Parliamentary Committee Notes: Challenges Associated With the Use of Intelligence as Evidence in Civil and Criminal Proceedings
PROC – Foreign Interference
Date: January 31, 2023
Classification: Unclassified
Fully releasable (ATIP)? Yes
Branch / Agency: NCSB
Proposed Response:
- The use of intelligence as evidence is a long standing issue, and is faced by all democratic countries having to balance respecting the rights of those accused of a crime and those facing penalties with the states' need to protect sensitive information and their information-gathering capacity.
- Some progress has been made in recent years, as law enforcement, intelligence agencies, and prosecutors have significantly improved how they work together and implemented operational reforms.
- We also recognize there may be need for a policy and legislative approach to this issue. Government officials continue their work to provide more clarity to our law enforcement and intelligence agencies as well as to the judges, lawyers and their clients involved in processes where sensitive information is relevant.
- This is not a simple or a straightforward issue, but it is an important one. We remain committed to government-wide collaboration in advancing clear and fair approaches to the use of intelligence as evidence.
Background:
The I&E dilemma arises from the inherent tension between the need to protect sensitive information from disclosure, and the need to rely upon that information to support law enforcement and maintain procedural fairness in criminal, civil, and administrative proceedings. This tension is particularly acute in national security investigations, where both law enforcement and intelligence agencies may investigate the same activities under the purview of their respective mandates.
The divergence in mandates, interests and equities between CSIS and the RCMP dates back to the creation of CSIS as a standalone civilian security and intelligence agency. CSIS was given a mandate to provide advice to the government on threats to the security of Canada, while the RCMP, as a law enforcement agency, continued to fulfill a mandate of investigating and supporting prosecutions related to criminal activity.
The I&E dilemma has been extensively studied over the last three decades, including by the Commission of Inquiry on the Air India Flight 182 bombing. This Inquiry, like several other Commissions of Inquiry and Government reports, highlighted a need to improve collaboration and decision-making among security and intelligence partners, taking into account the interests of each agency, as well as the broader national interest. Most recently, the National Security Review Agency (NSIRA) found that ongoing misperceptions of legal risk and mistrust between agencies continue to hamper information sharing within the national security community.
Current framework
Section 38 of the Canada Evidence Act (CEA) provides the core legal framework for the protection of national security information in Canada, which is information that, if released, would be injurious to international relations, national defence or national security. This provision sets out a regime that prevents the disclosure of information or documents that contain what is defined as "sensitive" or "potentially injurious" information in open court, without the consent of the Attorney General of Canada or a court order.
There are other standalone frameworks that afford a similar protection of sensitive information in the administrative context (e.g. closed material proceedings (CMPs) regimes under the Immigration and Refugee Protection Act (IRPA) Division 9 and Secure Air Travel Act). In the civil context, the Government's disclosure obligations may compel the Government to settle with complainants rather than provide a complete defence of its action in open court.
Recent Progress
RCMP and CSIS continue to take important steps to address the various operational and cultural and to improve cooperation and enhance information sharing between the two agencies in managing national security threats.
In fall 2021, CSIS, the Public Prosecution Service of Canada (PPSC), the RCMP and Justice Canada, signed a quad Memorandum of Understanding (MOU) to enhance collaboration on national security matters. CSIS and the RCMP also recently finalized the One Vision 3.0 Framework, which aims to develop enhanced information sharing practices and deeper engagement between the agencies and PPSC.
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