Canada’s spies face yet another rebuke over failure to keep judges informed

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Canada’s two main spy agencies were rebuked by the Federal Court on Tuesday for failing to keep judges informed on how they handle Canadians’ identifying information.

The court ruling is another in a line of decisions suggesting the Canadian Security Intelligence Service (CSIS) had again failed its “duty of candour” to be upfront with judges who approve intrusive surveillance warrants.

“CSIS’s failure to live up to its obligation in this regard appears to have been an institutional failing, rather than a failing of any particular individual or individuals,” wrote Paul Crampton, chief justice of the Federal Court, in the ruling.

“This failing goes to the heart of CSIS’s relationship with the court. It is a matter of institutional trust. It is incumbent upon CSIS to continue its recent efforts to do better.”

At issue is the disclosure of identifying information about Canadians given to CSIS by the Communications Security Establishment (CSE), Canada’s electronic intelligence agency. The court confirmed the findings by a national security review body that CSE disclosed “identifying” information to CSIS contrary to restrictions imposed by the Federal Court, which grants CSIS warrants for intelligence gathering.

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Put differently, CSIS was receiving identifying personal information about Canadians, failed to inform the Federal Court, and only fessed up after the National Security and Intelligence Review Agency (NSIRA) flagged the issue.

According to the ruling, CSIS identified 159 instances of violating warrant conditions when it came to Canadians’ identifying information between April 2021 and June 2022.

“The evidence adduced in this proceeding corroborates NSIRA’s finding that CSE disclosed (identifying information) collected pursuant to (court warrants) in a manner that contradicts key principles previously outlined to the court by CSIS,” Crampton’s ruling read.

CSE is responsible for collecting foreign intelligence, conducting “active” and “defensive” cyber operations, and safeguarding key federal networks. It is prohibited from turning its sophisticated electronic spying tools against Canadians or people in Canada.

But it does “incidentally” collect intelligence on Canadian actors in the course of its other activities. The agency can also field requests from other government and intelligence agencies, including CSIS, to assist in their own lawfully approved mandates in what are known as Section 16 warrants.

The court pointed out that in Section 16 warrants, CSIS “is prohibited from collecting information or intelligence relating to the capabilities, intentions or activities of Canadians, except insofar as such information may be incidentally collected through the exercise of warranted powers against non-Canadians.”

The court gave the example of CSIS intercepting communications between a foreign target and a Canadian that “would be incidental as it relates to a Canadian.”

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Despite CSIS knowing that the review body was probing how it received identifying information about Canadians, the agency did not inform the court — which continued to approve CSIS warrants — until the review was complete.

“Despite having provided past assurances to the court in this regard, CSIS has drawn such information to the attention of the court well after it ought to have done so, on more than one occasion. In the meantime, the court continued to issue warrants, unaware of important information that was relevant to its consideration of those warrants,” Crampton wrote.

“Once again, this is a matter of institutional trust.”

CSIS and CSE did not immediately respond to Global’s request for comment Tuesday morning.

It is not the first time CSIS has been found to breach its “duty of candor” with the Federal Court.

In 2016, the court slapped down the agency for failing to inform it about the agency’s big data operations, which then-CSIS director Michel Coulombe admitted should have been raised with the court earlier. Coulombe called it a “significant omission,” but noted the agency did not deliberately withhold information from federal judges.

“CSIS recognizes the importance of maintaining public trust and confidence in its activities. CSIS takes very seriously the privacy considerations related to its work, and it is committed to ensuring that its activities are in compliance with all legislation and Ministerial Direction,” Coulombe wrote in a statement at the time.

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The court also called attention to NSIRA’s finding that CSE’s handling of Canadian identifying information deviated from warrant conditions, particularly when it came to Canadian public officials and “other sensitive groups.”

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