Federal lawyers want closed-door hearings in a high-profile court case about allegations of Canadian Security Intelligence Service spying on anti-pipeline activists.
The civil liberties group behind a complaint about the purported CSIS wrongdoing opposes the federal secrecy request, saying it blatantly violates the principle that justice must be seen to be done.
The matter is slated to be heard today in an open session of the Federal Court of Canada.
The judge’s decision will determine how much the public gets to see and hear in the coming months when the court looks at the central issue: whether Canada’s spy agency overstepped the law in monitoring environmental activists.
The ruling could also set a precedent that dictates whether future court challenges of CSIS activities are held openly or in secret.
It all began four years ago when the British Columbia Civil Liberties Association complained to the CSIS watchdog after media reports suggested the spy service and other government agencies considered opposition to the petroleum industry as a threat to national security.
The association’s complaint to the Security Intelligence Review Committee also cited reports that CSIS shared information with the National Energy Board about so-called “radicalized environmentalist” groups seeking to participate in the board’s hearings on Enbridge’s now-defunct Northern Gateway pipeline project.
In addition, the association alleged CSIS passed information to oil companies and held secret conferences with these petroleum industry players at its headquarters.
The complaint cited records, released through the Access to Information Act, that suggested certain organizations were viewed as potential security risks simply because they pushed for environmental protections.
The association argued CSIS’s intelligence gathering violated the law governing the spy service, which forbids CSIS from collecting information about Canadians unless there are reasonable grounds to suspect they constitute a threat to national security.
A sweeping seal of secrecy
The review committee held closed-door hearings in Vancouver in August 2015. The association called witnesses from environmental and public-interest organizations including LeadNow, ForestEthics Advocacy Association, the Dogwood Initiative and the Sierra Club of British Columbia.
Last year, the review committee rejected the civil liberties association’s complaint.
That prompted the rights group to ask the Federal Court to toss out the decision and order the committee to take a fresh look.
Meanwhile, the committee — citing confidentiality provisions in the law governing CSIS — placed a sweeping seal of secrecy on evidence it heard in the original probe, including the transcript of the hearing and all documents created or obtained by the committee during its investigation.
In anticipation of the Federal Court review of the committee findings, the government is preparing an unclassified version of the committee’s records.
However, government lawyers argue even this version — stripped of national security information and other privileged details — should be sealed and excluded from the public Federal Court record. In addition, they want any hearings that mention such details to be held behind closed doors.
In a written submission in advance of today’s hearing, the government says the traditional notion that courts should be open is of vital importance to the fair administration of justice, and confidentiality orders are granted only in special circumstances.
However, in this case, “the public interest in confidentiality outweighs the public interest in openness.”
“It is more important than ever for the public and the press to be allowed to see and hear what is said’– Paul Champ
In its submission, the civil liberties association says there is no evidence of any risk in making the unclassified materials public, or hearing arguments in open court about the committee’s probe of alleged spying.
The open-court principle is fundamental to democracies based on the rule of law, said Paul Champ, lawyer for the civil liberties association and its vice-president.
“When the court hearing deals with allegations of government misconduct, it is more important than ever for the public and the press to be allowed to see and hear what is said,” he added.
“One needs to wonder why the hearing needs to be secret if the government’s position is that no spying on environmentalists occurred.”
If the government motion for confidentiality is successful, then all future court challenges to intelligence review committee decisions will also have to be in secret, Champ said.
“In our view, that would have a detrimental impact on public accountability of CSIS.”
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Sherwood Park is a large hamlet in Alberta, Canada within Strathcona County that is recognized as an urban service area. It is located adjacent to the City of Edmonton’s eastern boundary, generally south of Highway 16 (Yellowhead Trail), west of Highway 21 and north of Highway 630 (Wye Road). Other portions of Sherwood Park extend beyond Yellowhead Trail and Wye Road, while Anthony Henday Drive (Highway 216) separates Refinery Row to the west from the balance of the hamlet to the east.
Sherwood Park was established in 1955 on farmland of the Smeltzer family, east of Edmonton. With a population of 70,618 in 2016, Sherwood Park has enough people to be Alberta’s seventh largest city, but technically retains the status of a hamlet. The Government of Alberta recognizes the Sherwood Park Urban Service Area as equivalent to a city.
Sherwood Park, originally named Campbelltown, was founded by John Hook Campbell and John Mitchell in 1953 when the Municipal District of Strathcona No. 83 approved their proposed development of a bedroom community east of Edmonton. The first homes within the community were marketed to the public in 1955. Canada Post intervened on the name of Campbelltown due to the existence of several other communities in Canada within the same name, so the community’s name was changed to Sherwood Park in 1956.
The Sherwood Park Urban Service Area is located in the Edmonton Capital Region along the western edge of central Strathcona County adjacent to the City of Edmonton. The majority of the community is bound by Highway 16 (Yellowhead Highway) to the north, Highway 21 to the east, Highway 630 (Wye Road) to the south, and Anthony Henday Drive (Highway 216) to the west. The Refinery Row portion of Sherwood Park is located across Anthony Henday Drive to the west, between Sherwood Park Freeway and Highway 16. Numerous developments fronting the south side of Wye Road, including Wye Gardens, Wye Crossing, Salisbury Village and the Estates of Sherwood Park, are also within the community. Lands north of Highway 16 and south of Township Road 534/Oldman Creek between Range Road 232 (Sherwood Drive) to the west and Highway 21 to the east are also within the Sherwood Park urban service area.