Canada federal court criticizes foreign intelligence service mismanagement of personal information News
Flic Kr, CC0, via Wikimedia Commons
Canada federal court criticizes foreign intelligence service mismanagement of personal information

The Federal Court of Canada urged the Canadian Security Intelligence Service (CSIS) to “do better” in fulfilling its duty owed to the court, according to a decision handed down by Chief Justice Crampton in October. The decision was declassified on Tuesday. The decision dealt with potential misrepresentations to the court in warrants to obtain Canadian individuals’ personal information.

Currently, section 16 of the Canadian Security Intelligence Service Act empowers CSIS to collect foreign intelligence within Canada to assist the Minister of National Defence or the Minister of Foreign Affairs. Section 21 further provides the performance of duties under section 16 requires an application for a warrant from Canada’s judiciary. The decision concerned the assistance provided by the Canadian Communications Security Establishments (CSE) to CSIS and CSE’s improper disclosure of Canadian Identifying Information (CII).

The Attorney General in Canada revealed, citing a report made by the National Security and Intelligence Review Agency (NSIRA) in 2021, that the CSE disclosed information collected pursuant to the court’s warrants in a manner that violated the CSIS’s key principle presented to the court. These inconsistent practices include the failure to distribute section 16 external intelligence reports on a need-to-know basis. The failure unnecessarily gave seven departments—other than the Privy Council Office and Global Affairs Canada—access to the reports.

In assisting CSIS to perform its duties under section 16 of the act, CSE also failed to adhere to CSIS internal guidelines and procedures, including the minimization procedures. The court also found that CSIS was unaware of the discrepancies between CSE’s practices and CSIS’s internal policies and procedures. However, the court noted that the inconsistency did not result in the release of CII that would have been kept confidential by CSIS. The small amount of exceptions have already been remedied or were not material.

The court also reiterated that CSIS owes a proactive and diligent duty to ensure that CSIS treats the information collected pursuant to judicial warrants in accordance with the warrants, the key principles CSIS previously presented to the court and Canadian laws. The court recognized an institutional failure to fulfill these obligations and asked CSIS to “do better” in order to restore institutional trust between CSIS and the Federal Court of Canada.

Apart from CSIS’s obligations to handle information according to law, the court also highlighted CSIS’s failure to inform the court of NSIRA’s discovery that would materially affect the Federal Court’s decisions in approving the warrant applications.

Relatedly, Canada launched a public consultation for the amendment of the Canadian Security Intelligence Service Act in November 2023. The amendment seeks to further empower CSIS to disclose information to agencies outside the Canadian government and to collect foreign intelligence from within Canada. The amendment also seeks to create new judicial control standards according to the intrusiveness of the investigative techniques to be adopted.