Security Intelligence Comite de surveillance des activites

Review Committee de renseignement de s~curite

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File No.: 1500-476

SECURITY INTELLIGENCE REVIEW COMMITTEE

IN THE MATTER of a complaint filed pursuant to section 41 of the

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.

KEN STONE
Complainant

-and-

CANADIAN SECURITY INTELLIGENCE SERVICE

Respondent

REPORT BY

The Honourable Gene Mclean, P.C.

Security Intelligence Review Committee, Presiding Member

Security Intelligence Review Committee

P.O. Box 2430
Postal Station D
Ottawa, ON
K1P 5W5

Phone: (613) 990-8441

Fax: (613) 990-5230

P.O. Box I C.P. 2430, Station I Succursale "D"

Ottawa, Canada K1 P 5W5
Tel: 613 990-8441 Fax: 613 9905230
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Dates of Hearing: September 9, 2016
September 10,2016

Place of Hearing: Ottawa, Ontario

Before: The Honourable Gene Mclean, P.C.

Presiding Member, Security Intelligence Review Committee
(Committee)

Counsel: Karla Unger, for the Canadian Security Intelligence Service (CSIS)
Stephanie Mulcaster I Marc Pilon, for the Committee
Bijon Roy, for the Complainant

Witnesses: Ken Stone, the Complainant

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Greg", for CSIS
~~Joanne", for CSIS
 TABLE OF CONTENTS

A. INTRODUCTION .............................................................. ~ ~4
B. THE COMPLAINT AND THE COMMITTEE'S JURISDICTION........................4

C. THE COMMITTEE'S INVESTIGATION ........ &

D. BACKGROUND .............................. ~ ...............................8

E. ANALYSIS ........ I I ~I 11

F. SUMMARY I...... I................................................................. 22

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A. INTRODUCTION

1. This report is made pursuant to subsection 52(1) of the Canadian Security

Intelligence Service Act, R.S.C., 19851 c. C-23 {CS/S Act). after the completion of
an investigation in relation to a complaint made pursuant to section 41 of the CSIS
Act by Mr. Ken Stone (the Complainant).

2. This report is provided to the Minister of Public Safety and to the Director of the
Canadian Security Intelligence Service (CSIS or Service). It contains the Security
Intelligence Review Committee's (Committee) findings and recommendations
based on all the documentation, evidence and representations available to the
Committee during its investigation. This report, subject to the limitations of the
CSJS Act, will be forwarded to the Complainant.

B.- THE COMPLAINT AND THE COMMITTEE'S JURISDICTION

3. Subsection 41(1) of the CS/SActentitles a person to make a complaint to the

Committee with respect to "any actor thing done by the Service". The Committee
shall investigate the complaint if the Committee is satisfied that:

~ the Complainant has first made a complaint to the Director with

respect to that "act or thing";
- the Complainant has not received a response within such period of
time as the Committee considers reasonable, or the Complainant is
dissatisfied with the response given; and,
.. the Committee is satisfied that the complaint is not trivial, frivolous,
vexatious or made in bad faith.

4. By letter dated April 3, 2013, the Complainant made a complaint to the Committee.
He was advised by the Committee that1 in order to satisfy the statutory
requirements to make a complaint to the Committee, he must first write to the
Director of CSIS.

5. The Complainant subsequently made a complaint to the Director of CSIS in a letter

dated April 24, 2013. The complaint letter set out three allegations relating to a
visit by two CSIS employees to his home in January 2013:

1) the visit was not warranted under the mandate of CSIS;

2) the visit caused him and his family a considerable amount of anxiety;
and

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3) the visit had an intended purpose, outside the mandate of CSIS, which
was to intimidate him and members of his family from lawfully
exercising their Charter rights to freedom of expression and
association, and to take part, as Canadian citizenst in the Canadian
political process, which process can include criticism of the policies of
the federal government.

6. On June 27, 2013, the Complainant submitted a formal complaint pursuant to

section 41 of the CSIS Act. At the time the complaint was made, the Complainant
had not received a response from the Director of CSIS concerning his letter of
complaint to him dated April24, 2013.

7. In the letter of complaint to the Committee dated June 27, 2013, the Complainant
made the same allegations as found in the letter of complaint to the Director of
CSIS, in addition to a fourth allegation related to CSIS' letter of refusal to release
information requested by the Complainant concerning the Janu_ary 2013 visit.

