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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 -
�
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Advice on Implementing the Recommendations of Murray Segal's Review of CSIS Warrant Practice (March 2017) (Sims Report)
Description
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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>.
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Department of Justice (public document obtained on request)
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Department of Justice
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March 2017
CSIS
reform
surveillance
warrants
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Operational polices and procedures
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CSIS OPS-219, Warrant Acquisition (Section 16) (c. 2006)
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Surveillance
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An account of the resource
<p><strong>Document Purpose: </strong>Policy deals with the assistance provided by the Service, pursuant to sections 16 and 21 of the <em>CSIS Act</em>, to the Minister of Foreign Affairs or Minister of National Defence <span style="text-decoration:underline;">in the collection of foreign intelligence</span> within Canada relating to Canada’s defence or international affairs.</p>
Date
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C. 2006.
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ATIP
CSIS
foreign intelligence
surveillance
warrants
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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
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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 OPS-221, CSIS Processing of Information and Communication Collected Under Warrant – Section 16 (2006)
Subject
The topic of the resource
Surveillance
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An account of the resource
<p><strong>Document Purpose:</strong> Policy deals with the processing of information and communications collected by CSIS and processed by CSE.</p>
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ATIP
Date
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2006
CSE
CSIS
foreign intelligence
information-processsing
information-sharing
surveillance
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https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/e7e72304b8b4bc878cf1334a3e8f025e.pdf?Expires=1712793600&Signature=iZ6uwCwFu6fxbR%7EQb5PbXBJdq%7E%7EtO0BsGS0BI3Wa9%7EJQioCWcVIazhcUiD%7EerWroqncCDXr8hF%7EL5Bu5FIS7UMoFZY%7E8yaK4HJfeHmkxSo-K4hEsd4wsDZ5rSYExH6fvpQ6zhkzUDM1Pb0RjGYm-m9Fw6CO2ILrX2bddLHz0%7E4uSowq3iVQ%7ErvbGtYm8XKjsWvFlZNpU69EsWCK4APb4jrj87yWSsvDLQi41JHwswCoaiaA9vxNDlR3jsRVoCCzMixkbdd3%7EedtuVNtfGpCyF2vXGKr9%7EFCM2383kInWauXkCiDMKtFr25UwmLOGocyVTmIfBYmmX72zRPJ%7E85jDJw__&Key-Pair-Id=K6UGZS9ZTDSZM
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PDF Text
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����
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A name given to the resource
Privy Council Wiretap Order (St-Laurent government) (1951)
Subject
The topic of the resource
Privy Council documents
Description
An account of the resource
This order was issued in 1951 and provides a sense of wiretap orders from the early Cold War period. It was obtained by Professor Dennis Molinaro, and is discussed by Professor Molinaro <a href="http://dennismolinaro.ca/canadas-secret-wiretapping-order-is-out-read-about-it-and-download-here/">here</a> and in CBC reports <a href="http://www.cbc.ca/news/politics/cold-war-wiretapping-secret-order-1.3933589">here</a>.
Source
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ATIP
Date
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1951
Contributor
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Professor Dennis Molinaro
Cold War
PICNIC
RCMP
surveillance
warrants
wiretap
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PDF Text
Text
REVIEW OF CSIS WARRANT PRACTICE
Murray D. Segal, LL.B., B.C.L.1
December 2016
I.
The current circumstances
On November 3, 2016, Justice Simon Noël – the senior Designated Judge for national
security matters on the Federal Court – released the public version of his Judgment and Reasons
in a case arising from a CSIS warrant application.2 As part of his Judgment, Justice Noël declared
that:
The CSIS has breached, again, the duty of candour it owes to the Court.
This was a remarkable finding which has no doubt given many people pause. As surprising
as it may have been to many, however, it did not come out of the blue.
As suggested by Justice Noël’s use of the word “again,” this declaration has a significant
and concerning back story. Indeed, by the time Justice Noël’s judgment was released, first in Top
Secret and then in public form, I had already been retained to assist the Department of Justice in
identifying ways to ameliorate the shortcomings in its ex parte practice before the Federal Court.
Those shortcomings had been pointed out by other judges in previous cases, stretching back several
years. Justice Noël’s disquieting conclusion was no doubt a wake-up call. To the credit of the
Department of Justice and the Service, however, the gist of his message had already been received.
Work was already underway on how to ensure that the failings identified by Justice Noël would
not be repeated.
1
Assisted by Matthew Gourlay, J.D., partner at Henein Hutchison LLP
The public reasons are indexed as 2016 FC 1105. For ease of reference, I will refer to it as the
Associated Data case.
2
1
�Earlier in 2016, following the release of the Annual Report of the Security Intelligence
Review Committee, the Chief Justice of the Federal Court had expressed a more general concern
about CSIS’s transparency with the Court and its general approach to the duty of candour.
How did we get to here?
Although it has sometimes been beset by challenges, the relationship between CSIS 3 and
the Federal Court is a critical one for Canada’s national security and civil liberties. Section 21 of
the Canadian Security Intelligence Service Act empowers the Court to authorize, via warrant, a
range of intrusive investigative techniques against people believed to constitute a threat to
Canada’s national security. 4 Several dozen times a year, the Service comes before designated
judges5 of the Court ex parte, seeking a warrant pursuant to s. 21. Once granted, those warrants
allow CSIS to undertake intrusive investigative measures to gain intelligence on threats to
Canada’s national security and, in turn, assist in preventing those threats from materializing.
Warrants can last for up to 12 months. Renewals, which require a full re-application, are not
uncommon.
It has been said that judicial warrants are the Service’s lifeblood. Only the designated
judges of the Federal Court can issue them. And CSIS cannot carry out its intelligence-gathering
mandate without them. Given the extreme sensitivity of the information involved, applications for
warrants are heard ex parte and in camera,6 thereby placing a profound responsibility on counsel
acting for CSIS to inform the Court about anything and everything it needs in order to carry out
its task. This responsibility is sometimes referred to as the duty of full, frank, and fair disclosure
The Canadian Security Intelligence Service will be referred to interchangeably as “CSIS” and
“the Service.”
4
It also authorizes warrants to be issued in order to allow CSIS “to perform its duties and
functions under section 16,” which relates to the defence of Canada and the conduct of
international affairs. Warrants pertaining to threats to national security are more numerous and
are the focus on my consideration here.
5
“Designated judges” are judges of the Federal Court designated by the Chief Justice under the
authority of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (and other acts
of Parliament dealing with national security) to preside over national security-related matters.
Currently, the roster of designated judges numbers 14.
6
Canadian Security Intelligence Service Act, s. 27
3
2
�or the duty of utmost good faith. In the national security context, however, it has most often been
referred to as the “duty of candour” and I adopt that terminology here.
Unlike warrants or orders issued in the course of criminal investigations, CSIS warrants
never lead directly to a criminal prosecution. They do not result in disclosure to the accused. In
the vast majority of cases, there is never any ex post facto adversarial litigation over their propriety
or legality. Indeed, even though a CSIS warrant can authorize profound intrusions into a person’s
privacy, the target is never notified that he or she was ever a target. 7 The adversarial challenge
mechanism that elsewhere helps keep state power in check is generally absent. In a very real sense,
the Court itself is the final check on the exercise of that power in the vast majority of cases. All of
this makes the CSIS warrant process sui generis. Importantly for our purposes, it places a 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.
CSIS has made mistakes in the past. Most famously, in 1987, CSIS’ first director resigned
in the wake of the court’s finding that the Service had tendered a materially misleading affidavit.
Periodically, the Service and the Department have commissioned studies or reports inquiring into
how to improve their internal process in order to ensure that the final product – the warrant
application – is as reliable as possible.8
More recently, the Court has found that CSIS has failed to live up to its duty of candour in
a number of instances. Most significant, in my view, is Justice Mosley’s judgment in Re X, 2013
FC 1275. The facts and circumstances of that case are complicated, but the Court’s conclusion is
not. Put simply, Mosley J. held that CSIS had breached its duty of candour in 2009 by “strategically
omit[ting]” mention of the fact that it intended to seek the assistance of foreign partners in
execution of the warrants. 9 Justice Mosley characterized the Attorney General’s position as
Contrast this with the Criminal Code’s detailed requirements for notifying people whose
private communications were intercepted (s. 196) and returning or detaining things seized
pursuant to a search warrant (s. 490).
8
I have reviewed, and have been greatly assisted by, the reports prepared by Michael W. Duffy
(2005), the Hon. George Addy (1992), and the team led by the Hon. Gordon F. Osbaldeston
(1987).
9
Re X, 2013 FC 1275, at para. 90
7
3
�“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.”10
The Attorney General appealed Justice Mosley’s findings to the Federal Court of Appeal,
maintaining that the withheld information was irrelevant to the statutory test for granting a warrant
and therefore not subject to the disclosure duty. That court dismissed the appeal, affirming Mosley
J.’s conclusion that the duty of candour compelled CSIS to disclose its intention to seek secondparty assistance. The Attorney General sought leave to appeal to the Supreme Court of Canada.
Leave to appeal was granted, but the Attorney General decided to abandon the appeal.11 The result
was that Mosley J.’s decision stood. CSIS’ breach of the duty of candour was confirmed.
Importantly, the breach identified by Mosley J. only came to light because the issue of
assistance by foreign powers was commented upon in the 2012-2013 Annual Report of the
Commissioner of the Communications Security Establishment (“CSE”).12 It was this Report which
caused Mosley J. to order the re-attendance of counsel to explain if and how the Commissioner’s
comments related to warrants issued pursuant to Mosley J.’s 2009 decision. The Court was
understandably concerned that the Attorney General had itself not seen fit to bring the issue to its
attention.
Likewise, the hearing that precipitated Noël J.’s recent finding of a breach of the duty of
candour in the Associated Data case also arose from the report of an oversight body rather than
CSIS’ own explicit disclosure to the court. Specifically, it was only with the publication of the
2014-2015 Annual Report of the Security Intelligence Review Committee (“SIRC”) that the
Federal Court became aware that the Service was indefinitely retaining third-party associated data
10
Re X, supra, at para. 89
It should be noted that the extraterritoriality issue that underlay the litigation was resolved by
the enactment in 2015 of s. 12(2), which now provides: “For greater certainty, the Service may
perform its duties and functions under subsection (1) within or outside Canada.”
12
The Communications Security Establishment (“CSE”) is Canada’s national cryptologic
agency. It responsible, among other things, for acquiring and using information from the global
information infrastructure for the purpose of providing foreign intelligence to the Government of
Canada. The Commissioner’s role is to provide independent external review of CSE activities to
determine whether they comply with the laws of Canada. He reports to Parliament annually on
his findings.
11
4
�collected in the execution of warrants. 13 Subsequently, there was an en banc hearing of the
designated judges at which certain proposed amendments to the warrant conditions templates and
the collection and retention program were discussed.14 Justice Noël’s judgment finding another
breach of the duty of candour on the part of CSIS was the eventual result.
There have been other incidents in the recent past in which the Court has learned about
legal issues with their warrants from judicial proceedings in or decisions of other courts. In two
instances that I examined, CSIS investigations indirectly resulted in criminal prosecutions. In both
cases, the legal validity of the original CSIS warrant was litigated at trial, and in both instances
justices of the Ontario Superior Court of Justice made adverse findings in respect of the affidavits
used to obtain the warrants.
In other cases, the Court has expressed concern about the Service’s failure to respond in a
timely manner to issues raised by members of the Court on warrant applications. An impression
appears to have been left that CSIS is insufficiently responsive to the Court.
This is by no means an exhaustive catalogue of the sources of the Court’s dissatisfaction
with CSIS. Nonetheless, it gives a flavor of the scope and seriousness of the problem. Put simply,
the Court’s trust in CSIS and counsel acting for it has been eroded. That would be a serious
situation for any litigant to find itself in. But CSIS is no ordinary litigant. As Canada’s domestic
intelligence agency, CSIS is an indispensable part of Canada’s national security apparatus and
13
SIRC is the independent external review body responsible for reporting to Parliament on the
operations of CSIS.
14
Occasionally, the Court will convene en banc hearings of most or all of the designated judges
in order to canvass important issues that have arisen (or are expected to arise) in multiple warrant
applications. Although each designated judge retains absolute independence to decide individual
applications as he or she sees fit, this en banc process is a useful way to avoid duplication in the
presentation of evidence common to more than one warrant application and allows the
designated judges to have the benefit of each other’s perspectives. Some en banc hearings have
arisen out of specific warrant applications while others have been geared toward allowing a more
general exchange between the Court and Service on issues of concern to the Court. In most of
these instances, the Court has appointed amicus curiae to participate in order to ensure the
appearance and reality of a proper adversarial balance. Finally, there have also been en banc
sessions to provide information to the Court on new technologies. In these instances, respected
retired judges of a different court have been retained to review the material in advance and be
present at the hearing in order to ensure that the Court’s independence is in no way
compromised.
5
�warrants issued by the Federal Court are crucial to its ability to carry out its mandate. For its part,
the Court bears the heavy burden of safeguarding the interests of both national security and civil
liberties in challenging circumstances that necessarily lack the accustomed public transparency
and adversarial balance. The Court needs to be able to trust the representations made to it by
counsel acting on behalf of CSIS. It needs to be able to carry out its work secure in the knowledge
that it has before it all the facts, law, and issues relevant to the crafting and issuance of s. 21
warrants. To carry out its own crucial work, CSIS needs to be able to consistently deliver this level
of trust.
To be sure, amicus curiae, where appointed, perform a crucial function in providing
balance and giving the Court a degree of comfort that it is hearing all sides of a particular issue or
dispute. But amicus are not (and likely cannot be, in practical terms) involved in every warrant
application. The possible appointment of amicus in certain cases in no way alleviates the necessity
of CSIS earning and maintaining the Court’s trust.
It seems clear to me that the Court’s trust in CSIS has been strained by recent events. No
doubt, a series of judicial criticisms about the conduct of CSIS on warrant applications could lead
to a suspicion of some kind of bad faith on the part of CSIS and its counsel. However, as I will
explain, my consultations with counsel and others involved in the process have shown them to be
a dedicated group of professionals who take their responsibilities extremely seriously. I am
convinced that CSIS and the Department of Justice are determined to do whatever is necessary to
repair the necessary trust relationship with the Court. This means moving forward in a way that
learns from past mistakes and incorporates practices and processes that can help insure against
their repetition. In what follows, I offer my own analysis and recommendations intended to assist
in this important work.
II.
My mandate
When I was retained by the Department of Justice in July 2016, I was principally tasked
with providing advices on “best practices” in ex parte matters, drawing on my own experience in
the world of criminal investigations and prosecutions, and an anticipated survey of senior Crown
counsel and police officers across Canada. The object was to give the Justice counsel working on
6
�CSIS warrant applications fresh and authoritative insights on how to meet their obligations in ex
parte proceedings.
