By Matthew
Behrens
A few years ago, Canada’s bird
lovers came in for some well-deserved looks of bemusement when many wondered
why their cute little bunchies and canaries kept disappearing every time a cat
was placed inside their birdcages. After all, it was argued, cats were subject
to significant and robust oversight mechanisms such as the Feline Activities
Review Committee, to ensure the birds would be safe from purring predators.
That refusal to recognize the
nature of the beast also infects the ongoing discussions within the “national
security industrial-academic-media complex” about what to do with the fact that
Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), along
with its next-door neighbor, the Communications Security Establishment Canada
(CSEC), continue invading the privacy rights of people at home and abroad and
violating the law (not to mention committing perjury in front of Federal Court
judges and aiding and abetting acts of torture).
The latest round of
hand-wringing arises from a late 2013 Federal Court decision by judge Richard
Mosley. It may be safely assumed that Mosley’s face holds the bull’s eye position
on the CSIS Ottawa office’s well-used dartboard, given he is a no-nonsense,
hard-working member of the judiciary who, unlike almost all of his weak-kneed
colleagues, is not coy when it comes to criticizing the antics of Canada’s
scandal-plagued spy agency. His decision, a warrant application by [NAME
REDACTED], noted that there “was a breach of duty of candour owed by [CSIS] and
their legal advisors to the court,” and that “It is clear that the exercise of
the court’s warrant issuing authority has been used as protective cover for
activities that it has not authorized.”
CSIS Risks
Complicity in Torture
In this instance, CSIS was
granted permission in 2009 to spy on Canadians abroad, but Mosley discovered
that CSIS had, without judicial permission, illegally asked foreign agencies to
spy on Canadians overseas, even though, as Mosley noted, this “carries the risk
of the detention of or other harm to a Canadian person based on that
information. Given the unfortunate history of information sharing with foreign
agencies over the past decade and the reviews conducted by several royal
commissions, there can be no question that the Canadian agencies are aware of
those hazards. It appears to me that they are using the warrants as
authorization to assume those risks.”
The language is fairly
restrained, but in essence, CSIS and its lawyers lied to the court, and “a
decision was made by CSIS officials in consultation with their legal advisors
to strategically omit information” in Federal Court applications “about their
intention to seek the assistance of the foreign partners. As a result, the
court was led to believe that all of the interception activity would take place
in or under the control of Canada.” Mosley also found that in asking foreign
agencies to track Canadians “CSIS and CSEC officials knew…this would involve
the breach of international law by the requested second parties.”
Mosley sighs that an
unspecified number of additional warrants on fresh or renewed applications had
been issued by the court and that “in the majority of these cases, if not all,
CSIS asked CSEC to task their foreign partners [REDACTED, but clearly in
reference to illegal activity.].”
Mosley only came to the conclusion
something was amiss because he is a voracious reader of various reports and,
when he was going over the annual reports of the CSEC Commissioner and the
Security Intelligence Review Committee (SIRC), he realized that he had been
duped. He subsequently called numerous witnesses before him, with one of them,
CSEC’s James Abbott, “candidly” admitting that his evidence in support of the
original warrant application was “‘crafted’ with legal counsel to exclude any
reference” to their plans to use second parties.
A special lawyer, Gordon
Cameron, was appointed to assist the court, and he concluded that the serious
breach by CSIS of the duty of candour to the was exacerbated by the “failure to
acknowledge the lack of candour in this proceeding because it demonstrates that
[CSIS] does not understand its duty when it comes before this Court ex parte.”
In other words, the cat does
not understand it should not eat the birds in the cage, even though the Feline
Activities Review Committee has repeatedly said such consumption violates the
rights of the birds.
Government
Lawyer Advice Breaks the Law
The Deputy Attorney General of
Canada does not fare well in this proceeding either, with Mosley noting that
one of Canada’s most powerful legal practitioners essentially argued “that the Court should
be kept in the dark about matters it may have reason to be concerned about if
it was made aware of them. In the circumstances under consideration that would
include matters relating to the prior history of attempts to have the Court authorize
the collection of security intelligence abroad and the potential implications
of sharing information about Canadian persons with foreign security and
intelligence agencies.” Indeed, Cameron also found that the Attorney General’s
position seems to be that “CSIS can contract out interceptions of Canadians’
communications or accessing Canadians’ information without any warrant or
supervision by this Court."
Of course, the world
of national security can get blurry sometimes, especially since some parts of the
CSIS Act allow spies to break the law. Indeed, Mosley points out, one section
allows CSIS to seek special authority “to engage in investigative methods that
would otherwise constitute a crime or a breach of the Charter guarantee against
unreasonable search and seizure.”
Despite this get-out-of-trouble
free card, Mosley notes later that “There is nothing in the CSIS Act or in its
legislative history, to my knowledge, that suggests that in enacting [the
abovementioned exception] Parliament
granted express legislative authority to CSIS to violate international law and
the sovereignty of foreign nations either directly or indirectly through the
agency of CSEC and the second parties.” Despite this, he notes, “CSIS and CSEC
officials knew, based on the legal advice that they had been given … that [tasking
other parties to monitor Canadians] would involve the breach of international
law by the requested second parties.”
The manner in which the Deputy
Attorney General and CSIS are interpreting the law, Mosley found, is not
consistent with prior Supreme Court decisions and the law itself, and that “CSIS and CSEC
officials are relying on that interpretation at their peril and, as cautioned
by the CSEC Commissioner and SIRC, incurring the risk that targets may be
detained or otherwise harmed as a result of the use of the intercepted
communications by the foreign agencies. Section 12 [of the CSIS Act] does not
authorize the Service and CSEC to incur that risk or shield them from liability,
in my view.”
