R. v. Garofoli, 2020 FC 616

CONF-1-20 2020 FC 616 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 SERVICES ACT (RE) Federal Court, Gleeson J.—Ottawa (In Camera, Ex Parte ), October 1, 18-19 and November 7, 2018, January 14, 28, February 13, 21, March 29, April 1-3, 12, 17, 29, 30, May 13, 29, June 27-28, July 30, August 28 and November 1, 2019; May 15, 2020. Editor’s Note: Portions redacted by the Court are indicated by [***].

Security Intelligence — Matter arising from application by Canadian Security Intelligence Service (the Service) for warrants under Canadian Security Intelligence Service Act ( CSIS Act ) , ss. 12 , 21 in furtherance of its investigation of Islamist terrorism — Illegally collected information surfacing in warrant applications — Service’s commitment, ability to comply with duty of candour called into question — Service paying individual known to facilitate or carry out terrorism — Additional instances of potential illegality reported — Assessment by counsel for Service concluding Service probably engaging in illegal activity — Service not notifying Court of likely illegality — Service nevertheless putting information collected through illegal collection before Court in support of warrant applications — Attorney General of Canada submitting, inter alia, that Court should not automatically exclude illegally obtained information from warrant application — Arguing for flexible standard involving judicial discretion following consideration of various factors — How did candour breach occur; how was it to be addressed? — Whether designated judge may consider, rely on information likely collected in contravention of law — Whether Court may invalidate warrant after it was issued or take other action — Whether, where information excised from application, Court may continue to rely on pre-application consultations, approval requirements in CSIS Act, ss. 7(2) , 21(1) — Service breaching duty of candour — Breach resulting from institutional failures; questionable individual decision making contributing to or exacerbating breach — Legal risk assessment framework not misapplied — If activity illegal, cannot proceed — Within context of warrant applications pursuant to CSIS Act, ss. 12 , 21 , Court may consider information collected in contravention of law — Designated judges having authority to weigh competing interests, factors — Court should consider seriousness of illegal activity, fairness, societal interest in context of overall impact decision to exclude impugned information having on long-term repute of administration of justice — Court having inherent right to review ex parte order where new facts having impact on exercise of judicial discretion coming to light — Court’s power to control integrity of its own processes applying in context of warrant applications under CSIS Act —— Framework developed by Supreme Court in R. v.

Garofoli (criminal law context) applying to ex post facto review of CSIS Act warrant — Balancing analysis where issue of illegality brought before Court in ex post facto review engaging same factors, i.e. seriousness of the illegal activity, fairness, societal interest — Each factor engaging consideration of previously identified subsidiary questions — Approach involving balancing of factors to determine validity of national security warrant in context of candour breach requiring departure from Garofoli in this respect — Designated judge should apply Garofoli’s “could have issued” standard once excision determination made — However, as in criminal context, designated judge should not strike otherwise valid warrant unless underlying conduct egregious — If automatic excision leading to conclusion warrant could not have issued, designated judge required to engage in full balancing analysis prior to concluding whether warrant could have issued — Court having authority to order remedial measures in respect of invalidated warrant, to take remedial action in respect of information collected under warrant — Requirement under CSIS Act, s. 7(2) that Director of Service consult with Deputy Minister prior to warrant application or renewal fulfilling meaningful function — Disclosure of illegality after completion of consultation, approval process of interest to Minister, Deputy Minister — Open to designated judge to decline to issue warrant until Deputy Minister, Minister notified of illegality — Judgment: Duty of candour owed to Court breached.

External review should be initiated. The issues in the present matter arose from an application by the Canadian Security Intelligence Service (the Service) for warrants under sections 12 and 21 of the Canadian Security Intelligence Service Act ( CSIS Act ) in furtherance of its investigation of Islamist terrorism. The issue of illegally collected information surfaced as a result of the Court’s inquiries in one of the recent warrant applications. The Service’s failure to identify this issue called into question its commitment and ability to comply with the duty of candour.

As this proceeding unfolded and the issue of illegality crystalized, the Service advised the Court that it had relied on potentially illegally collected information in at least two other warrant applications. The subjects of the Service investigation were Canadian citizens who had participated in fighting with various groups associated with extremist

interpretations of Islam. In an effort to collect information, the Service had paid an individual known to be facilitating or carrying out terrorism an amount totalling less than $25,000 over a few years. Six additional instances of potential illegality involving the Service or human sources acting on the Service’s behalf were reported to the Court as this matter proceeded. Counsel for the Service applied a legal risk assessment framework in reviewing human source operations relevant to the warrant applications.

In each case, the legal risk assessment identified the issue of illegality and concluded that the Service or individuals acting under the Service’s direction were probably engaging in illegal activity. The opinions concluded that mitigation options did not exist. Having approved operations that were on their face illegal, the Service then collected information, which in turn was put before the Court in support of warrant applications, without notifying the Court of the likely illegality.

All those involved in bringing several applications for a warrant overlooked the fact that the applications included information gathered through activity that was on its face illegal. The Attorney General of Canada submitted, inter alia , that the Court should not automatically

exclude illegally obtained information from a warrant application. Instead, it argued that a flexible standard is required, one that involves judicial discretion following a consideration of various factors. The main issues were: how did the candour breach occur and how was it to be addressed?; whether a designated judge, in issuing a warrant under

section 21 of the CSIS Act , may consider and rely on information that was likely collected in contravention of the law and, if so, what factors are to be considered and weighed; whether the Court may invalidate the warrant after it was issued or take other action if it becomes aware that information placed before it was likely collected in contravention of the law; and whether, where information is excised from the application, the Court may continue to rely on the pre-application consultations and approval requirements at subsections 7(2) and 21(1) of the CSIS Act .

Held , the Canadian Security Intelligence Service breached the duty of candour it owed to the Court. An external review should be initiated to identify systemic, governance and cultural shortcomings and failures that resulted in the Service engaging in operational activity that was illegal and the resultant breach of candour. Institutional failings contributed to the breach of the duty of candour. In many instances, questionable individual decision making contributed to or exacerbated the impact of these failings. There was no suggestion in the evidence that the legal risk assessment framework was misapplied.

Rather, the evidence indicates that it is poorly suited to assessing and addressing potentially illegal activity. If the proposed Service activity is not authorized by the CSIS Act , there is no room to balance interests: the activity is illegal and cannot proceed. Characterizing unlawful activity in terms of risk does not change the fact that it is illegal. One reason why the Service and its counsel did not identify illegally collected information as an issue is that information relevant to the warrant application process was inaccessible, or not readily accessible, to those involved in the process.

The facts and evidence also raised questions relating to information sharing among senior Service officials. The circumstances and events that resulted in the Service engaging in illegal conduct contrary to legal advice warrants a comprehensive and detailed review, a review that is mandated to consider broad issues of institutional structure, governance and culture within both the Service and relevant elements of the Department of Justice.

Within the context of an application for warrants pursuant to sections 12 and 21 of the CSIS Act , the Court may consider information likely collected in contravention of the law. The common law recognizes that a judge may exclude evidence where its admission would affect the fairness of the proceeding. The exclusion of evidence under either the common law or subsection 24(1) of the Canadian Charter of Rights and Freedoms ( Charter ) involves a flexible, context-based analysis. The case law under

section 8 of the Charter departs from the flexible, context-based approach to the exclusion of evidence under the common law and subsection 24(1) . Under

section 8, if misleading, erroneous or unconstitutionally obtained information was relied on in obtaining a warrant, that information is automatically excised. Once the information has been excised, the Court must then consider whether it could have issued the warrant based on the remaining information. Automatic excision for the purpose of determining warrant validity does not extend to automatic exclusion of information collected under a warrant determined to be invalid.

