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________________________________________
Advice on Implementing the Recommendations of
Murray D. Segal’s Review of
CSIS Warrant Practice
________________________________________
John H. Sims, Q.C.
Ottawa, ON
March 2017
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PART I - INTRODUCTION ....................................................................................................................... 4
CONTEXT ....................................................................................................................................................................4
METHODOLOGY .........................................................................................................................................................5
GENERAL COMMENTS ..............................................................................................................................................5
PART II — IMPLEMENTING RECOMMENDATIONS ....................................................................... 6
DUTY OF CANDOUR (CHAP. IV, V, VI) ................................................................................................ 6
SEGAL REPORT ANALYSIS AND RECOMMENDATIONS ..........................................................................................6
Chapter IV — first principles ............................................................................................................................. 6
Chapter V — best practices ................................................................................................................................ 8
Chapter VI — implementation and scenarios............................................................................................ 8
IMPLEMENTATION ................................................................................................................................................. 10
Joint protocol / policy on duty of candour.................................................................................................11
RESPONDING EFFECTIVELY TO JUDICIAL CONCERNS (CHAP. VII) ...................................... 12
SEGAL REPORT ANALYSIS & RECOMMENDATIONS .......................................................................................... 12
IMPLEMENTATION ................................................................................................................................................. 13
Tracking judicial concerns — former practice .......................................................................................13
The new tracking system ...................................................................................................................................14
Concerns logged over first eight months ....................................................................................................14
Research and consultation................................................................................................................................15
Status of the current change requests .........................................................................................................15
Next steps ..................................................................................................................................................................16
Oral summary ......................................................................................................................................................................................... 16
Acknowledgment letters to the Court ........................................................................................................................................ 16
Status report to the Court ................................................................................................................................................................. 16
Results & priorities .............................................................................................................................................................................. 17
Confirm final resolution in writing .............................................................................................................................................. 17
En banc hearings................................................................................................................................................................................... 17
Related practice matters ................................................................................................................................................................... 19
Accountability .........................................................................................................................................................19
TRACKING LEGAL ISSUES OF POTENTIAL CONCERN TO COURT (CHAP. VIII)................. 19
SEGAL REPORT ANALYSIS & RECOMMENDATIONS .......................................................................................... 19
IMPLEMENTATION ................................................................................................................................................. 20
How to identify issues ..........................................................................................................................................20
Joint responsibility............................................................................................................................................................................... 21
High level management of process .............................................................................................................................................. 21
Accountability ........................................................................................................................................................................................ 21
Preliminary identification of issues ............................................................................................................................................. 21
First stage assessment in CSIS ....................................................................................................................................................... 22
Second stage assessment of issues .............................................................................................................................................. 23
Deciding whether and how to disclose ........................................................................................................23
Legal questions, not legal advice ................................................................................................................................................... 23
Intercepting communications — duty applies ....................................................................................................................... 23
Information relates to a warrant — duty applies ................................................................................................................. 23
Hypothetical example ......................................................................................................................................................................... 24
Query duty to inform the Court ..................................................................................................................................................... 25
Seeking Court’s guidance .................................................................................................................................................................. 25
Applying for a warrant....................................................................................................................................................................... 25
A remote situation? ............................................................................................................................................................................. 26
Section 18.3 — referring a question to the Court ................................................................................................................. 26
Other Federal Court Rules ................................................................................................................................................................ 27
Conclusion ................................................................................................................................................................................................ 27
BENCH AND BAR COMMITTEE (CHAP. IX).................................................................................... 28
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SEGAL REPORT ANALYSIS & RECOMMENDATIONS .......................................................................................... 28
IMPLEMENTATION ................................................................................................................................................. 29
EXPANDED ROLE FOR INDEPENDENT COUNSEL (CHAP. X) ................................................... 30
SEGAL REPORT ANALYSIS & RECOMMENDATIONS ........................................................................................... 30
IMPLEMENTATION ................................................................................................................................................. 30
THE CSIS LSU TEAM (CHAP. XI)........................................................................................................ 31
SEGAL REPORT ANALYSIS AND RECOMMENDATIONS ....................................................................................... 31
IMPLEMENTATION ................................................................................................................................................. 31
Intellectual diversity ............................................................................................................................................32
Recruitment ............................................................................................................................................................................................ 32
Secondments and Mentoring .......................................................................................................................................................... 32
Bringing outside counsel in ............................................................................................................................................................. 33
Consulting other experts................................................................................................................................................................... 33
Isolation and capture ..........................................................................................................................................33
Responsiveness and transparency ............................................................................................................................................... 33
Governance .............................................................................................................................................................................................. 34
Turnover of LSU counsel ................................................................................................................................................................... 34
TRAINING AND CONTINUING EDUCATION (CHAP. XII) ........................................................... 34
SEGAL REPORT ANALYSIS AND RECOMMENDATIONS ....................................................................................... 34
IMPLEMENTATION ................................................................................................................................................. 35
Warrant practice training, January 2017 .................................................................................................35
In-house training ...................................................................................................................................................35
CONCLUSION ........................................................................................................................................... 38
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Part I - Introduction
I have been asked by the Department of Justice to offer opinions, advice and assistance
to counsel acting on behalf of the Crown in CSIS warrant applications before the Federal
Court.
More particularly, my mandate requires me to
(1) review the report provided by Murray Segal (Segal Report)
(2) interview members of the National Security Litigation and Advisory Group,
the Canadian Security Intelligence Service, or the Federal Court, as necessary
(3) provide advice regarding implementation of the Segal Report and effectively
managing and conducting warrant applications before the Federal Court, and
(4) provide any additional report(s) in reply to or in addition to any report that
may be presented on the matter at hand.
It should be noted that I have not been retained to give legal advice, and I have not
done so in this Report.
Context
The Department of Justice (DOJ) and the Canadian Security Intelligence Service (CSIS or
the Service) both 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.
In two recent cases, the Court has held that CSIS and Justice counsel have breached the
duty of candour that they owe the Court. 1 In each case, the Court expressed its
disapproval in very strong language. In the Associated Data case, for example, Justice
Noël said:
The CSIS has a privileged role to play with the Court; yet it cannot abuse its unique
position. The CSIS cannot solely decide what the Court should and should not know. The
CSIS, through its elevated duty of candour must inform the Court fully, substantially,
clearly and transparently of the use it makes or plans to make of the information it
collects through the operation of Court issued warrants. Failing to do so, the Court is in
no position to properly assume its judicial obligation to render justice in accordance with
the rule of law. The CSIS must have the confidence of the Court when it presents
warrant applications. In the present file, it has certainly not enhanced the Court's
trust.2 (emphasis added)
As one part of a multi-faceted approach to improving how CSIS and the Department of
Justice present warrant applications to Court, and in an effort to restore the relationship
of trust with the Court, the DOJ retained Mr. Segal and me to provide our advice.
1
2
X(Re), 2013 FC 1275 per Mosley J ; X(Re) 2016 FC 1105, per Noël J (Associated Data)
Associated Data, at para. 107
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Methodology
In preparation for writing this report, I conducted a review of many background
documents, including the pertinent legislation, much of the jurisprudence relevant to
CSIS warrant applications, factums, files, reports and other materials that identify or
relate to the issues of concern. Much of this material was classified Top Secret.
In addition, I interviewed the Senior General Counsel and Director of the Department of
Justice Legal Services Unit at CSIS (LSU), and many of the LSU counsel engaged in
warrant application work. I interviewed other counsel in the LSU primarily engaged in
opinion work, as well. These initial interviews were conducted with the main purpose
of understanding the context, the issues and the challenges faced by the primary actors
in CSIS warrant applications, but also to get their perspectives on and suggestions about
the concerns expressed by the Court.
I also spoke with the Assistant Deputy Attorney General, Litigation; the Chief General
Counsel; the Deputy Assistant Deputy Attorney General; the Assistant Deputy Minister,
Public Safety, Defence and Immigration; with the current Acting Director of the National
Security Group (NSG); with a former longtime Director of NSG; and with other Justice
employees with information about other aspects of this review.
Mr. Segal and I discussed the general issues facing the Service and Justice and, together,
we met a group of LSU lawyers to hear their views, suggestions and concerns relating to
CSIS warrants.
I have also spoken with the Director of CSIS and with the top CSIS official responsible
for all technical operations in the Service.
I reviewed the Segal Report when it became available, and had another series of
discussions with the Senior General Counsel and several lawyers in the LSU about the
Report and about their ideas for implementing its proposals.
General Comments
My work on this project began in August 2016. Over the ensuing months, I spent a few
hours at a time in the LSU offices on many different days. I thus had the opportunity to
meet many of the lawyers, paralegals and other staff, and to interact with them as I
went about my work. Invariably, they went out of their way to be helpful and to answer
my numerous questions patiently and thoroughly. I thank them for being so
accommodating.
I have also come away from my many encounters with counsel impressed by their
professionalism and their determination to do whatever they can to restore the trust
they once enjoyed with the Court. They clearly understand that, in the balancing of
national security and civil liberties, their work can have a profound impact on
individuals’ privacy rights. They know this imposes a heavy responsibility. They also
know they owe a duty of candour to the Court, and that this imposes additional, serious
obligations.
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From my many conversations with counsel, I believe that they are committed to
discharging these responsibilities in accordance with the highest professional standards
of knowledge and skills, and consistent with all relevant legal and ethical principles.
Part II — Implementing Recommendations
Duty of Candour (Chap. IV, V, VI)
Mr. Segal opens his Report by quoting Justice Noël declaring that “The CSIS has
breached, again, the duty of candour it owes the Court”3, thus signaling from the outset
the central importance of that duty to the work he was asked to undertake. He devotes
three separate chapters and part of his Introduction, over half the pages of the Report,
to different aspects of the duty.
Segal report analysis and recommendations
Mr. Segal tackles the duty of candour in three parts: first, he examines the general legal
principles underlying the duty; secondly, he surveys best practices followed in other
jurisdictions; and, lastly, he revisits additional aspects of the duty of candour as he
considers how to implement it, and he includes a discussion of ten scenarios to test how
the principles might be applied in concrete situations.
Chapter IV — first principles
In what will certainly be essential reading for LSU counsel and CSIS affiants alike for a
long time, 4 Mr. Segal sets out here and in the Introduction a comprehensive tour
d’horizon of first principles related to the duty of candour. He quotes the classic
statements on candour from the leading Supreme Court judgments, and cites Federal
Court authority. He explains what is meant when the obligation is expressed as the duty
to make “full and frank and fair disclosure” and why each word in that formula is
important. The Report also explains the tension between making complete disclosure,
on the one hand, and the need to be clear and concise, on the other.
Mr. Segal is particularly strong in explaining why the duty of candour is essential in ex
parte, in camera warrant applications. CSIS warrants can authorize profound intrusions
into a person’s privacy, yet the “adversarial challenge mechanism that elsewhere helps
keep state power in check is generally absent”. 5 Unlike for a criminal wiretap
authorization, there is no ex post facto review of a CSIS warrant. If this “extraordinary,
exceptional” process is to be fair, and if the Court is to properly assume its duties to
assess very intrusive warrants, LSU counsel and CSIS affiants must accept the “profound
responsibility to inform the Court about anything and everything it needs to carry out
its tasks”. In short, he says, there is a
3
Segal Report, p. 1, citing Associated Data, per Noël J, p. 127
As well as for other Department of Justice lawyers engaged in similar national security proceedings, such
as hearings under section 38 of the Canada Evidence Act or proceedings under section 87 of the Immigration
and Refugee Protection Act
5
Segal Report, p. 3
4
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heavy responsibility on the Service, on counsel, and on the court to get it right – both in
terms of safeguarding national security and protecting civil liberties. 6
Mr. Segal includes a discussion of the “unique overriding obligations of the Attorney
General in the administration of justice that are deeply rooted in our constitutional
traditions”,7 and what this means for the CSIS warrant process.
The Report then examines the scope or content of the duty of candour in the CSIS
context. It is necessary to quote the Report in sufficient detail here that one can later
understand the particular challenges in implementing this duty.
This part of the discussion begins with a quotation from the Court’s judgment in X(Re):
… I do not accept the narrow conception of relevance advocated by the DAGC in this
context as it would exclude information about the broader framework in which
applications for the issuance of CSIS Act warrants are brought. In my view it is
tantamount to suggesting that the Court should be kept in the dark about matters it may
have reason to be concerned about if it was made aware of them. 8
Mr. Segal explicates this passage in words that bear repeating at length:
The implicit formulation of the duty in this passage means that counsel cannot calibrate
relevance solely with reference to the strict statutory requirements for issuance. As the
Federal Court of Appeal stated in dismissing the government’s appeal of Justice Mosley’s
decision, the court’s decision to issue a warrant is a discretionary judgment; it is not a
simple “box-ticking” exercise. 9 The discretion is informed by the broader context in
which the warrant is issued, which includes the profoundly intrusive nature of the powers
commonly sought and the warrant’s virtually unreviewable nature. The scope of the duty
of candour needs to be calibrated to the reality of the court’s discretion and likewise
cannot be reduced to a box-ticking exercise.10
The Report reiterates this theme:
… But a careful analysis of the statutory criteria does not necessarily exhaust the
question of what the court may have reason to be concerned about if it was made aware
of it. Again, this is not a mechanical or technical exercise. Rather, a broader
understanding is called for – one informed by the practical realities of implementation
and the policy context in which the warrant process operates.11
CSIS counsel have long understood the basic elements of the duty of candour, but the
particular value of the Segal Report is its elucidation of what that duty entails in today’s
CSIS warrant practice. As Mr. Segal notes, this is not always an easy exercise and “CSIS
counsel and affiants face challenges that do not have precise analogies in, for instance,
the world of criminal investigations.”
6
Segal Report, p. 3
Segal Report, p. 14
8
X (Re), 2013 FC 1275 at para. 89
9
X (Re), 2014 FCA 249, at para. 61
10
Segal Report, p. 16
11
Segal Report, p. 16
7
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Chapter V — best practices
From his survey of best practices in other jurisdictions, Mr. Segal makes several
recommendations about the qualifications, experience, training and personal qualities
ideally found in the affiants who should work on CSIS warrant affidavits. His standards
are very high. Thus, he says CSIS affiants should be “experienced, authoritative, and
independent”, theirs should be “a respected and coveted role” within CSIS, one
“invested with prestige and authority”. Affiants “must have both the authority and
temperament to push back where necessary against investigative overreach”. As I read
these recommendations, Mr. Segal puts less weight on the individual’s rank or level
within the organization, than on that person’s knowledge, experience and training,
combined with the personal authority or gravitas that he or she brings to the task.
Mr. Segal also emphasizes that anything novel (legal or technological) must be brought
clearly to the Court’s attention, and that amici should be recommended where a
warrant application raises a novel or difficult legal issue.
Chapter VI — implementation and scenarios
Chapter VI seeks to deepen the discussion of the duty of candour. Mr. Segal restates
the familiar principle that it is the court, not the party seeking relief, which determines
which facts are relevant. This is the implication in the context of the duty of candour:12
But when the dividing line of relevance is not clear, the counsel must err on the side of
disclosure, precisely because it is the court’s job to make these judgment calls, not one
party’s. As Chief Justice Richard stated in Charkaoui:13
Counsel has a strict duty to put forward all the information in its possession, both
favourable and adverse, regardless of whether counsel believes it is relevant. It
is then up to the designated judge to decide whether or not the evidence is
material.
Before they can err on the side of disclosure, however, CSIS counsel need to be able to
recognize the facts and issues that might be subject to this duty.
Getting better at recognizing where further inquiries and disclosure beyond the four
corners of a given application are required is one of the critical improvements that needs
to be made … 14
The Report develops another important theme in this chapter, namely, the Court’s role
as “gatekeepers of intrusive powers, ensuring a balance between private interest and
the state’s need to intrude upon that privacy for the collective good”.15
To the question “why did the court need to be informed about the retention of thirdparty associated data”,
12
Segal Report, p. 30
Charkaoui v. Canada (Minister of Citizenship and Immigration), 2004 FCA 421, at para. 154, rev’d on
other grounds, [2007] 1 S.C.R. 350, 2007 SCC 9
14
Segal Report, p. 31
15
Associated Data, at para. 100
13
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… Noël J. provides an answer in the form of a rhetorical question:
How can the Court properly assume its duties to assess very intrusive warrants
when the party appearing in front of it ex parte and in camera does not inform
the Court of retention policies and practices directly related to the information
the Court allows the CSIS to collect through the warrants it issues? 16
In other words, Mr. Segal says, “the Court could not properly carry out its legislatively
assigned role as arbiter of the balance between state and individual interests in this
area without a full appreciation of what intrusions its warrants are explicitly and
implicitly authorizing.”
Finally, the Report says that counsel should try to put themselves in the shoes of the
Court:
… counsel should not ask “what does the Court need to know in order to adjudicate this
particular warrant application?” but rather: “what should the Court know in order to
adjudicate this particular warrant application in the context of its overall mandate to
maintain a proper balance between state and individual interests under the Act?” 17
Mr. Segal recommends that the Department of Justice and CSIS should establish a joint
policy or protocol on implementing duty of candour. This policy would start from the
general principles set out in the leading Supreme Court cases and the later Federal Court
case law, and then move to a more “granular” level. The scenarios identify many of
the issues he would expect to see covered in the protocol. To ensure it stays fresh and
relevant, the protocol should be reviewed and revised every two to three years, or
earlier as necessary.
Early in these chapters, Mr. Segal asserts that all parties involved in CSIS warrants, the
Court, counsel and the Service, must “get it right”. He ends his discussion by reinforcing
the obligation on CSIS and its counsel, saying that they are under a “super-added” duty.
The factors contributing to this heightened duty include the highly intrusive nature of
CSIS warrant powers, the absence of any ex post facto review, the special obligations
of the Attorney General, and the fact that the duty continues potentially well beyond
the life of the warrant itself.
16
17
Segal Report, p. 34
Segal Report, p. 35
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Implementation
These chapters in the Segal Report constitute an excellent treatise on the duty of
candour in the CSIS context. They present a thorough review of the legal and policy
principles that underlie the duty, and offer scenarios to test the reader’s understanding
of how the duty might apply in certain concrete circumstances. In my opinion, this part
of the Report in particular will be indispensable for LSU counsel and CSIS affiants
preparing for future warrant applications to the Federal Court.
The lengthy extracts set out above, however, also show how challenging it will be to
implement this part of the Report. Invaluable as this overview is, the principles are
expressed in general and abstract terms. Even with the scenarios, I believe that it will
be difficult to apply in an operational setting without additional advice. For example,
officials called upon to identify emerging issues that should be brought to the attention
of the Court would find it impracticable to have to work with a 40-odd page text as their
guide. See related discussion under the heading “Preliminary identification of issues”
beginning at page 21.
I wish to emphasize that, to say this, is not to criticize either what Mr. Segal has written,
or what the courts have expounded. For his part, Mr. Segal has laid out a clear exposition
of the relevant law, but the law itself is nebulous. For its part, the Court has explained
in X (Re) and Associated Data, why a narrow or mechanical approach to relevance in the
national security context is inappropriate. Resort to broad principle is inevitable.
That still leaves practitioners searching for clarity and certainty. What are the tests for
disclosure? According to the extracts above, these are all possible factors:
any matter that may concern the Court
counsel cannot rely solely on strict statutory requirements as the test of
materiality
counsel’s judgment of what is relevant is not a reliable guide to disclosure
counsel should consider:
o
o
o
the broader framework in which applications are being brought, or
the broader context in which the warrant is issued, or
a broader understanding, informed by the practical realities of
implementation and the policy context in which the warrant process
operates
the duty of candour needs to be calibrated to the reality of the court’s discretion
counsel may need to inquire beyond the four corners of a given application
what should the court know in order to adjudicate this particular warrant
application in the context of its overall mandate to maintain a proper balance
between state and individual interests under the Act?
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The call to apply a wider lens to decisions on disclosure is clear. The Court needs a
fuller context on warrant applications than it has sometime been given in the past.
Counsel fully accept that, but the parameters of the new enlarged context are still
uncertain. In my view, there is therefore an important piece missing from the suite of
instruments that are needed to guide CSIS and the LSU in this area.
Joint protocol / policy on duty of candour
Mr. Segal himself recommended that more work be done. Thus, as mentioned above,
he suggested that CSIS and the Department of Justice establish a joint policy or protocol
on implementing the duty of candour.
I strongly support this idea.
At the mid-January training conference, Mr. Segal said that he had envisaged that the
entire package of advice to Justice and CSIS on candour might be structured along the
lines of something like the Federation of Law Societies’ Model Code of Professional
Conduct. The typical section in the Code comprises a short sentence or two setting out
a rule or statement of principle, followed by commentary that can run on for many
paragraphs. Sometimes the section includes several ‘examples’.
This is an excellent way to present complex material. It combines a pithy, concise
statement of the main ideas that practitioners can readily grasp and remember, with an
exposition of the theory and background to enrich the reader’s understanding of the
simple statement. The examples further deepen the understanding.
With the Segal Report, what we have now are two of the three parts of “a Model Code
section”. We have the long commentary and examples, but we still lack a concise
statement of the governing principles.
Writing such a protocol will be challenging. The starting point, of course, is to try to
distill short propositions from the Segal Report’s examination of the duty of candour.
Moving to the more granular level, it should also be possible to identify the factors that
preoccupy the Court when exercising its gatekeeper’s role over intrusive powers.
Without falling into the trap of creating tick boxes, the Protocol might include, for
example, reference to considerations like the degree of intrusion into privacy interests,
retention of innocent third party data, and the potential of harm to Canadians abroad.
This is not an exhaustive list.
The Protocol has to be treated as a living document, and amended to accord with
experience. CSIS and the LSU are bringing a multi-faceted approach to improving how
they present evidence to the Court. As counsel and affiants work through scenarios and
difficulties in training sessions, they will get better at spotting where candour issues
may arise. As the LSU responds to judicial concerns over warrant and affidavit
templates, they will gain insights into the warrant process. So, too, as CSIS
systematically reviews its business practices, it will discover issues that need attention.
All these lessons need to be incorporated into the Protocol on an on-going basis.
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Once the Protocol is developed, put into practice, and adjusted as necessary, I agree
with Mr. Segal that the Protocol should then be reviewed periodically, and that a threeyear cycle would likely be reasonable.
The Protocol must also make plain that the duty of candour continues after the
application is finished. As one of Mr. Segal’s scenarios discusses, counsel must correct
any representation of material fact or law that he or she later learns is false.
There is a great need for such a protocol. Counsel and CSIS affiants are all acutely
aware that they bear a heavy responsibility for the profound consequences of what they
do, a responsibility they take very seriously. They also know that the standards expected
of them are very high: in Mr. Segal’s words, theirs is “a super-added duty”, they need
to use “unimpeachable judgment” and “to get it right”. They also know, of course, that
the Court has been critical of them18 and that its trust in CSIS and the LSU has been
strained by recent events.19
And yet, as Mr. Segal also says, “as in any human process, mistakes will be made”.
Counsel and affiants genuinely want to do everything they can to prevent a recurrence
of the mistakes that were made in the past.
A well-crafted protocol should go some distance to providing essential guidance for the
performance of their duties in an uncertain domain.
Responding effectively to judicial concerns (Chap. VII)
Segal Report Analysis & Recommendations
In this chapter of his Report, Mr. Segal relays a number of important messages learned
during his meeting with the Chief Justice and two of the designated judges, as well as
from his reading of transcripts and other documents. What emerges is that the Court
sometimes feels that the concerns it expresses during warrant proceedings about
recitals, powers or conditions in the proposed warrant are being ignored, or not being
addressed sufficiently promptly. This failure to keep the Court apprised of the status of
its requests leaves an impression that the Service and LSU are not treating these
concerns seriously. Mr. Segal reports that this sometimes engenders frustration among
the judges.
Mr. Segal advises counsel to become more responsive and transparent.
Judges simply need to know where CSIS stands on issues that have been “flagged”, so
that (where necessary) the judge can make appropriate changes to a warrant, pursue a
matter further with counsel, or simply be satisfied that his or her concerns have been
allayed.20
To this end, he says, counsel should follow up promptly after any hearing in which a
judge has made comments by writing to the Court to acknowledge the concern, confirm
18
X (Re), at paras 90, 117-118; Associated Data, at paras. 7, 108, 235
Associated Data, at para. 107
20
Segal Report, p. 51
19
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that a review is being conducted, and to advise the Court of the expected timeline for
providing a substantive response.
In an idea developed more fully elsewhere in the Report, Mr. Segal suggests that, in
circumstances where the LSU respectfully disagrees with the judge’s comment or
concern and wishes to seek a ruling, it would be desirable for counsel to be able to
request an en banc hearing where the issue could benefit from the Court’s collective
consideration.
Implementation
I agree with this recommendation. Starting now, the LSU should adopt new practices to
acknowledge when a judicial concern has been raised and to keep the Court informed
of the LSU’s and Service’s efforts to address that concern until the matter is resolved.
Tracking judicial concerns — former practice
The LSU has begun to implement changes in how it will track and respond to judicial
input, commentary and concerns on warrant applications. To understand the
anticipated benefits of these innovations, it is useful to know a little about its earlier
practices.
The LSU has long had a system for tracking and managing concerns expressed by the
judges related to warrants, affidavits and practice issues before the Federal Court.
Immediately after every warrant application hearing in the past, counsel recorded the
outcome of the hearing and any issues raised, including suggestions for rewording the
warrant or affidavit templates. These quick, early reports were always shared with
other lawyers in the LSU. In longer reports prepared later, counsel would outline in
more detail the concern raised, and set out their analysis of the issues and how they
might be addressed.
Even seemingly simple issues can sometimes be difficult to resolve (see below), so
months might elapse while analysis, research, consultations and decision-making were
taking place.
The former practice had certain strengths, but one of its biggest flaws was identified in
the Report. Too often, the work going on behind the scenes in the LSU and CSIS was
unknown to the Court. Individual judges might not be told the interim status of the
matter they had raised. Moreover, for the Court as a whole, there was no ready way to
determine how many concerns, in total, had been registered, or whether they revealed
any patterns. Was there duplication, overlap or inconsistency among judicial comments
and suggestions?
From the LSU perspective, the old system presented problems, too. Information about
template issues was not stored centrally but on individual warrant application files,
making it hard to search.
Importantly, there was no procedure for ensuring that answers developed in response
to a concern brought up by one judge would necessarily reach another designated judge
who might share the same concern. On the one hand, if the proposal resulted in a
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significant change to the warrant or affidavit template, then the change would almost
certainly come to the attention of the entire Court. Indeed, if the changes were
important enough, the Court might convene an en banc hearing at which to discuss the
implications of the proposal.
On the other hand, if the change was minor or if, after hearing counsel’s oral submissions
the judge simply agreed that no modification was required at all, then the fruits of this
analysis and discussion between LSU counsel and one individual judge would be recorded
in the transcript of a particular warrant hearing, but would not necessarily be known or
accessible to the rest of the Court.
