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Close attention needed for CSIS Act changes: Rosen

The Conservative government’s plans to give the Canadian Security Intelligence Service increased powers to protect the identity of its sources is worrisome if it means defence counsel will have difficulty accessing disclosure and questioning witnesses to make full answer and defence on behalf of accused persons, says Toronto criminal lawyer John Rosen.


“The truth is that the courts generally bend over backwards to protect the identity of confidential informants and have made the privilege attached to them virtually equal to the protection of lawyer-client communications. It seems to me that if the proposed amendments purport to hide persons who are not otherwise confidential informants then we have a problem,” he tells AdvocateDaily.com.

Rosen, partner at Rosen Naster LLP, makes the comments in connection with a Canadian Press story that says Ottawa is planning to amend the law governing the nation’s spy service. The bill, which was tabled today, is expected to clarify CSIS’s ability to act on threats abroad, ultimately allowing the organization to conduct investigations into potential terrorists through tracking these individuals abroad, says the wire service. Read more here.

The CSIS Act, enacted in 1984, gives the spy agency authority to collect intelligence anywhere in the world about security threats to Canada, says the article.

Defence lawyers are already rankled about what it might mean for the ability of any accused person to mount a fair defence – a right enshrined in the Canadian Charter of Rights and Freedoms.

Rosen says it’s important to ask the real purpose of the legislation.

“If it’s to protect confidential informants, we already have laws to protect the identities of confidential informants,” he says. “If it’s to hide somebody who isn’t normally covered by the privilege of a confidential informant then it does start to interfere with the accused’s right to make full answer and defence because experience has shown people like that routinely lie to get better treatment for themselves.”

Police currently use information from secret informants to obtain search warrants or wiretap authorizations without fear the sources will be subject to cross-examination, but if those same informants are used to give evidence of an accused person’s guilt, the protection does not apply, says the Canadian Press.

Rosen says the courts have already determined that persons who are active in the field and therefore acting either as co-participants or agents of the state have no protection once charges are laid.

“In those cases, the courts give the government the option of revealing the identity of the agent or staying the proceedings,” he says.

Rosen says any amendments to the federal bill should include the same sort of protections now available to ensure fairness even for someone facing allegations in a security proceeding.

The federal plan to bolster security powers for CSIS follows a recent statement from the RCMP that the national police force has about 63 active investigations on 90 suspected extremists who intend to join fights abroad or who have returned to Canada, reports the Canadian Press.

Providing additional protection for informants could mean that once proceedings are commenced, defence counsel and even judges would never have the right to question the human sources who provide information on behalf of CSIS in court proceedings, such as when the government attempts to deport a suspected terrorist using a national security certificate, reports the wire service.

“The Supreme Court agreed in a May ruling on the national security certificate regime that there should be no overarching privilege for CSIS sources,” says the article. “The high court said the security certificate generally ensures that their identities remain ‘within the confines of the closed circle’ formed by the reviewing judge, the special advocates and federal lawyers. The court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be ‘a last resort.'”

Making it standard practice to cross-examine CSIS sources, even behind closed doors, could “have a chilling effect on potential sources” and hinder the spy service’s ability to recruit new ones, the article added.

But the Mohamed Harkat case is one example that points to a need to test the credibility of human intelligence sources, says the Canadian Press.

“In a 2009 ruling in Harkat’s case, Justice Simon Noel said CSIS ‘undermined the integrity’ of the Federal Court’s work by failing to disclose relevant details of a polygraph examination of a source. CSIS neglected to tell him a secret informant failed portions of the lie-detector test – a lapse the spy service itself has called ‘inexcusable,'” the article says.

Rosen says the justice system now has established a way of balancing the rights of informants and witnesses with the need to get at the truth in the fact-finding process.

“If this new legislation upsets that balance then we’re going to be in trouble and we’re going to be sliding into a police state,” he says.

Rosen says the biggest danger in upsetting this delicate balance is to "unreasonably curtail the ability of the defence to challenge in cross-examination the veracity of evidence from sources the government wishes to hide.

“It would not only undermine the establishment law, it would call into question every piece of jurisprudence in the western world designed to ensure the fair trial rights of accused persons,” he says. “This proposed legislation is only a knee-jerk reaction to the times we live in. I defy the government to point to one case where this proposed new legislation would have made a difference in advancing the prosecution or ensuing justice and security.”

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