SUPREME COURT OF CANADA Citation: Canada (Attorney General) v. Bedford, 2013 SCC 72 Date: 20131220 Docket: 34788

SUPREME COURT OF CANADA




Citation: Canada (Attorney General) v. Bedford, 2013 SCC 72

Date: 20131220

Docket: 34788




Between:

Attorney General of Canada

Appellant/Respondent on cross-appeal

and

Terri Jean Bedford, Amy Lebovitch and Valerie Scott

Respondents/Appellants on cross-appeal



And Between:

Attorney General of Ontario

Appellant/Respondent on cross-appeal

and

Terri Jean Bedford, Amy Lebovitch and Valerie Scott

Respondents/Appellants on cross-appeal



- and -



Attorney General of Quebec, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence Society, PACE Society, Secretariat of the Joint United Nations Programme on HIV/AIDS, British Columbia Civil Liberties Association, Evangelical Fellowship of Canada, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS, HIV & AIDS Legal Clinic Ontario, Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society, Christian Legal Fellowship, Catholic Civil Rights League, REAL Women of Canada, David Asper Centre for Constitutional Rights, Simone de Beauvoir Institute, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and Aboriginal Legal Services of Toronto Inc.

Interveners







Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.




Reasons for Judgment:

(paras. 1 to 169)

McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)




Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.














canada (attorney general) v. bedford

Attorney General of Canada Appellant/Respondent on cross‑appeal

v.

Terri Jean Bedford,

Amy Lebovitch and

Valerie Scott Respondents/Appellants on cross‑appeal

‑ and ‑

Attorney General of Ontario Appellant/Respondent on cross‑appeal

v.

Terri Jean Bedford,

Amy Lebovitch and

Valerie Scott Respondents/Appellants on cross‑appeal

and

Attorney General of Quebec,

Pivot Legal Society,

Downtown Eastside Sex Workers United Against Violence Society,

PACE Society,

Secretariat of the Joint United Nations Programme on HIV/AIDS,

British Columbia Civil Liberties Association,

Evangelical Fellowship of Canada,

Canadian HIV/AIDS Legal Network,

British Columbia Centre for Excellence in HIV/AIDS,

HIV & AIDS Legal Clinic Ontario,

Canadian Association of Sexual Assault Centres,

Native Women’s Association of Canada,

Canadian Association of Elizabeth Fry Societies,

Action ontarienne contre la violence faite aux femmes,

Concertation des luttes contre l’exploitation sexuelle,

Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society,

Christian Legal Fellowship, Catholic Civil Rights League,

REAL Women of Canada,

David Asper Centre for Constitutional Rights,

Simone de Beauvoir Institute,

AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and

Aboriginal Legal Services of Toronto Inc. Interveners

Indexed as: Canada (Attorney General) v. Bedford

2013 SCC 72

File No.: 34788.

2013: June 13; 2013: December 20.

Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

on appeal from the court of appeal for ontario

Constitutional Law — Charter of Rights — Right to security of person — Freedom of expression — Criminal law — Prostitution — Common bawdy‑house — Living on avails of prostitution — Communicating in public for purposes of prostitution — Prostitutes challenging constitutionality of prohibitions on bawdy‑houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Prostitutes alleging impugned provisions violate s. 7 security of the person rights by preventing implementation of safety measures that could protect them from violent clients — Prostitutes also alleging prohibition on communicating in public for purposes of prostitution infringes freedom of expression guarantee — Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 197(1), 210, 212(1)(j), 213(1)(c).

Courts — Decisions — Stare decisis — Standard of review — Prostitutes challenging constitutionality of prohibitions on bawdy‑houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Under what circumstances application judge could revisit conclusions of Supreme Court of Canada in Prostitution Reference which upheld bawdy‑house and communicating prohibitions — Degree of deference owed to application judge’s findings on social and legislative facts.

B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C‑46, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter: s. 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy‑house” as it applies to s. 210, however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1)(c) did not violate either s. 2(b) or s. 7. The Attorneys General appeal from the declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross‑appeal on the constitutionality of s. 213(1)(c) and in respect of the s. 210 remedy.

Held: The appeals should be dismissed and the cross‑appeal allowed. Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter. The declaration of invalidity should be suspended for one year.

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Referencethat s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. However, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7, as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone. Furthermore, the principles of fundamental justice considered in the Prostitution Referencedealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years. The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference and was binding on her.

The application judge’s findings on social and legislative facts are entitled to deference. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.

The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7. The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposingdangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice: principles that attempt to capture basic values underpinning our constitutional order. This case concerns the basic values against arbitrariness (where there is no connectionbetween the effect and the object of the law), overbreadth (where the law goes too far and interferes with someconduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective). These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the analysis. In particular, they attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non‑exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships. The impugned laws are not saved by s. 1.

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime. Considering all the interests at stake, the declaration of invalidity should be suspended for one year.

Cases Cited

Referred to: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489;Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; R. v. Pierce (1982), 37 O.R. (2d) 721; R. v. Worthington(1972), 10 C.C.C. (2d) 311; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Grilo (1991), 2 O.R. (3d) 514; R. v. Barrow (2001), 54 O.R. (3d) 417; R. v. Head (1987), 59 C.R. (3d) 80; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3;Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; R. v. S.S.C., 2008 BCCA 262, 257 B.C.A.C. 57; R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; Rockert v. The Queen, [1978] 2 S.C.R. 704; R. v. Zundel, [1992] 2 S.C.R. 731; Shaw v. Director of Public Prosecutions, [1962] A.C. 220; Schachter v. Canada, [1992] 2 S.C.R. 679.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 197(1) “common bawdy‑house”, 210, 212(1)(j), 213(1)(c).

Criminal Code, S.C. 1953‑54, c. 51, Part V, s. 182.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3)(g.1).

Authors Cited

Canada. House of Commons. Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights. The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws. Ottawa: Communication Canada, 2006.

Coke, Edward. The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes. London: Clarke, 1817 (first published 1644).

Hogg, Peter W. “The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195.

Ontario. Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations, by Stephen T. Goudge. Toronto: Ministry of the Attorney General, 2008.

Rubin, Gerald. “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6McGill L.J. 168.

Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law, 2012.

APPEALS and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.), 2012 ONCA 186, 109 O.R. (3d) 1, 290 O.A.C. 236, 346 D.L.R. (4th) 385, 282 C.C.C. (3d) 1, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, [2012] O.J. No. 1296 (QL), 2012 CarswellOnt 3557, affirming in part a decision of Himel J., 2010 ONSC 4264, 102 O.R. (3d) 321, 327 D.L.R. (4th) 52, 262 C.C.C. (3d) 129, 217 C.R.R. (2d) 1, 80 C.R. (6th) 256, [2010] O.J. No. 4057 (QL), 2010 CarswellOnt 7249. Appeals dismissed and cross‑appeal allowed.

Michael H. Morris, Nancy Dennison and Gail Sinclair, for the appellant/respondent on cross‑appeal the Attorney General of Canada.

Jamie C. Klukach, Christine Bartlett‑Hughes and Megan Stephens, for the appellant/respondent on cross‑appeal the Attorney General of Ontario.

Alan N. Young, Marlys A. Edwardh and Daniel Sheppard, for the respondents/appellants on cross‑appeal.

Sylvain Leboeuf and Julie Dassylva, for the intervener the Attorney General of Quebec.

Katrina E. Pacey, Joseph J. Arvay, Q.C., Elin R. S. Sigurdson, Lisa C. Glowacki andM. Kathleen Kinch, for the interveners the Pivot Legal Society, the Downtown Eastside Sex Workers United Against Violence Society and the PACE Society.

Written submissions only by Michael A. Feder and Tammy Shoranick, for the intervener the Secretariat of the Joint United Nations Programme on HIV/AIDS.

Brent B. Olthuis, Megan Vis‑Dunbar and Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.

Georgialee A. Lang and Donald Hutchinson, for the intervener the Evangelical Fellowship of Canada.

Jonathan A. Shime, Megan Schwartzentruber and Renée Lang, for the interveners the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS and the HIV & AIDS Legal Clinic Ontario.

Janine Benedet and Fay Faraday, for the interveners the Canadian Association of Sexual Assault Centres, the Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel and the Vancouver Rape Relief Society.

Robert W. Staley, Ranjan K. Agarwal and Amanda C. McLachlan, for the interveners the Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada.

Joseph J. Arvay, Q.C., and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.

Walid Hijazi, for the intervener the Simone de Beauvoir Institute.

Gwendoline Allison, for the intervener the AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution.

Christa Big Canoe and Emily R. Hill, for the intervener Aboriginal Legal Services of Toronto Inc.




TABLE OF CONTENTS









I. The Case

II. Legislation

III. Prior Decisions

A. Ontario Superior Court of Justice (Himel J.)

B. Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.)