The purpose of the excision doctrine—to prevent the state from benefitting from illegal acts of persons acting on its behalf—is relevant in the security intelligence context. If the automatic excision standard were adopted in this instance, illegally collected evidence placed before the Court in the national security context would have to be excised, when that same evidence might well be found admissible in a criminal proceeding under subsection 24(2) of the Charter .

An automatic excision rule could lead a designated judge to not issue a warrant due to a minor illegality even where the threat under investigation is significant. Such a stringent test would ignore the role of a designated judge in balancing the societal interest in maintaining national security against individual rights and interests and in turn might well undermine public confidence. Designated judges considering warrant applications under

section 21 of the CSIS Act are “gatekeepers of intrusive powers”. This gatekeeper function must include the authority to weigh competing interests and factors when issues of evidence admissibility arise. This conclusion is consistent with the case law and is reflective of past practice in designated proceedings. The Court should consider three factors when determining whether information connected to illegal conduct should be admitted in support of a warrant application: (1) seriousness of the illegal activity; (2) fairness; and (3) societal interest.

As is the case under subsection 24(2) of the Charter , a court should consider these factors and their underlying questions collectively in the context of the overall impact a decision to exclude the impugned information would have on the long-term repute of the administration of justice. The Court has the inherent right to review an ex parte order where new facts come to light after its issuance that could have impacted on the exercise of judicial discretion. The reasoning of the Federal Court of Appeal in Canada (National Revenue) v.

RBC Life Insurance Company , wherein it determined that the “Federal Courts’ power to control the integrity of its own processes is part of its core function, essential for the due administration of justice, the preservation of the rule of law and the maintenance of a proper balance of power”, applies equally in the context of warrant applications under the CSIS Act . To conclude that the Court lacks authority to review previously issued warrants where issues of candour subsequently come to the Court’s attention would insulate the Service from the consequences of its actions.

As to the appropriate test to be applied when reviewing a previously-issued CSIS Act warrant, it was helpful to consider the case law addressing the review of criminal search warrants. The criminal warrant case law was more applicable to the present situation than the civil law case law. Although a CSIS Act warrant serves a different purpose than a criminal warrant, there is no reason why the framework developed by the Supreme Court in R. v. Garofoli should not apply to the ex post facto review of a CSIS Act warrant.

The balancing analysis to be undertaken where an issue of illegality is brought before the Court in an ex post facto review engages the same factors: (1) seriousness of the illegal activity; (2) fairness; and (3) societal interest. Each of these factors would in turn engage a consideration of the previously identified subsidiary questions. An approach that involves a balancing of factors for the purposes of determining the validity of a national security warrant in the context of a candour breach requires a departure from Garofoli in this respect.

This was not to suggest that the automatic excision standard would not or should not apply where a national security warrant is challenged in the context of an ongoing criminal proceeding. Once an excision determination has been made, the designated judge should then apply the “could have issued” standard. Garofoli ’s “could have issued” standard does not displace the Court’s power to redress abuses of its own processes that may arise in instances where non-disclosure involves a breach of candour or some other form of improper conduct.

However, as in the criminal context, a designated judge should not strike an otherwise valid warrant unless the underlying conduct is particularly egregious. If automatic excision leads to the conclusion that the warrant could not have issued then the designated judge would be required to engage in a full balancing analysis prior to reaching a final conclusion on the question of whether the warrant could have issued. The case law supports the view that the Court’s plenary authority includes the discretion to order remedial measures in respect of an

invalidated warrant, including destruction of the information collected pursuant to that warrant. The Court’s undisputed authority torescind or vary a warrant issued on the basis of erroneous information or the failure to make full and frank disclosure includes theauthority to take remedial action in respect of information collected under the warrant. To conclude otherwise could undermine publicconfidence in the administration of justice.

Where a warrant is invalidated the Service cannot simply rely on its mandate to argue thatinformation collected under the invalidated warrant will remain fully available to the Service. The salutary effect of a recital or conditionreflecting the Court’s inherent authority to make further orders relating to information collected pursuant to the warrant would be ofbenefit. A final issue arose in the course of these proceedings relating to the adequacy of pre-application consultation and approval whereinformation is then excised from an application.

Prior to applying for or seeking renewal of a warrant, the Director of the Service mustconsult with the Deputy Minister (subsection 7(2) of the CSIS Act) and the Minister must approve of the warrant (subsection 21(2) ofthe CSIS Act). The Deputy Minister consultation fulfills a meaningful function. Fulfillment of that function will only occur where theDeputy Minister is made aware of all material facts. The severance of information or the subsequent disclosure of illegality aftercompletion of the consultation and approval process would be of interest to the Minister and Deputy Minister involved in that process.

Adesignated judge seized with a warrant application retains a broad discretion in respect of a decision to issue warrants. Where significantinformation is severed from a warrant, illegality is revealed, or other material circumstances are disclosed, it is always open to thedesignated judge, in the exercise of this broad discretion, to decline to issue a warrant until the Deputy Minister and Minister are notifiedof those circumstances. STATUTES AND REGULATIONS CITED Anti-terrorism Act, S.C. 2001, c. 41. Bill C-59,

An Act respecting national security matters, 1st Sess., 42nd Parl., 2017 (1st reading, June 20, 2017), cls. 100, 101. 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. 8, 24. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101. Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2 “dataset”, “human source”, “threats to the security of Canada”, 6,7(1),(2), 11.01–11.25, 11.13–11.15, 11.15(5), 12, 18, 18.1, 19(2), 20, 21, 27.1. Criminal Code, R.S.C., 1985, c. C-46, ss. 25.1, 83.03-83.33, 186(4). Department of Justice Act, R.S.C., 1985, c. J-2, s. 4(a). Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.

Interpretation Act, R.S.C., 1985, c. I-21, s. 17. National Security and Intelligence Review Agency Act, S.C. 2019, c. 13, ss. 9–12. Order Fixing the Day After the Day on which this Order is Made as the Day on which

Part 1.1 and Certain Provisions of that Act Comeinto Force, SI/2019-71,

(2019) C. Gaz. II, Vol. 153, No.15. United Nations Al Qaida and Taliban Regulations, SOR/99-444. CASES CITED applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Garofoli, [1990] 2 S.C.R. 1421, 1990, CanLII 52; Canada (National Revenue) v.RBC Life Insurance Company, 2013 FCA 50, [2013] 3 C.T.C. 126. CONSIDERED: X (Re), 2018 FC 738, [2019] 1 F.C.R. 567; X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396; R. v. Campbell, (SCC), [1999]1 S.C.R. 565, (1999), 43 O.R. (3d) 256; X (Re), 2013 FC 1275, [2015] 1 F.C.R. 635, affd 2014 FCA 249, [2015] 1 F.C.R. 684; Harkat(Re), 2009 FC 1050, [2010] 4 F.C.R. 149; R. v.

Grant, (SCC), [1993] 3 S.C.R. 223, [1993] 8 W.W.W. 257; R. v. Araujo,2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Jaser, 2014 ONSC 6052, 120 W.C.B. (2d) 241; R. v. Bacon, 2010 BCCA 135, 285 B.C.A.C.108; Mahjoub (Re), 2013 FC 1096, 457 F.T.R. 1; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R.344; Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R. v. Patrick, 2009 SCC 17, [2009] 1S.C.R. 579; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v.

Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531. referred to: Alberta Government Telephones v. (Canada) Canadian Radio-television and Telecommunications Commission, (SCC),[1989] 2 S.C.R. 225, (1989), 61 D.L.R. (4th) 193; Canadian Broadcasting Corp. v. Attorney General (Ontario), (SCC),[1959] S.C.R. 188, (1959), 16 D.L.R. (2d) 609; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3;R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7,[2015] 1 S.C.R. 401; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641; R. v.

