Section 54 Report - Annual Report 2006-2007

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Section 1.B Section 54 Report

Annual Report 2006-2007 - An Operational Review of CSIS Activities

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B. Section 54 Report

Section 54 of the CSIS Act entitles SIRC to provide the Minister of Public Safety with a special report on any matter relating to the performance of CSIS's duties and functions. SIRC determined that the events involving Mohammed Mansour Jabarah, as well as concerns raised by the Canadian Civil Liberties Association, were of sufficient importance to warrant a report of this nature.

In April 2005, the then-Minister of Public Safety wrote to the Canadian Civil Liberties Association to assure them that CSIS's actions in this investigation were “appropriate and in accordance with its mandate.” The Committee does not know on what advice the Minister based her response, but SIRC's analysis suggests that Section 12 of the CSIS Act would not have authorized all aspects of the investigation. This serves as a reminder of the importance of Ministers receiving accurate and comprehensive advice on such sensitive matters.

Review of the case of Mohammed Mansour Jabarah

Review 2005-05

Background

Mohammed Mansour Jabarah, a Canadian citizen, is an admitted al Qaida member and leader of a terrorist cell that planned to bomb the American and Israeli embassies in Singapore and Manila. If successful, the result could have been catastrophic. However, when the plan was thwarted he fled and was apprehended in Oman in March 2002. On short notice, CSIS officials travelled to Oman and unexpectedly found themselves having to arrange for Jabarah to return to Canada. CSIS paid for his ticket.

This investigation was unusual, if not unique, on several levels. In the post-9/11 environment, Canada was working hard to learn as much as possible about the threat from al Qaida, and to demonstrate its reliability as a close ally of the United States in the fight against terrorism.

Nevertheless, despite Jabarah's admissions, he could not be charged under the Criminal Code, since all of his terrorist activities pre-dated Canada's Anti-Terrorism Act. CSIS engaged in consultations with Jabarah which led him to sign an agreement to facilitate his entry into the U.S. In May 2002, he was transported there with the assistance of CSIS and subsequently pleaded guilty to a number of terrorism-related offences. At the time SIRC's review was finalized, Jabarah had still not been sentenced and he remains incarcerated.

SIRC decided to name this individual in its Annual Report, given that so much information about this case is already in the public domain. On August 14, 2007, the Privacy Commissioner was informed of SIRC's decision. This was done under paragraph 8(2)(m) of the Privacy Act which permits the disclosure of personal information when “the public interest in the disclosure clearly outweighs any invasion of privacy.”

Methodology

SIRC reviewed this investigation against CSIS operational policy and procedures, Ministerial Direction and applicable Canadian law, including the CSIS Act and the Charter of Rights and Freedoms. SIRC was also mindful of two facts: that Jabarah is a Canadian citizen, and that Canadian officials must act in accordance with the law.

SIRC examined classified, electronic and hard copy documentation concerning: CSIS's role during Jabarah's time in Oman and during his accompanied travel from Oman to Canada; after his return to Canada; and his transfer to American custody. The Committee also reviewed unclassified, open source material (a book, letters, media reports, etc.). In addition, SIRC received a general briefing from CSIS and an extensive briefing from the investigators assigned to this case. SIRC also obtained legal advice from the Honourable Gérard LaForest, C.C., Q.C., a former member of the Supreme Court of Canada who is a recognized expert on the Charter.

Because of the nature and gravity of the issues raised by its review, the Committee decided to submit its findings and recommendations directly to the Minister of Public Safety, under Section 54 of the CSIS Act.

Findings

This review highlights a much wider debate occurring in most western democracies. In a November 2004 speech, Mr. Justice Ian Binnie of the Supreme Court of Canada characterized the competing demands of national security and human rights as a “clash of titans.”

In reviewing this case, SIRC acknowledges that the context for these events, soon after 9/11, was such that the protection of Canada and cooperation with Canada's close allies were priorities across the security and intelligence community. SIRC was also told that CSIS believed that Jabarah had consented freely and voluntarily to cooperate with CSIS and to relinquish his liberty to a foreign jurisdiction.

Nevertheless, the Committee approached this study with the knowledge that Section 32 of the Charter applies to the actions of CSIS. Ministerial Direction further reinforces the requirement for CSIS to comply with the Charter. Because of events that occurred while Jabarah was in Canada and because CSIS helped to arrange his transportation to the U.S. on a Canadian government-owned aircraft, SIRC sought assurance that CSIS had exercised due diligence to ensure its actions were in accordance with Canadian law.