CSIS: We Never Break the Law
While it is good to
see that word liability arise in such
a decision – and Mosley
firmly stated that CSIS and CSEC cannot justify their activities based on
the issuance of special warrants by the Court – there is no guarantee these
agencies will comply. Indeed, in its daily boilerplate special, CSIS responded to
Mosley by saying everything it does is consistent with “Canadian laws and
values,” and while this may be true given the history of Canadian laws and
values that have justified the kidnapping, torture, and murder of First Nations
children, the rejection of Nazi-era Jewish refugees, the internment of
thousands of Japanese heritage, among countless other violations, it does show
that even in the small world where individuals like Mosley try to hold CSIS to
some kind of lawful standard, it is ultimately impossible to keep them in check.
(Notably, CSIS also quietly admitted in a Senate hearing that they would be
appealing the decision).
Mosley has previously
found CSIS witnesses have failed in their duty of candour to the court. Indeed,
one Toronto man, Hassan Almrei, faced a decade-long nightmare of solitary
confinement and house arrest because a government witness had lied to the court
during a secret hearing, while in the Mohmed Harkat secret trial case (still
ongoing), another federal court judge found that CSIS’s failure to be honest
led to the finding that “it was found to be necessary to repair the
damage done to the administration of justice and to re-establish a climate of
trust and confidence in this proceeding.”
So
what is to be done? Some point to the Security Intelligence Review Committee as
a model that could be expanded to encompass all of Canada’s national security
agencies. Space does not allow reference to the extensive findings of
exaggeration, lack of candour, and other CSIS malfeasance that fill the pages
of the SIRC’s annual reports. But the body has no enforcement power and,
besides, has essentially become an enabler of CSIS. Indeed, as early as
1991, SIRC had settled into its role as a kindly big bother to poor, befuddled
CSIS, noting “Those who have followed the progress of CSIS with interest have seen our
Annual Reports change from being compendiums of direct and implied criticism,
in the early years, to being much more supportive accounts of CSIS’ activities
in recent years…. But our criticisms are
no longer based upon strong and fundamental disagreements with the CSIS view of
the world. [emphasis added] They are far more the results of differences of
opinion regarding the day-to-day
implementation of CSIS policies than, as in the past, our opposition to those
policies themselves.”
By the mid-90s,
SIRC noted “It is our responsibility to
review CSIS’ activities and then to assure the public that we know what CSIS is
doing, that we believe that those activities are necessary, [emphasis added] and
that they are being conducted in an appropriate and legal fashion.”
Useless Oversight in Parliament
Wayne Easter, a Liberal
MP who once signed secret trial security certificates, feels the solution is
his private member’s bill to create a group of National Security
Parliamentarians “permanently bound to secrecy” that will, when necessary, hold
secret meetings to discuss national security and that, while the appropriate
government minister may, if he feels like it, share information with the MPs, he
is also entitled by law to “provide none of the information.” So much for
oversight, even in a secret body. While the committee would produce an annual
report for Parliament, the Prime Minister would be allowed to exclude anything
he felt was contrary to national security.
Ultimately, the
issue is not so much about oversight or review, much as the problem of the
disappearing birds could not be solved by the ministrations of the Feline
Activities Review Committee. Such discussions divert us from focusing on the
nature of the beast: these agencies have historically and continue to play a
repressive role that is wholly contemptuous of democracy and, even at a
conservative level, the rule of law. From their earliest incarnations, they
have targeted as national security threats First
Nations and labour organizers, Quebec nationalists, Communists and
“Communist-sympathizers”, Canadians of Japanese, German, Italian, Irish, and
Ukrainian heritage, Jehovah’s Witnesses and people of Jewish and Muslim faith, the
United and Anglican churches, anti-nuclear campaigners and gays and lesbians,
and Salvadoran, Kurdish, and Tamil refugees, among countless others. In this
context, it is clear who threatens national security in the same way it is
clear who threatens the birds when cats are placed in their cages.
CSIS, CSEC, the RCMP, the Attorney General,
the “Justice” Department, and their brethren will continue to act illegally and
laugh behind the backs of judges, as long as all their minions only ever
receive is a slap on the wrist from the system: a few harsh words from a court
whose decisions are read and digested by few. Until they face time in the dock,
they are unlikely to change their ways.
Even then, though, the
potential for post-crime accountability does little to assist the individual
who has already been tortured, whose privacy has been violated, whose job has
been taken away, whose family cannot get to sleep at night for fear of that
knock on the door.
As things stand, despite a
lengthy record of criminality and human rights violations, these “national
security agencies” continue to enjoy a remarkable degree of respect and
deference from the courts, the Parliament, and “oversight” bodies that always
assume their “best intentions,” with former Supreme Court judge Frank Iacobucci
sadly going so far as to state, in his introduction to a report finding federal
government complicity in the torture of three Canadians, that we should be
“grateful” to such blood-stained bureaucrats.
Perhaps a national referendum on the abolition
of agencies that rely on the creation and sustenance of fear is in order. And maybe
we could throw in a discussion on seriously overhauling the kind of unequal society
that relies so heavily on such repression.
Until then, the best efforts
of the Richard Mosleys and toiling SIRC lawyers will only produce fine words of
outrage about illegal acts by secretive men who, nevertheless, will get up each
day, go to work, get promoted, and, regardless of the number of skeletons in
the birdcage, carry on as before.
