Canadian Security Intelligence Services Act (CA) (Re)

Canadian Security Intelligence Services Act (CA) (Re)
Court (s) Database
Federal Court Decisions
Date
2020-05-15
Neutral citation
2020 FC 616
File numbers
CONF-1-20
Notes
A correction was made on July 31, 2020. A correction was made on December 15, 2021.
Decision Content
TOP SECRET
Date: 20200515
Docket: CONF-1-20
Citation: 2020 FC 616
Ottawa, Ontario, May 15, 2020
PRESENT: The Honourable Mr. Justice Gleeson
IN THE MATTER of an application by |||||||||||||||||||||||| for warrants pursuant to sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c. C-23
AND IN THE MATTER OF Islamist Terrorism, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||
JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Overview 1
II. Proceedings 4
A. [Case A] 4
B. [ C a s e B] 6
C. Notice to the Court 7
D. January 2019 case management conference 8
E. En banc hearing 8
F. Chief Justice’s initial direction 10
G. Common issues hearings 11
III. Background 13
A. How did the issue of illegality arise? 13
(1) The Service must act within the law 13
(2) The Crown immunity doctrine 16
(3) The evolution of legal advice 17
B. Service processes 25
(1) Assessing the legal risk of operations 25
(2) The warrant application process 28
C. Bill C-59: Legislative reform to address illegality 31
IV. Issues 32
V. Analysis 33
A. How did the candour breach occur and how is it to be addressed? 33
(1) The duty of candour 33
(2) The breach of the duty of candour 38
(3) The causes of the breach of the duty of candour 40
(4) Events following the January 2017 opinion 42
(5) Institutional and systemic issues contributing to the candour breach 50
(a) NSLAG knowledge management and information sharing 53
(b) The Department of Justice legal risk assessment framework 54
(c) The interplay between counsel’s duty of candour and duty of loyalty 55
(d) The role of the Department of Justice 56
(e) The warrant application process 60
(f) Information silos and compartmentalization 62
(g) Communications among senior Service officials 63
(6) Conclusion on candour 64
B. May the Court consider and rely on information that was likely collected in contravention of the law? 69
C. If the Court may consider and rely on information that was likely collected in contravention of the law, then what factors are to be considered and weighed? 73
D. If, after a warrant has issued, the Court becomes aware that information placed before it was likely collected in contravention of the law, may the Court invalidate the warrant or take other action? 78
(1) A designated judge may review a prior decision to issue a warrant 78
(2) The Garofoli framework, modified to reflect the context, guides the conduct of an ex post facto review 82
E. Should the Court invalidate an issued warrant, what authority does the Court have to make remedial orders regarding information collected under that warrant? How should the Court exercise that authority? 88
(1) The Court may make orders in respect of the use or retention of information collected under the authority of an invalidated warrant 88
(2) Retaining jurisdiction over collected information by way of condition 92
F. Where information is excised from the application, may the Court continue to rely on the pre-application consultation and approval requirements at subsections 7(2) and 21(1) of the CSIS Act? 95
G. Application to [Case B] 98
(1) Overview 98
(2) The Service [investigation] 100
(3) Other instances of illegality 102
(4) Illegality and the exclusion of information 102
(5) Remaining issues 105
(a) The Service’s authority to undertake the [investigation] 107
(b) [Electronic communication] 108
(c) [Electronic device] 111
(d) Disclosure of source identity 114
VI. Waiver of solicitor-client privilege 116
VII. Concluding remarks 118
I. Overview
[1] Can a designated judge considering whether to issue a warrant under section 21 of the Canadian Security Intelligence Service Act, RSC 1985, c. C-23 [CSIS Act] rely on illegally collected information? If yes, what factors should the designated judge take into account? These questions are novel and important.
[2] Whether the Canadian Security Intelligence Service [CSIS or the Service] or its agents have illegally collected information relied on in a warrant application is also highly relevant to the exercise of a designated judge’s discretion to issue the warrant or not.
[3] Regrettably, in recent warrant applications, neither the Service nor counsel for the Attorney General of Canada [AGC] brought the issue of illegally collected information to the Court’s attention. Instead, the issue surfaced as the result of Justice Simon Noël’s inquiries in warrant application [Case A]
[4] The Service’s and counsel’s failure to identify the issue of information that has been potentially illegally collected—an issue directly relevant to the judicial assessment of the application—calls into question the commitment and ability to comply with the duty of candour. How and why did such a fundamental breach of the duty to fully and frankly disclose to the Court all information relevant to the application occur? What consequences flow from this breach?
[5] As this proceeding unfolded and the issue of illegality crystalized, the Service advised the Court that it had relied on potentially illegally collected information in at least two other warrant applications: [Case C] before Justice Catherine Kane and [Case D] before Justice Henry Brown. This spawns additional issues. May a designated judge invalidate an issued warrant where it is subsequently discovered that the Service has breached its duty of candour by not disclosing potential illegality? What is the impact upon the retention and use of information collected under a warrant invalidated in these circumstances?
[6] On receiving notice of these issues, Justice Richard Mosley, who at that time was the coordinating judge of designated proceedings, convened an en banc hearing in February 2019. This was followed by common issues hearings presided over by the designated judges seized with the three applications impacted by illegality: myself (having taken carriage of [Case A] from Justice Noël), Justice Kane, and Justice Brown. Throughout most of 2019, sitting together but individually seized, we heard evidence and received submissions common to all three applications—namely, the candour breach and the circumstances that permitted it.
[7] Mr. Gordon Cameron and Mr. Matthew Gourlay have been appointed amici in [Case B] the en banc hearing, and the common issues hearings.
[8] These reasons are lengthy. I begin with a general overview of the proceedings and then provide background relating to (1) the issue of illegality and how it arises in these matters; (2) Service processes where the issue of potentially illegal collection activities should have been identified but was not; and (3) legislative reforms that were pursued to address illegality on a going forward basis. After identifying the numerous legal issues that arise in this matter I then consider each of those issues. Finally, I address the specific issues that arise from [Case A] and [Case B].
[9] In the course of these proceedings the Director of the Service waived solicitor-client privilege over legal advice provided to the Service as it related to the issues of Crown immunity and illegality within this context. In the course of oral submissions it was suggested by AGC counsel that the waiver was not entirely voluntary. Although provided the opportunity to do so counsel did not advance further argument in this regard. However, in light of the fundamental importance of solicitor-client privilege I briefly address the circumstances at the conclusion of this judgment.
II. Proceedings
[10] The issues before me arise from the Service’s application for warrants under sections 12 and 21 of the CSIS Act in furtherance of its investigation of Islamist Terrorism and the |||||||||| proposed warranted subjects of investigation identified in the style of cause. The Service filed this application in March 2018 under court file [Case A].
A. [Case A]
[11] Justice Noël was initially seized with this application. In April 2018, he presided over an ex parte hearing. There, he identified areas of concern, which included the Service’s collection activities described in the supporting affidavit and the reference to one of the |||||||||| targets as an ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. In addition, he queried whether funds that the affiant reported had been paid to an individual “could be used for terrorist activities,” noting that the “Criminal Code talks about that.”
[12] Justice Noël was not satisfied with the responses provided to many of his questions. AGC counsel undertook to provide additional information. Ultimately, in considering the application, Justice Noël excluded all information obtained through the collection methods he had questioned or that was related to other identified areas of concern. After doing so, he concluded that sufficient reliable information remained to satisfy the requirements of section 21 of the CSIS Act. Justice Noël issued the warrants, but remained seized of the application for the purpose of dealing with the undertakings.
