Docket: A-145-14
Citation:
2014 FCA 249
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CORAM:
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BLAIS C.J.
DAWSON J.A.
MAINVILLE J.A.
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BETWEEN:
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IN THE MATTER OF an application by XXXXXXXXXXXX
for warrants pursuant to sections 12 and 21 of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23
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AND IN THE MATTER OF XXXX XXXXXXXXX
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REDACTED
REASONS FOR JUDGMENT BY THE COURT
I.
Introduction
[1]
In 2007, in Court File
CSIS-10-07, the Canadian Security Intelligence Service (CSIS or the Service) applied to the Federal Court to obtain a warrant to
assist in the investigation of threat-related activities CSIS believed
individuals would engage in while traveling outside of Canada. For reasons reported as Re CSIS Act, 2008 FC 301, Justice Blanchard (a designated
judge of the Federal Court) dismissed the warrant application. In Justice
Blanchard’s view, the Federal Court did not have jurisdiction to authorize CSIS
employees to conduct intrusive investigative activities outside of Canada in circumstances where the activities authorized by the warrant were likely to
constitute a violation of foreign law.
[2]
No appeal was taken from this decision.
[3]
Instead, in 2009, in Court File CSIS-30-08, CSIS
asked the Federal Court to revisit and distinguish Justice Blanchard’s
decision. Another designated judge of the Federal Court, Justice Mosley
(Judge), was persuaded to issue a warrant authorizing CSIS to intercept foreign
telecommunications and conduct XXXXXXXX searches
from within Canada. For reasons reported as X(Re), 2009 FC 1058, the
Judge was persuaded that the prior decision of Justice Blanchard was
distinguishable and he issued the requested warrant. Briefly stated, the Judge
reached this conclusion based upon a legal argument different from that before
Justice Blanchard and upon a description of the facts concerning the methods of
interception and seizure of information different from that put before Justice
Blanchard.
[4]
Specifically, CSIS argued that the Federal Court
had jurisdiction to issue the requested warrant to ensure a measure of judicial
control over activities of government officials acting in Canada in connection with an investigation that extended beyond Canada’s borders. Counsel for CSIS
justified this argument on the basis that the acts the Court was asked to
authorize would all take place in Canada.
[5]
Since the Judge issued this warrant, other
designated judges of the Federal Court have issued fresh or renewal warrants in
relation to targets of investigation under sections 12 and 21 of the Canadian
Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act). These
warrants are referred to as Domestic Interception of Foreign Telecommunications
and Search (DIFTS) warrants.
[6]
In the 2012-2013 Annual Report of the
Commissioner of the Communications Security Establishment Canada, the
Honourable Robert Décary, Q.C. recommended that the Communications Security
Establishment Canada (CSEC) advise CSIS to provide the Federal Court with
explicit evidence in DIFTS warrant applications that CSEC’s assistance to CSIS
might include the interception of private communications of the Canadian
subjects of the DIFTS warrants by CSEC’s second party partners in the United
States, United Kingdom, Australia and New Zealand, and also involve the sharing
of identity information of those Canadians with the four partners. These
partners are, together with Canada, referred to as the
“Five Eyes”.
[7]
After reading a public version of Commissioner
Décary’s report, the Judge issued an order requiring counsel for both CSEC and
CSIS to appear before him. The order 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.
[8]
On the basis of documents provided for that
hearing, the Judge was of the view that the focus of Commissioner Décary’s
concern was that information that had been before Justice Blanchard in the
CSIS-10-07 application was not presented to the Federal Court in the CSIS-30-08
application or in any subsequent application for a DIFTS warrant. The evidence
that was before Justice Blanchard was evidence that if the requested warrant was
issued, CSEC would provide assistance to CSIS by, among other things, tasking
its partners within the “Five Eyes” alliance to
conduct surveillance on warrant targets.
[9]
After reading the top secret version of
Commissioner Décary’s 2012-2013 report (one of the documents provided for the
initial hearing) and hearing the preliminary submissions of counsel for CSIS
and CSEC, the Judge directed that further evidence and argument be presented on
two issues. The issues were:
1)
Did CSIS meet its duty of full and frank
disclosure when it applied for a DIFTS warrant in application CSIS-30-08 and
any subsequent DIFTS warrant application?
2)
Did CSIS possess the legal authority, acting
through CSEC, to seek assistance from its foreign partners to intercept the
telecommunications of Canadians while they are outside of Canada?
[10]
The Judge appointed Mr. Gordon Cameron as amicus curiae to
assist in the examination of these two issues.
