CEA-1-88
Andre Henrie (Applicant)
v.
Security Intelligence Review Committee and
Canadian Security Intelligence Service and
Employment and Immigration Canada and
Energy, Mines and Resources Canada (Respon-
dents)
INDEXED AS: HENRIE V. CANADA (SECURITY INTELLIGENCE
REVIEW COMMITTEE)
Trial Division, Addy J.—Ottawa, October 5, 6 and
18, 1988.
Security intelligence — Application under s. 36.2(1) of
Canada Evidence Act to determine objection to disclosure of
information by Director of Canadian Security Intelligence
Service — Government employee requiring update of security
clearance from "secret" to "confidential" — Denied as
member of Communist groups — Complaint by applicant
investigated by Security Intelligence Review Committee —
Applicant found to be loyal member of Communist groups
whose activities threatened security of Canada — On applica
tion to review Committee's decision, respondents filed certifi
cate of objection to support motion for order varying contents
of case prescribed by R. 1402 — Objection to jurisdiction on
ground Canada Evidence Act could not repeal effect of R.
1402 — If R. 1402(1) prevailing over s. 36 of Evidence Act,
CSIS Act defeated — Disclosure injurious to national
security.
Federal Court jurisdiction — Trial Division — Applicant
seeking judicial review of decision of Security Intelligence
Review Committee denying security clearance — Applicant
objecting to jurisdiction — Arguing s. 36 of Canada Evidence
Act not prevailing over R. 1402 — Rule not prevailing as
would defeat CSIS Act and national security prejudiced —
Although preferable Court of Appeal deal with entire matter
when reviewing Review Committee decision, s. 36.2(3) not
allowing that.
Construction of statutes — Argued that Canada Evidence
Act, s. 36 not overcoming R. 1402 — Submission contrary to
statutory interpretation rules — Intent of CSIS Act, national
security not to be defeated by application of rule of court.
This is an application under subsection 36.2(1) of the
Canada Evidence Act for the determination of an objection to
disclosure of information made by the Director of the Canadian
Security Intelligence Service. The applicant, an employee of the
Government of Canada who had been cleared for security at
the "secret" level was denied a security clearance at the
"confidential" level following an investigation by CSIS. The
Security Intelligence Review Committee investigated the appli
cant's complaint. The Committee found the applicant to be a
loyal member of Communist groups whose activities constituted
a threat to national security. The Committee recommended
that security clearance be denied. The application for determi
nation is related to a section 28 application for judicial review.
Held, the certificate of objection should be confirmed.
Counsel's submission, that the Court lacked jurisdiction to
hear this matter in that section 36 of the Canada Evidence Act
could not be used to repeal the effect of Rule 1402 of the
Federal Court Rules (which requires that all relevant docu
mentation considered by the tribunal whose decision is to be
reviewed form part of the case), had to be rejected as it went
contrary to the rules of interpretation. Furthermore, if Rule
1402 were held to prevail over Evidence Act, section 36, the
intent and purpose of the CSIS Act would be defeated. The
application of a mere rule of court could not be allowed to
prejudice national security. Although it would be preferable
that the Court of Appeal be empowered to deal with the whole
matter when examining the Review Committee's decision under
section 28 of the Federal Court Act, the restrictive wording in
section 36.2 does not allow that course of action.
The Director of Security Intelligence was not obliged to issue
a certificate of objection at the time of the Review Committee
hearing when the evidence was first considered. While the
security classification would have been lost had the evidence
been divulged to the applicant at that time, the chairman had,
ex proprio motu, excluded it and considered it in the absence of
the applicant and his counsel.
As to the merits of this application, it was to be understood
that while the public interest in the administration of justice
required openness of the judicial process, when national secu
rity was involved the public interest in not disclosing evidence
might outweigh that in disclosure. The continued existence of
our free and democratic society and the protection of litigants'
rights depended on the preservation of the nation, its institu
tions and laws. The evidence in question had been considered
by the tribunal and it related to a final decision. It was highly
important and relevant and the Court would exercise its discre
tion to examine it. The Court also received a secret affidavit in
the absence of applicant's counsel.
