Imai v. Canada (Foreign Affairs)

Imai v. Canada (Foreign Affairs)
Court (s) Database
Federal Court Decisions
Date
2021-12-29
Neutral citation
2021 FC 1479
File numbers
T-1170-19
Decision Content
Date: 20211229
Docket: T-1170-19
Citation: 2021 FC 1479
Ottawa, Ontario, December 29, 2021
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
SHIN IMAI
Applicant
and
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA as represented by the
MINISTER OF FOREIGN AFFAIRS
Respondent
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued December 29, 2021)
I. Overview
[1] The Marlin Mine, a gold mine in Guatemala owned at the time by a subsidiary of the Canadian mining company Goldcorp Inc. [Goldcorp], ceased operating in May 2017, but not before attracting international condemnation for purported environmental and humanitarian failures. In fact, in May 2010, seven years prior to the mine’s closure, the Inter-American Commission on Human Rights [Commission], an institution of the Organization of American States [OAS], of which Canada is a member, issued a precautionary measures decision against the Government of Guatemala following the filing of a human rights petition in 2007 from the Communities of the Sipakepense and Mam Mayan People of the Municipalities of Sipacapa and San Miguel Ixtahuacán, an organization supported by the Indigenous communities in the vicinity of the mine; the precautionary measures decision included a request that the Government of Guatemala suspend operations at the Marlin Mine pending a full investigation into the purported environmental and human rights abuses and the mine’s impact on the Indigenous Mayan communities living nearby.
[2] The Government of Guatemala issued its official response to the Commission’s precautionary measures decision, stating that the claims of environmental contamination were unsubstantiated but that it would initiate its own investigation into the allegations. Canada did not take part in the Commission’s decision and was not a party to the proceedings before the Commission; the matter involved the Commission and the Government of Guatemala, and neither Canada nor Goldcorp had any standing before the Commission in this matter. However, throughout June 2010, and following Goldcorp’s request for support, the Canadian government and embassy staff in Guatemala engaged with the Guatemalan government, the Commission and Goldcorp in relation to the Marlin Mine situation. The Applicant, Professor Shin Imai, argued before me that what we then saw was not the Department of Foreign Affairs, Trade and Development, today Global Affairs Canada [Global Affairs] acting in accordance with its stated policy when advised of a Canadian company possibly committing human and environmental abuses abroad, i.e., to investigate the situation and use its offices abroad so as to open a dialogue amongst the interested parties with a view to seeking a constructive, results-oriented remedy in the event that the concerns of abuses are validated, but rather Global Affairs coming to Goldcorp’s aid through its intervention with the Commission and the Government of Guatemala in a strategic effort to promote Goldcorp’s position.
[3] In the end, mining operations were not suspended, and on December 7, 2011, the Commission modified its decision by lifting the request for the Government of Guatemala to suspend operations at the Marlin Mine but continued to request that the Government of Guatemala ensure that the 18 Mayan communities affected by the mine have access to potable drinking water as well as water for irrigation purposes.
[4] Since the mine’s closure in May 2017, Goldcorp, and later Newmont Mining Corporation [Newmont Corporation], which purchased the mine in April 2019, have been undertaking reclamation activities at the mine.
[5] In November 2014, Professor Imai sought disclosure of records from Global Affairs by way of a request [ATIA request] pursuant to the Access to Information Act, RSC 1985, c A-1 [Act], relating to the Canadian government’s response to the Commission’s 2010 precautionary measures decision and its role in the Commission’s reversal of that decision, in particular seeking communications between Global Affairs, Goldcorp, the OAS, the Commission, and the Guatemalan government.
[6] In response to the ATIA request, Global Affairs disclosed several hundred pages of documents to Professor Imai, eventually prompting a narrower request dealing specifically with communications between Global Affairs, Goldcorp and the Commission from the date that the Commission requested Guatemala to suspend operations at the Marlin Mine to the date that the Commission reversed its decision.
[7] Over time, Global Affairs disclosed additional documents in answer to the ATIA request, culminating on February 28, 2018, when Global Affairs provided Professor Imai with its fifth and final release disclosure package [February 2018 Disclosure] containing 36 pages of documents of which 20 pages included redactions in reliance upon subsections 15(1) and 19(1) as well as paragraphs 13(1)(a), 13(1)(b), 20(1)(b), 20(1)(c), 20(1)(d), 21(1)(a) and 21(1)(b) of the Act. Additional information was released to Professor Imai by Global Affairs on November 26, 2020, and reliance upon paragraph 20(1)(d) no longer became relevant, however, the present application is limited to the redactions on the 20 pages contained in the February 2018 Disclosure.
[8] In its final report of findings dated June 5, 2019, pursuant to subsection 37(2) of the Act [OIC report], the Office of the Information Commissioner [OIC] concluded that Global Affairs had applied the exemptions pursuant to subsections 15(1) and 19(1) as well as paragraphs 20(1)(b), 20(1)(c), 21(1)(a) and 21(1)(b) of the Act in accordance with the Act and that where such application was discretionary, Global Affairs had reasonably exercised its discretion. In addition, as concurrent exemptions were applied pursuant to paragraphs 13(1)(a), 13(1)(b) and 20(1)(d) of the Act to some of the same information, the OIC did not find it necessary to consider whether the refusal to disclose the same information could also be justified pursuant to these additional paragraphs of the Act.
[9] On July 18, 2019, Professor Imai commenced the present application against Her Majesty the Queen, represented here by the Minister of Foreign Affairs [Minister] pursuant to section 41 of the Act, seeking judicial review of the February 2018 Disclosure and challenging the availability and, where applicable, the reasonability of the exercise of Global Affairs’ discretion as regards its refusal to disclose information within the February 2018 Disclosure; in particular, Professor Imai claims that Global Affairs has not met its burden of proof and, to the extent that the subsection 15(1) and paragraphs 21(1)(a) and 21(1)(b) exemptions apply, that Global Affairs failed to exercise its discretion to disclose the records in a reasonable fashion. Professor Imai also submits that Global Affairs’ handling of his request was fraught with errors, unexplained actions, and inconsistencies. Ultimately, Professor Imai is seeking disclosure of an unredacted copy of the records pursuant to sections 49 and 50 of the Act.
[10] On June 30, 2020, this Court issued a confidentiality order granting Global Affairs’ request to file a confidential version of its supporting affidavit. The Court also ordered Global Affairs to provide Professor Imai with a revised annotated release package to particularize the exemptions relied upon in the February 2018 Disclosure so as to clarify the exemptions Global Affairs had applied to the redacted information, in particular where concurrent exemptions were applied to the same information, and to correct errors in one of the exhibits.
[11] In short, I am satisfied that Global Affairs properly relied upon the particular exemptions of the Act and reasonably exercised its discretion where required in the application of such exemptions. Accordingly, and for the reasons that follow, I am dismissing the present application for judicial review.
II. Issues
[12] According to Professor Imai, disclosure would not only provide public accountability regarding Global Affairs’ actions with respect to the Commission’s decision—which is in the public interest—but would also advance the public debate on how Canada ensures that Canadian companies comply with human rights laws and environmental standards when operating abroad. In addition, Professor Imai argues that underlying the more narrow issues of this case, there is a compelling Indigenous rights component, a case study of how the Canadian government balances Indigenous rights as against corporate interests; in December 2020, the federal government tabled legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] so as to make all its legislation consistent with that policy, and Professor Imai argues that it would be very difficult to make meaningful changes to policy if individuals cannot get access to information on how Canada proceeds to respect the rights of Indigenous peoples abroad. In this case, disclosure of information, he says, will contribute to a more meaningful debate on what changes Canada must bring to its legislation in light of the UNDRIP, and in particular as regards the Act, and what changes Canada must bring in terms of foreign diplomatic policy or legislative controls when considering public policy factors militating in favour of disclosure of information under the Act.
