Public Safety Minister Ralph Goodale says he will make sure Canada’s spy agency takes action after a Federal Court found that its officials have misled justices and unlawfully amassed data about people not suspected of being threats.
The Canadian Security Intelligence Service was found this week by Justice Simon Noël to have made chronic omissions in wiretap applications.
Suggesting at one point that CSIS’s behaviour verged on contempt of court, he wrote that the spy agency had tried to keep its intelligence programs hidden.
For at least 10 years starting in 2006, CSIS has been skimming telecommunications data, such as phone logs and Internet trails, from the conversations it has intercepted after receiving authorization from the Federal Court.
The spy agency is required to destroy the records of some conversations it captures, including those of people who were in contact with CSIS targets but were not suspected of being a threat to security.
However, the spy agency has been holding onto the data related to these people, and had not disclosed this in wiretap applications.
Federal Court judges, who are on the front lines of making sure CSIS surveillance is lawful, were outraged to learn of such retention in a watchdog’s report earlier this year.
They convened court hearings on the matter, and ruled this was always fundamentally unlawful under the CSIS Act.
During the 1980s, the spy agency’s first director resigned after taking personal responsibility for a subordinate’s inclusion of false information in a wiretapping warrant.
On Friday, Mr. Goodale said he intends to ensure that CSIS follows the Federal Court’s directive to stop the controversial practices.
Pressed on whether he plans to fire anyone now, Mr. Goodale said only that he wants to have words with CSIS officials.
“I will discuss with the executive management of the service how they plan to respond to this judgment,” he said.
The minister told reporters that CSIS director Michel Coulombe has told him that CSIS lacks records that indicate it got ministerial approval in 2006 to launch the programs.
“I take that as a pretty serious defect in the record keeping of the organization.
“That is one of the things that absolutely needs to be rectified,” he said.
The issue came to the court’s attention in a January, 2016, report from CSIS’s watchdog, the Security Intelligence Review Committee (SIRC).
The report to Parliament found that the spy agency’s retention of data associated with wiretaps was potentially unlawful. SIRC also urged CSIS to make the Federal Court aware of it.
In its written response to the committee, CSIS said the report was wrong, and that intelligence officers have no duty to tell the court about what is done with wiretaps after Justices approve them.
“The CSIS Act does not confer any general supervisory authority to Federal Court Justices, therefore, [CSIS] believes that SIRC’s recommendation was both inappropriate and unwarranted,” the spy service wrote at the time.
After seeing the report, Justice Noël and 13 colleagues convened as a group four times to grill members of the spy agency.
Justice Noël’s ruling, released this week, concludes: “I find CSIS has breached its duty of candour by not informing the Court of its ‘associated data’ retention program.” He points out another judge faulted CSIS for similarly misleading testimony in 2013.
“I wonder what will it take to ensure that such findings are taken seriously? Must a contempt of court proceeding, with all its related consequences, be necessary in the future?” Justice Noël wrote.
The CSIS director said he has taken “immediate actions” to stop the practices.
“I regret that we did not meet our duty of candour,” Mr. Coulombe, who has held the spy service’s top job since 2013, said in a statement.
In 1987, Ted Finn resigned from the same position after learning one of his intelligence officers gave false information to the Federal Court. Mr. Finn died in 2007, and his successor at CSIS said he was a man bound by principles of personal accountability.
“Why did he feel he had to resign?” Reid Morden said in response to a Globe question.
“He felt the person at the top should take responsibility for the actions of people in the organization. In this case, it was a case of people being economical with the truth in an application for a wiretap.”
While Justice Noël found CSIS had broken the law, he makes a point of saying the spy agency’s intent was to protect national security.
The data, once parsed and analyzed, “yielded some useful intelligence results,” he writes.
In somewhat cryptic language, Justice Noël said he regrets that his findings may have unforeseeable effects on other data programs run by CSIS and its allies.
“Technology behind the operation of warrants has progressed so much that the scope and volume of incidentally gathered information have been tremendously enlarged,” his ruling says.
“The information gathered is vast but still must be carefully assessed in order to ensure that its collection and retention complies with the law.”
Editor's note: An earlier version of this story incorrectly said Mr. Goodale was told CSIS lacks records that indicate whether it briefed previous ministers on the programs. In fact he was told CSIS lacks records that indicate if it got ministerial approval in 2006 to launch the programs. This is the corrected version of the story.Report Typo/Error
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