Among other things, I was asked to:
provide legal and practical advice regarding the legal duties of counsel and
affiants/witnesses on ex parte and in camera hearings, including a review of best
practices in other jurisdictions;
assist with a draft policy on the legal duty of candour in ex parte and in camera
proceedings that will govern the conduct of counsel and CSIS employees; and
provide advice on management processes to facilitate meeting the legal standards on
ex parte / in camera matters
My initial work involved getting up to speed on the recent developments that have
precipitated this review, including the Federal Court and Federal Court of Appeal decisions in the
Re X case and the en banc hearings before the Designated Judges of the Federal Court earlier this
year. I obtained “Secret” level security clearance for this purpose. However, because a large
portion of the materials in question are classified as “Top Secret”, I was restricted to reviewing
redacted, public versions of the relevant judgments, court filings, and transcripts. I return to the
issue of security clearance below.
In August 2016 I travelled to Ottawa and met with a number of stakeholders. These
included: the Senior General Counsel of the CSIS Legal Support Unit (“CSIS LSU”); CSIS
employees involved in the warrant process; Justice counsel who have filled the role of Independent
Counsel in the CSIS warrant application process; senior counsel at the Public Prosecution Service
of Canada (“PPSC”) with experience in national security work; and counsel at the Competition
Bureau, which also conducts a steady stream of ex parte hearings before the Federal Court and
was thought to be a potentially useful source of guidance for that reason. My objective was to gain
an understanding of the context in which CSIS LSU lawyers work in order that I could provide
contextually appropriate advice in respect of satisfying the duty of candour.
At the same time, in August, I was carrying out my cross-country survey of senior
prosecutors and police officers on “best practices” for ex parte proceedings. These consultations
7
�included in-person meetings in Ottawa and Toronto and phone discussions with individuals located
elsewhere in Canada. All of the people I consulted have extensive experience handling sensitive
ex parte applications in the criminal sphere – predominantly, applications to intercept private
communications under Part VI of the Criminal Code.
While these consultations 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. I realized that
I could not offer meaningful, targeted advice without a detailed grasp of the specific processes and
subject matter with which CSIS LSU counsel work day in and day out. In particular, I became
convinced that I could not gain an adequate understanding of the context in which CSIS LSU
counsel operate – and therefore could not provide useful and practical advice – if I did not have
Top Secret clearance. Without that clearance I could not read unredacted versions of the Federal
Court decisions explaining the judiciary’s concerns with CSIS’s conduct; I could not speak freely
with counsel and other participants about the sources and implications of the current difficulties;
and I could not achieve a truly informed grasp of the process itself so as to be in a position to
recommend meaningful changes. Given the gravity of the situation, the Department and CSIS do
not need a list of bromides divorced from the factual context in which the problems have arisen.
They need well-informed suggestions on how to do better.
To its credit, the Department of Justice was understanding of this position. They readily
agreed to facilitate the necessary security clearance for myself and my colleague on an expedited
basis. As a result, by October I was able to resume my work, now with full access to the Top Secret
materials which form the substance and backdrop of the recent challenges.
When I made a second trip to Ottawa in mid-October, I was given wide-ranging access to
relevant documents at CSIS headquarters. I was given ready access to key personnel, including
counsel who act on warrant applications and a senior executive of the Service.
I also conducted a further round of meetings with other participants in the process. The
Chief Justice of the Federal Court and two of his colleagues among the designated judges agreed
to meet with me so that I could learn more about their perspectives and concerns. I met with two
senior counsel from the private bar who have often acted pursuant to court appointments as amicus
8
�curiae on national security matters, including CSIS warrant-related cases. I also met with past and
present senior members of the Department of Justice with responsibility for national security law.
All of these consultations were extremely helpful to me in coming to understand the nature of the
current difficulties and the unique challenges of this work.
I have since followed up with visits to CSIS’ secure facility in Toronto to conduct
additional consultations and review additional documents. Everything I have asked to see, and
everyone I have asked to meet, have been forthcoming. I am satisfied that I have gained a
sufficiently detailed understanding of the CSIS warrant process to offer meaningful suggestions
for how it can be improved.
III.
CSIS warrants: a brief overview
CSIS is Canada’s domestic intelligence agency. It investigates people and entities believed
to pose threats to Canada’s national security and furnishes the resulting information to the
Government of Canada. The Service’s core mandate is set out in s. 12 of the Canadian Security
Intelligence Service Act, RSC 1985, c C-23:
The Service shall collect, by investigation or otherwise, to the extent that it is strictly
necessary, and analyse and retain information and intelligence respecting activities that
may on reasonable grounds be suspected of constituting threats to the security of Canada
and, in relation thereto, shall report to and advise the Government of Canada.
Like any government body, CSIS operates within the rule of law. For that reason, it needs
judicial authorization to undertake intrusive measures that would otherwise be illegal. Section 21
of the Act provides the framework under which warrant applications are made and adjudicated.
The Minister of Public Safety and Emergency Preparedness (the “Minister”) must approve
every warrant application. Pursuant to s. 21(2), each application must be supported by a detailed
affidavit intended to establish reasonable grounds to believe that a warrant is necessary to
9
�investigate a threat to the security of Canada. 15 The affidavit also must explain why other
investigative procedures are unsatisfactory and must specify a range of information about the
intrusive technique proposed and the anticipated target(s). Once issued, a warrant can be in effect
for up to a year. It is not uncommon for successive applications to be brought, such that a particular
target remains subject to a warrant for years at a time.
Internally, the team responsible for shepherding a warrant application from inception to the
Federal Court consists of an affiant, an analyst, and legal counsel from the Department of Justice
who comprise the CSIS LSU. 16 Both the affiant and analyst are CSIS intelligence officers. In
general terms, the analyst is responsible for marshaling the entirety of the case file and will work
with the affiant to distill the relevant portions of the file into narrative form. Throughout, the affiant
retains responsibility for the affidavit and for “facting” the assertions to be relied on in the affidavit.
Both the affiant and analyst would have been involved in the direction of the investigation prior to
the decision to seek a warrant having been made.
The drafting process itself is a collaborative effort involving all three members of the
warrant team. Of necessity, affidavits presented in support of warrant applications tend to be
lengthy, because they need to give the court a sufficiently detailed understanding of the nature and
background of the particular threat, the course of the investigation to date, and the purpose for
which the intrusive powers are being sought. I understand that the drafting process is intensive and
each affidavit typically goes through many drafts.
The internal approval process is extensive. Indeed, it has sometimes been described as
byzantine, not entirely without justification. I will not review every procedural stage except to note
that the entire process from the decision to seek a warrant until it is ready to go to court may go
15
A warrant can also be sought if it is necessary for CSIS to perform its duties and functions
under s. 16, which empowers CSIS to assist in the defence of Canada or conduct of international
affairs by collecting intelligence on the capabilities, intentions, or activities of foreign states and
foreign nationals. Because the large majority of CSIS warrant applications concern the Service’s
s. 12 mandate, my focus here is on those warrants.
16
CSIS LSU consists of about 25 counsel and is led by a Senior General Counsel who reports to
an Assistant Deputy Minister. The role of the group is unusual among Department of Justice
divisions in that it provides both advisory and litigation services in-house to its client, CSIS.
There are good practical reasons for this. However, it also presents certain challenges, which I
discuss below.
10
�from a very short timeline in true emergency situation to one that would take a number of weeks
in more normal circumstances. Two stages within this process merit particular mention for my
purposes.
Once the warrant is in a state the warrant team considers to be final, it is reviewed by an
Independent Counsel (“IC”) for factual accuracy. Instituted in the wake of the Atwal affair,17 this
is designed to constitute an independent challenge function, ensuring as far as possible that factual
mistakes do not make their way into the materials submitted to the Court. IC are drawn from the
ranks of the Department’s National Security Group. They are separate, and in an independent
reporting line, from CSIS LSU counsel. When the materials are ready for their review, the IC
attends at CSIS headquarters and is provided with the affidavit and the “facting” documents. IC
sits down with the warrant team and goes through the affidavit paragraph by paragraph, checking
the factual assertions made against the source documents. Their role emphasizes challenging any
assertion that appears inadequately supported, potentially misleading, or otherwise problematic.
Notably, IC is not provided with a copy of the draft warrant itself. IC’s function is very much
confined to the facts; the challenge function does not extend to any legal issues that could be raised
by the application. I return to this issue below.
The other stage of the internal approval process I wish to call attention to is approval by an
interdepartmental committee of senior officials. This high-level committee meets to review each
application before it goes to the Minister. It is a multi-disciplinary body acting independently of
the operational branches of the Service, and includes representatives from Justice and Public
Safety. Everyone on the committee reads the application materials and has the opportunity to ask
questions of the affiant and the responsible counsel. The Director makes the decision on whether
to proceed. If the decision is to proceed, the Deputy Minister is consulted and the Minister’s
In Atwal v. Canada, [1987] F.C.J. No. 901 (T.D.), “extensive and serious errors” were
belatedly discovered by the Service and acknowledged as such to the Court. The Attorney
General conceded that, but for those errors, the warrant could not have issued. As mentioned
above, this episode led to the resignation of the Service’s first Director. I understand that the role
of Independent Counsel was created in the wake of Atwal as part of the effort to ensure that such
mistakes were not repeated.
17
11
�approval is sought. Both are statutory requirements of the Act. 18 If approval is granted, the
application is brought before the Court. That is where the duty of candour comes into play.
Prior to the warrant application hearing, an application package is submitted to the court.19
At the hearing, CSIS is represented by CSIS LSU counsel. Typically, the presiding judge asks
questions of the affiant under oath. Questions are also very often directed at counsel in order,
among other things, to clarify the rationale for the powers sought or the conditions proposed. On
occasion, where a particular application raises new or recurring issues, an en banc hearing of the
designated judges may be held in order to streamline the process. 20 Understandably, even an
ordinary hearing tends to be an intensive process given the sensitivity and complexity of the subject
matter and the high stakes involved.
IV.
The duty of candour
The “duty of candour” applicable in ex parte proceedings is something of a misnomer
because counsel in all proceedings, as officers of the court, are obliged to be candid in their
submissions to the court in the sense of being accurate in stating the facts and the law. But as used
in the ex parte context, the duty of candour means much more than the simple avoidance of untruth.
Rather, the duty arises as a result of the extraordinary, exceptional nature of ex parte proceedings
in our adversarial system. The system is predicated upon the belief that a full and fair airing of
both sides of a dispute will enable a neutral arbiter to reach a just and accurate result. Sometimes
the circumstances require a one-sided hearing, and when that happens the party availing
Section 7(2) stipulates: “The Director or any employee who is designated by the Minister for
the purpose of applying for a warrant under section 21, 21.1 or 23 shall consult the Deputy
Minister before applying for the warrant or the renewal of the warrant.” Further, pursuant to s.
21(1) of the Act, a warrant application can only be brought once the Service has obtained the
Minister’s approval.
19
Although most applications are brought with significant advance notice to the Court, a
designated judge is on duty 24 hours a day, 7 days a week, in order to deal with any urgent
applications that may arise. The identity of the duty judge is not disclosed in advance, in order to
avoid any possible perception of judge-shopping. See: Justice Anne Mactavish, “National
Security, Human Rights and the Federal Court” (speech delivered before the International
Commission of Jurists in Ottawa, on February 4, 2013), available at: http://cas-cdc-www02.cassatj.gc.ca/portal/page/portal/fc_cf_en/Speeches/speech-discours-4feb2013
20
2016 FC 1105, at para. 2
18
12
�themselves of this exceptional opportunity has a heavy burden to ensure that the opportunity is not
abused. Counsel’s normal adversarial zeal has no place in a hearing where the normal
counterbalance is lacking. Rather, counsel must ensure that both sides of the dispute are put before
the court, so far as is reasonably possible, even though only one side is actually present.
The definitive statement of counsel’s duties comes from Ruby v. Canada (Solicitor
General), [2002] 4 S.C.R. 3, 2002 SCC 75, where Justice Arbour stated for the Court:
In all cases where a party is before the court on an ex parte basis, the party is under a duty
of utmost good faith in the representations that it makes to the court. The evidence
presented must be complete and thorough and no relevant information adverse to the
interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes
of professional conduct impose such an ethical obligation on lawyers. See for example the
Alberta Code of Professional Conduct, c. 10, r. 8.
The Court re-affirmed this formulation of the duty in Canada (Citizenship and
Immigration) v. Harkat, [2014] 2 S.C.R. 33, 2014 SCC 37, at para. 101, per McLachlin C.J.
Importantly, the duty is not exhausted by the mere inclusion of all relevant information.
The presentation of the information must be fair as well. This means that an affidavit must be
written and structured so as to ensure that adverse information has appropriate prominence. It
cannot be “buried” in the footnotes or lost in a sea of extraneous detail. “Fair” is just as important
as “full” and is not synonymous with it.
Likewise, transparency in distinguishing between facts and inferences is a key element of
candour. There is an elementary but crucial difference between the fact that a car belonging to
person “A” was at place “B” on a given day and the inference that person “A” was at place “B” on
that date. The difference needs to be clearly and consistently reflected in the drafting of the
affidavit if the duty of candour is to be fulfilled.
In the everyday world of litigation, an ex parte hearing – say, for an emergency injunction
– is followed closely by full disclosure to the other side and an opportunity for opposing party to
challenge the court’s order. While this is no way relieves counsel of their duty to make full, fair,
and frank disclosure, the prospect of review and challenge by the opposite party – together with
13
�the threat of serious costs sanctions or damages if such challenge is successful – no doubt gives
the issuing court a certain degree of comfort in relying on the representations of the applicant’s
counsel.
In this respect too, CSIS warrant proceedings are different. Not only is the target of the
proposed order not represented at the hearing or notified of its existence; in the normal course, the
target is never notified of the hearing of the warrant and never given the opportunity to contest its
validity. This is by no means a criticism: it could hardly be otherwise. But in order to assess the
contours of the duty of candour in this context, the truly exceptional nature of the proceedings
must be firmly grasped. In no other context is counsel’s compliance with the duty of candour more
critical to the upholding of the rule of law. That is a weighty responsibility.
Finally, the special role and responsibilities of Crown counsel need to inform how the duty
of candour is calibrated in this context. It cannot be forgotten that where counsel representing CSIS
comes before the Federal Court seeking a warrant, he or she is representing the Attorney General
and the Government of Canada. Special duties attach to the Crown that do not burden other parties.
As the Supreme Court has stated:21
The Attorney General is not an ordinary party. This special character manifests itself in
the role of Crown attorneys, who, as agents of the Attorney General, have broader
responsibilities to the court and to the accused, as local ministers of justice (see Boucher v.
The Queen, [1955] S.C.R. 16, at pp. 23-24, per Rand J.; Nelles v. Ontario, [1989] 2 S.C.R.
170, at pp. 191-92, per Lamer J.).
The Attorney General has unique, overriding obligations to the administration of justice
that are deeply rooted in our constitutional traditions.22 The Federal Court of Appeal has neatly
Ontario v. Criminal Lawyers’ Association of Ontario, [2013] 3 S.C.R. 3, 2013 SCC 43, at
para. 37, per Karakatsanis J.
