By Matthew Behrens
Since the 1984 creation of
Canada’s spy agency, the Canadian Security Intelligence Service (CSIS),
headlines have documented a history of abuse of power, racial and religious
profiling, surveillance and disruption of Indigenous, labour, environmental, anti-war
and student organizing, exaggerated threat assessments meant to promote bigger
budgets, and complicity in torture.
Targeted communities – Indigenous people, refugees, and Muslims,
to name only a few – can testify to such illegality But their voices are
always discounted by systemic white supremacy and state security paranoia
underlying weak-kneed institutions tasked with keeping a limited rein on CSIS.
Indeed, Parliamentary committees, review agencies, academic “experts”, and the
Federal Court have always provided CSIS with the tender care and benefit of the
doubt more fitting to a senior trying to negotiate a crosswalk than an agency
whose actions cause considerable harm and generate widespread fear.
But a starkly worded, formerly “Top Secret” decision
released by Federal Court Judge Patrick Gleeson last week reveals that even the
denizens of the nominally CSIS-rubber-stamping Court have had enough with being
lied to in secret warrant application hearings as part of investigations into
“Islamist Terrorism” and “OTHER ENTITIES AND NAMES REDACTED FOR REASONS OF
NATIONAL SECURITY.”
In angry language, Gleeson attacked both the Justice Department
and CSIS for “a degree of
institutional disregard for—or, at the very least, a cavalier institutional
approach to—the duty of candour and regrettably the rule of law.” The decision
notes that CSIS – in the name of fighting alleged
“terrorism” – has engaged in illegal activities, including “provision of money”
and “provision of personal property” to a person “known to be facilitating or
carrying out terrorist activity.”
Gleesen asked that “a comprehensive external review be initiated
to fully identify systemic, governance and cultural shortcomings and failures
that resulted in the Canadian Security Intelligence Service engaging in
operational activity that it has conceded was illegal and the resultant breach
of candour.” The latter phrase references the fact that CSIS lawyers lied in
closed hearings, venues where they have an extra special “duty of utmost good faith in the
representations it makes to the court.” As Judge Richard Mosely wrote in a prior state security case, the
Court should not “be kept in the dark about matters it may have reason to be
concerned about if it was made aware of them.”
A History of Illegality
CSIS is not the only organization under fire. Gleeson is equally displeased
with Justice Department lawyers, noting “Service advisors had known for years
that the Service was gathering information used for warrant applications
through activities that were on their face illegal.” Despite years of legal
opinions and discussions going back and forth between the two bodies,
“experienced [Justice Department] counsel was apparently unaware that
illegality was an issue in April 2018. This demonstrates not only a lack of
individual awareness but also a severe institutional failing.”
The first half of Gleeson’s 150-page decision outlines a byzantine
bureaucratic odyssey encompassing the Justice Department, its National Security
Litigation and Advisory Group (NSLAG), various ministers and deputy ministers,
and the scandal-plagued CSIS. It’s an important history lesson that invokes the
1981 McDonald Commission Report that documented endless years of illegal
activity undertaken by the RCMP Security Service and concluded: “Members of the security
organization must not be permitted to break the law in the name of national
security.”
State security culture has always reeked of
entitlement and contempt both for democracy and the laws of the state it is
allegedly “protecting” from “danger.” Over three decades’ worth of annual
reports from the Security Intelligence Review Committee (SIRC, the former CSIS
review body), as well as Federal Court decisions, are full of repeated cautions,
styled almost like grade-four report card speak, that CSIS must try really,
really, really, hard to act within the confines of the law.
The Federal Court’s frustration with CSIS
illegality has been building for over a decade. Changes in judicial outlook
began as a result of years of grass roots political organizing and outstanding
legal work by a small, dedicated team of lawyers to expose the dishonesty and
illegality behind CSIS operations. This context included security certificate
proceedings (aka the Secret Trial Five), ongoing security inadmissibility
proceedings relying on overly broad interpretations of what allegedly
constituted state security threats, judicial inquiries into Canadian complicity
in the torture of four Canadian citizens, and the Supreme Court finding that
CSIS was complicit in the torture of Omar Khadr at Guantanamo Bay.
Indeed, it reached a point where, in the Federal
Court’s Associated
Data
case (which dealt with CSIS’s illegal retention of massive amounts of data and
lying about it to the Court), an exasperated judge asked what it would take for
CSIS to seriously address concerns about CSIS dishonesty: “I wonder what it
will 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?”
In last week’s decision, Judge Gleeson sighs: “I am left with the
same question.”
Open Contempt of the Law
Gleeson outlines a years-long
series of Ministerial Directions gently nudging CSIS about respect for the rule
of law. One such direction was even issued by Stephen Harper’s last Public
Safety Minister in 2015, singling out as a fundamental operational principle
that “the rule of law must be observed.”
