Canada (Attorney General) v. Tursunbayev

Canada (Attorney General) v. Tursunbayev
Court (s) Database
Federal Court Decisions
Date
2021-07-20
Neutral citation
2021 FC 719
File numbers
DES-2-14
Notes
Digest
Decision Content
Date: 20210720
Docket: DES-2-14
Citation: 2021 FC 719
Ottawa, Ontario, July 20, 2021
PRESENT: The Honourable Mr. Justice Simon Noël
IN THE MATTER OF THE CANADA EVIDENCE ACT
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
RUSTEM TURSUNBAYEV
Respondent
Table of Contents
I. INTRODUCTION 2
II. BACKGROUND AND FACTS 4
A. Facts 4
B. Underlying Proceedings and Decisions Rendered 6
III. SECTION 38 PROCEEDINGS AND APPOINTMENT OF AN AMICUS 17
IV. REDACTED DOCUMENTS 22
V. SUMMARIES OF THE SUBMISSIONS ON THE LEGAL ISSUES 23
A. AGC’s Submissions 23
B. Respondent’s Submissions 25
C. Amici’s Submissions 28
VI. ISSUES 28
VII. SECTION 38 LEGISLATION 28
A. Applicable Test 29
B. Canada’s International Relations 31
C. Injury to International Relations 36
D. Balancing of the Interests 39
VIII. PUBLIC REVIEW OF THE REDACTED DOCUMENTS 41
IX. ANALYSIS 42
A. Is the information relevant to the underlying proceeding? 42
B. If so, would disclosure of the information be injurious to Canada’s international relations? 43
C. If so, does the public interest in disclosure outweighs in importance the public interest in non-disclosure? 45
X. CONCLUSION 48
AMENDED ORDER (PURSUANT TO RULE 397 OF THE
FEDERAL COURTS RULES) AND REASONS
I. INTRODUCTION
[1] This is an application by the Attorney General of Canada [Applicant or AGC] pursuant to subsection 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [CEA] for an order with respect to the disclosure of information following a notice given pursuant to subsections 38.01(1) to (4) of the CEA [Application]. The AGC requests that the redactions made in ten (10) documents originating from Global Affairs Canada [GAC] be confirmed as information that if disclosed would be injurious to Canada’s international relations.
[2] The proceeding arises in the context of a number of civil procedures issued by Mr. Tursunbayev [Respondent or Mr. Tursunbayev], which will be listed and summarized below, for a stay of proceedings based on an alleged abuse of process by the Government of Canada. It is alleged that the grounds of abuse include: (1) the improper use of a deportation rather than an extradition proceeding to return the Respondent to Kazakhstan; (2) the Government’s failure to discharge its duty of ensuring that the evidence relied upon from Kazakh officials was not obtained through torture; (3) the unlawful sharing of information with Kazakh authorities; (4) putting evidence before this Court that the Government knew or ought to have known was unreliable, perjured and/or obtained by torture, threat of torture or undue pressure; (5) improperly using deportation proceedings to obtain evidence against the Respondent for use in legal proceedings in Canada and in Kazakhstan (see the Further Amended Statement of Claim dated January 28, 2021).
[3] The reliefs being sought are: (1) an order that all proceedings that have been commenced or are to be commenced against Mr. Tursunbayev in order to effect his return to Kazakhstan and that the Government’s conduct generally constitutes an abuse of process under administrative law principles and pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 [Charter]; (2) a permanent injunction against Canada preventing it from initiating any proceeding to effect his return to Kazakhstan; (3) monetary relief in the amount of $20 million; (4) prejudgment interest pursuant to section 36 of the Federal Courts Act, RSC, 1985, c F-7 [FCA]; (5) costs of the action; and (6) such further relief as this Court may deem just.
[4] For the purpose of these reasons, I have relied on the Applicant and Respondent’s records, the transcripts of cross-examination of affiants, the underlying proceedings (T-1911-12) including the Further Amended Statement of Claims and Further Amended Statement of Defence, the decisions of the case management judge, Justice Russell, and the decision of Justice Mactavish in file IMM-2877-12. In the following section, I will explain the facts surrounding the underlying proceedings as it will be useful to understand the determinations made.
