Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a
particular context, are not fixed standards. See: Syndicat des employйs de production du Quйbec et de l'Acadie v. Canada (Canadian
Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at
p. 682.
In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1
S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be
necessary to balance competing interests of the state and the individual:
What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state,
both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons,
[[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1
S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J.
and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .
In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair
procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue,
removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national
security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases
was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.),
at p. 460:
The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in
the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself
be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field,
our enemies might try to eliminate the source of information.
On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott,
[1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held
that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the
Parole Board as long as he is informed of the substance of that information.
The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable
balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of
interests.
In this case the respondent was first provided with the "Statement of Circumstances giving rise to the making of a Report by the
Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee". This
document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had
been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing,
the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a
"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of
the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these
various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to
respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the
criminal intelligence investigation techniques or police sources used to acquire that information.
The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to
cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to
allow such cross-examination:
Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may
make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.
The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the
procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure
followed by the Review Committee in this case did not violate principles of fundamental justice.
VI. Conclusion
I would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows: