There are no assurances. There is, rather, the virtual certainty that an agency chartered to protect 'national security, ' cloaked in secrecy, and accountable to no one who does not share--or actively encourage--its conspiratorial mystique will continue to commit monstrous crimes ... (1) I. Introduction
On December 14, 2017, the Canadian Security Intelligence Service ("CSIS" or "the service") announced that it had reached an out-of-court settlement with five of its employees. (2) The group of intelligence officers and analysts sued the service in July 2017 alleging that racist, anti-Muslim, sexist, and homophobic discrimination and harassment were rampant among staff and supervisors, and was tolerated at the highest levels of the service. (3) The allegations appeared to be corroborated by the findings of an informal internal investigation into CSIS's Toronto Region office, which was released publicly in October 2017. The report exposed an internal culture at CSIS that included "misogynistic, offensive and inappropriate comments and jokes ... and even bullying by colleagues and managers, which remained unchecked for years". (4) The report noted that, within CSIS, "jokes and discriminatory comments are still being made with regards to ethnicity and the communities being monitored. There is still some bias against and a general lack of thoughtfulness towards cultural differences and sensitivities." (5)
In announcing the settlement of the civil claim, CSIS Director, David Vigneault, gave no specifics about the confidential terms, which presumably included significant financial compensation to the plaintiffs. (6) Vigneault pledged that the service would work "to ensure that the behaviour of all employees reflects the CSIS Employee Code of Conduct principles of respect for democracy, respect for people, integrity, stewardship, and professional excellence." (7)
Falling back on formal policies did little to assuage concern that toxicity within CSIS was likely influencing the agency's work in counter-terrorism operations. (8) When read alongside the experiences of individuals and communities caught in the web of Canadian national security law and policy since September 11, 2001 (hereinafter "9/11"), the allegations appeared to confirm the persistent complaints of Canadian Muslim communities about religious and ethnic profiling in national security practices, discrimination in counter-terrorism investigations, and overbroad suspicion and monitoring of Muslim communities and institutions. The essence of these grievances appeared to concord with the employees' allegations concerning discriminatory attitudes and behaviour within the service.
The employees' allegations against CSIS come into yet clearer focus when assessed in light of the findings of the two commissions of inquiry that looked into the matters of Maher Arar, (9) and Abdullah Almalki, Ahmad Abou El-Maati, and Muayyed Nureddin. (10) These innocent men were found to have been subjected to rendition to torture, with Canadian complicity, in the early years of the US war on terror. (11) At least two salient features of those cases, now more than a decade past, continue to resonate: First, Canadian authorities were known to be working in very close cooperation with American counter-terrorism officials and were under tremendous pressure to cooperate on US terms; and secondly, Canadian intelligence officials made a series of false assumptions and demonstrated discriminatory attitudes in forming the basis for their suspicions, which were found not reasonable on the evidence in the circumstances. The same features were at play in Canada's failings towards the former child prisoner, Omar Khadr, who was illegally interrogated by Canadian intelligence officers while detained at the US detention facility in Guantanamo Bay, Cuba. This combination of deference to US priorities, the "war on terror" ideology, and intelligence failures based at least in part on discriminatory assumptions, caused Canada to violate Charter rights and ruin lives. The impact was felt throughout the Canadian Muslim community.