22
While rooted in a different tradition, the American Bar Association’s Criminal Justice
Standards for the Prosecutorial Function (4th ed.) share some important common features with
the duty I am describing here. See, in particular, Standard 3-1.4, “The Prosecutor’s Heightened
Duty of Candor,” which provides, in part: “In light of the prosecutor’s public responsibilities,
broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and
in fulfilling other professional obligations. […] The prosecutor should not make a statement of
fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a
21
14
�captured this idea in speaking of the “traditional constitutional role of attorneys general as
guardians of the public interest in the administration of justice.”23 The Court also confirmed that
attorneys general are “constitutionally obliged to exercise their discretionary authority in good
faith, objectively, independently, and in the public interest.”24
In my view, these characterizations are by no means limited in their application to criminal
prosecutions. Counsel acting for CSIS on warrant applications must fulfill the role of “minister of
justice” in the truest sense of the term. This reality only further accentuates the heavy burden on
counsel appearing ex parte on these warrant applications.
While no one disputes the basic ingredients of the duty of candour, it is apparent from the
recent difficulties that CSIS has not always appreciated what it entails in practice. In my view, the
Re X case is exemplary in many respects of the difficulty that has arisen. As alluded to above, the
breach identified by Justice Mosley involved the failure of CSIS to disclose that it would be
seeking assistance from foreign partners in intercepting the communications of individuals subject
to a warrant. The issue was of particular significance because the original 2009 application before
Justice Mosley engaged a novel legal issue about the ability of the Court to grant a warrant in
respect of Canadians conducing threat-related activities abroad. In his evidence before Justice
Mosley, the witness on behalf of CSIS indicated that the targeted communications would be
intercepted by Canadian government equipment, and no reference was made to seeking assistance
from foreign allies. Justice Mosley rejected the AG’s position that the prospect of seeking such
assistance was legally and factually irrelevant to the issuance of the warrant. He stated:
…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
court, lawyer, witness, or third party […] In addition, while seeking to accommodate legitimate
confidentiality, safety or security concerns, a prosecutor should correct a prosecutor’s
representation of material fact or law that the prosecutor reasonably believes is, or later learns
was, false, and should disclose a material fact or facts when necessary to avoid assisting a
fraudulent or criminal act or to avoid misleading a judge or factfinder.” Available at
www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html
.
23
Cosgrove v. Canadian Judicial Council, [2007] 4 F.C.R. 714, 2007 FCA 103, at para. 51, per
Sharlow J.A.
24
Ibid.
15
�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. In the circumstances under
consideration that would include matters relating to the prior history of attempts to have
the Court authorize the collection of security intelligence abroad and the potential
implications of sharing information about Canadian persons with foreign security and
intelligence agencies.
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.25 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.
Using Re X as an example, whether or not the question of second-party assistance needed
to be addressed as part of the “other investigative procedures” criterion in s. 21(2)(b) is an
interesting legal question that can be and has been debated. 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. I return to this
question below in formulating my recommendations for ensuring compliance with the duty of
candour going forward.
No doubt, this is not always an easy exercise. CSIS counsel and affiants face challenges
that do not have precise analogies in, for instance, the world of criminal investigations. The Service,
understandably, operates on the “need to know” principle. While both counsel and affiants are
taught that “need to know” has no application in the warrant context where it is supplanted by the
duty of candour, the necessarily secretive world of CSIS operations poses special challenges for
25
Re X, 2014 FCA 249, at para. 61
16
�counsel needing to put the “whole story” before the Court. In everything I have reviewed and in
all the consultations I have conducted, I have detected absolutely no indication of “bad faith” or
willful disregard of the duty of candour or the Attorney General’s special obligations. To the
contrary, as already indicated, I am confident that counsel genuinely want to get this right. My
recommendations, below, are intended to provide some guidance on how that might be
accomplished.
V.
Cross-jurisdictional survey of best practices
As recounted above, I was tasked with surveying “best practices” regarding ex parte and
in camera proceedings in the non-national security world. To that end, I conferred with over a
dozen senior prosecutors from across Canada, all of whom have significant experience with ex
parte applications. Most of them are, or have been, Crown wiretap agents. I also spoke with a
number of senior police officers with experience in the drafting and presentation of ITOs for
wiretaps and other sensitive applications.
In each case, I provided the interviewee a brief summary of my mandate in advance so that
they would have time to gather their thoughts in advance of our consultation and provide me with
considered input. Although I did not specifically request it, I was pleased to learn that a number of
my interview subjects had taken the time to consult with their own colleagues to supplement and
refine the information and advice they provided to me.
While specific practices differ widely across jurisdictions and contexts, a number of
common themes emerged.
At the outset I would observe that for prosecutors and police officers alike, the looming
prospect of an adversarial challenge to their work was a powerful motivator to get it right the first
time. All were conscious of the reality that, if things went well and charges were laid, their work
in preparing and executing the judicial order would be exactingly scrutinized by defence counsel
then ruled upon by a neutral arbiter having had the benefit of conflicting submissions from the
prosecution and defence. Unsurprisingly, this prospect of post facto review provides a constant
impetus to do things properly and not cut corners. In this way, the prospect of inter partes
17
�proceedings reinforces the importance of complying with the special duties imposed by the ex
parte context. To put it plainly, prosecutors and police are instilled with the healthy sense of
someone looking over their shoulder – if not now, then soon.
That impetus is lacking in the CSIS warrant context. The possibility that a particular
warrant will be reviewed by SIRC or end up down the road in litigation is substantially more
remote than, say, the likelihood that a criminal wiretap authorization will be challenged in a
“Garofoli” hearing.26 This likely absence of review does not mean that CSIS LSU counsel seeking
warrants will be consciously motivated to cut corners or shirk their responsibilities. In my
consultation with CSIS LSU counsel, as I will detail below, I found the opposite to the case. But
it does mean that an important check is usually missing and needs to be compensated for in other
ways.
From my survey, the following themes may provide some guidance on what those “other
ways” might look like.
The affiant should be experienced, authoritative, and independent
No single theme emerged more often than the importance of a high-quality affiant in
producing an application package that will be of optimal assistance to the issuing court and hold
up on subsequent review. The affiant is the person on whose sworn evidence the court acts. If that
evidence is not fully accurate and complete, the ability of the issuing court to carry out its mandate
is irreparably compromised. No amount of work from any other actor can compensate for an
affiant’s failure.
As one prosecutor put it, the affiant needs to have a “profound understanding” of what full,
frank and fair disclosure means both in theory and in practice. The same prosecutor insisted that
as an aspect of this understanding, the affiant needs to grasp that this is a personal obligation he
Named after the Supreme Court’s landmark decision in R. v. Garofoli, [1990] 2 S.C.R. 1421,
this is the term commonly used to refer to a pre-trial hearing in which the validity of a judicial
authorization like a wiretap order is challenged by the defence as contrary to s. 8 of the Charter
for the purpose of obtaining an order excluding the evidence thereby obtained.
26
18
�or she owes to the court regardless of the affiant’s place in the bureaucracy or chain of command.
There is simply no room for a pass-the-buck mentality in this position.
An over-sensitivity to constructive criticism is also a disabling trait for an affiant to possess.
Well before it goes to court, a wiretap affidavit will be thoroughly reviewed – and criticized – by
a number of different pairs of eyes. Criticism may also come, eventually, from defence counsel
and even the court. It was emphasized to me that a successful affiant needs to be able to learn from
criticism without being personally discouraged by it.
Prosecutors and police officers were both highly critical of the phenomenon of the firsttime, one-time affiant – the officer who has never been an affiant before and has no plans to ever
occupy that role again. That is a recipe for substandard work. Although every affiant must
obviously have a first time, that time should be at a point in their career when they already possess
the knowledge and fortitude to fulfill the high expectations that accompany the role. And there
should be every expectation that an affiant’s first time will not be his or her last. Not only does an
under-qualified affiant produce a lower-quality product in terms of clarity and readability,
inexperience can actually compromise the affiant’s compliance with his or her duties of full, fair,
and frank disclosure. An insufficiently trained or experienced affiant on a complex matter can,
according to the officers and prosecutors I spoke with, cause trouble by failing to reliably
distinguish between the relevant and peripheral.
Independence was a quality almost universally mentioned as crucial in the course of my
consultations. It is a quality strongly linked to stature and experience. The affiant is not simply a
mouthpiece of the investigative team: he or she needs to exercise strong independent judgment in
deciding whether and how the raw material of the investigation can meet the legal prerequisites
for issuance. The affiant needs to feel comfortable in asking tough questions of her colleagues,
challenging factual contentions where appropriate, insisting that the whole story be told, and
pushing back when her inquiries meet with an evasive or incomplete response. Simply put, the role
is not about mere “paperwork” – it is in many respects the fulcrum of the investigation. An affiant
who fails to fulfill his role can do irreparable damage to the investigation itself and to the stature
of the investigative agency more broadly. There is no substitute for an affiant who is appropriately
skilled, trained, and independent.
19
�Recommendation #1:
CSIS affiants need to be equipped with a thorough
understanding of the duty of candour, and sufficient skill
and experience to successfully implement it.
Recommendation #2 :
CSIS affiants must exercise independence from the
investigative team in ensuring that they fulfill their
personal sworn obligation to make full, fair, and frank
disclosure to the Court.
Affiant should be a respected and coveted role within the investigative service
This point is related to the issue just discussed, but goes to the affiant’s place within the
organization rather than his or her own attributes and skill set.
From my own experience in the world of criminal investigations, I know that the role of
affiant is very often considered a less than desirable position in the context of a complex
investigation. My consultations confirmed this. The role is often considered to be mere
“paperwork,” less interesting and less prestigious than field investigation. For that reason, the role
is often assigned to a junior member of the investigative team.
In my view, that approach is a serious mistake. Indeed, I learned in the course of my
consultations that it is something that prosecution and police services alike are trying to correct.
Some have already made great strides in that direction.
The Ontario Provincial Police (“OPP”), for example, has developed a dedicated unit of
highly skilled officers who handle all Part VI applications. This is called the Technical Support
Branch. All members of the team carry the rank of detective sergeant. They are totally independent
from the investigative units. When an investigative unit wishes to apply for a wiretap authorization,
they approach the Technical Support Branch and it does an independent review. If it thinks a
wiretap is appropriate, it will step in and take over that part of the process. It will provide the
affiant from its ranks of highly experienced officers who are all experts in drafting Part VI
applications. Members of the Branch tend to stay in the unit for five years or more, so the benefits
of continuity and institutional memory are available to newer members.
20
�Several counsel I spoke with were vocal in their support for a more professionalized
approach to the affiant role. Many of them have had positive experiences in recent years with the
more sophisticated affiants put forward by agencies like the OPP and commented on the wide
disparity between affiants of this calibre and those from services that lack the resources and case
flow to develop this level of expertise. While perhaps not every agency will have the capacity to
reach the level of professionalism in affidavit drafting achieved by some of the major police
services, it seems to me that there is now little excuse for those with the capacity not to do so. The
models are there to be emulated.
Admittedly, having a dedicated team of professional affiants is not necessarily viable for
other investigative bodies, including CSIS. But the approach is instructive for how it demonstrates
the benefits of investing the affiant role with prestige and authority. The experience of the OPP,
among others, is that it leads to a better, more reliable product. And no doubt, it helps give the
Court confidence in the investigative agency’s commitment to producing high-quality applications
whose contents can be relied upon. That it especially important, in my view, in the CSIS warrant
context where a single investigative agency appears time and time again before a small group of
judges. As recent events have demonstrated, the Court’s confidence is a precious commodity that
can easily be diminished. Later in this report I will elaborate how I think a heightened emphasis
on the importance of the affiant role can help the Service win back some of the trust that has been
compromised by recent missteps.
Recommendation #3:
CSIS should ensure that the role of affiant is a senior and
respected role within the Service, and that affiants
occupy that role on a recurring basis.
Counsel needs to be the captain of the ship
While the affiant has a sworn duty to get the facts right and omit nothing of significance,
counsel has an essential role to play in ensuring that the application is appropriately presented to
the court. Counsel’s responsibilities do not dilute the affiant’s own duties; they complement them.
As indicated above, most of the senior prosecutors I surveyed are or have been wiretap agents. I
myself was a wiretap agent for many years earlier in my career. From my survey, and from my
21
�own experience, I can attest to the seriousness with which counsel take this role, recognizing the
high stakes brought about by the intrusive powers sought and the ex parte context in which they
are granted.
It was observed more than once that there is a potential tension between the duty of candour
and the obligation (emphasized in R. v. Araujo, [2000] 2 S.C.R. 992, at para. 46) to be clear and
concise. Over-inclusion can be the enemy of clarity and concision. Taken to extremes, including
too much in an affidavit can actually detract from compliance with the duty of candour, since part
of being candid is helping the court distinguish the wheat from the chaff. Some affiants may
believe that the “kitchen sink” approach is an appropriate way in which to guard against ever being
accused of having left something out.
This is where clear-headed and authoritative guidance by counsel is especially important.
Judgment is counsel’s stock in trade. Even the most seasoned affiant is unlikely to possess
experienced counsel’s intuitive sense of what a court would need and want to know, and what
would be better omitted. Counsel performs an essential function in ensuring not only that the legal
requirements for issuance are addressed, but that the application is effectively and intelligibly
framed. This naturally involves a lot of work. Wiretap agents I spoke with indicated that they
typically spend many hours, often even days, with the affiant going over the application materials
paragraph by paragraph before going to court. Although counsel is not the one under oath, he or
she needs to be confident in every assertion contained within the application.
Counsel also serves as another independent check on investigative zeal. While the
investigative team may for understandable reasons get caught up in the urgency of the particular
investigation, counsel’s role is to take a longer, more detached view. I heard from many of the
prosecutors I consulted that this can require a thick skin. Counsel cannot be concerned with
endearing themselves to the police and (like the affiant) must have both the authority and
temperament to push back where necessary against investigative overreach. A wiretap agent, I was
more than once reminded, is not counsel for the police; at all times he or she remains counsel for
the Attorney General, with the independent responsibility that entails. Counsel should avoid
getting too close or becoming “embedded” in the investigative team because such closeness can
compromise the necessary objectivity and independence.
22
�One of my interlocutors related that he always insists on meeting the affiant for a robust
discussion before the affiant starts drafting. He asks the affiant to explain in his or her own words
the investigative objectives, how the proposed wiretap is expected to produce evidence, and why
the point of investigative necessity has been reached. In this prosecutor’s experience, this approach
assists the affiant in clarifying the thrust of the application at the outset and guarding against a
situation where focus is lost in the complexity of a detail-intensive drafting process. To my mind,
this seems like a fruitful approach.
The issuing court needs to be advised of what if anything is novel or unconventional about an
application
Some aspects of wiretap practice are relatively routine, yet new challenges are constantly
arising. New technologies for interception and surveillance must be grafted onto existing legal
tests, at least until legislative action closes the gap. Courts need to understand precisely what they
are being asked to authorize so that they can properly apply the statutory test. In particular, courts
need to thoroughly grasp the ways in which new technologies trench on the privacy interests
protected by the statutory regime and ultimately the Charter. Courts cannot fulfill this role if they
don’t sufficiently grasp the details of what is being proposed.