II. BACKGROUND AND FACTS
A. Facts
[5] Mr. Tursunbayev is a citizen of the Republic of Kazakhstan (hereafter referred to as Kazakhstan) and of St. Kitts and Nevis. He is a permanent resident of Canada, where he has lived with his wife and two children since 2009. He has a PhD in metallurgical engineering and from 2002 to 2009 was employed as Vice-President of Kazatomprom, a Kazakhstan’s state-owned uranium company.
[6] On August 26, 2011, Interpol Astana issued a Red Notice [Notice] indicating that Mr. Tursunbayev was wanted in Kazakhstan for prosecution for expropriation or embezzlement of trust property, money laundering, forgery and association with a criminal organization. He is alleged to have misappropriated approximately $20 million USD from Kazatomprom. The Notice requested that Interpol members “locate and arrest [the Respondent] with a view to extradition” and indicated that Kazakhstan “has given assurances that extradition will be sought upon [the] arrest of the person.”
[7] On September 14, 2011, Interpol Ottawa forwarded the Notice and the supporting documents containing the details of the allegations to the Canada Border Services Agency [CBSA] accompanied by a cover letter advising CBSA that “[i]n the absence of a bilateral extradition treaty between Canada and Kazakhstan Interpol Ottawa is unable to pursue legal action against this fugitive.” It further asked that CBSA informs them of action taken and, if any, to provide them “with the name and coordinates of the officer assigned to this case.”
[8] On October 13, 2011, CBSA Officer Steven Bean received the information and began to conduct a review of Mr. Tursunbayev’s immigration file. Since there were allegations of money laundering, the officer sent the information to the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC], which conducted an independent analysis. FINTRAC then made two disclosures to CBSA, which demonstrated that more than $47 million had passed through accounts in the name of Mr. Tursunbayev or his spouse. The Respondent alleges that this information was provided verbally to the Kazakh authorities and that it was illegal to do so.
[9] On or about January 4, 2012, the Government of Kazakhstan made a formal request to the Government of Canada for the extradition of Mr. Tursunbayev. The extradition request was eventually made public through legal proceedings before this Court, even though Kazakhstan did not consent to its disclosure for any purpose other than the extradition proceedings.
[10] On January 9, 2012, Officer Bean issued two inadmissibility reports pursuant to section 44 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] on the basis that there were reasonable grounds to believe that Mr. Tursunbayev was inadmissible to Canada on the grounds of criminality under subsections 37(1)(a) and (b) of the IRPA. One inadmissibility report alleges that there are reasonable grounds to believe that Mr. Tursunbayev is inadmissible to Canada due to his membership in a criminal organization that is responsible for a scheme to defraud Kazatomprom and its subsidiaries of significant financial assets. The second inadmissibility report alleges that Mr. Tursunbayev used a series of offshore companies and bank accounts to transfer a significant amount of money, obtained through criminal activity, out of Kazakhstan.
[11] On February 8, 2012, CBSA Officer Shari Fidlin issued a warrant for Mr. Tursunbayev’s arrest pursuant to section 55(1) of the IRPA. On February 10, 2012, he was arrested and detained until June 1, 2012 when he was placed under house arrest.
[12] A series of detention reviews were conducted between February and March of 2012. During the third detention review on March 2, 2012, counsel for the Respondent raised the question of whether there had been an extradition request. Mr. Tursunbayev also alleged for the first time that the allegations in the Notice were the product of torture.
[13] On February 20, 2012, as a result of the inadmissibility reports, CBSA Officer Russell Gregory referred Mr. Tursunbayev to an admissibility hearing.
B. Underlying Proceedings and Decisions Rendered
[14] On March 5, 2012, Mr. Tursunbayev applied for leave to commence four (4) applications before this Court for judicial review under the IRPA [Initial Applications]. These applications challenged decisions made by specific CBSA officers: IMM-2220-12 and IMM-2226-12 arose from the decisions of Officer Bean to issue two section 44(1) IRPA reports against Mr. Tursunbayev, IMM-2223-12 arose from the decision of Officer Fidlin to issue a warrant for Mr. Tursunbayev’s arrest and detention pursuant to section 55(1) of the IRPA, and IMM-2224-12 arose from the decision of Officer Gregory to refer him to an admissibility hearing under section 44(2) of the IRPA.
