CSIS Federal Court Decision (En Banc)  

Date: 2020 07 20

Classification: unclassified

Branch/Agency: CSIS

Issue:

The Federal Court released its ruling on the Canadian Security Intelligence Service’s (CSIS) duty of candour obligations to the Court on July 16th, 2020. Media coverage is focusing on the comprehensive external review ordered as a result.

Proposed Response:

Background: 

CSIS’ ability to rely on Crown immunity to conduct activities routinely used by other intelligence agencies and police forces in allied countries has been the subject of extensive consultation with Justice Canada; and legal advice regarding the applicability of the Crown immunity doctrine has evolved and changed over time.

The Government of Canada recognized the need to address this issue through Bill C-59, the National Security Act, 2017. This Act provides a limited justification framework for activities that would otherwise constitute offences, modelled on the framework already in place for Canadian law enforcement. Examples include: paying a source for information, or providing a cell phone to a source to assist them in undertaking their work.

In January 2019, CSIS and the Department of Justice determined together that CSIS could no longer rely on Crown immunity as a defence for engaging in certain operational activities. At this time, the Director of CSIS directed that these operational activities be suspended until the Act passed in Parliament (June 2019), which included a clear legal justification framework.  

The Federal Court decision found that CSIS failed in fulfilling its duty of candour obligations to the Court when it failed to proactively identify and disclose all relevant facts in support of warrant applications.

Following the release of the decision, media coverage from The Globe and Mail, CTV, Reuters, iPolitics, and CBC are focusing on the comprehensive external review ordered as a result of what the Court described as a ’’troubling pattern [of omissions] dating back years’’. Additionally, Global News and Vice are reporting on high legal risk operations undertaken by the Service before C-59 was passed.

The National Security and Intelligence Review Agency (NSIRA) is launching a review along the lines recommended by the Court. Once this review is completed, the National Security and Intelligence Committee of Parliamentarians (NSICOP) study its findings.    

As acknowledged in the Federal Court decision, CSIS has already demonstrated its commitment to addressing its concerns, and has taken concrete steps forward. This includes proactively commissioning and now implementing the findings of a review of CSIS’ understanding of its duty of candour obligations led by former Deputy Attorney General Rosenberg. CSIS is also working to implement significant enhancements brought about through the recent Ministerial Direction for Accountability, and developing a more robust warrant review process, underpinned by rigorous training about CSIS’ legal obligations. 

CSIS will continue to work with Public Safety Canada, the Department of Justice, the National Security and Intelligence Review Agency, the National Security and Intelligence Committee of Parliamentarians, and the Intelligence Commissioner, and CSIS welcomes their continued insight to ensure that the concerns raised by the Federal Court are addressed and meet the expectations of all Canadians.

Contacts:

Prepared by: N/A

Approved by: Tricia Geddes, Assistant Director Policy and Strategic Partnerships, [Redacted]

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