Ministerial Direction to CSIS for Operations and Accountability (2015)

Ministerial Direction to CSIS for Operations and Accountability (2015)

Ministerial direction

Analysis: Comparing the Old (2008) and New (2015) CSIS MD for Operations

With the passage of Bills C-44 and C-51 in 2015, new Ministerial Directions were issued to CSIS to set parameters for the use of its new powers.

The old MD was titled ‘Ministerial Direction for Operations’ whereas the new 2015 MD is titled ‘Ministerial Direction for Operations and Accountability’ (in the past, two separate MDs were used for operations and accountability).

In the new MD, accountability is found under a newly created Annex A. In the old MD, Annex A was titled ‘General.’ However, the new Accountability provisions under Annex A are largely redacted so it is difficult to tell what accountability mechanisms have been introduced, other than the fact that CSIS is obliged to consult with the Minister of Public Safety.

Under ‘Fundamental Principles’: the new MD maintains the first 3 principles as the old MD which include: the rule of law; reasonableness and proportionality in operations; and the greater the risk, the greater authority requires for approval.

The fourth principle’s wording is different in the new MD: its main focus is on ‘rights and freedoms of individuals’ as opposed to ‘intrusive techniques’ as written in the old MD. The new MD also explicitly mentions privacy as an important human rights consideration under ‘Fundamental Principles’ whereas the old MD did not. In the old MD, privacy appears under ‘Annex A: General.’

It seems that the fourth principle is fundamentally the same: human rights must be regarded when CSIS engages in intrusive operational techniques; just the wording has been changed.

The new power of threat reduction:

• The old MD stated that “CSIS shall focus its collection, analysis and advisory activities…”
• The new 2015 MD states that “The Service shall focus its collection, threat reduction, analysis, and advisory activities…”
• Annex C: Human Source Program
  • Very interesting: the old MD stated that “human sources will carry out their tasks on behalf of the Service without engaging in illegal activities.” In contrast, the new MD says “human sources will carry out their tasks on behalf of the Service in a manner that supports the duties and functions of the Service.”
    • Is the implication that illegal activities are acceptable for human sources, under the new MD, something that is plausible (with warrant) under the post-Bill C-51 regime
      
    • Annex D: Operational Activity Outside Canada
      • No significant changes in wording from the old MD
      • Annex F: Foreign and Domestic Arrangements:
        • No significant changes in wording but: the old MD used 'CSIS' and 'the Service' interchangeably, the new MD seems to use 'The Service' consistently.

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2015

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