Top court deals blow to federal secrecy

Famed lawyer battled 14 years for open hearing to seek spy agency files

Reprinted with permission from the Ottawa Citizen

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Friday, November 22, 2002

Janice Tibbetts
The Ottawa Citizen

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 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 practical.

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 demonstrations.

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

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