Systemic shortcomings

In 2013, Justice Richard Mosley brought the Canadian Security Intelligence Service and the Department of Justice before the Federal Court for an upbraiding. The service had been running intelligence collection activities outside of Canada — which, Mosley ruled, they did not have the authority to do. Worse yet, they hid from him the extent of the operation.

"The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark," Justice Mosley wrote. He went on: "This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service."

It was a stark warning to the service and their counsel. They owed the court a full accounting for their operations, specifically those authorized by court order.

In 2016, following new revelations published by CSIS' review body, the Federal Court called an en banc​ hearing of the justices to question whether CSIS and the Department of Justice had, again, refused to disclose pertinent information. 

It found that CSIS had been running a metadata collection and retention program dating back to 2006 without fully appraising the court.

"Despite this admission, ten years later, such behaviour remains unacceptable and runs contrary to the interest of justice," Justice Simon Noël wrote, following the ​hearings.

The judge even wondered what it would take "to ensure that such findings are taken seriously. Must a contempt of Court proceeding, with all its related consequences, be necessary in the future?"

His choice of words was prescient. Just last month, it was Justice Patrick Gleeson's turn, following another en banc​ hearing. This time, the issue involved payments by CSIS to people with ties to terrorist organizations — a practice, the court ruled, that was illegal and not covered by Crown immunity. What's more, CSIS failed, yet again, to disclose the totality of the program to the court. Amici curiae Ottawa lawyer Gordon Cameron and Henein Hutchison partner Matthew Gourlay helped the court reach its conclusions.

In finding a third breach of candour — on top of other violations identified by former Conservative senator Hugh Segal, tasked with reviewing CSIS' operations — the court issued yet another warning. CSIS and the Justice Department "must identify and address the causes of the breach to re-establish the Court's trust in their ability to comply with the duty of candour when seeking warrants."

It's been an incredible series of rulings that promise to change CSIS' relationship with the court fundamentally. They could also affect how government agencies obtain judicial authorizations from the court.

The lawyers advising CSIS and its officers know the rules around "Information to Obtain" a warrant well, says Clayton Rice. "It is not something with which they have a passing acquaintance. Justice Mosley is right to be deeply concerned about CSIS' flagrant indifference to its legal obligations in these proceedings."

Rice is a Calgary-based sole practitioner with years of experience dealing with ex parte warrant applications, especially around wiretaps. He points to the Supreme Court of Canada case R. v.​ Araujo ​(cited by Justice Gleeson), which lays out clearly that the need for candour in ITO applications is "very high."

Rice says, given it was the first such case in as many years, "it appears that the 'mismatch' between the Federal Court and CSIS is not that CSIS doesn't understand its obligations to the court, but that it doesn't care." (The court largely sidestepped the question as to whether the failure to disclose was in good faith or not)

Andrew House, who spent five years as chief of staff to then-public safety ministers Stephen Blaney and Vic Toews, now serves as counsel at Fasken. He says that CSIS, in his experience, was "rights-affirming, precise, and if anything, hyper-vigilant about having proper legal authority to carry out its mandate."​  

House recalls CSIS' efforts to convince the government it needed new legislative authority to conduct threat disruption measures, which were later the basis anti-terrorism legislation enacted in 2015. "So the claim that CSIS was cavalier or negligent about the authority required to break the law in certain instances doesn't square with my direct experience with the Service," he says. "It simply wasn't the character or disposition of the place."

And yet, House notes, "we have this stark example to the contrary."

The Federal Court ruling in May strongly recommended that CSIS and the Department undertake a review of how legal advice is given to the service, and how both parties decide to share their activities with the court.

House says there is plenty to fix. "Something was lost in translation between legal formulation, operationalization, and translation back into a form suitable for courtroom use," he says. 

Ottawa has taken steps to prevent another embarrassing ruling, asking the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians to assess and review CSIS' efforts to comply. Former Supreme Court Justice Ian Binnie has also been tapped to port those findings over to the Department of Justice.

