Date: 20160708

Docket: A-520-15

Citation: 2016 FCA 195

CORAM:

GAUTHIER J.A. SCOTT J.A. DE MONTIGNY J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Appellant

and

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

Heard at Ottawa, Ontario, on June 14, 2016.

Judgment delivered at Ottawa, Ontario, on July 8, 2016.

REASONS FOR JUDGMENT BY:	GAUTHIER J.A.
CONCURRED IN BY:	SCOTT J.A. DE MONTIGNY J.A.

 

Date: 20160708

Docket: A-520-15

Citation: 2016 FCA 195

CORAM:

GAUTHIER J.A. SCOTT J.A. DE MONTIGNY J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Appellant

and

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

REASONS FOR JUDGMENT

GAUTHIER J.A.

[1]               The Attorney General of Canada (AGC) appeals from the decision of Justice Richard Mosley of the Federal Court (the judge), who concluded that the application of section 18.1 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act] in the particular circumstances of this case would be “invalid” (2015 FC 1278). More particularly, the judge found that section 18.1 was not merely a procedural rule of evidence, that it would have a retrospective application, and that applying it would affect the vested rights of the respondents in the disclosure of the information identifying the human source involved in this matter, subject only to the weighing of the factors provided for at section 38 and following of the Canada Evidence Act, R.S.C. 1985, c. C-5 [CEA]. I note that reference in these reasons to section 38 encompasses sections 38 to 38.16 of the CEA.

[2]               The finding of the judge in respect of the application of subsection 18(1) of the CSIS Act is not the subject of the appeal. Thus, the question involving the redacted information relating to Canadian Security Intelligence Service (CSIS) employees will be dealt with in the section 38 proceeding in accordance with the judge’s finding at paragraph 55 of his reasons.

[3]               It is worth mentioning immediately that this appeal only requires the application of well-established principles of statutory interpretation to the particular provision under review. That said, this does not mean that the question before us is easy, for it concerns the temporal application of the new statutory class privilege given to CSIS human sources pursuant to section 18.1 of the CSIS Act. As noted by Professors Côté, Beaulac and Devinat in Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) at 116, transitional law is one of the most difficult fields in law.

[4]               For the reasons that follow, I would allow the appeal.

I.                   Background

[5]               The general background and relevant procedural history of the civil proceedings instituted by Messrs. Abdullah Almalki, Ahmad Abou-Elmaati, Muayyed Nureddin and certain family members (collectively referred to as the respondents), and the ensuing applications made by the AGC under section 38 of the CEA, are fully set out in the judge’s reasons (see paragraphs 14 to 36).

[6]               For our purposes, it is sufficient to say that more than ten years ago, the respondents instituted civil proceedings before the Ontario Superior Court to claim damages arising from an alleged breach of their rights and freedoms protected under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter].

[7]               In the context of mediation attempts, as well as in the course of the pre-trial discovery process after the mediation failed, the AGC produced many redacted documents but refused to produce information that would tend to identify covert human sources of CSIS. Among other things, the AGC invoked the national security privilege.

[8]               As a result, the AGC commenced two applications pursuant to section 38 of the CEA. The first application, which related to documents provided in contemplation of mediation, was addressed in file DES-1-10. The second application, which related to the respondents’ request for disclosure of all relevant documents after the mediation failed, was addressed in DES-1-11. The DES-1-10 application was disposed of in Canada (Attorney General) v. Almalki et al, 2010 FC 1106, [2012] 2 FCR 508 [Almalki 2010] and Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 FCR 594 [Almalki 2011].

[9]               It is over the course of the current section 38 proceeding in DES-1-11, in October 2014, that Bill C-44, an Act to Amend the Canadian Security Intelligence Service Act and other Acts, was introduced. It came into effect on April 23, 2015 as the Protection of Canada from Terrorists Act, S.C. 2015, c. 9. It is generally understood and agreed that the amendments at issue in this appeal were made in response to recent jurisprudential developments which indicated that contrary to CSIS’s belief, their human sources did not benefit from the common law absolute privilege afforded to police informers. Indeed, the Supreme Court of Canada noted in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 at para. 87, [2014] 2 S.C.R. 33 [Harkat] that if this was felt to be desirable, only the legislator could create such a new class privilege. A similar message had been sent by our Court in Almalki 2011 at para. 34.

