Actions taken by CSIS to ensure it meets its obligations to the Federal Court, the Government of Canada and all Canadians
On May 15, 2020, the Federal Court found that the Canadian Security Intelligence Service (CSIS) failed in fulfilling its duty of candour obligations to the Court when it failed to proactively identify and disclose all relevant facts in support of warrant applications.
As acknowledged in the Federal Court ruling, CSIS had already begun implementing concrete measures to address concerns raised by the Federal Court. Some of these measures include:
- We proactively commissioned a third party to conduct a review and provide recommendations to improve the manner in which we meet our disclosure obligations to the Federal Court. The results of the review conducted by former Deputy Minister of Justice and Deputy Attorney General Morris Rosenberg were provided to the Director in March 2020.
- We created a dedicated Affiant Unit that is specifically charged with ensuring our disclosure obligations to the Federal Court are well understood and met during the course of national security investigations.
- The Government of Canada recognized the need to address these issues through Bill C-59, the National Security Act, 2017. This Act provides a limited justification framework for activities that would otherwise constitute offences, modelled on the framework already in place for Canadian law enforcement.
- We are providing additional training to enhance our employees’ understanding of CSIS’s role and obligations under the National Security Act 2017. This training also aims to ensure that decisions taken in the course of a national security investigation are in line with our obligations to the Federal Court, the Government of Canada and all Canadians.
- The Government is investing an additional $32 million over the next 5 years that began in 2019-2020, and $5 million ongoing to significantly bolster CSIS’ compliance protocols.
- In support of a new Ministerial Direction for Accountability issued on September 10, 2019, CSIS along with Public Safety has developed a Public Safety-CSIS Framework with the overarching goal of ensuring transparency and accountability, including the Service’s duty of candour to the Federal Court.
- In addition, pursuant to s.20(2) of the CSIS Act, CSIS submitted a report to the Minister of Public Safety and Emergency Preparedness based on a comprehensive review of internal decisions. The report finds that the ultimate accountability for approving high risk operations rested with the most senior of CSIS leadership. This information, including all of the supporting documentation has been provided to the Attorney General of Canada and the National Security and Intelligence Review Agency (NSIRA) as is required by the CSIS Act. On June 17, 2020, the Minister received notification from the Attorney General of Canada that prosecution in this matter is not in the public interest and that no referral for prosecution will be made.
We are committed to continue working with Public Safety Canada, Justice Canada, the National Security and Intelligence Review Agency, the National Security and Intelligence Committee of Parliamentarians and welcome their continued insight to ensure that all of these steps address the concerns raised by the Federal Court.
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