[15] On April 13, 2012, Mr. Tursunbayev applied for a stay of the admissibility hearing pending the outcome of the Initial Applications [Stay Motion]. On May 4, 2012, Justice Russell, the case management judge, granted an interim stay of the admissibility proceedings until the hearing of the Stay Motion. In doing so, Justice Russell noted that based on the evidence that had been presented to date, there were serious grounds of concern that a removal process was being used as an alternative for extradition to a country that has a poor human rights record:
[7] I do not as yet have a full evidentiary record before me on the abuse of process issue. The record will be supplemented in this regard before the full stay motion is heard on June 14, 2012. I may at that time form a very different view of what the evidence tells us about abuse of process. However, based upon what has been placed before me to date and in the absence of an explanation from Officer Bean on some of the things he has said in the documentation, I think it is fair to say that there are serious grounds of concern that Officer Bean, in the course of compiling his section 44 reports, saw himself to be engaged in a removal process that was an alternative to, or a substitute for, extradition to a country that has a very poor human rights record and where one of the Applicant’s witnesses has testified that the Applicant will face torture. This evidence is supported by evidence from Amnesty International. Kazakhstan made an extradition request to Canada for the Applicant on 4 January 2012. Officer Bérubé of Interpol Ottawa, who forwarded the Red Notice to CBSA, advised (apparently incorrectly) that Interpol Ottawa was unable to pursue legal action “in the absence of a bilateral treaty” and Officer Bean has said in an email to Officer Bérubé that Officer Bean “can arrest the subject and send him back to Kazakhstan….” There is also evidence before me that an RCMP liaison officer has met with Kazakhstan officials and has advised of the following:
KNB would like the subject to be arrested in Canada and deported to Kazakhstan. KNB is available to provide any type of document required by CBSA to complete its deportation process.
[Emphasis added.]
[16] On May 4, 2012, the Court also ordered that the respondent produce the tribunal records for each of the Initial Applications. In granting the production order, Justice Russell found that there is an air of reality to the allegations of abuse of process, at least to the notion of disguised extradition:
[65] With regard to the abuse of process allegations raised by the Applicant in his leave and judicial review applications, I accept the Applicant’s position that it is unlawful for the state to use the powers under IRPA to remove a permanent resident to a foreign state for the purpose of enabling the foreign state to prosecute that person, and I accept the authorities he relies upon for this proposition. To allow such conduct would circumvent the Extradition Act and the safeguards built into that legislation; it would also be an affront to the Canadian justice system and the Charter.
[…]
[90] Notwithstanding these concerns, based upon what has been produced and disclosed so far, I think there is an air of reality at least to the notion that Officer Bean misconceived his role as being to use the admissibility process to achieve what deportation could not achieve. It has an air of reality at the moment because the evidentiary record is not full enough for the Court to see a more complete picture. However, as yet, there is insufficient evidence to suggest that Officer Bean and the other tribunals are part of, or are responding to, a broader effort by Canadian officials to accommodate Kazakhstan’s request for extradition by resort to deportation.
[Emphasis added.]
[17] On May 2, 2012, Justice Mactavish (now with the Federal Court of Appeal) allowed an earlier application for judicial review sought by Mr. Tursunbayev for the review of a decision of the Immigration Division of the Immigration and Refugee Board [Board] refusing to release him from detention (see Tursunbayev v Canada (Public Safety and Emergency Preparedness), 2012 FC 504). One of the issues before the Court was whether the Minister’s representative had misstated material facts at Mr. Tursunbayev’s detention review concerning whether or not the Government of Canada had received a request for his extradition. In particular, the Court found the following statement arguably misleading (at para 37): “Does [Mr. Tursunbayev’s counsel] know they have or they haven’t [sought extradition]? Can he say that with a hundred percent certainty? I can’t.”
