Canadian Security Intelligence Service Research Articles

THREE ASPECTS OF ACCOUNTABILITY FOR THE CANADIAN INTELLIGENCE PUBLIC SERVICE

On November 17, 2023, a Senior CSIS Executive presented Three Aspects of Accountability for the Canadian Public Service for this year’s West Coast Security Conference. The presentation was followed by a question-and-answer period with questions from the audience and CASIS Vancouver Executives. The key points discussed were the themes of accountability in the Canadian Security Intelligence Service in relation to the federal court, to Canadian citizens, and within the governmental and academic spheres.
 
 Received: 01-07-2024
 Revised: 01-30-2024

THREAT RESILIENCE IN THE REALM OF MISINFORMATION, DISINFORMATION, AND TRUST

On November 21, 2022, Phil Gratton, an executive public servant at the Canadian Security Intelligence Service (CSIS), currently on interchange as Associate Faculty with the Canada School of Public Service’s (CSPS) Digital Academy, gave a presentation on Threat Resilience in the Realm of Misinformation, Disinformation, and Trust at the 2022 West Coast Security Conference. The presentation was followed by a question-and-answer period with questions from the audience and CASIS-Vancouver executives. The key points discussed were the harms caused by state-sponsored disinformation campaigns, the use of artificial intelligence (AI) to facilitate and counter the spread of disinformation, as well as the importance of critical thinking and collaborative response to build resilience against these threats.

LEVERAGING DIVERSITY, EQUALITY, AND INCLUSION (DEI) IN MEETING MODERN INTELLIGENCE CHALLENGES

On November 22, 2022, Ms. Michelle Tessier, Deputy Director of Operations, Canadian Security Intelligence Service (CSIS), presented on Leveraging Diversity, Equity, and Inclusion (DEI) in Meeting Modern Intelligence Challenges. The presentation was followed by a question-and-answer period with questions from the audience and CASIS Vancouver executives. The key points discussed were the ways in which DEI strategy helps the government of Canada deliver programs and services to all Canadians and examples of steps taken to ensure the implementation of such strategy. Received: 2022-12-10Revised: 2022-12-30

Leadership, Technology and National Security

On November 26, 2021, Mr. Phil Gratton, former DG in the Directorate of Technology for the Canadian Security Intelligence Service (CSIS) and current Associate Faculty at the Canada School of Public Service, presented on Leadership, Technology and National Security at the 2021 CASIS West Coast Security Conference. The presentation was followed by a question-and-answer period and a breakout room session with questions from the audience and CASIS Vancouver executives. The key point discussed was how leadership must adapt to best support its mission and technology workforce in the face of ever-evolving technological advancements in the realm of national security.

‘Within or outside Canada’: The Charter’s application to the extraterritorial activities of the Canadian Security Intelligence Service

Since the swift passage of the Anti-Terrorism Act in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take ‘reasonable and proportionate’ measures to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.

Chapter 5 – The Canadian Security Intelligence Service and the Toronto 18 Case

While it is well known that the Canadian Security Intelligence Service (CSIS) played a key role in the investigation of the Toronto 18 cases, these activities have been left out of the public record. To provide some context for the other contributions in this study, this chapter proceeds by describing the process by which CSIS conducts counter-terrorism investigations – from initial notification of the threat through to cooperating with the RCMP. Although there have been some changes since the mid-2000s, these processes largely remain in place today. Importantly, while the case of the Toronto 18 was seen as a huge success for Canada’s counter-terrorism capabilities at the time, it also shaped expectations regarding how future threats would be treated. Canadian national security would spend much of the five to seven years after the Toronto 18 arrests looking for the next such group, a threat that never really manifested. In this way, the Toronto 18 may have contributed to bias in understanding an evolving national security threat that was manifesting in the form of lone actors and extremist travel.

