Statement by the Director of the Canadian Security Intelligence Service (CSIS), David Vigneault in response to a public ruling by the Federal Court

Ottawa, July 16, 2020 – The Director of the Canadian Security Intelligence Service (CSIS), David Vigneault, issued the following statement today regarding a public ruling by the Federal Court:

“Today, the Federal Court released a public decision finding that institutional failings by CSIS and the Department of Justice led to CSIS having failed in fulfilling its duty of candour obligations to the Court. I take the Court’s findings very seriously and am committed to ensuring that CSIS fully understands our obligations to the Court. This must take place at both the institutional and individual level.

CSIS operations are vital to our nation’s security, and the Court’s role in authorizing warrants is a key element of our accountability framework. The Court enables us to conduct our investigations, aligned with the rights and freedoms we all enjoy as Canadians. We fully respect the rule of law, and the critical role the Court plays, and we know we must do everything we can to ensure that the Court has full confidence in us.

The Canadian Security Intelligence Service’s mission is to keep Canada and Canadians safe from national security threats such as acts of espionage, foreign interference, and terrorism.

In doing so, we often rely on the assistance of human sources who have access to individuals or organizations that pose a threat to our country, and who may put themselves at great risk to protect Canada and Canadian interests. At times, we’re required to pay these sources for information or offer other logistical support, such as providing a cell phone to help them carry out their work. Let me be clear, the types of activities that are in question in this decision are representative of routine, bread and butter practices used by allied intelligence agencies around the world.

While it was never the intent that anti-terror provisions in the Criminal Code would capture these routine activities carried out in furtherance of our mandate, they may nonetheless constitute offences under the Criminal Code. 

For several years, CSIS relied on the legal doctrine of Crown immunity as a defence from criminal liability when engaging in these activities. However, as outlined in the decision, CSIS’ ability to rely on this defence and the legal advice relating to it evolved and changed over time.  

In January 2019, CSIS and Justice Canada determined that we could no longer rely on Crown immunity as a defence. As a result, I immediately directed that these activities be suspended until Bill C-59 passed, and we informed the Court and our national security review bodies.

This was not a decision that I took lightly. CSIS employees have always acted in good faith with the clear mission of protecting Canadians always top of mind. To that end, CSIS employees demonstrated resilience and innovation, working to ensure public safety was not at risk at this time.  I am deeply proud of the extraordinary efforts they undertook. The Court recognized in the decision that ‘the successful fulfillment of the Service’s counter-terrorism mandate is challenging and the consequences of failure are significant’.

The National Security Act, 2017 has addressed this issue by providing CSIS with the ability to conduct these activities within a clear legal framework, modelled on that already in place for law enforcement.

But beyond that solution in law, we have taken a significant number of concrete actions to address the Court’s concerns over our lack of candour in this matter. All of these are underway. The implementation of our plan will require dedicated effort and time, though we are fully aware that this is a matter of great urgency in a complex threat environment. Among these actions:

In response to the Court’s concerns, I commissioned a review of CSIS’s duty of candour obligations. We are currently in the process of implementing changes in line with the recommendations of this review; properly resourced with a dedicated project team.

We have created a dedicated unit specifically charged with ensuring our disclosure obligations to the Federal Court are well understood and met during the course of national security investigations.

We have delivered extensive training, and are continuing to ensure that all designated employees have a full understanding of their obligations under the justification framework provided for by the National Security Act, 2017.

We have developed a Public Safety-CSIS Framework with the overarching goal of ensuring transparency and accountability in support of recent Ministerial Direction for Accountability.

We will continue to work with Public Safety Canada, the Department of Justice, the National Security and Intelligence Review Agency, the National Security and Intelligence Committee of Parliamentarians, and the Intelligence Commissioner and welcome their continued insight to ensure that the concerns raised by the Federal Court are addressed.

The threat environment we face today and in the future requires that we have the tools and authorities required of a modern intelligence agency. This work is never finished. Keeping pace with changes in our environment with constant review of our legal authorities will ensure that we can continue to fulfill our mandate of keeping Canada and Canadians safe – and do so in a way that is consistent with Canada’s values and the trust that Canadians place in us.

I would like to reiterate both my commitment to addressing the Court’s concerns, and my pride in the women and men of CSIS who work tirelessly to protect Canada and Canadian interests.”

Related links

• Actions taken by CSIS to ensure it meets its obligations to the Federal Court, the Government of Canada and all Canadians
• What are activities that would otherwise constitute offences and why does CSIS need to engage in them?