Date: 20071022
Docket: SCRS-
10-07
Citation: 2008
FC 301
Ottawa,
Ontario, October 22, 2007
PRESENT:
The Honourable Mr. Justice Blanchard
DANS L'AFFAIRE d'une
demande de mandats
faite par en
vertu des articles 12 et 21
de la Loi sur le Service
canadien du renseignement
de sécurité, L.R.C. (1985), chap. C-23
ET DANS L'AFFAIRE visant le
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to sections 12
and 21 of the Canadian Security Intelligence Services Act, R. S 1985, c.
C-25(the Act), for a warrant in respect of 10 subjects. The warrant powers
sought relate to investigative activities in countries other than Canada. The
subjects of investigation are currently named in certain warrants in
application SCRS-10-07 which
I granted on April 25, 2007, in relation to the Canadian Security Intelligence
Service (the
Service or CSIS)
investigation of The warrants
issued in April are for investigative activities within Canada and are valid
for a period of one year from May 1, 2007 to April 30, 2008. All
subjects of investigation, except for one, are
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Canadian citizens, permanent
residents or refugees. The exception is a foreign national
[2]
At the time I issued the warrants on April 25, 2007, I was satisfied of
the matters referred to
in paragraphs 21(2)(a) and (b) of the Act
based on the information provided in the April 19, 2007 affidavit of sworn in support of the application. The only
issue remaining to be determined, and which
will be dealt with in these reasons, is the question of whether this Court can
issue the extraterritorial warrant sought.
[3]
At the time I
issued the initial warrants in application SCRS-10-07, I was not prepared to
authorize investigative activities by the Service outside Canada as requested,
without further consideration. To that end, I appointed Mr. Ron Atkey, Q.C., to
serve as Amicus
Curiae (the Amicus)
on the application and requested that both 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 has jurisdiction, to issue
the warrant requested.
[4]
Upon reviewing
the written submissions filed and the relevant jurisprudence and upon hearing Counsel on behalf of the Service and the
Amicus at an ex parte in camera hearing held on June 19, 2007, I determined that
further submissions from the Service and the Amicus were required. Since the
filing of the within application, the Supreme Court of Canada decided R. v. Hape, 2007 SCC 26 on June 7, 2007.
Following my review of Hape, I
thought it useful to seek
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further written submissions and, as a
consequence, directed the Service and the Amicus to answer the following
questions:
(i) On what basis or foundation does the Court then issue
a warrant which admittedly would not be enforceable outside Canada and which
would likely involve the authorization of illegal
activity in the host state? More specifically, what would be the purpose
of seeking such a warrant?
Further,
if such Parliamentary intent can be established and pursuant to section 21 of
the Act, it can be construed to provide the
Court authority to issue such extraterritorial warrants, should the
Court be engaged in the issuance of such warrants, which would not be enforceable
outside Canada, and which would likely
involve the authorization of illegal activity in the host state?
[5]
Both the Service
and the Amicus filed supplementary submissions which I considered before
deciding the application.
Preliminary Issue
[6]
In
June 2005, the Service filed application CSIS-18-05. An application for a
warrant pursuant to sections 12 and 21 of the Act which raised the same
questions of law as the present application.
[7]
My colleague, Mr. Justice Simon Noel, who was seized of
that matter, had appointed Mr. Ron Atkey, Q.C., to serve as Amicus in that
proceeding. Justice Noel raised a preliminary issue as to
whether the question of law could be dealt with in a public hearing. After
receiving written and oral submissions on the issue from Counsel for the Deputy
Attorney General of Canada and the Amicus, the learned judge concluded that the
hearing of the application should
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be conducted in private.
Comprehensive reasons for that decision were filed and have not yet been made
public.
[8]
On August 23, 2006, a notice
of discontinuance in relation to application CSIS 18-05 was
filed by Counsel for the Deputy Attorney General of Canada.
[9]
Upon the filing of the within application, the same legal issues in
respect to extraterritorial warrants raised in CSIS-18-05
were again before the Court. I raised the issue of whether the question of law could be dealt with in
a public hearing. Both the Amicus and Counsel
for the Attorney General of Canada were of the view that the question had been
decided by Justice Noel and were content to accept his decision as deciding the
issue for the purpose of this application.
[10]
I have reviewed Justice Noel's
Reasons for Order and Order in application CSIS-18-05. I agree with his decision and his reasons.
Consequently, I am also of the view that the hearing of this application
is to be conducted in private.
[11]
I now turn to the
substantive issues raised in this application.
Issues
[12]
In my view, the
following issues are raised in this application:
(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, R.S.C. 1985, c. C-46
(the Code) of Canada and the Canadian Charter of Rights and Freedoms,
Schedule B, Part 1 to the Canada
Act 1982 (U.K.) 1982, c. 11
(the Charter) apply to activities of the Service and its agents in undertaking threat-related
investigations in a country other than Canada?
(D)
Can the Canadian Security Establishment (C SE) assist the Service in the
execution of the warrant
sought?
[13]
In my considered opinion, for reasons that follow, I conclude that the
answer to the first issue is in the negative. It is therefore unnecessary to
deal with the other issues raised. I will nevertheless deal with the third
issue stated since it is the central focus of the Service's submissions before the Court.
The warrant
sought
[14]
The Service seeks a warrant authorizing the Director of the Service
(the Director) and any person under his authority to intercept any
telecommunication destined to or originating from the subjects of investigation, to obtain
information or record relating to the targets
[15] The Service further requests
that the warrant provide that it may be executed at:
[16]
Finally, the warrant sought would provide that, for the above purposes,
the Service and its
agents may: (i) install, maintain or remove any thing
(ii) install, maintain or remove any
thing o
obtain access to, search
for, examine, take extracts from, make copies of, or otherwise record
the information; and (iii) install, maintain or remove any thing
to obtain access
to, search for, examine, take excerpts from, make copies of, or otherwise record the information.
Does the Federal Court have
jurisdiction to issue the warrant requested?
[17]
Before beginning my analysis,
I propose to review the applicable statutory framework regarding the issuance of warrants under the Act and the respective
positions of the Service and the Amicus on this issue.