The new tracking system
As Mr. Segal notes, the Legal Services has put in place a new system to track issues
related to warrants. Shortly after she arrived in the LSU last spring, the General
Counsel, Legal Operations implemented a simple but more effective way to monitor and
take stock of judicial comment and concerns relating to warrants and affidavits.
Counsel still prepare a report after every hearing, but now specific issues and questions
related to the affidavit or warrant template are entered into a so-called Change
Request Form (Form). The Form records every one of these judicial concerns, big or
small, simple or complex. As will be noted further below, this system also serves to
record and manage issues and changes requested by the Service or identified by counsel.
Critically, these Forms are now stored in one central repository, accessible to all LSU
staff. Readily searchable by all LSU counsel, the Forms systematically capture every
detail about suggestions or commentaries relating to the templates: what the issue is;
who originated it; when and to whom work was assigned; any related research,
transcripts, legal opinions or exchanges among counsel; who needs to be consulted;
when the work is completed; and, the final decision.
In addition, the LSU now also maintains a consolidated list of these concerns in
chronological order. The table shows the status of the concern: the issue, when it arose,
its priority, who is responsible, deadlines, outcome, decision taken, etc.
When the system is fully implemented, these tools will allow much more effective
management of judicial concerns and commentary, as well as better communications
with the Court. They will enable data analytics: how many changes have been proposed,
covering which terms in the templates, their age and priority, expected completion
date, etc.
The Forms and the list contain raw data. They are working documents for internal use
by the LSU. They are not intended, as is, for use by the Court. What they do provide,
however, is the material from which regular reports can be given to the Court and to
the Service about the status of warrant-related issues.
Concerns logged over first eight months
In just the eight months since the new system began, counsel had already logged 22
items related to concerns of the Court,21 a number of which had emanated from recent
21
As at the date of drafting this portion of the Report.
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en banc hearings. As in the past, it sometimes happens that more than one judge has
expressed comments about the same warrant terms. Sometimes they agree on what
changes should be made, but not always. Sometimes judges suggest different
modifications for the same term. This is entirely to be expected, because the template
wording may take on a different colouration depending on the specific factual context
of different warrant applications.
(It should be noted that CSIS and LSU counsel have made another 31 suggestions for
possible changes to the warrant/affidavit template.)
Upon receipt of these change requests, the General Counsel reviewed and prioritized
them. Some of the issues are straightforward; others are quite complicated. Some are
more important or urgent than others. Based on her assessment of the priorities, she
assigned LSU counsel to work on individual issues.
Research and consultation
If an issue is complex, then developing the best response may require some time. The
LSU and the Service each have a part to play.
Thinking through how to reconcile or choose among different, related proposals requires
analysis. There is always a history behind the wording that now appears in the template,
and it is essential to understand why that wording was originally adopted before deciding
to change it. For example, there is a large suite of different warrant templates that
are now used in CSIS applications. As technology and investigative techniques have
changed and evolved over time, new warrant templates were developed to address the
new circumstances. In some instances, this resulted in overlap between the old and
new warrants, creating complexity. Everyone agrees that it would be desirable to
simplify and rationalize these warrants, and parts of this have been done. The LSU says,
however, that in recent years neither the law nor the technology has remained still long
enough to permit a complete overhaul.
Responding to judicial concerns always involves consultation with the Service, because
any changes to the warrants also affect CSIS. Some changes, for example, would affect
how CSIS collects and retains intelligence. The Service has integrated operational
systems and procedures for collection, retention and destruction and it can take time
to re-engineer them. It can also take time to work out and understand how the
technological and system impacts should be described so that the amended warrants
will properly reflect the change and incorporate the right new powers. Similarly, if the
issue is complex, there may be consequential changes required to Service policy or
training.
Status of the current change requests
Of the 22 concerns raised by the Court, 6 of varying scope and complexity have been
completed.
The remaining issues have been prioritized and will be completed, in tranches, no later
than the end of 2017.
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Next steps
The first stages of the new tracking system have been in place for eight months. It is
now time to exploit its potential to enable a more effective response to judicial
concerns.
Oral summary
If a judge makes specific comments about recitals, powers or conditions in a CSIS
warrant during a section 21 proceeding, counsel should not wait for a transcript before
confirming, or possibly clarifying, the judge’s concerns. In all future applications,
counsel should adopt the practice, where possible, of summarizing their understanding
of the concerns raised by the judge at the end of the same hearing. The more timely
the indication that the LSU has understood the judge’s concern and commits to
addressing it the better.
Sometimes, this will not be feasible. Sometimes counsel are focused so intently on
answering the Court’s substantive questions about the warrant application itself that it
is simply not possible for him or her to have grasped, in the moment, all the nuances of
an ancillary point about a template.
If that occurs, it would still be a good practice for counsel to tell the Court at the end
of the same hearing that they recognize that a concern has been raised, and that as
soon as the transcript becomes available they will write to the Court to follow up. See
the next section.
Acknowledgment letters to the Court
Starting immediately, the LSU and Service should also adopt the practice recommended
by Mr. Segal of sending a letter to the Court to state, in writing, the LSU’s understanding
of any concerns raised, and of the projected deadline for returning to the Court with a
substantive response to the issue. Ideally, the LSU would have the transcript before
writing the letter, but if delivery of the transcript becomes unduly delayed, the LSU
should send an interim letter to inform the Court of this fact and that a more substantive
response will be forthcoming as soon as possible.
Status report to the Court
I recommend that, within one month, the LSU send a first report to the Court on the
status of the concerns raised during this eight-month period. This report should provide
enough detail that the Court can see the nature and extent of the issues identified by
the designated judges. If it is not feasible to lay out a work schedule for all 16 of the
remaining issues at this time, the initial report should nevertheless indicate which issues
have been given top priority and are being actively worked on now, and the estimated
time to completion of that work.
The LSU should update this report semi-annually, or as needed, and, in particular,
should inform the Court of any changes in priorities or deadlines that may become
necessary.
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Results & priorities
Having compiled the judges’ change requests, CSIS and Justice have to do the actual
work needed to respond to the concerns without undue delay. There is already a backlog
of issues requiring attention, and the Court will expect concrete results in a reasonable
time frame. Some progress has been made already but, given the importance both of
the issues and of restoring a strong relationship with the Court, the Service and LSU
should continue to give this work some priority.
It may happen that unexpected complications, competing demands or strained resources
threaten to interfere with the timely completion of this work. There needs to be a
forum where the Court and Justice can discuss work planning and what priority to give
to individual matters.
It might be appropriate for the Bench and Bar Committee to discuss a process for
determining such priorities.
Confirm final resolution in writing
The final disposition of every issue raised by the Court should be confirmed in writing.
This already happens where the judge’s concern culminates in a significant change to
the warrant or affidavit template. As explained above, however, where either no
change or only a minor change resulted from the exchange, then counsel in the past
might simply have agreed orally with the presiding judge on how to dispose of the
matter.
In the future, the final resolution of every issue should be confirmed in writing to enable
the Court, should it choose, to keep track of every issue raised, big or seemingly small.
I would recommend that, by default, the reporting on these matters could be done in
the semi-annual status report mentioned above.
En banc hearings
Mr. Segal suggests that it would be desirable for counsel to be able to request an en
banc hearing where discussion and resolution of an emerging legal issue of broad concern
could benefit from the Court’s collective consideration. CSIS counsel support this
recommendation. As the Report indicates, it will sometimes happen that counsel
become aware of a developing issue before the Court does, so it would useful for counsel
to be able to initiate this request. It would then be up to the Court to decide whether
the matter would be suitable for an en banc hearing, and, if so, how many judges should
sit.
While logistics and manageability might favour smaller panels, having all designated
judges hear, for example, about a novel new use of technology might favour the larger
bench. The Court will decide which route is most appropriate in the circumstances.
This may also be an opportunity for the Court to envisage enlarging the scope of how it
uses its en banc procedures. At present, while all designated judges attend en banc
hearings, at the end of the day, only one judge decides. The other judges are not there
to adjudicate, but to learn more about novel or difficult issues affecting the CSIS warrant
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practice, and to offer their insights and perspectives to the single presiding judge. The
purpose of the en banc process as it is now used was explained by Noël J in Associated
Data as follows:
An en banc hearing is one where all available designated judges attend, may participate,
and hear the evidence tendered. This format is helpful as it allows the presentation of
evidence pertinent to future warrants applications and helps avoid repetition.
Designated judges can also benefit from each other’s perspectives.22
This valuable but limited use of the en banc hearing is not how other courts typically
use en banc procedures. For other courts, the goal is not just to ensure that all judges
are aware of issues that affect their docket and have the opportunity to offer advice,
but to enable adjudicative decision-making by the entire Court.
In the case of the Foreign Intelligence Surveillance Court (FISC) in the United States, for
example, the court may order a hearing or rehearing en banc where “it is necessary to
secure or maintain uniformity of the Court's decisions, or the proceeding involves a
question of exceptional importance.” 23
Whereas, in the CSIS warrant court, the other designated judges have a very limited
role, all judges that sit en banc in the FISC are equally seized of the matter before that
court. They participate fully in the deliberations, they all take part in the decisionmaking, and they are all bound by the outcome.
Mr. Segal is clear that he is not recommending this more common model. He emphasizes
that, under the Federal Court’s practice, the judge that is designated for the proceeding
retains absolute decision-making independence and that this prevails even where the
Court has convened an en banc hearing. As he characterizes it, the concern “is not so
much with the authority to create new precedent as … with the practical benefits of
having multi-judge input on a novel and difficult issue …”.
And yet, one can imagine situations where it might be advantageous both for the Court
and for the Service if the decision on a novel or difficult issue were taken by more than
a single judge. The Segal Report describes a scenario where
… a particular issue may have gone through too many iterations in too many different
applications for full disclosure of the entire history to be helpful to the Court. If clarity
has failed to emerge and the required disclosure is becoming unwieldy, the issue may be
ripe for en banc consideration.24
Depending upon the nature of the ‘particular issues’ that had gone through ‘too many
iterations’, it could assist all involved if the Court could pronounce definitively either
on the novel subject or on divergent approaches that may have materialized over time
by issuing its decision in the name of all in attendance at the en banc hearing.
22
Associated Data, at para. 2
FISC Rules of Procedure, Title VIII, Rule 45, citing Rule 45. Standard for Hearing or Rehearing En
Banc, citing 50 U.S.C. § 1803(a)(2)(A)
24
Segal Report, p. 41
23
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Another way to encourage greater coherence but without the logistical burdens imposed
by convening all 14 designated judges en banc would be to give the Court the option to
sit in panels. Although unusual, it is not unknown for judges to sit as a panel at first
instance, to hear evidence and decide issues of fact and law. In Canada, for example,
appeals to the former Pensions Appeals Board (the Board) were heard by one, three or
five superior court, Federal Court or Federal Court of Appeal judges.25 Despite being
called “appeals”, the hearings before the Board proceeded as trials de novo, with
panels, usually of three, judges receiving testimony from sworn witnesses, and other
evidence.26 Ultimately, as noted above, it is within the Court’s discretion to decide how
the Court should be composed in any situation.
If the suggestions in this section were thought desirable, the Department of Justice
should consider suggesting to the Government any rules or legislative changes that might
be required to enable the changes.
Related practice matters
A number of related procedural and operational details need to be ironed out. What
format for the periodic status report would best serve the needs of the Court? To whom
should the LSU send the report? It is recommended here that the LSU should update the
report semi-annually; is this acceptable to the Court?
Accountability
One person needs to be responsible within the LSU for responding to the Court on all
the matters dealt with in this section of this Report, and for overseeing the work being
undertaken within the LSU to respond to judicial concerns.
In my view, the Senior General Counsel, or her senior designate, should be given this
specific responsibility.
Tracking legal issues of potential concern to Court (Chap. VIII)
Segal Report Analysis & Recommendations
The principal finding of this chapter of the Segal Report is that
CSIS and Justice need to be better at perceiving and acting upon emerging issues
that are likely to attract the Court’s attention and concern. … This involves highlevel coordination between Justice (acting through CSIS LSU) and the Service.27
In order to achieve this, Mr. Segal makes a number of findings and recommendations,
including:
25
Canada Pension Plan, R.S.C. 1985, c. c-8, s.83(6) (as amended)
CPP, s. 84(1)
27
Segal Report, p. 52
26
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the identification of issues potentially ripe for disclosure should be a regular
agenda item at high-level meetings at which the LSU is represented
there should be a dedicated committee of senior CSIS LSU counsel to be
principally responsible for “flagging” emerging issues of potential concern
the Service needs to be more attuned to seeing emerging operational issues
through the lens of their possible interaction with the warrant process
because the need-to-know culture of CSIS may curtail what counsel knows about
relevant matters, there needs to be a heightened consultation mechanism
between the Service and counsel at an appropriately high level to ensure that
both sides know which operational issues have potential legal significance for
the duty of candour
training may be needed in this regard
there should be an ability on the part of counsel to request an en banc session
to address a disclosable issue that is relevant to multiple applications.
Implementation
I agree with the main ideas set out in this chapter. It is imperative that the Department
of Justice and the Service improve their ability to identify and act on issues that ought
to be disclosed to the Court in a timely manner, and Mr. Segal has proposed some
thoughtful and practical ways of achieving this.
In my view, the recommendations raise two main questions:
How may issues be identified that should be disclosed to the Court pursuant to
the duty of candour? and
Once identified, how can these issues be brought to the attention of the Court?