IV. Discussion

A. Preliminary Issues

(1) Revisiting the Prostitution Reference

(2) Deference to the Application Judge’s Findings on Social and Legislative Facts

B. Section 7 Analysis

(1) Is Security of the Person Engaged?

(a) Sections 197 and 210: Keeping a Common Bawdy-House

(b) Section 212(1)(j): Living on the Avails of Prostitution

(c) Section 213(1)(c): Communicating in a Public Place

(2) A Closer Look at Causation

(a) The Nature of the Required Causal Connection

(b) Is the Causal Connection Negated by Choice or the Role of Third Parties?

(3) Principles of Fundamental Justice

(a) The Applicable Norms

(b) The Relationship Between Section 7 and Section 1

(4) Do the Impugned Laws Respect the Principles of Fundamental Justice?

(a) Section 210: The Bawdy-House Prohibition

(i) The Object of the Provision

(ii) Compliance With the Principles of Fundamental Justice

(b) Section 212(1)(j): Living on the Avails of Prostitution

(i) The Object of the Provision

(ii) Compliance With the Principles of Fundamental Justice

(c) Section 213(1)(c): Communicating in Public for the Purposes of Prostitution

(i) The Object of the Provision

(ii) Compliance With the Principles of Fundamental Justice

C. Do the Prohibitions Against Communicating in Public Violate Section 2(b) of the Charter?

D. Are the Infringements Justified Under Section 1 of the Charter?

V. Result and Remedy








The judgment of the Court was delivered by



The Chief Justice —

[1] It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution. It is argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, and are therefore unconstitutional.

[2] These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not. I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.

I. The Case

[3] Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional.

[4] The three impugned provisions criminalize various activities related to prostitution. They are primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes. Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house. Section 212(1)(j) makes it an offence to live on the avails of another’s prostitution. Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.

[5] However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” —where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.

[6] The applicants allege that all three provisions infringe s. 7 of the Canadian Charter of Rights and Freedoms by preventing prostitutes from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violent clients. The applicants also allege that s. 213(1)(c) infringes s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

[7] The backgrounds of the three applicants as revealed in their evidence were reviewed in the application judge’s decision (2010 ONSC 4264, 102 O.R. (3d) 321).

[8] Terri Jean Bedford was born in Collingwood, Ontario, in 1959, and as of 2010 had 14 years of experience working as a prostitute in various Canadian cities. She worked as a street prostitute, a massage parlour attendant, an escort, an owner and manager of an escort agency, and a dominatrix. Ms. Bedford had a difficult childhood and adolescence during which she was subjected to various types of abuse. She also encountered brutal violence throughout her career — largely, she stated, while working on the street. In her experience, indoor prostitution is safer than prostitution on the street, although she conceded that safety of an indoor location can vary. Ms. Bedford has been convicted of both keeping and being an inmate of a common bawdy-house, for which she has paid a number of fines and served 15 months in jail.

[9] When she ran an escort service in the 1980s, Ms. Bedford instituted various safety measures, including: ensuring someone else was on location during in-calls, except during appointments with well-known clients; ensuring that women were taken to and from out-call appointments by a boyfriend, husband, or professional driver; if an appointment was at a hotel, calling the hotel to verify the client’s name and hotel room number; if an appointment was at a client’s home, calling the client’s phone to ensure it was the correct number; turning down appointments from clients who sounded intoxicated; and verifying that credit card numbers matched the names of clients. She claimed she was not aware of any incidents of violence by the clientele towards her employees during that time. At some point in the 1990s, Ms. Bedford ran the Bondage Bungalow, where she offered dominatrix services. She also instituted various safety measures at this establishment, and claimed she only experienced one incident of “real violence” (application decision, at para.30).

[10] Ms. Bedford is not currently working in prostitution but asserted that she would like to return to working as a dominatrix in a secure, indoor location; however, she is concerned that in doing so, she would be exposed to criminal liability. Furthermore, she does not want the people assisting her to be subject to criminal liability due to the living on the avails of prostitution provision.

[11] Amy Lebovitch was born in Montréal in 1979. She comes from a stable background and attended both CEGEP and university. She currently works as a prostitute and has done so since approximately 1997 in various cities in Canada. She worked first as a street prostitute, then as an escort, and later in a fetish house. Ms. Lebovitch considers herself lucky that she was never subjected to violence during her years working on the streets. She moved off the streets to work at the escort agency after seeing other women’s injuries and hearing stories of the violence suffered by other street prostitutes. Ms. Lebovitch maintains that she felt safer in an indoor location; she attributed remaining safety issues mainly to poor management. Ms. Lebovitch experienced one notable instance of violence, which she did not report to the police out of fear of police scrutiny and the possibility of criminal charges.

[12] Presently, Ms. Lebovitch primarily works independently out of her home, where she takes various safety precautions, including: making sure client telephone calls are from unblocked numbers; not taking calls from clients who sound drunk, high, or in another manner undesirable; asking for expectations upfront; taking clients’ full names and verifying them using directory assistance; getting referrals from regular clients; and calling a third party — her “safe call” — when the client arrives and before he leaves. Ms. Lebovitch fears being charged and convicted under the bawdy-house provisions and the consequent possibility of forfeiture of her home. She says that the fear of criminal charges has caused her to work on the street on occasion. She is also concerned that her partner will be charged with living on the avails of prostitution. She has never been charged with a criminal offence of any kind. Ms. Lebovitch volunteers as the spokesperson for Sex Professionals of Canada (“SPOC”), and she also records information from women calling to report “bad dates” — incidents that ended in violence or theft. Ms. Lebovitch stated that she enjoys her job and does not plan to leave it in the foreseeable future.

[13] Valerie Scott was born in Moncton, New Brunswick, in 1958. She is currently the executive director of SPOC, and she no longer works as a prostitute. In the past, she worked indoors, from her home or in hotel rooms; she also worked as a prostitute on the street, in massage parlours, and she ran a small escort business. She has never been charged with a criminal offence of any kind. When Ms. Scott worked from home, she would screen new clients by meeting them in public locations. She never experienced significant harm working from home. Around 1984, as awareness about HIV/AIDS increased, Ms. Scott was compelled to work as a street prostitute, since indoor clients felt entitled not to wear condoms. On the street, she was subjected to threats of violence, as well as verbal and physical abuse. Ms. Scott described some precautions street prostitutes took prior to the enactment of the communicating law, including working in pairs or threes and having another prostitute visibly write down the client’s licence plate number, so he would know he was traceable if something was to go wrong.

[14] Ms. Scott worked as an activist and, among other things, advocated against Bill C-49 (which included the current communicating provision). Ms. Scott stated that following the enactment of the communicating law, the Canadian Organization for the Rights of Prostitutes (“CORP”) began receiving calls from women working in prostitution about the increased enforcement of the laws and the prevalence of bad dates. In response, Ms. Scott was involved in setting up a drop-in and phone centre for prostitutes in Toronto; within the first year, Ms. Scott spoke to approximately 250 prostitutes whose main concerns were client violence and legal matters arising from arrest. In 2000, Ms. Scott formed SPOC to revitalize and continue the work previously done by CORP. As the executive director of this organization, she testified before a Parliamentary Subcommittee on Solicitation Laws in 2005. Over the years, Ms. Scott estimates that she has spoken with approximately 1,500 women working in prostitution. If this challenge is successful, Ms. Scott would like to operate an indoor prostitution business. While she recognizes that clients may be dangerous in both outdoor and indoor locations, she would institute safety precautions such as checking identification of clients, making sure other people are close by during appointments to intervene if needed, and hiring a bodyguard.

[15] The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order that the provisions restricting prostitution are unconstitutional. The evidentiary record consists of over 25,000 pages of evidence in 88 volumes. The affidavit evidence was accompanied by a large volume of studies, reports, newspaper articles, legislation, Hansard and many other documents. Some of the affiants were cross-examined.

II. Legislation

[16] The relevant legislation is as follows:

Canadian Charter of Rights and Freedoms



1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.



2. Everyone has the following fundamental freedoms:



. . .



(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;



7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.



Criminal Code



197. (1) In this Part,



. . .



“common bawdy-house” means a place that is



(a) kept or occupied, or



(b) resorted to by one or more persons



for the purpose of prostitution or the practice of acts of indecency;



210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.



(2) Every one who



(a) is an inmate of a common bawdy-house,



(b) is found, without lawful excuse, in a common bawdy-house, or



(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,



is guilty of an offence punishable on summary conviction.



(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.



(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.



212. (1) Every one who



. . .



(j) lives wholly or in part on the avails of prostitution of another person,



is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.



213. (1) Every person who in a public place or in any place open to public view

. . .



(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person



for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

III. Prior Decisions

Ontario Superior Court of Justice (Himel J.)

