Docket: CSIS-30-08
Citation: 2013 FC 1275
Ottawa, Ontario, November 22, 2013,
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
IN THE MATTER OF an application by
[xxxxx xxxxxx ] for a warrant pursuant to
Sections 12 and 21 of the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C-23;
AND IN THE MATTER OF [ XXXX XXXXXXXXX]
REDACTED AMENDED FURTHER REASONS FOR ORDER
MOSLEY J.
INTRODUCTION:
[1] On May 4, 2009 the Court issued Reasons for the issuance of a warrant to intercept foreign
telecommunications and [ ] from within Canada. An amended and redacted public
version of those reasons was released on October 5, 2009. The warrant was issued initially on
January 26, 2009 for a period of three months and was reissued for a further 9 months on April 6, Page: 2
2009. When first authorized, the warrant marked a departure from the position previously taken by
the Court that it lacked jurisdiction to authorize the collection of security intelligence information
concerning a threat to the security of Canada by the Service from countries other than Canada. In
my private and public reasons I explained why I considered it appropriate to authorize the collection
of foreign telecommunications and [ ] so long as the interception
of the telecommunications and seizures of the information took place from and within Canada.
[2] In arriving at that decision, I was persuaded by the applicant’s legal argument as to how the
proposed method of interception was relevant to the jurisdiction of this Court and by a description
of the facts concerning the methods of interception and seizure of the information, which differed
from that put before my colleague, Justice Edmond Blanchard, on a prior application. More
precisely, the applicant argued that this Court had jurisdiction to issue warrants to ensure a measure
of judicial control over activities by government officials in Canada in relation to an investigation
that extends beyond Canadian borders. Counsel advanced the argument that this Court had such
jurisdiction because the acts the Court was being asked to authorize would all take place in Canada.
[3] Since my May 2009 Reasons were issued, a number of similar warrants have been issued on
fresh or renewed applications in relation to other targets of investigation under sections 12 and 21 of
the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 ("the CSIS Act"). In these
Reasons, I will refer to these warrants as “CSIS-30-08 warrants” or “30-08”.
Page: 3
[4] These Further Reasons for Order respond to recent developments and are intended to clarify
the scope and limits of the Reasons issued in 2009. This has become necessary, in my view, as a
result of additional information that has been provided to the Court following publication of the
2012-13 Annual Report of the Commissioner of the Communications Security Establishment
Canada (CSEC), the Honourable Robert Décary, QC. These Further Reasons address issues that
have arisen with respect to whether the duty of full disclosure owed by the Canadian Security
Intelligence Service (“CSIS or the Service”) to the Court was respected and with regard to foreign
collection practices undertaken by the Service and CSEC in connection with the issuance of the 30-
08 warrants.
[5] Before addressing these issues, I think it important to lay out my understanding of the
background to these events for the record.
BACKGROUND:
[6] CSIS has long taken the position that it is not barred by its statute from engaging in security
intelligence collection activities outside of Canada. This view is supported by the absence of an
express territorial limitation in s 12 of the Act, by statements made in the Report of the Commission
of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police 1981 (McDonald
Commission) which led to the creation of the Service, and by statements in Parliament during the
debates prior to enactment of the enabling statute. The Service has engaged in certain investigative
activities in foreign countries by, among other things, [ ] Page: 4
[ ] entering into sharing agreements with foreign
agencies.
[7] The question which remained in doubt, however, was whether the conduct of intrusive
activities abroad that in Canada required lawful authority, such as a warrant or express enabling
legislation, would contravene the Canadian Charter of Rights and Freedoms, enacted as Schedule B
to the Canada Act, 1982, (U.K.) 1982 c. 11 and the Criminal Code, R.S.C. 1985, c C-46. In the
absence of express legislative authority, or a warrant, it was considered by the Service and its legal
advisors that CSIS officers would be exposed to potential liability in Canada as well as in the
foreign jurisdiction. While this could have been addressed by Parliament, no attempt was made to
amend the legislation, most likely due to concerns about the controversy that opening the Act to
insert such an amendment would engender.
[8] The Service did not attempt to seek the authorization of a warrant to conduct intrusive
activities abroad until 2005. In that year, the Service applied for a warrant, in application CSIS 18-
05, that if issued would have authorized the interception of the communications of a Canadian
citizen who was temporarily resident outside Canada. The requested warrant would also have
authorized the Service to obtain, in relation to the target, [ ]
[ ].
[9] A preliminary issue arose as to whether the questions of law raised by the application could
be dealt with in a public hearing. An amicus curiae, Mr. Ron Atkey QC, was appointed to assist the Page: 5
Court in determining that issue. Following oral and written submissions, Justice Simon Noël
concluded that the application should be dealt with in private. A public version of his Reasons for
Order and Order was released in 2008: Re Canadian Security Intelligence Services Act 2008 FC
300, [2008] F.C.R. 477. For operational reasons, a notice of discontinuance of the application was
filed on August 23, 2006 without a determination of the merits or other legal issues.
[10] The questions were then raised again in an application (CSIS 10-07) brought before Justice
Edmond Blanchard in April, 2007. In that application, CSIS sought the authority of warrants in
respect of investigative activities against 10 subjects in Canada and other countries. On the strength
of the evidence of a CSIS affiant, Justice Blanchard was satisfied that the requirements of
paragraphs 21 (2) (a) and (b) of the CSIS Act had been met for the issuance of warrants for
execution in Canada. However, he was not prepared to authorize investigative activities by the
service outside Canada, as requested, without further consideration. Mr. Ron Atkey was again
appointed to serve as amicus curiae. Justice Blanchard requested that the Service and the amicus
file written submissions to address first, whether the Service has a mandate to undertake threat
related investigations outside Canada and second, whether the Federal Court had jurisdiction to
issue the requested warrant.
[11] In the application before Justice Blanchard, the Service sought a warrant to intercept any
telecommunication destined to or originating from the subjects of investigation including such
communications abroad; to obtain information or records relating to the targets [
] Page: 6
[ ] It was requested that the
warrant provide that it may be executed, in addition to locations in Canada, at any place outside of
Canada under the control of the government of Canada or of a foreign government. [
].
[12] In addition to the evidence of the CSIS affiant required to establish the statutory
prerequisites to the issuance of a warrant, counsel for the applicant filed the affidavit evidence of
James D. Abbott, CSEC’s then Acting Director of Signals Intelligence (“SIGINT”) Requirements.
[13] CSEC’s mandate is set out in the National Defence Act, R.S.C. 1985, c. N-5, as amended by
the Anti-terrorism Act, S.C. 2001, c. 41. Under paragraph 273.64(1) (a) of this statute, the agency is
authorized to acquire and use information from the global information infrastructure (i.e.,
communications systems, information technology systems and networks) for the purpose of
providing foreign intelligence to the government of Canada.
[14] Prior to the 2001 legislation, it was unlawful for CSEC to intercept the communications of a
foreign target that either originated or terminated in Canada. Under the then prevailing regimen,
CSEC could only target communications that originated and terminated in foreign jurisdictions, and
which involved foreign intelligence. The 2001 legislation empowered the Minister of National
Defence to authorize CSEC to target foreign entities physically located outside the country that may
engage in communications to or from Canada, for the sole purpose of obtaining foreign intelligence. Page: 7
A major factor prompting the legislation was CSEC's need for lawful authority to operate
effectively without transgressing the Criminal Code prohibition against intercepting "private
communications", as will be discussed further below. The legislation enabled CSEC to intercept
communications to or from Canada for the purpose of obtaining foreign intelligence subject to
ministerial authorization and contingent on specific provisos set out in s 273.65 (2):
a) the interception is directed at foreign entities outside of Canada;
b) the information could not reasonably be obtained by other means;
c) the expected foreign intelligence value of the information justifies its
collection; and
d) satisfactory measures are in place to protect the privacy of Canadians
to ensure that private communications will only be used or retained if
they are essential to international affairs, defence or security.
[15] CSEC is expressly prohibited under paragraph 273.64(2) (a) of the National Defence Act
from directing these activities at Canadian citizens and permanent residents (“Canadian persons”)
wherever located or at any person in Canada regardless of nationality.
