The Canadian Security Intelligence Service employed activities that were likely illegal in order to obtain intelligence and the Department of Justice failed to disclose that to the court, a Federal Court has found.
In a scathing ruling, the court found CSIS, Canada’s main spy agency, had “breached the duty of candour” it owed to the judiciary to be open and honest with the court. It further found “institutional failings” around how CSIS assesses the legal risk of its programs.
“We take these findings very seriously,” reads a statement from Public Safety Minister Bill Blair and Justice Minister David Lametti.
A source with knowledge of the ruling confirmed to VICE News that the probably-illegal activities had to do with CSIS’ effort to track foreign fighters.
While the ruling is heavily redacted, it notes that one of the Service’s investigations involved paying “an individual known to be facilitating or carrying out terrorism an amount totalling less than $25,000 over a few years.” The court looked at seven instances where CSIS provided or tried to provide money or goods, and found four cases where the Service broke the law. (In some cases, payments were interrupted.)
The decision notes that the payments were made in order to “collect information on the threat related activities of individuals in hostile and difficult locations”
CSIS has, for years, been recruiting and paying sources in order to gain intelligence on Canadians who left home to fight for extremist and terrorism groups abroad. There has long been fears that those fighters, particularly the one who left in recent years to join the Islamic State, could return to Canada.
“We often rely on the assistance of human sources who have access to individuals or organizations that pose a threat to our country, and who may put themselves at great risk to protect Canada and Canadian interests,” reads a statement from CSIS Director David Vigneault concerning the decision. “At times, this requires us to pay these sources for information or offer other logistical support, such as providing a cell phone to help them carry out their work.”
The director contended that those potentially law-breaking activities, which are classified, “are representative of bread and butter practices conducted by our allies around the world.”
Whether or not they are normal or necessary, CSIS failed to tell the court the full details of these operations and the potentially illegal activities.
“Despite this widespread knowledge and the potential relevance the issue of illegality had in the context of warrant applications, the matter was never brought to this Court’s attention,” the court wrote. “This is inexcusable.”
The agency relied on information gleaned through potentially-illegal means to obtain at least two warrants from the court. According to a media lines prepared by the government, CSIS also kept then-public safety minister Ralph Goodale in the dark about the extent of the activities until early 2019.
According to a media lines prepared by the government, CSIS also kept then-public safety minister Ralph Goodale in the dark about the extent of the activities until early 2019.
“Prior to that date, Minister Goodale, was notified of the operations in question as constituting high legal risk, but not that they were likely unlawful,” the media lines read. Goodale, at that point, issued a new directive requiring CSIS to report its activities to his office more fully.
It does not seem that any charges will be filed in relation to any potentially illegal activity.
A 2015 incident may illustrate the kind of activities that got CSIS in trouble.
That year, Turkish news identified Mohammed al-Rashed as the man seen in security footage shepherding the three British girls through a Turkish border town. Multiple outlets reported that al-Rashed was working for Canadian intelligence.
A source told TV station A Haber at the time that al-Rashad communicated intelligence about his smuggling operation to a source at the Canadian embassy in Ankara. The Istanbul-based Star reported that al-Rashad was arrested and confessed his partnership with Canada while being interrogated by Turkish security services.
The media reports said he likely smuggled 20 individuals from Turkey to Syria, many to serve as “brides” in the fledgling caliphate.
In a statement to the Globe & Mail, then-public safety minister Stephen Blaney’s office denied the Syrian man was a CSIS employee, but remained coy about whether he was working with the service.
If CSIS had, in fact, paid al-Rashad in relation to his smuggling operations, that may well have broken Canadian law.
For years, CSIS believed it had relatively free reign to break the law when necessary. Legal advice prepared for the service concluded that “Crown immunity” covered its employees and sources, meaning they are protected from criminal prosecution while carrying on business of the Canadian government.
CSIS has gotten in trouble with that assumption before.
In 2016, the Security Intelligence Review Committee, which was then the primary watchdog for CSIS, investigated how the service was handling the threat posed by the risk of foreign fighters returning to Canada. The review committee specifically looked at how CSIS managed its human sources outside Canada and found issues.
While the report itself remains vague, as the operations were classified, it did pointedly recommend that CSIS “ensure its employees fully understand the extent to which certain activities present legal risks” and work to “seek legal clarification on whether CSIS employees and CSIS human sources are afforded protection under…Crown immunity.”
CSIS accepted the recommendation, and said it intended to clarify its legal protections, tacitly acknowledging that its legal advice around “Crown immunity” might be wrong.
A year later, the Trudeau government introduced legislation that did that work for them—Bill C-59 specifically removed CSIS’ Crown immunity protections. The bill proposed a new test that would dictate when and how CSIS would be allowed to break the law to collect intelligence, while setting clear red lines of what it could never do: Including murder, torture, kidnapping, sexual assault, and obstruction of justice.
That bill was introduced in 2017, but didn’t actually pass through Parliament until the summer of 2019.
In that two-year gap, however, legal advice prepared by the Department of Justice for CSIS came to the conclusion that they did not, in fact, enjoy Crown immunity as they once thought. In January, 2017, the CSIS director paused all law-breaking operations. Two months later, in March, the Service began approving those operations all over again, even though it did not have legal advice backing up its actions, where “the value of the operation justified the risk,” as the court summarized it.
“It appears the Service was willing to let sleeping dogs lie,” the court wrote.
In January, 2019, the legal advice flipped again, and “CSIS immediately suspended all such activities,” reads an internal Q&A sheet prepared by the Department of Justice.
“In hindsight, we acknowledge that our legal advice should have been clearer and more consistent,” the department admitted.
When C-59 became law in June 2019, CSIS again enjoyed the ability to break laws when necessary.
This ruling from the Federal Court is the second such decision in recent years. In 2017, the Federal Court blasted a secret CSIS’ metadata collection program, which it largely hid from the court and cabinet.
The court has recommended a wide-ranging external review of CSIS, including how it obtains legal advice from the Department of Justice and how it vets the legal risk of its intelligence operations.
While the court didn’t require any such review, it did require that the service report back within two months with its plans on how to address the decision—that deadline ended today.
Neither the service nor Department of Justice made it clear whether they would go forward with the review as proposed by the court.
The government did say that former Supreme Court Justice Ian Binnie is being retained to look over the Department of Justice’s processes while the National Security and Intelligence Review Agency—the beefed-up watchdog which replaces CSIS’ review committee—is being asked to conduct a review of CSIS’ policies. The National Security and Intelligence Committee of Parliamentarians, which has a mandate to review classified information, may also conduct a study.
The Department of Justice is appealing part of the ruling, to do with solicitor-client privilege. “Appealing this single legal question in no way diminishes our commitment to addressing the full range of the Court’s recommendation,” the two ministers said.
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