How to identify issues
The first challenge in implementing the proposals in this chapter is to develop a
procedure to identify issues that need to be disclosed to the Court. This mechanism
needs to be systematic, comprehensive, timely, and rigorous.
This part of the Report should be read together with the earlier chapter dealing with
implementing the duty of candour, starting at page 10, and in particular the section on
establishing a joint protocol on the duty of candour, starting at page 11.
It should be emphasized that some disclosures are easy to identify. Where, for example,
CSIS has failed to observe the terms of a warrant, the Court must be promptly informed.
Similarly, where an oversight body is examining an issue that may affect warrant
practice, the Court must be advised promptly.
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Joint responsibility
Mr. Segal is right to emphasize that identifying issues for disclosure must be a joint
responsibility of the Service and Justice. They each have a responsibility and a role to
play in meeting the duty of candour. Neither side can do it alone; each must bring its
specialized knowledge and information to the table.
High level management of process
This cooperation should start at the top. First, it sends an important signal to both
organizations if the leadership is visibly supporting and actively engaged in this exercise.
Secondly, when it comes time to disclose information to the Court, there needs to be
department-wide awareness and buy-in.
Accountability
Mr. Segal suggests that a dedicated committee of senior LSU lawyers be made principally
responsible for flagging emerging issues of potential concern. I think the critical idea
in this recommendation is where to place accountability.
My own advice would be to hold individuals, accountable for this work, not a committee.
Since it is a joint responsibility of the two organizations to identify disclosable issues,
one person should be held accountable for the Justice share of this responsibility, and
another person for the Service’s portion.
Within Justice, I would recommend that the Senior General Counsel (SGC) be charged
with this responsibility. Both the advisory and litigation lawyers in Legal Services need
to contribute to identifying disclosable issues and, from a management perspective,
these two streams come together at her level. Moreover, she also has ready access to
the senior management of the Service: she sits as a member of the CSIS Executive and
may sit on the Operations Committees, which should facilitate this task. In short,
making the SGC accountable is both commensurate with the importance and priority
that should be accorded to this exercise and a practical way to ensure good coordination
with CSIS.
The SGC will need to establish a dedicated committee within Legal Services to help
undertake this work. She will no doubt need and want senior LSU lawyers to be part of
it, but she should not be restricted if she wants to include colleagues at other levels for
their insights and knowledge, or for other purposes such as training.
I note, but do not make any substantive comments in this regard, that the Service will
need to consider how to organize itself, too, to undertake this work.
Preliminary identification of issues
Conceptually, at least, there are two stages to identifying issues to take to the Court.
First, in light of the experience in the Associated Data case, 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. Then, the
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outcome must be analyzed more closely to determine if any of these meet the criteria
for actual disclosure. In this section of this report, we consider what can be done as a
preliminary step to find candidates for the initial inventory of issues.
The idea at this stage is to be more inclusive, not less so. That is, the threshold for
putting an issue on the list for preliminary consideration should be lower than the test
that will be applied later when deciding whether the issue is one that must actually be
disclosed. If in any doubt whatsoever, the issue should be in the inventory.
It will be important for this stage of identifying issues to have a Joint Protocol on the
duty of candour: see discussion above starting at page 11. It is difficult to imagine how
officials could decide whether a program or activity should be in the inventory or not
without a tool to help them. They need a succinct statement of the duty of candour
and of the factors that should guide their decision-making.
First stage assessment in CSIS
Accompanied by the Senior General Counsel, I met with the top CSIS official responsible
for all technical operations of the Service, for a preliminary discussion on how to
implement this part of the Segal Report. This official envisages a two-part approach.
First, he would draw up an inventory of all technologies that may be used by CSIS today,
to establish a baseline of all existing investigative methods that have already been
disclosed, or that must be reviewed for possible disclosure, to the Court. Secondly, he
would initiate a process whereby all future project plans for the use of new technologies
would include a step requiring a legal risk assessment. This would ensure, in Mr. Segal’s
words, that the Service stays
… attuned to seeing emerging operational issues through the lens of their possible
interaction with the warrant process – and, therefore, their potential ripeness for
disclosure to the Court.28
For step one of this approach, the CSIS official has a plan in mind for systematically
identifying all technical tools and investigative procedures that could raise candour
issues. He is confident that this review will be comprehensive.
Once he has drawn up the list of all technologies that may be used by CSIS, the CSIS
official and his team would work with LSU counsel to identify which elements would
warrant closer examination and legal assessment as part of the duty of candour
obligations.
Having CSIS and the LSU work together in this fashion on operational and technological
issues would help achieve another critical objective recommended by Mr. Segal, namely,
developing
… a heightened consultation mechanism – ensuring a proper flow of information between
CSIS LSU counsel and the operational side of the Service, always with the duty of candour
in mind …
28
Segal Report, p. 52
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Simple in concept, his approach may nevertheless require considerable effort to
execute. The Service is aware of the importance and urgency of conducting this review.
Over the short period, it will therefore prepare and implement a work plan to do this
assessment as quickly as possible.
Second stage assessment of issues
Having made an inventory of all the issues that meet the preliminary threshold for
identifying disclosable issues, it remains to conduct a final assessment of those issues
to determine if any of them are ripe for disclosure to the Court.
Deciding whether and how to disclose
For many of the issues identified by the process described above, the decision whether
to disclose once CSIS has decided to use a given technique or rely on a new program will
be straightforward. The duty of candour will either clearly apply, in which case the issue
must be fully revealed to the Court, or it will not. Examples of such issues are set out
immediately below. In a certain number of other situations, however, what to do may
be less clear. These will be examined using a hypothetical scenario as a starting point.
As discussed above at pages 8, in making these decisions, counsel and CSIS should always
err on the side of disclosure.
Legal questions, not legal advice
It is not my mandate to give legal advice to the Department of Justice or CSIS in this
matter. In what follows, therefore, I will not do so. What I will endeavor to do from
time to time in this part of my report is to identify legal issues that I respectfully
recommend to the Deputy Attorney General for his consideration.
Intercepting communications — duty applies
If the Service wants to use a technological device to intercept private communications,
a warrant is obviously required. Under the authority of warrants issued by this Court,
the Service has been conducting interceptions of private communications for a number
of years. Where the technology or program identified in the first stage assessment
described above relates to existing warrants, I would therefore expect that CSIS will
already have informed the Court.
If a new device is developed and impacts privacy differently from traditional devices,
the Service would have to disclose and describe the intended use of this device in an
application to the Court under section 21 of the CSIS Act. All relevant facts must be
revealed as reiterated in the Segal Report: what the device is capable of, how it will be
used, what the potential privacy implications are, and so on. The judge will then be
able to decide whether to grant the warrant, and what powers and conditions to include.
The Court may also, in an appropriate case, appoint an amicus to argue part of the issue.
Information relates to a warrant — duty applies
In a second category of cases, it may be that the Service uses a technology, not to
intercept private communications, but otherwise to collect intelligence as part of a
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threat investigation. This technology may have been used in the first instance without
a warrant, but if the information thus obtained is later used as supporting evidence in
a warrant application, then the duty of candour clearly applies. The Service must inform
the Court about how information used in the affidavit has been obtained, which would
include providing relevant information about the technology.
Having brought the warrantless use of this technology or method clearly to the attention
of the Court, the duty of candour is satisfied. If the Court accepts this, then that ends
the matter. If, on the other hand, the judge questions the use of this equipment without
a warrant, then counsel are free to make whatever submissions they deem appropriate
as to relevance, materiality or legality. Counsel would present arguments, in this
example, as to why no warrant was required to use this particular technology in the first
instance to collect the information in question. If the Court agreed, then the
information derived from its use would remain in the affidavit. If the Court disagreed,
then that information would be found to have been improperly obtained and the
designated judge could excise it from the affidavit. The warrant application would have
to proceed with whatever evidence remained: R. v. Grant.29
Hypothetical example
The previous two examples are straightforward. In other circumstances, however,
whether and how to inform the Court of a CSIS activity may be more complicated.
Let us take a hypothetical example of one such difficult question. Let us imagine that
CSIS uses, or is considering using, a particular investigative tool in circumstances where
the law is not settled. At issue is whether this requires a warrant or not. In the totality
of the circumstances under consideration, for example, does the subject have a
reasonable expectation of privacy that engages the protections of section 8 of the
Charter?
In this hypothetical, appeal courts across Canada have reached contradictory
conclusions and the matter will have to reach the Supreme Court of Canada for the LSU
to be provided definitive guidance. LSU lawyers consider and weigh the factors
enumerated in R. v. Spencer30 and other relevant principles. The Senior General Counsel
discusses the legal and constitutional issues with her Assistant Deputy Minister, who in
turn consults with her colleagues, the Assistant Deputy Minister of Public Law and the
Assistant Deputy Attorney General, Litigation. After due deliberation, Justice concludes,
on balance, that, based, in particular on the degree of intrusion involved in the search
and the impact of the search on the privacy of the target, they believe that no warrant
would be required.
Faced with this situation, must the Service disclose the intended use of this investigative
method to the Court, and if so, how?
29
30
R. v. Grant, [1993] 3 S.C.R. 223
R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC 43
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Query duty to inform the Court
The first legal question for the Deputy Attorney General’s consideration is this. Section
21 of the Canadian Security Intelligence Service Act (the Act) confers jurisdiction on the
Federal Court to hear applications from the Service where the Director or a designated
employee believes on reasonable grounds that a warrant is required to investigate a
threat to the security of Canada.
In the hypothetical situation before us, the use of the investigative technique is not
related in any way to a CSIS warrant that has already been issued, and the Service does
not believe on reasonable grounds that a warrant is required now. The question for the
Deputy is whether, in his view, the duty of candour applies in these circumstances, and
whether Justice or the Service has a duty to inform the Court.
Seeking Court’s guidance
Even if it has no duty to inform the Court, however, and cannot be compelled to do so,
the Service might still wish to have legal certainty about the constitutionality of using
this new investigative tool since it intends to use the tool to gather information that
might form grounds for a warrant application sometime in the future. The Service might
feel, for example, that the Charter uncertainty is too great, and therefore be unwilling
to use this effective investigative method. Is there some procedure available to put the
question before a judge for a ruling?
Applying for a warrant
Even if CSIS is not required to seek a warrant, is it nevertheless open to the Service
voluntarily to bring an application to the Federal Court for a warrant so that any doubt
about the constitutionality surrounding the new investigative method can be dispelled?
As indicated above, subsection 21(1) of the Act imposes conditions before the Service
can make an application for a warrant. The first is that the Director or the employee
designated for the purpose must “believe, on reasonable grounds, that a warrant under
this section is required to enable the Service to investigate … a threat to the security of
Canada”.
In the hypothetical scenario we have been examining, however, the Director does not
believe a warrant is necessary. Based on the legal advice he has received, his sincere
belief is that he can use this investigative tool lawfully, without warrant, although he
also knows there is a risk that this may someday prove to be wrong.
The next legal question for the Deputy Attorney General’s consideration, therefore, is
whether, in his opinion, the Service can apply for a warrant in these circumstances,
where the Director desires and expects the Court to dismiss his application. In other
words, can the Director ask for a warrant and then argue that no warrant is required?
If the Deputy Attorney General’s view is that a warrant application can proceed, then
there is a second, related question for his consideration, as well. If the Court decides
that a warrant is required before using this investigative tool, can the Service later
appeal the very decision that it was ostensibly asking the Court to make?
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A remote situation?
If the Deputy Minister concludes that the Service cannot apply for a warrant in the
circumstances described above, it leaves CSIS in a legal and operational quandary.
Before looking further for ways to obtain the Court’s guidance, one should ask: how
likely is such a dilemma to occur?
The particular mix of legal advice, Charter risk and operational context is probably very
unusual. In the vast majority of cases, one would think the Director would be able to
choose an option that avoided the quandary. He could decide to use or not to use the
investigative tool, and take the associated legal risk. Or, he could find a legitimate way
to argue that the use of this investigative tool was necessary to investigate a threat and
make that part of a current warrant application.
In rare instances, however, that may not be the case, leaving the Service and the LSU
looking for another way to seek the Court’s guidance.
Section 18.3 — referring a question to the Court
Rather than ask for specific relief, what CSIS wants when faced with the hypothetical
situation above is to find a way to refer a question of unsettled law to the Court for
determination. Section 18.3 of the Federal Courts Act provides for the bringing of a
reference in the following circumstances:
18.3 (1) A federal board, commission or other tribunal may at any stage of its
proceedings refer any question or issue of law, of jurisdiction or of practice and
procedure to the Federal Court for hearing and determination.
Could CSIS rely on section 18.3 to seek the Court’s guidance on a sensitive legal or
constitutional issue related to warrants?
The answer to that question is not entirely clear.
On the one hand, the Deputy Minister will see that, in the early case law, the courts
appear to have regarded section 18.3 and its predecessor section as being intended
solely for circumstances that involve adjudication proceedings. See, for example,
Reference re Immigration Act 31, or Alberta (Attorney General) v. Westcoast Energy
Inc.32 If references can only be brought in respect of “adjudications”, then CSIS cannot
avail itself of section 18.3.
31
Reference re Immigration Act (1991), 137 N.R. 64 at para. 2 (F.C.A.), [1991] FCJ. No. 1155
Alberta (Attorney General) v. Westcoast Energy Inc. (1997), 208 N.R. 154 at para. 16 (F.C.A.), [1997]
F.C.J. No. 77, cited and adopted in In The Matter an Application for a Reference by Chief Brian Francis on
behalf of the Abegweit First Nation Band Council and Abegweit First Nation of questions or issues of the
constitutional validity of the custom rules governing elections for the Chief and Council of the Abegweit
First Nation Band, 2016 FC 750 at para. 14.
