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Annual Report 1999-2000 - An Operational Audit of CSIS Activities
Appendix D: Complaint Case Histories
Complaint Case Histories
This section describes complaint cases submitted to the Review Committee during the past year on which decisions have been reached. Not addressed are complaints that were handled through administrative review, were misdirected, were outside the Committee's mandate, or on which decisions have yet to be rendered.
Where appropriate, complaints are investigated through a quasi-judicial hearing presided over by a member of the Committee. After the hearings are complete, the presiding member provides the Solicitor General and the Director of CSIS with a decision. The complainant also receives a copy of the decision, after any information with national security implications has been severed from the document.
Of the four cases described below, three involve complaints pursuant to section 41 of the CSIS Act, and related to the Service's role in conducting security screening investigations on behalf of Citizenship and Immigration Canada (CIC). The fourth complaint was brought under section 42 of the Act by a federal government employee who was denied an upgrading in security clearance level.
Case #1
The complainant has been in Canada since 1988 and was granted permission to stay in Canada on humanitarian and compassionate grounds. He had applied for permanent residence and in October 1996, the Service forwarded its advice to CIC on his admissibility to Canada as defined under s.19 of the Immigration Act.
The complainant is a vocal supporter of an overseas nationalist movement. Nonetheless, following fifteen days of hearings and a careful review of all of the documentary and testimonial evidence, the Committee found no concrete evidence that the complainant is or ever was a member of a recognized terrorist organization. The Committee found that the Service's reports on its interviews of the complainant contained material inaccuracies about the complainant's replies to important questions, and relied on statements supposedly made by the complainant that were inaccurately recorded.
The Committee subsequently recommended that the Service inform CIC of the Committee's findings and of the Committee's recommendation that the complainant's application be processed for landing. This recommendation was in accordance with the terms of reference agreed to by all parties in advance of the hearing.
Case #2
The second complainant came to Canada in 1991. He was recognized as a Convention refugee and applied for permanent resident status. In 1995, the Service forwarded its advice to CIC on the complainant's admissibility to Canada as a permanent resident.
The complainant was described by the Service as a member of a terrorist organization who lied about his membership when he was interviewed by the Service. The two CSIS investigators believed that they had strong evidence to support their conclusion. The Service relied on the fact that the complainant had indicated his support of the organization, had associated with alleged members of it and was described by another person (who was himself reporting hearsay information) as a member.
The nature of the Service's interview itself became a significant issue in this case. The Service's view is that these interviews are part of an investigatory process, and provides some of the factual basis for CSIS' report to immigration. The investigator stated in his testimony to the Committee that he felt no obligation to discuss the Service's adverse information about the complainant with him because “we [were] just gathering information, . . . not making a decision.
” It is the Service's view that in such situations the applicant has the full responsibility for explaining the nature of his political activities and that the Service has no obligation to raise its concerns with the applicant.
The Committee does not agree. Rather, we believe that this approach does not give due consideration to the potential impact of a security screening interview, and is not in accord with the view it expressed in an earlier case, that the Service has a duty to “provide an opportunity for the prospective immigrant to explain adverse information.
”32 It is clear to the Committee that in this case, the complainant was never provided such an opportunity.
Although we believe the Service's initial interest in the complainant was reasonable, given the complainant's activities in support of the overseas nationalist movement, the Service's investigation failed to produce information which would constitute “reasonable grounds
” to conclude the complainant was a member of the terrorist organization.
The Committee recommended that the Service inform CIC of the Committee's findings and of the Committee's recommendation that the complainant's application should be processed for landing. This recommendation was in accordance with the terms of reference agreed to by all parties in advance of the hearing.
Case # 3
The complainant arrived in Canada in 1994, was granted Convention refugee status and applied to become a permanent resident.
In 1997, the Service forwarded its advice to CIC on the complainant's admissibility. The advice sent to CIC by the Service was based on a comparison of three documents: the personal information form (PIF) completed by the complainant when he claimed Convention Refugee Status; the immigration form completed by the complainant when he applied for permanent residence status; and, the CSIS report consolidating the notes of the two CSIS investigators who interviewed the complainant.
The Committee found the Service brief to be biased and full of conjecture, often repeating the same point as if to give it more weight. The Committee's investigation revealed that some of the Service's assertions lacked substantiation and some damaging allegations about the complainant were found to be untrue. The Service had not attempted to verify the complainant's alibi for his alleged activities which were of concern to the Service. In addition, the Service's advice was sent to CIC twenty-seven months after it interviewed the complainant and the information reported was out of date.
The Committee was also concerned by two other anomalies: CSIS investigators never provided the complainant with an opportunity to know and respond to the adverse information they held, and discrepancies identified by the analyst between the various information forms were not put to the complainant for clarification. The Committee also learned that one of the two CSIS investigators working on the case had limited knowledge of the emigré culture, the terrorist organization and of which cultural organizations in Canada were pro- or anti-the terrorist organization in question.
