2021 FCA 92, 2021 FCA 92

TOP SECRET A-150-20 2021 FCA 92 IN THE MATTER OF an application by [***] for warrants pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act , R.S.C. 1985, c. C-23 and IN THE MATTER OF Islamist Terrorism, [***] Indexed as: Canadian Security Intelligence Service Act (CA) (Re) Federal Court of Appeal, de Montigny, Laskin and Mactavish JJ.A.—Ottawa, February 9; May 12, 2021. Editor’s Note: Portions redacted by the Court are indicated by [***].

Security Intelligence — Appeal from Federal Court decision concluding that Canadian Security Intelligence Service (Service) breached duty of candour owed to Court in context of ex parte warrant application — Service seeking to obtain information with respect to threat posed by Canadians travelling to fight for Islamist groups — Paying individual known to be facilitating or carrying out terrorism — Bringing warrant application before Federal Court under Canadian Security Intelligence Service Act ( Act ), ss. 12 , 21 — Testifying that aware those payments possibly illegal — Legal issues raised by warrant application including whether Service having duty to disclose possible contravention to Federal Court in context of warrant applications, source of that duty — Counsel for Attorney General conceding breach of duty of candour having occurred in three files — Federal Court finding Service breached duty of candour by failing to: (1) disclose that some information obtained using methods violating terrorist financing provisions; (2) seek waiver of solicitor-client privilege that attached to legal advice with respect to legality of collection methods — Attorney General contending that Federal Court erred in finding that counsel for Service having duty to proactively seek waiver of solicitor-client privilege — Whether Federal Court erred in finding that Service breached duty of candour owed to Court — Service not breaching duty of candour owed to Court — No evidence supporting Federal Court’s finding — All material facts disclosed — Legal issues of concern also appropriately flagged — Federal Court prompted to conclude that Service breached its duty of candour because of its failure to recognize issue of illegality, raise it with Court — Federal Court entitled to come to that conclusion with respect to earlier warrant application, but erred in applying same conclusion to warrant application in present case — Federal Court wrong to infer that duty of candour requiring counsel to appear on behalf of Service to seek waiver of solicitor-client privilege prior to appearing before Court — Waiving solicitor-privilege as quid pro quo for asking Court to make exceptional ruling, admit illegally-gathered evidence in support of warrant request unjustifiable, dangerous incursion into solicitor-client privilege — Requiring counsel to seek waiver risking disincentive for Service to seek candid legal advice — This antithetical to preservation of rule of law in context of intelligence activities — Solicitor-client privilege subject to few exceptions — Parliament having to abrogate or curtail privilege in clear, precise, unequivocal language — Service not deemed to have voluntarily waived solicitor-client privilege merely by relying upon illegally gathered evidence in support of its warrant application — Damage to rule of law worse if Service routinely required to disclose its legal advice rather than being allowed to rely on privilege — Service must be able to seek frank legal advice — Courts should not peek behind veil of solicitor-client privilege to assess Service’s state of mind — Appeal allowed.

Barristers and Solicitors — Solicitor-client privilege — Federal Court concluding that Canadian Security Intelligence Service (Service) breached duty of candour owed to Court in context of ex parte warrant application by failing to seek waiver of solicitor-client privilege that attached to legal advice with respect to legality of collection methods — Federal Court wrong to infer that duty of candour requiring counsel to appear on behalf of Service to seek waiver of solicitor-client privilege prior to appearing before Court — Waiving solicitor- privilege as quid pro quo for asking Court to make exceptional ruling, admit illegally-gathered evidence in support of warrant request unjustifiable, dangerous incursion into solicitor-client privilege — Requiring counsel to seek waiver risking disincentive for Service to seek candid legal advice — This antithetical to preservation of rule of law in context of intelligence activities — Solicitor-client privilege subject to few exceptions — Parliament having to abrogate or curtail privilege in clear, precise, unequivocal language — Service not deemed to have voluntarily waived solicitor-client privilege merely by relying upon illegally gathered evidence in support of its warrant application — Damage to rule of law worse if Service routinely required to disclose its legal advice rather than being allowed to rely on privilege — Service must be able to seek frank legal advice — Courts should not peek behind veil of solicitor-client privilege to assess Service’s state of mind.

This was an appeal from a Federal Court decision concluding that the Canadian Security Intelligence Service (the Service) had breached the duty of candour owed to the Court in the context of an ex parte warrant application. The Service has for a number of years sought to obtain information with respect to the threat to the security of Canada posed by Canadians who have travelled to fight for Islamist groups. As part of its continuing efforts to obtain such information, the Service conducted an investigation during which it paid an individual known to be facilitating or carrying out terrorism.

In 2018, the Service brought a warrant application before the Federal Court under sections 12 and 21 of the Canadian Security Intelligence Service Act ( Act ). The question of the legality of these payments was raised at the hearing of that application. The Federal Court, however, issued the

warrants as requested. The Service later brought a fresh warrant application before the Federal Court to address errors and omissions in the record. The Service testified that it was aware that paying money to an individual who was engaged in terrorist activity “could be viewed” as being illegal, and that it had “very serious implications”.

The Federal Court worked with the parties to define the legal issues raised by the warrant application, including whether the Service had a duty to disclose a possible contravention of the law to the Federal Court, including a potential breach of the Criminal Code , in the context of warrant applications, and the source of that duty. During an en banc hearing of the designated judges of the Federal Court in February 2019, counsel for the Attorney General conceded that there had been a breach of the duty of candour in three files.

The Federal Court concluded that the Service had breached the duty of candour that it owed to the Court based on its finding that the Service had failed to disclose that some of the information on which it relied in support of its warrant application had been obtained using methods that the Service knew likely violated the terrorist financing provisions of the Criminal Code , in particular

section 83.03 of the Criminal Code . The Federal Court observed that such “institutional failures” suggested that it could not rely on the Service representatives appearing before it to be candid. The Federal Court found that whether the Service had illegally collected information that was being relied on to support a warrant application was highly relevant to the Court’s assessment of that information, and to the ultimate exercise of the Court’s discretion to grant or refuse the warrants.

It also found, inter alia , that the Service counsel breached the duty of candour owed to the Court by failing to seek a waiver of the solicitor-client privilege that attached to the legal advice that had been obtained by the Service with respect to the legality of certain collection methods and the unavailability of the Crown immunity defence.

As to the causes of the breach of the duty of candour, the Federal Court found that the breach was “symptomatic of broader, ongoing issues relating to the Service’s organizational and governance structure and perhaps institutional culture.” The Federal Court concluded by addressing the factors that it should consider in determining whether information connected to illegal activity should be admitted in support of a warrant application: the seriousness of the illegal activity; fairness; and the societal interest.

The Attorney General challenged the Federal Court’s finding that the Service had breached its duty of candour in failing to identify and disclose that information that was being relied upon had likely been derived from illegal activities. The Attorney General further contended that the Federal Court erred in finding that in the “unique circumstances” of this case, counsel for the Service had a duty to proactively seek a waiver of the solicitor-client privilege. The overarching issue was whether the Federal Court erred in finding that the Service had breached the duty of candour that it owed to the Court.

Held , the appeal should be allowed. The Service did not breach the duty of candour it owed to the Court. When the Service seeks a warrant pursuant to

section 21 of the Act , all material information should be disclosed. As a matter of law, information is material if it is relevant to the determination a judge must make in deciding whether to issue a warrant, and if so, on what terms. Material facts will be those that may be relevant to a designated judge in determining whether the criteria set forth in paragraphs 21(2)(

a) and (

b) have been met. It is therefore incumbent upon counsel and affiants appearing on behalf of the Service to provide every piece of information in their possession that could inform the judge’s determinations with respect to both types of findings. The Federal Court’s finding that the duty of candour was breached by the Service in this particular application was not supported by the evidence. Not only were all the material facts disclosed, but the legal issues that could be of concern to the Court were also appropriately flagged.