In weighing the competing public interests in disclosure and
non-disclosure, the differences between the raison d'être of
criminal and security intelligence investigations had to be kept
in mind. A person who is knowledgeable as to security matters
and who belongs to a group constituting a threat to Canadian
security could use a piece of apparently innocuous information
in arriving at a deduction concerning a security intelligence
investigation. Disclosure of the evidence in question could have
that effect. Accordingly, the national interest in non-disclosure
far outweighed that favouring disclosure.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 36.1(1)
(as added by S.C. 1980-81-82-83, c. 111, s. 4, Sch.
III), 36.2(l),(3),(5),(6), (as added idem), 36.3 (as
added idem).
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.), s. 7.
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 2(d), 38(c), 39, 42(3), 48(l),(2), 69.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Federal Court Rules, C.R.C., c. 663, R. 1402(1),(2).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.); affd [1983]
2 F.C. 463 (C.A.); Gold v. The Queen, [1985] 1 F.C. 642
(T.D.); affd [1986] 2 F.C. 129 (C.A.); Kevork v. The
Queen, [1984] 2 F.C. 753 (T.D.).
COUNSEL:
Jeffry A. House for applicant.
Simon Noël and Sylvie Roussel for respon
dent Security Intelligence Review Committee.
Brian Evernden and Marthe Beaulieu for
respondents Canadian Security Intelligence
Service, Employment and Immigration
Canada and Energy, Mines and Resources
Canada.
SOLICITORS:
Jeffry A. House, Toronto, for applicant.
Noel, Décary, Aubry & Associates, Hull, for
respondent Security Intelligence Review
Committee.
Deputy Attorney General of Canada for
respondents Canadian Security Intelligence
Service, Employment and Immigration
Canada and Energy, Mines and Resources
Canada.
The following are the reasons for judgment
rendered in English by
ADDY J.: The present application comes before
me, pursuant to paragraph 36.2(1) of the Canada
Evidence Act [R.S.C. 1970, c. E-10 (as added by
S.C. 1980-81-82-83, c. 111, s. 4, Sch. III)] as a
judge designated by the Chief Justice of this Court
for the determination of an objection to disclosure
of information made by Thomas D'Arcy Finn as
Director of the Canadian Security Intelligence
Service (hereinafter referred to as CSIS) in a
certificate dated the 15th of July 1986.
The certificate was filed in the Court of Appeal
in support of a motion by the Deputy Attorney
General for Canada for an order varying the con
tents of the case prescribed by Rule 1402 [Federal
Court Rules, C.R.C., c. 663] of this Court, in
order to exclude material described in the certifi
cate from the material to be filed in the Court of
Appeal. The application followed a request by Mr.
Henrie for a review under section 28 of the Feder
al Court Act [R.S.C. 1970 (2nd Supp.), c. 10] of a
decision of the Security Intelligence Review Com
mittee (hereinafter referred to as the Review
Committee).
Mr. Henrie, an employee of the Government of
Canada, had previously been cleared for security
at the "secret" level. In March 1984 the depart
ment to which he had been seconded requested an
update of his security clearance to the level of
"confidential". CSIS forwarded a letter to his
department indicating that he was a member of
the Workers' Communist Party Marxist-Leninist
(hereinafter called WCPM-L) and also of the
Groupe Marxiste-Léniniste Libération, (herein-
after referred to as GMLL). He was subsequently
interviewed by members of CSIS and a final
report from that organization recommended that
he be denied a security clearance.
