The Federal Court has held that newly enacted s. 18.1 of the Canadian Security Intelligence Services Act does not apply retrospectively to give blanket protection to CSIS sources relevant to proceedings pending at the time the provision came into effect. Stockwoods lawyers Phil Tunley, Andrea Gonsalves and Fredrick Schumann successfully argued for this result, based on established principles of statutory interpretation, and their arguments were supported by the Court-appointed amici, François Dadour and John Norris. The issue arose in Designated Proceedings that have been ongoing since 2010 before Mr. Justice Mosley of the Federal Court, to review claims by the AG Canada for national security privilege under s. 38 of the Canada Evidence Act, in respect of documents produced in three civil actions in the Ontario Superior Court. Those actions, commenced between 2004 and 2006, arise out of alleged complicity by Canadian officials in the arrest and torture of Canadian citizens Abdullah Almalki, Ahmed Elmaati and Muayyed Nureddin in Syria and/or Egypt in the aftermath of 9/11. In the Designated Proceedings, Justice Mosley had previously ruled in 2010 against the AG Canada’s claim for a class privilege to protect CSIS sources at common law, and his decision was upheld by the Federal Court of Appeal in AG Canada v. Almalki, 2011 FCA 199, and ultimately by the Supreme Court in Canada v. Harkat, 2014 SCC 37. The new s. 18.1 received Royal Assent on April 23, 2015, and introduces a statutory class prohibition on any disclosure that could reveal the identity of a CSIS source. The provision is silent as to any retrospective application to sources of information obtained prior to its effective date. In his most recent decision, Justice Mosley holds that s. 18.1 is not simply procedural but rather makes substantive changes in the law, such that its retrospective application would interfere with substantive rights of parties already engaged in pending cases. He goes on to hold that, given the prior rulings in the Designated Proceedings involving these respondents, their rights to disclosure of human source identifying information were vested, subject to the balancing of interests under s. 38, itself, such that any retrospective application of s. 18.1 would be invalid.
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