Mr Hooper : […] But, as you have said, I think there are four basic elements to our security intelligence architecture, as you have described: mandate, powers, controls and review. Starting with mandate, the Mc Donald Commission of Inquiry observed that the mandate of the RCMP Security Security Service was diffuse and ambiguous and not founded in law. The Commission, among its recommendations, recommended that a civilian security intelligence service be created with a legislative mandate which would include threats to the security of Canada. We have talked about section 12. In fact that is what transpired and a feature of our legislation is what we call the primary mandate or our section 12 mandate, which is the authority to collect, analyse, retain information related to the threats of the security of Canada and to advise the government.
Mr David : If I could maybe interrupt you at this point. Section 12 is obviously a keystone provision of the CSIS Act. If we could refer to it in the actual legislation and perhaps highlight the main features of section 12. First of all, in terms of the duties and functions of CSIS, we see at section 12 that CSIS is involved in four basic activities. They can be described as collection, analysis, retention of information, as well as reporting of information. If you could give us an overview of those activities in terms of CSIS?
Mr Hooper : I think they kind of speak for themselves, but in terms of the important features of section 12 I think perhaps the most important feature is the “strictly necessary” provision, which limits the collection of information relative to security threats to that which is strictly necessary. It also speaks to threshold. Again, our threshold being reasonable grounds to suspect, which in main part distinguishes us from law enforcement agencies who operate under a reasonable grounds to believe a threat exists or a crime has occurred or is about to occur. In terms of our mandate, I think the principal distinguishing features would be three as it relates to section 12, again the threshold, the strictly necessary provision and, thirdly, the fact that we provide advice to government, which again a feature is distinguishing us from law enforcement agencies for the most part.
Mr David : Section 12 you have mentioned refers to the legal criteria of reasonable grounds to suspect. Can you contextualize that in terms of how a police force would undertake its work and how it affects the way CSIS undertakes its obligations under the law.
Mr
Hooper : I am not a lawyer, but I think the common
law tradition is there has to be a reasonable apprehension
that a crime has occurred or is about to occur before a law
enforcement agency can take action. The primary responsibility
of a security intelligence service is to provide forewarning
in relation to threats to the security of Canada. In order
to provide that element of forewarning, it is necessary that
we engage in investigations at a lower collection threshold.
We can’t wait until there is imminent, say, threat of
a terrorist act before we start collecting around it. I think
that was completed by the legislators when they drafted the
CSIS legislation. From the RCMP’s part, or any other
law enforcement body that matter ---and if I may frame my answer
around the national security domain and give the example of
the RCMP, they have responsibility to investigate threats to
the security of Canada or threats that derive – criminal
offences that derive from threat of the security of Canada
or criminal offences related to internationally protected persons.
Their threshold, again, is reasonable grounds to believe, which
brings them into the picture at a somewhat later point in an
investigation’s critical path than the service’s
would. As Mr Elcock said yesterday, there is no sharp, white
defining line between what the police do and what we do, but
the time of engagement is somewhat different between ourselves
and law enforcement and there is a degree of overlap where
security intelligence investigations and law enforcement investigations
may run in parallel. The art of what we do with the police
is to try to define the length of that area overlap, and that
differs from case to case.
Mr David : Thank you. The second mandate of CSIS under the law is to provide security assessments. This is provided for in section 13. Could you briefly mention the activities of CSIS in this regard? In what context is that?
Mr Hooper : Sections 13, 14 and 15 are what we refer to as our screening mandate which allows us to provide advice to ministers relative to public service employment, if an individual wants employment at the Government of Canada and a security clearance is required as a consequence of that employment, we have a mandate to provide security assessment advice to ministers. Section 14 provides us with a mandate to provide advice to the ministers responsible for immigration and citizenship programs. Section 15 effectively allows us to undertake investigations to perform or to execute those two mandates.
Mr David : The final area that CSIS is involved in terms of the general mandate is foreign intelligence. Could you briefly describe foreign intelligence and perhaps distinguish between what foreign intelligence is and security intelligence. Because section 12 I think refers to security intelligence, whereas section 16 in fact refers to foreign intelligence.
