CSIS

Bill C-59 Flowcharts: Revised and Expanded

Once more unto the breach...

Bill C-59 will hopefully, finally, soon (?) inch its way to the senate committee, after second reading (still underway) in the senate. I confess, I am looking at the parliamentary calendar and starting to feel a bit nervous. As readers of this blog or listerners to "A Podcast Called INTREPID" will know, I do not embrace every aspect of C-59. But I think it a vital bill -- and a vast improvement on the status quo -- measured on both accountability and security grounds.  And in its absence, that status quo will oblige a number of public interest groups to reignite their various court challenges. (If I were the government, I'd be worried about at least some of those challenges.) And watchdog entities like SIRC will have to continue issuing reports saying CSIS is in non-compliance with its current laws (in relation to datasets) and the CSE commissioner will be obliged to continue its decade-long complaints about statutory ambiguities. None of this is sustainable. And meanwhile, our security services would have all the powers and competencies necessary for the analog era. So this is an important law project.

But it is also important for people to understand what is in this complicated bill. I have reached my 20th year as a lawyer, and I continue to believe the most important thing I ever learned in law school is how to reduce a complicated area of law to a decision-tree flow chart. Unless you can make those boxes in the flow chart connect, you are missing something, or the law is missing something. So I continue to make such charts and devices, usually for my personal understanding.

In the event, however, that my labours are useful to others, I post my revised and expanded bill C-59 flowcharts. These now do two things: 1. They outline how CSE's new mandate powers will operate, and the checks and balances on those. 2. They show how CSIS's security intelligence, threat reduction, foreign intelligence and "dataset" (bulk data collection and retention) regimes will work (and the checks and balances on those), if C-59 becomes law.

I have done my best *not* to make mistakes, and have shared these charts with knowledgeable people who have made helpful comments. But caveat emptor -- there will be glitches. Also, there are areas where provisions may be interpreted differently. I have tried to flag those areas where I know others have a different take -- that provides evidence either that I am idiosyncratic or that the provision in question is ambiguous. And then I have also flagged areas where I have concerns that I know I am not alone in having. (Those are in the red boxes.)  Here, I feel danger lies, as these uncertainties could be tomorrow's controversies.

If anyone spies any errors, please let me know.

Revised C-59 Flow Charts:

1. CSE Manadates (as of Senate first reading)

2. CSIS Powers (as of Senate first reading)

Oh, What Tangled Webs the CSIS Act Weaves: The Federal Court's Latest Decision on CSIS's Foreign Intelligence Mandate

The Federal Court this week released a lengthy decision that, unusually, dealt with CSIS’s s.16 “foreign intelligence” mandate. In so doing, it proved, once again, that an Act mostly left fallow for a generation spits up weeds.

The decision is deeply redacted, and we know precisely nothing about the target, subject-matter issue or investigative technique at issue. And that means there is no way for me judge whether I think the Court “got it right”. But the underlying storyline is easy enough to imagine, even if the precise specifics are secret. And the policy issues can be surfaced with a hypothetical.

Who Was the Target?

The target was a foreigner physically in Canada. They could not be Canadian (or a Canadian permanent resident) – CSIS cannot investigate a Canadian or Canadian permanent resident under its s.16 mandate. And they had to be in Canada. This was a warrant application. A warrant would only be required, constitutionally, if the foreigner was in Canada. And besides, if the foreigner was overseas, CSE could have targeted him or her under its foreign intelligence mandate, Mandate A.  But CSE cannot direct its foreign intelligence activities at any person in Canada. So bottom line: the person was in Canada.

What was the Foreigner in Canada in Doing?

We do not know what our foreigner in Canada – who we shall call Bob – was doing. We do know what Bob was not doing. He was not involved in terrorism, espionage, sabotage or foreign-influenced activities (at least not foreign-influenced activities within Canada or related to Canada, while detrimental to the interests of Canada). And I suppose for the sake of completeness, I should add Bob was not involved in subversion of the Canadian government. Because if Bob was involved in any of these things, he would pose a “threat to the security of Canada” and this would have been a s.12 CSIS “security intelligence” investigation.

But it was a s.16 investigation.  Which means that Bob was being investigated to collect information or intelligence relating to the capabilities, intentions or activities of any foreign state or group of foreign states or some foreign person. This is what is called “foreign intelligence”. Basically, that means anything other than security intelligence.

Bob from Mordor

So, because all the good parts in the decision are redacted, let’s make up our hypothetical: Bob was a diplomat from the Embassy of Mordor, who was in fact from the Mordor Acquisition and Liaison Intelligence Collation Entity (MALICE).  And while in Canada, Bob was part of an intelligence operation designed to influence the Government of Isengard, in a manner advantageous to Mordor.

Global Affairs Canada, which has an obvious interest in developments in Isengard, wants to get a handle on this foreign influence campaign. And so, it turns to CSIS. There is no clear way an investigation into this influence op falls within a “threat to the security of Canada”.  (I suppose in some cases, it would be so egregious as to be “detrimental to the interests of Canada”, even though directed at a third state, but you can only bend that language so far.)

So, under s.16, the Minister of Foreign Affairs requests, and the Minister of Public Safety agrees, that CSIS will conduct a foreign intelligence investigation.  But s.16 also says that CSIS may only engage in foreign intelligence collection “within Canada”.

Alice of Isengard

That works fine, to a point. Bob is in Canada. But his chief asset in Isengard is Alice, someone who has influential contacts in the National Repressive Ring Association (NRRA). And Alice is not in Canada.  And moreover, Bob and Alice have 1990s style operational security.  When they communicate, they do so by logging into Gondor Mail (G-Mail), an email service in Gondor.  And they modify draft emails in an email account to which they both have access, housed on G-Mail’s Gondor-based servers.

The Warrant on Bob

CSIS wants to monitor Bob’s communications in Canada. Now Bob is a foreigner, but as noted, he has Charter s.8 rights. And so CSIS needs a warrant.  And CSIS wants, with that warrant, to wiretap not just Bob’s phone but also access his email communications. But, nuts, the G-Mail servers are overseas. And CSIS is no position to somehow insert keystroke logging on Bob’s embassy computer. And so, the only way (I shall assume, because I am not a tech-guy) to access the G-Mail draft folder is by hacking into the Gondor-based servers.

Now, pursuant to Mandate C, CSE can provide the technical wherewithal to do this. But CSIS needs to have lawful authority to seek this CSE assistance, meaning if CSIS needs a warrant, CSIS has to have one.

Whether CSIS needs a warrant may be a close call. If the communication is outside Canada, then perhaps the Charter does not apply because it generally does not apply extraterritorially. After all, if Bob were physically outside Canada, he would enjoy no Charter rights.  (The Hape exception would apply only if Canada were in violation of its international human rights obligations -- not clear cut here – and, says earlier Federal Court jurisprudence, where the victim was a Canadian – not true here.).

So, is it too much to say that CSIS's intercept of Bob’s Gondor communications doesn’t require a warrant?  Hmmm. Maybe. But this might still be a “private communication” under the Criminal Code (and I could easily change the facts so that it would be). And if so, the fact that one side of this communication starts in Canada is enough to require a judicial authorization process.  So not much relief there.  And besides, CSIS remembers the infamous Re X case and decides it is better to go to court now, to avoid a train wreck later.

So CSIS does the appropriate thing and concludes it probably needs a warrant. And more than that, it might also reasonably argue that on our facts (communication commences in Canada, travelling overseas through Canada etc) the collection really was “within Canada, enough”, and thus squares with s.16 of the Act. (A view that would be consistent with: the assumption that the Charter applies to Bob’s transiting communications, and the concept of private communication in the Criminal Code, and arguably the concept of territoriality in cases like R. v. Libman.)

But there is also another view: the content of what CSIS is intercepting is not in Canada. It can only be accessed by reaching out electronically across Canadian borders to Gondor, all the way over in Middle Earth.

So, what’s the answer? How do we read “within Canada” in s.16? Well, obviously it means “within Canada”, but what does that mean for footloose-communications? The redactions are thick in this case, and we really don’t know what sort of extraterritorial activity was at issue. But after a lengthy and seemingly exhaustive statutory interpretation exercise, the Federal Court says: this [REDACTED FOR PAGES] extraterritorial CSIS intrusive investigative activity was not within Canada.

Let's assume that hacking into Bob's Gondor Mail would also exceed whatever threshold of impermissible extraterritoriality was at issue in the Federal Court case. That is, it too would not be "within Canada". So, CSIS, in our story, you are out of luck. Maybe you should just ask Gondor to collect and share the Gondor Mail communications itself?  But do you want to rely on Denethor II, son of Echtelion II, Steward of Gondor? In The Two Towers, he struck me as a bit unhinged, to be honest.  And perhaps he was a little too inclined to appeasement to Mordor.

The CSE Knock-On Effect

Ok, then. Open Door Number 2: if the communication is not “within Canada”, then that must mean that CSE can, in fact, collect under Mandate A (foreign intelligence). Surely, if the communication being targeted is not within Canada (and involves no one, but foreigners), then CSE collection activities are not being “directed at Canadians or any person in Canada” (the quoted phrase being a stipulation that limits what CSE can do under Mandate A).  But hold that “surely”.  It is a bit disingenuous to say: “so we are investigating Bob, who is a person in Canada, and we are specifically interested in Bob, and that is why we are doing this collection activity, but when we go after this particular communication, we are not directing collection at Bob, the person in Canada”.  That seems too clever by half.

And anyway, the Federal Court has a collateral discussion in this case with knock-on implications that will make life for CSE very difficult. Basically, intrusive activity overseas of the sort at issue in the case (whatever they may be) constitute an extraterritorial exercise of enforcement jurisdiction. Done without the consent of the territorial state, this violates international law. And Canadian statutes will be read to comply with international law, unless they explicitly derogate from it. And neither the CSIS Act (for s.16, but not for s.12) nor the current National Defence Act (for CSE) nor the proposed Bill C-59 CSE Act derogate from international law. (On the latter issue, see my discussion here.)

So CSE, you have no legislative jurisdiction to engage in extraterritorial activities of (at minimum) the same degree or more intrusive than the ones at issue in this Federal Court case.  Which means you can kiss Mandate A and B goodbye under the current National Defence Act, to the extent they exceed this threshold (which, reading between the redactions, is quite low). And unless you amend bill C-59, you can also kiss those defensive and active cyber powers away.  Unless, that is, you just want to plow ahead and see what the Intelligence Commissioner, the new National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians have to say about this issue. This, in my view, would be insane, since a quick flick of the legislative pen could cure this problem for you, CSE.

Fixing the CSIS Act

As for CSIS, well, you could roll the dice and appeal. Or you too could fix this by legislative amendment (which is what happened to the s.12 power when this same issue arose a decade ago, and was resolved by 2015’s C-44). 

But let’s be clear here: if you want CSIS to have its current extraterritorial security intelligence functions (plus its post-2015 threat reductions powers) and now extraterritorial foreign intelligence functions, you are creating, essentially, a blended MI5/MI6.  And until recently, it was considered a bad idea to put security intelligence and a full foreign intelligence function in the same agency: rule-of-law security intelligence should be kept segregated from somewhat-less-than-rule-of-law James Bond.

So, we might wish, finally, to do some serious thinking about design issues, accountability issues, resource issues, training issues, etc, before we knee-jerk amend the CSIS Act (yet again). So, enter a ponderous process of deliberation. On the other hand, this is not a situation you want to leave hanging. Because in my story, Bob from MALICE is still out there, swanning away on Gondor Mail. (In truth, I don’t know how important that prospect is – it took to 2018 before this issue got to court, and yet presumably the technological dilemma I describe here could have arisen decades ago. So maybe this case won’t have much practical effect.)

But bottom line: sometimes national security law is hard. And perhaps it is sometimes harder than it has to be. I think it’s often hard because we don’t update the statute law enough. But that’s just me.

Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.

Bill C-59 and the Judicialization of Intelligence

With the teaching term winding down, I am preparing more formal papers, stitching together pieces memorialized as blogs on this site. My first effort is here. Abstract:

Canada's Bill C-59 responds to quandaries common to democracies in the early part of the 21st century. Among these challenges: How broad a remit should intelligence services have to build pools of data in which to fish for threats? And how best can a liberal democracy structure its oversight and review institutions to guard against improper conduct by security and intelligence services in this new data-rich environment? This paper examines how C-59 proposes re-shaping the activities of both the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE) in fashions responding to these dilemmas. Specifically, it highlights C-59’s proposed changes to CSIS’s capacity to collect bulk data as part of its intelligence mandates, and also the new oversight system proposed for CSE’s foreign intelligence and cybersecurity regimes. The paper examines the objectives motivating both sets of changes, and suggests that in its architecture, C-59 tries to web together the challenges of intelligence in a technologically-sophisticated, information-rich environment, with privacy protections derived from a simpler age but updated to meet new demands.

The Judicialization of Bulk Powers for Intelligence Agencies

Personal Speaking Notes (February 2018)

(posted publicly with permission)        

I have been asked to reflect on common trans-Atlantic intelligence dilemmas, and then a variation on our traditional trans-Atlantic search for solutions.  To that end, I’ll say a few words about both the UK Investigatory Powers Act and some of the proposed aspects of bill C-59. 