[18]
Section 12 of the Act outlines
the Service's mandate and provides that it 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
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constituting
threats to the security of Canada. The Service is further required to advise
and report to the Government in respect to such activities. "Threats to
the security of Canada" are defined at section 2 of the Act and include
"activities within or relating to Canada directed toward or in support of the threat" (my
emphasis).
[19] The Court's role with respect to the issuance of warrants is stated
at section 21 of the Act. Where the
Director of the Service believes, on reasonable grounds, that a warrant is
required to enable it to investigate a
threat to the security of Canada or to perform its duties under section 16, the Director may, with the approval
of the Minister, apply to the Court for a warrant. Subsection 21(2) of the Act
sets out the information that must be provided on a warrant application.
Subsection 21(3) provides that "[n]notwithstanding any law but subject to
the Statistics Act", upon being satisfied that the
requirements in subsection 21(2) are met, a Judge may issue a warrant for the following
purposes:
a)
l'accès à un lieu ou
un objet ou l'ouverture d'un
objet;
b) la recherche,
l'enlèvement ou la remise en place de tout document ou objet, leur
examen, le prélèvement des informations qui s'y
trouvent, ainsi
que leur enregistrement et l'établissement de copies ou d'extraits par tout procède;
c)
l'installation, l'entretien et l'enlèvement
d'objets (je souligne).
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[20]
Subsection 21(4) requires that the type of communication authorized to be
intercepted, the type of information, record or thing to be obtained, the persons or
classes of persons to whom the warrant is directed, a general description of
the place where the warrant may be executed and other terms as the Judge
considers advisable in the public interest must be included in the warrant.
[21]
The full text of the above provisions of the Act and other pertinent
provisions are reproduced
and attached to these reasons as Schedule "A".
Position of
the Service and Amiens
[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 an extraterritorial
reach.
[23]
The Service further contends that the warrant is
required to ensure that Canadian agents engaged in executing the warrant abroad
do so in conformity with Canadian law. The Service maintains that the warrant
is required to judicially authorize activities that, absent the 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
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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.
[24]
The Service submits that the scope of the Supreme Court
of Canada decision in Hape, cited above, is
unclear. In particular, it is unclear as to whether the decision was intended
to apply to the conduct of security intelligence
investigations outside Canada where those investigations involve persons having
a real and substantial connection to Canada, as in this case.
[25]
More particularly, the Service submits that the decision
in Hape does not stand for the broad proposition that, absent the consent of a
foreign state or a principle of international law as contemplated by the
Supreme Court of Canada, the Charter does not apply to any search and seizure by Canadian officials in a foreign state. Rather, it
contends that Hape was based on the
facts of that case and the principles of international law at play in the fight
against transnational criminal activity, which include international
cooperation and the comity of nations. It is argued that, here, different
principles are at play. In matters of national security, the state always
reserves the right to "go at it alone". A state's authority to
investigate threats to its national security, by whatever means the state
considers appropriate, can never be dependent on first securing the consent of
another state, be it the state implicated in the threat or the state in which an individual
who is implicated in the threat may be situated.
[26]
To the extent that the scope of Hape is unclear, the Service argues a possibility exists that the security
intelligence investigations outside Canada may raise Charter issues where those
investigations
implicate persons having a real and substantial connection to Canada, as in
this
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case. The Service submits that the
majority in Hape did not expressly or by necessary
implication foreclose consideration of the Charter's application in the context
of security intelligence investigations outside Canada.
[27]
The Service further submits
that customary international practice as it relates to intelligence gathering
operations in a foreign state constitutes an overriding principle of
international law that affords a basis on which to find that the Charter was
intended to apply, and does apply, to security intelligence investigations
outside Canada. The Service, however, produced neither evidence nor authority
in support of this argument.
[28]
The Service also contends that
the enforceability of a warrant in a foreign state or the legality of
investigative conduct in a foreign state is irrelevant to the issuance of a
warrant pursuant to section 21 of the Act. In the Service's submission,
subsection 21(3) of the Act authorizes the Court to issue warrants
"notwithstanding any other law but subject to the Statistics Act." It
is said that "any other law" includes international law. In support
of this proposition, the Service cites the
following passage from the secret reasons of Mr. Justice Heald in application CSIS 4-84
issued on December 27, 1984:
Subsection
21(3) authorizes the Court to issue warrants thereunder "Notwithstanding any other law but subject to the Statistics Act ...” The sweep
of the language used is clear. It surely confers paramountcy over any other law
including the existing customary international law and subject only to one
statute namely the Statistics Act. I think it crystal clear and without doubt that Parliament has expressed an unambiguous intention
in the Canadian Security Intelligence Service Act to provide the
Director with the powers contained therein to provide for the security of
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Canada, notwithstanding the
principles of customary international law.
I note that Justice Heald's decision related to an entirely different
factual context.
The
circumstances here are significantly
different.
[29]
The Service
adopts the position that it is not asking the Court to authorize a violation of
foreign law, although it acknowledges that the activities to be authorized by
the warrant are likely to constitute a violation of foreign law. It also
acknowledges that the Federal Court has no jurisdiction to authorize such
activities on foreign soil and that the warrant sought on this application is
not "enforceable" in the foreign jurisdiction.
[30]
The Service
submits that the existing statutory scheme under the Act provides the necessary authority for the Court to issue such
warrants. Subsection 21(3) of the Act, provides that a Judge, upon being
satisfied that the conditions in subsection 21(2) of the Act are met, may issue a warrant authorizing certain investigative
activities. Since the empowering provision has no territorial
limitation; the Service maintains that a Judge of this Court has the
jurisdiction to issue the warrant.