New technologies and techniques therefore pose challenges for affiants, agents, and courts
alike. It would appear to be a fruitful area for collaborative education. From the prosecutors and
police officers I spoke to, however, I learned that they rarely if ever participate in direct judicial
education in respect of new interception technologies. (Judicial independence concerns may be
one reason for this apparent reluctance.)
In any event, there was consensus about the need to properly educate the court about any
novel technology in the context of a particular application before the court. The first step in this
process is the affiant and agent educating themselves to ensure that they have a sufficiently deep
understanding of the new technology and its implications to be able to explain it in plain language
to the court. Reliance on jargon is often a mask for inadequate understanding. And in any event,
reliance on jargon is completely inappropriate in a document meant to facilitate the court’s ability
to carry out its statutory mandate.
23
�New technologies and intrusive techniques therefore need to be thoroughly and plainly
explained on the assumption that the court has no prior knowledge of the particular technique in
question. They also need to be clearly flagged as novel. Neglecting to highlight the novelty of a
proposed technique can leave the misleading impression that it is established and routine, and
therefore amount to misstatement by omission. A court needs to know if it is being asked to do
something that has rarely or never been done before.
On this connection, prosecutors I spoke to were not unanimous on whether it would be
appropriate to reference in an affidavit the fact that a particular new technique had been authorized
in another case. Some thought it would be inappropriate, I think because another judge’s opinion
would not be relevant divorced from the record that was before him or her. The task is to convince
this judge that issuance is appropriate based on this record. Apart from the question of whether a
previous judge’s approval is ever appropriate to raise on another application, I certainly agree that
everything novel about the application in question needs to be clearly and candidly foregrounded
for the issuing judge by way of affidavit or submissions.
Not all novel aspects of an application will be technological in nature. Some will simply
be alterations to usual conditions or powers meant to be responsive to the demands of the particular
investigation. Templates are widely used and are undoubtedly helpful to all involved; but they do
not necessarily fit every fact scenario. Wiretap agents I consulted were in agreement that any
significant changes to a standard clause or condition should be highlighted for the court and
explained as part of the duty of candour. Otherwise, the issuing judge could miss the fact that she
is being asked to approve something to which she has not actually turned her mind.
Recommendation #4:
Anything novel (e.g. technologically, legally) about a
warrant application should be clearly foregrounded for
the Court.
Mistakes need to be recognized and dealt with immediately
What should counsel do if, after issuance, they discover a material mistake in the wiretap
application materials while the order is still in force? Without exception, the prosecutors I spoke
24
�to indicated that the very first order of business would be to shut down the interception and return
to the court to disclose the mistake. The court would be provided a full explanation of the nature
and extent of the mistake. Once such disclosure is made, the court would then be in a position to
decide whether to re-issue the authorization in light of the corrected record. One counsel I spoke
to was careful to note, correctly in my view, that the correction should be made in the form of a
sworn addendum, so that the integrity of the original record is maintained for the purpose of later
review.
By contrast, if the mistake is discovered only after the order is spent, there was a general
consensus that the means by which to confess the mistake is by way of Stinchcombe disclosure
rather than a return before the issuing judge.27 Prosecutors and police officers were of the view
that once the order is no longer in operation, the issuing judge has no further interest in the matter.
Rather, it is the eventual trial judge who takes over the role of assessing police compliance with
the law when the expected challenge is brought. The defence entitlement to bring such a challenge
on a fully informed factual basis is guaranteed by faithful Crown and police compliance with their
Stinchcombe duties.
Not all mistakes are created equal, of course. Inevitably, some information that the affiant
reasonably believed to be true at the time the affidavit was sworn will turn out to be otherwise
upon further investigation. Affiants are entitled to rely on reasonable belief, which is a long way
from absolute certainty. In this sense, not every after-discovered mistake will compromise the
integrity of the order: much of the point of the Garofoli review process is to distinguish those that
do from those that do not. But in all cases, the later acquisition of contrary knowledge will form
part of the disclosure provided to the accused so that defence counsel can exercise their
professional judgment on the viability of a challenge.
CSIS does not have the luxury of falling back on Stinchcombe disclosure and the trial
process to address subsequently-discovered mistakes in warrant applications. That is, it cannot rely
on the assumption that any mistake will be evaluated and possibly remedied on a subsequent
27
R. v. Stinchcombe, [1991] 3 S.C.R. 326, is the landmark decision in which the Supreme Court
first recognized a general duty on the Crown to disclose all relevant information – often
described as the “fruits of the investigation” – to the defence.
25
�adversarial challenge. For all intents and purposes, the court itself is the final bulwark against the
overextension of coercive state power. Therefore, much more so than in the criminal context, the
court needs to be kept informed of material mistakes that are discovered at any point, regardless
of whether or not the order continues in force. I will return to this point in my recommendations
below.
Collaboration between experienced counsel and officers is key to developing and maintaining
best practices
The wiretap world is relatively small. Prosecutors and police officers who handle wiretaps
tend to be senior, and they tend to be repeat players. They have much to learn from one another
and, by and large, they seem to do an excellent job of constructively sharing their expertise. I heard
from many senior counsel about the importance of the work done by the National Wiretap Experts
Group. This is a forum for senior Federal, Provincial, and Territorial wiretap experts, both
prosecutors and police officers, to get together to discuss operational policy issues and potential
legislative reform.
The RCMP’s Legal Application Support Team (“LAST”) is another valuable institutional
mechanism for disseminating knowledge, experience, and best practices to people “on the ground.”
Units of LAST are stationed in RCMP divisions across the country. LAST units comprise officers
with skill and experience in the preparation of court applications, including search warrants and
wiretaps. While they do not supply affiants – in the RCMP, affiants are drawn from local
investigative teams – LAST personnel are readily available to provide advice and assistance in
formulating applications and drafting the materials. LAST is also heavily involved in providing
training for officers in the mechanics of wiretap and other applications, and the responsibilities
these applications entail.
In the course of my consultations I also learned about the Ontario Electronic Surveillance
Operations Committee, a joint committee comprising representatives from the Ontario Ministry of
the Attorney General, the PPSC, and a number of police services. Created about three years ago,
one of its goals was to harmonize approaches to electronic surveillance between the two major
prosecutorial authorities. The Committee now helps educate Crowns and police on common issues,
26
�helping to create consistency in the legal advice given. New technologies can be especially
important topics for timely and consistent legal advice. I am told that this Committee is a useful
venue for addressing such issues.
I realize that CSIS warrants are very different from Part VI applications in a number of
ways. But there are common challenges and concerns that confront institutions implementing
electronic surveillance across these very different contexts. I know that CSIS LSU already
participates in the National Wiretap Experts Committee. In my view, further opportunities for such
collaboration should be explored and, where possible, exploited. I elaborate on this
recommendation below.
Timely, regularly updated training is essential
Wiretap law and practice is a complex world. (In some ways, CSIS warrant practice is even
more so.) It almost goes without saying that police officers need dedicated, specialized training in
order to perform the affiant role with the requisite skill. In the course of my consultations I inquired
about the nature and extent of the training provided by and for different police services. I was
generally impressed with the apparent quality and comprehensiveness of the training provided.
By way of example, the RCMP recommends that officers take its wiretap course before
acting as an affiant on a Part VI application. I was told that this is a 12-day comprehensive course,
offered two or three times a year. Besides addressing the applicable statutory and case law in detail,
an important part of the course involves preparation to testify in court. The training includes a
module where a defence lawyer is brought in to do a simulated cross-examination on an affidavit.
I understand that this assists the officers not only in learning how to conduct themselves in court,
but also in learning to anticipate possible vulnerabilities and oversights in order to prevent them
from arising in the first place.
Both the OPP and RCMP appear to maintain an appropriate focus on keeping training up
to date. Because the law and technology are constantly evolving, continuing education is crucial.
In the course of my consultations I learned about a bi-yearly seminar run by a senior OPP officer
for both affiants and Crown agents to learn about and trade ideas on recent developments in the
27
�wiretap world. I think it is especially important for affiants and agents from across Canada to be
able to learn from one another, given that certain trends or developments may be unevenly
distributed across Canada and may take years to crystallize in a Supreme Court decision or
statutory amendment.
Although I discuss the training issue more fully below, I should note that this and other
courses may provide useful opportunities for participation by CSIS affiants. There is enough
overlap between the two worlds that CSIS personnel would gain useful insight by such exposure,
and police personnel might likewise benefit from an exchange of perspectives.
Amicus curiae can play a useful role when contentious issues arise or are reasonably
apprehended
I spoke with several prosecutors who have had recent experiences where amicus curiae has
been appointed to assist the court in difficult in camera proceedings. In the criminal prosecution
world, needless to say, in camera proceedings are very much the exception to the general rule that
trials take place in public. But the open courts principle sometimes comes up against the all-butabsolute privilege protecting the identities of confidential police informers; and in those instances,
openness must yield to the privilege. In camera proceedings are the result. Pursuant to Supreme
Court authority like Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, 2007 SCC 43, the trial
judge is duty bound both to protect the privilege absolutely and to ensure that the open courts and
Stinchcombe disclosure principles are respected to the extent possible. The Supreme Court has
recognized that in difficult cases, the appointment of amicus to assist the Court in this task will be
appropriate: R. v. Basi, [2009] 3 S.C.R. 389, 2009 SCC 52, at para. 57.
Counsel I spoke with were generally positive about the contributions amici were able to
make in these difficult cases. More than one senior prosecutor recounted having actually
encouraged the trial judge to appoint amicus where a thorny privilege issue has arisen. Naturally,
in these cases – unlike the CSIS warrant context – the defendant is normally already present and
participating in the process with the assistance of counsel. Amicus becomes involved in order to
provide adversarial balance and assistance in circumstances where neither the accused nor defence
counsel are legally entitled to see the material forming the subject matter of the litigation.
28
�Prosecutors with experience in this area indicated that mutual trust between the Crown and
amicus is an important feature of this process. Amici tend to be selected from the ranks of
experienced and respected defence counsel who already enjoy stellar reputations with the bench
and can be counted upon to fulfill this tricky role in exemplary fashion. Because of the sensitive
nature of the material, trusting cooperation between Crown and amicus is necessary for the process
to function well, but this by no means derogates from amicus’ responsibility to advocate zealously
for positions that may diverge markedly from the Crown’s.
Amici have participated in CSIS warrant cases on occasion, particularly where novel legal
issues were raised. Re X is one example, as is the proceeding that culminated in Justice Noël’s
recent decision in the Associated Data case. In my recommendations below, I will have more to
say about how amici might contribute to the smoother functioning of this process going forward.
Recommendation #5:
The
appointment
of
amicus
curiae
should
be
recommended where a warrant application raises a novel
and/or difficult legal issue.
VI.
Implementing the duty of candour
A Contextual Approach
I have already set out the general principles governing the duty of candour in ex parte
matters and suggested some of the ways in which CSIS and its counsel are under a “super-added”
duty given the role of the Attorney General and the unique context of s. 21 warrants. The most
significant factor giving colour to the duty of candour in this context is the general absence of any
ex post facto adversarial review. This means that the issuing court is, for all intents and purposes,
the last bulwark against state overreach in this area.
Other factors contributing to a heightened duty include the special obligation of the
Attorney General and her agents to safeguard the integrity of the administration of justice and the
highly intrusive nature of the powers that can be authorized under s. 21. Additionally, as I will
explain below, the duty is a continuing one extending potentially well beyond the life of the
warrant itself. That temporal dimension distinguishes the duty of candour in this context from its
29
�counterpart in the criminal prosecution arena, where counsel’s duties generally shift from the
issuing court to the trial court after the order is spent.
With all this in mind, CSIS LSU counsel are under a heavy duty to act with unimpeachable
judgment. From my consultations, I know this is not one they take lightly. Of course, as in any
human process, mistakes will be made. But it is clear from recent findings of the Federal Court
that much more needs to be done to prevent the same kind of mistakes from recurring.
Ruby and its progeny set out the basic rule: all information relevant to the issue before the
court needs to be fully and fairly disclosed. No “tilting” of the case in one’s own favour is ever
permissible. This is much more than a negative duty to avoid misrepresentation; it is an affirmative
duty to place before the court all reasonably available relevant information.28
It could be said that the essential purpose of full, fair, and frank disclosure in ex parte
proceedings is to preserve the independence of the decision-maker and thereby the integrity of the
process. This is because a court that acts on an incomplete record tendered by the party seeking
relief has unwittingly become captive to that party rather than truly independent. Conversely, a
party that selectively shapes the record before the court on an ex parte proceeding – even with a
good faith belief that its choices are legally defensible – has improperly arrogated to itself the role
of decision-maker. Understood this way, the stakes could hardly be higher.
Fundamentally, it is for the court, not the party seeking relief, to determine which facts
should be given effect. Obviously, counsel must always exercise judgment in deciding what is
relevant and what is irrelevant; the “kitchen sink” approach neither assists the court nor amounts
to proper compliance with the duty of candour. Evidence presented ex parte must be complete, but
also must be clear and concise.29 But when the dividing line of relevance is not clear, counsel must
“[F]or the preauthorization procedure to be meaningful, ‘for the person authorizing the search
to be able to assess the evidence ... in an entirely neutral and impartial manner,’ not only must
frank disclosure of material facts be made, but so too must full disclosure”: R. v. Ling, 2009
BCCA 70, 241 C.C.C. (3d) 409, at para. 40, per Bauman J.A. (as he then was). See also D.K. c.
R., 2009 QCCA 987, per Thibault J.A., which vividly illustrates why the duty is not fulfilled by a
truthful statement that leaves out something important.
29
R. v. Araujo, supra, at para. 46
28
30
�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:30
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.
Therefore, CSIS LSU counsel’s guiding presumption should always be to err on the side
of disclosure. A precondition to implementing this principle, however, is for counsel to be aware
of any facts and issues that might be subject to the 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 need to be made, and several of my recommendations below are
directed to that goal.
Recommendation #6:
Counsel’s guiding presumption should be to err on the
side of disclosure.
Obviously, the duty of candour also applies where CSIS is appearing before the Court ex
parte for reasons such as the amending of warrant templates.31 In that context, compliance with
the duty entails explaining to the Court the reasons for each proposed change and the reasonably
anticipated consequences of the change in terms of the Court’s principal concerns: most notably,
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 This was a security certificate case but
the formulation of the duty has equal application to the CSIS warrant context.
31
Templates serve an important function in the world of judicial authorizations, and the CSIS
warrant context is no exception. They contain standard form recitals, powers, and conditions,
which can be modified to fit the circumstances of a particular case. The templates themselves are
subject to an ongoing and collaborative process of modification involving both counsel and the
Court. As Noël J. has helpfully explained, “Warrants are live documents that require continual
review by designated judges with input from counsel for the CSIS and appointed amici (where
thought to be necessary). Amendments are periodically brought to the warrant conditions
templates in order to faithfully reflect the powers intended to be granted and their limits. The
templates must be adapted to the evolution of technology, of investigative methods, of programs
and means of communications, of case law, and of new laws or amendments to the CSIS Act”:
Associated Data, at para. 10.
