Feds cite ‘immediate and present-day harm’ to U.S. ties as court orders release of some Nazi resettlement records  

The federal government's reliance on hypothetical harms to the Canada-United States relationship and other shifting geopolitical tensions makes little sense in the fight to protect secrets about the resettlement of Nazis in Canada after the Second World War, say observers.

In a recent Federal Court case, the government argued that releasing unredacted information about the historic resettlement of alleged Nazis and Nazi collaborators in Canada could injure Ottawa's relationship with the U.S. 

Federal Court justice Simon Fothergill ruled on Sept. 1 that the government’s use of an exemption under the Access to Information Act (ATIA) was “unreasonable” to block the release of information, and ordered its disclosure.

The act's Sec. 15 allows the government not to release information if it “could reasonably be expected to be injurious to the conduct of international affairs.”  

In question was B'nai Brith Canada’s attempt to unseal redacted portions of a 1986 report—the Rodal Report—compiled for the Deschênes Commission on war criminals in Canada. While aspects of the report have been publicized, certain sections have remained secret, including on the role that American intelligence officials played in the resettlement. The action was brought by the Jewish Canadian advocacy organization against the federal heritage minister, currently Canadian Identity and Culture Minister Marc Miller (Ville-Marie–Le Sud-Ouest–Île-des-Soeurs, Que.).

The government argued that releasing information about those officials would "harm international relations with the United States, who entrusted us with this information on a confidential basis, and would damage Canada’s reputation as an American ally and harm future relationships with their government.”

“Given that recent consultations with their government confirmed that Canada would protect these details, their release would cause immediate and present-day harm to that relationship,” the government argued. 

“The harm to our relationship with that nation is directly tied to the information in question. Tensions exist between these nations and are likely to be exacerbated by disclosing this information,” the government contended. 

Fothergill ruled that the “general statement” of harm is “unsupported by direct evidence.” 

“A bald statement of ongoing ‘tensions’ between Canada and the United States is not a sufficient basis to refuse disclosure of very specific information related to efforts by the United States to resettle suspected Nazis and Nazi collaborators in Canada following [the Second World War],” he continued. 

Former Canadian diplomat Artur Wilczynski, who also worked in intelligence in the federal government, said that the rationale to not release information is “overstated and hyperbolic.” 

“At a time when the prime minister of Canada himself acknowledges that we’re in the midst of a trade war, to somehow contextualize the release of decades-old information about how Canada and its partners relocated Nazi and Nazi collaborators in Canada is over the top,” said Wilczynski, who sits on the board of the Centre for Holocaust Education and Scholarship. 

“The Government of Canada—in particular on national security issues—needs to be far more transparent. That transparency is essential for Canadians to have trust, including trust in our national security institutions,” he said, remarking that he hopes that the decision is not appealed. 

Former diplomat Jon Allen, who served as Canada’s ambassador to Israel, said that given the historic nature of the information, it would be “highly unlikely” that the release “would harm seriously or probably in any way the current relationship” between Canada and the U.S. 

“There is this history of Canada basically using the foreign prejudice provision in the Access to Information Act to just refuse to hand out information that has, in fact, really no bearing whatsoever on current foreign relations issues,” he said. 

The government's evolving explanation  

Richard Robertson, B'nai Brith Canada’s director of research and advocacy, said the government has had an evolving explanation of why it can't release the information based on “contemporaneous geopolitics issues.”  

“First, it was the Russia-Ukraine conflict. Now it is deteriorating relations with the U.S.,” he said.

“The historical nature of the information we are seeking the disclosure of prevents it from having a material impact on contemporary geopolitical relations,” he said.

Robertson said the process has been “frustratingly drawn out.”

“This is information that is of immense significance to all Canadians. Canadians deserve to know about all chapters of our nation’s history, even the dark and sordid chapters,” he said. “We deserve the right to know about the history of our nation and to learn from lessons from our past, and also to heal from any trauma caused by shortcomings of our government.”

Fothergill ruled that the public’s right to know “must always be at the heart of an access to information request,” finding that the federal government “did not properly weight either the public’s right to know or the historical importance of the information withheld from the Rodal report.”  

“Instead, the minister’s discretion was exercised solely on the basis of GAC’s [Global Affairs Canada’s] general assertion of harm to Canada’s international relations if information were disclosed contrary to the United States’ expressed preference that it remain confidential. This was plainly insufficient,” Fothergill ruled. 

The Federal Court found that the government didn’t provide specific evidence of what the harm of disclosure would be beyond stating it could exist. 

“The minister has not met his heavy onus of demonstrating that disclosure of the information withheld pursuant to s. 15 of the ATIA could reasonably be expected to cause injury to Canada’s international relation, or to the detection, prevention, or suppression of subversive or hostile activities,” the decision notes. 

Decision raises questions over use of foreign relations exemption: prof

Sec. 15 of the Access to Information Act is heavily used by the government to prevent the release of much information that touches on Canada’s foreign affairs. 

“This judgement sort of helps reveal how Sec. 15 is used inappropriately by the government frequently, and even on records going back to the 1940s and '50s,” said University of Toronto professor Timothy Sayle, who uses declassified records in his research. 

While it’s clear the government has to make a “real case” of probable injury, Sayle remarked that instead it applies the section “far too broadly, and with a different understanding of what the language in the act means.” 

He said in normal times it would be “silly” for the government to argue that the release of the information would have “any impact” on Canada-U.S. relations, but added that he is “somewhat sympathetic” to the argument that the current American administration is “unpredictable and it is unclear what particular thing that the president or his administration might seize on.” 

“Just about anything is something the U.S. government might seize upon to threaten Canada,” Sayle said. “But that’s a hypothetical, and it’s really not captured by the law. So, I think it’s unlikely, but it doesn’t mean it’s impossible that this could be problematic with current relations with the current U.S. government.”  

He said that what was “most striking” in the decision was “how little effort the government put into making its case.” 

“Perhaps the explanation is that the government expected that their word would be taken as gospel,” Sayle said. “There are very minimal presentations that the government is making here, and I’m quite surprised.” 

The government cited GAC's “considerable institutional expertise in the conduct of international diplomacy,” and argued that the Federal Court should “defer to GAC’s assessment of potential harm,” according to the ruling. 

The decision stated that the government also “maintains that the evidence submitted regarding consultations between GAC and U.S. officials is sufficient to establish harm.”

Those consultations were on whether the information should be released, as opposed to gauging feedback about any specific harm. 

nmoss@hilltimes.com

The Hill Times