By Cristin Schmitz. March 13 2009. Lawyers Weekly

A novel Federal Court ruling restricts the ability of special advocates, during security certificate reviews, to test the veracity of confidential information supplied by covert informants of the Canadian Security Intelligence Service (CSIS). On Feb. 27, the Federal Court publicly released two “expurgated” rulings on disclosure made secretly by Justice Simon Noel last November and December in the case of Mohamed Harkat of Ottawa, who has been detained under an immigration security certificate since 2002 without knowing the full evidentiary basis for the government’s allegation that he is an al-Qaeda sleeper agent.

Harkat’s “public counsel,” Ottawa criminal lawyers Mathew Webber of Webber Schroeder and Norm Boxall of Bayne Sellar Boxall, told The Lawyers Weekly they are “very disappointed” by the Federal Court’s restrictive view of the special advocates’ (SAs) cross-examination role under the new security certificate regime enacted last year by the Immigration and Refugee Protection Act (IRPA).

The scope of disclosure to SAs is substantially narrower than he had expected, Webber explained. “While I consider the system imperfect, I had always taken some comfort in my hope or belief that my very qualified SAs were getting access, and now it appears clear that they are quite clearly not.”

Justice Noel’s November ruling denies the request of Harkat’s two SAs, Toronto’s Paul Copeland of Copeland Duncan and Paul Cavalluzzo of Cavalluzzo Hayes, to access the employment records of a former CSIS intelligence officer who investigated Harkat. The officer was later fired by CSIS after she surreptitiously continued a personal relationship with “a person of interest” in the Harkat investigation, despite written orders from CSIS to cease all contact.

Justice Noel did, however, order CSIS to disclose to the court and to the SAs any reports or other information related to the reliability and credibility of information connected with the ex-CSIS officer.
Justice Noel’s December ruling rejects Cavalluzzo’s and Copeland’s in camera request last September for an order compelling unnamed CSIS informant(s) to appear for cross-examination by the SAs at a closed-door confidential hearing.

The judge recognizes, for the first time, a common law “covert human intelligence source” privilege (similar to police informer privilege in criminal cases) that shields the identity of CSIS informants in security certificate cases.

He went on to hold that in all but “exceptional” cases, this privilege or “immunity” will protect confidential CSIS informants from being identified to — or cross-examined by — the SAs.

The judge stipulated the only exception to CSIS informer privilege is when “a special advocate has established that he or she has a ‘need to know’ the identity of a covert intelligence source to prevent a flagrant denial of procedural fairness which would bring the administration of justice into disrepute.”

Justice Noel elaborated that this “need to know” test may be met “where, in the judge’s opinion, there is no other way to test the reliability of critical information provided by a covert human intelligence source except by way of cross-examination.”

At the same time, he stressed that “covert human intelligence sources are vital to the functioning of intelligence agencies and to the national security of Canada” and that expanding the number of people who know a source’s identity jeopardizes the personal safety of the source and national security.

“If the Service is unable to protect the identity of its sources or is required to produce them in the context of a court proceeding (even one that is closed to the public), the number of individuals willing to come forward with information would be reduced,” wrote Justice Noel. “There is evidence before this court that the recruitment of human sources would be harmed if the guarantees of confidentiality given by the Service were not upheld by this court. I accept this evidence.”

Justice Noel’s disclosure decisions are interlocutory and not subject to appeal, but counsel say the Supreme Court could eventually scrutinize the rulings as part of an anticipated future assessment of whether the new SA regime adequately protects the procedural fairness of Harkat and the other four men named in security certificates.

“We are going to have to address the constitutionality of [the cross-examination limits imposed on the SAs] for sure,” predicted Boxall. “The concern over the SA regime has been, and this debate continues in England, whether it is a fix or just a fig leaf. And at this stage it is still too early to tell — the process isn’t finished. But it’s clear that the SAs who brought this motion clearly envisioned a different process. They thought it appropriate to have this tool. It’s been denied to them [yet] it’s one that I think many, if not most, people would have thought they would have.”

The Supreme Court ruled last year in Charkaoui 2 that permanent residents and foreign nationals detained under security certificates have the right, under the common law rules of procedural fairness, to see the government’s secret evidence against them, except to the extent that such disclosure is inconsistent “with legitimate public safety interests.”

Security-cleared lawyers — who are appointed by the court to promote the interests of the named person at closed-door confidential hearings to assess the reasonableness of the government’s contention that the detainee is a threat to national security — are tasked with arguing, in camera, for maximum disclosure of evidence to the named person and his counsel. The SAs are also supposed to test the reliability and credibility of the government’s secret evidence by cross-examining the witnesses produced by the government in camera.

However Justice Noel rejected Copeland’s and Cavalluzzo’s request to interview and cross-examine the covert CSIS informants in the Harkat case because the SAs gave “no further justification” for their request, beyond their general goals of testing the source(s)’ credibility, and possibly corroborating future testimony by Harkat about his reasons for coming to Canada in the mid-1990s.
The SAs contended that they are entitled to access all CSIS information related to the Harkat investigation, including informant information. This should be so, given their top-secret security clearance, their permanent pledge of secrecy and the fact that cross-examination would proceed in camera, they urged.

But Justice Noel said common law privileges may only be abrogated specifically by statute. The IRPA does not do so.

“If Parliament had intended the SAs to have access to all information, including information over which the government claims solicitor-client or other privilege, it would have explicitly stated so in the legislation,” he reasoned.

“The limited powers given to SAs in s. 85.2 do not, without this court’s authorization, permit them to call witnesses or require the production of a witness or document, particularly where to do so would pierce a common law privilege.”

Justice Noel held that the relationship between CSIS and its covert human sources meets the conditions stipulated by Wigmore for recognizing a common law privilege. Covert sources are given absolute promises that their identities will be protected. These confidentiality guarantees are essential to the ability of CSIS to fulfill its mandate to protect Canada’s national security, while protecting the source from retribution. The judge accepted the government’s evidence that identifying a covert source to an SA, or requiring a covert source to testify in a closed proceeding, even anonymously, “will almost certainly end the Service’s relationship with that source.”

Reasons: In the matter of Mohamed Harkat, [2008] F.C.J. No. 1822 and [2008] F.C.J. No. 1823.