[10]           Consequently, the parties, including the duly appointed amici, made oral and written submissions to the judge with regard to the interpretation and application of the new and revised legislation, which could impact on the judge’s ability to weigh the factors set out in section 38 of the CEA with respect to information that could identify human sources.

II.                The Federal Court decision

[11]           On November 23, 2015, the judge issued what he characterized as an interlocutory decision on this important and distinct question. Indeed, the judge notes at paragraph 63 of his reasons that if section 18.1 applied to the case, “it [would] effectively oust [his] jurisdiction […] to adjudicate the disclosure of information which may identify a human source under s 38 of the CEA.”

[12]           The judge starts his analysis by stating that there is a strong presumption that the legislator does not intend its laws to apply either retroactively or retrospectively. He mentions that the distinction between retrospectivity and retroactivity can be difficult to ascertain. He then explains that while the parties agree that section 18.1 should not apply retroactively or retrospectively, they differ on whether its application in the proceeding before him would be prospective (see judge’s reasons at para. 63).

[13]           It appears that the debate before the judge was focused on whether section 18.1 was meant to apply to all proceedings, regardless of when they had started, provided there had been no disclosure of the human source information prior to that date. The judge appears to have accepted the arguments of the respondents that the focus should be on the definition of “human source” at section 2 of the CSIS Act (see para. 23 below), because when one applies the definition to this case, it refers to events that took place well before the amendments were adopted. Thus, the respondents argued that the application of section 18.1 would make it at least retrospective, if not retroactive.

[14]           Interestingly, the judge notes that the respondents argued that the AGC seeks to confer new legal status on past events (see judge’s reasons at para. 67), but does not discuss this argument any further before concluding that to apply section 18.1 to a human source that provided information thirteen or fourteen years before the date of the enactment would be to give the legislation a retrospective effect (see judge’s reasons at para. 72).

[15]           In his view, the only question left to be resolved was whether the legislation affects substantive or vested rights. The judge’s approach appears to have been based on paragraph 10 of R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 [Dineley] (see judge’s reasons at para. 61; see also my comments in that regard at paragraphs 30-31).

[16]           The judge concludes that section 18.1 established a new class privilege that creates, in his view, substantive rights for human sources. The respondents and the amici contended that the right to confidentiality conferred to human sources is substantive, because it stems from a person’s status as a source, which is attained as soon as certain events occur (see judge’s reasons at para. 84). They submitted that both the right and status exist irrespective of whether there is litigation. It is on this basis that the judge finds that section 18.1 could not merely be a rule of evidence or procedure.

[17]           Although he does not clearly explain why this is necessary in the context of his analysis, the judge then goes on to say that without expressing a view on the merits of the allegations in the respondents’ civil actions, the court “could reasonably infer” that the application of section 18.1 “could have” an adverse effect on the respondents’ ability to establish their claims before the Ontario Superior Court (see judge’s reasons at para. 92).

[18]           In the last part of his reasons, the judge considers an alternative basis for the conclusion that section 18.1 should not be applied. He goes on to review the application of the presumption against interference with vested rights and whether the respondents had a vested right in the disclosure of human source information subject only to a section 38 balancing assessment. At paragraphs 95-98, he sets out the legal principles that he intends to follow. However, it is difficult to ascertain the judge’s reasoning in respect of the weight given to the presumption, since he mainly discusses arguments dealing with the nature of the rights that would be vested in the respondents, including the fact that his earlier decision in DES-1-10 could not be considered res judicata in respect of the new documents involved in DES-1-11. There is little discussion of the legislator’s intent to rebut the presumption.

[19]           The judge mentions that he could not accept that in a section 38 review, the right to information is not vested until the very moment it is disclosed. Rather, in his view, the respondents had a right to discovery as part of the civil trial process “from the outset” (see judge’s reasons at para. 107). In a section 38 review, the question is whether the information which would normally be disclosed during discovery can be protected from disclosure on public interest grounds.

[20]           The judge then mentions that in his view, he is not dealing with the repeal of an existing statute or even of an existing common law privilege. He found that Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271 [Gustavson] was of little help given that it was dealing with an income tax issue and the analogy with this case was weak. For him, it was overreaching to compare the right to disclosure in an ongoing proceeding with the right to a specific tax exemption where annual changes ought to have been anticipated by taxpayers.

