2016 FCA 195, 2016 FCA 195

[2017] 2 F.C.R. 44 A-520-15 2016 FCA 195 The Attorney General of Canada ( Appellant ) v.

Abdullah Almalki, Khuzaimah Kalifah, Abdulrahman Almalki, by his Litigation Guardian Khuzaimah Kalifah, Sajeda Almalki, by her Litigation Guardian Khuzaimah Kalifah, Muaz Almalki, by his Litigation Guardian Khuzaimah Kalifah, Zakariyy A Almalki, by his Litigation Guardian Khuzaimah Kalifah, Nadim Almalki, Fatima Almalki, Ahmad Abou-Elmaati, Badr Abou-Elmaati, Samira Al- Shallash, Rasha Abou-Elmaati, Muayyed Nureddin, Abdul Jabbar Nureddin, Fadila Siddiqu, Mofak Nureddin, Aydin Nureddin, Yashar Nureddin, Ahmed Nureddin, Sarab Nureddin, Byda Nureddin ( Respondents ) Indexed as: Canada (Attorney General) v.

Almalki Federal Court of Appeal, Gauthier, Scott and de Montigny JJ.A.—Ottawa, June 14 and July 8, 2016.

Security Intelligence — Disclosure of information — Human sources — Appeal from Federal Court decision concluding that application of Canadian Security Intelligence Service Act (CSIS Act), s. 18.1 in particular circumstances herein invalid — Respondents suing for damages arising from alleged breach of their rights, freedoms under Canadian Charter of Rights and Freedoms — Appellant refusing to identify covert human sources of CSIS — Commencing application (DES-1-11) under Canada Evidence Act (CEA), s. 38 relating to respondents’ request for disclosure of all relevant documents — New CSIS Act, s. 18.1, giving new statutory class privilege to human sources — Federal Court concluding, inter alia, application of s. 18.1 to human source that provided information before date of enactment having retrospective effect, respondents having vested right to disclosure at time s. 18.1 brought into force — Whether s. 18.1 intended to be applied retrospectively or prospectively; whether presumption against interference with vested rights rebutted — S. 18.1 applicable to CEA, s. 38 proceeding in DES-1-11 — S. 18.1 not intended to have retroactive effect, not merely procedural rule of evidence — Creating substantive right in favour of human sources, exception to right of public “to every person’s evidence” — Trumping public interest in disclosure of all evidence by taking it out of Federal Court jurisdiction under CEA, s. 38 — This

interpretation consistent with legislator’s intent to protect human sources, encourage individuals to provide information to CSIS — Once individual meeting criteria set out in CSIS Act, s. 2 , that individual considered a source, keeping that status on ongoing basis — New provisions meant to apply to ongoing situation, i.e. status as human source; presumption against retrospective application of statutory provisions under review not in play — Presumption against interference with vested rights rebutted herein — S. 18.1 filling perceived gap in common law privilege, giving greater protection to CSIS’s human sources — Amendments not redundant — Legislator balancing relevant factors, finding public interest in non-disclosure of information trumping all other rights, subject to CSIS Act, s. 18.1(4) (b) — Legislator intending to protect disclosure of information described in s. 18.1 in all proceedings — Impossible to conclude that Parliament intending to leave possibility of disclosure open — Interference with rights under review not arbitrary, unfair — Appeal allowed.

This was an appeal from a Federal Court decision concluding that the application of

section 18.1 of the Canadian Security Intelligence Service Act (CSIS Act) in the particular circumstances of this case would be invalid. The respondents instituted civil proceedings before the Ontario Superior Court to claim damages arising from an alleged breach of their rights and freedoms protected under the Canadian Charter of Rights and Freedoms . The appellant refused to produce information that would identify covert human sources of CSIS. As a result, it commenced an application (DES-1-11) pursuant to

section 38 of the Canada Evidence Act (CEA) that related to the respondents’ request for disclosure of all relevant documents. Over the course of the

section 38 proceeding, amendments were made to the CSIS Act and other Acts. The amendments at issue in this appeal were made in response to developments in the case law that indicated that CSIS’s human sources did not benefit from the common law absolute privilege afforded to police informers. The new

section 18.1 replaced the former rule that applied to CSIS human sources by deleting the reference to such sources in former subsection 18(1) of the CSIS Act . Former subsection 18(2) allowed the application of

section 38 of the CEA up until the amendments were introduced. The Federal Court concluded, inter alia , that to apply

section 18.1 to a human source that provided information several years before the date of the enactment would be to give the legislation a retrospective effect, and that

section 18.1 establishes a new class privilege that creates substantive rights for human sources and is not merely a rule of evidence or procedure. The Federal Court stated that the application of

section 18.1 could have an adverse effect on the respondents’ ability to establish their claims before the Ontario Superior Court. The Federal Court could not accept that in a

section 38 review, the right to information is not vested until the very moment it is disclosed. Rather, the respondents had a right to discovery as part of the civil trial process “from the outset”. The Federal Court was satisfied that at the time

section 18.1 was brought into force, the respondents had a vested right to the established disclosure regime for the duration of the

section 38 proceeding. The main issues were (1) whether

section 18.1 of the CSIS Act was intended to be applied retrospectively (i.e. whether it deals with the future legal effect of a situation that has completely arisen before its enactment) or prospectively (i.e. whether it deals with the future legal effect of an ongoing situation, including an individual’s status as a human source); and (2) whether the presumption against interference with vested rights was rebutted. Held , the appeal should be allowed.

Section 18.1 of the CSIS Act was applicable to the

section 38 proceeding in DES-1-11.

