CSIS, Duty of Candour and Immunity for Illegal Activities

MP Salma Zahid (left), ICLMG’s National Coordinator Tim McSorley (centre left), and NCCM’s CEO Stephen Brown (centre right) and Senior Legal Counsel Karine Devost (right) at a press conference introducing Bill C-331. Credit: Jeffrey Jedras.

By Tim McSorley

The Canadian Security Intelligence Service (CSIS) has a troubling history of skirting the law and engaging in unethical and even unlawful behavior in the course of its work, ranging from their complicity in the rendition, detention and torture of Canadians, harassing Muslims at school and in their workplace, surveilling environmental activists, or misleading the courts. Recently, there have been key revelations of ways that CSIS continues to engage in this troubling pattern.

Duty of candour and misleading the courts

In the past five years, multiple court rulings and reviews1Federal Court, Canadian Security Intelligence Services Act (CA) (Re), (2020 FC 616): https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/482466/index.do#_Toc45630178 [2020 FC 616]; Federal Court, In re motion for reconsideration of the Court’s Order in Peshdary v AGC (2018), (2020 FC 137): https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/460406/index.do; NSIRA, Review arising from Federal Court’s Judgment in 2020 FC 616: https://nsira-ossnr.gc.ca/nsira-review-arising-from-federal-courts-judgment-in-2020. [NSIRA 2020] have found that CSIS has misled the courts and withheld important information from judges when applying for warrants, including that information used in support of these warrants was obtained illegally. This is known as breaching its “duty of candour” towards the courts – meaning CSIS has a duty to tell the truth to the courts, but didn’t. This is particularly important given that CSIS and government lawyers present information to the courts during hearings that are held in private. There is no one present to oppose the application, nor anyone apart from the judge to question the information being provided in support of these warrants – which is problematic in and of itself.

The most significant of these rulings was issued by Federal Court of Canada Justice Patrick Gleeson, in which the court reviewed multiple instances of CSIS breaching its duty of candour over several years. In an incredibly damning ruling, the Justice wrote, “The circumstances raise fundamental questions relating to respect for the rule of law, the oversight of security intelligence activities and the actions of individual decision-makers.”22020 FC 616 Following this ruling, and another from Justice O’Reilly revealing another breach just two months later, ICLMG wrote to the minister of Public Safety at the time, Bill Blair, demanding that he take immediate action to put an end to this abuse of power and hold the CSIS officers involved accountable.3Tim McSorley, “New revelations of spy agency’s unlawful activities and misleading courts shows need for concrete action and accountability,” ICLMG, September 2, 2020: https://iclmg.ca/new-revelations-of-csis-misleading-courts/ Alongside the letter, we launched an email action that resulted in more than 1,600 messages being sent to the Public Safety and Justice ministers.

This ruling also resulted in an in-depth review by the National Security and Intelligence Review Agency (NSIRA), which found that deep-seated and persistent systemic issues were undermining CSIS’ ability to meet its obligations to the courts.

Despite the fact that the number of rulings and the importance of the issues raised necessitate, not just an immediate response from Canada’s domestic spy agency, but also accountability, the government has been slow to take clear action. The government’s commitment to reforms was significantly undermined when it appealed Justice Gleeson’s finding that the agency breached its duty of candour. The appeal decision led to mixed results. Disappointingly, the Federal Court of Appeal agreed with the government, and set aside the finding that CSIS had breached its duty of candour, despite all the evidence in support. At the same time, it upheld the lower court’s recommendation that, “a comprehensive external review be initiated to fully identify systemic, governance and cultural shortcomings and failures that resulted in CSIS engaging in operational activity that it has conceded was illegal and the resultant breach of candour.”4NSIRA 2020

Instead, the government should clearly demonstrate how CSIS staff and lawyers who misled the courts are being held to account, and what actions they are taking to change the culture at the spy agency that sees the warrant process as “a necessary evil.”5M.Rosenberg. Independent Review: Duty of Candour at CSIS, 2020 03 03, Slide 5, cited in NSIRA, Review arising from Federal Court’s Judgment in 2020 FC 616: https://nsira-ossnr.gc.ca/nsira-review-arising-from-federal-courts-judgment-in-2020.