[21]           On that basis, he concludes that he is satisfied that, at the time section 18.1 of the CSIS Act was brought into force, the respondents had a vested right to the established disclosure regime for the duration of the section 38 proceeding (see judge’s reasons at para.110).

III.             Legislation

[22]           The new section 18.1 reads as follows:

[23]           “Human Source” is defined as follows at section 2:

IV.             Analysis

A.                Standard of review

[24]           The only question before us is the temporal application of section 18.1. This is a question of law, which is subject to the standard of review of correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).

[25]           However, the respondents and amicus (only one appeared before us) take the position that the distinct question of whether or not the respondents have a vested right is a question of mixed fact and law subject to the standard of palpable and overriding error. The AGC argues that this question is an integral part of the interpretation of section 18.1 and thus only involves a pure question of law. In my view, which standard of review applies in respect of whether the respondents have a vested right is of no consequence in this case (see para. 57 below).

B.                 Preliminary remarks

[26]           Before starting my analysis, I would like to make a few preliminary remarks that are important to keep in mind when reviewing the case law relied upon by the parties as well as any case law dealing with the difficult question of temporal application of statutes.

[27]           The first hurdle, as mentioned by the judge, is the difficulty created by the inconsistent use of terminology in older textbooks and in the case law. Second, we ought to keep the various applicable principles of statutory construction distinct.

[28]           The meaning of “retrospective” is not always clear, not only in the older authorities, but in modern authorities as well. In fact, it is often used as synonymous of “retroactive”. This problem, as I said, persists to this very day despite consistent efforts by authors such as Elmer A. Driedger, Ruth Sullivan and P.A. Côté to warn against it. This is unfortunately compounded by the fact that distinct presumptions, such as those against the retroactive and the retrospective application of statutes (as defined and discussed by Driedger in “Statutes: Retroactive Retrospective Reflections” (1978) Can. B. Rev. 265 [Retroactive Retrospective Reflections], and by Côté in Interpretation of Legislation in Canada at 140-144), are often insufficiently distinguished from the presumption against interference with vested rights. The latter generally applies to all statutes, not only those that are retroactive or retrospective.

[29]           It is obviously tempting to write more concisely in an attempt to summarise our thinking by merging various elements of these very distinct principles of construction. However, the risk in doing so is to unintentionally conflate presumptions that do not have the same strength and that may be rebutted by different methods.

[30]           One such presumption provides that procedural provisions apply immediately to all proceedings under way in respect of all future steps taken. It may well be accurate to say that this presumption will not apply if the procedural provisions in question create or infringe upon substantive rights. However, this is not because it is an exception to the application of the presumption; rather, it is simply because a provision, by its very nature, is not merely or solely a procedural provision if it affects substantive rights. Thus, the presumption is simply not in play in such cases. In a different but related vein, even provisions that are of immediate or prospective application are subject to the presumption against interference with vested rights.

[31]           As noted by Driedger, it is wrong to hold that a statute is either retroactive or retrospective simply because it interferes with vested rights (Retroactive Retrospective Reflections at 266). Indeed, once again, the presumption against interference with vested rights is quite distinct and does not have the same weight as the presumption against retroactivity or the presumption against retrospectivity. It may be that in practice, the same result is achieved. Still, because of the difficulty involved in temporal application in the absence of clear transitional provisions, one should keep those concepts separated to ensure that proper weight is given throughout the purposive analysis. For example, it is clear that Justice Deschamps did not mean to change the applicable rules of interpretation at paragraph 10 of Dineley. Such rules are more fully described by Justice Cromwell at paragraph 35 of the same decision (see also Justice Bastarache in Dikranian v. Quebec (Attorney General), 2005 SCC 73 at paras. 45-51, [2005] 3 S.C.R. 530 [Dikranian]).

[32]           Vested rights are necessarily substantive rights, for there is no vested right in a mere process or procedure. Thus, in that sense only, if a new provision interferes with vested rights it is an indication that it is not merely procedural. This explains the wording used by Justice Deschamps at paragraph 10 of Dineley in reference to Wildman v. R., [1984] 2 S.C.R. 311, in which Justice Lamer was dealing with whether or not the rule of evidence in question involved substantive rights or was merely procedural.

[33]           I will now turn to my analysis.