8. By letter dated July 11, 2013, the Complainant and CSIS were invited to submit
written representations on the Committee's jurisdiction to investigate the complaint
and the Committee sought access to CSIS' documentation. In the letter to the
Complainant on that date, the Committee indicated that complaints in relation to
requests made under the Privacy Act to other government institutions, including
CSIS, do not fall within the mandate of the Committee. The Complainant was
invited to communicate with the Office of the Privacy Commissioner of Canada to
obtain further information in relation to making a complaint under the Privacy Act.

9. By letter dated August 9, 2013, Counsel for CSIS confirmed to the Committee that
CSIS would. not be making any representations on the Committee's jurisdiction
concerning the Complainant's first three allegations. With respect to the fourth
allegation, CSIS counsel made representations concerning the Committee's
jurisdiction indicating that it is CSIS' position that the Committee does not have
jurisdiction and that the Complainant has recourse to the Privacy Commissioner.

10. On August 23, 2013, the Complainant confirmed to the Committee that he did not
have additional representations specifically on the question of the Committee's
jurisdiction.

11. Satisfied that the complaint related to ''an act or thing done by .the Service" and
that the complaint was not trivial, frivolous, vexatious, or made in bad faith. the
Committee determined on October 1, 2013 that it had the jurisdiction to investigate
the complaint under section 41 of the CSIS Act.

12. By letter dated October9, 2013, the Complainant and CSIS were informed that the
Committee determined that it has jurisdiction to investigate the complaint under

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section 41 of the CSIS Act. The letter also confirmed that the Honourable Chuck
Strahl, P.C., had been assigned to investigate this complaint.

13. The Complainant and CSIS were advised by letter dated January 29, 2014 that the
Honourable Chuck Strahl, P.C., had resigned from the Committee and that the
Committee would be reassigning the matter.

14. The Complainant and CSIS were advised by letter dated March 14,2014 that this
matter was reassigned to me.

15. By letter to the Complainant dated March 24, 2014 (eleven months following the
Complainant's complaint to the Director of CSIS), the Assistant Director of CSIS
provided a response letter to the Complainant indicating that he examined the
Complainant's allegations and "made the appropriate internal inquiries." He
concluded that ucsrs officials acted professionally and entirely within the legislated
mandate of the Service.

C. THE COMMITTEE'S INVESTIGATION

16. I held a pre-hearing conference call with the parties o_n January 22, 2015 to set the
terms of reference for the investigation of the complaint.

17. One of the components of the pre-hearing discussion was the parties agreeing to
the complaint allegations to be investigated, namely that:

1) the visit was not warranted under the mandate of CSIS;

2) the visit caused him and his family a considerable amount of anxiety;
and
3) the visit had an intended purpose, outside the mandate of CSIS, which
was to intimidate him and members of his family from lawfully
exercising their Charter rights of freedom of expression and
association, and to take part, as Canadian citizens, in the Canadian
political process, which process can include criticism of the policies of
the federal government.

18. I conducted the Committee's investigation of the complaint and presided over an in
camera hearing (private but in the presence of the Complainant) in Ottawa,
Ontario on September 9, 2015. I also presided over an ex parte hearing (private
and in the absence of the Complainant) that was held in Ottawa, Ontario on
September 10.2015.

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19. During the hearing on September 9, 2015, I heard testimony from the
Complainant, who described his recollection of a visit to his home in January 2013
from two CSIS employees.

20. On the same day, I also heard testimony in the in camera hea(ing from two CSIS
employees named "Greg", Senior Manager in the Counter-Terrorism Program at
CSIS; and "Joanne", Intelligence Officer and Investigator at CSIS.

21. f heard further evidence from uJoanne" in the ex parte hearing on September 10,
2016. She stated that she recalled "some parts of the interview of the
Complainant and that she "can't recall all of the details. She further stated that
she reviewed her notes, but then clarified that what she reviewed was a report that
was provided to the Committee.

22. In the course of the ex parte hearing, CSIS entered into an undertaking with the
Committee to provide the operationar notes that would have been prepared by
"Joanne" at the time of the interview of the Complainant. However, several
months later, CSIS informed the Com-mittee by letter dated March 3, 2016 of the
efforts made to locate the notes and CSIS' conclusion that the notes were lost.