[17] The application judge, Himel J., concluded that the applicants had private interest standing to challenge the provisions. She held that the decision of this Court upholding the bawdy-house and communicating law in theReference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), did not prevent her from reviewing their constitutionality because: (1) s. 7 jurisprudence has evolved considerably since 1990; in particular, the doctrines of arbitrariness, overbreadth and gross disproportionality had not yet been fully articulated and therefore were not argued or considered in the Prostitution Reference; (2) the evidentiary record before her was much richer, based on research not available in 1990; (3) the social, political and economic assumptions underlying the Prostitution Reference may no longer be valid; and (4) the type of expression at issue differed from that considered in the Prostitution Reference.

[18] In considering the legislative scheme as it exists and the evidence before her, Himel J. found that each of the impugned laws deprived the applicants and others like them of their liberty (by reason of potential imprisonment) and their security of the person (because they increased the risk of injury). The increased risk of violence created by the laws constituted a “sufficient” cause, engaging the security of the person protected by s. 7. She stated:

With respect to s. 210, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to s. 212(1)(j), prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, s. 213(1)(c) prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial, stage of a potential transaction, thereby putting them at an increased risk of violence.



In conclusion, these three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence. [paras. 361-62]

[19] Himel J. concluded that the deprivation of security thus established was not in accordance with the principles of fundamental justice, notably the requirements that laws not infringe security of the person in a way that is arbitrary, overbroad or grossly disproportionate.

[20] Himel J. found the bawdy-house provision (s. 210) overbroad because it extended to virtually any place and allowed for convictions that were unrelated to the objective of preventing community nuisance. And the harms it inflicted were grossly disproportionate to the few nuisance complaints received. The effect of preventing prostitutes from working in-call at a regular indoor location was to force them to choose between their liberty interest (obeying the law) and their personal security.

[21] Himel J. found the prohibition against living on the avails of prostitution (s. 212(1)(j)) arbitrary, overbroad and grossly disproportionate. While targeting exploitation by pimps, the provision encompasses virtually anyone who provides services to prostitutes. Prostitutes are forced to work alone, increasing the risk of harm, or work with people prepared to break the law. It increases reliance on pimps, and is therefore arbitrary. It catches non-exploitative relationships, and is therefore overbroad. And it creates the risk of severe violence from pimps and exploiters, making it grossly disproportionate.

[22] Finally, Himel J. found the prohibition on communicating for the purposes of prostitution (s. 213(1)(c)) violates the principle against gross disproportionality. By preventing prostitutes from screening clients — an essential tool for enhancing their safety — it endangers them out of all proportion to the small social benefit it provides. It also infringes the freedom of expression guarantee under s. 2(b) of the Charter.

[23] Himel J. found that the infringement of the s. 7 and s. 2(b) rights imposed by the laws could not be justified under s. 1 of the Charter.

[24] In the result, Himel J. declared the communicating and living on the avails offences unconstitutional, without suspension, and rectified the bawdy-house prohibition by striking the word “prostitution” from the definition of “common bawdy-house” in s. 197(1) as it applies to s. 210.

Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.)

[25] The majority of the Court of Appeal, per Doherty, Rosenberg and Feldman J.J.A. (with whom the minority per MacPherson J.A. concurred on these issues), agreed with the application judge that the bawdy-house and living on the avails provisions were unconstitutional on the basis that they engaged the security of the person in a way that was not in accordance with the principles of fundamental justice (2012 ONCA 186, 109 O.R. (3d) 1). In particular, the majority found as follows.

[26] The prohibition on bawdy-houses was overbroad and had an impact on security that was grossly disproportionate to any benefit conferred. The court agreed that the word “prostitution” should be struck from the definition of “common bawdy-house”. However, it suspended the declaration of invalidity for 12 months.

[27] The prohibition on living on the avails was not arbitrary, as the application judge found, but was overbroad and grossly disproportionate in its effects. However, instead of striking the provision out, the court narrowed the provision by reading in “in circumstances of exploitation” (para. 267).

[28] The majority of the Court of Appeal found the prohibition on communicating in public for the purpose of prostitution was constitutional. While it engaged security of the person, it did so in accordance with the principles of fundamental justice. The provision aims to combat nuisance-related problems caused by street solicitation. It is not arbitrary; it has been effective in protecting residential neighbourhoods from the targeted harms. Nor is it overbroad or grossly disproportionate. In finding the provision grossly disproportionate, the application judge erred by understating the objective in a way that did not reflect the evidence, and by over-emphasizing the impact of the provision on prostitutes’ security of the person. The evidence did not establish that inability to communicate with customers contributed to the harm experienced by prostitutes to a degree that made the impact grossly disproportionate to the benefits. The majority also found that it was bound by the Prostitution Reference: thus, this provision violated s. 2(b) of the Charter, but was justified under s. 1 of the Charter.

[29] The minority, per MacPherson J.A. (dissenting only on this one issue), would have struck down the communicating prohibition under ss. 7 and 1 of the Charter as grossly disproportionate to the legislative objective of combatting social nuisance. The minority found that: (1) its effects were equally or more serious than the other provision; (2) the application judge correctly stated the objective of the provision; (3) the record supported the conclusion that screening is an essential tool for safety; (4) beyond screening, the provision adversely impacts safety by forcing prostitutes to work in isolated and dangerous areas; (5) the provision impacts the most vulnerable class of prostitutes, street workers, raising s. 15 equality concerns; (6) the recent decision of this Court in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, supports the conclusion that the provision violates s. 7; and (7) the compounding effect of legislation that drives prostitutes onto the streets and then denies them the ability to evaluate prospective clients supports unconstitutionality. This conclusion made it unnecessary for the minority to consider s. 2(b) of the Charter.

[30] In the course of arriving at its conclusions, the majority of the Court of Appeal made a number of ancillary observations of importance.

[31] In considering the doctrine of stare decisis and whether the application judge was bound by theProstitution Reference, the court adopted a narrow view of when a trial judge can reconsider previous decisions of the Supreme Court of Canada on the basis of changes in the social, economic or political landscapes: the trial judge cannot change the law, but is limited to making findings of fact and credibility to create the necessary evidentiary record which the Supreme Court of Canada can then consider. Reasons that justify a court departing from its own prior decisions cannot justify a lower court revisiting binding authority. This applies to determining what constitutes a reasonable limit on a right under s. 1 of the Charter (paras. 75-76).

[32] On the standard of causation required to engage s. 7, the Court of Appeal held that the traditional causation analysis is inappropriate where it is legislation, and not the actions of a government official, that is said to have interfered with a s. 7 interest. Rather, the judge should conduct a practical, pragmatic analysis to determine what the legislation prohibits or requires, its impact on the persons affected, and whether this amounts to an interference with protected rights (paras. 107-9).

[33] On the issue of deference to findings of fact of the application judge, the Court of Appeal held that findings on social and legislative facts are not entitled to appellate deference, while findings on the credibility of affiants and the objectivity of expert witnesses attract deference (paras. 128-31).

[34] Regarding the purpose of the laws, the court rejected the Attorney General of Ontario’s submission that there was an overarching legislative objective to eradicate, or at least discourage, prostitution. Rather, the purpose of each of the laws must be independently ascertained with reference to its unique historical context (paras. 165-70).

[35] On the principles of fundamental justice, the Court of Appeal held that arbitrariness, overbreadth, and gross disproportionality each use a different filter to examine the connection between the law and the legislative objective. Arbitrariness is the absence of any link between the objective of the law and its negative impact on security of the person. Overbreadth addresses the situation where the law imposes limits on security of the person that go beyond what is required to achieve its objective. Gross disproportionality describes the case where the effects of the impugned law are so extreme that they cannot be justified by its object (paras. 143-49).

IV. Discussion

[36] The appellant Attorneys General appeal from the Court of Appeal’s declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. The respondents cross-appeal on the issue of the constitutionality of s. 213(1)(c), and in respect of the Court of Appeal’s remedy to resolve the unconstitutionality of s. 210.

[37] Before turning to the Charter arguments before us, I will first discuss two preliminary issues: (1) whether the 1990 decision in the Prostitution Reference, upholding the bawdy-house and communication prohibitions, is binding on trial judges and this Court; and (2) the degree of deference to be accorded to the application judge’s findings on social and legislative facts.

Preliminary Issues

Revisiting the Prostitution Reference

[38] Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.

[39] The issue of when, if ever, such precedents may be departed from takes two forms. The first “vertical” question is when, if ever, a lower court may depart from a precedent established by a higher court. The second “horizontal” question is when a court such as the Supreme Court of Canada may depart from its own precedents.

[40] In this case, the precedent in question is the Supreme Court of Canada’s 1990 advisory opinion in theProstitution Reference, which upheld the constitutionality of the prohibitions on bawdy-houses and communicating — two of the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(b) of the Charter, and, if so, whether the limit was justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2(b), it was a justifiable limit under s. 1 of the Charter. While reference opinions may not be legally binding, in practice they have been followed (G. Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at p. 175).