[34]           In this appeal, the parties have raised arguments that are intended to address the following four distinct presumptions:

1. The presumption that the legislature does not intend legislation to be applied retroactively, that is, applied so as to change the past legal effect of a situation that has occurred completely in the past. This presumption is strong (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis, 2014) at 761, para. 1);
2. The presumption that the legislature does not intend legislation to be applied retrospectively (as that term is defined by Driedger in Retroactive Retrospective Reflections), that is, applied so as to change the future legal effect of a situation that has occurred completely in the past, unless it is enacted to protect the public. The weight of this presumption is variable (Ibid at 761, para. 2); it thus cannot simply be described as “strong”, like the presumption against retroactivity;

    iii.            The presumption that the legislature intends procedural legislation to apply immediately to any ongoing proceeding and in respect of steps to be taken in the future (Ibid at 761, para. 5);

    iv.            The presumption that the legislature does not intend to interfere with vested rights. Again, the weight of this presumption varies depending on factors such as the nature of the protected right and how unfair or arbitrary it would be to abolish or curtail that right. The presumption is often rebutted without reference to express legislative language (Ibid at 761, para. 3; see also Interpretation of Legislation in Canada at 167).

[35]           I do not intend to deal in much detail with the first or third presumption referred to above for in my view, they simply have no application here.

[36]           Indeed, it is clear, in my view, that section 18.1 of the CSIS Act is not intended to have retroactive effect, i.e., to affect the past legal effects of a situation that has completely arisen in the past.

[37]           I also agree with the respondents and the amicus that section 18.1 is not merely a procedural rule of evidence. As noted in Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 at para. 56, [2004] 2 S.C.R. 248, “[…] for a provision to be regarded as procedural, it must be exclusively so.” The judge’s comment that the application of section 18.1 would oust his jurisdiction under section 38 in respect of information tending to identify human sources (see judge’s reasons at para. 63) lends additional support to the other arguments discussed herein in respect of the substantive nature of section 18.1.

[38]           Although some of the provisions in section 18.1 deal with the applicable procedure (see subsections 18.1 (4) to (7)), it does create a substantive right in favour of  human sources based on the status of the individuals and their special relationship with CSIS. The class privilege created at section 18.1 is akin (albeit somewhat different) to the common law class privilege applicable to police informers which is described by this Court in Almalki 2011 as “a legal rule of public order by which a judge is bound” (see paragraphs 15-18). This is consistent with the AGC’s contention that the adoption of Bill C-44 resulted from the comments of the Supreme Court of Canada in Harkat SCC, where the Court confirmed that only the legislator could create such a class privilege for CSIS human sources if deemed desirable.

[39]           Section 18.1 thus creates an exception to the right of the public “to every person’s evidence” (R. v. National Post, 2010 SCC 16 at para. 1, [2010] 1 S.C.R. 477). It trumps the public interest in the disclosure of all the evidence by taking it out of the Federal Court jurisdiction under section 38 of the CEA.

[40]           This interpretation is the only one consistent with the legislator’s choice to include a specific paragraph spelling out very clearly that the purpose of the provision is to protect the life and security of human sources and to encourage individuals to provide information to CSIS (see subsection 18.1(1)). It would make little sense to make such a declaration if the provision dealt with a mere process or procedure.

[41]           The next question is thus whether the second presumption is in play (because section 18.1 deals with the future legal effect of a situation that has completely arisen before its enactment) or whether section 18.1 is simply prospective (i.e., whether it deals with the future legal effect of an ongoing situation, including an individual’s status as a human source).

C.                 Is the presumption against retrospectivity in play?

[42]           As mentioned at paragraph 16 above, when presenting their arguments to the judge, the respondents and the amicus argued that the right set out in section 18.1 is based on the status of an individual as a human source. I agree.

[43]           Although this was meant to address the third presumption, this is an important point to consider when identifying the “situation” to which the statutory provisions under review are intended to apply or to which they attach legal consequences.

[44]           Indeed, as both Côté and Driedger note, the most important step in applying the various presumptions is to correctly characterise the situation to which the statute applies: Pierre-André Coté, “La position temporelle des faits juridiques et l’application de la loi dans le temps” (1988) 22 R.J.T. 207 at 210-211 [Position temporelle des faits juridiques]; Interpretation of Legislation in Canada at 135. This is rarely an easy task and it requires a purposive interpretation of the provision. As mentioned by Justice Iacobucci, writing for the Court in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at paras. 45-46, 208 N.R. 81 [Benner]:

The question […] is one of characterization […].