SIRC's review raised questions regarding CSIS's contention that Jabarah's decisions were made freely and voluntarily. SIRC concurs with LaForest that several of the circumstances surrounding this case would lead a court to scrutinize meticulously the actions of CSIS officials to determine whether Jabarah's decisions were completely voluntary. His decisions—made without the benefit of any independent legal advice—resulted in Jabarah's self-incrimination and surrender to U.S. authorities. SIRC believes a court would also have considered other factors, including: his age; his emotional state; whether his fear of the alternatives influenced his return to Canada from Oman; the length of time he spent in the company of CSIS officials while in Canada; and the circumstances surrounding his decision to surrender himself to a foreign jurisdiction.

SIRC was told by a CSIS investigator that Jabarah was not “read his rights” because CSIS is not a police service. This response—subsequently confirmed in writing by the Service—demonstrates a misunderstanding of the application of the Charter to government representatives carrying out their official duties.

Jabarah could not be prosecuted for any crime in Canada, since his terrorist activities pre-dated Canada's Anti-Terrorism Act. Neither CSIS nor the police had any right to detain him. Based on these and other circumstances, the Committee concluded that Jabarah was “arbitrarily detained” by CSIS in violation of Section 9 of the Charter. Because he was detained, his right to silence as protected by Sections 7 and 11(c) was violated, as was his right to counsel under Section 10. Furthermore, his right to remain in Canada as protected by Section 6 of the Charter (mobility rights) was breached.

Another Canadian agency informed CSIS that Jabarah could not be criminally charged, since the acts which he committed did not take place in Canada and were not crimes in Canada at that time. However, CSIS knew that Jabarah could be prosecuted in the U.S. During its review, SIRC became aware of actions undertaken by CSIS (which remain classified) that materially assisted U.S. law enforcement officials. For that reason, SIRC believes that CSIS could not be independent with respect to any consultations that it carried out with Jabarah. Moreover, these actions led SIRC to conclude that CSIS strayed from its security intelligence mandate into the area of law enforcement.

Finally, SIRC found that it was missing some documentation relevant to its review. SIRC saw references to meetings for which minutes were not kept, to interdepartmental consultations for which there were no written records, and to operational email messages that had been deleted. SIRC was concerned by these gaps in the written record. It was especially troubled that an investigation of such importance and sensitivity—which had a direct impact on the indictment and prosecution of a Canadian by U.S. authorities—could be conducted by CSIS without requesting any formal legal advice from the Department of Justice.

Recommendations

SIRC made six recommendations stemming from this review:

The 1987 Memorandum of Understanding (MOU) between CSIS and the Department of Foreign Affairs and International Trade (DFAIT) be updated to designate Foreign Affairs as the lead agency in cases involving Canadian citizens detained abroad. The MOU should also reflect the protocol recommended by Mr. Justice O'Connor, namely, “timely and open consultation among Canadian agencies” involved with Canadians detained abroad, “a coherent and unified approach” led by DFAIT and “accountability for the course of action adopted” in such cases.
CSIS amend its policies so that emails are automatically retained unless there is a conscious decision to delete them.
The Service clearly communicate to its employees what would constitute “recorded information,” as distinct from “transitory records,” and should therefore be filed and retained under applicable federal legislation.
Whenever possible, CSIS keep written records of its interdepartmental consultations, including but not limited to its formal and informal consultations with DFAIT and the Department of Justice.
CSIS ensure that the storage, retention and retrieval of all operational information under its control, including email messages, is in accordance with applicable federal legislation, including the CSIS, Privacy, Access to Information and Library and Archives of Canada Acts.
CSIS request and obtain written advice from the Department of Justice in operations where an individual is questioned in circumstances which may give rise to a detention, in order to ensure that the individual's Charter rights are respected, and in all occasions when it is unclear whether the Service's activity falls within its statutory mandate under Section 12 of the CSIS Act.

Conclusion

Jabarah is a terrorist but also a Canadian citizen, and no matter how despicable his actions, the Charter conferred on him certain fundamental rights. SIRC's mission is to protect Canadians' rights by ensuring that CSIS acts within the law. Therefore, the Service must comply with the Charter in carrying out its investigations as mandated by the CSIS Act, no matter what unexpected circumstances may arise.