The Duty of Candour
- November 20, 2016
- Clayton Rice, Q.C.
On October 4, 2016, Justice Simon Noel of the Federal Court of Canada released the judgment in In The Matter Of An Application By [XXX] For Warrants Pursuant To Sections 12 And 21 Of The Canadian Security Intelligence Act, 2016 FC 1105, that erupted into a national and international media storm. And for good reason.
At the core of the ruling was the data retention program operated by the Canadian Security Intelligence Service (CSIS). The program involved warrants obtained by CSIS for the harvesting of communications data and the consequential indefinite retention of “associated data” of non-targeted persons. The program was operated at the service’s Operational Data Analysis Centre (ODAC). CSIS had been unlawfully retaining the data for ten years since the inception of the program in 2006. It therefore violated its duty of candour in ex parte applications by not disclosing the program to the court. The ruling gives us an opportunity to consider the duty of candour more generally as it resides at the heart of any application for judicial authorizations such as search warrants, production orders and wiretap authorizations.
1. What is associated data?
Wiretap lawyers have encountered this problem for decades. But in the digital age the hoovering of non-target data has exploded and now frequently crops up in search warrants, production orders and video surveillance. The issue historically involved the protection of innocent third parties. And Canadian judges traditionally required that clauses be incorporated in wiretap authorizations to minimize the impact on the privacy rights of third parties.
In In Re [XXX] Justice Noel described CSIS’ use of the term “associated data” this way, at para. 31: “…I am specifically addressing the legality of retaining non-threat information and third-party information. Third-party information, meaning information unrelated to the threat, is frequently collected through the operation of warrants. The Court is concerned about the retention of such information because it is not target-threat related. Warrant conditions oblige the CSIS to review third-party information it has collected in order to assess whether or not it falls within the conditions’ parameters and thus whether or not it can be retained. The term used by the CSIS to describe this specific type of information when obtained from service providers is ‘associated data’.”
The seizure and retention of metadata (or associated data) by intelligence and law enforcement agencies raises at least three issues: (1) disclosure to the issuing court; (2) post-seizure management; and, (3) subsequent reporting to the issuing court. The duty of candour may arise in the context of all three. However, I am concerned here with the duty of candour in the context of ex parte applications to the issuing court. Let’s look, first, at what Justice Noel said in In Re [XXX] and, second, at the leading case law that defines the parameters of the duty.
2. CSIS and the duty of candour
The important preliminary point is this – CSIS did not have lawful authority to retain data that was not target-threat related. And for ten years the retention of that kind of data was never disclosed to the court. That is the crux of the ruling. Justice Noel described it this way, at para. 197: “…[I]nformation collected by investigation or otherwise, accidentally or as spin-off, cannot be retained if it is found to be unrelated to ‘threats to the security of Canada’. Such is the case regarding accidental or spin-off information unrelated to threats to the security of Canada or to the target, collected through the operation of issued warrants. The CSIS cannot retain associated data as it is not empowered by law to do so, in plain words, it has no jurisdiction to do so.”
In many of the older cases, particularly in wiretap law, the Canadian judiciary often described the duty of candour as one of “full, fair and frank disclosure” or as the “duty of utmost good faith”. These terms all mean the same thing. In a post to his blog titled Lost Confidence: Why Trust in Canadian Surveillance Agencies Has Been Irreparably Harmed dated November 4, 2016, Professor Michael Geist of the University of Ottawa, Faculty of Law, described a breach of the duty as constituting “deception or lying”. Justice Noel described CSIS’ lack of candour in strong language, at paras. 107-8:
“The CSIS has a privileged role to play with the Court, yet it cannot abuse its unique position. The CSIS cannot solely decide what the Court should and should not know. The CSIS, through its elevated duty of candour must inform the Court fully, substantially, clearly and transparently of the use it makes or plans to make of the information it collects through the operation of Court issued warrants. Failing to do so, the Court is in no position to properly assume its judicial obligation to render justice in accordance with the rule of law. The CSIS must have the confidence of the Court when it presents warrant applications. In the present file, it has certainly not enhanced the Court’s trust.