[18] The Minister’s representative admitted after the detention hearing that at the time he made that statement he knew that the Government had received an extradition request from Kazakhstan. He asserted that the statements he made in regard to the absence of extradition request were intended only as commentary on the state of the record before the Board and not as a representation by him to the Board that Canada had not received an extradition request.
[19] While Justice Mactavish was not persuaded that the Minister’s representative misled the Board, she noted that individuals representing the Crown before courts and tribunals always have an obligation to be candid and fair in their dealings (at para 42). She further noted that:
[40] A finding that a representative of the Crown has intentionally misled a Tribunal is a very serious matter. While the comment identified above is troubling, I have decided to give the Minister’s representative the benefit of the doubt in this case. I would, however, note that this was a close call, and would caution the Minister’s representative to be more careful in the future in his representations to the Board. [Emphasis added.]
[20] On June 22, 2012, Mr. Tursunbayev filed a fifth application for leave and judicial review under the IRPA (IMM-6259-12) seeking a declaration that the conduct of the two respondents in that application, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, constitutes an abuse of process pursuant to the Charter, and also seeking a permanent injunction enjoining the respondents from commencing or carrying out an admissibility hearing against him. He sought to have this application consolidated or joined with the Initial Applications. The consolidation motion was dismissed.
[21] On October 12, 2012, Mr. Tursunbayev filed a sixth application (T-1911-12) for leave and judicial review. This application raised the same issues of abuse of process to those in IMM-6259-12, but included as additional respondents the AGC and the Minister of Foreign Affairs and Finance [collectively “the Crown”].
[22] On April 2, 2013, the Court ordered that portions of the Stay Motion be held in camera. In his reasons, Justice Russell noted that the Crown had not presented any evidence contradicting Mr. Tursunbayev’s position in regard to the deplorable human rights record of Kazakhstan:
[20] To begin with, and quite apart from what Mr. Horton has to say, we have objective evidence from reliable institutions (U.S. DOS, Amnesty International and Human Rights Watch) that Kazakhstan has a deplorable human rights record, deploys torture with impunity and has no rule of law. Hence, there is an inherent danger for anyone giving evidence in Court proceedings that could prevent the Kazakhstan state from achieving its objective of securing the return of the Applicant to face criminal charges. The Respondents have limited themselves to critiquing the evidence of Mr. Horton. But the Respondents have presented no evidence of their own to suggest that the general legal and political culture in Kazakhstan is any less deplorable than we find in the general reports. We know that the judiciary in Kazakhstan is not independent and is subject to political interference. We know that the judiciary and the police are corrupt. We know that torture is frequently used by the police during investigations and is highly likely in political cases. We also know that trial procedures in political cases do not conform with international standards of fairness. The Respondents have not even attempted to refute these general conditions;
[…]
[23] On July 2, 2013, Justice Russell refused the Crown’s motion to strike T-1911-12, but granted their alternative relief sought and converted that application into an action under section 18.4 of the FCA. Also by Order dated July 2, 2013, the Court refused Mr. Tursunbayev’s motion for broad disclosure in IMM-6259-12 and converted that application to an action and consolidated it with T-1911-12: Tursunbayev v HMQ et al [Action]. In his reasons, Justice Russell noted that the claim is that the Crown has ignored, flouted, or was unaware of the Canadian and international rights owed to someone in Mr. Tursunbayev’s position when dealing with a foreign regime that has a poor human rights record. He further noted that:
[39] Canada obviously needs to be able to deal with international crime in cooperation with other countries. But it must do so in accordance with Canadian and international law. When officials charged with acting on behalf of Canada appear not to be aware of the legal restraints they must observe — for example in this case, Officer Bean’s apparent determination to get the Applicant back to Kazakhstan using deportation when he thinks that extradition is not possible, or Officer Coté’s apparently cooperating with the KFN and providing information to the Kazakhstan authorities in breach of Canadian law, or Officer Rustja knowingly misleading the member at a detention hearing, apparently on the instructions of the Department of Justice, by denying knowledge of an existing extradition request — Canada should not be surprised that those with an interest in ensuring that Canadian and international law are observed will bring such matters to the attention of the Court in one way or another. The Applicant has yet to prove his allegations of a broad abuse of process — particularly as regards entities other than CBSA — but the facilitating aspects that he wishes to have reviewed in this application are not so clearly improper as to be bereft of any possibility of success. The real issue before me in this motion, in my view, is whether the Applicant’s general abuse of process complaints can or should be dealt with by way of summary proceedings.