[31]
The Amicus agrees
with the proposition advanced by Counsel for the Service that there is
no territorial limitation on the
activities of CSIS related to the collection, analysis and retention
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of information respecting threats to the security of
Canada as set forth in section 12 of the Act. According to the Amicus, it
follows that any application for a warrant under section 21 of the Act, which is "to enable the Service to investigate a threat to the
security of Canada", may extend to investigative
activities of CSIS outside Canada. However, the Amicus adopts the position that
given the current state of the law, the Service could not execute a warrant
obtained under section 21 of the Act and exercise its information gathering
powers in another country unless the Service had obtained the permission of the
country where the targets of the warrants reside or was a party to a treaty or
agreement covering exercise of its powers in that other country. The Amicus
contends that absent such a permission or treaty, the Service would be in
violation of international law should its agents or officers attend another
country to execute a warrant issued under section 21 of the Act and intercept
communications. The Amicus points to section 17 of the Act which provides for
the Service, with ministerial approval, to enter into cooperation agreements
with foreign states for the purpose of performing its duties and functions
under the Act. No such agreements are in evidence in respect of the intended
investigative activities abroad covered under the warrant application.
[32]
In his initial written submissions, the Amicus cites the
following cases by the Supreme Court of Canada in support of his
arguments.
[33]
R.
v. Harrer, [1995] 3 S.C.R.
562, is cited for the proposition that section 32 of the Charter restricts its
application to matters within the competence of the legislative bodies of the
governments of Canada and the provinces. The Charter therefore finds no
application in foreign states.
[34]
The Amicus cites R. v. Cook,
[1998] 2 S.C.R. 97, for the
proposition that if a state permits Canada to enforce its law within its
territory for limited purposes, the Charter would apply. In Cook, the Supreme Court
of Canada found that notwithstanding the general prohibition in international
law against extraterritorial application of domestic law, the Charter can, in certain rare circumstances, apply
beyond Canada's borders. The Court found that such circumstances arise where
"...the impugned act falls within the scope of subsection 32(1) of the
Charter on the jurisdictional basis of the nationality of the state law
enforcement authorities engaged in governmental action, and where the
application of Charter standards will not conflict with the concurrent
territorial jurisdiction of the foreign state" (See Cook at paragraph 48).
Analysis
[35]
The Service, in
its submissions to the Court, speaks of the "enforceability" of the
warrant. This is misplaced and potentially
confusing use of language. In contrast to laws that are enforced,
warrants are executed. The warrant powers sought are essentially directed at
collecting information and intelligence. It
is acknowledged by all concerned that while such warrants may be issued
in Canada, the Court has no jurisdiction in respect to the execution of the
warrant in a foreign state. What matters, for our purpose, is whether the Court
has the authority to issue the warrant for investigative activities which are
intended to be executed in a foreign state. The answer must be found in the
enabling statute, to which I now turn.
[36] The
Service contends, based on its argument which I summarized in paragraphs 22, 27
Page: 14
and as a
consequence, the Court's warrant oversight authority under section 21 of the
Act also extends extraterritorially. As a result, the Service argues that the
Court has authority pursuant to section 21 of the Act, to issue the
warrant sought.
[37]
The Act does not expressly provide an extraterritorial
mandate for the Service to engage in investigative activities in the nature of
the activities sought to be authorized by the warrant. Section 21 of the Act,
which provides for the Court's warrant oversight, also contains no express
provision vesting the Court with jurisdiction to authorize such
extraterritorial activities. Both sections 12 and 21 are silent on the issue of
territoriality. The question to be resolved is whether, in the absence of
express statutory authority for the Service to engage in the extraterritorial activities at issue, the Court has jurisdiction to issue a warrant authorizing
extraterritorial activities. To answer this question, I
turn to the established principles of statutory interpretation.
[38]
In order to construe the applicable provisions that
concern us, it is useful to turn to the modern principle of statutory interpretation
as articulated by Professor Driedger, in Sullivan and Driedger on the Construction of Statutes, 4th ed.
Markham, Ont.: Butterworths, 2002 at p.1 and 10
and which provides that the "words of an Act are to be read in their
entire context, in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act and the intention of Parliament."
This principle is often cited and relied upon by Canadian courts. It was
declared to be the preferred approach of the Supreme Court of Canada in Re Rizzo and Rizzo Shoes
Ltd., [1998] 1 S.C.R. 27, at 41. The modern
principle guides us in determining whether the meaning of the legislative text
is plain or ambiguous. If the text has plain meaning, then extra-textual
evidence of legislative intent, such as legislative history and international
law,
Page: 15
will be inadmissible to contradict
that plain meaning. If however, the text is ambiguous or uncertain, then
extra-textual factors may be considered in interpreting the legislative text.
The question to be determined here is whether it can be inferred from the plain
meaning of applicable provisions, read in their entire context, that the Court
has the jurisdiction to issue the warrant sought.
[39] In construing the applicable
legislative provisions, I have considered the following factors:
(i) The express territorial limitation in section 16
of the Act which provides for the collection of information concerning foreign
states and persons "within Canada";
(ii) The absence of express territorial
limitation in section 12 which provides for the collection, analysis and retention of information and
intelligence relating to threats to the security of Canada;
(iii) The definition of "threats to the security
of Canada" provided for in section 2 of the Act, which includes: "(c)
activities within or relating to
Canada directed toward or in support of the threat or use of acts
of serious violence against persons or property for the purpose of
achieving a political, religious or ideological objective within Canada or a
foreign state", (my emphasis); and
(iv) The absence of any territorial reference
in section 21 of the Act, the section which provides
for judicial control on warrant applications. The Service contends that
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16
the
Court's oversight role should therefore extend to the Service's section 12
mandate, which it argues is extraterritorial in scope.
Upon
considering the applicable provisions of the Act and the above factors, I am
unable to attribute a plain, or sufficiently clear, meaning to the provisions
in terms of their extraterritorial application. While the language of the
legislative text may allow for an inference to be drawn in respect to a mandate for the Service to conduct
certain activities extraterritorially, that inference is not
sufficiently obvious to provide a basis to conclude that the Service has a
clear mandate to conduct the activities sought to be authorized in the warrant
in countries other than Canada, and that the Court has jurisdiction to
authorize such activities. In my view, such a construction cannot be taken or
implied from the applicable provisions of the Act, read together.
[40]
Flowing from this lack of clarity, I will now turn to certain extra-textual
factors to assists in interpreting the legislative provisions. I will
first deal with legislative history. The Service adduced two specific excerpts from the McDonald Commission (see Schedule
"B") in support of its position and which recommend that the security
intelligence agency should (i) not be required to confine its
intelligence collection and countering activities to Canadian soil and (ii) be
permitted to carry out certain investigative activities abroad. I have included
the two excerpts in Schedule "B" as well as other
recommendations of the McDonald Commission which outline a "clear and
effective system of control" to ensure that the conduct of such activities
is always within the mandate of the agency. It is interesting to note that many
of these recommendations regarding controls were not included in subsequent
legislation.