[41] The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the evolution of the law in that area; the evidentiary record was richer and provided research not available in 1990; the social, political and economic assumptions underlying the Prostitution Reference no longer applied; and the type of expression at issue in that case (commercial expression) differed from the expression at issue in this case (expression promoting safety). The Court of Appeal disagreed with respect to the s. 2(b) issue, holding that a trial judge asked to depart from a precedent on the basis of new evidence, or new social, political or economic assumptions, may make findings of fact for consideration by the higher courts, but cannot apply them to arrive at a different conclusion from the previous precedent (at para. 76).

[42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

[43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as “mere scribe[s]”, creating a record and findings without conducting a legal analysis (I.F., at para. 25).

[44] I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

[45] It follows that the application judge in this case was entitled to rule on whether the laws in question violated the security of the person interests under s. 7 of the Charter. In the Prostitution Reference, the majority decision was based on the s. 7 physical liberty interest alone. Only Lamer J., writing for himself, touched on security of the person — and then, only in the context of economic interests. Contrary to the submission of the Attorney General of Canada, whether the s. 7 interest at issue is economic liberty or security of the person is not “a distinction without a difference” (A.F., at para. 94). The rights protected by s. 7 are “independent interests, each of which must be given independent significance by the Court” (R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 52). Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years.

[46] These considerations do not apply to the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference. Re-characterizing the type of expression alleged to be infringed did not convert this argument into a new legal issue, nor did the more current evidentiary record or the shift in attitudes and perspectives amount to a change in the circumstances or evidence that fundamentally shifted the parameters of the debate.

[47] This brings me to the question of whether this Court should depart from its previous decision on the s. 2(b) aspect of this case. At heart, this is a balancing exercise, in which the Court must weigh correctness against certainty (Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 27). In this case, however, it is not necessary to determine whether this Court can depart from its s. 2(b) conclusion in the Prostitution Reference, since it is possible to resolve the case entirely on s. 7 grounds.

Deference to the Application Judge’s Findings on Social and Legislative Facts

[48] The Court of Appeal held that the application judge’s findings on social and legislative facts — that is, facts about society at large, established by complex social science evidence — were not entitled to deference. With respect, I cannot agree. As this Court stated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, appellate courts should not interfere with a trial judge’s findings of fact, absent a palpable and overriding error.

[49] When social and legislative evidence is put before a judge of first instance, the judge’s duty is to evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case. The trial judge is charged with the responsibility of establishing the record on which subsequent appeals are founded. Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact. This applies to social and legislative facts as much as to findings of fact as to what happened in a particular case.

[50] There are two important practical reasons not to depart from the usual standard of review simply because social or legislative facts are at issue.

[51] First, to do so would require the appeal court to duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences between the experts, studies and research results. A new set of judges would need to take the hours if not weeks required to intimately appreciate and analyze the evidence. And counsel for the parties would be required to take the appellate judges through all the evidence once again so they could draw their own conclusions. All this would increase the costs and delay in the litigation process. In a review for error — which is what an appeal is — it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.

[52] Second, social and legislative facts may be intertwined with adjudicative facts — that is, the facts of the case at hand — and with issues of credibility of experts. To posit a different standard of review for adjudicative facts and the credibility of affiants and expert witnesses on the one hand, and social and legislative facts on the other (as proposed by the Court of Appeal), is to ask the impossible of courts of appeal. Untangling the different sources of those conclusions and applying different standards of review to them would immensely complicate the appellate task.

[53] As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, suggested that legislative fact findings are owed less deference. However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided. In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 68). The assessment of expert evidence relies heavily on the trial judge (R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96). This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)). The distinction between adjudicative and legislative facts can no longer justify gradations of deference.

[54] This case illustrates the problem. The application judge arrived at her conclusions on the impact of the impugned laws on s. 7 security interests on the basis of the personal evidence of the applicants, the evidence of affiants and experts, and documentary evidence in the form of studies, reports of expert panels and Parliamentary records. The Court of Appeal conceded that it must accord deference to her findings of adjudicative facts and the credibility of affiants and experts, but said it owes no deference to findings on social and legislative facts. The task of applying different standards of review when the evidence is intertwined would be daunting.

[55] It is suggested that no deference is required on social and legislative facts because appellate courts are in as good a position to evaluate such evidence as trial judges. If this were so, adjudicative facts presented only in affidavit form would similarly be owed less deference. Yet this Court has been clear that, absent express statutory instruction, there is no middling standard of review for findings of fact (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401). Furthermore, this view does not meet the concerns of duplication of effort and the intertwining of such evidence with other kinds of evidence. Nor does it address the point that the appellate task is not to review evidence globally, but rather to review the conclusions the first instance judge has drawn from the evidence.

[56] For these reasons, I am of the view that a no-deference standard of appellate review for social and legislative facts should be rejected. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.



Section 7 Analysis

[57] In the discussion that follows, I first consider whether the applicants have established that the impugned laws impose limits on security of the person, thus engaging s. 7. I then examine the appellant Attorneys Generals’ arguments that the laws do not cause the alleged harms. I go on to consider whether any limits on security of the person are in accordance with the principles of fundamental justice.

Is Security of the Person Engaged?

[58] Section 7 provides that the state cannot deny a person’s right to life, liberty or security of the person, except in accordance with the principles of fundamental justice. At this stage, the question is whether the impugned laws negatively impact or limit the applicants’ security of the person, thus bringing them within the ambit of, or engaging, s. 7 of the Charter.[1]

[59] Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity. The application judge found that the evidence supported this proposition and the Court of Appeal agreed.

[60] For reasons set out below, I am of the same view. The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.

Sections 197 and 210: Keeping a Common Bawdy-House

[61] It is not an offence to sell sex for money. The bawdy-house provisions, however, make it an offence to do so in any “place” that is “kept or occupied” or “resorted to” for the purpose of prostitution (ss. 197 and 210(1) of the Code). The reach of these provisions is broad. “Place” includes any defined space, even if unenclosed and used only temporarily (s. 197(1) of the Code; R. v. Pierce and Golloher (1982), 37 O.R. (2d) 721 (C.A.)). And by definition, it applies even if resorted to by only one person (s. 197(1); R. v. Worthington(1972), 10 C.C.C. (2d) 311 (Ont. C.A.)).

[62] The practical effect of s. 210 is to confine lawful prostitution to two categories: street prostitution and out-calls (application decision, at para. 385). In-calls, where the john comes to the prostitute’s residence, are prohibited. Out-calls, where the prostitute goes out and meets the client at a designated location, such as the client’s home, are allowed. Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public (s. 213 (1) (c)).

[63] The application judge found, on a balance of probabilities, that the safest form of prostitution is working independently from a fixed location (para. 300). She concluded that indoor work is far less dangerous than street prostitution — a finding that the evidence amply supports. She also concluded that out-call work is not as safe as in-call work, particularly under the current regime where prostitutes are precluded by virtue of the living on the avails provision from hiring a driver or security guard. Since the bawdy-house provision makes the safety-enhancing method of in-call prostitution illegal, the application judge concluded that the bawdy-house prohibition materially increased the risk prostitutes face under the present regime. I agree.

[64] First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards. This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks (application decision, at para. 421). Second, it interferes with provision of health checks and preventive health measures. Finally — a point developed in argument before us — the bawdy-house prohibition prevents resort to safe houses, to which prostitutes working on the street can take clients. In Vancouver, for example, “Grandma’s House” was established to support street workers in the Downtown Eastside, at about the same time as fears were growing that a serial killer was prowling the streets — fears which materialized in the notorious Robert Pickton. Street prostitutes — who the application judge found are largely the most vulnerable class of prostitutes, and who face an alarming amount of violence (para. 361) — were able to bring clients to Grandma’s House. However, charges were laid under s. 210, and although the charges were eventually stayed — four years after they were laid — Grandma’s House was shut down (supplementary affidavit of Dr. John Lowman, May 6, 2009, J.A.R., vol. 20, at p. 5744). For some prostitutes, particularly those who are destitute, safe houses such as Grandma’s House may be critical. For these people, the ability to work in brothels or hire security, even if those activities were lawful, may be illusory.

[65] I conclude, therefore, that the bawdy-house provision negatively impacts the security of the person of prostitutes and engages s. 7 of the Charter.

(b) Section 212(1)(j): Living on the Avails of Prostitution

[66] Section 212(1)(j) criminalizes living on the avails of prostitution of another person, wholly or in part. While targeting parasitic relationships (R. v. Downey, [1992] 2 S.C.R. 10), it has a broad reach. As interpreted by the courts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute (R. v. Grilo(1991), 2 O.R. (3d) 514 (C.A.); R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents a prostitute from hiring bodyguards, drivers and receptionists. The application judge found that by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person (para. 361). As such, she found that the law engages s. 7 of theCharter.

