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TORONTO – Canada’s spy agency deliberately withheld information from the courts in an effort to do an end-run around the law when it applied for top-secret warrants to intercept the communications of Canadians abroad, a Federal Court judge said Friday.
In doing so, the judge said in written reasons, the agency put Canadians abroad at potential risk.
The situation arose five years ago when Canadian Security Intelligence Service asked Federal Court for special warrants related to two Canadian citizens — already under investigation as a potential threat to national security — that would apply while they were abroad.
CSIS assured Judge Richard Mosley the intercepts would be carried out from inside Canada, and controlled by Canadian government personnel, court records show.
Mosley granted the warrants in January 2009 based on what CSIS and Canada’s top secret eavesdropping agency — the Communication Security Establishment of Canada or CSEC — had told him.
However, Canadian officials then asked for intercept help from foreign intelligence allies without telling the court.
Mosley was unimpressed, saying the courts had never approved the foreign involvement.
“It is clear that the exercise of the court’s warrant issuing has been used as protective cover for activities that it has not authorized,” Mosley wrote in redacted reasons.
“The failure to disclose that information was the result of a deliberate decision to keep the court in the dark about the scope and extent of the foreign collection efforts that would flow from the court’s issuance of a warrant.”
Under current legislation, Federal Court has no authority to issue warrants that involve intercepts of Canadians carried out abroad by Canada’s “Five Eyes” intelligence partners, Mosley noted.
He said CSIS, which was granted several similar warrants on fresh or renewed applications in relation to other targets, knew the law but deliberately sought to get around the limitation by misinterpreting it.
“CSIS and CSEC officials are relying on that interpretation at their peril and… incurring the risk that targets may be detained or otherwise harmed as a result of the use of the intercepted communications by the foreign agencies,” Mosley wrote.
“(The law) does not authorize the service and CSEC to incur that risk or shield them from liability.”
The documents show alarm bells went off after the commissioner of CSEC, Robert Decary, tabled his annual report in August.
In the report, he suggested CSIS provide Federal Court with “certain additional evidence about the nature and extent” of his agency’s help to the intelligence service.
Mosley ordered both agencies to explain what Decary meant. He did not like what he heard about the hidden foreign involvement in the intercepts.
“This was a breach of the duty of candour owed by the service and their legal advisers to the court,” he said.
“It has led to misstatements in the public record about the scope of the authority granted the service.”
Mosley made it clear the warrants do not authorize any foreign service to intercept communications of any Canadian on behalf of CSIS or CSEC.
Nov. 19th, 2013. A Tuesday. The day started out sunny, but hail fell out of the sky in the afternoon. It was a Victoria day like any other until I found out the Canadian government has been vigorously spying on several Canadian organizations that work for environmental protections and democratic rights.
I read the news in the Vancouver Observer. There, front and centre, was the name of the organization I worked for until recently: Dogwood Initiative.
My colleagues and I had been wary of being spied on for a long time, but having it confirmed still took the wind out of me.
I told my parents about the article over dinner. They’re retired school teachers who lived in northern Alberta for 35 years before moving to Victoria.
I asked them: “Did you know the Canadian government is spending your tax dollars to spy on your daughter?”
Then I told them how one of the events detailed in e-mails from Richard Garber, the National Energy Board’s “Group Leader of Security,” was a workshop in a Kelowna church run by one of my close friends and colleagues, Celine Trojand (who’s about the most warm-hearted person you could ever meet). About 30 people, mostly retirees, attended to learn about storytelling, theory of change and creative sign-making (cue the scary music).
In the e-mails, Garber marshals security and intelligence operations between government operations and private interests and notes that his security team has consulted with Canada’s spying agency, CSIS.
To add insult to injury, another set of documents show CSIS and the RCMP have been inviting oil executives to secret classified briefings at CSIS headquarters in Ottawa, in whatThe Guardian describes as “unprecedented surveillance and intelligence sharing with companies.”
These meetings covered “threats” to energy infrastructure and “challenges to energy projects from environmental groups.” Guess who is prominently displayed as a sponsor on the agenda of May’s meeting? Enbridge, the proponent of a controversial oilsands pipeline to the coast of British Columbia.
I asked my folks: “Isn’t that scary? CSIS is hosting classified briefings sponsored by Enbridge?” No answer. My parents are not the type to get themselves in a flap about things like this, but I prodded them: “Dad, this is scary, right?”
