by Alistair Hensler & Tyler Berry
Canada’s diffuse and relatively decentralized intelligence community is unique among democratic nations. The incapacity to covertly collect foreign human intelligence (HUMINT) abroad places Canada among a minority of nations worldwide. The government is well aware of this deficiency. As recently as the summer of 2018 in a submission to the Federal Court relative to Section 16 of the Canadian Security Intelligence (CSIS) Act, the Attorney General of Canada noted that the prohibition against collecting foreign intelligence abroad created a significant and challenging gap. This gap or deficiency in foreign intelligence collection is not a new revelation. The issue has been discussed and debated many times since World War Two when Canada made a conscious decision to forgo a foreign intelligence collection capability abroad in favour of forging intelligence sharing agreements with allied and friendly nations while focussing on signals intelligence collection (SIGINT).
The case before the Federal Court was narrowly confined to Section 16 of the CSIS Act, however, the interpretation and arguments surrounding the case speak to the larger problem at hand. CSIS was seeking a warrant from the Federal Court pursuant to Section 16 to collect intelligence abroad on a foreign state with the assistance of the Communications Security Establishment (CSE). The Attorney General sought to interpret the Section 16 restriction of within Canada as outdated and obsolete. Justice Noël disagreed and stated that while the gap in respect to Canada’s foreign intelligence collection capacity exists, “the matter is one for Parliament.” The case was appealed to the Federal Court of Appeal which simultaneously denied the Attorney General’s appeal and failed to affirm Justice Noël’s decision.
This decision further exacerbates an already challenging situation in which Canada’s stature and place around the globe is a under assault. The burden has fallen to CSIS and the CSE to meet the government’s increasing demand and reliance on foreign intelligence without the appropriate legal footing to do so. This approach is fraught with serious risks to both agencies. CSIS was created as a security intelligence agency to protect Canada against specific threats. It can only collect foreign intelligence within Canada, and the CSE can only collect it through intercepts on the global information infrastructure (GII – Defined as the following in the CSE Act: “electromagnetic emissions, any equipment producing such emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, that equipment, those systems or those networks) outside Canada and on non-Canadians. What is missing from this equation is Canada’s ability to collect intelligence abroad by means of clandestine HUMINT operations. Our allies are doing it (even against one another) as are our enemies. Without a dedicated agency to collect foreign HUMINT, Canada will be at a disadvantage relative our allies and adversaries.
CSE is Canada’s greatest contributor of foreign intelligence collected through the GII. The budget for the CSE’s SIGINT program has grown exponentially and we can assume this is in part due to it being Canada’s primary contributor of foreign intelligence (FI). CSE’s overall budget and staffing has also increased significantly in the years since 9/11. CSE reports would cover the full range of foreign intelligence concerns, including political, military, economic, commercial and scientific matters. Their value would, in part, depend on substantiation from other sources, a capability which Canada does not independently possess without significant assistance from allies. This is where the capacity to collect foreign HUMINT can play a significant role.
Some officials, particularly in the intelligence field, might seize on the Federal Court’s declaration that the matter was more suited for reference to Parliament to urge government to legislate an amendment to Section 16 to permit CSIS to pursue foreign intelligence abroad. That would make no more sense than the decision made decades ago that placed security intelligence under the RCMP, a law enforcement agency. That decision ultimately led to gross illegalities and two Royal Commissions. The Macdonald Royal Commission understood the danger of creating an intelligence monolith, a practice common to dictatorship and communist states. Further, adding foreign intelligence collection abroad to CSIS’ mandate would detract from CSIS’ primary role at a time when threats to Canada’s security are growing and becoming more sophisticated. CSIS was created as a collector of security intelligence to safeguard our nation. It must remain focused on that mandate.
The time for further debate has passed. The world is in turmoil. Political discourse in many nations has drifted far from the centre with extremism abound. The global economy is under siege. Allied and friendly intelligence agencies will place their nations’ interests above Canada’s, more so now than in the past and especially in the areas of trade and economic development. The risk exists that shared foreign intelligence may to be massaged by allies for political purposes.
With the Assent of Bill C-59, the most substantial national security legislation in a generation – which proposes significant and necessary new powers for Canada’s security and intelligence community – Canada must not stop there. If Canada wishes to retain its stature in the world, it must know the plans and intentions of other nations and organizations which is only possible through a comprehensive set of tools. That knowledge will only come with the establishment of a new collection agency dedicated to foreign human intelligence. The Government of Canada can immediately take action through the Royal Prerogative which grants wide latitude to conduct foreign affairs by issuing an Order-in-Council establishing a Canadian Foreign Intelligence Agency. Such an agency would be well suited reporting to the Deputy Minister of Foreign Affairs and the Prime Ministers National Security and Intelligence Advisor, replicating something similar to CSE’s pre 2011 governance model.
Alistair Hensler is the former Assistant Director of Operations, CSIS, and a long-time advocate for the creation of a Canadian Foreign Intelligence Service
Tyler Berry is a recent graduate of the Master of Infrastructure Protection and International Security Program at Carleton University where he studied the absence of a dedicated human foreign intelligence agency.