In light of all the evidence and of the fact that the required affiants appeared voluntarily before the Court without any subpoenas being issued, it was difficult to say that the Service was not forthcoming or that it did not disclose all the material facts regarding the potentially unlawful activities from which the information supporting the application originated. It appears that what prompted the Federal Court to conclude that the Service breached its duty of candour was its failure to recognize the issue of illegality and to raise it with the Court.

It was difficult to conceive how it could be said that the Service breached its duty of candour in failing to proactively identify and disclose its use of information likely derived from illegal activities in support of its application in different files. The Federal Court was obviously entitled to come to that conclusion with respect to an earlier application, but it was a palpable and overriding error in effect to amalgamate the two applications and to apply the same conclusion to the application herein. It is uncontroversial that the rule of law must be observed in all security operations.

What was novel, however, was the inference drawn by the Federal Court that the duty of candour, as a corollary to the respect for the rule of law, necessarily required counsel appearing on behalf of the Service to seek a waiver of solicitor-client privilege prior to appearing before the Court. This would permit counsel to inform the Court that the Service was aware of the illegal character of its collection activities based on the legal advice it had received.

Waiving solicitor-privilege as the quid pro quo for asking the Court to make an exceptional ruling and to admit illegally-gathered evidence in support of a warrant request would result in an unjustifiable and dangerous incursion into the solicitor-client privilege. Requiring counsel to seek a waiver from the Service relating to the legal advice it received concerning the potential illegality of its collection activities, even in what the Federal Court presented as “unique circumstances”, risks creating a disincentive for the Service to seek candid legal advice.

This is antithetical to the preservation of the rule of law in the context of intelligence activities. Absent a valid waiver, the solicitor-client privilege is subject to very few exceptions. If Parliament seeks to abrogate or curtail the privilege, it must do so in clear, precise and unequivocal language. The Service should not be deemed to have voluntarily waived the solicitor-client privilege merely by relying upon illegally gathered evidence in support of its warrant application.

It could not be said that the decision below did not involve an abrogation of the solicitor-client privilege because the Service always has a choice either not to use the illegally obtained evidence or to disclose the legal advice should it wish to use it. Such a proposition would bring to naught the privilege and deprive the Service of the protection of its solicitor-client communications. The damage to the rule of law could be much worse if the Service was routinely required to disclose its legal advice rather than being allowed to rely on the privilege and to resist any attempt to access that advice.

The Service must be able to seek frank legal advice before embarking on any investigative operation that is often of the most sensitive nature. In the absence of exceptional circumstances, courts should not be able to peek behind the veil of solicitor-client privilege to assess the Service’s state of mind in conducting its operations, even if it would be relevant to the determination to be made.

This is not to say that the Service’s state of mind is to be left out of the equation and should not be considered in assessing the seriousness of the illegality; only that it should be evaluated without relying on legal advice, admittedly on the basis of other, more indirect evidence. The Service’s decision to waive privilege in this particular file was not meant to be a statement of principle for the future. The Federal Court’s judgment that the Service breached the duty of candour was set aside. STATUTES AND REGULATIONS CITED

Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 7, 8, 24(2). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 12, 16, 21. Criminal Code, R.S.C., 1985, c. C-46, ss. 83.03, 185, 196, 490. CASES CITED APPLIED: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. CONSIDERED: X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, (1999), 171 D.L.R. (4th) 193;Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; X (Re), 2013 FC 1275, [2015] 1 F.C.R. 635, affd 2014 FCA 249,[2015] 1 F.C.R. 684; R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Grant, (SCC), [1993] 3 S.C.R. 223, [1993] 8W.W.R. 257; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; Smith v. Jones, (SCC), [1999] 1 S.C.R. 455, (1999), 169D.L.R. (4th) 385; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. National Post, 2010SCC 16, [2010] 1 S.C.R. 477; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R.555; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Three Rivers District Council & Ors v. Bank of England, [2004] UKHL 48;Stevens v.

Canada (Prime Minister), (FCA), [1998] 4 F.C. 89, (1998), 161 D.L.R. (4th) 85 (C.A.); Waterford v.Australia (1987), 163 C.L.R. 54 (H.C. Aust.); R. v. Ahmad (2008), (ON SC), 59 C.R. (6th) 308, 77 W.C.B. (2d) 804(Ont. Sup. C.). REFERRED TO: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R.253; R. v. Land (1990), (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.J.); R. v. Lee, 2007 ABQB 767, [2008] 8 W.W.R.317; R. v. Ebanks, [2007] O.J. No. 2412 (QL) (S.C.J.); Roofmart Ontario Inc. v.

Canada (National Revenue), 2020 FCA 85, 448 D.L.R.(4th) 437; Secure 2013 Group Inc. v. Tiger Calcium Services Inc., 2017 ABCA 316, 58 Alta. L.R. (6th) 209; United States of America v.Friedland (1996), (ON SC), 30 O.R. (3d) 568, [1996] O.J. No. 3375 (QL) (Gen. Div.); Green v. Jernigan, 2003BCSC 1097, 18 B.C.L.R. (4th) 366; Nafie v. Badawy, 2015 ABCA 36, 381 D.L.R. (4th) 208; Nexen Energy ULC v. ITP SA, 2020 ABQB83, [2020] A.J. No. 166 (QL); British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd.,2010 BCCA 539, 12 B.C.A.C. 230; TMR Energy Ltd. v.

State Property Fund of Ukraine, 2005 FCA 28, [2005] 3 F.C.R. 111;Environmental Packaging Technologies, Ltd. v. Rudjuk, 2012 BCCA 342, 326 B.C.A.C. 213; Marciano (Séquestre de), 2012 QCCA1881, [2012] R.J.Q. 2001; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, (1990), 60 C.C.C. (3d) 161; Canada(Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163; Charkaoui(Re), 2004 FCA 421, [2005] 2 F.C.R. 299; R. v. G.B. (application by Bogiatzis, Christodoulou, Cusato and Churchill) (2003), 108C.R.R. (2d) 294, [2003] O.J. No. 3335 (QL) (S.C.J.); R. v.

Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16; R. v. Spackman (2008), (ON SC), 173 C.R.R. (2d) 333, [2008] O.J. No. 2722 (QL) (S.C.J.); X (Re), 2018 FC 738, [2019] 1 F.C.R. 567; R. v.Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641; R. v. Wiley, (SCC),[1993] 3 S.C.R. 263, (1993), 84 C.C.C. (3d) 161; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, (1979), 105 D.L.R.(3d) 745; Descôteaux et al. v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860, (1982), 141 D.L.R. (3d) 590; Canada (PrivacyCommissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574; Greenough v.

Gaskell (1833), 39 E.R. 618, 1My. & K. 98 (Ch. Div.); Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644. AUTHORS CITED: Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report: Freedom and Securityunder the Law, Ottawa: Privy Council Office, 1981 (Chair: D. C. McDonald). Department of Justice. Report of Murray D. Segal, Review of CSIS Warrant Practice, December 2016. Dodek, Adam M. Solicitor-Client Privilege. Toronto: LexisNexis, 2014. Federation of Law Societies of Canada. Model Code of Professional Conduct, as amended October 19, 2019.

Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 5th ed. Toronto: Lexis Nexis, 2018. Monahan, Patrick J. “‘In the Public Interest’: Understanding the Special Role of the Government Lawyer” (2013), 63 S.C.L.R. (2d) 43. Zuckerman, Adrian. Civil Procedure: Principles of Practice, London: Thompson/Sweet & Maxwell, 2006. APPEAL from a decision of the Federal Court (2020 FC 616, [2021] 1 F.C.R. 417) concluding that the Canadian Security IntelligenceService had breached the duty of candour it owed to the Court in the context of an ex parte warrant application. Appeal allowed.

APPEARANCES Robert Frater, Owen Rees and Jennifer Poirier for appellant. Gordon Cameron and Matthew Gourlay as amici curiae.

SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Gordon Cameron and Matthew Gourlay as amici curiae . The following are the reasons for judgment rendered in English by de Montigny and Mactavish JJ.A.: Table of Contents I. Background A. The Terrorist Financing Provisions of the Criminal Code B. The Investigation C. The Warrant Application in ,[***Case A ***] D. The Warrant Application in [***Case B ***] E. The Appointment of the Amici F. The October 2018 Hearings before Justice Gleeson G. The Formulation of the Legal Issues H.

Possible Illegalities Disclosed in Relation to Other Warrant Applications I. The Filing of Additional Evidence in [***Case B***] and the Disclosure of Legal Opinions J. The February 21, 2019 En Banc Hearing K. Events Following the En Banc Hearing and the Issuance of the Warrants in Case B L. The “Common Issues Hearings” II. Justice Gleeson’s Decision A. The Duty of Candour and the Illegality Issue B. Whether Duty of Candour Required that the Service Proactively Disclose Legal Advice to the Court C. The Causes of the Breach of the Duty of Candour D.

The Factors to be Considered in Assessing whether Information Connected to Illegal Conduct Should be Admitted in Support of a Warrant Application III. Issues A. The Duty of Candour B. Solicitor-Client Privilege IV. Conclusion [ 1 ] Before the Court is an appeal from a decision of Justice Gleeson, sitting as a designated judge of the Federal Court (reported as Canadian Security Intelligence Services Act (Re) , 2020 FC 616 , [2021] 1 F.C.R. 417 ).

Justice Gleeson concluded that the Canadian Security Intelligence Service (the Service) had breached the duty of candour it owed to the Court in the context of an ex parte warrant application. The Federal Court came to this conclusion based on its finding that the Service had failed to disclose that some of the information on which it relied in support of its warrant application had been obtained using methods that the Service knew likely violated the terrorist financing provisions of the Criminal Code , R.S.C., 1985, c.

C-46 (the Criminal Code ). [ 2 ] The Attorney General of Canada submits that the Federal Court erred in finding that the Service had breached its duty of candour in relation to this application, and that all of the relevant material facts had been put before the Court in this case.

The Court further erred, the Attorney General says, in finding that the duty of candour required that the Service proactively waive the solicitor-client privilege that attached to legal opinions provided to the Service with respect to the legality of operations such as the one in issue in this case. [ 3 ] For the reasons that follow, we have concluded that the Federal Court erred in concluding that the Service breached its duty of candour because it did not disclose that some of the information in support of warrant application [***Case B***] was likely derived from illegal activities.

We have further found that the Federal Court erred in finding that in “the unique circumstances of this case”, the duty of candour required counsel for the Service to have sought a waiver of solicitor-client privilege prior to appearing before the Court on this warrant application. Consequently, we would grant the appeal. I. Background [Back to table of contents ]

[ 4 ] In order to put the issues raised by the Attorney General on this appeal into context, it is necessary to have an understanding of the law governing terrorist financing. It is also necessary to understand precisely how the proceedings before the Federal Court unfolded, what were the issues before the Court in the warrant application that resulted in the decision under appeal [***Case B***] and the history of this and other matters as they relate to the Service’s efforts to obtain warrants against targets of their investigations. A.

The Terrorist Financing Provisions of the Criminal Code [Back to table of contents ] [ 5 ] In the wake of the terrorist attacks in the United States on September 11, 2001, the Criminal Code was amended to expressly prohibit the financing of terrorists and terrorist entities. Of particular concern in this case is

section 83.03 of the Criminal Code , which makes it an indictable offence to provide financial assistance to individuals knowing that it will be used for the purpose of facilitating or carrying out terrorist activities. [ 6 ] There appears to be no dispute that the [***] targets of the Service’s investigation named in the [***Case B***] application were involved in terrorist activities [***]. What is in issue is the potential illegality of the payments and material support that was provided to [***] by the Service, and the significance that this had for the warrant application. B.

The Investigation [Back to table of contents ] [ 7 ] The Service has for a number of years sought to obtain information with respect to the threat to the security of Canada posed by Canadians who have travelled [***] to fight for Islamist groups [***] Such individuals are known as “extremist travellers”. [ 8 ] The Service has faced significant challenges in obtaining information with respect to extremist travellers [***] [ 9 ] As part of its continuing effort to obtain information with respect to extremist travellers, [***] the Service decided to [***conduct an investigation, during which it paid an individual known to be facilitating or carrying out terrorism [***] [ 10 ] [***] [ 11 ] [***] C.

The Warrant Application in [***Case A***] [Back to table of contents ] [ 12 ] In furtherance of its investigation regarding extremist travellers, in March of 2018, the Service brought a warrant application before the Federal Court under sections 12 and 21 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 (the Act [or the CSIS Act]).

The Service was seeking a variety of warrant powers with respect to [***] on the basis that they posed a threat to the security of Canada (file number [***Case A***]. [ 13 ] Some of the information being relied on by the Service in support of its warrant application had been obtained as a result of the [***investigation***].

The affidavit filed with the Federal Court in support of the warrant application described the [***investigation and payments***] There was, however, nothing in the materials filed by the Service in [***Case A***] to suggest that the payments [***] may have been illegal, or that some of the information being relied upon in support of the warrant application may have been illegally obtained. [ 14 ] The [***Case A***] warrant application was heard by Justice Noël on April [***] 2018.

In the course of questioning the affiant, Justice Noël asked about the payments made [***] The affiant advised Justice Noël that [***the service had provided payments over a few years to an individual or individuals known to be facilitating or carrying out terrorism.***] [ 15 ] There was nothing in counsel’s submissions to Justice Noël, or in the affiant’s affidavit or her initial testimony, to suggest that there was anything potentially illegal about the payments that the Service had made [***] Counsel representing the Service at the April [***] 2018 hearing subsequently explained that he had not brought the potential illegality of the payments to the attention of the Court as he was not aware of the terrorist financing provisions of the Criminal Code when he prepared the application materials and appeared before the Court in [***Case A***]. [ 16 ] It was only towards the end of Justice Noël’s questions regarding the payments [***] that the question of the legality of these payments was raised by Justice Noël himself.

When the affiant and counsel were unable to provide information to address certain concerns of Justice Noël, undertakings were given to provide further information in this regard. Justice Noël did, however, issue the warrants as requested, based largely on the strength of information obtained from [***] without consideration of the evidence obtained through [***the collection methods he had questioned***]. [ 17 ] Following a series of exchanges between counsel and the Court, a case management conference was held by Justice Noël on May 31, 2018, with new counsel now representing the Service.

During this conference, counsel for the Service acknowledged that the questions that had been raised by Justice Noël during the April [***] 2018 hearing were both valid and important. Counsel suggested, however, that the questions would be better determined on the basis of a more complete record.

Consequently, counsel proposed that the Service ‘start from zero’ by bringing a fresh warrant application, supported by an affidavit from a different affiant — one who would provide the evidentiary record necessary to address the lingering concerns on the part of Justice Noël. [ 18 ] In the course of the discussions surrounding the Service’s proposal, Justice Noël voiced his concern that the payments that had been made [***] by the Service potentially violated the terrorist financing provisions of the Criminal Code . This was the first time that a concern with respect to the possible violation of

section 83.03 of the Criminal Code was expressly articulated by anyone in connection with [***Case A***]. [ 19 ] The Service’s suggestion that it start over by bringing a fresh warrant application was reiterated in a June 6, 2018, letter to the Court. Counsel acknowledged in that letter that there had been errors and omissions in the record that had been put before the Court in [***Case A***] and that these would be addressed in the new application. Justice Noël accepted the Service’s proposal as a way of

dealing with the Court’s outstanding concerns. D. The Warrant Application in [***Case B***] [Back to table of contents ] [ 20 ] Justice Gleeson was subsequently assigned to deal with the fresh warrant application. He held a case management conference with counsel for the Service on July 4, 2018, in anticipation of the Service bringing its new application.