31
�the balancing of state and individual interests in the granting of intrusive powers pursuant to the
Act.
CSIS also has a responsibility, pursuant to the duty of candour, to inform the Court of a
change in its legal position on an issue before the Court, and to be transparent about the justification
for such a change. Developments in technology and the law can both bring about justifiable reevaluations of previously held positions – for instance, with respect to whether a warrant is or not
required in a particular scenario. For the Court to be able to evaluate the Service’s position
comprehensively, it needs to know about how and why it has evolved. After all, understanding the
evolution in a legal position can often help in evaluating its strengths and weaknesses, and in
identifying possible objections to it.
Recommendation #7:
The Court should be informed when CSIS has changed
its legal position in respect of an issue before the Court.
Similarly, where CSIS is asking the Court to revisit, revise, or qualify a prior holding, it
needs to be transparent with the Court about the nature and extent of its request. Although its
conduct in Re X was later criticized by Mosley J., I do think that its initial approach to the extraterritoriality issue was proper: CSIS explained to the Court why and how the prior decision of
Blanchard J. could be distinguished, and the new facts and legal theory justifying a different result
were laid out in detail. (It was the failure to inform the Court fully about the prospective
consequences of its new theory where CSIS ran afoul of its obligations.)
As discussed above, Re X and the Associated Data decision give important guidance about
how to approach the duty of candour both in specific warrant applications and more generally. I
think the following lessons can be drawn from those cases:
Merely “formal” compliance with the duty can amount to non-compliance. Where an
issue is potentially important, it needs to be brought to the Court’s attention in a meaningful
way, not presented in an inconspicuous manner: Associated Data, at paras. 102-103. The
Court has limited time, and needs to be able to trust counsel’s judgment in distinguishing
between cosmetic or peripheral details on the one hand, and matters of substance requiring
focused consideration on the other.
32
�
The Court’s responsibility to balance privacy interests against the public good must
inform the Service’s approach to the duty of candour: Associated Data, at para. 100.
This means disclosing facts which may affect the degree of intrusion caused by the warrant
even if those facts do not appear to be strictly germane to the test for issuance under s. 21.
The Court will generally want to minimize the intrusion upon privacy brought about by the
warrant, limiting it to that which is actually necessary to the investigative objectives.32 It
needs the information to enable it to do so.
The Court is entitled to be informed of actions CSIS intends to take as a direct result
of obtaining a warrant, even if such actions are not explicitly authorized by the
warrant itself. That is, in issuing a warrant, the Court is entitled to know about probable
consequences expected to arise from the warrant that bear on the “broader framework in
which applications for the issuance of CSIS Act warrants are brought”: Re X, at paras. 89,
117. It is not sufficient for the Court to be presented with merely a partial picture, even if
an argument for such disclosure could be mounted based on a strict construction of the
warrant issuance criteria.
“Strategic” omissions from a warrant application are impermissible, even if a good
faith argument could be conceived of for the irrelevance of the omitted material. The
very notion of a strategic omission is antithetical to the duty of candour. The only reason
for such an omission would be a recognition by CSIS that disclosure might draw a negative
response to the Court. And in such a circumstance, the duty of candour compels disclosure
– at which point CSIS is of course at liberty to attempt to persuade the Court that the fact
is irrelevant.
I think it is clear from those two decisions, as well as from the other problematic episodes
alluded to in the my introduction, that the real difficulties that have arisen are not due to the kind
of straightforward factual errors that may have been a main concern in an earlier era. The internal
In the criminal wiretap context, this important principle is referred to as “minimization.” In R.
v. Doroslovac, 2012 ONCA 680, at paras. 34-35, Watt J.A. helpfully explained: “Minimization
clauses may take different forms. Some are linked to the places at which the communications to
be intercepted take place. Interception of communications originating from or received at pay
telephones, for example, may require live visual surveillance and live monitoring to confine
interceptions to specified individuals. Other minimization clauses have to do with the nature of
the device used in the communications or the manner in which interceptions are to be carried out.
The power to impose minimization clauses is discretionary; however, the failure to include such
a term may result in an authorization that is unreasonable.” In the CSIS warrant context,
minimization conditions can be set pursuant to s. 21(4)(f), which authorizes “such terms and
conditions as the judge considers advisable in the public interest.”
32
33
�“facting” process is meticulous and both counsel and CSIS officers are well attuned to their
responsibility to be both factually accurate and comprehensive.
In my view, the current difficulty lies in a tendency to sometimes lose the forest for the
trees. Or, put another way, a failure to reliably identify the broader policy concerns flowing directly
from the issuance of warrants which will be of concern to the issuing court. The retention of thirdparty associated data is a clear example of this: even though, as far back as 2006, it was identified
as a matter about which the Court should be informed, for whatever reason the question was not
pursued. When it was finally put before the court in 2011, it was done in a manner that did not
clearly signal its importance.33 It was not until the release of the 2014-2015 SIRC Annual Report
in January 2016 that the Court finally understood that CSIS was indefinitely retaining third-party
associated data collected as a result of warrants.
Why was it so important for the Court to have been informed about the retention of thirdparty associated data? I think a consideration of this question can assist in avoiding analogous
errors in the future. 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?
In other words, 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. “Intrusions” can run the
gamut from the obvious to the subtle, but the category clearly includes the retention of information
collected as a result of a warrant. Seen this way, the non-disclosure put the Court at a disadvantage
in carrying out its role.
In essence, counsel should try to put themselves in the shoes of the Court and consider:
what would I want to know? This thought experiment needs to account for two crucial
33
Associated Data, at paras. 12-14
34
�considerations: (1) the Court is at a substantial informational deficit relative to counsel, since it
only knows what counsel has chosen to convey in the application; 34 and (2) the Court is the
institution with ultimate responsibility for the sound exercise of the exceptional privacy intrusions
contemplated by the Act. Built into this responsibility is a constant concern for proportionality and
a keen awareness that no further review is likely to take place.
In other words, 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?”
Answering this question accurately and reliably requires a coordinated effort between
counsel with CSIS LSU and the Service itself. This needs to happen at a high level. CSIS LSU
needs to be provided information enabling it to identify new or emerging issues touching on
warrants (in the broadest sense) that may become ripe for engagement with the Court. It may be
that a new joint Legal/Operations meeting should be regularly implemented to facilitate such
information exchanges. Or it may be that a new agenda item should be added to the regular
meetings already attended by Senior General Counsel. Either way, identifying these issues early
on is crucial; collective judgment can then be applied to the question of when, and in what context,
the issue is reasonably mature and suitable for disclosure.35
Recommendation #8:
A formal process should be implemented for identifying
new or emerging issues touching on warrants that may
become ripe for engagement with the Court.
Recommendation #9:
In preparing a warrant application, counsel and the
affiant should be guided by the following question: “what
should the Court know in order to adjudicate this
As Noël J. has recently stated, CSIS has a “unique position as applicant and sole source of
evidence to the Court”: Associated Data, at para. 100.
35
In that connection, where in an internal audit the Service itself has identified issues of concern
in the warrant application process, the Court should be informed – assuming the concern
identified has a material bearing on the product actually produced to the Court (i.e. the warrant
application) and not merely the Service’s internal processes.
34
35
�particular warrant application in the context of its
overall mandate to maintain a proper balance between
state and individual interests under the Act?” This
should include a consideration of the potential impact on
other orders in force.
The Duty of Candour in Specific Scenarios
Obviously, the Court in both Re X and Associated Data was concerned with the peculiar
facts before it. While the principles set out in them are of broad application, it may not always be
obvious how the broad principles are to be implemented in the challenging and fast-paced world
of CSIS warrant applications. I have therefore endeavoured to identify a number of scenarios
which are likely to recur and on which guidance as to the Service’s duty of candour might be useful.
Needless to say, these scenarios do not come close to exhausting the situations in which challenges
may arise in relation to the duty of candour. I hope they will assist, however, in providing some
concrete guidance in reasonably anticipated situations, and also by analogy to those which may
yet arise for the first time.
1) A material error is discovered in the application materials while the warrant is in
force
Here I am speaking of a factual misstatement discovered in the affidavit tendered on the
warrant application after the Court has issued the warrant, while the warrant is still in force. (I
include in this category cases in which a renewal has been granted under s. 22, and a mistake is
then discovered in the original s. 21 warrant application materials.)
It is important to distinguish at the outset between two different kinds of mistakes, since
they potentially have different consequences for the duty of candour.
In the first category are facts as to which the affiant had a reasonable belief in their truth
but which turn out to be false. For instance, the affiant says that Source A reported that Target X
drives a blue car. Through further investigation, it is discovered that Target X actually drives a
black car. However, in the circumstances, let us assume that there was nothing unreasonable about
36
�the affiant entertaining a belief in the fact as reported by Source A. This is a “mistake” in one sense,
but it is not the kind of mistake that is of primary concern for us here. An affiant swears to her
reasonable belief in the facts alleged in the affidavit; as long as she is transparent about the sources
of her belief (thereby allowing the court to assess its reasonableness), a purported fact that
ultimately turns out to be inaccurate should not undermine the validity of the warrant or the
integrity of the process.
The second category of mistakes are of more consequence for the duty of candour. Let us
say that somehow the affiant misreported Source A having claimed that Target X drove a blue car
when in fact he said it was black. And let us further suppose that the colour of the car is of some
investigative significance in identifying the target or connecting him to the threat. We now have a
real problem requiring a decisive response by counsel.
Alternatively, the mistake could lie not in the facts alleged in the affidavit but in the warrant
itself. An example could be where an incorrect phone number or location is authorized by the
Court for intrusive measures.
In general, the guidance received from my survey of senior prosecutors and police officers
is apt and directly applicable: go back to the issuing judge immediately and disclose the error.
Depending on the significance of the error, it may be necessary to shut down the interception
pending correction of the mistake and renewed authorization from the court. CSIS would not want
to continue to conduct an intrusive operation pursuant to an authorization known to be defective.
Whether the mistake is sufficiently serious to require an immediate cessation is a difficult
judgment call which should be made in consultation with the most senior counsel.
Obviously, as already suggested, some minimal threshold of materiality needs to be
reached in order to trigger the duty in the first place. Simple typographical or clerical errors will
not meet this threshold, assuming they do not somehow alter the factual contentions made by the
applicant. But anything that could reasonably be thought to have any bearing on the Court’s
decision-making – not only on whether to grant the warrant, but also on what terms and conditions
37
�to include – must be disclosed. This should be done immediately, by letter, to the Court; it would
then be for the issuing judge to give further directions about the procedure to be followed.36
In cases where the error appears to be significant, implementation should be unilaterally
ceased until further direction from the Court is obtained. In such circumstances, it might be that a
fresh application with the error(s) corrected would need to be brought. But in any event, the crucial
point is that the Court should be kept apprised, contemporaneously, of what the Service has learned
about the error so that it is in a position to decide how to proceed, fully informed of the latedeveloping facts.
2) A material error is discovered in the application materials after the warrant is spent
On this issue, guidance from the criminal sphere is of more limited use. My survey of senior
prosecutors and police officers indicated that they view later-discovered errors as a matter for
Stinchcombe disclosure and eventual adjudication by the trial judge. They would not return to the
issuing court to disclose the error because, in their view, the issuing court is no longer seized with
the matter.
The CSIS warrant context is very different. Because there is no reviewing court (except in
the unusual situations were a criminal prosecution indirectly results through disclosure to law
enforcement, and even then only indirectly) the Federal Court remains seized of its warrants in a
very real sense.
36
In my view, Rule 13 of the United States Foreign Intelligence Surveillance Court Rules of
Procedure provides one useful formulation of the duty in this context. It provides:
(a) Correction of Material Facts. If the government discovers that a submission to the Court
contained a misstatement or omission of material fact, the government, in writing, must
immediately inform the Judge to whom the submission was made of:
(1) the misstatement or omission;
(2) any necessary correction;
(3) the facts and circumstances relevant to the misstatement or omission;
(4) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
(5) how the government proposes to dispose of or treat any information obtained as a
result of the misstatement or omission.
38
�That can be seen in the procedural history of Re X, where Mosley J. reconvened the parties
in 2013 in respect of warrants granted in 2009 as a result of information subsequently discovered
by the Court through a CSEC report. Although the specific warrants originally granted by Mosley
J. were of course no longer in operation, the extraterritoriality issue in respect of which CSIS made
inadequate disclosure remained a live one for a whole class of warrants. It could therefore not be
said that the non-disclosure had no ongoing significance to the warrant process. On a perhaps more
fundamental level, the Court is entitled to know when it has been misled, even unintentionally,
given the high sensitivity of this context and the lack of other avenues of review.
To be clear, CSIS owes a continuing duty of candour to the Court in respect of warrants,
even expired warrants, insofar as the issues or practices raised therein remain live. That means that
subsequently discovered errors which in counsel’s best judgment might be of concern to the Court,
should be reported to the Court in a letter. The disclosure should be reasonably detailed as to the
nature of the mistake, the manner in which it was discovered, and its significance (if any) for
warrants currently in force or before the court. The Court would then be able to decide what if any
further steps ought to be taken.
3) Where a mistake is made in the execution of a warrant
Execution issues are not strictly related to the validity of the warrant itself. If a warrant is
validly issued and a mistake is made in carrying it out, the integrity of the Court’s process is not
necessarily affected in the same way as if the error is in the warrant application itself. That is, there
is no sense in which the ex parte representations caused the court to do anything wrong; the fault
lies with CSIS operations. Improper execution of a warrant could amount to an illegality requiring
a report to the Minister, the Attorney General, and SIRC pursuant to s. 20 of the Act. Therefore,
in such cases, some after-the-fact review of the mistake is guaranteed, provided that the s. 20
disclosure obligation is carried out. Nonetheless, because the Court maintains jurisdiction over its
own warrants, the Court would rightly expect to be informed of illegality in the execution phase.
Even errors in execution can taint the integrity of the judicial authorization process; for the Court
not to be informed about such matters would be unacceptable. As for timing, I see no reason why
the report to the Court should not be made contemporaneously with the report to the Minister.
39
�Other errors will not reach the threshold requiring a report under s. 20 but, in my view,
should still be reported to the Court unless they are clearly trivial. The Court, as the venue of last
resort in almost all of these matters, should be entitled to know about errors that arise in
implementation because, again, after-the-fact review is highly unlikely to occur. On a practical
level, informing the Court of implementation problems can help the Court be sensitive to potential
pitfalls in either the wording or the process that might somehow have contributed to the error.37
4) Another judge has raised a concern about the validity or appropriateness of a
particular term or condition
A warrant application may be heard by any one of the designated judges. While occasional
en banc sessions can assist the Court and counsel in maintaining a consistent approach, it is simply
unrealistic to expect that every designated judge will always be aware of what every other
designated judge has said or done on a particular issue. This is where counsel have a duty to bridge
the gap and inform the judge about concerns previously raised by another judge in respect of
something arising on the warrant application.