23. CSIS also entered into an undertaking with the Committee to provide the relevant
policy related to operational interviews, and this policy was so provided to the
Committee on October 19, 2015.

24. Following the in camera and ex parte hearings, a summary of the classified
evidence was prepared by the Committee and provided to the Complainant by
letter dated January 22, 2016.

25. On June 3, 2016, the Complainant provided his final submissions to the
Committee, followed by CSIS providing its final submtssions on July 4, 2016. On
July 19~ 2016, the Complainant provided his final rebuttal submissions to the
Committee.

26. In preparing this Final Report, in addition to reading the final submissions of the
parties, I have considered the evidence given by the witnesses, the documentation
submitted by the parties in their respective books of documents and other
correspondence, as well as other relevant material made available to me in the
course of my investigation of this complaint, including classified documents
disclosed to the Committee by CSlS.

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D. BACKGROUND
27. ~'Joanne", one of the two CSIS employees who interviewed the Complainant,
testified at the in camera hearing about her recollection of the visit made by her
and her colleague, "Victoria'', to the Complainant's home in January 2013.

28. On January 30,2013, "Joanne" and 'Victoria" made an unannounced visit to the
Complainant's home to interview him.

29. A young male person answered the door, and the Complainant appear~d and
spoke to the CSIS employees.

30. The CSIS employees identified themselves to the Complainant as CSIS Officers.
Although "Joanne" testified that her practice would be to explain CSIS' mandate to
an individual, she was not clear in her testimony whether or not she in fact did so
in the case of the visit to the Complainant. The Complainant's account does not
reflect that "Joanne" or "Victoria" explained CSIS' mandate.

31. The evidence of both "Joanne" and the Complainant is substantively the same with
respect to the exchange that took place during the unannounced visit on January
30, 2013. 11Joanne, and avictorlalt identified themselves and attempted to interview
the Complainant They mentioned to the Complainant that they had recently read
an article he wrote on Irani and they told the Complainant they wanted to discuss
his views on Iran. The Complainant refused to be interviewed by the CSIS
employees~ at which point the CSIS employees left the Complainant's home.

32. The Complainant inferred that the purpose of CSIS' visit was motivated by his
public expression of his opinions. He testmed that he felt that it was a form of
intimidation and an attempt by CSIS to squelch his Charter rights of freedom of
expression and association.

33. "Greg" testified at the in camera hearing about his experience at CSIS and his
present position as Senior Manager in the Counter-Terrorism Program. He
testified generally about the fact that CSIS works on a principle of proportionality
where the greater the degree of threat involves the more intrusive powers being
used to investigate a threat; about his opinion that there was not anything unusual
about how the two CSIS employees conducted their interview of the Complainant;
about the fact that calling people on the telephone is not a secure method of
communication; and, on the issue of not arranging for visits in advance, about the
fact that CSIS does this for the security of the individual who will be interviewed, as
well as for the security of the CSIS offic:ers.

34. ..Greg" also testified at the in camera hearing about the voluntary nature of CSIS
interviews, stating that standard operating procedure in an interview would be for
the CSIS employee to approach the doorl fully identify themselves. present their
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identification and try to state plainly the purpose for which they are there. He also
testified that the CSIS employee would explain CSIS' role and explain that the
interview is voluntary by asking the indiyidual if they would speak to them.