In some large measure, both the UK IPA (Investigatory Powers Act) and C-59 constitute what former CSIS director Jim Judd once called “the judicialization of intelligence”. Mr Judd raised concerns about this development.  Intelligence has traditionally operated in a manner obliquely governed by law, if at all. There is a disconnect between a covert intelligence function – and its requirements – and the more overt culture of law and lawyers and judges. Intelligence needs are fluid.  Law is rigid. Intelligence needs are immediate and exigent. Law can be laborious.

But law has inevitably encroached on intelligence. An academic colleague – Dennis Molinero – has uncovered a trove of documents from the 1950s.  At that time, these documents show, national security domestic intercept warrants were issued by Prime Minister Louis St Laurent as an exercise of discretionary power under something called the Emergency Powers Act. There was the vaguest of statutory imprimaturs, and certainly no independent judicial oversight in the form of preauthorization.

We abandoned that approach in 1974, and the original iteration of the what is now Part VI of the Criminal Code.  And in 1984, we built CSIS search and seizure around a judicial warrant process – and the next year, the Supreme Court decided Hunter v Southam. Since then, in cases like the Federal Court of Appeal’s decision in Atwal, through to Justice Crompton’s recent decision in the In the Matter of Islamist Terrorism case, the domestic intelligence search and seizure expectations have been placed on a constitutional footing largely indistinguishable from that of criminal law.

In the IPA, the UK has moved considerably closer to our model than had been the case before. Once the purview of ministers, executive warrantry is now supplemented by review by judicial commissioners.  The shorthand is: double-lock (executive approval of a warrant supplemented by judicial review, prior to execution).

But in Canada, we have yet to address two dilemmas also at issue in the IPA. Both fall in the realm of what in the UK context is called “bulk powers”.  And since in bill C-59 we moving in this area, and judicializing, it is on this topic I wish to focus a few remarks.

So first, let me define bulk powers: a bulk power is one that allows intelligence agencies access to a large quantity of data, most of which is not associated with existing targets of investigation. It is the mass access, in other words, to data from a population not itself suspected of threat-related activity. The commonplace example, since Snowden, is internet or telephony metadata for entire populations of communications users.  But bulk powers can also involve content, and not just the metadata surrounding that content.

Bulk powers are controversial – they are the heart of the post-Snowden preoccupations. They inevitably raise new questions around privacy, and in the Canadian context, Charter rights.  Not least: bulk powers are irreconcilable with the requirements of classic warrants. There is no specificity. By definition, bulk powers are not targeted; they are indiscriminate.

In the IPA context, the world of bulk powers can be divided into bulk interception; bulk equipment interference; bulk acquisition; and bulk personal datasets.  Of these, I want to focus on bulk interception and bulk personal datasets.

Bulk interception is what is sounds like: the collection of transiting communications passing through communications providers or otherwise through the ether. 

Canadian law permits bulk collection by the Communications Security Established, our signals intelligence service. It is subject to the caveat that acting under its foreign intelligence or cyber security mandate, CSE may not direct its activities at Canadians or persons in Canada. But in practice, bulk interception cannot be limited to foreigners, even if the objective is foreign intelligence. The way communications transit the internet and other communications systems creates a certainty that bulk intercept directed outside the country will intercept the communications of Canadians and persons in Canada.  This is known as incidental collection.

In Canada, we have struggled with this issue. Part of the answer is in Part VI Criminal Code. As you know, it outlaws unauthorized intercept of private communications. A private communication is one with at least one end in Canada. Since in bulk interception, at least some private communications would be captured in a manner meeting this definition of intercept in Part VI, CSE must be exempted from its reach.  And that is what the National Defence Act does, where CSE acquires a defence minister authorization in advance for at least the class of foreign intelligence or cybersecurity activities that might capture this private communication.

The constitutional issue is more fraught. Not least, the defence minister is not the independent judicial officer invoked as the gold standard under Hunter v Southam for Charter section 8.  The consequence has been the constitutional lawsuit brought against CSE by the BCCLA associations and now efforts at refinement in C-59.  And specifically, C-59 anticipates a quasi-judicial intelligence commissioner who will review the ministerial authorization before its execution. This past week, representatives of the CSE testifying before the Commons committee accepted the underlying constitutional expectation: They said under C-59, CSE will seek ministerial authorization (which in term triggers review by the intelligence commissioner) for any activity that would interfere with the reasonable expectation of privacy of a Canadian or a person in Canada, or contravene an Act of Parliament.

I am hoping that signals a willingness to amend the bill to say just that, on its face, but for our part my key point is this: C-59 clearly accepts the underlying premise: judicialization of bulk intelligence interception. In this respect, C-59 emulates the IPA.

But I wish to be clear, again: this is not a warrant. It will lack specificity. It will be issued for classes of activities, not specific activities or operations. It is review on reasonableness of a ministerial authorization, not the more hands-on warrant process. Does that meet Hunter’s standards?  I am inclined to suggest, yes, because the warrant cookie cutter cannot possibly apply to a form of bulk intercept in which intercept of s.8 rights-bearer communications is entirely incidental, and not targeted.

Before leaving CSE, I will say a word about another C-59 change.

We have also gone one step further than the IPA in giving CSE a specific offensive cyber mandate – called active cyber.  This could and almost certainly would implicate equipment interference, but interference untied to information acquisition and instead done “on or through the global information infrastructure to degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security.” 

At present, there is considerable debate in Parliament about whether the intelligence commissioner should have advance oversight responsibilities in relation to this mandate.  Currently, he or she will not.  I am of two views on whether judicialization in this area would be wise or not.

Turning to domestic-facing bulk powers, I need to switch agencies and talk about CSIS.  And here we have drawn clear inspiration from the IPA in the area of bulk personal datasets.  The UK understanding of this expression is an apt descriptor of what is now also in play in Canada:

"A bulk personal dataset includes personal data relating to a number of individuals, and the nature of that set is such that the majority of individuals contained within it are not, and are unlikely to become, of interest to the intelligence services in the exercise of their statutory functions. Typically these datasets are very large, and of a size which means they cannot be processed manually."

Why have such things? The C-59 changes are a response, yes, to the Federal Court’s 2016 decision on what was known as ODAC.  But it also responds to a broader concern about the ambit of the Service’s threat investigation mandate. That mandate is anchored in s.12 of the CSIS Act. As interpreted by the courts, it permits the Service to collect, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada, to the extent strictly necessary.  As Justice Noel and Justice Crampton concluded in both the ODAC case and the more recent In the Matter of Islamist Terrorism decision, this is a significant fetter on CSIS. It ties information collection, retention and analysis to a narrow band of threat investigations.  It also makes it difficult for CSIS to change the frequency of its fish radar and expand its reach to search other parts of the ocean for fish that have not already come to its attention.

A spy service fishing in more ocean is, in some eyes, the stuff of Big Brother and nightmares. On the other hand, an intelligence service that cannot have access to the ocean in performing its function is also likely unable to perform its functions very well.  And there is a lot of ocean out there in the digital era.  So how can we reconcile oceans full of data generated by innocents with the intelligence function of clearing the fog of uncertainty and revealing not just the known threats but also the unknown threats?

The solution in both the UK and Canadian context is to judicialize the fish detecting radar. And the model is again a double lock: ministerial approval for ingestion of datasets and judicial commissioner approval.

The result, in the Canadian context, is enormous complexity. Broadly speaking, there are a set of legislated rules in C-59 for the ingestion of datasets, and then a more demanding set of rules for the digestion. (I credit a Department of Justice lawyer for this ingestion/digestion analogy, which is quite apt).  So for Canadian datasets – datasets primarily comprising Canadian information – there is approval of classes of datasets that may be ingested by CSIS by both the minister and the quasi-judicial intelligence commissioner.  Once ingested, there is a limited vetting by CSIS.  And then any subsequent retention for actual use – that is digestion -- must be approved by the Federal Court, which is empowered to impose conditions on that subsequent use.  There is also a requirement that querying generally be done only where strictly necessary in performance of CSIS’s mandates.

I have included charts in the materials. (See also here).

Those charts show why some intelligence operators complain that C-59 is a gift to lawyers.  I suppose it is no surprise, then, that I think this is a clever regime.  Not least, it short circuits inevitable frontier s.8 issues; to wit, does s.8 attach to the big data analysis of information, the individual bits of which triggers no reasonable expectation of privacy. It seems almost certain that the jurisprudence will get there. C-59 heads this issue off at the pass by superimposing independent judicial authorization guiding and conditioning that big data analysis.

So, on that happy note, I shall end there.

Thank you.

Statement to House of Commons SECU on C-59

Statement

SECU Hearings on C-59

Craig Forcese

5 December 2017

I wish to extend my sincere thanks to the committee for inviting me to appear on bill C-59. It is always an honour to be asked to share my observations before this committee.

My colleague Kent Roach is appearing before you next week. He and I have divided-up C-59. Today, I shall be addressing the new Communications Security Establishment Act and the amendments to the CSIS Act.

I support most of the changes C-59 makes in these areas. I recognize the policy objectives they seek to address. I believe the statutory language is usually carefully considered and robust. But I do have one serious concern.

 

CSE Act

I begin with the CSE Act and make my single recommendation today. I respectfully submit that this committee should amend s.23(3) and (4) to indicate CSE may not, without ministerial authorization, contravene the reasonable expectation of privacy of any Canadian or person in Canada.

I have provided a brief describing the rationale for this change. (And I should disclose I have been an affiant in the current constitutional lawsuit brought by the BC Civil Liberties Association challenging CSE activities. But today I appear on my own behalf.)

To summarize my concern:

While engaged in foreign intelligence and cybersecurity activities, CSE incidentally collects information in which Canadians or persons in Canada have a reasonable expectation of privacy. Because this is done without advance authorization by an independent judicial officer, this likely violates section 8 of the Charter.

Bill C-59 attempts to cure this constitutional issue through a ministerial authorization process, one that involves vetting for reasonableness by an Intelligence Commissioner, a retired superior court judge.

This is a creative and novel solution. It preserves a considerable swath of ministerial discretion and responsibility. It is not a full warrant system. Still, given the unique nature of CSE activities, I believe it constitutionally-defensible.

But the new system will only resolve the constitutional problem if it steers all collection activities implicating constitutionally-protected information into the new authorization process.

The problem is this: C-59’s present drafting only triggers this authorization process where “an Act of Parliament” would otherwise be contravened. This is a constitutionally-underinclusive “trigger”. Some collection of information in which a Canadian has a constitutional interest does not violate an “Act of Parliament” (for example, some sorts of metadata).

The solution is simple. Expand the trigger to reads: “Activities carried out by the Establishment in furtherance of [the foreign intelligence or cybersecurity aspects] of its mandate must not contravene any other Act of Parliament or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy unless they are carried out under an authorization”.

This may seem a lawyerly tweaking. But if we fail to cure the existing problem with CSE’s collection authorization process, a court may ultimately determine CSE has been collecting massive quantities of data in violation of the constitution. Such a finding would decimate relations with civil society actors, placing CSE squarely in the cross-hairs of a renewed controversy and making it very difficult for private sector enterprises to partner with CSE on cybersecurity without risking reputational fall-out themselves.

With C-59, we have a chance to minimize this kind of problem.

 

CSIS Act

I turn to the CSIS Act changes. C-59 does three things.  First, it permits CSIS new authority to collect and potentially retain so-called datasets.

Here, the tension lies in balancing the operational need for CSIS to be able to query and exploit information against the privacy imperative.

Rather than prescribe hard standards for datasets, C-59 opts for a system of in-advance oversight. The Intelligence Commissioner is charged with approving the classes of Canadian datasets that may be initially collected, and the Federal Court authorizes any retention of actual datasets.

While I am wary of the idea of datasets, I cannot dispute the rationale for it, and can find no fault with the system of checks and balances.

The second CSIS Act change relates to revisions to CSIS’s threat reduction powers, introduced in C-51 in 2015. These provisions were rightly controversial. For our part, Kent Roach and I did not dispute the idea of threat reduction. But we worried CSIS threat reduction done as a continuation of our awkward, siloed police and intelligence operations runs the risk of derailing later criminal investigations and prosecutions. This would be tragic from a security perspective.

From a rights perspective, C-51 lacked nuance. It opened the door to a violation of any Charter right, subject to an unappealable, secret Federal Court warrant. The regime was radical and, in my view, almost certainly unconstitutional. It was, therefore, unworkable, whatever the strength of the policy objectives that propelled it.

C-59 places the system on a more credible constitutional foundation. It ratchets tighter the outer limit on CSIS threat reduction powers. By barring detention – a power I sincerely doubt the service ever wished – it eliminates concerns about the many Charter violations for which detention is a necessary predicate.

And by legislating a closed list of activities that can be done when a warrant is sought, Parliament tells us what Charter interests are plausibly in play: essentially, free speech and mobility rights.

I believe that if threat reduction is to be retained, this new system reasonably reconciles policy and constitutional issues.