In its present submissions…the CSIS concedes that it has breached its duty of candour since 2006 in regard to the existence of the associated data retention program. The CSIS did not inform the Court ‘clearly and transparently’ as it should have. Despite this admission, ten (10) years later, such behaviour remains unacceptable and runs contrary to the interest of justice. For the purposes of this procedure, I find that the CSIS has breached its duty of candour by not informing the Court of its associated data retention program. In X (Re)…my colleague Justice Mosley, on a different factual basis, also concluded that a breach of the duty of candour had occurred. I make a similar finding three (3) years later. I wonder what it will take to ensure that such findings are taken seriously. Must a contempt of Court proceeding, with all its related consequences, be necessary in the future?”
3. Case Law
In Re Land (1990), 55 CCC (3d) 382 (Ont HCJ) Justice David Watt held that the duty of candour (full and frank disclosure) extended in a wiretap authorization to the affiant and the applicant. It is an important point because the affiant in a wiretap application is invariably a police officer and the applicant is a lawyer employed with a federal or provincial prosecution agency. The distinction is less important in applications for search warrants or production orders where the police officer who deposes to the supporting Information to Obtain usually presents the application to the issuing judge.
But, what about police officers who provide information to the affiant – police officers who are referred to as “sub-affiants”? Is such a police officer also bound by the duty of candour? In R v Lee (2007), 88 Alta LR (4th) 231 (Alta QB) Justice Doreen A. Sulyma held that the duty extends to sub-affiants, at para. 33, where she stated: “…[T]here is every principled reason to require that police officers, whether actually involved in the investigation or not, provide full and frank disclosure when they are asked to act as a sub-affiant.”
The classic, and often quoted, statement of the duty is now contained in R v Araujo,  2 SCR 992 where Justice Louis LeBel put it this way, at para. 46: “The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts…So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as A la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manuel. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization.” (See also: R v Caines (2011), 518 AR 227 (Alta QB) per Greckol J., at paras. 220-32)
What, then, are material facts? The answer is the same irrespective of the nature of the warrant being sought. In R v GB,  OJ No 3335 (Ont SCJ) Justice John Macdonald answered the question in the context of a wiretap application, at paras. 11-2:
“Material facts are those which may be relevant to an authorizing judge in determining whether the criteria for granting a wiretap authorization have been met. For the disclosure to be frank, meaning candid, the affiant must turn his or her mind to the facts which are against what is sought and disclose all of them which are known, including all facts from which inferences may be drawn. Consequently, the obligation of full and frank disclosure means that the affiant must disclose in the affidavit facts known to the affiant which tend to disprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposed authorization.
The obligation of full and frank disclosure also means that the affiant should never make a misleading statement in the affidavit, either by means of the language used or by means of strategic omission of information.”
And, in Ruby v Canada,  4 SCR 3 (an access to information case) Justice Louise Arbour had occasion to consider the duty and the attendant ethical obligation, at para. 27: “In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld…Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.” (See now: Law Society of Alberta. Code of Conduct (2015), Rule 4.01)
In an article titled Three New Scandals Show How Pervasive and Dangerous Mass Surveillance is in the West, Vindicating Snowden published by The Intercept on November 4, 2016, Glenn Greenwald observed that, not only was CSIS’ retention program illegal, it was “completely unknown to virtually the entire population in Canadian democracy, even though [its] scope has indescribable implications for core liberties: ‘the centre in question appears to be the Canadian Security Intelligence Service’s equivalent of a crystal ball – a place where intelligence analysts attempt to deduce future threats by examining, and re-examining, volumes of data.”
And, as Professor Craig Forcese of the University of Ottawa, Faculty of Law, wrote in one of the three posts to his National Security Law blog titled CSIS And The Metadata Muddle Pt 3: Politics, Small And Big ‘P’ dated November 8, 2016, “…CSIS now…has a pattern of underwhelming adherence to its duty of candour in relation to courts, its review body (the Security and Intelligence Review Committee) and the minister of public safety”.
Yet, the foundation on which the duty of candour is based is not new. The law here is not complex. Candour means honesty or truthfulness; being fair and frank; direct or sincere. But it is a duty that is honoured too often in the breach by Canada’s law enforcement agencies and intelligence community. (See also: Colin Freeze. In scathing ruling, Federal Court says CSIS bulk data collection illegal. The Globe And Mail. November 3, 2016)