When Secret Intelligence Becomes Evidence: Some Implications of Khadr and Charkaoui II

Abstract

Khadr and Charkaoui II highlighted that the Canadian Security Intelligence Service (“CSIS”) has constitutional and statutory obligations to retain and disclose secret intelligence. Although the two cases were made outside of the criminal context, they, when combined with McNeil, have implications for the retention and disclosure of intelligence in terrorism prosecutions. The two decisions by the Supreme Court of Canada have the potential to subject secret intelligence to the rule of law, external verification and adversarial challenge in legal proceedings.

This essay will start with a little history to help appreciate the change that could be triggered by Khadr and Charkaoui II. An overview will be provided on the evolution of Canadian approaches to secrecy and the use of intelligence as evidence. Then the essay will use Khadr to discuss the disclosure of intelligence collected and disseminated by CSIS. Also, the Court’s decision in Charkaoui II with respect to the proper interpretation of section 12 of the CSIS Act will be discussed, focusing on the retention of intelligence collected about individuals and groups. Finally, this paper will examine some possible harms and benefits of the judicialization of intelligence. Judicialization of intelligence and subjecting CSIS to the rule of law can expose errors, exaggerations and speculation in analytical conclusions. Generally, it is a positive development although it is not without its dangers including threats to secrecy and privacy as well as false confidence in the accuracy of intelligence.

Keywords: secret intelligence, CSIS, retention, disclosure, terrorism prosecution, judicialization of intelligenc, Intelligence agencies, security certificates