[13] The 20 relevant pages of the February 2018 Disclosure, which include two briefing notes and a series of internal emails, are summarized in the table below, along with the relevant disclosure page numbers and the exemptions of the Act claimed by Global Affairs. The Minister asks the Court to keep in mind that these documents represent what remains contested from a series of multiple disclosures involving a substantial amount of information and are but a snapshot in time in the context of some of the broader public policy issues that have been raised by Professor Imai.
Doc
From/To
Date in 2010
Page
Exemption applied
Text redacted (from/to)
1
Briefing note
June
29
15(1)/20(1)(c)
Mine/
Background
2a
Briefing note
June
26
19
IACHR/
Naturally
2b
26
19
with/However
2c
26
13(1)(a) and (b)/15(1)
Commission/
who
2d
26
13(1)(a) and (b)/15(1)
Information/Our
2e
26
15(1)
Guatemala/The
2f
26
15(1)/20(1)(c)
itself/the end
3a
Marder/
Patterson
June 14 – 4:45 pm
27/331
15(1)/20(1)(c)
Canada/High
3b
27/331
15(1)/20(1)(c)
MINT/Anything
3c
27/331
15(1)/21(1)(a)
Tuesday/the end
4a
Patterson/Marder
June 14 – 6:12 pm
330
15(1)/20(1)(c)
Canada/Jeff
4b
330
13(1)(b)/19
with/of
4c
330
13(1)(a) and (b)/15(1)/20
(1)(c)
information/sect sect 19
4d
330
19
sect 19/
indicated
4e
330
13(1)(a) and (b)/15(1)
case/Given
4f
330
15(1)
IACHR/Please
5a
Marder/
Patterson
June 14 – 8:12 pm
330
15(1)/20(1)(c)
Canada/Thanks
5b
330
15(1)
helpful/At
5c
330
15(1)
IACHR/Mil
6a
Moffett/
Culham
Oct 13 – 10:19 am
1/5/10
13(1)(a) and (b)/15(1)
Guatemala/à
6b
2/5/10/11
20(1)(c)/21(1)(b)
effet (et)/Votre
7a
Culham/
Moffett
Oct 13 – 3:13 pm
4/9
15(1)/21(1)(b)
Corp./over 2 lines
7b
4/9/10
15(1)/21(1)(a)
over 3 lines
7c
4/10
15(1)
Over 3 lines/That
7d
4/10
15(1)
party/to
8a
Moffett/
Culham
Oct 13 – 6:02 pm
3/8
15(1)/20(1)(c)
yesterday/over 3 lines
8b
3/8/9
15(1)/21(1)(b)
over 7 lines
8c
3/9
15(1)/20(1)(c)
over 3 lines/I
9a
Labrom/
Janoff
Oct 13 – 7:26 pm
7/8
15(1)/21(1)(a)
application/over 7 lines
9b
7/8
15(1)
over 3 lines/Regards
10
Labrom/
Janoff
Oct 14 – 6:53 am
7
15(1)/20(1)(b)
oversight/the end
11a
Moffett/
Labrom
Oct 14 – 7:46 am
6
15(1)/21(1)(b)
cas/Cependant
11b
6
15(1)/21(1)(b)
l’IACHR/Leur
11c
7
15(1)
soulevés/over 10 lines
11d
7
15(1)/20(1)(c)
over 3 lines
11e
7
15(1)
over 7 lines/to end
12a
Moffett/
Janoff
Oct 26 – 9:49 am
22
15(1)/20(1)(c)/21(1)(b)
(official)/Two
12b
22
19
N\A – already released
12c
22/23
15(1)/20(1)(c)
non-official/Next
13a
Janoff/
Culham
Nov 15 – 12:53 pm
24
15(1)/20(1)(c)
Oct 25/6 Amb.
13b
25
15(1)/20(1)(c)
challenge/For
13c
25
15(1)/20(1)(c)
systems;/he
13d
25
15(1)/20(1)(c)
Representative/
the end
[14] The table has been prepared using the colour-coded revised annotated release package provided by the Minister. Within the 20 pages, there are 13 individual documents, some of which are found in duplicate within the 20 pages and some of which cross over into multiple pages; as mentioned earlier, many of the 13 documents contain concurrent exemptions of the Act applied to the same redactions. Consequently, I have included in the table the words that appear immediately before and after each redacted section so that they can easily be identified.