[24] In June 2013, pursuant to the Order dated April 2, 2013, the Court heard submissions in camera in the Stay Motion. On July 9, 2013, Justice Russell allowed in part the request for a confidentiality order and wrote as follows:
[46] Where the life or well-being of an affiant and their family are truly at serious risk – which I think is the case here – I do not think that the public interest in court proceedings is served by allowing a regime that has been highly criticized internationally for its poor human rights record, its frequent resort to torture, and its disregard of the rule of law to obstruct and taint Canadian proceedings by, in effect, applying the open court principle in that regime’s favour. The evidence before me indicates that Kazakhstan is taking a close interest in these proceedings. Canadian justice will not be served if the internationally unacceptable threats that Kazakhstan has demonstrably brought to bear on an affiant are allowed full sway by the application of the open court principle. In my view, the salutary effects of a confidentiality order with regard to this affiant outweigh the deleterious effects of such an order, including the public interest in open and accessible court proceedings. These materials should be sealed.
[Emphasis added.]
[25] By order dated November 28, 2013, Justice Russell stayed the Initial Applications until disposition of the Action. In doing so, he noted the following:
[28] The Respondent has also asked me to examine the jurisprudence on extradition/deportation and find that the Canadian officials involved in the present have done nothing wrong and the Applicant cannot, in any event, be granted a long delay. I have already dealt with that by referring to and applying the principles enunciated by Justice Stratus in Mylan, above, to determine whether “in all of the circumstances, it is in the interests of justice to order a stay.” As Applicant’s counsel points out, the cases relied upon by the Respondent are not really that much help in this case because we are dealing with a dispute about possible disguised extradition where the country involved is a notorious human rights abuser, uses torture, and has no rule of law. This case raises the issue of whether it is appropriate, in the face of a clear extradition request from a notorious regime such as Kazakhstan, to use admissibility and deportation under the IRPA to get the Applicant out of Canada and back to Kazakhstan.
[29] It is obvious that the Applicant wishes to avoid deportation to Kazakhstan and to render himself immune to either deportation or extradition. But the fact of his resistance to removal is no basis for saying that his disguised deportation and abuse of process allegations are groundless, and that he should be compelled to pursue his leave and judicial review application before the full context in which the decisions in question took place is placed before the Court.
[Emphasis added.]
[26] Mr. Tursunbayev filed a Statement of Claim in the Action on September 30, 2013 and an Amended Statement of Claim on February 17, 2014. The Crown filed a Statement of Defence on February 19, 2014.
[27] In the course of the Stay Motion proceedings, both parties retained an expert witness. The Crown’s witness, Dr. Martha Olcott, prepared two reports which were presented in the form of an affidavit. In June 2016, she was cross-examined at length on her reports. Ms. Olcott failed to produce certain documents that she was directed to produce prior to her cross-examination, including all correspondence she exchanged with Kazakh authorities about her reports. During the cross-examination, she produced one email and stated that “[t]his is the sole thing that exists. And I forgot that it existed” (see Justice Russell’s Order dated November 24, 2016). She left the cross-examination when confronted with evidence that she had concealed approximately 16 other email chains.
[28] On November 24, 2016, Justice Russell ordered Ms. Olcott to provide all the documents to Mr. Tursunbayev prior to the continuation of her cross-examination and to answer all questions where there had been refusals. In his reasons, he wrote the following:
[47] […] The concern here is, obviously, the extent to which the Kazakh authorities were controlling access to people and information that the Affiant relied upon for her reports, and how the Affiant went about ensuring that she was not being fed information by individuals who were under the control of the Kazakh authorities.