For instance, consider the scenario in which the judge in application “A” has changed a
standard term in order to minimize the intrusiveness of the power being authorized. On the facts
of “A” this made sense because the more broadly-worded term was on close examination not
necessary to CSIS’ investigation and the amended term would do the job. On application “B”,
however, CSIS has good reason to believe that the more broadly worded term is necessary to
properly fulfill its mandate. Counsel believes that application “A” can be distinguished on its facts
37
Again, Rule 13 of the United States Foreign Intelligence Surveillance Court Rules of
Procedure may be of assistance on this issue. Subrule (b) provides:
(b) Disclosure of Non-Compliance. If the government discovers that any authority or approval
granted by the Court has been implemented in a manner that did not comply with the Court's
authorization or approval or with applicable law, the government, in writing, must immediately
inform the Judge to whom the submission was made of:
(1) the non-compliance;
(2) the facts and circumstances relevant to the non-compliance;
(3) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
(4) how the government proposes to dispose of or treat any information obtained as a
result of the non-compliance.
40
�from “B” and the broader, standard term is the appropriate one in these circumstances. It might be
tempting for counsel to reason that the previous judge’s expressed concerns are not relevant
because this is a different case and, besides, the term now requested has been used in several
previously issued warrants.
In my view, however, counsel on application “B” must direct the judge’s attention to the
concerns of the other judge on application “A” and go on to explain why the facts of the new case
are meaningfully different. If such disclosure is not made, the judge may not be attuned to the
concerns that caused the other judge to make the change; the Court would therefore be deprived
of a meaningful opportunity to make its own independent determination of whether “A” and “B”
are really distinguishable in the way counsel believes them to be.
I recognize that there are many warrant application and many designated judges. Keeping
track of concerns raised and issued flagged by each judge, and cross-referencing them to cases in
progress, can seem like a daunting task. (I address the subject of keeping tabs on the Court’s
concerns in more detail below.) However, it is an inescapable reality of this practice that no warrant
application is an island unto itself and issues spill over from one application to the next. CSIS is
the only party obtaining the warrants. While each designated judge maintains absolute decisionmaking independence, the Court will naturally want to maintain as much adjudicative consistency
as reasonably possible. And for each judge to contribute to that effort, each judge needs to know
as much as possible about what his or her colleagues have already said about a particular point in
issue. In my view, therefore, as an aspect of complying with the duty of candour, counsel needs to
tell the court as much as it knows about concerns raised by other judges in respect of a point in
issue. Only then can the presiding judge make a fully informed decision, consistent with both
adjudicative independence and coherence.
At some juncture, 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. As discussed below, I think it would make sense for counsel to have the
option of requesting an en banc session in such circumstances since the desirability of such a forum
might be more apparent to counsel than to the Court.
41
�5) Different judges have proposed a number of different wordings for a particular clause
This scenario is a bit different from the previous one. Here, the divergence of judicial
opinion is with respect to the preferable wording of a particular clause rather than its substantive
appropriateness. I recognize the line can sometimes be difficult to draw because form and
substance are necessarily interrelated. Nonetheless, I think counsel can usually distinguish
substantive concerns from those that go to optimal wording.
I do not believe that the duty of candour prescribes a firm rule for advising one judge about
every other judges’ preferences on a matter of wording. It may be helpful. It may not be. Counsel,
I think, is well positioned to make a judgment call about when informing the Court about other
preferences would assist the Court in its work. A clear rule that counsel must always inform the
Court about each instance of another judge expressing a different wording preference would risk
bogging the hearing down in minutiae. Again, the en banc procedure is one way in which
cohesiveness can potentially be restored if the Court and counsel find that divergent approaches to
particular provisions are causing undue confusion or consumption of time.
6) A particular form of warrant usually sought is not sought in a particular application,
because CSIS thinks judicial authorization is unnecessary on the facts
In this scenario, a particular request that is usually made is absent from the application
before the Court. The reason is that CSIS counsel have determined, based on an analysis of the
law as applied to the facts, that the Service does not need judicial authorization to carry out the
investigative technique in question. However, a number of other powers are sought. Should the
“absent” request be flagged?
I think the answer is clearly yes. Again, this is part and parcel of putting the complete
picture before the Court, including a comprehensive account of what consequences are expected
to flow from the issuance of the warrant. It is also part of CSIS’ obligation, discussed above, to
inform the Court about a change in its legal position on a significant issue.
42
�While an argument can be made that the Court is not implicated in whatever investigative
technique CSIS pursues because it has not authorized it, this constricted view overlooks two key
features of the scenario: (1) the Court has been asked to authorize the particular technique in the
past on different facts, and may want to know what is different about the facts of this case to render
judicial authorization unnecessary; and (2) the Court is being asked to issue a warrant in respect
of this individual, just not this particular technique. In my view, the Court should be given the
opportunity to decide whether it agrees with CSIS’ new view that a warrant is not necessary. In
other words, candour requires that the departure from usual practice be pointed out and explained.
Therefore, in my opinion, the Court should be informed of the “absent” request and the
legal interpretation justifying the absence should be set out. The Court is then in a position to make
an independent determination of whether CSIS is correct that judicial authorization is unnecessary
on the facts.
7) A particular form of warrant usually sought is not sought in a particular application,
because of resource limitations, technological limitations, or other reasons
In contrast to the scenario just discussed, here CSIS is actually not going to implement the
technique at issue. It usually seeks authorization for this technique, but because of resource
limitations (or for any number of other reasons) it decides not to do so in this particular application.
Should counsel flag this omission to the Court?
I think it should, although this is not as pressing a matter in terms of the duty of candour
as the previous scenario. A “missing” request of this kind will not actually burden anyone’s privacy
interests, since no intrusive power will be exercised in relation to it. Nonetheless, transparency
with the Court about any unusual features of a given application is in my view a salutary objective.
Keeping the Court informed about the existence of a deviation from the norm, and the reasons for
it, will assist the Court in understanding the application as a whole. It also serves an educative
function, better equipping the Court to understand the normal contours of an application and the
reasons why CSIS may wish to depart from normal practice in given cases.
43
�8) Information presented in the affidavit was gathered in a manner that may or may not
engage s. 8 of the Charter
Here, CSIS believes that its pre-warrant investigative work was lawful; it did not engage s.
8 because, on the Service’s reading of the governing case law, no reasonable expectation of privacy
was at issue. However, the case law on this topic is not entirely settled. Some cases could be seen
to pull in the other direction which, if true, would mean that some of the information relied upon
by CSIS to justify the warrant may have been illegally gathered.
This kind of uncertainty can sometimes arise where, in light of evolving technology and
social expectations, the law has yet to settle definitively on the existence (or extent) of an
individual’s reasonable expectation of privacy. To take a well-known recent example, consider the
question of internet subscriber information. Prior to R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC
43, it was believed by many that an individual had no reasonable expectation of privacy in such
information; there, the police were entitled to obtain it from an internet service provider without a
warrant. The Court’s ruling in Spencer changed the landscape by recognizing a reasonable
expectation of privacy and requiring judicial authorization.
The pre-Spencer situation with respect to internet subscriber information is just one
illustration of a circumstance in which, based on the unsettled jurisprudence, it would be
reasonable to entertain some doubt about whether a particular kind of warrantless informationgathering is Charter-compliant. Prior to Spencer, counsel considering the question would
undoubtedly have had a good faith basis upon which to prefer, and argue for, either view. But the
ultimate result was certainly not free from doubt. Where a circumstance like this arises and the
legality of a particular information-gathering method is arguable, I think the duty of candour
compels counsel to flag the issue for the Court and identify the authorities and arguments on both
sides of it.
The doctrine of “excision,” which applies on review of a warrant, states that information
gathered illegally must be excised from the material in support of the warrant; the remaining
information is then evaluated to see if issuance of the warrant could still be supported.38 While the
38
R. v. Grant, [1993] 3 S.C.R. 223, at para. 50. The doctrine was considered at length by Code J.
in Jaser, supra, at paras. 24-33.
44
�function of an issuing court and a reviewing court are very different, I think that the issuing court
would want to be made aware of facts and circumstances that could potentially cause it to issue an
invalid warrant. That is all the more so in the CSIS warrant context, where the potential for a
reviewing court to make things right is so diminished.
Therefore, I think that counsel must make the Court aware where an argument could
reasonably be made that the information presented in an affidavit was gathered in a manner not
compliant with the Charter. As long as the issue is fairly presented, counsel is entitled to argue to
the Court why the weight of authority supports its interpretation that no Charter rights were
engaged. It is up to the Court, of course, to determine whether the issue is of such substance that
the appointment of amicus would assist in its determination.
9) The validity of a warrant is being litigated in another forum
Information collected by CSIS may be disclosed to a law enforcement agency pursuant to
s. 19(2) of the Act, where the criteria of that provision are met. When such disclosure is made, law
enforcement will conduct its own investigation and a criminal prosecution will sometimes result.
A number of recent examples are well known to the public.
When a criminal prosecution arises in this manner, the validity of the original CSIS warrant
can become an issue at the criminal trial. This can happen, for instance, when the police have
obtained a wiretap authorization or search warrant based in whole or in part on the information
provided by CSIS. In such a case, the defence can argue that any illegality in the obtaining of the
original CSIS warrant irreparably tainted the order(s) subsequently granted in the criminal process,
resulting in a breach of the accused’s s. 8 rights. That is what happened in R. v. Jaser, 2014 ONSC
6052, the terrorism prosecution involving the VIA Rail bomb plot.39
39
Another recent example is R. v. Alizadeh, 2014 ONSC 1624, in which McKinnon J. granted
defence counsel leave to cross-examine the CSIS affiant with respect to a perceived
contradiction between the source material and the affidavit. Following cross-examination,
McKinnon J. found that the apparently contradictory statement was made in good faith and the
warrant was properly issued: R. v. Alizadeh, 2014 ONSC 1907.
45
�I think the Service and its counsel are aware that the Court needs to be informed of such
proceedings because they may lead to a finding that one of the Court’s own warrants was
improperly issued or that the underlying application was flawed in some reviewable way. In the
criminal sphere, the issuing court will know about such findings through the process of review at
trial and, later, on appeal. But the geographical and jurisdictional separation between the Federal
Court and provincial criminal courts means that the Court’s awareness of the fate of CSIS warrants
would be left to chance if the Service did not proactively inform the Court of such cases. And if
that were so, the Court would be at a serious disadvantage in that it would potentially remain in
the dark about material problems with a warrant, some aspects of which might be replicated in
current or future warrants.
CSIS will no doubt be aware of criminal prosecutions in which the validity of a CSIS
warrant is expected to be challenged. The Service will have made the initial disclosure and will
presumably keep tabs on the progress of the proceeding. They may have ongoing involvement,
through in camera proceedings or s. 38 Canada Evidence Act litigation.
However, at this point the Service lacks guidance on precisely when and in what
circumstances such disclosure should be made.
In my view, the logical time to make disclosure to the Court would be at the same time that
CSIS is formally brought into the criminal process; ordinarily, this would happen when CSIS is
served with a third-party records motion seeking production of warrant materials. 40 While the
CSIS warrant could be discussed in some manner prior to a third-party records motion being
brought, typically any finding or ruling with respect to the warrant would result from the CSIS
materials having been brought before the criminal court via a third-party records motion. When
such a motion is brought, CSIS will be on notice (at least in a general sense) of the issues the
defence intends to raise, since these would have to be specified in the notice of motion.
40
In R. v. O'Connor, [1995] 4 S.C.R. 411 and R. v. McNeil, [2009] 1 S.C.R. 66, 2009 SCC 3, the
Supreme Court has established a procedure by which the accused in a criminal case can (where
appropriate) obtain disclosure of records in the hands of “third parties” – i.e. individuals or
bodies other than the prosecuting Crown and police service. CSIS is considered a third party for
these purposes: R. v. Jaser, 2014 ONSC 6052, at para. 11.
46
�Alternatively, Crown counsel could make inquiries of CSIS pursuant to his or her McNeil
obligations, resulting in CSIS warrant materials being disclosed to the accused in some form. The
resulting litigation could result in judicial findings.41
Either way, there is a point at which CSIS warrant material is provided to the Court or to
the Crown for potential use in the criminal litigation. I think this is a sensible point at which to
notify the Court, by letter, that the validity of the warrant is being litigated in another court. CSIS,
through counsel, should supply the basic details – who, what, where, when – and indicate that it
will keep the Court informed of any major procedural developments in the case and of any rulings
made by the criminal court as soon as they are issued. The Court would then be in a position to
indicate what if any further information it would like to receive. Such a process would ensure that
the Court is not taken by surprise in learning of a problem identified in one of its warrants through
some belated, collateral information source.42
10) An issue has been identified by an oversight body (e.g. SIRC) and is likely to be
referenced in a report
In both the Re X and Associated Data cases, the Court first learned of the existence of
potential disclosure problems through the reading of public versions of oversight reports. This is
unacceptable. Oversight bodies have an essential role to play in Canada’s intelligence regime; but
they are by definition concerned with after-the-fact scrutiny of CSIS policies and operations. The
Court, by contrast, is operating in real time with a steady flow of warrant applications, any number
of which may touch upon issues being considered by the oversight body. By the time the issue is
formally commented on by the oversight body in the public version of its report, valuable time
will have been lost. Many related warrant applications may have been adjudicated in the time
41
In R. v. McNeil, supra, the Supreme Court confirmed that in certain circumstances Crown
counsel has a “duty to inquire” with other Crown agencies or departments who may be in
possession of relevant information. This could require Crown counsel to make inquiries of CSIS
in an appropriate case.
42
For that reason, the Court should also be informed if the validity of a warrant arises in legal
contexts other than a criminal trial – for instance, in the context of a freedom of information
proceeding or an Immigration and Refugee Protection Act hearing. All of the circumstances in
which this could arise are impossible to catalogue definitively, but I would not want to leave the
impression that a criminal trial is the only event that might precipitate the need for disclosure.
47
�between the initial flagging of the issue to CSIS and the publication of the report. For that reason
especially, the Court is entitled to know about potential problems with its warrants before those
problems become front-page news.
I understand that one reason advance disclosure to the Court may not have been made in
the past is that SIRC findings and recommendations are subject to change until the point at which
the report is tabled. But the tentative nature of such findings can be adequately addressed in the
content of the Service’s disclosure to the Court. There is in my view no reason why, once a concern
touching on warrants has been identified by an oversight body, the Service should not inform the
Court that the issue is being inquired into. CSIS should provide as much information as it can
about the nature of the concern. The Court will then be in a position to decide whether it wishes to
invite submissions from the Service or hold off further action pending the tabling of the report.
Creating and updating a duty of candour protocol
I think it would be helpful to formalize a joint Department of Justice / CSIS policy on
implementing the duty of candour in the CSIS warrant process. I recommend that it be based
largely on the observations above. It can start from the general principles established in Ruby and
the later Federal Court case law, and move toward the more granular. Recognizing that no policy
can anticipate and address all situations that may arise, I think the scenarios just discussed comprise
a healthy proportion of the kinds of questions counsel will face and can therefore usefully be
integrated into the official policy.