[M]any situations may be reasonably seen to involve both past discrete events and on-going conditions.  A status or on-going condition will often, for example, stem from some past discrete event.  A criminal conviction is a single discrete event, but it gives rise to the on-going condition of being detained, the status of “detainee”.  Similar observations could be made about a marriage or divorce.  Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the current condition resulting from it.  This is, as I already stated, a question of characterization, and will vary with the circumstances.  Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply.

[45]           That a statutory provision is meant to attach consequences to a status or an ongoing situation is very different from when it is intended to deal with the future or past legal effect of an event that has completely arisen in the past: see Benner at para. 42, where Justice Iacobucci relies on Driedger’s proposition as reasserted in Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983). It appears that this important step was not considered by the judge, who focused on the fact that in this case the individual events that brought about the relationship between an individual and CSIS took place long before section 18.1 was enacted. At the same time, the judge accepted that it is the ongoing status of the individual as a human source that gives rise to the so-called class privilege.

[46]           The expression “human source” or “CSIS human source” is not new. It has often been used in the past (see for example Canada (Attorney General) v. Telbani, 2014 FC 1050 at paras. 45-47). It has even been used by the respondents in this very case well before the drafting of Bill C-44 (see the part entitled Human Source Information in the judge’s decision in Almalki 2010 at paras. 163-170; see also Almalki 2011 at paras. 10-34). In Harkat SCC at paras. 78-87, the same expression was also used where a different statutory regime was in play.

[47]           There was no real need to include a definition of “human source” in the CSIS Act. Without one, there would be little doubt that the Act was meant to apply to the ongoing status (or the “state of being”) of a human source. However, given the various jurisprudential comments about the past interpretation of this term by CSIS itself, one can surmise that the legislator found it desirable to define the “ingredients” that establish the relationship giving rise to the status of human source.

[48]           When one considers the wording of the definition (see paragraph 23 above) in context, including the wording of paragraph 18.1(4)(a) which gives the right to argue that “an individual is not a source”, the intention of the legislator is clear. Once an individual meets the criteria set out at section 2, he or she is a source and he or she keeps that status on an ongoing basis. To use the words of Driedger, it is “being” a source that brings about the legal consequences set out in section 18.1, even if the relationship which brought about this status was created before the enactment of the CSIS Act (see also Position temporelle des faits juridiques at 215-219, 228-29 and 236-237).

[49]           At the hearing, the amicus agreed that the Court could reach such a conclusion. He noted that, in his view, the crucial question in this appeal was really the application of the presumption against interference with vested rights. I agree and will address this principle next.

[50]           To conclude this part, considering that the new provisions are meant to apply to an ongoing situation, that is, the status as a human source, the presumption against the retrospective application of the statutory provisions under review is not in play.

[51]           As the presumptions against retrospectivity and retroactivity are not in play, it is unnecessary to deal with the judge’s finding that section 18.1 “could” ultimately have adverse effects on the respondents’ ability to establish their claims in the Ontario Superior Court (see judge’s reasons at para. 92).

[52]           Indeed, he only appears to have considered necessary to deal with this issue, which he characterized as distinct from the one of whether the respondents had vested rights in the disclosure of the human source identifying information subject to section 38 (Part V.B.(3) of his reasons), because of his understanding that this made section 18.1 retrospective in its application (see judge’s reasons at para. 61).

[53]           In any event, given the limited nature of the information protected by section 18.1, the type of information that has been disclosed in section 38 proceedings in the past, and without knowing all the information that is already available to the respondents, it is impossible to assess the basis for this inference “of a possible impact.”

D.                The presumption against interference with vested rights

[54]           Throughout my analysis, I have obviously followed the modern approach to statutory interpretation which requires one to read the words of the Act in their entire context (which includes the applicable presumptions), in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. As noted by Justice Bastarache in Dikranian, it is particularly important in respect of the presumption against interference with vested rights to avoid falling into the trap of literal construction of the statutory provision: Dikranian at para. 36.

[55]           Although this is the last part of the analysis, I thought that it would be more appropriate to discuss the purpose and the legislative evolution and history of the provision under review in more detail in this part to avoid repetition. I will do so after determining whether or not the respondents have a vested right that puts in play the presumption against interference with such rights.

[56]           Except for the issue of res judicata, the arguments of the parties were substantially the same as those mentioned in Part V.B.(3) of the judge’s reasons.