[48] This kind of information is scarce in the documentation produced by the Affiant from her own records because she either didn’t keep records on important aspects of her approach to investigating relevant sources or compiling the reports, or records of communications have been lost or destroyed. In addition, as I shall discuss later in relation to disputed emails, the Affiant gave evidence under oath that, other than the single email she produced after a further search of her computer system, there has been no other communications with the Kazakh authorities. As the record before me shows, this evidence was false or inaccurate. There was a significant number of other communications with the Kazakh authorities that the Affiant did not produce or reveal in accordance with the Direction to Attend and/or in response to questions asked in cross-examination. In this motion, the Defendants are resisting allowing those emails to be put to the Affiant in cross-examination. In addition, when the Affiant became aware that the Plaintiff knew about other communications she had had with the Kazakh authorities (which she said had not taken place), she refused to identify those emails and abruptly walked out of the cross-examination without giving a reason for doing so, other than the obvious inference from the transcript that she did not want to acknowledge further communications and did not want to answer questions about them. The Affiant’s conduct in this regard is not reassuring and the Court needs to know if the Defendant can shed any light on this issue from their own records, whether in the form of emails, notes of telephone conversations, and the like.
[…]
[50] In this context, I think it also has to be acknowledged that the Affiant did not just provide an opinion as an expert to a given or established set of facts. On the evidence before me, it is clear that she also played an investigative role to provide herself with the facts she needed for her reports. This is what her interactions with Kazakh authorities were intended to provide and, to this extent, she is also a fact witness. Clearly, the Court needs to know how certain facts that underlie the Affiant’s expert opinions were assembled. Was she objectively able to establish them for herself, or was she dependant on the Kazakh authorities for at least these facts. So, it is crucial that the best evidence available as to who she dealt with and what was the nature of her communications, when she herself is obviously reluctant to reveal the full scope of any such communications and her record-keeping has not been thorough, and records have been destroyed.
[…]
[93] The Affiant’s record-keeping, the loss of records, and her failure to produce relevant documentation is a serious concern to the Plaintiff and the Court. She can produce an email that supports her version of her relationship with the Kazakh authorities but no emails that might suggest the relationship could be otherwise. This is why the Plaintiff and the Court require the fullest record possible so that checks can be made.
[…]
[199] There is no ambiguity here. The Affiant decided she was going to leave and Defendants’ counsel, after initially agreeing that the Affiant could identify the emails, then asked the Affiant to leave the cross-examination. This is very obstructive behaviour.
[Emphasis added.]
[29] However, on March 24, 2017, the Crown consented to the Stay Motion. In light of their consent, the cross-examination of Ms. Olcott became irrelevant and there was no longer an obligation to produce the requested documents.
[30] On April 12, 2019, Justice Russell ordered that the Crown pay the cost of the Stay Motion to Mr. Tursunbayev. In granting cost and reimbursement of expenses, this Court noted that the Crown’s “witness and counsel engaged in obstructive conduct at a key strategic moment” (at para 19); that the Crown has “offered no exculpatory reasons as to why it was reasonable to resist agreeing to a stay” or why the Crown “abandoned that resistance after several years of complex and expensive litigation” (at para 31); that the “collapse and discrediting of Professor Olcott’s evidence would appear to be the only apparent reason for such a sudden change” (at para 45); and that the Crown’s consent “was anything like a reasonable compromise between the parties” but “a capitulation” (at para 46). Justice Russell found that:
[49] Given the international dimensions of this case, the difficulties and expense of finding qualified experts on Kazakhstan (which the Defendants know all too well), and the need for international travel, the disbursements claimed for this motion in the amount of $160,368.14 look entirely reasonable to me. The Defendants regard them as excessive but have produced no comparative figures.
[…]
[51] The Defendants have provided little to justify the need to resist the stay motion in light of my earlier findings on serious issue and irreparable harm. In addition, the Defendants have provided no explanation for their decision – after years of litigation – to abandon their resistance to the stay motion, or why there was a need to resist for so long. This means that the necessity for the costs and other expenditures incurred by the Plaintiff is left unexplained. Consent after years of expensive and hard-fought resistance is not the same thing as consent at an earlier stage or a mutually acceptable compromise.
In the end, the total amount of costs and disbursements granted by Justice Russell was $203,082.40, an exceptional amount.