A complaint was filed by the applicant pursuant
to subsection 42(3) of the Canadian Security
Intelligence Service Act, S.C. 1984, c. 21,
addressed to the Review Committee stating that he
had been refused a security clearance requesting
that the Review Committee conduct an investiga
tion. The matter was heard by the Review Com
mittee in private pursuant to subsection 48(1) of
the CSIS Act. Seven witnesses, including the
applicant gave testimony and 35 exhibits were
filed with the Committee. Of the above, the fol
lowing evidence was heard and considered by the
Review Committee, in camera, and, for security
reasons, in the absence of the applicant or his
counsel: (1) the evidence of one witness whose
identity and whose evidence was not disclosed in
the report of the Review Committee; (2) part of
the evidence of one witness who had also testified
in the presence of the applicant and his counsel;
(3) the whole or part of some 14 exhibits.
In addition, portions of the argument of counsel
for CSIS were not shown to counsel for the appli
cant nor were two letters with attachments
addressed to the Committee pertaining to some of
the testimony given during the hearing which was
closed to the applicant and his counsel.
The Review Committee, in its report, found that
both the WCPM-L and the GMLL were organiza
tions whose activities constituted a threat to the
security of Canada as defined in paragraph 2(d) of
the CSIS Act which reads as follows:
2....
(d) activities directed toward undermining by covert unlaw
ful acts, or directed toward or intended ultimately to lead to
the destruction or overthrow by violence of, the constitution
ally established system of government in Canada, ... .
The Review Committee also found that, on his
own admission, the applicant was a member of the
GMLL, to which it was felt he manifested a
serious attachment in loyalty. The Committee also
made a finding to the effect that the applicant was
an active supporter of the WCPM-L, as he sup
ported it financially, and in addition, attended at
party functions, public meetings, seminars, train
ing sessions and public demonstrations organized
by the Party or in which its members participated.
Finally, it recommended that security clearance be
denied.
There was an initial objection to my jurisdiction
to hear the matter made by Mr. House, counsel for
the applicant. He submitted that sections 36.1,
36.2 and 36.3 of the Canada Evidence Act [as
added idem] had no application because it could
not be used to repeal the effect of Rule 1402 of the
Federal Court, which requires that all papers rele
vant to the matter and which were considered by
the tribunal whose decision is to be reviewed by
the Court of Appeal as well as a transcript of the
evidence at the hearing and all affidavits and
exhibits filed are to form part of the case. I
rejected the objection to jurisdiction and gave oral
reasons therefor at the hearing. However, follow
ing the request of Mr. Noel as counsel for CSIS, I
agreed to include herein, written reasons for my
decision on the question of jurisdiction.
It is well established that where a conflict exists
between the provisions of a statute and those of a
regulation or a rule of court approved by Order in
Council, the statute must of necessity prevail.
There is also a principle to the effect that, where
two equivalent pieces of legislation cannot be
reconciled, the more recent enactment will normal
ly prevail. In addition, if Rule 1402(1) were held
to prevail, then the very intent and purpose of the
CSIS Act would be defeated in the case at bar. If
the objections were well-founded, national security
could be seriously jeopardized by the mere
application of a rule of court.
Until the enactment of the amendments to the
Canada Evidence Act with which we are con
cerned, a certificate of the Minister to the effect
that a divulgence of certain information would be
injurious to national security was final and com
pletely unassailable before any court. No evidence
which was subject to such an objection could have
been considered by the Court of Appeal. Section
36.2 merely provides a means pursuant to which
the written or oral objections to evidence on those
grounds may now be reviewed and, if deemed
unjustified or too broad, may be set aside in whole
or in part. That section provides that, where na
tional security is involved, the validity of the objec
tion to non-disclosure may be determined only by
the Chief Justice of this Court or by a judge
designated by him. Unlike objections made on the
grounds of other types of specified national inter-
est, the initial jurisdiction to determine whether
objections made on the grounds of national secu
rity or defence or international relations should be
maintained, is restricted to one specified person or
a nominee of that person and the hearing must be
carried out in camera. The public policy reason for
such a restrictive method of review is quite evi
dent. The Court of Appeal can deal with the
subject-matter only by way of appeal pursuant to
subsection 36.2(3) and has been granted no initial
jurisdiction to try the issue any more than it
possesses initial jurisdiction regarding ordinary
trials.
