The Supreme Court of Canada is currently being asked to consider releasing a secret intelligence dossier on former NDP leader Tommy Douglas. Douglas, known to many as the father of Canadian Medicare, was a staunch democratic socialist whose left-leaning political views appeared to concern the country’s intelligence agency so much so that they spied on him “from the late 1930s to shortly before his death in 1986,” according to according to a recent article detailing the affair. Over those decades, agents of the RCMP Security Service, the predecessor of the Canadian Security Intelligence Service (“CSIS”), “attended his speeches and protests, analysed his writings, infiltrated private meetings at which he spoke, and eavesdropped on private conversations.”
The battle began in 2005, when Jim Bronskill, a Canadian Press reporter, commenced an application under the Access to Information Act (the “Act”) to have the trove of documents released to the public. Although several hundred pages of the dossier were released as a result of the application, the federal information commissioner sided with the government to leave the bulk of the file under wraps. Bronskill then launched a court challenge that resulted in the Federal Court decision of the Hounourable Mr. Justice Simon Noël. In finding that the bulk of the documents should be released, Justice Noël noted the “importance of transferring information to the public domain for the benefit of present and future Canadians, as well as our collective knowledge and memory as a country.” The government immediately appealed to the Federal Court of Appeal and successfully had the decision overturned. Bronskill is now seeking leave to appeal to the Supreme Court for a final ruling on the issue.
If the matter is granted leave, the Supreme Court will have to weigh the public’s right to see the documents against national security concerns. Although the documents are decades old, CSIS is worried that they “would reveal secrets of the spy trade, which could jeopardize the lives of confidential informants and compromise the agency’s ability to conduct secret surveillance,” according to the aforementioned article.
At the crux of the matter is consideration of Section 15 of the Act, which grants the head of a government institution the right to refuse disclosure on the basis that it could “be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities[.]” While it is difficult to understand how these documents could affect national security given their age and subject matter, the irony is that without access to them, we can’t know for sure.
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