Federal Court criticizes CSIS over judicial warrants, failure to keep court informed

OTTAWA — The Federal Court is urging the Canadian Security Intelligence Service to “do better” after chastising the spy agency over concerns related to judicial warrants and the disclosure of information about Canadians.

The ruling from Federal Court Chief Justice Paul Crampton is the court’s latest expression of displeasure with CSIS about its obligation to keep the court informed of problems in a timely way. 

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

The ruling describes how CSIS relied on the Communications Security Establishment, Canada’s cyberspy agency, to help execute court-approved warrants to collect information. 

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

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

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

“CSE did not apply those same, stringent, standards,” Crampton wrote. In turn, the cyberspy agency’s policies and practices led to the disclosure of information about Canadians that would not have met CSIS’s internal policies and procedures.

CSIS is responsible and accountable for all information collected pursuant to the court’s warrants, the ruling says. 

As a result, CSIS is duty-bound to be “proactive and diligent” in ensuring that such information is treated in accordance with the relevant warrant, any representations previously made to the court and the laws of Canada, Crampton wrote.

This remains true when CSIS engages the assistance of others, including the CSE, in executing the warrants, he said.

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

“This failing goes to the heart of CSIS’s relationship with the court. It is a matter of institutional trust. It is incumbent upon CSIS to continue its recent efforts to do better.”

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

Despite having provided past assurances to the court in this regard, CSIS has drawn such information to the attention of the court “well after it ought to have done so, on more than one occasion,” Crampton added.

“In the meantime, the court continued to issue warrants, unaware of important information that was relevant to its consideration of those warrants. Once again, this is a matter of institutional trust.”

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

Jim Bronskill, The Canadian Press