[2012] 2 F.C.R. 594
A-428-10
2011 FCA 199
Attorney General of Canada (Appellant)
v.
Abdullah Almalki, Khuzaimah Kalifah, Abdulrahman Almalki, by his Litigation Guardian Khuzaimah Kalifah, Sajeda Almalki by her Litigation Guardian Khuzaimah Kalifah, Muaz Almalki, by his Litigation Guardian Khuzaimah Kalifah, Zakariyy a Almalki, by his Litigation Guardian Khuzaimah Kalifah, Nadim Almalki, Fatima Almalki, Ahmad Abou-Elmaati, Badr Abou-Elmaati, Samira Al-Shallash, Rasha Abou-Elmaati, Muayyed Nureddin, Abdul Jabbar Nureddin, Fadila Siddiqu, Mofak Nureddin, Aydin Nureddin, Yashar Nureddin, Ahmed Nureddin, Sarab Nureddin, Byda Nureddin (Respondents)
Indexed as: Canada (Attorney General) v. Almalki
Federal Court of Appeal, Blais C.J., Létourneau and Trudel JJ.A.—Ottawa, May 31 and June 13, 2011.
Evidence — Appeal from Federal Court decision ordering disclosure of sensitive, potentially injurious information as defined in Canada Evidence Act, s. 38 — Appellant seeking order confirming prohibition of disclosure, changes to disclosure order to limit injury to international relations or national defence or national security — Whether Federal Court erring in failing to apply informer privilege to Canadian Security Intelligence Service (CSIS) human sources, in its treatment of third-party rule in ordering disclosure of certain information — Federal Court not erring when not applying informer privilege rule to CSIS human sources — Informer privilege absolute — Confidentiality of information relating to international relations, national defence, national security not absolute under s. 38 — Extending informer privilege to CSIS human sources thus running counter to s. 38, express will of Parliament — Procedure for determining claim of privilege must remain flexible — Federal Court erring in treatment of third-party rule, application of third part of Ribic v. Canada (Attorney General) test, giving undue weight to public interest in disclosure — As such, some of the summaries of information not minimizing injury as mandated by Act — Appeal allowed.
Security Intelligence — Federal Court ordering disclosure of sensitive, potentially injurious information as defined in Canada Evidence Act, s. 38 — Whether informer privilege rule should be applied to Canadian Security Intelligence Service (CSIS) human sources — Informer privilege absolute whereas confidentiality of information relating to international relations, national defence, national security not absolute under s. 38 — Canadian Security Intelligence Service Act, s. 18, stating it is an offence to disclose identity of an informer or CSIS employee engaged in covert activities, not creating absolute prohibition against disclosure, compatible with s. 38.
This was an appeal from a Federal Court decision ordering the disclosure of documents containing “sensitive information” and “potentially injurious information” as defined in section 38 of the Canada Evidence Act (Act).
The appellant sought an order confirming the prohibition of disclosure for some documents pursuant to subsection 38.06(3) of the Act and, for others, changes to the disclosure order to limit injury to international relations or national defence or national security as authorized by subsection 38.06(2) of the Act. The appellant argued that the Federal Court should have applied the informer privilege rule to Canadian Security Intelligence Service (CSIS) human sources, and erred when it applied the Ribic v. Canada (Attorney General) test and engaged in a balancing exercise of the public interests at stake.
At issue was whether the Federal Court erred in failing to apply the informer privilege rule to CSIS human sources and whether it erred in its treatment of the third-party rule when ordering the disclosure of certain information received from foreign partners.
Held, the appeal should be allowed.
The Federal Court made no error when it did not apply the informer privilege rule to CSIS human sources. The informer privilege, which is a class privilege as opposed to a case-by-case privilege, is absolute in that it cannot be balanced against other interests. The difficulties raised in R. v. National Post with the granting of a class privilege to journalists also apply herein to the granting of the informer privilege to CSIS human sources. Parliament has devised a system under section 38 wherein confidentiality of information relating to international relations, national defence and national security is not absolute, contrary to the informer privilege. Extending the informer privilege to CSIS human sources would thus run counter to section 38 and the express will of Parliament. Section 18 of the Canadian Security Intelligence Service Act (CSIS Act), which states that it is an offence to disclose the identity of an informer or a CSIS employee engaged in covert activities, does not create an absolute prohibition against disclosure. Indeed, subsection 18(2) of the CSIS Act allows a person to disclose such information “as required by any other law”. This is compatible with section 38 of the Act, which allows for disclosure pursuant to an order issued by a designated judge in the exercise of the discretion conferred by that section. Finally, the procedure to be followed when confronted with a claim of privilege must remain flexible because the manner of proceeding may be dictated by such factors as the nature of the information, the importance of the source, the extent of the prejudice to the source and national defence, national security and international relations. The judge designated pursuant to section 38 is best positioned to determine the process to be followed so as to foster the better exercise of his or her discretion in the most efficient manner.