Chapter 8 – Improving the Intelligence to Evidence (I2E) Model in Canada

This chapter examines some of the key issues and challenges of the intelligence to evidence (I2E) process, mainly regarding the exchange of information between the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). For historical perspective, the authors cite findings from the 1981 McDonald Commission Report, concluding that subsequent events proved McDonald over-optimistic in terms of the expected level of cooperation and sharing of information between the new CSIS and the RCMP. The intervening years between the creation of CSIS in 1984 and the Toronto 18 case saw marginal progress towards improving inter-agency cooperation. Landmark judicial rulings, such as R v. Stinchcombe, only served to dampen any incentive to freely share information between the agencies and build an effective I2E operational model. The authors argue that the current I2E model, known as One Vision 2.0, developed in the years following the Toronto 18 case, while representing a notable improvement in the process, nevertheless falls short of achieving a robust framework. More recent improvements stemming from the joint CSIS/RCMP initiative “Midnight Horizon” are helpful but unlikely to move the needle substantially closer to the ideal. Pre-empting terrorist/hate-related attacks requires a more aggressive response than at present, one focused more on eliminating the threat through arrest and prosecution rather than lesser measures aimed at “threat reduction” or “threat containment.” To that end, this chapter offers some recommendations. The authors conclude that while CSIS and the RCMP have accomplished much towards improving the I2E process, there are clear limits to what they can achieve on their own in the absence of broader government action. Parliament can and must do more to champion needed legislative and policy changes to provide intelligence and law enforcement officials with the additional tools and resources they need to achieve a maximum level of security against terrorist and hate-inspired attacks.

Defending Democracy from Foreign Cyber Interference: The Role of Canadian Intelligence Agencies in the 2019 Federal Election

This chapter focuses on the role of Canada's intelligence agencies to defend against foreign interference in the 2019 Federal Election. It highlights the role of the Canadian Security Intelligence Service (CSIS or “the Service”), the Communications Security Establishment (CSE), and to a lesser extent the new Rapid Response Mechanism (RRM) housed at Global Affairs Canada (GAC) to identify and counter the threat of foreign cyber influence under their statutory mandates and as part of the newly formed Security and Intelligence Threats to Elections (SITE) Task Force. This chapter relies on open source information and documents obtained via access to information requests to detail the principal legal authorities through which Canadian intelligence agencies sought to defend campaigns and voters from foreign cyber influence, as well as critical election infrastructure from direct attacks. In doing so, this chapter raises questions about the appropriate role of intelligence officials and the Ministers responsible for their agencies when it comes to safeguarding Canadian elections. It also identifies how the Government of Canada sought to ensure that decisions made in the interest of national security were free from partisan interference, and suggests areas for improvement.

Archives, Open Government and National Security Balancing Concepts of Public Ownership with Security and Intelligence in Canada

ABSTRACT Starting in 1967, with the issuance of an Order-in-Council by Canada’s Privy Council, the concept of providing Canadians access to their Federal Government Records was promulgated through their National Archives (now Library and Archives Canada - LAC). In the intervening decades, LAC has reviewed millions of pages of Security and Intelligence Records and, whenever possible, released them. Now, as the Canadian Federal Government examines changes to the Access to Information Act, as well as changes to Canada’s National Security systems, there is a new commitment to National Security Transparency. The intent of this paper is to examine the historic provision of archival access to the records of Canada’s Federal Security and Intelligence Records, in particular to the archival records of the Canadian Security Intelligence Service (CSIS). Through a proper application of the terms of the Access to Information Act to the Canada’s Federal Security and Intelligence files, carried out in consultation with Canada’s intelligence community, Library and Archives Canada has embraced its responsibilities to Governmental Openness and the needs and requirements of National Security. In doing so, LAC has worked to balance  legislatively mandated commitment to chart a course between desirable accessibility and the operational needs of Canada’s Security/Intelligence community.

