The following is the second entry in a serialized article I am preparing on CSIS and best practices in the intelligence area. The other entries for this series can be found here.
The focus of this article is on intelligence agencies; that is, bodies that collect and analyze information from a variety of sources, some overt and some covert, in order to advise on matters of interest to the state. The Scheinin report confines its focus to agencies that “undertake intelligence activities pertaining to national security”. “National security” is itself an inherently ambiguous term, but for the purposes of this article can be taken to exclude intelligence collected for economic or more general foreign relations purposes, unconnected to the narrower range of threats reasonably associated with “national security”.
Within the Canadian context, a number of organizations fall within the Scheinin definition, including CSIS, Communications Security Establishment Canada, and elements of the Canadian Forces and the RCMP. CSIS is primarily a “security intelligence” organization: its core mandate, found as section 12 of the CSIS Act, tasks CSIS with collecting, analyzing and retaining information and intelligence on “threats to the security of Canada.” The latter is a defined term, aspects of which are discussed below.
CSIS does have other functions that go beyond security intelligence. CSIS is empowered under section 16 of Act to “assist the Minister of National Defence or the Minister of Foreign Affairs, within Canada, in the collection of information or intelligence relating to the capabilities, intentions or activities of” foreign states and persons, “in relation to the defence of Canada or the conduct of the international affairs of Canada.” In practice, this means collection of “non-threat related intelligence” relating, for example, “to Canada’s international competitiveness.” The Act, however, carefully circumscribes CSIS’s role: CSIS’s foreign intelligence role must be performed “within Canada.”
It also serves as the government’s security auditor, performing security assessments for government agencies and in relation to government personnel, and provides advice to ministers on security and criminal matters related to ministerial duties under either the Citizenship Act or the Immigration and Refugee Protection Act. In performing these functions, CSIS conducts whatever investigations are necessary to meet its mandate.
Critically, none of these functions – and nothing else in Canadian law – makes CSIS a law enforcement agency and its officers are not peace officers entitled to enforce Canadian law. Law enforcement in national security matters is the purview of the RCMP.
B. Mandate and Legal Basis
I begin by juxtaposing the Scheinin principles relating to intelligence service mandate against CSIS practice.
1. Best Practices
The Scheinin report recommends that the articulation of “national security and its constituent values to be clearly defined in legislation adopted by parliament”. Moreover, the intelligence agencies mandate should be narrowly and precisely defined, entrenched in publicly-available and constitutionally and human rights-compliant law, and limited to protecting legitimate national security interests. Where terrorism intelligence is among the agency’s mandate, terrorism should also be “defined in narrow and precise terms.”
The Scheinin report also urges express prohibitions on contravention of the Constitution or international human rights law extending “not only to the conduct of intelligence services on their national territory but also to their activities abroad”.
2. CSIS Practice
As the discussion in Part A above suggests, the scope of CSIS activities is richly governed by law. This is particularly true in relation to CSIS’s core section 12 security intelligence function.
a) Concept of “Threats to the Security of Canada”
CSIS’s section 12 mandate depends on a careful understanding of “threats to the security of Canada”. The latter expression constitutes a legislatively-prescribed limiter on the section 12 operations. Summarized succinctly, the expression is clearly focused on a subset of security-related intelligence issues: espionage and sabotage; foreign-influenced activities; political violence and terrorism; and, subversion.
The definition of this concept is not perfect. Probably by necessity, each of the categories of threat found in the “threats” concept is broad and vague, and thus capable of expansive definition. The formulation and inclusion of this definition was the subject of sustained discussion at the time Parliament enacted the CSIS Act in 1984. It has also drawn the attention of the review agency empowered to scrutinize CSIS activities, the Security Intelligence Review Committee (SIRC). That body queried the ambiguity of some of the expressions used in the definition in the late 1980s, especially as it related to the concept of subversion.
More recently, the post-9/11 revision of the political violence and terrorism concept in the definition has attracted concern. That passage includes as a “threat to the security of Canada” those “activities within or relating to Canada directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state”. The 2001 Anti-terrorism Act added the reference to “political, religious or ideological objective” to the CSIS Act. In so doing, it harmonized the CSIS Act concept with the definition of “terrorist activity” in the Criminal Code.
An Ontario lower court declared the Criminal Code version, dubbed the “motive clause”, unconstitutional in 2006. The court regarded the motive clause as empowering law enforcement investigation of protected associational or speech interests, in a manner that might chill such association or speech.