[11]
After receiving additional evidence and hearing
oral submissions by counsel for the Deputy Attorney General of Canada (Attorney General) and the amicus, the Judge concluded that CSIS breached its duty of candour by
failing to disclose to the Federal Court in DIFTS warrant applications that it
intended to make requests to foreign agencies to intercept the
telecommunications of Canadians abroad. The Judge also concluded that CSIS had
no lawful authority under section 12 of the CSIS Act to make such requests and
section 21 of the CSIS Act did not allow the Court to authorize CSIS to request
that foreign agencies intercept the communications of Canadians travelling
abroad. On a going forward basis the Judge directed that:
•
When an application is made to the Federal Court
for a DIFTS 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.
•
It must be made clear in any grant of a DIFTS
warrant that the warrant does not authorize the interception of the
communications of a Canadian person by any foreign service on behalf of CSIS,
either directly or through the assistance of CSEC.
•
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 such use is conducted under the authority of a section 21
warrant issued by the Federal Court.
•
Finally, a copy of the Court’s reasons was to be
provided to the Chair of the Security Intelligence Review Committee and to the
CSEC Commissioner.
[12]
The Judge’s conclusions were contained in a
document entitled “Further Reasons for Order”.
The Judge explained in his Further Reasons for Order that they were intended to
respond to recent developments and were intended to clarify the scope and
limits of the Judge’s reasons issued in 2009. Subsequently, Further Amended
Reasons for Order (Further Reasons) were issued by the Judge, correcting four
clerical errors contained in the initial version of the reasons. Nothing turns
on this.
[13]
Notwithstanding the title of the document, no
order was issued by the Judge and he denied a request by the Attorney General
that an order issue reflecting the Judge’s views.
[14]
The Attorney General now seeks to appeal from
the Further Reasons.
[15]
At a case management conference held by the then
Chief Justice of this Court, three preliminary issues were identified:
i.
Does this Court have jurisdiction to hear an
appeal from the Further Reasons in light of the fact that no formal order was
rendered by the Judge?
ii.
Should the Court grant the appellant an
extension of time to file the notice of appeal from the Further Reasons?
iii.
Is a challenge to the Further Reasons moot on
the ground that the warrant granted by the Judge in CSIS-30-08 has expired?
[16]
The Chief Justice directed that these issues be
addressed at a hearing to be held on March 17, 2014. Mr. Cameron’s
appointment as an amicus was renewed and counsel were also directed to be prepared to argue
the merits of the appeal at the hearing.
[17]
On March 17, 2014, we heard all submissions on
the three preliminary issues. We reserved our decision and then heard arguments
on the merits of the appeal.
[18]
These are our reasons for extending the time in
which to file the notice of appeal, taking jurisdiction to hear the appeal,
concluding the appeal is not moot and that the appeal should be dismissed.
II.
Preliminary Issues
A.
Does this Court have jurisdiction to hear an
appeal from the Further Reasons in light of the fact no formal order was
rendered by the Judge?
[19]
The amicus argues that the Further Reasons were issued in an application for a
warrant that was granted and has expired. The Further Reasons therefore did not
affect the outcome of the warrant application. As such, no appeal should lie
from the Further Reasons.
[20]
We disagree for the following two reasons.
[21]
First, we accept the Attorney General’s
characterization of the proceeding before the Judge: it had the character of a
generalized inquiry as opposed to the continuation of the warrant application.
This is reflected in the order that commenced the inquiry. Counsel for CSIS and
CSEC were required to appear and be prepared to speak to whether Commissioner
Décary’s recommendation to CSEC “relates to the
evidence presented to the Court in the application to obtain CSIS-30-08 or any
subsequent applications” (Order volume 1, Appeal Book Tab 13 at page
245).
[22]
The generalized nature of the inquiry is also
reflected in the Judge’s reasons at paragraph 75. The Judge noted that
while there may not have been non-disclosure in CSIS-30-08, there was no
disclosure of the request for foreign assistance in the applications that followed.
The Judge then referenced the Attorney General’s agreement that “[r]ather than have the matter addressed in each of those
files it should be dealt with in a single proceeding”. Given this, and
the significance of the Judge’s finding that CSIS has repeatedly failed in its
duty of candour, the absence of a formal order should not be an impediment to
the appellant’s right to have the Judge’s findings of fact and law reviewed by
this Court. In the unique circumstances before us, the absence of a formal order
is an irregularity.
[23]
Our second reason for this conclusion is that
the Judge’s Further Reasons were declaratory in nature. It is trite law that a
declaration declares what the law is. An entity that is subject to a
declaration is bound by it and so is obliged to comply with the declaration. If
the entity has doubts about the propriety of a court's declaration, the entity
is obliged to appeal it (Assiniboine v. Meeches, 2013 FCA 114, 444 N.R.