As to its treatment of the third-party rule, the Federal Court committed palpable and overriding errors in its application of the third part of the Ribic test by either discounting the evidence of injury or by not giving it the weight that it deserved. It also gave undue weight to the respondent’s claim of prejudice. This led the Federal Court to give undue weight to the public interest in disclosure of the information, which is reflected in some of the summaries of the information where injury is not minimized as mandated by the Act.
STATUTES AND REGULATIONS CITED
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38 “judge” (as enacted by S.C. 2001, c. 41, ss. 43, 141), “participant” (as enacted idem, s. 43), “potentially injurious information” (as enacted idem), “proceeding” (as enacted idem), “prosecutor” (as enacted idem), “sensitive information” (as enacted idem), 38.01(as enacted idem), 38.02 (as enacted idem, ss. 43, 141), 38.03 (as enacted idem, s. 43), 38.031 (as enacted idem, ss. 43, 141), 38.04 (as enacted idem), 38.05 (as enacted idem, s. 43), 38.06 (as enacted idem), 38.07 (as enacted idem), 38.08 (as enacted idem), 38.09 (as enacted idem).
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 18, 19 (as am. by S.C. 1995, c. 5, s. 25(1)(d); 2003, c. 22, s. 224(z.12)(E)).
CASES CITED
applied:
Canada (Attorney General) v. Ribic, 2003 FCA 246, [2005] 1 F.C.R. 33, 185 C.C.C. (3d) 129, 320 N.R. 275, leave to appeal to S.C.C. denied October 22, 2003; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, 318 D.L.R. (4th) 1, 254 C.C.C. (3d) 469.
considered:
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1; Canada v. Furukawa, 2000 CanLII 16502, [2001] 1 C.T.C. 39, 2000 DTC 6669, 262 N.R. 262 (F.C.A.); R. v. Leipert, [1997] 1 S.C.R. 281, (1997), 143 D.L.R. (4th) 38, [1997] 3 W.W.R. 457; Bisaillon v. Keable, [1983] 2 S.C.R. 60, (1983), 2 D.L.R. (4th) 193, 4 Admin. L.R. 205; Harkat (Re), 2009 FC 204, [2009] 4 F.C.R. 370, 306 D.L.R. (4th) 269, 339 F.T.R. 65, revd in part 2012 FCA 122.
appeal from a Federal Court decision (2010 FC 1106, [2012] 2 F.C.R. 508) ordering the disclosure of documents containing “sensitive information” and “potentially injurious information” as defined in section 38 of the Canada Evidence Act. Appeal allowed.
APPEARANCES
Linda J. Wall and Catherine A. Lawrence for appellant.
Philip Tunley and Fredrick Schumann for respondents.
François Dadour as amicus curiae.
SOLICITORS OF RECORD
Attorney General of Canada for appellant.
Stockwoods LLP Barristers, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
Létourneau J.A.:
The issues on appeal
[1] The Attorney General of Canada (appellant) appeals against a decision of a designated judge of the Federal Court (Judge) [2010 FC 1106, [2012] 2 F.C.R. 508] rendered in relation to the public disclosure of “sensitive information” [as enacted by S.C. 2001, c. 41, s. 43] and “potentially injurious information” [as enacted idem] as defined in section 38 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (Act).
[2] The appellant challenges part of the Judge’s decision which ordered the disclosure of a number of documents. He seeks with respect to some of these documents an order confirming prohibition of disclosure pursuant to subsection 38.06(3) [as enacted idem] of the Act. As for the others, the demand is for changes to the disclosure order so as to limit any injury to international relations or national defence or national security as authorized by subsection 38.06(2) [as enacted idem].
