Disturbing news of CSIS misconduct emerged last week in the security certificate review hearing of Mohamed Harkat. Federal Court Justice Simon Noel released an unprecedented decision ( F.C.J. No. 619) ordering CSIS to disclose the name of a key confidential informant, and to produce its uncensored file on the informant, to the two special advocates charged with protecting Harkat’s interests in the in camera proceedings.
Justice Noel’s ruling came a day after CSIS delivered a top secret letter to the judge acknowledging that information about the CSIS source, dating from 2002 and 2008, had not been presented to the Court. Justice Noel had specifically asked for all evidence relevant to the reliability of the witness in an in camera hearing last year and was assured all had been given. The new information, wrote the judge, is “significant”, and goes to the weight to be given to the informant’s evidence.
Late last year, the special advocates sought disclosure of CSIS’ intelligence files and access to CSIS informants who had implicated Harkat as a sleeper al Qaeda operative. At that time, the Ministers took the position that they had complied with the Court’s previous disclosure orders and had provided all of the information required to be disclosed in accordance with the Supreme Court of Canada’s decision in Charkaoui #2,  S.C.J. 39. The Ministers advised the Court that the special advocates were in possession of all the information in the possession or control of CSIS regarding Harkat. On this basis, Justice Noel rejected the request for further disclosure, and further held that CSIS informants’ identities were protected by covert human intelligence source privilege, analogous to the common law police informant privilege.
In last week’s ruling, however, Justice Noel referred to the one exception to the rule – if failure to disclose the information would constitute a “flagrant breach of procedural justice” and bring the administration of justice into disrepute. After reviewing the contents of the Ministers’ letter, Justice Noel concluded that “the Special Advocates have a need to know the contents of the human source file even if this results in the revelation of the source's identity. The rule of law requires no less. Once the Court has evidence that leads it to question the completeness of the information being provided to it by the Ministers, in apparent violation of their obligation of utmost good faith, it must allow the Special Advocates access to all information which they have a need to know” (at para. 14).
In light of “possible prevarication” by CSIS witnesses and the withholding of important evidence, Justice Noel also stated that the Court would review all orders issued and evidence provided to date “to see if any further judicial action is required to preserve the integrity of the administration of justice” (at para. 15). The hearing to assess the reasonableness of the security certificate has been postponed.
In the meantime, Justice Noel is considering submissions by Harkat’s counsel that a search of Harkat’s home in mid-May 2009 was unconstitutional. Thirteen Canadian Border Service officials, three police officers and three dogs searched the home and seized, among other things, photo albums, Harkat’s wife’s computer (containing correspondence with Harkat’s counsel), and her agendas. During the June 3rd hearing, Justice Noel expressed concern that the search was “out of proportion” and “extremely instrusive”.
Posted by Professor Jasminka Kalajdzic, University of Windsor, Faculty of Law