THE Federal Court on Thursday issued a decision in which it found that institutional failings by both CSIS and the Department of Justice led to a breach of CSIS’ duty of candour to the Court in failing to proactively identify and disclose all relevant facts in support of warrant applications. The Court recommended a comprehensive external review of the policies and practices of the Department of Justice and CSIS in this area. 

Bill Blair, Minister of Public Safety and Emergency Preparedness, and David Lametti, Minister of Justice and Attorney General of Canada, said in a statement: “Public trust in government institutions such as Canadian Security Intelligence Service (CSIS) and Justice Canada is essential in the fulfillment of their missions. Protecting Canadians in a manner that is compliant with the law is something that we are determined to uphold.” 

They said they took the findings of the Federal Court “very seriously and are committed to following up on the Court’s recommendation, in conjunction with the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians, the oversight bodies put in place to review and report on all national security activities across the federal government.”

They added: “As acknowledged by the Court, the fulfillment of CSIS’ national security mandate is challenging and the consequences of failure are significant. CSIS and Justice Canada have carried out their mandates in an evolving legal environment. We want to reassure Canadians that at no time was the safety of Canadians at risk, nor were our rights and freedoms. The potentially illegal activities referred to in the Court decision, such as paying a source for information or providing a cell phone or other electronic equipment to a source, are common collection activities used around the world by security agencies and law enforcement to investigate terrorism.

“The National Security Act, 2017 has now addressed the question of illegality going forward by providing CSIS with a limited justification framework to conduct these types of activities that would otherwise constitute offences.  In addition, we note that Justice and CSIS have already begun implementing a number of concrete measures that address the duty of candour responsibilities that this Federal Court decision underscores.

“We have written to the Chair of the National Security and Intelligence Review Agency (NSIRA) to request that they look into the findings and provide recommendations on how to address the concerns raised by the Court’s decision and to report on their progress regularly to the National Security and Intelligence Committee of Parliamentarians. We have also retained an external advisor, the Honourable Ian Binnie, who will to help with the implementation of NSIRA’s recommendations within Justice Canada, to provide other advice on the provision of advisory and litigation services to clients, and to help ensure both institutions can fulfill their duties to the court when applying for warrants.”

They also pointed out: “While we are fully committed to addressing the Court’s recommendation, we are appealing on narrow but important legal grounds concerning solicitor-client privilege and the government’s ability to provide and obtain legal advice in the future. Appealing this single legal question in no way diminishes our commitment to addressing the full range of the Court’s recommendation”.