[31] On December 9, 2020, Justice Simpson granted leave to further amend the Amended Statement of Claim. The purpose of the amendment was to include an additional ground to the abuse of process allegations, namely that the Crown engaged in an abuse of process by putting evidence from Ms. Olcott before this Court that they knew or ought to have known was unreliable, perjured, and/or obtained by torture, threat of torture or undue pressure by Kazakh authorities. The damage claim was also increased from $10 millions to $20 millions. (See paragraphs 2-3 of the present Reasons for a description of the other grounds.)
[32] As a result, Mr. Tursunbayev filed a Further Amended Statement of Claim on January 29, 2021 and the Crown filed a Further Amended Statement of Defence on February 1, 2021.
III. SECTION 38 PROCEEDINGS AND APPOINTMENT OF AN AMICUS
[33] On July 4, 2014, the AGC initiated the Application pursuant to section 38.04 of the CEA seeking an order under subsection 38.06(3) of the CEA authorizing the non-disclosure of information contained in 17 documents that the AGC was required to disclose to Mr. Tursunbayev in the Action. It was agreed by all that the proceedings should be held in abeyance as it became apparent that new information would have to be disclosed to Mr. Tursunbayev. Due to the passage of time and the public disclosure of certain information contained in the original section 38 application, the Court ordered on October 1, 2019 that a supplemental application should be filed by the AGC and the documents subject to the first application be substituted by the new documents in this supplemental application.
[34] The Applicant filed the Supplemental Notice of Application on November 15, 2019. Counsel for the Department of Justice in the underlying proceeding identified nine (9) redacted documents disclosed to Mr. Tursunbayev that contains information that would be injurious to international relations if disclosed. A redacted version of those documents were disclosed to Mr. Tursunbayev in the context of the Action. As seen later, the AGC filed an application on February 22, 2021 to add a document.
[35] In November 2019, the AGC filed an ex parte affidavit to explain the specific injury to international relations that would result from disclosure of the information subject to the Application.
[36] On December 18, 2019, a public case management conference was held with all counsel to discuss the appointment of an amicus curiae, the Respondent’s intention to amend the Statement of Claim in the underlying proceedings, and the need to schedule a public hearing.
[37] By Order dated December 20, 2019, the Court appointed Mr. Anil Kapoor as amicus curiae [amicus] to assist the Court in fulfilling its statutory duties pursuant to section 38 of the CEA. Before being given access by the Court to the classified information submitted for review, the amicus met with counsel for the Respondent to discuss his position in the underlying proceeding and to guide the amicus in reviewing the information at issue in the Application. Mr. Kapoor also attended the public hearing held in early March 2020 before being given access to the confidential information.
[38] On January 15, 2020, a public case management conference was held with counsel for the Respondent, counsel for the AGC, and the amicus to discuss the involvement of the amicus and the next steps to be taken prior to the public hearing in this matter.
[39] On January 29, 2020, an ex parte affidavit and a public affidavit were filed on behalf of the Applicant. The cross-examination of the public affiant, Alison Grant, took place on February 13, 2020. The transcript of her cross-examination was filed with the Court on March 2, 2020. The Respondent’s record was filed on February 26, 2020 and the Applicant’s record on March 2, 2020.
[40] On March 4, 2020, at the request of the Respondent, a one (1) day public hearing was held in the presence of counsel for the Applicant, counsel for the Respondent and the amicus. The Respondent presented an overview of the issues arising from the Action and the procedural history of the file. He also presented the geopolitical situation of Kazakhstan worldwide and in relation to Canada. This hearing gave the Respondent an opportunity to be heard and allowed him to present to the Court how he thought the redacted information may be highly relevant to the underlying proceedings. To that purpose, counsel for the Applicant and counsel for the Respondent presented oral and written submissions and referred to several documents, including the redacted documents identified in this Application as of the date of the hearing. The undersigned appreciated receiving this information.
[41] On August 14, 2020, a supplemental ex parte affidavit was filed on behalf of the Applicant to further explain the injury to international relations that would result from the disclosure of the redacted information.
[42] On September 2, 2020, a case management conference was held in the presence of counsel for the Applicant and the amicus during which the parties confirmed that an ex parte, in camera hearing would be scheduled to proceed with the examination and cross-examination of the AGC’s affiant. The hearing was scheduled for October 7-8, 2020. However, due to a COVID-19 related issue, the said hearing was adjourned to November 10, 2020.
