Disclosure of Informant Information – the Achilles’ Heal of Administrative Fairness

Recently, the Government introduced Bill C-44, “An Act to amend the Canadian Security Intelligence Service Act and other Acts” [1]. Among other provisions intended to augment CSIS powers to combat terrorism, the Bill strengthens the Government’s authority to conceal the identity of informants in Canada and elsewhere and the information provided to investigators by these informants.

The Bill reinforces the protection of informants and their information in clear terms. S.18.1 of the CSIS Act is amended to read:

(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.

The only exceptions to this secrecy are where:

a) the Director of CSIS or the informant in question consent to disclosure of information or,

b) similar to what can happen in criminal or immigration proceedings, a specially appointed lawyer, an amicus curiae, who does not represent the Government or the person accused of terrorism, can review the concealed information and make arguments, in a “private” hearing, not attended by the persons accused or their counsel, that the informant’s identity or portions of their information should be disclosed.

In the latter case, the issue for  the third-party lawyer, the “amicus curiae”,will normally be whether the information is  “essential to establish the accused’s innocence and that it may be disclosed in the proceeding”.

On hearing arguments from the third-party lawyer, the Court can decide to disclose information, but retains the ability to restrict what is disclosed, in particular, where national security could be affected by disclosure.

So, does this relate at all to prison law? It sure does!

S.27 of the Corrections and Conditional Release Act, S.C. 1992,c.20, provides the offender who is about to be subject to a restriction of his liberty, the right to see “all information to be considered” in prospective decision. Under this provision an offender who is being considered for, say, an involuntary transfer to higher security, is entitled to see the information to be considered by the Warden before taking a decision, and to make representations about that information. Recent Supreme Court Judgments have made it the law that failure to observe this procedure can render a transfer decision void for lack of fairness[2]

Then there’s the fly in the appointment, the small print. Sub-section 27(3) of the Act permits the decision maker to conceal from the offender  information that he/she is considering, where it is “strictly necessary” to do so to protect people’s safety, the security of the institution or the conduct of investigations.

This is not as broad as the proposed Bill C-44 protection for informers but it is broad, no doubt about it. The Court in Khela held that, provided the decision makers invokes the protection of 27(3), he/she will be given deference in deciding what should be concealed. Moreover the Judgment holds that, where the decision-maker conceals any information, it can provide this in a sealed package to the Court, but not the prisoner. This is so that the judge and the Crown can review the facts concealed in the sealed materials to decide whether they should have been shared and whether any informant information that was considered is reliable.

This places the prisoner at a distinct disadvantage to say the least. There could be all kinds of considerations by the prisoner or his/her counsel that would asset the Court in making effective decisions on concealed information.

I believe that this conundrum cold be addressed by the Court appointing an amicus curiae, a third-party lawyer, knowledgeable in the prison system and the issues surrounding security and involuntary transfers and other measures restricting liberty such as segregation. Without revealing the hidden information to the prisoner, this lawyer could become aware of the prisoner’s point of view, suspicions an concerns about what is hidden. He/she could then make informed representations to the Judge and the Crown about the validity of hiding the information and its probative value.

Superior Courts have what is called “inherent jurisdiction” to appoint amicus curiae she they believe that this is necessary to permit a particular proceeding to be successfully and justly adjudicated.

The question arises of what to do if the Court fails to do this in the face of significant concealed facts. Certainly the Government would argue that the Court itself is sufficiently equipped to review the information. I do not believe that this is sufficient in most cases given the knowledge of the system and the particular circumstances of each case that are required to evaluate sealed information.

Accordingly, perhaps the Government should enact legislation to require appointing an amicus curiae, or at least for there to be valid reasons why such a decision is not required – this might occur, for example, where the Parties agree that an appointment is not required or where the Judge determines that he will grant the relief sought by the prisoner without reviewing the sealed record.

Don’t look for this to happen soon, so we might be off to the Supreme Court again on the fairness issue.

[1] http://openparliament.ca/bills/41-2/C-44/

[2] May v. Ferndale Institution[2005] 3 S.C.R. 809, 2005 SCC 82 and Mission Institution v. Khela, 2014 SCC 24

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