CSIS at bat

What to expect when CSIS officials testify at POEC

The public hearings phase of the work of the Public Order Emergency Commission enters its final week on Monday, November 21. The week will be dominated by testimony from Cabinet Ministers and the Prime Minister. Mark your calendars for Friday, November 25, when the Prime Minister takes the stand to explain and defend the government’s decision to invoke the Emergencies Act for the first time in its history (the Act was created in 1988).

Before we get to Ministers we will hear from a panel of CSIS officials, including the Director, David Vigneault, the Deputy Director of Operations (the #2), Michelle Tessier, and the Executive Director of the Integrated Terrorism Assessment Centre (ITAC), Marie-Helene Chayer. For some background on ITAC see my previous column. For a discussion of CSIS/ITAC threat reporting, see my research paper for the Commission at:

https://publicorderemergencycommission.ca/files/documents/Policy-Papers/The-Role-of-Intelligence-in-Public-Order-Emergencies-Wark.pdf

To set the stage for the CSIS testimony, we can turn to the summary of the interview that was conducted by Commission counsel with these officials on August 29. The summary is not yet posted to the Commission database, so I must thank colleagues in the media for a copy. (The document number is WTS.00000060)

There are some key messages in the interview that should dominate testimony on November 21.

One set concerns the Service’s authorities and mission. The authorities are set out in section 2 (s2) of the CSIS Act, and basically direct CSIS to collect, analyse and report on threats involving espionage, foreign interference, serious threats or acts of violence that are ideologically motivated, and subversion. These are CSIS’s lawful guardrails. In using the authorities, CSIS focused on “Ideologically Motivated Violent Extremism” (IMVE) threats as the lens through which it observed the “Freedom Convoy” protests. CSIS sees itself as a pioneer in embracing a broader understanding of IMVE, beginning in 2018-19, in an effort to move away from a singular focus on Islamic extremism. The IMVE label is described as an effort to avoid old distinctions between right wing and left wing extremism.

CSIS’s lens was thus narrow and the appropriateness and utility of such a perspective will no doubt be probed. Related to this may be questions about the flow of intelligence between ITAC, as a principal source of threat assessment under the Service’s umbrella, and law enforcement agencies. Once again, we learn that CSIS, like others, appeared to be unaware of the Ontario Provincial Police’s “Project Hendon” reports on the Freedom Convoy. (See my previous columns on the OPP’s Project Hendon). The ITAC Director stated in the interview with counsel that she “could not recall whether the threat assessments prepared by ITAC relied on intelligence from law enforcement or other non-federal agencies.” That seems very puzzling, given the ITAC mandate.

A related set of issues concerns the outlook of the Service on the Freedom Convoy and its efforts to ensure that its view was fully understood. In the witness interview summary, the CSIS Director was very clear that the Service’s position throughout the events of the Freedom Convoy was that the activities which it observed did not constitute a threat to the security of Canada as outlined in s2 of the CSIS Act.

To his credit, Mr. Vigneault insisted on the preparation of a threat assessment for Cabinet, once consideration of the use of the Emergencies Act was being discussed by the Incident Response Group. The threat assessment (not yet available in the Commission database) was two-pronged. One aspect was, as Vigneault said, “to clearly convey the Service’s position that there did not exist a threat to the security of Canada as defined by the CSIS Act. A second part of the assessment reached a judgement that the invocation of the Emergencies Act “risked further inflaming IMVE rhetoric and individuals holding accelerationist or anti-government views.”

The evidentiary or analytical basis on which CSIS relied to reach its cautionary position about the risks of invoking the Emergencies Act should be probed further. On balance the assessment seems faulty. CSIS itself appears to admit this. The Director stated that while CSIS had noted an increasing amount and intensity of IMVE rhetoric since the declaration (and revocation 9 days later) of the Emergencies Act, but that was “not necessarily as a result of the convoy.” The CSIS warning, whether flawed or not, did not dissuade the government from its decision.

More thorny is the issue of the Emergency Act threshold that requires that the Act can only be invoked if there are reasonable grounds to believe that some part of the CSIS Act (s2 again) definition of threats to the security of Canada is present. The CSIS stated position is a clear no.

But there is an issue which calls CSIS’s own position, even from the narrow perspective of IMVE threats, into some doubt. This involves its knowledge of events at the border blockade at Coutts, Alberta, where a faction of the protest group was found to possess a weapons arsenal with an alleged intent to use it against law enforcement officers. In the witness interview summary there is a curious statement about CSIS knowledge of events at Coutts, which talks about a policy between CSIS and the RCMP to “prioritize the protection of an ongoing criminal investigation above intelligence sharing.” It goes on to state that “CSIS was not directly involved in the RCMP’s criminal investigation that resulted in the arrest of four individuals in Coutts, Alberta.” The trouble with this dubious circumlocution is that the RCMP investigation at Coutts was staged by an INSET (Integrated National Security Enforcement team) which would have included CSIS representation. So, the question of what exactly CSIS knew about events at Coutts becomes important and may cast some doubt on its stated position with regard to s2 threats or its ability to quickly pivot away from a previous, strongly-held, position. The arrests at Coutts, which took place in the evening of February 13 and the morning of February 14, only happened on the very eve of the invocation of the Emergencies Act (announced by the PM at a press conference in the late afternoon of February 14).

If CSIS seems to be on the hot seat here, Mr. Vigneault made the point that determining whether a threat to the security of Canada exists as a result of a situation is not an exclusive responsibility of CSIS—it is a responsibility of the government—read the Prime Minister and Ministers. This is undoubtedly true, but masks the importance of CSIS advice on the issue. Expect this to be a major issue of discussion in testimony.

Having made its case in the negative, it appears that CSIS advice on the Freedom Convoy threat, perhaps understandably, was not fully sought when the Government crafted what is known as the “Section 58” explanation. Section 58(1) is a section of the Emergencies Act that requires that its invocation be confirmed by Parliament and the the Government must provide an explanation of why the Emergency was declared.

A final set of issues likely to be canvassed concerns CSIS’s view of changes that need to be made to its legislation and powers. These are pretty sweeping, ranging from modernization of the CSIS Act in totality, including the s2 definition of threats to the security of Canada, to concerns about the restrictions placed on its ability to engage in data mining (the “dataset regime” set out in national security legislation passed in 2019), to the Federal Court warrant process, to the intelligence-to-evidence problem linking the Service to its law enforcement counterpart, the RCMP, and finally the ability of the Service to provide security advice to non-government entities.

CSIS would like to be able to elaborate on these issues during its testimony before the Commission. Time will be its enemy. There will be much else to talk about as CSIS’s role and outlook is probed.