35. uJoanne" described the voluntary nature of CSIS interviews in a similar manner as
~~~reg", namely that the individual is asked if they would like to speak to them.

36. The Complainant submits that the present complaint affords the Committee an
important opportunity to investigate, review, and make recommendations
regarding:

1) Whether CSIS visits such as the one at issue in the present complaint
(and any related intelligence gathering activities) are outside the
Service's mandate, as the activities referred to during the CSIS visit
fell squarely and entirely within the exemption under section 2; and

2) Whether visits of this nature, conducted in this manner, are known or

ought to be known by the Service to cause fear, anxiety, and
intimidation among those engaged in lawful advocacy, protest, or
dissent and, as such, whether they constitute interference outside the
mandate of CSIS. In this regard the Committee must also consider
whether such actions may interfere with Canadians' participation in
public discourse and democratic debate, by having a chilling effect on
the willingness of citizens to exercise their Charter rights of free
expression and association.

37. It is important to note that this complaint was made pursuantto section 41 of the
CSIS Act, whtch states that any person may make a complaint to the Committee
with respect to any act or thing done by CSIS. It further states that the Committee
may investigate that complaint if the Complainant made a complaint to the Director
with respect to that act or thing and the complainant has not received a response
within a period of time the Committee considers reasonable or the complainant is
dissatisfied with the response.

38. Accordingly, the scope of the Committee's investigation is addressing the

Complainant's allegations concerning an act or thing done by CSIS. It is beyond
that scope to take a broad approach by not only investigating the alleged act or
thing done by CSIS, but also conduct a review of CSIS' broader activities in a
particular operational area. Such a review is suited to the mechanism laid out
pursuant to section 40 of the CS/S Act, and not in the context of this investigation
pursuant to section 41.

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39. With this said, specific evidence was adduced by CSIS in the proceedings that
raises concerns in three narrow areas:

(a) The first area of concern relates to the issue of the voluntary nature of CSIS
interviews and the manner in which investigating officers convey to individuals
that they cannot be compelled to answer questions by CSIS employees;

(b) The second area of concern relates to one CSIS employee not taking
operational notes and CSIS confirming that the operational notes made by the
other CSIS employee are lost;

(c) The third area of concern relates to CSIS' response letter to the Complainant's
complaint to the Director in which it is asserted that lithe appropriate internal
inquiries" were made in determining that the "CSIS officials acted professionally
and entirely within the legislated mandate of the Service."

These three areas of concern will be addressed in this Report.

40. As noted above, the Comp1ainant alleges that:

1) the visit was not warranted under the mandate of CSIS;
2) the visit caused him and his family a considerable amount of anxiety;
and
3) the visit had an intended purpose, outside the mandate of CSIS, which
was to intimidate him and members of his family from lawfully .
exercising their Charter rights of freedom of expression and
association, and to take part, as Canadian citizens, in the Canadian
political process, which process can include criticism of the policies of
the federal government.

E. ANALYSIS

41. At the time of the hearing, the Complainant had just turned 69 years old.~ T.he
complainant testified that he was born in Toronto, Ontario. He was raised in an
upper-middle class suburb by Jewish parents and attended school in the same
suburb. He indicated that he was always interested in International Affairs and
seeing the world. After serving in the Canadian Military for a summer, he attended
the University of Toronto where he took Honours Political Science and Economics.
He eventually began working at Canada Post and continued to do so for twenty
two years.

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42. The Complainant married and had two children, and returned to the University of
Toronto where he obtained a Bachelor of Education followed by a Masters in
International Relations. After getting his Qualification in French, he taught Core
French for almost twenty years. The Complainant is now retired.

43. The Complainant stated that activism has been a central focus of his life, citing in
particular: student activism, labour activism, social activism, environmental
activism and anti;.war activism.

44. The Complainant testified that he has written over one hundred letters to the
Hamilton Spectator, most of which were published. He has also written Op-Ed
pieces over the years,. most of which were also published.

45. The Complainant's current focus (at the time of the hearing) is anti-war activism,
and specifically the Syrian refugee crisis. He testified that he also remains an
environmental and anti-racist activist.

46. The Complainant described a series of events that indicated to him that the
Canadian Government was "ratcheting-up" its hostility towards the Government of
Iran."