Section 18.1 is not intended to have retroactive effect, i.e., to affect the past legal effects of a situation that has completely arisen in the past. It is also not merely a procedural rule of evidence. Although some of the provisions in

section 18.1 deal with the applicable procedure, it does create a substantive right in favour of human sources based on the status of the individuals and their special relationship with CSIS.

Section 18.1 creates an exception to the right of the public “to every person’s evidence”. It trumps the public

interest in the disclosure of all the evidence by taking it out of the Federal Court jurisdiction under

section 38 of the CEA. Thisinterpretation is the only one consistent with the legislator’s choice to include a specific paragraph spelling out clearly that the purpose ofthe provision is to protect the life and security of human sources and to encourage individuals to provide information to CSIS. As to whether the presumption against retrospectivity was in play, the fact that a statutory provision is meant to attach consequences to astatus or an ongoing situation is very different from when it is intended to deal with the future or past legal effect of an event that hascompletely arisen in the past.

This important step was not considered by the Federal Court, which focused on the fact that in this case theindividual events that brought about the relationship between an individual and CSIS took place long before

section 18.1 was enacted.There was no real need to include a definition of “human source” in the CSIS Act. When the wording of the definition is considered incontext, the intention of the legislator is clear. Once an individual meets the criteria set out at

section 2 (wherein “human source” isdefined), he or she is a source and he or she keeps that status on an ongoing basis. It is “being” a source that brings about the legalconsequences set out in

section 18.1, even if the relationship that brought about this status was created before the enactment of the CSISAct. Considering that the new provisions are meant to apply to an ongoing situation, that is, the status as a human source, thepresumption against the retrospective application of the statutory provisions under review was not in play. The presumption against interference with vested rights was rebutted in this case. When one considers the historical context and thelegislative evolution of

section 38 of the CEA and of

section 18.1 of the CSIS Act, it is evident that the new provision deprives therespondents of the benefit of the more liberal version of the privilege set out in

section 38 of the CEA. The purpose of the new section18.1 is to give greater protection to CSIS’s human sources. It could not be said that the amendments were redundant and brought nothingover and above the protection afforded pursuant to

section 38 of the CEA. The legislator does not speak unnecessarily and the newlegislation is presumed to be remedial. The new statutory provisions were meant to fill a perceived gap after it was confirmed by theSupreme Court that the absolute common law privilege protecting police informers did not apply to CSIS human sources. The adoptionof

section 18.1 signals that the legislator has balanced all the relevant factors and found that the public interest in the non-disclosure ofthis specific and somewhat limited type of information must trump all other rights, subject to paragraph 18.1(4)(

b) of the CSIS Act. Thelegislator intended to protect the disclosure of the information described in

section 18.1 in all proceedings. It is difficult, if notimpossible, to conclude that Parliament would have intended to leave the possibility of a disclosure open because in the legislator’s view,disclosure could have a direct impact on the life and security of human sources. The interference with the rights under review was not inthis case arbitrary, nor was it unduly unfair. STATUTES AND REGULATIONS CITED Bill C-44,

An Act to amend the Canadian Security Intelligence Service Act and other Acts (assented to April 23, 2015), S.C. 2015, c. 9. Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38–38.16. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44]. Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2 “human source”, 18(1),(2), 18.1. Protection of Canada from Terrorists Act, S.C. 2015, c. 9. CASES CITED APPLIED: Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530; Application under s. 83.28 of the Criminal Code (Re),2004 SCC 42, [2004] 2 S.C.R. 248. CONSIDERED: Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508, revd 2011 FCA 199, [2012] 2 F.C.R. 594; Canada(Citizenship and Immigration) v.

Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; Wildmanv. The Queen, (SCC), [1984] 2 S.C.R. 311, (1984), 12 D.L.R. (4th) 641; R. v. National Post, 2010 SCC 16, [2010] 1S.C.R. 477; Benner v. Canada (Secretary of State), (SCC), [1997] 1 S.C.R. 358, (1997), 143 D.L.R. (4th) 577; Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, 104 O.R. (3d) 81. REFERRED TO: Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271, (1975), 66 D.L.R. (3d) 449;Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Attorney General) v. Telbani, 2014 FC 1050. AUTHORS CITED Côté, Pierre-André.

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Côté, Pierre-André. “La position temporelle des faits juridiques et l’application de la loi dans le temps” (1988), 22 R.J.T. 207. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Driedger, Elmer A. “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. B. Rev. 265. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014. APPEAL from a Federal Court decision (2015 FC 1278, [2016] 4 F.C.R. 66) concluding that the application of

section 18.1 of the

Canadian Security Intelligence Service Act in the particular circumstances of this case would be “invalid”. Appeal allowed. APPEARANCES Christopher Rupar and Derek Rasmussen for appellant. Barbara L. Jackman for respondents. John Norris as amicus curiae . SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Jackman, Nazami & Associates , Toronto and Stockwoods LLP Barristers , Toronto, for respondents. John Norris as amicus curiae .

