CSIS may have misused authority to commit offences, national watchdog finds
The intelligence service failed to properly document and authorize certain illegal activities it conducted for surveillance. Officials say they take the findings seriously.
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Canada's spy service may have misused its legal authority to commit certain offences while gathering intelligence, according to a report released Tuesday by the National Security and Intelligence Review Agency (NSIRA).
The CSIS Act allows designated employees to commit certain offences when collecting information, a power granted by the Liberals' 2017 national security reforms. The law explicitly forbids: wilfully obstructing justice, infringing on Charter rights, detaining, torturing, or killing a person. Employees committing offences or directing sources to do so must document why they believe their actions are reasonable and proportional. All employees committing an offence must be specifically designated to do so, and designated employees must obtain authorization from a senior official before directing another person to commit an offence.
NSIRA's review of 2022 and 2023 operations found that CSIS complied with restrictions on the types of permissible offences. However, the watchdog identified systematic gaps: some CSIS employees may have committed offences without required designation; direction to commit some acts may have been given without the authorization required by law; and CSIS sometimes failed to adequately document justification for offences. Justification statements are required to describe the nature of threat, the negative effects of committing the offence, the rational link between the offence and expected results, and alternative courses of action. Some justification statements didn't describe the nature of threat at all, others neglected to outline anticipated downsides, and some didn't document consideration of alternatives. NSIRA also found that some required internal reporting and notifications to the review agency were not done.
NSIRA recommends CSIS improve internal guidance, oversight, and quality assurance to ensure use of the justification framework complies with the CSIS Act and internal policy. CSIS spokesperson Eric Balsam said the service may not agree with all review agency findings but "holds the same strong commitment to transparency and accountability, and takes all potential non-compliance seriously." Balsam added that CSIS welcomes the review agency's recommendations and will take appropriate steps. "CSIS has a duty to ensure that all of its operations respect the rule of law, even more so when those operations require activity that would otherwise be considered illegal," NSIRA stated in its report.
Eight "classes" of illegal activities have been approved by the minister of public safety and an independent intelligence commissioner. Each instance requires authorization and written justification and explanation after the fact. The International Civil Liberties Monitoring Group called the findings "deeply disturbing."
By the numbers
What period did NSIRA review?
The National Security and Intelligence Review Agency reviewed CSIS operations during 2022 and 2023.
What are the main compliance gaps NSIRA found?
NSIRA identified that some CSIS employees may have committed offences without required designation, direction to commit acts may have been given without required authorization, and justification documentation was sometimes inadequate or missing details on threat assessment, negative effects, or alternative courses of action.
What types of offences are explicitly forbidden under the CSIS Act?
The CSIS Act forbids wilfully obstructing justice, infringing on Charter rights, detaining, torturing, or killing a person.