Last, the C-59 CSIS Act changes create new immunities for CSIS officers and sources engaged in intelligence functions who may violate law during those activities.

The breadth of Canada’s terrorism offences make is certain that a confidential source or undercover officer will commit a terrorism offence simply by participating with the terror group that they infiltrate. An immunity is necessary. The issue is whether there are sufficient checks and balances guarding against abuse of this immunity. Again, I think C-59 does a good job in festooning the immunity provisions with such checks.

I will end, though, with a caution. Our conventional manner of siloed police and CSIS parallel investigations lags best practices in other jurisdictions, which employ more blended investigations. As the Air India bombing inquiry observed, we struggle with what is known as intelligence-to-evidence.

The government is working on this matter. We should be conscious, however, that what CSIS does in its investigations, whether in terms of immunized criminal conduct or authorized threat reduction, could derail prosecutions if not done with a close eye to down-stream impacts.

This issue might usefully be a topic of inquiry for the new security and intelligence committee of parliamentarians.

Thank you for your attention and I look forward to any questions.

Bill C-59 Flowcharts: CSIS dataset approval processes

Again, for my own use, to make sure I understand how the system will work, I have prepared a "decision-tree" on the proposed CSIS acquisition and retention of "datasets" -- that is, electronic archives of information that is not itself strictly necessary for a threat investigation under s.12.

Again, caveat emptor, as I do not claim this is perfect!  But if of use to others, I share. (If it does not open when you click on the thumbnail, if may be downloaded here.)

How does CSIS threat reduction work?

As I write this, I am still hoping the government will be introducing legislation in Parliament before the summer recess responsive to its promise to reform the "problematic" aspects of Bill C-51 (2015). One of the most controversial aspects of C-51 were new powers given to CSIS to engage in "threat reduction" measures, and especially powers to break any Canadian law and breach the Charter, where pre-authorized by Federal Court warrant.

I am not among those who thinks CSIS should have no threat reduction powers. But I am among those who thinks there is no credible basis for the sweep of powers codified by C-51. As discussed at length in False Security, the untextured language in C-51 opens the door to inevitable legal challenges (especially the idea that CSIS could be pre-authorized in a secret, unappealable judicial process to breach each and every Charter right).  It also compounds problems of confliction with police anti-terror investigations.  Those operational challenges are discussed also in a blog posting here. (That posting may also serve as a refresher in relation to the threat reduction power).

To their credit, CSIS and RCMP clearly appreciate the risks involved. CSIS and RCMP has concluded a protocol -- called One Vision 2.0 -- that augments the level of inter-agency deconfliction. It has some useful features that could minimize the downstream effect of CSIS activities on prosecutions. (Even if CSIS may be immunized from prosecution where it operates pursuant to a lawful threat reduction power, its activities may still be raised as abuse of process as part of a defence by a target, should that target ever be charged with, e.g., a terrorism crime. That has happened even for the police, when they properly exercise their Criminal Code s.25.1 powers to violate the law in the course of an investigation. See R v JJ, 2010 ONSC 735 at paras 282 and 302, leave to appeal refused, [2010] SCCA No 161).

CSIS and Global Affairs also have their own memorandum of understanding on CSIS threat reduction conducted outside of Canada (which is permitted under the bill C-51 framework).

And a mostly-redacted ministerial direction may include language on how CSIS is to deliberate with other government agencies before doing threat reduction.

I say "may" because CSIS operational policy document I obtained under Access to Information suggests it does.  Though deeply redacted as well, this document has some interesting features, which I thought worth canvassing in this blog entry.

Mandatory Government Consultation

The policy says, consistent with ministerial direction, "consultation with GoC partners, including the Royal Canadian Mounted Police (RCMP), DFATD [now Global Affairs] and others as appropriate, will occur prior to seeking approval to undertake s.12.1 measures".  This is especially true for CSIS anti-terror investigations (that is, investigations relating to s.2(c) threats to the security of Canada): "The RCMP must be consulted on all s.12.1 measures for all investigations in relation to s.2(c) of the CSIS Act and others as appropriate".

Global Affairs, for its part, "will be consulted on s.12.1 measures that are assessed as having potential foreign policy implications".

These seem like obvious steps, but my sense is that close synergies between departments to make sure responses are coordinated and do not act at cross purposes has been a work in progress, and a renewed priority since at least 2014. CSIS's more aggressive post-C-51 powers make it urgent to get this right, or watch CSIS operations scuttle prosecutions.

Last Best Tool

There is also language stating that CSIS employees must "consider the range of national security tools available to respond to threats to the security of Canada; the use of s.12.1 measures in an additional tool". I think this language could be stronger, but the theme is a good one: threat reduction is an extreme measure. Disruption may, notoriously, go sideways and prompt unforeseen blowback. Preserving it as a "in case of emergency, break glass" power should be the order of the day.

Approvals

An inevitable conundrum created by C-51's inelegant structure is the question of when CSIS needs a court warrant prior to conducting threat reduction. The current language is this: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1." 

It follows that a warrant is required where a measures will (not might) contravene a right or freedom under the Charter or be contrary to "other" Canadian law.

"Will" is a high threshold. "Other" law is a big universe. So much will depend on legal advice. The CSIS procedural document specifies that CSIS "will consult with CSIS Department of Legal Services (DLS) to determine if a warrant may be required".

Based on what we know at present, CSIS has conducted threat reduction a few dozen times since 2015. It has never sought a warrant, meaning CSIS and its lawyers concluded that the threat reduction did not meet this "will" contravene Canadian law standard.

My issue is: who will audit this legal advice? Will SIRC have the in-house capacity to review legal advice?  Is there a "red team"?

Consider this example: CSIS concludes that individuals may be radicalizing to violence under the sway of a charismatic figure. (Research suggests that such figures can be pivotal.) Absent, though, a basis for criminal charges or a peace bond or some such thing, there is no legal restraint that can be imposed on the figure. And so CSIS decides to disrupt by engaging in, well, false news. It undermines the credibility of the figure by, say, spreading rumours among his followers that the leader is a fornicator, liar, swindler (whatever).

Does CSIS need a warrant? I would say: "yes".  Rumours like this -- if untrue -- are defamation. Defamation is contrary to "other" Canadian law -- the common law. But would CSIS and its lawyers read the law in this manner and seek a warrant?

Another example: CSIS engages in any threat reduction in a foreign country without the permission of the territorial state.  Does CSIS require a warrant?  I would say "yes". The extraterritorial exercise by a state of "enforcement jurisdiction" (basically any state power) without consent on the territory of another state is a violation of customary international law. Customary international law is part of the common law of Canada, unless displace by statute. There is no such displacement, not least since Parliament is presumed to legislate in conformity with international law. (To the extent displacement of international law exists in the CSIS Act, it comes only under court warrant: a court may authorize a breach of foreign or other -- as in, international -- law, under s.21.1(4). But the Act says nothing about CSIS breaching customary international law unilaterally). And so CSIS conduct is "contrary" to "other" Canadian law. (See discussion here, and the longer discussion here.)

Would CSIS and its lawyers read the law in this manner? I don't know. Do they have international lawyers working with them on this?  Would GAC lawyers be "read in" on the operation to this level?

All of this is to say: I wonder how we will tell whether CSIS is getting the warrants it should be getting.

Staying Left of the Bang: Fixing Canada's Dysfunctional System of Parallel CSIS/RCMP Anti-terror Investigations

Canada has what is known as an “intelligence-to-evidence” problem.  The first step is recognizing it: We do not do a good job deploying information collected by our intelligence services as evidence that can be used in anti-terrorism prosecutions.  This is probably one reason why we have many fewer terrorism prosecutions than seem warranted by our threat environment – and a tendency to resort to other, often imperfect measures (like immigration tools and peace bonds).

More than this, an exaggerated fear that sensitive intelligence will be torn from it and disclosed in criminal proceedings makes CSIS very reluctant to cooperate fully with police. The result is a peculiarly awkward Canadian approach to anti-terrorism investigations condemned starkly by the Air India bombing inquiry.  This is a system that is suboptimal at best and downright dangerous at worst.

In a first post on this issue, I examined how the United Kingdom has addressed the issue of intelligence-to-evidence, in a manner much more sophisticated than anything echoed in Canada.  But received wisdom in Canada seems to be that we cannot emulate the United Kingdom, because of law. And specifically, fingers are often pointed at constitutionally-mandatory rules on disclosure to the defence in criminal proceedings.

In my view, this is an example of law being blamed to justify cultural inertia in our security services.  The real risk is not that CSIS information will be disclosed, involuntarily.  The real risk is that CSIS does not manage its affairs so that information it collects is useful for an all-of-government anti-terrorism effort. 

I lay out my reasons for this opinion in this blog entry.

 

A. Disclosure Obligations 101

Stinchcombe Standard

The focus in this blog is on criminal law disclosure. This is the area where the state’s disclosure obligations are most robust.[1] Here, the starting point is the Supreme Court of Canada’s famous (or infamous, depending on your perspective) Stinchcombe decision. Pointing to section 7 of the Charter, the Court found a general duty on the Crown to disclose all relevant material to the defence, even where it intends to make no reliance on this information. Nothing turns on whether this information is exculpatory or inculpatory: the threshold standard is one of “relevance”. And so, among other things, the Stinchcombe standard entitles the defence to unearth and see government affidavits used to support wiretap applications.

 

Limits on Stinchcombe

1. Relevance Standard

In practice, Canada’s criminal law disclosure standard is broader than that in the United States or United Kingdom – in consequence, this is often where an argument that we cannot emulate these jurisdictions on intelligence-to-evidence begins and ends.

But there are limits on Stinchcombe. For one thing, the Crown has no obligation to disclose information that is “clearly irrelevant”.

2. Control Standard

Even more importantly, the disclosure obligation is on the Crown – in practice, that means prosecutors and the police in criminal matters. It does not extend to all government agencies – so-called third parties. And so CSIS has been treated as a third party, at least so long as its investigation is not so interwoven with that of the police that courts regard the two as conflated.

This does not mean that a government third party (in this case, CSIS) has no disclosure obligations. But it does mean that those disclosure obligations are different, governed by what is known as the O’Connor standard. That standard sets a higher threshold on disclosure than does Stinchcombe. So, for instance, the accused must persuade a trial judge that “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (known as the “likely relevance” standard). If the accused succeeds, then the judge will order production of the information for the judge’s own review. And then, in a second stage, the judge weighs the different considerations favouring disclosure or non-disclosure to the accused. Exactly what considerations would go into this calculus in a CSIS case are unclear: there is no legislative guidance here, as there have been in other circumstances.

3. Privileges

Moreover, Stinchcombe does not annul privileges in the law of evidence, including police informer identity privilege. That privilege persists, although it too has an outer limit: it does not apply to identity information that goes to the very question of innocence or guilt. This “innocence at stake” qualifier exists where there is “a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused”.

Critically, there is also a national security privilege codified in section 38 of the Canada Evidence Act. It is important to understand how this privilege works. Under section 38, specially designated Federal Court judges decide whether material, if disclosed to the accused, would harm national security, national defence, or international relations. If it would, judges then balance this injury against the fair trial virtues of disclosure, and may protect the information from disclosure or may order the information disclosed (albeit perhaps in redacted or summarized form).

The section 38 process can be unwieldy. The disclosure decisions made by the Federal Court are generally made before the terrorism trial starts, and the process can be long and fraught. Following this disclosure litigation in Federal Court, the trial judge then has to accept whatever non-disclosure decision the Federal Court makes. But: the trial judge also must then make the difficult decision whether to halt the prosecution because the Federal Court’s non-disclosure order has made the trial unfair. This also is a difficult proposition. The trial judge may not even know the specifics of the secret information.

A defendant in the Toronto 18 case challenged this whole system on constitutional grounds. The Supreme Court of Canada recognized that the two-court section 38 system could “cause delays and pose serious challenges to the fair and expeditious trial of an accused, especially when the trial is by jury,” but decided that it was constitutional because the trial judge could always stop a trial, should the Federal Court’s non-disclosure order make it impossible for the accused to have a fair trial. The Court stressed that “the trial judge may have no choice but to enter a stay.”

Some participants in the case argued that this approach “puts the Attorney General and the trial courts in the dilemma of playing constitutional chicken.” For its part, the Court expressed the hope that a sensible application of section 38 would avoid such a result, perhaps using the intermediary of a security-cleared special advocate as a link between Federal and trial courts. But bottom line: this is a taxing system that greatly complicates many Canadian terrorism trials.

It is very different from the “single-court” UK and US approach, where the trial judge him- or herself decides whether the information should be protected by a national security privilege.

The Canada Evidence Act has another critical feature: the Attorney-General’s certificate.  I shall discuss that below.