This followed on years of
back-and-forth correspondence between the Justice Department and CSIS after the
Chretien regime’s implementation of the 2001 Anti-terrorism Act. At the time,
Gleeson notes, a series of sketchy legal opinions from the Justice Department
concluded that “Crown immunity shields the Service’s human sources and their
handlers from criminal responsibility.” But they also cautioned that “Crown
immunity should not be seen as a panacea for potentially illegal actions in
furtherance of the Service’s mandate.” Indeed, a 2005 opinion said there was
little academic or judicial support for Crown immunity. The issue continued to
be discussed, and a 2013 opinion again concluded that CSIS should not rely on
Crown immunity, recommending legislative changes if CSIS had a problem with
that.
In 2016, the Security
Intelligence Review Committee (SIRC) recommended that CSIS seek clarification
“on whether Crown immunity afforded CSIS employees and human sources protection
from the Criminal Code’s anti-terrorism offences.” Gleeson notes that during
the development of the 2015 Ministerial Direction on rule of law, CSIS “sought
the inclusion of language that would recognize a Crown immunity exception to
the requirement that the Service and its human sources comply with
the law.” In response to this request, another opinion from the Justice Department
unequivocally found that “The CSIS Act now refutes
any possible argument that activities contravening Canadian law can
legitimately be contemplated as ‘effecting’ Crown purposes whether they are
carried out by sources or by CSIS officials or employees.”
Gleeson notes his frustration
that neither CSIS nor NSLAG bothered to provide the SIRC (which earlier sought
clarification on this issue) with a copy of the unequivocal opinion. In
October, 2015, the NSLAG provided further advice that contradicted its own
Department’s earlier “unequivocal opinion,” telling CSIS it “may rely” on crown
immunity in its acts of law-breaking and dishonesty. Even though the NSLAG’s
senior lawyer felt this opinion was problematic, that advice was directly
delivered to CSIS.
In 2016, the Justice Department
hired high-profile lawyer Murray Segal to produce a report on best practices
for these “ex parte” hearings (where only one side is heard). After identifying
numerous instances where CSIS lied, he concluded: “in no other context is
counsel’s compliance with the duty of candour more critical to upholding the
rule of law.” As Gleeson notes later in the decision, it’s not just CSIS, but
also senior members of the Justice Department who must comply with the rule of
law. “These individuals must do more than recognize the duty of candour’s
importance: they must identify and implement the institutional structures and
processes necessary to ensure individual and institutional compliance with the
duty.”
Corrosive Effects
Caught once again with their
pants down, it appears that government officials went before the Court with
mealy-mouthed justifications. Gleeson says the Attorney General of Canada
acknowledged the dishonesty, but claimed that lawyers and CSIS “acted in good
faith and tried to uphold the duty.” While the Attorney General argued that
institutional failures prevented CSIS
and Justice Department lawyers “from recognizing the issue of illegality
and raising it with the Court,” Gleeson has none of it, declaring, “This
explanation does not lessen the corrosive effect of the breach on the Court’s
confidence in the Service’s ability to be candid.”
Gleeson’s decision also outlines
a series of events that “reveal the Service’s troubling willingness to
undertake operations in the face of advice to the effect that the CSIS Act did
not authorize the operation. The events also reveal the Department of Justice’s
equally-troubling reluctance to clearly and unequivocally communicate that
certain proposed operational activity was illegal and that the Service lacked
the authority to undertake the activity.”
In 2017, a new Justice Department
opinion was delivered to CSIS, again clearly stating they did not enjoy Crown immunity.
Following a series of high-level meetings, the head of CSIS, while awaiting yet
another opinion on Crown immunity for CSIS law-breaking, ceased operations that
broke the law. Ultimately, the Justice Department
drafted yet another opinion that again concluded CSIS did not enjoy Crown
immunity, but it was never finalized or delivered to CSIS. Judge Gleeson notes
that approvals for law-breaking operations recommenced in March, “operations
that the [January 2017] opinion had concluded were illegal.” CSIS failed to
notify the Justice Department that it was again undertaking illegal operations.
Perhaps CSIS was feeling emboldened with the knowledge that the days of
fretting over such matters of illegality and lying to courts would soon be
coming to an end with new legislation, Bill C-59. Known as the National Security Act, 2017 (which received royal assent in
2019), it explicitly authorized CSIS to break the law.
Indeed, right there in the law is
the language CSIS sought for years: the rubber stamping of illegal activities.
For example, Section 100 of the Act finds that, “No employee is guilty of an
offence under section 368.1 of the Criminal Code if the acts alleged to
constitute the offence were committed by the employee in the course of their
duties and functions and for the sole purpose of establishing or maintaining a covert identity.” More significantly, in a paragraph
that would make George Orwell blush, section 101 states that, “It is in the
public interest to ensure that employees effectively carry out the Service’s
information and intelligence collection duties and functions, including by
engaging in covert activities, in accordance with the rule of law and, to that
end, to expressly recognize in law a limited justification for designated
employees acting in good faith and persons acting under their direction to
commit acts or omissions that would otherwise constitute offences.”
Meanwhile, under
C-59, the Minister of Public Safety is allowed, at least once a year, to come
up with a fresh list of “acts or omissions that would otherwise constitute
offences and that designated employees may be justified in committing or
directing an-other person to commit if the Minister concludes that the
commission of those acts or omissions is reasonable.”