[16] The limitations respecting Canadian persons and any persons in Canada do not apply to
technical and operational assistance which CSEC may provide to federal law enforcement and
security agencies in the performance of their lawful duties pursuant to paragraph 273.64(1) (c) of
the National Defence Act. Subsection 273.64(3) of this statute provides that such assistance
activities are subject to any limitations imposed by law on the federal agencies in the performance
of their duties.
Page: 8
[17] In his affidavit filed in application CSIS 10-07, Mr. Abbott described how CSEC would
assist the Service if the warrant sought was issued. [
] While
there is a long-standing agreement that each allied agency would treat the citizens of another allied
nation as its own for the purposes of the application of its domestic legislation, Mr. Abbott
acknowledged that it remained open to those agencies to pursue their own national interest with
respect to the information collected.
[18] Mr. Abbott also explained how CSEC had the capability to direct activities from within
Canada [
].
[19] Prior to any conclusion being reached by Justice Blanchard on the matters under
consideration, in June 2007 the Supreme Court of Canada released its decision in R. v. Hape, 2007
SCC 26 respecting the application of the Charter to criminal investigations conducted in other
countries by Canadian authorities.
Page: 9
[20] In Hape, the Supreme Court affirmed that Canadian legislation is presumed to conform to
international law absent express statutory language to the contrary and that customary international
law prohibited interference with the domestic affairs of other states. The Court found that extending
the reach of the Charter to the actions of Canadian officials abroad would be inconsistent with those
principles. The majority in Hape recognized, at paragraph 101, that the participation of Canadian
officials abroad that would violate Canada’s international human rights obligations might justify a
remedy under s 24(1) of the Charter because of the impact of those activities on the rights of the
individual in Canada.
[21] In response to questions framed by Justice Blanchard following the release of Hape, counsel
for the Deputy Attorney General of Canada (DAGC) took the position that the scope of the
Supreme Court’s decision was not clear. In particular, it was submitted, it was not clear whether the
Court’s rationale was intended to apply, and did apply, to the conduct of security intelligence
investigations outside Canada. To that extent, they argued, such investigations outside Canada
might raise Charter issues where those investigations implicated persons having a real and
substantial connection to Canada. Further, the question of whether activities outside Canada may
contravene provisions of the Criminal Code had not been resolved, they submitted.
[22] The responsible course of action for the Service was to seek a warrant, it was argued. Should
the Charter and the Criminal Code be found to be inapplicable to security intelligence
investigations abroad, the worst that could occur, it was submitted, is that the warrant would have
been unnecessary. The converse, should it occur, would be untenable for the Service as its officers Page: 10
would continue to be exposed to Charter and Code liability if they engaged in intrusive activities
without the authorization of a warrant.
[23] As discussed in my May 2009 Reasons for Order, the interception of telecommunications
for which authorization was sought in the applications before Justice Blanchard in 2008 and before
me in 2009 would come within the broad meaning of the term “intercept” as defined in s 2 of the
Act by reference to the Criminal Code definition. The Service sought to listen to, record or acquire
communications. Such activities constitute an “intercept” as interpreted by jurisprudence in relation
to the Criminal Code definition: R. v. McQueen, (1975), 25 C.C.C. (2d) 262 (Alta. C.A.); R. v.
Giles, 2007 BCSC 1147.
[24] Section 26 of the CSIS Act provides that Part VI of the Criminal Code does not apply in
relation to any interception of a communication under the authority of a warrant issued under
section 21 of the Act. Absent this protection, Part VI would apply to the interception of any “private
communication” as defined by section 183 of the Criminal Code; that is any private communication
where either the originator or the recipient was in Canada. The place of “interception” under the
Code has been interpreted as the location where a call has been acquired and recorded: R. v. Taylor,
[1997] B.C.J. No. 346 affirmed [1998] 1 S.C.R. 26; R. v. Taillefer and Duguay (1995), 100 C.C.C.
(3d) 1. Thus the concern about potential liability absent a warrant or express legislative authority
discussed by the DAGC in his Supplementary Submissions to the Court in the summer of 2008 was
not unrealistic.
Page: 11
[25] Justice Blanchard issued classified Reasons for Order and Order on October 22, 2007. A
public, redacted version was issued in February 2008 (Re CSIS Act, 2008 FC 301). Justice
Blanchard described the issues before him as follows at paragraph 12 of his Reasons:
a) Does the Federal Court have jurisdiction to issue the warrant
requested?
b) Does the Service have a mandate to undertake threat related
investigations in a country other than Canada?
c) Does the Criminal Code…and the Canadian Charter of Rights and
Freedoms… apply to activities of the Service and its agents in
undertaking threat related investigations in a country other than
Canada?
d) Can the Canadian [sic] Security Establishment (CSE) assist the
Service in the execution of the warrant sought?
[26] The Service's rationale in support of its position that the Court had jurisdiction to issue the
warrant was set out in paragraphs 22 and 23 of Justice Blanchard's decision:
22. The Service contends that the authorizations sought are to enable
it to fulfill its mandate under section 12 of the Act. Section 12 differs
from section 16 of the Act which limits the Service's collection of
"foreign intelligence" to "within Canada". The Service submits that
Parliament, by not imposing the same territorial limitation in section
12 as it did in section 16, must have intended its section 12 mandate
to have extraterritorial reach.
23. The Service further contends that the warrant is required to
ensure the Canadian agents engaged in executing a warrant abroad
do so in conformity with Canadian law. The Service maintains that
the warrant is required to judicially authorize activities that, absent a
warrant, may breach the Charter and contravene the Code. This is so
because the warrant powers sought to be authorized are directed at
Canadians and arguably might impact on their expectation of
privacy. The Service argues that the warrant would enable it to
perform its duties and functions by removing the legal impediments
to the conduct of a part of its security intelligence investigations
outside Canada and would respect the rule of law and be consistent
with the regime of judicial control mandated by Part II of the Act.
Page: 12
[27] On consideration of the principles of statutory interpretation, the legislative history of the
Act and the principles of customary international law addressed in Hape, the answer to the first
question was found to be negative. Absent consent of the foreign states concerned to the operation
of Canadian law within their borders, the proposed investigative activities would breach their
territorial sovereignty. This violation of international law could only be authorized by Parliament
through express legislation. Justice Blanchard concluded, " [a]bsent an express enactment
authorizing the Court to issue an extraterritorial warrant, the Court is without jurisdiction to issue
the warrant sought" (paragraph 55).
[28] As a result of this determination, which was dispositive of the application, Justice Blanchard
considered it unnecessary to deal with the other issues. He thought it appropriate, however, to
provide his views on the third question since that had been the central focus of the Service’s
submissions before the Court.
[29] Justice Blanchard considered that the principles set out in Hape with respect to investigative
actions in criminal matters were equally relevant to the collection of information in the intelligence
context abroad. He concluded that the Charter did not apply in that context and that the offence
provisions of the Criminal Code with extraterritorial effect were not relevant to the activities of
intelligence officers collecting information abroad. In the circumstances, he was unable to find why
the warrant sought would be required for the stated purpose of protecting the Service or its agents
from prosecution under the Code for the limited number of offences which Parliament had defined
as having extraterritorial effect (paragraph 63). It does not appear that the link between Part VI of
Page: 13
the Criminal Code and the protection afforded by s 26 of the CSIS Act to the interception of
communications having at least one end in Canada, noted above, was raised before Justice
Blanchard.
[30] In any event, nothing in Justice Blanchard’s Reasons support an interpretation that CSIS
officials do not need a warrant or other lawful authority, including that of the foreign state, to
conduct intrusive intelligence collection activities abroad. He found, rather, that the Act did not
provide for the issuance of such a warrant and that the Charter did not extend to such activities.