[43] The ex parte examination and cross-examination of the AGC’s witness took place on November 10, 2020. The AGC presented evidence on the injury to international relations of disclosing the redacted information. A public summary of the hearing was communicated to the Respondent on November 17, 2020, which summarized the hearing as follows:
The hearing lasted from 9:30 to 4:00. At the outset of the hearing, the AGC filed a chart indicating whether the amicus curiae and the AGC agreed with the redactions proposed in each document. The AGC also filed documents referred to by the Respondent in the March 4, 2020, public hearing that had not yet been included in the s. 38 CEA file.
The AGC then examined the Global Affairs Canada (GAC) ex parte witness who had previously signed two ex parte affidavits, one on November 15, 2019 and another on August 12, 2020. The first affidavit relates to the injury to international relations caused by the disclosure of information obtained in confidence from a foreign state as well as by the disclosure of assessments made by GAC officials for internal use only. The second affidavit provides additional evidence on the injury of disclosing information obtained in confidence.
Immediately after the examination-in-chief of the GAC witness, the amicus curiae cross-examined the witness.
Once the cross-examination concluded, the Court indicated that a Public Case Management Conference would be scheduled in December.
The Court acknowledged that the outcome of the Respondent’s motion to further amend his Statement of Claim in the underlying civil action, scheduled to be heard on November 23, 2020, could have an impact on the s. 38 proceedings.
The Court requested that the amicus curiae and the AGC discuss a timeline to present their written and oral submissions, while taking into consideration the fact that there could be a significant delay before the transcript of the hearing is available.
[44] During this hearing, counsel for the AGC and the GAC affiant referred to another document. The AGC informed the Court at the following case management conference that an application would be filed in relation to that tenth document, which would be disclosed to Mr. Tursunbayev in the Action and would be totally redacted. Given the similarities between the redacted information in this document and the other documents, the Court agreed that the AGC would make ex parte written submissions with respect to all ten (10) documents. An application to that effect was filed on February 22, 2021.
[45] On December 18, 2020, a public case management conference was held with all counsel to discuss the next steps in the Application. It was decided that counsel for the Applicant would provide written submissions by January 15, 2021 and that the amicus would file his submissions within seven (7) days of this. However, in a letter dated January 13, 2021, the Applicant asked this Court for an extension of time to present their written submissions, to February 22, 2021, and for the amicus’ response, to March 1, 2021. The request was made in response to the recent COVID-19 provincial “stay at home order”. The Court granted the request on the same day. The AGC’s submissions were filed on February 22, 2021. However, the amicus, being located in Toronto, requested an extension to March 19, 2021 due to the COVID-19 restrictions on travelling. The request was granted and the amicus filed his response on March 19, 2021.
[46] An ex parte, in camera hearing took place on June 9, 2021, and lasted for 4.5 hours. During this hearing, the AGC argued that the Court should maintain the prohibition from disclosure of all information subject to the Application. The amicus argued that some of the redacted information should be disclosed, or summarized, subject to terms and conditions. The Court requested additional information concerning the possible issuance of summaries, which was provided to the Court on June 23, 2021. Another ex parte, in camera hearing was held on June 28, 2021 for one hour. The purpose was to discuss the issuance of summaries in relation to certain redactions and the extent and conditions of disclosure. The subsection 38.04 (1) of the CEA application was then taken under reserve.
IV. REDACTED DOCUMENTS
[47] The documents produced by the AGC to Mr. Tursunbayev consist of the following, in redacted form [Documents]:
AGC #
Document Description
AGC002251
The 2010 Annual Human Rights Report (Long) on Kazakhstan produced by the Department of Foreign Affairs and International Trade.
AGC002252
Emails between various GAC officials, including Stephen Millar of the Embassy of Canada in Kazakhstan.
AGC002254
Draft Briefing Note of Chrystal Waddington titled “Kazakhstan”.
AGC002255
The 2012 Annual Human Rights Report (Short) on Kazakhstan produced by the Dep