We also wrote an open letter to Prime Minister Trudeau, in 2021, asking this issue be made a priority in his mandate letter for the previous public safety minister, Marco Mendicino.6Tim McSorley, “Seven Civil Liberties Priorities for the Next Parliament,” ICLMG, October 8, 2021: https://iclmg.ca/next-parliament/

Proposed bill from MP Salma Zahid

Liberal MP Salma Zahid has introduced private member’s Bill C-331, An Act to amend the Canadian Security Intelligence Service Act (duty of candour). The bill would, among other things, require the Public Safety Minister to annually table in the House of Commons unclassified information on the number of breaches of the duty of candour to the courts, a description of each breach, and any remedial action taken. It would also amend the Oath of Office sworn by the CSIS director and employees to include duties owed to the courts, such as the duty of candour. MP Zahid held public consultations on this issue which informed the language of the bill. We’ve submitted a written brief to MP Salma Zahid, met with her and her staff, participated in a Ottawa roundtable with her and MP Jenna Sudds, and joined MP Zahid at a press conference announcing the tabling of Bill C-331.7Tim McSorley, “ICLMG supports new bill to increase CSIS accountability,” ICLMG, May 10, 2023: https://iclmg.ca/bill-c331-csis-accountability/

The case of Shamima Begum

In August 2022, the press revealed that the human trafficker, Mohammed al-Rashed, who helped Shamima Begum, a 15-year-old British girl, and two other British girls aged 15 and 16, enter into Daesh (ISIS) controlled territory in Syria in 2015 was a Canadian Security Intelligence Service (CSIS) asset.8Emily Dugan and Dan Sabbagh, “Shamima Begum ‘smuggled into Syria for Islamic State by Canadian spy’,” The Guardian, August 31, 2022: https://www.theguardian.com/uk-news/2022/aug/31/shamima-begum-smuggled-into-syria-for-islamic-state-by-canadian-spy ; Dan Sabbagh, “Should Shamima Begum be allowed to return to the UK to argue her case?” The Guardian, August 31, 2022: https://www.theguardian.com/uk-news/2022/aug/31/should-shamima-begum-be-allowed-to-return-to-the-uk-to-argue-her-case Following this news, we issued a statement9Tim McSorley, “We need answers and accountability from Prime Minister Trudeau and CSIS on Canada’s role in the Shamima Begum affair,” September 1, 2022: https://iclmg.ca/we-need-answers-on-begum-affair/ regarding the case of Shamima Begum and CSIS, and wrote to the Prime Minister’s office to demand accountability. We also contacted the NSIRA regarding their review of the Shamima Begum case.

Al-Rashed became a CSIS operative following an appeal for asylum at Canada’s embassy in Jordan. Instead of granting him asylum, he was approached by a CSIS official, who recruited him to continue his illegal activities in exchange for citizenship.

How is this case linked to CSIS’s duty of candour? One of the areas where CSIS misled the courts was in its work with sources who engaged in illegal activity. CSIS withheld this information from the courts, thereby breaching its duty of candour.10Federal Court, Canadian Security Intelligence Services Act (CA) (Re), (2020 FC 616): https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/482466/index.do#_Toc45630178

At the time in 2015, CSIS did not have clear legal authority to recruit and provide resources to someone engaged in supporting terrorism. That changed, though, with the passage of Bill C-59, the National Security Act, in 2019, which brought in rules that allow for CSIS agents and their sources to engage in certain designated unlawful activities.11Tim McSorley & Xan Dagenais, Brief on Bill C-59, the National Security Act, 2017, May 2019: https://iclmg.ca/wp-content/uploads/2019/05/C-59-brief-May-2019-update.pdf We opposed that change at the time, because it raised deep concerns around what unlawful activities CSIS could be supporting, and we do not believe that the safeguards the government put in place make up for the potential harm these powers can cause.

Regardless of it now being made legal, CSIS still lied to the courts at the time to cover up working with a human smuggler who helped secure passage for dozens of people, including minors, into Daesh territory. Like so much of the legacy of the war on terror, this is a case of impunity for security agencies, while other people face the dire consequences.

But beyond all this, it is imperative that we have an in-depth public conversation about the consistent failures of CSIS to follow the law and to be honest with the courts, and for the impact that Canada’s anti-terrorism activities have on human rights, civil liberties and systemic discrimination in Canada and internationally. A key aspect would be a public inquiry into these issues to then ensure accountability of government officials and national security agents, and to prevent such violations from happening again.

You can take action at iclmg.ca/csis‑not‑above‑law

Tim McSorley is the National Coordinator of the International Civil Liberties Monitoring Group


Back to table of contents

Since you’re here…

… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. You can become our patron on Patreon and get rewards in exchange for your support. You can give as little as $1/month (that’s only $12/year!) and you can unsubscribe at any time. Any donations will go a long way to support our work.panel-54141172-image-6fa93d06d6081076-320-320You can also make a one-time donation or donate monthly via Paypal by clicking on the button below. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!
make-a-donation-button

Footnotes