Ottawa, Ontario, March 16, 2006
BETWEEN:
and
ATTORNEY GENERAL OF CANADA, MINISTER OF CITIZENSHIP AND IMMIGRATION and SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is a "very exceptional" application under section 38 of the Canada Evidence Act, which, in my view, "is so clearly improper as to be bereft of any possibility of success": David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1994] F.C.J. No. 1629 (QL)(C.A.) at paragraph 15. These are my reasons for granting the respondents' motion for an order striking the applicant's proceeding.
BACKGROUND
[2] The applicant is a citizen of Honduras and a Convention refugee who became a permanent resident of Canada in July 1986.
[3] In February 2003, an immigration officer prepared a report, pursuant to subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) that the applicant was inadmissible on grounds of violating human or international rights for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24, as set out in paragraph 35(1)(a) of the IRPA.
[4] The relevant facts in support of the immigration officer's opinion, as described in his report, were that the applicant, by his own admission, voluntarily joined and was a member of the Directorate of Special National Investigations of Honduras between 1980 and 1984. During this period, the report alleged, the applicant participated in acts of kidnapping and torture committed against the civilian population of Honduras.
[5] The immigration officer's report was transmitted to the Minister's delegate who in turn formed the opinion that the report was well-founded. The report was then referred to the Immigration Division, under subsection 44(2) of the IRPA, for an admissibility hearing to determine whether the applicant was inadmissible pursuant to paragraph 35(1)(a).
[6] On January 26, 2005, the applicant sought an adjournment of the Immigration Division hearing pending the government's decision on the release of material the applicant thought was relevant to the subject matter of the proceeding.
[7] On May 26, 2005, as a participant in the proceeding before the Immigration Division, the applicant notified the Attorney General of Canada ("Attorney General") that he expected to disclose information which he believed to be "sensitive information" or "potentially injurious information" ("secret information") within the meaning of section 38 of the Canada Evidence Act, R.S.C. 1985, c C-5, as amended.
[8] In his notice of May 26, 2005, the applicant indicated that he would want to establish, among other issues, that the Canadian government was aware, prior to his having been granted permanent residence, that he had committed crimes against humanity. He indicated that he would be disclosing the following information:
1. Mr. Valle Lopes will provide details of the manner in which he was trained to commit crimes against humanity;
2. He will provide details, including names, of the relationship between the Honduran Army and the members of the United States Armed Forces and members of other United States governmental agencies who at the request of the government of Honduras and with the consent of the United States government trained him in methods and techniques to use in committing crimes against humanity;
3. He will provide details, particularly including the names and photographs of individual members of the CIA who personally trained him in methods and techniques to use in committing crimes against humanity;
4. He will provide details of the documents, created and provided to him by representatives of the Untied Sates government, to assist in his training to commit crimes against humanity, such as the CIA Torture Manual of that date;
5. He will provide details, including identity, of not less than one current senior member of the administration of the current United States president Bush who actively, knowingly and enthusiastically participated and facilitated Mr. Valle Lopes education in how to commit crimes against humanity in a manner consistent with the standards and practices expected of those trained to commit such crimes on behalf of the united States of America;
6. He will provide details of how he arranged through the United Nations High Commission for Refugees to flee Honduras and gain asylum in the Canadian embassy in Mexico City, in order to provide testimony of the existence and nature of crimes against humanity that were being organized and conducted by and on behalf of the government of Honduras, with the assistance of the government of the United States;
7. He will provide evidence that the Canadian government was aware that he had committed crimes against humanity prior to being given permission to enter the Canadian embassy in Mexico City;
8. He will give evidence of his continuous stay within the Canadian embassy while he was debriefed regarding his training for, and commission of crimes against humanity;
9. He will give evidence of the names and identity of the individuals acting on behalf of the Canadian government who debriefed him, or with whom he had conversations regarding these matters;
10. He will give evidence of the documents he generated himself while being debriefed over a period of days, the documents prepared by these individuals for his review and for his confirmation of their contents, and of the contents of conversations between himself and these individuals regarding these matters;
11. He will give evidence that the Canadian government was well aware of the totality of his training and of the crimes against humanity committed by him prior to his being granted a Minister's permit to enter Canada, including confirmation that these crimes included murder, which was an offence sufficiently serious at the time to bar Mr. Valle Lopes from entry into Canada without a Minister's permit;
12. He will give evidence that the Canadian government has admitted into Canada, since the Crimes Against Humanity legislation received royal assent, one or more individuals associated with, or member of, the United States and/or Honduran governments, who it knew at that time to have been inadmissible due to information provided to the Canadian government by Mr. Valle Lopes in Mexico City;
13. He will give evidence that he did not omit any relevant information during this process in general and in particular that to the best of his knowledge nothing such as would constitute new evidence before the Minister sufficient for the Minister to initiate admissibility proceedings can or does exist.