285 at paragraphs 12 through 15). The finding of lack of candour and the legal
conclusions on the scope of sections 12 and 21 of the CSIS Act were declaratory
in nature. They are of such importance that they cannot be immunized from
review.
B.
Should the Court grant an extension of time to
file the notice of appeal from the Further Reasons?
[24]
The Judge issued his Further Reasons on November
22, 2013. Therefore, a notice of appeal should have been filed on or before
December 23, 2013. Counsel for the Attorney General mistakenly believed that
the Christmas recess suspended the 30 day filing deadline. She therefore
calculated the appeal period to expire on January 9, 2014. The registry
declined to accept the notice of appeal for filing on January 8, 2014 on the
ground the appeal period had expired. The Attorney General therefore moves for
an extension of time to file the notice of appeal.
[25]
The amicus took no position on the motion for an extension of time.
[26]
In deciding whether to grant an extension of
time to file a notice of appeal, the over-riding consideration is whether the
interests of justice favour granting the extension. Relevant factors to
consider are whether:
(a)
there is an arguable case on appeal;
(b)
special circumstances justify the delay in
filing the notice of appeal;
(c)
the delay is excessive; and
(d)
the respondent will be prejudiced if the
extension is granted.
[27]
We are of the view that the interests of justice
favour granting the extension. We reach this conclusion for the following
reasons:
(a)
there are arguable issues raised in the appeal
and they are issues of importance;
(b)
counsel’s misunderstanding of the effect of the
Christmas recess is a special circumstance that explains the delay;
(c)
the delay was not excessive; and
(d)
the amicus is not prejudiced by the granting of the extension.
[28]
For these reasons, the extension is granted.
C.
Is a challenge to the Further Reasons moot on
the ground that the warrant granted by the Judge in CSIS-30-08 has expired?
[29]
We are of the view that the appeal is not moot
for the following two reasons.
[30]
First, as explained above, the proceeding before
the Judge had the character of a generalized inquiry. It therefore affects
existing warrant applications.
[31]
Second, also as explained above, the Further
Reasons were declaratory in nature. As such, the reasons bound, and continue to
bind, CSIS.
[32]
The appeal, therefore, is not moot.
III.
The Issues
[33]
Two substantive issues are raised in this
appeal:
1) Did CSIS breach the duty of candour owed to the Court in its
application for a DIFTS warrant in CSIS-30-08 or in subsequent applications for
DIFTS warrants?
2)
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?
[34]
Before considering these issues, it is helpful
to review the relevant findings of the Judge.
IV.
The Judge’s Decision
[35]
After describing in detail the factual
background, framing the issues to be decided and dealing with a preliminary
question of privilege, the Judge commenced his analysis. No appeal is brought
from the Judge’s conclusion that certain material was not privileged.
[36]
The issues framed by the Judge were:
1)
Whether CSIS met its duty of full and frank
disclosure when it applied for a DIFTS warrant in application CSIS-30-08 and
any subsequent DIFTS warrant applications; 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.
[37]
With respect to the first issue, the Judge
concluded that:
i.
It was not clear that a request for foreign
assistance was made in CSIS-30-08. The Attorney General conceded, however, that
foreign assistance was requested in connection with the DIFTS warrants granted
following the rationale developed in CSIS-30-08 and further conceded that those
requests were not disclosed to the Court. The Attorney General acknowledged
that the issue of compliance with the duty of full and frank disclosure should
not be decided on the basis that there was no actual nondisclosure in
CSIS-30-08 (reasons paragraph 75).
ii.
The CSEC employee who provided affidavit
evidence and was cross-examined before the Judge “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 [filed] before Justice Blanchard” (reasons paragraph 76).
iii.
CSEC knew the collection efforts of XXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXXX (reasons
paragraph 76).
iv.
In relation to the individuals who were subject
to a DIFTS warrant, in the preceding 12-month period XXXXXXXXXXXXXXXXXXXXXXXXX. It was a reasonable inference that the
results in previous years would be similar (reasons paragraph 78).
v.
While CSIS acknowledged that the duty of full
and frank disclosure (also known as the duty of utmost good faith and candour)
applies to all of its ex parte warrant applications, CSIS submitted that it complied with this
duty (reasons paragraphs 82 and 83).
vi.
Specifically, CSIS submitted 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 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.
vii.
In advancing this argument, the Attorney General
relied on the definition of “material facts” developed
in decisions relating to criminal proceedings. In this context, evidence is
material if what is offered to prove or disprove is a fact in issue. What is in
issue is a function of the allegations contained in the indictment and the
governing procedural and substantive law (reasons paragraph 85).
viii.