[13] AGC counsel’s response to the undertakings triggered further exchanges with the Court and a case management conference [CMC] was held in May 2018. In June 2018, new AGC counsel assumed carriage of the file and wrote to the Court to acknowledge errors and omissions in the application including the human source précis. To address these, counsel proposed that the Service file a fresh application against the same subjects. Counsel subsequently confirmed that the errors and omissions did not relate to the information that Justice Noël relied on to issue the warrants.
[14] Justice Noël requested that the Chief Justice reassign the matter and I took carriage of the file in June 2018.
[15] In July 2018, in a CMC, AGC counsel confirmed the Service’s intention to file a fresh application that would be more complete and address the identified deficiencies of the initial application. Counsel took the position that the fresh application would serve two purposes. It would create a single record of relevant information that had previously been provided in various forms. It would also provide a venue to hear full evidence and argument on the important issues identified in [Case A].
B. [Case B]
[16] In September 2018, the Service filed the fresh application: [Case B]. In October 2018, at the hearing of the application, I concluded that resolution of the outstanding issues from [Case A] was relevant in determining what was to be considered in support of the application. The [Case A] warrants remained in force. I therefore reserved on determining the application pending consideration of the underlying legal issues.
[17] In November 2018, I heard submissions for the purpose of defining the legal questions arising out of [Case A] and [Case B]. In December 2018, I issued a Direction which set out the issues for the AGC and the amici to address. As described below, the candour and illegality issues evolved significantly through January and February of 2019. It became clear that the outstanding issues from [Case A] would require some time to fully address.
[18] In April 2019, I heard updated evidence and submissions in [Case B]. After excluding from consideration the information identified in my Supplemental Order of April 4, 2019, I was satisfied that the remaining evidence met the requirements of section 21 of the CSIS Act. The requested warrants were granted and remained in force until July 5, 2019. In granting the warrants I remained seized of the application for the purpose of addressing the outstanding issues.
C. Notice to the Court
[19] 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. The letter advised that in the course of preparing renewal and supplemental applications for warrants the Service realized that some information that was relied on in two separate applications—[Case C] before Justice Kane and [Case D] before Justice Brown—was derived from potentially illegal activities. Warrants had been issued in both applications. The letter also advised that the Service was conducting a review to determine whether this issue arose in other circumstances.
[20] The letter enclosed a document entitled “Interim Direction on the Conduct of Operations Likely Involving the Commission of Criminal Offences.” The Deputy Director Operations for the Service issued this document the day before the Senior General Counsel wrote to the Court. It indicated that the Service would no longer approve operations that were likely illegal—characterized as posing a “high legal risk”—and that the Service would review any such operations that were ongoing to mitigate potential illegality.
D. January 2019 case management conference
[21] In response to the Senior General Counsel’s letter, Justice Mosley, as coordinating judge of designated proceedings at the time, convened a CMC on January 21, 2019. The CMC was conducted by him and Justice Kane as Chief Justice Crampton, Justice Brown and I were not in Ottawa at that time. The Senior General Counsel for the NSLAG appeared on behalf of the Service. He confirmed that the illegality involved conduct by the Service or human sources acting on its direction that was likely contrary to the anti-terrorism provisions of the Criminal Code, RSC 1985, c. C-46 [Criminal Code]; that the Service had isolated in its databases information collected under the authority of the warrants issued by Justice Kane and Justice Brown; that although collection in these matters was ongoing, information collected under the warrants was being reviewed only to the extent necessary to determine if it disclosed an imminent danger; and that the Service was conducting a review to determine if information relied on to obtain any other active warrants had been collected through illegal activity.
E. En banc hearing
[22] Further to the January 18 letter and the January 21 CMC, on January 29, 2019 Justice Mosley ordered an en banc hearing. In doing so, he noted the illegality issues identified by the Service and additional affidavit evidence filed in [Case B] on January 25, 2019.
[23] The additional evidence in [Case B] included two affidavits of documents that impact upon the broader issues that arise in this matter.
