Speaking Notes (February 2018)
(Posted with permission)
“Caught between the Scylla and Charybdis…
- Sting, “Wrapped Around Your Finger”
What I’ve been asked to do is step back and imagine how intelligence intersects with evidence, producing swords and shields in Canadian law.
Let me start with two, high-level observations, providing a working definition of “evidence” and of “intelligence”. First, evidence is legally-cognizable information material to the exercise of law enforcement powers and judicial decision-making. Intelligence, in comparison, is a more fluid category of information, designed to “extract certainty from uncertainty and to facilitate coherent decision in an incoherent environment.”
Intelligence may include evidence, but it will also include information that is not evidence. There are two obvious reasons for this fact.
First, intelligence may cover matters that cannot be the subject matter of a legal proceeding, and therefore there need never be consideration of its evidential value. I would hazard that this is the traditional view of intelligence.
But second, increasingly, there are instances where the information collected as intelligence is probative of matters amenable to legal proceedings, but other things stand in the way of it being evidence.
For one thing, “intelligence” is a diffuse concept that can sit poorly with the concept of “evidence”. As the Ontario Court of Appeal noted, discussing intelligence supplied by foreign services, intelligence is often “unsourced, uncircumstanced,” and its provenance “unknown”.[i] But not always.
And so I will focus mostly on this issue of how different sorts of intelligence overlay the concept of evidence and produce intelligence-to-evidence dilemmas.
Intelligence-to-Evidence, or I2E, is the inelegant phrase we use to describe several discrete types of issues. This first is the movement of intelligence procured by intelligence services to police, to support law enforcement investigations. I shall call this the actionable-intelligence issue.
Ample actionable-intelligence is an ingredient of successful security – a point made in the 2010 Air India inquiry, by the 9/11 commission and recently affirmed in the UK context by David Anderson’s study of security services’ performance in relation to the 2017 terror attacks in that country.
But actionable-intelligence sharing is closely linked to a second, closely-related component of I2E: something that I shall call the evidentiary-intelligence issue. And evidentiary-intelligence has two aspects. This first I will call the evidentiary-intelligence sword. The evidentiary-intelligence sword problem relates to the use of intelligence in legal proceedings, to justify state action. The second, much better-canvassed issue in Canada is the evidentiary-intelligence shield problem. And here, I am talking about legal tools used to block disclosure of intelligence in court proceedings.
Typology of Intelligence
Before exploring this triumvirate of issues more fully, though, I need to propose a more detailed breakdown of intelligence.
1. Direct Surveillance or Raw Intelligence
Some raw intelligence should be easily cognizable as evidence, in principle. Communications metadata collected under a CSIS warrant should, in principle, be no different than that obtained by police under a transmission data order.
Still, even conventionally-collected intelligence may be difficult to use as evidence, not because of its nature but rather because of what its disclosure or deployment in a legal proceeding would do to the sources, means and methods used to collect it.
A second use issue may stem from the complicated provenance of some raw intelligence. For example, raw intelligence may be secured from the battlefield in Syria or Iraq. That information may be relevant and material to the participation of an accused in Daesh, as it has been in the UK. But use of records acquired through unorthodox intelligence channels raises issues of reliability, and especially concerns about whether they are genuine or not.
2. Confidential Source Intelligence
Intelligence may be procured from confidential sources, including informants. Intelligence services balk at sources appearing in court and so some legal proceedings permit indirect use of confidential source intelligence.
In the immigration security certificate context, CSIS has used information acquired through confidential sources, communicated through the proxy of an intelligence officer. Even so, the Federal Court has affirmed it (and special advocates) must nevertheless be able “to effectively test the credibility and reliability of that information” and source.[ii]
3. Processed Analytical Intelligence
Some intelligence stems from the application of analytical judgment. An intelligence report may not include raw intercepts, but rather summaries of them. Or it may piece together different sources of raw information to draw intelligence conclusions.
Whether with primary materials referenced or conclusions left to stand on their own and omitting these primary sources, analytical workproduct of this sort may be very hard to use as evidence of the facts it asserts. It necessarily raises concerns about probative value, opinion evidence and hearsay.
This is especially true if the processed intelligence amounts to stacked hearsay: a report summarizing information supplied in other, shared reports (especially by another service), that in turn summarize information supplied in other reports, and so on.
Use of this sort of information is permissible in some legal proceedings. For example, the affidavits sworn to obtain both CSIS and Criminal Code warrants may include hearsay,[iii] including intelligence-based allegations.[iv]
Hearsay may also be used in immigration security certificate proceedings, if the Federal Court judge regards it as “reliable and appropriate”.[v] But even in administrative proceedings, hearsay may diminish the weight given to this processed analytical intelligence, and raise questions about procedural fairness.[vi]
4. Torture Intelligence
Whether in raw or processed form, it is not possible to use as evidence in any proceeding over which Parliament has jurisdiction “any statement obtained as a result” of torture criminalized in section 269.1 of the Criminal Code.[vii] The Charter, international law and ministerial directions issued to CSIS and other security and intelligence services also preclude such use.
5. Caveated Intelligence
Intelligence shared between services include caveats, limiting the use to which the shared intelligence can be put. Honouring these caveats often means declining to disclose it, including disclose it in legal proceedings. Caveats are not a legal rule, but are an essential intelligence practice, and therefore are frequently at issue in evidentiary-intelligence shield disputes.
Caveats are especially important as between foreign partners, because of the risk that failure to honour a caveat will jeopardize future information-sharing.
All this brings me to the practical I2E dilemmas. The short version: CSIS is acutely concerned that disclosure in judicial proceedings of its intelligence will prejudice its sources, means and methods and impair its intelligence-sharing relationship with foreign partners. The government responds in three manners, two legal and one operational.
