About this Project

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.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

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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Wednesday
Oct262016

Secret Law and Canadian National Security

A recurring issue in national security law, especially since 9/11, is the proliferation of what I (and many others) now call "secret law". A recent report from the Brennan Center at NYU School of Law traces this development in the United States, supplementing earlier critiques.

Canada also labours with the problem of secret law in national security. In our case, it comes in different guises:

  • As reported, the last government issued secret orders-in-council.
  • Ministers issue directives under various statutory authorities that are not proactively disclosed. Copies obtained under access to information are sometimes heavily redacted. For instance, it is more than ironic that the 2015 ministerial directive to CSIS on accountability is mostly censored. These directives are cardinal aspects of Canadian national security law: they can amount to the nuts and bolts rules that govern how vague, open-textured statutory powers are exercised. They matter, in other words, and by any reasonable definition amount to law.
  • Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers. These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate. In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand. Just two recent examples are: a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE); a conclusion that the compilation and analysis of metadata from travellers at a Canadian airport is not (as a legal matter) "acquisition and use" of information in a manner "directed" at Canadians or any person in Canada (CSE).
  • Secret or quasi-secret Federal Court caselaw involving issues of public law importance, with much credit to the court for doing its utmost to publish public (albeit redacted) versions of its decisions.

Last Spring, a talented JD student at uOttawa compiled all the ministerial directives we could get a-hold of under access to information. I have struggled to find time to post her workproduct into a viable on-line database (that won't cost me a fortune). But it is still on my task list. Less clear to me is why it is on our task list, and not the government's. And even less clear to me is whether the scope of claimed redactions to these documents can withstand close scrutiny.

Similarly, it surprises me that the government does not waive solicitor-client on some of the legal construals that drive its national security powers.

In both instances, there are clear rule of law issues. Sooner or later this will end up in court. I think it's only a matter of time, for instance, before these matters go up through an access to information appeal in which someone tests the true meaning of the Supreme Court's s.2 Charter holding in the Canadian Lawyers Association case, garnished with a rule of law argument.

But secret law also ends up creating train wrecks in other ways, with serious operational significance. Indeed, that's precisely what happened with Justice Canada's construal of the CSIS Act at issue in the Re X saga.

And the even graver risk is that bumping along using untested legal views will end up in court as a collateral issue in a criminal matter. Say, for instance, the seed for RCMP charges is information-sharing from CSE based on its metadata program, done under its "Mandate A" foreign intelligence activities. And the trial court learns that CSE's collection of Canadian metadata, although done incidentally, was never authorized by a court (it never is, at present). And more than that, the subsequent de-minimization of the Canadian identifying information by CSE was done on request of the RCMP pursuant to a Privacy Act exception. That is, all this information ends up with the RCMP administratively, and not supported by a warrant. Does this happen? I don't really know (because of the secret law problem). but extrapolating from hints about the secret law governing the workings of the CSE de-minimization process, I think it may.

We know from the caselaw that courts have treated this kind of thing as an end-run around the Charter (see Cole and Colarusso).

Surely it would be better to know the government's legal theory now (we can infer much of it anyway) and point out the risks before it becomes a central issue collapsing a criminal trial.

Better yet, change law and practice to bring it into alignment with a necessary concomittant of the rule of law in a democratic state: that we have actual notice of what the law is so that we know what we are authorizing our security services to do in our name.

Monday
Oct102016

Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper

Kent Roach and I have posted a review copy of our response to the government's consultation paper on national security & bill C-51. It can be downloaded here. The abstract reads:

This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns.

 

Monday
Oct032016

CSIS immunity from criminal culpability for acts done in foreign fighter investigations: Observations on SIRC report

In its annual report on CSIS activities released last week, the Security Intelligence Review Committee (SIRC) included some cryptic comments about CSIS overseas foreign terrorist fighter investigations.  Specifically, it stated: “CSIS should ensure its employees fully understand the extent to which certain activities present legal risks. To this end, SIRC recommended that CSIS seek legal clarification on whether CSIS employees and CSIS human sources are afforded protection under the Common Law rule of Crown Immunity in regards to the terrorism-related offences of the Criminal Code of Canada.”