[24] The first stated that the Director of the Service had waived solicitor-client privilege over six documents containing legal opinions addressing whether the Service benefited from Crown immunity. Attached as exhibits are three of those opinions. Notably: one opinion from January 2017 and another opinion from January 2019, both of which conclude that the Service could not breach the Criminal Code under the guise of Crown immunity.
[25] The second included the remaining three legal opinions over which solicitor-client privilege has been waived. These opinions are embedded in the documentation that evidences the Service’s review and approval of operations involving human sources.
[26] On February 21, 2019, the en banc hearing proceeded before all available designated judges. Those judges seized with the applications in issue presided to the extent that the en banc engaged questions relating specifically to those applications. At the outset of the hearing, the Chief Justice explained that the Court’s goal was to gain an understanding of the “broader issues” common to all three applications and the “potential implications” of these issues for other warrants.
[27] The en banc hearing confirmed that candour and illegality issues were common to the matters before myself, Justice Kane, and Justice Brown, and that evidence would be required to address the common issues. AGC counsel advised that it would file additional evidence to provide detail on the issue of illegality in each file, and to address the state of knowledge in both the Service and the Department of Justice in respect of that illegality.
F. Chief Justice’s initial direction
[28] After the en banc hearing, the Chief Justice issued a Direction as an initial response to the Court’s candour concerns and to highlight the importance of the duty of candour. The Direction reiterates that the Service is bound by the duties of candour and utmost good faith and notes that the evidence as disclosed to that point suggested that the non-disclosure reported in the January 18 letter may be symptomatic of systemic failings within the Service and the Department of Justice. The Direction requires that specific candour-related statements, including a declaration, where accurate, that information relied on in an application had not been obtained as the result of any activity that raised a real concern of illegality be included by affiants in supporting affidavits. The Direction also required the addition of specific recitals relating to the duty of candour in all draft warrants placed before the Court.
[29] In April 2019, the Senior General Counsel for the NSLAG wrote to the Court in response to the Direction. He confirmed the Service’s intent to comply with the spirit of the Direction but expressed concerns with the wording of the candour-related statements. He proposed to file amendments for the Court’s consideration. He also advised that a practice direction would issue to NSLAG counsel addressing the Chief Justice’s concerns. In April 2019, that practice direction was provided to the Court. It stated, in part:
Warrant applications will not rely on information derived from unlawful activity of the Service or its sources. Where unlawful activity occurs it must be brought to the Court’s attention in warrant applications so that the Court may fully assess any circumstances which might reasonably be expected to have a bearing on the Court’s discretion to issue the warrant. Where there may be doubt as to whether any activity undertaken is lawful, that activity should be drawn to the Court’s attention.
[30] In September 2019, the Senior General Counsel for the NSLAG issued a second practice direction addressing the disclosure of information regarding human sources in warrant applications.
[31] Recently, after further direction from the Chief Justice, submissions and proposed amendments addressing the expressed concerns of the Service with the prescribed wording in the Chief Justice’s Direction were filed. The direction and its implementation remain before the Chief Justice and nothing in this judgement overtakes or reverses the Chief Justice’s Direction or the questions arising from it that are now being considered with the benefit of submissions from amicus curiae appointed by the Chief Justice.
G. Common issues hearings
[32] The initial application in [Case A] has resulted in protracted proceedings before the Court. The evidence in each of the three applications |[Case C], [Case B] || and ||[Case D]|| and in [Case A] formed part of the record in the common issues proceedings. As the hearings unfolded, additional evidence of potential relevance was identified. The result was the production of documentation, the filing of additional affidavit evidence and the scheduling of additional witnesses as the proceedings unfolded. This included the filing of additional affidavit evidence and the hearing of witnesses after oral submissions were received in June 2019.
[33] In [Case B] and the common issues proceedings a total of 14 affiants placed evidence before the Court. These included senior officials within the Service and the Department of Justice, current and former. A number of affiants have filed multiple supplementary affidavits. Of the 14 affiants, 11 appeared before the Court for examination and cross examination by the amici. Each of the required affiants appeared upon request, no subpoenas were issued. Three affiants sought and were granted limited standing in the hearings which included the right to make limited written submissions. In each instance written submissions were provided.
