CSIS kept its spy program a secret from the courts, but ministers knew.
This week, Canadians received a shock to the system when a spate of news items revealed how police and spy agencies flout the law and moral conventions to spy on citizens and journalists, in some cases dating back for many years.
The largest blow to Canada's often rosy image came on Thursday when a federal court ruling revealed that the Canadian Security Intelligence Service (CSIS) has been operating a secret metadata collection program since 2006, and retained citizens' identifying information illegally. The question on every Canadian's mind now is: how, in our supposedly sleepy liberal democracy, did this happen?
In establishing the domestic spy agency with the CSIS Act, legislators largely left it up to CSIS itself to decide how the law should be interpreted. "It appears that CSIS got their own legal advice that gave them the most favourable spin or interpretation of the law that one could possibly take," said privacy lawyer David Fraser in an interview. "Really, stretching it almost to the breaking point."
"We believed we had the authority. Was it set out specifically? No, it wasn't"
In a call with journalists on Thursday, Chief General Counsel for the Department of Justice Robert Frater seemed to confirm this perspective. "Our legal position was that we were retaining it legally," he said. "We believed we had the authority. Was it set out specifically? No, it wasn't."
Frater said that in the warrants that CSIS applied for in order to surveil Canadians, no limits on retention of identifying data were set, but neither did any court say that the data could be kept indefinitely. When deciding what information was "strictly necessary" as is required by law, CSIS—which seems to have been operating in an oversight vacuum—decided that everything was necessary to retain.
It's worth noting that this has been going on since 2006, long before the hugely controversial Bill C-51 was made into law in 2015.
The retention of innocent Canadians' information wasn't just the result of a legislative misunderstanding. The court's ruling suggests that had CSIS made the courts fully aware of its metadata collection and retention program in 2006, or in any year during the intervening decade, the courts would have set clearer limits on what data CSIS can retain and for how long.
"It is absolutely clear that CSIS and their Department of Justice lawyers made almost superhuman efforts to keep the fact that they were retaining metadata from the federal courts," Fraser said.
Even more concerning is the admission by CSIS director Michel Coulombe in the same call with journalists that, although the spy agency never made the court aware of the program, every Minister of Public Safety since 2006 has been notified about it.
"In 2006, we actually wrote the Minister at the time explaining the program," Coulombe said. "Successors were also informed about the program."
So, who are the people who (according to Coulombe) knew what was going on with CSIS for ten years and didn't do anything to put a stop to it? They are: Stockwell Day, Peter Van Loan, Vic Toews, Steven Blaney, and finally, incumbent minister Ralph Goodale.
"What I'm seeing is bureaucratic capture—the bureaucrats run the show, and any briefing they received would have been from the same people who put the program together and already decided it was lawful," said Fraser. "Ministers are responsible for what happens on their watch," he added.
Motherboard reached out to four of the above named, with exception of Toews, who is no longer a member of parliament.
A spokesperson for Goodale's office confirmed he was first made aware of the program "a couple weeks ago," when the court's preliminary judgement was filed.
Stockwell Day, the Minister of Public Safety in 2006, denied being made aware of the program during his tenure in an email to Motherboard. "I was clear [in interviews] that at no time was I ever given any hint that any data was being treated outside of the legislated mandate, the word of the law or the spirit of the law," Day wrote. "It appears that others in the position subsequently were not informed of this either. I was pleased to see the CSIS apology to the court in that regard and their commitment to disengage from any such behavior."
However, the federal court ruling states that in 2006 CSIS "presented the program to the responsible Minister but not to the Court."
UPDATE: This article has been updated to include comment from former Minister of Public Safety Stockwell Day.
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