[15] I should also mention that the issues regarding the application of subsection 19(1) of the Act have been resolved between the parties. In any event, a simple review of the information identified in documents 2(a) and (b), 4(b) and (d) shows that it consists of personal information falling under that subsection. As for document 12(b), the redaction was in error, and the two words initially redacted were disclosed to Professor Imai. Although the table was prepared on the basis of the revised annotated release package, I have taken note of the clerical errors listed in the affidavit of Ms. Lafave filed in support of the Minister’s position.
[16] The issues before me in this application are as follows:
(a) What is the standard of review for each of the exemptions relied upon by the Minister?
(b) Did the Minister properly apply the exemptions to the February 2018 Disclosure in accordance with the Act and where discretionary, did the Minister reasonably exercise such discretion?
III. The legislative framework and overarching principles
[17] I have set out the relevant legislative provisions in the annex to my decision. I should also mention that Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, received royal assent and came into force on June 21, 2019, approximately four weeks prior to the filing of the present application on July 18, 2019. No issue was raised by the parties as to the effect of any of the amendments to the Act, and I am to review the matter in light of the most recent provisions of the Act as at the time of the filing of the present application.
[18] Our courts have recognized that the Act enshrines “an essential component of democracy: the public’s right to government information”. The public’s right to information is essential for public scrutiny of government activities as well as full and meaningful participation in public debate (Bronskill v Canada (Canadian Heritage), 2011 FC 983, [2013] 2 FCR 563 at para 4 [Bronskill]). For these reasons, the Supreme Court has recognized the Act’s quasi-constitutional status (Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 [Commissioner v Defence]).
[19] The Act provides the public with a right of access to information contained in records under the control of a government institution (subsection 4(1) of the Act). Even though government institutions have the ability to refuse to disclose information subject to the limited and specific exemptions set out in sections 13 to 26 of the Act, the Act’s public importance means that those exemptions must be construed “narrowly” (Do-Ky v Canada (Foreign Affairs and International Trade), [1997] 2 FC 907 at page 909, 1997 CanLII 16205 [Do-Ky FC]; Canada (Information Commissioner) v Canada (Prime Minister), 2019 FCA 95 at para 37 [OIC v PM]; Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 at paras 30 and 55).
[20] Where multiple interpretations are possible, the Court must “choose the one that infringes on the public’s right to access the least” (Rubin v Canada (Minister of Transport), [1998] 2 FC 430 (CA) at para 23). The right to government information is mandatory for both public scrutiny of government activities as well as the full and meaningful participation in public debate and discussion (Bronskill at para 4).
[21] When an applicant seeks judicial review of a refusal to disclose information, the Court has the benefit of the OIC’s report of findings (sections 36(1) and 37 of the Act). The OIC’s opinion “carries much weight in light of the expertise possessed by the Commissioner”, but it is not binding upon the Court (Blank v Canada (Minister of Justice), 2009 FC 1221 at para 41).
[22] As this is an application under subsection 41(1) of the Act, the government institution generally bears the burden of establishing that the information was properly exempted from disclosure (subsection 48(1) of the Act; OIC v PM at para 37). If the Court determines that the exercise of discretion is at issue, the determination of which party bears the onus of establishing that the discretion was exercised reasonably depends on the circumstances (Attaran v Canada (Minister of Foreign Affairs), 2011 FCA 182 at para 20 [Attaran]), however when dealing with a confidential record upon which an applicant does not have access, the burden is on the government institution to establish that the discretion was exercised in a reasonable manner (Attaran at para 27; Bronskill at para 124).
IV. Assertions of overarching errors in Global Affairs’ disclosure
[23] As a preliminary matter, Professor Imai submits that Global Affairs’ handling of his request has been fraught with serious record-keeping deficiencies that would undermine Global Affairs’ ability to justify its refusal to disclose information and erode the basis for the exemptions it claims. As an example, Professor Imai argues that those deficiencies prevented Global Affairs from detecting that some of the information redacted in the February 2018 Disclosure had in fact already been disclosed to Professor Imai in previous disclosure packages.
