Why did CSIS refuse to stop doing operations using illegal methods, until early 2019?
Photo Credit: (Sean Kilpatrick / Canadian Press)
Written by: Morgana Adby
Recently, a Federal court conducted a damning review of CSIS activity. The organization, notorious for its lack of transparency, allegedly used illegal information to obtain warrants.
When seeking a warrant the Service is privy to information that is sensitive, and the court almost entirely reliant on their information to make their decision. Because of this, they have a duty of candour, to entirely disclose any information opposing and supporting the use of a warrant. This violation is the most obvious, and easy to understand.
Also concerning is the flow of money from the service and human sources to active terror members. Although this may sound similar to undercover police operations, the lack of a strong ethical foundation with checks and balances is critical.
For police doing such operations, there is a process in which they request permission to engage in illegal activity to achieve their mandate of public safety. These checks and balances were not implemented in the Services’ early years.
In their statement on ‘high legal risk’ operations and crown immunity, the Service clarified that when they were informed that they did not benefit from crown immunity they halted “high legal risk,” operations.
However, 2019 was not the first time the Service was informed that their invocation of crown immunity was a precarious legal issue.
The statement goes on to explain that these high legal risk operations were stopped until Bill C-59 gave a clear framework for these practices.
But none of that addresses the lack of interest in determining the legality of Service operations for almost 20 years. This is a story of convenient delays, where the Service dismisses any concerns about crown immunity by essentially arguing that they might benefit from crown immunity throughout the mid-2010s.
Fortunately, the hand waiving is over now that the recent review is public. Details and definitions are provided in the timeline below, but for the sake of simplicity this is what the court found:
The Ruling
Justice Gleeson concludes firstly that the court may use information obtained illegally, but that the court ought to consider all legal evidence and properly weigh the value of illegal evidence. This relies on the Service fulfilling their duty of candour in the future.
Also, if the court is to disregard a previously obtained warrant over the application’s illegality, remedial measures may be considered by future courts.
Case A, and Case B CSIS “did breach the duty of candour” to the court in warrant applications. A detailed review of systemic legislative, internal and legal barriers to fulfilling this obligation was ordered.
CSIS was ordered to fulfill its duty of candour in the future and provide a statement to the court detailing how it will operate in light of the ruling. This was required within 60 days.
Lastly, the court decided that the review itself would be released publicly after a 20-day period where CSIS and others could redact classified information in collaboration with the court.
Why Our Service Seems To Abuse its Power So Much
The Anti- Terrorism act and CSIS act 2001 criminalize providing property and money to terrorists. This proves to be an issue because legislatively, we never exempted our Service from these obligations.
This means that while the service continued their work, using basic intelligence strategy, they did not have a roadmap for doing it legally. On a political level, that is deeply concerning because until the courts noticed the unlawful conduct the Service was able to simply use these methods as they saw fit without checks and balances.
Furthermore, they were legally advised by the AGC counsel that they were protected by crown immunity- which did not end up being accurate. This is also concerning because it speaks to culture and problem with a patriarchal view of the self within CSIS. It is worth asking why there was an institutional embrace of such an archaic power as crown immunity in the first place, and why they felt comfortable relying on it so commonly.
This is best demonstrated through the material in the court document. In his concluding remarks, Justice Gleeson reviews various reports to understand the details of solving illegal operations within the Service. In these documents “institutional culture is identified as undermining both the commitment to and compliance with core values including respect for the rule of law.”
We have built up a structure in the past two decades that simply has not felt the need to comply with the law. That cannot be undone in one day, even with amicable leadership. As the timeline will detail, the Director of Service was publicly open to major changes, but the wider system still could not address the issue.
On an institutional level, CSIS is the perfect storm to abuse their power.
Even now that Bill C-59 has passed and the wild west period of our Service is technically over, it is deeply concerning that a body with such power over Canadians (and their information) had such a fundamental lack of investment in understanding their own legal prerogative.
The Timeline
Many details in the document are redacted. Specific details are not presented in this timeline for that reason. Rather, the timeline of events simplifies the broader information, trends and practices in a dynamic way.
April 2002: Department of Justice opinion is released on whether the added regulations in the Anti- Terrorism Act are subject to crown immunity. The opinion was that the crown is not bound by the Anti- Terrorism Act, and does benefit from immunity. However, Justice’s note that their opinion is based on an older common law precedent, and that interpretations could change in differing circumstances.