[3] The appellant’s challenge raises the following issues:
(a) the standard of review;
(b) whether the Judge erred in failing to apply the common law informer privilege rule (informer privilege) to Canadian Security Intelligence Service (CSIS) human sources; and
(c) whether the Judge erred in his treatment of the so-called third-party rule when he ordered disclosure of certain information received from foreign partners.
The relevant legislative provisions
[4] For a better understanding of the process, I reproduce the relevant legislative provisions [ss. 38 “juge” (as enacted by S.C. 2001, c. 41, ss. 43, 141), “participant” (as enacted idem, s. 43), “proceeding” (as enacted idem), “prosecutor” (as enacted idem), 38.01 (as enacted idem), 38.02 (as enacted idem, ss. 43, 141), 38.03 (as enacted idem, s. 43), 38.031 (as enacted idem, ss. 43, 141), 38.04 (as enacted idem), 38.05 (as enacted idem, s. 43), 38.06 (as enacted idem), 38.07 (as enacted idem), 38.08 (as enacted idem), 38.09 (as enacted idem)]:
| Definitions |
38. The following definitions apply in this section and in sections 38.01 to 38.15. |
| “judge” |
“judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04. |
| “participant” « participant » |
“participant” means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. |
| “potentially injurious information” « renseignement potentiellement préjudiciables » |
“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. |
| “proceeding” « instance » |
“proceeding” means a proceeding before a court, person or body with jurisdiction to compel the production of information. |
| “prosecutor” « poursuivant » |
“prosecutor” means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding. |
| “sensitive information” « renseignements sensibles » |
“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. |
| Notice to Attorney General of Canada |
38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. |
| During a proceeding |
(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act. |
| Notice of disclosure from official |
(3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. |
| During a proceeding |
(4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act. |
| Military proceedings |
(5) In the case of a proceeding under Part III of the National Defence Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence. |
| Exception |
(6) This section does not apply when (a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding; (b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under section 38, this section and sections 38.02 to 38.13, 38.15 and 38.16; (c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received; or (d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule. |
| Exception |
(7) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (6)(c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter with the person presiding under subsection (2). |
| Schedule |
(8) The Governor in Council may, by order, add to or delete from the schedule a reference to any entity or purpose, or amend such a reference. |
| Disclosure prohibited |
38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding (a) information about which notice is given under any of subsections 38.01(1) to (4); (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5); (c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or (d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6). |
| Entities |
(1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given. |
| Exceptions |
(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if (a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or (b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available. |
| Authorization by Attorney General of Canada |
38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1). |
| Military proceedings |
(2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence. |
| Notice |
(3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information. |
| Disclosure agreement |
38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(2)(c), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions. |
| No application to Federal Court |
(2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2). |
| Application to Federal Court — Attorney General of Canada |
38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4). |
| Application to Federal Court — general |
(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions, (a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness; (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information. |
| Notice to Attorney General of Canada |
(3) A person who applies to the Federal Court under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada. |
| Court records |
(4) An application under this section is confidential. Subject to section 38.12, the Chief Administrator of the Courts Administration Service may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates. |
| Procedure |
(5) As soon as the Federal Court is seized of an application under this section, the judge (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter; (b) shall decide whether it is necessary to hold any hearing of the matter; (c) if he or she decides that a hearing should be held, shall (i) determine who should be given notice of the hearing, (ii) order the Attorney General of Canada to notify those persons, and (iii) determine the content and form of the notice; and (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations. |
| Disclosure agreement |
(6) After the Federal Court is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of, (a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of the information or disclosure of the facts or information subject to conditions; and (b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated. |
| Termination of Court consideration, hearing, review or appeal |
(7) Subject to subsection (6), after the Federal Court is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3), before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal. |
| Report relating to proceedings |
38.05 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge. |
| Disclosure order |
38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information. |
| Disclosure order |
(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information. |
| Order confirming prohibition |
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure. |
| Evidence |
(3.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence. |
| Introduction into evidence |
(4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2). |
| Relevant factors |
(5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding. |
| Notice of order |
38.07 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified. |
| Automatic review |
38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review. |
| Appeal to Federal Court of Appeal |
38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal. |
| Limitation period for appeal |
(2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances. |
Analysis of the Judge’s decision and the submissions of the parties
(a) The standard of review
[5] The issue of the standard of review of a designated judge’s decision determining applications for disclosure under section 38 of the Act was addressed in Canada (Attorney General) v. Ribic, 2003 FCA 246, [2005] 1 F.C.R. 33, leave to appeal to the S.C.C. denied on October 22, 2003.