47. According to the Complainant he travelled to Iran in October 2011 on the invitation
of
to attend a conference on Palestine that was taking place in Tehran. The
Complainant described that he worked with ''on the issue of
Palestine, as well as on Anti-War issues , and he sees him two or three times a
year at different events.

48. The Complainant, in reference to. specific news articles, testified on the concerns
of the anti-war movement about the closure of the Iranian Embassy by the
Canadian Government in 2012. In particular, he asserted that "there is no longer
any possibility of diplomacy" and that there is "really only one alternative left, and
that is military action.

49. The CSIS employees, "Joanne" and "Victoria" attended the Complainant's home
on January 30.2013 in order to interview the Complainant. They specifically
mentioned having recently read an article the Complainant wrote and attempted to
obtain the Complainant's views on Iran. The Complainant refused to speak to the
CSIS employees.

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 P&u~fJ-QJhfiFP8Jilmat ~nfcltffliaticz~

50; The allegations arise from the unannounced visit by the CSIS employees on
January 30, 2013.

51. In this Report, Allegations 1 and 3 will be addressed together given the overlap of
the two in terms of the facts and evidence.

With Respect to Allegations 1 and 3

(The visit was not warranted under the mandate of CSIS; and the visit had an
intended purpose, outside the mandate of CSIS, which was to intimidate Mr.
Stone and members of his family from lawfully exercising their Charter rights to
freedom of expression and association, and to take part as a Canadian citizen in
the Canadian political process, which can include criticism of the policies of the
federal government.)

52. In support of both allegations, the Complainant testified that the CSIS employees
stated that they wanted to speak to him about his relationship with the Government
of Iran. The CSIS employees indicated that they had only heard negative opinions
from Iranian expatriates living in Canada about the present Government in Iran
and that they thought he would have something different to say.

53. The Complainant and ~~Joanne" testified similarly at the in camera hearing that ~he
Complainant asserted to "Joanne" and "Victoriab that everything that he does
about Iran Is made public/is in the media. The Complainant refused to be
interviewed.

54. The Complainant perceives that the unannounced visit by the CSIS employees
was a form of intimidation and was an attempt by CSIS to "squelch" his Charter
rights of freedom of expression and association.

55. Of particular note, the Complainant testified that he had spoken to

following the visit from the CSIS employees. According to the Complainant's
account, told him that, in opinion, the purpose of the
visits was 'intimidation' and to tell people in his community that CSIS was watching
them and knew what they were doing.-

56. Also of note, th~ Complainant testified that he had in-depth conversations with his
family following the visit. The Complainant described that, " ... the tnore he

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thought about it, the more I thought that they were there.to intimidate me; that the
purpose of their visit was intimidation.

57. uJoanne" testified at the in camera hearing that the decision on whether an
interview is arranged in advance is on a case-by-case basis. It is something that is
determined in conjunction with her supervisor, taking into account a variety of
factors.

58. At the ~x parte hearing, "Joanne" testified about the preparation she undertook
befo.re meeting with the Col"!lplainant; the general reasons for which two
investigators would attend an individual's residence to conduct an interview; and
the specific reasons for her and her colleague "Victoria" attending the
Complainant's residence to interview him. "Joanne" also testified as to the
reasons for not providing advance notice to the Complainant prior to attending his
residence to interview him; and the consideration given to section 2 of the CSIS
Act under the definition of ''threats to the security of Canada" which states that it
"does not include lawful advocacy, protest or dissent, unless carried on in
conjunction with any of the activities referred to in paragraphs (a) to (d).:

59. I heard detailed evidence from "Joanne" at the ex parte hearing

leading CSIS to the decision to interview the Complainant, and I
reviewed the available documentary evidence in this investigation. I find on a
balance of probabilities that CSIS w~s not atlempting to interfere with or even
investigate the Complainant's lawful activities related to his expressions of public
opinion and advocacy.

60. I acknowledge the Complainant's perception in the circumstances given the focus
of the conversation the CSIS employees had with him when they attended his
home. Specifically, the CSIS employees' discussion with the Complainant turned
on the mention of his public expression of opinions in an article he wrote~ With
that said, it is clear from the evidence that CSIS' operational focus was not to
attempt to intimidate the Complainant, nor was it to prevent the Complainant from
lawful activities such as expressing public opinions.

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 Pll'ote~fil Sll&llilai inYormatum
61. Based on all of the evidence before me, I conclude that CSIS' visit to the
Complainant on January 30, 2013 was pursuant to CSIS' mandate under the CS/S