Mr Hooper : This could be a long and esoteric discussion, but I will try to reduce it down to its constituent parts. We sometimes refer to section 12 as our threat mandate. We refer to section 16 information or foreign intelligence as non-threat related information to the extent that it relates to the capabilities and intentions of foreign persons or entities or governments. We collect foreign intelligence in Canada –there is a statutory limitation to where we can collect foreign intelligence –and we collect it on the request of either the Minister of Foreign Affaires or the Minister of National Defence in support of Canadian foreign policy or international affaires initiatives, and the defence of Canada in the case of National Defence.
Mr David : You have mentioned that section 12 refers to the notion of threats to the security of Canada. This is a definition that is provided in section 2 of the Act. Could you briefly go through the four sub definitions of what constitutes a threat to the security of Canada under the CSIS Act?
Mr Hooper : Without reading the specific threat categories, they generally are section 2 (a) would be espionage or sabotage; Section 2 (b) would be foreign interference (sic) activities that are clandestine or covert, threatening to any person or detrimental to the interests of Canada. Section (c) is commonly what we refer to as our terrorism mandate. I might add that was the only feature or the only article of the CSIS Act that was amended as a consequence of the promulgation of anti-terrorism legislation. As was heard yesterday’s testimony, three words were added to the part (c) of the threats to the security of Canada definition, whereas before it used to read: activities directed toward or in support of serious political violence to achieve a political objective, to that were added the words “religious or ideological”. Section 2 (d) is generically referred to as our subversion mandate. I ought to say in that regard there was a ministerial directive that was issued to the service in 1988 requiring that all 2 (d) investigations be subject to ministerial approval. In point of fact, I don’t believe we have had a 2 (d) investigation, certainly in the last decade, but probably since 1990 or thereabouts. So it is a feature of our mandate that we don’t engage.
Mr David : The second component of a security intelligence system is powers, what are described as powers. Can you give us an overview of that component?
Mr Hooper : Under the CSIS Act, the director has control and management of the service’s day-to-day responsibilities, but he is accountable to the Minister, currently the Minister for Public Safety and Emergence Preparedness. One of the powers or limitations of powers is the Minister can and does issue ministerial directives to the service.
Mr David : We have examples of such directives under the policies binder in Tabs 1 and 2, Mr Commissioner, They have been provided and are public documents.
Mr Hooper : The director chairs, as you heard in testimony morning, the Target Authorization and Review Committee, which is the body which approves CSIS targeting. He also chairs the Warrant Review Committee, which is a committee that contemplates affidavits in support of the use of our most intrusive powers, powers which must be convoked be the Federal Court of Canada. I will get into a broader discussion of our powers of investigation on how we operationalize those under our targeted policy, but essentially we do have three levels of investigation, Levels 1, 2, and 3; 1 being the lowest, 3 being the highest in terms of the level of intrusion that we are authorized to use and each level subsuming the powers that are contained in the level lower to it.
Mr David : […] Certainly the third element of the security intelligence system, controls, we are essentially speaking of arrangement that may exist with either domestic or foreign entities. Could you give us an overview of the controls that exist in terms of CSIS?
Mr Hooper : Section 17 of our Act empowers the service to enter into relationship with domestic or foreign agencies, but these are done in consultation with and approval of the Minister responsible.
Mr David : Is the Minister obliged to approve both foreign and domestic arrangements?
Mr Hooper : Yes. In the case of foreign arrangements, he is also obliged to seek the advice of the Minister of Foreign Affairs in rendering a decision as to whether or not an arrangement should be approved. In terms of the use of intrusive powers by the service –and here I speak specifically of powers under judicial warrant—these are convoked by the Federal Court. So there is an element of judicial control that is built into our powers as well.
Mr David : In terms of disclosure, are there controls in place under you law? I understand that section 19 is the keystone provision that directs CSIS in what circumstances CSIS can disclose information that they have gathered from investigative techniques or other means. Could you briefly describe section 19 and its operation and how it affects the actual activities of your agents?
Mr Hooper : Section 19 is effectively both a power and a control, to the extent that it allows the service to disclose information that it obtained in the performance of its duties and functions, but it also limits the kinds of disclosures that it can make. I think these are articulated in 19 (2) (a) through (d) of the CSIS Act.
