Spies could be left out in the cold
‘Trust, but verify.” Academics Craig Forcese and Kent Roach argue that this should be the maxim in the security sector when dealing with powerful state agencies like the Canadian Security Intelligence Service and the RCMP.
But trust in Canada’s security services is thin on the ground, after the news Thursday that a CSIS unit illegally kept data deemed unrelated to national security threats.
Public Safety Minister Ralph Goodale said Friday that a Federal Court decision by Justice Simon Noel, who found CSIS has “breached, again, the duty of candour it owes the court,” is timely because the Liberals are in the midst of reviewing the national security laws.
The latest hit to the spy agency’s reputation is unlikely to endear it to this government, and makes it more likely the Liberals will roll back what Forcese and Roach call the “outer limits” of C-51, the anti-terror legislation introduced last year by the Conservatives.
The Federal Court ruling found CSIS illegally kept electronic data, breaching its duty to inform the court — a duty it had since the information was gathered using judicial warrants. The metadata (information like email addresses and telephone numbers, though not the contents of actual emails and telephone calls) was unrelated to national security threats, the judge concluded, and should have been discarded.
As Noel indicated, it was not the first time CSIS has fallen foul of the courts.
In 2013, another Federal Court justice, Richard Mosley, hammered CSIS for keeping the court in the dark about outsourcing its spying on Canadians abroad to foreign agencies. On that occasion, he said CSIS purposely misled him when he granted it numerous warrants to intercept the electronic communications of Canadians suspected as domestic security threats.
Even before that, both Mosley and Noel had lambasted CSIS for providing inaccurate information to the court. In the Mohamed Harkat case, Noel criticized the agency’s lack of candour.
Judicial opinion is particularly pertinent since the new anti-terror legislation gave CSIS the power to ask judges to approve warrants, even if preventive measures breached rights or freedoms otherwise protected by law.
CSIS chief Michel Coulombe said in March that the agency has used its new threat disruption powers (previously it could gather information about suspected terror plots but not disrupt them). However, he said CSIS had not sought judicial approval in any of those instances.
Critics of C-51 suggest the Liberals should roll back the provision, removing the ability to seek judicial warrants.
Given the fact that the country’s foremost jurists on national security law have repeatedly censured the spy agency for misleading them, it seems a good bet that the government will decide to shorten CSIS’s leash.
Yet Goodale did not rule out a change to the law to allow CSIS to keep the information ruled offside by the court. “This is an issue that I think needs to be examined in the context of our national security review,” he said. “I want to hear the professional advice on both sides … Our security agencies to be effective in keeping Canadians safe. At the same time, what the agencies do needs to be in accord with the law and with the Constitution.”
Phil Gurski, a former CSIS analyst, said the metadata were retained for a rea- son — to identify people involved with, or sympathetic to, terror groups.
“It was a legal opinion that this was illegal because the service is only allowed to retain information that is strictly necessary. I’m saying that it is strictly necessary and the data would inform future investigations,” he said.
Gurski suggested the three-decade-old CSIS Act be updated to reflect the new threat environment, allowing the spy agency to retain metadata.
He conceded public opinion could push the Liberals in the opposite direction.
“The perception is that CSIS acted illegally and the public might say, ‘ Why give these guys more powers if they can’t legally use the ones they have?’ I hope that’s not the case.”
But that hope may prove forlorn. The Liberals are beefing up oversight and verification, in the form of the new parliamentary committee that will monitor CSIS’s activities.
Now trust has broken down, both with the judges who issue the warrants CSIS needs and with the minister to whom it answers.
When consultations with Canadians over national security end, and the government reports back, the spies could find themselves left out in the cold.
WHAT THE AGENCIES DO NEEDS TO BE IN ACCORD WITH THE LAW AND WITH THE CONSTITUTION.