Note: this is not relevant in determining if the Service benefits from this immunity, just that those benefiting from crown immunity likely would continue to do so in the new legislative context.
2004: NSLAG, the legal representation and legal advisory body for the Service provides an opinion on whether the Service is subject to crown immunity. They answer in the affirmative, based on the aforementioned 2002 opinion.
The opinion specifically answers that human sources and their handlers in the Service both benefit from crown immunity.
April 2013: NSLAG releases opinions under the initiative of the Senior General Counsel. “This opinion concluded that the likelihood of the Service successfully relying on Crown immunity was low and recommended a legislative solution”... “that “the rule of law must be observed” and that human sources were to carry out tasks on behalf of the Service ‘without engaging in criminal activities.’”
This is the first time the Service is told they may not benefit from crown immunity.
September 2013: Service Litigation Committee commences to address the Ministerial Direction of the Service. At the time, the Direction was not clear on crown immunity, although it did state that the rule of law is a fundamental principle of the Service mandate.
June 2015: The efforts to modify the Ministerial Direction of the Service continue.
The Service requests the addition of language that recognizes crown immunity for the Service and human sources.
In response, the Department of Justice’s Assistant Deputy Minister of Public Safety, Defence and Immigration releases a statement. Here, the opinion states that human sources have a “low likelihood,” of benefiting from crown immunity. The minister goes on to say, “The CSIS Act now refutes any possible argument that activities contravening Canadian law can legitimately be contemplated as “effecting” Crown purposes whether they are carried out by sources or by CSIS officials or employees.”
This is the first time the Service is explicitly informed that they cannot rely on crown immunity.
July 2015: Ministerial Direction is released to the service describing fundamental principals. The rule of law is included, meaning that a fundamental principle of the Service is a recognition of its submission to the same common law.
October 2015: NSLAG releases statements against the Deputy Minister of Public Safety, Defense and Immigration’s opinion on crown immunity. They claim that the low or moderate chance of benefiting from crown immunity ought to be considered by the court.
After the SIRC opinion, they will release an amended statement in January 2017.
2014-2016 Annual Report Security Intelligence Review Committee: Raising concerns that the Service is violating international law in its conduct regarding human sources. Specifically, Canada has ratified the United Nations Al Qaeda and Taliban Regulations, and if human sources are breaking that treaty then the Service will be responsible to some extent.
Exactly to what extent is unclear, but even as a non-legal issue the SIRC recommended that “internal mechanisms” be implemented to prevent further transgressions. Note: the SIRC is privy to that information Justices are not: they have access to all information covered under solicitor client-privilege that the Service has access to.
May 2016: The SIRC recommends to the Service that they seek clarification on whether they benefit from crown immunity. Initial information they had indicated it was a “grey area.”
January 2017: New opinion is released by NSLAG that now recognizes that the Service does not benefit from Crown Immunity.
The Director of Service publicly recognizes this and begins looking for ways to change Service operations so that they will comply with the law.
The Director of Service instigates a meeting with relevant officials to determine a legislative response to the revelations.
The Director of Service is informed the Department of Justice will release a clear opinion soon. Until then, the Director of Service decides to halt “high legal risk” operations until the illegality is clarified.
The opinion is never released, but it is drafted. Justice Gleeson and others following the case are unsure why, and reportedly have no knowledge of formal follow up between the Department of Justice and the Director of Service.
The draft opinion comes to the conclusion that the Service does not benefit from crown immunity. However, the draft was never finalized or presented to the Service.
March 2017: The Service resumes “high legal risk” operations that were previously disregarded by the Director of Service. This was done in the absence of a legal opinion from the department of justice, and any further follow- up on the issue of crown immunity and the Service.
March 2018: Service seeks warrant from Justice Noel while investigating alleged Islamic Terror activity.
April, 2018: Justice Noel attends a hearing with the Service. He expresses concern over the Services’ collecting of information. Also, the Justice asks whether funds delegated to that investigation may be used for terror activities. He comments “the Criminal Code talks about that.”
Displeased with the answers the Service provided, the Justice decided to exclude any information that he had legal concerns about. The warrant was still released based on the legal information that the Service provided.