The Attorney General submitted that in the
context of a warrant application, materiality referred to information that is
probative to the legal or factual determination that a judge would make when
deciding whether to grant the requested warrant. It followed, in the submission
of the Attorney General, that reference to requests for assistance made to
foreign partners was legally and factually irrelevant to the issuance of the
requested warrant. This was a consequence of Justice Blanchard’s earlier
decision that the Court lacked jurisdiction to govern the relationship between
CSIS and the foreign partners (reasons paragraph 86).
ix.
The Judge accepted the submission that in the context
of a warrant application, material facts are those which may be relevant to the
determination of whether the criteria contained in paragraphs 21(2) and (3) of
the CSIS Act were made out. The Judge described the criteria 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.
x.
That said, the Judge rejected a narrow concept
of relevance. In his view, relevant matters included 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 (reasons paragraph 89).
xi.
Based on the evidence before him the Judge was
satisfied “that a decision was made by CSIS officials
in consultation with their legal advisors to strategically omit information in
applications for DIFTS 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.” (reasons paragraph 90).
xii.
The Judge found that the CSEC witness 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.” At paragraph 91 of his
reasons, the Judge quoted the following excerpt from the witness’
cross-examination:
[…] 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)
xiii.
The Judge concluded that
“[i]t 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” (reasons
paragraph 92).
[38]
With respect to the second issue, the Judge
reasoned as follows:
i.
The interception of the communications for which
authorization was sought in the applications before Justice Blanchard in 2008
and the Judge in 2009 would come within the broad meaning of the term “intercept” as defined in section 2 of the CSIS Act
by reference to the definition contained in the Criminal Code, R.S.C.
1985, c. C-46. 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 warrant issued under section 21 of the
Act. Without this protection, Part VI of the Criminal Code would apply
to the interception of any “private communication”;
a “private communication” is any private
communication when either the originator or the recipient was in Canada. Given that the place of “interception” under the
Criminal Code has been interpreted as the location where a call has been
acquired and recorded, the concern about potential liability in the absence of
a warrant expressed to the Court in the application before Justice Blanchard
was realistic (reasons paragraphs 23 and 24).
ii.
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 legislation,
CSEC is authorized to acquire and use information obtained from communication
systems, information technology systems, networks and the like for the purpose
of providing foreign intelligence to the government of Canada. Prior to the
amendments made in 2001, it was unlawful for CSEC to intercept the
communications of a foreign target that either originated or terminated in Canada. The 2001 legislation allowed the Minister of National Defence to authorize CSEC to
target foreign entities physically located outside of Canada that may engage in communications to or from Canada, for the sole purpose of obtaining
foreign intelligence (reasons paragraphs 13 and 14).
iii.
Paragraph 273.64(2) of the National Defence
Act expressly prohibits CSEC from directing these activities at Canadian
citizens and permanent residents (together “Canadian
persons”) wherever located, or at any person in Canada, regardless of their nationality. 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 agents in the performance of
their lawful duties pursuant to paragraph 273.64(1)(c) of the National
Defence Act. Subsection 273.64(3) of the legislation provides that such
assistance activities are subject to any limitations imposed by law on the
federal agencies in the performance of their duties (reasons paragraphs 15 and
16).
iv.
In the warrant application before Justice
Blanchard, CSIS’ main argument was that the warrant sought was required in
order to ensure that Canadian agents engaged in intrusive searches and seizures
abroad did so in conformity with Canadian law, because the impugned
investigative activities might, absent a warrant, breach the Charter and
contravene the Criminal Code. In its submission, the requested warrant
could be issued under section 21 of the CSIS Act; this approach would respect
the rule of law and be consistent with the mandated regime of judicial control
(reasons paragraph 93).
v.
CSIS now asserts that it accepted the outcome of
Justice Blanchard’s decision, particularly his conclusion that the Court had no
authority to issue the requested warrant. In light of that, with the assistance
of counsel, CSIS concluded that a warrant was not required for the Service to
engage the assistance of second parties through CSEC in order to intercept the
private communications of Canadians outside the country. In CSIS’ submission,
CSEC does not breach the prohibition against targeting Canadians contained in
the National Defence Act when it provides assistance to CSIS operating
under the general investigative authority granted to the Service by section 12
of the CSIS Act (reasons paragraph 94).
vi.
On the record before the Judge, it appeared that
no attempt was made to rely on section 12 as the lawful authority required by
CSEC to target Canadians until after the Court had issued the first DIFTS
warrant (reasons paragraph 95).
vii.
