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:
- Protecting Canadians in a manner that is compliant with the law is something that the Government of Canada is determined to uphold.
- I have spoken to the Director of CSIS and he has assured me that CSIS takes the Federal Court’s findings very seriously and is committed to following up with the Court’s recommendation.
- Furthermore, CSIS continues to engage with the oversight bodies put in place to review and report on all national security activities across the federal government.
- At no time was the safety of Canadians at risk, nor were our rights and freedoms.
- Let me assure you that CSIS employees have the utmost respect for the rule of law, and at no time did CSIS intentionally withhold information from the Court.
- CSIS carried out its mandate in good faith and acted at all times in the public interest.
- The potentially illegal activities involved in this case are, in fact, routine intelligence collection activities, used around the world by national security and law enforcement agencies to investigate terrorism and keep people safe, such as: paying a source for information, or providing a cell phone to a source to assist them in undertaking their work.
- The issue has now been addressed with the passage in law of the National Security Act 2017, which provides CSIS with a limited justification framework to conduct activities that would otherwise constitute offences.
- In September 2019, this office issued a new Ministerial Direction for Accountability to the Director of CSIS to strengthen ministerial oversight over CSIS’s activities.
- Further to this, CSIS has taken concrete steps to address the Court’s concerns, which includes proactively commissioning and now implementing the findings of a review of CSIS’ understanding of its duty of candour obligations and providing employees with additional training on their legal obligations.
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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