Faced with what is being called an “urgent need” to win back the trust of judges, federal-government spies and their lawyers are trying to learn how to be more forthcoming in court.
Intelligence officials have commissioned expert reports and are taking courses on warrant-writing as part of actions to mitigate the fallout from a scathing Federal Court ruling. In that decision released last fall, a group of judges publicly complained that Canadian Security Intelligence Service (CSIS) officials and their Department of Justice counsel have not included enough information in their warrant applications.
In October, the Federal Court ruled that CSIS had used its warranted authorities to unlawfully warehouse communications data. The information related to people who were not targets themselves, but whose data were captured during surveillance operations on other people. The information was put into a CSIS data-analytics unit the judges said they were never told about.
“We took the court’s criticisms seriously,” said Christian Girouard, a spokesman for the Justice Department. “We wanted someone to come in from the outside with expertise who could review our practices and tell us how to do it better.”
The CSIS controversy at Federal Court was revealed just as Public Safety Minister Ralph Goodale had launched a public consultation on the surveillance powers of federal agents. It complicated already complex political debates, including how the Liberals should make good on their campaign promises to rein in some spy-agency powers and heighten Parliamentary scrutiny of intelligence operations.
At issue in the Federal Court are the closed-courtroom hearings in which officers from the domestic spy agency ask judges for permission to launch surveillance operations against individuals or groups in Canada, such as suspected terrorists, networks of foreign spies or the people around them.
Details about what is said, done and authorized are almost never disclosed publicly for security reasons. What is at stake, however, are the broader principles of civil liberties and judicial integrity, especially as intelligence gathering evolves beyond conventional wiretapping toward increasingly complex, data-driven spying.
CSIS and its Justice counsel are supposed to tell warrant judges everything they might want to know in the hearings. In 2013, a Federal Court judge complained in a written ruling of “strategic” omissions. Last year, 14 specially designated Federal Court judges ruled that CSIS and Justice had verged on contempt-of-court by failing – for a decade – to tell the court the spy agency had launched the data-analytics centre, where it was indefinitely storing telecommunications information drawn from wiretaps.
“Both [agencies] understand the urgent need to restore the confidence of the Federal Court in them, and have resolved to make every effort to repair this vital relationship,” reads one of two expert reports recently commissioned by the federal government. “… In each case, the Court expressed its disapproval in very strong language.”
The reports are on the Justice Department website. One of them was written in December by Murray Segal, a former chief prosecutor of Ontario, and it makes 21 recommendations for better policies and scrutiny around CSIS warrant applications. Mr. Segal urged ongoing training, and with an RCMP sergeant and several Crown lawyers, conducted a two-day course in January for 50 spy-agency and legal officials on best practices from the criminal justice system’s approach to obtaining wiretaps.
Speaking to The Globe and Mail, Mr. Segal suggested it is getting harder for spy-agency officials to tell judges everything they need to know. CSIS and its lawyers “are well-intentioned and extremely hard-working people who do … high-pressure work,” he said. The recent shortcomings, he added, were not about falsehoods so much as “not always being comprehensive in terms of bringing to the table all the issues a judge issuing an order might want to have.”
His report points out that Parliamentary law allows relatively intrusive spy-agency measures, but because CSIS lacks powers of arrest or to lay charges, no defence lawyers get to challenge the surveillance at trial.
“Indeed, even though a CSIS warrant can authorize profound intrusions into a person’s privacy, the target is never notified that he or she was ever a target. The adversarial challenge mechanism that elsewhere helps keep state power in check is generally absent,” Mr. Segal’s report said.
This, he added, “places a heavy responsibility on the service, on counsel and on the court to get it right.”
A followup report by John Sims, a former Justice deputy minister, gives specific guidance on how to implement the proposed changes. One of his points is that complex surveillance technologies and methods are blurring the lines on when CSIS needs warrants.
Mr. Sims suggests Federal Court judges may have several blind spots that CSIS and Justice must resolve soon. “An inventory of all programs and activities (including technical developments) related to CSIS operations that could potentially trigger a duty-to-disclose to the Court needs to be put together,” he wrote.
In addition to all this, CSIS and the Justice Department have lately signed on to a “full, frank and fair disclosure” courtroom policy that explicitly obliges CSIS officials to tell judges about any “new intrusive technique” being considered.
The Canadian government reaction to intelligence-warrant practices stands in contrast to similar debates in the United States and Britain, where leaks about modern spy programs have brought information about intelligence agencies’ activities out into the open. In both of those jurisdictions, spy agencies were found to be using judicial warrants or ministerial orders to collect records relating to citizens generally – and not just spy-agency targets. Telephone-call logs, for example, were among several bulk data sets these agencies amassed in hopes it could be data-mined for potential leads.
The Canadian government has never had to weather such disclosure, but cryptic criticisms have been raised lately by CSIS’s watchdog agencies.
The Security Intelligence Review Committee said last year that CSIS had been collecting some data in bulk quantities without warrants, and urged judicial oversight for this.
Separately, the Privacy Commissioner of Canada has sounded the alarm about federal agents gravitating toward new technologies that “allow for personal information to be analyzed algorithmically to spot trends, predict behaviour and potentially profile ordinary Canadians with a view to identifying security threats among them.”Report Typo/Error