32. Despite his failure to exercise discretion by revealing his activities on behalf of CSIS, the Source was kept on and allowed to continue in place until March 1994, when he had his leave-taking. The opposition members of the Subcommittee have serious misgivings about the Service's decision to leave the Source in place for another five years, despite failings in the early days of his contact with CSIS. This concern is buttressed by the nature of some of the questionable activities engaged in by the Source in the heyday of the Heritage Front between 1991 and 1993. Although it is impossible to determine what the Heritage Front would have become without the presence of the Source as part of its leadership group, it is possible to know what it did when he was there. It is the view of the opposition members of the Subcommittee that SIRC did not deal critically enough in its Report with this concern. CONDUCT OF THE SOURCE 33. As indicated earlier in this Report, there is a Ministerial Direction to the Director of CSIS dealing with the use of confidential human sources. As stated previously, it sets out six general principles. Principle 4 is as follows:4. Confidential sources are to carry out their tasks on behalf of the Service without engaging in illegal activities. They should conduct themselves in such a manner as not to discredit the Service or the Government of Canada.
34. The Ministerial Direction goes on further to say:
As indicated earlier, a special responsibility rests with the Service to do everything reasonable to ensure that the confidential sources operate within the law, and do not behave so as to bring discredit on the Service or the Government. Confidential sources shall be instructed not to engage in illegal activities in carrying out their work on behalf of the Service. Further, they shall be discouraged from engaging in such activities for any reason. Confidential sources shall be instructed not to act as 'agent provocateurs' or in any way incite or encourage illegal activity.
35. The rules set out in this Ministerial Direction require that human sources are to operate not only within the law, but also within the spirit of the law. They are expected not to foster, nurture or implement the activities about which they are collecting information. They are to blend into the organizations they are covering and not to give a hint of the true reason for their presence. This is a difficult series of rules to respect, but it is not an impossible task. It is dependent upon forthrightness and honesty in dealings with CSIS on the part of the source, and effective direction and control on the part of the Service. These rules and principles of conduct were not fully respected in this operation.
36. The principled behaviour threshold set by the Ministerial Direction is a high one. The level of tolerance for inappropriate source activity is low. Illegal activities by a source are obviously not acceptable. Activities that bring discredit upon the Service or the Government of Canada are also not permitted. Although these phrases are not further defined in the Ministerial Direction, their thrust is clear. Such activities should not bring the legitimacy, credibility or propriety of the Service or the Government of Canada into disrepute. This would appear to preclude such things as: egregiously misusing positions of authority; purposely acting in a grossly dishonest or misleading way; unnecessarily acting disrespectfully in relation to others; acting in such a way as to put the health or safety of others in peril; or acting in clearly conscious disregard for the rights and freedoms of other persons.
37. The opposition members of the Subcommittee find that a number of actions carried out by the Source did contravene or could be seen to have contravened Principle 4 of the Ministerial Direction:
- The "IT" campaign was fostered, nurtured, and implemented by the Source, with the agreement of his Handler, as an alleged means of turning an escalating mutual harassment campaign by the Heritage Front and Anti-Racist-Action into an information-gathering effort, with the Source in control. The opposition members of the Subcommittee see no benefit being obtained from replacing one type of harassment by another. These actions are those of an agent provocateur, in direct violation of the instructions given in the Ministerial Direction. In the view of the opposition members of the Subcommittee, SIRC, in concluding that this campaign tested the bounds of what was acceptable, did not provide a sufficiently critical review of these events.
- The impersonation by Grant Bristow of a non-existent journalist by the name of Trevor Graham, allegedly an associate of author Warren Kinsella, for the purpose of obtaining information for the Heritage Front rather than CSIS. This type of action also occurred on other occasions. Although this may not have constituted the criminal offence of personation, it clearly tested the limits of acceptable behavior by a human source.