“It’s scary,” he admitted.
How much information is being provided to corporations like Enbridge? What about state-owned Chinese oil companies like Sinopec, which has a $10 million stake in Enbridge’s Northern Gateway pipeline and tanker proposal?
What kind of country spies on environmental organizations in the name of the oil industry? It seems more Nigerian than Canadian.
I fought the urge to react with indignation, a sentiment I find all too common in the environmental movement. I also didn’t want to be overwrought about it. Fact is though, the more I thought about those documents, the more I began to feel a sense of loss for my country.
I’m not the touchy-feely type. Everyone from my conservative cousins in Alberta to my former colleagues at the Calgary Herald could attest to that. I grew up in northern Alberta playing hockey and going to bush parties. I think our oil and gas deposits, including the oilsands, are a great asset to our country — if developed in the public interest. Yes, that’s a big “if” — but Canadians own these resources and the number one priority when developing them should be that Canadians benefit.
For speaking up for the public interest and speaking out against the export of raw bitumen through the Great Bear Rainforest, hundreds of people like me have been called radicalsand painted as enemies of the state, as somehow un-Canadian. That last bit is what hits me in the gut.
I love my country. And in my eyes, there isn’t anything much more patriotic than fighting for the interests of Canadian citizens. I’ve argued that after 25 years of oilsands development, Albertans should have something to show for it — not be facing budget crises and closing hospital beds; that Albertans aren’t collecting a fair share of resource revenues; that we should develop resources at a responsible pace that doesn’t cause rampant inflation, undermining Canadians’ quality of life and hurting other sectors of the economy; that we should prioritize Canadian energy security (half of Canada is currently dependent on foreign oil). And I’ve agreed with the Alberta Federation of Labour that exporting raw bitumen and 50,000 jobs to China doesn’t make sense for Canadians
Now, I don’t expect everyone to agree with me, but it’s a stretch to portray any of those statements as unpatriotic or radical. In fact, one of my proudest moments as a Canadian was encouraging citizens to register to speak at the public hearings on Enbridge’s pipeline and tanker proposal for B.C. With a team of committed people at Dogwood, in collaboration with several other groups, we helped more than 4,000 people sign up to have their say — seven times more than in any previous National Energy Board hearing.
It was this act of public participation that sparked the beginnings of the federal government’s attacks on people who oppose certain resource development proposals. Helping citizens to participate in an archaic public hearing process is a vital part of democracy— not something to be maligned.
What makes me sad is the thought that we’ve been reduced to being the type of country that spies on its own citizens when they speak out against certain corporate interests. Not only that, but our government then turns around and shares that intelligence with those corporations.
Disappointingly, a scan of today’s news coverage indicates Canada’s major newspapers never picked up the spying story, save for one 343-word brief on page 9 of the Vancouver Province. Is it now so accepted that the Canadian government is in bed with the oil industry that it doesn’t even make news any more? Now that’s really sad.
Whether you agree or disagree with my ideas about responsible natural resource development, I’d hope we could all agree Canada should be a country where we can have open and informed debate about the most important issues of our time — without fear of being attacked and spied on by our own government.
A federal review agency says sensitive information gathered by the Canadian Security Intelligence Service could be abused by Canada’s allies due to lax sharing policies.
In its annual report, the watchdog that keeps an eye on CSIS flags concerns about what happens to intelligence that CSIS passes to the national eavesdropping agency, which in turn shares the details with foreign allies.
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The report underscores the fact CSIS is collaborating ever more closely with Communications Security Establishment Canada, which has come under scrutiny lately due to its participation in the international Five Eyes alliance.
CSEC, which monitors foreign telephone, satellite and Internet traffic, shares information with the U.S. National Security Agency and counterparts in Britain, Australia and New Zealand.
The American NSA has been the subject of almost daily headlines due to leaks from former contractor Edward Snowden that have revealed the agency’s vast surveillance of worldwide communications.
In its report, tabled in Parliament, the Security Intelligence Review Committee recommends CSIS develop clearer and more robust principles of co-operation with CSEC to ensure appropriate information sharing.