The purpose of this conference was to identify the Court’s continuing areas of concern, to provide counsel for the Service with an opportunity to detail a proposed way forward in addressing the outstanding areas of concern, and to allow the Court to assess whether the appointment of an amicus curiae would be appropriate in this case. [ 21 ] In the course of the case management conference, Justice Gleeson asked that any new warrant application deal with the legal issues that had been raised in [***Case A***] but that the new warrant application not be linked to [***Case A***] and that it “stand on its own”. [ 22 ] One legal issue that Justice Gleeson identified during the case management conference was the legality of the Service’s [***investigation***] and the potential contravention of the terrorist financing provisions of the Criminal Code by Service personnel.

Justice Gleeson also noted his concern as to whether information obtained [***] that was being relied upon by the Service had been legally obtained, or potentially involved the commission of criminal offences. [ 23 ] In the course of this case management conference, Justice Gleeson also reminded the Service of its obligation to bring unique or special circumstances in warrant applications to the attention of the Court. [ 24 ] A fresh warrant application was filed by the Service on September [***] 2018, as [***Case B***] A motion was also brought by the Service to set aside the warrants issued by Justice Noël, in the event that the Court was prepared to issue new warrants in [***Case B***] so as to prevent there being overlapping warrants.

In the meantime, the warrants issued by Justice Noël remained in effect so as to avoid any gaps in the Service’s operational capabilities. [ 25 ] The [***Case B***] application was supported by an affidavit from [***] an intelligence officer with the Service. [***] affidavit contained similar information to that placed before Justice Noël in [***Case A***] but provided additional detail about [***the collection methods he had questioned***] and updated information regarding the payments and other forms of support that had been provided [***] since Justice Noël had issued his warrants in April of 2018 [***] affidavit also discussed the nature of the information that had been obtained [***] and the importance of this information to the Service’s investigation of Canadian extremist travellers. [ 26 ] [***] advised that additional payments had been made [***] between the time that the application in [***Case A***] was heard in April of 2018 and early September of 2018, when the warrant application in [***Case B***] was filed.

As of the date of his affidavit, [***] stated that [***] during this intervening period. [***] further advised that [***] and that the Service was seeking additional warrant powers to address this eventuality. [ 27 ] Although there was nothing in [***] affidavit regarding the potential illegality of the payments [***] the covering letter from the Service’s counsel accompanying the application referred to the question of the legality of the payments made [***] In addition, all of the information in [***] affidavit that was being relied upon by the Service in support of the warrant application that had been obtained through [***collection methods questioned by Justice Noël***] was highlighted.

E. The Appointment of the Amici [Back to table of contents ] [ 28 ] By order dated September 19, 2018, Justice Gleeson appointed Messrs. Gordon Cameron and Matthew Gourlay to act as amici in [***Case B***] In a subsequent order, Justice Gleeson specified that the role of the amici would be to assist the Court in deciding the legal questions raised by the application. F.

The October 2018 Hearings before Justice Gleeson [Back to table of contents ] [ 29 ] A hearing in [***Case B***] was held on October 18, 2018, during which [***] testified before Justice Gleeson. [ 30 ] [***] explained that the Service had provided additional benefits [***] during the period between the hearing in [***Case A***] in April of 2018, and the filing of the warrant application in [***Case B***] in September of 2018. [***] [ 31 ] [***] testified that after the warrants were issued by Justice Noël in [***] a payment [***] was made to [***Case A and Case B***]. [ 32 ] To be clear: the payments [***] occurred after Justice Noël raised the issue of the potential illegality of the payments [***] at the April [***] 2018 hearing, a concern that Service counsel subsequently acknowledged was both valid and important. [ 33 ] [***] testified that the Service was aware that paying money to an individual who was engaged in terrorist activity “could be viewed” as being illegal, and that it had “very serious implications”.

As a consequence, such operations required the approval of the Director of the Service, who would, in turn, advise the Minister of Public Safety and Emergency Preparedness (the Minister) of the activity in question. [***] also testified that, despite the illegality concern, the Service was of the view that the risks posed by such payments could be managed. [ 34 ] [***] subsequently testified that payments such as those in issue in this case “could be construed as financing a terrorist”, and that “there is a risk of that occurring”.

According to [***] the Service had not reached the conclusion that such payments violated the Criminal Code , but it recognized that operations such as the one in issue in this case carried with them “a high legal risk”. [ 35 ] At this point in [***] testimony, counsel for the Service intervened to advise the Court that the Department of Justice had been consulted with respect to the legality of payments being made by the Service to those engaged in terrorist activities, and that its analysis

was subject to solicitor-client privilege. This disclosure was followed by a discussion between the parties and Justice Gleeson as to the potential relevance of any legal opinions that may have been provided to the Service by the Department of Justice. Justice Gleeson concluded it was not necessary to deal with the solicitor-client privilege issue at that point, but that this issue might have to be revisited once the legal issues raised by the application were fully fleshed out. [ 36 ] The hearing before Justice Gleeson resumed the following day.

In the course of a discussion regarding the legal issues raised by the application, Justice Gleeson raised a question as to whether the events that took place before Justice Noël in [***Case A***] were relevant to the determination of the issues in [***Case B***] In this context, Justice Gleeson stated “[a]nd it’s not in the context of this specific application, but really why we’re here with this specific application coming out of [***Case A***] And it really does link back to this question of [the] duty of candour, but candour in the context of ‘prepared to engage’”?

Justice Gleeson then went on to ask counsel about the propriety of looking at “that whole question, the Segal Report ( Review of CSIS Warrant Practice , Report of Murray D. Segal, December 2016 (Segal Report)), and what happened here”. [ 37 ] At the conclusion of the October 19, 2018, hearing, Justice Gleeson stated that he was reserving his decision as to whether the warrants should issue pending the resolution of the outstanding legal questions. He asked counsel to confer with each other in an effort to formulate the legal questions that remained outstanding.

In the meantime, the warrants issued by Justice Noël in April of 2018 remained in effect. G.

The Formulation of the Legal Issues [Back to table of contents ] [ 38 ] Throughout the remainder of October and November the Court worked with the parties to define the legal issues raised by the warrant application, and on December 10, 2018, Justice Gleeson issued a Direction setting out the legal questions that were to be addressed in [***Case B***] These included, amongst others, the question of whether an issue of lawfulness arises in circumstances where the Service has provided or directed the provision of money or goods to individuals [***] who the Service believes were engaged in terrorist activities at the time that the money or goods were provided where the provision of money or goods was necessary to facilitate the collection of information relied on in the warrant application. [ 39 ] Justice Gleeson also asked the parties to address whether the Service had a duty to disclose a possible contravention of the law to the Court, including a potential breach of the Criminal Code , in the context of warrant applications, and the source of that duty.

He further asked the parties to address whether the Service had provided sufficient information initially in [***Case A***] and then in [***Case B***] with respect to the issue of lawfulness as it related to information or intelligence relied on in those warrant applications. [ 40 ] Justice Gleeson also raised questions as to the standard of proof that the Court should apply in determining whether there had been a potential violation of the law.

He further asked what factors the Court should consider in determining whether illegally obtained information should be taken into account in support of a warrant application, or should be excluded from consideration. [ 41 ] Once these legal questions had been formulated, counsel for the Service advised that it would be necessary to file additional evidence with the Court to enable the Service to respond to the questions. [ 42 ] Thus it appeared that the legal issues raised by the [***Case B***] application had been clearly identified as of December 10, 2018.

However, as Justice Gleeson noted in his decision, “the candour and illegality issues evolved significantly through January and February of 2019”, and it “became clear that the outstanding issues from [***Case A***] would require some time to fully address”: at paragraph 17. Indeed, as matters progressed before Justice Gleeson, questions as to the legality of [***collection methods questioned by Justice Noël***] and its implications for the warrant hearings emerged as the principal issue. H.

