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Annual Report 1999-2000 - An Operational Audit of CSIS Activities
Notes
1 “Spy probe of China was aborted, Project examined Beijing's role in Canadian business and politics,
” Globe & Mail, September 30, 1999.
2 See ”CSIS Cooperation with the RCMP—Part I,” 1997–1998 SIRC Annual Report, and ”CSIS Cooperation with the RCMP - Part II,” 1998–1999 SIRC Annual Report.
3 During the course of its review, the Committee was able to reconstruct the identity of some of these (Sidewinder first draft report, for example), by gaining access to various Sidewinder files the RCMP had retained.
4 The Committee learned quite late in the course of its inquiries that unbeknownst to CSIS management, a Service employee had retained in his own files a copy of the first draft Sidewinder report and some supporting documents.
5 “Project Sidewinder Analytical Project Plan,“
March 1997.
6 Measures adopted during the G7/P8 Ministerial Conference on Terrorism, Paris, June 1996.
7 Specifically, provisions in the Canadian Charter of Rights and Freedoms and certain limitations inherent to the Criminal Code.
8 See “CSIS Cooperation with the RCMP—Part I,
” SIRC Annual Report 1997–1998, pp. 30–31.
9 CSIS exchanges information with these domestic agencies for purpose of threat assessments.
10 “Proliferation Issues,
” Backgrounder Series, CSIS, no. 7, May 1999.
11 “Sensitive institutions
” refers to trade unions, the media, religious institutions and university campuses.
12 A replacement warrant is required when the Service changes the targets, the places or the powers of an existing warrant, or when an existing warrant expires and the Service wishes to continue the investigation using methods for which the Court's approval is necessary.
13 EXIPC was created in 1987 and had rarely met in recent years.
14 Following a formal request by the RCMP, CSIS discloses information or intelligence in a format that protects the identity of sources and the methods of operation. The disclosure includes a provision directing that the information be used only for investigative leads, not in judicial proceedings.
15 Following a formal request by the RCMP, usually subsequent to a disclosure letter, CSIS Headquarters gives permission to use Service information in judicial proceedings such as warrant applications and evidence at trial.
16 “National Security Offenses Review Report,
” RCMP Audit and Evaluation Branch, June 17, 1999.
17 CSIS Cooperation with the RCMP - Part I, October 16, 1998; CSIS Cooperation with the RCMP—Part II, February 12, 1999 (SIRC Study 1998-04); and Review of Transnational Crime, (SIRC Study 1998-01) August 25, 1999.
18 A dormant arrangement is one in which there has been no contact for one year or more. Liaison arrangements become dormant for a number of reasons: a simple lack of need to exchange information, concerns by the Service about the other agency's professional or human rights practices, or an assessment that the political situation in the other country is too unstable.
19 The Communications Security Establishment is an agency of the Department of National Defence. As described by the Communications Security Establishment Commissioner in his 1999–2000 Annual Report, the CSE “provides the Government of Canada with foreign signals intelligence (SIGINT) which it obtains by gathering and analyzing foreign radio, radar and other electronic emissions . . . the CSE also provides advice on the security of the government's information technology.
”
20 The format and content of Ministerial requests for assistance is governed by the 1987 tri-ministerial agreement on section 16 activities. “Memorandum of Understanding on Section 16 of the CSIS Act,
” signed by the Minister of Foreign Affairs, Minister of National Defence and the Solicitor General.
21 This number includes 6701 requests for security screening of applicants based in the United States.
22 When the Service believes that it is not in a position to render a recommendation to CIC concerning a citizenship application, it must seek approval from the Solicitor General to continue investigating the case and “defer
” providing the assessment.
23 This number includes the 4415 requests for assistance.
24 The majority (81) of applicants were from within Canada, whereas only 28 were overseas applicants.
25 The Bench was composed of Justices Linden, Robertson and Sharlow. Justice Sharlow rendered the reasons for judgment of the Court.