Finally on the question of jurisdiction, since the
Court of Appeal in this matter in effect decided to
refrain from entertaining the application pursuant
to Rule 1402(2) until the initial objection had been
dealt with, its decision as least implies that it
would not have the jurisdiction to do so. I there
fore feel that I am bound by that decision although
there was no specific finding regarding my
jurisdiction.
Counsel for all parties involved in this matter
were of the view that, from a practical standpoint,
it would be highly desirable for the Court of
Appeal to be empowered to deal with the whole
matter in the first instance in all cases such as the
present one, where decisions of the Review Com
mittee are being examined by that Court pursuant
to section 28 of the Federal Court Act. The Court
would then be in a much better position to pass
judgment on how the Review Committee conduct
ed its inquiry than when it is completely deprived
of the right to examine all of the evidence heard by
that tribunal. This jurisdiction would seem to be
the most logical and practical, since the Appellate
Division of our Court, in any event, upon a regular
appeal does have the jurisdiction to consider the
entire issue of any objection from a decision of a
judge under section 36.2 and, of course, to exam
ine all of the relevant documents should the court
deem it necessary.
I agree with counsel. I feel that the main reason
why evidence which might prove injurious to na
tional defence or security or to international rela
tions, should be treated statutorily in a different
manner in cases where decisions of the Review
Committee are being considered pursuant to sec
tion 28 of the Federal Court Act, than cases
involving decisions of all other federal boards,
commissions or tribunals, is that the evidence has
actually been heard and considered by the Review
Committee in arriving at its decision, while, in all
other cases, the tribunals are denied access to it as
long as the objection is not overturned. The evi
dence therefore cannot have influenced any of
their findings one way or the other. Unfortunately,
however, the restrictive wording of section 36.2
does not permit that course of action to be adopt
ed. Section 69 of the CSIS Act imposes a statutory
obligation for a comprehensive review of the Act
within five years of its promulgation. That time is
fast approaching and consideration might well be
given to providing for these specific situations. The
relevant portions of section 39 of the CSIS Act
read as follows:
39....
(2) Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, but subject to subsection
(3), the Review Committee is entitled
(a) to have access to any information under the control of
the Service or of the Inspector General that relates to the
performance of the duties and functions of the Committee
and to receive from the Inspector General, Director and
employees such information, reports and explanations as the
Committee deems necessary for the performance of its duties
and functions; and
(b) during any investigation referred to in paragraph 38(c),
to have access to any information under the control of the
deputy head concerned that is relevant to the investigation.
(3) No information described in subsection (2), other than a
confidence of the Queen's Privy Council for Canada in respect
of which subsection 36.3(1) of the Canada Evidence Act
applies, may be withheld from the Committee on any grounds.
It is to be noted that paragraph 38(c) refers to
section 42 on which the applicant's present com
plaint is based.
The applicant further argued that I had no
jurisdiction to consider the certificate of objection,
because it was not issued at the time of the hearing
before the Review Committee and it was now too
late to do so. In other words, the Director was
precluded at law from issuing the certificate at the
later stage of the application before the Court of
Appeal since he had originally failed to do so at
the hearing before the Review Committee when
the evidence was first presented and considered.
This argument would be valid if the evidence had
been divulged to the applicant at the time because
the security classification would automatically
have been lost. However, it is common ground
between the parties that the Chairman, without
having stated that there was any objection made
by the Director or any other person, chose to
exclude the classified evidence and documents ex
proprio motu and to consider the classified docu
ments, exhibits and arguments in the absence of
the applicant and his counsel. There was obviously
no reason in those circumstances for the Director
to either object orally or to issue a certificate of
objection since the Chairman was respecting the
security classification in any event. One does not
request what has already been granted.