Gerrymandering the National Security Narrative: A Case Study of the Canadian Security Intelligence Service’s Handling of its Bulk Metadata Exploitation Program

In November of 2016, the Federal Court of Canada published a scathing ruling pertaining to some of the Canadian Security Intelligence Service’s (CSIS) big data surveillance activities. Among other charges of wrongdoing, the ruling accused the agency of not having been forthcoming with the Court about the existence of its “Operational Data Analysis Center” (ODAC), an advanced analytics bulk metadata exploitation program that had been operational since 2006. The ruling also revealed that a significant portion of the metadata collected by CSIS should not have been retained in ODAC, a practice that the ruling declared illegal. Drawing from the ruling, a series of classified CSIS documents obtained via requests made under the Access to Information Act, various public reports from both CSIS and the Security Intelligence Review Committee, as well as a Senate Committee hearing transcript, this article examines CSIS’s conduct, justifications, and statements relating to its bulk metadata retention activities spanning from the year of ODAC’s inception in 2006 to the publication of the ODAC ruling in 2016. The paper demonstrates how CSIS engaged in various forms of secrecy and how it successfully constructed and disseminated its own big data related language to effectively “gerrymander” the national security narrative, thereby ultimately ensuring its tight control over the knowledge that the Court would have of big data surveillance and CSIS’s engagement with it. This would enable the Service to keep its metadata exploitation program out of sight and operational for ten years until the Court ended up declaring a significant portion of ODAC illegal in 2016.

Twisted into knots: Canada’s challenges in lawful access to encrypted communications

This article addresses the Canadian law governing ‘lawful access’ to potentially encrypted data-in-motion; that is, communications done through electronic means. This article begins by outlining the core agencies responsible for counterterrorism investigations in Canada, and the recent public debate and government consultation on encryption. Next, we identify how older laws designed for a different era may be leveraged to force service and platform providers to assist law enforcement and the Canadian Security Intelligence Service by decrypting communications and data. We will also touch on the legal capacity of these organizations to develop their own ‘workarounds’, including the role of Canada’s signals intelligence agency, the Communications Security Establishment. Throughout, we highlight how Canada’s long-standing ‘intelligence to evidence’ problem affects and, arguably exacerbates, the encryption-prompted ‘going dark’ phenomenon and consequently impairs Canadian counterterrorism efforts. We predict legal reform resolving the ‘going dark’ issue will be impossible without modernization of Canada’s disclosure regime.

Twisted Into Knots: Canada’s Challenges in Lawful Access to Encrypted Communications

In 2016, Apple vs FBI case animated “going dark” (communications encryption) debate in United States. The Court battle between tech giant and most powerful law enforcement agency in world stemmed from a mass shooting in December 2015, that left 14 people dead. Meanwhile, as American agents worked to unlock shooter’s phone, prosecutors in Canada were seeking to convict seven men linked to Montreal mafia for 2011 abduction and murder of Sal the Ironworker Montagna, a member of New York’s Bonanno crime family. The evidence of men’s conspiracy consisted almost entirely of intercepted emails, chats, and encrypted BlackBerry Pin to Pin messages. Publicly divulging key would effectively render every BlackBerry user vulnerable to interception and endanger ongoing police investigations across country, if not world. Predictably, Crown dropped murder charges and accused plead guilty to significantly lesser offence of conspiracy to commit murder. Over next two years, Crown would stay charges against dozens of other men rounded up in same operation targeting Montreal organized crime; encryption key was never disclosed. In this manner, Mirarchi case encapsulates a quintessentially Canadian element of “going dark” debate: intelligence-to-evidence dilemma, and specifically, risk that sensitive technical means and methods may be disclosed in open court under Canada’s broad criminal trial disclosure rules. This article addresses Canadian law governing “lawful access” to potentially encrypted data-in-motion; that is, communications done through electronic means. This article begins by outlining core agencies responsible for counter-terrorism investigations in Canada, and recent public debate and government consultation on encryption. Next, we identify how older laws designed for a different era may be leveraged to force service and platform providers to assist law enforcement and Canadian Security Intelligence Service (CSIS) by decrypting communications and data. We will also touch on legal capacity of these organizations to develop their own “workarounds,” including role of Canada’s signal’s intelligence agency, Communications Security Establishment (CSE). Throughout, we will highlight how Canada’s longstanding intelligence to evidence problem effects and, arguably exacerbates, going dark phenomenon and consequently impairs Canadian counter-terrorism efforts. We predict legal reform resolving “going dark” issue will be impossible without modernization of Canada’s disclosure regime.

