Canada (Attorney General) v. Telbani

Canada (Attorney General) v. Telbani
Court (s) Database
Federal Court Decisions
Date
2014-09-19
Neutral citation
2014 FC 1050
File numbers
DES-2-10
Decision Content
Date: 20140919
Docket: DES-2-10
Citation: 2014 FC 1050
[REVISED ENGLISH TRANSLATION]
BETWEEN:
THE ATTORNEY GENERAL
OF CANADA
Applicant
and
HANI AL TELBANI
Respondent
REASONS FOR ORDER
DE MONTIGNY J.
[1] On June 1, 2010, the Attorney General of Canada filed in the Federal Court a notice of application, pursuant to section 38.04(1) of the Canada Evidence Act (CEA), for an order with respect to the disclosure of certain excerpts in 31 documents. Said documents were to be included in the tribunal record in respect of which the two applications for judicial review filed by the respondent were made, as required by Rule 318 of the Federal Courts Rules.
[2] The disclosure of the information contained in these 31 documents to the respondent was denied following notice to the Attorney General under subsections 38.01(1) and (3), as provided in subsection 38.02(1)(a) of the CEA. The Attorney General sought to have the prohibition confirmed by the Court or, alternatively, to have the Court exercise its discretion under subsection 38.06(2) to authorize the disclosure, subject to any conditions that the judge considers appropriate to limit any injury to international relations or national defence or national security. The respondent obviously objected to the request and sought to obtain the disclosure, of all or at the very least part, of the information the Attorney General sought to protect.
[3] These reasons follow a public hearing of both parties, followed by an ex parte and in camera hearing of the applicant and his witnesses attended by two amici curiae appointed by the Court. These reasons set out the history of the proceedings, of the arguments raised by the parties and the amici and the legal principles that guided me in the processing of this application. They are accompanied by a confidential order setting out my specific findings concerning the information for which non-disclosure was sought.
History of the proceedings [4] The respondent was born on September 1982 in Saudi Arabia. Being a citizen of Palestine, he is considered to be stateless; he became a permanent resident of Canada on January 21, 2004. On June 4, 2008, he was denied the right to board an Air Canada flight to Saudi Arabia, where he was apparently going to retain his permanent resident status in that country. In so doing, the respondent was given a copy of an Emergency Direction dated June 4, 2008, stating that the Department of Transport, Infrastructure and Communities (the Minister) had determined that he posed an immediate threat to aviation security.
[5] That decision gave rise to the first application for judicial review, filed by the respondent on June 19, 2008 (docket T-973-08). The respondent challenged the decision to add his name to the Specified Persons List (SPL) as part of the Passenger Protect Program, the Emergency Direction issued under section 4.76 of the Aeronautics Act. In the context of the application, the respondent also challenged the constitutional validity of the at-risk persons list, of Transport Canada’s Passenger Protect Program, and the above provision of the Aeronautics Act on the ground that these instruments are contrary to sections 6, 7 and 15 of the Canadian Charter of Rights and Freedoms.
[6] On June 24, 2008, a lawyer from the Department of Justice in Montréal gave to the Attorney General the notice prescribed by subsection 38.01(1) of the CEA. The notice issued was for seven (7) documents. As a result, on July 30, 2008, Transport Canada sent a record to the respondent from which these seven documents were excluded, and subsequently sent these documents to the respondent after having redacted them. In the face of Transport Canada’s refusal to send him the full record to which he claimed to have a right of access, the respondent filed a request to obtain full disclosure of the record concerning him, under Rule 317 of the Federal Courts Rules. Seized with this request, Justice Frenette denied the request in a decision rendered on November 27, 2008, and ordered a stay of proceedings to allow the Attorney General to file a notice of application pursuant to section 38 of the CEA, so the matter of whether the sensitive or potentially injurious information referred to in the notice under subsection 38.01(1) could be dealt with in a separate proceeding, pursuant to section 38.04 of the CEA. The respondent appealed that decision, but discontinued his appeal on September 22, 2009.