In my view, it would be appropriate to establish a regular timeline for reviewing and
updating the policy. Much of my own work on this topic has been guided by recently arising fact
scenarios. New factual situations requiring subtly different elaborations of the duty will
undoubtedly continue to arise. For the policy to be fresh and optimally helpful to counsel, it needs
to take account of lessons learned and insights gained. Accordingly, I think that the policy, once
finalized, should be marked for review and revision every two or three years. Obviously, if the
need for changes became obvious before that time, they could be made as necessary. But a horizon
of two to three years for a mandatory review seems to me the right amount of time to gain some
48
�experience working with the policy, applying it to concrete case realities, and then reflecting on
any changes that this experience suggests would be helpful.
Recommendation #10:
The Department of Justice and CSIS should establish a
formal joint policy on complying with the duty with
candour in the CSIS warrant application process. It
should be reviewed and revised as necessary at set
intervals of two to three years (and earlier as necessary).
VII.
Responding effectively to judicial input, commentary, and concerns on warrant
applications
Sometimes in the course of a warrant application, a designated judge will raise a concern
with one of the recitals, powers, or conditions in the proposed warrant. It may be that a particular
phrase seems vague or ambiguous. Or a particular condition may appear to take insufficient
account of a potential contingency. When such concerns are raised, a frequent, and understandable,
response from counsel is that they need to consult with the client and/or colleagues and will get
back to the Court in due course.
Problems arise when judges of the Court feel that their concerns are not being addressed,
or that they are not being advised reasonably promptly of the result of a particular review that
counsel undertook to conduct. This has, at times, caused the Court to perceive that its concerns are
not being addressed in an efficient or systematic manner; this, in turn, has the potential to damage
the relationship of trust upon which the smooth operation of the warrant application process
depends.
No one would dispute that warrant terms and conditions engage complex policy and
operational considerations that are not always susceptible to rapid decision-making. I do not
believe that the Court would be critical of CSIS on that score. However, it nonetheless appears to
me that CSIS has not always been sufficiently prompt and responsive when such judicial feedback
has been received.
49
�As an example, I reviewed one recent transcript in which a judge expressed some
frustrations that his or her previous comments about the potentially problematic wording of a
particular warrant term appeared not to have been taken into account by the Service, since it was
once again included in the draft order then before the court. The judge recalled being told several
times that the matter was under review but had not received any definitive answer as to what the
result of that review had been.
This was certainly a misstep. However, I consider this to be more a matter of
responsiveness than of candour. Rather than a withholding of anything relevant, this (and similar
situations) really amount to a failure to keep the Court informed reasonably promptly about work
done and changes contemplated or made as a result of the Court’s input.
There is admittedly some overlap between the “candour” and “responsiveness” categories:
for instance, there may be circumstances in which candour would require a particular concern
raised by one judge to be disclosed in the course of a similar application before a different judge.
But the concern about responsiveness is, in my view, mainly about satisfying the Court that judicial
feedback is receiving adequate and appropriately swift attention. It is more an issue of coordination
than it is of candour.
Now, I should be clear that CSIS counsel are under no obligation to agree with a judge’s
comment or concern. Sometimes there may be a full answer that would satisfy the judge and allay
any residual concern. Sometimes CSIS may simply disagree that the issue raised by the judge
poses a problem, or that any other wording would be preferable. Good faith disagreement is not
only permissible, it is sometimes inevitable. In such a case, CSIS has a choice: it can accede to the
judge’s suggestion, despite disagreement, or it can maintain its position and seek a ruling.43 (Below,
I explain why I think access to a full or “mini” en banc hearing should be more readily available
where counsel think that a legal issue could benefit from the Court’s collective consideration.)
With respect to judicial input, the key, in my view, is for counsel to be responsive and
transparent. Judges simply need to know where CSIS stands on issues that have been flagged, so
43
If the ruling is adverse, and results in a judgment, an appeal can theoretically be brought.
Understandably, and with good reason, appeals in the warrant context are rare.
50
�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.
I have observed a new system CSIS LSU has put in place to track issues in relation to
warrants raised by the Court, CSIS, and other sources. This provides a useful way to ensure that
issues are followed up on in a reasonably timely manner and that responsibility for doing so is
clearly assigned and monitored.
In scenarios like the one mentioned above, where a judge has identified a potential concern
with an aspect of a warrant and requested some follow-up, I think that counsel should write to the
Court after the hearing to confirm that further review is being conducted. If there is an easy answer
that can be given right away, so much the better. If it is something requiring further consideration
or study, counsel should indicate that in the initial letter and advise the Court of its expected
timeline for providing a substantive response. If the deadline is unsatisfactory to the judge, he or
she can of course express that view in response. If an issue is persistent – for instance, one on
which different judges have taken meaningfully different views, it could be ripe for consideration
in an en banc session, a matter to which I return below.
Recommendation #11:
Where a judge has provided input or expressed concern
about some aspect of a warrant application and asked for
follow-up, counsel should write to the judge promptly
after the hearing responding substantively or proposing
a timeline for a substantive response.
VIII. Tracking legal issues of potential concern to the Court
Most of the issues in the category just discussed would be relatively mundane, usually a
matter of fine-tuning the warrant templates and their application in individual cases. On a larger
scale, where issues of broad legal consequence are concerned, 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. The Associated Data issue is only the most recent example. This involves high-level
coordination between Justice (acting through CSIS LSU) and the Service.
51
�I have already identified the need for the identification of issues potentially ripe for
disclosure to the Court to be a regular agenda item at high-level meetings at which CSIS LSU is
represented. The Service needs to become more 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.
On that connection, I indicated earlier my view that there needs to be a coordinated effort
between counsel with CSIS LSU and the Service itself to identify new or emerging issues touching
on warrants (in the broadest sense) that may become ripe for engagement with the Court. It may
also be advantageous to organize a dedicated committee of senior CSIS LSU counsel to be
principally responsible for “flagging” emerging issues of potential concern. If so, the committee
would need to have open lines of communication with the Service at an appropriately high level
such that operational issues with potential legal significance are on counsel’s radar. Service and
legal personnel are well placed to determine how exactly this goal can best be achieved.
It is no secret that the intelligence community operates on the “need to know” principle.
While affiants, analysts, and counsel are taught that “need to know” unequivocally yields to the
duty of candour in the warrant application process, the general “need to know” culture of CSIS
must still have an impact on counsel’s ability to be on top of everything they ought to be apprised
of. After all, if CSIS is not aware that a particular fact or practice is relevant to the warrant process,
then counsel is unlikely to be made aware of it. This is why 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 – is in my view so critical.
Relatedly, it may also be the case that some education or training in respect of the warrant
process should be offered to CSIS employees who are not directly involved in applications but
whose work touches on investigations that may lead to warrants. I do not have sufficient
knowledge of CSIS operations to make a firm recommendation in this regard, but I am convinced
that everyone with a stake in the process should have a general understanding of its demands,
including an appreciation of the kinds of things the Court expects to be told when being asked to
grant warrants. To the extent that this awareness is lacking, I think it is ripe for improvement.
52
�Finally, where an issue arises suitable for disclosure to the Court and applicable to multiple
applications, I think there should be an ability on the part of counsel to request an en banc session
to address it. To date, en banc sessions have been initiated by the Court when it has appeared
efficient and desirable to have the designated judges consider a matter together. Obviously, it is
always the Court’s determination whether or not an issue or set of issues is suitable for en banc
hearing, and given the inevitable logistical challenges involved, the Court would no doubt be
loathe to make them a frequent occurrence. Nonetheless, it seems to me that there may well be
occasions on which a matter not yet on the Court’s radar appears to counsel for CSIS to be suitable
for en banc consideration.
Recommendation #12:
Counsel for CSIS should have the ability to request an en
banc sitting of designated judges when an emerging legal
issue of broad concern is identified.
Composition of en banc panels is a matter solely within the discretion of the Court. The
Court may wish to consider holding a “mini” en banc – for instance, a three or five-judge panel to
consider an issue of potential significance to the warrant practice. This could be akin to the process
common in provincial courts of appeal for requesting a five-judge panel when a party intends to
ask the court to reconsider and overrule one of its own precedents. The analogy is not perfect: in
that other context, the enlarged panel request is seen as necessary to give one panel of the court
legitimate authority to overrule another panel. Here, by contrast, we are concerned not so much
with the authority to create new precedent as we are with the practical benefits of having multijudge input on a novel and difficult issue that may end up recurring in future warrant applications.
The option of holding a “mini” en banc may provide an attractive middle ground between the
logistical challenges of convening a full en banc and the inefficiency of raising the same issue
before several single judges.44
44
Having the same issue adjudicated by a number of judges of coordinate jurisdiction is not
unusual or problematic in itself. It happens all the time in the criminal and civil courts. The
difference is that, in those contexts, the appellate courts can be expected to provide definitive
guidance before long, erasing any untenable divergences that have arisen between the rulings of
trial-level judges. In the CSIS warrant context appeals are unusual. Warrants are time-sensitive,
53
�Recommendation #13:
Where the Court believes it appropriate, counsel should
consent to holding “mini” en banc sessions of three or five
designated judges where an issue of general concern to
the warrant process is identified.
IX.
A Bench and Bar Committee?
There is currently no forum in which counsel and judges in this practice area can address
issues relating to the practice in a context less formal than an en banc hearing. I think that the
creation of such a forum – a kind of “bench and bar” committee for the national security practice
area – would be a salutary development. The aim would be to provide a forum in which practicerelated issues of mutual interest can be discussed and emerging area of concern can be addressed.
There are real issues of judicial independence and transparency that have no doubt played
a role in hindering the development of any such forum to date. I would not want to minimize those
concerns. The Court obviously cannot be seen to be having off-the-record, private meetings with
a government body that is the sole litigant before it on these matters. With appropriate participation
and safeguards, however, I think that such a committee – including, but not necessarily limited to
those who participate in CSIS warrant applications – would be a useful and appropriate initiative.
With those independence and transparency concerns in mind, the committee would need to be
appropriately composed, with representation from outside the government. It would need to
include substantial – i.e. much more than “token” – representation of security-cleared counsel in
private practice with active involvement in national security matters.
In such a forum, both the Court and the Service could obtain a greater awareness of practice
issues that are of concern to the Court, the Service, and amicus alike. They could be addressed so
that any necessary adjustments could be made before the issue gives rise to suspicion on either
after all, and appellate review in the criminal context almost always comes after trial. As I have
emphasized several times, because CSIS warrants do not lead (directly) to prosecutions, afterthe-fact review – including appellate guidance on the law – is rare. For that reason, there is more
of a premium in maintaining some measure of consistency among the designated judges by way
of processes like the en banc.
54
�side. Properly implemented, I think it could improve the relationship of trust between counsel and
the court, and also improve relations between counsel on different sides, further to the concern
about collegiality expressed above.
Recommendation #14:
A bench and bar committee should be established, with
representation from both “sides” of the national security
bar.
To be clear, I do not propose that contentious legal issues be addressed in such a forum.
Those must be litigated on the record, in court. I am speaking here about the kind of process and
practice issues that do not arise as contentious issues on a particular application but which might
(in the criminal or civil context) be the subject of a practice directive from the court. An example
might be the “responsiveness” concern addressed above. Through a committee, a more detailed
protocol satisfactory to both the Court and counsel could be settled on – and, perhaps, amended
from time to time as required. Regular consultation over such matters could be expected to yield
practical solutions to problems that have the potential to annoy the Court if not addressed in a
timely manner. Moreover, the process of consultation could help restore the culture of trust that
has recently been compromised.
Another way to increase transparency and mutual understanding would be the production
a yearly report from CSIS LSU to the Court on practice issues that have arisen and the efforts
undertaken to address them. While this is not a full substitute for ongoing dialogue through a
committee, a yearly report gathering in one place a brief summary of the back-and-forth with the
Court on warrant-related issues – i.e. the matters which counsel agreed to look into and get back
to the Court about – would help ensure that such matters do not fall through the cracks. It would
also assist in keeping the designated judges apprised of efforts made in response to inquiries made
by their colleagues, with respect to matters not actually addressed in an en banc.
Recommendation #15:
Consideration should be given to submitting an annual
report to the Court on CSIS responses to judicial input
on warrants.
55
�X.
An expanded role for Independent Counsel
Independent Counsel – drawn from the ranks of the National Security Group of the
Department of Justice – serves a crucial but tightly circumscribed role in the warrant application
process. When the application materials are largely complete, the assigned IC receives a copy of
the draft affidavit. After reviewing it, he or she attends at CSIS headquarters and participates in an
intensive “facting” session with the affiant and analyst. This process is thorough: the affidavit is
scrutinized paragraph by paragraph, and source documents are checked to ensure that each factual
assertion is accurate and appropriately sourced.
As alluded to above, the role of IC was developed in the aftermath of the Atwal affair. In
Atwal, serious factual errors were discovered in the affidavit materials put before the issuing court.
The errors were serious enough to cause the Crown to concede that the warrant should be
rescinded; it also led to the resignation of the Director.
Almost thirty years later, today’s challenges are largely of a different nature. No doubt,
factual accuracy continues to be a pressing concern. But it is not where recent difficulties have
arisen. The “facting” process is thorough, up to and including the review and challenge function
carried out by Independent Counsel. Recent problems have arisen not from factual inaccuracies
but CSIS’ failure to appreciate what the Court needs and wants to know, often at the operational
and policy level.
Currently, however, IC only scrutinizes the factual assertions in the affidavit. They are not
even given a copy of the draft warrant, and are therefore are in no position to scrutinize or challenge
the powers sought, or to flag any latent or emerging legal issues. 45 I think this is a missed
opportunity. The involvement of IC is the only stage – prior to court – at which an “outside”
perspective considers the warrant application. Accordingly, I think that the IC function should be
reformed to be responsive to the real challenges faced by CSIS and its counsel today. As we have
seen, the most serious problems have been failures to identify facts, issues, and practices as
45
The affidavit will contain a description of the powers sought, but not in the precise terms
articulated in the warrant itself. In my view, it is not an appropriate substitute for ensuring that
IC scrutinizes the warrant terms and considers any potential issues arising from them.
56
�appropriate for disclosure to the Court. If properly equipped to do so, IC could provide another
check against such failures recurring. Selection of IC should be geared toward a depth of relevant
experience, and an appropriate skill set, for this expanded mandate.
It has been suggested to me that reluctance to include a legal component to the IC function
may stem from an insistence that the Crown should have a single, consistent legal position. It
would be unseemly, on this view, for one Crown lawyer (IC) to challenge a legal position taken
by another Crown lawyer (CSIS LSU counsel). In my opinion, this criticism is not persuasive.
There is nothing improper or even unusual about Crown lawyers exercising an internal challenge
function. To be clear, this expanded function would not include appearing before the Court on
warrant applications; the challenge function would be internal to the preparation of the application
materials.