[57]           As I noted earlier (see para. 25 above), I do not believe that the standard of review to be applied to this question is relevant, for I believe that the judge correctly decided that the right of the respondents to the disclosure of all relevant information subject to the application of section 38 is not merely a right to a process.

[58]           In Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95 at paras. 17-21, 330 D.L.R. (4th) 69 (a decision issued in the civil proceedings instituted by some of the respondents), the Ontario Court of Appeal found that the scheme established by section 38 of the CEA is in fact a liberalization of the common law Crown privilege based upon international relations, national security and national defence which had previously been absolute and not open to any scrutiny.

[59]           As alluded to earlier, the new section 18.1 effectively replaced the former rule that applied to CSIS human sources by deleting the reference to such sources in former subsection 18(1) of the CSIS Act. Indeed, former subsection 18(2) allowed the application of section 38 of the CEA up until the amendments were introduced in April 2015 (the former provisions are reproduced in Appendix A).

[60]           Thus, when one considers the historical context and the legislative evolution of section 38 of the CEA and of section 18.1 of the CSIS Act, it is evident that the new provision deprives the respondents of the benefit of the more liberal version of the privilege set out in section 38 of the CEA pursuant to which the question of the identity of sources and information tending to identify them was dealt with up until now.

[61]           In that sense, I agree with the amicus that the recent amendments change the “rules of the game to the disadvantage of the respondents” (Memorandum of Fact and Law of the Amicus Curiae at para. 29). This means that I must proceed to determine whether the presumption that the legislator did not intend such a result has been rebutted.

[62]           As mentioned earlier at paragraph 34, the weight of this last presumption depends on various factors such as the nature and importance of the right the respondents seek to protect and how unfair or arbitrary it would be to deprive them of such a right. The Court must also try to determine through purposive interpretation whether such unwanted consequences are necessary or warranted by the goal(s) the legislator sought to achieve.

[63]           As noted by the judge at paragraph 43 of his reasons, “[i]n the words of the Bill’s sponsor, the Minister of Public Safety and Emergency Preparedness, the purpose of this amendment [new section 18.1] was to give greater protection to CSIS’s human sources.”

[64]           Subsection 18.1(1) expressly provides that:

[65]           The respondents say that, in respect of “true” human sources, the amendments are redundant and bring nothing over and above the protection afforded pursuant to section 38. In their memorandum, the respondents also say that to encourage individuals to provide information does not necessarily warrant an interference with their vested rights.

[66]           I cannot accept those arguments. The legislator does not speak unnecessarily and the new legislation is presumed to be remedial. As argued by the AGC, the new statutory provisions were meant to fill a perceived gap after it was confirmed by the Supreme Court of Canada that the absolute common law privilege protecting police informers did not apply to CSIS human sources. This meant that, in theory, a judge could decide to release information identifying such sources if he or she felt that the public interest in the disclosure prevailed. The adoption of section 18.1 signals that the legislator has balanced all the relevant factors and found that the public interest in the non-disclosure of this specific and somewhat limited type of information must trump all other rights, subject to paragraph 18.1(4)(b).

[67]           It is also important to keep in mind that the legislator is presumed to know the law and how it has been applied. This means that the legislator, before adopting section 18.1, is presumed to have been aware of how section 38 has been applied and how the balancing between public interest in a disclosure versus the public interest in non-disclosure has been carried out. Indeed, the following remarks are also useful to assess the parameters of the vested right here in play.

[68]           There was general agreement before us that as of now, the identity of human sources or of information tending to identify human sources has never been disclosed in the context of section 38 proceedings. This includes the section 38 proceeding in DES-1-10: the judge expressly notes at paragraph 25 of his reasons that no such information was disclosed to the respondents in DES-1-10.

[69]           The judge also stated in his decision in Almalki 2010 that the primary public interest in disclosure, which exists to ensure that the trial court has the fullest possible access to all relevant material, is not an overriding consideration that will compel a decision to disclose when national security is at stake (see Almalki 2010 at para. 178). It is also relevant to mention that in Almalki 2010, the judge was very well aware of the public interest in holding government accountable for the alleged action and omission referred to in the respondents’ civil proceedings. He noted however that despite the alleged breaches of their Charter rights, the security and Charter rights of the respondents are not presently at stake in the underlying proceedings (see judge’s reasons; Almalki 2010 at paras. 181-185; see also the comments of this Court in Almalki 2011 at paras. 32-33).