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[41]
While this information might
be of historical interest, what matters for our purpose is Parliament's intention. The only evidence adduced
from proceedings in the House of Commons in respect to Bill C-9, the
precursor to the Act, is reported in minutes of Proceedings and Evidence of the
Standing Committee on Justice and Legal Affairs, 2nd
Sess., 32nd Parl., No. 9 (April 2, 1984) at 9:25. The then
Solicitor General, Robert Kaplan, in response to a question respecting
extraterritorial activities of the Service stated:
There
is no statutory requirement that the entire activities of the Security
Intelligence Service be performed in Canada. I think that would be unduly
inhibiting. If for example – and this is very common, and you know it... an
individual who is under surveillance, or who is a source of the Security
Service, has some purpose for leaving the country in relation to the activities
the security Service is interested in putting under surveillance, they may very
well want to become aware of what he does on his trip.
This
evidence is insufficient to permit an inference to be drawn that Parliament
intended the Service to be provided with a mandate to conduct investigative
activities in the nature of those contemplated in the warrant sought to be
authorized. Further, the evidence is silent in respect to the Court's
jurisdiction to authorize such activities. Based on the limited evidence before
me, the legislative history fails to
establish a clear intention by Parliament in respect to the extraterritorial
reach of the Service's activities in a country other than Canada, and
particularly regarding the Court's role in authorizing such activities.
[42]
I will now turn
to the principles of international law as a guide in construing the legislation.
It is argued that the applicable legislative provisions here provide for
judicial authorization of investigative activities in a country other than
Canada. To that end, the legislation has an extraterritorial effect and can be
said to be extraterritorial legislation. The
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activities sought
to be authorized by the warrant, fall under Canada's enforcement or adjudicative jurisdictions as defined
by the Supreme Court in Hape, at paragraph 58.
[43]
Justice LeBel equates "executive or
enforcement" jurisdiction to "investigative" jurisdiction, which refers to the ability of the police "or other
government actors" to investigate a matter. The Service and its agents in
conducting the investigative activities in a foreign state can therefore be
said to be acting under Canada's investigative jurisdiction.
[44]
The Service may also be operating under the adjudicative
jurisdiction of the state, which refers to the
Court's power to resolve disputes or interpret the law through binding
decisions. Here, the warrant is issued pursuant to a Court decision.
[45]
In construing the applicable provisions of the Act in
circumstances that involve investigative
activities in countries other than Canada, the Supreme Court of Canada teaches
that the principles of international law need be considered. The Court has
repeatedly confirmed the relevancy of international law norms and values in the
interpretation of domestic law. (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] SCC 1; R. v.
Sharpe, [2001] 1 S.C.R. 45; 114957 Canada Ltée. V. Hudson
(Town), [2001] 2 S.R.C. 241)
[46]
At paragraph 53 of its reasons in R. v. Hape, the Court affirmed the well established principle of statutory interpretation that legislation is presumed to
conform to international law. The Supreme Court explained that this presumption
of conformity is based on the rule of judicial
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policy that, as a
matter of law, a court will strive to avoid construction of domestic law
pursuant to which the state would be in violation of its international
obligations, unless the wording of the statute clearly compelled that result.
It is expected that "...in deciding between possible interpretations,
courts will avoid a construction that would place Canada in breach of those
obligations."
[47]
The Supreme Court
of Canada also affirmed that the principle of international comity which
"induces every sovereign state to respect the independence and dignity of
every other sovereign state," will
bear on the interpretation of our laws — "statutory and
constitutional" — where such laws could have an impact on the
sovereignty of other states. (See Hape at paragraphs 47 and 48.)
[48]
In Hape, the Supreme Court of Canada also adopts the
proposition that customary rules of
international law are directly incorporated into Canadian domestic law unless
explicitly ousted by contrary legislation. Justice LeBel, writing for
the majority, states that Parliament may violate international law, "but
it must do so expressly". At paragraph 39 of his reasons for judgment he
writes:
39. ... In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada
such that prohibitive rules of customary international law should be
incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such
rules is justified on the basis that international custom, as the law of
nations, is also the law of Canada unless, in a valid exercise of its sovereignty.
Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may
violate international law, but that
it must do so expressly. Absent
an express derogation, the courts may look to prohibitive rules of
customary
Page: 20
international law to aid in the interpretation of
Canadian law and the development of the
common law (my emphasis).
[49]
In Hape, at paragraph 68, the Supreme Court of Canada further
declares that Parliament's "clear
constitutional authority" to enact legislation with extraterritorial
effect is informed by the "binding customary principles of International
law", which prohibit interference with the sovereignty and domestic
affairs of other states. At paragraphs 45 of his reasons, Mr. Justice LeBel
writes:
45.
... Each state's exercise of sovereignty within its territory is dependent on the right to be free from intrusion
by other states in its affairs and the duty of every other state to refrain
from interference.
[50]
The intrusive activities that are contemplated in the warrant sought are
activities that clearly impinge upon
the above stated principles of territorial sovereign equality and nonintervention.
Further, the activities are likely to violate the laws of the jurisdiction
where the investigative activities are to occur. This is not disputed by the
Service. The Amicus maintains that there is no evidence which would allow the
Court to make such a determination. In my view, to require such evidence to be
adduced would be to place a heavy burden on the Service. The Service intends to
execute the warrant wherever the targets are located. Understandably, no
specific foreign state is identified in the application since the Service is
likely unable to predict where these targets may travel once they leave Canada.
It is therefore difficult, if not impossible; to lead evidence as to the
legality of the investigative activities sought to be authorized in a given jurisdiction
at the application stage, since no foreign state is identified.
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[51]
Among
the powers sought to be authorized under the warrant are: the ability to obtain
access, install any thing search
for, examine, take excerpts, make
copies of, or otherwise record information. Given the intrusive nature of the
activities at issue, it is reasonable to infer that the activities are likely
to violate the laws of the jurisdiction(s) where the warrant is to be executed.