Possible Illegalities Disclosed in Relation to Other Warrant Applications [Back to table of contents ] [ 43 ] On January 18, 2019, the Senior General Counsel for the National Security Litigation and Advisory Group [NSLAG] (the group within the Department of Justice responsible for representing and advising the Service) wrote to the Court advising that the Service had become aware that information that it had relied upon in two other warrant applications [***Case C] and [***Case D***] had been derived through activities that “may engage provisions of the Criminal Code ”.

Justice Kane had been seized with [***Case C***] and Justice Brown had been seized with [***Case D***] and warrants had already been issued in each of these cases. [ 44 ] The Court was further advised that the Service was carrying out a review in an effort to determine whether this issue had arisen in any other cases. [ 45 ] Included with counsel’s January 18, 2019, letter was a document entitled Interim Direction on the Conduct of Operations Likely Involving the Commission of Criminal Offences .

This document, which had been issued the previous day by the Service’s Deputy Director Operations, indicated that the Service would no longer approve operations that were likely illegal, referring to them as posing a “high legal risk”.

The Interim Direction further stated that the Service would be reviewing any such operations that were ongoing in order to mitigate any potential illegality. [ 46 ] Counsel for the Service subsequently explained that the issuance of the Interim Direction had been prompted by the Service’s experience in [***Case A***] which had led it “to reconsider the legal risk it was prepared to accept in relation to human source operations that potentially engage the Criminal Code ”. [ 47 ] The disclosure that there were other cases where information relied upon by the Service had been derived through potentially illegal activities led to a joint case management conference being convened in [***Case C***] and [***Case D***] on January 21, 2019, by Justice Mosley, who was then the coordinating judge of designated proceedings.

Justices Mosley and Kane were present at the case management conference, but Justices Gleeson and Brown were not, as they were not available. [ 48 ] The Senior General Counsel for the NSLAG appeared at the case management conference on behalf of the Service. He confirmed that the provisions of the Criminal Code that were referred to in his January 18, 2019, letter were the terrorist financing provisions of the Code, as they related to conduct by the Service, or by human sources acting on its direction.

[ 49 ] Counsel further advised that the Service had isolated the information that had been collected under the authority of the warrants issued by Justice Kane and Justice Brown in its databases and that although the collection of information in these matters was ongoing, it was being reviewed only to the extent necessary to determine if it disclosed an imminent danger.

Counsel finally added that the Service was conducting a review to determine whether information that had been relied upon to obtain any other active warrants had been collected through illegal activity. [ 50 ] In the course of the case management conference, Justice Mosley asked counsel whether legal advice had been provided to the Service as to whether it was potentially at risk of criminal liability.

Counsel declined to answer Justice Mosley’s inquiry on the basis that the legal advice provided to the Service was subject to solicitor-client privilege. [ 51 ] Justice Mosley then asked counsel whether, in counsel’s view, a contravention of the Criminal Code by a Service agent or officer would taint a warrant application. Counsel responded that “it ought to have been disclosed to the issuing judge. That goes without saying. So there was a duty, and we accept that there was a duty, on us to disclose these operations to the issuing judges in the warrants”.

Counsel then went on to state “[h]owever, our position is that a judge may rely on information in the context of a warrant under

section 21 that is obtained as a result of those operations”. I. The Filing of Additional Evidence in [***Case B***] and the Disclosure of Legal Opinions [Back to table of contents ] [ 52 ] On January 25, 2019, counsel for the Service filed additional evidence with the Court in [***Case B***] Included in this package were legal opinions and other documents containing information that was subject to solicitor-client privilege.

In the covering letter accompanying the documents, counsel for the Service explained that, for the purpose of this application only, the Director of the Service had waived the solicitor-client privilege that attached to the legal advice that had been received by the Service with respect to the matters at issue in application [***Case B***] [ 53 ] While there was subsequently some suggestion by the Attorney General that the waiver of solicitor-client privilege by the Service had not been entirely voluntary, Justice Gleeson found that this was not the case, and the Attorney General conceded before us that the waiver had indeed been voluntary. [ 54 ] The new evidence included a January 2017 legal opinion from a lawyer with the NSLAG that concluded that it could “no longer be credibly argued that CSIS employees and sources are protected by Crown immunity if they engage in conduct that, on its face, violated the law” (the Lajeunesse opinion).

The Lajeunesse opinion went on to state that “[t]he doctrine of Crown immunity has been removed as a possible defence in the national security context”. This conclusion was consistent with earlier legal opinions that had been provided to the Service, and with findings made by the Security Intelligence Review Committee.

As was the case with the earlier opinions, the Lajeunesse opinion discussed the need for a “legislative fix” to address the potential exposure of Service employees to criminal charges. [ 55 ] Also produced was a January 7, 2019, opinion from the Senior General Counsel for the NSLAG that came to a similar conclusion with respect to the non-availability of the Crown immunity defence to the Service (the Rees opinion). In particular, the Rees opinion advised the Director of the Service that “there is no lawful basis for the Service to commit criminal offences under the existing legal framework.

The CSIS Act does not authorize the Service to engage in criminal conduct, even if it yields valuable intelligence”.

The Rees opinion stated definitively that “CSIS cannot rely on Crown immunity in the context of its human source operations”, and that “[n]o alternative authority exists that would allow the Service to conduct otherwise illegal operations”. [ 56 ] Also produced was all of the relevant documentation regarding the approval of the Service’s payments [***] as well as the provision of material support [***] These documents (some of which had been provided to the Minister by the then-Director of the Service) indicated that the [***collection methods questioned by Justice Noël were***] identified as presenting “a high legal risk”. [ 57 ] Several of the approvals documents contained excerpts from legal opinions regarding the legality of payments or the provision of material by the Service to individuals engaged in terrorism, and whether the defence of Crown immunity would be available to the Service. [ 58 ] The approvals documents also included legal opinions from counsel for the Service with respect to the payments [***] One such opinion [***] specifically refers to

section 83.03 of the Criminal Code , noting that “[t]here is little doubt here that most of the elements of the financing terrorism offen[c]e would be met.

The Service is directly providing money to [***] a person the Service knows to be engaged in terrorist activity, while knowing that it will be used or benefit him”. [ 59 ] Other comments in the [***] risk analysis note the benefit of [***the collection methods***] and the value of the information received [***] Michel Coulombe, the then-Director of the Service, is recorded as saying “[p]ending DOJs final opinion on Crown Immunity and further to the advice provided by [individuals within the Service], I have weighed the value of [***the collection methods***] versus the legal risk”. Mr.

Coulombe went on to state “I am of the opinion that the value outweighs the risk and approve [***the collection methods***] to proceed”. He then observed that “prior notification must be given to the Minister [***]”. It appears that such notice was indeed provided to the Minister shortly thereafter. [ 60 ] Mr. Coulombe subsequently explained that he had understood that the Lajeunesse opinion was not intended to be the last word as to the availability of the Crown immunity defence, and that further advice would be forthcoming from the Department of Justice.

In the meantime, he was prepared to approve [***the collection methods***] notwithstanding the fact that the Service’s activities likely violated the Criminal Code , on the basis that the potential intelligence value of the information that could be obtained [***] outweighed the legal risks [***] [ 61 ] Evidence was also received from Jeff Yaworski, who was the Service’s Deputy Director Operations [***] Mr. Yaworski had recommended to Mr. Coulombe that [***the collection methods***] be approved, notwithstanding that it presented a “high legal risk”.

