Intelligence and Evidence

Background

The intelligence and evidence (I&E) dilemma arises from the challenges and obstacles encountered when actionable intelligence is used to inform criminal investigations and eventual prosecutions, or other government action to address national security threats.

Protecting intelligence and/or sensitive information from public disclosure is the fundamental challenge facing governments. There are tools to protect sensitive information from unnecessary disclosure in court proceedings (e.g., section 38 of the Canada Evidence Act, s. 18.1 of the Canadian Security Intelligence Service Act), however, their use comes with uncertainty as claims of privilege are adjudicated in court and, ultimately, claims of injurious information are subject to the court’s interpretation. There are recent examples of decisions on the disclosure of information unfavourable to the government that have changed the course of proceedings in certain cases (e.g., Huang, an ongoing prosecution of espionage charges laid under the Security of Information Act).

The fear of disclosure of injurious information in court can lead to a chilling effect at the operational level, as national security (NS) agencies may be reticent to share information or collaborate, undermining the government’s ability to prosecute and ensure the security of Canada.

Status

Recent work to identify potential options to address I&E issues has identified that the legal framework is largely sound and that a drastic legislative overhaul to mandates or machinery is not required. The way forward, instead, consists of significant operational reform, complemented by targeted policy/legislative measures and related governance, coordination and process improvements.

Operational Reform

From an operational perspective, the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) are undertaking extensive efforts to reform their collaborative approach to identify and address NS threats, informed by two recent operational reviews. Broadly speaking, these reviews have found that within the existing legal framework, considerable improvements to the CSIS-RCMP relationship can be instituted to better leverage each organization’s mandate towards a truly collaborative model to address threats.

Targeted Policy/Legislative Reform

To complement operational reform efforts, in order to achieve a comprehensive approach to addressing I&E issues, the following key policy and legislative measures are being considered:

[Redacted]

Governance

Existing senior level committees are being explored as potential venues to ensure coordination across the NS apparatus to proactively mitigate I&E issues and better manage large-scale litigation implicating multiple departments and agencies.

Considerations

Failing to address I&E issues will continue to severely limit the government’s ability to deal with the most serious current and emerging NS threats. Further, partners will continue to experience difficulties in managing lengthy, burdensome court proceedings. Absent a statutory regime that facilitates the simultaneous use and protection of sensitive information in many judicial proceedings, the government will not be able to confidently rely on intelligence when acting to counter major NS threats such as economic-based threats.

Advancing legislative/policy and operational reform initiatives will involve significant budgetary considerations, including investments for new personnel, advanced information technology systems and secure infrastructure. Investments may also be required for the Federal Court, should [Redacted].

Next Steps