Advice on Implementing the Recommendations of Murray Segal's Review of CSIS Warrant Practice (March 2017) (Sims Report)
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>.
Department of Justice (public document obtained on request)
Department of Justice
March 2017
Agreement between CSIS and the Security Intelligence Review Committee: Access to Certain Documents
MOUs
<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>
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ATIP
Unknown, but between 2014-2015
CSIS Caveat on Documents Shared with Foreign Services
Information-sharing
<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>
ATIP CSIS 117-2010-7
Unknown, but likely early 2000s
CSIS DDO Directive on Info Sharing (2011)
<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)
ATIP
2011
CSIS DDO Directive on Information Sharing with Agencies with Poor Human Rights Records (2008)
Information-sharing
<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.
2008
CSIS DDO Directive on information sharing with agencies with poor human rights records (2008)
Operational policies
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.
ATIP CSIS 117-2010-7
2008
CSIS Foreign Arrangements Policies and Procedures (2004)
Information-sharing
<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>
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<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>
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<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>
ATIP
2004
CSIS In-Bound Intelligence Processing protocols
Information-sharing
<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>
2011
CSIS memos re new Ministerial direction on CSIS Section 17 Liaison Arrangements w/ Foreign Govts
Information-sharing
<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>
ATIP
2001
CSIS Ministerial Direction on Information Sharing (2009)
Information-sharing
<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>
Unknown, but likely late 2000s.