[70]           When one considers the short delay between the Supreme Court decision in Harkat (May 2014) and the filing of Bill C-44 (October 2014), one can assume that Parliament saw the need to deal with the mischief addressed by the adoption of section 18.1 as urgent. That mischief was the perception that CSIS human sources were not automatically protected by a privilege of confidentiality akin to that of police informers, and that their protection was thus left entirely to the process set out in section 38.

[71]           From this, I can only conclude that inasmuch as the respondents still have a “possibility” – albeit a remote one – of obtaining the disclosure of information identifying human sources under section 38, it is that very possibility that the legislator was addressing in adopting section 18.1.

[72]           I agree with the amicus that section 18.1 would have been clearer and certainly made our task easier if the legislator had added, after “a proceeding before the Court” in subsection 18.1(2), the words “commenced before or after the coming into force of this subsection” (i.e., something similar to a transitional provision). However, when the actual words of the section are read in their proper context in accordance with the principles of purposive interpretation, the absence of this additional wording is not sufficient in my view to avoid the conclusion that the legislator intended to protect the disclosure of the information described in section 18.1 in all proceedings.

[73]           I agree with the AGC that when one considers the slight possibility of the respondents obtaining information that would identify human sources in the context of their section 38 proceeding, against the clear intention of Parliament to protect the life and security of every individual who is a human source (ongoing status), it is difficult, if not impossible, to conclude that Parliament would have intended to leave the possibility of a disclosure open. This is so because in the legislator’s view, disclosure could have a direct impact on the life and security of human sources. Moreover, in my view, if it became known that the life of a human source was actually threatened or lost, regardless of when that person became a source, it could have an impact on CSIS’ ability to recruit new human sources.

[74]           Although this is not decisive, I also consider that the interference with the rights under review is not in this case arbitrary, nor is it unduly unfair. Under section 38, the judge would still ensure that the respondents get as much information as possible in respect of the substance of the information that was actually conveyed by the source. Further, subsection 18.1(4) sets out a number of protections to which the respondents may resort to, if necessary.

[75]           Indeed, it is important to recall that the new scheme set out in section 18.1 includes the ability for parties like the respondents or the amicus to apply to the Court to challenge whether an individual is a human source within the meaning of the CSIS Act and whether information said to tend to identify such a source actually does.

[76]           I also have some reservations with the view that the definition of “human source” in the CSIS Act is much broader than the definition of human source used by judges in the past. It may well be that CSIS has not been discriminate enough in the past in determining whether an individual is a “true” human source or not, but given the impact of section 18.1, I am confident that the courts will now very carefully monitor this process. It is too early to assume that the definition in section 2 of the CSIS Act will be construed broadly. One must wait for the jurisprudence to develop in the context of applications under subsection 18.1(2).

[77]           I am satisfied that the presumption against interference with vested rights is rebutted in this case.

[78]           For all the foregoing reasons, I conclude that section 18.1 is applicable to the section 38 proceeding in DES-1-11 and I propose to allow the appeal. I would set aside the judgment of the Federal Court and, rendering the decision that should have been made, I would declare that section 18.1 of the CSIS Act applies in the proceeding in DES-1-11.

"Johanne Gauthier"

“I agree

A.F. Scott J.A.”

“I agree

Yves de Montigny J.A.”

APPENDIX A

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED NOVEMBER 23, 2015, DOCKET NO. DES-1-11 (2015 FC 1278)

DOCKET:	A-520-15
STYLE OF CAUSE:	THE ATTORNEY GENERAL OF CANADA v. ABDULLAH ALMALKI ET AL
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		June 14, 2016
REASONS FOR JUDGMENT BY:		GAUTHIER J.A.
CONCURRED IN BY:		SCOTT J.A. DE MONTIGNY J.A.
DATED:		July 8, 2016

APPEARANCES:

Christopher Rupar Derek Rasmussen	For The Appellant
Barbara L. Jackman	For The Respondents (Elmaati and Nureddin)
John Norris	AMICUS CURIAE

SOLICITORS OF RECORD:

William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario	For The Appellant
Jackman and Associates LLP Barristers & Solicitors Toronto, Ontario Stockwoods LLP Barristers Toronto, Ontario	For The Respondents
John Norris Toronto, Ontario	AMICUS CURIAE