[31] In these proceedings, the Court has been provided with information about what transpired
next. In the aftermath of Justice Blanchard’s decision, the Director of CSIS sought further legal
advice from the DAGC respecting:
• the interception of the communications of Canadians or
permanent residents who are outside Canada where the
Service believes they are engaged in activities constituting a
threat to the security of Canada; and
• whether the Service can lawfully [ ]
information [ ] outside
Canada in cases where the Service believes the information
relates to activities constituting a threat to the security of
Canada and where there is a current CSIS Act warrant
authorizing [ ] seizure of similar information
in Canada. [underlining added]
[32] In a letter to the Director dated October 2, 2008, the DAGC set out his views on the
implications of the decision in CSIS 10-07 in relation to seven factual scenarios. Several of these
scenarios had not been raised in the application before Justice Blanchard and were not addressed in
his decision. While these scenarios entailed the interception of communications of targets who are
Page: 14
outside Canada, the interceptions would take place entirely inside Canada.[
] Interceptions, [ ] and seizures
conducted from within Canada, CSIS was advised, did not engage the territorial issues raised by
Justice Blanchard and could properly be the subject of a warrant under s 21 of the CSIS Act given
an appropriate factual context.
[33] The tasking of allied foreign agencies discussed by Mr. Abbott in his affidavit in CSIS 10-
07 was briefly discussed in the opinion. This was described as the interception of a target’s
communications outside Canada by a foreign agency at the Service’s request. Reference was not
made to CSEC assistance. The DAGC stated that this did not engage the jurisdictional issues raised
by Justice Blanchard and asserted that, in his view, a warrant to authorize such requests was not
required. This, counsel for the DAGC now say, was based on a new interpretation of the scope of s
12 of the CSIS Act in light of Hape and Justice Blanchard’s decision.
[34] The opinion respecting the scope of s 12 in the DAGC’s letter of October 2, 2008 consists of
no more than a bald assertion of legitimacy. The letter contains no analysis or discussion of the
legislative history behind s 12 and its relationship to s 21 or other provisions of the Act read as a
whole. Nor was there any discussion of the constraints placed on CSEC or the boundaries of the
assistance it may provide to federal security and law enforcement agencies. The Service was
cautioned that it should satisfy itself that the foreign party intercepting the communications was
Page: 15
acting in accordance with the laws of its own jurisdiction and that the actions of the foreign party
did not give rise to serious violations of human rights. How that was to be done was not discussed.
[35] To address the Director’s concern about the Service's ability to investigate threats to
Canada’s security by targets outside the country, the DAGC proposed that their respective officials
work together to seek, by way of a fresh warrant application, an authoritative judicial interpretation
of sections 12 and 21 of the Act in relation to the factual scenarios that were outside the scope of
Justice Blanchard’s decision. Department of Justice counsel were instructed to work with CSIS
officials to identify applications on which to seek such an authorization.
[36] That opportunity arose in January 2009 in the CSIS 30-08 file. The application had been
originally presented on November 27, 2008. At that time, the Court issued warrants with respect to
the threat related activities of two Canadian citizens. The warrants authorized the use of intrusive
investigative techniques and information collection at locations within Canada for a term of one
year. On January 24, 2009 the Service sought an additional warrant as the targets were about to
leave Canada and there was reason to believe that they would continue activities constituting a
threat to Canada while abroad.
[37] The application was heard before me on an urgent basis on Saturday, January 26, 2009.
Written submissions and authorities were filed. I was asked to revisit the question of jurisdiction and
to distinguish Justice Blanchard’s reasoning in the 2007 decision on the basis of a different
description of the facts relating to the activities necessary to permit the interception of the
Page: 16
communications and the procedures to be used to obtain the information sought and a different legal
argument concerning how the proposed methods of interception were relevant to the jurisdiction of
this Court.
[38] In addition to the evidence of a CSIS affiant, the Service relied on an affidavit from the
CSEC employee, Mr. Abbott. Mr. Abbott gave oral evidence at the hearing and was questioned
closely by myself as to how the proposed methods of interception and search differed from those
presented to Justice Blanchard.
[39] On the application before Justice Blanchard, Mr. Abbott’s affidavit discussed in detail how
the resources of the allied foreign agencies would be tasked with intercepting the communications
of the Canadian travelling abroad in addition to CSEC’s own collection [ ]. In his evidence before
me, Mr. Abbott stated that the targeted [ ] communications and [
] would be intercepted [ ] solely by Canadian government equipment
[ ] No reference was made to tasking allied foreign
agencies. There was no suggestion that CSIS or CSEC officials intended to engage the services of
allied foreign agencies to assist in the collection effort. Mr. Abbott’s evidence stressed that the
assistance provided to CSIS would be limited to the authority granted by the warrant:
The methods and techniques described in this affidavit could be used,
were this warrant application granted, in the provision of assistance
to the Service to the extent allowed by the warrant.
Affidavit of James D. Abbott, January 23, 2009, para 15.
Page: 17
[40] After reading the material before the Court and hearing the evidence of the witnesses and
the submissions of counsel, I was satisfied that there were sufficient factual and legal grounds to
distinguish the application before me from that considered by Mr. Justice Blanchard and the warrant
was granted. It was initially issued for a term of only three months so that I might consider the
matter further. On April 6, 2009 I heard additional submissions from counsel and on April 16, 2009
I extended the warrant for a further nine months. As noted above, I issued Top Secret Reasons for
Order on May 4, 2009 to explain why I believed that the Court had the jurisdiction to issue the
warrant and how the application differed from that considered by Justice Blanchard.
[41] While the record is not entirely clear on this point, it appears from the information before me
that no attempt was made to task foreign agencies with the collection of telecommunications
intercepts in relation to the targets of the warrant issued on January 24, 2009. However, it is
apparent that such actions began shortly after my Reasons for Order were issued on May 4, 2009.
[
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ]. They
recommended that requests for assistance to the allied foreign agencies should be made at the same
time as requests for assistance were made by the Service to CSEC under a 30-08 warrant. CSIS
senior management agreed.
[42] The first request for assistance involving a foreign partner in addition to the scope of a
30-08 warrant was made on May 7, 2009, according to Mr. Abbott’s evidence in this proceeding.
Page: 18
On May 27, 2009 a senior counsel of the Department of Justice Departmental Legal Services Unit at
CSEC provided advice to his client that, “where a 30-08 warrant has been issued against a
Canadian citizen or permanent resident located outside Canada” asking allied nations to intercept
the communications of the subject of that warrant would not appear to be contrary to the CSIS Act
or the Charter. In addition the opinion states that:
It is understood that the warrant contains no power granted to CSIS
dealing with requests to foreign nations, and that CSIS would make
such request only where a warrant is in force. [Underlining added]
[43] It is not clear whether the linkage between the 30-08 warrants and the requests for foreign
assistance was made at the request of CSEC officials concerned about the scope of their assistance
mandate. However, it appears in a memorandum from the office of the CSIS Deputy Director of
Operations on September 11, 2009 to all CSIS branch and regional offices. The memorandum stated
that as a result of the Court’s May 4, 2009 decision the Service could now request the Court to
authorize intercepts of foreign telecommunications with the assistance of CSEC. It further states that
the use of "2nd party assets will be the norm”, meaning the allied foreign agencies’
telecommunication collection systems. The memorandum does not state that the Court had not
authorized the use of the foreign assets.
[44] While specific details would not be provided to the second parties that the individuals
concerned were Service targets, the memorandum acknowledges that the second parties could infer
that the collection was being conducted on behalf of the Service as it would be outside of normal
practice for CSEC [ ] What they
might then do with the information was beyond the control of the Service. Page: 19
[45] The Court has issued more than [ ] 30-08 warrants on fresh or renewal applications since
May of 2009. It appears that in the majority of these cases, if not all, CSIS has asked CSEC to task
their foreign partners [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ] Counsel for the Service concedes that the fact that this
would be done was not disclosed in any of the applications to obtain a 30-08 warrant.
2012-2013 Annual Report of the CSEC Commissioner
[46] Commissioner Décary’s 2012-2013 Annual Report was transmitted to the Minister of
National Defence in June 2013. A public expurgated version was issued in late August 2013. The
Public Report observed that paragraph 273.64(1) (c) of the National Defence Act authorizes CSEC
to provide technical and operational assistance to federal law enforcement and security agencies in
the performance of their lawful duties. It was further noted that this would include the interception
of Canadians’ communications if CSIS has a judicially authorized warrant issued under s. 21 of the
CSIS Act.