32
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On the other hand, on a motion to strike heard in 2014, the prothonotary would not rule
out the possibility that section 18.3 was intended to confer a broader jurisdiction.33 She
held it to be arguable that an advisory body such as the Information Commissioner could
ask the Court to determine “issues of law that arise in the course of the performance of
their duties” and that the requirements of section 18.3 are met if the question referred
was “susceptible of determining how the Commissioner is to conduct herself”. 34 At the
hearing on the merits, objections to jurisdiction were abandoned and the trial judge
held that he was satisfied that the Information Commissioner was entitled to pose a
question under s. 18.3.35
A motion to strike is a thin reed on which to base statutory interpretation, but perhaps
Information Commissioner opens the door to a broader interpretation of section 18.3 of
the Federal Courts Act.
The question for the Deputy Attorney General, therefore, is whether, in his opinion, the
Court today would entertain an application by the Service for a reference under section
18.3 of “an issue of law that arises in the course of the performance of its duties” —
such as that raised by the hypothetical case described above — that, if settled, would
“determine how the [the Service] is to conduct itself”.
(If available, a reference under section 18.3 would still require a sufficiently concrete
evidentiary foundation before the Court would entertain an application.)
If the Deputy Attorney General answers that question in the affirmative, he would need
to consider other related questions. The Service would want applications involving such
sensitive matters to be heard by a designated judge, but they are defined as being
judges of the Federal Court “designated … for the purposes of this Act”, viz: the CSIS
Act. Could a designated judge hear an application brought, not under the CSIS Act, but
pursuant to section 18.3 of the Federal Courts Act?
Other Federal Court Rules
The Federal Court Rules provide other mechanisms for making preliminary
determinations in order to simplify or expedite the resolution of pending matters. Thus,
in a proper case, rules such as those governing the trial of an issue, preliminary questions
of law, or summary judgment or trial may be invoked.36
The question for the Deputy Attorney General is whether these or similar rules require
the existence of an underlying court proceeding, or whether any of these procedures
would be available to resolve the sort of hypothetical question being considered here.
Conclusion
For all the reasons developed at length in the Segal Report and expanded upon here, it
is of critical importance for CSIS and the LSU to develop and implement a comprehensive
33
Information Commissioner of Canada v. Canada (Attorney General), 2014 FC 133, on a « manifestly illfounded » threshold.
34
Information Commissioner, para 29
35
Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405 at para. 5.
36
See Rules 107, 220, 213-219
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and reliable system for identifying issues that need to be disclosed to the Court. I
believe that the approach outlined in this chapter suggests a practical way of achieving
this.
In most instances, one would expect that deciding whether the duty of candour applies
or not will be straightforward. The obvious way to test any uncertainty in this regard is
to put such issues before the Court by mean of a warrant application under section 21
of the CSIS Act.
Depending on the answers to the legal questions identified above, however, it may be
that, in some rare cases, another vehicle may be required.
From a policy perspective, it is certainly desirable to envisage a mechanism that would
allow the Court to give guidance to the Service and Justice on sensitive legal or
constitutional issues related to the performance by CSIS of its official duties.
It may be that this issue is a worthy item for inclusion on an early agenda of the proposed
Bench and Bar Committee. If the topic is too substantive for that forum, the Committee
may nevertheless have suggestions as to where to address it.
Depending on the outcome of any possible discussions with the Court, consideration
might also be given to a legislative solution to this question.
Consideration should also be given to the possibility of making practice rules pursuant
to section 28 of the CSIS Act applicable to warrant hearings, and of amending section
28 itself if the current enabling provision does not allow for the desired regulations.
Bench and Bar Committee (Chap. IX)
Segal Report Analysis & Recommendations
Noting that there is currently no forum less formal than an en banc hearing where
counsel and judges can discuss issues of common concern relating to the national
security practice area, Mr. Segal recommends the creation of a “bench and bar”
committee to fill this void. Membership would include “but not necessarily [be] limited
to those who participate in CSIS warrant applications”. The Committee’s mandate
would be to address process and practice issues of the kind that might be the subject a
practice directive from the Court, but not contentious issues that arise on a particular
application.
The author’s expectation is that, through regular consultations, both the Court and the
Service would gain greater awareness of practice issues of concern to the Court, the
Service and amici alike. He believes it could improve the relationship of trust between
counsel and the Court, and lead to better relations between counsel on different sides.
To ensure judicial independence and transparency, protections and safeguards would
be required. In particular, there would need to be substantial participation of nongovernment lawyers from the private bar who have experience in national security
matters.
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Mr. Segal also recommends the production of a yearly report to the Court on practice
issues that have arisen and the efforts made to address them. Not only would such a
report help ensure that no issue is overlooked, but it would also help keep designated
judges apprised of efforts made in response to inquiries from their colleagues with
respect to matters not actually addressed in an en banc hearing.
Implementation
The LSU welcomes this proposal. It shares the view that such a forum would foster a
dialogue that is impossible today, but which is essential if each stakeholder in the
national security practice area is to become aware of the others’ perspectives on
important issues. Without awareness, it is difficult to build the trust, mutual respect
and strong relationships that are needed among the key players who must cooperate in
the administration of justice.
The Deputy Minister of Justice has written to the Chief Justice to propose that such a
bench and bar committee be created. If the Court agrees, then the task is to establish
the terms of reference. The LSU is ready to offer its suggestions with respect to
membership, administrative and logistical matters, and any other issues that must be
addressed before the committee can meet.
To start a reflection on possible membership, I propose that the bench and bar
committee might comprise two designated judges, two lawyers from the LSU, one
retired judge or other knowledgeable person such as a former member of SIRC who is
legally trained, and one security-cleared member of the private bar knowledgeable
about warrant issues.
The process by which the new committee is to be established must itself respect the
independence and transparency of the judiciary. The critical step in this regard is to
invite involvement by a suitable member of the private bar from the very outset.
The LSU also agrees that producing an annual report to the Court on practice issues is a
helpful suggestion. Although related, this idea should not be confused with the proposal
that the LSU report periodically on the status of its work in responding to concerns raised
by the Court; see discussion at page 16 above.
In recommending the annual report, Mr. Segal was primarily focused on how accounting
for the LSU’s efforts over the year to address judicial concerns would increase
transparency and foster mutual understanding. These are important considerations.
But, the LSU also identifies practice issues from time to time that it would like to bring
forward for the consideration of the Court. An annual report would also be an excellent
vehicle for conveying the LSU’s perspective on certain important practice issues.
As Mr. Segal writes, a written report is “not a full substitute for ongoing dialogue through
a committee”. It is greatly to be hoped that, as this practice takes root, the production
of the annual report could be made to coincide with the annual meeting of the bench
and bar committee so that the Court could discuss the report, or a draft of the report,
with the LSU.
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Expanded role for Independent Counsel (Chap. X)
Segal report analysis & recommendations
It is a missed opportunity, Mr. Segal says, to limit counsel of the National Security Group
(NSG) to “facting” CSIS affidavits. Without giving up their vital role in scrutinizing
factual assertions in the affidavit, NSG counsel have “a wealth of relevant experience”
that they could apply to other aspects of warrant work. Recent problems have not come
from factual inaccuracies but from CSIS’s “failure to appreciate what the Court needs
and wants to know, often at the operational and policy level”. The Report therefore
recommends expanding the NSG role to include the scrutiny of legal and policy issues
arising from warrant applications. It also recommends that Independent Counsel (IC) be
empowered to recommend to Senior General Counsel that a request for the appointment
of an amicus be made to the Court. It concludes that the selection criteria for IC might
need to change based on this expanded role.
Implementation
NSG counsel do have knowledge and experience in national security matters that could
indeed be deployed productively in areas beyond their current mandate. In talking with
NSG counsel, they feel themselves well placed to begin offering broader advice now on
certain aspects of warrant applications. For example, they are knowledgeable about
the powers requested by CSIS in these applications. They should therefore be provided
with the draft warrants so that they can give advice in this regard. They can also help
assess whether the information as presented contains sufficient details to inform the
judge on the powers sought. I agree with NSG’s assessment.
In other areas, they are more cautious, and I share that hesitancy. It is not entirely
clear to me that, from their vantage point outside the Service, NSG would be well placed
to flag emerging issues or operational concerns of the kind that have arisen in the recent
past. They are not present in the section 21 courtroom to hear what the judges are
saying or what issues are troubling them. Nor, does NSG have direct access to CSIS
discussions on emerging operational or technological innovations, or on policy. Finally,
I do not see great value at this point in empowering NSG to recommend the appointment
of an amicus.
On the other hand, I could anticipate that, from their work in the national security area
more broadly, NSG might have valuable insights into emerging legal issues that they
could share with the LSU.
For these reasons, I would recommend that the LSU and NSG take these proposals one
step at a time. NSG’s mandate should be expanded immediately to include advising on
warrant powers. If the IC can also spot emerging legal issues during this process, NSG
should be encouraged to bring these forward, too. As the ICs’ experience grows in this
domain, NSG will no doubt see other opportunities where they can contribute.
In the meantime, I think the remaining parts of this proposal merit further study and
consideration. The central thrust of this chapter of the Segal Report is to equip the IC
to play a bigger role so that they can provide another check against failures in the CSIS
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warrant process. Within the spirit of these recommendations, NSG and the LSU should
meet to explore ways to achieve this goal.
The CSIS LSU Team (Chap. XI)
Segal report analysis and recommendations
Mr. Segal is very complimentary about what he sees as the highly skilled and dedicated
counsel working in the LSU, a team, moreover, that he believes takes very seriously its
national security responsibilities and which is very concerned about repairing its
damaged relationship with the Court. Despite these strengths, the Report nevertheless
identifies two main areas of potential concern facing the LSU. The first is the “insular
context” in which the group operates, and the second has to do with the negative
aspects of acting exclusively for “a powerful single client — and one with such a
challenging and significant mandate”.
The Segal Report finds that the LSU lawyers may have less day-to-day interaction with
other lawyers, whether within Justice or in private practice, than most of their Justice
colleagues. CSIS counsel have a reasonably diverse set of legal backgrounds, but tend
to stay in the unit for relatively lengthy periods of time. The risk inherent in this
situation is that counsel will have less exposure than is desirable to different ideas and
fresh perspectives from elsewhere.
As for the second challenge, lawyers who act only for a single client are prone to “client
capture”. Mr. Segal reports that the Court has sometimes viewed the LSU as lacking
sufficient distance from CSIS, despite the best efforts of counsel to carry out the Minister
of Justice role with the expected objectivity.
Mr. Segal proposes certain measures to offset this perception. To make up for the
isolation, he proposes more frequent secondments of LSU lawyers to other units in the
DOJ or to the PPSC. Although the current mix among LSU lawyers is good, he encourages
the managers to try to recruit more former prosecutors, and to get advice on novel
points of law from outside experts more often than may now be the case. It could be
useful, for example, to identify a short list of senior federal Crown counsel with
experience in wiretap and national security matters to be available when needed.
The perception of client capture should be mitigated, in part, he believes with better
responsiveness and transparency in respect of concerns raised by the Court.
Implementation
The cautions raised by Mr. Segal about the particular challenges faced by the LSU at
CSIS are apposite. DOJ managers are well aware of the risks inherent in isolation and
potential client capture, and have taken many of the measures recommended in the
Report. They agree, however, that continuous effort and innovation are required to
deal with these challenges and therefore remain open to these and other suggestions
for how to deal with them.
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Intellectual diversity
The LSU has tried, or is considering, a number of ways of enhancing counsel’s exposure
to new ideas and fresh perspectives. Some solutions are permanent or longer term;
others are temporary or short term.
Recruitment
As the Segal Report notes, the LSU now enjoys a reasonably good mix of legal skills and
experience among its counsel. The Senior General Counsel (SGC) has made, and
continues to make, an effort to recruit people with varied backgrounds. Over several
years, she has tried unsuccessfully to hire lawyers from the PPSC to join the LSU on an
indeterminate basis. This year, she has brought in a retired former senior prosecutor
from the PPSC on a casual contract37 to boost the group’s criminal law capacity.
Last year, the SGC brought in an experienced lawyer from the Human Rights Law Section
(HRLS) of the Public Law Sector to strengthen the team’s capacity in Charter and human
rights law.
More broadly, the SGC has usually drawn candidates for employment in the LSU from
litigation positions in the Department of Justice or from outside the Public Service, and
from Departmental Legal Services Units in DOJ.
Secondments and Mentoring
The LSU recognizes the benefits to be derived from secondments and mentoring, and
has made it a priority to encourage its counsel to take such opportunities when they
present themselves. In any given year, there are always some LSU lawyers working in
other offices. Last year, for example, four counsel were either on secondments or on
an extended study leave.
Much shorter term mentoring agreements with outside partners can also be beneficial.
Thus, the SGC is in discussions with the PPSC to organize a “shadowing” arrangement,
in which LSU counsel would work with, or observe, a PPSC mentor in some phase of an
organized crime file, for example. Shadowing for a day, or even just a few hours, at a
time can be instructive.
Organizing secondments and mentoring opportunities, of course, is not entirely within
the control of the LSU. There needs to be a willing partner at the other end to host the
CSIS lawyer, and potential partners do not always have room to accommodate such
arrangements. It is easier to organize a secondment with another sector of the DOJ
than with the PPSC or a provincial ministry of the Attorney General, but even within
DOJ spots are not always available. In some circumstances, it may be that help will be
required from the Deputy Minister to facilitate the mobility necessary to ensure
appropriate diversity within the LSU.
