The way CSIS applies for warrants undermines national security probes, report warns

The process through which Canada's spy agency applies for warrants is putting its national security investigations at risk, says a new report by an independent oversight agency.

The report by the National Security and Intelligence Review Agency (NSIRA), made public with redactions on Thursday, points to a troubled relationship between the intelligence service and the Department of Justice.

"This review found an intelligence service and its counsel who struggle to organize themselves in a manner that allows them to meet easily their legal obligations," it reads.

CSIS's mandate includes investigating suspected national security threats — like espionage, foreign interference and terrorism — and taking steps to reduce those threats. If those measures would contravene the Canadian Charter of Rights and Freedoms or any other Canadian law, CSIS is required to first obtain a warrant from a Federal Court judge.

The agency would need a warrant to, for example, intercept a target's communications.

The report's authors wrote that while safeguards in the warrant application process are essential, the current system is afflicted by excessive complexity and lacks clear lines of accountability.

The "warrant application process is preventing some collection activities from moving forward," says the report.

A 'culture of distrust'

Part of the problem, says the report, is that the "laborious" process through which CSIS seeks and receives advice from the Department of Justice on warrants has had a detrimental effect on CSIS operations.

NSIRA said CSIS needs quick responses when it's in the midst of an investigation — and the Department of Justice has struggled at times to provide timely and useful legal advice. 

The department provides CSIS with warrant advice using a "traffic light" system where a green risk rating represents a low legal risk to CSIS, a red rating represents a high legal risk and yellow represents an intermediate legal risk.

"Yellow light responses are reportedly the most common and the most frustrating for CSIS, especially when unaccompanied by discussions on how to mitigate the risk," said the report.

But the investigators also said that CSIS has not always shared relevant information with the federal department.

"The problems have resulted in a culture of distrust towards Justice counsel and a systemic reaction whereby CSIS sometimes avoids seeking legal advice," they wrote in the report.

In a joint media statement, Justice Minister David Lametti and Public Safety Minister Marco Mendicino said they accept "almost all of the recommendations" from the review "and are working hard to implement them."

"Both Justice Canada and CSIS take their responsibilities to Canadians very seriously. Extensive work to make necessary changes and improvements is already underway, and will continue," the statement reads.

The statement adds that the government has retained an adviser, former Supreme Court judge Ian Binnie, to help with implementing the recommendations at the Department of Justice.

CSIS doesn't prioritize warrant training

While warrants are the "lifeblood of CSIS's functions as an intelligence agency," the review also found CSIS has failed to make applying for those warrants a specialized trade within the agency that requires training, experience and investment — despite routinely being admonished by the Federal Court for omitting key details from warrant applications.

CSIS officers involved in the early stages of preparing warrant applications do not clearly understand the legal expectations attached to the duty of candour, said NSIRA.

The watchdog's investigators found that CSIS still struggles to ensure that all information speaking to the credibility of sources is properly included in warrant applications.

NSIRA said the agency's information management systems related to human sources are "deficient" and have led to important omissions.

CSIS's troubled relationship with the warrant process is far from new.

Back in 1987, the very first head of CSIS — Ted Finn — had to resign after the case against Harjit Singh Atwal, accused of conspiring to murder a B.C. cabinet minister, was thrown out due to a faulty wiretap warrant. 

Despite changes since then, CSIS continues to experience warrant errors. In 2004, for example, CSIS had to tell the Federal Court that its warrant application contained inaccurate information.

The next year, the Federal Court dismissed a CSIS warrant application after it determined that some of the information in the affidavit was misleading and failed to disclose material facts.

Despite promises of reform, Thursday's report concluded the problems are deeply rooted in CSIS.

"NSIRA heard repeated concerns from interviewees that the problems stemming from governance, systemic and cultural challenges put at risk the ability of the intelligence service to meet the mandate Parliament has assigned to it," the watchdog wrote in its report.

"Addressing these challenges is in the urgent public interest."

NSIRA defines "systemic" issues as those affecting the organization as a whole, not those stemming from individuals. It defines "cultural" issues as those that have emerged over time within an organization as its members learned to work in a particular way through a shared understanding.

Low morale reported at spy agency

Thursday's report emerged from a 2020 Federal Court decision that found that CSIS had breached its "duty of candour" by failing to report that it relied on information collected illegally to support warrants in an extremism investigation.

Soon after, NSIRA launched a review looking at how the agency approaches warrant applications. It conducted dozens of confidential interviews with Department of Justice and CSIS employees.

The reviewers repeatedly heard concerns from interviewees about cultural problems facing the agency, often stemming from frustrations with the warrant application system.

"NSIRA heard and read much about very low morale at CSIS," said the report.

"Morale is affected when a warrant acquisition system repeatedly prevents CSIS officers from performing their mandated duties, and is the source of regular reputational crises stemming from failures to meet the duty of candour." 

Another one of the issues raised during the interviews was inadequate training for intelligence officers.

"CSIS acknowledges that it is currently not a learning organization and does not have a learning culture," said the report.

"There are too few training opportunities required to sustain a modern professional intelligence service operating in a complex environment."

In the end, NSIRA made 20 recommendations for CSIS and the departments of Justice and Public Safety.

The reports' authors said NSIRA will launch a followup review within two years to see if anything has changed.