On a further related issue, the applicant also
argued that the Chairman was not authorized to
exclude the evidence in the absence of the certifi
cate and also that subsection 48(2) of the CSIS
Act only authorizes him to exclude the applicant
during "representations" made to the Review
Committee and not while evidence is being pre
sented. Whatever might be the legal validity, if
any, to be attached to these arguments, they are
obviously matters which fall to be decided by the
Court of Appeal in its review of the conduct of the
hearing before the Committee. It might well be
that, before the hearing commenced or at some
other time in a confidential manner, the Director
might have informed the Chairman what evidence
he considered to be classified for security purposes.
But this is mere speculation on my part and, in any
event, if it occur it is again a matter for the Court
of Appeal to consider and obviously not for me to
decide.
There were also written arguments submitted to
the effect that the proceedings before the Review
Committee offended on various grounds against
paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III] and section 7 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], the princi-
pies of fundamental justice and of natural justice
and the principle of equality before the law. Again,
all of these matters and arguments refer to the
hearing before the Review Committee. Of course I
am not at all seized with those issues nor do I have
the jurisdiction to try them. The area of my juris
diction has been clearly defined and limited by
subsections 36.1(1) and 36.2(1),(5),(6) of the
Canada Evidence Act.
Having decided that I have jurisdiction to hear
the matter I now turn to the substance of the
application. Public interest in the administration of
justice requires complete openness of the judicial
process. That principle must be jealousy guarded
and rigorously applied, especially where evidence
which appears to be relevant to a judicial determi
nation is at stake. That cardinal rule not only
safeguards the rights of litigants generally but,
more importantly, it is fundamental to the public
interest in the preservation of our free and demo
cratic society. There are, however, very limited
and well-defined occasions where that principle of
complete openness must play a secondary role and
where, with regard to the admission of evidence,
the public interest in not disclosing the evidence
may outweigh the public interest in disclosure.
This frequently occurs where national security is
involved for the simple reason that the very exist
ence of our free and democratic society as well as
the continued protection of the rights of litigants
ultimately depend on the security and continued
existence of our nation and of its institutions and
laws.
One of the matters to be taken into consider
ation in deciding whether the public interest in
disclosing evidence outweighs the public interest in
non-disclosure, is the importance of the issue to
which the evidence relates. The present applicant
is in effect claiming, apparently with some possible
justification, that the refusal of a higher security
clearance will impede his promotion to a better
and a more lucrative position in the public service
for which he appears to be otherwise fully quali
fied. Although the matter is undoubtedly con
sidered an important one for the applicant, its
relative importance is not great when compared
with certain other similar matters which the courts
are called upon to decide or especially with crimi
nal proceedings, where such vital matters as the
reputation and the liberty of the subject are at
stake.
Another fundamental consideration is the
importance of the evidence itself and its relevance
to the issue to which it relates, especially where the
issue is vital and essential to the ultimate determi
nation of the dispute.
In the present case the relevance and possible
importance of the evidence can hardly be of a
higher order: counsel now all agree that the key
issue, if not the sole issue, which remained to be
determined by the Review Committee by means of
the evidence heard and considered in the absence
of the applicant, was whether the WCPM-L and
the GMLL or either one of them may be classified
as an organization constituting a threat to the
security of Canada. From the other evidence given
both by the applicant and others in his presence he
would apparently have to be denied the security
clearance which he seeks should either organiza
tion be found to constitute such a threat. It is
admitted by the respondents that there is no evi
dence of the applicant himself ever having been
personally engaged in any subversive actions of
any kind. The conclusions to be drawn from the
aims and actions of these two organizations thus
constitute the key issue and indeed the sole issue.
The evidence relating to it is not only relevant but
would appear to be absolutely vital in deciding
whether the denial of a security clearance was
justified. The evidence on this matter, adduced in
the presence of Mr. Henrie and his counsel, may
well be considered as somewhat tenuous and there
fore subject to being contradicted, tempered or
modified by evidence classified as secret and ten
dered in their absence and of which they were not
aware.
