Attorney General of Canada v. Almalki, 2011 FCA 199

In Attorney General of Canada v. Almalki, the Federal Court of Appeal held that the common-law informer privilege, a class privilege, did not apply to Canadian Security Intelligence Services ("CSIS") human sources. The issue arose in the context of an order pursuant to section 38 of Canadian Evidence Act, ("CEA") for disclosure of a number of potentially sensitive documents, certain of which were obtained from CSIS human sources.

The informer privilege, as a class privilege, protects the relationship between the informer and a peace officer. It prohibits the court from compelling the disclosure of an informant's identity so as to ensure citizen participation in enforcing the law. The court, drawing on the Supreme Court’s examination of the relationship between journalists and their sources as discussed in R. v. National Post, noted the difficulties in extending the informer privilege to other relationships. The court also observed that section 38 of the CEA established a procedure for balancing the public interests in disclosure against the public’s interest in the non-disclosure of sensitive information relating to international relations, national security and national defence. Further, section 18 of the Canadian Security Intelligence Service Act ("CSISA"), specifically provides for disclosure of CSIS information "as required by any other law".  Accordingly, the court held that extending a class privilege to CSIS human sources would be contrary to the balancing mechanism set out in section 38 of the CEA as well, as the express will of Parliament as set out in section 18 of the CSISA.

June 13, 2011
Link to Decision

Grant Bishop & Steve Holinski
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