[7] At the same time as the first application for judicial review, the respondent filed an emergency request for reconsideration with Transport Canada’s Office of Reconsideration (the Office) on June 6, 2008. On October 29, 2008, the Office recommended that the Deputy Minister declare that the decision to put the respondent’s name on the SPL and to issue an Emergency Direction was void and of no effect. Accordingly, the Office recommended that the respondent’s name be removed from the SPL. The respondent was only informed of that recommendation in June 2009; no information was provided to the Court as to why it took that long to advise him of this decision.
[8] On September 10, 2009, the Deputy Minister of Transport decided not to follow the Office’s recommendation and concluded that he had reasonable suspicion that the respondent may pose a threat to aviation. He accordingly decided to keep the respondent’s name on the SPL.
[9] Following this new decision, on October 14, 2009, the respondent filed a second application for judicial review (docket T-1696-09).
[10] On April 8, 2010, an “official” within the meaning of subsection 38.01(3) of the CEA notified the Attorney General that sensitive information or potentially injurious information could be disclosed in the course of a proceeding. Said notice involved information contained in the 31 documents. On April 15, 2010, the Attorney General authorized the full disclosure of the seven documents and the disclosure of a redacted version of the other 24 documents; the respondent received said documents on May 7, 2010.
[11] On April 23, 2010, the Chief Justice ordered that the two applications for judicial review proceed simultaneously and that Transport Canada’s record be transmitted to the Registry, including the documents in their redacted form. Justice Frenette’s order was also stayed, and it was decided that the timelines and proceedings associated with an application under section 38 of the CEA be the subject of a case management conference.
[12] On June 1, 2010, the Attorney General filed his application for non-disclosure pursuant to subsection 38.04(1) of the CEA for the two applications for judicial review. Subsequently, on June 21, 2010, the Attorney General filed a copy of the public affidavit of “Eric”, an employee of the Canadian Security Intelligence Service (the Service) in support of his application. On August 27, 2010, the respondent filed a motion to strike said affidavit which was dismissed on December 22, 2010. This affidavit was to ultimately be replaced by an identical affidavit sworn by another employee of the Service, Robert Young. The affidavit explains in general terms the Service’s mandate, the reasons that the Service’s investigations must remain secret and the various categories of information the disclosure of which, in the Service’s view, would be injurious to Canada’s national security.
[13] Pursuant to an order of the Chief Justice rendered on June 22, 2010, Mr. Al Telbani was named by the Court as respondent in the present case, by virtue of his being a party whose interests are affected by the information for which the Attorney General seeks a non‑disclosure order.
[14] On November 10, 2010, the Court ordered the appointment of two counsel as amici curiae (the amici) in this case, François Dadour and Sylvain Lussier. The normal course of proceedings was however interrupted by the motion filed by the respondent on February 17, 2011, seeking payment of his costs from the applicant. The undersigned dismissed the motion on July 27, 2011, and the appeal from that decision was dismissed on June 20, 2012. Following a direction issued by this Court on April 4, 2013, setting the time limits for the prosecution of this case, the Attorney General filed his public affidavit on May 6, 2013, and the respondent filed his own affidavit on May 31, 2013.
[15] The public hearing of both parties was held in Montréal on October 15, 2013. Discussions subsequently ensued between the amici and counsel for the Attorney General regarding the information in respect of which non-disclosure is sought by the Attorney General. The amici made various proposals to which counsel for the Attorney General responded. At the end of that process, which occurred over a period of a few months, 16 of the 31 documents containing information the Attorney General seeks to protect were the subject of a common position between counsel for the Attorney General and the amici. As for the other 15 documents, they were the subject of a partial agreement: the amici and the Attorney General agreed that certain information should be protected, but disagreed about other information.
[16] Following that process, an ex parte and in camera hearing was held in Ottawa on April 3, 4 and 11, 2014. On that occasion, the Attorney General called the two witnesses who swore secret affidavits in support of the application for non-disclosure, and the amici were able to conduct their cross-examination. The amici then filed their submissions, on the basis of the written submissions they had previously filed with the Court and served on the applicant, and counsel for the Attorney General did the same, also on the basis of the written submissions filed earlier with the Court and served on the amici.
Issues [17] The central question raised by this application is, of course, whether the prohibition to disclose the information identified by the Attorney General, as provided for in paragraph 38.02(1)(a) of the CEA, must be confirmed by this Court pursuant to subsection 38.06(3), or whether the disclosure must be authorized, in full or subject to certain conditions, pursuant to subsections 38.06(1) or (2).