[24] The fact that record-keeping was less than optimal was all but admitted by Global Affairs. In her affidavit, Ms. Lafave, Team Leader of the Access to Information and Privacy Protection Division of Global Affairs [ATIP Division], advised that around the time of receipt of Professor Imai’s ATIA request, changes were made to ATIP Division’s information management practices and, “[a]s a result, and due to the passage of time, document retention issues, and the fact that some ATIP Analysts who had worked on this file are no longer with [Global Affairs], some information is unavailable with respect to this file and other related files”. In her cross-examination, Ms. Lafave confirmed that information is not only “unavailable” but in reality lost because of internal record-keeping:
In putting together my affidavit, I found that some documents had not been correctly saved in the system. So information that had been worked on by previous analysts had not been correctly saved in our system. Nor had previous release packages that were provided to Mr. Imai over the course of the investigation.
[25] In the circumstances of this case, I understand that much of the evidence otherwise necessary for the record has been lost, including missing exemption analysis worksheets, as they were not properly saved, and that many of the original ATIP analysts are no longer with Global Affairs so there is no access to much of the reasoning process as it related to the exercise of discretion with respect to the application of the exemptions to disclosure under the Act. Professor Imai does not suggest that the overarching deficiency issue is enough in itself to overturn Global Affairs’ refusal to disclose the redacted information that is the subject of the present application, but only that it casts doubt on the supposed evidence that Global Affairs exercised discretion when required under the Act.
[26] For my part, other than adding colour to the debate, the fact that there existed deficiencies in record-keeping at Global Affairs may be less relevant to the issues before me. Either Global Affairs’ decision to redact information was justified or it was not. It is not for the Court to make recommendations on how to improve record-keeping by government agencies. The burden is on Global Affairs to justify its disclosure decisions, and if there are deficiencies in record management systems which, in the end, impede an agency’s ability to justify its disclosure decisions, it will pay the price in possibly having its decisions to exempt information from disclosure set aside.
V. Analysis
[27] I should begin by saying that although I certainly appreciate Professor Imai’s perspective of the varying nuances of policy implications underlying the present application, at its core, this application is about whether the ATIP Division properly applied the exemptions under the Act in responding to Professor Imai’s narrowly worded and quite specific ATIA request. Also, I need not deal with the information identified in the table as documents 2(a) and (b), 4(b) and (d) and 12(b) because, as mentioned earlier, they relate to the exemption under subsection 19(1), which has already been resolved.
[28] Consequently, I will begin my review with Global Affairs’ reliance on subsection 15(1) of the Act; this exemption has been applied to nearly all of the redacted information with the exception of the information identified in the table above as documents 2(a) and (b), 4(b) and (d), 6(b) and 12(b).
A. Subsection 15(1): Information injurious to the conduct of international affairs
[29] In addition to submissions made by the Minister in open court, there being no objection on the part of Professor Imai, I also heard submissions from the Minister in camera in respect of her ex parte representations relating to Global Affairs’ refusal to disclose the redacted information by reason of subsections 13(1) and 15(1) of the Act (paragraph 52(2)(a) of the Act; Kitson v Canada (Minister of National Defence), 2009 FC 1000, [2010] 3 FCR 440; Attaran at paras 47 to 49).
[30] Subsection 15(1) provides as follows:
International affairs and defence
Affaires internationales et défense
15(1) The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information
15(1) Le responsable d’une institution fédérale peut refuser la communication de documents contenant des renseignements dont la divulgation risquerait vraisemblablement de porter préjudice à la conduite des affaires internationales, à la défense du Canada ou d’États alliés ou associés avec le Canada ou à la détection, à la prévention ou à la répression d’activités hostiles ou subversives, notamment :
. . .
[…]
(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
e) des éléments d’information recueillis ou préparés aux fins du renseignement relatif aux États étrangers, aux organisations internationales d’États ou aux citoyens étrangers et utilisés par le gouvernement du Canada dans le cadre de délibérations ou consultations ou dans la conduite des affaires internationales;
. . .