[9] On October 13, 2005, Me Gérard Normand, the General Counsel for the National Security Group of Justice Canada, responded to the applicant's notice of May 26, 2005 in these terms:
The Attorney General of Canada has now reached a decision with respect to the disclosure of this information and is authorizing the disclosure of all the information referred to in the Notice. Please note, however, that the authorization to disclose information extends only to the information that appears on the face of the thirteen paragraphs; specifically, this authorization should not be understood to be authorization to disclose the details and documents that are alluded to in the thirteen paragraphs but that are not either included or described in those paragraphs. You will understand that the Attorney General of Canada cannot make a decision with respect to the disclosure of information of which he is unaware. (Emphasis added)
[10] On October 24, 2005 the applicant responded to Me Normand's letter as follows:
I have reviewed your letter dated October 13, 2005.
It makes no sense.
The documents referred to in your letter are in the custody of the government of Canada, not Mr. Valle Lopes.
As set out in the notice to you, it is the government's position that communication of the contents therein to anyone is a breach of national security. If it is, then bring your Federal Court application required by section 38.04(2)(a) of the Canada Evidence Act.
If you do not, then Mr. Valle Lopes intends to disclose all the evidence referred to, directly or indirectly, in the notice to you.
Be on notice that Mr. Valle Lope's position is that your letter dated October 13, 2005 is not a fulfillment of your statutory duty pursuant to the Canada Evidence Act.
[11] On October 26, 2005, the applicant launched this notice of application seeking the following relief.
(a) a declaration:
i) that the respondent Attorney General of Canada is statutorily required to bring an application pursuant to s. 38.04(2)(a) of the Canada Evidence Act;
ii) in the alternative to (i), a declaration that, if the Attorney General chooses or refuses to bring such application as set out in (i) above, that the applicant is not prohibited from complying with his statutory duty, pursuant to the Immigration and Refugee Protection Act, and his statutory and constitutional rights to give any and all evidence material, in his own defence, to the current proceeding brought against him by the respondent Minister of Citizenship and Immigration;
(b) in the further alternative to (a)(ii) above, an order (in the nature) of mandamus requiring the respondent Attorney General of Canada to bring the s. 38.04(2)(a) Canada Evidence Act application;
(c) in the final alternative, should this Honourable Court refuse all relief sought in (a) and (b) above, a declaration that the scheme in s. 38 et sequiter of the Canada Evidence Act is of no force and effect for breach of the rights set out in the preamble to the Constitution Act, 1867, as well as ss. 7, 8 and 15 of the Charter, and shall seek such ancillary, permanent and interim relief in the nature of certiori, prohibition, and/or mandamus, particulars of which will be fully set out by way of Notice of Constitutional Question pursuant to s. 57 of the Federal Court Act and corresponding Rules at the appropriate juncture of the within proceedings;
(d) solicitor-client costs of this application and such further relief as counsel may advise and this Court grant;
[12] The applicant's memorandum of law in response to the respondents' motion to strike is brief and expressed in very general terms. The applicant's position is better understood in the affidavit filed on behalf of the applicant, where the deponent suggests that the Attorney General did not provide a complete and unconditional authorization to disclose (at paragraph 28):
The Attorney General of Canada has thus only approved the partial disclosure of the subject evidence, refusing the disclosure of the vast majority of the proposed evidence on the basis that his a incapable of reviewing documents already in his position unless he received them directly from Mr. Valle Lopes, notwithstanding the Attorney General's knowledge that, while Mr. Valle Lopes has knowledge of these facts and documents, some of which he generated during interviews with Canadian intelligence agents, Mr. Valle Lopes is not in fact in possession of some of these documents but the government of Canada is. [Emphasis in the original version]
ANALYSIS
[13] The Applicant's position is that the Attorney General has a statutory obligation to institute a proceeding under paragraph 38.04(2)(a) of the Canada Evidence Act:
| 38.04 (2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions,
(a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness; |
38.04 (2) Si, en ce qui concerne des renseignements à l'égard desquels il a reçu un avis au titre de l'un des paragraphes 38.01(1) à (4), le procureur général du Canada n'a pas notifié sa décision à l'auteur de l'avis en conformité avec le paragraphe 38.03(3) ou, sauf par un accord conclu au titre de l'article 38.031, il a autorisé la divulgation d'une partie des renseignements ou a assorti de conditions son autorisation de divulgation : a) il est tenu de demander à la Cour fédérale de rendre une ordonnance concernant la divulgation des renseignements si la personne qui l'a avisé au titre des paragraphes 38.01(1) ou (2) est un témoin; |
[14] The essential pre-condition for an application to be made to the Federal Court pursuant to subsection 38.04(2) is that the Attorney General will have authorized the disclosure of only part of the information which was the subject matter of a notice under section 38.01 or that the authorization of the disclosure is subject to conditions.
[15] The respondents argue that MeNormand's letter of October 13, 2005 is the authorization by the Attorney General to disclose all of the information set out in the thirteen paragraphs of the applicant's notice of May 26, 2005.
[16] The applicant has read the response of October 13, 2005 made on behalf of the Attorney General differently. He considers the disclosure authorized by the Attorney General to be incomplete and conditional. It is useful to reproduce the relevant portion of the letter relied upon by the applicant:
Please note, however, that the authorization to disclose information extends only to the information that appears on the face of the thirteen paragraphs; specifically, this authorization should not be understood to be authorization to disclose the details and documents that are alluded to in the thirteen paragraphs but that are not either included or described in those paragraphs. You will understand that the Attorney General of Canada cannot make a decision with respect to the disclosure of information of which he is unaware.
