Canadian Security Intelligence Service Act (CA) (Re)

Canadian Security Intelligence Service Act (CA) (Re)
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-05-12
Neutral citation
2021 FCA 92
File numbers
A-150-20
Notes
Reported Decision A correction was made on December 6, 2022
Decision Content
TOP SECRET
Date: 20210512
Docket: A-150-20
Citation: 2021 FCA 92
CORAM:
DE MONTIGNY J.A.
LASKIN J.A.
MACTAVISH J.A.
BETWEEN:
IN THE MATTER OF an application by
|||||||||||||||||||||| for warrants pursuant to
Sections 12 and 21 of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23
AND IN THE MATTER OF ISLAMIST
TERRORISM, ||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Heard at Ottawa, Ontario, on February 9, 2021.
Judgment delivered at Ottawa, Ontario, on May 12, 2021.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
MACTAVISH J.A.
CONCURRED IN BY:
LASKIN J.A.
TOP SECRET
Date: 20210512
Docket: A-150-20
Citation: 2021 FCA 92
CORAM:
DE MONTIGNY J.A.
LASKIN J.A.
MACTAVISH J.A.
BETWEEN:
IN THE MATTER OF an application by
|||||||||||||||||||||| for warrants pursuant to
Sections 12 and 21 of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23
AND IN THE MATTER OF ISLAMIST
TERRORISM, ||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
REASONS FOR JUDGMENT
DE MONTIGNY AND MACTAVISH JJ.A.
Table of Contents
I. Background 4
A. The Terrorist Financing Provisions of the Criminal Code 4
B. The Investigation 5
C. The Warrant Application in CASE A 6
D. The Warrant Application in CASE B 9
E. The Appointment of the Amici 11
F. The October 2018 Hearings before Justice Gleeson 11
G. The Formulation of the Legal Issues 14
H. Possible Illegalities Disclosed in Relation to Other Warrant Applications 16
I. The Filing of Additional Evidence in CASE B and the Disclosure of Legal Opinions 18
J. The February 21, 2019 En Banc Hearing 23
K. Events Following the En Banc Hearing and the Issuance of the Warrants in CASE B 25
L. The “Common Issues Hearings” 27
II. Justice Gleeson’s Decision 29
A. The Duty of Candour and the Illegality Issue 30
B. Whether Duty of Candour Required that the Service Proactively Disclose Legal Advice to the Court 32
C. The Causes of the Breach of the Duty of Candour 34
D. The Factors to be Considered in Assessing whether Information Connected to Illegal Conduct Should be Admitted in Support of a Warrant Application 37
III. Issues 39
A. The Duty of Candour 40
B. Solicitor-Client Privilege 58
IV. Conclusion 75
[1] Before the Court is an appeal from a decision of Justice Gleeson, sitting as a designated judge of the Federal Court (reported as 2020 FC 616). Justice Gleeson concluded that the Canadian Security Intelligence Service (the Service) had breached the duty of candour it owed to the Court in the context of an ex parte warrant application. The Federal Court came to this conclusion based on its finding that the Service had failed to disclose that some of the information on which it relied in support of its warrant application had been obtained using methods that the Service knew likely violated the terrorist financing provisions of the Criminal Code, R.S.C. 1985, c. C-46 (the Criminal Code).
[2] The Attorney General of Canada submits that the Federal Court erred in finding that the Service had breached its duty of candour in relation to this application, and that all of the relevant material facts had been put before the Court in this case. The Court further erred, the Attorney General says, in finding that the duty of candour required that the Service proactively waive the solicitor-client privilege that attached to legal opinions provided to the Service with respect to the legality of operations such as the one in issue in this case.
[3] For the reasons that follow, we have concluded that the Federal Court erred in concluding that the Service breached its duty of candour because it did not disclose that some of the information in support of warrant application CASE B was likely derived from illegal activities. We have further found that the Federal Court erred in finding that in “the unique circumstances of this case”, the duty of candour required counsel for the Service to have sought a waiver of solicitor-client privilege prior to appearing before the Court on this warrant application. Consequently, we would grant the appeal.
