Date of Publishing:

The National Security and Intelligence Review Agency (NSIRA) has taken careful note of the decision of the Federal Court, issued on July 16, 2020, regarding the legality of certain Canadian Security Intelligence Service (CSIS) activities involving human sources of intelligence and CSIS’s failure to meet its duty of candour owed to the Court.

The Federal Court examined the impact of CSIS’s application of the legal doctrine of Crown immunity to human source activities in the context of CSIS warrant applications. Until early 2019, CSIS relied on the doctrine of Crown immunity to justify a range of actions taken during the collection of intelligence by CSIS employees and those acting at their direction – actions that would normally be considered unlawful.

SIRC REVIEWS OF CSIS HUMAN SOURCE ACTIVITIES

In its decision, the Court cited the role of the Security Intelligence Review Committee (SIRC) in raising awareness of the issues regarding CSIS’s reliance on Crown immunity. SIRC, created alongside CSIS in 1984, closely scrutinized the activities of CSIS until its replacement by NSIRA in July 2019. During that time, SIRC regularly examined CSIS’s use of human sources to collect intelligence. For example:

• In the May 12, 2015, review of CSIS’s Relationship and Exchanges with the Department of Foreign Affairs, Trade and Development (1) SIRC drew attention to the legal constraints facing CSIS with regard to its human source operations when it noted that certain CSIS operations abroad may have been in contravention of the United Nations Al Qaeda Taliban Regulations and other similar laws. SIRC then directed CSIS to undertake a wide-ranging review of its own activities for compliance.

• In the May 27, 2016, review of CSIS’s Investigation of Canadian Foreign Fighters, (2) SIRC noted legal risks associated with certain CSIS operations, and recommended that “CSIS seek legal clarification on whether CSIS employees and CSIS human sources are afforded protection under the Common Law rule of Crown Immunity in regards to the terrorism-related offences of the Criminal Code of Canada.”

Bill C-59, An Act respecting national security matters, was introduced on June 20, 2017, received Royal assent on June 21, 2019, and is now in force. Included in Bill C-59 were new provisions that permit CSIS to undertake human source activities with explicit legal protection. These provisions were not retroactive, however.

SIRC continued to examine CSIS’s human source activities following the introduction of Bill C-59. In its annual report for 2016-2017, SIRC raised the issue of CSIS’s ongoing conduct of human source operations that risked contravening Canadian law. The report noted that, pending the coming-into-force of Bill C-59, SIRC would monitor CSIS’s efforts to mitigate the legal risks of human source operations.

SIRC’S CERTIFICATION OF THE CSIS DIRECTOR’S 2017-2018 REPORT

In its certification of the Director of CSIS’s 2017-2018 report to the Minister of Public Safety and Emergency Preparedness, SIRC concluded that, in its opinion, CSIS had conducted human source activities that could not be justified by the doctrine of Crown immunity. As such, CSIS had undertaken human source activities “despite knowing that these activities did not comply with the CSIS Act and Ministerial Direction, which stipulates that ‘the rule of law must be observed’”. SIRC also stated its expectation that the Director report these activities to the Minister and the Attorney General of Canada under section 20 of the CSIS Act. The SIRC certificate, dated March 21, 2019, was delivered to the Minister and the Director of CSIS.

NSIRA will discuss the SIRC certificate in its first annual report, coming this fall. Given the recent Federal Court decision, NSIRA has also published a redacted version of the certificate, available online here.

For more information on NSIRA and its mandate, please see our website.

The Federal Court decision notes how CSIS did not provide SIRC with important information (3). In addition, CSIS delayed informing SIRC of a key legal opinion regarding Crown immunity for almost two years until January 2019, at which time SIRC was briefed on the situation unfolding before the Federal Court. In the certificate, SIRC also noted that certain CSIS briefing notes and reports on this topic submitted to the Minister of Public Safety and Emergency Preparedness had omitted key facts.

THE WAY FORWARD

Looking forward, the members of NSIRA believe strongly that CSIS’s utmost candour towards persons and institutions charged with reviewing and overseeing its activities is crucial to the effective functioning of Canada’s framework for national security accountability. This includes not only the Federal Court, but also review bodies such as NSIRA.

Independent review of CSIS is a statutory requirement for NSIRA. NSIRA reviews CSIS activities to ensure their compliance with the law and ministerial direction, as well as to ascertain the reasonableness and necessity of CSIS’s activities.

In its decision, the Federal Court recommends that a comprehensive external review be undertaken to fully identify the systemic, governance and cultural shortcomings and failures that resulted in CSIS engaging in illegal activity and the related breach of candour to the Court. The Minister of Public Safety and Emergency Preparedness and the Minister of Justice have since referred the matter to NSIRA for review under paragraph 8(1)(c) of the NSIRA Act.

In response, NSIRA will immediately launch a comprehensive review along the lines recommended by the Court. This review will focus primarily on CSIS and the Department of Justice. NSIRA may also review other related aspects of the matter as deemed appropriate, in accordance with our legal mandate. This review will be led jointly by two current members of NSIRA: the Honourable Marie Deschamps, C.C., a former justice of the Supreme Court of Canada, and Craig Forcese, a professor in the Faculty of Law at the University of Ottawa. NSIRA will expect full and unfettered access to all relevant information – as determined by NSIRA – needed to complete the review, as provided for in the NSIRA Act.

Contact

For more information, please contact:

Media Relations
NSIRA
media-medias@nsira-ossnr.gc.ca

Footnotes

(1) This review (2014-07) was subsequently published in the SIRC Annual Report 2014-2015.

(2) This review (2015-09) was subsequently published in the SIRC Annual Report 2015-2016.

(3) Please see paragraphs 56 and 126 of the Federal Court decision.