[34] The Court presided over case management hearings and sat to hear evidence or receive oral submissions on 24 days. The final oral hearing took place on November 1, 2019 and the final written submissions were filed with the Registry on November 28, 2019. A further affidavit was filed by the Service on March 23, 2020 providing the Court with a copy of a recently completed review undertaken to address the use of human source information in [Case D]. I briefly address this report in my concluding remarks.
[35] A summary of the proceedings in [Case B] and in the common issues proceeding, including a listing of affiants identified by position, the dates affidavits were filed and the dates the Court sat are set out in Annex A Appendices 1 through 4 for ease of reference. Annex A Appendices 5 and 6 lists the more significant legal opinions over which privilege was waived and identifies Security Intelligence Review Committee [SIRC] Reports relevant to the issues.
III. Background
A. How did the issue of illegality arise?
(1) The Service must act within the law
[36] The Service’s mandate under the CSIS Act is to investigate threats to the security of Canada (s. 12(1)). This includes the threat of terrorism posed by individuals or groups who are prepared to threaten or use violence for political, religious or ideological reasons (para. (c) of the definition of “threats to the security of Canada” at s. 2). The successful fulfillment of the Service’s counter-terrorism mandate is challenging and the consequences of failure are significant. In pursuing its mandate, the Service must identify and obtain access to those who may pose a threat to Canada’s security. To do so, the Service uses a variety of tools. Despite the importance of the Service’s national security function, the tools available to it are not unlimited.
[37] The Service is limited by what the amici have aptly described as its “foundational commitment” to collect intelligence within the bounds of the law. This commitment is rooted in the 1981 McDonald Commission Report, a report that was instrumental in the development of the CSIS Act. It reads:
[21] […] [T]he rule of law must be observed in all security operations. Several meanings have been given to this phrase. The meaning which we have in mind is that expressed by the English writer, A.V. Dicey, when he wrote that
[…] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals […]. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.
In our context this means that policemen and members of a security service, as well as the government officials and ministers who authorize their activities, are not above the law. Members of the security organization must not be permitted to break the law in the name of national security. If those responsible for security believe that the law does not give them enough power to protect security effectively, they must try to persuade the law-makers, Parliament and the provincial legislatures, to change the law. They must not take the law into their own hands. This is a requirement of a liberal society. It is, therefore, unacceptable to adopt the view, which we have found expressed within the RCMP, that when the interests of national security are in conflict with the freedom of the individual, the balance to be struck is not for the court of law but for the executive. […]
(Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report: Freedom and Security Under the Law, vol. 1, Part II, (Ottawa: Privy Council Office, 1981) [McDonald Commission Report] at pg. 45, para. 21. (Also see vol. 2, Part VI, at pg.737, para. 135.) [Emphasis added; footnotes omitted]
[38] Various provisions of the CSIS Act are consistent with the McDonald Commission Report’s view that “the rule of law must be observed in all security operations” (ss. 12.1(3.4), 20, 21). The jurisprudence also affirms the Service’s obligation to uphold the rule of law. In X (Re), 2018 FC 738, Justice Noël wrote that “the CSIS Act must be interpreted cautiously to ensure minimal infringement of our most fundamental liberties, while ensuring that the rule of law is upheld” (paras. 22–26; also see X (Re), 2016 FC 1105 [Associated Data] at paras. 129–132).