I. Background
[4] In order to put the issues raised by the Attorney General on this appeal into context, it is necessary to have an understanding of the law governing terrorist financing. It is also necessary to understand precisely how the proceedings before the Federal Court unfolded, what were the issues before the Court in the warrant application that resulted in the decision under appeal CASE B and the history of this and other matters as they relate to the Service’s efforts to obtain warrants against targets of their investigations.
A. The Terrorist Financing Provisions of the Criminal Code
[5] In the wake of the terrorist attacks in the United States on September 11, 2001, the Criminal Code was amended to expressly prohibit the financing of terrorists and terrorist entities. Of particular concern in this case is section 83.03 of the Code, which makes it an indictable offence to provide financial assistance to individuals knowing that it will be used for the purpose of facilitating or carrying out terrorist activities.
[6] There appears to be no dispute that the |||||||| targets of the Service’s investigation named in the CASE B application were involved in terrorist activities ||||||||||||||. What is in issue is the potential illegality of the payments and material support that was provided to |||||||||||||||||||||| |||||||||||||||||||| by the Service, and the significance that this had for the warrant application.
B. The Investigation
[7] The Service has for a number of years sought to obtain information with respect to the threat to the security of Canada posed by Canadians who have travelled |||||||||||||| to fight for Islamist groups |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Such individuals are known as “extremist travellers”.
[8] The Service has faced significant challenges in obtaining information with respect to extremist travellers |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[9] As part of its continuing effort to obtain information with respect to extremist travellers, |||||||||||||||||||||||||||||| the Service decided to |conduct an investigation, during which|||||| ||it paid an individual known to be facilitating or carrying out terrorism | |||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||
[10] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[11] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
C. The Warrant Application in CASE A
[12] In furtherance of its investigation regarding extremist travellers, in March of 2018, the Service brought a warrant application before the Federal Court under sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (the Act). The Service was seeking a variety of warrant powers with respect to |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| on the basis that they posed a threat to the security of Canada (file number CASE A.
[13] Some of the information being relied on by the Service in support of its warrant application had been obtained as a result of the investigation . The affidavit filed with the Federal Court in support of the warrant application described the |investigation |and payments | There was, however, nothing in the materials filed by the Service in CASE A to suggest that the payments |||||||||||||||| may have been illegal, or that some of the information being relied upon in support of the warrant application may have been illegally obtained.
[14] The CASE A warrant application was heard by Justice Noël on April ||| 2018. In the course of questioning the affiant, Justice Noël asked about the payments made |||||||||||||||||| The affiant advised Justice Noël that the service had provided payments over a few years to an individual or individuals known to be facilitating or carrying out terrorism. | | |
[15] There was nothing in counsel’s submissions to Justice Noël, or in the affiant’s affidavit or her initial testimony, to suggest that there was anything potentially illegal about the payments that the Service had made |||||||||||||||||| Counsel representing the Service at the April ||| 2018 hearing subsequently explained that he had not brought the potential illegality of the payments to the attention of the Court as he was not aware of the terrorist financing provisions of the Criminal Code when he prepared the application materials and appeared before the Court in CASE A.
[16] It was only towards the end of Justice Noël’s questions regarding the payments |||||||||||||||| that the question of the legality of these payments was raised by Justice Noël himself. When the affiant and counsel were unable to provide information to address certain concerns of Justice Noël, undertakings were given to provide further information in this regard. Justice Noël did, however, issue the warrants as requested, based largely on the strength of information obtained from |||||||||||||||||||||||||||||| without consideration of the evidence obtained through the collection methods he had questioned
[17] Following a series of exchanges between counsel and the Court, a case management conference was held by Justice Noël on May 31, 2018, with new counsel now representing the Service. During this conference, counsel for the Service acknowledged that the questions that had been raised by Justice Noël during the April || 2018 hearing were both valid and important. Counsel suggested, however, that the questions would be better determined on the basis of a more complete record. Consequently, counsel proposed that the Service ‘start from zero’ by bringing a fresh warrant application, supported by an affidavit from a different affiant – one who would provide the evidentiary record necessary to address the lingering concerns on the part of Justice Noël.
