An unhelpful ruling in Canada on intelligence gathering

If you were to ask most Canadians about our intelligence services the first response would very likely be “Wait!  We have intelligence services??” I am being only slightly facetious.  I imagine everyone knows about CSIS – the Canadian Security Intelligence Service (where I worked for 15 years) – and maybe a few recognise CSE – Communications Security Establishment (where I worked for 17.5 years) – but few have any real good idea what these agencies do and how. Canada’s intelligence community is not portrayed in the same way as the CIA, FBI, NSA, MI5 and others are: in fact there actually was a CBC parody of what I take to be CSIS a few years ago called Insecurity (it wasn’t bad as comedies go but did nothing to inform Canadians about what intelligence organisations really do).

As a primer for Canadians, and perhaps some of my readers, here is a short description of who does what in our country. CSIS is a ‘security intelligence’ organisation that has four collection and analysis priorities: foreign interference, espionage, terrorism and subversion (although the last one has seldom been investigated to my knowledge).  It is responsible for detecting threats along these lines and informing the government on those threats. Its main tools are human sources, federal court warrants, surveillance and partnerships both domestic and foreign.  CSIS has been plying its trade since it was carved out of the former RCMP Security Service in 1984.

CSE is Canada’s signals intelligence (SIGINT) and information security (i.e. it protects government communications from eavesdropping) agency.  Historically – it has been around in various guises since WWII – it was our main bulwark against the Soviet Union and its allies but it also has a ‘foreign intelligence’ function (i.e. the intents of foreign powers) and, since 9/11, a growing security intelligence mandate (from what I hear: I left CSE to join CSIS before the Al Qaeda attacks that day).

In a nutshell then, CSIS focuses on security while CSE trains its collection devices on foreign targets, although there is some blurring of the lines these days I am sure.  Furthermore, CSIS can go anywhere to collect information on threats to our security – it is not constrained by borders – while CSE cannot collect in Canada (unless there have been recent changes of which I am unaware).  The two agencies do work closely together and today are co-located in the eastern part of Ottawa.  The latter was not always the case and I have memories, some good and some not so good, of working at the old Sir Leonard Tilley building in south Ottawa: I have seen CSE’s new HQ and it is spectacular.

A recent judicial ruling in Ottawa on what CSIS can and cannot do has me befuddled.  Justice Noel stated on July 18 that CSIS, which does have a foreign intelligence function under Section 16 of the CSIS Act, cannot (emphasis added) collect foreign intelligence outside of this country.  Read that again: CSIS cannot collect foreign intelligence outside Canada.  Sound oxymoronic?  That is what the Act says: foreign intelligence must be collected ‘within Canada’.  Those behind the CSIS Act some three decades ago put the ‘within Canada’ clause, according to Justice Noel “to bar the Service from conducting CIA-like controversially aggressive ‘covert’ and ‘offensive’ activities abroad” and was to “mitigate the political, diplomatic and moral risk of conducting foreign intelligence collection abroad.”

Canada is one of the few countries I know that does not have an independent foreign intelligence agency or allows its domestic service to collect abroad.  We have one service that is supposed to collect information on threats to Canada and other matters that relate to international affairs but we handcuff it by saying the latter can only be done within our borders.  Does this make ANY sense?  It is important to underscore that CSIS can collect intelligence on security threats (e.g. terrorism) anywhere in the known universe.  It is only when it comes to foreign intelligence that the constraints are put on.

The impact of this ruling seems clear on the surface but it does raise questions.  If CSIS cannot deliberately collect data outside the country but information related to foreign affairs falls into its lap what should it do with it?  Do we want to continue to rely on our international partners for foreign intelligence?  Are their priorities the same as ours? Would the Canadian government, and by extension Canadians, not benefit from an independent Canadian-controlled agency to meet our intelligence requirements?  All very good questions.  On the other hand if CSIS were to have its mandate changed and the ‘within Canada’ clause in Section 16 removed there would have to be a reckoning of resource allocation and decisions made on what is more important: terrorist threats or the positions of foreign states on a trade treaty for example.

Way back in 1984 the boffins behind the CSIS Act did not want to create a Canadian ‘CIA’.  I suppose they had watched too much Hollywood (Bond and Bourne films) and were worried about the damage to the reputation of Canada should its spies start killing bad guys abroad.  That was Hollywood: there is reality and Canada’s interests to think about.  Furthermore, that was 1984: 34 years later perhaps the time is ripe for another look at the mandates of our intelligence services.


By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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