[…]
(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;
h) des renseignements contenus dans la correspondance diplomatique échangée avec des États étrangers ou des organisations internationales d’États, ou dans la correspondance officielle échangée avec des missions diplomatiques ou des postes consulaires canadiens;
. . .
[…]
[Emphasis added.]
[Je souligne.]
[31] Subsection 15(1) of the Act is a discretionary, injury-based exemption, and it involves a two-step process, with the standard of review regarding both steps being one of reasonableness (3430901 Canada Inc. v Canada (Minister of Industry), 2001 FCA 254 at para 45 [Telezone]; Bronskill at paras 63, 69 and 76; Attaran at paras 17 and 18). As stated by Madam Justice Dawson at paragraph 14 of the Federal Court of Appeal decision in Attaran:
. . . The subsection provides that the head of a government institution “may refuse” to disclose any record. This requires a two-step exercise. The first step the head must take is to determine whether disclosure could reasonably be expected to be injurious to the conduct of international affairs. If the determination is that it may, the second step is to decide whether having regard to the significance of the risk and other relevant factors, disclosure should be made or refused. . . .
[32] Subsection 15(1) is subject to the remedy under section 50 of the Act, which provides:
Order of Court where reasonable grounds of injury not found
Ordonnance de la Cour dans les cas où le préjudice n’est pas démontré
50 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
50 Dans les cas où le refus de communication totale ou partielle du document s’appuyait sur les articles 14 ou 15 ou sur les alinéas 16(1)c) ou d) ou 18d), la Cour, si elle conclut que le refus n’était pas fondé sur des motifs raisonnables, ordonne, aux conditions qu’elle juge indiquées, au responsable de l’institution fédérale dont relève le document en litige d’en donner communication totale ou partielle à la personne qui avait fait la demande; la Cour rend une autre ordonnance si elle l’estime indiqué.
[Emphasis added.]
[Je souligne.]
[33] Under section 50 of the Act, the reviewing Court must determine whether the government institution had “reasonable grounds on which to refuse” disclosure of the information. This review is decided on a de novo basis; as an integral part of the de novo process, the Court can consider evidence that was not before Global Affairs when it issued the February 2018 Disclosure.
[34] As part of the first step inherent in subsection 15(1) of the Act, the Minister must show that there is a reasonable expectation of probable harm to Canada’s international affairs if the information is disclosed (Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, [2012] 1 SCR 23 at paras 192 to 196 [Merck Frosst]; Bronskill at paras 70), with the burden resting with the Minister to so establish with evidence of a “clear and direct connection between the disclosure of specific information and the injury that is alleged”; the injury cannot be speculative (Merck Frosst at paras 197; Bronskill at para 126; Do-Ky FC at p 923).
[35] As regards the standard of proof, Professor Imai suggest that there is a “heavy onus” upon the Minister to establish a reasonable expectation of probable harm (Bronskill at para 125; Criminal Trial Lawyers’ Association v Canada (Justice), 2020 FC 1146 at para 47). I do not agree that the notions of a heavy burden or heavy onus often addressed in the case law relate to the evidentiary standard that must be met by the party seeking to establish a reasonable expectation of probable harm. The Supreme Court in Merck Frosst addressed the history of the notion of “heavy burden” in relation to the exemption to disclosure under subsection 20(1) of the Act (Merck Frosst at paras 93 and 94), but made clear that when addressing the notion of a reasonable expectation of probable harm, a party seeking to invoke the exemption need only show that the risk of harm is considerably above a mere possibility, and need not establish on the balance of probabilities that the harm will in fact occur (Merck Frosst at paras 196 and 199). In addition, in Canada (Information Commissioner) v Canada (Prime Minister), [1993] 1 FC 427, 1992 CanLII 2414, it is clear that when referring to the “heavy onus”, the Court is not addressing the standard of proof but rather the fact that where, as is here, the process of disclosure relies on evidence, the notion of a “heavy onus” relates to the fact that the party seeking to maintain confidentiality must do so in a formal manner through clear and direct evidence (p 429). Consequently, the standard of proof for the establishment of reasonable expectation of probable harm remains, as set out in Merck Frosst, above a mere possibility but less than on a balance of probabilities, that is, whether a reasonable person would expect harm to occur as a result of disclosure.