He testified that while he was aware that the Service could not engage in illegal activities, the “reality of the operational environment” meant that the Service could find itself “butting up against the Criminal Code with respect to terrorist financing”. He further explained that the Service had to balance the high legal risk [***] with “the potential for intelligence gain”, and that, in his view, the benefit to be

derived [***] outweighed the legal risks [***] [ 62 ] Upon the filing of this evidence on January 25, 2019, counsel representing the Service in application [***Case B***] withdrew, as she had provided one of the legal opinions now in issue. [ 63 ] The content of these newly disclosed documents led Justice Gleeson to comment at a February 13, 2019, case management conference that they had “significantly changed the landscape here with respect to the significance of some of the questions that were originally raised in this matter, particularly the candour issues”. [ 64 ] Counsel for the Service then explained why it had chosen to voluntarily waive the solicitor-client privilege that attached to the legal opinions and the approvals documents.

According to counsel for the Service, “[t]he purpose of providing those documents goes directly to the questions that this Court settled on. One of the questions that the Court has asked is whether the activities in question were lawful or not”. Counsel went on to explain that “[o]ur duty of candour required us to provide information. It was already abundantly clear from the very first day of questioning of [***] that questions were being asked about what legal advice was provided”. [ 65 ] Counsel for the Service went on to state that “[o]ne of the questions is the duty of candour.

These are parts of the elements that are before the Court and we are trying to be responsive with the evidence that is requested”. J. The February 21, 2019 , En Banc Hearing [Back to table of contents ] [ 66 ] In the meantime, Justice Mosley had scheduled an en banc hearing of the designated judges of the Federal Court to take place on February 21, 2019.

The purpose of the en banc hearing was to address the implications that the disclosure of illegal conduct on the part of the Service had for applications [***Case C, Case B***] and [***Case D***] Also to be considered was what, if any, obligation there was on the part of the Service to disclose such illegality to the Court in the context of warrant applications that seek to rely on illegally obtained evidence, along with other related issues. [ 67 ] Of particular relevance to the issues in this appeal is the scope of the concessions that were made by counsel for the Attorney General at the en banc hearing. [ 68 ] At the commencement of the hearing, Justice Mosley asked why it had taken the Service and the Attorney General so long to inform the Court that the Service had been relying on information in support of warrant applications that had been obtained by methods that, on their face, contravened the Criminal Code , “based on, at best, a shaky claim for justification under the Crown immunity doctrine”.

Justice Mosley went on to ask “[h]ow does that behaviour, protracted behaviour, conform to respect for the rule of law and the duty of candour of both the Service and the Attorney General to this Court?”. [ 69 ] Justice Noël then reviewed what had happened in [***Case A***] including the failure of the Service to flag the fact that some of the evidence on which it was relying in support of the warrant application in that case had been obtained using methods that potentially contravened the terrorist financing provisions of the Criminal Code . [ 70 ] Counsel for the Attorney General commenced his submissions at the en banc hearing by stating that “you are not going to hear any argument from me that the duty of candour was met in these files.

There has been a failure by both the Department of Justice or the Attorney General and CSIS in warrant applications …”. Counsel went on to acknowledge that where a warrant application is placed before the Court that may involve information that was illegally obtained, the duty of candour required that the Service and counsel representing the Service ensure that the judge seized with the application was made aware of the illegality so that the judge could assess its relevance in deciding whether or not warrants should issue.

Counsel agreed that this had not been done “in these three files”. [ 71 ] The question, then, is which three files was counsel referring to? [ 72 ] Counsel for the Attorney General discussed what had occurred in [***Case A***] at the en banc hearing, stating that once Justice Noël had raised the illegality issue, “it’s not that we didn’t take action. We did take action. It’s as a result of the action that we took that the issues were identified to have occurred in two other files ” (emphasis added). [ 73 ] Counsel for the Attorney General went on to state that “[t]he investigation is still ongoing.

We think it’s limited to those three files ” (emphasis added). Further on in the hearing, counsel for the Attorney General addressed Justice Noël’s concerns as to what had gone on in [***Case A***] by saying “you were owed better”, acknowledging that Justice Noël should have been made aware of the potential illegality.

When Justice Noël asked what was to be done about this now, counsel responded by stating “[w]hat we did in fact was to withdraw that application and try and start again”. [ 74 ] It thus appears that while the en banc hearing had been convened in the context of applications [***Case C, Case B***] and [***Case D***] counsel’s concession that there had been a breach of the duty of candour in three files actually related to applications [***Case C, Case A***] and [***Case D***] and not [***Case B***] K.

Events Following the En Banc Hearing and the Issuance of the Warrants in [***Case B***] [Back to table of contents ] [ 75 ] The warrants issued by Justice Noël in [***Case A***] were scheduled to expire on April [***] 2019.

Consequently, in [***] April, 2019, the Service filed a further affidavit from [***] updating the information with respect to the Service’s investigation into the threat-related activities of the [***] targets of the warrants sought in [***Case B***] Once again, the information in [***] affidavit that was being relied on by the Service in support of the warrant application that had been obtained through [***potentially unlawful collection methods***] was identified by highlighting. [ 76 ] A hearing and case management conference was held before Justice Gleeson on April 3, 2019. [***] testified before Justice Gleeson once again, and additional submissions were received from counsel for the Service and the amici . [***] testified that [***] additional payments had been made [***to a target***] [***] since [***] had testified in October of 2018.

[ 77 ] After hearing from [***] Justice Gleeson was satisfied that the Service had provided sufficient information to justify the issuance of the warrants against the [***] named individuals, even if no reliance was placed on any of the [***impugned information***] Consequently, Justice Gleeson issued the warrants sought by the Service, albeit for only three months.

He further stated that he would remain seized of [***Case B***] for the purpose of dealing with the questions identified in his December 10, 2018, Direction. [ 78 ] One additional payment to a target [***] came to light after the warrants were issued by Justice Gleeson in April, 2019.

It was subsequently discovered that a human source had, with the Service’s approval, provided [***a target***] with [***a financial benefit valued at less than $20***] While the payment had been made prior to the commencement of the application in [***Case B***] it had only recently been uncovered in a file review relating to the human source, and the Court was promptly advised accordingly.

The Attorney General submitted that this was the only instance where a payment had been made or a benefit had been provided to a subject of the investigation that had not been disclosed to the Court before the warrants were issued in [***Case B***] [ 79 ] A new warrant application was filed by the Service in June of 2019, seeking to renew the warrants against [***] and new warrants were subsequently issued [***] The issuance of those warrants is not in issue in this appeal. [***] L.

The “Common Issues Hearings” [Back to table of contents ] [ 80 ] In the meantime, hearings had commenced before Justices Gleeson, Kane and Brown, sitting together, to address the issues that were common to the cases with which each of them were seized. These “common issues hearings” proceeded off and on over the next several months, with the judges receiving affidavits and oral testimony from numerous current and former senior officials within the Service and the Department of Justice.

Testimony was also received from several counsel for the Service, including counsel who had represented the Service before Justice Noël in [***Case A***] [ 81 ] In a case management conference held on April 12, 2019, Justice Gleeson stated that as the evidence had unfolded in these cases, an issue had emerged as to “who knew what when with respect to the issues in play here”.

Indeed, counsel for the Attorney General submits that “who knew what when” about the giving and receipt of legal advice then became the primary focus of the hearings before Justices Gleeson, Kane and Brown. [ 82 ] The evidence received at the common issues hearings addressed a range of topics, including the legal advice that had been provided to the Service with respect to the availability of the Crown immunity defence for Service personnel.

Also discussed was what had happened within the Service over the two years between the Lajeunesse opinion being provided in early 2017 and the delivery of the Rees opinion in early 2019. [ 83 ] Michelle Tessier, the Service’s Deputy Director of Operations, stated that upon receipt of the Lajeunesse opinion, the Director of the Service suspended all “high legal risk” source operations, effective January 31, 2017. However, Mr. Coulombe authorized the resumption of “high legal risk” operations on March 30, 2019. [ 84 ] Mr.

