The Communications Security Establishment complex in Ottawa.Sean Kilpatrick/The Canadian Press
Three years after it sued the federal government and alleged the Communications Security Establishment was unlawfully spying on Canadians, the BC Civil Liberties Association says it still has not received information pertinent to its case.
Lawyers for the BCCLA and the Attorney-General of Canada were in federal court on Thursday for a hearing into the matter. The association has said the documents it has received through disclosure have been heavily redacted.
David Martin, a lawyer representing the association, told the court the government can find a way to release more information about the spy agency's conduct without jeopardizing national security. "The BCCLA says this can effectively and safely be done," he said.
Mr. Martin said the type of metadata being intercepted by the Communications Security Establishment should be disclosed, as well as the volume. Metadata refer to logs of phone and Internet communications.
Mr. Martin said he would also like the government to reveal what is being done with the information, how long it's being retained and the manner in which it's being disseminated to domestic and foreign agencies.
Robert MacKinnon, a lawyer for the Attorney-General of Canada, told the court there has already been significant information disclosed and the association is not entitled to everything it seeks.
Mr. MacKinnon said the redactions that have been made are necessary.
"The reasoning for those redactions are on the grounds that the information would be injurious to national security, national defence, or international relations," he said. He asked the court to uphold the government's decision. In the alternative, he said if the court orders further information disclosed the amount of information released should be as limited as possible.
Mr. MacKinnon said confidentiality is important for a number of reasons, including the fact it is fundamental to foreign affairs and diplomacy. He said some treaties make the obligation of confidentiality very clear.
Justice Robert Barnes told the court the civil liberties association's request for certain types of information could have merit.
"What they need is this framework. It strikes me that it doesn't have to go very deep," he said.
Justice Barnes questioned whether the parties should be able to reach an agreement on their own. "If you leave it to me … both of you are probably going to be unhappy," he said.
The Communications Security Establishment captures and shares material in partnership with allies in the United States, Britain, Australia and New Zealand. They are collectively known as "the Five Eyes." Members cannot eavesdrop on their own citizens but metadata that are collected and shared can show intelligence analysts who is talking to who, even when the contents of the underlying conversations are unknown.
Information captured during the establishment's operations that would identify Canadian citizens is supposed to be taken out before the data are shared. However, The Globe and Mail previously reported the establishment inadvertently provided allies with the logged phone and Internet activities of Canadian citizens.
Mr. MacKinnon said Thursday the government's stance on disclosure in no way means it is attempting to hide critical information.
The hearing is expected to continue Friday.
With a report from Colin Freeze