In Canada (Attorney General) v. British Columbia Civil Liberties Association, 2024 FC 853, the British Columbia Civil Liberties Association (BCCLA) made a complaint to the Security Intelligence Review Committee (SIRC) in 2014.
BCCLA alleged that the Canadian Security Intelligence Service (CSIS) investigated individuals and groups who were lawfully protesting against the Northern Gateway Pipeline Project and shared that information with the National Energy Board (NEB) and private sector members of the petroleum industry, amounting to improper and unlawful actions as well as violated the rights to freedom of thought, belief, opinion, expression and association under the Charter.
It said that CSIS targeted specific groups as potential security threats warranting their investigation due to their advocacy for the protection of environment and wildlife. The groups were identified as Leadnow, ForestEthics Advocacy Association, the Council of Canadians, the Dogwood Initiative, EcoSociety, the Sierra Club of British Columbia and Idle No More.
It was said that “BCCLA highlighted its concern about the chilling effects that result from a security intelligence service targeting groups and individuals that are engaging lawfully with issues of significant public interest and importance.” The complaint was dismissed finding that the allegations were not supported by the evidence.
BCCLA was given a redacted version of the SIRC’s report, and later the attorney general (AGC) provided it with a less redacted version of the report. However, many redactions still remained to which the AGC argued that disclosing them would be injurious to national security.
BCCLA applied for a judicial review of the decision and asked that SIRC transmit all relevant material in its possession to the Court and BCCLA. SIRC had objected to disclosing parts of the Certified Tribunal Record (CTR), on the grounds that it contained about 3,340 pages of unredacted classified information and would be inappropriate to produce until the AGC reviewed it for national security purposes.
“Having identified information in the CTR the disclosure of which was objected to on national security grounds, the AGC brought the present application under [Canada Evidence Act] section 38.04 for an order confirming the claims for the prohibition of disclosure of that information,” wrote Justice John Norris.
BCCLA had to establish that “the information is in all likelihood relevant evidence” said to be a low threshold while the AGC had to establish that injury would result from disclosure. It must “demonstrate a probability of injury, not merely its possibility to national security.”
“On one side of the scale, there is a public interest in ensuring that justice is done in the underlying proceeding. The assessment of this interest involves, among other things, the issues at stake in that proceeding and the usefulness of the withheld information for BCCLA in advancing its application for judicial review,” wrote Justice Norris.
“I must also consider whether there are ways to limit the injury that would be caused by disclosure while still making information available for use in the underlying proceeding when this is warranted. Such measures include approving a summary of the redacted information and making a confidentiality order.”
He said that while the information in the SIRC’s report was said to be indisputably important, it did not follow that every piece of classified information in the CSIS Books of Documents that was considered by SIRC was of the same importance as the information in the report, or even at all. Redactions to the report itself were said to risk hampering the fundamental methodology of meaningful and effective judicial review.
The court was satisfied that the report was of the utmost importance for the underlying application for judicial review. However, despite the classified information in the CSIS records and testimony being relevant, its importance “varies depending on the nature of the information and its materiality to the issues raised in the underlying application.”
Disclosure of the contentious information was found to be injurious to national security because of the evidence and submissions presented at the SIRC’s in camera and ex parte that “disclosing contentious information in breach of the Investigation Principle” would impair CSIS’s ability to operate effectively.
“A security intelligence agency like CSIS cannot operate effectively if present or past subjects of its investigations know they are or were of interest to the Service. Such information would allow the subjects to take steps to evade or frustrate the Service’s investigative efforts,” said Justice Norris. “It would also reveal the state of the Service’s knowledge of them at a given time, which in turn could reveal the nature and intensity of its investigations as well as potential gaps in its capabilities.”
He was satisfied that there was a public interest in maintaining the secrecy of the contentious information.
“In relation to the contentious classified documents in the Books of Documents, I agree with the AGC that ordering further lifts or linking summaries to specific documents (apart from six documents) would cause injury to protected interests and that this injury is not outweighed by the contribution doing so would make to the ability of the BCCLA to advance the underlying application for judicial review.”
He further authorized disclosure of the classified CTR to the judge seized with the underlying judicial review application. A public direction was said to be issued to the parties setting out the next steps in the matter. The AGC’s application was allowed in part.
Counsel for BBCLA, Paul Champ of Champ & Associates, confirmed with Law360 that they have issued a notice of appeal for the decision.
“The Appellant appeals against Justice Norris’ decision and order that confidential information can be disclosed to the judge in the underlying proceeding while still being withheld from a party in the context of this case,” the notice read. “Secret evidence is inimical to our democratic system of constitutional government and the rule of law and is contrary to fundamental principles of natural justice. Such departures from the common law require express statutory authorization.”
“The Appellant also appeals against Justice Norris’ decision to uphold the prohibition on the disclosure of the names of petroleum industry companies that participated in briefings and hospitality events with CSIS. All CSIS activities do not amount to investigations, and it was an error to withhold this information on the basis of the ‘Investigation Principle.’”
Counsel for the applicant were Nathalie Benoit, Andre Seguin, Véronique Fortin, Tara-Marie Andronek, Michael Wonham and Christine Arcari.
The respondent was also represented by Bijon Roy.
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