[39] The Minister may issue written directions, commonly referred to as Ministerial Directions, to the Director of the Service regarding the control and management of the Service (CSIS Act, ss. 6(1)–6(2)). The Minister has exercised this authority in the form of a Direction relating to the conduct of Service operations and accountability (Ministerial Directions For Operations and Accountability, approved by the Minister of Public Safety and Emergency Preparedness on July 31, 2015, replacing the 2008 Ministerial Direction on Operations and the 2001 Ministerial Direction on Responsibility and Accountability [2015 Ministerial Direction]). The 2015 Ministerial Direction identifies observance of the rule of law as the lodestar in guiding the conduct of Service operations. The 2015 Ministerial Direction states:
The Government and the people of Canada expect a high level of performance by the Canadian Security Intelligence Service (the Service) in discharging its responsibilities under the Canadian Security Intelligence Services Act (CSIS Act). It is also expected that the Service will perform its duties and functions with due regard to the rule of law and respect for the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms.
Pursuant to subsection 6(2) of the CSIS Act, I have issued the following direction to describe my expectations in relation to the conduct of the operations by the Service.
FUNDAMENTAL PRINCIPLES
The following fundamental principles will guide all Service operations:
The rule of law must be observed[.] [Emphasis added.]
[40] Thus, the McDonald Commission Report, the CSIS Act, the jurisprudence, and the 2015 Ministerial Direction all compel the Service to operate according to law.
(2) The Crown immunity doctrine
[41] The gathering of intelligence in furtherance of the investigation of terrorist threats to Canada presents significant operational challenges. Not surprisingly observance of the rule of law, particularly where the law evolves or changes may, at times, exacerbate the already challenging circumstances in which the Service and its leadership must operate. This occurred in the aftermath of the 2001 terrorist attacks in the United States.
[42] Following those attacks, Parliament passed the Anti-terrorism Act, SC 2001 c. 41 [Anti-terrorism Act]. The Anti-terrorism Act expanded the scope of terrorism offences under the Criminal Code. (Part II.1 of the Criminal Code is reproduced at Annex B to these reasons for reference.) Among other things, it criminalized the provision of “property or financial services or other related services” for the purpose of benefiting any person facilitating or carrying out any terrorist activity or knowing that doing so would benefit a terrorist group (Criminal Code, s. 83.03). This posed a difficulty for the Service in that gaining access to the subjects of national security terrorism investigation at times requires the provision of money or property to these individuals. The Anti-terrorism Act amendments did not exempt the Service from the expanded terrorism provisions. Neither did the CSIS Act as it existed in 2001.
[43] This raised the possibility of criminal liability attaching to certain of the Service’s activities. Relying on the Crown immunity doctrine, the Service, on the AGC’s advice, concluded that criminal liability did not arise in these circumstances.
[44] The Crown immunity doctrine creates a presumption that the Crown is not bound by statute unless the statute expressly states that it binds the Crown; the statute clearly intends to bind the Crown; or the statute would be frustrated, or an absurdity would result, if it did not bind the Crown (Alberta Government Telephones v (Canada) Canadian Radio-television and Telecommunications Commission, [1989] 2 SCR 225 at pg. 281). This principle is reflected in section 17 of the Interpretation Act, RSC, 1985 c. I-21. Thus, in the Service’s view, it was in a position to conduct activities in carrying out its mandate that on their face contravened the Criminal Code on the basis that Crown immunity shielded Service employees and human sources from criminal liability and therefore allowed it to operate within the law.
(3) The evolution of legal advice
[45] The Crown immunity doctrine had been a topic of longstanding discussion and concern between the Service and the Department of Justice. This discussion initially took place in light of the Supreme Court of Canada’s decision in R v Campbell and Shirose, 1999 1 SCR 565 [Campbell and Shirose] which addressed the doctrine of Crown immunity in the law enforcement context. There, the Supreme Court held that police officers posing as drug sellers and offering to sell drugs to senior members of a drug trafficking ring had broken the law and did not benefit from Crown immunity. In response, Parliament created a statutory regime through which police officers could obtain pre-authorization to commit otherwise illegal acts in furtherance of a valid law enforcement objective (Criminal Code, s. 25.1). This regime does not extend to CSIS, its employees or its human sources.