 

B. What CSIS Fears

Disclosure of “Crown Jewels”

CSIS fears disclosure of its information, methods and sources in open court, and especially fears being subjected to Stinchcombe disclosure. In an undated memo on this topic, it writes:

Despite mechanisms to protect sensitive information, litigation involving issues of national security often results in lengthy legal processes that are resource intensive and that jeopardize national security through the production and disclosure of sensitive information.  Beyond the considerable financial resources required to support these cases, the production and disclosure of sensitive information also entails a substantial risk to national security. While … provisions provide for the protection of classified information in s.38 CEA proceedings, the Court may decide that disclosure is required if the public interest outweighs its protection. As a result, numerous disclosures have and continue to be made concerning CSIS investigative interests, tradecraft, human SECRET source operations and information provided by foreign partners. These disclosures negatively impact CSIS operations and adversely affect Canada's national security interests. 

Managing Fear

To manage this disclosure risk, CSIS structures its relationship with the police to take advantage of the Stinchcombe/O’Connor distinction.  That is, it maintains parallel, rather than conjoined investigations, so that it is not conflated with the police for purposes of disclosure.  As CSIS asserts in the above-noted memo,

to mitigate such issues [of disclosure], the Service has, with its partners, created a whole range of processes to protect classified information that may be used to inform enforcement actions. For instance, the One Vision framework for cooperation between CSIS and the Royal Canadian Mounted Police (RCMP) was enhanced to avoid inadvertent disclosure of CSIS information to RCMP. This, given that information shared with the RCMP may appear in their case files, judicial authorisations and disclosure packages to the Court as part of criminal prosecutions, ultimately becoming subject to disclosure obligations.  

But this approach creates artificial bureaucratic siloes between agencies often investigating the same target.  Such siloes – known as “less is more” information-sharing -- are dangerous (and possibly disastrous) in anti-terrorism.  There are now many instances in which CSIS has failed to share information about dangerous people with the RCMP. (See here for a recent example). As Kent Roach and I write in False Security:

Most Canadians would be — and should be — both shocked and scared by revelations that CSIS does not share all of its intelligence about terrorist conduct with the police, even when they know the police are looking in the wrong places. From the outside, “less is more” looks crazy and dangerous.  Even with their amped up Bill C-51 powers and with the best intelligence in the world, CSIS cannot arrest a person for criminal law purposes.  Nor can it lay charges, leading to a prosecution and incarceration.

The most galvanizing recent statement on the dangers of “less is more” was offered to the Senate security committee studying Bill C-51. Joseph Fogarty, a former UK government security liaison in Canada, condemned Canada’s arrangement, noting how poorly it compared to the much more seamlessly coordinated anti-terror endeavours of the UK police and the MI5. Commenting on whether he thought the United Kingdom has anything to learn from Canada’s operational arrangement between CSIS and the RCMP, Fogarty observed: “with this particular regime, with the greatest of respect, I wouldn't incorporate a single aspect of it, at the minute, because it’s dangerous.” And averting to CSIS’s failure in the Toronto 18 matter to alert the RCMP to the terrorist training camp and its errant surveillance operation, Fogarty stated:

if you take that sort of decision on an operation and are running up against fast-moving, sophisticated opponents, the consequences could be a tragedy. . . . [I]magine a situation in which an MI5 team discovers a Provisional IRA camp in the U.K. and decides not to tell anybody about it. . . . It’s a tragedy waiting to happen. You have been remarkably lucky, as a country, that you have not faced fast-moving, sophisticated opponents since 2001 because you could have been living in tragedy here.

We will not always be lucky.

In truth, thoughtful people in government acknowledge that the present circumstances are unacceptable, and that we live on borrowed time.  But many in government seem to think that we need to simply live with this situation; that the disclosure/security trade-off is an impossible dilemma that cannot be solved, because of the Supreme Court’s extreme approach in Stinchcombe.

 

C. CSIS Exaggerates Legal Risk

CSIS has, however, exaggerated legal risk: its intelligence is not at serious risk of disclosure if it manages its affairs properly.

Attorney General’s Certificate

First, the government can stop information from being disclosed using section 38. Period.

In the memo above, CSIS suggests that Federal Court disclosure orders under section 38 have been prejudicial to security.  This is a sweeping statement, unsupported by any details and easy to make where the Service is unwilling to justify its conclusions. 

But even if it is true, the conclusion must be that the Service has simply decided to allow this information to be released. That is because the government has, essentially, an absolute ability to stop disclosure under section 38, using what is known as an “Attorney-General’s certificate”.

This certificate allows the government to short-circuit a court disclosure order. Section 38.13 of the Act empowers the Attorney General to personally issue a certificate “in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security.” Issuance of the certificate has the effect of barring any subsequent disclosure of the information in a proceeding for ten years (and for a further period if the certificate is renewed at the end of that ten years). In other words, the certificate may reverse an order from the Federal Court authorizing disclosure under section 38, subject to a very narrow and limited appeal before a single judge of the Federal Court of Appeal.

As best I know, the AG certificate has never been used since the creation of this power in 2001.  It is almost as if the government has forgotten it exists: it goes unmentioned in the various government documents discussing the problem of protecting national security information that I have reviewed.

But bottom line, given the scope of the AG certificate: if information is disclosed that prejudices national security, it is the government’s fault. As Justice Canada counsel Don Piragoff told the Senate when the provision was enacted: “The provision is a last resort for the Attorney General to ensure that information critical to national security is not disclosed in judicial proceedings to which the Canada Evidence Act applies or through other government processes. … The certificate issued by the Attorney General … would be the ultimate guarantee that information such as sources of information and names of informers would not be made public. …”

Legislated CSIS Source Protection

The presence of the “nuclear” AG certificate is alone an answer to the CSIS concern that its sensitive information risks being extracted from it, against its firm resistance.  But it is also worth noting the amendments made in 2015 codifying a special CSIS source identity protection in section 18.1 of the CSIS Act itself.  CSIS now has a statutory privilege protecting its source’s identity as potent as that existing for police informants.

 

D. The Real Issue: CSIS Cultural Baggage and System of Operating

So to clear: the government can protect CSIS’s information from disclosure.  That compelled disclosure issue is a red herring, and yet is the animating impulse behind our awkward “less is more”, dysfunctional organization of CSIS/RCMP anti-terror investigations.

This then begs the question: what is the true concern?  In my view, the real issue is not that secret information will be yanked out of the Service.  Instead, it is the fact that CSIS secrets are not useful.  Specifically, CSIS sensitivity to disclosure of what it has called its “Crown jewels” means that if it does share, police and prosecutors will need to suffer through protracted Canada Evidence Act proceedings (or other disclosure disputes) to protect the sensitive bits.  This risk scuttling prosecutions, either out of delay or because a trial judge ultimately concludes that some form of cheery-picked CSIS disclosure prejudices a fair trial.

Put another way, the problem is not that CSIS can’t protect its secrets.  The problem is that no one can use those secrets to put bad guys in jail without risking a trainwreck in court.  Or, stated differently: The problem of intelligence to evidence is not “we can’t protect our really important secrets”.  Instead, the problem is that CSIS does not collect information in a manner useful to an all-of-government anti-terrorism strategy.

The key issue is, therefore, whether CSIS can collect information (and also, now do threat reduction) in a manner that is more useful.  As I describe at length in discussing the UK experience, it is clear than a CSIS’s closest counterpart -- MI5 -- is perfectly capable of collecting intelligence to evidential standards that then can be re-deployed for prosecutorial purposes.

Why has Canada not done this?  Exaggerated fear about Stinchcombe and the myth of involuntary disclosure is one reason: if you believe your information will be extracted if you get too close to the police, then you have little incentive to think creatively about reforming that relationship.

But as I have suggested, this is a myth: The combined effect of legislated source identity protection, Canada Evidence Act balancing and then, if all else fails, the nuclear option of an AG certificate means that you do not need to fight tooth and nail to remain in O’Connor space and avoid Stinchcombe

And once you appreciate that the risk of involuntary disclosure can be controlled, the emphasis shifts to a more productive discussion: how can CSIS change its modus operandi to create “clean” information that is not so thoroughly and irremediably intertwined with truly sensitive information, means, methods and sources? In other words, how can CSIS be more useful to criminal justice outcomes – ultimately, the most potent remedy the state has in anti-terrorism.

The UK experience (discussed in my prior blog post) points the way: close, synergistic cooperation, co-location; and protocols on collection to evidential standards.  This will require a cultural and operational shift at CSIS (and, no doubt, with the police).  For example, CSIS will need to align its practices (in anti-terrorism at least) with a weather eye on downstream implications for prosecutions.  For instance, it may not operate sources and agents and officers in a manner that amounts to entrapment.  (But even now, if it does that, and the defence is able to find out, the case will collapse – so if it does operate in this manner, we already have serious rule of law issues, just ones that are masked by secrecy. This translates into “scandals in the making”.)

Resistance to such changes would likely be fierce, institutions being what they are.  But the alternative is persisting with a system of parallel investigations that, from a security perspective, is irrational – and then waiting for the next avertible security disaster, and a re-run of the Air India inquiry condemning the way we run anti-terrorism in Canada.

 

E. Concrete Steps

Let me end this essay with five thoughts on concrete steps that might propel change:

  • Like the Air India bombing inquiry, I do not believe that CSIS should have the final say on whether its intelligence should be prioritized for intelligence or evidential purposes. Seamless integration, of the sort practices in the UK, places the focus on public safety, and establishes an inter-agency process for deciding how information should be used.  We need a true inter-agency process, not a bureaucratic One Vision process in which CSIS is de facto in the driver seat and other players do not have full access to information.
  • Legislate a standard for CSIS disclosure that codifies the Stinchcombe obligation in the specific instance of intelligence.  I am not proposing an effort to legislatively roll-back Stinchcombe – a constitutional norm.  Instead, I believe that certainty as to how Stinchcombe applies in the specific area of intelligence and anti-terrorism would provide predictability that could fuel the more seamless relationship between police and CSIS so essential to modern anti-terrorism.  In some large measure, legislative codification aided reform in this area in the United Kingdom. 
  • And: eliminate the bifurcated court system for section 38 proceedings.  It is not rocket science to come up with a system in which trial judges specialized in terrorism cases handle the trial and the disclosure issues.
  • Audit CSIS investigative practices to assess exactly what collection to evidential standards would mean in terms of reforming CSIS practices.  In truth, CSIS must have a least started reconsidering its intelligence methodologies, given the expectations the Supreme Court has already imposed on it as part of the Charkaoui II standards.
  • Once all of this is cleaned up, and there are still instances where CSIS cooperation with police in anti-terrorism risks revelation of secrets of real sensitivity, do not revert to a counterproductive effort to stay in O’Connor space by keeping police at arm’s length.  Rather, maintain the close relationship and then protect the secret using the Canada Evidence Act, including (if necessary) an AG certificate. It may mean that some cases cannot be prosecuted – but I suspect that such cases will be less frequent than under present circumstances.

 


[1]           An argument can be made that closed-court disclosure to special advocates in immigration security certificate proceedings may be even more sweeping, although that argument may not survive the changes made to that regime by Bill C-51. The latter rolled back the sweep of at least some of those disclosure procedures.

CSIS and the Metadata Muddle Pt 2: On Secret Law, Courts and the Rule of Law

This is the second of a series of blog entries on Noël J’s recent Federal Court judgment on CSIS’s retention of metadata from its warranted threat investigations. In my first entry, I tried to explain what this case is about.

In this blog entry, I begin to explore its implications, as I see them. First up: what a tangled web our legal system has weaved.

Secret Laws

Readers of this blog will know that I have developed an allergy to a commonplace practice in Canadian national security law: secret law.  As I have noted before, Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers.

These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate.

In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand.

Examples I have encountered in my wanderings include:

  • a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE) (either a variation of the issue in play in the Federal Court case, or the very issue at stake – I don’t know);
  • a conclusion that the compilation and analysis of metadata from travellers at a Canadian airport is not (as a legal matter) "acquisition and use" of information in a manner "directed" at Canadians or any person in Canada (CSE);
  • creative theories in the Re X case about CSIS extraterritorial warrants;
  • a conclusion that CSIS’s new Bill C-51 threat reduction powers, done in violation of the Charter, can be constitutional if done pursuant to Federal Court warrant;
  • a conclusion (or at least implication) that somehow, and despite its (admittedly tortured) wording, the new bill C-51 Security of Canada Information Sharing Act is lawful authority effectively trumping the Privacy Act;
  • a conclusion that the exception to the definition of “undermining the security of Canada” in that same Act does not exclude violent protest, advocacy or dissent (a reasonable policy position, but the “violence” qualifier is not in the Act);
  • a conclusion that narrows the textual reading of the bill C-51 “advocacy or promotion of terrorism offences in general” (again, a welcome policy position, but not the way the offence reads).

These are all conclusions that are difficult to view as guided by the law Parliament has enacted.

The CSIS Metadata Case

Enter the CSIS metadata case. As described in my prior post, this case turns on whether retaining “associated data” (that is, non-threat related information) collected in warranted intercepts of communications by targets was lawful.  The Federal Court concluded it was not. And it reasoning on this point is awfully compelling.

Less compelling is the argument offered by the Department of Justice in defending this practice.  And these arguments have knock on implications if they govern the legal advice given in other contexts.

Argument 1: The statutory limitations on CSIS’s intelligence gathering in section 12 are relieved by a Federal Court warrant.

