The B.C. Civil Liberties Association has won an early victory in what could become a precedent-setting case that asks the Federal Court to rule on whether the Canadian Security Intelligence Service can spy on activists and whether its review body has the authority to issue gag orders to complainants.
The civil rights group obtained documents under federal access to information laws in 2014 that it says show CSIS was illegally spying on activists involved in protesting the now-axed Northern Gateway pipeline: in particular, the Sierra Club of B.C., the Dogwood Initiative, and ForestEthics Advocacy.
It also alleged that CSIS then shared the intelligence it gathered with oil industry partners and the National Energy Board, the arms-length government body tasked with approving energy projects like pipelines.
CSIS denies the allegations but the civil rights group filed a complaint with the Security Intelligence Review Committee (SIRC) in 2014 which kicked off a round of secret hearings that lasted until May 2017.
That’s when the review body dismissed the complaint and extended a gag order it had put in place over the hearings to permanently ban the B.C. Civil Liberties Association or any of the groups involved in testifying before the hearing about anything they had heard, presented or learned while there.
It also banned the group from disclosing that a decision into the complaint had been made at all.
Much of the evidence that was presented by CSIS during that hearing remained secret and was not made available to the civil rights group or their lawyer.
But in a court conference that took place last month, the B.C. Civil Liberties Association won the right to have that information disclosed to them during their appeal at the Federal Court.
“There was a lot of evidence SIRC relied on that wasn’t even disclosed to us,” said Paul Champ, the lawyer representing the civil rights group on the case. “It looks like now we will get that stuff but it has to be reviewed for national security so it will be redacted.”
However, there are still plenty of potential problems ahead before arguments can actually be made before the court on the case.
That likely will not happen until this time next year.
“We’re having some tussles about whether the hearing at the court itself can even be public and whether we can file our evidence in the court record in a public manner,” said Champ. “By doing so, arguably, we’re in violation of the SIRC [gag] order.”
The B.C. Civil Liberties Association is asking the Federal Court for two things.
First, the group wants a ruling overturning SIRC’s dismissal of their 2014 complaint and ruling that the monitoring of environmental activists by CSIS and its alleged sharing of information with external parties is illegal.
Second, they want the Federal Court to rule that SIRC was wrong to interpret Section 48 of the CSIS Act as allowing for a ban on discussion or disclosure of hearings and rulings made by the review body.
Whether the court rules in favour of SIRC and CSIS or the B.C. Civil Liberties Association, its decision will set a precedent either way, Champ says.
If the Federal Court rules that SIRC was reasonable in dismissing the complaint, it will send a message that the kinds of activities the civil rights group alleges CSIS was conducting against environmental protesters are legitimate.
If it rules in favour of the B.C. Civil Liberties Association’s complaint, it will send the message that those activities are not allowed.
Craig Forcese, a national security expert at the University of Ottawa, said it is hard to tell at this point how significant the case may ultimately turn out to be because so much information about the initial complaint and the evidence presented during the SIRC hearing is not publicly available.
He also noted that in cases like this, the Federal Court often defers to the interpretations made by SIRC.
“We can’t say anything about what it would mean because to do so, we would need to know what the facts were, not just the facts alleged by the complainants. Unless we know what CSIS did (or not), it is impossible to know whether SIRC’s decision was novel, or significant,” Forcese said.
“The gag order is a separate issue, and quite unusual.”
Champ said the argument that the gag order is required for national security doesn’t make sense given all of the information under the order was already disclosed to them during the complaint, whereas sensitive information was not.
He says if the gag order is allowed to stand, it means the review body could potentially use this decision as precedent to ensure that “all complainants are effectively gagged.”
Ultimately, the goal in bringing the case to Federal Court will be to get a clear ruling on whether SIRC can infringe on the freedom of expression of complainants by demanding they adhere to a gag order and exactly which kinds of activities constitute spying by CSIS.
“Hopefully, it will set a precedent,” said Champ. “Their view seems to be that if they’re not engaging in wiretapping and stuff like that, then it’s not spying. We disagree.”