[18] In the course of the discussions surrounding the Service’s proposal, Justice Noël voiced his concern that the payments that had been made | ||||| |||||||| || by the Service potentially violated the terrorist financing provisions of the Criminal Code. This was the first time that a concern with respect to the possible violation of section 83.03 of the Code was expressly articulated by anyone in connection with CASE A
[19] The Service’s suggestion that it start over by bringing a fresh warrant application was reiterated in a June 6, 2018 letter to the Court. Counsel acknowledged in that letter that there had been errors and omissions in the record that had been put before the Court in CASE A and that these would be addressed in the new application. Justice Noël accepted the Service’s proposal as a way of dealing with the Court’s outstanding concerns.
D. The Warrant Application in CASE B
[20] Justice Gleeson was subsequently assigned to deal with the fresh warrant application. He held a case management conference with counsel for the Service on July 4, 2018, in anticipation of the Service bringing its new application. The purpose of this conference was to identify the Court’s continuing areas of concern, to provide counsel for the Service with an opportunity to detail a proposed way forward in addressing the outstanding areas of concern, and to allow the Court to assess whether the appointment of an amicus curiae would be appropriate in this case.
[21] In the course of the case management conference, Justice Gleeson asked that any new warrant application deal with the legal issues that had been raised in CASE A but that the new warrant application not be linked to CASE A and that it “stand on its own”.
[22] One legal issue that Justice Gleeson identified during the case management conference was the legality of the Service’s investigation and the potential contravention of the terrorist financing provisions of the Criminal Code by Service personnel. Justice Gleeson also noted his concern as to whether information obtained |||||||||||||||||||||||||||| that was being relied upon by the Service had been legally obtained, or potentially involved the commission of criminal offences.
[23] In the course of this case management conference, Justice Gleeson also reminded the Service of its obligation to bring unique or special circumstances in warrant applications to the attention of the Court.
[24] A fresh warrant application was filed by the Service on September || 2018, as CASE B A motion was also brought by the Service to set aside the warrants issued by Justice Noël, in the event that the Court was prepared to issue new warrants in CASE B so as to prevent there being overlapping warrants. In the meantime, the warrants issued by Justice Noël remained in effect so as to avoid any gaps in the Service’s operational capabilities.
[25] The CASE B application was supported by an affidavit from |||||||||||||||||||||||||||| an intelligence officer with the Service. |||||||||||||||||||||||||||||||| affidavit contained similar information to that placed before Justice Noël in CASE A but provided additional detail about the collection methods he had questioned and updated information regarding the payments and other forms of support that had been provided |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| since Justice Noël had issued his warrants in April of 2018|||||||||||||||||||||||||||||||| affidavit also discussed the nature of the information that had been obtained |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| and the importance of this information to the Service’s investigation of Canadian extremist travellers.
[26] |||||||||||||||||||||||||| advised that additional payments had been made |||||||||||||||||||| between the time that the application in CASE A was heard in April of 2018 and early September of 2018, when the warrant application in CASE B was filed. As of the date of his affidavit, |||||||||||||||||||||||||||| stated that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| during this intervening period. |||||||||||||||||||||||||| further advised that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| and that the Service was seeking additional warrant powers to address this eventuality.
[27] Although there was nothing in |||||||||||||||||||||||||||||||| affidavit regarding the potential illegality of the payments |||||||||||||||||||||| the covering letter from the Service’s counsel accompanying the application referred to the question of the legality of the payments made |||||||||||||||||||||| In addition, all of the information in |||||||||||||||||||||||||||||||| affidavit that was being relied upon by the Service in support of the warrant application that had been obtained through |collection methods questioned by |Justice Noël || was highlighted.