[36] If I am to find that there is a reasonable expectation of probable harm to Canada’s conduct of international affairs in the event of disclosure, the second step is to decide whether having regard to the significance of the risk and other relevant factors, disclosure should nonetheless be made or refused—whether the public interest in disclosure outweighs the harm (Attaran at para 14). In assessing the exercise of discretion conferred in subsection 15(1) in respect of this second step, the Court must first examine the totality of the evidence to determine whether, on a balance of probabilities, the government institution understood that there existed a discretion to disclose or to refuse to disclose, evidence of which may be express or inferred (Attaran at paras 30 to 36).
[37] If the Court is satisfied that the government institution turned its mind to the exercise of discretion, the Court must then determine whether the government institution exercised its discretion reasonably by balancing all the relevant public and private interests in disclosure against the public interest in non-disclosure (Attaran at para 18; Bronskill at paras 194 and 216). In Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 SCR 815 [Criminal Lawyers’ Assn.], the Supreme Court framed this stage of the analysis as a weighing of the competing interests at stake to determine what is in the public interest. The Supreme Court stated at paragraph 48:
. . . the second step is to decide whether, having regard to the significance of that risk and other relevant interests, disclosure should be made or refused. These determinations necessarily involve consideration of the public interest in open government, public debate and the proper functioning of government institutions . . . the head must weigh the public and private interests in disclosure and non-disclosure, and exercise his or her discretion accordingly.
[38] In refusing disclosure, it is not sufficient for government institutions to recite boilerplate declarations that discretion was exercised and that all relevant factors were considered, but it is also not necessary for a government institution to provide a detailed analysis of each and every factor that has an impact on the decision or how they were weighed against each other (OIC v PM at paras 82–90).
[39] In addition, as regards discretionary decisions, the Court is to apply deference; the Court “will not lightly interfere with discretionary decisions such as the ones at issue herein” (OIC v PM at para 82). However, as stated in Bronskill at paragraph 82, “some deference has to be given, but not to the point of neutralizing the role of the judiciary as provided for by the legislation.”
(1) There exists a reasonable expectation of probable harm to Canada’s international relations if the redacted information is released
[40] As stated, Global Affairs applied the exemption under subsection 15(1) of the Act to all of the redacted information except what has been identified in the table as documents 2(a) and (b), 4(b) and (d), 6(b) and 12(b).
[41] As a preliminary matter, Professor Imai points to a paragraph on one of the pages of the February 2018 Disclosure that had, until a week before the hearing, been exempted from disclosure under subsection 15(1) of the Act, and only just recently released to him as part of the revised annotated release package. This, says Professor Imai, puts into serious doubt the reliability of the decision making process regarding the remaining subsection 15(1) exemptions. For my part, and although I am invited by Professor Imai to maintain a healthy dose of skepticism with regard to the disclosure decisions of Global Affairs, as I indicated to his counsel, the Court’s role is to assess what has been redacted, and not what has not been.
[42] There is no checklist of items that go into the determination of whether Global Affairs could reasonably expect that harm would result with the disclosure of the information being sought by Professor Imai. At the trial level in Do-Ky FC, in reference to the refusal to disclose diplomatic notes pursuant to section 15 of the Act, Mr. Justice Nadon, prior to his appointment to the Federal Court of Appeal, summarized the perspective that the Court would be considering at pages 923–924:
While no general rules as to the sufficiency of evidence in a section 14 [sic] case can be laid down, what the Court is looking for is support for the honestly held but perhaps subjective opinions of the Government witnesses based on general references to the record. Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged. The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged.
