Review of CSIS Warrant Practice

The government retained Murray Segal to provide advice on best practices in warrant matters. Mr. Segal is a former Deputy Attorney General of Ontario, with a long background in criminal law. He is currently in private practice, and has been retained by the provinces of Nova Scotia and British Columbia to review aspects of their practices and procedures before the criminal courts.

In carrying out his mandate, Mr. Segal met with officials within the Department of Justice and the Canadian Security Intelligence Service, judges of the Federal Court, and counsel across the country who have expertise in warrant practices. He was provided with top security clearance in order to facilitate his access to all material relevant to understanding the issues.

Mr. Segal’s exhaustive work resulted in 21 recommendations, summarized below.

Recommendation #1:

CSIS affiants need to be equipped with a profound understanding of the duty of candour, and sufficient skill and experience to successfully implement it.

Recommendation #2 :

CSIS affiants must exercise independence from the investigative team in ensuring that they fulfill their personal sworn obligation to make full, fair, and frank disclosure to the Court.

Recommendation #3:

CSIS should ensure that the role of affiant is a senior and respected role within the Service, and that affiants occupy that role on a recurring basis.

Recommendation #4:

Anything novel (e.g. technologically, legally) about a warrant application should be clearly foregrounded for the Court.

Recommendation #5:

The appointment of amicus curiae should be recommended where a warrant application raises a novel and/or difficult legal issue.

Recommendation #6:

Counsel’s guiding presumption should be to err on the side of disclosure.

Recommendation #7:

The Court should be informed when CSIS has changed its legal position in respect of an issue before the Court.

Recommendation #8:

A formal process should be implemented for identifying new or emerging issues touching on warrants that may become ripe for engagement with the Court.

Recommendation #9:

In preparing a warrant application, counsel and the affiant should be guided by the following question: “what should the Court know in order to adjudicate this particular warrant application in the context of its overall mandate to maintain a proper balance between state and individual interests under the Act?” This should include a consideration of the potential impact on other orders in force.

Recommendation #10:

The Department of Justice and CSIS should establish a formal joint policy on complying with the duty with candour in the CSIS warrant application process. It should be reviewed and revised as necessary at set intervals of two to three years (and earlier as necessary).

Recommendation #11:

Where a judge has provided input or expressed concern about some aspect of a warrant application and asked for follow-up, counsel should write to the judge promptly after the hearing responding substantively or proposing a timeline for a substantive response.

Recommendation #12:

Counsel for CSIS should have the ability to request an en banc sitting of designated judges when a legal issue of broad concern is identified.

Recommendation #13:

Where the Court believes it is appropriate, counsel should consent to holding “mini” en banc sessions of three or five designated judges where an issue of general concern to the warrant process is identified.

Recommendation #14:

A bench and bar committee should be established, with representation from both “sides” of the national security bar.

Recommendation #15:

Consideration should be given to submitting an annual report to the Court on CSIS responses to judicial input on warrants.

Recommendation #16:

The role of Independent Counsel be expanded to include scrutiny of legal and policy issues arising from a warrant application.

Recommendation #17:

Independent Counsel should be expressly empowered to recommend to Senior General Counsel that a request for the appointment of amicus be made to the Court.

Recommendation #18:

Develop a short list of senior PPSC counsel with relevant expertise who are available on short notice to provide advice on difficult warrant issues.

Recommendation #19:

Secondments of counsel from CSIS LSU to other branches of the Department of Justice, as well as to the Public Prosecution Service of Canada, should be encouraged.

Recommendation #20:

The judiciary should be approached about participating – with appropriate independence safeguards –  in warrant-related continuing education for CSIS employees and counsel.

Recommendation #21:

Security-cleared counsel in private practice should be involved in the provision of warrant-related training for CSIS employees and counsel.