Mr David : Would you agree with me that the general rule that applies to disclosure is that in fact CSIS is not to disclose information?
Mr Hooper : That is the fundamental principle, is we are prohibited from disclosing except under certain –I guess circumstances.
Mr David : It is section 19 that in fact refers to these exceptions.
Mr Hooper : That’s correct
Mr David : Can you describe these exceptions? In what circumstances are they triggered?
Mr Hooper : We can disclose to a law enforcement agency having jurisdiction where the service comes into possession of information which my assist the investigation or prosecution of a criminal offence. We may disclose information to the department or the Minister of National Defence, or a designated person within the ministry, information which may relate to the defence of Canada. Similarly, with Foreign Affairs Canada, where we have information that relates to the conduct of Canada’s international affairs. We may disclose to a Minister of the Crown where the disclosure is in the public interest.
Mr David : In addition to the provisions of section 19, I understand that there are policies that are in place, operational directives. In fact, I can refer you to Tabs 7 to 11 of the Policies Manual which was filed as Exhibit No. 4. Could you give us an appreciation of how these directives come into play when it comes to issues of disclosure? Again, it is Exhibit No.4 and it is Tabs 7 to 11. Perhaps if we refer to Tab 7 first, the general operational guideline in disclosure.
Mr Hooper : That is kind of the overarching policy which describes in general terms the service’s responsibilities as regards the disclosure of information generally. It articulates the legal requirements of the service policy, talks act the protection of source and employee identity to the extent that the service must take care in disclosing information which could lead to the identification of a human source or a CSIS officer operating covertly. It talks act functional responsibilities at different levels of management within the service for managing the disclosure process.
Mr David : If we move on to Tab 8, we are now dealing with disclosure of security information or intelligence.
Mr Hooper : Again, this talks about – if you look at the scope of the policy and if I may read.
“This policy outlines the different circumstances under which information or intelligence may be disclosed an prescribes the policy and procedures to be followed when doing so’’
It talks about the kinds of the classes of individuals to whom we may make disclosure. It talks about disclosures to the federal and provincial governments and agencies thereof. It talks about disclosure to foreign agencies pursuant to arrangements that we have with those foreign agencies, and the processes of evaluation that the service must go through when making a decision as to disclosure.
Mr David : I understand that in all cases it is always a case-by-vase approach that is adopted—
Mr Hooper : It has to be
Mr David –in decisions dealing with disclosure
Mr Hooper : That’s correct
Mr David : Is that correct?
Mr Hooper : That’s correct. Another key feature of this piece of policy relates to the disclosure of information to law enforcement bodies and the possibility of service intelligence being used in evidentiary proceedings. It mentions the RCMP a lot in terms of mechanisms for coordinating interaction between the service and the RCMP in terms of making disclosures to one another pursuant to the MOU. It talks about the care that we must take in permitting service-generated information to be used in judicial proceedings. I think that is—
Mr David : Dealing with law enforcement disclosure, Mr Hooper, is it fair to say that CSIS is confronted sometimes in terms of the decision to disclose or not to law enforcement agencies, the dilemma being between possibly burning a source, if I can express myself in such a way, and jeopardizing an investigation that is going on by your service versus ensuring a conviction or the possibility of a conviction in terms of a criminal trial? How do you deal with that dilemma if such a dilemma does exist?
Mr Hooper : It is a huge dilemma. It is a dilemma for us and the RCMP alike and all police services. I think it is a fact, and I think my RCMP colleagues would agree with this, that they would rather not receive information in support of a prosecution if receiving that information would lead to the invocation of Canada Evidence Act privilege. I think that is pretty much true of prosecutors as well. So when we are dealing with the RCMP in terms of disclosure in support of a criminal investigation or criminal litigation, that is always a feature of the discussion: To what extent are you prepared to let your information go before an open court without invoking privilege? The Stinchcombe decision had huge implications for how we and the RCMP integrate our investigative activities and how we share information, from us to the RCMP in particular. The Stinchcombe decision created – I shouldn’t use the word onerous, but I can’t find another word –onerous disclosure imperatives on the Crown to the defence in the course of criminal litigation. What we have found in some instances is we run the risk of a kind of infinite regress. If we give the RCMP a piece of information as an investigative lead, in point of fact it may lead to the exposure of the original source of that information. That serves neither our interest or the RCMP’s. So there are a number of considerations that must be taken in the decision to whether or not we disclose. From our part, and from the RCMP’s part, they have a number of considerations as to whether they are going to accept that information or not.
