Canada’s spy service has failed to make the crucial process of applying for court warrants a specialized trade that requires training, experience and investment in people, a new watchdog report says.
The report by the National Security and Intelligence Review Agency calls for fundamental changes to the relationship between the Canadian Security Intelligence Service and its legal counsel at the Department of Justice.
The reviewers heard repeated concerns that systemic problems – rooted in governance and cultural issues – risk creating an intelligence service incapable of fulfilling its mandate.
A federal judge called for the comprehensive review in 2020 after ruling CSIS failed to disclose its reliance on information that was likely collected illegally in support of warrants to probe extremism.
Federal Court Justice Patrick Gleeson found the spy service breached its duty of candour to the court, part of a long-standing pattern.
The review agency describes an intelligence service and its counsel struggling to find ways to meet their legal obligations, including to the Federal Court.
“Addressing these challenges is in the urgent public interest,” the report says. “Though CSIS and Justice have made improvements, difficulties are still evident.”
The federal government has agreed with the vast majority of the review agency’s 20 recommendations.
The review was led by agency members Marie Deschamps, a former Supreme Court justice, and Craig Forcese, a University of Ottawa law professor who specializes in national security. They drew upon dozens of confidential interviews with CSIS and Justice employees whose perspectives helped ground insights from documents and formal briefings.
The Federal Court oversees the issuance of warrants that allow CSIS to undertake intrusive measures such as electronic surveillance.
The spy service’s duty of candour to the court hinges on disclosure of information about the credibility of sources who supply information used in the warrant application, as well as relevant details about the broader context of the warrant and how it will be executed.
“Despite past attempts at reforms (to) the current warrant process adopted by CSIS and supported by Justice, the warrant process has repeatedly failed to meet these candour obligations,” the report says. “Many reforms appear to have contributed to the bureaucratic complexity of the warrant process, without addressing candour issues.”
Among the review agency’s findings:
- CSIS has a history of quick reforms, followed by neglect, high turnover of personnel leading to a loss of institutional knowledge, and inadequate resources;
- CSIS policies had not kept pace with operational reality, as they are often vague, dated, overlapping and contradictory;
- players involved in the warrant process did not have a common understanding of the rationale for each of the of steps in the warrant application scheme;
- CSIS has struggled to ensure all information concerning the credibility of sources is properly included in warrant applications, and service officers involved in the early stages do not clearly understand the legal expectations surrounding the duty of candour; and
- deficient information-management systems related to human sources at CSIS have resulted in important omissions, violating duty-of-candour obligations.
The review agency also found that CSIS’s learning and development branch had not received sufficient resources to develop and administer comprehensive training programs, particularly for specialized areas not covered by the training given intelligence officers early in their career.
The reviewers also “heard and read much about very low morale at CSIS” – a central concern not only to employees but also seen in resignation and retirement exit interviews.
“There are likely many reasons for this morale problem. The systemic and governance issues in the warrant process are part of them,” the report says.
The review concludes that repeated failures concerning the duty of candour “are both caused by, and cause, deep-seated cultural and governance patterns. This vicious cycle has compounded the challenges of reform in the warrant acquisition process.”
The report also says the manner in which Justice has provided legal advice to the intelligence service “does not always meet the needs of CSIS operations.” It recommends several changes, including that Justice “must clearly and unequivocally communicate advice on the unlawfulness of client conduct, whether criminal or otherwise.”
It says cherry-picked or paper-based reforms that mask without addressing the challenges will suffer the fate of previous reforms: “the problems will continue.”
“The time has come for CSIS and Justice to face the harsh reality of potential failure to fulfil their mandates if they do not succeed with concrete governance, cultural and process change.”
Among the federal commitments outlined in a response to the report is Public Safety Canada’s plan to develop an enhanced vetting process for warrant applications that “provides a meaningful challenge function without adding undue complexity or delay.”
The review agency says a true, independent challenge procedure will strengthen the warrant vetting process and enhance ministerial accountability.
The agency plans to review this new unit in two years, as part of a subsequent, broader review of the implementation of the report’s recommendations.
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