Harrer, (SCC), [1995] 3 S.C.R. 562,(1995), 128 D.L.R. (4th) 98; The Queen v. Wray, (SCC), [1971] S.C.R. 272, (1970), 11 D.L.R. (3d) 673; R. v.Chau, [1997] O.J. No. 6322 (QL) (Gen. Div.), affd on other grounds (2000), 140 O.A.C. 56, (C.A.); X (Re), 2018

FC 874; X (Re), 2018 FC 738, [2019] 1 F.C.R. 567; Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, (1983), 26 Man.R. (2d) 194; Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, (1984), 55 A.R. 291; R. v. Morelli, 2010 SCC 8,[2010] 1 S.C.R. 253; R. v. Morris (1998), 1998 NSCA 229 , 173 N.S.R. (2d) 1, 134 C.C.C. (3d) 539; MTS Allstream Inc. v. BellMobility Inc., 2008 MBQB 103, 227 Man. R. (2d) 95; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617;Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th)385; Bergeron et al. v.

Deschamps et al., (SCC), [1978] 1 S.C.R. 243, (1977), 33 C.C.C. (2d) 461; Re Chapman andthe Queen (1984), (ON CA), 46 O.R. (2d) 65, 9 D.L.R. (4th) 244, [1984] O.J. No. 3178 (QL) (C.A.); Lyons v. TheQueen, (SCC), [1984] 2 S.C.R. 633, (1984), 14 D.L.R. (4th) 482; R. v. G.B. (application by Bogiatzis, Christodoulou,Cusato and Churchill) (2003), 108 C.R.R. (2d) 294, [2003] O.J. No. 3335 (QL) (Sup. Ct.); Goodwin v. British Colombia (Superintendentof Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, 26 O.R. (3d) 736;R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Telus Communications Co., 2013SCC 16, [2013] 2 S.C.R. 3. 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. Policy of the Department of Justice Canada and the Canadian Security Intelligence Service on the Duty ofCandour in ex parte Proceedings, February 23, 2017. Federation of Law Societies of Canada. Model Code of Professional Conduct, Ottawa (as amended March 14, 2017).

Keyes, John Mark. “Loyalty, Legality and Public Sector Lawyers” (2019), 97 Can. Bar Rev. 129 Security Intelligence Review Committee. Review of a Human Source Operation, SIRC Study 2008-4, March 9, 2009. Security Intelligence Review Committee. Review of CSIS’s Investigation of Canadian Foreign Fighters, SIRC Study 2015-09. May 27,2016. Security Intelligence Review Committee. SIRC Annual Report 2014–2015: Broader Horizons: Preparing the Groundwork for Change inSecurity Intelligence Review, Ottawa: Public Works and Government Services Canada, 2015. Security Intelligence Review Committee.

SIRC Annual Report 2015–2016: Maintaining Momentum, Ottawa: Public Works andGovernment Services Canada, 2016. MATTER arising from an application by the Canadian Security Intelligence Service for warrants under sections 12 and 21 of theCanadian Security Intelligence Service Act in furtherance of its investigation of Islamist terrorism. Duty of candour owed to Courtbreached. External review should be initiated. APPEARANCES Robert Frater, Q.C., Owen Rees, Gabrielle White, Helene Robertson, Nathalie Benoit, Jennifer Poirier and Stéphanie Dion for AttorneyGeneral of Canada.

Gordon Cameron and Matthew Gourlay as amici curiae. Anil Kapoor, Dana Achtemichuk, Brian Gover, Stephen Aylward and Donald Bayne for affiant. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Gordon Cameron and Matthew Gourlay as amici curiae. The following are the redacted reasons for judgment and judgment rendered in English by Gleeson J.: TABLE OF CONTENTS I. Overview II. Proceedings A. [***Case A***] B. [***Case B***] C. Notice to the Court D. January 2019 case management conference E. En banc hearing

F. Chief Justice’s initial direction G. Common issues hearings III. Background A. How did the issue of illegality arise?

(1) The Service must act within the law

(2) The Crown immunity doctrine

(3) The evolution of legal advice B. Service processes

(1) Assessing the legal risk of operations

(2) The warrant application process C. Bill C-59: Legislative reform to address illegality IV. Issues V. Analysis A. How did the candour breach occur and how is it to be addressed?

(1) The duty of candour

(2) The breach of the duty of candour

(3) The causes of the breach of the duty of candour

(4) Events following the January 2017 opinion

(5) Institutional and systemic issues contributing to the candour breach (

a) NSLAG knowledge management and information sharing (

b) The Department of Justice legal risk assessment framework (

c) The interplay between counsel’s duty of candour and duty of loyalty (

d) The role of the Department of Justice (

e) The warrant application process (

f) Information silos and compartmentalization (

g) Communications among senior Service officials

(6) Conclusion on candour B. May the Court consider and rely on information that was likely collected in contravention of the law? C. If the Court may consider and rely on information that was likely collected in contravention of the law, then what factors are to be considered and weighed? D. If, after a warrant has issued, the Court becomes aware that information placed before it was likely collected in contravention of the law, may the Court invalidate the warrant or take other action?

(1) A designated judge may review a prior decision to issue a warrant

(2) The Garofoli framework, modified to reflect the context, guides the conduct of an ex post facto review E. Should the Court invalidate an issued warrant, what authority does the Court have to make remedial orders regarding information collected under that warrant? How should the Court exercise that authority?

(1) The Court may make orders in respect of the use or retention of information collected under the authority of an invalidated warrant

(2) Retaining jurisdiction over collected information by way of condition F. Where information is excised from the application, may the Court continue to rely on the pre-application consultation and approval requirements at subsections 7(2) and 21(1) of the CSIS Act?

G. Application to [***Case B***]

(1) Overview

(2) The Service [***investigation***]

(3) Other instances of illegality

(4) Illegality and the exclusion of information

(5) Remaining issues (

a) The Service’s authority to undertake the [***investigation***] (b) [***Electronic communication***] (c) [***Electronic device***] (

d) Disclosure of source identity VI. Waiver of solicitor-client privilege VII. Concluding remarks I. Overview [Back to table of contents ] [ 1 ] Can a designated judge considering whether to issue a warrant under

section 21 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 ( CSIS Act ) rely on illegally collected information? If yes, what factors should the designated judge take into account?

These questions are novel and important. [ 2 ] Whether the Canadian Security Intelligence Service (CSIS or the Service) or its agents have illegally collected information relied on in a warrant application is also highly relevant to the exercise of a designated judge’s discretion to issue the warrant or not. [ 3 ] Regrettably, in recent warrant applications, neither the Service nor counsel for the Attorney General of Canada (AGC) brought the issue of illegally collected information to the Court’s attention.

Instead, the issue surfaced as the result of Justice Simon Noël’s inquiries in warrant application [***Case A***] [ 4 ] The Service’s and counsel’s failure to identify the issue of information that has been potentially illegally collected—an issue directly relevant to the judicial assessment of the application—calls into question the commitment and ability to comply with the duty of candour. How and why did such a fundamental breach of the duty to fully and frankly disclose to the Court all information relevant to the application occur?

What consequences flow from this breach? [ 5 ] As this proceeding unfolded and the issue of illegality crystalized, the Service advised the Court that it had relied on potentially illegally collected information in at least two other warrant applications: [***Case C***] before Justice Catherine Kane and [***Case D***] before Justice Henry Brown. This spawns additional issues. May a designated judge invalidate an issued warrant where it is subsequently discovered that the Service has breached its duty of candour by not disclosing potential illegality?

What is the impact upon the retention and use of information collected under a warrant invalidated in these circumstances? [ 6 ] On receiving notice of these issues, Justice Richard Mosley, who at that time was the coordinating judge of designated proceedings, convened an en banc hearing in February 2019. This was followed by common issues hearings presided over by the designated judges seized with the three applications impacted by illegality: myself (having taken carriage of [***Case A***] from Justice Noël), Justice Kane, and Justice Brown.