That is, once a Federal Court warrant issues, then Parliament’s constraints on CSIS’s section 12 mandate do not matter any more.

Now, as someone who teaches public and constitutional law, and defends basic constitutional norms of parliamentary supremacy, and contests the delusion that (except in rare instances inapplicable here) the executive has powers beyond those granted by Parliament, this argument struck me as astonishing.  Here, the Justice Department is arguing that, in a secret hearing not subject to appeal in which only it is represented, it may negotiate a warrant with a court having the effect of superseding Parliament’s instructions on the powers CSIS is to have.

Let’s extend the Justice Department’s argument to the powers CSIS has after Bill C-51: it may do anything to reduce broadly defined “threats to the security of Canada” under section 12.1, so long as proportionate to the threat. Under section 12.2, it must not, however, engage in bodily harm, violate sexual integrity or obstruct justice.  In other words, Parliament sets an out limit (albeit a ridiculously undemanding one that we believe needs to be made more robust).

But, under the Justice Department legal reasoning, if CSIS goes to Federal Court and obtains a warrant (as it may do so under s.21.1), these limits could be superseded by the warrant.  And so, under the Justice Department logic, the Federal Court could authorize CSIS to, say, engage in targeted killing (remember, the C-51 changes also say that CSIS may, with Federal Court warrant, violate the Charter).

I have yet to meet the Federal Court judge that would authorize such a thing.  But that is not my point.  My point is that under the Justice Department logic, the basic constraints on CSIS’s powers legislated by Parliament in Bill C-51 can be negotiated out of existence in a secret, one-sided court proceeding, with no appeal.

Fortunately, Justice Noël rejects this Justice Department argument. But it is a bit terrifying it was ever made.

Argument 2: Metadata and the privacy issue. 

In a second argument, the Justice Department seemed to advance the view that metadata do not trigger privacy concerns under the Charter at the collection stage.  Instead, as I follow the discussion, that threshold is crossed when they are amalgamated and searched. 

The court did not resolve this matter, it seems to me. But it is another distressing position with ramifications across government (including in relation to the infamous CSE incidental collection of Canadian metadata in its foreign intelligence and information technology security functions). 

If accepted, this argument allows the accrual of vast pools of metadata, undisciplined by Charter collection rules.  Under Bill C-51’s Security of Canada Information Sharing Act, that information could then start sloshing about government.  At some point, the amalgamation and analysis of it would cross the Charter threshold, even according to the Justice argument.  But what happens then?  Are we to expect that government departments will come to Federal Court proactively seeking a warrant as they run algorithms through these databases?  Absent legislated structures, I don’t see this happening.

So, again, this is another unhelpful legal theory.

Argument 3: CSIS and its lawyers didn’t need to tell the Federal Court about the metadata retention. 

And now we get to the fireworks in this case: the duty of candour issue.  I shall do a separate blog entry on this issue in particular.  But among the other astonishing issues: the government lawyers apparently took the view that they did not need to tell the court how data collected under court warrant was being used, because the court did not have supervisory authority. This is a gobsmacking position, which basically confirms experience with other cases (like Re X): once the warrant walks out the door, the government does as it wills with it.  It is a legal position that court itself discards with some energy: the government legal view reflected a “worrisome lack of understanding”.

And so I can only expect at this point that every single Federal Court warrant will have a “return and report” clause affixed to them.  And the Federal Court will now move in the direction of the US FISA court in terms of auditing performance.

Which is fine, as far as it goes.  But what about all the other doubtful legal positions that never get in front of court – and they are likely legion.

Well, one of the most important aspects of the national security and intelligence committee of parliamentarians anticipated by C-22 is that they will have access to information that is protected by solicitor-client privilege.  If I was in charge, the first thing I’d do: an audit of national security legal opinions, done with the assistance of a small bevy of special advocates.

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.

Assessing CSIS's new Bill C-51 "threat reduction" powers: Observations on the SIRC report

Last week, the Security Intelligence Review Committee (SIRC) issued its annual report – the first covering a period during which C-51 was in effect. That report includes an initial assessment of CSIS’s “threat reduction” activities.

What is Threat Reduction?

“Threat reduction” refers to the new powers Bill C-51 gave CSIS to take “measure” to reduce threats to the security of Canada. With Bill C-51, CSIS is now expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.”

The only categorical restriction on CSIS’s threat reduction powers is that such measures must not intentionally or by criminal negligence cause death or bodily harm, violate sexual integrity, or willfully obstruct justice.[1] CSIS must also believe that the measures are “reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.”

Where authorized by Federal Court warrant, the CSIS “measures” may even “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law.” Judges must determine that such violations are reasonable and proportional when issuing the warrant.

Key Concerns

Summarized briefly, Kent Roach and I have urged that these new powers suffer from two overarching flaws:

  1. First, their outer limit is too extreme, especially given that we are talking about covert conduct intended never to be assessed in open court. Particularly egregious (and in our view, unconstitutional) is the notion that a warrant can authorize a Charter breach. (Such a supposition is inconsistent both with the nature and manner of conventional search and arrest warrants, and the workings of section 1 of the Charter.)
  2. Second, authorizing CSIS to engage in threat disruption compounds the risk of “confliction” between police and CSIS. CSIS threat reduction under Bill C-51 preserves the historical distance between police and CSIS, allowing CSIS to exercise parallel powers outside the regular legal system, potentially in violation of the regular law and constitutionalized human rights. We have argued repeatedly that the logic of Bill C-51’s threat reduction powers is driven by a steady unwillingness to web more closely police and CSIS anti-terrorism, largely because of our unwillingness/inability (depending on to whom you speak) to address the “intelligence-to-evidence” conundrum. We believe that the RCMP/CSIS parallel investigation approach applied to threat reduction is both unsustainable, and potentially dangerous as it encourages the fallacy that Canada can disrupt – in the sense of temporarily interrupt – threats without skillful deployment of criminal justice tools. This raises the prospect that Canada will be drawn into a system of whack-a-mole disruption with no real end-game.

SIRC on Threat Reduction

SIRC’s job is not (and never has been) to assess the wisdom of the laws governing CSIS. But its report is helpful, nevertheless. The SIRC report suggests that problem number 1 has yet to arise because CSIS has opted for abstinence in relation to the extremes its new powers permit. This, of course, is a good thing – and if anything reaffirms our view that CSIS does not need a law that permits such extremes, and indeed those extremes are not echoed in jurisdictions that the government says it is emulating (like the United Kingdom, discussed below).

As to problem 2, the SIRC report points to prudential measures the minister of public safety and CSIS have put into place to guard against road collisions. This is a positive development – and the revamped CSIS/RCMP protocol, One Vision 2.0, includes promising language about preemptive notification by CSIS to the RCMP of threat reduction activities, and then a coordinated decision-making process. 

And there are elemental standards about maintaining records, since the target of the threat reduction activities may ultimately become the subject of a criminal prosecution. Again, this is positive. A patchy or problematic paper trail or one crafted without attention to disclosure obligations is exactly the sort of thing that would be instant fodder for a disclosure dispute in court, and possibly the genesis for an abuse of process holding by the judge, cratering the case. 

So CSIS is apparently coming around to the view that, in relation to threat reduction especially, it must conduct itself with at least some consideration to the downstream impact on criminal prosecutions. That is, it is in the evidence business.  

How this will work at the tactical level is, however, a mystery – that material is redacted from the copy of the One Vision 2.0 released under Access to Information. Tactical level deconfliction is where the risk of things going amiss will be higher – the Nuttall matter is an illustration of how complicated the RCMP/CSIS interface can be and then how ill-considered RCMP tactical level decision-making can scupper a criminal case.

We must also be conscious that partially secret internal directives come and go, and have come and gone without anyone outside government knowing it.

Next Steps

On top of renovation to roll back the extremes of the new CSIS powers, we support, therefore, entrenching into law a strong criminal justice orientation in the decision-making around threat reduction. This could be accomplished by strengthening the language in the C-51 amended CSIS Act. That language currently indicates that threat reduction must be prefaced by consideration “the reasonable availability of other means to reduce the threat”. The issue, properly conceived, is not whether CSIS itself has other means; the issue is whether other government agencies – and specifically the police – are better positioned to reduce the threat. Language could easily be added that obliges CSIS to take close account and orient its efforts in support of the sort of criminal justice tools. Lawful disruption supportive of criminal justice approaches should be the default, with any departures carefully circumscribed.

Indeed, we note with interest that MI5 (CSIS’s UK analogue and an agency whose conduct the government repeatedly invoked in defence of C-51’s changes) is all about disruption through criminal justice tools. MI5 uses the term “disruption” to describe “actions we take to manage risks posed by [Subjects of Interest] or networks.”[2] These take the form of “short term tactical disruptions (e.g., prosecution for road tax evasion) to major covert operational activities aimed at arresting and imprisoning an individual”.[3] Critically, therefore, disruption in the UK context appears to be different from CSIS threat reduction powers: MI5 disruption is not a parallel system of state power, exercised outside the confines of the regular law by a clandestine agency. Instead, it is closely linked to law enforcement.  As described by the UK Parliament’s Intelligence and Security Committee, a specialized oversight body:

MI5 and the police work closely together when considering potential disruption opportunities. Usually MI5 will request that the police provide support through a-pointing a Senior Investigating Officer (SIO) who will assist in the management of the investigation, lead the police interaction and develop a joint tactical strategy with MI5. This management process is then usually formalized through a Joint Operational Team (JOT), comprising an MI5 lead, police SIO and specialists from MI5, the police or any other relevant agency.[4]

Put another way, disruption for MI5 means working closely with police and disrupting security threats through use of the law, especially criminal justice.  Of note, the close MI5/police relationship has sometimes been credited with the United Kingdom’s comparative success since 7/7 in staving off major terror attacks.

Codifying this approach in the CSIS Act (along with serious progress in solving intelligence-to-evidence) would go a considerable distance in relieving concern number 2, noted above, and would facilitate important efforts to legislatively roll-back the extremes noted in concern number 1.

 


[1]           CSIS Act, ss 12.1 and 12.2.

[2]           UK Intelligence and Security Committee, Report on the intelligence related to the murder of Fusilier Lee Rigby (25 November 2014) at 47, online: http://isc.independent.gov.uk/files/20141125_ISC_Woolwich_Report(website).pdf.

[3]           Ibid.

[4]           Ibid.

Bill C-51: What Did We Learn About the Government's Intentions from the Clause-by-Clause

Last night, the Commons national security committee conducted its lengthy clause-by-clause review of bill C-51.  The government MPs refused every opposition amendment and only passed small amendments of their own. These amendments were in fact those discussed (and analyzed) here.

I will not comment here on the nature of this process, and what it says about our current capacity for reasoned debate.  Colleagues have already commented and continue to comment (correctly) on the state of our democracy, as have members of the media.  I will only say that this process is night and day compared to the more important role Parliament played in both the enactment of the original CSIS Act in 1983/84 and that of the first Anti-terrorism Act in 2001.

Rather, in this post, I want to explore what more we learned about C-51 from the committee process, and especially the statements by the government lawyers in attendance and the prepared speaking notes of the government MPs, as they defeated every opposition amendment.  And I want to focus specifically on the controversial CSIS powers.

1. Powers will allow CSIS to breach law or the Charter, with warrant domestically

At issue is proposed s.12.1(3): "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter
of Rights and Freedoms or will be contrary to other Canadian law, unless the Service
is authorized to take them by a warrant issued under section 21.1"
(emphasis added).

Basically, this has been read by almost every lawyer outside government whose opinion I have access to as "the Service can violate the Charter -- and potentially any Charter right -- if it has a warrant". 

A couple of key points:

  • This is very different from search and arrest warrants -- those are tied to Charter rights that have qualifying language in the right itself (Section 8 of the Charter only guards against unreasonable searches and seizures.  Section 9 only protects against arbitrary detention). A search or an arrest warrant satisfies this qualifying language, and therefore a government acting under such a warrant does not breach the Charter
  • Most other Charter rights are not imbued with built in qualifying language.  There is no concept of permissible free speech, or arbitrary cruel and unusual treatment, or appropriate mobility rights to enter or leave the country or limited habeas corpus. 
  • Such rights can only be trumped under s.1 of the Charter (or if the government uses the s.33 notwithstanding clause, which it is not doing in C-51).  Section 1 reads: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
  • But s.1 issues simply aren't dealt with through the peculiar mechanism of a warrant -- as noted below, procedurally to do so is a very concerning approach.

