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] Classified Further Reasons for Order were issued on November 22, 2013 by the Honourable Justice Richard Mosley of the Federal Court in file:

Classified Further Reasons for Order were issued on November 22, 2013 by the Honourable Justice Richard Mosley of the Federal Court 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 classified Further Reasons for Order will be issued in a redacted version following

due consideration of matters related to the sensitivity of the information contained

therein. In the interim, the Court has released the following public summary:



Public Summary of Further reasons for Order

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 has issued classified 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 classified 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.



In conducting its review of Commissioner Décary’s recommendations, the Court has

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 expresses its views about this practice in its classified Further Reasons for

Order. However, it is concerned that statements in the public record, notably in the 2012-

2013 Annual Report of the Security Intelligence Review Committee (SIRC) recently

tabled in Parliament, may result in a false impression about the nature and scope of such warrants. The SIRC Report discusses the Committee’s “first examination of a new

warrant power under Section 21 of the CSIS Act which was initially authorized by the

Federal Court in 2009”. The report further states: “In order to maximize collection under

the new warrant power, CSIS, in almost every case, leverages the assets of the Five Eyes

community…”



This practice is addressed in the Court’s classified Further Reasons for Order. However,

in light of these public statements, the Court considers it necessary to state that the use of

“the assets of the Five Eyes community” 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.



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