In any event, absent consent of the foreign state,
the investigative activities at issue impinge upon the territorial sovereignty
of the foreign state.
[52]
By
authorizing such activities, the warrant would therefore be authorizing
activities that are inconsistent with and
likely to breach the binding customary principles of territorial sovereign
equality and non-intervention, by the comity of nations. These prohibitive
rules of international law (Hape at paragraph
39) have evolved to protect the sovereignty of nation states against interference from other states. Antonio
Cassese, a renowned international law jurist, cited in Hape, referred to
the "sovereign equality of nations" as "...the linchpin of the
whole body of international legal standards,
the fundamental premise on which all international relations rest." As
stated earlier in these reasons, these "prohibitive rules of customary
international law" are directly incorporated into Canadian domestic law.
[53]
The
Service argues that the principles of international law at play in matters of
national security are different and that the customary international practice
as it relates to intelligence gathering operations in a foreign state
constitutes an overriding principle of international law that affords a basis on which to find that the Charter
was intended to apply, and does apply, to security intelligence
investigations outside Canada. I am not persuaded that in the national
Page:
22
security context, the practice of
"intelligence gathering operations" in foreign states is recognized
as a "customary practice" in international law. Again, no evidence or
authority was adduced in support of this contention. I will deal with the
Service's Charter arguments later in these reasons.
[54] As stated in Hape at paragraph 65,
extraterritorial jurisdiction is governed by international law rather than being at the absolute discretion of the
individual state. Extraterritorial
jurisdiction, prescriptive, enforcement or adjudicative, exists under
international law and is subject to the strict limits under international
law based on sovereign equality, nonintervention and the territorial
principle. As discussed earlier in these reasons, it is well-established that a
state's laws cannot apply within the territory of another state absent either
the consent of that state, or in exceptional
cases, some other basis under international law. (See Hape at paragraph 65).
No other basis under international law has been put before me that would
warrant displacing the above stated principles of sovereign equality,
non-intervention and territoriality recognized by the Supreme Court of Canada
as a "binding customary principle of international law".
[55] In construing
the applicable provisions of the Act, I am guided by the principle of statutory
interpretation that legislation is presumed to conform to international law.
Applying the above stated principles, I am
unable to construe the applicable provisions of the Act, as drafted, as
providing the Court with a jurisdictional basis to issue the warrant sought. To
do so would require that I read into the applicable provisions of the Act, a
jurisdiction for the Court to authorize activities that violate the above
stated principles of customary international law. As
Page: 23
stated earlier
in these reasons, such a mandate must be expressly provided for in the Act.
Given the principles of law in play, and guided by the teachings of the Supreme
Court of Canada in Hape, I am left to
conclude that, absent an express enactment authorizing the Court to issue an extraterritorial warrant, the Court
is without jurisdiction to issue the warrant sought.
[56]
My above finding is determinative of the application. I will
nevertheless now turn to the arguments
raised by the Service in respect to the extraterritorial application of the
Charter and the Code in the context of the warrant sought. These arguments were
the main focus of the Service's submissions before the Court.
[57]
The Service's main contention in this application is that the warrant
sought is required to ensure that
Canadian agents engaged in executing the warrant abroad do so in conformity
with Canadian law since the impugned investigative activities may, absent the
warrant, breach the Charter and contravene the Code. I will address first the
Charter and the Service's position that the majority in Hape did
not expressly or by necessary implication foreclose consideration of the Charter's
application in the context of security intelligence investigations outside
Canada.
[58]
The Charter serves as a constitutional instrument to enshrine rights. It
does not endow any powers. Canadian
law is subject to the Charter, and may be challenged in circumstances where its
application impinges Charter rights. Charter issues arise only with the
application of Canadian law. In Hape, the Supreme Court of Canada confirmed that the
Charter is subject to the same jurisdictional limits as Canada's other
laws. It concluded that Canadian law is
Page: 24
unenforceable in another state's
territory without that state's consent. At paragraph 69 of its reasons, Mr.
Justice LeBel wrote:
69. As
the supreme law of Canada, the Charter is subject to the same jurisdictional limits as the country's other
laws or rules. Simply put, Canadian law, whether statutory or constitutional,
cannot be enforced in another state's territory without the other state's
consent. This conclusion, which is consistent with the principles of
international law, is also dictated by the words of the Charter itself. The Charter’s territorial limitations are
provided for in s. 32, which states that
the Charter applies only to
matters that are within the authority of Parliament or the provincial
legislatures. In the absence of consent, Canada cannot exercise its enforcement
jurisdiction over a matter situated outside Canadian territory. Since effect
cannot be given to Canadian law in the circumstances, the matter falls outside
the authority of Parliament and the provincial legislatures.
[59]
The
issue before the Court in Hape concerned the
application of the Charter to investigations
conducted by Canadian officers outside Canada. The Service argues that the case
can be distinguished since Hape involved a
criminal investigation, and in this case the investigative
activities are not intended to gather evidence for a criminal prosecution, but
rather to enable the Service to carry out its mandate as provided for in
the Act.
[60]
I am not convinced that Hape can be so easily distinguished. While it is true that Hape did not deal
with security intelligence investigations outside Canada, and that the
objective or ultimate purpose of the investigative activities may be different,
the investigative activities of the Canadian police officers in Hape and those
intended by agents of the Service pursuant to the warrant sought both engage
the "investigative jurisdiction" of the Canadian state.
Page:
25
[61]
In
my view, the pronouncements in Hape articulate
the current state of Canadian law on its applicability, including the Charter,
on matters that arise as a result of the extraterritorial investigative jurisdiction of the Canadian state.
In Hape, the Supreme Court of Canada provided the following
guidance in respect to the distinctions to be drawn between prescriptive,
enforcement or investigative and adjudicative jurisdictions of the state:
58.
