New anti-terror tracking measures will address 'black hole': CSIS
Security lawyers warn that blanket intelligence source protection could endanger court proceedings
Public Safety Minister Steven Blaney has unveiled new federal plans to boost protection for intelligence sources, by giving them the same protections bestowed upon police informants in criminal cases.
The new bill, which will likely be tabled next week, is meant to clarify the current laws, the minister told reporters.
"CSIS is relying on those sources, since it is an intelligence agency, so that is why it is so critical and important that we enable CSIS with the same authority that other law enforcement agencies have … so CSIS can fully operate and protect Canadians within the scope of the law."
In response to a question on how such evidence could be tested in court without giving defence attorneys the ability to cross-examine sources, CSIS assistant director of operations Andy Ellis pointed out that the agency "has a very robust system in place" for gathering information.
"We make every attempt to ensure that the information we're getting is corroborated and accurate, and we do not act on single-source information."
Blaney provided details of the upcoming legislation at a news conference Thursday in Banff, Alta., where provincial and territorial justice ministers have been meeting.
Along with Ellis, he was joined by RCMP deputy commissioner Janice Armstrong.
'Black hole' on travel by suspected terrorists
The bill would also give Canadian security agencies greater powers to track terrorists abroad through expanded information sharing with partners.
Canada already relies heavily on the United States, Britain, Australia and New Zealand, fellow members of the so-called Five Eyes intelligence network.
Blaney acknowledged that such inter-agency co-operation "has happened at many levels in the past," but said the changes would explicitly authorize such practices.
"We now need to bring clarity to the law, so that these powers and these authorities that are within the law are clearly vindicated as we are facing this homegrown threat," he told reporters.
Ellis pointed to recent "thought-provoking" court rulings that, he said, had forced the agency to "reconsider how we undertook some of our operations to make sure that they were in keeping of what the courts had expected of us."
"Unfortunately, while we went about doing this, we held in abeyance the coverage of Canadians and other targets working abroad … representing a terrorist threat to Canada and to our allies," he noted.
"While that was held in abeyance, we had a black hole," he told reporters.
"We were unable to track where these people were, where they were moving, how they were moving and the nature of the threat they posed."
The new laws "will enable us to get back on the track we were on before to ensure we are able to perform the function that Parliament gave us in the first place."
The federal plan to bolster security powers follows a recent statement from the RCMP that the national police force has about 63 active investigations on 90 suspected extremists who intend to join fights abroad or who have returned to Canada.
'Highly dangerous' to extend witness protection: lawyer
Two lawyers with deep experience defending clients in national security cases have warned that extending blanket protection to spy sources could seriously endanger the fairness of court proceedings.
It could mean defence counsel and even judges would never have the right to question human sources who provide information on behalf of CSIS — such as when the government attempts to deport a terror suspect using a national security certificate.
Ottawa lawyer Norm Boxall, who represents Algerian refugee Mohamed Harkat in a security certificate case, told CBC News that there's no evidence such protections are required.
"These types of privileges can have far-reaching effects, and can close off information in cases where it would be important to have," he said.
"There is no problem to have a secret source — that can be done all the time, and within the existing law," he noted.
"The problem is when you have secret information and you choose to act on it, and that's the difference. If they want to use the secret information to enforce things — [for] deportation, or in criminal trials — they should have to produce the source."
Toronto lawyer Paul Copeland, who previously represented Harkat, said giving the class privilege to intelligence informants would be "highly dangerous."
"The only way you test evidence, in my view, is by cross-examining on it," he said in an interview.
"I think if they pass this class privilege, nobody will ever get at a human source in a national security case."
Copeland later served as a special advocate — a security-cleared lawyer who reviews and tests the federal evidence — in Harkat's certificate case.
He remains on the roster of special advocates periodically called to take part in security proceedings.
Cross-examining sources should be 'last resort': top court
The Federal Court of Appeal said in 2012 that human sources recruited by CSIS did not have the sort of blanket protection that shields the identities of police informants, even from the judge.
In the case of CSIS, this is instead decided on a case-by-case basis.
The Supreme Court agreed in a May ruling on the national security certificate regime that there should be no overarching privilege for CSIS sources.
The court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be "a last resort."
Making it standard practice to cross-examine CSIS sources, even behind closed doors, could "have a chilling effect on potential sources" and hinder the spy service's ability to recruit new ones, the court added.
Two judges — Rosalie Abella and Thomas Cromwell — dissented on the issue, saying CSIS informants are entitled to an assurance that the promise of confidentiality will be protected.
"This can only be guaranteed by a class privilege, as is done in criminal law cases."
Copeland points to a notorious chapter of the Harkat case in arguing there is good reason to test the credibility of human intelligence sources.
In a 2009 ruling in Harkat's case, Justice Simon Noel said CSIS "undermined the integrity" of the Federal Court's work by failing to disclose relevant details of a polygraph examination of a source.
CSIS neglected to tell him a secret informant failed portions of the lie-detector test — a lapse the spy service itself has called "inexcusable."
'Can't have their cake and eat it too'
Currently police can use information from secret informants to obtain search warrants or wiretap authorizations without fear the sources will be subject to cross-examination.
However, if those same informants are used as evidence of an accused person's guilt, the protection does not apply.
"They can't have their cake and eat it too," Boxall said.
"There is a real safeguard that's attached to the police informer privilege."
The new federal bill should include the same sort of protection to ensure fairness for someone facing allegations in a security proceeding, Boxall said.
Canada appears to be mistakenly following the British path as opposed to the American one, which sees informants testifying in court in terrorism cases and facing rigorous cross-examination, said Steve Hewitt, a senior lecturer in Canadian and American studies in the history department of the University of Birmingham in England.
"Informants provide information for a variety of reasons. Some are quite noble, others do it out of blatant self-interest, including the desire for money," said Hewitt, author of Snitch: A History of the Modern Intelligence Informer.
"There must be external scrutiny through a court of law or, inevitably, abuses of justice will occur."