The following are the reasons for judgment rendered in English by [ 1 ] Gauthier J.A. : The Attorney General of Canada (AGC) appeals from the decision of Justice Richard Mosley of the Federal Court (the Judge), who concluded that the application of

section 18.1 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 (CSIS Act) in the particular circumstances of this case would be “invalid” ( 2015 FC 1278 , [2016] 4 F.C.R. 66 [reasons]). More particularly, the Judge found that

section 18.1 was not merely a procedural rule of evidence, that it would have a retrospective application, and that applying it would affect the vested rights of the respondents in the disclosure of the information identifying the human source involved in this matter, subject only to the weighing of the factors provided for at

section 38 and following of the Canada Evidence Act , R.S.C., 1985, c. C-5 (CEA). I note that reference in these reasons to

section 38 encompasses sections 38 to 38.16 of the CEA. [ 2 ] The finding of the Judge in respect of the application of subsection 18(1) of the CSIS Act is not the subject of the appeal. Thus, the question involving the redacted information relating to Canadian Security Intelligence Service (CSIS) employees will be dealt with in the

section 38 proceeding in accordance with the Judge’s finding at paragraph 55 of his reasons. [ 3 ] It is worth mentioning immediately that this appeal only requires the application of well-established principles of statutory

interpretation to the particular provision under review. That said, this does not mean that the question before us is easy, for it concerns the temporal application of the new statutory class privilege given to CSIS human sources pursuant to

section 18.1 of the CSIS Act . As noted by Professors Côté, Beaulac and Devinat in

Interpretation of Legislation in Canada , 4th ed. (Toronto: Carswell, 2011), at page 116, transitional law is one of the most difficult fields in law. [ 4 ] For the reasons that follow, I would allow the appeal. I. Background [ 5 ] The general background and relevant procedural history of the civil proceedings instituted by Messrs. Abdullah Almalki, Ahmad Abou-Elmaati, Muayyed Nureddin and certain family members (collectively referred to as the respondents), and the ensuing applications made by the AGC under

section 38 of the CEA , are fully set out in the Judge’s reasons (see paragraphs 14 to 36). [ 6 ] For our purposes, it is sufficient to say that more than ten years ago, the respondents instituted civil proceedings before the Ontario Superior Court to claim damages arising from an alleged breach of their rights and freedoms protected under the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act, 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter). [ 7 ] In the context of mediation attempts, as well as in the course of the pre-trial discovery process after the mediation failed, the AGC produced many redacted documents but refused to produce information that would tend to identify covert human sources of CSIS. Among other things, the AGC invoked the national security privilege. [ 8 ] As a result, the AGC commenced two applications pursuant to

section 38 of the CEA . The first application, which related to documents provided in contemplation of mediation, was addressed in file DES-1-10. The second application, which related to the respondents’ request for disclosure of all relevant documents after the mediation failed, was addressed in DES-1-11. The DES-1-10 application was disposed of in Canada (Attorney General) v. Almalki , 2010 FC 1106 , [2012] 2 F.C.R. 508 ( Almalki 2010) and Canada (Attorney General) v. Almalki , 2011 FCA 199 , [2012] 2 F.C.R. 594 ( Almalki 2011). [ 9 ] It is over the course of the current

section 38 proceeding in DES-1-11, in October 2014, that Bill C-44, an Act to amend the Canadian Security Intelligence Service Act and other Acts , was introduced. It came into effect on April 23, 2015 as the Protection of Canada from Terrorists Act , S.C. 2015, c. 9. It is generally understood and agreed that the amendments at issue in this appeal were made in response to recent jurisprudential developments which indicated that contrary to CSIS’s belief, their human sources did not benefit from the common law absolute privilege afforded to police informers.

Indeed, the Supreme Court of Canada noted in Canada (Citizenship and Immigration) v. Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33 ( Harkat ), at paragraph 87 , that if this was felt to be desirable, only the legislator could create such a new class privilege. A similar message had been sent by our Court in Almalki 2011, at paragraph 34. [ 10 ] Consequently, the parties, including the duly appointed amici , made oral and written submissions to the Judge with regard to the

interpretation and application of the new and revised legislation, which could impact on the Judge’s ability to weigh the factors set out in

section 38 of the CEA with respect to information that could identify human sources.

II. The Federal Court decision [11] On November 23, 2015, the Judge issued what he characterized as an interlocutory decision on this important and distinctquestion. Indeed, the Judge notes at paragraph 63 of his reasons that if

section 18.1 applied to the case, “it [would] [effectively] oust[his] jurisdiction … to adjudicate the disclosure of information which may identify a human source under

section 38 of the CEA.” [12] The Judge starts his analysis by stating that there is a strong presumption that the legislator does not intend its laws to applyeither retroactively or retrospectively. He mentions that the distinction between retrospectivity and retroactivity can be difficult toascertain. He then explains that while the parties agree that

section 18.1 should not apply retroactively or retrospectively, they differ onwhether its application in the proceeding before him would be prospective (see Judge’s reasons, at paragraph 63). [13] It appears that the debate before the Judge was focused on whether

section 18.1 was meant to apply to all proceedings, regardlessof when they had started, provided there had been no disclosure of the human source information prior to that date. The Judge appears tohave accepted the arguments of the respondents that the focus should be on the definition of “human source” at

section 2 of the CSISAct (see paragraph 23 below), because when one applies the definition to this case, it refers to events that took place well before theamendments were adopted. Thus, the respondents argued that the application of

section 18.1 would make it at least retrospective, if notretroactive. [14] Interestingly, the Judge notes that the respondents argued that the AGC seeks to confer new legal status on past events (seeJudge’s reasons, at paragraph 67), but does not discuss this argument any further before concluding that to apply

section 18.1 to a humansource that provided information 13 or 14 years before the date of the enactment would be to give the legislation a retrospective effect(see Judge’s reasons, at paragraph 72). [15] In his view, the only question left to be resolved was whether the legislation affects substantive or vested rights. The Judge’sapproach appears to have been based on paragraph 10 of R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 (Dineley) (see Judge’sreasons, at paragraph 61; see also my comments in that regard at paragraphs 30 and 31). [16] The Judge concludes that

section 18.1 established a new class privilege that creates, in his view, substantive rights for humansources. The respondents and the amici contended that the right to confidentiality conferred to human sources is substantive, because itstems from a person’s status as a source, which is attained as soon as certain events occur (see Judge’s reasons, at paragraph 84). Theysubmitted that both the right and status exist irrespective of whether there is litigation.