[18] The amici however raised a few preliminary questions about their role and function, about the limited nature of the main piece of information in issue and about the uncertainty arising from the current lack of alternative to the non-disclosure of the disputed information in the underlying proceeding. I will deal with the last two questions as part of my summary of the principles that will guide me in reviewing the Attorney General’s application, while addressing the role of the amici in the introduction to my remarks.
The legal framework [19] It is certainly not necessary to reiterate that the open court principle is a fundamental principle of our legal system. The restrictions on this principle by Parliament and the case law have been carefully delineated, and arise from the balancing sometimes required to take into account other important interests to protect, such as informant privilege, or to protect the right of an individual to a fair hearing: see Named Person v Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253; Charkaoui (Re), 2008 FC 61; Bisaillon v Keable, [1983] 2 SCR 60.
[20] Sections 38 and seq of the CEA create another restriction on the open court principle. Section 38.01 requires every participant, as well as all officials, other than a participant, to notify the Attorney General of the possibility of disclosure of sensitive or potentially injurious information. The Attorney General of Canada shall, within 10 days after the day on which he or she receives a notice, make a decision with respect to disclosure of the information (section 38.03(3)). In the event that the Attorney General does not unconditionally authorize the disclosure of information and no disclosure agreement is entered into, the disclosure issue may come before the Federal Court (section 38.04). Such an application does not constitute a judicial review of the Attorney General’s decision; the designated judge seized of the application must rather determine whether or not the prohibition to disclose the information sought to be protected should be confirmed.
[21] The relevant provisions of the CEA in this regard are reproduced in Appendix A, namely, 38.01(1) and (3), 38.02(1), 38.03, 38.031, 38.04, 38.06.
[22] In the exercise of his or her powers under sections 38 et seq of the CEA, the designated judge applies the tests developed by the Federal Court of Appeal in Canada (Attorney General) v Ribic, 2003 FCA 246. The judge must first determine whether or not the information sought to be disclosed is relevant to the proceedings in which it is intended to be used. The applicant for disclosure bears that burden. If the judge is satisfied that the information is relevant, the judge must then determine whether disclosure of that information would be injurious to international relations, national defence or national security. At this stage, the Attorney General must prove the potential injury if disclosure of the information were to be ordered. Finally, if satisfied that disclosure of the sensitive information would result in injury, the judge must 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. This three step test was adopted by this Court in a number of cases (see, inter alia, Canada (Attorney General) v Khawaja, 2007 FC 490, [2008] 1 FCR 547; Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766, [2008] 3 FCR 248; Khadr v Canada (Attorney General), 2008 FC 549), and the parties agree on its application in the present application.
Analysis [23] As noted above, I will now address the role of the amici in this proceeding, before turning to consider the principles that will guide me in reviewing the Attorney General’s application for an order.
- The role of the amici in this proceeding [24] The amici argued, in their written submissions, that the mandate and responsibilities vested in them leads them to playing a [Translation] “role opposite” to that of the public department. During the hearing, they went even further by asserting that the interests of the amici and those of counsel for the respondent converge as they are equally [Translation] “adversaries” of the Attorney General. They rely on the wording of the order ordering their appointment, particularly their power to “cross-examine” the applicant’s affiants and witnesses, as well as the need for a [Translation] “robust” system to ensure a just determination of the issues as part of an in camera and ex parte proceeding.
[25] This understanding of the role the amici are called upon to play in proceedings conducted under section 38 of the CEA, at least in the context of an underlying civil proceeding, is erroneous in my view. Although the perception of their role did not have a significant impact on the conduct of this matter where the amici discharged the mandate given to them by in strict accordance with the terms of the order, it is nevertheless important to note the spirit in which they must normally approach their functions.
[26] Sections 38 et seq of the CEA do not explicitly provide for the possibility for the Court to appoint an amicus. However, it is well established that the Court may, on its own initiative, appoint an amicus when entertaining an application under section 38 of the CEA: Harkat (Re), 2004 FC 1717, at paragraph 20. Chief Justice Lutfy also indicated in Canada (Attorney General) v Khawaja, 2007 FC 463 (at paragraph 57) that the judge’s discretion to appoint an amicus for the purposes of an application under section 38 contributed to assuring adherence to the principles of fundamental justice in the national security context. Indeed, the Attorney General did not contest the appointment of the two amici in this case and agreed at the outset with such an appointment.
