Federal Court criticizes CSIS for court orders and for failing to keep the court informed


The Federal Court is urging the Canadian Security Intelligence Service to “do better” after reprimanding the spy agency over concerns related to court orders and the release of information about Canadians.

The ruling by Chief Justice Paul Crampton is the latest expression of the court’s discontent with CSIS over its obligation to keep the court informed of issues in a timely manner.

A public version of the top-secret October 2023 decision was released on Tuesday.

The ruling describes how CSIS relied on the Communications Security Establishment, Canada’s cyberespionage agency, to help carry out court-approved orders to gather information.

It later emerged, through a spy surveillance report, that CSE had revealed information about Canadians in a way that contradicted key principles that CSIS had previously outlined to the court.

The information apparently concerned Canadian officials and other sensitive groups, although Crampton’s ruling does not elaborate.

The judge says CSIS must ensure that such third parties, like the CSE, meet the same standards that apply to the intelligence service itself.

“The CSE did not apply those same strict standards,” Crampton wrote. In turn, the cyberespionage agency’s policies and practices led to the release of information about Canadians that would not have complied with CSIS’s internal policies and procedures.

CSIS is responsible for all information collected pursuant to court orders, the ruling says.

As a result, CSIS has a duty to be “proactive and diligent” to ensure that such information is treated in accordance with the relevant order, any statements previously made to the court, and the laws of Canada, Crampton wrote.

This remains true when CSIS requests assistance from others, including CSE, to execute orders, he said.

“CSIS’s failure to meet its obligations in this regard appears to have been an institutional failure, rather than a failure of any particular individual or individuals,” Crampton added.

“This failure strikes at the heart of CSIS’s relationship with the court. It is a matter of institutional trust. It is up to CSIS to continue its recent efforts to improve.”

The deficiency was exacerbated when CSIS failed to inform the court as soon as possible of what it had learned from the spy watchdog, the National Security and Intelligence Review Agency, according to the ruling.

Despite having provided assurances to the court in this regard in the past, CSIS has brought such information to the court’s attention “long after it should have, on more than one occasion,” Crampton added.

“Meanwhile, the court continued to issue orders, without being aware of important information that was relevant to its consideration of those orders. Once again, this is a matter of institutional trust.”

This report by The Canadian Press was first published Jan. 30, 2024.

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