Federal Court of Appeal sides with government in CSIS warrant appeal

OTTAWA — The Federal Court of Appeal staunchly defends the principle of solicitor-client privilege in overturning elements of a ruling that Canada’s spy service breached its obligation to be fully forthcoming when seeking investigative warrants.

A Federal Court ruling made public in July 2020 said the Canadian Security Intelligence Service failed to disclose its reliance on information that was likely collected illegally in support of warrants to probe extremism.

Justice Patrick Gleeson found CSIS violated its duty of candour to the court, part of a long-standing and troubling pattern.

The government said at the time that while it was fully committed to addressing the court’s recommendations, it would also appeal the ruling “on narrow but important legal grounds” concerning solicitor-client privilege and the government’s ability to provide and obtain legal advice in the future.

A key legal point at issue in the appeal concerned the fact federal lawyers appearing before the Federal Court did not tell the judge that CSIS was aware, based on legal advice it had received, of the illegal nature of the activities it had undertaken.

Gleeson said counsel should have sought a waiver of the privilege that usually binds lawyers before appearing in court to allow these circumstances to be fully disclosed, but in its ruling made public today the Federal Court of Appeal disagreed.

This report by The Canadian Press was first published Dec. 15, 2021.

Jim Bronskill, The Canadian Press