Throughout most of 2019, sitting together but individually seized, we heard evidence and received submissions common to all three applications—namely, the candour breach and the circumstances that permitted it. [ 7 ] Mr. Gordon Cameron and Mr. Matthew Gourlay have been appointed amici in [***Case B***] the en banc hearing, and the common issues hearings. [ 8 ] These reasons are lengthy. I begin with a general overview of the proceedings and then provide background relating to (1) the issue of illegality and how it arises in these matters;

(2) Service processes where the issue of potentially illegal collection activities should have been identified but was not; and (3) legislative reforms that were pursued to address illegality on a going forward basis. After identifying the numerous legal issues that arise in this matter I then consider each of those issues.

Finally, I address the specific issues that arise from [***Case A***] and [***Case B***]. [ 9 ] In the course of these proceedings the Director of the Service waived solicitor-client privilege over legal advice provided to the Service as it related to the issues of Crown immunity and illegality within this context. In the course of oral submissions it was suggested by AGC counsel that the waiver was not entirely voluntary. Although provided the opportunity to do so counsel did not advance further argument in this regard.

However, in light of the fundamental importance of solicitor-client privilege I briefly address the circumstances at the conclusion of this judgment. II. Proceedings [Back to table of contents ] [ 10 ] The issues before me arise from the Service’s application for warrants under sections 12 and 21 of the CSIS Act in furtherance of its investigation of Islamist terrorism and the [***] proposed warranted subjects of investigation identified in the style of cause. The Service filed this application in March 2018 under court file [***Case A***].

A. [***Case A***] [Back to table of contents ] [ 11 ] Justice Noël was initially seized with this application. In April 2018, he presided over an ex parte hearing. There, he identified areas of concern, which included the Service’s collection activities described in the supporting affidavit and the reference to one of the [***] targets as an [***].

In addition, he queried whether funds that the affiant reported had been paid to an individual “could be used for terrorist activities”, noting that the “ Criminal Code talks about that”. [ 12 ] Justice Noël was not satisfied with the responses provided to many of his questions. AGC counsel undertook to provide additional information. Ultimately, in considering the application, Justice Noël excluded all information obtained through the collection methods he had questioned or that was related to other identified areas of concern.

After doing so, he concluded that sufficient reliable information remained to satisfy the requirements of

section 21 of the CSIS Act. Justice Noël issued the warrants, but remained seized of the application for the purpose of dealing with the undertakings. [ 13 ] AGC counsel’s response to the undertakings triggered further exchanges with the Court and a case management conference (CMC) was held in May 2018. In June 2018, new AGC counsel assumed carriage of the file and wrote to the Court to acknowledge errors and omissions in the application including the human source précis. To address these, counsel proposed that the Service file a fresh application against the same subjects.

Counsel subsequently confirmed that the errors and omissions did not relate to the information that Justice Noël relied on to issue the warrants. [ 14 ] Justice Noël requested that the Chief Justice reassign the matter and I took carriage of the file in June 2018. [ 15 ] In July 2018, in a CMC, AGC counsel confirmed the Service’s intention to file a fresh application that would be more complete and address the identified deficiencies of the initial application. Counsel took the position that the fresh application would serve two purposes.

It would create a single record of relevant information that had previously been provided in various forms. It would also provide a venue to hear full evidence and argument on the important issues identified in [***Case A***]. B. [***Case B***] [Back to table of contents ] [ 16 ] In September 2018, the Service filed the fresh application: [***Case B***]. In October 2018, at the hearing of the application, I concluded that resolution of the outstanding issues from [***Case A***] was relevant in determining what was to be considered in support of the application. The [***Case A***] warrants remained in force.

I therefore reserved on determining the application pending consideration of the underlying legal issues. [ 17 ] In November 2018, I heard submissions for the purpose of defining the legal questions arising out of [***Case A***] and [***Case B***]. In December 2018, I issued a Direction which set out the issues for the AGC and the amici to address . As described below, the candour and illegality issues evolved significantly through January and February of 2019.

It became clear that the outstanding issues from [***Case A***] would require some time to fully address. [ 18 ] In April 2019, I heard updated evidence and submissions in [***Case B***]. After excluding from consideration the information identified in my Supplemental Order of April 4, 2019, I was satisfied that the remaining evidence met the requirements of

section 21 of the CSIS Act . The requested warrants were granted and remained in force until July 5, 2019. In granting the warrants I remained seized of the application for the purpose of addressing the outstanding issues. C. Notice to the Court [Back to table of contents ] [ 19 ] 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.

The letter advised that in the course of preparing renewal and supplemental applications for warrants the Service realized that some information that was relied on in two separate applications—[***Case C***] before Justice Kane and [***Case D***] before Justice Brown—was derived from potentially illegal activities. Warrants had been issued in both applications.

The letter also advised that the Service was conducting a review to determine whether this issue arose in other circumstances. [ 20 ] The letter enclosed a document entitled “Interim Direction on the Conduct of Operations Likely Involving the Commission of Criminal Offences”. The Deputy Director Operations for the Service issued this document the day before the Senior General Counsel wrote to the Court.

It indicated that the Service would no longer approve operations that were likely illegal—characterized as posing a “high legal risk” —and that the Service would review any such operations that were ongoing to mitigate potential illegality. D. January 2019 case management conference [Back to table of contents ] [ 21 ] In response to the Senior General Counsel’s letter, Justice Mosley, as coordinating judge of designated proceedings at the time, convened a CMC on January 21, 2019. The CMC was conducted by him and Justice Kane as Chief Justice Crampton, Justice Brown and I were not in Ottawa at that time.

The Senior General Counsel for the NSLAG appeared on behalf of the Service. He confirmed that the illegality involved conduct by the Service or human sources acting on its direction that was likely contrary to the anti-terrorism provisions of the Criminal Code , R.S.C., 1985, c.

C-46 ; that the Service had isolated in its databases information collected under the authority of the warrants issued by Justice Kane and Justice Brown; that although collection in these matters was ongoing, information collected under the warrants was being reviewed only to the extent necessary to determine if it disclosed an imminent danger; and that the Service was conducting a review to determine if information relied on to obtain any other active warrants had been collected through illegal activity. E.

En banc hearing [Back to table of contents ] [ 22 ] Further to the January 18 letter and the January 21 CMC, on January 29, 2019, Justice Mosley ordered an en banc hearing. In doing so, he noted the illegality issues identified by the Service and additional affidavit evidence filed in [***Case B***] on January 25, 2019.

[ 23 ] The additional evidence in [***Case B***] included two affidavits of documents that impact upon the broader issues that arise in this matter. [ 24 ] The first stated that the Director of the Service had waived solicitor-client privilege over six documents containing legal opinions addressing whether the Service benefited from Crown immunity. Attached as exhibits are three of those opinions.

Notably: one opinion from January 2017 and another opinion from January 2019, both of which conclude that the Service could not breach the Criminal Code under the guise of Crown immunity. [ 25 ] The second included the remaining three legal opinions over which solicitor-client privilege has been waived. These opinions are embedded in the documentation that evidences the Service’s review and approval of operations involving human sources. [ 26 ] On February 21, 2019, the en banc hearing proceeded before all available designated judges.

Those judges seized with the applications in issue presided to the extent that the en banc engaged questions relating specifically to those applications. At the outset of the hearing, the Chief Justice explained that the Court’s goal was to gain an understanding of the “broader issues” common to all three applications and the “potential implications” of these issues for other warrants. [ 27 ] The en banc hearing confirmed that candour and illegality issues were common to the matters before myself, Justice Kane, and Justice Brown, and that evidence would be required to address the common issues.

AGC counsel advised that it would file additional evidence to provide detail on the issue of illegality in each file, and to address the state of knowledge in both the Service and the Department of Justice in respect of that illegality. F. Chief Justice’s initial direction [Back to table of contents ] [ 28 ] After the en banc hearing, the Chief Justice issued a Direction as an initial response to the Court’s candour concerns and to highlight the importance of the duty of candour.

The Direction reiterates that the Service is bound by the duties of candour and utmost good faith and notes that the evidence as disclosed to that point suggested that the non-disclosure reported in the January 18 letter may be symptomatic of systemic failings within the Service and the Department of Justice. The Direction requires that specific candour- related statements, including a declaration, where accurate, that information relied on in an application had not been obtained as the result of any activity that raised a real concern of illegality be included by affiants in supporting affidavits.

The Direction also required the addition of specific recitals relating to the duty of candour in all draft warrants placed before the Court. [ 29 ] In April 2019, the Senior General Counsel for the NSLAG wrote to the Court in response to the Direction. He confirmed the Service’s intent to comply with the spirit of the Direction but expressed concerns with the wording of the candour-related statements. He proposed to file amendments for the Court’s consideration. He also advised that a practice direction would issue to NSLAG counsel addressing the Chief Justice’s concerns.

In April 2019, that practice direction was provided to the Court. It stated, in part: Warrant applications will not rely on information derived from unlawful activity of the Service or its sources. Where unlawful activity occurs it must be brought to the Court’s attention in warrant applications so that the Court may fully assess any circumstances which might reasonably be expected to have a bearing on the Court’s discretion to issue the warrant.

Where there may be doubt as to whether any activity undertaken is lawful, that activity should be drawn to the Court’s attention. [ 30 ] In September 2019, the Senior General Counsel for the NSLAG issued a second practice direction addressing the disclosure of information regarding human sources in warrant applications. [ 31 ] Recently, after further direction from the Chief Justice, submissions and proposed amendments addressing the expressed concerns of the Service with the prescribed wording in the Chief Justice’s Direction were filed.

The direction and its implementation remain before the Chief Justice and nothing in this judgment overtakes or reverses the Chief Justice’s Direction or the questions arising from it that are now being considered with the benefit of submissions from amicus curiae appointed by the Chief Justice. G. Common issues hearings [Back to table of contents ] [ 32 ] The initial application in [***Case A***] has resulted in protracted proceedings before the Court.

The evidence in each of the three applications [***Case C***], [***Case B***] and [***Case D***] and in [***Case A***] formed part of the record in the common issues proceedings. As the hearings unfolded, additional evidence of potential relevance was identified. The result was the production of documentation, the filing of additional affidavit evidence and the scheduling of additional witnesses as the proceedings unfolded.

This included the filing of additional affidavit evidence and the hearing of witnesses after oral submissions were received in June 2019. [ 33 ] In [***Case B***] and the common issues proceedings a total of 14 affiants placed evidence before the Court. These included senior officials within the Service and the Department of Justice, current and former. A number of affiants have filed multiple supplementary affidavits. Of the 14 affiants, 11 appeared before the Court for examination and cross-examination by the amici . Each of the required affiants appeared upon request, no subpoenas were issued.

Three affiants sought and were granted limited standing in the hearings which included the right to make limited written submissions. In each instance written submissions were provided. [ 34 ] The Court presided over case management hearings and sat to hear evidence or receive oral submissions on 24 days. The final oral hearing took place on November 1, 2019, and the final written submissions were filed with the Registry on November 28, 2019.

A further affidavit was filed by the Service on March 23, 2020, providing the Court with a copy of a recently completed review undertaken to address the use of human source information in [***Case D***]. I briefly address this report in my concluding remarks. [ 35 ] A

summary of the proceedings in [***Case B***] and in the common issues proceeding, including a listing of affiants identified by position, the dates affidavits were filed and the dates the Court sat are set out in Annex A, Appendices 1 through 4 for ease of reference. Annex A, Appendices 5 and 6 lists the more significant legal opinions over which privilege was waived and identifies Security Intelligence Review Committee (SIRC) Reports relevant to the issues.

III. Background [Back to table of contents ] A. How did the issue of illegality arise? [Back to table of contents ]

(1) The Service must act within the law [Back to table of contents ] [ 36 ] The Service’s mandate under the CSIS Act is to investigate threats to the security of Canada (subsection 12(1)). This includes the threat of terrorism posed by individuals or groups who are prepared to threaten or use violence for political, religious or ideological reasons (paragraph (

c) of the definition of “threats to the security of Canada” at

section 2 ). The successful fulfillment of the Service’s counter-terrorism mandate is challenging and the consequences of failure are significant. In pursuing its mandate, the Service must identify and obtain access to those who may pose a threat to Canada’s security. To do so, the Service uses a variety of tools. Despite the importance of the Service’s national security function, the tools available to it are not unlimited. [ 37 ] The Service is limited by what the amici have aptly described as its “foundational commitment” to collect intelligence within the bounds of the law.

This commitment is rooted in the 1981 McDonald Commission Report, a report that was instrumental in the development of the CSIS Act . It reads: … the rule of law must be observed in all security operations. Several meanings have been given to this phrase. The meaning which we have in mind is that expressed by the English writer, A.V. Dicey, when he wrote that … every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals ….

With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. In our context this means that policemen and members of a security service, as well as the government officials and ministers who authorize their activities, are not above the law. Members of the security organization must not be permitted to break the law in the name of national security.

If those responsible for security believe that the law does not give them enough power to protect security effectively, they must try to persuade the law-makers, Parliament and the provincial legislatures, to change the law. They must not take the law into their own hands. This is a requirement of a liberal society.

It is, therefore, unacceptable to adopt the view, which we have found expressed within the R.C.M.P., that when the interests of national security are in conflict with the freedom of the individual, the balance to be struck is not for the court of law but for the executive. … (Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report : Freedom and Security Under the Law , Vol. 1,

Part II, (Ottawa: Privy Council Office, 1981) (McDonald Commission Report), at page 45, paragraph 21. (Also see Vol. 2,

Part VI, at page 737, paragraph 135.) (Emphasis added; footnotes omitted.) [ 38 ] Various provisions of the CSIS Act are consistent with the McDonald Commission Report’s view that “the rule of law must be observed in all security operations” (subsection 12.1(3.4) and sections 20, 21 ). The jurisprudence also affirms the Service’s obligation to uphold the rule of law.

In X (Re) , 2018 FC 738 , [2019] 1 F.C.R. 567 , Justice Noël wrote that “the CSIS Act must be interpreted cautiously to ensure minimal infringement of our most fundamental liberties, while ensuring that the rule of law is upheld” (paragraphs 22–26; also see X (Re) , 2016 FC 1105 , [2017] 2 F.C.R. 396 ( Associated Data ), at paragraphs 129–132 ). [ 39 ] The Minister may issue written directions, commonly referred to as Ministerial Directions, to the Director of the Service regarding the control and management of the Service ( CSIS Act, subsections 6(1)–6(2)).

The Minister has exercised this authority in the form of a Direction relating to the conduct of Service operations and accountability (Ministerial Direction for Operations and Accountability, approved by the Minister of Public Safety and Emergency Preparedness on July 31, 2015, replacing the 2008 Ministerial Direction on Operations and the 2001 Ministerial Direction on Responsibility and Accountability (2015 Ministerial Direction)). The 2015 Ministerial Direction identifies observance of the rule of law as the lodestar in guiding the conduct of Service operations.

The 2015 Ministerial Direction states: The Government and the people of Canada expect a high level of performance by the Canadian Security Intelligence Service (the Service) in discharging its responsibilities under the Canadian Security Intelligence Services Act ( CSIS Act ) . It is also expected that the Service will perform its duties and functions with due regard to the rule of law and respect for the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms .

Pursuant to subsection 6(2) of the CSIS Act , I have issued the following direction to describe my expectations in relation to the conduct of the operations by the Service. FUNDAMENTAL PRINCIPLES The following fundamental principles will guide all Service operations : ● The rule of law must be observed[.] [Emphasis added.] [ 40 ] Thus, the McDonald Commission Report, the CSIS Act , the jurisprudence, and the 2015 Ministerial Direction all compel the Service to operate according to law.

(2) The Crown immunity doctrine [Back to table of contents ] [ 41 ] The gathering of intelligence in furtherance of the investigation of terrorist threats to Canada presents significant operational challenges. Not surprisingly observance of the rule of law, particularly where the law evolves or changes may, at times, exacerbate the already challenging circumstances in which the Service and its leadership must operate. This occurred in the aftermath of the 2001 terrorist attacks in the United States.

[42] Following those attacks, Parliament passed the Anti-terrorism Act, S.C. 2001 c. 41 (Anti-terrorism Act). The Anti-terrorism Actexpanded the scope of terrorism offences under the Criminal Code. (Part II.1 [sections 83.01–83.33] of the Criminal Code is reproducedat Annex B to these reasons for reference.) Among other things, it criminalized the provision of “property or financial services or otherrelated services” for the purpose of benefiting any person facilitating or carrying out any terrorist activity or knowing that doing so wouldbenefit a terrorist group (Criminal Code,

section 83.03). This posed a difficulty for the Service in that gaining access to the subjects ofnational security terrorism investigation at times requires the provision of money or property to these individuals. The Anti-terrorism Actamendments did not exempt the Service from the expanded terrorism provisions. Neither did the CSIS Act as it existed in 2001. [43] This raised the possibility of criminal liability attaching to certain of the Service’s activities.

Relying on the Crown immunitydoctrine, the Service, on the AGC’s advice, concluded that criminal liability did not arise in these circumstances. [44] The Crown immunity doctrine creates a presumption that the Crown is not bound by statute unless the statute expressly statesthat it binds the Crown; the statute clearly intends to bind the Crown; or the statute would be frustrated, or an absurdity would result, if itdid not bind the Crown (Alberta Government Telephones v. (Canada) Canadian Radio-television and Telecommunications Commission, (SCC), [1989] 2 S.C.R. 225, at page 281, (1989), 61 D.L.R. (4th) 193).

This principle is reflected in

section 17 of theInterpretation Act, R.S.C., 1985 c. I-21. Thus, in the Service’s view, it was in a position to conduct activities in carrying out its mandatethat on their face contravened the Criminal Code on the basis that Crown immunity shielded Service employees and human sources fromcriminal liability and therefore allowed it to operate within the law.

(3) The evolution of legal advice [Back to table of contents] [45] The Crown immunity doctrine had been a topic of longstanding discussion and concern between the Service and the Departmentof Justice. This discussion initially took place in light of the Supreme Court of Canada’s decision in R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, (1999), 43 O.R. (3d) 256 (Campbell) which addressed the doctrine of Crown immunity in the lawenforcement context.

There, the Supreme Court held that police officers posing as drug sellers and offering to sell drugs to seniormembers of a drug trafficking ring had broken the law and did not benefit from Crown immunity. In response, Parliament created astatutory regime through which police officers could obtain pre-authorization to commit otherwise illegal acts in furtherance of a validlaw enforcement objective (Criminal Code,

section 25.1). This regime does not extend to CSIS, its employees or its human sources. [46] In April 2002, after the passage of the Anti-terrorism Act, the Department of Justice generated an opinion addressing whether theCrown was bound by the amendments to the Criminal Code. This opinion relied on the Crown immunity doctrine in expressing thegeneral view that the Criminal Code provisions passed under the Anti-terrorism Act do not bind the Crown. The opinion noted that thecase relied on to support this opinion—Canadian Broadcasting Corp. v.

Attorney General (Ontario), (SCC), [1959]S.C.R. 188, (1959), 16 D.L.R. (2d) 609—is dated, and that “it is not entirely clear that the Supreme Court would arrive at the samedecision today if a case were to raise squarely the issue”. [47] In 2004, the Service requested advice from its Department of Justice Legal Services Unit (now the NSLAG and referred tothroughout as the NSLAG) on the potential liability of human sources and their handlers who may engage in activities which on theirface contravene the Criminal Code’s anti-terrorism provisions.

The NSLAG concluded that Crown immunity shields the Service’shuman sources and their handlers from criminal responsibility. This opinion relied on the 2002 opinion. It also reiterated the caveatscontained in that opinion, cautioning that Crown immunity should not be seen as a panacea for potentially illegal actions in furtherance ofthe Service’s mandate.

It suggested legislative reform be considered to resolve the uncertainty. [48] In an April 2005 email exchange between NSLAG counsel and senior Service officials, counsel provided advice to the sameeffect, characterizing it as the Department of Justice’s “official position.” NSLAG counsel went on to express the view that the 2002opinion is weak, citing a lack of academic and recent judicial support for the Crown immunity doctrine. [49] The former Senior General Counsel for the NSLAG gave evidence to the effect that the issue arose throughout her nine-yeartenure, between 2009 and 2018.

In early 2011, she initiated work within the NSLAG to generate a discussion paper on the topic. ByApril 2013, this work culminated in another legal opinion. This opinion concluded that the likelihood of the Service successfully relyingon Crown immunity was low and recommended a legislative solution. The opinion highlighted that the Ministerial Direction then ineffect required that “the rule of law must be observed” and that human sources were to carry out tasks on behalf of the Service “withoutengaging in illegal activities”.

The opinion concluded that these factors would make it difficult to carry out illegal acts required toachieve mandated objectives. [50] In September 2013, the Senior General Counsel for the NSLAG placed the 2013 opinion before a meeting of the Service’sLitigation Committee. On review of the opinion, the Committee decided to explore the possibility of requesting an amendment to theMinisterial Direction to reflect the availability of Crown immunity and to document proposed legislative changes to ensure the Servicewas in a position to proceed with legislative reform if given the opportunity.

It appears, as noted later in these reasons, that anamendment to the Ministerial Direction reflecting the availability of Crown immunity was pursued in 2015 without success. [51] In its 2014–2015 Annual Report, SIRC [SIRC Annual Report 2014–2015: Broader Horizons: Preparing the Groundwork forChange in Security Intelligence Review]—charged with ensuring that CSIS used its powers legally and appropriately—raised concernswith human source operations potentially breaching the United Nations Al Qaida and Taliban Regulations, SOR/99-444.

Itrecommended internal mechanisms to ensure that no human source operations violated these regulations or any similar Canadian statuteor regulations. This was not the first SIRC study to address the issue of the Service and its human sources potentially engaging incriminal activities.

In a report released in 2009 the Committee specifically considered the implications of the anti-terrorism provisions ofthe Criminal Code, noting that “activities considered illegal under the Anti-Terrorism Act [are] potentially controversial … and should besubject to a high level of accountability” (SIRC Review 2008-04 Review of a Human Source Operation). Nor, as described below, wasthe 2014–2015 SIRC Annual Report the last word from SIRC on this issue.

The relevant SIRC studies are listed at Appendix 6 of AnnexA. [52] It is worth noting that in conducting its work SIRC had, and its successor the National Security Intelligence Review Agency has,

access to any information under the control of the Service.

This includes access to all information subject to any privilege under the law of evidence including solicitor-client privilege ( National Security and Intelligence Review Agency Act , S.C. 2019, c. 13 , at sections 9 – 12). [ 53 ] In May 2016, following an in-depth review of the Service’s foreign fighter strategy and human source operations (SIRC Review 2015-09, Review of CSIS’s Investigation of Canadian “ Foreig n Fighters” (Foreign Fighter Review)), SIRC recommended that the Service seek clarification on whether Crown immunity afforded CSIS employees and human sources protection from the Criminal Code ’s anti-terrorism offences.