[46] In April 2002, after the passage of the Anti-terrorism Act, the Department of Justice generated an opinion addressing whether the Crown was bound by the amendments to the Criminal Code. This opinion relied on the Crown immunity doctrine in expressing the general view that the Criminal Code provisions passed under the Anti-terrorism Act do not bind the Crown. The opinion noted that the case relied on to support this opinion—Canadian Broadcasting Corp v (Attorney General) Ontario, [1959] SCR 188—is dated, and that “it is not entirely clear that the Supreme Court would arrive at the same decision today if a case were to raise squarely the issue.”
[47] In 2004, the Service requested advice from its Department of Justice Legal Services Unit (now the NSLAG and referred to throughout as the NSLAG) on the potential liability of human sources and their handlers who may engage in activities which on their face contravene the Criminal Code’s anti-terrorism provisions. The NSLAG concluded that Crown immunity shields the Service’s human sources and their handlers from criminal responsibility. This opinion relied on the 2002 opinion. It also reiterated the caveats contained in that opinion, cautioning that Crown immunity should not be seen as a panacea for potentially illegal actions in furtherance of the Service’s mandate. It suggested legislative reform be considered to resolve the uncertainty.
[48] In an April 2005 email exchange between NSLAG counsel and senior Service officials, counsel provided advice to the same effect, characterizing it as the Department of Justice’s “official position.” NSLAG counsel went on to express the view that the 2002 opinion is weak, citing a lack of academic and recent judicial support for the Crown immunity doctrine.
[49] The former Senior General Counsel for the NSLAG gave evidence to the effect that the issue arose throughout her nine year tenure, between 2009 and 2018. In early-2011, she initiated work within the NSLAG to generate a discussion paper on the topic. By April 2013, this work culminated in another legal opinion. This opinion concluded that the likelihood of the Service successfully relying on Crown immunity was low and recommended a legislative solution. The opinion highlighted that the Ministerial Direction then in effect required that “the rule of law must be observed” and that human sources were to carry out tasks on behalf of the Service “without engaging in illegal activities.” The opinion concluded that these factors would make it difficult to carry out illegal acts required to achieve mandated objectives.
[50] In September 2013, the Senior General Counsel for the NSLAG placed the 2013 opinion before a meeting of the Service’s Litigation Committee. On review of the opinion, the Committee decided to explore the possibility of requesting an amendment to the Ministerial Direction to reflect the availability of Crown immunity and to document proposed legislative changes to ensure the Service was in a position to proceed with legislative reform if given the opportunity. It appears, as noted later in these reasons, that an amendment to the Ministerial Direction reflecting the availability of Crown immunity was pursued in 2015 without success.
[51] In its 2014 – 2015 Annual Report, SIRC—charged with ensuring that CSIS used its powers legally and appropriately—raised concerns with human source operations potentially breaching the United Nations Al Qaida and Taliban Regulations, SOR/99-444. It recommended internal mechanisms to ensure that no human source operations violated these regulations or any similar Canadian statute or regulations. This was not the first SIRC study to address the issue of the Service and its human sources potentially engaging in criminal activities. In a report released in 2009 the Committee specifically considered the implications of the anti-terrorism provisions of the Criminal Code, noting that “[…] activities considered illegal under the Anti-Terrorism Act [are] potentially controversial […] and should be subject to a high level of accountability” (SIRC Review 2008-04 Review of a Human Source Operation). Nor, as described below, was the 2014 – 2015 SIRC Annual Report the last word from SIRC on this issue. The relevant SIRC studies are listed at Appendix 6 of Annex A.
[52] It is worth noting that in conducting its work SIRC had, and its successor the National Security Intelligence Review Agency has, access to any information under the control of the Service. This includes access to all information subject to any privilege under the law of evidence including solicitor-client privilege (National Security and Intelligence Review Agency Act, SC 2019, c 13 at ss. 9–12).
