Federal Court of Appeal sides with government in CSIS warrant case

OTTAWA — The Federal Court of Appeal has staunchly defended the principle of solicitor-client privilege in overturning elements of a ruling that Canada’s spy service breached its obligation to be fully forthcoming when seeking investigative warrants. 

A Federal Court ruling released in July 2020 said the Canadian Security Intelligence Service failed to disclose its reliance on information that was likely collected illegally in support of warrants to probe extremism. 

Justice Patrick Gleeson found CSIS violated its duty of candour to the court, part of a long-standing and troubling pattern. 

The government said at the time that while it was fully committed to addressing the court’s recommendations, it would also appeal the ruling “on narrow but important legal grounds” concerning solicitor-client privilege and the government’s ability to provide and obtain legal advice in the future. 

A key point at issue in the appeal concerned the fact government lawyers appearing before the Federal Court did not tell the judge that CSIS was aware, based on legal advice it had received, of the illegal nature of the activities it had undertaken. 

Gleeson said counsel should have sought a waiver of the privilege that usually binds lawyers before appearing in court to allow these circumstances to be fully disclosed.

In its ruling made public Wednesday, the Federal Court of Appeal disagreed.

The three-judge panel said the damage to the rule of law could be much worse if CSIS was routinely required to disclose its legal advice rather than being allowed to rely on the privilege.

“The Service, like any other government institution or official, must be able to seek frank legal advice before embarking on any investigative operation that is often of the most sensitive nature,” justices Yves de Montigny and Anne Mactavish wrote on behalf of the court.

“If the Service could not rely on the privileged nature of legal opinions, it might be tempted to dispense with such advice, inviting all the attendant risks of such an attitude.”

In the absence of exceptional circumstances, courts “should not be able to peek behind the veil of solicitor-client privilege” to assess the spy service’s state of mind in conducting its operations, even if it would be relevant to determining the admissibility of illegally obtained evidence in a warrant application, the court added.

“This is the price to pay to uphold solicitor-client privilege, which is itself of critical importance for a society living by the rule of law.”

On duty of candour, the Court of Appeal said CSIS had clearly fallen short on numerous occasions of living up to the standard of good faith to be expected in closed-door proceedings, adding “a number of judges of the Federal Court have rightly expressed their displeasure with such behaviour.”

But the Court of Appeal said while Gleeson was entitled to conclude that CSIS had breached its duty of candour in one particular warrant case, he was mistaken in finding that was so in a second warrant matter.

CSIS spokesman John Townsend said while the latest court decision is a positive outcome, the intelligence service continues to take all Federal Court findings very seriously “and acknowledges that we can continue to do better to ensure that the court has confidence in CSIS and is well supported in its deliberations when applying the provisions of the CSIS Act.”

Townsend said that, as outlined previously, CSIS had taken steps to ensure the court’s concerns are addressed, including proactively commissioning a review of the agency’s understanding of its duty of candour obligations and providing training to employees. 

“We welcome the continued insight of all our partners to ensure that concerns raised by the Federal Court are addressed and meet the expectations of all Canadians.”

This report by The Canadian Press was first published Dec. 15, 2021.

Jim Bronskill, The Canadian Press