[17] I do not read the letter in the manner suggested by the applicant. The sentences relied on by the applicant appear to me to have been written out of an abundance of caution. The Attorney General could not authorize the disclosure of information, documents or oral statements, which the applicant had yet to bring to his attention. The sentences which the applicant characterizes as conditions were simply a statement that the Attorney General was authorizing the disclosure only of the text set out in paragraphs 1 through 13 of the Applicant's notice of May 26, 2005 and no more.
[18] In summary, prior to the institution of any proceeding in the Federal Court under subsection 38.04(2), there must exist "... information about which notice was given under any of subsections 38.01(1) to (4) ..." with respect to which the Attorney General has not authorized disclosure fully and unconditionally. On the record before me, no such information exists.
[19] In the circumstances of this proceeding, the applicant has failed to establish any statutory duty by the Attorney General to make an application to the Federal Court pursuant to paragraph 38.04(2)(a) of the Act. For mandamus to issue, there must be a public legal duty to act, one owed to the applicant. There must be a clear right to the performance of that duty. An adequate remedy may have been available to the applicant under paragraph 38.04(2)(c) if the record disclosed information which met the essential pre-condition to an application under subsection 38.04(2). The relief sought by the application in the nature of mandamus must fail: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) at pages 766 and following; and Bhatia v. Canada(Minister of Citizenship and Immigration), 2005 FC 1244 at paragraph 13.
[20] Any doubt that I might have had concerning the merits of the respondents' motion to strike was dissipated during the applicant's oral submissions. When asked how he envisaged any application launched by the Attorney General pursuant to section 38.04 would proceed in the circumstances of this case, he replied that the applicant would file an affidavit stating the information he wished to disclose, presumably providing the details alluded to but not set out in the thirteen paragraphs of his letter of May 26, 2006. This is not what Parliament envisaged in section 38. Here, I agree with the respondents' submissions at paragraph 26:
If the Federal Court were to grant a participant blanket authorization to disclose unspecified information in the context of a legal proceeding whether or not it may be "potentially injurious information", the adjudication process set out at section 38 and following of the Canada Evidence Act would be frustrated and rendered nugatory.
[21] Conceptually, it will usually be an official, or perhaps a former official, of a government institution that is in possession of "sensitive information" or "potentially injurious information" as defined in section 38. It would be rare, it seems to me, that a person in the position of the applicant would be in possession of such information. He may, for example, have information which might embarrass one or more persons but, again conceptually, it is unclear how he could be in possession of information the disclosure of which by him would be injurious to Canada's national security.
[22] In their written submissions, the respondents have suggested the applicant "...who is facing a potential removal order from Canada, is hoping to delay and frustrate the adjudication of his Admissibility Hearing by bringing this forlorn litigation before the Federal Court". I expect the applicant denies that he is being dilatory.
[23] If the applicant expects to disclose before the Immigration Division information which he believes to be secret information, he can arrange to provide notice of all this information to the Attorney General. There are practical and efficient ways of doing this that counsel for both sides will want to consider.
[24] The resolution least disruptive to the Immigration Division might be to have the applicant state all the information he believes to be secret information, prior to the resumption of the hearing, orally in the presence of a stenographer. See Ribic v. Canada(Attorney General), 2003 FCT 10, affirmed 2003 FCA 246. If called upon to review the transcript under section 38.01, the Attorney General could then determine whether authorization to disclose the information could issue. If a complete and unconditional authorization is not issued, the applicant could contemplate a proceeding under paragraph 38.04(2)(c).
[25] There may be other practical solutions, which can be crafted by counsel, to alleviate the applicant's concern not to be in breach of section 38 and yet proceed to the expeditious completion of the Immigration Division hearing.
[26] Because I have concluded that this proceeding is bereft of any chance of success, I need not consider the relief sought in paragraph (c) of the notice of application.
[27] By way of obiter, it is interesting to note that the notice of application, the motion materials and the hearing in this proceeding were all public. If the notice of application had been filed with the registry's designated proceedings section, it might have been suggested that the secrecy provisions of subsection 38.11(1), among others, were applicable.
[28] As the successful parties, the respondents would normally be awarded the costs they seek in the amount of $1000. However, in the exercise of my discretion, I have decided to make no order as to costs, principally because of the applicant's submission that the Court's "guidance" was being sought concerning what all parties acknowledge to be the difficulty in understanding easily the provisions of section 38.
ORDER
THIS COURT ORDERS that:
1. The respondents' motion is granted.
2. The applicant's notice of application is struck.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1917-05
STYLE OF CAUSE: JOSE VALLE LOPES v. ATTORNEY GENERAL OF CANADA, ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 15, 2006
APPEARANCES:
| Mr. Rocco Galati
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| Mr. Jan Brongers
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SOLICITORS OF RECORD:
| Galati, Rodrigues, and Associates Barristers and Solicitors Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada |