Saying no to detours around the Canada Evidence Act

NSL, ch. 10, pp. 400 et seq.

As discussed in a prior post, the Federal Court last year issued a Canada Evidence Act decision in the Almalki matter.  That decision was appealed by the government.  In a decision released in June, the Federal Court of Appeal allowed that appeal, but only in (the least important) part.

The part that was allowed consists of the Federal Court of Appeal second guessing the lower court's decision in relation to a "small number of documents".  Specifically, it wrote: "We are satisfied that the judge in his application of the Ribic test either discounted the evidence of injury or did not give it the weight that it deserved. It could also be that at the same time he gave undue weight to the respondent's claim of prejudice. This led him in the balancing test to give undue weight to the public interest in disclosure of the information. In turn, this is reflected in some of the summaries of the information where injury is not minimized as mandated by the Act. In so doing, he committed palpable and overriding errors" (at para.37).  It is difficult to know what to make of this, since no more information is provided. 

More significantly, the Federal Court of Appeal rejected a government effort to do an end-run around the Canada Evidence Act's balancing of national security risk against the public interest in disclosure.  The government urged that instead of applying the Canada Evidence Act calculus, the Federal Court should have deployed the informer privilege doctrine, a concept discussed in National Security Law, at p.405.  (Exactly to what information this privilege was to be applied is a little unclear -- the Court refers to "CSIS human sources").  Informer privilege is a much more absolute bar on disclosure than is the Canada Evidence Act, and can be overcome only in very narrow circumstances (namely, where innocence is at stake). 

Quite properly, the Federal Court of Appeal rejected the government's arguments: "to accede to the Crown's demand that the informer privilege be extended to CSIS human sources would run counter to section 38 of the Act and the express will of Parliament" (at para. 26).  "Not only is this Court ill-equipped to assess the appropriateness of extending to CSIS human sources the informer privilege, I think it would be usurping Parliament's function if it were to do so and defeat Parliament's intent expressed in section 38 of the Act that there be a balancing of the interests regarding the information, including that relating to the identity of the source" (at para. 30).

The Court makes a key point. The fact of the matter is that Canadian information law already provides a buffet of different secrecy protections tied to national security, but varying in applicability, scope and potency: Canada Evidence Act; Security of Information Act (including its unconstitutional section 4 and its ambiguous whistleblower protections for persons permanently bound be secrecy); CSIS Act; common law privileges; Access to Information Act exemptions and exclusions; parliamentary privileges to compel information; etc..  National security and control over information is an area clamouring for a legislative clean-up.

But be careful what you wish for.  I think it might be better to muddle through with this current mess than live with a new, legislated master-plan produced by a government consistently disinclined to what I'll call "rational transparency" -- that is, claiming national security confidentiality only when warranted.