26 R.S.C. 1985, c.1-2.
27 Gibson J. refers to the following quote, found at [1996] 1 F.C. 174 (F.C.T.D.) at 241, as the grounds for the decision of MacKay J.: ”. . . paragraph 19(1)(g), in so far as it relates to “persons who there are reasonable grounds to believe . . . are members of . . . an organization that is likely to engage in . . . acts
” (“of violence that would or might endanger the lives or safety of persons in Canada
”), contravenes paragraph 2(d) of the Charter of Rights and Freedoms [hereinafter the Charter] which ensures, to every one, freedom of association. I find it is not established that this limit freedom under the impugned portion of the paragraph in issue is a reasonable limit demonstrably justified in a free and democratic society. I note that this determination does not relate to other classes of persons described in paragraph 19(1)(g) of this Act.”
28 More specifically, it was argued that the use of “subversion
” and “democratic government, institution and processes
” in section 19(1)(e) is “vague and not capable of being given a consistent and settled meaning
” and is therefore inconsistent with section 7 of the Charter and the principles of fundamental justice; that the term “subversion,
” as used in section 19(1)(e), infringed Mr. Yamani's freedom and equality rights under sections 2 and 15 of the Charter by being overly broad and lacking “definitional boundaries
” and that the phrase “reasonable grounds to believe
” in sections 19(1)(e) and (g) established an “illusory standard of defense
” which violated the principles of fundamental justice under section 7 of the Charter.
29 Gibson J. held the phrase “subversion
” was “incapable of framing the legal debate in any meaningful manner or structuring discretion in any way
” and thus infringed on Mr. Yamani's rights under section 7 of the Charter, however, it was saved under section 1 of the Charter as reasonable, prescribed by law and demonstrably justified in a free and democratic society. The court also found “subversion
” was not so lacking in definitional boundaries and overly broad to result in an infringement of freedom and equality rights under sections 2 and 15 of the Charter. Regarding the phase “democratic government, institutions and processes,
” the court held it was not so vague as to be incapable of being given a consistent and settled meaning, nor is it lacking in definitional boundaries or overly broad. He found no merit in the argument that the phrase “reasonable grounds to believe
” provides an “illusory standard of defense
” and held its use was not inconsistent with the principles of fundamental justice under section 7 of the Charter.
30 Shandi (Re) (1992), 51 F.T.R. 252.
31 Gibson J. noted that Mr. Yamani's testimony indicated “evasiveness and a willingness to lie
” and quoted the following from Mr. Yamani's testimony (which he found at p.17 of the Committee's Report): “As a Palestinian who lives in Lebanon and was born in Lebanon, I am not allowed to go back to the West Bank, and I am not allowed, maybe in two years, to go back to Lebanon. I might be deported from Canada. You do not want me to lie? To survive as a human being and to survive for my children, no, I will lie and I will lie and I will lie to protect myself. And I will lie without hurting anyone because I told you, I am not that kind of person who is stupid to go and do whatever activities.
”
32 SIRC Annual Report, 1997-1998, p. 11.
33 The Committee has been informed that CSIS and CIC have implemented this recommendation and now provide two to eight weeks written notice, depending on the location, and that the convocation letter specifies that the interview will be with a CSIS employee. It is Service policy not to raise objections to the presence of a third party observer.
34 The Committee recommends that the notice refer to the legislative mandate and state that the Service will be conducting the interview in order to issue advice to CIC in determining the applicant's admissibility in light of the inadmissibility classes of section 19 (1) of the Immigration Act and the definition of “threat to the security of Canada
” as defined in the CSIS Act.
35 This recommendation was also made in the report In Flux But Not In Crisis by the House of Commons Special Committee on the Review of the CSIS Actand the Security Offences Act, September 1990.
36 The Service's policy states: “An interview with an immigration applicant may be taped by an investigator only with the consent of the applicant or under the authority of a warrant. The investigator must not object should an applicant wish to tape an interview. In such circumstances, the investigator should also ensure the interview is taped
”. The Service contended that, as consent would not be forthcoming in all cases, this recommendation could not be equitably applied.
37 The Service's process has been changed since the issuance of the Committee's reports. Currently, reference material used to provide information and advice to CIC is scrutinized for accuracy under a three-tier review mechanism. This mechanism also provides for regular consultation with the Counter Intelligence Branch (CI) and Counter Terrorism Branch (CT) subject matter experts and, as required, by legal counsel. The Service believes it has sufficient levels of control in place to ensure accuracy, thoroughness and efficiency.