It is on this basis that the Judge finds that section18.1 could not merely be a rule of evidence or procedure. [17] Although he does not clearly explain why this is necessary in the context of his analysis, the Judge then goes on to say thatwithout expressing a view on the merits of the allegations in the respondents’ civil actions, the Court “[could] reasonably infer” that theapplication of

section 18.1 “could have” an adverse effect on the respondents’ ability to establish their claims before the Ontario SuperiorCourt (see Judge’s reasons, at paragraph 92). [18] In the last part of his reasons, the Judge considers an alternative basis for the conclusion that

section 18.1 should not be applied.He goes on to review the application of the presumption against interference with vested rights and whether the respondents had a vestedright in the disclosure of human source information subject only to a

section 38 balancing assessment. At paragraphs 95–98, he sets outthe legal principles that he intends to follow. However, it is difficult to ascertain the Judge’s reasoning in respect of the weight given tothe presumption, since he mainly discusses arguments dealing with the nature of the rights that would be vested in the respondents,including the fact that his earlier decision in DES-1-10 could not be considered res judicata in respect of the new documents involved inDES-1-11. There is little discussion of the legislator’s intent to rebut the presumption. [19] The Judge mentions that he could not accept that in a

section 38 review, the right to information is not vested until the verymoment it is disclosed. Rather, in his view, the respondents had a right to discovery as part of the civil trial process “from the outset”(see Judge’s reasons, at paragraph 107). In a

section 38 review, the question is whether the information which would normally bedisclosed during discovery can be protected from disclosure on public interest grounds. [20] The Judge then mentions that in his view, he is not dealing with the repeal of an existing statute or even of an existing commonlaw privilege. He found that Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271,was of little help given that it was dealing with an income tax issue and the analogy with this case was weak. For him, it wasoverreaching to compare the right to disclosure in an ongoing proceeding with the right to a specific tax exemption where annual changesought to have been anticipated by taxpayers. [21] On that basis, he concludes that he is satisfied that, at the time

section 18.1 of the CSIS Act was brought into force, therespondents had a vested right to the established disclosure regime for the duration of the

section 38 proceeding (see Judge’s reasons, atparagraph 110). III. Legislation [22] The new

section 18.1 reads as follows: Purpose of

section — human sources 18.1

(1) The purpose of this

section is to ensure that the identity of human sources is kept confidential in order to protect their life andsecurity and to encourage individuals to provide information to the Service. Prohibition on disclosure

(2) Subject to subsections (3) and (8), no person shall, in a proceeding before a court, person or body with jurisdiction to compel theproduction of information, disclose the identity of a human source or any information from which the identity of a human source could

be inferred. Exception — consent

(3) The identity of a human source or information from which the identity of a human source could be inferred may be disclosed in a proceeding referred to in subsection (2) if the human source and the Director consent to the disclosure of that information. Application to judge

(4) A party to a proceeding referred to in subsection (2), an amicus curiae who is appointed in respect of the proceeding or a person who is appointed to act as a special advocate if the proceeding is under the Immigration and Refugee Protection Act may apply to a judge for one of the following orders if it is relevant to the proceeding: (

a) an order declaring that an individual is not a human source or that information is not information from which the identity of a human source could be inferred; or (

b) if the proceeding is a prosecution of an offence, an order declaring that the disclosure of the identity of a human source or information from which the identity of a human source could be inferred is essential to establish the accused’s innocence and that it may be disclosed in the proceeding. Contents and service of application

(5) The application and the applicant’s affidavit deposing to the facts relied on in support of the application shall be filed in the Registry of the Federal Court. The applicant shall, without delay after the application and affidavit are filed, serve a copy of them on the Attorney General of Canada. Attorney General of Canada

(6) Once served, the Attorney General of Canada is deemed to be a party to the application. Hearing

(7) The hearing of the application shall be held in private and in the absence of the applicant and their counsel, unless the judge orders otherwise. Order — disclosure to establish innocence

(8) If the judge grants an application made under paragraph (4)(b), the judge may order the disclosure that the judge considers appropriate subject to any conditions that the judge specifies. Effective date of order

(9) If the judge grants an application made under subsection (4), any order made by the judge does not take effect until the time provided to appeal the order has expired or, if the order is appealed and is confirmed, until either the time provided to appeal the judgement confirming the order has expired or all rights of appeal have been exhausted. Confidentiality

(10) The judge shall ensure the confidentiality of the following: (

a) the identity of any human source and any information from which the identity of a human source could be inferred; and (

b) information and other evidence provided in respect of the application if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person. Confidentiality on appeal

(11) In the case of an appeal, subsection (10) applies, with any necessary modifications, to the court to which the appeal is taken. [ 23 ] “[H]uman source” is defined as follows at

section 2: 2 … human source means an individual who, after having received a promise of confidentiality, has provided, provides or is likely to provide information to the Service; IV. Analysis A. Standard of review [ 24 ] The only question before us is the temporal application of

section 18.1. This is a question of law, which is subject to the standard of review of correctness ( Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235). [ 25 ] However, the respondents and amicus (only one appeared before us) take the position that the distinct question of whether or not the respondents have a vested right is a question of mixed fact and law subject to the standard of palpable and overriding error. The AGC

argues that this question is an integral part of the

interpretation of

section 18.1 and thus only involves a pure question of law. In my view,which standard of review applies in respect of whether the respondents have a vested right is of no consequence in this case (seeparagraph 57 below). B.