But, not surprisingly, the government now asserts that s.1 is exactly what they have in mind.  And because their proposed system supposedly allows an advance s.1 "get out of jail" blessing for a subsequent Charter right breach, there is no Charter violation:

Government witness: "The suggestion that the bill is designed to actually have a judge violate the charter or be co-opted into violating the charter... that is not what the bill does. What the bill does is precisely the opposite. It puts the judge in the position of deciding whether or not the charter would be violated by the proposed measure. If it would be violated, that is the end of the matter. No one, including the judge, can authorize the measure. ... The judge in fact is being put in precisely the position of looking at the facts of a particular case and determining whether or not the rights that are at issue are reasonably restricted. That is precisely one of the functions allowed a judge under the charter. Section 1 provides for that determination and that's what the bill in fact provides for. So it is not correct, in our submission, that in fact the bill is in any way co-opting the court or anyone else into sanctioning a charter violation. It goes to a judge precisely for that reason, to make sure the charter will not be violated, and the charter violation occurs when a particular right is restricted in a way that is not reasonable, and that is the inquiry that a judge makes under the statute. ... What it turns on is section 1 of the charter which provides that the rights referred to in the charter are guaranteed only to the extent that they are not restricted by reasonable limits prescribed by law in a free and democratic society. That what it turns on."

 

Our Response:

This legal theory is novel both on substance and radical in terms of procedure. (For footnotes, see p.23 and following here).

Substantive Objections

It is certainly true that s.1 has been used to justify administrative action in violation of the Charter under what is known as the Dore test, in after-the-fact judicial consideration of such actions.

But in every instance where the Dore approach to s.1 has been applied, the delegated power is much more closely anchored to a limited and specific range of possible government conduct, and the Charter rights potentially at play are not “the entire Charter”. 

In C-51, every possible Charter right may be at issue, if its infringement is viewed as necessary for threat reduction.  Put another way, the discretion to violate the Charter at issue here is much less bounded than any equivalent of which we are aware.  Moreover, the CSIS Act is not your typical administrative regime; it is one that by design skates very close to the edge of what the state should be doing in a democratic society.

Even more critically, we only reach s.1 in the first place where the rights limitation is “prescribed by law”. 

“Prescribed by law” is rarely an issue in constitutional disputes, since the government action in question is either expressly authorized in a stature or is sufficiently linked to it to meet the “prescribed by law” standard. In challenges to legislative action, the Supreme Court takes a “flexible approach to the ‘prescribed by law’ requirement as regards both the form (e.g., statute, regulation, municipal by-law, rule of a regulatory body or collective agreement provision) and articulation of a limit on a Charter right (i.e., a standard intelligible to the public and to those who apply the law).”

In bill C-51, neither this form requirement nor the intelligible standard expectation is met.  We cannot predict in advance which Charter right will be violated, or the specific circumstances or nature of the breach.  That is a matter that will be decided on a case-by-case basis. 

As a consequence, the bill constitutes an even more aggressive manifestation of the “prescribed by law” shortcomings identified by the Supreme Court in provisions that once governed court-authorized bail conditions, as in Morales.  It offers exactly the sort of vagueness and imprecision that disentitles the measure to a full s.1 inquiry. In the proposed new CSIS powers, the only statutory framework translates into: “you can do anything to ‘reduce’ broadly defined threats to the security of Canada, including violating every right in the Charter, so long as it doesn’t do bodily harm, violate sexual integrity or obstruct justice”. 

We are not aware of any circumstances in which the Supreme Court has concluded that such an open-textured invitation to violate the Charter is “prescribed by law”. That is probably because we have never before seen such an open-textured invitation. 

This would be bad enough, but we also believe that this system amounts to a drafting of judges into the legislative function of limiting Charter rights through s.1-style justifications. As suggested, it differs so significantly from the traditional search warrant process that we do not accept that approach as a plausible analogy.  Moreover, the present system is dramatically different from the “investigative hearings” process upheld by the Supreme Court the last time judicial independence was a live issue in a national security context. 

Most notably, a key ingredient saving the latter process from being unconstitutional was the fact that investigative hearings are held presumptively in open court.  As we discuss next, that safeguard does not exist in bill C-51.  Moreover, a strong minority of the Court concluded that even the relatively banal investigative hearing system did violence to the role of judges. The dissent concluded that judges were in effect being made into police investigators, even though investigative hearings are adversarial hearings held in open court.

Bill C-51 concentrates the legislative power to authorize and limit Charter rights on “section 1 reasonableness grounds” into the hands of those Federal Court judges who have been specially designated to sit in security cases, in secret.  This is dramatically different from (and much more concerning than) investigative hearings.

It is radically different from what judges do under s.1.  Judges adjudicate whether a Charter breach by another branch is prescribed by law and demonstrably reasonable in a free and democratic society.  They do not pre-authorize a Charter breach because they think it reasonable and necessary.  That is not what they have ever done, and it profoundly contorts their role.

Procedural complaints

And then we get to the procedural objection. The government's exotic C-51 s.1 analysis will be conducted in a warrant proceeding.  These are ex parte (only government party present) and in camera (closed) proceedings, done in advance of government Charter breaching action without necessarily knowing its full contours (as in, how it will play out on the ground) and without a full evidentiary record.  So the hearings will be done in secret, with only the judge and the government side represented, and no real full facts on what exactly has happened to the the target (or whether the target has been misidentified or otherwise constitute a "false positive"). The person affected by the illegal activity will not be represented — in fact they will often never know who visited the misfortune on them, depending on what is done to them. They cannot defend their rights. No civil rights group will be able to weigh in.  There is no appeal system.

This is unlike any s.1 analysis done by the courts in other circumstances -- usually a profoundly methodical process with a developed factual record. 

And so when you place the substantive concerns together with the procedural complaints we end up with a government's legal theory that goes from novel to "radical".  The government wishes to breach every and any right, with prior blessing by a court performing the dirty work of limiting indisputable Charter rights in a secret, closed process, without appeal and with the government the master of all facts (and the only party formally represented).

We are just two lawyers, and the government has its own lawyers.  And lawyers argue.  But we are hardly alone (to say the least) in saying this is all seriously unconstitutional.  And so since the government persists with this theory, this matter will now have to be litigated. Parliamentarians should appreciate, however, that in enacting this extreme measure, they place the burden of defending foundational concepts of our system of democracy and law on the shoulders of underfunded non-profits, in litigation where the government will challenge their right to do so at every turn.

2. What Will CSIS Do With its Powers?

A question many of us have asked is "what does CSIS need this vast new power to do".  In their speaking notes, the government has made persistent reference to “CSIS needs to be able to speak to parents of radicalizing children” – something that CSIS reportedly does already and at any rate does not justify the astonishing breadth of the new powers.

So it was both interesting and disturbing to see the government's response to Green Party and NDP efforts to limit CSIS's powers to exclude, e.g., detention. 

Violate Mobility Rights

First, one government witness used limitations on mobility rights as an example of what might be limited by CSIS measures (that is, entering and returning to Canada).

Detain

On detention, a key question is whether the government has really, truly wanted CSIS to be in the detention business.  The responses on this have either been non-responses or confusing.  The government tabled and the committee passed a "greater certainty" provision saying CSIS will have no "law enforcement powers".  But for the reasons we discuss here, this does nothing to clarify this question -- it still leaves open the prospect of "threat reduction detention".  And our views seem confirmed by what then happened in clause-by-clause.  And one government witness said this:

The concept of detention means different things in different contexts. In some cases it may give rise to treatment that would amount to bodily harm, but not necessarily. People are detained at the border for inspection purposes but they don't necessarily find themselves subjected to bodily harm or treatment that is referred to in the act.

If I might, I would just indicate that the reference to CSIS not having law enforcement powers, as the member indicated, was intended to address the concern that certain powers associated with a law enforcement agency were not being given to CSIS. The important point that was reflected in the drafting is that CSIS itself as an agency cannot take it upon itself to exercise those powers. It has no power and never has had a power to detain or arrest or imprison. Nothing in this bill changes that.

When the concept of detention is used for example, again, to repeat myself, the services never had a power to detain. That is a peace or police officer power that is either conferred by common law or by a statute. It doesn't find itself in CSIS. The point is that in the course of CSIS operations, they may in fact identify opportunities to take measures to interfere with a person's movement. What the act provides is, if CSIS wishes to do that, and if to do that would contravene the law, they have to obtain judicial authorization to do it. The important point in the legislation that we tried to reflect in the drafting was the it was never up to CSIS to make that decision on its own. It would always fall to a judge to make that determination.

The government MPs then defeated a Green amendment that would prohibit detention, saying "The amendment that is on the floor right now is not consistent with the intent of the bill. It would unduly narrow the range of possible measures that CSIS could take, and would so weaken CSIS's capacity to carry out its threat reduction mandate."

Short version: CSIS hasn't had detention in the past, but with judicial authorization it will be able to detain after C-51, and that is exactly what the government has in mind. 

I would add that nothing in the bill requires a warrant where the detention takes place overseas, at least for non-Canadians.  C-51 only requires a warrant where the conduct would violate Canadian law or the Charter.  These instruments rarely extend to overseas government conduct.  And so the trigger requiring the warrant will rarely be pulled.  Under current Federal Court jurisprudence, the Charter only applies overseas when, in essence, the Canadian government conduct would violate international human rights law and (a more doubtful requirement) it is directed at a Canadian.  We think the last requirement very doubtful, but it is what the Federal Court has said.

So the clear: C-51 combined with present understandings of the Charter would allow overseas detentions of foreign nationals, without warrant or judicial supervision.

Rendition

Another concerning comment: According to government witnesses, the government amendment specifying CSIS does not have "law enforcement powers" will not bar "rendition".  In the words of the government witness: "just the reference to 'rendition' or 'removal to another state' is not necessarily a law enforcement power. So to the extent that the amendment refers to 'law enforcement', it may not be a like thing." 

In recent history, rendition is the process by which a person is kidnapped from one jurisdiction and taken to another, sometimes for trial and sometimes for abusive interrogation.

This is not to say CSIS would do this. But in truth, the Service has done forms of detention and removal of Canadians to foreign jurisdictions before.  With warrant, this treatment of Canadian would now be potentially legal.

If the treatment related to overseas treatment of a foreign national, again under current understandings of the Charter, a warrant would not be required.

We do not propose that CSIS's culture would lead it to the excess of other services who have practiced detention and rendition.  We also do not believe our law should ever be degraded to the point where that excess becomes legally permissible.

3. The Foreign Analogies

Last night, the government persists in the view that other Five Eyes countries (or at least the UK, US and Australia) have powers to the open ended degree C-51 proposes for CSIS.  Specifically: the power to breach laws and the constitution, in domestic operations. 

I have written on this before here and here.  Kent Roach has since spoken to his contacts. We have consulted with people with considerable experience in the UK. Since last night's repeated assertion, I have re-written to colleagues in the UK, Australia and the United States, some of whom are consulting with members of their security services.  I await full results, but again so far, no one has been able to identify close analogues. 

My concern right now is that the government is pointing to much more modest powers possessed by foreign domestic services, adding to those the sorts of powers exercised by other services only in their international operations, and then has proposed a package for CSIS that gives them sweeping powers both domestically and internationally that other like-countries just don't have.

Nothing stops the government from releasing its comparative analysis.  But it refuses to do so, making it very difficult to determine whether it is justifying apples with references to oranges.

And that is a symptom of how this debate has unfolded. This is lamentable on many different levels. 

Bill C-44: Statement to Standing Senate Committee

March 23, 2015 2 pm

My thanks to the Committee for asking me to testify today.

Summary

My views in brief:  At the Commons committee, I expressed my support for the proposed amendments to sections 12 and 21 of the CSIS Act.  I also indicated that are three omissions in this Bill that Parliament should correct.  I see these corrections as necessary to preempt another decade of litigation, controversy and uncertainty.

Since that time, the government has introduced bill C-51 and has still failed to address these omissions.  Read in this broader context, I feel it necessary to further qualify my support of C-44 and raise doubts about its viability. 

But before reaching this matter, I present here today also on behalf of Professor Kent Roach.  Professor Roach offered evidence on the informer privilege aspect of C-44 at the Commons committee.

Informer Privilege

So I wish to begin with informer privilege.  Put briefly: Professor Roach and I believe that the new provisions, reversing the Harkat decision and ignoring the recommendations of the Air India inquiry, risk making our most successful anti-terror tool – criminal prosecutions – less useful. 

After four years of study, the Commission concluded that, CSIS should not be able to bestow a class privilege on informers. Justice Major stressed: “CSIS promises of anonymity to human sources might often be premature and could, if the promises were enforceable, jeopardize subsequent terrorism prosecutions.” The Supreme Court in Harkat also recognized that “the police have an incentive not to promise confidentiality except where truly necessary, because doing so can make it harder to use an informer as a witness.” CSIS, however, is an agency that will have none of these incentives to be judicious in extending privilege.

In our view, the new privilege prioritizes CSIS’s intelligence objectives over the needs of terrorism prosecutions. This is a questionable choice.  Intelligence is important in preventing terrorism, but so too are prosecutions.  The Air Inquiry commission proposed solutions to the problem of reconciling these objectives, including closer integration of CSIS and RCMP counter-terror investigations and closer executive oversight ofr decisions made about intelligence that may be deployed in prosecutions.  The government has been inert on these recommendations.

More than this, Bill C-44 recognizes that the new privilege must be subject to an innocence at stake exception, but this exception in C-44 is constitutionally underinclusive since it does not reach use of the privilege in security certificate and perhaps other administrative regimes that trigger section 7 of the Charter.