[6] At paragraph 36 of the reasons for judgment in that case, our Court concluded that decisions relating to the definition of the scope of the power to order disclosure are reviewable on a standard of correctness. Decisions of this nature involve the interpretation and construction of the legislative provisions granting the power and delimiting its conditions of exercise. So a misconception or misconstruction of these provisions involves a question of law which normally would be easily extricable from the facts.
[7] The application to the facts of a properly interpreted and construed power to disclose, however, calls for a different standard of review as it involves a mixed question of fact and law. The resulting decision is, according to the decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, subject to the more deferential standard of “palpable and overriding error”. This is also the standard of review applicable to questions of fact.
[8] A palpable and overriding error exists when, in rendering his decision, the Judge took “into consideration irrelevant factors, omitted those that he ought to have considered, or weighed the relevant factors in an unreasonable manner”: see Canada v. Furukawa, 2000 CanLII 16502, [2001] 1 C.T.C. 39 (F.C.A.), at paragraph 35.
[9] It is on the basis of these standards of review that the Judge’s decision will be assessed in the present instance.
(b) Whether the Judge erred in failing to apply the informer privilege to CSIS human sources
[10] Counsel for the appellant argues that the informer privilege should have been applied by the Judge and that it was an error for him to apply the Ribic test and engage in a balancing exercise of the public interests at stake. The contention is that the issue of the privilege should be decided first. This brings into play the interrelation between a privilege and the Ribic test.
[11] The Ribic test was developed in the Ribic case cited above. It is a three-prong test. The judge must first determine whether the information sought to be disclosed is relevant or not to the proceedings in which it is intended to be used. The applicant for disclosure bears the burden of establishing that the information is in all likelihood relevant evidence.
[12] If the information meets the relevancy test, the judge must then determine whether disclosure of that information would be injurious to international relations, national defence or national security. It belongs to the Crown to prove the potential injury if disclosure of the information were to be ordered.
[13] Finally, if satisfied that disclosure of the sensitive information would result in injury, the judge must move to the last step and determine whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The burden of proving that the public interest scale is tipped in favour of disclosure rests with the party seeking it.
[14] I shall begin with the question of the extension of the informer privilege to CSIS human sources. Then I will address the interrelation between a privilege and the Ribic test.
[15] It is fair to say that the informer privilege bears specific characteristics in more than one way. It is a common law, not a statutory privilege. Contrary to the Crown privilege, it is absolute in the sense that it cannot be balanced against other interests: see R. v. Leipert, [1997] 1 S.C.R. 281, at paragraphs 12–14. Its application “‘does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound’”: Leipert, above [at paragraph 13], citing Bisaillon v. Keable, [1983] 2 S.C.R. 60, at page 93. It suffers only the “innocence at stake” exception, that is to say, where disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused: Leipert, above, at paragraphs 20–21.
[16] The informer privilege falls into the category of class privilege (for example, solicitor and client privilege) as opposed to a case-by-case privilege. The law recognizes very few class privileges: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at paragraph 42.
[17] In the National Post case, at paragraph 42, Binnie J. described in the following terms the nature, importance and consequences of making a privilege a class privilege:
In a class privilege what is important is not so much the content of the particular communication as it is the protection of the type of relationship. Once the relevant relationship is established between the confiding party and the party in whom the confidence is placed, privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation. Class privilege necessarily operates in derogation of the judicial search for truth and is insensitive to the facts of the particular case. Anything less than this blanket confidentiality, the cases hold, would fail to provide the necessary assurance to the solicitor’s client or the police informant to do the job required by the administration of justice. [Emphasis added.]
[18] The informer privilege as a class privilege protects the relationship between the informer and a peace officer. It is part of a peace officer’s toolbox that the courts judged necessary to enforce criminal law. In the Bisaillon case, previously cited, Beetz J. writes at pages 105–106:
The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.