Preliminary remarks [26] Before starting my analysis, I would like to make a few preliminary remarks that are important to keep in mind when reviewingthe case law relied upon by the parties as well as any case law dealing with the difficult question of temporal application of statutes. [27] The first hurdle, as mentioned by the Judge, is the difficulty created by the inconsistent use of terminology in older textbooks andin the case law.

Second, we ought to keep the various applicable principles of statutory construction distinct. [28] The meaning of “retrospective” is not always clear, not only in the older authorities, but in modern authorities as well. In fact, it isoften used as synonymous of “retroactive”. This problem, as I said, persists to this very day despite consistent efforts by authors such asElmer A. Driedger, Ruth Sullivan and P.A. Côté to warn against it.

This is unfortunately compounded by the fact that distinctpresumptions, such as those against the retroactive and the retrospective application of statutes (as defined and discussed by Driedger in“Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. B. Rev. 264 (Retroactive Retrospective Reflections), and by Côté inInterpretation of Legislation in Canada, at pages 140–144), are often insufficiently distinguished from the presumption againstinterference with vested rights.

The latter generally applies to all statutes, not only those that are retroactive or retrospective. [29] It is obviously tempting to write more concisely in an attempt to summarise our thinking by merging various elements of thesevery distinct principles of construction. However, the risk in doing so is to unintentionally conflate presumptions that do not have thesame strength and that may be rebutted by different methods. [30] One such presumption provides that procedural provisions apply immediately to all proceedings under way in respect of all futuresteps taken.

It may well be accurate to say that this presumption will not apply if the procedural provisions in question create or infringeupon substantive rights. However, this is not because it is an exception to the application of the presumption; rather, it is simply becausea provision, by its very nature, is not merely or solely a procedural provision if it affects substantive rights. Thus, the presumption issimply not in play in such cases.

In a different but related vein, even provisions that are of immediate or prospective application aresubject to the presumption against interference with vested rights. [31] As noted by Driedger, it is wrong to hold that a statute is either retroactive or retrospective simply because it interferes withvested rights (Retroactive Retrospective Reflections, at page 266). Indeed, once again, the presumption against interference with vestedrights is quite distinct and does not have the same weight as the presumption against retroactivity or the presumption againstretrospectivity.

It may be that in practice, the same result is achieved. Still, because of the difficulty involved in temporal application inthe absence of clear transitional provisions, one should keep those concepts separated to ensure that proper weight is given throughoutthe purposive analysis. For example, it is clear that Justice Deschamps did not mean to change the applicable rules of

interpretation atparagraph 10 of Dineley. Such rules are more fully described by Justice Cromwell at paragraph 35 of the same decision (see also JusticeBastarache in Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530 (Dikranian), at paragraphs 45–51). [32] Vested rights are necessarily substantive rights, for there is no vested right in a mere process or procedure. Thus, in that senseonly, if a new provision interferes with vested rights it is an indication that it is not merely procedural.

This explains the wording used byJustice Deschamps at paragraph 10 of Dineley in reference to Wildman v. The Queen, (SCC), [1984] 2 S.C.R. 311, inwhich Justice Lamer [as he then was] was dealing with whether or not the rule of evidence in question involved substantive rights or wasmerely procedural. [33] I will now turn to my analysis. [34] In this appeal, the parties have raised arguments that are intended to address the following four distinct presumptions: i.

The presumption that the legislature does not intend legislation to be applied retroactively, that is, applied so as to change the pastlegal effect of a situation that has occurred completely in the past. This presumption is strong (Ruth Sullivan, Sullivan on theConstruction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014), at page 761, paragraph 1); ii.

The presumption that the legislature does not intend legislation to be applied retrospectively (as that term is defined by Driedgerin Retroactive Retrospective Reflections), that is, applied so as to change the future legal effect of a situation that has occurredcompletely in the past, unless it is enacted to protect the public. The weight of this presumption is variable (Sullivan on the Constructionof Statutes, above, at page 761, paragraph 2); it thus cannot simply be described as “strong”, like the presumption against retroactivity; iii.

The presumption that the legislature intends procedural legislation to apply immediately to any ongoing proceeding and in respectof steps to be taken in the future (Sullivan on the Construction of Statutes, above, at page 761, paragraph 5); iv. The presumption that the legislature does not intend to interfere with vested rights. Again, the weight of this presumption variesdepending on factors such as the nature of the protected right and how unfair or arbitrary it would be to abolish or curtail that right.

Thepresumption is often rebutted without reference to express legislative language (Sullivan on the Construction of Statutes, above, at page761, paragraph 3; see also

Interpretation of Legislation in Canada, at page 167). [35] I do not intend to deal in much detail with the first or third presumption referred to above for in my view, they simply have noapplication here. [36] Indeed, it is clear, in my view, that

section 18.1 of the CSIS Act is not intended to have retroactive effect, i.e., to affect the pastlegal effects of a situation that has completely arisen in the past. [37] I also agree with the respondents and the amicus that

section 18.1 is not merely a procedural rule of evidence. As noted in

Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at paragraph 56 “for a provision to beregarded as procedural, it must be exclusively so”. The Judge’s comment that the application of

section 18.1 would oust his jurisdictionunder

section 38 in respect of information tending to identify human sources (see Judge’s reasons, at paragraph 63) lends additionalsupport to the other arguments discussed herein in respect of the substantive nature of

section 18.1. [38] Although some of the provisions in

section 18.1 deal with the applicable procedure (see subsections 18.1(4) to (7)), it does createa substantive right in favour of human sources based on the status of the individuals and their special relationship with CSIS. The classprivilege created at

section 18.1 is akin (albeit somewhat different) to the common law class privilege applicable to police informerswhich is described by this Court in Almalki 2011 as “a legal rule of public order by which a judge is bound” (see paragraphs 15–18). Thisis consistent with the AGC’s contention that the adoption of Bill C-44 resulted from the comments of the Supreme Court of Canada inHarkat, where the Court confirmed that only the legislator could create such a class privilege for CSIS human sources if deemeddesirable. [39]