- BC Civil Liberties Association launches lawsuit against Canadian government over CSEC spying (blogs.vancouversun.com)
- Are you in Canada’s cyberspy data banks? Maybe. But good luck getting that info (globalnews.ca)
- Canadians sue their own government over domestic spying (dailydot.com)
- Allegations of CSEC spying against Brazil raise calls for greater oversight of secretive agency (canada.com)
The watchdog agency that oversees the Canadian Security Intelligence Service (CSIS) says it will review the complaint of a Hamilton man who alleges agents visited his house to “intimidate” him.
The Security Intelligence Review Committee (SIRC), the five-person board of political appointees that examines CSIS’s operations, has tapped chair Chuck Strahl to investigate the claim put by longtime activist Ken Stone.
In July, Stone made a formal complaint to SIRC about a Jan. 25 visit by CSIS agents to his Mountain home.
Stone, long a vocal labour and anti-racism advocate, said the agents asked him about an op-ed he wrote titled “Harper is wrong in demonizing Iran” that was published in the Jan. 11 edition of the Hamilton Spectator.
In his letter to SIRC, the 67-year-old alleges that the visit was intended “to intimidate me and members of my family from lawfully exercising our Charter rights to freedom of expression and association” and, counter to CSIS’s mandate, did not address a meaningful security threat.
The visit, he wrote, “caused me and my family a considerable amount of anxiety.” He has asked for a formal apology from CSIS as well as statement from SIRC demanding that CSIS “cease and desist from home and workplace visits to residents of Canada that are designed to intimidate residents of Canada from exercising their Charter rights.”
Last week, Stone received a letter stating that SIRC will hold hearings into the case, but a date for the proceedings has not been set.
Stone said he plans to attend the hearings in Ottawa, and will retain a lawyer to help him make his case.
Both ‘pleased’ and ‘disappointed’
Stone said he’s pleased the committee has chosen to take on his case, but he is doubtful that the process will yield the answers he seeks.
“On the one hand, I’m pleased that they have taken up the complaint because they had the discretion not to take up the complaint. The fact that they chose to take it up is a good sign,” he said.
However, Stone said he’s “disappointed” that Strahl, a former Conservative MP and federal cabinet minister, has been assigned to investigate the case.
“He’s a Conservative Party hack and I don’t expect a lot of sympathy from him.”
That Strahl and his fellow SIRC members are political appointees “shows a fundamental problem with oversight over CSIS,” Stone added.
Committee members, he said, would put their jobs at risk if they slammed the government’s policies, and neither CSIS nor Parliament are required to adopt SIRC’s recommendations.
Contacted by CBC Hamilton on Thursday, SIRC said it would not be able to respond to Stone’s criticism. But in an interview with CBC Hamilton in March, SIRC senior counsel Sylvie Roussel defended the committee’s integrity.
“We have a process and we follow that process,” she said, noting that panel members “take their role very seriously.”
‘Canadians deserve better’
Jean Paul Duval, a spokesman with Public Safety Canada, said the ministry does not comment on specific cases.
However, in an email statement to CBC Hamilton, defended SIRC’s review process.
“SIRC is at arm’s length from the Government and provides independent review that CSIS activities comply with law and Ministerial Direction,” he wrote.
When Stone first went public about the CSIS visit in the winter, he initially said he would not go through with making a complaint to SIRC, figuring it would be futile exercise. He later decided he wanted to his grievance on record, regardless of the outcome.
On Thursday, Stone said he hopes the government will eventually adopt an civilian oversight body — akin to the Ontario Civilian Police Commission — that is independent and not led by political appointees.
“All in all, it’s not a satisfactory oversight process,” Stone said. “Canadians deserve better.”
- Letter warning Stephen Harper against appointing Arthur Porter to oversee spy agency raised no red flags (news.nationalpost.com)
- Globe and Mail Exposed Criminal Csis (canadasblog.wordpress.com)
- Canada’s eavesdropping agency helped spy on G20: docs (globalnews.ca)
- Canada’s eavesdropping agency helped spy on G20, documents suggest (calgaryherald.com)
- MacKay issued seven secret directives to eavesdropping agency: documents (globalnews.ca)
- Nerd farm no more: Speech offers rare glimpse into eavesdropping agency (globalnews.ca)
- Privacy czar to probe Canadian impact of U.S. data program (cbc.ca)
- Canada’s eavesdropping agency helped spy on London G20 summit (ctvnews.ca)