[43] Professor Imai submits that what Global Affairs appears to be doing, at least from the public record, is using subsection 15(1) to shield Canada from embarrassment and that the only conceivable harm disclosing the records could cause is harm to Canada’s international reputation if the records show that it behaved contrary to its policies and public statements; subsection 15(1) cannot be used, argues Professor Imai, as a tool to hide misconduct or embarrassing government behaviour and to do so is a reviewable error (Bronskill at para 131; Canada (Attorney General) v Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar, 2007 FC 766 at para 58). The Minister submits that Professor Imai’s assertion that Global Affairs’ use of subsection 15(1) is simply an attempt to shield the government from embarrassment is but a bald allegation with no evidence to this effect.
[44] The Minister submits that the evidence clearly demonstrates a reasonable expectation that the disclosure of the information would result in probable harm to Canada’s credibility with the Government of Guatemala and other foreign nations, to the integrity and credibility of the Commission, and to Canada’s relations with other international organizations. Global Affairs argues that any reasonable person would expect this harm to result from the release of the redacted information (Do-Ky FC at p 923). In addition, the Minister argues that, contrary to Professor Imai’s assertions, there exists evidence, albeit confidential, of a “clear and direct connection” and adds that evidence of harm is self-evident from the rationale Global Affairs considered and the redacted information itself, which are unavailable to Professor Imai because they are confidential. In any event, Global Affairs submits that Goldcorp’s evolving corporate status is irrelevant to the issue of whether the information is protected by subsection 15(1) of the Act.
[45] I appreciate that it is often difficult to assess the linkage between the evidence and the purported harm from public versions of affidavits. Here, the public version of Ms. Lafave’s affidavit sets out the process followed by Global Affairs to determine the application of subsection 15(1) of the Act, the determinations made with respect to the reasonable expectation of probable harm, and the considerations and determinations made in its exercise of discretion to apply subsection 15(1) in order to exempt the information. Admittedly, the assertions are broad and set out in general terms, but as stated by Ms. Lafave during her cross-examination, the direct links may be found in the confidential portions of her information.
[46] Professor Imai argues that it is not enough to say that the information constitutes “diplomatic correspondence” for the exemption under subsection 15(1) to apply as there is no class exemption for diplomatic correspondence or notes and “no presumption that such notes contain information the disclosure of which could reasonably be expected to be injurious to the conduct of international relations” (Do-Ky v Canada (Minister of Foreign Affairs and International Trade), 1999 CanLII 8083, 241 NR 308 (FCA) at para 8 [Do-Ky FCA]).
[47] I agree, however, the Minister is not proposing that the exempted information constitutes diplomatic correspondence. Clearly it does not as the exempted information is contained only in briefing notes and internal emails. I accept that in support of her position, the Minister cited in her written materials a passage from the trial division decision in Do-Ky FC, a case which involved the issue of whether the disclosure of a diplomatic note could be exempted under subsection 15(1) of the Act, however, the Minister’s position is that Global Affairs applied the subsection 15(1) exemption to protect information, the disclosure of which would compromise Canada’s diplomatic relationship with the Government of Guatemala and therefore be harmful to international affairs, and not that the exempted information constituted diplomatic correspondence. Rather, I do take the Federal Court of Appeal decision in Do-Ky FCA to stand for the proposition that harm from disclosure may be self-evident from the nature of the information itself but that in the end, it comes down to the evidence.
[48] As regards any claim that the redacted information may contain frank or critical opinion or statements the disclosure of which may reasonably jeopardize Canada’s relationship with the Government of Guatemala, the OIC or the Commission, Professor Imai argues that the Minister is trying to draw an analogy with the situation described in the Federal Court decision in Attaran v Canada (Foreign Affairs), 2009 FC 339 [Attaran FC], where the Court stated at paragraph 48:
[48] The Court cannot ignore, discount or substitute the Court’s opinion for the clear evidence and opinion of a commander in the Canadian forces and a senior official at the Department of Foreign Affairs and International Trade that public disclosure of the redactions in these documents can reasonably be expected to be injurious to the conduct of Canada’s international affairs with Afghanistan. The fact that other countries and the Afghanistan Independent Human Rights Commission have repeatedly reported on torture in Afghan