... Prescriptive jurisdiction (also called legislative or substantive
jurisdiction) is the power to make rules, issue commands or grant
authorizations that are binding upon persons and entities. The legislature
exercises prescriptive jurisdiction in enacting legislation. Enforcement
jurisdiction is the power to use coercive means to ensure that rules are
followed, commands are executed or
entitlements are upheld. As stated by S. Coughlan et al. in "Global
Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization" (2007), 6 C.J.L.T. 29, at p.32,
'enforcement or executive
jurisdiction
refers to the state's ability to act in such a manner as to give effect to its
laws (including the ability of police or other government actors to investigate
a matter, which might be referred to as investigative
jurisdiction)' (emphasis in original). Adjudicative jurisdiction is the power of
the state's courts to resolve disputes or interpret the law through decisions
that carry binding force. See Cassese, at p.49; Brownlie, at p.297.)
[62]
The warrant powers sought here may not be directed at
enforcement per se, but do concern activities directed at the
collection of information by "investigation or otherwise", which are
activities that fall clearly within the "enforcement" or
"investigative" jurisdiction of the Canadian state. Consequently,
these activities occurring in a foreign state impinge upon the territorial
sovereignty of that state. Absent consent, Canadian law, particularly as it
relates to the "investigative jurisdiction", cannot apply to such
investigative activities conducted in another state's territory. It therefore
follows in these circumstances that section 8 of the Charter which protects
against unreasonable search and seizure, can find no application.
[63]
As for the Service's position that a warrant is
required to protect its agents against potential
criminal charges in Canada which might result from the impugned activities, the
Service fails to point to any
specific provision of the Code that would expressly extend its application to
the impugned activities occurring outside Canada's territory and thereby
exposing the Service or its agents to the risk of such a prosecution. I can
find no such provision. Again, as with
the Charter, in the absence of consent, Canada cannot enforce the Code over
matters situated outside Canadian
territory. In the circumstances, I fail to see why the warrant sought would be
required for the stated purpose of protecting the Service or its agents from
prosecution under the Code.
[64]
Even if the Service could establish that it has an extraterritorial
mandate to collect, retain and
analyze information and intelligence, and that its stated reasons for requiring
the warrant are well-founded, this would not, in my view, give the Court
jurisdiction to issue the warrant sought. The investigative activities which
are sought to be authorized by the warrant are activities which are inconsistent with and likely to breach the
binding customary principles of territorial sovereign equality and non-intervention. As stated earlier in these
reasons, while Parliament may have jurisdiction to enact laws with
extraterritorial application, it must do so in clear and express terms. In
instances where Parliament has opted to extend the reach of Canadian law
extraterritorially, it has done so in express terms. The Code contains several
examples of Parliament using express language to extend the reach of Canadian
law extraterritorially. I set out below several of these examples.
Page: 27
[65]
In dealing with
offences committed on an aircraft, paragraph 7(2) (a) of the Code explicitly recognizes that an act or omission
committed outside Canada is an offence that "shall be deemed
to have [been] committed ... in Canada." (My emphasis.)
[66]
Similarly, paragraph 46(3) (a) of the Code states
that high treason takes place whenever a Canadian citizen, “while in or out of Canada ..." does
anything mentioned at subsection (1) (my emphasis). Again, express language is
used to recognize acts committed outside of Canada.
[67]
Another example is that of forgery and uttering forged
passports. Paragraph 57(1) (a) of the Code states "every one who, while in or out of
Canada, forges a passport ... is guilty of an indictable offence.” (my emphasis). In the same way, subsection 74(2) of the Code, which deals with piracy, states that "[e]very one who commits piracy while
in or out of Canada is guilty of an indictable offence ..." (my
emphasis).
[68]
Finally, subsection 465(4) of the Code discusses the issue of
conspiracy and uses the same
express language when it states " [e]very one who, while in a place
outside Canada, conspires with any one to do anything referred to in
subsection (1) shall be deemed to have conspired in Canada ..." (my
emphasis).
[69]
The above examples reveal that where Parliament elected to
provide for the application of Canadian law to
events occurring extraterritorially, it has done so expressly. It seems to me that a heightened
requirement for clarity by Parliament arises in circumstances where the statute
seeks to provide for activities that would in all likelihood violate the
binding principles of
Page: 28
customary
international law, which are incorporated in Canadian law. To accept less in
relation to
investigations, risks undermining public confidence in the justice system and
in the judiciary whose primary function is to uphold the law.
[70]
In
respect to the issue of whether CSE can assist in the execution of the warrant,
while I find the arguments by the Service to be persuasive, given my above
determinative findings regarding the Court's
jurisdiction, it is my view that it is not necessary to decide the issue at
this time.
Conclusion
[71]
For the above
reasons, I find that this Court is without jurisdiction to issue the warrant
sought. Accordingly, the application will be dismissed.
[72]
Both
the Service and the Amicus shall, within twenty days of the date of the Order
issued with these reasons, make submissions to the Court in respect of whether
these Reasons for Order and Order, or any portion thereof, should be made
public. After considering the submissions, I shall
determine whether the Reasons for Order and Order, or an expurgated version
thereof shall be made public.
Page: 29
ORDER
THIS COURT ORDERS that:
The application for a warrant
authorizing investigative activities in countries other than Canada is
dismissed.
The Service and the Amicus shall
within twenty days of the date of the Order issued with these reasons, make submissions
to the Court in respect of whether these Reasons for Order and Order, or any
portion thereof, should be made public.
Edmond P. Blanchard
Judge
Page: 30
2.
Les definitions qui suivent s'appliquent à la présente loi.
«menaces envers la sécurité du Canada »
Constituent des menaces envers la sécurité du Canada les activités suivantes :
a)
l'espionnage
ou le sabotage visant le Canada ou préjudiciables
a ses intérêts, ainsi que les activités tendant à favoriser ce genre
d'espionnage ou de sabotage;
b)
les activités influencées par l'étranger qui touchent le Canada ou s'y déroulent et sont préjudiciables a ses intérêts, et qui
sont d'une nature clandestine ou trompeuse
ou comportent des menaces envers quiconque;
c)
les activités qui touchent le Canada ou s'y déroulent et visent a favoriser
l'usage de la violence grave ou de menaces
de violence contre des personnes ou des biens dans le but d'atteindre un
objectif politique, religieux ou idéologique
au Canada ou dans un État &ranger;
d)
les activités qui, par des actions cachées et
illicites, visent à saper le régime de gouvernement constitutionnellement établi
au Canada ou dont le but immédiat ou ultime est sa destruction ou son
renversement, par la violence.
