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This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Sunday
May282017

How does CSIS threat reduction work?

As I write this, I am still hoping the government will be introducing legislation in Parliament before the summer recess responsive to its promise to reform the "problematic" aspects of Bill C-51 (2015). One of the most controversial aspects of C-51 were new powers given to CSIS to engage in "threat reduction" measures, and especially powers to break any Canadian law and breach the Charter, where pre-authorized by Federal Court warrant.

I am not among those who thinks CSIS should have no threat reduction powers. But I am among those who thinks there is no credible basis for the sweep of powers codified by C-51. As discussed at length in False Security, the untextured language in C-51 opens the door to inevitable legal challenges (especially the idea that CSIS could be pre-authorized in a secret, unappealable judicial process to breach each and every Charter right).  It also compounds problems of confliction with police anti-terror investigations.  Those operational challenges are discussed also in a blog posting here. (That posting may also serve as a refresher in relation to the threat reduction power).

To their credit, CSIS and RCMP clearly appreciate the risks involved. CSIS and RCMP has concluded a protocol -- called One Vision 2.0 -- that augments the level of inter-agency deconfliction. It has some useful features that could minimize the downstream effect of CSIS activities on prosecutions. (Even if CSIS may be immunized from prosecution where it operates pursuant to a lawful threat reduction power, its activities may still be raised as abuse of process as part of a defence by a target, should that target ever be charged with, e.g., a terrorism crime. That has happened even for the police, when they properly exercise their Criminal Code s.25.1 powers to violate the law in the course of an investigation. See R v JJ, 2010 ONSC 735 at paras 282 and 302, leave to appeal refused, [2010] SCCA No 161).

CSIS and Global Affairs also have their own memorandum of understanding on CSIS threat reduction conducted outside of Canada (which is permitted under the bill C-51 framework).

And a mostly-redacted ministerial direction may include language on how CSIS is to deliberate with other government agencies before doing threat reduction.

I say "may" because CSIS operational policy document I obtained under Access to Information suggests it does.  Though deeply redacted as well, this document has some interesting features, which I thought worth canvassing in this blog entry.

Mandatory Government Consultation

The policy says, consistent with ministerial direction, "consultation with GoC partners, including the Royal Canadian Mounted Police (RCMP), DFATD [now Global Affairs] and others as appropriate, will occur prior to seeking approval to undertake s.12.1 measures".  This is especially true for CSIS anti-terror investigations (that is, investigations relating to s.2(c) threats to the security of Canada): "The RCMP must be consulted on all s.12.1 measures for all investigations in relation to s.2(c) of the CSIS Act and others as appropriate".

Global Affairs, for its part, "will be consulted on s.12.1 measures that are assessed as having potential foreign policy implications".

These seem like obvious steps, but my sense is that close synergies between departments to make sure responses are coordinated and do not act at cross purposes has been a work in progress, and a renewed priority since at least 2014. CSIS's more aggressive post-C-51 powers make it urgent to get this right, or watch CSIS operations scuttle prosecutions.

Last Best Tool

There is also language stating that CSIS employees must "consider the range of national security tools available to respond to threats to the security of Canada; the use of s.12.1 measures in an additional tool". I think this language could be stronger, but the theme is a good one: threat reduction is an extreme measure. Disruption may, notoriously, go sideways and prompt unforeseen blowback. Preserving it as a "in case of emergency, break glass" power should be the order of the day.

Approvals

An inevitable conundrum created by C-51's inelegant structure is the question of when CSIS needs a court warrant prior to conducting threat reduction. The current language is this: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1." 

It follows that a warrant is required where a measures will (not might) contravene a right or freedom under the Charter or be contrary to "other" Canadian law.

"Will" is a high threshold. "Other" law is a big universe. So much will depend on legal advice. The CSIS procedural document specifies that CSIS "will consult with CSIS Department of Legal Services (DLS) to determine if a warrant may be required".

Based on what we know at present, CSIS has conducted threat reduction a few dozen times since 2015. It has never sought a warrant, meaning CSIS and its lawyers concluded that the threat reduction did not meet this "will" contravene Canadian law standard.

My issue is: who will audit this legal advice? Will SIRC have the in-house capacity to review legal advice?  Is there a "red team"?

Consider this example: CSIS concludes that individuals may be radicalizing to violence under the sway of a charismatic figure. (Research suggests that such figures can be pivotal.) Absent, though, a basis for criminal charges or a peace bond or some such thing, there is no legal restraint that can be imposed on the figure. And so CSIS decides to disrupt by engaging in, well, false news. It undermines the credibility of the figure by, say, spreading rumours among his followers that the leader is a fornicator, liar, swindler (whatever).

Does CSIS need a warrant? I would say: "yes".  Rumours like this -- if untrue -- are defamation. Defamation is contrary to "other" Canadian law -- the common law. But would CSIS and its lawyers read the law in this manner and seek a warrant?

Another example: CSIS engages in any threat reduction in a foreign country without the permission of the territorial state.  Does CSIS require a warrant?  I would say "yes". The extraterritorial exercise by a state of "enforcement jurisdiction" (basically any state power) without consent on the territory of another state is a violation of customary international law. Customary international law is part of the common law of Canada, unless displace by statute. There is no such displacement, not least since Parliament is presumed to legislate in conformity with international law. (To the extent displacement of international law exists in the CSIS Act, it comes only under court warrant: a court may authorize a breach of foreign or other -- as in, international -- law, under s.21.1(4). But the Act says nothing about CSIS breaching customary international law unilaterally). And so CSIS conduct is "contrary" to "other" Canadian law. (See discussion here, and the longer discussion here.)

Would CSIS and its lawyers read the law in this manner? I don't know. Do they have international lawyers working with them on this?  Would GAC lawyers be "read in" on the operation to this level?

All of this is to say: I wonder how we will tell whether CSIS is getting the warrants it should be getting.