Act. There is no evidence that would allow me to conclude that the purpose of
CSIS' unannounced visit was to intimidate the Complainant or otherwise interfere
with the Complainant's lawful activities such as his expression of public opinions.

62. Accordingly, Allegations 1 and 3 are unsupported.

With Respect to Allegation 2

(The visit caused Mr. Stone and his family a considerable amount of anxiety)

63. In support of his allegation, the Complainant testified that the visit really "took him
aback.; He indicated that he was surprised and a "little scared'', but he decided
not to let the two CSIS employees in the house because he thought it was
inappropriate for them to question him like they did. He described having politely
told them he did not want to continue the discussion and he closed the door.

64. The Co.mplainant further testified that his wife and his youngest son were in the
house at.the time of the visit from the CSIS employees. According to the
Complainant, his son heard the conversation and was upset because he wondered
if his academic career would be affecte.d. The Complainant indicated that his wife
has a medical condition and she was "really, really upset.

65. ..Joanne" testified at the in camera hearing that the young male at the door did not
seem anxious and, likewise, the Complainant did not seem anxious during her
interaction with him. She added that she has conducted many interviews and she
sees people who are nervous when they go to the door of an individual's home.
She did not see that in the Complainant.

66. As I have noted, the Complainant described at the in camera hearing having
spoken to following the visit from the CSIS employees at which time
apparently emphasized to the Complainant that the purpose of CSIS'
visits was 'intimidation'. The Complainant also had subsequent in-depth
conversations about the visit with his family members.

67. I find it significant that the Complainant is an informed individual and was familiar
with the fact that he could refuse to speak to the CSIS employees. He testified
that he became familiar with a document put out by the People's Commission of
Montreal a couple of months prior to the CSIS employees visiting him at his
resiqence that speaks to the fact that individuals can refuse CSIS employees

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coming into their home. The Complainant stated that uthat is what probably gave
me the backbone or the idea that I shouldn't let the CSIS Agents come into the
house." He related that the documentation on the People's Commission of
Montreal website indicates that usince 2009, CSIS had a Program of Home Visits
and Workplace Visits on Political and Social Activists and that the purpose of these
visi~s was to intimidate people."

68. I conclude that the Complainant's familiarity with the documentation provided by
the People's Commission of Montreal, as well as the conversations with
and family members following the visit from the CSIS employees,
contributed significantly to the development of the Complainant's perceptions.
Accordingly, the Complainant's initial reaction of concern, and perhaps some fear,
escalated to a higher level of anxiety as a result of the subsequent events.

69. I acknowledge that the Complainant's wife and son, who were present when the
CSIS employees attended the home, probably had some degree of concern.
However, there is insufficient evidence before me to allow me to conclude that any
degree of concern that they may have had rose to the level of experiencing
considerable anxiety as a direct result of the interview or the specific actions of the
CSIS employees.

70. I have considered the Complainant's assertions in the context of his particular
experiences, background and knowledge. I have also considered the totality of his
testimony. While I accept "Joanne'sp testimony at the ex parte hearing: that "[o]f
course there is going to be a little bit of anxiety and nervousness if Federal
Government employees show up at your door" , I find that a reasonable person
with the Complainant's knowledge and experience would not suffer considerable
anxiety to the extent that the Complainant alleges as a result of the visit on its own.

71. Consequently, Allegation 2 is unsupported.

With Respect to Issues that have Arisen During the Course of the Proceedings

Voluntariness of Interviews

72. "Joanne" testified at the ex parte hearing that her supervisor would have tasked
her with interviewing the Complainant
It would have been a normal
activity for her..
I heard evidence from "Joanne" about

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 Pt~B\tiCJJifsonaJ' I'Jll'lOl"JliiS!;~Jfl!

the preparation she did undertake in advance of attending the Complainant's

residence.

73. "Joanne" acknowledged at the ex parte hearing that there is nothing in CSIS'
policy concerning unannounced visits to an individual's home: and there is
"nothing that outlines calling ahead or not calling aheadll.

74. In conducting my investigation, I reviewed CSIS' policy on operational interviews

that was applicable at the relevant time.

75. The pertinent provisions of CSIS' Policy OPS-201-1 (Procedures- Operational

Interviews) that was applicable at the relevant time state the following:

[... ]

3.1. Employees will be adequately prepared before an interview and will discuss
the outline of the interview with their supervisor. They should also review
technical documents that could guide them, such as the "Investigative Tools I