In the wake of that decision, jurists speculated that the equivalent phrase in the CSIS Act might render information collected by CSIS constitutionally suspect, if employed in a subsequent criminal prosecution. To minimize the prospect of ethnic profiling, a special senate committee on antiterrorism law recommended its repeal in a 2007 report.
However, the Ontario court’s holding has not been followed by any other court to date, and indeed was overturned by the Ontario Court of Appeal in 2010. The matter is now before the Supreme Court of Canada. Until the latter issues its conclusions, it would be premature to conclude that the anti-terrorism language in the Criminal Code is deficient or that CSIS Act is tainted by its mimicry of the Criminal Code definition of “terrorist activity”.
Indeed, even if the latter is unconstitutional, it should not follow automatically that the CSIS Act provision is itself doubtful. CSIS is, after all, an intelligence service, and not a law enforcement agency. Section 12 empowers the Service to collect, analyze, and retain information and intelligence on threats to the security of Canada. This puts CSIS’s activities on a different footing than law enforcement, charged with investigating crimes bearing criminal sanction. Reasonably, a trenching on speech or associational interests may be less problematic if the outcome is intelligence reporting and not possible criminal prosecution or sanction. Much turns, however, on how that intelligence product is used. If it is converted into fodder for a criminal prosecution or otherwise deployed in a way that affects liberty interest, then the distinction between intelligence gathering and criminal probe collapses, as does any constitutional distinction one may wish to draw between the two.
b) Other Limiters in Section 12
CSIS’s security intelligence function is also limited by certain criteria imposed by section 12 itself. Specifically, CSIS may collect information only to the extent “that it is strictly necessary,” and it must have “reasonable grounds” to suspect the threat to the security of Canada. Several ministerial directions amplify these considerations. As described by CSIS’s inspector general in 1996, “CSIS is expected to employ an objective standard, namely demonstrable grounds for suspicion and to ensure that it documents its grounds.”
Further, that documentation must indicate that the investigation has been focused to a scope “strictly necessary” and that “techniques of investigation that penetrate areas of privacy [were] used only when justified by the severity and imminence of the threat to national security.” Further, “where the proposed targeting and investigation may involve activities relating to lawful advocacy, protest or dissent, or sensitive institutions,” CSIS documentation must include “indications that these interests have been appropriately considered and protected.”
c) Extraterritorial Limitations
The discussion to this point suggests that the CSIS Act compares quite favourably to the Scheinin best practices. It is true that neither the CSIS Act nor any other instrument specifically admonishes the Service true comply with the constitution. That expectation is, however, implicit in the Charter of Rights and Freedoms, in the jurisprudence of the courts, and the critiques of the CSIS review body, the Security Intelligence Review Committee.
More troubling, however, is the absence of robust understandings of the rules to be applied in CSIS’s extraterritorial operations. This uncertainty stems from two sources: first, an alleged ambiguity in the CSIS Act itself and, second, an unnecessary level of confusion about the extraterritorial reach of Canadian constitutional law.
To be continued...
 Ibid at 3.
 CSIS Act, s. 12.
 Talking Points for W.P.D. Elcock, Director of the Canadian Security Intelligence Service at the Canadian Centre for Intelligence and Security Studies Carleton University (2002), available at http://www.csis-scrs.gc.ca/nwsrm/spchs/spch06122002-eng.asp.
 CSIS Act, s. 16.
 CSIS Act, s. 13.
 CSIS Act, s. 14.
 CSIS Act, s. 15.
 Scheinin Report, at 5.
 Ibid at 5-7, summarizing Practices 1-4.
 Ibid at 7, Practice 5.
 SIRC, Annual Report 1988-89 at 55 et seq.
 S.C. 2001, c. 41.
 R. v. Khawaja, 2006 CanLII 63685 (ON SC)
 See discussion in Ian MacLeod, “Ruling Threatens Law That Lets CSIS Probe Terrorism,” Ottawa Citizen (27 Nov. 2006).
 Special Senate Committee on the Anti-terrorism Act, Fundamental Justice in Extraordinary Times (February 2007) at 20.
 R. v. Khawaja, 2010 ONCA 862.
 CSIS Inspector General, 1996 Certificate Made Public (June 1998) Pursuant to a Request Under Canada’s Access to Information Act.
 The Charter provides in s.32 that it applies, inter alia, to “to the Parliament and government of Canada in respect of all matters within the authority of Parliament”. CSIS is clearly part of the government of Canada and performs functions within the authority of Parliament.
 See, e.g., Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38
 SIRC, Annual Report, 2006-7, at 22, available at http://www.sirc-csars.gc.ca/pdfs/ar_2006-2007-eng.pdf.