How CSIS seeks warrants undermines national security investigations, report warns

The process by which Canada’s spy agency seeks warrants jeopardizes its national security investigations, according to a new report from an independent watchdog.

The National Security and Intelligence Review Agency (NSIRA) report, released with redactions on Thursday, highlights a troubled relationship between the intelligence service and the Justice Department.

“This review revealed an intelligence service and its lawyer who are struggling to organize themselves in a way that allows them to easily fulfill their legal obligations,” it read.

CSIS’s mandate is to investigate suspected threats to national security — such as espionage, foreign interference and terrorism — and to take action to reduce those threats. If these measures violate the Canadian Charter of Rights and Freedoms or any other Canadian law, CSIS must first obtain a warrant from a Federal Court judge.

The agency would need a warrant to, for example, intercept a target’s communications.

The report’s authors wrote that while safeguards in the warrant application process are essential, the current system is afflicted with excessive complexity and lacks clear lines of accountability.

The “warrant application process is preventing some collection activities from moving forward,” the report said.

A “culture of distrust”

Part of the problem, according to the report, is that the “laborious” process by which CSIS seeks and receives advice from the Justice Department on warrants has had a detrimental effect on CSIS operations.

OSSNR said CSIS needs quick answers when it’s in the middle of an investigation – and the Justice Department sometimes struggles to provide timely and helpful legal advice.

The department provides CSIS with warrant advice using a “traffic light” system where a green risk rating represents low legal risk to CSIS, a red rating represents high legal risk and yellow represents an intermediate legal risk.

“Yellow light responses are said to be the most common and frustrating for CSIS, particularly when not accompanied by discussions of how to mitigate the risk,” the report said.

Justice Minster and Attorney General of Canada David Lametti. According to the report, Justice Canada does not always give CSIS the legal advice on warrants it needs to do its job. (Sean Kilpatrick/Canadian Press)

But investigators also said CSIS did not always share relevant information with the federal department.

“The issues have resulted in a culture of distrust of Justice Department lawyers and a systemic reaction that CSIS sometimes avoids seeking legal advice,” they wrote in the report.

In a joint statement to the media, Justice Minister David Lametti and Public Safety Minister Marco Mendicino said they accept “almost all of the review’s recommendations” and are working hard to implement them.

“Justice Canada and CSIS take their responsibilities to Canadians very seriously. Extensive work to make the necessary changes and improvements is already underway and will continue,” the statement said.

The statement added that the government has retained the services of an adviser, former Supreme Court Justice Ian Binnie, to help implement the recommendations to the Department of Justice.

CSIS does not prioritize warrant training

Although warrants are “the lifeblood of CSIS’s functions as an intelligence agency,” the review also found that CSIS has not made seeking these warrants a skilled trade within the intelligence agency. agency that requires training, experience and investment – ​​despite regular warnings from the Federal Court. for omitting key details from warrant applications.

CSIS agents involved in the early stages of preparing warrant applications do not clearly understand the legal expectations associated with the duty of candor, the OSSNR said.

Watchdog investigators have found that CSIS still struggles to ensure that all information relating to the credibility of sources is properly included in warrant applications.

The NSIRA said the agency’s information management systems related to human sources are “deficient” and have led to significant omissions.

CSIS’s troubled relationship with the warrant process is far from new.

In 1987, the very first head of CSIS – Ted Finn – had to resign after the case against Harjit Singh Atwal, accused of conspiring to assassinate a BC cabinet minister, was dismissed due to a faulty wiretap warrant.

Despite changes since then, CSIS continues to suffer from warrant errors. In 2004, for example, CSIS had to tell the Federal Court that its warrant application contained inaccurate information.

The Canadian Security Intelligence Service has had problems with its warrant applications for years. (Radio Canada)

The following year, the Federal Court denied a warrant application by CSIS after determining that some of the information in the affidavit was misleading and failed to disclose material facts.

Despite promises of reform, Thursday’s report concluded that the problems are deeply rooted in CSIS.

“NSIRA has heard repeated concerns from those interviewed that issues arising from governance, systemic and cultural challenges jeopardize the ability of the intelligence service to fulfill the mandate entrusted to it by Parliament,” the dog wrote. keep in his report.

“Addressing these challenges is in the urgent public interest.”

The NSIRA defines “systemic” issues as those that affect the organization as a whole, not those that originate with individuals. She defines “cultural” issues as those that have emerged over time within an organization as its members have learned to work in a particular way through a shared understanding.

Low morale reported to spy agency

Thursday’s report stems from a 2020 Federal Court decision that found CSIS breached its “duty of candor” by failing to report that it relied on illegally collected information to support claims. warrants in an investigation of extremism.

Shortly thereafter, the NSIRA launched a review of how the agency handles warrant applications. He conducted dozens of confidential interviews with Department of Justice and CSIS employees.

Reviewers repeatedly heard interviewees’ concerns about cultural issues facing the agency, often stemming from frustrations with the warrant application system.

“The OSSNR has heard and read a great deal about the very low morale of CSIS,” the report said.

“Morale is affected when a warrant acquisition system repeatedly prevents CSIS agents from performing their duties, and is the source of regular reputational crises resulting from breaches of candor.”

Another issue raised during the interviews was the inadequate training of intelligence officers.

“CSIS recognizes that it is not currently a learning organization and does not have a culture of learning,” the report said.

“There are too few training opportunities needed to maintain a modern professional intelligence service operating in a complex environment.”

Ultimately, the NSIRA made 20 recommendations to CSIS and the Ministries of Justice and Public Security.

The authors of the reports said the NSIRA will launch a follow-up review within two years to see if anything has changed.

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