All of this is to say that C-44 is myopic from a policy perspective, and will inevitably result in another round of constitutional litigation that may cure some of its deficiencies, but at the expense of years of uncertainty.

Foreign Spying

I turn to foreign spying.  Clause 8 addresses the core confusion flowing from three Federal Court decisions.  In enacting these amendments, you will now be emphatically asking a court to bless CSIS covert surveillance that may violate international or foreign law.

In our system, Parliament has authority to grant expressly powers that violate international law, so long as those powers do not then also violate the constitution.  I told the Commons committee that I personally saw no constitutional complaint, assuming we are confining our discussion to surveillance issues.

I feel it necessary to note, however, that I must now amplify and qualify this view.  I do so, because in C-51, this same formula of allowing CSIS to break foreign law is used, and purports to extend well beyond surveillance issues.  And I must also qualify my remarks because the Supreme Court has agreed to hear the Re X decision. 

There, we should expect that the court will be asked to consider what it intended in its 2007 Hape decision when it wrote: “In the absence of consent, Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory.  Since effect cannot be given to Canadian law in the circumstances, the matter falls outside the authority of Parliament and the provincial legislatures.” 

One interpretation of this passage and its accompanying language is that this Parliament acts beyond its constitutional competence in authorizing physical action by a Canadian agency in a foreign jurisdiction, done without that foreign state’s permission.

If the Court affirms this interpretation, it will have the impact of rendering unconstitutional the extraterritorial aspects of C-51 and potentially C-44.

Uncertainty over “trigger” for seeking foreign spying warrant

This will be a matter for the Court to decide.  I wish, however, to focus on a first omission in C-44 that may also arise in Re X.

Specifically, it is not clear when the Service will be obliged to obtain a foreign surveillance warrant.  The existing statute speaks of “belief on reasonable grounds that a warrant is required”.  In a domestic surveillance operation, these grounds arise when failure to obtain a warrant would violate section 8 of the Charter (governing searches and seizures) or Part VI of the Criminal Code.

But the applicability of these two laws – and especially the Charter -- to foreign surveillance is uncertain.  As a consequence, the existing “reasonable grounds” threshold is unhelpfully ambiguous when applied to the new extraterrestrial warrant powers in this bill. 

Because the bill is not emphatic, establishing the standards as to when an extraterritorial warrant is required will need to be decided in litigation.  I strongly urge this committee, therefore, to preempt this necessity and uncertainty by adding clear language on the trigger for seeking a foreign surveillance warrant. 

I have proposed language in an annex to my brief.

Uncertainty over legality in CSIS’s international information-sharing practices

Second, since this bill was tabled, the Supreme Court has issued its decision in Wakeling.  The case concerned the RCMP, but the holding extends, in practice, equally to CSIS. 

A majority of the Court concluded that section 8 of the Charter applies to sharing between Canadian authorities and foreign counterparts of intercepted communications.  To be constitutional, a reasonable law must authorize intercept sharing.  And a reasonable law is one that includes sufficient accountability and safeguard regimes. 

Right now, there is no clear law on CSIS international intercept sharing.  At best, there is generic, more open-ended permission, which seems unlikely to survive constitutional challenge.  The risk is that CSIS’s international information sharing – important to Canadian national security – will be hamstrung.

Shockingly, bill C-51 does not cure this problem, even with its vastly overbroad information sharing law.

I would strongly urge this committee to again preempt years of litigation by codifying an express statutory authorization for intercept sharing that also includes safeguards of a type likely to satisfy the Wakeling standard. 

I have proposed language in the annex addressing this.

Continued Failure to Respond to Serious Accountability Gaps

Last, we are now past the 10th anniversary of the Arar Commission.  I note with profound concern that Parliament has failed to legislate any of the Commission’s critical recommendations dealing with coordination between the review bodies for CSIS, CSE and the RCMP. 

Instead, we have closer and deeper coordination between security services, but review remains firmly limited to institutional silos.

As you know, in the wake of Bill C-51, these concerns are now acute.  It is my earnest and most sincere belief that moving ahead with C-44 and C-51 without fixing accountability gaps would be reckless, and I would go so far as to label it the most ill-considered act by any Canadian government in the area of national security law since the findings of the McDonald Commission.

Let me end there.

 

 

Annex: Proposed Amendments Correcting Omissions in Bill C-44

 

A. Amendments Clarifying When A Foreign Surveillance Warrant Would be Required

 

21. (3.2) For greater certainty, a warrant under this section is required for any investigation outside of Canada that

a) involves an investigative activity that, were it conducted inside Canada, would require a warrant by reason of the Canadian Charter of Rights and Freedoms, or

b) may be inconsistent with international law or the law of the state in which the investigative activity is conducted.

 

B. Amendments Making CSIS International Intercept Sharing Constitutional, Given Wakeling Holding of the Supreme Court of Canada

 

19. (2)(e) where a disclosure is made in accordance with a warrant or authorization issued under section 21 to a person or authority with responsibility in a foreign state for performing duties and functions analogous to those of the Service under this Act and is intended to be in the interests of the national security, national defence or international relations of Canada.

21. (3.3) (a) Information collected by the Service through the interception of a communication to which Part VI of the Criminal Code would otherwise apply in the absence of section 28 of this Act may only be disclosed under section 19(2)(e) in accordance with an authorization issued by a judge.

(b) The judge may issue the authorization referred to in paragraph (a) either as part of the warrant authorizing the interception of the communication in the first place or after a separate application by the Director or any employee designated by the Minister for the purpose.

(c) A judge may make the authorization referred to in paragraph (a) only where persuaded on a balance of probabilities that the information, once shared, will not be used for activities or purposes that violate international law, including but not limited to, torture as defined in section 269.1 of the Criminal Code or other forms of cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984.

 

C. Enhancing Coordination of Review Among Security Review Bodies to Reflect Recommendations of the Arar Commission

 

CSIS Act

 

56. (a)  If on reasonable grounds it believes it necessary for the performance of any of its functions under this Act, those of the Commissioner of the Communications Security Establishment under the National Defence Act, or those of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act, the Review Committee may convey any information which it itself is empowered to obtain and possess under this Act to:

a) the Commissioner of Communications Security Establishment under the National Defence Act, or,

b) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act

(b) Before conveying any information referred to in paragraph (a), the Review Committee must notify the Director and give reasonable time for the Director to make submissions.

(c) In the event that the Director objects to the sharing of information under this section the Review Committee may decline to share the information if persuaded on reasonable grounds that the sharing of the information at issue under this section would seriously injure the Service’s performance of its duties and functions under the Act.

(d) If the Review Committee dismisses the Director’s objection, the Director may apply to a judge within 10 days for an order staying the information sharing.

(e) A judge may issue the stay order referred to in paragraph (d) if persuaded on reasonable grounds that the sharing of the information at issue under this section would seriously injure the Service’s performance of its duties and functions under the Act.

(f) At any time, the Review Committee may apply to a judge for a lifting of any stay issued under paragraph (e) on the basis of changed circumstances.

(g) For greater certainty, the Review Committee may request information it believes necessary for the performance of any of its functions under this Act from the Commissioner of Communications Security Establishment under the National Defence Act, or, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act.

 

National Defence Act

 

274.64  (a) If on reasonable grounds the Commissioner believes it necessary for the performance of any of the Commissioner’s functions under this Act, those of the Security Intelligence Review Committee under the CSIS Act, or those of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act, the Commissioner may convey any information which the Commissioner is empowered to obtain and possess under this Act to:

a) the Security Intelligence Review Committee under the CSIS Act, or,

b) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act

(b) Before conveying any information referred to in paragraph (a), the Commissioner must notify the Chief and give reasonable time for the Chief to make submissions.

(c) In the event that the Chief objects to the sharing of information under this section the Commissioner may decline to share the information if persuaded on reasonable grounds that the sharing of the information at issue under this section would seriously injure the Establishment’s performance of its duties and functions under the Act.

(d) If the Commissioner dismisses the Chief’s objection, the Chief may apply within 10 days to a judge designated under section 2 of the CSIS Act for an order staying the information sharing.

(e) The judge may issue the stay order referred to in paragraph (d) if persuaded on reasonable grounds that the sharing of the information at issue in the application would seriously injure the Establishment’s performance of its duties and functions under the Act.

(f) At any time, the Commissioner may apply to a judge for a lifting of any stay issued under paragraph (e) on the basis of changed circumstances.

(g) For greater certainty, the Commissioner may request information the Commissioner believes necessary for the performance of any of the Commissioner’s functions under this Act from the Security Intelligence Review Committee under the CSIS Act, or the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the RCMP Act.

 

RCMP Act

45.471  (a)  Notwithstanding any other provision in this Act, if on reasonable grounds the Commission believes it necessary for the performance of any of its functions under this Act, those of the Security Intelligence Review Committee under the CSIS Act, or those of the Commissioner of Communications Security Establishment under the National Defence Act, the Commission may convey any information which it itself is empowered to obtain and possess under this Act to:

a) the Commissioner of Communications Security Establishment under the National Defence Act, or,

b) the Security Intelligence Review Committee under the CSIS Act

(b) Before conveying any information referred to in paragraph (a), the Commission must notify the Commissioner and give reasonable time for the Commissioner to make submissions.

(c) In the event that the Commissioner objects to the sharing of information under this section the Commission may decline to share the information if persuaded on reasonable grounds that the sharing of the information at issue in the application would seriously injure the Force’s performance of its duties and functions under the Act.

(d) If the Commission dismisses the Commission’s objection, the Commissioner may apply within 10 days to a judge designated under section 2 of the CSIS Act for an order staying the information sharing.

(e) The judge may issue the stay order referred to in paragraph (d) if persuaded on reasonable grounds that the sharing of the information at issue in the application would seriously injure the Force’s performance of its duties and functions under the Act.

(f) At any time, the Commission may apply to a judge for a lifting of any stay issued under paragraph (e) on the basis of changed circumstances.

(g) For greater certainty, the Commission may request information it believes necessary for the performance of any of its functions under this Act from the Commissioner of Communications Security Establishment under the National Defence Act, or, the Security Intelligence Review Committee under the CSIS Act.

Bill C-51: Do our Allies Really Have Similar Powers to Violate the Law?

In its backgrounder on the new CSIS powers proposed in Bill C-51, the government writes:

Our Government is working to disrupt acts of terrorism before they come to pass. This Bill proposes to give CSIS a new mandate to intervene in order to disrupt threats to the security of Canada. ...With its new mandate, CSIS could take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada. ... Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years.

Kent Roach and I have published our analysis of these new powers here and our examination of Canada's inadequate accountability regime here.  I won't therefore repeat that assessment in this post.  Rather, I want to raise issues concerning this line: "Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years."

The government (and especially Minister Blaney) has repeated this many times, adding that our system is even better than those of our allies because the CSIS powers will require warrants.

I believe these claims to be incorrect, or at least require substantial nuancing.

First point: I have had little time to probe this issue in full. That is, I have not had time to review the law of all of our allies, or to speak to professors specializing in national security law in all jurisdictions.  I have, however, looked at the law of New Zealand, Australia, the United Kingdom and the United States.  And I have spoken to very respected law professors specializing in security law in the last three jurisdictions.  I asked them this question (example from my message to my Australian counterpart):

The Cdn government keeps saying the new CSIS powers just catch up to powers that allied agencies have (their CSIS backgrounder: "Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years"; and ministers have this in their speaking points).  These statements puzzle me.  ASIO in Australia has a power of investigative detention.  Maybe the government is thinking of this, but then they have also said that CSIS won’t detain anyone.  I have spoken to colleagues in the UK and they don’t seem to think MI5 has powers of the sort that the government is proposing for CSIS.  The US doesn’t have a CSIS-type organization, and the FBI is law enforcement.  So no help there.  Is the government thinking about foreign intelligence services like the CIA and MI6?  If so, well that would be a huge problem since those services don’t exercise their powers domestically for the very reason that they would often be unlawful and trench deeply on civil liberties (Church inquiry and all that).  And at any rate, most countries know it is a very bad idea to place a security intelligence organization together with a foreign intelligence organization in the same agency.

This is all a long way of saying, do you have any sense of what the government might be talking about?  I’d be grateful for your insights.

The response from colleagues from Australia, UK and US is: the domestic services of these countries simply do not have powers analogous to what Bill C-51 proposes for CSIS.  Period.  (In their responses, some colleagues said they were "perplexed" by the Canadian government's claims.  One suggested that perhaps our government was thinking of Russia -- I assume he was joking.)

This conclusion re: Australia, UK and US appears to be true for New Zealand.  See s. 4(2) here.

So none of our "Five Eye" allies have seen fit to give their domestic covert service the power to do things domestically that the government wants CSIS to do in Canada.

Most of these allies do have foreign services -- that is, a separate organization (ASIS, MI6, CIA) that works overseas.  Even here, however, the government misstates if it insists that whatever conduct CSIS gets up to internationally will be authorized by a Federal Court warrant, and this makes for more robust accountability than exists among Five Eye foreign intelligence services.  