La présente définition ne vise toutefois pas les activités licites de défense d'une cause, de protestation ou de manifestation
d'un désaccord qui n'ont aucun lien avec
les activités mentionnées aux alinéas a) a d).
investigation
or otherwise, to the extent that it is strictly necessary, and analyse 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.
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.
16. (1) Subject to this section,
the Service may, in relation to the defence of Canada or the conduct of the international
affairs of Canada, assist the Minister of National Defence or the Minister of
Foreign Affairs, within Canada, in the collection of information or intelligence relating to the capabilities,
intentions or activities of
(a)
any foreign
state or group of foreign state; or
(b) any person other than
(i)
a Canadian citizen,
(ii)
a permanent
resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or
(iii)
a corporation
incorporated by or under an Act of Parliament or of the legislature of a
province.
(2) The assistance provided
pursuant to subsection (1) shall not be directed at any person referred to in
subparagraph (1) (b) (i), (ii) or (iii).
16. (1) Sous réserve des autres dispositions
du présent article, le Service peut, dans les domaines de la défense
et de la conduite des affaires internationales du Canada, prêter son
assistance au ministre de la Défense nationale ou au ministre des
Affaires étrangères, dans les limites du Canada, a la collecte d'information
ou de renseignements sur les moyens, les intentions ou les activités :
a)
d'un État étranger
ou d'un groupe d'États étrangers;
b) d'une
personne qui n’est ni un citoyen canadien, ni un résident
permanent au sens du paragraphe 2(1) de la Loi sur I
'immigration et la protection des refugies, ni une
personne morale constituée en vertu d'une loi fédérale ou provinciale.
(2) L'assistance autorisée au paragraphe (1) est subordonnée au
fait qu'elle ne vise pas des
personnes mentionnées aux sous-alinéas (1)b) (i), (ii) ou (iii).
(3) The Service shall not perform
its (3) L'exercice par
le Service des
duties and functions under subsection fonctions visées au paragraphe
(1)
(1) unless
it odes so
(a) on the personal
request in writing of the Minister of National Defence or the Minister of
Foreign Affairs, and
(b) with the personal
consent in writing of the Minister.
est subordonné:
a) à une
demande personnelle &rite
du ministre de la Défense nationale ou du Ministre des Affaires étrangères;
b) au
consentement personnel du ministre.
21. (1) Where
the Director or any employee designated by the Minister for the purpose believes,
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, the Director or employee may, after having obtained the approval of the
Minister, make an application in accordance with subsection (2) to a judge
for a warrant under this section.
(2) An application to a judge
under subsection (1) shall be made in writing and be accompanied by an affidavit of the
applicant deposing to the following matters, namely,
(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 have failed or 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
21. (1) Le
directeur ou un employé désigne a cette fin par le ministre
peut, après avoir obtenu l' approbation du ministre, demander a
un juge de décerner un mandat en conformité avec le présent article s'il a des motifs raisonnables de croire que le mandat est nécessaire pour permettre au Service enquête
sur des menaces envers la sécurité du
Canada ou d'exercer les fonctions
qui lui sont conférées en vertu de l' article 16.
(2) La demande visée au paragraphe
(1) est présentée par écrit et accompagnée de l'affidavit du
demandeur portant sur les points suivants :
a) les faits
sur lesquels le demandeur
s'appuie pour avoir des motifs raisonnables
de croire que le mandat est nécessaire aux fins visées au paragraphe
(1);
b) le fait que
d'autres méthodes d'enquête
ont été essayées en vain, ou la raison pour
laquelle elles semblent avoir peu de
chances de succès, le fait que
l'urgence de l'affaire est telle qu'il serait très difficile de mener
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;
(c)
the
type of communication proposed to be
intercepted, the type of
information, records, documents or things
proposed to be obtained and the powers referred to in paragraphs (3)(a)
to (c)
proposed to be exercised for that
purpose;
(d)
the
identity of the person, if known, whose communication is proposed to be
intercepted or who has possession of the information, record, document or thing
proposed
to be obtained;
(e)
the person or classes of persons
to whom the warrant is proposed to be directed;
(f)
a
general description of the placed where the warrant is proposed to be executed,
if a general description of that place can be given;
(g)
the
period, not exceeding sixty days or one year, as the case may be, for which the
warrant is requested to be in force that is applicable by virtue of subsection
(5); and
(h)
any previous application made in
relation to a person identified in the affidavit pursuant to paragraph
(d), the date on which the application
was made, the name of the judge to whom each application was made and the
decision of the judge thereon.
(3) Notwithstanding any other law but subject to the Statistics Act, where the judge to whom an application under subsection (1) is made is satisfied
of the matters referred to in paragraphs (2) (a) and (b) set out
in the affidavit accompanying the application,
the judge may issue a warrant authorizing the persons to whom it is directed to
intercept any communication or obtain any information, record, document or
thing and, for that purpose,
(a) to enter any place or open or obtain access
to any thing;
(b) to search for, remove or return, or examine,
take extracts from or make copies of or record in any other manner the information, record, document or things; or
(c) to install, maintain or remove any thing.
(4) There shall be specified in a
warrant issued under subsection (3)
(a)
the type of communication authorized to
be intercepted, the type of information, records, documents or things
authorized to be obtained and the powers referred to in paragraphs (3)(a) to
(c) authorized to
be exercised for that purpose;
(b)
the identity of the person, if known, whose
communication is to be intercepted or who
has possession of the information, record, document or thing to be
obtained;
(3) Par dérogation a toute autre règle de droit mais sous réserve de la Loi sur la statistique, le juge qui est présentée la demande visée au paragraphe
(1) peut décerner le mandat s'il est
convaincu de l’existence de faits
mentionnes aux alinéas (2)a) et b) et dans l’affidavit qui accompagne la demande; le
mandat autorise ses destinataires à intercepter des communications ou a acquérir
des informations, documents, ou objets.
