Digests

Decision Information

Decision Content

Evidence

Application by Attorney General of Canada (AGC) pursuant to Canada Evidence Act, R.S.C., 1985, c. C-5 (Act), s. 38.04(1) for order with respect to disclosure of information following notice given pursuant to Act, s. 38.01(1) to (4) — AGC requesting that redactions made in documents originating from Global Affairs Canada (GAC) be confirmed as information that if disclosed would be injurious to Canada’s international relations — Proceeding arising in context of civil procedures issued by respondent for stay of proceedings based on alleged abuse of process by Government of Canada — Respondent permanent resident of Canada, citizen of Republic of Kazakhstan — Wanted in Kazakhstan for expropriation or embezzlement of trust property, money laundering, forgery, association with criminal organization — Inadmissibility reports pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 44 issued in 2012 — Respondent arrested, detained — Referred to admissibility hearing — Between 2012-2020, several underlying proceedings, decisions rendered — Section 38 proceedings initiated by AGC in 2014 — Department of Justice identifying redacted documents disclosed to respondent containing information injurious to international relations if disclosed — Amicus curiae appointed — AGC arguing that Court should maintain prohibition from disclosure of all information subject to application — Amicus arguing that some redacted information should be disclosed, or summarized, subject to terms, conditions — Respondent submitting that redacted information should be considered presumptively relevant because included in material to be disclosed for discovery — Also believing information would allow respondent to understand reason for delay in proceedings, may go to heart of abuse of process allegations — Asserting disclosure of redacted information not injurious to international relations — Whether prohibition on disclosure of information should be confirmed pursuant to Act, s. 38.06(1); if so, whether disclosure of information should be subject to any conditions pursuant to s. 38.06 — Three-pronged test to be met established in Canada (Attorney General) v. Ribic, 2003 FCA 246, [2005] 1 F.C.R. 33 — Present application for order confirming non-disclosure of information that would be injurious to international relations pursuant to Act, s. 38.06(1) — Legislation, case law not clearly defining concept of “international relations” — International relations encompassing exchange of information between foreign nations, ability to conduct such exchanges in atmosphere of trust to ensure information is as complete, accurate as possible — Challenging to define concept of international relations in definitive way — Only information injurious to Canada’s international relations if disclosed can be redacted — As such, judge must test redactions, with assistance of amicus, to ensure redactions justified, i.e. that disclosure of information injurious — Evidence of injury presented must satisfy judge of probability (as opposed to possibility) of injury to international relations — Cannot be speculative — Designated judge must determine whether public interest in disclosure outweighing in importance public interest in non-disclosure — Here disclosure of redacted information would be injurious to Canada’s international relations — Extent of such injury varying for each redaction — Degree of importance of Canada’s relations with Kazakhstan taken in consideration — While international relations important to Canada, such relations cannot be protected to detriment of legitimate public interest in disclosure — In present case, for most redactions, public interest in disclosure outweighing, to differing degrees, public interest in non-disclosure — Full disclosure not necessary to achieve fairness of proceedings — Summaries of material information identified providing sufficient information to respondent — Therefore, redactions proposed by AGC to remain — Application allowed in part.

Canada (Attorney General) v. Tursunbayev (DES-2-14, 2021 FC 719, Noël J., amended reasons for order dated July 20, 2021, 53 pp.)

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.