A Liberal backbencher wants to introduce a bill that would set out new consequences for Canada’s spy agency and government lawyers who aren’t forthcoming in their requests for judicial warrants to conduct national security investigations.
The Canadian Security Intelligence Service has been admonished more than once in recent years for falling short on what the courts call the “duty of candour” — by failing to proactively identify and disclose all relevant facts in support of its warrant applications.
On Monday, Scarborough Centre MP Salma Zahid announced plans to bring forward a bill that would enshrine lawyers’ obligation to exercise the “duty of candour” in their dealings with the courts.
Zahid said requiring public disclosure of breaches and actions taken by CSIS and the public safety minister could also help rebuild public confidence in Canada’s security and intelligence institutions.
“As a member of the Muslim community who wears a visible symbol of my faith and as a mother who has raised two boys, my family and I are no stranger to being looked at with suspicion and worry when we go about our daily lives,” she told a news conference.
“I know how important it is that these institutions be subject to public oversight and held to the highest ethical standards.”
Zahid also announced her intention to launch public consultations about the proposed bill with policy experts and affected groups over the summer.
Agencies don’t ‘seem to be there to protect us’ — NCCM
The Liberal MP was joined at the press conference by the National Council of Canadian Muslims. The NCCM has criticized the spy agency’s opaqueness in the past.
“Actions taken by Canada’s national security and public safety bodies have tangible effects on the lives of Canadians, many of them in the Muslim community, which has been scrutinized under the harsh spotlight of national security since 9/11,” said the council’s CEO Mustafa Farooq.
“We have found again and again the agencies that are theoretically supposed to protect us from terrorist threats do not seem to be there to protect us. Rather, what we have seen is that these institutions not only fail to support marginalized communities but actively target them.”
Zahid’s announcement came one year after the Afzaal family was struck and killed by a truck in London, Ont. in what the police described as a crime motivated by anti-Muslim hate. Talat Afzaal, 74, Salman Afzaal, 46, Yumna Afzaal, 15 and Madiha Salman, 44, died in the incident, while the couple’s young son survived.
Farooq said CSIS has to be held accountable for its actions.
“How can we begin to feel safe from the threat of groups that are actively killing us when we know that these groups spend most of their time surveilling us? That kind of accountability is important,” he said.
“Until we actually start to see that kind of action, it’s going to be hard to actually really believe in this institution, which is an institution we need to believe in.”
Justice blames CSIS’s ‘institutional negligence’
In a decision released last summer, Federal Court Justice Henry Brown blamed “institutional and systemic negligence” for the latest instance of Canada’s spy service failing to explain sufficiently why it needed to intercept the communications of a “group of individuals” deemed to pose a threat to the security of Canada. The specifics of that request were redacted from the public version of the ruling.
A similar Federal Court ruling released in July 2020 said CSIS had failed to disclose its reliance on information that probably was collected illegally in support of warrants to probe extremism.
“The circumstances raise fundamental questions relating to respect for the rule of law, the oversight of security intelligence activities and the actions of individual decision-makers,” Justice Patrick Gleeson wrote in that case.
The National Security and Intelligence Review Agency, the main watchdog over CSIS, has been reviewing the “duty of candour” issue.
Another review, completed by former deputy minister of justice Morris Rosenberg, called for improvements such as better training and clarification of roles. That review also said those improvements would not succeed unless the “cultural issues around warrants” are addressed.
Private member’s bills rarely pass, although there are success stories.
At the start of every new Parliament, the Speaker of the House of Commons holds a random draw to determine the order of precedence for considering private members’ business.
Zahid said she plans to introduce the bill for first reading when the House of Commons returns after the summer recess.
While she is low on the order of precedence for second reading debate, Zahid said she intends to negotiate with her colleagues over the summer to see if she can move up the list to get the bill to second reading.
“I think it’s really very important that there is more accountability and more disclosure of any breaches,” said Zahid.
“It’s a debate that we need to have soon. “