May 2018: The AGC Counsel attends a Case Management Conference.
June 2018: New AGC Counsel is observed by the court. This Counsel “assumed carriage of the file and wrote to the Court to acknowledge errors and omissions in the application,” and offered to do a fresh application against the same subject. Even though Justice Noel had disregarded illegal information in support of the warrant in Case A, the Justice requests the case be reassigned.
It is done, so under Justice Gleeson’s observation, a fresh application can be reviewed.
July 2018: The AGC Counsel solidifies its intent to file a fresh application.
September 2018: Case A is disregarded, a fresh application hereby referenced to as Case B is filed for Justice Gleeson’s review.
October 2018: Justice Gleeson determines that “the outstanding issues from [Case A] was relevant in determining what was to be considered in support of the application.”
The Case A warrants released by Justice Noel remain in force. With that in mind, Justice Gleeson decides to delay a determination for the court until he could resolve some of the “underlying legal issues.”
December 2018: In response to ongoing submissions about the legal questions arising from Case A and Case B, Justice Gleeson decides to release a Direction to third parties and the AGC. This direction clearly articulates the key legal questions that the Justice observed.
January 18, 2019: NSLAG releases a letter to the court.
The January 18th letter outlines that in two other successful warrant applications the Service realized that evidence in support “was derived from potentially illegal activities. These Cases are referenced as Case C, and Case D. They are observed by Justice Kane and Justice Brown, respectively.
Justice Gleeson is made aware that the Service is conducting an internal review to investigate the scope of the problem. In the letter, a document written by the Deputy Director of Operations was also reviewed. In it, “It indicated that the Service would no longer approve operations that were likely illegal—characterized as posing a “high legal risk”—and that the Service would review any such operations that were ongoing to mitigate potential illegality.”
January 21 2019: Justice Mosley instigates a case management conference with the support of Justice Kane.
The Senior General Counsel for the NSLAG presented himself to the court and confirmed the illegal activities of the Service and that among other things the Service was conducting a review of their warrant applications. He indicated that “high legal risk” operations would be a thing of the past.
January 25, 2019: Two affidavits are filed regarding Service conduct.
January 29, 2019: Justice Mosley initiates a hearing where all the justices in the court will be present, rather than a select panel/individual Justice.
Justice Mosley expresses concern for the illegal issues at large. Two affidavits are reviewed to further understand the situation.
The first affidavit, by the Director of Service, is composed of six documents that the Director waived solicitor-client privilege on. These documents were legal advice to the Service on whether it benefited from crown immunity in following its mandate.
Two opinions explicitly conclude that the Service could not benefit from crown immunity.
February 21, 2019: The all-Judges hearing follows. In the hearing, Justice Gleeson and others have their suspicions further confirmed that illegality issues were common in the conduct under review.
The AGC Council promises to return with additional filings and some answers regarding the Service and Department of Justice’s knowledge of ongoing illegal conduct within the Service.
An initial Direction is released by the Justices
They formally warn the Service that they must abide by the duty of candour, and release all relevant legal information to the court when seeking a warrant. They also indicated they would require a more specific process (“recitals,”) regarding the duty of candour when seeking warrants.
April 2019: Senior General Counsel for NSLAG writes a letter to the court in response to the Direction. He expresses support for the sentiment of the Direction but has concerns over statements regarding the duty of candour.
From there, the Senior General Counsel informed the court that a practice directive would be released to NSLAG Counsel.
The directive is quoted in part and clearly states that, “Where unlawful activity occurs it must be brought to the Court’s attention in warrant applications ...Where there may be doubt as to whether any activity undertaken is lawful, that activity should be drawn to the Court’s attention.”
April, 2019: After due diligence, Justice Gleeson decides to grant the warrants requested in Case B, but remains attentive to the issues above.
June, 2019: Affidavit and oral testimony are collected as evidence.
September 2019: Senior General Counsel for NSLAG releases a second direction, regarding the use of information about human sources in warrant applications.
November 1, 2019: Final oral testimony is collected.
November 28, 2019: Final written statements are collected.
March 21, 2020: The Service files an affidavit, which outlines how they have been internally reviewing and attempting to resolve issues arising in Case D. Specifically, in how the “use of human source information,” was unlawful.
May 15, 2020: Justice Gleeson, among others conduct the review.
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