Supreme Court of Canada Releases Decision on the Confidentiality of CSIS Information

In the recent case Ruby v. Canada, the Supreme Court of Canada considered whether court proceedings involving national security should happen entirely in secret. The Court considered the issue of whether the in camera (s.51(2)(a)) and ex parte (s.51(3)) hearing provisions of the Privacy Act violated the Charter. The issue first arose fourteen years ago when Canadian lawyer, Clayton Ruby, requested access to view the file the Canadian Security Intelligence Service ("CSIS") had been keeping on him. CSIS refused Mr. Ruby's request, citing the exemptions regarding foreign confidences (s.19) and national security (s. 21) under the Privacy Act. Under these exemptions, a reviewing court must hold the entire hearing of a judicial review application in camera (in private) and only accept ex parte (in the absence of and without notice to the other party) submissions from the government institution refusing disclosure. Therefore, Mr. Ruby could not take part in the judicial review or see government submissions as to why he should be denied access. In its 9-0 majority decision, the Supreme Court of Canada found that s.51(3) did not violate s.7 of the Charter of Rights and Freedoms (Charter). The Court agreed that, as the exemption was intended to only be used in limited circumstances and had two levels of review, the provision was not contrary to the principles of fundamental justice. In addition, the basis for the exemptions, protection of the information involved and relations with foreign nations who provided the confidential information, were found to be legitimate interests that warranted protection. However, the Court did agree that s.51(2)(a) violated s. 2(b) of the Charter and was not saved by s.1. The Court recommended that the in camera requirement be applied only to those portions of the hearing which fall within the foreign confidences or national security exemptions. The Court added that a judge, not the government, should decide whether court proceedings involving national security should be held entirely in secret. For a copy of the decision, visit: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/ruby.en.html For a copy of the Privacy Act, visit: http://laws.justice.gc.ca/en/P-21/ For a copy of the Charter, visit: http://laws.justice.gc.ca/en/charter/