This month, a rare attempt was made to hold Canada’s security establishment accountable.
It came from Liberal MP Salma Zahid of Scarborough, who put forth legislation that deserves to be pushed up the parliamentary calendar for immediate debate — it’s that urgent.
Zahid’s private member’s bill is a rare and explicit effort to get our security agencies and their spies to be more honest about their work. Specifically, it wants authorities to stop lying when applying for warrants or explaining themselves in court.
This is a serious problem, particularly for CSIS, Canada’s main spy agency, which has been harshly rebuked by judges in the past for lying. This is known as violating the “duty of candour,” or the need for honesty when attempting to justify trespassing on someone’s rights during an investigation. Failing to do so erodes public confidence in our authorities and in the stability of our civil rights and freedoms.
Zahid’s Bill C-331 proposes a public report be delivered annually to Parliament detailing instances when the duty of candour was breached, along with any remedial actions. It also seeks to “amend the oath of office sworn by the CSIS director and employees to include duties owed to the courts, such as the duty of candour.” These are modest and positive steps that anyone who cares about preserving civil liberties should support.
The warrant system exists to make sure authorities have nothing less than an overwhelming reason to violate someone’s rights during an investigation, like wiretapping their phone. No one is above the law and lying to get warrants amounts to grossly violating civil liberties. Unfortunately, that’s a charge CSIS has long been familiar with.
In July 2020, Federal Court Justice Patrick Gleeson criticized CSIS for “systemic, governance and cultural shortcomings and failures” that led to illegal operations. The service itself conceded the operations were indeed unlawful. One illustrative example is CSIS’s failure to disclose its reliance on illegally collected information when trying to get a warrant.
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About a month later, media reports surfaced of CSIS admitting to similar misconduct, this time to get a warrant issued in 2012 for operations against a Daesh, or ISIS, recruiter. That December, the National Security and Intelligence Review Agency, which provides oversight of national security activities, also issued a report saying CSIS likely broke the law by using people’s geolocation data without a warrant.
The list goes on.
These breaches illustrate the pattern of systemic problems that Justice Gleeson pointed out. Such behaviour has an outsized effect on the Muslim community, which has long been a major focus of Canadian intelligence, national security, and law enforcement after 9/11.
The Canadian government has, to take one example, paid out millions of dollars to Canadian Muslims like Maher Arar, Omar Khadr, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin for violating their rights. All were imprisoned and tortured overseas based at least partially on intelligence (on terrorism links) provided by the RCMP or CSIS.
Moreover, recent academic studies have shown that large segments of the Muslim population, including local leadership, have been visited, surveilled, and sometimes even threatened by CSIS. This includes university students, who were approached so often by CSIS agents that a hotline was set up for them to get quick legal support.
In short, there has long been a devastating and severe degrading of trust between Canadians and the national security establishment. Part of this is clearly due to CSIS and others willing to cross the line and break laws in order to carry through operations. This is a culture of impunity that needs to stop.
Bill C-331 at least attempts to have CSIS recommit to a standard of law and order. It provides an opportunity for authorities in the establishment to show good faith and the willingness to repair trust.
The bill will provide the minimal amount of transparency needed for elected leaders to scrutinize any breaches by security personnel. It is a first step towards holding accountable those who have been entrusted with so much power over our lives.
Steven Zhou is a writer for the National Council of Canadian Muslims (NCCM). He has worked for several years as a reporter, scriptwriter and producer for CBC News, CBC TV, CBC Radio, VICE News, and the Ottawa Citizen. His writings have been published in the Toronto Star, the Globe and Mail, Foreign Policy, and the Los Angeles Review of Books.