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Canadian Security Intelligence Service

Canadian Security Intelligence Service human source privilege not applicable to designated judge

Issue arose as to proper procedure to be followed when government claimed privilege pursuant to s. 18.1 of Canadian Security Intelligence Service Act (CSIS Act) applied to in camera ex parte proceeding. As result of Federal Court of Appeal decision, class privilege applied to facts involving CSIS human source. At issue was whether redacted information produced may be viewed in un-redacted form by designated judge. Purposes of privilege set out in s. 18.1 of CSIS Act were to ensure that identity of CSIS human sources remained confidential to protect their life and security, and to encourage individuals to provide information to CSIS. In any proceeding before court, disclosure of identity of CSIS human source or any information from which identity of CSIS human source may be identified was forbidden, but order could be sought declaring that individual was not CSIS human source or that information sought did not identify CSIS human source or that identity of CSIS human source was essential to establishing innocence of accused. CSIS human source privilege of s. 18.1 of CSIS Act was not applicable to designated judge. Section 38.01(6)(d) of Canada Evidence Act was strong indicator that Parliament expected designated judge to receive extremely sensitive national security information, as designated judge was excluded from ambit of s. 38 scheme which prohibited disclosure of sensitive information. As part of overarching judicial duties to ensure proper administration of justice and fairness in ex parte, in camera proceedings, designated judge could raise and address disclosure without application triggered by specified persons. Designated judge could receive disclosure of un-redacted information because judge was not counsel for government’s litigation opponent within scope of meaning of disclosure in s. 18.1(2) of CSIS Act. Section 18.1 of CSIS Act must be interpreted in manner that allowed designated judge to perform his or her duties as independent adjudicator, and designated judge must be provided un-redacted information in order to determine whether privilege existed or if any exceptions applied. Parliament generally explicitly stated in law when it intended that judges were to be prohibited from examining information to determine whether claim of privilege was valid or to verify fact related to CSIS human source. CSIS had elevated duty of candour toward designated judges presiding over ex parte, in camera hearings, and consequences of strictly and literally interpreting s. 18.1 of CSIS human source privilege would significantly impact ability of designated judge to ensure fairness and proper administration of justice. Strict and literal interpretation of s. 18.1 of CSIS Act was rejected, and based on reading of CSIS Act as whole and in practical context in which it was applied, CSIS human source privilege could not be applicable to designated judge. Legislator did not intend to restrict designated judge’s ability to properly fulfil duties of ensuring fairness and maintaining proper administration of justice by limiting power to question and address appropriateness of communicated information over course of ex parte, in camera proceedings.

Unnamed Person, Re (2017), 2017 CarswellNat 1301, 2017 CarswellNat 1302, 2017 FC 136, 2017 CF 136, Simon Noël J. (F.C.).

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