The federal Crown claims that an allegation someone might be a source for Canada's main spy agency could put that person at risk, if part of a B.C. Supreme Court trial for a couple accused of plotting to bomb the B.C. Legislature is made public.
Both CSIS and the Crown want the judge hearing entrapment arguments in the case of John Nuttall and Amanda Korody to prevent any public access to details of an extraordinary in-camera application held earlier this week.
The subject of the application is not known, but during a hearing held Thursday to determine if the in-camera order should be lifted, lawyers made it clear the identity of a possible source was at stake. It didn't emerge whether the person in question is actually a source, but lawyers said even the allegation could put someone in danger.
"I don't think anyone is quibbling over the facts of the potential risk of exposing this person," said Helen Park, the lawyer representing CSIS.
'Fear of identifying Mr. X'
Crown lawyer Sharon Steele argued that there was no way of releasing a transcript of the in-camera arguments without removing "99 per cent" of the contents for fear of identifying "Mr. X."
She said the chilling effect on CSIS's ability to recruit sources "would be profound" and that disclosure "potentially puts someone's life at risk."
A jury found Nuttall and Korody guilty last June of plotting to bomb the B.C. Legislature on Canada Day 2013. But no conviction will be entered until Justice Catherine Bruce decides if the pair were entrapped by police.
The couple's lawyers argue that RCMP manipulated the pair of poverty-stricken drug abusers into a plot to explode pressure-cooker bombs during July 1 celebrations.
The in-camera hearing was held Monday without any notice to the media as part of a so-called O'Connor application, a proceeding used to obtain orders for third parties to produce documents.
Media organizations, including the CBC, are arguing for details of the hearing to be made public.
Media lawyer Daniel Burnett said in-camera hearings are almost unheard of as part of Canada's open-court process.
"It's really unusual for a court to go in-camera," he said outside the proceedings. "Judicial authorities all recognize that that's about as extreme a secrecy order as you can get."
Individual at risk
Burnett said undercover officers often testify in trials with their identities protected.
But Steele said that even the allegation an innocent person is a CSIS source could threaten their safety. She also pointed out that the individual's name was mentioned at least twice during Monday's proceedings.
She also argued that amendments to the Canadian Security Intelligence Service Act prohibit the disclosure of information that would tend to identify CSIS sources.
To that end, Steele claimed even the hearing on lifting the in-camera order should be covered by a publication ban. But Bruce said no one could be identified by today's proceedings.
Park said that in the event the proceedings are made public, CSIS wants a chance to edit the transcripts. But Bruce pointed out that that's her job.
The judge ordered transcripts of both the in-camera hearing and the ruling which emerged from it; she will decide whether or not to make the proceedings public by next week.
Nuttall and Korody described themselves as jihadist warriors, waging a holy war against the West for its treatment of Muslims. The RCMP's lead officer on the case testified that he was aware CSIS was conducting its own surveillance.
Over the course of the police investigation, undercover officers posing as jihadis gave Nuttall and Korody groceries, cigarettes, bus passes, cellphones, phone cards, clothing, cash and a portable hard drive.
They also provided the pair with a place to work on their plot and a location to build the explosives, chauffeured them to various stores to purchase bomb-making equipment and transported them to and from Victoria and around the Lower Mainland over the course of the four-month sting operation.