Mr David : I understand one of the more prominent considerations is obviously the gravity of the offence that is at play.
Mr Hooper : Absolutely. I think Director Elcock might have said it this morning. It is not likely that we would run the risk of identifying a human source in the context of a credit card fraud prosecution, for example. But we would make extraordinary accommodations for disclosure if the prosecution involved loss of life, significant loss of life or personal violence.
Mr David : Coming back to the policy document, let’s now review briefly Tab 9, which deals with disclosure of security information or intelligence to the RCMP. Can you describe the contents of that policy document.
Mr Hooper : Effectively this piece of policy enshrines in our body of operational policy the mechanisms that are contained in the CSIS-RCMP MOU that provide for the sharing of information between ourselves and –
Mr David : At this point I think it would be useful if you could tell us the impact of operational policies in the workings of CSIS agents and in the working of your service in general.
Mr Hooper : The impact is very important. As I said, there is basically three classes of information or three classes of direction that circumscribe what we do in an operational context, and that is law, ministerial directive and operational policy. This body of direction or circumscription is supplemented by individual memorandums of understanding and other devices. The one thing that every CSIS officer has access to is the service’s body of policy. It is the most common reference tool that investigators have in seeking guidance on how to conduct investigations. By incorporating law, ministerial direction into one place that investigators can go to get advice and go to understand the guidelines that override our investigations, I think it allows for us to enshrine best standards and common standards in a national context. So I think it is very important to the effective and efficient functioning of our service.
Mr David : Coming back to our tabs, we have at Tab 10 an operational directive concerning disclosure to law enforcement agencies other than the RCMP. Could you provide us with some overview of that directive?
Mr Hooper : Again, because there is an authority invested in regional director generals to disclose service information to local law enforcement –we are talking about law enforcement agencies other than the RCMP – we believe that it was worthwhile to enshrine in policy the same sorts of considerations when dealing with police force at the municipal or provincial level. Effectively this is what it does. It talks about basically the same sorts of guidelines that are contained in other policy documents in terms of the considerations that an investigators must have at play when he is considering whether to disclose or not disclose. It mentions three that I think are particularly important that we have to take care that our disclosures don’t identify the sources of information, the techniques of collection or any ongoing service investigations. Basically those guidelines are in there to protect the integrity of service assets and methods of operation.
Mr David : Finally, we have at Tab 11 –this was covered yesterday in quite some extent with Mr Elcock’s testimony – the existence of caveats when it comes to disclosure. I don’t think it is necessary for us to review that. That was done in quite some detail yesterday . Just to end on the disclosure topic in terms of controls, it is my understanding that headquarters must be directly involved in the decision to disclose to any foreign entity of whatever nature. Is that correct?
Mr Hooper : I would add some precision to that. Headquarters is the only service entity that can disclose to a foreign entity. In other words, you can’t disclose to a foreign entity with which we have a section 17 arrangement out of a regional office or a district office. They all go through headquarters.
Mr David : Which is a distinction to be made in terms of arrangements with domestic organizations.
Mr Hooper : That is correct. That is a distinction.
Mr David : Where there may be authorization at the regional level.
Mr Hooper : That’s correct
Mr David : The final component of the intelligence system is review. Essentially I understand that we are speaking about two independent bodies in the case of CSIS, one being SIRC and the second being the Office of the Inspector General. ~…
Mr Hooper : Let me start first be saying that the CSIS Act created three bodies. It created the Canadian Security Intelligence Service. It created the Office of the Inspector General and the Security Intelligence Review Committee. So they come under the same umbrella of our legislation. SIRC provides assurances to Parliament that the service is compliant in its operational activities with law, operational policy, but it also has a mandate to comment on the effectiveness of the service in executing its mandate. It has a power to undertake special reviews at the direction of the Minister or on behalf of the Ministers as it sees fit. (Explications de chaque organisme dans les pages qui suivent.) Page 150 à 173. |