Section 18.1 thus creates an exception to the right of the public “to every person’s evidence” (R. v. National Post, 2010 SCC 16,[2010] 1 S.C.R. 477, at paragraph 1). It trumps the public interest in the disclosure of all the evidence by taking it out of the FederalCourt jurisdiction under

section 38 of the CEA. [40] This

interpretation is the only one consistent with the legislator’s choice to include a specific paragraph spelling out very clearlythat the purpose of the provision is to protect the life and security of human sources and to encourage individuals to provide informationto CSIS (see subsection 18.1(1)). It would make little sense to make such a declaration if the provision dealt with a mere process orprocedure. [41] The next question is thus whether the second presumption is in play (because

section 18.1 deals with the future legal effect of asituation that has completely arisen before its enactment) or whether

section 18.1 is simply prospective (i.e., whether it deals with thefuture legal effect of an ongoing situation, including an individual’s status as a human source). C. Is the presumption against retrospectivity in play? [42] As mentioned at paragraph 16 above, when presenting their arguments to the Judge, the respondents and the amicus argued thatthe right set out in

section 18.1 is based on the status of an individual as a human source. I agree. [43] Although this was meant to address the third presumption, this is an important point to consider when identifying the “situation”to which the statutory provisions under review are intended to apply or to which they attach legal consequences. [44] Indeed, as both Côté and Driedger note, the most important step in applying the various presumptions is to correctly characterisethe situation to which the statute applies: Pierre-André Coté, “La position temporelle des faits juridiques et l’application de la loi dans letemps” (1988), 22 R.J.T. 207, at pages 210 and 211 (Position temporelle des faits juridiques);

Interpretation of Legislation in Canada, atpage 135. This is rarely an easy task and it requires a purposive

interpretation of the provision. As mentioned by Justice Iacobucci,writing for the Court in Benner v. Canada (Secretary of State), (SCC), [1997] 1 S.C.R. 358 (Benner), at paragraphs 45and 46: The question … is one of characterization …. … many situations may be reasonably seen to involve both past discrete events and on-going conditions. A status or on-going conditionwill often, for example, stem from some past discrete event. A criminal conviction is a single discrete event, but it gives rise to the on-going condition of being detained, the status of “detainee”.

Similar observations could be made about a marriage or divorce. Successfullydetermining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involvedetermining whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the currentcondition resulting from it. This is, as I already stated, a question of characterization, and will vary with the circumstances.

Making thisdetermination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply.[Italics in original.] [45] That a statutory provision is meant to attach consequences to a status or an ongoing situation is very different from when it isintended to deal with the future or past legal effect of an event that has completely arisen in the past: see Benner, at paragraph 42, whereJustice Iacobucci relies on Driedger’s proposition as reasserted in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983).

Itappears that this important step was not considered by the Judge, who focused on the fact that in this case the individual events thatbrought about the relationship between an individual and CSIS took place long before

section 18.1 was enacted. At the same time, theJudge accepted that it is the ongoing status of the individual as a human source that gives rise to the so-called class privilege. [46] The expression “human source” or “CSIS human source” is not new. It has often been used in the past (see for example Canada(Attorney General) v. Telbani, 2014 FC 1050, at paragraphs 45–47).

It has even been used by the respondents in this very case wellbefore the drafting of Bill C-44 (see the part entitled Human Source Information in the Judge’s decision in Almalki 2010, at paragraphs163–170; see also Almalki 2011, at paragraphs 10–34). In Harkat, at paragraphs 78–87, the same expression was also used where adifferent statutory regime was in play. [47] There was no real need to include a definition of “human source” in the CSIS Act. Without one, there would be little doubt thatthe Act was meant to apply to the ongoing status (or the “state of being”) of a human source.

However, given the various jurisprudentialcomments about the past

interpretation of this term by CSIS itself, one can surmise that the legislator found it desirable to define the“ingredients” that establish the relationship giving rise to the status of human source. [48] When one considers the wording of the definition (see paragraph 23 above) in context, including the wording of paragraph18.1(4)(

a) which gives the right to argue that “an individual is not a … source” [emphasis added], the intention of the legislator is clear.Once an individual meets the criteria set out at

section 2, he or she is a source and he or she keeps that status on an ongoing basis. To usethe words of Driedger, it is “being” a source that brings about the legal consequences set out in

section 18.1, even if the relationship

which brought about this status was created before the enactment of the CSIS Act (see also Position temporelle des faits juridiques, at pages 215–219, 228, 229, 236 and 237). [ 49 ] At the hearing, the amicus agreed that the Court could reach such a conclusion. He noted that, in his view, the crucial question in this appeal was really the application of the presumption against interference with vested rights.

