Alistair Hensler was the assistant director of the Canadian Security Intelligence Service (CSIS) from 1990 to 1994. He has a long history in the security intelligence field dating from 1963.
The 1970s were not kind to the RCMP Security Service. After the October Crisis, about which the RCMP had little or no warning, the combined national-security intelligence and policing organization was dogged by allegations over its questionable and even illegal tactics, from stealing Parti Québécois membership rolls and electronically surveilling private property to break-ins and opening mail. That led to a rare legislative and judicial intervention: a commission of inquiry under Judge David Cargill McDonald produced a 1981 report which ultimately led to the creation of the Canadian Security Intelligence Service (CSIS) three years later.
So for observers of the security intelligence field in Canada, recent developments have brought about a sense of déjà vu. In mid-July, the Federal Court charged that CSIS “likely broke the law” because it “breached the duty of candour” that it owed to the judiciary to be open and honest. The Court also found “institutional failings” around how CSIS assesses the legal risk of its programs. For his part, CSIS director David Vigneault said the activities that prompted this court ruling are “representative of the bread and butter practices conducted by our allies around the world.”
So what has brought CSIS to this point? The answer is not complicated: CSIS is experiencing an identity crisis. It is a security intelligence service that wants to be a foreign intelligence agency.
There is an important distinction that CSIS either does not understand or actively chooses to ignore: As a security intelligence service, CSIS has a clearly defined mandate to investigate threats to the security of Canada (which are defined in section 12 of the CSIS Act) and report to government on these threats. Review mechanisms are also in place to ensure that CSIS respects the laws of Canada and the rights and privacy of its citizens.
But a foreign intelligence agency, which CSIS is striving to emulate, would have a much broader mandate which could include collecting information related to trade, economics, politics, military and science in foreign countries where the government has identified interests relevant to Canada. A true foreign intelligence agency would also operate exclusively abroad, would be prohibited from conducting operations at home, and would be empowered to collect information by various clandestine means, even if such activities could violate local laws in some foreign countries.
Section 16 of the CSIS Act does open the door ever so slightly for CSIS to collect foreign intelligence, but the application of restrictions are limiting. Requests must be forthcoming from government (Global Affairs or National Defence); collection must take place “within Canada”; and subjects must not be Canadian citizens or Canadian entities. From all reports, this section has been used very sparingly.
Perhaps successive governments have not fully understood the full potential that this section offers. Foreign embassies are microcosms of the countries they represent. If the Canadian government is negotiating a trade agreement or an arms sale, the interception of the embassy’s conversations and communications could provide valuable insights for negotiators. In 2018, CSIS asked the Federal Court to modify or expunge the restriction on collecting foreign intelligence “within Canada” from section 16 which in effect would have allowed it to take on a foreign intelligence agency role. The court wisely declined the request.
It is unclear whether CSIS’s application was self-initiated or sponsored by a government seeking political expediency instead of pursuing legislative changes. Either way, it should not have occurred. In his 1981 report, Justice McDonald articulated a strong case against combining the roles of security intelligence and foreign intelligence in one organization, notably that “…there is a danger of creating a security and intelligence monolith in a democratic society.” He also expressed concern about “the danger of contagion,” the more liberal investigative techniques associated with the collection of foreign intelligence abroad being adopted illegally for security intelligence cases. Justice McDonald’s advice is as relevant today as it was nearly four decades ago: The line between security intelligence and foreign intelligence is easily blurred.
A number of Federal Court rulings have highlighted persistent, systemic failings at CSIS, as they have been unable to differentiate the Service’s primary, legal mandate from the perceived swagger of pretending to be a foreign intelligence agency. The Federal Court’s criticism seems to indicate that perhaps the line has been crossed. Debate or meaningful action by government to rectify long-standing policy issues in the intelligence community has been non-existent. Government has the responsibility to refocus CSIS to its primary role as a domestic security intelligence service and, following the sage advice of Justice McDonald, the federal government must assign the collection of foreign intelligence abroad to a new and distinct agency operating exclusively abroad. These actions will ensure that the line between security intelligence and foreign intelligence will remain clear.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.