When Canada joined the US war on terror in the aftermath of the co-ordinated attacks on the twin towers and the Pentagon, it surrendered to a series of counterterrorism assumptions and goals that were primarily ideological and lacked definitional precision. After 9/11, the battle against "radical Islam"--whatever that meant--was adopted as the rationalizing discourse and primary frame for US counterterrorism policy and action. What was dangerous to the US was also presumed to be dangerous to Canada, and the idea that Islamic terrorism posed a lethal threat to Canada, both militarily and ideologically, took hold. (12) The Liberal government, led by then-Prime Minister Jean Chretien and Justice Minister Anne McLellan, implemented the first anti-terrorism law in December 2001, (13) followed shortly by an overhaul of immigration legislation in June 2002. (14) The approach sought to, among other things, tighten up immigration, define "terrorism" offences, and expand criminal power into preventative action and the denial of habeas corpus based on suspicion. (15) This framework has consistently guided Canadian national security policy, and it was intensified and broadened with the adoption of new powers in the Anti-terrorism Act, 2015. (16)
Beneath the legislative framework is a normative framework constituting the ideology and value system of the security establishment--those with legal power to investigate and disrupt terrorism threats. The enemy in the war on terror is not conventional. In fact, the enemy is imprecise, ambiguous, and barely knowable. (17) It could potentially be anyone who appears to hold certain types of belief. This has led to an emphasis on the markers of difference, and has bred fears of infiltration by an extremist "other". (18) For many, the war on terror was not just fought with bombs and guns, but also with ideas, language, and demography. (19) Those who believe Muslims are overrunning western civilization, for instance, point to a combination of Islam's alleged proclivity to extremism and the lack of shared values to justify scepticism that Muslims can comfortably integrate into western society. (20) Issues of gender equality, freedom of expression, and the role of religion in public life are often cited as sites of irreconcilable conflict between the west and Islam. (21) The correlation of religiosity, especially outward religious observance, with the likelihood of being a terrorist seems implicitly obvious, even if not true. Evidence does not support any such correlation, and actually suggests that religious knowledge and community can be a powerful antidote to extremism. (22)
The gap between fact and stereotype about Muslims has made all the difference when it has mattered most. The cases of Maher Arar and others provide illustration of the interplay of discrimination and incompetence. Even good faith slips and errors can produce egregious discriminatory effects when they occur in conditions in which a particular type of person or group suffers stigma. Discrimination is always reciprocated with diminished trust. Thus, the seeds of abuse that were sown in the early post-9/11 period produced a generation of Canadian Muslims who are deeply distrustful of CSIS, who do not believe Canada has been fair or just in its fight against terrorism, and who feel that they have been made to belong to a despised and targeted minority within Canadian society. (23)
This article begins at Part II by summarizing the settled civil claim by the five CSIS employees and related materials which fill in the picture of a toxic workplace culture within the national spy service. Part III discusses the record of official misdeeds and highlights findings from the public inquiries that resonate and align with the allegations of workplace toxicity. Part IV summarizes recent empirical research demonstrating that there is a considerable degree of distrust of counter-terrorism policy and institutions, and fear of terror stigma, within Muslim communities across the country. Finally, Part V describes and analyses legislative reform in national security, notably the Conservative government's controversial enactment of new antiterrorism legislation in 2015, and the Liberal government's subsequent efforts to amend parts of it. It highlights that Canada's current national security consensus is that building collaborative relationships with targeted communities is a critical component of preventing threats. The article concludes by returning to this fundamental paradox in Canadian counter-terrorism: On the one hand, experts and government agree that effective counter-terrorism requires constructive relationships between national security agencies and targeted communities, which can only function with trust and good faith. On the other hand, as a result of official errors and illegal conduct, the lack of political accountability or internal reform, and the failure to root out bias in operations, there remain formidable obstacles to cooperation between the national security agencies and Canadian Muslims.
Blowing the Whistle on CSIS
In the aftermath of the adoption of the ATA 2015 (which received royal assent on June 18, 2015) and a federal election in October 2015, the new Liberal Prime Minister, Justin Trudeau promised "sunny ways" as he ended nearly 10 years of Conservative rule under Stephen Harper. (24) Then, in July 2017, a group of five CSIS employees, including three Intelligence Officers and two Analysts, sued the service for $35 million in damages caused by years of alleged workplace toxicity. They claimed that harassment, discrimination, intimidation and abuse, including racist, sexist and homophobic remarks and attitudes, were rampant at all levels of the service. (25) The statement of claim avoided divulging confidential information, as its focus was on workplace...