Spy agency can withhold information, court rules

Decision called 'disaster' that could block public access to controversial CSIS reports

By KIRK MAKIN JUSTICE REPORTER, Globe and Mail, November 22,

Canada's spy agency may continue to impose a total blackout of information in its files about citizens in the name of national security, the Supreme Court of Canada said yesterday.

A 9-0 majority said that virtually any disclosure of such information could betray the trust of foreign powers who provide confidential information to Canada.

On an important side issue, the ruling could also block access to reports on controversial matters that range from consumer safety to aircraft accident investigations, said freedom-of-information expert Ken Rubin.

"This ruling comes as a huge disaster," Mr. Rubin said in an interview. "The court is saying the investigation process could be harmed in future by allowing access. They have significantly lowered the bar of accountability."

Yesterday's case revolved around the conditions under which judges review decisions by the Canadian Security Intelligence Service not to divulge personal files it keeps on citizens.

Madam Justice Louise Arbour said judges must continue hearing government arguments on an ex parte basis at these hearings -- that is, in the absence of the individuals seeking to open their files.

The judgment concluded a 14-year battle by lawyer Clayton Ruby to gain access to CSIS files involving his lifelong civil-liberties crusades and political stands.

The court was asked to weigh an individual's right to privacy against the need for governments to maintain the trust of foreign states who provide sensitive information.

Notwithstanding its endorsement of ex parte appearances by government lawyers, Mr. Ruby claimed victory yesterday. He cited a portion of the ruling stating that it is a breach of freedom of the press to close hearings from beginning to end.

Mr. Ruby said individuals will henceforth be permitted to attend portions of hearings which do not involve information that is sensitive to national security.

"What this means is that a citizen who wants his records has a fighting chance to persuade a judge [to release them]," Mr. Ruby said. "Right now, the government controls everything -- and its rule is absolute secrecy."

Still, the rub is that as soon as government lawyers begin discussing information that pertains to national-security concerns, the courtroom will be cleared.

Judge Arbour ruled that applicants cannot be given even a summary of the evidence or arguments the government intends to use at these hearings, since that could "compromise the very integrity of the information."

Since launching his challenge against several agencies in 1988, Mr. Ruby has won several skirmishes in the lower courts. He even won access to a fraction of the material that CSIS has on him -- much of it heavily censored.

However, CSIS has adamantly refused to allow anyone besides a judge to hear the nature of its most sensitive information.

The case could potentially have led to a major ruling on whether guarantees in the Charter of Rights and Freedoms to life, liberty and security of the person apply to informational privacy. However, the Supreme Court ducked that question yesterday and restricted itself to much narrower points.

Mr. Ruby argued in the case that citizens have a right to know what information their government has compiled against them -- especially if it could be inaccurate and may require correction.

It's past time to drag the shadowy CSIS into the light

By CLAYTON RUBY Thursday, November 21,

The first Canadian Security Intelligence Service director was Ted D'Arcy Finn, a career bureaucrat with a grand name. He resigned, grandly, after CSIS supplied an inaccurate and misleading affidavit to a judge in order to obtain a wiretap authorization. His resignation was principled and important: He had personally done no wrong. But he marked, with his job, the importance the new service ought to attach to respect for the law. Sadly, his was not an example to be followed. The CSIS agents who produced the affidavit fared better than he did; none were fired, and eventually some were promoted. Even the unreliable informant emerged from disgrace to be used again, after he promised to stop telling lies.

A principal accomplishment of Ward Elcock, the current director, is extracting money on post-Sept. 11 threats of Islamic terrorism. The targeting of Canadians by Osama bin Laden will ensure its continued flow. CSIS also leaks selectively to friendly journalists the themes it wants publicly discussed.

What the public never gets is an objective account of CSIS activities or effective oversight. Paule Gauthier, chair of the Security Intelligence Review Committee, the oversight agency of CSIS, can be brilliant and scathing toward wrongdoing -- as she was toward discrimination against gays and lesbians in the armed forces. But SIRC is hopelessly underfunded. A government in crisis wants more spies, not oversight.

Mr. Elcock's view of the watchdog agency? He once told a SIRC-organized conference that the only good thing he could recall SIRC's having done for CSIS was to remind the intelligence service to construct new headquarters. David Peel, the former CSIS inspector-general (the Solicitor-General's eyes and ears in the agency) had a single disagreement with Mr. Elcock about information denied to him. "We never really got along [after that]. He then stopped seeing me directly. . . . There is a sense that they [CSIS] can get away with things."

Serious things. A new book by Andrew Mitrovica, Covert Entry,discloses this information from a disgruntled former spy: Crimes are committed in a casual and routine way by CSIS.

Here is the short list: possession of burglar's tools; breaking into the automobiles of postal union leaders, reading documents and turning over the information to Canada Post to use in union negotiations; counselling CSIS agents working under contract that their earnings were "non-reportable income" and that they should not pay tax or declare the money on their income tax returns to keep their arrangement with CSIS secret; destroying mail seized under a federal warrant allowing CSIS to inspect that mail; intercepting the mail of a Heritage Front member without a federal warrant; helping to draw up a "hit list" of 22 prominent Canadians, mostly Jews; counselling mischief and assault; purchasing and possessing instruments designed for surreptitiously listening to conversations without approval from the Solicitor-General, then using the illegal "bug" to spy on postal workers; theft; intercepting the mail of hundreds of tenants living in the same building as two Russian spies without any judicial warrant; stealing from Canada Post a master key that opens apartment-building front doors and mailboxes; using that key to steal mail from an Irish nationalist and to commit break and enter; committing a fraud on CSIS by permitting family members of senior CSIS officials to use "safe houses" and "observation posts" in Toronto and Ottawa for their children's personal residences.

A complaint to SIRC took a leisurely pace. It was not until seven months after the former spy's first meeting with SIRC that he was told SIRC would investigate. Then Mary MacFayden, a Department of Justice lawyer writing on behalf of Mr. Elcock, cautioned the man that, if he went public with his allegations, he would be prosecuted under the Official Secrets Act; that implies that what he said was at least in part true. On June 29, 2000, SIRC told him it had secretly "suspended" its probe into his complaint in late 1999. No hearing based on the allegations has ever been held; SIRC has decided there is a "lack of evidence."

Unlikely. SIRC should read Mr. Mitrovica's book, and do its job. CSIS should figure out how to get some Arabic-speaking agents in the field. We could use some real intelligence these days.

Clayton Ruby is a Toronto lawyer.

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