37
Under section 50 of the Public Service Employment Act, the period of employment of a casual worker may
not exceed 90 working days in one calendar year in any particular department or other organization.
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Bringing outside counsel in
Another way to expose LSU counsel to fresh perspectives is to invite outside counsel to
be part of a team litigating a CSIS warrant application. This has already happened more
than once. The Chief General Counsel, for example, has led on at least three warrant
matters recently. This presents a learning opportunity for LSU counsel, who get to work
with and observe first-hand the skills and judgment of the government’s top civil
litigator.
In addition, the SGC would like to find a way to have other senior litigators from the
Civil Litigation Branch with suitable experience act as co-counsel on selected warrant
applications. At the same time, consideration might be given to allowing LSU counsel
with appropriate experience to act from time to time as counsel or co-counsel on
discrete matters in the Civil Litigation Branch, such as on an application for judicial
review.
She would also be interested in exploring opportunities for counsel from the PPSC, or
possibly from a provincial ministry of the Attorney General, spending time with the LSU
team, to share their perspectives on wiretap and other related law and procedure, and
to discuss the LSU’s approach to CSIS warrants.
Consulting other experts
LSU counsel participate in a number of fora with outside experts. One of the senior
counsel, for example, sits on the PPSC National Wiretap Expert Group. Other lawyers
are members of various practice groups and work groups within Justice.
Mr. Segal recommends drawing up a list of senior PPSC prosecutors upon whom the LSU
can call when help is needed. In fact, the SGC has always been able to go directly to
the most senior levels of the PPSC for advice on matters concerning CSIS warrants.
The LSU lawyers also seek advice regularly from the Justice experts at HRLS on complex
Charter and human rights law issues. When the need arises, they also deal with the
experts in the Constitutional, Administrative and International Law Section of Public
Law.
Isolation and capture
The LSU is very conscious of the perception, and of the potential reality, of client
capture. They have a number of tools available to counter this challenge, including the
following:
Responsiveness and transparency
As explained at some length above, starting at page 12, the LSU has laid the foundation
for, what it expects will be, a robust ability and commitment to responding to judicial
input, commentary and concerns.
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Governance
A number of factors tend to isolate the LSU from the rest of the Department of Justice
(geography, the secrecy of its work, the sui generis nature of the practice) but it is also
bound by a web of governance mechanisms that operate powerfully to overcome that
isolation.
The Senior General Counsel (SGC) reports hierarchically to the Assistant Deputy Minister
(ADM) who heads the Public Safety, Defence and Immigration Portfolio. The ADM meets
bilaterally with the SGC every three weeks and discusses substantive legal issues arising
at the LSU. The ADM reviews LSU legal opinions on significant matters and, on occasion,
brings in other senior lawyers with expertise in national security matters for their
advice. When circumstances warrant, the ADM also confers with her colleague the ADM
of Public Law to get her views on important Charter issues arising at CSIS.
The SGC also reports functionally to the Assistant Deputy Attorney General, Litigation
(ADAG). He is responsible, inter alia, for all litigation conducted by or against the Crown
and heads a network of litigation committees across the country that oversee all
significant government litigation. The General Counsel, Litigation Operations is a
member of the regional litigation committee, which reports in turn to the ADAG’s
national litigation committee. The LSU has recently taken steps to ensure that they can
participate regularly at the regional committee.
Turnover of LSU counsel
As indicated in the Report, there is a balance to be struck between “experience and
continuity on the one hand and fresh perspectives and diversity of experience on the
other”. It is always a judgment call to decide whether managers have found the sweet
spot, or whether more movement of staff would be desirable. The goal is not to achieve
turnover as an end in itself, but to ensure sufficient intellectual diversity.
It is true that some counsel tend to stay in the unit for a relatively long period of time,
but the office also experiences a steady churn of employees. Over the last seven fiscal
years, 33 lawyers joined the office (some on secondments), and 28 left indeterminately.
Training and Continuing Education (Chap. XII)
Segal report analysis and recommendations
The Report finds that the training materials used in the training of CSIS employees and
counsel are comprehensive and of high quality, but that the training and continuing
education are very insular. Mr. Segal believes that counsel and CSIS officers would
benefit from exposure to experienced outsiders. Time spent with both prosecutors and
non-government “defence-oriented” counsel would help give them the insights, broad
perspectives and flexibility of mindset critical to identifying “the full contours of
relevance in the ex parte context”. While the CSIS warrant context is unique in some
respects, the Report concludes that there is considerable overlap in the skills and
knowledge required in both the criminal law and national security worlds, so that lessons
learned training with prosecutors or police would be common and “portable” to the CSIS
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realm. Mr. Segal also recommends including amici in this training, as well as the
judiciary, if suitable ways can be found to avoid impairing judicial independence.
Implementation
These recommendations will all strengthen the high quality training already in place
within the LSU. CSIS lawyers can clearly derive great benefit from more exchanges with
members of the criminal law bar, both prosecution and defence, who have experience
in wiretap cases. Such experts are not only a source of knowledge and skill but they
also bring fresh eyes and new perspectives, an ability to challenge set ways of thinking
and a new approach to problems that will inevitably add value. Intellectual diversity is
crucial in any workplace that seeks to achieve excellence.
Warrant practice training, January 2017
The LSU has already begun acting on this set of recommendations. In mid-January,
2017, the LSU held a two-day training session related to its warrant practice, attended
by some 45 to 50 people. This included all the LSU lawyers and paralegals, three very
senior PPSC prosecutors with long experience in wiretap law, an RCMP sergeant, three
Directors General from CSIS, the DOJ Chief General Counsel, and Mr. Segal. (A private
sector counsel who has acted as amicus was able to attend briefly as an observer, and
plans to participate more fully the next time such training is offered.)
Presenters included Mr. Segal, the Chief General Counsel, the PPSC prosecutors, the
RCMP officer, and several LSU counsel and paralegals.
The presenters all had very relevant perspectives to contribute. Two of the Crowns, for
example, had prosecuted anti-terrorism cases where, in the early stages of the criminal
investigation, the RCMP had relied on information from CSIS obtained from section 21
warrants. The subsequent Garofoli applications to quash the CSIS warrants had given
these counsel a first-hand look at CSIS affidavits and warrant practice. Likewise, the
RCMP sergeant had had special training to act as an affiant in wiretap applications and
years of experience in doing so.
The presentations covered a wide range of topics, from the latest developments, trends
and challenges in wiretap law; to the duty of full, fair and frank disclosure; the legal
implications of a variety of technological issues, and an assortment of subjects related
to CSIS warrants, including substantive and practice issues following the latest en banc
proceedings.
The final evaluations of the conference have not yet been completed but comments
from attendees immediately after the event were uniformly very positive, although
some would have liked more time to discuss the panel’s scenarios on full, fair and frank
disclosure. Counsel all recognize the benefits of this type of training, and are asking
that the panel discussion / workshop format be repeated regularly.
In-house training
As valuable as the talks by these outsiders were — and the broadly held view of those in
attendance was that they were of very high quality —certain significant differences
remain between applications for a warrant under the CSIS Act and applications for a
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search warrant or wiretap authorization under the Criminal Code. For example, the
scope of relevance and test for materiality on a section 21 CSIS warrant dealing with
threats to the security of Canada are broader than for a wiretap authorization in respect
of a criminal offence under the Code.
As the Segal Report says:
While these consultations [with senior prosecutors and police officers with experience
under Part VI of the Criminal Code] yielded some valuable insights, it became
increasingly clear to me that the sui generis nature of the national security context in
general – and the CSIS warrant application process in particular – rendered external
guidance of limited assistance.38
There will always be a need, therefore, for high quality in-house training for LSU
counsel. The LSU already holds one-hour meetings of all counsel involved in warrant
work about twice a month. The focus here is on day-to-day practice issues. The
meetings provide an opportunity for a tour de table, where counsel have a chance to
be brought up to date on recent practice and operational development affecting their
files. One would not normally regard these meetings as “training” events, although they
clearly include a learning component.
In addition, however, the LSU also holds ad hoc sessions, approximately monthly, that
are often organized thematically. Attendance is voluntary for everyone in the office,
but mandatory for lawyers. In these monthly meetings, counsel may, for example,
debate a legal issue in greater depth than is possible in the short biweekly meetings, or
try to reach consensus on an opinion, or sometimes hear a presentation on a new
technology. This is a good practice and should be continued and built upon. It is
important to set aside longer periods from time to time to work through issues that are
too complex to deal with in the normal course of business.
Variously described in the literature as study groups, practice groups, communities of
practice, peer learning sessions, and so on, meetings where professionals come together
to share information and experiences and to learn from each other are widely
recognized and accepted as a valid and important method of continuing education and
training. 39 In a context where the LSU counsel are themselves the leading experts on
much of CSIS warrant law and practice, there is no other avenue open for them to
sharpen their skills and knowledge on many aspects of their practice. They should
therefore ensure that they are aware of the best practices followed by groups that
engage in this kind of training so that they can adopt the most effective methods.
Groups can take a wide spectrum of approaches to running such study groups, with
varying degrees of formality or informality. Many resources are available to draw on in
deciding which model would best fit the LSU’s circumstances, including learning from
colleagues elsewhere in Justice who already do extensive in-house training. The
38
Segal Report, p. 8
See, for example, "Learning from others at work: communities of practice and informal learning", Doub,
Middleton (2003), Journal of Workplace Learning, Vol. 15 Iss: 5, pp.194 – 202; Lave & Wenger, Situated
Learning (Cambridge University Press, 1991); Wenger, Communities of Practice: Learning, Meaning, and
Identity (Cambridge University Press, 1999)
39
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Continuing Legal Education Program in the Legal Practices Sector can also offer advice
and support.
A key condition of any successful learning program is to establish the learning objective
or desired outcome before the training begins. In general terms, what do DOJ lawyers
need to know to be able to perform their duties effectively and professionally in respect
of CSIS warrants? More particularly, what do they need to know to do their job well in
the next 12 months? Having a clear understanding of what the team needs to know, the
LSU can then map out specific learning objectives for the group, and determine where
to get the best training, whether from their own or outside experts, or from a mix of
the two.
One of the big Portfolios in the DOJ starts planning for its in-house training by setting
learning objectives, consulting widely before doing so. They ensure alignment with
government and client priorities, and then block out a yearly calendar of training events,
held about once a month, excluding the summer. Many topics are set in advance, but
they ensure sufficient flexibility in the plan to accommodate important issues that arise
during the year. They almost always invite clients and outside experts to attend. They
also follow up after every training event with an evaluation, typically a short fourquestion survey, to monitor if they are making progress towards the learning objectives.
While the resources of a big Portfolio likely exceed the capacity of what it is feasible
for the LSU to undertake, this approach is scalable and could be adapted to suit the
smaller LSU. One important lesson to take from this example would be for the LSU to
include, whenever feasible, participation in its in-house training of colleagues from the
PPSC, NSG, CSE, Public Safety and GAC, and of the Service and possibly of amici. In
addition to the training, participants from this broader community of national security
practitioners would also have an opportunity to meet, network and build relationships.
An effort should be made to establish, if possible, a reciprocal arrangement between
DOJ and PPSC about training. The LSU plans to invite PPSC counsel to participate in its
training. In return, it would like its lawyers to get more exposure to criminal prosecution
work. It would also like even more access to some of the activities already made
available, such as, for example, the PPSC’s renowned School for Prosecutors.
The LSU has begun laying the foundation for a renewed learning program, by drafting a
competency profile for the LSU counsel. The profile attempts to define the knowledge,
skills and values expected of every lawyer engaged in CSIS warrant work, and is the
starting point for systematic training. Some priority should be given to completing this
work.
In my view, the LSU should schedule another workshop on the duty of candour at an
early date. The panel discussion at the January conference was an excellent beginning,
but there is an appetite for a longer, deeper analysis of the issues than was possible on
that occasion. At least a half day should be set aside, and the LSU should include CSIS
affiants and one or more amici among other invitees.
I also believe that the LSU’s learning plan should include a module on the role of the
Attorney General. Mr. Segal has a good discussion in Chapter IV of his Report of the
unique responsibilities of the Attorney General in our constitutional framework. In the
- 37 -
�IMPLEMENTING SEGAL RECOMMENDATIONS
MARCH 2017
very particular context of the LSU practice, getting the balance right of the AG’s
different AG roles (involving the public interest, a duty to the client minister, and the
duty owed to the court) is unusually nuanced. A periodic refresher for counsel is
therefore important, and it is absolutely essential for any new counsel joining this
office.
Conclusion
The Department of Justice and the Service have both acknowledged the urgent need to
address serious concerns raised by the Court relating to the CSIS warrant process, and
both have committed to taking all the steps necessary to redress these problems.
In his insightful Report, Mr. Segal identifies many issues that need particular attention.
His many observations and recommendations lay out a roadmap for making achievable
improvements
The purpose of this report is to help Justice counsel acting in CSIS warrant applications
to implement these ideas. It is my hope that, working with input from LSU counsel and
CSIS, what I have proposed offers practical and effective ways to carry out Mr. Segal’s
suggestions.
I am convinced that all Justice counsel and all CSIS officials engaged in the CSIS warrant
process want this reform effort to succeed, and that they will continue to build on the
ideas and approaches that have been discussed here in the years to come. I am
optimistic that they will be able to carry this through successfully.
