Federal Appeal


Crown

Discovery
Canadian Security Intelligence Service Act provided that identity of human sources be confidential

Respondents brought action claiming damages arising from alleged breach of rights and freedoms protected under Canadian Charter of Rights and Freedoms. Attorney General of Canada brought applications pursuant to s. 38 of Canada Evidence Act (CEA). Amended s. 18.1 of Canadian Security Intelligence Service Act (CSISA) provided that identity of human sources, or information that would disclose identity of human sources, was to be kept confidential. Federal Court judge concluded that application of s. 18.1 of CSISA in circumstances of case would be invalid. Attorney General of Canada appealed. Appeal allowed. Section 18.1 of CSISA was not intended to have retroactive effect. Section 18.1 was not merely procedural rule of evidence but it created substantive right in favour of human sources based on status of individuals and special relationship with Canadian Security Intelligence Service, and it trumped public interest in disclosure of all evidence by taking it out of Federal Court jurisdiction under s. 38 of CEA. Once individual met criteria set out in s. 2 of CSISA he or she was source and kept status on ongoing basis, and presumption against retrospective application of statutory provisions under review was not in play. Section 18.1 of CSISA deprived respondents of benefit of more liberal versions of privilege set out in s. 38 of CEA. Legislature intended to protect disclosure of information described in s. 18.1 of CSISA in all proceedings. Presumption against interference with vested rights was rebutted, and s. 18.1 of CSISA was applicable to s. 38 proceeding.

Canada (Attorney General) v. Almalki (July 8, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-520-15) Decision at 261 A.C.W.S. (3d) 102 was reversed. 269 A.C.W.S. (3d) 71.

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