Techniques- Checklist" found on The Source.

3.2. Employees should predetermine their objectives and line of questioning,

and identify any assistance they may require from other employees or
sectiens.

3.3. Employees should check all available open, official or Service information
relating to the interviewee.

[... 1
3.5. To the extent that operational interests permit, employees are to arrange the
interview at the convenience of the interviewee.

3.6. When arranging an interview, employees must consider

a) the objective of the in~erview (who; what; where; when; why; how);

b) where and when the interview will take place;

c) the safety I security problems that may arise and choose a time and
location that afford the appropriate level of privacy or protection as well
as the security protocols and risk mitigating measures that are
necessary;

d) the background of the interviewee;

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 WICia!Um'lf.Hl \:U l9feJi8~fJh'.,~V!\>ODaJ UU'i0ftrli,3H~
e) the social, religious or ethnic issues that may have a bearing on how,
where or when the interview may be conducted~

f) the t:>est person to do this interview and any assistance required from
other employees or sections; whether there are safety concerns that
require police assistance; and

g) what questions and facts need to be answered.

[ ... ]

4.2. At the outset of an interview, employees will:

a) id~ntify themselves as employees of the Service,

b) stress the confidential nature of the meeting;

c) explain the purpose of the interview to the interviewee and, when

asked, provide clarification inasmuch as operational interests permit.

[... ]

4.6. Employees may encounter interviewees who attempt or are suspected of

attempting to deceive, manipulate, intimidate or otherwise obstruct the interview.
When possible, employees should consult their supervisor beforehand

4. 7. Contact with such persons including full details as to why the individual is
considered to be hostile, should be documented on the appropriate file.

(... ]

76. Based on all the evidence before me, I am satisfied the~t "Joanne" followed the
requirements of CSIS' policy on operational interviews. With that said, I note that
..Gregll and "Joanne" provide<;t evidence demonstrating that CSIS does not explain
to individuals directry that interviews are voluntary. They only go so far as asking
them if they would like to talk to them and apparently this is to be taken as a
message that the interview is voluntary and they cannot compel statements. They
do not explain directly that it is voluntary.

77. ''Greg" testified similarly at the in camera hearing, describing that "[w]e don't
specifically say [that interviews are voluntary]. We ask individuals if they would
like to speak with us. And if they say 'no', we don't make them speak to us.'

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 Dec:las:sitiEH~ ~o ~r~~~.MJ.fledi@-JOnal.lnfiGJ.malffJI.I
.r:.(j'

78. Joanne testified at the ex parte hearing that it is "implied" that talking to CSIS
employees is voluntary based on the fact that, "[w]hen we ask people, we say: 'We
would like to speak to you." Or: 'Could we speak with you?" Or: 'We need to speak
with you.~" When asked if there is a reason why she does not say to people up-
front that it is voluntary, "Joanne" indicated that she did not know that there is a
reason.

79. The practice of asking an individual if they wish to speak to a CSIS employee does
not sufficiently convey that the interview is voluntary. The issue of voluntariness is
a broader policy concern even though, in this particular case, the Complainant
appeared to have understood his right to decline to speak to the CSIS employees.
The overarching concern is that not all individuals approached by CSIS employees
have the same depth of knowledge and experience as the Complainant and policy
ought to have a broader application.

80. Since the operational policy does not provide guidance in this area, the Committee
recommends that CSIS review its policy to clarify the responsibilities of CSIS
employees with respect to voluntariness of interviews.

81. The Committee is concerned that a similar recommendation was made in a

previous Report , namely that CSIS obtain the informed and voluntary consent
from Canadians participating in a meeting with CSIS, in Canada or abroad. While
CSIS responded at the time that it emphasizes the voluntary nature of discussions,
I find that asking an individual if they wish to speak to a CSIS employee is not a
sufficient emphasis on the voluntary nature of such discussions.

Loss of "Joanne's" Operational Notes and '.'Victoria's" Failure to Take

Operational Notes

82. At the ax parle hearing, ''Joannel' testified that her notes are "always the exact
same as [her] report" and that her Report was written within the two-day period
following the visit to the Complainant. I specifically asked 11Joanne" whether the
policy is to file notes to the File, to which she r~sponded that it is so indicated.

83. u Joanne" testified at the ex parte hearing about the role of her
colleague, "Victoria." In particular, she clarified that her role was

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 ~~ET'erso.m~P mlltw'1.'!1!l'!IJ!Jp.u.

84. Still in the ex parte hearing,

"Joanne" testified that in fact uvictoria" did not tak~ any.

85. Upon attempting to fulfill an undertaking with the Committee, it came to light that