In the view of the amicus, this interpretation of the scope of section 12 allows CSIS “to contract out interceptions of Canadians’ communications
or accessing Canadians’ information without any warrant or supervision by this
Court”. While the amicus submitted that the Judge did not have to determine the scope of
section 12 of the Act, the Judge disagreed. In his view, it was necessary
for the Court to express an opinion on the issue because of the public
association, through the CSEC Commissioner’s Report, between the issuance of
the DIFTS warrants by the Federal Court and the requests for second party
assistance (reasons paragraphs 96 and 97).
viii.
Section 12 of the CSIS Act allows CSIS to
conduct investigations, collect, analyze 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 this
power must be read in conjunction with the scheme of the Act, the guarantees of
protections set out in the Charter and any limitations imposed under
domestic law (such as the Criminal Code) (reasons paragraph 99).
ix.
Section 12 does not exempt CSIS from the
operation of these laws of general application. When required, the Service may
seek the authority of a warrant under section 21 of the CSIS Act to engage in
investigative methods that would otherwise constitute a crime or a breach of
the Charter guarantee against unreasonable search and seizure (reasons
paragraph 100).
x.
Section 12 does not expressly authorize CSIS to
invoke the interception capabilities of foreign agencies. While such
interceptions may be lawful where they are initiated under the domestic
legislation of the requested state, it may be unlawful in the jurisdiction
where the interception actually occurs. Legislation such as the Foreign
Intelligence Surveillance Act of 1978, Pub.L. 95-511, 92 Stat. 1783, 50
U.S.C. ch. 36 (FISA) permits warrantless searches for foreign intelligence
collection as authorized by the President of the United States and, also
authorizes the surveillance of foreign subjects under court order. FISA
therefore authorizes the violation of foreign sovereignty in the manner the
Supreme Court of Canada recognized as contrary to the principles of customary
international law, but permissible under domestic law with express legislative
authority (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.) (Reasons
paragraph 102).
xi.
Nothing in the Act or its legislative history
suggested that when enacting section 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 (reasons paragraph 103).
xii.
As discussed by the Supreme Court in Hape,
at paragraphs 51, 52 and 101 and in Canada (Justice) v. Khadr, 2008 SCC
28, [2008] 2 S.C.R. 125, at paragraph 18, the principle of comity between
nations that implies the acceptance of foreign laws and procedures when
Canadian officials are operating abroad 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
Canadian targets, CSIS and CSEC officials knew, based on the legal advice 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 second
parties (reasons paragraph 105).
xiii.
The record before the Judge indicated 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.
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 (reasons
paragraph 107).
xiv.
The CSIS witness responsible for the warrant
process in 2009 acknowledged that CSIS looked primarily to the judicial
warrants issued by the Federal Court for the authority to ask CSEC to request
the assistance of second parties to intercept and collect communications of
Canadians (reasons paragraph 108).
xv.
The exercise of the Federal Court’s warrant
issuing authority was used as protective cover for activities the Court has not
authorized (reasons paragraph 110).
xvi.
The Judge was not persuaded that Parliament
intended to give CSIS authority to engage the collection resources of the
second party allies to intercept the private communications of Canadians under
the general power to investigate contained in section 12. Moreover, nothing in
the legislative history of the amendments to the National Defence Act in
2001 suggested that Parliament intended that CSEC could extend such assistance
to CSIS solely on the authority of section 12 (reasons paragraph 111).
xvii.
The Judge was satisfied that CSIS and CSEC “chose to act upon the new broad and untested interpretation
of the scope of s.12 only where there was a DIFTS warrant in place”.
This view was reinforced by the 2012-2013 Annual Report of the Security
Intelligence Review Committee (SIRC) which refers to a review of a new section
21 warrant power. After reviewing both the public and classified versions of
this report the Judge was of the view that passages of the report suggest that
SIRC is operating under the mistaken belief that the DIFTS warrants issued by
the Federal Court authorize the collection of intercepts respecting Canadian
persons by foreign agencies (reasons paragraphs 112 and 115).
xviii.
As soon as it was determined that CSIS would
rely on the general power to investigate contained in section 12 of the CSIS
Act to request second party assistance with the interception of communications
of Canadian subjects abroad, that determination constituted facts known to
individuals who swore affidavits in support of warrant applications which could
lead the Court to find that there was no investigative necessity to issue a
DIFTS warrant. The failure to disclose that information was the result of a
deliberate decision to keep the Federal Court “in the
dark about the scope and extent of foreign collection efforts that would flow
from the Court’s issuance of a warrant”. This was a breach of the duty
of candour owed by CSIS and its legal advisers to the Court, and has led to
misinformation in the public record about the scope of the authority granted to
CSIS by the issuance of the DIFTS warrants (reasons paragraphs 117 and 118).
xix.