[27] That said, there is no precise definition of the role of amicus that is applicable to all possible situations where a court may find it beneficial to obtain advice from a lawyer not acting on behalf of the parties: R v Cairenius (2008), 232 CCC(3d) 13, at paragraphs 52-59; R v Samra (1998), 41 O.R.(3d) 434 (C.A). It is generally agreed that the appointment of an amicus is generally intended to represent interests that are not represented before the court, to inform the court of certain factors it would not otherwise be aware of, or to advise the court on a question of law: see Attorney General of Canada et al v Aluminium Company of Canada, (1987) 35 DLR (4th) 495, at page 505 (BCCA).
[28] There is no doubt, however, that the amicus is not the accused’s lawyer (in a criminal proceeding) or respondent (in a civil proceeding). The role of an amicus is not any more analogous to that of a special advocate appointed under section 83 of the IRPA in the context of a security certificate. The role of the amicus is to assist the court and ensure the proper administration of justice, and the sole [Translation] “client” of the amicus is the court or the judge that appointed him or her. As Justice Fish (speaking on behalf of the dissenting judges) pointed out in Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (at paragraph 87), “[o]nce appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings”.
[29] It cannot be otherwise if the amicus is to be able to fully carry out the role assigned to him or her. Indeed, it is not inconceivable that he or she may be required to raise arguments or points of law that are not necessarily favourable to the accused or the respondent. Indeed, that is the reason that the Supreme Court unanimously concluded in Criminal Lawyers’ Association that a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court (see paragraphs 56 for the majority and 114 for the minority). Although the Court was divided on the issue of whether a superior court has the inherent power to set rates of remuneration for amici, all the judges considered that the role of an amicus and that of defence counsel are incompatible. I find that the same is true in a civil proceeding, although the dividing line may not always be so clear cut and the consequences of the blurring of lines may not be as dramatic.
[30] In short, playing a role that may sometimes be opposite to that of the Attorney General does not make the amicus a defence counsel or counsel for the civil party. The objective of the amicus and the state of mind in which he or she acts is not to assume the role of an advocate for the accused or the respondent, but to provide the Court with insight that it would not otherwise obtain and to assist it in making a decision that is in the best interests of justice. The fact that these interests may converge in certain circumstances does not change anything and merely represents, in a manner of speaking, a marginal benefit resulting from the appointment of amicus. He or she must therefore act at all times with transparency, without ever attempting to take counsel for the Attorney General by surprise. The tactics and strategies that defence counsel, and even, in certain circumstances, a special advocate, may properly use are misplaced in a proceeding under section 38 of the CEA.
[31] That said, the role of the amicus in such a proceeding may be modulated by the judge who appoints him or her to take into account the unique nature of an application under section 38 of the CEA. The very nature of the information to which the amicus will have access, the seriousness of the issues raised by the balancing of national security and the fairness of the proceedings, and the degree of transparency with which the Attorney General as well as the witnesses called in support of the application discharge their duties, are factors that may lead an amicus to play a more or less interventionist role depending on the circumstances.
[32] In closing, I note that the order dated November 10, 2010, was entirely clear and left no doubt as to the role the amici were called upon to play. It ordered that Mr. Dadour and Mr. Lussier be appointed [Translation] “to act as amici curiae in this proceeding to assist the Court in preparation for the in camera hearings and intervene in those same hearings”, and that they could not communicate with the respondent or his counsel from the moment they had access to confidential material and information. As for the power to cross-examine the applicant’s affiants and witnesses, it is a clause found in all the orders issued by this Court in similar cases. Again, the object of such cross-examinations is not to advocate for the respondent and embrace his interests as if the amicus had a solicitor-client relationship with the respondent, but rather to verify the reliability and the probative value of the evidence filed by the applicant and the strength of his arguments.
