Federal Court furious with CSIS iIlegality and lies

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The Federal Court building in Toronto. Image: Kevin P. Siu/Flickr

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."

Gleeson recommended 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 Royal 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-4 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 grassroots 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 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 naivety 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.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. "national security" profiling for many years.

Image: Kevin P. Siu/Flickr

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