Court ruling highlights need to give CSIS more power, expert says
By Glen McGregor
Ottawa Citizen

A court decision that stops CSIS from conducting an electronic surveillance operation overseas underlines the need to give Canada's spy agency a broader mandate for foreign operations, says a leading expert on Canadian intelligence practices.

In a decision released late Friday, the Federal Court of Canada struck down warrants that would have allowed the Canadians Security and Intelligence Service to intercept telecommunications involving 10 suspects in unnamed foreign countries.

The warrants wouldn't be binding in other countries, but because nine of the suspects are Canadian citizens or immigrants to Canada, they could claim a violation of their Charter rights if information obtained without warrant was used against them in Canadian courts.

The Federal Court decision hinged on whether the law that created CSIS gave it the power to spy abroad. The CSIS Act empowers the agency to investigate threats to Canada "within or relating to Canada," but other sections of the act restrict the gathering of information about foreign states to within Canada.

In a heavily-censored decision released Friday, Justice Edmond Blanchard wrote that while the language of the CSIS Act could be inferred as allowing the agency to operate abroad, the inference is not clear enough to support the issuing of the foreign surveillance warrants.  

That shows it might be time for the government to clarify the law and expressly give CSIS the power to investigate these kinds of cases abroad, says Wesley Wark, a professor in the Munk Centre for International Studies.

"It certainly is a reasonable option to give CSIS that extra mandate," he said.

"The CSIS Act is not sufficiently clear for a new era in which CSIS might be engaged in overseas operations. The definition of what CSIS is doing under the law will simply have to be changed."

Mr. Wark notes that the Communications Security Establishment, which monitors electronic communications, is prohibited from listening in on conversations between Canadians outside the country. He called this arrangement non-sensical and says it too should be revised.

Since the Sept. 11 terrorist strikes on the United States, some have advocated either giving CSIS a clear mandate to run operations abroad or setting up a separate Canadian foreign intelligence agency, akin to the U.S. Central Intelligence Agency or the British MI6.

Without its own spies abroad, they argue, Canada must rely on other countries' intelligence agencies to collect information relevant to Canadian security and it pass it on.

During the 2006 election campaign, Stephen Harper's Conservatives said they would set up an independent foreign spy service. Mr. Harper promised legislation to create the "Canadian Foreign Intelligence Agency" and co-ordinate it with other agencies including the RCMP and Canada Border Services.

But since taking office, the Tories abandoned the plan, saying a new agency would be too expensive and too slow to set up. The government said it instead favoured giving CSIS a new mandate to work abroad.

But the politics of giving Canadian security agencies new powers are tricky, particularly with lingering public concern about the treatment of Canadian Maher Arar, who was sent to Syria by U.S. authorities after they were provided misleading information by the RCMP.

Any changes to CSIS's mandate would require revisions to the CSIS act by the House of Commons, and would likely become the subject to intense debate.

But Mr. Wark doesn't think there would be too much resistance from Canadians, particularly if the mandate of the watchdog agency, the Security Intelligence Review Committee, were expanded at the same time, giving them oversight of CSIS's foreign operations.

Still, former CSIS executive David Harris says he doesn't know if Canadians are ready for the country to have its own CIA or MI6 equivalent doing what it takes to work covertly in hostile environments.

"What happens if our foreign intelligences officers are running operations abroad, and you find those people are captured?" he said.

"Are we going to cut and run and close down everything?  I'm not quite sure, as a nation, if we have the maturity to be able to handle that."


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