The Federal Court has called for a “comprehensive and detailed review” of Canada’s intelligence service after learning it used information that was likely collected illegally to obtain national security warrants.
In a decision Thursday, the court said the Canadian Security Intelligence Service had sought warrants for counter-terrorism investigations without disclosing that some of its information “was likely derived from illegal activities.”
Those activities included thousands of dollars in payments to human sources who were themselves active in terrorism, the court disclosed in the 151-page ruling.
CSIS not only conducted the “high legal risk” operations after being warned by government lawyers it did not enjoy immunity from criminal prosecution, it also did not inform the court, the ruling said.
“The Canadian Security Intelligence Service breached the duty of candour it owed to the court in failing to proactively identify and disclose that it had included in support of warrant applications Case A and Case B information that was likely derived from illegal activities,” the judge wrote.
Public Safety Minister Bill Blair and Justice Minister David Lametti said in a joint statement the government was appealing part of the ruling but accepted the institutional failings it identified.
“We have written to the chair of the National Security and Intelligence Review Agency (NSIRA) to request that they look into the findings and provide recommendations on how to address the concerns raised by the court’s decision and to report on their progress regularly to the National Security and Intelligence Committee of Parliamentarians,” the statement said.
“We have also retained an external advisor, the Honourable Ian Binnie, who will to help with the implementation of NSIRA’s recommendations within Justice Canada, to provide other advice on the provision of advisory and litigation services to clients, and to help ensure both institutions can fulfill their duties to the court when applying for warrants.”
Blair told reporters he believed officials at CSIS and the justice department acted in good faith but were dealing with an “evolving and complex” area of law.
The payments to terrorists and terrorism facilitators, which the court said violated Canada’s anti-terrorism laws, occurred during investigations into Canadian foreign fighters active in “groups associated with extremist interpretations of Islam.”
“Each is identified as having links to other radicalized individuals who have in turn called for attacks against, or are linked to terrorist attack planning, against Western countries,” the court said.
CSIS argued warrants were needed to deal with the threats posed by their possible return to Canada.
But the court disclosed that CSIS had put forward information from sources who received payments although they were “known to be facilitating or carrying out terrorism.”
National security legislation that came into force in June 2019 now gives CSIS immunity to carry out such activities. But the operations in question took place before that and followed a legal opinion that the agency had no immunity.
Upon being advised in January 2017 that it did not benefit from Crown immunity, CSIS initially halted its “high legal risk” operations.
The CSIS director subsequently met with the deputy minister of Justice, who pledged to review the opinion.
The review confirmed that CSIS did not benefit from Crown immunity, but the justice department never informed CSIS, the court said.
In March 2017, CSIS resumed its “high legal risk” operations as if it had immunity. When a new CSIS director took over in May 2017, he claimed to be unaware of the January 2017 legal opinion, the court said.
He approved more than 10 operations involving “potentially illegal activities” until learning of the legal opinion in December 2018, and such operations were suspended, according to the court decision.
The court’s concern was that it was “left in the dark” that the national security warrants it was asked to approve were based partly on information derived from possible illegal activity.
“It is difficult to overstate how disturbing these circumstances are,” the court wrote. “Operational activity was undertaken in the face of legal advice to the effect that the activity was not authorized by the CSIS Act.”
The court called for a review to identify shortcomings that resulted in CSIS “engaging in operational activity that it has conceded was illegal and the resultant breach of candour.”
Responding to the decision, CSIS Director David Vigneault said in a statement that he took it seriously and was committed to ensuring CSIS understood its obligations to the courts.
He said CSIS relied on “human sources who have access to individuals or organizations that pose a threat to our country, and who may put themselves at great risk to protect Canada and Canadian interests.”
“At times, we’re required to pay these sources for information or offer other logistical support, such as providing a cell phone to help them carry out their work,” he said.
He said such activities were “routine, bread and butter practices used by allied intelligence agencies around the world” but acknowledged they could be considered crimes under the anti-terrorism provisions.
“For several years, CSIS relied on the legal doctrine of Crown immunity as a defence from criminal liability when engaging in these activities. However, as outlined in the decision, CSIS’ ability to rely on this defence and the legal advice relating to it evolved and changed over time,” he said.
“In January 2019, CSIS and Justice Canada determined that we could no longer rely on Crown immunity as a defence. As a result, I immediately directed that these activities be suspended until Bill C-59 passed, and we informed the Court and our national security review bodies.”
CSIS has “taken a significant number of concrete actions” to address the issues identified by the court, he said.