For the above reasons and also because the
classified oral evidence, exhibits and other docu
ments were in fact considered judicially and not
discarded or set aside by the Review Committee as
occurs in all other types of cases, I have decided to
exercise my discretion in favour of the applicant
and to examine the evidence. In the applications
under section 36.2 dealt with in the cases of
Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.);
approved on appeal in [1983] 2 F.C. 463; Gold v.
The Queen, [1985] 1 F.C. 642 (T.D.); approved on
appeal in [ 1986] 2 F.C. 129; and Kevork v. The
Queen, [1984] 2 F.C. 753 (T.D.), the last two of
which were heard by me at the trial level, the
discretion of the judge trying the validity of the
objection was, for the reasons mentioned in those
cases, exercised against actually reviewing the
classified evidence. However, contrary to the
present situation, the relevance of the evidence and
its importance to the determination of the issues
before the courts concerned were minimal or non
existent in each of the above-mentioned cases and,
as previously stated, the classified evidence was,
for that reason, not considered.
In conducting my examination of the documents
and evidence referred to in the certificate of objec
tion I was conscious of the fact that, unlike all
other cases, the classified evidence had already
been considered by the tribunal exercising original
jurisdiction and, in addition, that it related directly
to a final decision of a tribunal as opposed to
evidence relating to an on-going trial or proceed
ing.
The material before me, in addition to the secret
material covered by the certificate of objection,
consisted of affidavits submitted by both parties
which were filed for the hearing together with
summaries of the arguments. In addition to the
questions regarding the jurisdiction, counsel for
the parties addressed me on the merits of the
application.
During the hearing counsel for CSIS requested,
on the grounds of national security, permission to
present, in the absence of counsel for the appli
cant, an additional affidavit marked secret which
purported to explain why the evidence and each of
the documents mentioned in the certificate of
objection would be injurious to national security if
the contents were divulged to the public. I acceded
to his request. He also furnished me, for the same
reason, in the absence of counsel for the applicant,
a brief explanation regarding one or two para
graphs of the affidavit. I considered the classified
evidence and upon reconvening, in the absence of
counsel for the applicant, I addressed certain ques
tions to counsel for CSIS regarding some of the
documents mentioned in the certificate. Following
that, counsel for all parties presented closing argu
ments. Before adjourning I advised the parties
that, should any question arise in my mind regard
ing the possibility of editing any of the documents
and of releasing part thereof, there remained a
possibility of the hearing being reconvened for
further argument.
In considering whether the release of any par
ticular information might prove injurious to na
tional security and in estimating the possible
extent of any such injury, one must bear in mind
that the fundamental purpose of and indeed the
raison d'être of a national security intelligence
investigation is quite different and distinct from
one pertaining to criminal law enforcement, where
there generally exists a completed offence provid
ing a framework within the perimeters of which
investigations must take place and can readily be
confined. Their purpose is the obtaining of legally
admissible evidence for criminal prosecutions.
Security investigations on the other hand are car
ried out in order to gather information and intelli
gence and are generally directed towards predict
ing future events by identifying patterns in both
past and present events.
There are few limits upon the kinds of security
information, often obtained on a long-term basis,
which may prove useful in identifying a threat.
The latter might relate to any field of our national
activities and it might be an immediate one or
deliberately planned for some time in the relatively
distant future. An item of information, which by
itself might appear to be rather innocuous, will
often, when considered with other information,
prove extremely useful and even vital in identify
ing a threat. The very nature and source of the
information more often than not renders it com
pletely inadmissible as evidence in any court of
law. Some of the information comes from
exchanges of intelligence information between
friendly countries of the western world and the
source or method by which it is obtained is seldom
revealed by the informing country.
Criminal investigations are generally carried out
on a comparatively short-term basis while security
investigations are carried on systematically over a
period of years, as long as there is a reasonable
suspicion of the existence of activities which would
constitute a threat to the security of the nation.
