemu v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 52 (F.C.) and need not be repeated here.
[6] The procedure, in this matter, accorded with that described in the noted authorities. Counsel for both the Minister and the applicant appeared and made submissions in relation to the Minister's request. Those submissions form part of the public record. The Minister also filed a confidential record containing the "secret" information that was not disclosed to the applicant and did not form part of the public record. That record is comprised of three affidavits and exhibits thereto. For each of the affidavits, one of the exhibits is the transcript of the affiant's evidence that the ID determined should not be disclosed. It should be mentioned that although none of the information in the confidential record was disclosed to the applicant prior to the return of the motion, the Minister did provide redacted versions of all three affidavits (without the exhibits) to the applicant's counsel after the hearing.
[7] Immediately following the "public" submissions, the Court recessed and began an in camera hearing in the presence of only counsel for the Minister and the court registrar. The affiants of the affidavits were excluded from the courtroom until such time as the affidavit of each was being examined. In other words, only one affiant was present in the courtroom at any given time and none of the affiants were present during counsel's submissions.
[8] Court was opened by the registry officer in the normal manner. Counsel made formal submissions, which were based solely on the confidential record. Each of the affiants was subsequently questioned by the Court.
[9] The Minister asserted that non-disclosure was justified on the basis that the affidavits and their exhibits contain information that was obtained in confidence from a source, or sources, in Canada and that the information obtained from the source(s), if disclosed, would be injurious to the safety of the person(s). For clarity, it should be stated that there was, appropriately, no suggestion that the information in question would jeopardize national security.
[10] In determining whether the information should be subject to a non-disclosure order, I noted that section 76 of IRPA defines "information" to include information that is obtained in confidence from a source in Canada. I also relied on Ahani v. Canada, [1995] 3 F.C. 669 (F.C.T.D.) aff'd. (1996), 201 N.R. 233 (F.C.A.), leave to appeal dismissed, [1996] S.C.C.A. No. 496, where at paragraph 19, the proposition - that human source information will be disclosed where it is necessary to enable [an applicant] to be reasonably informed unless the very nature of the information would reveal the identity of the source and endanger the source's safety - is stated. I examined the evidence in relation to its relevance and probative value and I considered - and counsel for the Minister, again appropriately, agreed - that information that already appeared as part of the public record, or that was in the public domain, should not be subject to a non-disclosure order. This exercise was required because the standard of review regarding the decision of the ID to not disclose information was determined by the Federal Court of Appeal in Sogi, supra, to be one of correctness.
[11] After hearing counsel, reviewing the affidavits with exhibits, and questioning each of the affiants, I concluded that some, but not all, of the relevant information should be subject to a non-disclosure order. The contents of paragraphs 14, 15 and 16 below comprise a list of the information that I have determined should not be disclosed because I am satisfied that it is relevant, it was obtained from a source in confidence, its disclosure would be injurious to the safety of that person and it is not in the public domain.
[12] Since I have concluded that some of the information could be disclosed, it now falls to the Minister to determine whether, in the course of the judicial review hearing, it will be disclosed or withdrawn.
[13] The information listed below is relevant, but should not be disclosed. Where page numbers are indicated, the reference is to the page number in the confidential record unless stated otherwise.
[14] Regarding the affidavit of Ann Lapointe sworn February 24, 2005:
- Exhibit "A" - line 1 of page 3 of the exhibit;
- Exhibit "B" - the last 5 words of line 17 and all of line 21 at page 37.
[15] Regarding the affidavit of Eric Beaurivage sworn March 2, 2005:
- Paragraph 7 of the affidavit following the word "incident" in line 2;
- Paragraphs 8, 9 and 10 of the affidavit;
- The last 6 words of line 5 at paragraph 11 of the affidavit;
- Exhibit "A" - line 7 at page 48 through to line 22 at page 55, line 11 at page 57, lines 3 to 13 at page 59, lines 1 to 19 at page 60.
[16] Regarding the affidavit of Michael Hyndman sworn March 7, 2005:
- Paragraph 8 of the affidavit following the word "event" in line 3;
- Paragraph 9 of the affidavit;
- Lines 1 to 5 of paragraph 11 of the affidavit;
- In paragraph 12 of the affidavit, the reference to the specific day in April, 2004, the name of the source at lines 2 and 3, and the reference to the item at line 5;
- In paragraph 13 of the affidavit, the reference to the name at line 6;
- Exhibit "A" at page 66, the first reference in its entirety;
- Exhibit "A" at page 67, the date in the third sentence of the second paragraph;
- Exhibit "A" at page 68, the reference to the specific day, all references to the name and age of the source and the reference to the item;
- Exhibit "B" - line 5 at page 127, lines 1 to 19 at page 128, line 16 at page 129 through to line 22 at page 130, line 15 at page 132, lines 7 to 9 and 14 to 17 at page 134, and the reference to the specific day in lines 8 and 9 at page 135;
- Exhibit "B" at page 136, the reference to the specific day in line 6, the reference to the item in line 7, the reference to the name in line 15, the reference to age in line 18 and the reference to the name in line 25;
- Exhibit "B" at page 137, all of line 8, the reference to the name in line 14, and the reference to the item in lines 19 and 20;
- Exhibit "B" at page 138, the reference to the item in line 6;
- Exhibit "B" at page 139, all of line 4, and the reference to the name in line 8;
- Exhibit "C" at page 1 of the exhibit, the reference to the event in its entirety; - Exhibit "C" at page 2 of the exhibit, the first sentence of the first entry and the first sentence of line 10 of the same entry as well as, with respect to the second entry, all references to the specific day, the name and age of the source, and the item.
ORDER
THIS COURT ORDERS THAT the motion is allowed in part in accordance with paragraphs 14, 15 and 16 of these reasons.
"Carolyn A. Layden-Stevenson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9277-04
STYLE OF CAUSE: IKEMEFUMA AYALOGU v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 31, 2005
REASONS FOR ORDER BY: Madam Justice Layden-Stevenson
APPEARANCES:
Chantal Tie FOR APPLICANT
Sonia Barrette FOR RESPONDENT
SOLICITORS OF RECORD:
South Ottawa Community FOR APPLICANT
Legal Services
Ottawa, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada