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

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

Thereportbythe National Security and Intelligence Review Agency(NSIRA), made public with redactionson Thursday, points to a troubled relationship between the intelligence service and the Department of Justice.

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

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

The agency would need awarrantto, for example,intercept a target'scommunications.

The report's authors wrote that while safeguards in the warrant application processare essential, the current systemis afflictedby excessive complexity and lacks clear lines of accountability.

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

A 'culture of distrust'

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

NSIRA said CSIS needs quickresponses when it's in the midst of an investigation and theDepartment of Justice hasstruggled at times to provide timelyand useful legal advice.

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

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

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

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

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

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

The statement adds that the government has retained anadviser, former Supreme Court judge Ian Binnie, to help with implementing the recommendations at the Department ofJustice.

CSISdoesn't prioritize warrant training

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

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

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

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

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

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

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

The next year, the Federal Court dismissed a CSIS warrantapplication after it determined thatsome of the informationin the affidavit was misleading and failed to disclose material facts.

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

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

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

NSIRAdefines "systemic" issues as those affecting the organization as a whole,not those stemming fromindividuals. Itdefines"cultural" issues as thosethat have emerged over time withinan organization as its memberslearned to work in a particular way througha shared understanding.

Low morale reported at spy agency

Thursday's report emerged froma 2020 Federal Court decision that found that CSIShad breached its "duty of candour" by failing to report that it relied on informationcollected illegally to supportwarrants in an extremism investigation.

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

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

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

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

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

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

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

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

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