Canada’s spy service once again admonished by court over duty of candour

OTTAWA — A federal judge blames “institutional and systemic negligence” for the latest instance of Canada’s spy service failing to be sufficiently forthcoming about applications for judicial warrants to conduct investigations.

In a decision made public Tuesday in redacted form, Federal Court Justice Henry Brown said the Canadian Security Intelligence Service breached the duty of candour it owed to the court in certain October 2018 warrant applications.

The spy service had applied for several warrants to intercept the communications of a “group of individuals” deemed a threat to the security of Canada, the specifics of which were excised from the public version of the ruling.

Brown found CSIS failed to disclose that human source information relied upon to obtain the warrants might have flowed from potentially illegal activities.

He also faulted the spy service for not revealing information that had the potential to reflect adversely on the reliability and credibility of the human sources.

Even so, the judge concluded the newly available information did not justify setting the warrants aside.

“Both breaches occurred through a combination of institutional and systemic negligence,” Brown wrote. “Nevertheless, I am unable to find any intention to mislead or deceive the Court. The Court does not find personal culpability on the part of either the lawyers or Service witnesses who appeared before it.”

The decision is the latest of several in recent years where the court has admonished CSIS for not disclosing important information when applying for warrants.

A similar Federal Court ruling released in July 2020 said CSIS had failed to disclose its reliance on information that was likely collected illegally in support of warrants to probe extremism.

“The circumstances raise fundamental questions relating to respect for the rule of law, the oversight of security intelligence activities and the actions of individual decision-makers,” Justice Patrick Gleeson wrote. 

Gleeson called for an in-depth look at interactions between CSIS and the federal Justice Department to fully identify systemic, governance and cultural shortcomings and failures. 

The National Security and Intelligence Review Agency, the main watchdog over CSIS, is examining the issues. 

Another review, completed by former deputy minister of justice Morris Rosenberg, called for improvements, including better training and clarification of roles, but stressed they would not succeed unless the “cultural issues around warrants” were addressed. 

The Rosenberg review prompted CSIS to launch an effort last year to further the service’s ability to meet its duty of candour to the court, resulting in a plan that was finalized in January.

The project team has been considering the Rosenberg report recommendations, building on efforts already underway, and leveraging lessons learned from other initiatives ongoing at CSIS, service spokeswoman Keira Lawson said Tuesday.

“There has also been extensive engagement and consultation with employees since the launch of the project to solicit ideas on solutions regarding the issues identified in the Rosenberg report and by the Federal Court.”

In his ruling, Brown ordered CSIS to keep the court apprised of developments, including followup related to the external reviews.

This report by The Canadian Press was first published Aug. 31, 2021.

Jim Bronskill, The Canadian Press