Canadian intelligence agencies lied to obtain warrants, Federal Court judge says

In what can only be called a stunning decision (IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF]), a judge of the Federal Court of Canada has concluded that Canadian intelligence agencies essentially lied to the court in order to get warrants that never would have been granted had they exercised the appropriate level of candor. In addition, they sought to have other members of the "Five Eyes" group carry out surveillance of Canadians that they would have been prohibited from doing themselves.

The Ottawa Citizen does a great job summarizing the decision and its impact: CSIS asked foreign agencies to spy on Canadians, kept court in dark, judge says. It also includes good insights from national security law expert Craig Forcese at the University of Ottawa.

Some extracts from the decision:

“I am satisfied that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the court was led to believe that all of the interception activity would take place in or under the control of Canada.”

“The principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the Five Eyes to intercept the communications of the Canadian targets, CSIS and CSEC officials knew ... this would involve the breach of international law by the requested second parties.”

“There is nothing in any of the material that I have read ... that persuades me that it was the intent of Parliament to give the service authority to engage the collection resources of the second party allies to intercept the private communications of Canadians.”

“It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the service either directly or through the assistance of CSEC.”

“There must be no further suggestion in any reference to the use of second party assets by CSIS and CSEC, or their legal advisers, that it is being done under the authority of a (section) 21 warrant issued by this court.”

The Citizen also obtained the following unsurprising reactions from CSIS and CSEC, which I would also say don't live up to any reasonable interpretation of "candor":

CSIS: “Protecting Canada’s national security interests in today’s globalized world is increasingly challenging, with little margin for error, especially in matters of counterterrorism. The international character of terrorism means that security is more than ever a shared effort. Everything that CSIS does, alone or with trusted partners, is consistent with Canadian law and Canadian values.

“We understand that protecting Canada’s national security interests is not just an important mandate but a sensitive one. As an organization, we are always looking to become more effective as we adapt to increasingly complicated threat environments.”

CSEC: “We will be reviewing this decision carefully. CSE may only conduct intelligence activities in Canada under its mandate to provide assistance to federal law enforcement and security agencies upon request. These activities respect Canadian laws and Canadian values, and are conducted under the requesting agency’s legal authorities, such as any applicable court warrant. CSE is bound by and must respect any limits in those authorities. All CSE activities are subject to review by the CSE commissioner, who for 16 years has reported that CSEC continues to act lawfully in the conduct of its current activities.”

The Globe & Mail also has good coverage of this decision: Canada’s spy agencies chastised for duping courts.

I can't help but think that though spies are not expected to have scruples and ethics, the Federal Department of Justice lawyers who participated in this likely failed to meet their professional obligations that exist regardless of their political masters and whom they are representing.

The misleading affidavits used at the ex parte hearings to obtain the warrants were prepared by and sworn in front of lawyers who have a free-standing, ethical obligation to never mislead the court. This is noted by Justice Mosley:

[82] The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v Canada (Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3 at para 27:

In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank, supra, at paragraph 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c.10, r.8.

[83] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re), 2010 FC 1243 at para 117, rev’d on other grounds 2012 FCA 122, appeal on reserve before the Supreme Court; Charkaoui (Re), 2004 FCA 421 at paras 153, 154; Almrei (Re), 2009 FC 1263, para 498. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service must present all material facts, favourable or otherwise.

The Court then goes on to note that this misleading conduct was sanctioned by DOJ counsel:

[90] Based on the documentary record before me and Mr. Abbott’s evidence, I am satisfied that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada.

I find this to be appalling conduct on the part of CSIS, but it is even more egregious that it was in consultation with legal counsel. It brings shame on the profession and also brings the administration of justice into disrepute.