The conclusion that the Federal Court has
jurisdiction to issue a warrant under section 21 for the domestic
interception of foreign telecommunications under certain defined conditions
remains valid. That jurisdiction does not extend to the authority to empower
CSIS 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 (reasons paragraph 119).
xx.
The interpretation of section 12 asserted by
CSIS and the Attorney General is inconsistent with the scheme of the act as a
whole and 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 (reasons paragraph 122).
V.
The asserted errors
[39]
The Attorney General asserts that with respect
to the first issue, that is whether CSIS breached the duty of candour it owed
to the Court, the Judge committed the following errors:
i)
Erroneously finding that information had been
strategically omitted because such finding was not supported by the record.
ii)
Erroneously finding that the information said to
have been omitted was material to the relevant warrant applications.
[40]
With respect to the second issue, the scope of
section 12 of the CSIS Act, the Judge is said to have erred by:
i)
Erroneously concluding that section 12 does not
provide CSIS with authority to request that foreign partners intercept
telecommunications of Canadians abroad.
ii)
Erroneously concluding that asking foreign
partners to intercept the telecommunication of Canadians abroad is contrary to
international law.
VI.
The standard of appellate review
[41]
The parties did not make detailed submissions on
the standard of appellate review to be applied to the Judge’s decision. In our
view, the standard to be applied is that articulated by the Supreme Court of
Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[42]
It follows that:
i)
The standard of review on a pure question of law
is correctness (Housen at paragraph 8).
ii)
Findings of fact may not be reversed unless it
is established that the Judge at first instance made a palpable and overriding
error. The same standard is to be applied to inferences of fact drawn by the
Judge. A palpable and overriding error is one that is plainly seen (Housen
at paragraphs 7, 10 and 19-23).
iii)
Findings of mixed fact and law are reviewed on
the standard of palpable and overriding error, unless an extricable error in
principle is established. Such an extricable error is reviewed on the standard
of correctness (Housen at paragraph 36).
VII.
Application of the standard of appellate review
A.
Did the Judge err in finding that CSIS had
breached the duty of candour?
[43]
As explained above, two errors are asserted in
connection with this finding. The first is that the evidentiary record does not
support the conclusion that there was a decision to “strategically
omit” information in applications for DIFTS warrants. This Court may
only set aside this finding if there was a palpable and overriding error with
respect to underlying findings of fact or if the inference-drawing process used
to reach this conclusion was palpably in error.
[44]
The Attorney General asserts palpable and
overriding error on the basis that:
i)
The omitted information had been fully disclosed
on the previous application before Justice Blanchard, who purportedly found
that the Federal Court lacked jurisdiction to authorize such requested
warrants.
ii)
There was no evidence to support the finding
that CSEC’s evidence was “crafted”.
[45]
In our view, these arguments must fail for the
following reasons.
[46]
First, it does not assist CSIS to argue that
information the Judge found to be material to the warrant application before
him was disclosed to the Court in the prior warrant application made before
Justice Blanchard. This is particularly the case when the Judge found the Court
to have jurisdiction to issue the requested warrant based upon a different
description of the facts concerning the methods of interception and seizure of
information than that described to Justice Blanchard. Specifically, the Judge
was told that the acts the Court was asked to authorize would all take place in
Canada. The evidence before Justice Blanchard established that, if granted,
the warrant would authorize activities outside of Canada.
[47]
Second, it is not fair to characterize Justice
Blanchard’s decision to be that the Federal Court lacked jurisdiction to issue
a warrant authorizing the making of requests for assistance to second parties.
It is clear from Justice Blanchard’s reasons that on that warrant application
CSIS acknowledged that the activities sought to be authorized by the warrant
were “likely to constitute a violation of foreign law”
(Justice Blanchard’s reasons paragraph 29, see also paragraph 50).
[48]
What Justice Blanchard did decide was that
section 21 of the CSIS Act did not authorize the Federal Court to issue the
requested warrant because the intrusive activities the warrant would authorize
were activities that would likely violate the laws of the jurisdiction where
the activities were likely to occur (Justice Blanchard’s reasons paragraph 50).
[49]
Further and importantly, Justice Blanchard
expressly acknowledged that not all extraterritorial intrusive activities would
be illegal in every jurisdiction. Thus, he concluded paragraph 50 by noting
that:
[…] 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.
[50]
This passage is wholly inconsistent with the
Attorney General’ assertion that Justice Blanchard held the Federal Court
lacked jurisdiction to authorize second party requests. It is also inconsistent
with the further submission of the Attorney General that Justice Blanchard
found that section 21 does not authorize the issuance of the warrant having
extraterritorial effect.
