Government minister claims order may impact privacy rights of non-parties to detention review
Canada’s Federal Court stayed a production order that would compel the disclosure of the personal information and immigration histories of a potentially large class, including anyone that the Canada Border Services Agency (CBSA) had removed to Somalia.
In Canada (Public Safety and Emergency Preparedness) v. Sharif, 2025 CanLII 127091 (FC), the respondent was a Somali citizen who received refugee status in Egypt in 2013 and resettled as a permanent resident in Canada in 2019.
The relevant authorities hospitalized the respondent as a psychiatric patient several times and convicted him of drug trafficking and sexual assault.
Due to the latter conviction, the Immigration Division (ID) found the respondent inadmissible to Canada under s. 36(1)(a) of the Immigration and Refugee Protection Act, 2001. Thus, he lost his permanent resident status and faced deportation to Somalia.
On May 16, authorities began holding the respondent in immigration detention. Over eight detention reviews, the ID found that the respondent presented a flight risk and a public danger.
On Oct. 17, the Ontario Court of Appeal ruled that removing the respondent from Canada before the final determination of his motion for leave to appeal and/or appeal would result in irreparable harm, specifically the loss of his appeal rights.
On Nov. 10, the ID issued a production order as part of an ongoing detention review. On Nov. 14, the minister of public safety and emergency preparedness received an extension of time to meet the production order.
On Nov. 20, as the applicant in the present matter, the minister applied for a reconsideration of the production order. The next day, the ID refused to reconsider. On Nov. 24, the ID directed the applicant to produce the remaining documents by Nov. 26.
On Nov. 25, the applicant filed an application for leave and judicial review (ALJR) of the production order. The following day, the applicant moved to stay the effects of the production order until the Federal Court resolved the ALJR.
Production order stayed
The Federal Court stayed the production order until the determination of the underlying application for leave and judicial review. The court ruled that the applicant met all three prongs of the tripartite test in Toth v Canada (Minister of Employment and Immigration), 1988 CanLII 1420 (FCA).
First, regarding whether there was a serious issue, the applicant alleged that the ID issued a broad and effectively unworkable production order without weighing the legal and factual constraints of the requested documents.
The applicant argued that the production order, which lacked temporal or other limits, breached the privacy rights of affected third parties and covered information regarding a large class of individuals, namely anyone the CBSA had ever deported to Somalia.
The respondent countered that the documents sought were necessary and relevant. He added that the applicant could disclose the requested records upon protecting third-party privacy interests and failed to claim privilege over the records under the framework in Brown v Canada, 2020 FCA 130.
The court held that the production order engaged a serious issue. Pursuant to Brown, the court noted that the applicant had an obligation to disclose to a detainee evidence relied upon when arguing removals, limited to information relevant to the detainee’s specific circumstances.
The court added that it should weigh the respondent’s right to respond fully to the case he had to meet against witness privacy and other competing interests.
In this case, the court determined that the production order:
- was excessively broad
- sought documents and information for an unlimited scope and time period, without referring to specific dates or restrictions
- covered all communications between the CBSA and Somali authorities, including information relating to removals, the Stakeholder Engagement Unit, liaison officers, migration integrity officers, and Somali authorities in Canada, the US, Somalia, and Kenya
- referred to information regarding the removal procedure from Nairobi to Somalia, including details on escorts
The court found that the ID had insufficiently explained how these records were relevant to the case and whether it had carefully weighed the production order’s impacts or analyzed the competing interests, such as the privacy rights of third parties with immigration histories covered by the order.
Second, the court ruled that the applicant showed a real probability of irreparable harm unless it stayed the production order, given the risk of unlawfully compelled disclosure and the production order’s excessively broad wording.
The court explained that the applicant could not undo any disclosure of records or meaningfully compensate any resulting harm with damages, especially if the information raised privacy concerns.
Third, regarding the balance of convenience, the applicant emphasized that the respondent requested information that was irrelevant to his case and that would engage affected third-party privacy interests.
The court concluded that the balance of convenience favoured the applicant, given that the applicant had come to the court with clean hands, requested a narrow and specific injunction, and was challenging a production order that was not moot.