In this recommendation, SIRC quotes from what has been described as a preliminary NSLAG opinion addressing the issue of Crown immunity in the context of the specific operation under review. That opinion described the Service’s ability to rely on Crown immunity as “a grey area”. SIRC was also provided with the 2013 opinion. The above recommendation was repeated in SIRC’s 2015–2016 Annual Report [ SIRC Annual Report 2015–2016: Maintaining Momentum ]. [ 54 ] The updated 2015 Ministerial Direction was issued to the Service by the Minister in July 2015.

In the course of preparing this update, the Service sought the inclusion of language that would recognize a Crown immunity exception to the requirement that the Service and its human sources comply with the law.

In June 2015, the Department of Justice’s Assistant Deputy Minister of Public Safety, Defence and Immigration addressed the request for the inclusion of wording recognizing an exception, stating that the Service likely did not benefit from Crown immunity: Justice is unable to provide such wording as the Department has advised that there is a low likelihood that human sources will be able to rely on Crown immunity as a defence in relation to activities that are offences under the Criminal Code or other statutes.

Moreover, Justice has also advised that there is a low likelihood that CSIS itself (including its officials and employees) would benefit from Crown immunity with respect to such activities. Bestowing of Crown immunity on CSIS is not consistent with the CSIS Act , which explicitly addresses unlawful activities, by for example, requiring under ss. 20(2) that the Director report to the Minister, where he is of the opinion that a CSIS employee may have acted unlawfully in the purported performance of his duties. … The new threat diminishment provisions [in the CSIS Act ] further support this view […].

The CSIS Act now refutes any possible argument that activities contravening Canadian law can legitimately be contemplated as “effecting” Crown purposes whether they are carried out by sources or by CSIS officials or employees. [Emphasis added.] [ 55 ] The then Senior General Counsel for the NSLAG describes this opinion as significant because it marks the first time that the Department of Justice unequivocally told the Service that it likely did not benefit from Crown immunity. [ 56 ] It is worth noting that the Service and the NSLAG did not provide SIRC with the June 2015 opinion as SIRC was preparing its Foreign Fighter Review.

Nor did the Service or the NSLAG provide SIRC the June 2015 opinion in response to the recommendation that the Service clarify the availability of the Crown immunity doctrine. This despite SIRC’s access to legal advice, the opinion being directly relevant to the review, contradictory of the previous advice that was provided, and seemingly fully responsive to the recommendation that the Service seek legal clarification on the protection afforded by the doctrine. [ 57 ] In October 2015, the NSLAG prepared further written advice for the Service on the issue of Crown immunity.

This advice contradicted the Assistant Deputy Minister of Public Safety, Defence and Immigration’s unequivocal opinion from June 2015. NSLAG counsel advised in October 2015 that the Department of Justice maintains that the Service “may rely” on Crown immunity, with the caveats relating to the uncertainty surrounding the applicability of the doctrine and the “medium to low chance” of success should the matter be reviewed by a court.

The Senior General Counsel for the NSLAG reviewed the October 2015 opinion, felt it was too favourable to the Crown immunity doctrine, and understood that the opinion had not been finalized. However, the advice was delivered to the Service’s Deputy Director Operations. [ 58 ] The SIRC recommendation led the NSLAG to prepare a new legal opinion. This new opinion, delivered to the Director of the Service in January 2017, concluded that the Service did not benefit from Crown immunity.

The Director recognized that the opinion foreclosed the Service’s reliance on Crown immunity and that this would have a significant impact on Service operations. The Director sought a meeting with the Deputy Minister of Public Safety and Emergency Preparedness, the Deputy Minister of Justice, and the National Security and Intelligence Advisor to discuss the opinion and potential legislative solutions. [ 59 ] In the meeting, the Deputy Minister of Justice advised that senior members of the Department of Justice would review the opinion.

The Department of Justice would then advise the Director of the Service and the Deputy Minister of Public Safety and Emergency Preparedness of the result of its review and whether viable solutions short of legislative reform existed. [ 60 ] The Director of the Service understood that the Department of Justice’s review would result in a definitive opinion on Crown immunity within a relatively short period. Pending receipt of that opinion, the Director understood that Crown immunity remained the basis upon which the Service could undertake operations that on their face breached the Criminal Code .

At this point, the Director ceased approving such operations. [ 61 ] The Department of Justice did not deliver a further opinion to the Service in the weeks or months that followed. It never did. It is not clear what inquiries the Director or others made to determine the status of the opinion. Any such inquiries were limited and informal. [ 62 ] The evidence does establish that following the high-level meeting at the end of January 2017, the Department of Justice prepared a draft legal opinion for the Deputy Minister as the Director understood would be done.

The draft opinion expressed the same conclusion as that reached in the 2017 opinion: the Service did not benefit from Crown immunity. The Department of Justice did not finalize this draft or deliver it to the Director of the Service. [ 63 ] NSLAG counsel continued to provide legal advice to the Service that addressed the question of Crown immunity in the context of specific human source operations. This advice was provided in compliance with the Service’s obligation under the 2015 Ministerial Direction to conduct operational risk assessments.

This advice was not responsive to the Service’s and more specifically the Director’s

expectation that a further Department of Justice opinion was to be provided on the issue of Crown immunity. [ 64 ] In the absence of such further advice, the Service continued to conduct previously approved high legal risk operations. Having ceased the approval of new operations following the receipt of the January 2017 opinion, approvals recommenced in late March 2017. These were operations that the opinion had concluded were illegal. B. Service processes [Back to table of contents ] [ 65 ] The evidence identified two processes as being of particular relevance in the context of the candour breach: the assessment of the legal risk of proposed operations and the warrant application process.

(1) Assessing the legal risk of operations [Back to table of contents ] [ 66 ] The 2015 Ministerial Direction requires that the Service, in undertaking operations, assess operational risk, political risk, foreign policy risk and legal risk. [ 67 ] The Department of Justice’s legal risk assessment framework forms the basis for this mandated legal risk assessment. The framework involves an assessment of risk based on the likelihood and impact of an adverse outcome. It considers these two factors concurrently to assess whether the overall legal risk level is low, medium, or high.

The legal risk assessment framework does not capture the concept of illegality. However, it does reflect the theoretical possibility that the likelihood of an adverse outcome is 100 percent. The Assistant Deputy Minister of Public Safety, Defence and Immigration addressed this on cross-examination: MR. GOURLAY: Q. So is it your understanding that the effect of the [January 2017] opinion was to take it from a 4 to a 5 in respect of Crown immunity? A. Yes. In terms of — yes. Q. And if it’s a 5, when it’s very high legal risk, a 5, is that something that-- let me put it this way.

Does the client need to be told, “You can’t do it,” at that point? A. Normally, maybe stepping back to the level 4, even with a level 4 or a high legal risk, it would be anticipated that the client in those circumstances would take actions to mitigate the risks, to lower the risk. And my understanding is that CSIS did take actions to mitigate the risk, not completely ceasing their operations, but starting to review their operations. Then, when you get to the higher level, normally clients are saying, “No authority, you can’t continue.” JUSTICE BROWN: Sorry. Normally the client would...?

THE WITNESS: At the highest level, I would say normally the client, when you say “high risk,” takes actions to mitigate risk, and I understand that CSIS in this case did take measures to look at their operations and try to mitigate some of the risk. JUSTICE BROWN: And at level 5, you said what? THE WITNESS: Well, level 5, usually there is a certainty that it is unlawful, a degree of certainty . MR. GOURLAY: Q. So that’s risk that couldn’t realistically be mitigated. Is that fair? A. Sure. … Q.

But you are advising them on the legal risk, and you’ve said that a very high legal risk, a level 5, is risk that cannot be mitigated. Right? A. Generally speaking, yes. Q. And where there is virtually no chance of an argument succeeding that the act in question was legal. A. Right, no credible argument left. Q. So, in those circumstances, wouldn’t you expect the client operating under the rule of law not to go ahead with an operation where that level of risk applied? A. Yes.