[33] The Court was obviously not a party to the discussions between counsel for the Attorney General and the amici regarding the disclosure of information contained in the 31 documents in issue in this application. Clearly, these discussions were successful to the extent that an agreement was concluded on much of the information for which non-disclosure was sought. It is undoubtedly useful for the Court (and perhaps for the Attorney General as well) to know prior to the ex parte and in camera hearing the reasons underlying the position of the amici when there is disagreement between them. That said, the position of the Attorney General is no more explicit and is solely based, for each piece of information, on xxxxxxx xxxxxxxx xxxxx generically representing the basis for the exclusion sought. In short, I find nothing objectionable about the manner in which the amici discharged their duty, and further, I do not consider that they ought to have sought the Court’s permission before filing their preliminary submissions in writing. This was authorized by order dated November 10, 2010, and their memorandum was submitted to the Attorney General almost a month before the hearing.
[34] With these clarifications in mind, I now turn to the three-step test developed by the Federal Court of Appeal in Ribic.
(a) Relevancy of the information sought in the application for non-disclosure [35] As mentioned above, the Attorney General’s application for an order under section 38.06(3) of the CEA only pertains to a limited number of documents (31). Furthermore, non-disclosure is not sought for the documents in full but only for portions of these documents. Finally, it is important to note that several documents are redundant or contain the same information, which limits even more the amount of information being sought to be protected.
[36] Sixteen of the thirty-one documents for which an application for non-disclosure has been filed were the subject of a total agreement between counsel for the Attorney General and the amici. Although said agreement is not binding on the Court, it will nonetheless be of keen interest when the time comes to determine whether the non-disclosure of certain information claimed by the Attorney General is justified or not. It must be said that the redacted information in the sixteen documents is not really relevant for the purposes of the underlying judicial reviews to the extent that it essentially reveals the names of certain employees of the Service as well as operational telephone numbers that are not known to the public. In one document, the redacted information is related to a file xxxxxxx xxxxxxxxx xxxxx xx xxxxxxxx whereas in another document, the information could reveal the success or failure of an investigation. Indeed, the only information appearing in a few of these sixteen documents (as well as in other documents on which a comprehensive agreement was not reached) that could potentially be of some use to the respondent was obtained from third parties. I will have an opportunity to explain my reasoning a little later.
[37] There are therefore only fifteen documents that are not the subject of a common position in their entirety between counsel for the Attorney General and the amici. Once again, it must be reiterated that the Attorney General is not seeking the non-disclosure of the fifteen documents in full but only certain portions (more or less substantial) of these documents. However, the disagreement between counsel for the Attorney General and the amici is not over all the excerpts sought to be protected, but only some of them.
[38] As stated in Ribic, the first task of a designated judge tasked with examining an application for non-disclosure pursuant to section 38 of the CEA is to determine whether the information for which exclusion is sought is relevant to the underlying proceeding. Although the burden rests with the party seeking the non‑disclosure, the threshold is low. In a criminal proceeding, the test of relevance will be dependent on the rule set out in R v Stinchcombe, [1991] 3 SCR 326, that is, that the information at issue may reasonably be useful to the defence.
[39] The relevance test will not be the same in a civil proceeding, as was the case in Canada (Attorney General) v Almaki, 2010 FC 1106, or even in an inquiry procedure (Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766).
[40] In this case, the underlying proceedings are two judicial reviews of decisions made by Transport Canada. In this regard, it is Rule 317 of the Federal Courts Rules that governs relevance and determines the documents that must be produced by the tribunal whose order is the subject of judicial review. That Rule sets out that a party may request material “relevant to an application”. That Rule has been given a broad interpretation to the point of encompassing any document that “may affect the decision that the Court will make on the application”: Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455, at page 460 (FCA). In another matter, it was concluded that a document could be relevant even if the decision-maker did not refer to it or use it in support of his or her decision: Friends of the West Country Association v Canada (Minister of Fisheries and Oceans) (1997), 46 Admin LR (2d) 144, 130 FTR 206 (FC). That means that the obligation to present a complete record covers not only the documents before the decision-maker at the time of the decision, but also the documents that should have been before the decision-maker for the purposes of the judicial review: Kamel v Attorney General of Canada, 2006 FC 676, at para 13.