The common law did not give a peace officer this right simply because it would be useful to him, but because it concluded empirically that the right was necessary….
This power of giving an assurance of secrecy is part of the range of means with which a peace officer is equipped by the criminal law, such as the power of making an arrest without a warrant and the power of search and seizure under ss. 450 and 443 et seq. of the Criminal Code; it partakes of the nature of these methods and, like them, it is closely associated with the status of a peace officer. [Emphasis added.]
[19] In the National Post case, Binnie J. reviewed some of the difficulties associated with the granting of a class privilege to journalists: the immense variety and degrees of professionalism (or lack of it) of persons who gather and publish news said to be based on secret sources, the extent of the respective rights and immunities of the journalist and the source to whom confidentiality has been promised, the absence of workable criteria for the creation or loss of the claimed immunity: National Post, above, at paragraphs 43 to 45.
[20] All these considerations raised by Binnie J. apply in the present instance to the application of the informer privilege to CSIS human sources. CSIS employees are not peace officers and belong within the service to different categories of employees. Who will, or perhaps it is better asked, who should have the authority to grant immunity? To whom should it be granted? Anyone who seeks it? In other words, who should be part of the class?
[21] Another difficulty stems from the conditions under which the immunity should be granted. What are they? Who should fix them? In addition, as Binnie J. asked in the National Post case, what are the respective rights and immunities of the CSIS employee and the source to whom confidentiality has been promised?
[22] When should the immunity be granted? For any information as long as the source asks for immunity? In the present instance, the Judge found as a fact that CSIS’ approach was overbroad as it tended “to treat virtually everyone who provides information as a confidential source whether there is any real expectation of confidentiality on the part of the source, a risk of harm to the source or likelihood that they would not be forthcoming without such assurances”: see reasons for judgment, at paragraph 169.
[23] How should the protection be given? Expressly, implicitly, orally or in writing? The form chosen may be important when it comes to ascertaining the scope of the rights and obligations of the parties as well as the scope of the immunity. It is public knowledge in criminal law that the informal granting of immunity to informers has given rise to bitterness and litigation in court. In the United States and in the province of Quebec for example, the granting of immunity in many cases has been formalized, the parties entering into a written binding contract describing their respective rights and obligations.
[24] Finally, this excerpt from Binnie J.’s decision found, at paragraph 46, is apposite here, especially in the context of section 38 of the Act:
Fourthly, while the result of any privilege is to impede the search for truth, and thereby to run the risk of an injustice to the persons opposed in interest to the claimant, a class privilege is more rigid than a privilege constituted on a case-by-case basis. It does not lend itself to the same extent to be tailored to fit the circumstances. [Emphasis added.]
[25] As a matter of fact, section 38 of the Act puts in place a balancing system whereby, as we have seen, potentially injurious information may be released by court order if the public interest in disclosure outweighs in importance the public interest in non-disclosure. To put it differently, Parliament has devised in respect of information relating to international relations, national security and national defence a system where confidentiality is not absolute contrary to what the informer privilege is by being a class privilege.
[26] In my respectful view, 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. Section 18 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 has been brought to our attention as evidence of Parliament’s intent to protect the identity of human sources. In Harkat (Re), 2009 FC 204, [2009] 4 F.C.R. 370 (presently on appeal to this Court [the decision has since been rendered: 2012 FCA 122]), Noël J. of the Federal Court, at paragraph 30 of his reasons for judgment, used section 18 as a basis to assert that “Parliament itself has spoken on the importance of protecting human sources and covert operatives.”