- 38 -
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Advice on Implementing the Recommendations of Murray Segal's Review of CSIS Warrant Practice (March 2017) (Sims Report)
Description
An account of the resource
Report commissioned by Justice Canada to advice Crown counsel representing CSIS in Federal Court warrant proceedings, and make recommendations on implementing the <a href="http://secretlaw.omeka.net/items/show/76">Segal Report</a>.
Source
A related resource from which the described resource is derived
Department of Justice (public document obtained on request)
Publisher
An entity responsible for making the resource available
Department of Justice
Date
A point or period of time associated with an event in the lifecycle of the resource
March 2017
CSIS
reform
surveillance
warrants
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/05f42a64a40be3409ac60cd72835dc3e.pdf?Expires=1712793600&Signature=KyvJHeI5-F7ONVH0nYr1ZH13BH-83QuEHIYYajXuTVkpp7mtWUEjmJEX%7Epi9O5JKNypKY7N0uZVoSlRleSl7%7E7n81SVcOrQ%7EX1fzLR5JtLlWNJLi8e6BVMESC1Olukext5Z2AUi0fr2DFd-SYG7dMhT8kj9SneQXwpX9oh8F0HXY2MVs66RP80Tl2G61LUKKXxcAysgjKtt8kqY4L54jLtcMM9cGDbcFyeG5olJo7bvvfhzi9o6HkrSM-1UuWCPXlgXAfwXacJ5pPqQujOZi9AKn5cy1YFo9yZ07fLKEDbQJbAOtDLdrXfgbPA9mJqwaRW6%7ECohVDclm-mV5034JEQ__&Key-Pair-Id=K6UGZS9ZTDSZM
88da9eb137536d7003123f2bec943da2
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Memoranda of Understanding
Subject
The topic of the resource
Memoranda of Understanding (MOUs) between agencies.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Agreement between CSIS and the Security Intelligence Review Committee: Access to Certain Documents
Subject
The topic of the resource
MOUs
Description
An account of the resource
<p><strong>Document Synopsis: </strong>“The Service initially declined to provide a copy of the 2014 Memorandum regarding a SIRC study that examined CSIS’s use of firearms in dangerous operating environments (DOEs). Following several bilateral discussions, the Service subsequently provided a copy as an exception to this long standing agreement.”</p>
<p>“SIRC conducted a study in 2013-2014 on CSIS Operational Support and its Use Overseas, which examined the Service’s use of firearms in DOEs. Among its findings and recommendations, SIRC’s draft study noted that it was unable to conclude whether CSIS had adequately informed your predecessor of its use of firearms to DOEs outside of Afghanistan, and recommended that CSIS comprehensively justify to you its operational posture in DOEs, including the use of firearms”</p>
<p><strong>Discussion:</strong></p>
<p><em>SIRC has highlighted some of its findings re: CSIS firearms in DOEs here:</em> <a href="http://www.sirc-csars.gc.ca/anrran/2013-2014/sc2-eng.html">http://www.sirc-csars.gc.ca/anrran/2013-2014/sc2-eng.html</a></p>
<p><em>In 2010, CSIS acknowledged publicly that its intelligence officers could carry firearms in dangerous operating environments overseas.</em></p>
<p><em>That same year, SIRC undertook a review of CSIS’s decision-making overseas, which included its use of firearms within Afghanistan. At the time, the Committee found that there were strong measures in place to ensure proper training, accreditation and conditions under which firearms could be used. However, SIRC expressed caution about CSIS’s possible future decision to use firearms outside of Afghanistan. The review concluded with a recommendation that, should CSIS expand its use of firearms abroad, it should be done “after consultation with, and approval of, the Minister of Public Safety.”</em></p>
<p><em>SIRC found that CSIS’s new procedures provide improved direction to employees regarding their roles and responsibilities under the Service’s firearms program, but there appears to be a disparity between policy and its practical application by employees. Furthermore, SIRC learned that not all employees who should have a sound understanding of CSIS’s firearms program had knowledge of the policies or protocols. SIRC also found an instance where CSIS was not strictly following its own protocols on firearms. In light of these observations, SIRC impressed upon CSIS that its policy and protocols must be followed in the strictest possible terms, or be clearly written to indicate where there is latitude for interpretation.</em></p>
<p><em>SIRC also noted that CSIS’s policy on firearms fails to adequately address the issue of an employee’s liability, civil or criminal, under the laws of a foreign country and whether any mechanisms for immunity could be explored or what position the Government of Canada would take on helping to extract an employee from a certain situation. There is also no adequate advice on what course of legal action would be pursued domestically if an employee was believed to have acted negligently within a foreign environment, and consideration is not given on the extent to which certain types of firearms can be regarded as “defensive weapons.” Finally, there is also a lack of adequate advice on possible legal implications for Canada under international law.</em></p>
<p><em>In order to improve CSIS’s management of its firearms program, <strong>SIRC recommended that CSIS develop better guidelines on the sourcing and purchasing of weapons within dangerous operating environments, create a clear responsibility centre for the firearms program and obtain updated legal advice related to the reasonableness and necessity of carrying firearms within dangerous operating environments.<br /><br /></strong><em>It remains unclear what other areas are defined as DOEs outside of Afghanistan; and where else firearm use is permitted for CSIS employees. </em><strong><br /></strong></em></p>
<p><strong><em> ----------</em></strong></p>
<p><em>Other resources: “Undercover CSIS Agents Carry Guns in Foreign Flashpoints” </em></p>
<p><a href="http://www.theglobeandmail.com/news/national/undercover-csis-agents-carry-guns-in-foreign-flashpoints/article4320423/">http://www.theglobeandmail.com/news/national/undercover-csis-agents-carry-guns-in-foreign-flashpoints/article4320423/</a></p>
<p><em>“</em><em>Ottawa's spies are carrying guns in Afghanistan, a new practice for the clandestine civilian agents who are not authorized to bear arms inside Canada.”</em></p>
<p> </p>
<p><em> </em></p>
Source
A related resource from which the described resource is derived
ATIP
Date
A point or period of time associated with an event in the lifecycle of the resource
Unknown, but between 2014-2015
CSIS
firearms
Foreign operations
MOU
SIRC
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/a25b9028f642dba1bf4d469ef2064a36.pdf?Expires=1712793600&Signature=XQdfwVgNlhIiBe1CATpj-3gfzEnAR7JN4mKJjBz2E4KxjSRSypK%7E4qV5FeY1HelV3VxlLc-lMi5NYVLtdT9ipBob9FOTWAZrOo1bv0BW2mFQ7ObjQahKzs0ZzDl7QIUo73tAi0P2diFGNcrwpYGD30Ck5qEcXYucxGBpcwgCyihY6QVF8iZwT7D8LrNnAxxXVGZLM3OT8KbC9B5n3zOsB7b6m-7Syq2vZ1vwx8-AUv3935fXu0ZZNEB5Szr4xHWsae16gBJBRQE8mNyuQVeaZUB3lj5BpwgNeCRjfdrJpORJAF-sap3d8bxElncOEsSe8dmOksKifUHPsiXozJki2A__&Key-Pair-Id=K6UGZS9ZTDSZM
d6c1c94bff82c908b8b5ebaa7b83470a
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS Caveat on Documents Shared with Foreign Services
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<p><strong>Document Synopsis: </strong>CSIS tells foreign agency that if they deem some form of legal action is warranted against a Canadian citizen present in their country, CSIS trusts that the individual will be treated fairly in accordance with international conventions, due process, and access to Canadian diplomatic personnel if requested. If the foreign agency wants to detain or prosecute a Canadian citizen based on information that originated from CSIS, CSIS requests that the foreign agency consult CSIS first. </p>
<p><em>In the Arar inquiry final report, Justice O’Connor observed: “There is no guarantee that a recipient of information to which a caveat is attached will honour that caveat. The system is based on trust and caveats are not legally enforceable. However, the ability and willingness of agencies to respect caveats and seek consent before using information will affect the willingness of others to provide information in the future – a significant incentive for agencies to respect caveats” [Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and Government Services in Canada, 2006) 49, in Forcese, NS Law, 482]. </em></p>
Date
A point or period of time associated with an event in the lifecycle of the resource
Unknown, but likely early 2000s
Source
A related resource from which the described resource is derived
ATIP CSIS 117-2010-7
caveat
CSIS
Foreign cooperation
information-sharing
Originator control
Third-party rule
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/9545e1567cbc7b64f9b70841328483f1.pdf?Expires=1712793600&Signature=U3thucdzTvUlsf8NvKNkUB9nP4dte9zOjD5SMCzpjyQxCVakmM6x6B9Cnn4%7EgWUF44neTLEXjsbrlDg0lIl7aYxj4mRswwnOMZZf0W90ruJY7ASdoTgy%7EHgBzBnQLZ74bTK6T-9Coc9pVA-jFHCMku1IhKuCHnZNlbLq9lUyzukC2U6231KBTyxo5YGDpVmEzV624CtguzKU4PRelUuMQFTNySDeSmoFLu0cCTnYHwqxJAU%7E2EL762Uegh5dEbRrK3yz9k4%7ETWsG1lANtRsPknl1%7ESMFteowD0uE-TA5Fg9REb18er1d6j%7E8f8EzGdu7yuUkSGIs67jQcucEebF9Yw__&Key-Pair-Id=K6UGZS9ZTDSZM
8ecf65f2c037a0baec2f5ad99212d821
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS DDO Directive on Info Sharing (2011)
Subject
The topic of the resource
<p><strong>Document Purpose: </strong>To provide a tool to CSIS’s employees to ensure that they comply with international and Canadian legislation and that decisions to proceed or not with the use of specific information/information exchange “are made at a level commensurate with the possibility that” (1) the information to be used may have been obtained through the use of <strong><span style="text-decoration:underline;">mistreatment </span></strong>of individuals or (2) the exchange may result, directly or indirectly, in the <strong><span style="text-decoration:underline;">mistreatment </span></strong>of individuals.</p>
This Directive applies to to information sharing with <strong><span style="text-decoration:underline;">ALL foreign entities</span></strong>, is guided by the Ministerial Direction on Information Sharing with Foreign Entities (2011)
Source
A related resource from which the described resource is derived
ATIP
Date
A point or period of time associated with an event in the lifecycle of the resource
2011
CSIS
Foreign cooperation
information-sharing
Maltreatment
Torture
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/b68eae6117ad1417a610bbd294d39aa8.pdf?Expires=1712793600&Signature=Kah%7EvcLtlL7ZDOzJdYdnkQilk05gttLqk2vSHXqnY8X9HJiRfJ1rFX%7E5cYOwr-cQ8UeC7BUTHTB0lSfbTLQH7sCn5gTpXlIlD%7Ef3i9TaIitH2Q-lG3wFl2yIkfVMFvCmVCmRSkBcyqlE7NmRp%7EEOAVHkRHRZtASal27Jx2Ody0mnT8cegIgm59ZE8Afa1u1LxUXtVykywvd8yGKvyt0Sh2an3AJcXZFQi8rfCWyWsi9VsZMofJBTwtwHXB%7EzDuLQlLWt4Xp1B66AkdjTQ7mVZ4HWTdvZTxv7JB5H8My11leroPZhElDUmIBjsKE8s1i7t7TDEmvO1EpvbRWALOIArQ__&Key-Pair-Id=K6UGZS9ZTDSZM
01b2aaf025ed84451ef7c437103bf234
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS DDO Directive on Information Sharing with Agencies with Poor Human Rights Records (2008)
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<strong>Document Purpose: </strong>Deputy Director of Operations (DDO) Directive on Information Sharing with Agencies with Poor Human Rights Records. This directive sets out the principles that guide CSIS’s actions in the sharing, seeking, and use of information from agencies or governments with poor human rights records. The purpose of the Directive is not to curtail information exchange, but to ensure that decisions to exchange are made at a level “commensurate with the potential risks” that the exchange may result in the mistreatment of individuals.
<strong>Document Analysis: </strong>Much of the document is redacted. It seems that the DDO stresses the need to remain sensitive to responsibilities in protecting individuals form mistreatment that could result from CSIS’s action or inaction, but balancing these responsibilities with CSIS’s mandate to protect Canadians poses difficult challenges at times. An <em>employee</em> must <em>believe</em> – on the basis of Human Rights profiles and knowledge of a country/agency – that there is a credible possibility that sharing of information could contribute to the mistreatment of an individual.
Date
A point or period of time associated with an event in the lifecycle of the resource
2008
CSIS
Foreign cooperation
information-processsing
information-sharing
Mistreatment
Torture
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/fe51a048a21cfb0f8660fab1e905bbb0.pdf?Expires=1712793600&Signature=kUF5DgGXUrFcAq3UdRAxR1Xy47hKqaCh8qL9mA4hiRZ3oZGWNIvWHtmz2Wht6DZbUe3Kt%7EQpOWYYjabcOfPs8lvedS-co728ixqeHMiz9ROgEWGeoreYqAVWP42ASkAzYAiZaaDzi--FPTfVUIt6E60qpuE1TmwxeYnLQYzzoH5A42Kv0YrBF8A-OZoUl9Brf0dJAO47%7EiJn%7E9QHdMeTah4LcJmacDEGwvbvFphhRXKBSmFm0jmX2jRjm4GotA0woikb9aWCEDLWBTpu9wLvQpVwcRs7jhzi%7EUEiNvK1q6s8xi1KvLyz9dRwWslWQTMf-97qMfKlmpNp%7Eb8x9Zb1Ng__&Key-Pair-Id=K6UGZS9ZTDSZM
5f647a9832e25a2ec1041949699c29fb
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS DDO Directive on information sharing with agencies with poor human rights records (2008)
Subject
The topic of the resource
Operational policies
Description
An account of the resource
The Directive specifies that international exchange of information and intelligence is vital to safeguarding Canada's national security and public safety. In that context, however, the Service may be required to deal with foreign governments and agencies having poor human rights records. This Directive sets out the principles that will guide our actions in the sharing, seeking and use of information from such agencies or government. This DDO seems likely to have been superseded since it predates the 2011 ministerial directives on information sharing with foreign agencies.