E. The Appointment of the Amici
[28] By order dated September 19, 2018, Justice Gleeson appointed Messrs. Gordon Cameron and Matthew Gourlay to act as amici in CASE B| In a subsequent order, Justice Gleeson specified that the role of the amici would be to assist the Court in deciding the legal questions raised by the application.
F. The October 2018 Hearings before Justice Gleeson
[29] A hearing in |CASE B || was held on October 18, 2018, during which |||||||||||||||||||||||||||| testified before Justice Gleeson.
[30] |||||||||||||||||||||||||| explained that the Service had provided additional benefits |||||||||||||||||||| during the period between the hearing in CASE A in April of 2018, and the filing of the warrant application in CASE B in September of 2018. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[31] |||||||||||||||||||||||||[Ca||||||||| testified that after the warrants were issued by Justice Noël in [CASE A] a payment |||||||||||||||||||||||||||||||||||||||||||||||||||||||||| was made to |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||CASE A and CASE B|||
[32] To be clear: the payments |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| occurred after Justice Noël raised the issue of the potential illegality of the payments |||||||||||||||||||| at the April || 2018 hearing, a concern that Service counsel subsequently acknowledged was both valid and important.
[33] |||||||||||||||||||||||||| testified that the Service was aware that paying money to an individual who was engaged in terrorist activity “could be viewed” as being illegal, and that it had “very serious implications”. As a consequence, such operations required the approval of the Director of the Service, who would, in turn, advise the Minister of Public Safety and Emergency Preparedness (the Minister) of the activity in question. |||||||||||||||||||||||||| also testified that, despite the illegality concern, the Service was of the view that the risks posed by such payments could be managed.
[34] |||||||||||||||||||||||||| subsequently testified that payments such as those in issue in this case “could be construed as financing a terrorist”, and that “there is a risk of that occurring”. According to |||||||||||||||||||||||||||| the Service had not reached the conclusion that such payments violated the Criminal Code, but it recognized that operations such as the one in issue in this case carried with them “a high legal risk”.
[35] At this point in |||||||||||||||||||||||||||||||| testimony, counsel for the Service intervened to advise the Court that the Department of Justice had been consulted with respect to the legality of payments being made by the Service to those engaged in terrorist activities, and that its analysis was subject to solicitor-client privilege. This disclosure was followed by a discussion between the parties and Justice Gleeson as to the potential relevance of any legal opinions that may have been provided to the Service by the Department of Justice. Justice Gleeson concluded it was not necessary to deal with the solicitor-client privilege issue at that point, but that this issue might have to be revisited once the legal issues raised by the application were fully fleshed out.
[36] The hearing before Justice Gleeson resumed the following day. In the course of a discussion regarding the legal issues raised by the application, Justice Gleeson raised a question as to whether the events that took place before Justice Noël in CASE A | were relevant to the determination of the issues in CASE B In this context, Justice Gleeson stated “[a]nd it’s not in the context of this specific application, but really why we’re here with this specific application coming out of CASE A| And it really does link back to this question of [the] duty of candour, but candour in the context of ‘prepared to engage’”? Justice Gleeson then went on to ask counsel about the propriety of looking at “that whole question, the Segal Report [Review of CSIS Warrant Practice, Report of Murray D. Segal, December 2016 [Segal Report]], and what happened here”.
[37] At the conclusion of the October 19, 2018 hearing, Justice Gleeson stated that he was reserving his decision as to whether the warrants should issue pending the resolution of the outstanding legal questions. He asked counsel to confer with each other in an effort to formulate the legal questions that remained outstanding. In the meantime, the warrants issued by Justice Noël in April of 2018 remained in effect.