[51]
It is readily apparent from a fair reading of
the whole of Justice Blanchard’s decision that his preoccupation was that the
Court was asked to issue a warrant that CSIS conceded would likely violate the
principles of territorial sovereign equality and non-intervention, and thus
violate international law.
[52]
Finally, in oral argument the Attorney General
briefly argued that the evidence does not support the Judge’s finding that
CSEC’s affidavit evidence on the warrant application was “crafted” to exclude reference to the role of second
parties. As we understand this argument, it is that the evidence was not
crafted, nor was it capable of being crafted, because it was not until after
the first DIFTS warrant issued that a decision was made to seek second party
assistance.
[53]
In our view, this submission must fail because
of the Attorney General’s agreement that there was no disclosure of the
requests for second party assistance in the applications that followed
CSIS-30-08, and his further agreement that rather than addressing the issue of
disclosure in all of the subsequent files, the issue of the adequacy of
disclosure should be dealt with in a single application. We are satisfied that
it was open to the Judge to conclude, at the least, that once the decision was
made to routinely seek foreign assistance, a strategic decision was made not to
include that information in the affidavit evidence filed in support of DIFTS
warrants.
[54]
We now turn to consider the Attorney General’s
second argument on this issue: whether the information said to be omitted was
material to the relevant warrant applications.
[55]
As explained in more detail at subparagraphs
37(vi) to (vii) above, the Judge accepted that what was material to his
decision to issue the first DIFTS warrant was information which was relevant
when determining whether the criteria found in paragraphs 21(2)(a) and (b)
of the CSIS Act had been met.
[56]
The Attorney General acknowledges that this was
the correct test at law (appellant’s memorandum of fact and law at paragraph 49).
He asserts, however, that the Judge erred in his application of the test. This
is said to be reflected in paragraph 89 of the Judge’s reasons where he wrote:
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.
[57]
The Attorney General argues that:
i)
any requirement that CSIS disclose “matters [the Court] may have reason to be concerned about”
is not an intelligible standard;
ii)
the concern about the prior history of attempts
to obtain prior authorization is “puzzling” because
Justice Blanchard’s decision “made it plain that the
Federal Court has no jurisdiction to issue warrants for foreign requests”;
and,
iii)
the final concern about information sharing,
while important, is not relevant to the issue of whether the preconditions in
paragraphs 21(2)(a) and (b) of the CSIS Act have been met.
[58]
In our view, the Attorney General has failed to
establish any palpable and overriding error on the part of the Judge or any
extricable error of principle. We reach this conclusion for the following
reasons.
[59]
First, read fairly, the Judge did not articulate
an unintelligible standard for disclosure. While perhaps paragraph 89 could
have been more elegantly crafted, the Judge’s reference to matters the Court
could reasonably be concerned about reflects the discretionary nature of a
section 21 warrant. That the relief is discretionary is made plain by
subsection 21(3) of the CSIS Act which states that if satisfied of the matters
enumerated in paragraphs 21(2)(a) and (b) a judge “may” issue a warrant.
[60]
The discretionary nature of a ruling on warrant
application was acknowledged by the Deputy Attorney General in the legal
opinion he provided to CSIS dated October 2, 2008 (volume 2 Appeal Book page
431 at page 437).
[61]
As submitted by the amicus, it follows from this discretionary nature that a decision whether
to issue a section 21 warrant is not the simple “box-ticking”
exercise the Attorney General suggests. Based on the particular circumstances
before the Court in any particular warrant application, factors beyond those
enumerated in paragraphs 21(2)(a) and (b) will be material to the
judicial exercise of discretion. Had Parliament intended otherwise, subsection 21(3)
would provide that upon being satisfied of the enumerated matters a judge “shall” issue a warrant.
[62]
We agree with the Judge that on the record
before him, considerations material to the decision whether to issue the
requested warrant included the prior application before Justice Blanchard and
the potential implications of sharing information about Canadian persons with
foreign security and intelligence agencies.
[63]
The submission of the Attorney General that the
Judge’s concern about the prior application before Justice Blanchard is “puzzling” is, in our view, again premised upon the
same mis-characterization of Justice Blanchard’s reasons discussed above -
Justice Blanchard did not find that the Federal Court was without jurisdiction
to issue warrants authorizing CSIS to seek foreign assistance through CSEC.
Rather, he ruled that section 21 did not authorize a judge of the Federal Court
to issue a warrant such as that requested of him when CSIS conceded that it
would likely violate foreign domestic law and therefore violate international
law. As noted above, Justice Blanchard was alive to the notion the
investigative activities could be legal in some jurisdictions.
[64]
Having dismissed the submissions of the Attorney
General, it follows that he has not established any palpable and overriding
error in the application of the test for materiality.
