Spy service fights ruling it says puts informants in danger.

By Andrew Duffy

Postmedia News

OTTAWA — Canada’s spy agency says its network of informants has been “imperilled” by a Federal Court of Appeal decision that struck down its right to always shield the names of its sources.

Public Safety Minister Vic Toews has asked the Supreme Court to overturn the ruling.

“As with police informers, the identity of informers who provide information to the Canadian Security Intelligence Service (CSIS) must be protected or their lives and the lives of their families could be at risk,” federal lawyer David Tyndale argues in documents filed in support of the government’s leave to appeal.

“Without a guarantee of confidentiality, individuals would be reluctant to come forward and assist CSIS, and sources would dry up.”

The appeal court ruling, he says, damages Canada’s national security, impairs its ability to deport foreign-born terror suspects, and creates two classes of informants: those who work for the police and those who work for CSIS.

“These are issues of the utmost public importance,” Tyndale contends.

In April, the Federal Court of Appeal struck down a blanket legal protection — it’s known as a “class privilege” — that had been extended to CSIS informants.

Confidential police sources already enjoy a near-absolute right to have their names kept out of court proceedings. (The lone exception involves a crime in which a defendant’s innocence can only be established by unmasking the informant.)

The appeal court, however, said it was unnecessary for CSIS informants to be offered the same automatic protection since other legal safeguards are available to them.

The issue first arose in 2008 during Mohamed Harkat’s security certificate hearing.

Canada has been trying to deport the Algerian-born Harkat since December 2002, when he was arrested and accused of being a member of the al-Qaida network.

During a closed hearing to decide if Harkat posed a threat to national security, his lawyers asked to cross-examine several CSIS informants.

Those lawyers — security-cleared special advocates — act for Harkat during closed court sessions. They have a limited ability to communicate with Harkat or his public defence team.

Judge Simon Noel, however, rejected their request, ruling that the spy agency informants should be protected in the same way as confidential police sources.

The appeal court disagreed. A panel of judges said the security certificate law sufficiently protected CSIS informants since it allowed the government to shield their identities by demonstrating that their safety would be endangered by any kind of exposure.

The ruling leaves open the possibility that CSIS informants will be cross-examined in-camera by Harkat’s special advocates.

Government lawyers want the Supreme Court to eliminate that possibility in the Harkat case — and all others.

“Although measures may be put in place to prevent the public disclosure of the source,” Tyndale says, “bringing a human source to court to testify — even in a secured, closed setting before security-cleared lawyers and other court personnel sworn to secrecy — will have significant negative repercussions.”

Such an event, Tyndale predicts, would make it difficult for the agency to guarantee confidentiality to other potential sources, damaging Canada’s national security.

Meanwhile, Harkat’s lawyers contend that making CSIS sources available for cross-examination is essential for a fair trial.

Otherwise, they say, CSIS will be able to rely on evidence presented against Harkat in secret while offering his defence no opportunity to test the credibility or reliability of the source of that information.

Two years ago, the federal Air India Inquiry wrestled with the same issue. The commission recommended that the courts weigh on a case-by-case basis whether the identify of CSIS informants should be shielded by the law.

Ottawa Citizen

PN 7/03/12 10:09:16