G. The Formulation of the Legal Issues
[38] Throughout the remainder of October and November the Court worked with the parties to define the legal issues raised by the warrant application, and on December 10, 2018, Justice Gleeson issued a Direction setting out the legal questions that were to be addressed in CASE B These included, amongst others, the question of whether an issue of lawfulness arises in circumstances where the Service has provided or directed the provision of money or goods to individuals |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| who the Service believes were engaged in terrorist activities at the time that the money or goods were provided where the provision of money or goods was necessary to facilitate the collection of information relied on in the warrant application.
[39] Justice Gleeson also asked the parties to address whether the Service had a duty to disclose a possible contravention of the law to the Court, including a potential breach of the Criminal Code, in the context of warrant applications, and the source of that duty. He further asked the parties to address whether the Service had provided sufficient information initially in CASE A| and then in |CASE B| with respect to the issue of lawfulness as it related to information or intelligence relied on in those warrant applications.
[40] Justice Gleeson also raised questions as to the standard of proof that the Court should apply in determining whether there had been a potential violation of the law. He further asked what factors the Court should consider in determining whether illegally obtained information should be taken into account in support of a warrant application, or should be excluded from consideration.
[41] Once these legal questions had been formulated, counsel for the Service advised that it would be necessary to file additional evidence with the Court to enable the Service to respond to the questions.
[42] Thus it appeared that the legal issues raised by the CASE B| application had been clearly identified as of December 10, 2018. However, as Justice Gleeson noted in his decision, “the candour and illegality issues evolved significantly through January and February of 2019”, and it “became clear that the outstanding issues from CASE A| would require some time to fully address”: at para. 17. Indeed, as matters progressed before Justice Gleeson, questions as to the legality of |collection methods questioned by Justice Noël| and its implications for the warrant hearings emerged as the principal issue.
H. Possible Illegalities Disclosed in Relation to Other Warrant Applications
[43] On January 18, 2019, the Senior General Counsel for the National Security Litigation and Advisory Group [NSLAG] (the group within the Department of Justice responsible for representing and advising the Service) wrote to the Court advising that the Service had become aware that information that it had relied upon in two other warrant applications |CASE C and |CASE D| had been derived through activities that “may engage provisions of the Criminal Code”. Justice Kane had been seized with CASE C and Justice Brown had been seized with |CASE D and warrants had already been issued in each of these cases.
[44] The Court was further advised that the Service was carrying out a review in an effort to determine whether this issue had arisen in any other cases.
[45] Included with counsel’s January 18, 2019 letter was a document entitled Interim Direction on the Conduct of Operations Likely Involving the Commission of Criminal Offences. This document, which had been issued the previous day by the Service’s Deputy Director Operations, indicated that the Service would no longer approve operations that were likely illegal, referring to them as posing a “high legal risk”. The Interim Direction further stated that the Service would be reviewing any such operations that were ongoing in order to mitigate any potential illegality.
[46] Counsel for the Service subsequently explained that the issuance of the Interim Direction had been prompted by the Service’s experience in ||CASE A|| which had led it “to reconsider the legal risk it was prepared to accept in relation to human source operations that potentially engage the Criminal Code”.
[47] The disclosure that there were other cases where information relied upon by the Service had been derived through potentially illegal activities led to a joint case management conference being convened in CASE C and CASE D on January 21, 2019 by Justice Mosley, who was then the coordinating judge of designated proceedings. Justices Mosley and Kane were present at the case management conference, but Justices Gleeson and Brown were not, as they were not available.
[48] The Senior General Counsel for the NSLAG appeared at the case management conference on behalf of the Service. He confirmed that the provisions of the Criminal Code that were referred to in his January 18, 2019 letter were the terrorist financing provisions of the Code, as they related to conduct by the Service, or by human sources acting on its direction.
[49] Counsel further advised that the Service had isolated the information that had been collected under the authority of the warrants issued by Justice Kane and Justice Brown in its databases and that although the collection of information in these matters was ongoing, it was being reviewed only to the extent necessary to determine if it disclosed an imminent danger. Counsel finally added that the Service was conducting a review to determine whether information that had been relied upon to obtain any other active warrants had been collected through illegal activity.
