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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Latest Book: Available from Irwin Law in April 2018.

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.

Monday
Oct032016

Assessing CSIS's new Bill C-51 "threat reduction" powers: Observations on the SIRC report

Last week, the Security Intelligence Review Committee (SIRC) issued its annual report – the first covering a period during which C-51 was in effect. That report includes an initial assessment of CSIS’s “threat reduction” activities.

What is Threat Reduction?

“Threat reduction” refers to the new powers Bill C-51 gave CSIS to take “measure” to reduce threats to the security of Canada. With Bill C-51, CSIS is now expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.”

The only categorical restriction on CSIS’s threat reduction powers is that such measures must not intentionally or by criminal negligence cause death or bodily harm, violate sexual integrity, or willfully obstruct justice.[1] CSIS must also believe that the measures are “reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.”

Where authorized by Federal Court warrant, the CSIS “measures” may even “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law.” Judges must determine that such violations are reasonable and proportional when issuing the warrant.

Key Concerns

Summarized briefly, Kent Roach and I have urged that these new powers suffer from two overarching flaws:

  1. First, their outer limit is too extreme, especially given that we are talking about covert conduct intended never to be assessed in open court. Particularly egregious (and in our view, unconstitutional) is the notion that a warrant can authorize a Charter breach. (Such a supposition is inconsistent both with the nature and manner of conventional search and arrest warrants, and the workings of section 1 of the Charter.)
  2. Second, authorizing CSIS to engage in threat disruption compounds the risk of “confliction” between police and CSIS. CSIS threat reduction under Bill C-51 preserves the historical distance between police and CSIS, allowing CSIS to exercise parallel powers outside the regular legal system, potentially in violation of the regular law and constitutionalized human rights. We have argued repeatedly that the logic of Bill C-51’s threat reduction powers is driven by a steady unwillingness to web more closely police and CSIS anti-terrorism, largely because of our unwillingness/inability (depending on to whom you speak) to address the “intelligence-to-evidence” conundrum. We believe that the RCMP/CSIS parallel investigation approach applied to threat reduction is both unsustainable, and potentially dangerous as it encourages the fallacy that Canada can disrupt – in the sense of temporarily interrupt – threats without skillful deployment of criminal justice tools. This raises the prospect that Canada will be drawn into a system of whack-a-mole disruption with no real end-game.

SIRC on Threat Reduction

SIRC’s job is not (and never has been) to assess the wisdom of the laws governing CSIS. But its report is helpful, nevertheless. The SIRC report suggests that problem number 1 has yet to arise because CSIS has opted for abstinence in relation to the extremes its new powers permit. This, of course, is a good thing – and if anything reaffirms our view that CSIS does not need a law that permits such extremes, and indeed those extremes are not echoed in jurisdictions that the government says it is emulating (like the United Kingdom, discussed below).

As to problem 2, the SIRC report points to prudential measures the minister of public safety and CSIS have put into place to guard against road collisions. This is a positive development – and the revamped CSIS/RCMP protocol, One Vision 2.0, includes promising language about preemptive notification by CSIS to the RCMP of threat reduction activities, and then a coordinated decision-making process. 

And there are elemental standards about maintaining records, since the target of the threat reduction activities may ultimately become the subject of a criminal prosecution. Again, this is positive. A patchy or problematic paper trail or one crafted without attention to disclosure obligations is exactly the sort of thing that would be instant fodder for a disclosure dispute in court, and possibly the genesis for an abuse of process holding by the judge, cratering the case. 

So CSIS is apparently coming around to the view that, in relation to threat reduction especially, it must conduct itself with at least some consideration to the downstream impact on criminal prosecutions. That is, it is in the evidence business.  

How this will work at the tactical level is, however, a mystery – that material is redacted from the copy of the One Vision 2.0 released under Access to Information. Tactical level deconfliction is where the risk of things going amiss will be higher – the Nuttall matter is an illustration of how complicated the RCMP/CSIS interface can be and then how ill-considered RCMP tactical level decision-making can scupper a criminal case.

We must also be conscious that partially secret internal directives come and go, and have come and gone without anyone outside government knowing it.

Next Steps

On top of renovation to roll back the extremes of the new CSIS powers, we support, therefore, entrenching into law a strong criminal justice orientation in the decision-making around threat reduction. This could be accomplished by strengthening the language in the C-51 amended CSIS Act. That language currently indicates that threat reduction must be prefaced by consideration “the reasonable availability of other means to reduce the threat”. The issue, properly conceived, is not whether CSIS itself has other means; the issue is whether other government agencies – and specifically the police – are better positioned to reduce the threat. Language could easily be added that obliges CSIS to take close account and orient its efforts in support of the sort of criminal justice tools. Lawful disruption supportive of criminal justice approaches should be the default, with any departures carefully circumscribed.

Indeed, we note with interest that MI5 (CSIS’s UK analogue and an agency whose conduct the government repeatedly invoked in defence of C-51’s changes) is all about disruption through criminal justice tools. MI5 uses the term “disruption” to describe “actions we take to manage risks posed by [Subjects of Interest] or networks.”[2] These take the form of “short term tactical disruptions (e.g., prosecution for road tax evasion) to major covert operational activities aimed at arresting and imprisoning an individual”.[3] Critically, therefore, disruption in the UK context appears to be different from CSIS threat reduction powers: MI5 disruption is not a parallel system of state power, exercised outside the confines of the regular law by a clandestine agency. Instead, it is closely linked to law enforcement.  As described by the UK Parliament’s Intelligence and Security Committee, a specialized oversight body:

MI5 and the police work closely together when considering potential disruption opportunities. Usually MI5 will request that the police provide support through a-pointing a Senior Investigating Officer (SIO) who will assist in the management of the investigation, lead the police interaction and develop a joint tactical strategy with MI5. This management process is then usually formalized through a Joint Operational Team (JOT), comprising an MI5 lead, police SIO and specialists from MI5, the police or any other relevant agency.[4]

Put another way, disruption for MI5 means working closely with police and disrupting security threats through use of the law, especially criminal justice.  Of note, the close MI5/police relationship has sometimes been credited with the United Kingdom’s comparative success since 7/7 in staving off major terror attacks.

Codifying this approach in the CSIS Act (along with serious progress in solving intelligence-to-evidence) would go a considerable distance in relieving concern number 2, noted above, and would facilitate important efforts to legislatively roll-back the extremes noted in concern number 1.

 


[1]           CSIS Act, ss 12.1 and 12.2.

[2]           UK Intelligence and Security Committee, Report on the intelligence related to the murder of Fusilier Lee Rigby (25 November 2014) at 47, online: http://isc.independent.gov.uk/files/20141125_ISC_Woolwich_Report(website).pdf.

[3]           Ibid.

[4]           Ibid.