Tommy Douglas case shouldn't go to top court, feds argue
Posted: Feb 5, 2013 10:49 AM CST
Last Updated: Feb 5, 2013 10:48 AM CST
The federal government says there is "no issue of public importance" involved in a seven-year battle to lift the shroud of secrecy over the intelligence dossier compiled on former Saskatchewan Premier Tommy Douglas.
Hence, the government says there's no need for the Supreme Court of Canada to settle the matter.
Jim Bronskill, a reporter with The Canadian Press, is seeking leave to appeal the case to the country's highest court.
He has been fighting since 2005 for access to the decades-old, 1,149-page intelligence file compiled on Douglas by the now-defunct RCMP Security Service.
Bronskill's lawyer, Paul Champ, has asked the top court to determine the appropriate balance between protecting national security and the public's right to see historical documents.
However, in its counter-submission to the top court, the federal government maintains the application for leave to appeal is "not about history;" it's strictly a technical matter over how the Access to Information Act should be applied.
"No issue of public importance arises from the decision of the Federal Court of Appeal in this matter. The application for leave to appeal should be dismissed," say Elizabeth Richards and Helene Robertson, counsel for the minister of Canadian Heritage.
Library and Archives Canada, which is now in possession of the file, initially released only 400 heavily censored pages from the file on Douglas, known as a father of medicare and the first federal NDP leader. Bronskill went to court to gain greater disclosure.
An additional 300 pages were released in 2011, just before the case was heard by the Federal Court. Even more were disclosed after the court ordered that more should be made public but large portions of the file remain secret.
The Canadian Security Intelligence Service, which replaced the Mounties' security service and advised Library and Archives on release of the Douglas file, has argued vehemently against full disclosure.
Although some information in the file dates back almost 80 years, CSIS maintains uncensored release would reveal secrets of the spy trade, jeopardizing the lives of confidential informants and compromising the agency's ability to conduct secret surveillance.
Federal Court Justice Simon Noel ruled that Library and Archives, in deciding which pages of the file to release, failed to take into account its mandate to make historically significant documents accessible to Canadians. He painstakingly reviewed all the pages in the file and attached an annex to his ruling listing the pages which contained information he believed should be further disclosed.
However, Noel's ruling was curtailed last October by the Federal Court of Appeal, which also struck down his annex.
In its submission to the Supreme Court, the government argues that the only legal issues at stake involve the scope of Bronskill's initial access request and how much evidence a department head must show to justify withholding or censoring information.
"The Court of Appeal did not err and no issue of public importance is raised."
However, in a response filed with the top court, Champ maintains the government "mischaracterizes or recasts" Bronskill's proposed appeal and "never addresses the applicant's argument that withholding these important historical documents from Canadians in perpetuity is an issue of national importance."
"Despite the respondent's protestations, this case was and remains about Canadians' right of access to important historical records held by our national archives," Champ argues.
The uncensored material released so far shows the Mounties shadowed Douglas from the late 1930s to shortly before his death in 1986. They attended his speeches, analysed his writings and eavesdropped on private conversations.
They were particularly interested in Douglas's links to the peace movement and the Communist party.
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