"Joanne's" operational notes cannot be found. Counsel corresponded with the
Committee and informed of the efforts made to locate them. I acknowledge
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"Joanne's" evidence that (her] notes are always the exact same as [her] Report.
This is how [they] are trained to do it. so there are no discrepancies". However.
there remains the difficulty that she did not recall important aspects of this matter
due to a lack of a complete record. On her own admission, she stated that she
recalls "some parts of the interview and added that she ''also reviewed [her]
Notes. It is even more problematic that "Victoria" failed to take any operational
notes

86. The operational policy on interviewing applicable at the relevant time clearly
provided that notes must be taken and employees are referred to another policy
concerning the retention of the notes.

87. Sections 5.5 and 5.6 of CSIS' Policy OPS-201-1 (Procedures- Operational
Interviews) that applied at the relevant time state the following:

5.5. Employees should make accurate notes of all interviews. If note-taking

during an interview is not possible or operationally beneficial, it must be done, in
a secure environment, at the earliest opportunity thereafter unless an official
record of the interview is created immediately after the meeting.

5.6. For procedures related to the retention of notes created during an interview
or of materiaJs received, collected or otherwise acquired during an interview.
11
employees refer to OPS-217 0perational Notes" and the DDO directive
.,Retention of Information Collected under Sections 12. 15 and 16 of the CS/S
Act.

88. I note that CSIS' revised policy on operational interviews dated 2014-04-22
ren:'ains virtually the same insofar as the requirement to take notes.

89. In CSIS' ex parte submissions, it is argued that SIRC is aware through past
experience with CSIS on complaints that the information electronically gathered
sometimes does not include investigators' notes. Additionally, CSIS asserts that it
has implemented a step at the beginning of the process to discuss with SIRC

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,.
counsel the search strings used to search for information, the databases to be
searched and the type of material to be collected.

90. These assertions give rise to concerns leading me to reject CSIS' submissions on
those points. CSIS seems to be implying that electronic searches of
documentation is the extent of the methodology in gathering information for SIRC's
investigation, which is obviously not the case. CSIS' argument also suggests the
view that CSIS did not need to independently determine methods of locating
information in its own holdings that would be relevant to the investigation, a
suggestion that I reject.

91. CSIS bears the responsibility to provide all relevant information to the Committee
in order for it to carry out its investigation. The information in question is in the
possession of CSIS and CSIS is best placed to gather that information to in turn
provide to the Committee.

92. In the result, CSIS' loss of the operational notes prepared by ~~Joanne" led to CSIS
failing to fulfill its undertaking to provide them to the Committee. Further, I find that
11
Victoriall failed to take operational notes contcary to the requirements set out in
CSIS policy

CSIS' Resp~nse Letter to the Complainant Dated March 24,2014

93. The CSIS letter signed by Mr.' Tom Venner (Assistant Director, Policy and
Strategic Partnerships) to the Complainant dated March 24, 2014, apparently in
response to the complaint to the Director of CSIS eleven months earlier, includes a
statement that the Complainant's allegations were examined and "the appropriate
internal inquiries~~ were made. The Assistant Director concluded that .. CSIS
officials acted professionally and entirely within the legislated mandate of the
Service."

94. ..Joanne" testified at the ex parte hearing that she was not consulted in terms of
the pr~paration of the letter to the Complainant; she was not asked about the
Complainant's interview in January 2013; and she was not aware that a letter l!ad
gone out to the Complainant.

95. There is no evidence before me that any relevant internal inquiries were made in
order to meaningfully respond to the Complainant's letter of complaint. The most .
appropriate inquiries would clearly have been to have discussions with the very
CSIS employees who interacted with the Complainant. This was notin fact done.

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 6~-~~'~lSarv.QJB WliOfE'ii'B~frP..r.
96. Accordingly, I find that CSIS misrepresented to the Complainant in its response
letter dated March 24, 2014 that "appropriate inquiries" were made to address the
complaint allegations: No such inquiries were made.

F. SUMMARY

97. Given the foregoing, and for the reasons stated in the previous section, the
Complainant's allegations with respect to this complaint are unsupported and the
complaint is dismissed. In light of the issues which arose in the course of these
proceedings, however, the Committee makes the following recommendation to the
Director of CSIS:

That CSIS review its policy to clarify the responsibilities of CSIS

employees with respect to the voluntariness of interviews.

FOR ALL THESE REASONS, ON BEHALF OF THE SECURITY INTELLIGENCE

REVIEW COMMITTEE, THE COMPLAINT IS DISMISSED.

Ottawa, Ontario
This 26th day of January 2017.

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