A controversial law that allows Canada's spies to engage in terrorism-disruption campaigns may pose problems for federal police and diplomats. For this reason, they are being given a peek at some CSIS operations – and even allowed to challenge them.
Newly released records suggest that Bill C-51, the controversial 2015 omnibus bill that overhauled the Canadian Security Intelligence Service, has sent ripples throughout the federal-security bureaucracy. CSIS's so-called "threat-reduction activities" (or TRAs) have prompted fears of unintended fallout.
To mollify concerns, the spy agency has committed to giving potentially affected agencies a heads up about what it is doing, according to records recently released to The Globe and Mail via access to information laws.
For example, an "enhanced consultation memo" was recently signed between CSIS and Global Affairs Canada.
While much is redacted in the undated document, CSIS promises to loop in foreign-affairs functionaries about things it is doing. "The Service will provide intelligence assessments … of TRA measures which have a foreign policy component."
On Nov. 24, 2015, CSIS Director Michel Coulombe and RCMP Commissioner Bob Paulson co-signed a memo where they agreed to have their lieutenants brief each other on counterterrorism probes. CSIS's "new mandate to reduce threats" could potentially increase the likelihood of the agencies "adversely affecting each other."
So, "when CSIS is considering the use of threat-reduction measures, CSIS will initiate strategic case-management discussions with the RCMP on the target of the measure," the memo says.
It then adds that the RCMP can try to block any CSIS actions that could impair police investigations.
"The RCMP may indicate that it needs time to review the information discussed to assess any potential conflict," it says. Should the two agencies end up at loggerheads, "the matter will be referred for a more senior level discussion."
The memo came shortly after Liberal Prime Minister Justin Trudeau gave Public Safety Minister Ralph Goodale the job of undoing "the problematic elements" of C-51.
During the 2015 election, the incumbent Conservatives had put their political muscle behind the law. While the Liberals also voted for the legislation, they were lukewarm about it.
One year later, the Liberals have taken no legislative steps to alter C-51, although on Thursday, the minister did announce he has launched a website where Canadians can weigh in with opinions. "The government wants to know what you think about CSIS's new threat-reduction mandate," it reads at one point.
What will make this consultation exercise unique and challenging is the fact that the public knows almost nothing about how CSIS wields its threat-reduction powers.
Mr. Coulombe, the spy chief, told Parliament in March that such powers have been exercised only a couple of dozen times since the bill passed. Prior to that, he once testified that C-51 could allow CSIS to "go into disrupting a financial transaction," or "disabling a mobile device" or "tampering with equipment."
Yet these are among the more innocuous kinds of questionable tactics that global spy agencies engage in. The law says that CSIS officers cannot physically harm a suspect, but it can consider violating his or her Charter rights – so long as the minister and a Federal Court judge first approve.
The fears in the federal bureaucracy have less to do with human rights than the lessons of bitter experience and bureaucratic rivalry. It's no secret that diplomats hate the prospect of being sandbagged should their spy colleagues get caught doing things the host country would consider illegal.
There are no territorial limits on where CSIS can use its new powers.
Within Canada, legal land mines can and do erupt in cases when CSIS and the RCMP trip over the same group of suspects. The two agencies are fundamentally different animals – while police hope to prosecute criminals in open courts, CSIS officers have no powers of arrest and will fiercely resist any attempts to make them testify in court.
Crown lawyers have shown in the past they will scuttle a long-standing prosecution if the alternative is risking a CSIS source or method. This makes the so-called "TRAs" potentially problematic – a years-long RCMP prosecution could be blown, for example, if the Crown wanted to protect details of a past CSIS operation that surfaced in the disclosure.
The "One Vision 2.0" memo signed by Mr. Paulson and Mr. Coulombe aims to build on a running RCMP-CSIS dialogue that anticipates and pre-empts such problems. Somewhat uncharacteristically, the federal spy agency has agreed to keep copious records of its threat-reduction activities, just in case a court should ever need to see them.
"CSIS agrees to make and preserve a precise, detailed record … [for] any threat reduction activity it undertakes," the memo says.