NSIRA Review arising from Federal Court’s Judgment in 2020 FC 616

Backgrounder

This is a report about the manner in which the Canadian Security Intelligence Service (CSIS) seeks and receives legal services from the Department of Justice (Justice) and prepares and executes the warrants it needs to collect information. This review stemmed from a 2020 decision of the Federal Court (2020 FC 616). In that matter, the Federal Court recommended that a “comprehensive external review be initiated to fully identify systemic, governance and cultural shortcomings and failures that resulted in CSIS engaging in operational activity that it has conceded was illegal and the resultant breach of candour.”

This review found an intelligence service and its counsel who struggle to organize themselves in a manner that allows them to meet easily their legal obligations, including to the Federal Court.

NSIRA also found a failure at CSIS to professionalize fully and sustainably the warrant application process as a specialized trade that requires training, experience, and investment. This report also demonstrates the need to transform the relationship between CSIS and its legal counsel.

This review was led by NSIRA Members Marie Deschamps and Craig Forcese. One or both Members were directly involved in every aspect of the review including review process management, briefings, interviews and document review. To conduct this review, NSIRA conducted dozens of confidential interviews with Justice and CSIS employees whose perspectives were essential for “ground-truthing” the knowledge NSIRA had gained from documents and formal briefings. In organizing these interviews, NSIRA ensured robust representation covering the range of functions in the warrant and legal-advice giving processes. The interviews raised issues and concerns that would have otherwise been unavailable to NSIRA. This assisted NSIRA in making recommendations on governance, systemic, and cultural issues that contribute to inefficiencies threatening the ability of CSIS and Justice to fulfil their mandates.

NSIRA heard repeated concerns from interviewees that the problems stemming from governance, systemic, and cultural challenges put at risk the ability of the intelligence service to meet the mandate Parliament has assigned to it. Addressing these challenges is in the urgent public interest. Though CSIS and Justice have made improvements, difficulties are still evident.

NSIRA groups its findings and recommendations into three overarching areas:

  1. Justice’s Provision of Legal Advice
  2. CSIS’s and Justice’s Management of the Warrant Acquisition Process
  3. Investment in People

In its conclusion, this report also makes comments and recommendations about the broader cultural and governance context.

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