For now, the department has been vague about why it failed to disclose CSIS' activities to the court fully.

An internal question and answer sheet, designed to help answer queries from media, asks: "Why did Justice Canada legal counsel not disclose these issues to the Court?" 

"Justice counsel take their role of legal advisor to client government departments and agencies very seriously," the talking points read.

Leah West is a lecturer at the Norman Paterson School of International Affairs, and was a lawyer at CSIS during the period in question. In a recent Intrepid podcas​t, she explained that there​ are vigorous processes in place when CSIS works with the Department to present evidence to the court.

"There is an elemental, and step-by-step approach, to building these affidavits and putting them before the court, and a lot of checks and balances," West says. "That's part of why the court seems to be so frustrated. Through all of that, somehow, the fact that some of the information being relied upon was derived from unlawful activity didn't make its way before decision makers is what they found so shocking." 

The Department of Justice, House says, "has some extremely competent lawyers. I just hope more of them find their way to CSIS and ensure the best possible legal thinking goes into supporting a mandate that is one of the most complex and fraught in government."

Rice says it's not surprising this breach of the state's duty keeps happening, because the consequences are so low. 

"The question always is: Given that a warrant was issued based on a breach of the duty, will the evidence obtained be excluded in a case before the court, or will there be some other remedy of consequence?" he told CBA National. "The rule for the exclusion of evidence at trial in Canada, for example, is weighted substantially in favour of the state. So state agencies that have fallen into a condition of indifference adopt the 'so what?' posture. That is, 'breaching the duty of candour doesn't matter because we'll get to use the evidence anyway.'"

Still, the fact that two justices, writing after en banc ​hearings comprising all or most of the court, have endorsed Justice Mosley's 2013 ruling is significant, Rice says. "The new decision doesn't add much to the controversy. But when these rulings are released by the courts, the reaction to them is not unlike the last data breach you heard about – 'Ho, hum. Here we go again!'"

But the rulings aren't in vain. Rice acknowledges that the Federal Court is dealing with a unique agency, CSIS, that is governed by a unique act. It is also subject to a higher standard of candour. Even so, the rulings can filter to the lower courts. He points to the Alberta ruling in R. v. Jennings, ​which was heard in 2018 at the Court of Queen's Bench. In that case, the RCMP had deployed one of those devices on a suspect without a warrant.

For years, the RCMP has relied on new branches of technology, including Mobile Device Identifiers (sometimes called IMSI Catchers or by the brand name Stingray), but hasn't always disclosed the full extent of their use or capability to the court.

"Without a warrant or a statutory or common law framework, there was no oversight to ensure that the third-party data was destroyed or that the search was appropriately and narrowly defined," the Alberta court wrote in Jennings, citing Justice Noël's 2016 ruling.

House says the CSIS rulings are emblematic of a broader trend when it comes to the courts and national security that goes well beyond just the Service and the Federal Court. "Revelations stemming from events like Snowden have emboldened judges to go where they might not previously have gone," he says. 

"I just hope that in doing so, the Federal Court does not begin to treat CSIS as monolithic or unable to adapt: people change roles; procedures are updated and improved. But at bottom, the mandate to be the first and last line of defence against threats to Canadians is a burden CSIS has generally shouldered very well in the years since its founding."

CSIS and the governments that manage its legal authority have had to navigate a new landscape quite quickly. Bill C-59, for example, remedied the issues around potentially illegal actions at the core of the most recent Federal Court decision. There have also been a number of reviews and oversight reports ordered around CSIS' relationship with the law and the courts, both before the decision was passed down and after.

Given that work, House hits a note of caution. "We may collectively live to regret the harm being done to the reputation of the service — an institution which in my experience is cautious but repeatedly effective: a distinct rarity in the world of security and intelligence globally," he says.

Of course, the service could go a long way towards protecting its reputation, however, by being forthright with the court.