[27] I reproduce sections 18 and 19 [as am. by S.C. 1995, c. 5, s. 25(1)(d); 2003, c. 22, s. 224(z.12)(E)]:
| Offence to disclose identity |
18. (1) Subject to subsection (2), no person shall disclose any information that the person obtained or to which the person had access in the course of the performance by that person of duties and functions under this Act or the participation by that person in the administration or enforcement of this Act and from which the identity of (a) any other person who is or was a confidential source of information or assistance to the Service, or (b) any person who is or was an employee engaged in covert operational activities of the Service can be inferred. |
| Exceptions |
(2) A person may disclose information referred to in subsection (1) for the purposes of the performance of duties and functions under this Act or any other Act of Parliament or the administration or enforcement of this Act or as required by any other law or in the circumstances described in any of paragraphs 19(2)(a) to (d). |
| Offence |
(3) Every one who contravenes subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. |
| Authorized disclosure of information |
19. (1) Information obtained in the performance of the duties and functions of the Service under this Act shall not be disclosed by the Service except in accordance with this section. |
| Idem |
(2) The Service may disclose information referred to in subsection (1) for the purposes of the performance of its duties and functions under this Act or the administration or enforcement of this Act or as required by any other law and may also disclose such information, (a) where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada or a province, to a peace officer having jurisdiction to investigate the alleged contravention and to the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged contravention may be taken; (b) where the information relates to the conduct of the international affairs of Canada, to the Minister of Foreign Affairs or a person designated by the Minister of Foreign Affairs for the purpose; (c) where the information is relevant to the defence of Canada, to the Minister of National Defence or a person designated by the Minister of National Defence for the purpose; or (d) where, in the opinion of the Minister, disclosure of the information to any minister of the Crown or person in the federal public administration is essential in the public interest and that interest clearly outweighs any invasion of privacy that could result from the disclosure, to that minister or person. |
| Report to Review Committee |
(3) The Director shall, as soon as practicable after a disclosure referred to in paragraph (2)(d) is made, submit a report to the Review Committee with respect to the disclosure. |
[28] Section 18 creates an offence to disclose the information therein mentioned unless authorized to do so by subsection 18(2) and section 19. It does not create an absolute prohibition against disclosure as the informer class privilege does. Indeed, subsection 18(2) allows a person to disclose the information “as required by any other law”. This is compatible with section 38 of the Act which allows for disclosure pursuant to an order issued by a designated judge in the exercise of the discretion conferred by that section.
[29] In the National Post case, at paragraph 42, when referring to the informer privilege and its absolutism, Binnie J. wrote:
It is likely that in future such “class” privileges will be created, if at all, only by legislative action.
[30] I can see the wisdom in this warning. The creation of a new privilege entails legal, political, social and economic impacts. I have been involved in law reform long enough to know that policies of the kind, precisely because of their serious diverse impacts, require extensive consultations and public debate. They need to be enacted by persons accountable to the people who will have to live with such policies. 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.
[31] This now brings me to the interrelation between a privilege regarding the source and the Ribic test, and the procedure to be followed when confronted with a claim of privilege.
[32] Upon reflection, the procedure has to remain flexible because the manner of proceeding may be dictated by the nature of the information, the importance of the source, the extent of the prejudice to the source and national defence, national security and international relations, to name some of the factors that may influence the approach a judge should be taking.
[33] Depending on the circumstances, it may be preferable to look at the protection of the identity of the source first. For example, release of the information sought may not be prejudicial, but release of the source’s name would be. In the same vein, public interest in disclosure of the information itself may outweigh in importance public interest in non-disclosure, except for the identity of the source. On the other hand, there is no point in engaging in a long debate as to the need to protect the source if the information itself is not relevant and will not be released. The designated judge who proceeds to the balancing required by section 38 is in the best position to determine the process to be followed so as to foster the better exercise of his or her discretion in the most efficient manner.
[34] In conclusion, for these reasons, I believe that the Judge made no error when he did not apply the informer privilege rule to CSIS human sources.
(c) Whether the Judge erred in his treatment of the third-party rule when he ordered disclosure of certain information received from foreign partners
[35] This issue arises in relation to a small number of documents. The Court sat in camera to deal with the confidential information and heard the submissions of counsel for the appellant as well as those of the amicus curiae appointed to assist us. The documents were examined as well as the appellant’s proposals to prevent or minimize injury.
[36] It is not always clear why the Judge ordered disclosure because in a number of them he did not provide reasons. In fairness to him, he was confronted with a Herculean task and, by any standard, he did an excellent job. We, therefore, proceeded to apply the third prong of the Ribic test to the documents at issue.
[37] 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.
Conclusion
[38] For these reasons, I would allow the appeal, set aside the Judge’s disclosure order and Annex “A” relating to the impugned documents and issue a confidential order implementing the changes necessary to these documents to prevent and minimize injury to international relations, national security and national defence.
Blais C.J.: I agree.
Trudel J.A.: I agree.