[50] In the course of the case management conference, Justice Mosley asked counsel whether legal advice had been provided to the Service as to whether it was potentially at risk of criminal liability. Counsel declined to answer Justice Mosley’s inquiry on the basis that the legal advice provided to the Service was subject to solicitor-client privilege.
[51] Justice Mosley then asked counsel whether, in counsel’s view, a contravention of the Criminal Code by a Service agent or officer would taint a warrant application. Counsel responded that “it ought to have been disclosed to the issuing judge. That goes without saying. So there was a duty, and we accept that there was a duty, on us to disclose these operations to the issuing judges in the warrants”. Counsel then went on to state “[h]owever, our position is that a judge may rely on information in the context of a warrant under section 21 that is obtained as a result of those operations”.
I. The Filing of Additional Evidence in CASE B| and the Disclosure of Legal Opinions
[52] On January 25, 2019, counsel for the Service filed additional evidence with the Court in CASE B Included in this package were legal opinions and other documents containing information that was subject to solicitor-client privilege. In the covering letter accompanying the documents, counsel for the Service explained that, for the purpose of this application only, the Director of the Service had waived the solicitor-client privilege that attached to the legal advice that had been received by the Service with respect to the matters at issue in application CASE B
[53] While there was subsequently some suggestion by the Attorney General that the waiver of solicitor-client privilege by the Service had not been entirely voluntary, Justice Gleeson found that this was not the case, and the Attorney General conceded before us that the waiver had indeed been voluntary.
[54] The new evidence included a January, 2017 legal opinion from a lawyer with the NSLAG that concluded that it could “no longer be credibly argued that CSIS employees and sources are protected by Crown immunity if they engage in conduct that, on its face, violated the law” (the Lajeunesse opinion). The Lajeunesse opinion went on to state that “[t]he doctrine of Crown immunity has been removed as a possible defence in the national security context”. This conclusion was consistent with earlier legal opinions that had been provided to the Service, and with findings made by the Security Intelligence Review Committee. As was the case with the earlier opinions, the Lajeunesse opinion discussed the need for a “legislative fix” to address the potential exposure of Service employees to criminal charges.
[55] Also produced was a January 7, 2019, opinion from the Senior General Counsel for the NSLAG that came to a similar conclusion with respect to the non-availability of the Crown immunity defence to the Service (the Rees opinion). In particular, the Rees opinion advised the Director of the Service that “there is no lawful basis for the Service to commit criminal offences under the existing legal framework. The CSIS Act does not authorize the Service to engage in criminal conduct, even if it yields valuable intelligence”. The Rees opinion stated definitively that “CSIS cannot rely on Crown immunity in the context of its human source operations”, and that “[n]o alternative authority exists that would allow the Service to conduct otherwise illegal operations”.
[56] Also produced was all of the relevant documentation regarding the approval of the Service’s payments |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||| as well as the provision of material support |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||| These documents (some of which had been provided to the Minister by the then-Director of the Service) indicated that the collection methods questioned| by Justice Noël were identified as presenting “a high legal risk”.
[57] Several of the approvals documents contained excerpts from legal opinions regarding the legality of payments or the provision of material by the Service to individuals engaged in terrorism, and whether the defence of Crown immunity would be available to the Service.
[58] The approvals documents also included legal opinions from counsel for the Service with respect to the payments |||||||||||||||||||||| One such opinion |||||||||||||||||||||||||||||||||||||||||||||||||||||| specifically refers to section 83.03 of the Criminal Code, noting that “[t]here is little doubt here that most of the elements of the financing terrorism offen[c]e would be met. The Service is directly providing money to |||||||||||||||||||| a person the Service knows to be engaged in terrorist activity, while knowing that it will be used or benefit him”.
