CSIS Accountability and Legislative Reform

Background

In 1984, CSIS was established as a separate civilian intelligence agency as a response to the failings of the RCMP Security Service. The CSIS Act created strong accountability mechanisms, as well as the Service’s primary mandate to collect, analyze, and retain information “to the extent that is strictly necessary” to investigate and provide advice to Government on threats to the security of Canada.

The intervening 35 years have brought significant changes to the landscape in which CSIS operates, both with respect to the threat and technological landscape and to its legal authorities and accountability. These trends have had a significant impact on the Minister’s ability to exercise meaningful oversight over CSIS and CSIS’ ability to fulfill its mandate in support of the Government’s intelligence priorities.

CSIS has experienced significant challenges in adapting to the new technological and threat environment while operating in compliance with the legal framework. The Federal Court has twice found CSIS to have breached its duty of candour to the Court, and also determined that it had retained non-threat-related metadata without lawful authority. [Redacted]

Status

In September 2019, a standalone Ministerial Direction (MD) on Accountability was issued to CSIS. This was intended to address gaps that had been identified in CSIS’s accountability framework as a result of CSIS’s above-noted interactions with the Federal Court. The two primary changes were 1) an enhanced role for Public Safety in supporting the Minister’s accountability role, and 2) more detailed direction with respect to the duty of candour. A framework governing co-operation between Public Safety and CSIS is currently being negotiated.

Considerations

Notwithstanding the recent legislative changes, reform continues to be needed in order to clarify and update legal authorities and accountability mechanisms in response to certain ongoing issues:

  1. [Redacted]
  2. Operational Environment

A 2018 Federal Court decision on s. 16 of the Act outlined a clear gap with respect to collection of foreign intelligence information on individuals who are physically located within Canada [Redacted]. In addition, the Federal Court’s 2016 decision finding against CSIS’s previous interpretation of s. 12 has created legal uncertainty at the Service over the status of current holdings and future collection. The Service also finds itself constrained by its information sharing and disclosure provisions, which date from 1984.

As a result of these ongoing issues, the following key areas should be taken into consideration when exploring how to improve CSIS accountability and efficacy of CSIS operations:

  1. Strengthening the role of Public Safety – The CSIS Act requires CSIS to consult the Deputy Minister of Public Safety. The legal challenges faced by CSIS have highlighted the importance of this role in supporting Ministerial accountability for CSIS through well-informed advice to the Minister regarding significant and emerging issues affecting the legality and efficacy of CSIS operations. Public Safety will need to consider how to organize itself to best support you in the current dynamic threat and technological context.

[Redacted]

Consideration should also be given to a regular review of national security legislation that may consider minor modifications according to certain themes that affect CSIS operations, such as intelligence as evidence (we have provided you a separate note on this); foreign interference, and economic security. 

Next Steps

Public Safety and CSIS will work together to operationalize the new Ministerial Direction on Accountability, which will include a protocol on co-operation between the two organizations, as well as a new process intended to ensure that CSIS discharges its duty of candour.

[Redacted] CSIS, Public Safety, and the Minister, including increased scrutiny by review bodies. Public Safety, in co-operation with CSIS, will provide you advice as needed.

Public Safety will work with partners to bring forward to you options for legislative reform based on the most pressing needs.

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