Coulombe subsequently explained that as a result of a meeting with senior officials within the Department of Justice in February of 2017, he understood that the applicability of Crown immunity remained uncertain, and that further research was to be done by the Department in this regard. Given his view that the terrorism threat “had never been so high”, Mr. Coulombe was concerned about the impact that ceasing operations would have for public safety and the Service’s ability to fulfill its mandate.

Consequently, he resumed approving operations that potentially involved illegal activities on the part of Service personnel. [ 85 ] Also discussed by several witnesses were the efforts that had been made to obtain a legislative “fix” that would address the potential criminal exposure of Service personnel who used illegal means to obtain useful information. [ 86 ] Witnesses also addressed the risk assessment methods employed by the Service in determining whether a particular operation should be authorized, and the warrant approval process employed by the Service.

The Service personnel’s understanding of the duty of candour owed to the Court, and the efforts that had been made by the Service to ensure that their employees understood their obligations in this regard, also formed part of the discussions. [ 87 ] Justice Gleeson continued to receive evidence with respect to [***Case B***] during this period, in the absence of Justices Kane and Brown. The hearings into application [***Case B***] were completed on November 1, 2019, and Justice Gleeson rendered his decision in this matter on May 15, 2020. II.

Justice Gleeson’s Decision [Back to table of contents ] [ 88 ] Justice Gleeson’s decision is lengthy and detailed, and it addresses a number of matters that are not in issue in this appeal. The focus of this

summary is thus on Justice Gleeson’s treatment of the duty of candour issue as it relates to the legality of [***the collection methods questioned by Justice Noël***] and the Service’s reliance on information obtained [***from those collection methods.***] [ 89 ] Also at issue is Justice Gleeson’s finding that, in the unique circumstances of this case, the duty of candour required that counsel should have proactively sought a waiver of solicitor-client privilege with respect to the legal advice that had been provided to the Service prior to appearing before the Court in the warrant application. A.

The Duty of Candour and the Illegality Issue [Back to table of contents ] [ 90 ] After a lengthy review of the history of this case and that of [***Case A***] Justice Gleeson first considered whether the Service had complied with its duty of candour in failing to identify the illegality issue arising out of the Service’s [***collection methods***] He concluded that the Service had breached the duty of candour that it owed to the Court by failing to proactively identify and disclose that it was relying on information in support of the warrant applications in [***Case A***] and [***Case B***] that was likely derived from illegal activities: at paragraph 93. [ 91 ] In coming to this conclusion, Justice Gleeson started his analysis by stating that the Attorney General had acknowledged that the

duty of candour had been breached in this case. He also noted that the Attorney General had contended that counsel and the Service had acted in good faith, and that they had tried to uphold their duty of candour in this matter and in the cases before Justice Kane and Justice Brown.

The Attorney General had also argued that individual conduct was not in issue in this case, but that the breach resulted from “institutional failures” that had prevented Service employees and counsel from recognizing the illegality issue and raising it with the Court: at paragraph 91. [ 92 ] While seemingly accepting the Attorney General’s arguments, Justice Gleeson observed that such “institutional failures” did not lessen “the corrosive effect of the breach on the Court’s confidence in the Service’s ability to be candid”.

According to Justice Gleeson, it suggested rather that the Court could not rely on the Service representatives appearing before it to be candid—not because of individual failings—but because of institutional failings that rendered it difficult or impossible for individuals to inform themselves of relevant information or to act on the information of which they are aware. According to Justice Gleeson, this was perhaps more troubling than a single individual’s failure to comply with the duty of candour: at paragraph 92. [ 93 ] Justice Gleeson concluded this

section of his analysis by finding that there was no doubt that the Service had breached its duty of candour “in this matter”.

He further found that whether the Service had illegally collected information that was being relied on to support a warrant application was highly relevant to the Court’s assessment of that information, and to the ultimate exercise of the Court’s discretion to grant or refuse the warrants: at paragraph 93. [ 94 ] Justice Gleeson noted that Justice Noël had clearly been concerned that payments had been made to an individual who had been involved in terrorism, explicitly referring to potential breaches of the terrorist financing provisions of the Criminal Code .

While counsel had assured Justice Noël that the Service had “addressed the issue”, this was clearly not the case.

While new counsel assigned to deal with [***Case A***] did subsequently acknowledge to Justice Noël that the legality of the Service’s actions was in issue, Justice Gleeson was of the view that this acknowledgement did not paint a full and candid picture of the history of the matter: at paragraphs 94– 95. [ 95 ] Justice Gleeson stated that he immediately attributed the failure to accurately respond to Justice Noël’s concerns to counsel, but that this failure had to be placed in its broader, more concerning context.

He noted that Service advisors had been aware for years that the Service was gathering information to be used in warrant applications through activities that were, on their face, illegal. Despite this, experienced Service counsel was apparently unaware that illegality was an issue when he appeared before Justice Noël in April of 2018. According to Justice Gleeson, this demonstrated “not only a lack of individual awareness but also a severe institutional failing”: at paragraph 96. As will be discussed below, these broader concerns were considered in greater detail further on in Justice Gleeson’s reasons. B.

Whether Duty of Candour Required that the Service Proactively Disclose Legal Advice to the Court [Back to table of contents ] [ 96 ] Justice Gleeson was also very concerned that the Service had continued to engage in potentially illegal activities, even after it had been told that the Crown immunity defence would not be available to it. [ 97 ] After reviewing the legal advice that had been provided to the Service over time, Justice Gleeson stated that “[i]t is difficult to overstate how disturbing these circumstances are.

Operational activity was undertaken in the face of legal advice to the effect that the activity was not authorized by the CSIS Act.” He further noted that reliance had been placed on the Crown immunity doctrine “despite the Service having been advised by senior counsel … that ‘[b]estowing of Crown immunity on CSIS is not consistent with the CSIS Act.’” Nevertheless, the Service continued to rely on Crown immunity, with the apparent acquiescence of the Department of Justice, notwithstanding the unambiguous direction from the Minister that “the Service must observe the rule of law in discharging its responsibilities”: at paragraph 122. [ 98 ] Justice Gleeson then found that the Service counsel breached the duty of candour owed to the Court by failing to seek a waiver of the solicitor-client privilege that attached to the legal advice that had been obtained by the Service with respect to the legality of [***certain collection methods***] and the unavailability of the Crown immunity defence: at paragraph 134. [ 99 ] The amici had argued before Justice Gleeson that the candour breach continued even after counsel identified illegality as an issue in [***Case A***] because counsel did not candidly advise the Court that the Service was aware, based on the legal advice, of the illegal character of the collection activities it had undertaken.

The amici had submitted to Justice Gleeson that counsel was required to proactively seek a waiver of the solicitor-client privilege that attached to this legal advice prior to appearing before the Court so as to allow these circumstances to be fully disclosed. [ 100 ] Justice Gleeson noted that counsel appearing for the Service in [***Case B***] had provided evidence in this proceeding and had testified that she was mindful of her obligations to not disclose legal advice that had been provided to the Service.

Justice Gleeson noted that counsel had also asserted that, in her view, she was under no obligation to disclose the Service’s degree of knowledge as to the potential illegality of [***certain collection methods***] or the legal conclusions that had been reached within the NSLAG at that point in the proceedings: at paragraph 133. [ 101 ] However, Justice Gleeson accepted the amici ’s argument, finding that in the “unique circumstances” of this case, the duty of candour required that counsel seek a waiver of privilege prior to appearing before the Court on the warrant application: at paragraph 134. [ 102 ] Justice Gleeson recognized, however, that counsel had been faced with a difficult task in balancing her duty of candour against her duty to protect the solicitor-client privilege that attached to the legal advice that had been received by the Service.