1. Legal Swords in Closed Courts
As suggested above, intelligence may be used as evidence in special, closed-court proceedings. And that list may expand: the government has proposed the use of classified information in closed civil proceedings, modelled on the UK system devised in the Justice and Security Act, 2013.
2. Legal Shields in Open Courts
Legally, the evidentiary-intelligence shield problem drives special procedures used to protect intelligence from disclosure in legal proceedings, most notably section 38 of the Canada Evidence Act. Section 38 questions concern sensitive intelligence that might be subject to disclosure in proceedings, if not for successful invocation of this national security privilege.
3. Operational Shields
Operationally, the evidentiary-intelligence shield issue provokes complicated choreography between police and CSIS, designed to minimize the prospect that CSIS will be subjected to full Stinchcombe disclosure in any trial, and/or will need to resort to the Canada Evidence Act. To this end, CSIS stays at arm’s length from police investigations, taking advantage of O’Connor third-party status rules. It also meters out the intelligence it shares with police, using carefully-crafted disclosure and advisory letters. This minimizes disclosure risk, but at the cost of close inter-agency collaboration and potentially nimble responses to terrorism risks.
In this manner, evidentiary-intelligence shield problems are in acute tension with the needs of actionable intelligence sharing. They reinforce a relationship between police and CSIS that strives to maintain investigative arm’s-length, dependent on separate, parallel investigations touching gently through deconfliction protocols.
This is dangerous security. Kent Roach at the University of Toronto and I have argued that safeguards provoked by evidentiary-intelligence shield concerns are suboptimal in terms of ensuring actionable-intelligence sharing, and therefore public safety.
One response, detailed in a forthcoming paper by Leah West Sherriff, is to minimize the amount of intelligence that needs to be shielded. In its consultation document, the government proposed codifying an O’Connor process for a CSIS third party status. The would provide legislative certainty and predictability. But of course, it can only be done constitutionally if CSIS remains a third party. And so, the effect would be to entrench the parallel investigation, with its consequences for actionable-intelligence sharing.
Maintaining third-party status becomes less essential if CSIS is more comfortable with disclosure. And so on the operational side, in my paper, I have pointed to MI5’s practice in the United Kingdom to urge CSIS should be collecting intelligence to “evidential standards” in counter-terrorism investigations.
The core idea behind “collection to evidential standards” is not to convert CSIS into the police, whose purpose becomes law enforcement. “Collection to evidential standards” should instead be regarded as short-hand for “collection of intelligence in a manner that facilitates actionable-intelligence sharing and minimizes reliance on evidentiary-intelligence shields”.
I am engaged in a slow motion thought experiment about what this might mean in practice, one that is terribly disconnected from the real world because I have no access to classified information. And I have also started working through a list of more particular I2E solutions responsive to different policy challenges in a longer paper.
For my purposes today, I shall end my initial remarks with the simple observations: collecting to evidential standards obliges careful, forward-thinking choreography so that pursuing intelligence objectives does not end up trenching on the evidential prospects in the case. That is an organizational challenge, and the degree to which it is being met is something I cannot judge from the outside. My sense is, however, that most recognize it as an unresolved challenge.
 Richard Betts, Enemies of Intelligence: Knowledge and Power in American National Security (Columbia, NY: Columbia University Press, 2007) at 30.
[i] France v. Diab, 2014 ONCA 374 at para. 205.
[ii] Harkat (Re), 2009 FC 1050 at para 48. See also Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 at para. 88 (“The Minister has no obligation to produce CSIS human sources as witnesses, although the failure to do so may weaken the probative value of his evidence”) and para. 90 (noting that “the designated judge's weighing of the relevant [source] evidence took into account the fact that it was hearsay”).
[iii] See Eccles v Bourque,  2 SCR 739 at 746 (“That this information was hearsay does not exclude it from establishing probable cause”, in an arrest context); R. v. Morris (1999), 134 C.C.C. (3d) 539 at 549 (NS CA) (“Hearsay statements of an informant can provide reasonable and probable grounds to justify a search.”; R. v. Philpott, 2002 CanLII 25164 (ON SC) at para. 40 (“The [warrant] issuing court may consider hearsay evidence obtained by the affiant from other officers or informants.”).
[iv] For instance, the CSIS affidavit sworn as Federal Court file CSIS 15-12 (sworn in relation to Raed Jasser) specifies at para 6: “The information in this affidavit has been conveyed to me by employees of the Service who are, or were, involved in the Service’s investigation of international Islamist terrorism and through a review of relevant records maintained by the Service. The information was obtained through various sources including government agencies, open information, as well as [redacted] associated with international Islamist terrorism.” (The affidavit is supported by exhibits, fully redacted.) Likewise, the affidavit PPSC Number 1-12-073 (concerning Raed Jaser) relies on information conveyed in, e.g., letters from the FBI.
[v] IRPA, s. 83(1)(h). Almrei (Re), 2009 FC 3 at para. 53 (This section “permits the reception of hearsay evidence such as that which may be provided by a confidential informant or a foreign intelligence service.”). See also Harkat, 2014 SCC 37 at para. 75.
[vi] See, eg, Harkat, 2014 SCC 37 at paras 76 and 235 (suggesting judges are able under the security certificate process to “exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person.”); Mahjoub (Re), 2013 FC 1097 at para. 130 et seq. (concluding that hearsay evidence may be admissible in security certificates, but must be tested for reliability and appropriateness); Zundel (Re), 2004 CF 1308 at para. 25 (indicating in a security certificate context that “hearsay evidence is given less weight”).
[vii] Criminal Code, s.269.1(4). This requirement is supplemented in the immigration security certificate context: “reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.” IRPA, s. 83(1.1).