The only circumstance in which the bill clearly requires a warrant is when CSIS “will” contravene a Charter right or be contrary to other Canadian law. As with its existing surveillance powers, a substantial amount of CSIS activity will fall short of the warrant “trigger” and will never come to a judge.  This is especially true in international operations: places where Canadian law and the Charter generally don’t reach and so are irrelevant as a trigger.  Put another way: Canadian law doesn't apply overseas.  So it can't be violated.  So no warrant is ever required. 

So to summarize what I have been told by colleagues who teach and write on security law in our closest allies:

No, Canada's Five Eyes allies do not have domestic intelligence services that do disruption analogous to the powers in C-51.  And no, we won't have more checks and balances for CSIS foreign operations, because the warrant requirement will rarely apply to foreign operations.

If all this is correct, that means Canada is prepared to let its domestic intelligence service act beyond the law in a manner that has no precedent among our closest allies. 

So exactly how are we playing catch up to "close democratic allies have had similar mandates and powers for many years"?  It looks like we are leading the charge in eroding the rule of law.

 

 

Bill C-51: Does it Reach Protest and Civil Disobedience?

In the Bill C-51 debate, some focus has now turned to whether the powers in the bill will target protest and advocacy of various sorts, including by environmental or Aboriginal groups (or indeed protest by any cause, from gun owners to those unhappy about student tuition).  For ease of reference, I shall call these "democratic protest movements".

Could the New Law Reach Democratic Protest Movements?

First point: what we are talking about here is the new information sharing powers on security grounds found in C-51.  And we are talking about CSIS's mandate under its existing Act, to which the new "kinetic" powers (or as the government brands it, "disruption") would be glued.

We are not talking about terrorist activity, for reasons I shall outline.  Nothing in the bill brands democratic protest movements "terrorists".  So no one can reasonably make that assertion.

But there is much in the bill that could wrap democratic protest movements into the orbit of "security" concerns.

For the details on the info sharing and CSIS powers, see backgrounder #3 and #2 posted here.  The short version: under C-51, the government will be able to share internally (and potentially externally) a lot more information about things that "undermine the security of Canada".  That concept is defined extremely broadly -- more broadly than any other national security concept in Canadian law.  Yes, it can reach the subject matter of many democratic protest movements.  I shall call it the "undermine" definition.

There is, however, an exclusion: the "undermine" definition does not reach "lawful" advocacy, protest or artistic expression. Everything then hinges on what is meant by "lawful".  I will return to this in a moment.

With the CSIS powers, the issue is whether the Service can investigate (and with the new Bill C-51) powers possibly disrupt, democratic protest movements.  Here, the Service's remit is much (much, much) narrower than the "undermine" definition.  Please, do not confuse (as many have), the Service's mandate with the "undermine" definition.

The Service's key mandate is instead defined in s.2 of its own Act -- the CSIS Act.  It is labelled "threats to the security of Canada".  I shall call this the "threats" definition. Almost all of the "threats" definition involve acts of violence.  The one exception (and the one that creates the most concern) is this one: "foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive ...". (It need not involve an actual threat to a person, although that possibility is added as an "or" after the list I have cited).

As we discuss in backgrounder #2, CSIS's review body (SIRC) was very unhappy with this concept in 1989, when it reviewed the CSIS Act and made recommendations for its amendment.  It contains too much "eye of the beholder" ambiguity.  SIRC critiqued this ambiguity, especially the use of "clandestine" (merely secret) and "detrimental to the interests of Canada" (whatever the government says it is). 

If you apply this ambiguity to "democratic protest movements", it is possible that the "threats" definition covers this sort of scenario: "a foreign environmental foundation funding a Canadian environmental group’s secret efforts to plan a protest (done without proper permits) in opposition to the Keystone Pipeline Project, a project that the government of Canada sees as a priority and strongly in 'the interests of Canada'."

Notice the reference to "without permits".  This is added because, like the "undermine" definition, the CSIS "threats" definition includes an exception for "lawful" activities.  (Although there is also a further provisio that these lawful activities can't be carried out in conjunction with any of the listed threats. So you could make the argument that since my environmental group scenario meets the definition of a foreign funded secret activity detrimental to the interests of Canada, it does not benefit from the "lawful" carve out anyway).

How Useful is the "Lawful" Protest Exemption?

But setting aside the painfully circular nature of many of these definitions, it should be clear that "lawful" is an important term.  And so what does it mean?  Reasonably, it means "fully compliant with the law".  And more than simply compliance with the criminal law.  It means full compliance with regulatory and municipal rules, and labour law, including in relation to strikes (no wildcat strikes) or protests (no protests without city permits -- think the Occupy Movement).

I am not making this up.  This is exactly the same debate we had in 2001, with the original Antiterrorism Act.  That Act introduced a definition of "terrorist activity".  For one aspect of that definition (serious interference with an essential service), there was an exclusion for "lawful" protest.  Concern was expressed (widely) that this reference to "lawful" meant that wildcat strikes or protests without permits that implicated "essential services" might be branded "terrorist activity".

And so the government dropped "lawful" as the precondition to protests. 

The Criminal Code provision now reads (s.81.01(1)(b)(2)(E)): "causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C)" [that is, real physical injury].

Why did the government drop "lawful" as a precodition?  Here's then Justice Minister McLellan in Parliament:

I move on now to the text of Bill C-36 itself. It is my intention to explain some of the amendments we are proposing this afternoon for consideration by this committee. These amendments are being proposed in order to improve and clarify the legislation. Again I would like to emphasize that much of what we are proposing reflects the comments and concerns that have been put forward by members of this committee, members of the Senate Special Committee on Anti-terrorism, and witnesses who have appeared before this committee.

Let me begin with the definition of terrorist activity. As this definition is a key element of the bill and the term is used in many of the bill's other provisions, no one should be surprised at the level of detailed scrutiny that has been paid to this element. One of the main concerns that has been expressed relates to the exclusion of “lawful advocacy, protest, dissent or stoppage of work” from the scope of the definition. It has always been the government's intent that lawful, democratic dissent and advocacy be protected and excluded from the definition. Some have questioned whether, because of the use of the word lawful, the definition might be construed and interpreted in such a manner that activities of this type would include unlawful activities, such as assault, trespass, and minor property damage, that might amount to terrorism. We have further examined this provision, and we agree that the provision could be misinterpreted.

Therefore, the government will propose removing the word lawful. I think this was a suggestion made by a number of people at this committee, including Professor Patrick Monahan, when he appeared here or before the Senate committee. I do, however, want to underscore that this would not have the effect of making otherwise unlawful protests lawful. What we're trying to do here is ensure that for example, with the illegal strike that takes as part of its form a demonstration in the streets—and this is an example that has been used by some in the trade union movement—even though that demonstration or the strike itself may be illegal, nobody for a minute assumes it is caught up within the definition of terrorist activity.

So we believe that by taking out the modifier “lawful”, we will clarify the intent of the government and reassure those who might otherwise be concerned that unlawful activity that falls well short of terrorist activity would ever be caught by this legislation. By taking out the term lawful, we believe we are clarifying that this specific exclusion from the definition of terrorist activity applies whether or not the advocacy, protest, dissent, or stoppage of work is lawful. What is important is whether the activities meet the high standard of the definition of terrorist activity, not whether the particular activity is lawful or not under some other law.

For similar reasons, we will be proposing other minor amendments to the definition to clarify that terrorist activity requires the commission of harmful conduct and intention alone does not suffice. We also propose to clarify that the illegal acts of a few cannot be construed to taint the legitimacy of other protesters.

And that is why there is no serious prospect that peaceful democratic protest movements are "terrorist activity" in our law. 

Implications

Violating regulatory or muncipal rules is bad.  People should be fined, and possibly prosecuted.  That is why we have police, and open, transparent courts, with due process and appeal rights.

But the question before Parliament now is whether peaceful democratic protest movements should be a security issue, handled covertly, when, e.g., they don't have the right muncipal permits for their protests.  And specifically, should such a movement fall within the ambit of the new "undermine" definition, or the expanded CSIS powers under the existing "threat" definition. 

Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier "lawful" in its exceptions, it does so with eyes wide open.  It really does mean to include, e.g., "illegal strike[s] that takes as part of its form a demonstration in the streets—and this is an example that has been used by some in the trade union movement" within its "undermine the security of Canada" concept in the information sharing rules. 

And it is comfortable with the idea that, if other elements of the "threat" definition are met (e.g., as with the Keystone hypothetical above), democratic protest movements with tactics that do not square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.

I take no view on whether CSIS would ever have the resources or the complete lack of internal governance checks and balances to actually proceed in this manner.  That is not my point.  My point is this: when we craft national security law, we craft it to deter bad judgment.  We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment.  Very few governments are perfect.  And even if you think this one is, what about the next one?

Bill C-51: CSIS Powers and when warrants will be required

Please treat this entry as "rolling" addendum to the detailed backgrounder document that Roach and I have posted on the proposed bill C-51 CSIS powers.

There seems to be considerable uncertainty in public discussions as to when CSIS will need a warrant to exercise its proposed s.12.1 "measures" (what we call 'kinetic' powers).  There is an assumption that it will need a warrant whenever it deploys a s.12.1 measure. 

Roach and I do not believe this to be the case based on a simple reading of the Act, and based on past practice in relation to CSIS's existing powers.  As we write in our backgrounder:

We return to the warrant issue below.  Here, however, we note that the question of “reasonable and proportional” will be decided unilaterally within government (and CSIS) whenever a measure falls short of violating the law or the Charter.  The government need only seek a warrant under new s.21.1 where it has “reasonable grounds” to believe it is required.  Section 12.1(3) only requires such a warrant where “measures” “will” (not “may”) contravene a Charter right or Canadian law.  Other measures that do not go this far presumptively do not require a judicial warrant, and the only oversight in this instance will be internal, executive branch controls.

If the government wishes a warrant to be required for every measure under s.12.1 it will need to modify its language to ensure make this intent very clear.  Otherwise, the pattern will simply reflect practice with existing CSIS security intelligence investigations under existing s.12. 

Under section 12 of its existing statute, CSIS is to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada...”  It simply is not the case that every investigation must be authorized by warrant.  Under section 21, CSIS seeks a warrant from the Federal Court where it “believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada”.  The language, in other words, mimics that in the C-51, as applied now to the new kinetic powers in s.12.1 and the new warrant provisions in s.21.1.

In the existing s.12/s.21 context, the "reasonable grounds to believe" is triggered when the investigative methods trench on a reasonable expectation of privacy, and thus would be an unreasonable search under s.8 of the Charter absent a warrant.  That is the usual trigger under s.21 for getting a warrant.

This conventional understanding of "trigger" (aka reasonable grounds to believe) needs amplification in the new bill, because this is a new sort of warrant regime going well beyond search warrants/authorizations (and not governed by the specific arrest warrant rules under, e.g., Criminal Code).  We just can't fall back on everyone's understanding of how past warrant systems have always worked in deciding when someone should have a "reasonable grounds to believe".

So new s.12.1(3) specifies exactly when a warrant would be required for kinetic measures: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1".  This translates, in my view, into "reasonable grounds to believe" a warrant is required under s.21.1 = where the Service will violate Canadian law or any of the rights in the Charter.

Again, I don't see any other way to interpret the awkward construction in the CSIS Act, especially given the existing practice in relation to regular s.21 search/surveillance warrants.

And so again, if the government really means that "no measures of any sort will be taken unless there is a judicial warrant" they need to put that right into the Act and recraft s.12.1(3) to read something like: "The Service shall not take measures to reduce a threat to the security of Canada ..., unless the Service is authorized to take them by a warrant issued under section 21.1".

(This would also have the effect of eliminating even the hint that the statute is inviting a Court to authorize a Charter breach, something to which Kent and I object at great length in our backgrounder as totally contrary to foundational understandings of public law.  So talk about curing two problems with the deletion of simply a subclause.)

By the way, Roach and I have posted an unofficial consolidated version of the CSIS Act, as it would look at Bill C-51 (and Bill C-44).

 

 

Bill C-51 Backgrounder #2: Extraordinary New CSIS Powers

Kent Roach and I have now posted our new backgrounder on bill C-51's affect on the Canadian Security and Intelligence Service (CSIS).  If bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada”. Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.

Our background paper has two primary sections. In part I, we lay the factual foundation, describing what Bill C-51 (and the earlier Bill C-44, now before the Senate) would do to CSIS’s powers. We raise legal doubts about these new powers, focusing first on concerns about the scope of the new powers and second on the Federal Court warrant regime. We also briefly examine the question of CSIS accountability. Here, we raise (but do not address in full) broader questions of accountability that will figure prominently in a separate paper on this topic.

In part 2, we name and briefly discuss a number of administration of justice and operational quandaries we see as possibly arising in relation to the new powers.

To read our full analysis, visit the download site at SSRN (Social Science Research Network).  (We have made this paper immediately available for download — the watermarked note on the SSRN page will appear during the period in which SSRN catalogues our uploaded file into its holdings.)

For ease of reference, you may also find useful to review our consolidated version of the CSIS Act, incorporating bill C-44 and bill C-51 amendments.

All of our backgrounders are archived at an index site, http://www.antiterrorlaw.ca.