A cette fin, il peut autoriser aussi, de leur part :
a)
l'accès à un lieu ou un objet ou
l'ouverture d'un objet;
b)
la recherche, l'enlèvement ou la remise
en place de tout document ou objet, leur examen, le prélèvement des
informations qui s'y trouvent, ainsi que
leur enregistrement et l'établissement de copies ou d'extraits par tout procède;
c)
l'installation, l'entretien et l'enlèvement
d'objets.
(4) Le mandat décerne en vertu du paragraphe (3) porte les indications suivantes :
a)
les catégories de communications dont
l'interception, les catégories d'informations, de documents ou d'objets dont
l'acquisition, ou les pouvoirs vises aux alinéas (3)a) a c)
dont l'exercice, sont autorises;
b)
l'identité de la personne, si elle est
connue, dont les communications sont intercepter ou qui est en possession des
informations,
(c) the persons or
classes of persons to whom the warrant is directed;
(d) a general description
of the place where the warrant may
be executed, if a general description of that place can be given;
(e)
the period
for which the warrant is in force; and
(f) such terms and
conditions as the judge considers
advisable in the public interest.
(5) A warrant shall not be issued
under subsection
(3) for a period exceeding
(a) sixty days where the
warrant is issued to enable the
Service to investigate a threat to the security of Canada within the
meaning of paragraph (d) of the definition of that expression in
section 2; or
(b) one year in any other case.
documents ou objets à acquérir;
c) les personnes ou catégories
de
personnes destinataires du mandat;
d) si possible, une
description générale du lieu ou le mandat peut être exécuté;
e)
la
durée de validité du mandat;
I) les conditions que le juge estime indiquées
dans l'intérêt public.
(5) Il ne peut être décerne de mandat en vertu du
paragraphe (3) que pour une période
maximale :
a) de
soixante jours, lorsque le mandat est décerne pour permettre au Service de
faire enquête sur des menaces envers la securité du Canada au sens de
l'alinéa d) de la définition
de telles menaces contenue
a l' article 2;
b) d'un an,
dans tout autre cas.
Page: 36
SCHEDULE "B"
The McDonald Commission, short for The Commission of Inquiry Concerning
Certain Activities of the Royal Canadian Mounted Police, "Freedom and Security under the
Law: Second Report", vol. 1 (Ottawa: Supply and Services Canada, 1981) is
a Commission of Inquiry established by the
Governor in Council in 1977 as a result of allegations that the Security
Service of the Royal Canadian Mounted Police (RCMP) had been involved in
illegal and improper activities. As a result of recommendations made by the
McDonald Commission, the Service was established
on July 16, 1984 after Bill C-9 was passed into law. In its Report, the Commission
dealt with the geographic location of
security intelligence activities by an intelligence agency. The
Commission noted at page 628 of its Report:
14. Now, turning to the third dimension - the geographic
location of the security
intelligence agency's activities - we do no think that the agency should be required to confine its intelligence collecting or
countering activities to Canadian soil. If
security intelligence investigations which begin in Canada must cease at
the Canadian border, information and sources of information important to
Canadian security will be lost. Thus a total ban on security intelligence operations outside Canada would be an
unreasonable constraint. If to operate abroad is "offensive",
then Canada's security intelligence agency should be offensive in this sense,
although we are cognizant of the very great risks - diplomatic, moral and
practical - in carrying out security intelligence activities abroad. Because of these risks it is important to confine
such activities to those that are essential, to subject them to a clear
and effective system of control, and to ensure that they are always within the
mandate of the security intelligence agency.
In what follows we shall endeavour to define more precisely the
circumstances in which a security intelligence agency should be permitted to
extend its operations abroad and the controls which should apply to such
operations.
In respect to these controls, the
Commission made the following further recommendations at page 631 of its
Report:
The system we
propose recognizes that it is a ministerial responsibility
to ensure that the Department of External Affairs is consulted in advance about foreign operations with serious implications
for foreign policy and provides a process whereby the department of External Affairs can be kept comprehensively informed
of the security intelligence agency's foreign operations.
24. There may well be situations in which the Department
of External
Affairs would consider that the risk to Canada's foreign relations exceeds the potential worth of the
security intelligence that might be
obtained from a foreign operation. In resolving differences of this kind it is important that one set of interests should
not automatically take precedence. Thus, when the Solicitor General and the Secretary of State for External
Affairs could not agree over a foreign operation, the matter should be
decided by the Prime Minister.
WE RECOMMEND THAT
for intelligence purposes falling within the security
intelligence agency's statutory mandate and subject to guidelines approved by Cabinet Committee on Security and Intelligence, the security intelligence agency be permitted to carry out
certain investigative activities abroad.
WE RECOMMEND THAT the Director General of
the Security intelligence agency inform the
Minister responsible for the agency in
advance of all foreign operations planned by the security intelligence
agency.
WE
RECOMMEND THAT in cases which on the basis of policy guidelines are deemed to involve a significant risk to Canada's foreign relations, the Minister responsible for the
security intelligence agency inform the Department of External Affairs
sufficiently in advance of the operation to ensure that consultation may take
place.
WE RECOMMEND THAT the Director General
and appropriate officials of the security
intelligence agency should meet with the Under Secretary of State for
External Affairs and the responsible Deputy
Under Secretary on an annual basis to review foreign operations
currently being undertaken or proposed by the security agency. (Footnotes
omitted.)
FEDERAL COURT
SOLICITORS OF RECORDS
DOCKET SCRS-10-07
STYLE OF CAUSE DANS L'AFFAIRE d'une
demande de mandats faite par en vertu des articles 12 et 21 de la Loi sur le Service canadien du renseignement de sécurité, L.R.C. 1985), chap. C-23
ET DANS
L'AFFAIRE visant le
PLACE OF HEARING:
DATE OF EX
PARTE HEARINGS:
REASONS
FOR ORDER AND: ORDER
DATED:
Ottawa,
Ontario
April
24, 27 and June 14, 2007
BLANCHARD,
J.
October 22,
2007
|
APPEARANCES:
Me Isabelle Chartier Ottawa, Ontario
Mr. Ronald Atkey Toronto, Ontario
SOLICITORS OF RECORDS:
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
|
for the Canadian Security Intelligence Service
Amicus Curiae
|
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