I agree and will address this principle next. [ 50 ] To conclude this part, considering that the new provisions are meant to apply to an ongoing situation, that is, the status as a human source, the presumption against the retrospective application of the statutory provisions under review is not in play. [ 51 ] As the presumptions against retrospectivity and retroactivity are not in play, it is unnecessary to deal with the Judge’s finding that

section 18.1 “could” ultimately have adverse effects on the respondents’ ability to establish their claims in the Ontario Superior Court (see Judge’s reasons, at paragraph 92). [ 52 ] Indeed, he only appears to have considered necessary to deal with this issue, which he characterized as distinct from the one of whether the respondents had vested rights in the disclosure of the human source identifying information subject to

section 38 (Part V.B. (3) of his reasons), because of his understanding that this made

section 18.1 retrospective in its application (see Judge’s reasons, at paragraph 61). [ 53 ] In any event, given the limited nature of the information protected by

section 18.1, the type of information that has been disclosed in

section 38 proceedings in the past, and without knowing all the information that is already available to the respondents, it is impossible to assess the basis for this inference “of a possible impact”. D. The presumption against interference with vested rights [ 54 ] Throughout my analysis, I have obviously followed the modern approach to statutory

interpretation which requires one to read the words of the Act in their entire context (which includes the applicable presumptions), in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

As noted by Justice Bastarache in Dikranian , it is particularly important in respect of the presumption against interference with vested rights to avoid falling into the trap of literal construction of the statutory provision: Dikranian , at paragraph 36 . [ 55 ] Although this is the last part of the analysis, I thought that it would be more appropriate to discuss the purpose and the legislative evolution and history of the provision under review in more detail in this part to avoid repetition.

I will do so after determining whether or not the respondents have a vested right that puts in play the presumption against interference with such rights. [ 56 ] Except for the issue of res judicata , the arguments of the parties were substantially the same as those mentioned in

Part V.B.(3) of the Judge’s reasons. [ 57 ] As I noted earlier (see paragraph 25 above), I do not believe that the standard of review to be applied to this question is relevant, for I believe that the Judge correctly decided that the right of the respondents to the disclosure of all relevant information subject to the application of

section 38 is not merely a right to a process. [ 58 ] In Abou-Elmaati v. Canada (Attorney General) , 2011 ONCA 95 , 104 O.R. (3d) 81, at paragraphs 17–21 (a decision issued in the civil proceedings instituted by some of the respondents), the Ontario Court of Appeal found that the scheme established by

section 38 of the CEA is in fact a liberalization of the common law Crown privilege based upon international relations, national security and national defence which had previously been absolute and not open to any scrutiny. [ 59 ] As alluded to earlier, the new

section 18.1 effectively replaced the former rule that applied to CSIS human sources by deleting the reference to such sources in former subsection 18(1) of the CSIS Act . Indeed, former subsection 18(2) allowed the application of

section 38 of the CEA up until the amendments were introduced in April 2015 (the former provisions are reproduced in Appendix A). [ 60 ] Thus, when one considers the historical context and the legislative evolution of

section 38 of the CEA and of

section 18.1 of the CSIS Act , it is evident that the new provision deprives the respondents of the benefit of the more liberal version of the privilege set out in

section 38 of the CEA pursuant to which the question of the identity of sources and information tending to identify them was dealt with up until now. [ 61 ] In that sense, I agree with the amicus that the recent amendments change the “rules of the game to the disadvantage of the respondents” (memorandum of fact and law of the Amicus Curiae , at paragraph 29).

This means that I must proceed to determine whether the presumption that the legislator did not intend such a result has been rebutted. [ 62 ] As mentioned earlier at paragraph 34, the weight of this last presumption depends on various factors such as the nature and importance of the right the respondents seek to protect and how unfair or arbitrary it would be to deprive them of such a right. The Court must also try to determine through purposive

interpretation whether such unwanted consequences are necessary or warranted by the goal(

s) the legislator sought to achieve. [ 63 ] As noted by the Judge at paragraph 43 of his reasons, “[i]n the words of the Bill’s sponsor, the Minister of Public Safety and Emergency Preparedness, the purpose of this amendment [new

section 18.1 ] [was] to give greater protection to [CSIS]’s human sources.” [ 64 ] Subsection 18.1(1) expressly provides that: Purpose of

section — human sources 18.1

(1) The purpose of this

section is to ensure that the identity of human sources is kept confidential in order to protect their life and

security and to encourage individuals to provide information to the Service. [ 65 ] The respondents say that, in respect of “true” human sources, the amendments are redundant and bring nothing over and above the protection afforded pursuant to

section 38. In their memorandum, the respondents also say that to encourage individuals to provide information does not necessarily warrant an interference with their vested rights. [ 66 ] I cannot accept those arguments. The legislator does not speak unnecessarily and the new legislation is presumed to be remedial. As argued by the AGC, the new statutory provisions were meant to fill a perceived gap after it was confirmed by the Supreme Court of Canada that the absolute common law privilege protecting police informers did not apply to CSIS human sources.

This meant that, in theory, a judge could decide to release information identifying such sources if he or she felt that the public interest in the disclosure prevailed. The adoption of

section 18.1 signals that the legislator has balanced all the relevant factors and found that the public interest in the non-disclosure of this specific and somewhat limited type of information must trump all other rights, subject to paragraph 18.1(4)(b). [ 67 ] It is also important to keep in mind that the legislator is presumed to know the law and how it has been applied. This means that the legislator, before adopting

section 18.1 , is presumed to have been aware of how

section 38 has been applied and how the balancing between public interest in a disclosure versus the public interest in non-disclosure has been carried out. Indeed, the following remarks are also useful to assess the parameters of the vested right here in play. [ 68 ] There was general agreement before us that as of now, the identity of human sources or of information tending to identify human sources has never been disclosed in the context of

section 38 proceedings. This includes the

section 38 proceeding in DES-1-10: the Judge expressly notes at paragraph 25 of his reasons that no such information was disclosed to the respondents in DES-1-10. [ 69 ] The Judge also stated in his decision in Almalki 2010 that the primary public interest in disclosure, which exists to ensure that the trial court has the fullest possible access to all relevant material, is not an overriding consideration that will compel a decision to disclose when national security is at stake (see Almalki 2010, at paragraph 178).