- The finding of a 12-gauge shotgun and a semi-automatic rifle in the trunk of Bristow's car when US "white supremacist" Sean Maguire was arrested in September, 1991. One of the firearms was inoperative and both were in their cases when they were discovered. Although there may not have been a criminal offence as such, it was at best imprudent for Bristow to have had firearms in his trunk while associating with individuals with a propensity for politically motivated violence.
- The harbouring by Grant Bristow in his home for several days in September, 1991 of Sean Maguire, a known "white supremacist". At the time, Sean Maguire was inadmissible under the Immigration Act, and this was known to CSIS. This action by Bristow, with the knowledge of CSIS of Maguire's immigration status, was in violation of the instructions given in the Ministerial Direction that human sources not engage in illegal activities, and of section 94(1)(m) of the Immigration Act (knowingly aiding and abetting a contravention of provisions of the Act).
- The participation of the Source, as part of a group of Heritage Front members, in Reform Party of Canada functions. Although this may not have been direct participation in political activities as such, in case of doubt, the personal approval of the Director of CSIS should have been obtained in relation to this sensitive institution (the Reform Party of Canada).
38. These incidents, and others, demonstrate that the Source and Bristow, as well as CSIS management at all levels, were not always as attentive to the principles set out in the Ministerial Direction as they should have been. Proper controls and reporting were not always present. Authorization for the presence of a human source in proximity to a sensitive institution was not obtained. Certainly, these incidents, once revealed to the light of day, brought discredit to CSIS.
39. It is clear to the opposition members of the Subcommittee that the Ministerial Direction on confidential human sources is in need of revision. SIRC has identified four issues that have to be addressed in revising the Ministerial Direction. The matters it has identified are:
- the nature of the proactive role to be played by the sources;
- whether a source should play a leadership role in a targeted organization;
- whether a source should engage in counter-measures to destroy a terrorist group, and
- whether the benefits of maintaining a source outweigh the benefits obtained by taking measures to destroy a group.
40. The opposition members of the Subcommittee agree that these are important issues, that although difficult, have to be dealt with. There is another underlying question that has to be addressed in revising the Ministerial Direction. It does not enunciate clearly enough the types of activity engaged in by the sources that are unacceptable. Vague references to a proscribed "illegal activities" and activities "not to discredit the Service or the Government of Canada" are an inadequate prescription of ministerial expectations. But even revised and strengthened Ministerial Directions are inadequate if they are not fully respected. They are part of the accountability scheme put into place by Parliament and must be effectively implemented.
RECOMMENDATION 1
THE OPPOSITION MEMBERS OF THE SUBCOMMITTEE RECOMMEND THAT, IN ADDITION TO WHAT WAS PROPOSED BY SIRC, THE MINISTERIAL DIRECTION ON CONFIDENTIAL HUMAN SOURCES BE REVISED SO AS TO CLEARLY PROHIBIT, AS THE GENERAL RULE, HUMAN SOURCES FROM ENGAGING IN ILLEGAL OR DISCREDITABLE ACTIVITIES. THE REVISED DIRECTION SHOULD MAKE IT CLEAR THAT SUCH ACTIVITIES INCLUDE BREACHES OF THE LAWS OF CANADA, OR ENCOURAGING, SUPPORTING OR COUNSELLING ANY SUCH LAW-BREAKING ACTIVITIES. FURTHER, HARASSMENT, INTIMIDATION OR INCITEMENT TO VIOLENCE ON THE PART OF A HUMAN SOURCE SHOULD BE PROHIBITED BY THE REVISED MINISTERIAL DIRECTION.
PROVISIONS SHOULD BE MADE TO PERMIT A SOURCE TO ACT IN CONTRAVENTION OF THE GENERAL RULE, IN APPROPRIATE CASES, BUT ONLY AFTER THE DIRECTOR OF CSIS PERSONALLY AUTHORIZES SUCH ACTIVITIES FOR PURPOSES AUTHORIZED UNDER THE CSIS ACT.