Generally, yes. [Emphasis added.] [ 68 ] NSLAG counsel applied this legal risk assessment framework in reviewing human source operations relevant to the warrant application in [***Case B***] In each case, the legal risk assessment identifies the issue of illegality and concludes that the Service or individuals acting under Service direction are very probably engaging in illegal activity. The opinions conclude that, short of not pursuing the activity, mitigation options do not exist.

One of the opinions notes that the reliability or value of the information to be collected “does not affect the legal analysis.” [ 69 ] Despite the absence of legal authority to conduct the activity, the bottom line legal assessment in each case is that the activities

constitute a “high legal risk”. In each instance, the Director of the Service approved the proposed operations. Approval was provided on the basis of a weighing analysis where it was concluded the anticipated reliability or value of the information to be gleaned from the operation justified the high legal risk. In one instance, the Director’s assessment included reference to a senior official’s note to the effect that approval “could be perceived by the Court as ignoring” Justice Noël’s concerns in [***Case A***].

Approval was nonetheless granted. [ 70 ] Senior Service officials and the Director balanced the absence of legal authority, characterized as risk, against the anticipated benefits of the operation. In doing so the Service viewed the absence of a legal authority to undertake the operations as being no different than an operational, political, or foreign policy risk. Having approved operations that were on their face illegal, the Service then collected information which in turn was put before this Court in support of warrant applications, without notifying the Court of the likely illegality.

(2) The warrant application process [ 71 ] Before the Service brings an application for a warrant, it subjects the proposed application to an internal review and approval process. Counsel, the affiants, senior Service officials, and senior Department of Justice officials all participate in this process. In conducting this internal review in [***Case C***] [***Case A***] and [***Case D***] all those involved in this process overlooked the fact that the applications included information gathered through activity that was on its face illegal.

An overview of the internal review process will assist in understanding the significance of this failure. [ 72 ] The Deputy Director Operations Secretariat manages the warrant application process within the Service. When the Service decides to apply for a warrant, it identifies an affiant, counsel, and others to prepare and review the application. [ 73 ] Counsel undertake an initial assessment of the information to be relied on in the application to determine if there are sufficient facts to support the issuance of the warrant under

section 21 of the CSIS Act . A meeting is then held and a

schedule is established addressing all of the steps required to prepare the application. [ 74 ] Service analysts then prepare affidavits with the affiant’s direct input. Counsel reviews and provides advice on the drafts. At this stage, counsel focuses on ensuring that the affidavits state how and when the information being relied on was acquired. [ 75 ] If human sources are being relied on this will be reflected in the affidavit, but counsel will have no information regarding either the source or the source’s relationship to the Service. This information is not provided to counsel at this stage.

Instead, counsel is later given the opportunity to review such information, but not to independently access the human source file. [ 76 ] Once a draft affidavit is complete, it is reviewed for factual accuracy and then approval is obtained from the Director General of the Service’s Operations Branch seeking the warrant. The Service then sends the affidavit to the NSLAG for further review and preparation for presentation to the Warrant Review Committee. The Director of the Service chairs the Warrant Review Committee.

The Senior General Counsel of the NSLAG, the Deputy Director Operations, the Assistant Director Operations, the Assistant Director Collection, the Director General of the Operations Branch seeking the warrant, and a senior representative from the Department of Public Safety and Emergency Preparedness Canada sit on the Warrant Review Committee.

The affiant, analyst, and counsel responsible for the warrant application also attend the Warrant Review Committee meeting. [ 77 ] In addition to the draft affidavit, the Warrant Review Committee also has access to a list of foreign agencies and human sources relied on in the affidavit’s preparation. Any human source is identified by code name.

Limited information relating to the source’s reliability, relationship with the Service, and access to the target of the warrant is also provided to the Warrant Review Committee. [ 78 ] After the Warrant Review Committee has reviewed the affidavit, draft warrants are prepared and reviewed. The Deputy Director Operations Review Committee conducts a further review of the facts as set out in the affidavit and ensures that the Warrant Review Committee’s comments have been addressed. At the same time, Service analysts generate a “source précis” with the help of the Human Source Operations

Section for each human source relied on in the affidavit. The source précis should detail a source’s relationship with subjects of the investigations and all other information that is pertinent to an assessment of the source’s reliability [***] Counsel then review the draft précis, again without the benefit of access to the underlying human source files. The précis is then the subject of a challenge session by the affiant, analysts, counsel and a Human Source Operations

Section representative. [***] [ 79 ] All

section 12 warrant applications are subject to a final review by independent counsel from the National Security Group of the Department of Justice. This review is intended to independently verify that the information placed before the Court accurately reflects the content of service records, has been placed in its proper context and its reliability has been accurately portrayed. The Independent Counsel is provided access to all underlying reporting relied upon in the affidavit and the source précis. [ 80 ] Once this process is complete, the Service may file an application. C.

Bill C-59: Legislative reform to address illegality [Back to table of contents ] [ 81 ] The Service and the Department of Justice had identified the development and implementation of a justification regime as the best means of addressing the issue of illegality. This option, which was consistent with legal advice provided over many years, was provided to the Minister of Public Safety in early-2017. The Service and the Department of Justice then worked to implement this option. When Bill C-59 was tabled on June 20, 2017, it included a justification regime (Bill C-59,

An Act respecting national security matters , 1st Sess., 42nd Parl., 2017, cls. 100 and 101 (first reading June 20, 2017)). The regime came into force on July 25, 2019 (SI/2019-71 [ Order Fixing the Day After the Day on which this Order is Made as the Day on which

Part 1.1 and Certain Provisions of that Act Come into Force ],

(2019) C. Gaz. II, Vol. 153, No. 15). IV. Issues [Back to table of contents ] [ 82 ] The issues to be addressed were initially identified in the December 2018 direction. At that time it was recognized that these

issues were subject to change as matters progressed. In written submissions the issues have been reformulated and I have characterized them as follows: A. How did the candour breach occur and how is it to be addressed? B. May the Court consider and rely on information that was likely collected in contravention of the law? C. If the Court may consider and rely on information that was likely collected in contravention of the law, then what factors are to be considered and weighed? D.

If, after a warrant has issued, the Court becomes aware that information placed before it was likely collected in contravention of the law, may the Court invalidate the warrant or take other action? E. Should the Court invalidate an issued warrant, what authority does the Court have to make remedial orders regarding information collected under that warrant? How should the Court exercise that authority? F. Where information is excised from the application, may the Court continue to rely on the pre-application consultations and approval requirements at subsections 7(2) and 21(1) of the CSIS Act ? G.

Application to [***Case B***] V. Analysis [Back to table of contents ] A. How did the candour breach occur and how is it to be addressed? [Back to table of contents ]

(1) The duty of candour [Back to table of contents ] [ 83 ] Justice Mosley, in X (Re) , 2013 FC 1275 , [2015] 1 F.C.R. 635 ( X (Re) 2013 ), affd by 2014 FCA 249 , [2015] 1 F.C.R. 684 ( X (Re) 2014 ), identified the broad nature and scope of the duty of candour in the context of a warrant application under

section 21 of the CSIS Act [at paragraphs 82, 83 and 87–89]: The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3, at paragraph 27 : In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank, supra , at para. 11.

Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct , c. 10, r. 8.

The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re) , 2010 FC 1243 , 224 C.R.R. (2d) 167, at paragraph 117 , revd on other grounds 2012 FCA 122 , [2012] 3 F.C.R. 635, appeal on reserve before the Supreme Court [the Supreme Court has since rendered its decision; see 2014 SCC 37 , [2014] 2 S.C.R. 33]; Charkaoui (Re) , 2004 FCA 421 , [2005] 2 F.C.R. 299, at paragraphs 153–154 ; Almrei (Re) , 2009 FC 1263 , [2011] 1 F.C.R. 163, at paragraph 498 .

In making a warrant application pursuant to sections 12 and 21 of the CSIS Act , the Service must present all material facts, favo

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