[67] The evidence amply supports the judge’s conclusion. Hiring drivers, receptionists, and bodyguards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the person and engages s. 7.

(c) Section 213(1)(c): Communicating in a Public Place

[68] Section 213(1)(c) prohibits communicating or attempting to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute, in a public place or a place open to public view. The provision extends to conduct short of verbal communication by prohibiting stopping or attempting to stop any person for those purposes (R. v. Head (1987), 59 C.R. (3d) 80 (B.C.C.A.)).

[69] The application judge found that face-to-face communication is an “essential tool” in enhancing street prostitutes’ safety (para. 432). Such communication, which the law prohibits, allows prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they face (paras. 301 and 421). This conclusion, based on the evidence before her, sufficed to engage security of the person under s. 7.

[70] The application judge also found that the communicating law has had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable (paras. 331 and 502).

[71] On the evidence accepted by the application judge, the law prohibits communication that would allow street prostitutes to increase their safety. By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face.

[72] I conclude that the evidence supports the application judge’s conclusion that s. 213(1)(c) impacts security of the person and engages s. 7.

A Closer Look at Causation

[73] For the reasons discussed above, the application judge concluded — and I agree — that the impugned laws negatively impact and thus engage security of the person rights of prostitutes. However, the appellant Attorneys General contend that s. 7 is not engaged because there is an insufficient causal connection between the laws and the risks faced by prostitutes. First, they argue that the courts below erroneously measured causation by an attenuated standard. Second, they argue that it is the choice of the applicants to engage in prostitution, rather than the law, that is the causal source of the harms they face. These arguments cannot succeed.

(a) The Nature of the Required Causal Connection

[74] Three possible standards for causation are raised for our consideration: (1) “sufficient causal connection”, adopted by the application judge (paras. 287-88); (2) a general “impact” approach, adopted by the Court of Appeal (paras. 108-9); and (3) “active, foreseeable and direct” causal connection, urged by the appellant Attorneys General (A.G. of Canada factum, at para. 65; A.G. of Ontario factum, at paras. 14-15).

[75] I conclude that the “sufficient causal connection” standard should prevail. This is a flexible standard, which allows the circumstances of each particular case to be taken into account. Adopted in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and applied in a number of subsequent cases (see e.g. United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3), it posits the need for “a sufficientcausal connection between the state-caused [effect] and the prejudice suffered by the [claimant]” for s. 7 to be engaged (Blencoe, at para. 60 (emphasis added)).

[76] A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. Understood in this way, a sufficient causal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case. While I do not agree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation — as opposed to the conduct of state actors — engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in cases such as Blencoe and Khadr.

[77] The Attorney General of Canada argues for a higher standard. The prejudice to the claimant’s security interest, he argues, must be active, foreseeable, and a “necessary link” (factum, at paras. 62 and 65). He relies on this Court’s statement in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, (cited by way of contrast in Blencoe, at para. 69) that “[i]n the absence of government involvement, Mrs. Rodriguez would not have suffered a deprivation of her s. 7 rights.” He also relies on the Court’s statement in Suresh, at para. 54, that “[a]t least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice”. These statements establish that a causal connection is made out when the state action is a foreseeable and necessary cause of the prejudice. They do not, however, establish that this is the only way a causal connection engaging s. 7 of the Charter can be demonstrated.

[78] Finally, from a practical perspective, a sufficient causal connection represents a fair and workable threshold for engaging s. 7 of the Charter. This is the port of entry for s. 7 claims. The claimant bears the burden of establishing this connection. Even if established, it does not end the inquiry, since the claimant must go on to show that the deprivation of her security of the person is not in accordance with the principles of fundamental justice. Although mere speculation will not suffice to establish causation, to set the bar too high risks barring meritorious claims. What is required is a sufficient connection, having regard to the context of the case.

(b) Is the Causal Connection Negated by Choice or the Role of Third Parties?

[79] The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity. They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity. They say that choice — and not the law — is the real cause of their injury.

[80] The Attorneys General contend that Parliament is entitled to regulate prostitution as it sees fit. Anyone who chooses to sell sex for money must accept these conditions. If the conditions imposed by the law prejudice their security, it is their choice to engage in the activity, not the law, that is the cause.

[81] What the applicants seek, the Attorneys General assert, is a constitutional right to engage in risky commercial activities. Thus the Attorney General of Ontario describes the s. 7 claim in this case as a “veiled assertion of a positive right to vocational safety” (factum, at para. 25).

[82] The Attorneys General rely on this Court’s decision in Malmo-Levine, which upheld the constitutionality of the prohibition of possession of marijuana on the basis that the recreational use of marijuana was a “lifestyle choice” and that lifestyle choices were not constitutionally protected (para. 185).

[83] The Attorneys General buttress this argument by asserting that if this Court accepts that these laws can be viewed as causing prejudice to the applicants’ security, then many other laws that leave open the choice to engage in risky activities by only partially or indirectly regulating those activities will be rendered unconstitutional.

[84] Finally, in a variant on the argument that the impugned laws are not the cause of the applicants’ alleged loss of security, the Attorneys General argue that the source of the harm is third parties — the johns who use and abuse prostitutes and the pimps who exploit them.

[85] For the following reasons, I cannot accept the argument that it is not the law, but rather prostitutes’ choice and third parties, that cause the risks complained of in this case.

[86] First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472). Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice” (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

[87] Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal. The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.

[88] Nor is it accurate to say that the claim in this case is a veiled assertion of a positive right to vocational safety. The applicants are not asking the government to put into place measures making prostitution safe. Rather, they are asking this Court to strike down legislative provisions that aggravate the risk of disease, violence and death.

[89] It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

[90] The government’s call for deference in addressing the problems associated with prostitution has no role at this stage of the analysis. Calls for deference cannot insulate legislation that creates serious harmful effects from the charge that they negatively impact security of the person under s. 7 of the Charter. The question of deference arises under the principles of fundamental justice, not at the early stage of considering whether a person’s life, liberty, or security of the person is infringed.

[91] Finally, recognizing that laws with serious harmful effects may engage security of the person does not mean that a host of other criminal laws will be invalidated. Trivial impingements on security of the person do not engage s. 7 (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 59). As already discussed, the applicant must show that the impugned law is sufficiently connected to the prejudice suffered before s. 7 is engaged. And even if s. 7 is found to be engaged, the applicant must then show that the deprivation of security is not in accordance with the principles of fundamental justice.

[92] For all these reasons, I reject the arguments of the Attorneys General that the cause of the harm is not the impugned laws, but rather the actions of third parties and the prostitutes’ choice to engage in prostitution. As I concluded above, the laws engage s. 7 of the Charter. That conclusion remains undisturbed.

Principles of Fundamental Justice

The Applicable Norms

[93] I have concluded that the impugned laws deprive prostitutes of security of the person, engaging s. 7. The remaining step in the s. 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. If so, s. 7 is not breached.

[94] The principles of fundamental justice set out the minimum requirements that a law that negatively impacts on a person’s life, liberty, or security of the person must meet. As Lamer J. put it, “[t]he term ‘principles of fundamental justice’ is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right” (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”), at p. 512).

[95] The principles of fundamental justice have significantly evolved since the birth of the Charter. Initially, the principles of fundamental justice were thought to refer narrowly to principles of natural justice that define procedural fairness. In the Motor Vehicle Reference, this Court held otherwise:

. . . it would be wrong to interpret the term “fundamental justice” as being synonymous with natural justice . . . . To do so would strip the protected interests of much, if not most, of their content and leave the “right” to life, liberty and security of the person in a sorely emaciated state. Such a result would be inconsistent with the broad, affirmative language in which those rights are expressed and equally inconsistent with the approach adopted by this Court toward the interpretation of Charterrights in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, per Estey J., andHunter v. Southam Inc., supra. [pp. 501-2]

[96] The Motor Vehicle Reference recognized that the principles of fundamental justice are about the basic values underpinning our constitutional order. The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values. Over the years, the jurisprudence has given shape to the content of these basic values. In this case, we are concerned with the basic values against arbitrariness, overbreadth, and gross disproportionality.

[97] The concepts of arbitrariness, overbreadth, and gross disproportionality evolved organically as courts were faced with novel Charter claims.

[98] Arbitrariness was used to describe the situation where there is no connection between the effect and the object of the law. In Morgentaler, the accused challenged provisions of the Criminal Code that required abortions to be approved by a therapeutic abortion committee of an accredited or approved hospital. The purpose of the law was to protect women’s health. The majority found that the requirement that all therapeutic abortions take place in accredited hospitals did not contribute to the objective of protecting women’s health and, in fact, caused delays that were detrimental to women’s health. Thus, the law violated basic values because the effect of the law actually contravened the objective of the law. Beetz J. called this “manifest unfairness” (Morgentaler, at p. 120), but later cases interpreted this as an “arbitrariness” analysis (see Chaoulli v. Quebec (Attorney General),2005 SCC 35, [2005] 1 S.C.R. 791, at para. 133, per McLachlin C.J. and Major J.).

[99] In Chaoulli, the applicant challenged a Quebec law that prohibited private health insurance for services that were available in the public sector. The purpose of the provision was to protect the public health care system and prevent the diversion of resources from the public system. The majority found, on the basis of international evidence, that private health insurance and a public health system could co-exist. Three of the four-judge majority found that the prohibition was “arbitrary” because there was no real connection on the facts between the effect and the objective of the law.

[100] Most recently, in PHS, this Court found that the Minister’s decision not to extend a safe injection site’s exemption from drug possession laws was arbitrary. The purpose of drug possession laws was the protection of health and public safety, and the services provided by the safe injection site actually contributed to these objectives. Thus, the effect of not extending the exemption — that is, prohibiting the safe injection site from operating — was contrary to the objectives of the drug possession laws.

[101] Another way in which laws may violate our basic values is through what the cases have called “overbreadth”: the law goes too far and interferes with some conduct that bears no connection to its objective. InR. v. Heywood, [1994] 3 S.C.R. 761, the accused challenged a vagrancy law that prohibited offenders convicted of listed offences from “loitering” in public parks. The majority of the Court found that the law, which aimed to protect children from sexual predators, was overbroad; insofar as the law applied to offenders who did not constitute a danger to children, and insofar as it applied to parks where children were unlikely to be present, it was unrelated to its objective.

[102] In R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, the challenged provisions of the Criminal Code prevented an accused who was found unfit to stand trial from receiving an absolute discharge, and subjected the accused to indefinite appearances before a review board. The purpose of the provisions was “to allow for the ongoing treatment or assessment of the accused in order for him or her to become fit for an eventual trial” (at para. 41). The Court found that insofar as the law applied to permanently unfit accused, who would never become fit to stand trial, the objective did “not apply” and therefore the law was overbroad (at paras. 42-43).

[103] Laws are also in violation of our basic values when the effect of the law is grossly disproportionate to the state’s objective. In Malmo-Levine, the accused challenged the prohibition on the possession of marijuana on the basis that its effects were grossly disproportionate to its objective. Although the Court agreed that a law with grossly disproportionate effects would violate our basic norms, the Court found that this was not such a case: “. . . the effects on accused persons of the present law, including the potential of imprisonment, fall within the broad latitude within which the Constitution permits legislative action” (para. 175).

[104] In PHS, this Court found that the Minister’s refusal to exempt the safe injection site from drug possession laws was not in accordance with the principles of fundamental justice because the effect of denying health services and increasing the risk of death and disease of injection drug users was grossly disproportionate to the objectives of the drug possession laws, namely public health and safety.

[105] The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.

[106] As these principles have developed in the jurisprudence, they have not always been applied consistently. The Court of Appeal below pointed to the confusion that has been caused by the “commingling” of arbitrariness, overbreadth, and gross disproportionality (at paras. 143-51). This Court itself recently noted the conflation of the principles of overbreadth and gross disproportionality (R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 38-40; see also R. v. S.S.C., 2008 BCCA 262, 257 B.C.A.C. 57, at para. 72). In short, courts have explored different ways in which laws run afoul of our basic values, using the same words — arbitrariness, overbreadth, and gross disproportionality — in slightly different ways.

[107] Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” — the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151). As Peter Hogg has explained:

The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective.

(“The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195, at p. 209 (citation omitted))

[108] The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils. The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law. The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law’s purpose and the s. 7 deprivation.

[109] The second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The law’s impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.

[110] Against this background, it may be useful to elaborate on arbitrariness, overbreadth and gross disproportionality.

[111] Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, inChaoulli, the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.

[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

[114] It has been suggested that overbreadth is not truly a distinct principle of fundamental justice. The case law has sometimes said that overbreadth straddles both arbitrariness and gross disproportionality. Thus, inHeywood, Cory J. stated: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p. 793).

[115] And in R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, the companion case to Malmo-Levine, Gonthier and Binnie JJ. explained:

Overbreadth in that respect addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed out [in Heywood], related to arbitrariness. [Emphasis deleted; para. 38.]

[116] In part this debate is semantic. The law has not developed by strict labels, but on a case-by-case basis, as courts identified laws that were inherently bad because they violated our basic values.

[117] Moving forward, however, it may be helpful to think of overbreadth as a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective. Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective.

[118] An ancillary question, which applies to both arbitrariness and overbreadth, concerns how significant the lack of correspondence between the objective of the infringing provision and its effects must be. Questions have arisen as to whether a law is arbitrary or overbroad when its effects are inconsistent with its objective, or whether, more broadly, a law is arbitrary or overbroad whenever its effects are unnecessary for its objective (see, e.g.,Chaoulli, at paras. 233-34).

[119] As noted above, the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose. This standard is not easily met. The evidence may, as inMorgentaler, show that the effect actually undermines the objective and is therefore “inconsistent” with the objective. Or the evidence may, as in Chaoulli, show that there is simply no connection on the facts between the effect and the objective, and the effect is therefore “unnecessary”. Regardless of how the judge describes this lack of connection, the ultimate question remains whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence.

[120] Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.

[121] Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law. As this Court said in Malmo-Levine:

In effect, the exercise undertaken by Braidwood J.A. was to balance the law’s salutary and deleterious effects. In our view, with respect, that is a function that is more properly reserved for s. 1. These are the types of social and economic harms that generally have no place in s. 7. [para. 181]

[122] Thus, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm.

[123] All three principles — arbitrariness, overbreadth, and gross disproportionality — compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness. That is, they do not look to how well the law achieves its object, or to how much of the population the law benefits. They do not consider ancillary benefits to the general population. Furthermore, none of the principles measure the percentage of the population that is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

The Relationship Between Section 7 and Section 1

[124] This Court has previously identified parallels between the rules against arbitrariness, overbreadth, and gross disproportionality under s. 7 and elements of the s. 1 analysis for justification of laws that violate Charterrights. These parallels should not be allowed to obscure the crucial differences between the two sections.

[125] Section 7 and s. 1 ask different questions. The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose. Under s. 1, the question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest. The question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights.

[126] As a consequence of the different questions they address, s. 7 and s. 1 work in different ways. Under s. 1, the government bears the burden of showing that a law that breaches an individual’s rights can be justified having regard to the government’s goal. Because the question is whether the broader public interest justifies the infringement of individual rights, the law’s goal must be pressing and substantial. The “rational connection” branch of the s. 1 analysis asks whether the law was a rational means for the legislature to pursue its objective. “Minimal impairment” asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature’s reasonable alternatives. At the final stage of the s. 1 analysis, the court is required to weigh the negative impact of the law on people’s rights against the beneficial impact of the law in terms of achieving its goal for the greater public good. The impacts are judged both qualitatively and quantitatively. Unlike individual claimants, the Crown is well placed to call the social science and expert evidence required to justify the law’s impact in terms of society as a whole.

[127] By contrast, under s. 7, the claimant bears the burden of establishing that the law deprives her of life, liberty or security of the person, in a manner that is not connected to the law’s object or in a manner that is grossly disproportionate to the law’s object. The inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy. The inquiry into the impact on life, liberty or security of the person is not quantitative — for example, how many people are negatively impacted — but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. To require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences on members of society as a whole, would impose the government’s s. 1 burden on claimants under s. 7. That cannot be right.

[128] In brief, although the concepts under s. 7 and s. 1 are rooted in similar concerns, they are analytically distinct.

[129] It has been said that a law that violates s. 7 is unlikely to be justified under s. 1 of the Charter (Motor Vehicle Reference, at p. 518). The significance of the fundamental rights protected by s. 7 supports this observation. Nevertheless, the jurisprudence has also recognized that there may be some cases where s. 1 has a role to play (see, e.g., Malmo-Levine, at paras. 96-98). Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted.

Do the Impugned Laws Respect the Principles of Fundamental Justice?

Section 210: The Bawdy-House Prohibition

(i) The Object of the Provision

[130] The bawdy-house provision has remained essentially unchanged since it was moved to Part V of theCriminal Code, “Disorderly Houses, Gaming and Betting”, in the 1953-54 Code revision (c. 51, s. 182). InRockert v. The Queen, [1978] 2 S.C.R. 704, Estey J. found “little, if any, doubt” in the authorities that the disorderly house provisions were not directed at the mischief of betting, gaming and prostitution per se, but rather at the harm to the community in which such activities were carried on in a notorious and habitual manner (p. 712). This objective can be traced back to the common law origins of the bawdy-house provisions (see, e.g., E. Coke,The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes (1817, first published 1644, at pp. 205-6).

[131] The appellant Attorneys General argue that the object of this provision, considered alone and in conjunction with the other prohibitions, is to deter prostitution. The record does not support this contention; on the contrary, it is clear from the legislative record that the purpose of the prohibition is to prevent community harms in the nature of nuisance.

[132] There is no evidence to support a reappraisal of this purpose by Parliament. The doctrine against shifting objectives does not permit a new object to be introduced at this point (R. v. Zundel, [1992] 2 S.C.R. 731). On its face, the provision is only directed at in-call prostitution, and so cannot be said to aim at deterring prostitution generally. To find that it operates with the other Criminal Code provisions to deter prostitution generally is also unwarranted, given their piecemeal evolution and patchwork construction, which leaves out-calls and prostitution itself untouched. I therefore agree with the lower courts that the objectives of the bawdy-house provision are to combat neighbourhood disruption or disorder and to safeguard public health and safety.

(ii) Compliance With the Principles of Fundamental Justice

[133] The courts below considered whether the bawdy-house prohibition is overbroad, or grossly disproportionate.

[134] I agree with them that the negative impact of the bawdy-house prohibition on the applicants’ security of the person is grossly disproportionate to its objective. I therefore find it unnecessary to decide whether the prohibition is overbroad insofar as it applies to a single prostitute operating out of her own home (C.A., at para. 204). The application judge found on the evidence that moving to a bawdy-house would improve prostitutes’ safety by providing “the safety benefits of proximity to others, familiarity with surroundings, security staff, closed-circuit television and other such monitoring that a permanent indoor location can facilitate” (para. 427). Balancing this against the evidence demonstrating that “complaints about nuisance arising from indoor prostitution establishments are rare” (ibid.), she found that the harmful impact of the provision was grossly disproportionate to its purpose.

[135] The Court of Appeal acknowledged that empirical evidence on the subject is difficult to gather, since almost all the studies focus on street prostitution. However, it concluded that the evidence supported the application judge’s findings on gross disproportionality — in particular, the evidence of the high homicide rate among prostitutes, with the overwhelming number of victims being street prostitutes. The Court of Appeal agreed that moving indoors amounts to a “basic safety precaution” for prostitutes, one which the bawdy-house provision makes illegal (paras. 206-7).

[136] In my view, this conclusion was not in error. The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.

Section 212(1)(j): Living on the Avails of Prostitution

(iii) The Object of the Provision

[137] This Court has held, per Cory J. for the majority in Downey, that the purpose of this provision is to target pimps and the parasitic, exploitative conduct in which they engage:

It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) [now s. 212(1)(j)] is specifically aimed at those who have an economic stake in the earnings of a prostitute. It has been held correctly I believe that the target of s. 195(1)(j) is the person who lives parasitically off a prostitute’s earnings. That person is commonly and aptly termed a pimp. [p. 32]

[138] The Attorneys General of Canada and Ontario argue that the true objective of s. 212(1)(j) is to target the commercialization of prostitution, and to promote the values of dignity and equality. This characterization of the objective does not accord with Downey, and is not supported by the legislative record. It must be rejected.

(iv) Compliance With the Principles of Fundamental Justice

[139] The courts below concluded that the living on the avails provision is overbroad insofar as it captures a number of non-exploitative relationships which are not connected to the law’s purpose. The courts below also concluded that the provision’s negative effect on the security and safety of prostitutes is grossly disproportionate to its objective of protecting prostitutes from harm.

[140] I agree with the courts below that the living on the avails provision is overbroad.

[141] The provision has been judicially restricted to those who provide a service or good to a prostitute because she is a prostitute, thus excluding grocers and doctors, for instance (Shaw v. Director of Public Prosecutions, [1962] A.C. 220 (H.L.)). It also has been held to require that exploitation be proven in the case of a person who lives with the prostitute, in order to exclude people in legitimate domestic relationships with a prostitute (Grilo). These refinements render the prohibition narrower than its words might suggest.

[142] The question here is whether the law nevertheless goes too far and thus deprives the applicants of their security of the person in a manner unconnected to the law’s objective. The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad.

[143] The appellant Attorneys General argue that the line between an exploitative pimp and a prostitute’s legitimate driver, manager or bodyguard, blurs in the real world. A relationship that begins on a non-exploitative footing may become exploitative over time. If the provision were tailored more narrowly — for example, by reading in “in circumstances of exploitation” as the Court of Appeal did — evidentiary difficulties may lead to exploiters escaping liability. Relationships of exploitation often involve intimidation and manipulation of the kind that make it very difficult for a prostitute to testify. For these reasons, the Attorneys General argue, the provision must be drawn broadly in order to effectively capture those it targets.

[144] This argument is more appropriately addressed under the s. 1 analysis. As stated above, if a law captures conduct that bears no relation to its purpose, the law is overbroad under s. 7; enforcement practicality is one way the government may justify an overbroad law under s. 1 of the Charter.

[145] Having found that the prohibition on living on the avails of prostitution is overbroad, I find it unnecessary to consider whether it is also grossly disproportionate to its object of protecting prostitutes from exploitative relationships.

Section 213(1)(c): Communicating in Public for the Purposes of Prostitution

(v) The Object of the Provision

[146] The object of the communicating provision was explained by Dickson C.J. in the Prostitution Reference:

Like Wilson J., I would characterize the legislative objective of s. 195.1(1)(c) [now s. 213(1)(c)] in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. My colleague Lamer J. finds that s. 195.1(1)(c) is truly directed towards curbing the exposure of prostitution and related violence, drugs and crime to potentially vulnerable young people, and towards eliminating the victimization and economic disadvantage that prostitution, and especially street soliciting, represents for women. I do not share the view that the legislative objective can be characterized so broadly. In prohibiting sales of sexual services in public, the legislation does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. Rather, in my view, the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view.



The Criminal Code provision subject to attack in these proceedings clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children. [pp. 1134-35]

[147] It is clear from these reasons that the purpose of the communicating provision is not to eliminate street prostitution for its own sake, but to take prostitution “off the streets and out of public view” in order to prevent the nuisances that street prostitution can cause. The Prostitution Reference belies the Attorneys General’s argument that Parliament’s overall objective in these provisions is to deter prostitution.

(vi) Compliance With the Principles of Fundamental Justice

[148] The application judge concluded that the harm imposed by the prohibition on communicating in public was grossly disproportionate to the provision’s object of removing the nuisance of prostitution from the streets. This was based on evidence that she found established that the ability to screen clients was an “essential tool” to avoiding violent or drunken clients (application decision, at para. 432).

[149] The majority of the Court of Appeal found that the application judge erred in her analysis of gross disproportionality by attaching too little importance to the objective of s. 213(1)(c), and by incorrectly finding on the evidence that face-to-face communication with a prospective customer is essential to enhancing prostitutes’ safety (at paras. 306 and 310).

[150] In my view, the Court of Appeal majority’s reasoning on this question is problematic, largely for the reasons set out by MacPherson J.A., dissenting in part. Four aspects of the majority’s analysis are particularly troubling.

[151] First, in concluding that the application judge accorded too little weight to the legislative objective of s. 213(1)(c), the majority of the Court of Appeal criticized her characterization of the object of the provision as targeting “noise, street congestion, and the possibility that the practice of prostitution will interfere with those nearby” (C.A., at para. 306). But the application judge’s conclusion was in concert with the object of s. 213(1)(c) established by Dickson C.J. in the Prostitution Reference, which the majority of the Court of Appeal endorsed earlier in their reasons (at para. 286).

[152] Compounding this error, the majority of the Court of Appeal inflated the objective of the prohibition on public communication by referring to “drug possession, drug trafficking, public intoxication, and organized crime” (para. 307), even though Dickson C.J. explicitly excluded the exposure of “related violence, drugs and crime” to vulnerable young people from the objectives of s. 213(1)(c). At most, the provision’s effect on these other issues is an ancillary benefit — and, as such, it should not play into the gross disproportionality analysis, which weighs the actual objective of the provision against its negative impact on the individual’s life, liberty and security of the person.

[153] The three remaining concerns with the majority’s reasoning relate to the other side of the balance: the assessment of the impact of the provision.

[154] First, the majority of the Court of Appeal erroneously substituted its assessment of the evidence for that of the application judge. It found that the application judge’s conclusion that face-to-face communication is essential to enhancing prostitutes’ safety was based only on “anecdotal evidence . . . informed by her own common sense” (para. 311). This was linked to its error, discussed above, in according too little deference to the application judge on findings of social and legislative facts. MacPherson J.A. for the minority, correctly countered that the evidence on this point came from both prostitutes’ own accounts and from expert assessments, and provided a firm basis for the application judge’s conclusion (at paras. 348-50).

[155] Second, the majority ignored the law’s effect of displacing prostitutes to more secluded, less secure locations. The application judge highlighted this displacement (at para. 331), citing the evidence found in the report of the House of Commons Standing Committee on Justice and Human Rights Subcommittee on Solicitation Laws (The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (2006)) on the effects of s. 213(1)(c). The majority’s conclusion that the application judge did not have a proper basis to conclude that face-to-face communication enhances safety may be explained in part by their failure to consider the impact of the provision on displacement.