[47] Pursuant to subsection 273.64(3) of the National Defence Act, the Report noted, CSEC is
subject to any limitations imposed by law on the agency to which it is providing assistance. In
carrying out its other mandates, the collection of foreign intelligence and protecting Canada’s
electronic infrastructure, CSEC is expressly constrained from directing its activities at Canadian
persons anywhere or any person in Canada and must take measures to protect the privacy of
Canadian persons in the use and retention of intercepted information. Thus, the only circumstance in Page: 20
which CSEC may target Canadian persons is under its assistance mandate and only then if it does so
in support of another federal agency that is acting under lawful authority.
[48] The CSEC Commissioner’s Annual Report contained a discussion of the Commissioner’s
review of CSEC assistance to CSIS under part (c) of CSEC’s mandate and sections 12 and 21 of the
CSIS Act. This discussion referred to the Court’s decisions in CSIS 10-07 and CSIS 30-08.
[49] The objectives of this review were described as the following at page 23 of the Public
Report:
…to acquire detailed knowledge of and to document CSEC’s
assistance to CSIS and to assess whether CSEC activities complied
with the law, including with the terms of the warrants issued to CSIS,
and any privacy protections found therein. CSEC’s assistance to
CSIS under the warrants may include use of Canadian identity
information and the interception of the communications of
Canadians. CSEC’s collection, as defined in the warrant, may impact
on the privacy of Canadians.
[50] The Public Report further states that the Commissioner had examined “CSEC assistance to
CSIS in support of a number of the first warrants of this kind relating to counter-terrorism”. The
Report sets out the specific information verified by the Commissioner to assess CSEC’s compliance
with the law and privacy protections in this context:
• CSEC had a copy of the warrant and had clear and sufficient
information about the assistance sought by CSIS;
• the communications targeted by CSEC for CSIS were only
those communications referred to in the warrants;
• the communications were not targeted before the warrants
came into force and were no longer targeted once the
warrants expired;
Page: 21
• CSEC targeted the subjects of the warrants only while they
were believed to be outside Canada;
• CSEC targeted only the types of communications and
information that were authorized in the warrants to be
intercepted or obtained; and
• CSEC complied with any other limitations imposed by law
on CSIS, for example, any conditions in the warrants.
[51] In concluding this discussion, Commissioner Décary noted that he had consulted his
independent counsel with respect to general questions of law relating to this subject and made two
recommendations to the Minister to help ensure that CSEC assistance to CSIS is consistent with the
authorities and limitations of the warrants and to enhance the measures in place to protect the
privacy of Canadians. As described in the Public Report, the recommendations were 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 of Canada
with certain additional evidence about the nature and extent
of the assistance CSEC may provide to CSIS.
[52] Commissioner Décary concluded by observing that notwithstanding these recommendations
“CSEC conducted its activities in accordance with the law and ministerial direction and in a manner
that included measures to protect the privacy of Canadians.” He noted that the Minister had
accepted the recommendations and CSEC had raised them with CSIS. Commissioner Décary also
stated that he had shared certain general points relating to CSIS that arose out of the two
recommendations with the Chair of the Security and Intelligence Review Committee (SIRC).
Page: 22
[53] Upon reading the CSEC Commissioner’s Annual Report, I issued an Order on August 26,
2013 requiring that Counsel for CSEC and CSIS appear before the Court prepared to speak to the
matter. More specifically I directed that:
…counsel should be ready to speak as to whether the application of
the CSE Commissioner’s recommendation “that CSEC advise CSIS
to provide the Federal Court of Canada, when the occasion arises,
with certain additional evidence about the nature and extent of the
assistance CSEC may provide to CSIS” relates to the evidence
presented to the Court in the application to obtain CSIS-30-08 and all
other similar applications since, and, if yes, whether the evidence
would have been material to the decision to authorize the warrant(s)
in CSIS-30-08 or any subsequent applications.
[54] Counsel for CSIS and CSEC appeared before me on September 4, 2013. In preparation for
that hearing, they filed a Book of Documents that included, among other things, the Reasons for
Order and Order in File No. CSIS 10-07, the Reasons for Order in CSIS 30-08, the Top Secret
affidavits of James D. Abbott filed on both applications and the Top Secret version of the portion of
the CSEC Commissioner’s Annual Report relating to the Commissioner’s review of CSEC
assistance to CSIS under part (c) of CSEC’s mandate and sections 12 and 21 of the CSIS Act.
[55] Upon reviewing this information it became apparent to me that the focus of the
Commissioner’s concern was the information that had been before Justice Blanchard in the CSIS
10-07 application and was not presented in the CSIS 30-08 application or in any subsequent
application for a 30-08 warrant. This was Mr. Abbott’s evidence before Justice Blanchard that if
the warrant was issued, CSEC would provide assistance to CSIS by, among other things, tasking its
partners within the “Five Eyes” alliance (the United States, United Kingdom, Australia and New
Zealand) to conduct surveillance on the warrant targets. While it was not addressed in the evidence Page: 23
submitted in support of the CSIS 30-08 application, as noted above this became the default action
taken by CSIS and CSEC upon issuance of a 30-08 warrant.
[56] In his Top Secret Report, Commissioner Décary summarized how the practice evolved
based on the information reviewed:
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[57] Commissioner Décary noted that CSEC's affidavit for Justice Blanchard discussed in detail
that CSEC would use second party assets to assist in intercepting communications under 30-08
warrants, as well as how each second party partner may make use of the information that would be
shared. In contrast, CSEC’s affidavit and testimony in the application before me contained no
information about the involvement of the second parties.
Page: 24
[58] In response to Commissioner Décary’s inquiries about the legal grounds pertaining to
30-08 interceptions and the second parties, a letter from the Director General, Policy and
Communications, CSEC dated April 12, 2011 states the following:
… CSEC is pleased to share with the Commissioner's office copies
(attached) of the six legal opinions provided to CSEC by its
Directorate of Legal Services (DLS) pertaining to the interception of
the communications of Canadians located outside of Canada,
pursuant to a 30-08 Warrant obtained by the Canadian Security
Intelligence Service (CSIS).
…
In relation to CSEC's legal position requesting Second Party
assistance with 30-08 interception, CSEC refers the Commissioner's
office to the October 2007 decision by Justice Blanchard in which he
states that a warrant would not be required to authorize investigative
activities outside Canada. For this reason, CSEC believes that
requests for assistance to foreign nations are not within the scope of
the 30-08 (in those instances where foreign assistance is provided
outside Canada, the domestic law of the foreign nation applies).
[Underlining added]
[59] The underlined passage is an interpretation of Justice Blanchard's October 2007 decision by
CSEC legal counsel. As discussed above, there is nothing in Justice Blanchard’s Reasons that states
that a warrant (or express legislative authority) would not be required to authorize investigative
activities outside Canada. Rather, as he declared, the Court lacked the jurisdiction under the statute
to grant such a warrant. He did not address whether Parliament could authorize such activities other
than by reference to the analysis in Hape which acknowledged that it is open to Parliament to enact
such legislation.
Page: 25
[60] Commissioner Décary questioned whether forwarding [ ] information about
the Canadian subjects of 30-08 warrants to the second parties resulted in a loss of control over the
information which may result in an unauthorized violation of the subjects’ reasonable expectations
of privacy. CSEC officials, in response, relied on the reasoning of the majority of the Supreme
Court of Canada in Schreiber v. Canada [1998] 1 S.C.R. 841. In Schreiber, the majority held that
the requirement under Canadian domestic law to obtain a prior judicial authorization for a search
does not apply to requesting a foreign nation to undertake an activity that could potentially engage
the rights of an individual under the Charter, if the impugned activity was undertaken in Canada by
the government of Canada. By analogy, CSEC argued, they could request that a foreign agency do
within its jurisdiction that which CSIS and CSEC could not do in Canada without a warrant.
[61] In the result, Commissioner Décary accepted that Canadian law, encompassing the privacy
protections contained in the Charter, does not apply to the interception of communications of
Canadians by the second parties because they are acting within their own legal framework. He
referred to this conclusion in these terms:
Overall, the Commissioner accepts Justice Canada's and CSEC's
arguments that the law can allow for second party assistance with
30-08.
