The number of Canadian spies with permission to break the law is rising, according to an internal memorandum. The memo, marked secret, provides a glimpse into a murky world of how operatives can ignore normal rules with prior approval.
Under current legislation, people working with the Canadian Security Intelligence Service (CSIS) who are “acting in good faith” can obtain “limited justification” to “commit acts or omissions that would otherwise constitute offences,” said a memorandum to Canada’s public safety minister. That limited justification can be granted to agents, contractors or intelligence assets, legal analysts said.
These otherwise-illegal activities “may be committed, or directed to be committed, as part of the Service’s information and intelligence collection duties and functions,” said the November 2022 memo obtained under access to information legislation.
The memo was requesting sign-off for a new crop of spies.
Though data on the number of agents allowed to commit crimes was redacted from these records, the memo said the number of people with this special clearance is rising. The reason for the increase was redacted.
The records come at a tense time for the intelligence agency. There have been recent allegations from Canada’s prime minister that Indian government agents killed a prominent Sikh separatist in Vancouver; debates over foreign election interference; and concerns over how CSIS gathers information on opponents of large energy projects.
“We know the threat environment is becoming more extensive and diverse, so it should surprise nobody to see more special permissions,” Michael Nesbitt, an associate professor of law at the University of Calgary, told CBC News after reviewing the records.
“The devil is really in the details here. The real question is whether … there is sufficient oversight and review in place to ensure some level of transparency, to ensure accountability, and to protect against abuses.”
Protection from criminal liability, CSIS says
Once the minister grants approval, it lasts for a period of up to one year and can be renewed, the documents said.
A spokesperson for CSIS said the tools are crucial.
“There are important limits to what I can publicly discuss, given the need to protect sensitive activities, techniques, methods and sources of intelligence,” CSIS spokesperson Eric Balsam told CBC News in an email.
The legal justification framework cited in the memo, he said, means “that when a CSIS employee or human source acting at their direction, engages in activities with a suspected terrorist in the hope of gaining their confidence, they are protected from criminal liability.”
“For example, the very act of providing direction to a human source operating covertly within a suspected terrorist entity could potentially engage terrorism offences in the Criminal Code,” Balsam said.
“Another example is providing electronic items, such as a cellphone, to enable the human source’s access to vital information … Review, accountability and transparency are fundamental principles of any open, democratic society.”
Questions about oversight
However, civil liberties groups aren’t convinced the current sign-off system of pre-approvals provides the right oversight for spies operating outside of the law.
“We have deep concerns about a national security agency, acting in secrecy, being able to carry out these acts or offences,” said Tim McSorley, national co-ordinator of the International Civil Liberties Monitoring Group. “We really don’t know how they are using this; there needs to be clarity and accountability for the public.”
Under current rules, sign-off isn’t typically granted for an operative to perform a specific tactic. Instead, the requests seek permission to conduct activities under broad categories, McSorley added.
Civil liberties advocates agree there are specific cases when security officials may need to bend normal rules, such as gaining credibility for an undercover agent working to infiltrate a violent neo-Nazi group or terrorist organization.
However, given that intelligence gathered by spies rarely makes its way into open court — where accused parties have the right to defend themselves against allegations — McSorley would prefer these powers be left to police agencies.
Police, he said, typically aim to press charges, allowing for some level of due process for people accused of wrongdoing. Courts can then examine the tactics used by security forces.
In contrast, spies typically gather information in the shadows.
“When intelligence agencies have these powers to do real-world activities, they usually happen in secret and can’t be challenged in open court,” McSorley said.
In an example of how alleged law breaking by intelligence personnel has transpired in the past, McSorley cited the 2015 case of Mohammed al-Rashed, an alleged CSIS intelligence asset in the Middle East who is accused of helping to smuggle three British schoolgirls into Syria to join ISIS in 2015.
The current rules mandating CSIS assets or agents get prior approval to break the law were not in place when al-Rashed was allegedly working with the agency.
“If Canadians knew CSIS was working with an individual engaged in human trafficking, that would lead to serious ethical questions,” McSorley said, adding that agents can theoretically now get advanced approval for similar types of lawbreaking.
Al-Rashed’s case, first brought to light by U.K. journalists, caused international uproar. In November 2022, Canada’s National Security and Intelligence Review Agency (NSIRA) launched a probe into what happened.
Who is getting permission?
According to the most recent annual report from NSIRA, CSIS was authorized to commit offences 172 times in 2022. That is up from 83 in 2019 and almost on par with 2021, which saw 178 authorizations,
In each of the four years cited in the report, non-CSIS employees received the majority of authorizations. In 2022, all but 41 permissions were granted to third parties, including intelligence assets — like al-Rashed is alleged to have been — or private contractors.
“That raises questions about why more individuals considered human sources and operatives are carrying out more of these acts — and what kind of oversight and review there is,” McSorley said.
Separately in the November 2022 memo, CSIS refers the public safety minister to “errors that we identified through an initial review.” The nature of those errors was redacted. The public safety ministry referred interview requests back to CSIS, which didn’t comment directly on this matter.
Later, the CSIS briefing says two employees were accidentally given this designation to commit offences, though “neither … invoked the justification framework.”
Even though those powers granted by mistake were not used, the situation still worries Brenda McPhail, acting executive director of a McMaster University master’s program on public policy in digital society.
“There’s a red flag there around process,” she told CBC News. “After all, these are the most extreme powers an agent can be granted, so extreme care in getting those designations right is required.”