Ottawa, December 20, 2013 – Classified Further Reasons for Order were issued on November 22, 2013, by the Honourable Justice Richard Mosley in file:
IN THE MATTER OF an application by [XXX] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act]; AND IN THE MATTER OF [XXX]
These Further Reasons for Order are being issued today in a redacted version. A copy of the Reasons can be obtained via the Web site of the Federal Court: http://cas-ncr- nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index
Summary In January 2009, the Court was asked to issue a warrant with respect to two Canadian citizens whose activities, on reasonable grounds, were believed to constitute a threat to the security of Canada. At the time, the two individuals were the subjects of warrants issued in 2008 for execution in Canada. The application in January 2009 sought authority on an urgent basis with respect to newly identified threat-related activities that arose while the two individuals were travelling outside of Canada.
Following a hearing, Justice Richard Mosley considered that a factual and legal basis had been made out for the issuance of a warrant for the interception, from within Canada, of the foreign communications of the two individuals by the Canadian Security Intelligence Service (CSIS) with the assistance of the Communication Security Establishment of Canada (CSEC).
Justice Mosley issued the first warrant on January 26, 2009 for a limited duration of three months. Upon considering the matter further, the warrant was issued for an additional nine months in April 2009 and classified Reasons for Order were issued in May, 2009. A redacted version of those Reasons was issued on October 5, 2009: X (Re), 2009 FC 1058.
A number of similar warrants have been subsequently issued by Designated Judges of the Federal Court when the criteria set out in subsection 21 (2) of the CSIS Act have been met. These criteria require, among other things, that the Court be satisfied on the evidence presented that there are reasonable grounds to believe that a warrant is required to investigate a threat to the security of Canada and that other investigative procedures have failed, or are unlikely to succeed, and that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures. The Court also applies the principles derived from the guarantee against unreasonable search and seizure set out in s. 8 of the Canadian Charter of Rights and Freedoms.
On August 21, 2012 the Annual Report of the Communications Security Establishment Commissioner, the Honourable Robert Décary, was tabled in Parliament by the Minister of National Defence. The Report, among other things, commented upon the review of
CSEC’s assistance to CSIS under its mandate as set out in paragraph 273.64 (1) (c) of the National Defence Act. As a result of his review, Commissioner Décary recommended that: 1. CSEC discuss with CSIS the expansion of an existing practice to protect privacy to other circumstances; and 2. CSEC advise CSIS to provide the Federal Court with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS.
Upon reading the public version of the Report submitted by the CSEC Commissioner to Parliament, on August 26, 2013 Justice Mosley issued an Order requiring counsel for CSIS and CSEC to appear before him to explain what was meant by “additional evidence about the nature and extent of the assistance CSEC may provide to CSIS” and whether that evidence was material to the issuance of the particular type of warrants in issue.
Following a hearing with CSIS and CSEC counsel in early September, Justice Mosley issued a further order requiring the presentation of evidence regarding the assistance provided by CSEC to CSIS. Mr. Gordon Cameron, a member of the private bar and security cleared Special Advocate, was appointed to assist the Court as amicus curiae in reviewing the evidence and submissions presented by CSIS and CSEC.
Upon hearing evidence from CSIS and CSEC officials and the submissions of counsel for the Deputy Attorney General of Canada, and the amicus, on October 23-24, 2013, Justice Mosley issued the Further Reasons for Order with respect to this type of warrants for the purpose of addressing the issues raised on the new information adduced.
In the Further Reasons for Order, Justice Mosley has found that CSIS breached its duty of candour to the Court by not disclosing information that was relevant to the exercise of jurisdiction by the Court and to the determination by the Court that the criteria of investigative necessity and the impracticality of other procedures set out in subsection 21 (2) of the CSIS Act had been satisfied. Justice Mosley has found that such information must be disclosed to the Court on any subsequent application for similar warrants.
The Court determined that the execution of the type of warrants at issue in Canada has been accompanied by requests made by CSEC, on behalf of CSIS, to foreign agencies (members of the “Five Eyes” alliance), for the interception of the telecommunications of Canadian persons abroad. The Court concludes that this is not authorized under any warrant issued to CSIS pursuant to the CSIS Act. The question of whether CSIS may, with the assistance of CSEC, engage the surveillance capabilities of foreign agencies was not raised in the application that resulted in the issuance of the first such warrant or in any subsequent warrants of this type.
Andrew Baumberg Media Contact / Liaison avec les Médias Federal Court / Cour fédérale Tel