[62] The DAGC relies on this conclusion but argues that Commissioner Décary’s analysis as a
whole is erroneous in so far as it appears to link requests for second party assistance to the 30-08
warrant authority. In my view, notwithstanding the unfortunate juxtaposition of the references to
second party assistance and 30-08, Commissioner Décary understood the distinction between the
Page: 26
limited assistance mandate authorized by the warrant and that pursued by the Service and CSEC. In
any event, Commissioner Décary’s analysis, while worthy of respect, does not bind the Court.
[63] Commissioner Décary remained concerned that the second parties may decide to use the
[ ] information associated with a Canadian person should one of the
allies see a national interest in the subject. He noted that each of the second parties, as a sovereign
nation, can derogate from the agreements made with CSEC to respect each other's laws as dictated
by their own national interest.
[64] Accordingly, Commissioner Décary deemed it appropriate to recommend that CSEC
discuss with CSIS an extension of its existing practice with [ ] - a
caveat not to disclose or to take other action on Canadian [ ] information [ ] relating to
the Canadian subjects of 30-08 warrants - to assistance with 30-08 involving CSEC's other second
party partners [ ].
[65] Moreover, for clarity and to remove any ambiguities between CSEC's practices and the
decision in CSIS 30-08 and because of the privacy implications of CSEC sharing with the second
parties Canadian [ ] information [ ] associated with the Canadian subjects of the
30-08 warrants, Commissioner Décary believed that the Federal Court should be made explicitly
aware in each case that CSEC may, at CSIS’s request, share with the second party partners
information about the Canadian target of a 30-08 warrant. This discussion and recommendation
Page: 27
appears links the issuance of a 30-08 warrant for execution in Canada and the requests made to the
second parties.
[66] Having read Commissioner Décary’s Secret Report and heard the preliminary submissions
of counsel for CSIS and CSEC, at the conclusion of the hearing on September 4, 2013, I considered
it necessary to direct that further evidence and argument be presented on two issues arising from the
information before me and a hearing was scheduled for October 23-24, 2013.
[67] To assist me with the examination of these matters I appointed as amicus curiae, Mr.
Gordon Cameron, a lawyer with the Blake, Cassels and Graydon law firm in Ottawa. Mr. Cameron
is one of the Special Advocates with a Top Secret security clearance on the list maintained by the
Attorney General of Canada.
[68] On October 4, 2013, counsel for the DAGC filed an affidavit from Mr. Abbott (now
Director General SIGINT Programs) and written submissions together with two books of
authorities. This material was also provided to Mr. Cameron and he prepared a written outline of the
oral submissions he intended to make at the hearing.
ISSUES:
[69] The issues that I considered to arise from the record were:
Page: 28
1. Whether CSIS met its duty of full and frank disclosure
when it applied for a 30-08 warrant in application CSIS 30-
08 and any subsequent 30-08 warrant application; and
2. The legal authority of CSIS, through CSEC, to seek
assistance from foreign partners to intercept the
telecommunications of Canadians while they are outside of
Canada.
Preliminary question of privilege.
[70] On October 22, 2013, counsel for the DAGC submitted an Amended Affidavit and
Supplemental Affidavit from Mr. Abbott together with the affidavit of a CSIS officer, [
x ] and a chronology of events. The Supplemental Affidavit and [ ]’s Affidavit were
provided in a sealed envelope with the request that the Court consider oral submissions before
opening and reading the documents.
[71] Appended to Mr. Abbott’s Supplemental Affidavit and [ ]’s Affidavit were
documents containing legal opinions provided to CSIS and CSEC by Department of Justice counsel.
At the start of the hearing on October 22, 2013 I heard the oral submissions of counsel for the
DAGC and the responding submissions of Mr. Cameron as to whether the documents were
protected by Solicitor-Client privilege. The position taken by counsel for the DAGC was that the
testimony of the affiants, Messrs Abbott and [ ] would be that in any matter pertaining to the
30-08 warrants CSIS and CSEC officials had acted on the advice of their lawyers. The appended
documents would demonstrate that was the case, I was told. It was submitted, however, that the
specific content of that advice remained privileged. The amicus responded that any privilege Page: 29
attaching to the documents was implicitly waived by the assertion of legal advice as the justification
for the actions of CSIS and CSEC officials.
[72] Counsel for the DAGC invited me to review the material and determine whether privilege
attached to the content of the documents. Accordingly, I recessed to read the documents and
consider the matter. Upon resuming the hearing, I indicated that I was satisfied that the content was
not privileged.
[73] As argued by the amicus, waiver may implicitly result from reliance on privileged
communications in litigation: Robert W. Hubbard et al, The Law of Privilege in Canada, (Toronto:
Thomson Reuters 2013) ch 11 at 64. Thus in R. v. Campbell, [1999] 1 S.C.R. 564 at para 67, it was
found that where the holder of privilege relies upon legal advice to justify the legality of his or her
actions, they have "waived the right to shelter behind solicitor client privilege the contents of the
advice thus exposed and relied upon."
[74] I considered, however, that it was not necessary to share the entire content of one document
attached to Mr. Abbott’s Supplemental Affidavit with the amicus; that being the opinion provided
by the DAGC to the Director of CSIS in October, 2008 which I have discussed above. While that
document provided useful information about the background to the issues, its disclosure to the
amicus in full was not necessary for him to assist me in the determination of the issues. I read what I
considered to be the most relevant portion of the opinion into the record – that related to the
interpretation of s 12 of the CSIS Act. The affidavits and the other appended documents were then
Page: 30
entered as received at the hearing and, apart from the October 2008 opinion, disclosed to Mr.
Cameron. Messrs Abbott and [ ] were then called as witnesses and examined as to their
knowledge of the circumstances giving rise to the applications for CSIS 10-07, CSIS 30-08 and
subsequent warrants.
ARGUMENT AND ANALYSIS:
Did CSIS meet its duty of full and frank disclosure when it applied for a 30-08 warrant in
application CSIS 30-08 and any subsequent30-08 warrant application?
[75] As I have noted above, on the record before me it is not clear that a request for foreign
assistance was made in application CSIS 30-08 although that might be inferred from the timing of
the first request just days after my Top Secret Reasons for Order were released, according to Mr.
Abbott’s evidence. The DAGC agreed, however, that the issue should not be resolved on the basis
that there was no actual non-disclosure in CSIS 30-08. The DAGC acknowledges that there was no
disclosure of the requests for foreign assistance in the applications that followed the rationale
developed in CSIS 30-08. Rather than have the matter addressed in each of those files, the DAGC
agreed that the issue ought to be dealt within a single proceeding.
[76] In his testimony, Mr. Abbott candidly stated that his evidence in CSIS 30-08 was “crafted”
with legal counsel to exclude any reference to the role of the second parties described in his affidavit
before Justice Blanchard.[ Page: 31
x
x]
[77] While discussions had been ongoing between CSIS and CSEC prior to the January 2009
application about the implications of Justice Blanchard’s decision, Mr. Abbott stated that he was not
aware of any actual requests for second party assistance prior to the issuance of the first 30-08
warrant:
Yes, they would have been in the context of 30-08 warrants from
January of 2009 when we receive the first signed warrant from the
Federal Court. This is the first instance where they requested that we
utilize second party assets to target that individual while he was
outside of Canada. (Transcript, October 23, 2013 pp. 42-43)
[78] In his Amended Affidavit dated October 22, 2013, Mr. Abbott disclosed that in relation to
the individuals who were subject to a 30-08 warrant over the preceding 12 months, [
].
Page: 32
[79] The DAGC contends that the Service met its duty of full and frank disclosure when it sought
a 30-08 warrant in application CSIS 30-08 and in all subsequent applications for such a warrant. It is
argued that the Service provided all material information in these applications and the fact that the
Service may request assistance from foreign partners through CSEC to intercept the
telecommunications of Canadians abroad is not an issue properly before this Court on warrant
applications.