When considering the issue of the relative merits
of the public interest in non-disclosure as opposed
to the public interest in disclosure, it is evident
that the considerations and circumstances to be
taken into account which might militate against
the proper control or suppression of threats to
national security are considerably more numerous
and much more complex than the considerations
which involve a national interest other than those
mentioned in section 36.2 of the Canada Evidence
Act. In criminal matters, the proper functioning of
the investigative efficiency of the administration of
justice only requires that, wherever the situation
demands it, the identity of certain human sources
of information remain concealed. By contrast, in
security matters, there is a requirement to not only
protect the identity of human sources of informa
tion but to recognize that the following types of
information might require to be protected with due
regard of course to the administration of justice
and more particularly to the openness of its pro
ceedings: information pertaining to the identity of
targets of the surveillance whether they be
individuals or groups, the technical means and
sources of surveillance, the methods of operation
of the service, the identity of certain members of
the service itself, the telecommunications and
cypher systems and, at times, the very fact that a
surveillance is being or is not being carried out.
This means for instance that evidence, which of
itself might not be of any particular use in actually
identifying the threat, might nevertheless require
to be protected if the mere divulging of the fact
that CSIS is in possession of it would alert the
targeted organization to the fact that it is in fact
subject to electronic surveillance or to a wiretap or
to a leak from some human source within the
organization.
It is of some importance to realize than an
"informed reader", that is, a person who is both
knowledgeable regarding security matters and is a
member of or associated with a group which con
stitutes a threat or a potential threat to the secu
rity of Canada, will be quite familiar with the
minute details of its organization and of the
ramifications of its operations regarding which our
security service might well be relatively unin
formed. As a result, such an informed reader may
at times, by fitting a piece of apparently innocuous
information into the general picture which he has
before him, be in a position to arrive at some
damaging deductions regarding the investigation
of a particular threat or of many other threats to
national security. He might, for instance, be in a
position to determine one or more of the following:
(1) the duration, scope intensity and degree of
success or of lack of success of an investigation;
(2) the investigative techniques of the service; (3)
the typographic and teleprinter systems employed
by CSIS; (4) internal security procedures; (5) the
nature and content of other classified documents;
(6) the identities of service personnel or of other
persons involved in an investigation.
An examination of the documents and of the
evidence mentioned in the certificate of objection
convinces me that the disclosure of whatever infor
mation in those documents which might in any
way pertain to the issue of whether the WCPM-L
or the GMLL were organizations which might or
might not constitute a threat to the security of
Canada, would prove injurious to national security
because, generally speaking, such disclosure would
either (a) identify or tend to identify human
sources and technical sources; (b) identify or tend
to identify past or present individuals or groups
who are or are not the subject of investigation; (c)
identify or tend to identify techniques and methods
of operation for the intelligence service; (d) identi
fy or tend to identify members of the service; (e)
jeopardize or tend to jeopardize security of the
services telecommunications and cypher systems;
(f) reveal the intensity of the investigation; (g)
reveal the degree of success or of lack of success of
the investigation. I also find that most documents
fall under two or more of the above categories.
It would in these reasons be improper for me to
comment directly on any particular document or
piece of evidence as there would be a serious risk
that such comments might serve to identify the
evidence and its source to any knowledgeable
person who might be or whose organization might
be a target of the investigation.
Having concluded that the disclosure would be
injurious to national security, I also find that it is
abundantly clear that the national interest served
in non-disclosure far outweighs any national inter
est in disclosure in this case. In arriving at this
conclusion the ultimate object and importance of
the litigation or dispute as well as the relevance of
the information to the issue to be determined have
been taken into consideration.
There can be no question of editing or disclosing
portions of the documents as the portions which do
not relate to the issue between the parties would be
of no use whatsoever to the applicant and there
can exist no true legal basis for disclosing it.
Furthermore, there always remains the danger
that, however innocuous the disclosure of informa
tion might appear to be to me, it might in fact
prove to be injurious to national security.
For the above reasons the application will be
dismissed with costs and the certificate of objec
tion in issue will be confirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.