Source
A related resource from which the described resource is derived
ATIP CSIS 117-2010-7
Date
A point or period of time associated with an event in the lifecycle of the resource
2008
CSIS
Foreign cooperation
information-sharing
Maltreatment
Operational policies
Torture
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/4cbb34c3c7b11ae984f28419d977a0eb.pdf?Expires=1712793600&Signature=dY-xkIy6X2zmfV%7Ej8UF7KdajB0e-k7XEmcGDlUBuMOVqajPKyKj0b36ENfYDoBvmpSPIGbWzt8e-KRTDaOF%7EsTt%7EEUs-DJJry6avf9XxJB1wD6rbE5V6tBcZNR3f7L5MezM49jhqVBc-GH2wkbig2cjamgkvlf7VvYtMATt3NjbMXy5hPJH02mlx1OEEX7bgjD8x5rtYGNMICnu-6m0Rhs3eUU9raNfMdzkO7KxlqV1ePdZ9jDj9CFzT2rt3ZJkEajY1YPFDwD1zcYhtFTDk25U4hPTa7tHkm06uIAOCNVhAT70f0ZewPRXYi1mLhSvnGNApjWyfe1wfQhNa15su2A__&Key-Pair-Id=K6UGZS9ZTDSZM
55df7cf2eefba72b1743e7682841ea04
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS Foreign Arrangements Policies and Procedures (2004)
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<strong>Document Purpose: </strong>supplements OPS-402 Section 17 Arrangements with Foreign Govts and Institutions
<p><strong>Document Analysis: </strong></p>
<p>Foreign Arrangements Philosophy (one of the few unredacted parts of this doc): CSIS generally enjoys strong relations with all of its key foreign partners. “Our international image as a viable and non-threatening partner generates a large number of requests for assistance from traditional and non-traditional partner services.”</p>
<p> </p>
<p><strong>Statistics – Section 17 Foreign Arrangements</strong></p>
<p>1984 (at transition from RCMP) – CSIS inherited 162 arrangements in 107 countries</p>
<p>92-93 – 194 arrangements in 121 countries</p>
<p>97-98 – 214 arrangements in 128 countries</p>
<p>02-03 – 237 arrangements in 134 countries</p>
<p>04-05 253 arrangements in 142 countries as of October 18, 2004</p>
<p> </p>
<p>CSIS does not publicly disclose the agencies it has foreign arrangements with. </p>
<p>CSIS arrangements with foreign intelligence agencies have increased significantly over the years, indicating that CSIS has arrangements with multiple intelligence agencies of various countries, and likely international organizations of states.</p>
<p> </p>
<p><em>“Preoccupation with maintaining necessary intelligence arrangements go a long way a considerable distance in explaining much Canadian government secrecy – the mere chance that disclosure of an ally’s secret would impair intelligence sharing is a considerable source of concern for security officials” (Forcese and Roach, 143). </em></p>
<p><em> </em></p>
<p><em>CSIS told a Federal Court in 1996 that the information it receives is “invariably provided in confidence and on the explicit or implicit understanding that neither the information nor its source will be disclosed without prior consent of the entity which provided it.” This principle is widely recognized within the policing and security intelligence communities (Forcese, NS Law, 482). </em></p>
<p> </p>
<p>In emergency circumstances, CSIS can cooperate with foreign intelligence organizations where no arrangement exists. If the Minister is unavailable to approve an arrangement, the Director can undertake “whatever exchanges or cooperation are necessary” to address such an urgent requirement.</p>
<p>Records relating to foreign arrangements will be maintained.</p>
Source
A related resource from which the described resource is derived
ATIP
Date
A point or period of time associated with an event in the lifecycle of the resource
2004
CSIS
Foreign cooperation
information-sharing
Liaison arrangements
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/28146636a02d809d7cd803559bf33280.pdf?Expires=1712793600&Signature=q0ykjvCsKRp-94vCBwt0bh60Ey4QFSO2Vk4tK7z03U9Rj2xITVlqg8wM-wQoDd%7Evn0eZPugSpYJGI7lLcnig0fhJAcpbLEFjn%7Exk7NDcjUa5ZGWc5Knlz407cqj%7EbD0n7AxCw0y4kkzkElcCfk09hTRocky2ERJYxEgwTji0N%7EVsGdlptARN7Q5bCJGZVbymnqHHT393f9GStn%7EOHlgaj4gIfgzuyN8D4bWBqcndGtmwtBDhPfci787epi4AoZdBmO8RuzlPQUkXz%7ESy0-i1iyfStkOZcM9y%7EVT0aQHcKSO1v3y4a9dVoRvuDeWowDaylKaF8U2blLL9pZk9u%7Ef6Ig__&Key-Pair-Id=K6UGZS9ZTDSZM
aa0d0c98c3732f2e3553f54acd655731
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS In-Bound Intelligence Processing protocols
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<p><strong>Document Purpose: </strong>Provides questions to consider for use of information that could be derived through mistreatment or torture (how to ensure this is not the case) such as:</p>
<ul><li>Has the country signed and ratified the Convention against Torture and Other Cruel and Degrading Treatment or Punishment?</li>
<li>Does the country adhere to principles of customary international law?</li>
<li>The foreign entity’s record in complying with past assurances</li>
</ul>
Was the detention lawful under local and international law?
<p><strong>Document Synopsis: </strong></p>
<p>“The Service cannot simply rely upon anecdotal information or personal relationships that may exist between special liaison officers and security officials in foreign countries. The Service must always ask what the <strong><span style="text-decoration:underline;">motivation</span></strong> is of the person who is providing the information. This is particularly the case when countries have poor human rights records, and may be more interested in maintaining a relationship w/ the Service than actually providing truthful information as to the human rights conditions in that country”</p>
<p>“To establish that information was obtained by the use of torture required more than just pointing to the poor human rights records of a given country” (Justice Blanchard – in relation to Mahjoub’s Security Certificate, June 2010).</p>
<p>The Information Sharing Evaluation Committee renders decision re: whether intelligence should be used or not.</p>
<em>International Law Safeguards: International law guards against extreme forms of interrogation. Two broadly ratified international treaties include the prohibition on torture and cruel, inhuman, and degrading treatment and punishment. The ICCPR Article 7 says that “no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention) includes more detailed prohibitions (Forcese, NSL, 187). </em>
Date
A point or period of time associated with an event in the lifecycle of the resource
2011
CSIS
Foreign cooperation
information-processsing
information-sharing
Mistreatment
Torture
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/31e54d46676ceac0fa2a87a05a323cde.pdf?Expires=1712793600&Signature=k2RbSwgagWzuq1gl68YYKZtZ4rZNPoLeCgaSXDM39Ia6fpVrp17bejIUDByWYZzwcCY2YJkR369%7EbT0N3iP22Tz5Yegna-mCl9K8SHamJcFUKkQh%7E%7EYoMRGsyzMLKhRshzt4SP6TDKgzfxNBji2VwHhc34NCjbvGzk6mJo5MKRRYzqml-4Vw5z8cgpyYMQzhGC%7EHzbnh2CwortFYrZ8fgpQs-cLDa0dNfGc861cEwJdGG3qmnzPjTrtjpagS-eOD2d3GifsTpm6xYPHvVg615OhTpbCMQg4RZVjfSZOlhjb2SQ285El-SusphwzwrpgwjG2w9AuIYRxPu1L8kgKW2Q__&Key-Pair-Id=K6UGZS9ZTDSZM
31509d3d5dbacb8cb46261af55a39f6c
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/bfe2bda4aff595aede4339c937f2f47f.pdf?Expires=1712793600&Signature=Z1eDyCk2fvUgkPomB%7ERMyajbovnQKq6sObiIvl2L6KIUhTkTs%7EJjoWuDhQaqUIVLSDww4Y9zFN2%7EQVtIsHLNYVf6JYViN3Bo707MRZMpt9yNSXpARtzCjxHt3IB2HPXRcZtGX7z2wug%7Ey-XdkQEYEN7rs011dspOmZBsWoXUPyu2PyzjcEMw70OCcVY7nopzvZCjW42oX6h4ODQTehZwJdVU-A7aEprWH3JYREv4Mm7PG12lvQFZeV%7E5gjHSf7mE5yD%7EEEXq2nytXjzZ29miocuPV-N8GRhfUh0x%7Ex6ddTA9ai7PF-LJQRpxK%7EBAnC9-ObzOjsT3hB8fnW9HbvjuAQ__&Key-Pair-Id=K6UGZS9ZTDSZM
73a669cb9cc66f4b28a77216d03d2ddc
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Operational polices and procedures
Subject
The topic of the resource
Documents related to agency operational policies and procedures.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS memos re new Ministerial direction on CSIS Section 17 Liaison Arrangements w/ Foreign Govts
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<strong>Document Purpose: </strong>Memo to get the Minister’s approval for the new Ministerial Directive which includes guidelines for managing CSIS’s foreign liaison arrangements (Dec. 2001). Prior to the MD guidelines, CSIS needed to consult with DFAIT/officially request Ministerial approval when seeking to enhance level of cooperation/exchanges w/ agencies with which CSIS has Section 17 Liaison Arrangements. After the new MD, the Director has authority to approve requests to enhance the level of cooperation between CSIS and foreign agencies (subject to any conditions imposed by the Minister).
<p><strong>Document Synopsis: </strong>Contains MD; Annex D; Appendix 1 (Standards and Guidelines for Establishing a Foreign Arrangement); and Annex F (Joint Operations, Operational Assistance and Investigative Activity Outside Canada) which includes guidelines for joint operations within and outside of Canada. It highlights that CSIS investigative activity outside of Canada will: conform to the CSIS Act, hold potential benefit for Canada and its national interests, and be considered for its impact on Canadian foreign policy interests.</p>
Source
A related resource from which the described resource is derived
ATIP
Date
A point or period of time associated with an event in the lifecycle of the resource
2001
CSIS
Foreign cooperation
information-sharing
Section 17 Arrangements
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https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/ea8694ed26da29a9d43d6161ac692f66.pdf?Expires=1712793600&Signature=ZCZ6m8zv6ZerUjRwWQbXMFyvg82C-Ik8RxTLk8QZcnpT45QqjoaTHOh4umNLVHAIxAFE6-X9-QCirqkOd3mAkJikpnr0Wo5QsPa0jwZp8sl0C6IH1NSq4Swg4kRT1b1BhfIKq8j%7EQMwpbd%7EfQkZJbUBpbL15fhKPUXzpyl1IR-frJchiQeBaeR2ez4wm%7EALxCG-esTLES4Axw7Mm2BSb7AodZgWwvSq%7EOstMhPsQQT9-eE0krvUnRtXqU5lISoNcL9uhkK1nmftI6%7E2WJDQs-Nah4BxJ5S0FcDCwpSqSMwjfq9Gjxfrt6wHfR6qW-tx%7EyO2jF%7E2CA3sUeVS%7EW%7E9PfA__&Key-Pair-Id=K6UGZS9ZTDSZM
ba008d6ad1b03b71cb864b8fb7092e12
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Ministerial directions
Subject
The topic of the resource
Directions issues by ministers to security agencies.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
CSIS Ministerial Direction on Information Sharing (2009)
Subject
The topic of the resource
Information-sharing
Description
An account of the resource
<p><strong>Document Purpose: </strong>Protocol for CSIS to share information with foreign agencies and governments.<br /><br />This document seems now to have been superseded by the 2011 ministerial direction on information-sharing.</p>
<p><strong>Document Analysis: </strong>Pursuant to section 17 of the CSIS Act and in accordance with existing Ministerial Directives, CSIS may be authorized to enter into formal information sharing agreements with foreign agencies, <span style="text-decoration:underline;">including those </span>that are generally recognized as having poor human rights records. CSIS is directed to <span style="text-decoration:underline;">not knowingly</span> rely on information derived from torture, and take <span style="text-decoration:underline;">reasonable measures </span>to reduce the risk that its actions could promote or condone torture.</p>
<p><em>CSIS’s review body, the SIRC, reported in its 2004-2005 annual report that at least one of the CSIS foreign arrangements that it audited “did not provide an adequate analysis of potential human rights issues.” It objected to CSIS’s claim that it “ensures” that information exchanged is not the cause or product of human rights abuses….the Service is rarely in a position to determine how information received from a foreign agency was obtained. As Mr. Elcock stated to the Arar Commission, when it comes to information that may have been the product of torture, “the reality is in most cases we would have no knowledge that it was derived from torture. You may suspect it was derived from torture, but tat is about as far as one will get in most circumstances” [Canada, SIRC, Annual Report 2004-2005 (Ottawa: Public Works and Government Services Canada, 2005) in Forcese, NS Law, 487].</em></p>
<em>Justice O’Connor’s recommendation at the Arar Inquiry was that “Canadian agencies should accept information from countries with questionable human rights records only after proper consideration of human rights implications. Information received from countries with questionable human rights records should be identified as such and proper steps should be taken to assess its reliability” (Forcese, NS Law, 488).</em>
Date
A point or period of time associated with an event in the lifecycle of the resource
Unknown, but likely late 2000s.
CSIS
Foreign cooperation
information-processsing
information-sharing
Mistreatment
Torture