[80] The view of the amicus is that there was a serious breach of the duty of candour to the court
in the CSIS 30-08 application and in the subsequent applications that relied on that decision. That
breach has been exacerbated, the amicus submits, by the failure to acknowledge the lack of candour
in this proceeding because it demonstrates that the Service does not understand its duty when it
comes before this Court ex parte.
[81] The information about the requests to foreign agencies was relevant to the application in
CSIS 30-08 and subsequent applications, the amicus submits, because, if correct, the Service has an
alternative means of investigation that paragraph 21 (2) (b) of the Act requires be disclosed to the
judge hearing the warrant application. The application in CSIS 30-08 and the subsequent
applications for 30-08 warrants were calculated, he submits, to have the Court understand the
opposite of what was put before Justice Blanchard. The applications were crafted to give the Court
the impression that the only interceptions of the target’s communications would be [ xxxx
xxxxxxxxxxxxxx xx ] Canada under authority of the warrant. It was solely on this basis that the
Page: 33
Court concluded that it had jurisdiction to issue a warrant. Had the information been disclosed, the
Court may have reached a different conclusion.
[82] The duty of full and frank disclosure in an ex parte proceeding was discussed by the
Supreme Court of Canada in Ruby v Canada (Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3 at
para 27:
In all cases where a party is before the court on an ex parte basis, the
party is under a duty of utmost good faith in the representations it
makes to the court. The evidence presented must be complete and
thorough and no relevant information adverse to the interests of that
party may be withheld; Royal Bank, supra, at paragraph 11. Virtually
all codes of professional conduct impose such an ethical obligation
on lawyers. See for example the Alberta Code of Professional
Conduct, c.10, r.8.
[83] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or
candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re),
2010 FC 1243 at para 117, rev’d on other grounds 2012 FCA 122, appeal on reserve before the
Supreme Court; Charkaoui (Re), 2004 FCA 421 at paras 153, 154; Almrei (Re), 2009 FC 1263, para
498. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service
must present all material facts, favourable or otherwise.
[84] It is submitted on behalf of the Service that:
…the fact that in addition to seeking warrants from the Court the
Service may also seek the assistance, through CSEC, of foreign
partners to intercept under their own legal framework
telecommunications of a Canadian subject of investigation abroad as
Page: 34
part of a lawful investigation in Canada is not a material fact which
could have been relevant to the designated judge in making
determinations required for the purpose of exercising a discretion in
the context of a warrant application pursuant to section 21 of the
CSIS Act.
[85] In advancing this argument, the DAGC relies on definitions of “material facts” set out in
decisions relating to criminal proceedings. In the context of a criminal trial, evidence is material if
what it is offered to prove or disprove is a fact in issue as determined by the allegations contained in
the indictment and the governing procedural and substantive law: R.v. Luciano, 2011 ONCA 89 at
para 207.
[86] It is submitted by the DAGC that in the context of a warrant application, materiality refers to
information that is probative to the legal or factual determination that a judge will be asked to make
when deciding whether to grant or deny the request for a warrant: R. v. Lee, 2007 ABQB 767, at
paras 132-136. The lack of any reference to requests for assistance to foreign partners was not
included in 30-08 warrant applications because it was legally and factually irrelevant to the issuance
of the warrant sought, it is argued. This Court’s jurisdiction, as determined by Mr. Justice
Blanchard, did not extend to governing the relationship between the Service and the foreign
partners, the DAGC submits.
[87] In R.v. G.B., [2003] O.T.C. 785 (Ont. S.C.J.), a case involving an application for a stay of
proceedings on the ground that a police officer had lied in affidavits to obtain wiretap
authorizations, the Court described material facts as follows at paras 11 and 12:
Page: 35
11… Material facts are those which may be relevant to an
authorizing judge in determining whether the criteria for granting a
wiretap authorization have been met. For the disclosure to be frank,
meaning candid, the affiant must turn his or her mind to the facts
which are against what is sought and disclose all of them which are
known, including all facts from which inferences may be drawn.
Consequently, the obligation of full and frank disclosure means that
the affiant must disclose in the affidavit facts known to the affiant
which tend to disprove the existence of either reasonable and
probable grounds or investigative necessity in respect of any target of
the proposed authorization.
12. The obligation of full and frank disclosure also means that the
affiant should never make a misleading statement in the affidavit,
either by means of the language used or by means of strategic
omission of information. [Underlining added]
[88] I agree with counsel for the DAGC that in the context of a warrant application pursuant to
section 21 of the CSIS Act, material facts are those which may be relevant to a designated judge in
determining whether the criteria found in paragraphs 21 (2) (a) and (b) have been met. The criteria
are as follows:
a) the facts relied on to justify the belief, on reasonable grounds, that a
warrant under this section is required to enable the Service to
investigate a threat to the security of Canada or to perform its duties
and functions under section 16;
b) that other investigative procedures have been tried and had failed and
why it appears that they are unlikely to succeed, that the urgency of
the matter is such that it would be impractical to carry out the
investigation using only other investigative procedures or that
without a warrant under this section it is likely that information of
importance with respect to the threat to the security of Canada or the
performance of the duties and functions under section 16 referred to
in paragraph (a) would not be obtained.
Page: 36
[89] However, I do not accept the narrow conception of relevance advocated by the DAGC in
this context as it would exclude information about the broader framework in which applications for
the issuance of CSIS Act warrants are brought. In my view it is tantamount to suggesting that the
Court should be kept in the dark about matters it may have reason to be concerned about if it was
made aware of them. In the circumstances under consideration that would include matters relating to
the prior history of attempts to have the Court authorize the collection of security intelligence
abroad and the potential implications of sharing information about Canadian persons with foreign
security and intelligence agencies.
[90] Based on the documentary record before me and Mr. Abbott’s evidence, I am satisfied that a
decision was made by CSIS officials in consultation with their legal advisors to strategically omit
information in applications for 30-08 warrants about their intention to seek the assistance of the
foreign partners. As a result, the Court was led to believe that all of the interception activity would
take place in or under the control of Canada.
[91] Mr. Abbott certainly understood the importance of providing the Court with information
about the process “so that the Court would have a good understanding of how these activities would
be undertaken.” On cross-examination he observed that:
… if we are seeking this assistance, the Court should be aware of
what the second party agency would see and what they may or may
not choose to do with that information. (Transcript, October 23, 2013
p. 59)
Page: 37
[92] It was a material omission for the Service not to explain its new, different and never
articulated to the Court theory that, contrary to its position before Justice Blanchard, it did not
require warrant authority to task the assets of the second party allied nations to conduct foreign
interceptions. That leads me to the second issue.
Does CSIS have the legal authority to seek assistance, through CSEC, from foreign partners
to intercept the telecommunications of Canadians while they are outside of Canada?
[93] In the CSIS 10-07 application before Justice Blanchard, the Service’s main contention was
that the warrant sought was required to ensure that Canadian agents engaged in [ xx
x ] abroad did so in conformity with Canadian law since the impugned investigative
activities may, absent the warrant, breach the Charter and contravene the Criminal Code. At that
time they argued that a warrant could be issued under s 21 of the Act. This approach would respect
the rule of law and would be consistent with the regime of judicial control mandated by Part II of
the Act, they submitted.
[94] The Service contends now that they accepted the outcome of Justice Blanchard’s decision
and, in particular, his finding that the Court had no authority to issue such a warrant. In light of that,
they say, they turned to the general authority to investigate threats to the security of Canada set out
in s 12 of the Act. They reached the conclusion, through the advice of their legal counsel, that a
warrant was not required for CSIS to engage the assistance of the second parties through CSEC to
intercept the private communications of Canadians outside the country. CSEC, they argue, does not Page: 38
breach the prohibition against targeting Canadians in the National Defence Act when it provides
assistance to CSIS operating under the general investigative authority granted the Service by s 12.
[95] On the record before me it appears that no attempt was made to rely on s 12 as the lawful
authority required by CSEC to target Canadians in the exercise of its Part C assistance mandate until
the spring of 2009 after the Court had issued the first 30-08 warrant.