IC could
play a role, however, in identifying those cases in which an adversarial
presentation could assist the Court in resolving a legal issue arising on an application. That is, I
think that one feature of an expanded IC role should be the authority to flag cases in which novel
legal or factual issues arise, making the appointment of amicus appropriate. Although the decision
to appoint amicus resides exclusively in the Court, it would make sense to empower IC to make
such a recommendation to Senior General Counsel at CSIS LSU where appropriate. It would be
expected that CSU LSU would then convey that recommendation to the court.
To be clear, such a recommendation would not be tantamount to an assertion that the CSIS
position is legally wrong or otherwise objectionable: rather, it would be a judgment (made through
the lens of the duty of candour) that the application involves a potentially contentious legal issue
on which the Court would benefit from adversarial argument. In my view this is in no way
incompatible with the role of the Crown; rather, it is part and parcel of the duty of candour and the
Crown’s overriding obligation to the administration of justice. Involving IC in such decisions
provides one more significant assurance that the ultimate goal of the duty of candour – to put all
relevant information before the court, fully and fairly – is successfully carried out.
I therefore recommend that the role of IC be expanded to include scrutiny of legal and
policy issues arising in the warrant application process. The timing of IC’s involvement will likely
need to be adjusted to accommodate this expanded role. However, I understand that application
57
�materials (but not the source documents) are already provided to IC in advance of the “facting”
session. I see no reason why the draft warrant – and whatever other materials are relevant to this
expanded role – could not likewise be provided in advance to allow IC sufficient time to make a
meaningful contribution to the process. Obviously, as with everything in this process, exigent
circumstances may require abridgment of ordinary timelines. The key, in my view, is that IC be
provided with sufficient material and adequate time to make an informed and considered judgment
about legal and policy issues raised by a warrant application, and to be in a position to make followup inquiries with CSIS LSU counsel as necessary.
Recommendation #16:
The role of Independent Counsel be expanded to include
scrutiny of legal and policy issues arising from a warrant
application.
Recommendation #17:
Independent Counsel should be expressly empowered to
recommend to Senior General Counsel that a request for
the appointment of amicus be made to the Court.
It may be that the selection criteria for IC will need to change based on the expanded role.
I understand that in the past, IC have sometimes been former members of CSIS LSU. There are
arguments for and against this: on the one hand, it could be seen to undermine the “independence”
of the role; on the other, experience in CSIS LSU provides an invaluable insight into the warrant
process that cannot be gained elsewhere. On balance, I am not inclined to make a firm
recommendation about whether counsel chosen to act as IC should or should not have had
experience as counsel in CSIS LSU. Maintaining a mix of skill sets and career experiences is likely
the most effective solution.
XI.
The CSIS LSU team
The unit currently comprises about 25 counsel. Warrant applications are a large, but by no
means the only, part of the practice. Another large aspect of the practice is providing legal advice
58
�to CSIS. I understand that in the course of any given year, the legal opinions provided to CSIS
number in the hundreds. The work can be fast-paced and complex, and is inevitably demanding.
From my observation of counsel and their work, I believe they are of high calibre, both in
terms of legal skill and dedication to their work. Counsel are acutely aware that their work engages
profound consequences for national security as well as for persons affected by CSIS warrants. It
is clear to me that they take these responsibilities extremely seriously. They are also profoundly
concerned about the criticisms recently expressed by the Court and wish to do everything they can
to repair the relationship and avoid repetition of past mistakes.
CSIS LSU counsel come from a reasonably diverse set of legal backgrounds. Many joined
the unit from other branches of the Department of Justice, others came from private practice. While
I think it might be desirable to have more counsel with a background in criminal prosecutions, I
think that the contingent generally includes a good mix of professional experiences.
I have observed that counsel tend to stay in the unit for a relatively lengthy period of time.
It is not uncommon for counsel to stay for a decade or more. This is not surprising: counsel need
to acquire a great deal of specialized knowledge in order to carry out their role effectively, and
abbreviated stints in the unit would generally be a poor use of human resources. There is also a
great benefit to continuity with respect to warrant applications that continue from year to year.
Institutional memory is one thing, but it is especially useful to have the same counsel who brought
the original application dealing with a renewal application, likely the following year. All of which
is to say that continuity has clear benefits.
Nonetheless, I do think that the insular context of CSIS LSU poses certain challenges. My
sense is that CSIS LSU counsel have considerably less day-to-day interaction with other Justice
counsel – let alone counsel in private practice – than do lawyers located in other units of the
Department. This insularity can be to counsel’s detriment, in terms of being exposed to different
ideas and perspectives germinating elsewhere.
It is also a challenge for counsel to be acting for a powerful single client – and one with
such a challenging and significant mandate. The risk of “client capture” is always real, despite the
best efforts of counsel to carry out the Minister of Justice role as described above. It’s fair to say
59
�that the Court has sometimes viewed CSU LSU counsel as having insufficient distance from their
client. And if that perception exists, I think that efforts need to be made to counteract it.
Partly, I think this can be accomplished through better responsiveness and transparency
with the Court. My sense is that some of the Court’s concerns about “client capture” may be rooted
in the perception that when counsel indicate their intention to seek advice or instructions on a
particular point they are often not as reliable in delivering a prompt response as the Court would
like. It is understandable that where complex national security issues and investigations are
involved, counsel may be reluctant to make commitments to the court “on their feet” in other than
minor or routine matters. They may justifiably have less flexibility in this respect than would, say,
Crown counsel before a judge ex parte in a criminal matter.
Relatedly, I think that CSIS LSU counsel should be better able to secure advice on novel
points from outside the group in a timely manner. Senior PPSC counsel with extensive wiretap or
search warrant experience – some of whom also have substantial experience in the national security
world – would be an invaluable resource for knotty issues that arise in respect of warrant powers
and conditions. My sense is that they are utilized too infrequently. It may be helpful to identify a
short list of federal Crown counsel with experience in both wiretap practice and national security
matters – and preferably with top secret security clearance – who could regularly act as outside
resource persons whenever CSIS LSU counsel determine that a fresh perspective on a difficult
issue would prove useful.
Recommendation #18:
Develop a short list of senior PPSC counsel with relevant
expertise who are available on short notice to provide
advice on difficult warrant issues.
More frequent secondments from CSIS LSU to other branches of Justice and the PPSC
would, in my view, be a positive initiative. 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. I think
that temporary secondments of CSIS LSU counsel are one way in which the balance can be
achieved.
60
�Recommendation #19:
Secondments of counsel from CSIS LSU to other
branches of the Department of Justice, as well as to the
Public Prosecution Service of Canada, should be
encouraged.
XII.
Training and Continuing Education
I have been provided with materials used in the training of both CSIS employees and
counsel. From this I have learned that extensive and targeted training is provided for both counsel
and Service members engaged in the warrant application process. It appears to be comprehensive
and high-quality. The counsel principally responsible for developing and implementing the
program has a strong depth of experience well suited to the task.
One of the things that struck me, however, is that this world of training and continuing
education is, like the practice area more generally, very insular. I think that counsel and Service
employees would benefit from more exposure to experienced counsel (and perhaps police officers
and others) from other contexts. Perspectives from the judiciary, prosecution services, and the
defence bar (including amicus) are also essential.
It should be kept in mind that while the CSIS warrant context is unique in many respects,
what makes a good affidavit really does not vary from one context to another. Effective affidavit
drafting is a portable skill. Moreover, it is essential to carrying out the duty of candour, since poor
drafting can compromise the court’s ability to grasp the facts and issues at stake. I see no reason
why training in this area should be insular in nature. Participation in programs put on by law
enforcement agencies, some of which I refer to above, may well be useful for CSIS affiants.
As for training geared toward counsel, a word about the involvement of the judiciary in
such sessions is appropriate. This is a delicate issue because of the independence concerns that
arise in this context. However, I think those concerns can be alleviated if security-cleared private
counsel – presumably drawn from those who have acted as amicus or special advocates – are also
involved as participants and/or instructors. I note that the Court has in the past convened en banc
sessions in order to receive education on new technologies. In these instances, the services of
61
�eminent retired judges (of a different court) have been retained to oversee the process and ensure
that the appearance and reality of independence is maintained.
Recommendation #20:
The judiciary should be approached about participating
– with appropriate independence safeguards –
warrant-related
continuing
education
for
in
CSIS
employees and counsel.
In the course of my consultations I spoke with a number of counsel who have acted as
amicus on national security matters in the past. I was surprised to learn that none of them had been
invited to participate in any kind of education or training sessions with CSIS counsel or employees.
This is a missed opportunity, in my view. Participation of “defence”-side counsel in warrantrelated continuing education for CSIS counsel and employees would have a number of benefits, in
my view. Most obviously, it would provide the benefit of invaluable experience not enjoyed by
those who have worked only on the government side, and along with it the benefit of a different
perspective on issues and challenges in the warrant process.
Greater sensitivity to these other perspectives could, in my view, have real benefits for the
duty of candour. If, as I have explained above, the recent problems have been mostly about a failure
to recognize the full contours of relevance in the ex parte context, it seems natural that greater
exposure to a non-governmental, “defence”-oriented perspective in continuing education could
help mitigate such shortcomings in the future. Recognizing issues of potential concern to the Court
– and knowing how and when to make appropriate disclosure – requires a certain flexibility of
mindset which, in my view, could be cultivated through this kind of broader participation in
training and education.
Recommendation #21:
Security-cleared counsel in private practice should be
involved in the provision of warrant-related training for
CSIS employees and counsel.
Involving amicus and other non-CSIS personnel in training may also have benefits for the
collegiality of the national security bar. My impression has been that the bar in this area is very
62
�unlike the criminal bar, which is generally characterized by close working relationships (and strong
collegiality) between counsel on opposite sides of the courtroom. Part of this is no doubt the
inevitable result of a numerical imbalance: naturally, the large majority of counsel practicing in
this area work for the government. The top-secret character of the work also plays an obvious role.
Nonetheless, I think that more can and should be done to promote collegiality in the bar,
not just as something that is healthy in its own right, but also as a mechanism for learning and
professional improvement. Outside involvement in warrant-related training and education is a
natural place to start. Another potentially fruitful option is joint participation in a bench and bar
committee, discussed above.
The national security practice has the benefit of extremely knowledgeable and capable
counsel on both “sides” of the bar, not to mention a highly specialized and experienced judiciary.
I think much more can be done to share the fruits of this expertise, for the benefit of all involved.
XIII. Conclusion
Earlier in this report I described a crisis in the relationship of trust between the Service and
the Court. The release of Justice Noël’s Reasons in the Associated Data case marked the latest,
and arguably most serious, manifestation of that troubling development. I do not underestimate
the seriousness of the Court’s concerns nor the extent of the work that needs to be done to repair
the relationship.
I am heartened, however, by the clear commitment on the part of CSIS LSU and the Service
to make whatever changes are necessary to ensure that past mistakes are not repeated and,
moreover, to create a more trusting relationship with the Court. I have been impressed by counsel’s
dedication to their work and their genuine determination to use the Court criticisms as a means to
improve their practice and restore the Court’s trust.
The observations and recommendations in this report are provided to assist in reaching that
goal. Needless to say, achieving full compliance with the duty of candour and the broader
obligations of the Crown in this challenging context is a continuous process. No set of policies or
protocols will by themselves by sufficient to ensure success, but I believe they can assist in
63
�reorienting the thinking of counsel and the Service to better equip them to meet the challenges that
new circumstances will inevitably bring forth.
64
�APPENDIX – SUMMARY OF RECOMMENDATIONS
Recommendation #1:
CSIS affiants need to be equipped with a profound understanding of the duty of candour, and
sufficient skill and experience to successfully implement it.
Recommendation #2 :
CSIS affiants must exercise independence from the investigative team in ensuring that they
fulfill their personal sworn obligation to make full, fair, and frank disclosure to the Court.
Recommendation #3:
CSIS should ensure that the role of affiant is a senior and respected role within the Service, and
that affiants occupy that role on a recurring basis.
Recommendation #4:
Anything novel (e.g. technologically, legally) about a warrant application should be clearly
foregrounded for the Court.
Recommendation #5:
The appointment of amicus curiae should be recommended where a warrant application raises a
novel and/or difficult legal issue.
Recommendation #6:
Counsel’s guiding presumption should be to err on the side of disclosure.
65
�Recommendation #7:
The Court should be informed when CSIS has changed its legal position in respect of an issue
before the Court.
Recommendation #8:
A formal process should be implemented for identifying new or emerging issues touching on
warrants that may become ripe for engagement with the Court.
Recommendation #9:
In preparing a warrant application, counsel and the affiant should be guided by the following
question: “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?” This should include a consideration of the potential impact on other
orders in force.
Recommendation #10:
The Department of Justice and CSIS should establish a formal joint policy on complying with
the duty with candour in the CSIS warrant application process. It should be reviewed and revised
as necessary at set intervals of two to three years (and earlier as necessary).
Recommendation #11:
Where a judge has provided input or expressed concern about some aspect of a warrant
application and asked for follow-up, counsel should write to the judge promptly after the hearing
responding substantively or proposing a timeline for a substantive response.
66
�Recommendation #12:
Counsel for CSIS should have the ability to request an en banc sitting of designated judges when
a legal issue of broad concern is identified.
Recommendation #13:
Where the Court considers it appropriate, counsel should consent to holding “mini” en banc
sessions of three or five designated judges where an issue of general concern to the warrant
process is identified.
Recommendation #14:
A bench and bar committee should be established, with representation from both “sides” of the
national security bar.
Recommendation #15:
Consideration should be given to submitting an annual report to the Court on CSIS responses to
judicial input on warrants.
Recommendation #16:
The role of Independent Counsel be expanded to include scrutiny of legal and policy issues
arising from a warrant application.
Recommendation #17:
Independent Counsel should be expressly empowered to recommend to Senior General Counsel
that a request for the appointment of amicus be made to the Court.
67
�Recommendation #18:
Develop a short list of senior PPSC counsel with relevant expertise who are available on short
notice to provide advice on difficult warrant issues.
Recommendation #19:
Secondments of counsel from CSIS LSU to other branches of the Department of Justice, as well
as to the Public Prosecution Service of Canada, should be encouraged.
Recommendation #20:
The judiciary should be approached about participating – with appropriate independence
safeguards – in warrant-related continuing education for CSIS employees and counsel.
Recommendation #21:
Security-cleared counsel in private practice should be involved in the provision of warrantrelated training for CSIS employees and counsel.
68
�
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
Review of CSIS Warrant Practice (December 2016) (Murray Segal Report)
Description
An account of the resource
Report commissioned by Justice Canada on "best practice" in ex parte warrant procedures and advice on reforming CSIS/Justice Canada warrant procedures before the Federal Court.
Source
A related resource from which the described resource is derived
Department of Justice Canada (public document obtained on request)
Publisher
An entity responsible for making the resource available
Department of Justice Canada
Date
A point or period of time associated with an event in the lifecycle of the resource
December 2016
candour
CSIS
reform
surveillance
warrants