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Wednesday, November 27, 2013
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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