The Federal Court released today an interlocutory decision in a long running saga that addresses aspects of the Harper government's first 2015 security bill, C-44. At risk of being accused of "insta-analysis", a few quick meditations.
This decision is a collateral judgment in the endless litigation over the government conduct in what became the matters examined by the Iacobucci inquiry.
That post-inquiry lawsuit is now infamous -- dragging on for years as the government has used every effort to stave off the disclosure plaintiffs have sought in order to prove their case. This judgment is the latest in the series of lengthy disclosure disputes.
Basically, the government can use s.38 of the Canada Evidence Act to protect national security information from disclosure, but to do so it has to persuade a Federal Court judge to order non-disclosure. Here, at issue is the identity of some of the CSIS protagonists in the case, presumably both officers and sources. Their identity has always been carefully protected, traditionally on a case-by-case basis by the Federal Court when such matters come before it.
But the courts have resisted the idea that CSIS sources automatically receive protection in relation to anything that might identify them -- not least because CSIS has traditionally handed out source protection with considerable liberty and seemingly without much consideration of the downstream impact on justice issues.
So part of C-44 responded to this judicial reticence by legislating an automatic source identity protection, prioritizing CSIS's interests over that of others in the justice system.
The issue before the court in the recently decided matter, therefore, was whether this new automatic source identity protection applied to a case that has been underway for years. To cut to the chase, the court said "no". Basically, and subject to exceptions, statutes don't apply retroactively [or, as my colleague John Mark Keyes correctly points out in relation to this case, retrospectively] unless parliament expressly makes them retroactive [or retrospective]. That didn't happen here, and none of the exceptions applied. So the government is out of luck and the question of disclosure here will proceed under the pre-C-44 legal regime (with the classic, already very protective case-by-case assessment of whether identifying information should be disclosed, balancing security against other interests.)
What caught my eye? Para 93. It doesn't go there, quite, but the court raises the spectre of something that lurks in this area: what do you do when the (overbroad) C-44 source protection acts to impair the litigant's rights to a remedy for the breach of a constitutionally protected interest?
My thinking, such as it is, goes something like this: a statutory provision that has the effect of blocking a remedy for a constitutional breach should itself be unconstitutional. After all, one of the first cliches one learns in law school is: "there is no right without a remedy".
Now, as best I know (not having actually researched the matter for more than a few minutes), this question is a novel issue — because the clear right to sue for damages for constitutional breaches is itself new. (The Supreme Court may well say something important on this matter in this case, when it is decided).
But as it stands now, I am really hard pressed to imagine that you can have right to sue for Charter breaches and the right to s.24 remedy, but then the government can turn around and create a statutory provision that stands in the way of your actually being able to make out the case for a remedy. Put another way, "where vindication of a constitutional right is at stake" should be another carve out from the C-44 source protection rules, especially if there is a means to square vindication of the right with the legitimate security interest. (One example of a work-around would be the use of security-cleared special advocates to advance the plaintiff's case in civil litigation).
The court doesn't get there in para. 93, because it was not necessary to decide the case on this issue. But what it says about overbroad source protection having an impact on the defence of a substantive Charter right should certainly make the government sit up and do a rethink on the question of source protection. As Kent Roach and I have argued in False Security, the present C-44 arrangement is excessive and will have knock on effects on, eg, prosecutions. This case raises yet another manifestation of negative knock-on effects.
And while I'm talking about this case: I personally find it embarrassing and more than a little disturbing that after all the findings in the Iacobucco inquiry pointing to the likely affect that information sharing by the Canadian government had on the maltreatment of the plaintiffs in foreign jails, the government chose to fight over the remedy in civil court, rather than settle (as they did in the Arar matter). I truly hope “settling this case” is on the agenda for the current government.