THE DIRECTOR SHOULD BE REQUIRED TO REPORT SUCH ACTIVITIES TO THE MINISTER IN A MANNER SIMILAR TO THAT REQUIRED UNDER SECTION 20 (2)-(4) OF THE ACT (UNLAWFUL CONDUCT OF CSIS EMPLOYEES). IN EXCEPTIONAL CIRCUMSTANCES ONLY, THE DIRECTOR COULD PERSONALLY AUTHORIZE SUCH ACTIVITIES, NUNC PRO TUNC (NOW FOR THEN).
ADVISING THIRD PARTIES
41. On October 26, 1993, the Source learned that there was a threat of possible serious physical violence against certain leaders of the Jewish community in Toronto. When this was learned by CSIS, it advised the Metropolitan Toronto Police six days later. The Jewish community leadership only learned of this threat of serious physical violence with the release of the SIRC Report on the "Heritage Front Affair". (SIRC Report, Chapter V, p. 34-35)
42. In the Summer and Fall of 1991, the Service was being administered by an Acting Director, pending the appointment of a new Director. The Deputy Director, Operations and Analysis, occupied the acting position. He and the Assistant Director, Requirements, in the Summer of 1991 decided not to inform the Reform Party of Canada of the attempts to infiltrate and discredit it by various right wing extremists because, in their view, the situation was not sufficiently "egregious" to warrant such action. It was also observed at the time that the law did not allow for such a step. CSIS has, however, disclosed information held by it to third-party business interests in Vancouver and elsewhere, despite its strict interpretation of the law in this case.
43. Section 19 of the CSIS Act deals with the authorized disclosure of information held by the Service. It allows CSIS to provide information to law enforcement agencies, the Department of Foreign Affairs, the Department of National Defense, and, in the public interest, to Ministers and public servants. These are the only circumstances under which the law allows the Service to provide the information held by it to others. In neither of the cases outlined at the beginning of this part of the Report would the law have permitted the provision of information to those most directly affected by it.
44. SIRC dealt with a similar issue in its 1985-86 and 1986-87 Annual Reports. At that time, it asked if there were some way in which CSIS could warn voluntary organizations being infiltrated by persons wishing to subvert them. It also asked if there were some way to warn individuals joining "front" organizations, because they support their overt aims, that these organizations really have covert objectives. SIRC did not find an answer to these questions.
45. The incidents described in this part of the Report, and CSIS' failure to notify those most directly affected by threats of violence in one case and infiltration in the other, demonstrate the unacceptable limits imposed by the present law. The Act, in the view of the opposition members of the Subcommittee, has to be amended to deal with this issue. It must be changed to allow the Director, in appropriate circumstances, to advise individuals and organizations of threats of imminent serious physical violence, or of politically-motivated infiltration inimical to an organizations' best interest. Such advisories should normally only be made when they would not compromise an on-going Service investigation.
46. Such an arrangement would have to be accompanied by measures ensuring that advisories would be issued in only the most exigent circumstances. An advisory should only be given by the Director of CSIS personally, and not by a delegate. Both the Minister and SIRC should be advised of the issuance of such an advisory at the same time as it is being given. Some means must also be found to allow Parliament to effectively review the issuance of any such advisories.
RECOMMENDATION 2
THE OPPOSITION MEMBERS OF THE SUBCOMMITTEE RECOMMEND THAT THE CSIS ACT BE AMENDED SO AS TO ALLOW THE DIRECTOR OF CSIS TO DIRECTLY ADVISE AFFECTED PARTIES OF THREATS OF IMMINENT SERIOUS PHYSICAL VIOLENCE OR OF POLITICALLY-MOTIVATED INFILTRATION ATTEMPTS BY TARGETED PERSONS/ENTITIES INIMICAL TO AN ORGANIZATION'S BEST INTERESTS.
THE ACT SHOULD BE FURTHER AMENDED TO REQUIRE THAT THE DIRECTOR OF CSIS PERSONALLY EXERCISE THIS AUTHORITY, AND THAT THE MINISTER AND SIRC BE INFORMED OF THE ISSUANCE OF SUCH AN ADVISORY. PARLIAMENT SHOULD BE ALLOWED TO EFFECTIVELY REVIEW THE ISSUANCE OF ANY SUCH ADVISORY.