[41] In this case, the Attorney General conceded that much of the information he is seeking to protect is relevant for the purposes of the applications for judicial review filed by the respondent. At the relevance stage, only information concerning the names and contact information of certain employees of the Service, as well as internal and administrative procedures, like file numbers, are excluded. For all other information, it is necessary to proceed to the second step set out in Ribic and determine whether the disclosure of that information would be injurious to national security.
(b) Identification of an injury to national security [42] When it is established that the information is relevant, the Attorney General bears the burden of proving that that information, if disclosed, “could injure international relations or national defence or national security”, to use the words of the definition of the expression “potentially injurious information” in section 38. In this regard, the assessment made by the Attorney General will be of considerable weight given the special information and expertise to which he has access. The Court of Appeal stated the following in Ribic (at para 19):
This means that the Attorney General's submissions regarding his assessment of the injury to national security, national defence or international relations, because of his access to special information and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the information would cause the alleged and feared injury. The Attorney General assumes a protective role vis-à-vis the security and safety of the public. If his assessment of the injury is reasonable, the judge should accept it. . . .
See also: Canada (Attorney General) v Khawaja, 2007 FC 490, [2008] 1 FCR 547, at paragraph 64; Canada (Attorney General) v Almaki, 2010 FC 1106, [2012] 2 FCR 508, at para 70.
[43] As a result, the Court must show deference when it is called upon to determine an application for non-disclosure under the authority of section 38 of the CEA. That attitude is all the more justified since the very concept of “national security” is fluid and does not lend itself to a specific definition. My colleagues Justice Mosley and Justice Noël engaged in a lengthy analysis of this concept in Almaki and Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766, [2008] 3 FCR 248, and they concluded, in particular, that national security could not be limited to the preservation of national integrity or the capacity to respond to the use or threat of force, and meant, at minimum, the preservation of the Canadian way of life, including the safeguarding of the security of persons, institutions and freedoms in Canada. I agree with their comments. The difficulty in identifying exactly what constitutes a threat to national security is, in my opinion, an additional reason in favour of a fairly high degree of deference from this Court in respect of assessments carried out by government authorities. The Supreme Court stated the following in this regard in Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, at para 85:
. . . a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.
[44] That said, the Court cannot abdicate the role entrusted to it by Parliament and merely blindly endorse the applications for non‑disclosure which may be filed by the Attorney General. Even though the Court must show deference, it is nonetheless entitled to expect the Attorney General to demonstrate, from the facts established by the evidence, that the alleged injury is not merely possible or speculative, but probable: Arar, para 49; Almaki, para 70. In other words, it is not sufficient to speculate that a piece of information could be potentially injurious to national security; it must be established, through concrete and reliable evidence, that the injury is serious and not based on mere speculation. We are no longer in the days when courts had to comply each time a minister refused to produce a document by availing himself of Crown privilege in relation to national security. With the coming into force of section 36.2 of the CEA (S.C. 1980-81-82, c 111, section 4), now section 38, the Federal Court has been given the mandate to determine whether information can be disclosed under section 38.04. To fulfil this role, the Court must not only take notice of the information that the Attorney General seeks to not make public, but also verify that that information is indeed covered by the prohibition on disclosure set out in subsection 38.02(1) of the CEA.
[45] It is recognized that the disclosure of certain categories of information would generally be injurious to national security. Since 1988, this Court has stated that the disclosure of information that identified or tended to identify human or technical sources, past or present investigation subjects, the nature and the content of classified information, techniques or methods of investigation or even the length, scope, success or failure of investigations, could be considered injurious to national security: see Henrie v Canada, [1989] 2 FC 229, at para 29; see also, similarly, Singh v Canada (Attorney General), 2000 CanLII 15563, at para 32.
[46] My colleague Justice Dawson, when she was still a member of this Court, provided the following examples of information of the type that must be kept confidential:
1. Information obtained from human sources, where disclosure of the information would identify the source and put the source's life in danger . . . . As well, jeopardizing the safety of one human source will make other human sources or potential human sources hesitant to provide information if they are not assured that their identity will be protected.
2. Information obtained from agents of the Service, where the disclosure of the information would identify the agent and put the agent's life in danger.
3. Information about ongoing investigations where disclosure of the information would alert those working against Canada's interest and allow them to take evasive action.
