More Doubts about CSIS and the Conduct of National Security Investigations

At least twice in the last several years there have been instances of CSIS conduct that crosses the boundary between security intelligence collection and law enforcement, and in a manner that breaches Charter rights.

CSIS and Detention

CSIS cannot detain.  It has no authority under the CSIS Act, the Criminal Code or anywhere else to detain a target in an investigation.  Detention is a peace officer function, governed (for the most part) by the arrest powers set out in the Criminal Code or related or similar statutes.  In a 2002 case investigated by CSIS's review body -- the Security Intelligence Review Committee -- and reported in the latter's 2006-07 annual report, CSIS facilitated the transfer of an admitted member of Al Qaeda and Canadian citizen from Oman to the United States, via Canada.  Along the way, SIRC concluded, that individual was "arbitrarily detained" by CSIS, in violation of section 9 of the Charter.  Further, "[b]ecause he was detained, his right to silence as protected by Sections 7 and 11(c) was violated, as was his right to counsel under Section 10. Furthermore, his right to remain in Canada as protected by Section 6 of the Charter (mobility rights) was breached."  CSIS, SIRC concluded, "strayed from its security intelligence mandate into the area of law enforcement."

 

CSIS and the Al Capone Strategy

 

History repeats itself.  Much more recently, this month the Ontario Superior Court of Justice threw out child pornography charges against a CSIS target stemming from photos extracted by CSIS from the target's computer.  In R. v. Mejid, 2010 ONSC 5532, the target was suspected of posting extremist Islamist literature on the internet with the intent of inciting violence.  CSIS's investigation along these lines was apparently fruitless, but the target was (in the Ontario court's findings on the evidence) coerced by CSIS agents (threats and intimidating conduct) into supplying his computer for searches on several occasions.  At some juncture, CSIS began to suspect that the target had propensities in the area of child pornography. These suspicisons were insufficient to attract a police investigation -- there was no reasonable and probable grounds.  However, they did steer CSIS to search the photos on the computer coerced from the target, producing the evidence then used in the subsequent prosecution.  Indeed, at a certain juncture in the supposed national security investigation, the central purpose of the CSIS agents' activities was to unearth evidence of child pornography.  All this was done without warrent.

 

Not suprisingly, the evidence was supressed on Charter grounds, as a violation of the section 8 search and seizure protections.  In the court's words: "This court cannot condone the activities of CSIS. The protection of Canada's national security is of utmost importance. However, CSIS cannot rely on its authority as a license to abrogate the Charter rights of individuals by conducting a criminal investigation based on suspicion. When conducting a criminal investigation, CSIS must adhere to the standards expected of the police and the application of the Charter."

 

More can be said on this point: CSIS cannot conduct a criminal investigation at all.  It has no mandate to do so, and the child pornography issue should have been handed over to a law enforcement body and not used as an alternative means by CSIS to take a suspected security threat out of circulation.  There is a place for an Al Capone prosecution strategy -- proceeding with prosecution for the different offence when there is insufficient evidence for the original concern.  But an Al Capone strategy does not change CSIS's mandate, nor does it abrogate the Charter and its protections. 

 

This latest case also lends credence to longstanding complaints within the Muslim community that CSIS agents use strong-arm tactics to enduce cooperation from potential witnesses.  It is unhelpful to CSIS rejections of these complaints that a Superior Court concluded has now written: "I am troubled by the atmosphere of coercion and intimidation that the CSIS agents (and in particular Witness 'A') seem to have created and been eager to embrace. The very people that are tasked by the federal government to oversee and safeguard Canada's national security are themselves acting in a manner that suggests either a complete lack of comprehension of our Charter rights or else, they demonstrate a total willingness to abrogate and violate these same principles. Neither is acceptable and I find that the Charter breach in this case was serious."