Vanguard Magazine

Feb/Mar 2015

Preserving capacity, General Tom Lawson, Chief of the Defence Staff, Keys to Canadian SAR

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T The laST WORD 46 FEBRUARY/MARCH 2015 Joshua Samac is a J.D. candidate at the University of Alberta. The evolving terror threat context has put agencies like the RCMP and CSIS at the front of a tension between providing procedurally fair prosecutions while maintaining the nation's security. This tension provokes serious questions as to the kind of de- mocracy that we want to live in: the kind that respects individual rights and the rule of law or the kind that quietly sweeps flagrant rights violations under the rug. Do terrorists even deserve to take advantage of the human rights protections that were originally designed to protect Canadians from an overbearing government in the first place? Who can rightly be label a terrorist? Late in 2014 following (though not in light of) the attacks in Ontario and Quebec, this tension played itself out on the floor of the House of Commons when Minister of Public Safety Steven Blaney sponsored Bill-C44, The Protection of Canada from Terrorists Act. What is interesting about this legislation is the way that it proposes to deal with terrorism in Can- ada and effectively navigate this tension. The Bill proposes amendments to a number of leg- islative regimes. In so far as it relates to CSIS, the Bill will create a new class privilege and will expand the geographic horizon within which the organization may legally operate, giving the organiza- tion far more breathing room than it has ever had. Privilege is a rule of evidence that protects the one who holds the privilege from being forced to testify in a courtroom. When invoked, counsel may not summon or compel the person hold- ing the privilege to be cross-examined as to the veracity of his or her claims. Class privilege invokes the idea that there are certain classes of relationships whose private and secret confidences are so valuable to the functioning of Canadian society that they are automatically protected by the privilege doctrine. Solicitors and clients, police informants, and Cabinet meetings relevant to na- tional security are also classes of privilege in Canada. The reason Bill C-44 is significant is because the Supreme Court of Canada, in its ruling on R v Harkat, has clearly expressed its refusal to recognize (and thereby create) a new class privilege that would attach to CSIS informants. Facing this issue, the Supreme Court left it up to Ottawa to legislate on the matter if it so saw fit to create the class in legislation (rightfully so: our elected repre- sentatives are often better suited to the task). Ottawa, in clear disregard for the legal reasons against creating this new class privilege, has placed a premium on the national security reasons side of the debate and legislated a CSIS informant privilege. This all begs the question: why don't the courts want to recognize CSIS informant privilege and what is the legal ar- gument against doing so? Boiled down, it absolutely hinges on the philosophical distinction between intelligence gathering and police investigation. The Canadian legal system guarantees the accused a Consti- tutional right to a "full answer and defense." This concept, en- shrined as both a principle of fundamental justice as well as an 11(d) Charter right to a "fair trial," guaran- tees the accused person the right to examine a witness. If the witness is covered by a class privilege, there is a presumption that they may not be compelled to examination unless as a matter of last resort – i.e., the accused's inno- cence absolutely hinges on the examination of the privileged informant. Conversely, and as the law stands now for CSIS informants, the trial judge has the dis- cretion to weigh the pros and cons behind upholding a claimed privilege. The common law privilege is far more malleable and easier to be broken than is a class designation. CSIS' operational philosophy bears a unique preventative dy- namic to it and the RCMP's operations are characterized by meticulous truth-seeking and retributive rules of evidence. This means that CSIS is not overly concerned with collecting evidence for the purpose of a prosecution, as its mandate is largely preven- tative. That being so, CSIS operatives may be more inclined to offer privilege in exchange for immediately relevant information without the due regard for the evidentiary implications on a future criminal proceeding. The RCMP, given its operational philosophy of meticulous evidence gathering, are better suited to wield this legal tool, as they must give due consideration to the impact that doing so will have on their future criminal prosecution. Though seemingly benign, a simple provision such as that con- tained in Bill C-44 on CSIS informant privilege has huge impli- cations for the way that Canada engages the war on terror. By opting to create a CSIS class privilege, the Canadian government is choosing the immediacy of stopping terror threats at all costs without considering the legal implications behind giving CSIS operatives the power to offer class privilege. canadian rights or rights defenders? Why don't the courts want to recognize cSIS informant privilege and what is the legal argument against doing so?

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