THE CSIS INVESTIGATION OF AN UNKNOWN CONTRIBUTOR TO PRESTON MANNING'S 1988 CAMPAIGN
47. Chapter VIII of the SIRC Report deals with the CSIS investigation of an unknown contributor to Preston Manning's 1988 campaign. This chapter was included in the Report by SIRC because it came across this 1989-90 investigation during its file review. The opposition members of the Subcommittee have singled out this Chapter of the SIRC Report for specific attention because of the sensitive issues it deals with and because of concerns with some of SIRC's findings. This part of our Report will not recite in detail what is to be found in Chapter VIII of the SIRC Report but will only set out the matters that are of concern to us. To deal with the issues addressed in this part of the Report, we have had access to the CSIS file in these matters in an expurgated form - it was obtained by Mr. Manning and provided to us by him.
48. In November, 1988, CSIS received information that there may have been some attempt by a foreign country to influence the outcome of the 1988 election in a riding by contributing to the campaign of Preston Manning. The Regional Investigator dealing with this information urged caution with respect to its reliability because the veracity of the source was unknown. In January, 1989, CSIS Headquarters provided the Region with its analysis - it expressed some reservations about arguments supporting an investigation of this information. Despite these concerns from within CSIS, the Unit Head in the Region on October 17, 1989 authorized a three-month Level 1 investigation. It is interesting to note that the TARC authorization form indicated that the information upon which it was based had been provided by a source of unknown reliability.
49. An issue to be dealt with in this part of the Report is who or what was the target of a TARC Level 1 investigation. The caption on the October 17, 1989 targeting authority contained the name "Preston Manning". It was later changed on March 30, 1990 to read "LNU-FNU (Unknown Contributor(s) to Preston Manning's Electoral Campaign)" - this change was made after the January 17, 1990 expiry of the TARC Level 1 authorization.
50. The name contained in the caption of the targeting authority is important because, on its face, it indicates that the activities of this subject of investigation may on reasonable grounds be suspected of constituting a "threat to the security of Canada." Consequently, for three months, CSIS investigators could have collected information with respect to Preston Manning. There are two possible explanations for Mr. Manning's name being in the TARC caption - either he was the target of the TARC Level 1 investigation or as CSIS would like us to believe, his name appeared there as the result of a clerical error which was later rectified.
51. The fact that Mr. Manning's name was originally on the caption does not appear in Chapter VIII of the SIRC Report. It only came to light after SIRC, at the Subcommittee's request, revisited this part of its investigation and in a January, 1995 letter to our Chairman confirmed the presence of Mr. Manning's name in the original caption.
52. Two observations flow from these facts. The first of these is that the Service for three months did not appear to appreciate the impact of what they claim to be a mere clerical error which had the effect of making Mr. Manning the target, in technical terms at least, of a TARC Level 1 investigation. This investigation was underway shortly after a new Ministerial Direction had been issued dealing with, among other matters, sensitive institutions.
53. The second observation is that this information only came to light at the Subcommittee's prompting and was not to be found in Chapter VIII of the SIRC Report. SIRC had admitted that they were aware of the change in the captions prior to the tabling of their Report, but the opposition members of the Subcommittee have not received a reasonable explanation as to why the change was not mentioned. SIRC's conduct in this regard raises some very serious questions about their general intentions in producing their Report.
54. The last matter to be dealt with in this part of our Report is the question of when the TARC Level 1 investigation actually ended. As indicated earlier, it is our understanding that the targeting authorization ended on January 17, 1990. It is interesting to note that in April, 1990, the TARC assessment report states that the investigation was over and yet still recommended that the Reform Party election returns be obtained. In September, 1990, there was an exchange of memos within CSIS about the possible acquisition of this information.
55. This is a curious situation. If the targeting authorization expired on January 17, 1990, either a new one had been approved or there was no authority for seeking this information. In either case, this issue is not fully addressed by SIRC. Considering that a TARC authorization is required for any investigation, this is an important omission from their Report.
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