Building Haystacks: Information Retention and Data Exploitation by the Canadian Security Intelligence Service

This article examines the technical topic of CSIS’s modern data acquisition, retention, and exploitation, a matter not canvassed in the existing legal literature. As part of a special collection on the National Security Act (NSA 2017), it focuses on the policy and legal context driving the NSA 2017 amendments, relying on primary materials to memorialize this background. This article examines how CSIS has been pulled in divergent directions by its governing law, and sometimes a strained construal of those legal standards, toward controversial information retention practices. It argues that the tempered standards on acquisition, retention, and exploitation of non-threat-related information created by the NSA 2017 respond to civil liberties objections. The introduction of the “dataset” regime in the NSA 2017 may finally establish an equilibrium between too aggressive an information destruction standard that imperils due process and too constraining an information retention system that undermines CSIS’s legitimate intelligence functions. The article flags, however, areas of doubt, the resolution of which will have important implications for the constitutionality and legitimacy of the new system.

Omar Khadr, Guantánamo and carceral gastronomy

Taking its cue from Alexander Weheliye’s question ‘What does hunger outside the world of Man feel like?’ this essay examines the politics of hunger as exemplified in Omar Khadr’s refusal to eat in Guantánamo Bay prison during a series of interrogations in 2003 by the Canadian Security Intelligence Service. Drawing on Luc Côté and Patricio Henríquez’s documentary You Don’t Like the Truth: 4 Days Inside Guantánamo (2010), which uses the camera footage of these interrogations, the author locates Weheliye’s question in the context of Guantánamo to explore the political implications of what she calls carceral gastronomy, one that concerns how the imperial state and its functionaries mete out livability through the control and management of appetite. In this encounter between the state and the prisoner, viands serve a manifold function: mediating the relationship of power to those subjected to it; facilitating the emergence of bodies manageable through food; bringing out the colonial genealogies of the ‘War on Terror’; providing the means with which to resist the carceral regime; foregrounding the colonial life of food and feeding; and, finally, racialising the distribution of food.

Bill C-59 and the Judicialization of Intelligence Collection

Canada's Bill C-59 responds to quandaries common to democracies in the early part of the 21st century. Among these challenges: How broad a remit should intelligence services have to build pools of data in which to fish for threats? And how best can a liberal democracy structure its oversight and review institutions to guard against improper conduct by security and intelligence services in this new data-rich environment? This paper examines how C-59 proposes re-shaping the activities of both the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE) in fashions responding to these dilemmas. Specifically, it highlights C-59’s proposed changes to CSIS’s capacity to collect bulk data as part of its intelligence mandates, and also the new oversight system proposed for CSE’s foreign intelligence and cybersecurity regimes. The paper examines the objectives motivating both sets of changes, and suggests that in its architecture, C-59 tries to web together the challenges of intelligence in a technologically-sophisticated, information-rich environment, with privacy protections derived from a simpler age but updated to meet new demands.

Intelligence to Evidence in Civil and Criminal Proceedings: Response to August Consultation Paper

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor third party rule - something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the closed material proceeding (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

Staying Left of Bang: Reforming Canada's Approach to Anti-Terrorism Investigations

This article examines Canada’s approach to anti-terrorism investigations. Specifically, it critiques the tradition of “parallel” investigations run, respectively, by the Royal Canadian Mounted Police and the Canadian Security Intelligence Service. The article examines how this approach places a premium on bureaucratic “deconfliction” that is potentially unwieldy in a dynamic security environment. It examines the legal and operational impetus for “parallel” investigations, and specifically the “intelligence-to-evidence” conundrum. The article then describes how the United Kingdom has addressed similar concerns and reformed its terrorism investigations. Drawing on this UK experience, the article concludes with several suggestions for reform in Canada.