[156] Related to this is the uncontested fact that the communication ban prevents street workers from bargaining for conditions that would materially reduce their risk, such as condom use and the use of safe houses.

[157] Finally, the majority of the Court of Appeal majority, in rejecting the application judge’s conclusions, relied on its own speculative assessment of the impact of s. 213(1)(c):

While it is fair to say that a street prostitute might be able to avoid a “bad date” by negotiating details such as payment, services to be performed and condom use up front, it is equally likely that the customer could pass muster at an early stage, only to turn violent once the transaction is underway. It is also possible that the prostitute may proceed even in the face of perceived danger, either because her judgment is impaired by drugs or alcohol, or because she is so desperate for money that she feels compelled to take the risk. [para. 312]

[158] It is certainly conceivable, as this passage suggests, that some street prostitutes would not refuse a client even if communication revealed potential danger. It is also conceivable that the danger may not be perfectly predicted in advance. However, that does not negate the application judge’s finding that communication is an essential tool that can decrease risk. The assessment is qualitative, not quantitative. If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.

[159] In sum, the Court of Appeal wrongly attributed errors in reasoning to the application judge and made a number of errors in considering gross disproportionality. I would restore the application judge’s conclusion that s. 213(1)(c) is grossly disproportionate. The provision’s negative impact on the safety and lives of street prostitutes is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

Do the Prohibitions Against Communicating in Public Violate Section 2(b) of the Charter?

[160] Having concluded that the impugned laws violate s. 7, it is unnecessary to consider this question.

Are the Infringements Justified Under Section 1 of the Charter?

[161] The appellant Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1 of the Charter. Only the Attorney General of Canada addressed this in his factum, and then, only briefly. I therefore find it unnecessary to engage in a full s. 1 analysis for each of the impugned provisions.However, some of their arguments under s. 7 of the Charter are properly addressed at this stage of the analysis.

[162] In particular, the Attorneys General attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships, which can be difficult to identify. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.

[163] The Attorneys General have not raised any other arguments distinct from those considered under s. 7. I therefore find that the impugned laws are not saved by s. 1 of the Charter.

V. Result and Remedy

[164] I would dismiss the appeals and allow the cross-appeal. Sections 210, 212(1)(j) and 213(1)(c) are declared to be inconsistent with the Canadian Charter of Rights and Freedoms and hence are void.

[165] I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter. That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted. Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure — for example, permitting prostitutes to obtain the assistance of security personnel — might impact on the constitutionality of another measure — for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.

[166] This raises the question of whether the declaration of invalidity should be suspended and if so, for how long.

[167] On the one hand, immediate invalidity would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it. How prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated. Whether immediate invalidity would pose a danger to the public or imperil the rule of law (the factors for suspension referred to in Schachter v. Canada, [1992] 2 S.C.R. 679) may be subject to debate. However, it is clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians.

[168] On the other hand, leaving the prohibitions against bawdy-houses, living on the avails of prostitution and public communication for purposes of prostitution in place in their present form leaves prostitutes at increased risk for the time of the suspension — risks which violate their constitutional right to security of the person.

[169] The choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one. Neither alternative is without difficulty. However, considering all the interests at stake, I conclude that the declaration of invalidity should be suspended for one year.







Appeals dismissed and cross‑appeal allowed.

Solicitor for the appellant/respondent on cross‑appeal the Attorney General of Canada: Attorney General of Canada, Toronto.

Solicitor for the appellant/respondent on cross‑appeal the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitors for the respondents/appellants on cross‑appeal: Osgoode Hall Law School of York University, Toronto; Sack Goldblatt Mitchell, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.

Solicitors for the interveners the Pivot Legal Society, the Downtown Eastside Sex Workers United Against Violence Society and the PACE Society: Pivot Legal Society, Vancouver; Arvay Finlay, Vancouver; Janes Freedman Kyle Law Corporation, Vancouver; Ratcliff & Company, North Vancouver; Harper Grey, Vancouver.

Solicitors for the intervener the Secretariat of the Joint United Nations Programme on HIV/AIDS: McCarthy Tétrault, Vancouver.

Solicitors for the intervener the British Columbia Civil Liberties Association: Hunter Litigation Chambers, Vancouver.

Solicitor for the intervener the Evangelical Fellowship of Canada: Evangelical Fellowship of Canada, Ottawa.

Solicitors for the interveners the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS and the HIV & AIDS Legal Clinic Ontario: Cooper & Sandler, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto.

Solicitors for the interveners the Canadian Association of Sexual Assault Centres, the Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel and the Vancouver Rape Relief Society: University of British Columbia, Vancouver; Fay Faraday, Toronto.

Solicitors for the interveners the Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada: Bennett Jones, Toronto.

Solicitors for the intervener the David Asper Centre for Constitutional Rights: Arvay Finlay, Vancouver; David Asper Centre for Constitutional Rights, Toronto.

Solicitors for the intervener the Simone de Beauvoir Institute: Desrosiers, Joncas, Massicotte, Montréal.

Solicitors for the intervener the AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution: Foy Allison Law Group, West Vancouver.

Solicitor for the intervener Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.




[1] The focus is on security of the person, not liberty, for three reasons. First, the Prostitution Reference decided that the communicating and bawdy-house provisions engage liberty, and it is binding on this point. The security of the person argument is a novel issue and an important reason why the application judge was able to revisit the Prostitution Reference. Second, it is not clear that any of the applicants’ personal liberty interests are engaged by the living on the avails provision; rather, they have pleaded that they fear that it could apply to their employees or their loved ones. Lastly, it seems to me that the real gravamen of the complaint is not that breaking the law engages the applicants’ liberty, but rather that compliance with the laws infringes the applicants’ security of the person.

Date: 20131122 Docket: CSIS-30-08 Citation: 2013 FC 1275

Date: 20131122
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:

[xx xxx xx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxx]


[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:
  Page: 45
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:

 [











  Page: 46














 ]

[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
  Page: 47
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
  Page: 48
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,
  Page: 49
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
  Page: 50
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

Classified Further Reasons for Order were issued on November 22, 2013, by the Honourable Justice Richard Mosley in file: IN THE MATTER OF an application by [XXX] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act]; AND IN THE MATTER OF [XXX]

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

Target hackers got card PINs too Computer hackers were able to steal 40 million card numbers but also passwords, retailer reveals but Data is encrypted.

Target said Friday that debit-card PINs were among the financial information stolen from millions of customers who shopped at the retailer earlier this month.
The company said the stolen personal identification numbers, which customers type in to keypads to make secure transactions, were encrypted and that this strongly reduces risk to customers. In addition to the encrypted PINs, customer names, credit and debit card numbers, card expiration dates and the embedded code on the magnetic strip on back of the cards were stolen from about 40 million credit and debit cards used at Target stores between Nov. 27 and Dec. 15.



Security experts say it's the second-largest theft of card accounts in U.S. history, surpassed only by a scam that began in 2005 involving retailer TJX Cos.

Target said it doesn't have access to nor does it store the encryption key within its system, and the PIN information can only be decrypted when it is received by the retailer's external, independent payment processor.

"We remain confident that PIN numbers are safe and secure," spokeswoman Molly Snyder said in an emailed statement Friday. "The PIN information was fully encrypted at the keypad, remained encrypted within our system, and remained encrypted when it was removed from our systems." The company maintains that the "key" necessary to decrypt that data never existed within Target's system and could not have been taken during the hack.

However, Gartner security analyst Avivah Litan said Friday that the PINs for the affected cards are not safe and people "should change them at this point."

Data is encrypted

Litan said that while she has no information about the encrypted PIN information in Target's case, such data has been decrypted before, in particular the 2005 TJX Cos. hacking case that's believed the largest case of identity theft in U.S. history.

In 2009 computer hacker Albert Gonzalez plead guilty to conspiracy, wire fraud and other charges after masterminding debit and credit card breaches in 2005 that targeted companies such as T.J. Maxx, Barnes & Noble and OfficeMaxe. Gonzalez's group was able to decrypt encrypted data. Litan said changes have been made since then to make decrypting more difficult but "nothing is infallible."

"It's not impossible, not unprecedented (and) has been done before," she said.

Besides changing your PIN, Litan says shoppers should opt to use their signature to approve transactions instead because it is safer.

Still, she said Target did "as much as could be reasonably expected" in this case. "It's a leaky system to begin with," she said.

Credit card companies in the U.S. plan to replace magnetic strips with digital chips by the fall of 2015, a system already common in Europe and other countries that makes data theft more difficult.

Minneapolis-based Target Corp. said it is still in the early stages of investigating the breach. It has been working with the Secret Service and the Department of Justice.