court deals blow to federal secrecy
Famed lawyer battled 14 years for open hearing to seek spy agency
Reprinted with permission from the Ottawa
Friday, November 22, 2002
Renowned lawyer Clayton Ruby won a small victory
against state secrecy yesterday, when the Supreme Court
ruled that a judge, not the government, should decide
whether court proceedings involving national security
will happen entirely in secret.
The Ottawa Citizen
The 9-0 ruling denounced a federal law that requires
secret hearings when individuals are seeking information
about themselves that the government has sealed to
protect national security and foreign confidences.
The Privacy Act provision is "too
stringent" because it violates the constitutional
guarantee of freedom of expression and freedom of the
press, wrote Justice Louise Arbour.
Mr. Ruby said the decision is a procedural victory in
his 14-year quest to obtain files about himself that the
federal spy agency, the Canadian Security Intelligence
Service, has kept in a top-secret information bank.
"It makes it a little easier for people who are
trying to get their files from government to get access
and now they've got a judge who can actually be on their
side instead of every time being on the government's
side," he said.
The ruling replaces a law that had made it mandatory
for entire hearings to take place in private, even if a
small component deals with national security. But the
effect of the decision could be more symbolic than
The court said it is simply enshrining in law a
practice that has been in place for years in the court,
where judges have used their discretion to determine
which parts of a hearing must happen in secret. "In
the reality, this does not change the status quo,"
said Dougald Brown, a lawyer for the Privacy
Commissioner of Canada.
The Justice Department also claimed victory
yesterday, saying the court preserved the government's
discretion to have closed hearings on its most sensitive
information. In these cases, citizens are not even
entitled to argue their side.
Mr. Ruby said he will now return to the Federal Court
of Canada, seeking the government's secret files.
Among other things, the CSIS bank contains
information on people "who may be suspected of
actions that are detrimental to the interests of Canada
or could ultimately lead to the destruction or overthrow
by violence of the constitutionally established
government in Canada." The bank also holds files
from foreign governments.
After complaining to the federal privacy
commissioner, Mr. Ruby received some of the files in
other information banks that revealed the government
kept tabs on his involvement in political
Other documents chronicled his 1970 arrest and
subsequent trial for participation in demonstrations
against U.S. military action in Vietnam.
Although Mr. Ruby ultimately wants to secure more
files through the courts, his current challenge was to
the government's secret court hearing to determine if
information can be released.
© Copyright 2002 The Ottawa Citizen