It is impossible to draw definitive conclusions about what SIRC is talking about here, but a few inferences seem reasonable:

  • This comment seems to be directed at CSIS security intelligence investigations (that is, intelligence investigations) and not CSIS’s new (post bill C-51) “threat reduction” powers (discussed in my post immediately prior to this one).
  • In Bill C-44, CSIS was given a clearer legislative basis to conduct overseas security intelligence investigations, and one assumes that is exactly what it is doing.
  • And based on SIRC’s statement, CSIS has either employees or sources who are collecting information overseas on terrorism-related matters, but doing so in a manner that may expose them to Canadian Criminal Code culpability.
  • At a guess, there are two reasons why these employees/sources may have legal liability. 
  1. First, Canada’s terrorism offences are extraterritorial – they extend to conduct by Canadian citizens overseas that if done in Canada, would be a crime. The most likely candidate is “participation with a terrorist group”.  A CSIS source in a terrorist group is almost certainly someone who, along the way, has participated in a terrorist group.  Indeed, these kind of issues came up in the Toronto 18 case. And employees may also commit such crimes, while acting undercover with a terrorist group.
  2. Second, the entire Criminal Code applies to federal employees who commit an act that is crime in both Canada and the place overseas where it happens (s. 3.73(4)).  So there is a whole lot (conceivably most of the Criminal Code) that a CSIS employee might do that triggers potential criminal exposure, while they act undercover.
  • CSIS security intelligence operations include no express statutory carve-out for this criminal culpability. (CSIS’s new threat reduction powers post-C-51 do, but only if blessed by a secret federal court warrant). (I don't think s.20 of the CSIS Act provides enough cover, since it only extends peace officer protections, which I don't believe would permit illegal conduct, absent proper application of s.25.1 of the Criminal Code. And at any rate, that s.20 only applies to CSIS employees, not sources or agents. I take it SIRC has the same concerns, or it wouldn't have raises this issue at all).
  • And so if CSIS employees or sources are to be immune from criminal exposure for their conduct in security intelligence investigations, then it will be because of classic crown immunity rules.  Now, we know that the police do not possess crown immunity for illegal conduct, done as part of their peace officer duties.  That is precisely why Parliament added the controversial s.25.1, carving out such immunity, to the Criminal Code. (Shockingly, the RCMP appears not to have employed properly the s.25.1 carve out in the Nuttall case, where officers were found to be engineering a terrorism plot. They were, therefore, exposed to potential culpability).
  • What has not been decided, as best I know, is whether CSIS enjoys crown immunity in their operations. I think they are likely in a different position than RCMP: police enjoy “police independence” and thus are legally distinguishable from the Crown in their conduct of criminal investigations. CSIS does not enjoy this independence, and so can be conflated with the Crown. (Saying more than this is a research project for which I currently have no time.)
  • But even assuming CSIS enjoys such crown immunity, it seems like the sort of thing that would extend to employees.  At a guess, it is much less likely it extends also to sources.  The prospect that sources are also covered becomes more likely (I suspect) if they are more than information sources: crown immunity seems more likely if they are actual agents acting at the direction of CSIS.  An agent is just that: someone who is not an employee but who is acting under the command and control of the government.
  • But if CSIS is directing agents (or undercover employees) to do things that break Canadian anti-terrorism law, that looks like the kind of thing that probably should be done as threat reduction, and not security intelligence. And so if it is done without the federal court warrant required for those threat reduction activities that break Canadian law, we will have an issue of whether CSIS acted legally under its legislation. Indeed, the very failure to obtain a warrant here seems likely to be precisely the excess that would strip the crown immunity from the agent/employee anyway, because it does not comply with statutory immunity provision. (See para. 37 et seq).
  • And on top of that: if a person is a CSIS agent/employee, and if they are in fact committing a criminal offence -- perhaps in some sort of agent provocateur role – then even if they were immune under crown immunity, there are legal troubles. The fact of the illegality becomes critically material if criminal charges are later brought against one of the CSIS targets.  Specifically, we could have failed prosecutions against such targets when, a la Nuttall, a court concludes there has been entrapment or some other abuse of process associated with the CSIS conduct.

All of this to say that SIRC’s cryptic statement in its recent report raises a host of immediate legal issues – and we shall never know how they are resolved even though they are elemental to the rule of law, and possibly prejudicial to our ability to prosecute foreign fighters if the legal advice and subsequent CSIS conduct is amiss.