[96] In the view of the amicus, the Attorney General’s interpretation of the scope of s 12 of the
Act allows the Service "to contract out interceptions of Canadians’ communications or accessing
Canadians’ information without any warrant or supervision by this Court". Mr. Cameron
characterized this as "effectively an end run around s 21 and following of the Act.” He submitted,
however, that I did not have to decide the issues of the scope of s 12 of the Act, or this Court's
jurisdiction to issue a warrant for CSIS through CSEC to seek lawful assistance from second party
countries, in addressing the breach of candour.
[97] In my view, it is necessary for the Court to express an opinion on the matter in light of the
public association, through the CSEC Commissioner’s Report, between the issuance of the 30-08
warrants by the Court and the requests for second party assistance. As I will discuss below, that
public association has been further highlighted by the recent publication of the Annual Report of the
Security Intelligence Review Committee (“SIRC”). The Court must be concerned that the authority
granted it by Parliament to authorize intrusive investigative activities by the Service may be
Page: 39
perceived in the public arena as approving the surveillance and interception of the communications
of Canadian persons by foreign agencies.
[98] S 12 of the CSIS Act reads as follows:
The Service shall collect, by investigation or otherwise, to the extent
that it is strictly necessary, and analyze and retain information and
intelligence respecting activities that may on reasonable grounds be
suspected of constituting threats to the security of Canada and, in
relation thereto, shall report to and advise the Government of
Canada.
--------
Le Service recueille, au moyen d’enquêtes ou autrement, dans la
mesure strictement nécessaire, et analyse et conserve les
informations et renseignements sur les activités dont il existe des
motifs raisonnables de soupçonner qu’elles constituent des menaces
envers la sécurité du Canada; il en fait rapport au gouvernement du
Canada et le conseille à cet égard.
[99] Section 12 gives the Service the authority to conduct investigations, collect, analyse and
retain information and report to the Government of Canada respecting any activities which may
reasonably be suspected of constituting threats to the security of Canada. The scope of the power
granted by s 12 must be read in conjunction with the scheme of the Act, the guarantees and
protections set out in the Charter and any limitations imposed under domestic law such as the
Criminal Code.
[100] Section 12 does not give the Service an exemption from the operation of these laws of
general application. Where required, the Service may seek the authority of a warrant under s 21 to
engage in investigative methods that would otherwise constitute a crime or a breach of the Charter
Page: 40
guarantee against unreasonable search and seizure. As discussed above, s 26 provides that Part VI of
the Criminal Code does not apply to any interception of a communication under the authority of a
warrant issued under s 21 or in relation to any communication so intercepted. Absent such
protection, Service personnel are exposed to liability under Part VI of the Code in relation to the
interception of any communication that has a Canadian end.
[101] The DAGC points to Commissioner Décary’s conclusion that the second parties can
intercept communications of Canadian subjects of a 30-08 warrant because they are acting within
their own legal frameworks. Canadian law cannot either authorize or prohibit the second parties
from carrying out any investigation they choose to initiate with respect to Canadian subjects outside
of Canada. That does not exempt Canadian officials from potential liability for requesting the
interception and receiving the intercepted communication. I recognize that it is unlikely that this
would actually result in charges against CSIS or CSEC personnel. However, the potential for the
issue to arise with respect to the admissibility of any intercepted communication or derivative
evidence in a subsequent prosecution against the targets or as the basis of an action for a remedy
under the Charter is, I believe, realistic. As noted above, the Supreme Court did not close the door
in Hape to a remedy under s 24 (1) of the Charter where the result of the actions of Canadian
officials abroad has an impact on the exercise of Charter rights in Canada.
[102] Section 12 does not expressly authorize the Service to invoke the interception capabilities of
foreign agencies. While such interception may be lawful where it is initiated under the domestic
legislation of the requested state, such as the Foreign Intelligence Surveillance Act of 1978, Pub.L.
Page: 41
95-511, 92 Stat. 1783, 50 U.S.C. ch.36 (FISA), it may be unlawful in the jurisdiction where the
interception actually occurs. FISA, as amended, permits warantless searches for foreign intelligence
collection as authorized by the President and the surveillance of foreign subjects under court order.
FISA thus authorizes the violation of foreign sovereignty in the manner which the Supreme Court of
Canada in Hape recognized as contrary to the principles of customary international law but
permissible under domestic law – express legislative authority.
[103] There is nothing in the CSIS Act or in its legislative history, to my knowledge, that suggests
that in enacting s 12 Parliament granted express legislative authority to CSIS to violate international
law and the sovereignty of foreign nations either directly or indirectly through the agency of CSEC
and the second parties.
[104] The DAGC submits that the decision of the Supreme Court of Canada in Schreiber, above,
is a complete answer to the question of whether a request can be made to a foreign agency to
provide information about a Canadian person. But in Schreiber, the foreign agency was asked to
provide information in conformity with its own laws and in the exercise of its own territorial
sovereignty. There was no suggestion in Schreiber that in acting upon such a request, the foreign
jurisdiction would violate the sovereignty of any other nation, as there is, implicitly, here.
[105] As discussed by the Supreme Court in Hape at paragraphs 51, 52 and 101 and in Canada
(Justice) v Khadr, 2008 SCC 28 at paragraph 18, the principle of comity between nations that
implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad
Page: 42
ends where clear violations of international law and human rights begin. In tasking the other
members of the” Five Eyes” to intercept the communications of the Canadian targets, CSIS and
CSEC officials knew, based on the legal advice that they had been given about the implications of
Hape and Justice Blanchard’s decision, that this would involve the breach of international law by
the requested second parties.
[106] CSEC is expressly prohibited under the legislation adopted in 2001 by Parliament from
targeting Canadian persons unless it is done under its mandate to assist federal law enforcement and
security agencies in the performance of their lawful duties and subject to any limitation imposed by
law on those agencies. In this context, CSEC has no greater authority than that conferred upon
CSIS.
[107] The record before me indicates that CSEC consistently interpreted Parliament’s references
to “lawful duties” and “limitation imposed by law” in the 2001 amendments to the National
Defence Act as requiring a warrant. The legal advice given to CSEC in May 2009 stipulated that
CSIS would make a request for second party assistance only where a warrant was in place. To Mr.
Abbott’s knowledge, the Service had never made a request for second party collection unless they
have had a parallel authority in the form of a warrant. To his recollection, there had never been a
discussion between the two agencies about the use of s 12 as the sole ground of lawful authority for
CSEC to assist CSIS in its investigation by tasking the second party [ ].
… If they were to come to us and it wasn't a parallel 30-08 warrant,
we would then have a very -- I will use the words serious discussion
with our legal counsel and with the Service as to if this was the first
time we were going to do this, let's make sure everybody is clear and Page: 43
understands, as I said earlier, based on the legal advice that we
received to date, legally my understanding of what we had been told
is we could do that.
Transcript, October 23, 2013 pp 80-81.
[108] [ ] , the CSIS witness who was responsible for the warrant process in 2009, also
acknowledged that CSIS looked primarily to the judicial warrants issued by this Court for the
authority to ask CSEC to request the assistance of the second parties to intercept and collect the
communications of Canadians. Neither agency appears to have been prepared to proceed solely on
the strength of the DAGC’s October 2008 opinion. The 30-08 warrants gave the officials of both
agencies comfort that they were acting within the scope of their lawful authority.
[109] The DAGC acknowledges this and submits that the power under s 12 is broader than what
CSIS and CSEC have previously chosen to exercise. It is appropriate, it is argued, that the two
agencies decided to proceed only where a 30-08 warrant has been issued. The process of
establishing judicial authority for the 30-08 warrant shows that they have gone before a court,
established on reasonable grounds that the activities of the particular individual or individuals are
believed to be a threat to the security of Canada and that they are going to be traveling outside
Canada's borders. This shows respect for the rule of law, the DAGC contends.
[110] While that may be the case, it is clear that the exercise of the Court’s warrant issuing
authority has been used as protective cover for activities that it has not authorized.
Page: 44
[111] The DAGC’s interpretation of the scope of s 12 of the CSIS Act provided to the Service in
October 2008 is, in my view, highly questionable. There is nothing in any of the material that I have
read or in the oral submissions of counsel for the DAGC that persuades me that it was the intent of
Parliament to give the Service authority to engage the collection resources of the second party allies
to intercept the private communications of Canadians under the general power to investigate in s 12.
