Secret witnesses in Canadian courts?

If you haven’t seen it yet bill C-44 (the Protection of Canada from Terrorists Act) is an interesting read (see more here: http://openparliament.ca/bills/41-2/C-44/). It does a number of things, mostly putting in law things that are already happening. One portion of it is highly problematic, though others might take issue with different provisions, and that would be subsection 18 – the secret witness section. Here’s the complete text of that section before we get into the problematic part:

18. (1) Subject to subsection (2), no person shall knowingly disclose any information that they obtained or to which they had access in the course of the performance of their duties and functions under this Act or their participation in the administration or enforcement of this Act and from which could be inferred the identity of an employee who was, is or is likely to become engaged in covert operational activities of the Service or the identity of a person who was an employee engaged in such activities.

18.1 (1) The purpose of this section is to ensure that the identity of human sources is kept confidential in order to protect their life and security and to encourage individuals to provide information to the Service.

(2) Subject to subsections (3) and (8), no person shall, in a proceeding before a court, person or body with jurisdiction to compel the production of information, disclose the identity of a human source or any information from which the identity of a human source could be inferred.

(3) The identity of a human source or information from which the identity of a human source could be inferred may be disclosed in a proceeding referred to in subsection (2) if the human source and the Director consent to the disclosure of that information.

(4) A party to a proceeding referred to in subsection (2), an amicus curiae who is appointed in respect of the proceeding or a person who is appointed to act as a special advocate if the proceeding is under the Immigration and Refugee Protection Act may apply to a judge for one of the following orders if it is relevant to the proceeding:

(a) an order declaring that an individual is not a human source or that information is not information from which the identity of a human source could be inferred; or

(b) if the proceeding is a prosecution of an offence, an order declaring that the disclosure of the identity of a human source or information from which the identity of a human source could be inferred is essential to establish the accused’s innocence and that it may be disclosed in the proceeding.

(5) The application and the applicant’s affidavit deposing to the facts relied on in support of the application shall be filed in the Registry of the Federal Court. The applicant shall, without delay after the application and affidavit are filed, serve a copy of them on the Attorney General of Canada.
(6) Once served, the Attorney General of Canada is deemed to be a party to the application.

(7) The hearing of the application shall be held in private and in the absence of the applicant and their counsel, unless the judge orders otherwise.

(8) If the judge grants an application made under paragraph (4)(b), the judge may order the disclosure that the judge considers appropriate subject to any conditions that the judge specifies.

(9) If the judge grants an application made under subsection (4), any order made by the judge does not take effect until the time provided to appeal the order has expired or, if the order is appealed and is confirmed, until either the time provided to appeal the judgement confirming the order has expired or all rights of appeal have been exhausted.

(10) The judge shall ensure the confidentiality of the following:

(a) the identity of any human source and any information from which the identity of a human source could be inferred; and

(b) information and other evidence provided in respect of the application if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person.

(11) In the case of an appeal, subsection (10) applies, with any necessary modifications, to the court to which the appeal is taken.

Yes, that’s a long read, but I felt it was important to give the full portion. The section in it’s entirerty seems to require that the identity of CSIS witnesses not be divulged. And that would make sense if it was only to be protected from an accused terrorist. But it’s not, the identity of the witnesses seems to be kept a secret from the defense counsel, problematic in itself, but also from the judge. The law essentially allows for secret witnesses to be used in our courts.

Ahhh, but there is a way to find out the identity of the witness:

(4) A party to a proceeding referred to in subsection (2), an amicus curiae who is appointed in respect of the proceeding or a person who is appointed to act as a special advocate if the proceeding is under the Immigration and Refugee Protection Act may apply to a judge for one of the following orders if it is relevant to the proceeding:

(a) an order declaring that an individual is not a human source or that information is not information from which the identity of a human source could be inferred; or

(b) if the proceeding is a prosecution of an offence, an order declaring that the disclosure of the identity of a human source or information from which the identity of a human source could be inferred is essential to establish the accused’s innocence and that it may be disclosed in the proceeding.

The problem with this section is that there are only two reasons you can apply to know the identity of the witness: you don’t think there is a witness, or the identity of the witness is required to establish innocence. I ask you: how can you assert that if you don’t know who is accusing you.  Jimbob doesn’t like Mike so he accuses him of plotting terrorism. It goes to court. Mike doesn’t know that it was Jimbob who accused him and so can’t bring up that Jimbob has previously harassed him – something that would cast a great deal of doubt on all of Jimbob’s testimony.

But even if you manage to apply there’s another problem.

(7) The hearing of the application shall be held in private and in the absence of the applicant and their counsel, unless the judge orders otherwise.

Yep, the defense counsel doesn’t get to attend the hearing of their request for the ability to know who the accuser is. So you have to apply for a hearing based on assumed information, and then if at the hearing it turns out that your assumption was wrong, but there was other mitigating information that comes out during the hearing you don’t get to be there to plead your case.

The worst part of that is that it seems to imply that the government of Canada is seriously equating being the defense counsel for an accused terrorist with being a security threat to our country.

I’m clearly not the only one with issues with this bill (though too much of the argument from the NDP side of the debate was about how they didn’t have enough time to read it, seriously, it’s your job and the bill is only seven pages long).  NDP MP Matthew Kellway (Beaches—East York, ON) said:

There is no opportunity provided for the accused or respondent to confront the accuser and test the evidence. Such an opportunity is considered a fundamental part of our justice system.

CPC MP Erin O’Toole (Parliamentary Secretary to the Minister of International Trade) response to this issue is:

In the case of Bill C-44, when the Canadian public is quite accustomed to protection being given to law enforcement sources, why would we not extend that same protection to sources that provide information and intelligence on national security? It would keep our men and women in uniform safe.

But that misses the point.  There is a good reason to protect the identity of sources from an accused terrorist, but to prevent their lawyer from having information which could prove their client’s innocence seems unjust. It seems unCanadian. And more importantly it’s unconstitutional.

 

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