January 11, 2016 - 12:27 PM
VANCOUVER - Canada's spy agency has lost a fight to keep information from a closed-door hearing out of the public's eyes in a court ruling expected to provide a deeper look into the organization's involvement in a British Columbia terrorism probe.
B.C. Supreme Court Justice Catherine Bruce ruled on Monday that it is possible to protect the privacy and safety of a Canadian Security Intelligence Service source without the need to keep a hearing entirely confidential in connection to the investigation of John Nuttall and Amanda Korody.
The fundamental principle of open court means that in-camera hearings should only be used as a last resort when other security measures won't work, Bruce said in her ruling.
"I find there is scope for a more limited order than was originally proposed."
Nuttall and Korody were found guilty of planting bombs at the B.C. legislature in 2013. The conviction has been put on hold while their lawyers argue the couple were entrapped by police in an elaborate undercover sting.
Part of the trial was held in camera last week, and lawyers for the Crown and CSIS argued that any information revealed during the hearing would risk identifying the alleged spy-agency operative who may have been connected to the investigation.
Bruce's ruling came after several media outlets, including The Canadian Press, filed a motion opposing the in-camera order.
The judge said redacted transcripts of both the hearing and her ruling would be released by Wednesday after she had removed any sensitive information.
"Editing out the material that could identify the human source deals with the concern raised by CSIS," she said.
Lawyers for both the agency and the Crown argued last week that an in-camera hearing was essential because anyone present for long enough in the courtroom's public gallery could readily identify the individual in question.
In her ruling, Bruce emphasized the importance of safeguarding public access to the courts while also protecting the privacy and safety of CSIS sources whose lives could be endangered if identified.
She rejected the spy agency's argument that last year's changes to the CSIS Act granting human sources the same protection as police officers applied in this case.
Bruce referenced a federal court decision that found the legislation isn't retrospective, meaning it didn't affect the events discussed during the in-camera hearing, which took place prior to the law's enactment.
Lawyer Dan Burnett, who represented the media outlets, described the ruling as a win for the open-court principle.
"Courts are the public's business," he said, speaking outside the courthouse.
"The decision to limit publication through a publication ban, or to even go further and shut the courtroom doors, is a momentous decision."
Burnett also said the judge's decision implicitly confirmed the existence of a human source, which neither the Crown nor CSIS have so far done, repeatedly referring to the individual as an "alleged" CSIS human source.
"The indication today was that there's actual information that has to be edited out to protect a source. If there was no source, presumably there wouldn't be any information to edit out," Burnett said.
"That would suggest, at least implicitly, that it's more than just an argument there might be a human source, that there is information that needs to be taken out here to protect some real person."
The judge gave lawyers until Tuesday afternoon to suggest to her what information should be excluded from the released transcripts.
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News from © The Canadian Press, 2016