He went on to state that how counsel were to resolve these conflicting duties required “active consideration and discussion in advance of a situation such as the one that arose”. He further found that “[n]either the Service nor the Department of Justice were well-positioned to identify and engage in a principled balancing of the competing interests early on in the process” and that “[t]his needs to be addressed moving forward”: at paragraph 134. C. The Causes of the Breach of the Duty of Candour [Back to table of contents ]

[103] These findings led Justice Gleeson to then examine the causes of the breach of the duty of candour and what he saw as theinstitutional and systemic issues that had contributed to the candour breach in this case. [104] Justice Gleeson reviewed the voluminous body of evidence before him, including the various legal opinions that had beenprovided to the Service with respect to the availability of the Crown immunity defence.

He also considered matters such as the role of theDepartment of Justice and its legal risk assessment framework, NSLAG’s knowledge management and information sharing processes,information silos and compartmentalization, communications among senior Service officials and the Service’s warrant applicationprocess.

He then concluded that “[t]he circumstances disclosed here suggest a degree of institutional disregard for—or, at the very least,a cavalier institutional approach to—the duty of candour and regrettably the rule of law”: at paragraph 163. [105] In addressing what he viewed as the causes of the breach of the duty of candour, Justice Gleeson noted that the evidence beforehim indicated that the issue of the potential illegality of the Serviceʼs operations had been widely known within the circle of theorganizations and institutions that play a role in the oversight or management of such operations.

However, despite this widespreadknowledge, and the potential relevance that the issue of illegality had in the context of warrant applications, the illegality issue was neverbrought to the Court’s attention, and “only the Court was left in the dark”: at paragraph 168. [106] According to Justice Gleeson, this was “inexcusable”, especially given that there was “a heightened awareness of the import ofthe duty of candour and ongoing engagement between the Court, the Service and the Department of Justice in the aftermath of [theFederal Court’s decision in X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396] and the Segal Report”: at paragraph 168. [107] Justice Gleeson further found that the breach of candour in this case was “symptomatic of broader, ongoing issues relating to theService’s organizational and governance structure and perhaps institutional culture.” He noted that questions had been raised with respectto the way in which legal services were structured and delivered to the Service and that, “even more fundamentally, the roles andresponsibilities of AGC counsel.” In particular, Justice Gleeson asked rhetorically why interim measures to address the issue of illegalityhad not been pursued before January of 2019: at paragraph 170. [108] Justice Gleeson noted that the Supreme Court had observed in R. v.

Campbell, (SCC), [1999] 1 S.C.R. 565,(1999), 171 D.L.R. (4th) 193 (Campbell and Shirose) that any police illegality is a serious matter, but that police illegality that is plannedand approved and is implemented “in defiance of legal advice would, if established, suggest a potential systemic problem concerningpolice accountability and control”: Campbell and Shirose, at paragraph 73, quoted in Justice Gleeson’s decision, at paragraph 171.

Whilethese comments were made in the context of police illegality, Justice Gleeson observed that illegality on the part of the Service is asserious as police illegality: at paragraph 172. [109] After discussing the need for public confidence in the Service, Justice Gleeson noted that the Court also had to be able to haveconfidence in the organization, and that the Court’s confidence in the Service had once again been shaken.

In coming to this conclusion,Justice Gleeson referred to the fact that the illegality, or the likelihood thereof, of the payments made [***] “was not proactivelydisclosed; in fact it was not even identified by the Service or the Department of Justice in the preparation of warrants”: at paragraph 174. [110] Justice Gleeson further noted that the illegality in this case “did not arise in context of exigent or unforeseen circumstances; itarose in the context of a difficult reality.” According to Justice Gleeson, the institutional response to that difficult reality “was to act asthough it did not exist”: at paragraph 174. [111] Justice Gleeson concluded his findings with respect to the duty of candour by observing that the circumstances and events that ledto the Service engaging in illegal acts contrary to legal advice warranted a comprehensive and detailed review—one that was mandatedto consider “broad issues of institutional structure, governance and culture within both the Service and relevant elements of theDepartment of Justice”.

According to Justice Gleeson “[a]nything less than this will, in my view, fall short of ensuring that confidenceand trust in the Service as a key national institution is restored and enhanced”: at paragraph 174. While recognizing that it was beyondhis authority to order a review of this type, he strongly recommended that such a review take place: at paragraph 175. D.

The Factors to be Considered in Assessing whether Information Connected to Illegal Conduct Should be Admitted in Support of aWarrant Application [Back to table of contents] [112] After considering a number of other issues that need not be addressed here, Justice Gleeson concluded that illegally obtainedevidence did not automatically have to be excised from warrant applications: at paragraphs 186–187.

He then addressed the factors thatthe Court should consider in determining whether information connected to illegal activity should be admitted in support of a warrantapplication. [113] After reviewing the relevant jurisprudence, Justice Gleeson held at paragraph 195 of his decision that the Court should considerthree factors when determining whether illegally obtained evidence should be admitted in support of a warrant application.

These factorsare: (1) the seriousness of the illegal activity; (2) fairness; and (3) the societal interest. [114] Justice Gleeson further stated that each factor required that the Court consider a series of sub-questions, some of which arerelevant to the issues on this appeal. These sub-questions are: A. Seriousness of the Illegal Activity: i. Was the illegality minor, technical or trivial, or was it a significant breach of the law?

ii. Did the illegality arise out of inadvertent or unwitting conduct undertaken in good faith, or was it pursued knowingly, out ofignorance, recklessness, negligence, or willful blindness? iii. Was the illegality isolated or part of a broader pattern of conduct? B. Fairness: i. How closely linked was the illegal activity to the collection of the information? ii. Did the illegality meaningfully impact on individual legal rights or interests? iii. Does the illegality undermine the credibility or reliability of the information? C. Societal Interest: i.

Are there extenuating circumstances including, but not limited to, the immediacy or severity of any threat to the security of Canada,linked to the unlawfulness? ii. Are there any other factors that arise out of the unique circumstances of the case? [115] Neither the Attorney General nor the amici take issue with this test. The amici argue, however, that the seriousness of the illegalactivity is very much in issue in this case.

In particular, the amici point to the fact that the illegality on the part of the Service in this casewas not minor, technical or trivial, but was, rather, a significant breach of the law that was pursued knowingly, in the face of legal advice,and that it formed part of a broader pattern of conduct. III.

Issues [Back to table of contents] [116] The overarching issue on this appeal is whether Justice Gleeson erred in finding that the Service had breached the duty of candourthat it owed to the Court in [***Case B***] [117] In particular, the Attorney General challenges Justice Gleeson’s finding that the Service had breached its duty of candour infailing to identify and disclose that information that was being relied upon in both [***Case A***] and [***Case B***] had likely beenderived from illegal activities.

While the Attorney General concedes that issues of potential illegalities committed in the course of theService’s investigation should have been more clearly brought to the attention of Justice Noël in [***Case A***] he contends that nosuch concession was made with regard to [***Case B***] [118] The Attorney General further contends that Justice Gleeson erred in finding that in the “unique circumstances” of this case,counsel for the Service had a duty to proactively seek a waiver of the solicitor-client privilege that attached to the legal advice that theService had received with respect to the legality of [***certain collection methods***] and the payments and benefits provided to[***targets***] and to provide that advice to the Court. [119] There is no issue between the parties that the applicable standard of review is that set out in Housen v.

Nikolaisen, 2002 SCC 33,[2002] 2 S.C.R. 235. This is indeed the standard that has been applied by this Court in matters involving the issuance of warrantspursuant to sections 12, 16 and 21 of the Act, and more generally when this Court sits on appeal from Federal Court decisions relating tonational security: see X (Re), 2014 FCA 249, [2015] 1 F.C.R. 684, at paragraphs 41–42; Mahjoub v. Canada (Citizenship andImmigration), 2017 FCA 157, [2018] 2 F.C.R. 344.

Accordingly, pure questions of fact are reviewed on correctness, whereas findings offact and of mixed fact and law are reviewed on the standard of palpable and overriding error, unless an extricable error in principle isestablished. If an extricable question of law or legal principle can be identified, the standard of correctness applies. A. The Duty of Candour [Back to table of contents] [120] The duty to ma

[…]