It is also relevant to mention that in Almalki 2010, the Judge was very well aware of the public interest in holding government accountable for the alleged action and omission referred to in the respondents’ civil proceedings.

He noted however that despite the alleged breaches of their Charter rights, the security and Charter rights of the respondents are not presently at stake in the underlying proceedings (see Judge’s reasons; Almalki 2010, at paragraphs 181–185; see also the comments of this Court in Almalki 2011, at paragraphs 32 and 33). [ 70 ] When one considers the short delay between the Supreme Court decision in Harkat (May 2014) and the filing of Bill C-44 (October 2014), one can assume that Parliament saw the need to deal with the mischief addressed by the adoption of

section 18.1 as urgent. That mischief was the perception that CSIS human sources were not automatically protected by a privilege of confidentiality akin to that of police informers, and that their protection was thus left entirely to the process set out in

section 38 . [ 71 ] From this, I can only conclude that inasmuch as the respondents still have a “possibility”—albeit a remote one—of obtaining the disclosure of information identifying human sources under

section 38, it is that very possibility that the legislator was addressing in adopting

section 18.1. [ 72 ] I agree with the amicus that

section 18.1 would have been clearer and certainly made our task easier if the legislator had added, after “a proceeding before the Court” in subsection 18.1(2), the words “commenced before or after the coming into force of this subsection” (i.e., something similar to a transitional provision). However, when the actual words of the

section are read in their proper context in accordance with the principles of purposive

interpretation, the absence of this additional wording is not sufficient in my view to avoid the conclusion that the legislator intended to protect the disclosure of the information described in

section 18.1 in all proceedings. [ 73 ] I agree with the AGC that when one considers the slight possibility of the respondents obtaining information that would identify human sources in the context of their

section 38 proceeding, against the clear intention of Parliament to protect the life and security of every individual who is a human source (ongoing status), it is difficult, if not impossible, to conclude that Parliament would have intended to leave the possibility of a disclosure open. This is so because in the legislator’s view, disclosure could have a direct impact on the life and security of human sources.

Moreover, in my view, if it became known that the life of a human source was actually threatened or lost, regardless of when that person became a source, it could have an impact on CSIS’ ability to recruit new human sources. [ 74 ] Although this is not decisive, I also consider that the interference with the rights under review is not in this case arbitrary, nor is it unduly unfair. Under

section 38, the Judge would still ensure that the respondents get as much information as possible in respect of the substance of the information that was actually conveyed by the source. Further, subsection 18.1(4) sets out a number of protections to which the respondents may resort to, if necessary. [ 75 ] Indeed, it is important to recall that the new scheme set out in

section 18.1 includes the ability for parties like the respondents or the amicus to apply to the Court to challenge whether an individual is a human source within the meaning of the CSIS Act and whether information said to tend to identify such a source actually does. [ 76 ] I also have some reservations with the view that the definition of “human source” in the CSIS Act is much broader than the definition of human source used by judges in the past. It may well be that CSIS has not been discriminate enough in the past in determining whether an individual is a “true” human source or not, but given the impact of

section 18.1 , I am confident that the courts will now very carefully monitor this process. It is too early to assume that the definition in

section 2 of the CSIS Act will be construed broadly. One must wait for the jurisprudence to develop in the context of applications under subsection 18.1(2). [ 77 ] I am satisfied that the presumption against interference with vested rights is rebutted in this case. [ 78 ] For all the foregoing reasons, I conclude that

section 18.1 is applicable to the

section 38 proceeding in DES-1-11 and I propose to allow the appeal. I would set aside the judgment of the Federal Court and, rendering the decision that should have been made, I would declare that

section 18.1 of the CSIS Act applies in the proceeding in DES-1-11.

Scott J.A. : I agree. de Montigny J.A. : I agree. APPENDIX A Offence to disclose identity 18.

(1) Subject to subsection (2), no person shall disclose any information that the person obtained or to which the person had access in the course of the performance by that person of duties and functions under this Act or the participation by that person in the administration or enforcement of this Act and from which the identity of (

a) any other person who is or was a confidential source of information or assistance to the Service, or (

b) any person who is or was an employee engaged in covert operational activities of the Service can be inferred. Exceptions

(2) A person may disclose information referred to in subsection (1) for the purposes of the performance of duties and functions under this Act or any other Act of Parliament or the administration or enforcement of this Act or as required by any other law or in the circumstances described in any of paragraphs 19(2)(

a) to ( d ). Offence

(3) Everyone who contravenes subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. Authorized disclosure of information 19.

(1) Information obtained in the performance of the duties and functions of the Service under this Act shall not be disclosed by the Service except in accordance with this section. Idem

(2) The Service may disclose information referred to in subsection (1) for the purposes of the performance of its duties and functions under this Act or the administration or enforcement of this Act or as required by any other law and may also disclose such information, (

a) where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada or a province, to a peace officer having jurisdiction to investigate the alleged contravention and to the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged contravention may be taken; (

b) where the information relates to the conduct of the international affairs of Canada, to the Minister of Foreign Affairs or a person designated by the Minister of Foreign Affairs for the purpose; (

c) where the information is relevant to the defence of Canada, to the Minister of National Defence or a person designated by the Minister of National Defence for the purpose; or (

d) where, in the opinion of the Minister, disclosure of the information to any minister of the Crown or person in the federal public administration is essential in the public interest and that interest clearly outweighs any invasion of privacy that could result from the disclosure, to that minister or person. Report to Review Committee

(3) The Director shall, as soon as practicable after a disclosure referred to in paragraph (2)(

d) is made, submit a report to the Review Committee with respect to the disclosure.