A prominent judge has found that a Canadian spy service has not been forthcoming with Federal Court.
The ruling, which is classified, will likely slow down a trend toward partnerships among intelligence agencies, observers say, while also raising questions about whether Canada’s courts and watchdog agencies can keep up with complex spying practices.
In a highly unusual statement, the Federal Court says that Justice Richard Mosley found last week that the Canadian Security Intelligence Service was not sufficiently open about all the surveillance alliances it planned to form. Five years ago, CSIS had persuaded him to sign off on a foundational eavesdropping warrant to extend its reach outside Canada.
On Friday, the court released a classified ruling to interested parties. A public version of the ruling is set to be circulated in coming days.
On Monday, the court gave a hint of what is coming. “Justice Mosley has found that CSIS breached its duty of candour to the Court by not disclosing information that was relevant,” the statement said. And it added that, despite perceptions to the contrary, “the Court considers it necessary to state that the use of ‘the assets of the Five Eyes community’ is not authorized under any warrant issued.”
The “Five Eyes” refers to the alliance of U.S., British, Canadian, New Zealand and Australian intelligence agencies, known more for co-operating on big-picture intelligence issues than for advancing particular investigations against individuals. Last month, a federal watchdog agency circulated a report that said CSIS “leverages the assets of the Five Eyes community” in each of the 35-plus special warrants it has obtained since 2009.
Last week, Judge Mosley and Federal Court felt compelled to clarify that they never authorized that foreign agencies advance Canadian investigations.
The special CSIS warrant power was first granted in 2009, when two Canadian terrorism suspects were hopping borders and thwarting wiretaps. Because surveillance laws stopped at the border, CSIS asked Judge Mosley to preside over a marriage between itself and a “foreign-intelligence” Canadian agency, so that authorities could better eavesdrop on these individuals.
Intelligence agencies kept tabs on the two suspects for a year; it is not clear what happened to the suspects. Details are classified.
Legal observers says the new ruling hurts CSIS’s credibility.
“If you are going to be given the right to do things in secret, you have to be held to the highest standard,” said Norm Boxall, a lawyer who has battled CSIS secrecy in courts.
The new ruling may bring far more scrutiny on the way that CSIS and other federal agencies enlist the far-reaching powers of Communications Security Establishment Canada, a spy agency that collects global telecommunications, in partnership with the Five Eyes, while being banned from spying on Canadian communications.
In exceptional cases, federal security agencies can seek legal clearance to advance their investigations by enlisting CSEC’s ability to tap global telecommunications traffic. Records this week released to The Globe under Access to Information laws show that CSEC receives a total of between 70 and 80 such “support to lawful access requests,” each year from CSIS, the RCMP, Canada Border Services Agency and National Defence.
Further breakdowns were withheld for national security reasons.