(Ottawa) The Canadian Security Intelligence Service (CSIS) does not take sufficiently into account the reasonably foreseeable consequences on third parties when it uses its powers to reduce a threat, judges the National Security Activities Review Agency and Intelligence (OSSNR).
The federal agency criticizes CSIS for using an “excessively narrow” assessment framework to determine whether to issue a judicial warrant.
Eight years ago, the federal Parliament passed a law allowing CSIS to not only collect intelligence on espionage and terrorism activities in the country, but to take measures to reduce threats. For example, CSIS can cancel bank transactions, impede a person’s travel or interfere in the communications of a radical group.
By law, CSIS must have “reasonable grounds to believe” in a threat to national security before taking steps to reduce it. The agency must also obtain a court order if these measures contravene the Charter of Rights and Freedoms or other Canadian laws.
In addition, these measures must be fair and appropriate to the circumstances. They must take into account the availability of other means to reduce a threat, the consequences on a third party, in particular his private life.
In its report unveiled this week, the OSSNR examines how CSIS “adequately recognized, documented and considered the adverse impacts that these measures may have had on those affected” from June 2015 to December 2020.
The agency says that in some cases, CSIS “disclosed information to external entities with their own controls in an effort to mitigate recognized threats.” However, he notes “inconsistencies in the way CSIS reported on the information it had disclosed to external entities as part of threat reduction measures (MRM), especially since this information sometimes lacked clarity and precision.
The OSSNR points out that “precise content, including the scope and extent of information to be disclosed to an external entity for the purposes of an MRM, is particularly important and helps inform the assessment of the risks posed by the proposed measure”.
The review found that CSIS “does not attempt to sufficiently understand the ins and outs of the authorizations and capabilities available to external entities or to anticipate any adverse effects that the measures may have”.
The OSSNR regrets that CSIS has a “limited interest” in the possible consequences of threat reduction measures, especially those entrusted to other agencies.
“The OSSNR notes that CSIS cannot absolve itself of responsibility simply because the repercussions of an action would be caused by the intervention of a third party,” reads the heavily redacted report.
The assessment framework for judging these consequences should not be based solely on the immediate repercussions of CSIS’s action.
“This framework should rather consider all the repercussions of a measure, including the direct and indirect effects caused by the intervention of external entities,” adds the OSSNR.
The agency says that CSIS must obtain a warrant when an action risks infringing a Charter right or contravening Canadian law, “whether the infringement is the result of an action by CSIS or the ‘intervention of an external entity to which CSIS would have transmitted information’.
“However, although they provide a little more flexibility to CSIS, these powers also entail increased accountability, given their secrecy and the significant influence they can have not only on the subject of an MRM , but also on other people indirectly affected by said MRM,” the report states.
Unsurprisingly, CSIS disagrees with OSSNR’s recommendation regarding the use of third parties in support of measures to reduce a threat. He defends himself by saying that he “works closely with the Department of Justice to assess whether a warrant is required for each of its measures, including those that apply to third parties, all in accordance with the framework legislation in place”.
The agency fully or partially accepts the other recommendations of the report.
However, no one was available at CSIS on Friday to indicate the measures taken by the agency to correct the situation.
The International Civil Liberties Monitoring Group, an Ottawa-based group, finds it unacceptable that CSIS can ask a third party, such as a private company, to take action against individuals without accepting responsibility for the potential consequences.
For her, the fact that the CSIS does not approve the recommendation of the OSSNR “demonstrates that the agency continues to circumvent the law and that it can no longer be trusted in the exercise of its powers”.
“We’ve been told not to worry about CSIS’s threat reduction powers, because they’re not so invasive that they require the use of a warrant,” said Tim McSorley, the coalition’s national coordinator. It is now clear that CSIS entrusts these threat reduction measures to third parties. This serves as a pretext for them not to consider seeking judicial warrants. »
The coalition demands that the federal government suspend the powers of CSIS and refer the matter to the Federal Court.