The Committee had no reason to disbelieve the complainant's account of his experiences in another country. Furthermore, the Immigration Refugee Board, the expert tribunal in this area, ruled that the complainant had a well-founded fear of persecution. The Committee was concerned to learn that the findings of the Immigration Refugee Board had been discarded by an analyst who had never met the complainant.
In sum, the Committee saw no evidence to indicate the complainant had ever been anything other than a peaceful and law-abiding individual. After an extensive review of all available documentary evidence and of the testimony adduced during six days of hearings, the Committee recommended to the Solicitor General that the Service inform CIC of the Committee's findings and of the Committee's recommendation that the complainant's application be processed for landing. This recommendation was in accordance with the terms of reference agreed to by all parties in advance of the hearing.
These three cases shared some characteristics in common, leading the Committee to findings and recommendations that were applicable to all:
- Individuals required to attend an immigration security screening interview with CSIS investigators should receive written notice of the date and time of the interview two weeks in advance of the scheduled interview dates33 and the notice should specify the purpose of the interview, that it will be conducted by CSIS investigators and that the applicant has a right to attend with counsel or another representative. The notice should also inform applicants that its assessment as to whether to recommend the granting or denial of an application rests on sufficient information being provided by the applicant.34
- (Applicable to cases 1 and 2 only) All immigration security screening interviews be recorded and the recording retained until a decision is made by CIC on the Service's advice regarding the application.35 If the Service makes a negative recommendation, the recordings should be kept until the immigration status of the applicant is determined.36
- The Committee found that criteria for what constitutes “
membership
” in an organization were applied by the Service in such a way as to cast an overly broad net, with the result that politically active but peaceful and law-abiding nationalists were labelled as “terrorists.
” For security assessments under the Immigration Act, it is the Committee's view that evidence of commitment or devotion to the cause and evidence that the person is prepared to respond positively to directions from the organization should be the major indicators of membership. The Committee believes the Service weakens its legitimate focus on terrorism when it extends the definition of membership in an “organization engaged in acts of terrorism
” to include people like the complainants in these three cases. - The Committee recommends that when the briefing unit of the Service's Immigration Security Screening Branch is preparing to issue a report to CIC, it draw together in committee the investigator who has interviewed the person, an investigator from the relevant operational desk, an officer not involved in the case to challenge adverse findings, and the Service's Legal Services Branch for the purpose of assessing the information, and ensuring uniformity and accuracy in the brief forwarded to CIC.37
- The Committee believes that information potentially leading to proceedings against an individual must be subject to the highest level of scrutiny for credibility and reliability.
Case #4
This case differs from the first three and concerns the Service's role in providing government security assessments. The complaint was lodged by an individual pursuant to section 42 of the CSIS Act.
In 1996, the complainant's position within a small government agency was declared surplus and a new position was found for the complainant requiring a level II security clearance. In July 1997, the Service recommended that the complainant be denied the necessary security clearance upgrade. The Deputy Head of the agency concerned accepted the Service's recommendation and informed the complainant that he would not receive a security clearance because the complainant's activities in Canada focused directly and indirectly in support of a recognized terrorist group operating overseas.
The complainant was very active as a leader in an ethnic community in Canada. He was a high profile advocate for a peaceful solution to the conflict in a foreign country and openly lobbied politicians and diplomats to this end. The complainant was never clandestine or even secretive in his activities on behalf of the ethnic community.
The terrorist group is recognized as a particularly ferocious one, which has few scruples about undertaking any action to advance its cause. As the Service's principal objective in the security clearance process must be the protection of the nation, in marginal cases the Service may be inclined to recommend against granting a clearance, based upon the principle that the only level of risk that is acceptable is zero. In investigating this particular case, the Committee also took into consideration the fact that in other cases the Service had recommended granting security clearance to persons “associated
” in one way or another with persons or groups considered a security threat, including the group at issue, because of the special circumstances involved.
With respect to the issue of association, the Committee believes that incidental association alone is not sufficient grounds to recommend a security clearance denial. There must also be evidence to support the reasonable belief that the individual may act or may be induced to act in a way that constitutes a threat to the security of Canada. Incidental association in itself does not constitute such evidence.
Following seven days of hearings during which extensive documentary and testimonial evidence was adduced, the Committee found that the evidence presented failed to establish reasonable grounds to believe that the complainant posed such a threat. The Committee found the Service's conclusions with regard to the complainant were unwarranted — the result of misinterpreted events combined with speculation. The CSIS report to the agency concerned contained several very improbable allegations and conveyed a negative view of the complainant's reliability that was largely unsubstantiated.
While the Committee could not say what conclusion the Deputy Head would have reached had a different report been provided, the points we identified as determinative of the Deputy Head's decision were found to be poorly supported or not supported at all. It is conceivable, therefore, that the Deputy Head's decision would have been different had the Service delivered a less tendentious brief. The Committee found nothing in the complainant's political convictions or actions in pursuit of those convictions that should have caused the Deputy Head to deny the security clearance upgrade.
The Committee recommended that in future the Service prepare official transcripts of the security screening interviews it conducts or, alternatively, prepare a written summary for signature by the interviewee.