Parliamentary Committee Notes: Challenges Associated With the Use of Intelligence as Evidence in Civil and Criminal Proceedings
Proposed Response:
- The use of intelligence as evidence is a long standing issue faced by all democratic countries that have to balance respecting the rights of those accused of a crime and those facing penalties with the states’ need to protect sensitive information and their information-gathering capacity.
- On November 24, 2023, the government launched consultations on potential amendments to the Security of Information Act, the Criminal Code, and the Canada Evidence Act. These amendments could help manage and safeguard national security information in both criminal and administrative proceedings.
- Operational enhancements have also been made in recent years, as law enforcement, intelligence agencies, and prosecutors have significantly improved how they work together and implemented operational reforms.
- This is not a simple or a straightforward issue, but it is an important one. We remain committed to government-wide collaboration in advancing clear and fair approaches to the use of intelligence as evidence.
Background
The Intelligence as Evidence (I&E) dilemma arises from the inherent tension between the need to protect sensitive information from disclosure, and the need to rely upon that information to support law enforcement and maintain procedural fairness in criminal, civil, and administrative proceedings. This tension is particularly acute in national security investigations, where both law enforcement and intelligence agencies may investigate the same activities under the purview of their respective mandates.
The I&E dilemma has been extensively studied over the last three decades, including by the Commission of Inquiry on the Air India Flight 182 bombing. This Inquiry, like several other Commissions of Inquiry and Government reports, highlighted a need to improve collaboration and decision-making among security and intelligence partners, taking into account the interests of each agency, as well as the broader national interest. In 2021, the National Security Review Agency (NSIRA) found that ongoing misperceptions of legal risk and mistrust between agencies continue to hamper information sharing within the national security community. More recently, the former Independent Special Rapporteur on Foreign Interference’s first and final report identified I&E as an issue warranting further exploration.
Current framework
Section 38 of the Canada Evidence Act (CEA) provides the core legal framework for the protection of national security information in Canada, which is information that, if released in court proceedings, would be injurious to international relations, national defence or national security. This provision sets out a regime that prohibits the disclosure of information or documents that contain what is defined as “sensitive” or “potentially injurious” information in court proceedings, without the consent of the Attorney General of Canada or a court order. Section 18.1 of the CSIS Act also protects the identity of CSIS’s human sources in court proceedings.
Standalone frameworks afford a similar protection of sensitive information in certain administrative contexts through what is commonly referred to as secure administrative review proceedings (SARPs). SARPs exist under the Criminal Code, Immigration and Refugee Protection Act, the Secure Air Travel Act, and other legislation, and allow the government to present its full case to a judge, including sensitive information, while balancing principles of fundamental justice.
Recent Progress
The Government is in the process of analyzing legislative options to address various aspects of the I&E challenge that arise in civil, administrative and criminal contexts. This work is being led by the Department of Justice (JUS), with support from Public Safety, given the impact on portfolio agencies, including CSIS, and the RCMP.
Beyond the legal framework, RCMP and CSIS continue to take steps to address various operational and cultural challenges and to improve cooperation and enhance information sharing between the two agencies in managing national security threats. In fall 2021, CSIS, the Public Prosecution Service of Canada (PPSC), the RCMP and JUS, signed a quadripartite Memorandum of Understanding to enhance collaboration on national security matters. CSIS and the RCMP also recently finalized the One Vision 3.0 framework, which aims to develop enhanced information sharing practices and deeper engagement between the agencies and PPSC. The framework was made public in summer 2023 for the first time.
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