[59] Other comments in the |||||||||| risk analysis note the benefit of ||the collection methods|| and the value of the information received |||||||||||||||||||||||||||| Michel Coulombe, the then-Director of the Service, is recorded as saying “[p]ending DOJs final opinion on Crown Immunity and further to the advice provided by [individuals within the Service], I have weighed the value of the| |collection methods| versus the legal risk”. Mr. Coulombe went on to state “I am of the opinion that the value outweighs the risk and approve the collection methods| to proceed”. He then observed that “prior notification must be given to the Minister ||||||||||||||||||||||||||||||||||||||”. It appears that such notice was indeed provided to the Minister shortly thereafter.
[60] Mr. Coulombe subsequently explained that he had understood that the Lajeunesse opinion was not intended to be the last word as to the availability of the Crown immunity defence, and that further advice would be forthcoming from the Department of Justice. In the meantime, he was prepared to approve the collection methods notwithstanding the fact that the Service’s activities likely violated the Criminal Code, on the basis that the potential intelligence value of the information that could be obtained |||||||||||||||||||||||||||| outweighed the legal risks ||||||||||||||||||||||||||||||||||||||||||||||||||||||
[61] Evidence was also received from Jeff Yaworski, who was the Service’s Deputy Director Operations |||||||||||||||||||||||||||||||||||||||||||||||||| Mr. Yaworski had recommended to Mr. Coulombe that |||||| the collection methods|| be approved, notwithstanding that it presented a “high legal risk”. He testified that while he was aware that the Service could not engage in illegal activities, the “reality of the operational environment” meant that the Service could find itself “butting up against the Criminal Code with respect to terrorist financing”. He further explained that the Service had to balance the high legal risk |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| with “the potential for intelligence gain”, and that, in his view, the benefit to be derived |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||| outweighed the legal risks ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[62] Upon the filing of this evidence on January 25, 2019, counsel representing the Service in application CASE B withdrew, as she had provided one of the legal opinions now in issue.
[63] The content of these newly-disclosed documents led Justice Gleeson to comment at a February 13, 2019 case management conference that they had “significantly changed the landscape here with respect to the significance of some of the questions that were originally raised in this matter, particularly the candour issues”.
[64] Counsel for the Service then explained why it had chosen to voluntarily waive the solicitor-client privilege that attached to the legal opinions and the approvals documents. According to counsel for the Service, “[t]he purpose of providing those documents goes directly to the questions that this Court settled on. One of the questions that the Court has asked is whether the activities in question were lawful or not”. Counsel went on to explain that “[o]ur duty of candour required us to provide information. It was already abundantly clear from the very first day of questioning of |||||||||||||||||||||||||| that questions were being asked about what legal advice was provided”.
[65] Counsel for the Service went on to state that “[o]ne of the questions is the duty of candour. These are parts of the elements that are before the Court and we are trying to be responsive with the evidence that is requested”.
J. The February 21, 2019 En Banc Hearing
[66] In the meantime, Justice Mosley had scheduled an en banc hearing of the designated judges of the Federal Court to take place on February 21, 2019. The purpose of the en banc hearing was to address the implications that the disclosure of illegal conduct on the part of the Service had for applications |CASE C, CASE B| and |CASE D Also to be considered was what, if any, obligation there was on the part of the Service to disclose such illegality to the Court in the context of warrant applications that seek to rely on illegally obtained evidence, along with other related issues.
[67] Of particular relevance to the issues in this appeal is the scope of the concessions that were made by counsel for the Attorney General at the en banc hearing.
[68] At the commencement of the hearing, Justice Mosley asked why it had taken the Service and the Attorney General so long to inform the Court that the Service had been relying on information in support of warrant applications that had been obtained by methods that, on their face, contravened the Criminal Code, “based on, at best, a shaky claim for justification under the Crown immunity doctrine”. Justice Mosley went on to ask “[h]ow does that behaviour, protracted behaviour, conform to respect for the rule of law and the duty of candour of both the Service and the Attorney General to this Court?”.
[69] Justice Noël then reviewed