Moreover, I have reviewed the legislative history of the amendments to the National Defence Act in
2001 and found nothing that would suggest that Parliament had contemplated that CSEC could
extend such assistance to CSIS solely under the authority of s 12.
[112] I am satisfied that the Service and CSEC chose to act upon the new broad and untested
interpretation of the scope of s 12 only where there was a 30-08 warrant in place. My view of the
matter has been reinforced by the publication on October 31, 2013 of the 2012 – 2013 Annual
Report of the Security Intelligence Review Committee. A section of the report refers to a review of
CSIS’s "Review of a new section 21 warrant power". A copy of the classified version of that study
was provided to the Court by counsel to the DAGC by letter dated November 6, 2013 as it had been
referenced during the hearing on October 23 and 24, 2013.
[113] SIRC reported on what it described in the public report as "a new warrant power under
section 21 of the CSIS Act which was initially authorized by the Federal Court in 2009". The
discussion of this review in the public report includes the following statements:
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During the review period, 35 warrants (+7 supplemental warrants)
that included the new power were issued… by relying on partner
agencies-both domestic and foreign-for collection some efficiency
will ultimately be sacrificed. There has been substantial progress
since the first warrant was issued; however, CSIS is still in the
learning phase and it will need to manage expectations against the
realities, meaning limitations, of reporting from this collection.
In order to maximize collection under the new warrant power, CSIS,
in almost every case, leverages the assets of the Five Eyes
community (Canada, plus the United States, the United Kingdom,
Australia and New Zealand). SIRC noted that even with the
assistance of allies, the collection or intelligence yield under this
power has provided different gains and challenges than the Service
initially expected.
[114] The classified version contains additional statements that I consider relevant to this matter:
[
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]
[115] These passages suggest that SIRC is operating under the mistaken impression that the
30-08 warrants issued by this Court authorize the collection of intercepts respecting Canadian
persons by foreign agencies. In doing so, the Court is associated with the concern identified by
SIRC that the ability of a Five Eyes partner to act independently on CSIS originated information
carries the risk of the detention of or other harm to a Canadian person based on that information.
Both Commissioner Décary and SIRC have recognized in their reports the hazards related to the
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lack of control over intelligence information once it has been shared. Given the unfortunate history
of information sharing with foreign agencies over the past decade and the reviews conducted by
several Royal Commissions there can be no question that the Canadian agencies are aware of those
hazards. It appears to me that they are using the 30-08 warrants as authorization to assume those
risks.
CONCLUSION:
[116] The Service, acting on the advice of the Department of Justice, sought authorization from
the Court to engage in security intelligence activities outside of Canada for which they require a
warrant if conducted in Canada. The Service and their counsel were told by the Court that it lacked
the jurisdiction to issue a warrant for such purposes under s 21 of the CSIS Act. They then returned
to the Court with a new rationale for the issuance of a warrant based on the clearly stated grounds
that the proposed interceptions [ ] would be carried out from within Canada and
controlled by Canadian government personnel. Having obtained authorization under warrant to
conduct such interceptions [ ] from and under the control of Canada, they engaged the
assistance of second party foreign allies [ ] and failed to
inform the Court that this was being done on any of the subsequent applications.
[117] In my view, as soon as it was determined that the Service would rely on the general power
to investigate set out in s 12 of the Act to request second party assistance with the interception of the
communications of Canadian subjects abroad, that determination constituted facts known to the
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affiant which could lead the Court to find that there was no investigative necessity to issue a 30-08
warrant. The failure to disclose that information was the result of a deliberate decision to keep the
Court in the dark about the scope and extent of the foreign collection efforts that would flow from
the Court’s issuance of a warrant.
[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the
Court. It has led to misstatements in the public record about the scope of the authority granted the
Service by the issuance of the 30-08 warrants.
[119] The conclusion reached in application CSIS 30-08 that the Court has the jurisdiction to issue
a warrant under s 21 for the domestic interception of foreign telecommunications under certain
defined conditions remains valid in my view. That jurisdiction does not extend to the authority to
empower the Service to request that foreign agencies intercept the communications of Canadian
persons travelling abroad either directly or through the agency of CSEC under its assistance
mandate.
[120] Parliament has given the Minister of National Defence the power to approve foreign
intelligence collection activities in respect of certain classes of activities. The legislative authority
for CSEC to carry out its functions under the National Defence Act does not extend to the specific
targeting of Canadian persons. CSEC may only do so in the exercise of its assistance mandate when
the assisted federal law enforcement or security agency is acting under lawful authority. In my view,
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in enacting s 12, Parliament did not contemplate that it would be used by CSIS and CSEC to engage
the interception capabilities of foreign agencies against Canadian persons.
[121] It is open to Parliament, as discussed above, to amend the statute to enable the Court to
authorize foreign interception. Authorization by an independent judicial officer on a particularized
warrant application would ensure that any rights that the individual subjects may have would be
respected and would also extend protection to the officials of the concerned agencies from potential
liability so long as they were operating within the scope of the authority granted. Absent
amendment to the statute, however, the Court does not have that jurisdiction.
[122] The interpretation of s 12 asserted by the Service and the DAGC is not, I believe, consistent
with the scheme of the Act as a whole nor with the position of the Supreme Court of Canada in
Hape that the violation of international law can only be justified if expressly authorized by
Parliament. CSIS and CSEC officials are relying on that interpretation at their peril and, as
cautioned by the CSEC Commissioner and SIRC, incurring the risk that targets may be detained or
otherwise harmed as a result of the use of the intercepted communications by the foreign agencies.
Section 12 does not authorize the Service and CSEC to incur that risk or shield them from liability,
in my view.
[123] I express no opinion on the status of any information already collected by the Service as a
result of its interpretation of s 12 of the Act and the requests for assistance to the second party
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agencies that it has made since 2009 through CSEC. That question may yet need to be addressed by
this or another Court.
[124] Going forward, where an application is made to the Court for a 30-08 warrant, the Court
must be informed whether there has been any request for foreign assistance and, if so, what the
results were in respect of the subjects of the application. In such circumstances, the Court should
consider whether the investigative necessity for the issuance of the warrant has been established. I
note in that regard, that the classified SIRC report questions the effectiveness of the 30-08
collection activities. Such information should be disclosed to the Court on each application for the
Court to determine whether it is necessary to issue the warrant.
[125] It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize
the interception of the communications of a Canadian person by any foreign service on behalf of the
Service either directly or through the assistance of CSEC. To that end, an appropriately worded
limitation must be added to the text of the warrant.
[126] There must be no further suggestion in any reference to the use of second party assets by
CSIS and CSEC, or their legal advisors, that it is being done under the authority of a s 21 warrant
issued by this Court.
[127] A copy of these Further Reasons for Order will be provided to the Chair of SIRC and to the
CSEC Commissioner. The Service will be given two weeks to comment on the public release of Page: 51
these Further Reasons for Order. A public summary will be issued with prior notice to the Service
and to the Attorney General.
“Richard G. Mosley”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: CSIS-30-08
STYLE OF CAUSE: IN THE MATTER OF an application by
[ ] for a warrant pursuant to Sections 12 and 21
of the Canadian Security Intelligence Service Act, R.S.C.
1985, c. C-23;
AND IN THE MATTER OF [ ]
PLACE OF CLOSED HEARING: OTTAWA, ONTARIO
DATES OF CLOSED HEARING: SEPTEMBER 4, 2013,
AND OCTOBER 23-24, 2013
REDACTED AMENDED
FURTHER REASONS
FOR ORDER: MOSLEY, J.
DATED: NOVEMBER 22, 2013
APPEARANCES:
Mr. Robert Frater
Ms. Isabelle Chartier
Mr. Jacques-Michel Cyr
Mr. Rémi Chapadeau
FOR THE APPLICANT
DEPUTY ATTORNEY GENERAL OF CANADA
Mr. Gordon Cameron
AMICUS CURIAE
SOLICITORS OF RECORD:
William F. Pentney
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE APPLICANT
Blakes Law Firm
Ottawa, Ontario
AMICUS CURIAE
