Deputy Minister of Justice Canada message to Justice Employees on July 16 Federal Court Decision

The rule of law and the duty of candour – the responsibility to be truthful before the court – are foundations of the legal profession. At the Department of Justice Canada, these foundations are at the core of the legal advice and counsel we provide to government departments and agencies, as well as our obligation to the Government and Canadians to “see that the administration of public affairs is in accordance with the law,” as set out in the Department of Justice Act.

Today on July 16, 2020, the Federal Court cited these foundational principles as they relate to specific national security matters that were before the Court. The Court found that, due to institutional failings by both the Canadian Security Intelligence Service (CSIS) and the Department of Justice Canada, CSIS failed to proactively identify and disclose information from potentially illegal activities in support of warrant applications. While this is difficult to hear, we must reflect on these findings, on what they mean and how we can improve.

The Minister of Public Safety, Bill Blair, and the Minister and Attorney General of Canada, David Lametti, today issued this statement in response to the Federal Court’s decision. The Court recommended an external review of this matter, and the ministers announced today that such a review will be undertaken.

Our department has already begun the work of addressing many of the issues raised by the Court. This past work includes taking action on the recommendations from the Murray Segal and John Sims reports concerning CSIS warrant applications, as well as putting in place a Joint Policy of the Department of Justice and the Canadian Security Intelligence Service on the Duty of Candour in ex parte Proceedings. The Court, however, concluded that more is needed.

The Court focused on institutional failings as being at the root of its concerns. We intend to learn from this matter, to ensure that we fulfill our mandate and our obligations to Canadians. That is why I welcome the independent review.

The Court’s findings will also be instructive as the Department continues its work on renewing the framework for assessing legal risk and communicating legal advice to clients, particularly in the national security context.

As the ministers stated publicly, we take these findings very seriously and are committed to following up on the Court’s recommendation. This will be done in conjunction with the National Security and Intelligence Review Agency (NSIRA) and the National Security and Intelligence Committee of Parliamentarians, the oversight bodies put in place to review and report on all national security activities across the federal government.

The Minister of Justice and Attorney General has also retained an external advisor to help with the implementation of NSIRA’s recommendations within Justice Canada, to provide other advice on the provision of advisory and litigation services to clients, and to help ensure that both Justice Canada and CSIS can fulfill their duties to the court when applying for warrants.

We welcome these insights.

I know that Justice counsel take their role of legal advisor to client government departments and agencies very seriously. Justice employees act with honesty and the utmost professionalism and integrity, and understand and respect the rule of law.

My hope is that this decision and the upcoming review will provide us with an opportunity to understand our roles better, to improve the way we give legal advice, particularly to clients with national security and law enforcement mandates, to foster stronger working relationships with our client departments, and, most importantly, to ensure we have the public’s trust as we do so.

I am confident that all of us at Justice Canada are up for the task.

Nathalie G. Drouin, Ad. E
Deputy Minister of Justice and Deputy Attorney General of Canada