Federal Court of Canada

02/17/2017 | Press release | Distributed by Public on 02/17/2017 11:11

CSIS Human Source Privilege (Judgment and Reasons)

Date: Docket:

Citation: 2017 FC 136‌

Ottawa, Ontario, |

PRESENT: The Honourable Mr. Justice S. Noël

BETWEEN:

JUDGMENT AND REASONS‌‌‌

(Note: paragraph 2 was redacted and replaced in this public Judgment and Reasons)

  1. INTRODUCTION 2

  2. OPPOSING COUNSEL'S SUBMISSIONS 4

  3. COUNSEL FOR THE GOVERNMENT'S SUBMISSIONS 8

  4. ISSUE 11

  5. ANALYSIS 11

  6. Overview of the New CSIS Human Source Privilege 11

  7. General Findings and Principles of Interpretation 13

  8. Effects of the New Privilege on Various Areas of Law Relating to National Security . 22 (1) Warrant Applications Under the CSIS Act 22

  9. Certificate Proceedings Under IRPA 23

  10. Section 38 of the Canada Evidence Act 24

  11. Duty of Candour 26

  12. CONCLUSION 28

  13. INTRODUCTION

    [1] Given that parts of these reasons will be redacted in order to allow for publication, certain terms | have been replaced by much

    broader terms in order to obfuscate information which may tend to identify the case and type of proceeding before the Court for national security reasons. |

    The purpose of this approach is to make these reasons as public as possible without disclosing anything that could be interpreted as being related to a particular file or proceeding.

    [2] [See note above] An issue arose, in a proceeding before the Court, regarding the proper procedure to be followed when the Government claims a privilege pursuant to section 18.1 of the Canadian Security Intelligence Service Act (CSIS Act) applies in an in camera, ex parte proceeding.

    [3] As a result, Government Counsel and Opposing Counsel disagreed on the applicability of the privilege claimed. They also disagreed, if a privilege does indeed exist, on whether it forbids the designated judge from reading the un-redacted operational report.

    [4] The undersigned received submissions from Government Counsel and Opposing Counsel on both issues and took the matter under reserve. Since the issues of scope and temporal applicability of the privilege were the subject matters of an appeal to the Federal Court of Appeal

    in Attorney General of Canada v Almalki, 2016 FCA 195 ("Almalki 2016"), the matter was put on hold until that decision was rendered in July 2016.

    [5] As a result of the Amalki 2016 decision, the issue of privilege is now resolved: a class privilege applies to the facts involving a CSIS human source in the present case.

    [6] The only remaining issue before the Court today is whether the redacted information produced to the designated judge | may be

    viewed in its un-redacted form by both the Court and Opposing Counsel, the designated judge only, or not at all. Opposing Counsel first contend that the un-redacted information ought never to be produced to any person. Second, alternatively, they contended that both Opposing Counsel and the designated judge ought to receive the information. Government Counsel take the position that the s. 18.1 CSIS human source privilege is not meant to be applicable to the designated judge. This is the only legal issue I will be dealing with. In regard to the question of whether or not the Opposing Counsel have a right to view the redacted information, the submissions presented are so limited that I must leave this issue to be resolved in another proceeding.

  14. OPPOSING COUNSEL'S SUBMISSIONS

  15. [7] In regard to whether or not the designated judge may access the un-redacted operational report, the Opposing Counsel argue that the disclosure of the information to the Court in the absence of an application pursuant to subsection 18.1(4) was an inadvertent breach of the s. 18.1 privilege. The privilege should be restored by the withdrawal of non-redacted operational report.

    [8] The Opposing Counsel's written submissions addressing whether the s. 18.1 CSIS human source privilege is applicable to the designated judge were particularly succinct. I insert them here:

    "[16] The [Opposing Counsel] consider s.18.1 to be unconstitutional, in that it purports to deny the judge and [Opposing Counsel] access to any information from which the identity of a human source could be inferred, without distinguishing among circumstances in which such disclosure might be required in the interests of justice, and thus interferes with their constitutionally mandated roles pursuant to the Charter. However, this is not a circumstance in which the [Opposing Counsel] consider it appropriate to launch a constitutional challenge."

    [9] The Opposing Counsel added to the brief written submissions on the topic over the course of a hearing on the matter. First and foremost, Opposing Counsel submitted that the new

    s. 18.1 statutory regime must be interpreted strictly and literally. Following the enactment of the

    s. 18.1 CSIS human source privilege, the source is on equal footing with the Service in regard to taking decisions relating to the disclosure of information identifying, or tending to identify the identity of the intelligence human source. Opposing Counsel contend that, if the Ministers cannot obtain the consent of both the Director of the CSIS and of the CSIS human source to provide the designated judge with information identifying, or tending to identify the CSIS human source, then the designated judge must evaluate the validity of the case before him or her accordingly [see Transcript page 40 for details].

    [10] In regard to the duty to provide information stemming from Ruby v Canada (Solicitor General), [2002] 4 SCR 3, 2002 SCC 75 ("Ruby"), Opposing Counsel contend that the s. 18.1 scheme of necessitating consent from the Director of the CSIS and the CSIS human source to