The Court as Jilted Lover
At times,
Gleeson’s decision reads like a jilted lover’s letter, wondering where the love
and trust has gone (and for those interested in psycho-sexual interpretation,
it is worth noting his approvingly quoting from a decision that worries about
any process that might so threaten
the Court that it finds itself “emasculated, and is not really a court at
all.”) Gleeson points out that CSIS continued approving legally questionable operations, even as
the CSIS Director acknowledged that doing so could be perceived as dismissing
the cautions about law-breaking that had already been issued by the Federal
Court. Gleeson notes: “Having approved
operations that were on their face illegal, the Service then collected
information which in turn was put before this Court in support of warrant
applications, without notifying the Court of the likely illegality.”
Again, Gleeson is troubled
when he remarks: “It is difficult to overstate how disturbing
these circumstances are. Operational activity was undertaken in the face of
legal advice to the effect that the activity was not authorized by the CSIS
Act. Reliance was placed on the Crown immunity doctrine despite the Service
having been advised by senior counsel in the context of a revision to the
Ministerial Direction that ‘[b]estowing of Crown immunity on CSIS is not
consistent with the CSIS Act.’ Nonetheless, the Service continued to
rely on Crown immunity, doing so in the face of unambiguous direction from the
Minister of Public Safety and Emergency Preparedness that the ‘Service must
observe the rule of law in discharging its responsibilities.’ And this was done
with the apparent acquiescence of the Department of Justice.”
Of course, anyone familiar with the serious abuses committed by
state agencies (often rubber stamped by the Justice Department and Federal
Court judges) in the years following the 2001 attacks in New York would recall
that such practices are not new. Indeed, finding ways to violate the law have long
been institutionalized by CSIS and the Justice Department A 2011 secret memo outlined how CSIS and the Justice Department had set
up a torture approvals team, using the more hug-like moniker of the
Information Sharing Evaluation Committee. Their task is to decide whether to
act on the fruits of torture and whether to share information that could lead
to the torture of someone else.
While Gleesen’s findings need to be
addressed, there is ultimately a pitiful sense of naivete underlying his
decision. Completely missing from it is an acknowledgement of all the solid documentation that real
human beings suffer because of this institutional disregard for the truth and
the law. Also missing is an understanding that no matter how many times CSIS
gets called on the carpet, no one is ever held accountable. Indeed, because, as
Gleeson says, “these
reasons focus on institutional shortcomings …. I have
purposely avoided the identification of individuals by name in these reasons.”
The Mop-Up Begins
As
someone who does not hear or see the daily violence visited upon so many
vulnerable communities and individuals by CSIS, Gleeson can only take offence
that judges of the Federal Court—overwhelmingly white and privileged – were
lied to by the spies and their lawyers. Unheard are the concerns of a
first-year Muslim student confronted by CSIS agents on campus, the refugee
claimant told he will not win his case unless he spies on his community, or an
Indigenous woman labeled a “security threat” because she resists pipelines that
never received her people’s consent. Instead, like a gatekeeper trying to
preserve the system with some pleasant window dressing, Gleeson concludes that,
“To not seek
out and address the systemic problems that resulted in this breach of candour
will negatively impact upon public confidence and trust in the Service.”
Unfortunately, the Court’s belief that such a result is paramount
is not surprising. That is the exact language CSIS uses. After it was called on
the carpet in 2016 for illegal spying and retention of Canadians’ data, the
head of CSIS issued a statement to employees. Rather than urging them to
support the rule of law and not commit crimes, he said, “we needed to maintain
and enhance the confidence of Canadians and the Court in our institution.”
Again, this is not surprising. When Gleeson hopes to see that “confidence
and trust in the Service as a key national institution is restored and enhanced,”
he fails to question why CSIS is needed, much less explore the wider context of
its abuses. Instead, he buys into the unsubstantiated myth that “The security intelligence function is vital
to the nation’s security.”
Ultimately, this forces the question back into the hands of those of us in the
broader community who see the damage done by CSIS, the RCMP, and other
repressive bodies worthy of defunding and dismantling.
But
if we want to see real change, we must first take on the loyal servants to the
system who have already begun working to help clean up the latest CSIS mess. Indeed,
the largely secret infrastructure set up to allegedly monitor CSIS (including a
state security committee of Parliamentarians and academics who also buy into
the myths) has already begun a review that, in the words of NDP MP Murray
Rankin, will “get to the bottom of this and to make a
report that’s fair and balanced…. What I hope comes out of our review is a
thorough understanding of just what happened.”
But fair and balanced to whom? Certainly not
to those victimized by Canada’s spy agency, who have not been called into this
process. It’s also unclear what a new report will reveal that Gleeson has not
already documented in his lengthy decision, especially in light of the new
legislative immunity that has been granted for CSIS to break the law. Instead
of an external review, a full public inquiry into the crimes of CSIS is a far
more fitting approach, one that should be designed by those who have felt the
full consequences of the agency’s illegal and dishonest practices, as well as
one that questions the assumptions that justify the existence of this dangerous
body in the first place. Anything short of that will leave us stuck where we
are today, with frustrated judges spending years on hearings, wringing their
hands, writing scathing decisions, asking what more can be done, while the
victims of CSIS practices continue to add up.
