CSIS immunity from criminal culpability for acts done in foreign fighter investigations: Observations on SIRC report

In its annual report on CSIS activities released last week, the Security Intelligence Review Committee (SIRC) included some cryptic comments about CSIS overseas foreign terrorist fighter investigations.  Specifically, it stated: “CSIS should ensure its employees fully understand the extent to which certain activities present legal risks. To this end, SIRC 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.”

It is impossible to draw definitive conclusions about what SIRC is talking about here, but a few inferences seem reasonable:

  • This comment seems to be directed at CSIS security intelligence investigations (that is, intelligence investigations) and not CSIS’s new (post bill C-51) “threat reduction” powers (discussed in my post immediately prior to this one).
  • In Bill C-44, CSIS was given a clearer legislative basis to conduct overseas security intelligence investigations, and one assumes that is exactly what it is doing.
  • And based on SIRC’s statement, CSIS has either employees or sources who are collecting information overseas on terrorism-related matters, but doing so in a manner that may expose them to Canadian Criminal Code culpability.
  • At a guess, there are two reasons why these employees/sources may have legal liability. 
  1. First, Canada’s terrorism offences are extraterritorial – they extend to conduct by Canadian citizens overseas that if done in Canada, would be a crime. The most likely candidate is “participation with a terrorist group”.  A CSIS source in a terrorist group is almost certainly someone who, along the way, has participated in a terrorist group.  Indeed, these kind of issues came up in the Toronto 18 case. And employees may also commit such crimes, while acting undercover with a terrorist group.
  2. Second, the entire Criminal Code applies to federal employees who commit an act that is crime in both Canada and the place overseas where it happens (s. 3.73(4)).  So there is a whole lot (conceivably most of the Criminal Code) that a CSIS employee might do that triggers potential criminal exposure, while they act undercover.
  • CSIS security intelligence operations include no express statutory carve-out for this criminal culpability. (CSIS’s new threat reduction powers post-C-51 do, but only if blessed by a secret federal court warrant). (I don't think s.20 of the CSIS Act provides enough cover, since it only extends peace officer protections, which I don't believe would permit illegal conduct, absent proper application of s.25.1 of the Criminal Code. And at any rate, that s.20 only applies to CSIS employees, not sources or agents. I take it SIRC has the same concerns, or it wouldn't have raises this issue at all).
  • And so if CSIS employees or sources are to be immune from criminal exposure for their conduct in security intelligence investigations, then it will be because of classic crown immunity rules.  Now, we know that the police do not possess crown immunity for illegal conduct, done as part of their peace officer duties.  That is precisely why Parliament added the controversial s.25.1, carving out such immunity, to the Criminal Code. (Shockingly, the RCMP appears not to have employed properly the s.25.1 carve out in the Nuttall case, where officers were found to be engineering a terrorism plot. They were, therefore, exposed to potential culpability).
  • What has not been decided, as best I know, is whether CSIS enjoys crown immunity in their operations. I think they are likely in a different position than RCMP: police enjoy “police independence” and thus are legally distinguishable from the Crown in their conduct of criminal investigations. CSIS does not enjoy this independence, and so can be conflated with the Crown. (Saying more than this is a research project for which I currently have no time.)
  • But even assuming CSIS enjoys such crown immunity, it seems like the sort of thing that would extend to employees.  At a guess, it is much less likely it extends also to sources.  The prospect that sources are also covered becomes more likely (I suspect) if they are more than information sources: crown immunity seems more likely if they are actual agents acting at the direction of CSIS.  An agent is just that: someone who is not an employee but who is acting under the command and control of the government.
  • But if CSIS is directing agents (or undercover employees) to do things that break Canadian anti-terrorism law, that looks like the kind of thing that probably should be done as threat reduction, and not security intelligence. And so if it is done without the federal court warrant required for those threat reduction activities that break Canadian law, we will have an issue of whether CSIS acted legally under its legislation. Indeed, the very failure to obtain a warrant here seems likely to be precisely the excess that would strip the crown immunity from the agent/employee anyway, because it does not comply with statutory immunity provision. (See para. 37 et seq).
  • And on top of that: if a person is a CSIS agent/employee, and if they are in fact committing a criminal offence -- perhaps in some sort of agent provocateur role – then even if they were immune under crown immunity, there are legal troubles. The fact of the illegality becomes critically material if criminal charges are later brought against one of the CSIS targets.  Specifically, we could have failed prosecutions against such targets when, a la Nuttall, a court concludes there has been entrapment or some other abuse of process associated with the CSIS conduct.

All of this to say that SIRC’s cryptic statement in its recent report raises a host of immediate legal issues – and we shall never know how they are resolved even though they are elemental to the rule of law, and possibly prejudicial to our ability to prosecute foreign fighters if the legal advice and subsequent CSIS conduct is amiss.