Chapter 3: Canada (From 'Comparative Counter-Terrorism Law')

This chapter sets out a general overview of key facets of Canada’s counter-terrorism law enacted between 2001 to 2015 and related case law. It addresses the definition of terrorism and new terrorism offences added to the Criminal Code in 2001; terrorism prosecutions and sentences; investigative powers of police and intelligence agencies (the Canadian Security Intelligence Service and the Canadian Security Establishment); the listing of terrorism offences or individuals; terrorism financing and related offences; immigration detention; the use of evidence obtained by torture; the role of the military and extra-territorial counter-terrorism activities; secrecy claims and evidence; and remedies for serious violations of human rights in the course of counter-terrorism. The chapter also contains a brief post-script addressing the content of bills C-44 (Protection of Canada from Terrorism Act) and C-51 (Anti-Terrorism Act, 2015).

Uneasy Alliances: A Look at the Right-Wing Extremist Movement in Canada

ABSTRACTDespite the Canadian Security Intelligence Service's recent concern with the growing threat from right-wing extremists nationwide, we have little contemporary scholarship on the far right movement in Canada and fewer attempts to systematically analyze their ideologies and activities. Drawing on a three-year study involving interviews with Canadian law enforcement officials, community organizations, and right-wing activists, as well as analyses of open source intelligence, this article examines the endogenous factors that facilitate and inhibit the right-wing extremist movement in Canada. Findings suggest that strengths and weaknesses of the groups themselves can be exploited as a means of debilitating them.

Bill C-51 Backgrounder #2: The Canadian Security Intelligence Service's Proposed Power to 'Reduce' Security Threats Through Conduct that May Violate the Law and Charter

If bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.” Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.The CSIS changes are dramatic, even radical. In 1984, parliamentarians granted CSIS a very broad mandate – found in the definition of “threat to the security of Canada” in s.2 of its Act – but were careful to accord it very limited powers. It has been an intelligence service – it collects and analyzes information and supplies assessments to the government.That will change in Bill C-51.The government proposes radically restructuring CSIS and turning it into a “kinetic” service taking physical action well beyond intelligence collection – and competent to act beyond the law and even the constitution. We doubt the legality of this proposal. Moreover, it is a rupture from the entire philosophy that animated the CSIS Act when it was introduced 30 years ago. The bill amounts to an open-ended authorization of clandestine powers whose proper and reasonable application will depend on perfect government judgment, tempered (in some cases) by superb judicial judgment in a problematic, secret proceeding. It violates, therefore, a cardinal principle we believe should be embedded in national security law: any law that grants powers (especially secret, difficult to review power) should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment.But whatever the truth as to whether these powers are constitutional or necessary, their introduction is irresponsible without a redoubled investment in our tattered accountability system. Anyone who has worked on accountability in the security sector knows that there is another core maxim in this area, when dealing with powerful, covert state agencies: “trust but verify”. We do not believe that that standard can be met at present, even without the new powers.Our background paper has two primary sections. In part I, we lay the factual foundation, describing what Bill C-51 (and the earlier Bill C-44, now before the Senate) would do to CSIS’s powers. We raise legal doubts about these new powers, focusing first on concerns about the scope of the new powers and second on the Federal Court warrant regime. We also briefly examine the question of CSIS accountability. Here, we raise (but do not address in full) broader questions of accountability that will figure prominently in a separate paper on this topic.In part 2, we name and briefly discuss a number of administration of justice and operational quandaries we see as possibly arising in relation to the new power.