R v Nuttall 2016 BCSC 73
From Ad IDEM / CMLA
The judge in this criminal trial, dealing with a question of entrapment, held that the Dagenais/Mentuck analysis applies regardless of CSIS concerns over identifying a possible “CSIS human source”. The judge reversed an earlier decision to go in camera and released a transcript, redacting information identifying the source for their safety.
The court ordered that the application brought by the defendants for production of records held by CSIS be held in camera. This order was made subject to an application by the media to vary or set aside that order on two days’ notice due to the failure to notify the media of the CSIS application to hold the hearing. While it would have been preferable to have adjourned the CSIS application to permit the media to respond, I believed it was necessary to continue with the application in this manner to prevent further delay of the trial.
Subsequent to the in camera proceedings, the court issued a ruling in regard to the defendants’ application and imposed a ban on its publication pending an application by the media to vary or set aside the order.
The applicants and CSIS agreed that the Dagenais/Mentuck test applied to the question of whether the proceedings should have been held in camera and to whether the ban on publication covering the ruling should be maintained. Their argument is based on an underlying assumption that the court has the discretion to hold the hearing in camera and impose a publication ban.
There is no doubt that the privacy interests surrounding human source information kept by CSIS are substantial and critical. Identification of this information could jeopardize the safety and well-being of a human source and their family members. If human source information was routinely disclosed, CSIS could not perform its essential function in our society of protecting our national security interests. This is not a case where disclosure could just embarrass someone or cause them unwanted media attention. Disclosure could put their lives in peril.
Notwithstanding the pressing need to protect human sources, the fundamental principle of open court demands that the court conclude that no measures short of in camera proceedings are capable of preserving the privacy interests at stake before imposing such an order. While the salutary effects of in camera proceedings are proportionate to the potentially harmful effects of disclosure, I find there is scope for a more limited order than was originally imposed.
I have reviewed the ruling made on January 6, 2016, and conclude that, with careful redactions, the privacy concerns raised by the Crown and CSIS can be addressed. I have also reviewed a transcript of the in camera hearing and conclude that the redactions can address these privacy concerns, as well.