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National Security - Canadian Security Intelligence Service Act (CSISA). Kandasamy v. Canada (Attorney General)
In Kandasamy v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of earlier dismissals of two JRs, here against ATIA personal information record disclosure refusals by CSIS.
These extracts illustrate the ATIA procedures in such cases:[3] Public Safety responded to Mr. Kandasamy’s request in two parts. First, it disclosed some records. Second, and pursuant to section 16 of the Privacy Act, R.S.C. 1985, c. P-21, Public Safety neither confirmed nor denied that some of the records requested exist. It added that, if they exist, such records could reasonably be exempt from disclosure under section 21 of the Privacy Act as they relate to Canada’s efforts against subversive or hostile activities.
[4] CSIS responded to Mr. Kandasamy’s request in three parts. First, it wrote that one of the personal information banks identified by Mr. Kandasamy did not exist. Second, it advised that it found no personal information concerning Mr. Kandasamy in some of the banks in respect of which he had made requests. Third, as for the remaining banks, CSIS neither confirmed nor denied that some of the requested records exist. It added that, if they exist, such records either would be exempt or could reasonably be exempt from disclosure under sections 18, 21 and/or 22 of the Privacy Act. These provisions concern personal information banks designated as exempt by the Governor-in-Council, banks that relate to Canada’s efforts against subversive or hostile activities, and banks that relate to certain types of investigations.
[5] Unsatisfied with these responses, Mr. Kandasamy filed complaints with the Office of the Privacy Commissioner. The Office found the complaints ill-founded. Mr. Kandasamy then applied to the Federal Court for judicial review of the decisions of Public Safety and CSIS.
[6] The Federal Court noted that Mr. Kandasamy had not raised any specific errors regarding the decisions of Public Safety and CSIS. Nevertheless, the Federal Court performed a comprehensive analysis of the decisions to determine (1) whether Public Safety and CSIS had reasonably applied the statutory provisions on which they relied; and (2) whether they had reasonably exercised their discretion not to disclose the information sought. Taking into consideration the nature of the information sought, the wording of the Privacy Act’s provisions relied upon by Public Safety and CSIS, and the relevant jurisprudence, the Federal Court concluded that these institutions had reasonably applied the provisions on which they relied. The Federal Court further concluded that it was reasonable, and in respect of certain records legally required, for Public Safety and CSIS to neither confirm nor deny that some records exist.
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[11] With respect to the Federal Court’s orders that some materials be kept confidential and sealed, I understand that as a self-represented litigant, Mr. Kandasamy may be concerned that he did not have access to these materials. To alleviate his concerns, I offer the following brief explanation. It is common for the Federal Court to make confidentiality orders as it did in the present matter: Ruby v. Canada (Solicitor General), 2002 SCC 75 at paras. 41, 60; Dzevad Cemerlic MD v. Canada (Solicitor General), 2003 FCT 133 at para. 6; Westerhaug v. Canadian Security Intelligence Service, 2009 FC 321 at para. 8; Braunschweig v. Canada (Public Safety), 2014 FC 218 at paras. 5–6; Russell v. Canada (Attorney General), 2019 FC 1137 at paras. 31–32; V.B. v. Canada (Attorney General), 2018 FC 394 at paras. 10–12; and Chin v. Canada (Attorney General), 2022 FC 464 at paras. 24–25. This is so because subsection 46(1) of the Privacy Act requires the Federal Court to take every reasonable precaution to avoid disclosure of (a) information that a government institution is authorized to refuse to disclose; and of (b) confirmation as to whether such information exists. By ordering that information be designated and treated as confidential, the Federal Court complies with its statutory obligation of precaution. The orders also allow the Federal Court to determine whether or not information exists, whether or not the exemptions being claimed by the government institution are applicable and, if necessary, to review the exercise of the government institution’s discretion not to disclose the information. In other words, these confidentiality orders assist the Federal Court, and on appeal this Court, in determining whether the government institution complied with the law. . R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal. Here the court considers aspects of the CSIS Act:[67] Section 21(2)(a) of the CSIS Act requires that the affidavit in support of an application for a warrant must include the facts relied on to justify the belief, on reasonable grounds, that a warrant is required to enable an investigation into “a threat to the security of Canada…”. The term “threats to the security of Canada” is defined in s. 2 of the Act as including: “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada…”.
[68] Although s. 21 does not contain an explicit evidentiary threshold for issuance, the Federal Court of Appeal has interpreted the provision as requiring reasonable grounds to believe – credibly-based probability – that a threat to the “security of Canada exists and that a warrant is required to enable its investigation”: Atwal v. Canada, 1987 CanLII 8975 (FCA), [1988] 1 F.C. 107 (C.A.), at p. 109; see also Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at para. 177.
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