4. Secrets obtained from foreign countries or foreign intelligence agencies where unauthorized disclosure would cause other countries or agencies to decline to entrust their own secret information to an insecure or untrustworthy recipient. . . .
5. Information about the technical means and capacities of surveillance and about certain methods or techniques of investigation of the Service where disclosure would assist persons of interest to the Service to avoid or evade detection or surveillance or the interception of information.
Harkat (Re), 2005 FC 393, at para 89.
[47] In the public affidavit in support of this application for non‑disclosure, Robert Young categorized the information that the Service seeks to protect according to, more or less, that classification. Two other confidential affidavits were also submitted and use that same classification by providing more specifics about the information involved. Those categories are as follows:
- Information that would identify or tend to identify the Service’s interest in individuals, groups or issues, including the existence or nonexistence of past or present files, the intensity of investigations, or the degree or lack of success of investigations;
- Information that would identify or tend to identify the methods of operation and investigative techniques used by the Service;
- Information that would identify or tend to identify relationships that the Service maintains with other police and security and intelligence agencies and would disclose information exchanged in confidence with such agencies;
- Information that would identify or tend to identify the identity of certain employees, internal procedures and administrative methodologies of the Service, such as names and file numbers;
- Information that would identify or tend to identify human sources of information for the Service or the content of information provided by human sources which, if disclosed, could lead to the identification of human sources.
[48] In the present case, and following discussions between counsel for the Attorney General and the amici, the only information that was not the subject of an agreement falls exclusively under the first three categories of information mentioned in the preceding paragraph. Of course, some of the information may fall under more than one category. Therefore, I will now address each of those three categories.
[49] The Attorney General is first seeking the non-disclosure of information concerning the interest the Service might have in Mr. Al Telbani and the investigations into his activities or those of other persons with which he is or was in contact. It is true that Mr. Al Telbani is obviously aware of the Service’s interest in his online activities following the interview he had with the Service on June 2, 2008, during which he was confronted with certain facts concerning the technical support he apparently provided to extremist activities. What the Service is seeking to protect is other facts that were not brought to the attention of Mr. Al Telbani and that are likely to reveal the nature and scope of the xxxxxxxxxxxxxxxxxxxxxxx investigation and the resulting assessments and analyses.
[50] There seems to be no doubt, as the witness who swore an affidavit on behalf of CSIS argued, that a security agency cannot operate effectively if the subjects of its investigations are able to ascertain that they are persons of interest or determine the state of the agency’s operational knowledge about them at a particular point in time, the resulting operational evaluation and even the fact that the agency is able to make some findings regarding the targets of its investigations. The disclosure of such information would allow a person of interest to take steps to avoid the Service’s investigative efforts, or even introduce false or misleading information into the investigation. The extent and reliability of the information gathered by the Service would be diminished, and its capacity to identify and deal with potential threats would be compromised.
[51] In this case, the respondent’s interview with the Service, xxxxxxx xxxxxxx xxxxxxxx xxxxxxxx xxxxxx xxxxxxxx xxxxxx xx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx I agree with the applicant that the disclosure of the information the Service provided to Transport Canada as part of its recommendation that the respondent’s name be put on the SPL would be of great help to the respondent in his alleged role of xxxxxxxx xxxxxxxxxxx xxxxxx xxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xx xxxx By providing him with specific information regarding the investigation xxxxxxxxx xxxxxxxxx xxxxxxxxxx xxxxxxxxx xxxxxxx xx x xxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx x x x xx xxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxx That would have negative consequences not only for the present investigation, but also for other investigations conducted by the Service xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
[52] In light of the foregoing, I am therefore of the view that the disclosure of all of the xxxxxxxxxxxxxxxxxx excerpts in the fifteen documents that the Attorney General and the amici did not fully agree upon would be injurious to national security. Of course, the real issue is whether the public interest reasons that justify disclosure outweigh in importance the public interest reasons that justify non-disclosure, and if so, under what conditions and in what medium must the information be disclosed. Before proceeding to the last step in the test, it is appropriate, however, to examine the two other categories of information for which the Attorney General is seeking non-disclosure and that were not the subject of an agreement with the amici.
[53] The second category of information for which non‑disclosure is sought is information that would identify or tend to identify the methods of operation and investigative