[53] In May 2016, following an in-depth review of the Service’s foreign fighter strategy and human source operations (SIRC Review 2015-09 CSIS’s Investigation of Canadian “Foreign Fighters” [Foreign Fighter Review]), SIRC recommended that the Service seek clarification on whether Crown immunity afforded CSIS employees and human sources protection from the Criminal Code’s anti-terrorism offences. In this recommendation, SIRC quotes from what has been described as a preliminary NSLAG opinion addressing the issue of Crown immunity in the context of the specific operation under review. That opinion described the Service’s ability to rely on Crown immunity as “a grey area.” SIRC was also provided with the 2013 opinion. The above recommendation was repeated in SIRC’s 2015 – 2016 Annual Report.
[54] The updated 2015 Ministerial Direction was issued to the Service by the Minister in July 2015. In the course of preparing this update, the Service 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 June 2015, the Department of Justice’s Assistant Deputy Minister of Public Safety, Defence and Immigration addressed the request for the inclusion of wording recognizing an exception, stating that the Service likely did not benefit from Crown immunity:
Justice is unable to provide such wording as the Department has advised that there is a low likelihood that human sources will be able to rely on Crown immunity as a defence in relation to activities that are offences under the Criminal Code or other statutes. Moreover, Justice has also advised that there is a low likelihood that CSIS itself (including its officials and employees) would benefit from Crown immunity with respect to such activities. Bestowing of Crown immunity on CSIS is not consistent with the CSIS Act, which explicitly addresses unlawful activities, by for example, requiring under ss. 20(2) that the Director report to the Minister, where he is of the opinion that a CSIS employee may have acted unlawfully in the purported performance of his duties.
[…]
The new threat diminishment provisions [in the CSIS Act] further support this view […]. 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. [Emphasis added.]
[55] The then Senior General Counsel for the NSLAG describes this opinion as significant because it marks the first time that the Department of Justice unequivocally told the Service that it likely did not benefit from Crown immunity.
[56] It is worth noting that the Service and the NSLAG did not provide SIRC with the June 2015 opinion as SIRC was preparing its Foreign Fighter Review. Nor did the Service or the NSLAG provide SIRC the June 2015 opinion in response to the recommendation that the Service clarify the availability of the Crown immunity doctrine. This despite SIRC’s access to legal advice, the opinion being directly relevant to the review, contradictory of the previous advice that was provided, and seemingly fully responsive to the recommendation that the Service seek legal clarification on the protection afforded by the doctrine.
[57] In October 2015, the NSLAG prepared further written advice for the Service on the issue of Crown immunity. This advice contradicted the Assistant Deputy Minister of Public Safety, Defence and Immigration’s unequivocal opinion from June 2015. NSLAG counsel advised in October 2015 that the Department of Justice maintains that the Service “may rely” on Crown immunity, with the caveats relating to the uncertainty surrounding the applicability of the doctrine and the “medium to low chance” of success should the matter be reviewed by a court. The Senior General Counsel for the NSLAG reviewed the October 2015 opinion, felt it was too favourable to the Crown immunity doctrine, and understood that the opinion had not been finalized. However, the advice was delivered to the Service’s Deputy Director Operations.
[58] The SIRC recommendation led the NSLAG to prepare a new legal opinion. This new opinion, delivered to the Director of the Service in January 2017, concluded that the Service did not benefit from Crown immunity. The Director recognized that the opinion foreclosed the Service’s reliance on Crown immunity and that this would have a significant impact on Service operations. The Director sought a meeting with the Deputy Minister of Public Safety and Emergency Preparedness, the Deputy Minister of Justice, and the National Security and Intelligence Advisor to discuss the opinion and potential legislative solutions.
[59] In the meeting, the Deputy Minister of Justice advised that senior members of the Department of Justice would review the opinion. The Department of Justice would then advise the Director of the Service and the Deputy Minister of Public Safety and Emergency Preparedness of the result of its review and whether viable solutions short of legislative reform existed.
[60] The Director of the Service understood that the Department of Justice’s review would result in a definitive opinion on Crown immunity within a relatively short period. Pending receipt of that opinion, th