[65]
To conclude on the first issue, on the record
before us:
i)
Justice Blanchard understood that if he granted
the requested warrant, CSEC would, pursuant to its assistance mandate, task the
foreign signal intelligence collection systems under its control as well as
those under the control of allied agencies.
ii)
Justice Blanchard also understood that CSEC had
the capacity to direct activities from within Canada to XXXXXXXXXXX search XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX in order to obtain
information and that, if granted the warrant would authorize such conduct.
iii)
Following his decision, CSIS considered whether
other options were available in order to lawfully intercept the
telecommunications of Canadians and to search XXXXXXXXXXXXXXXXXXXXXXX
who are outside of Canada. This led to a legal opinion being requested from the
Department of Justice. In consequence, on October 2, 2008 a legal opinion was
given to CSIS by the Deputy Attorney General. In it, the Deputy Attorney
General opined such activity could be undertaken without a warrant pursuant to
CSIS’ power, conferred by section 12 of the CSIS Act, to investigate through
requests for assistance made on CSIS’ behalf to foreign partners.
iv)
Following receipt of this opinion, CSIS decided
to make a warrant application requesting authority to, from within Canada, intercept telecommunications of Canadian subjects of investigation abroad and
search XXXXXXXXXXXXXXX XXXXX.
v)
As a result of this application, the first DIFTS
warrant was issued in CSIS-30-08. This warrant authorized CSIS to, from within Canada, intercept telecommunications of Canadian subjects of investigation abroad and
search XX XXXXXXXXXXXXXXXXX.
vi)
When issuing CSIS-30-08 the Judge did not
understand that requests would be made to foreign agencies. He understood that
the only interception of a target’s communication would be from sites
controlled from within Canada under the authority of a warrant.
vii)
After this warrant was issued further
discussions that took place between CSIS and CSEC about the possibility to also
seeking assistance from foreign partners.
viii)
CSEC explained to CSIS that only XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX CSEC
recommended the requests for assistance to foreign partners should be made at
the same time as requests for assistance are made by the service to CSEC under
a DIFTS warrant. CSIS accepted this recommendation.
ix)
Subsequently, a CSIS internal memorandum issued
entitled “Domestic Interception of Foreign capital
communications and Search (DIFTS)-Options for Regions and Procedures” was
issued. The memorandum addressed issues surrounding the execution of the DIFTS
warrants as well as requests for assistance to foreign partners. This is what
was said about request to foreign partners:
2nd
PARTY ASSETS: These are CSEC’s SIGINT counterparts
within the 5-Eyes community – namely the US, UK, Australia and New Zealand. Allowing CSEC to share our collection requirements with 2nd party
assets XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Although the Service has recognized that the use of 2nd Party
SIGINT assets for targeting could eventually lead to the taskings being
attributed to the Service, upper Service management has agreed that the use of
2nd party assets will be the norm. The 2nd party
assets will not be privy to specific details about our targets; XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and could infer that the
collection is being conducted on behalf of the Service as it would be outside
the normal practice for CSEC to be adding Canadian XXXXXXXXXXXXXXXXXXX [underlining added]
Thus, seeking the assistance
of foreign agencies became the norm when a DIFTS warrant issued.
x)
Activities carried out by CSEC for CSIS under
CSEC’s assistance mandate are conducted under the lawful authority of CSIS and
subject to any limits on CSIS.
xi)
The Judge found that CSEC consistently
interpreted the requirements of “lawful duties” and “limitation imposed by law” contained in paragraph
273.64(1)(c) and subsection 273.64(3) of the National Defence Act
to require that CSIS obtain a warrant. Legal advice given to CSEC in May 2009
stipulated that CSIS would make a request of CSEC for second parts assistance
only when a warrant was in place.
xii)
The CSIS witness responsible for the warrant
process in 2009 acknowledged that CSIS looked primarily to the warrants issued
by the Federal Court for the authority to ask CSEC to request the assistance of
second parties to intercept and collect communications of Canadians.
xiii)
The Judge further found the DIFTS warrants gave
officials of both CSIS and CSEC comfort that they were acting within the scope
of their lawful authority.
xiv)
Requests for foreign assistance have only been
made when a DIFTS warrant has been issued by the Federal Court. CSEC only
targeted communications referred in a DIFTS warrant, for the duration of the
warrant, and complied with any conditions in the DIFTS warrant.
[66]
On this evidence we are satisfied that once the
decision was made to routinely seek the assistance of foreign agencies after
the issuance of a DIFTS warrant, the duty of candour and utmost good faith
required that CSIS disclose to the Federal Court the scope of its anticipated
investigation, and in particular that CSIS considered itself authorized by
section 12 of the CSIS Act to seek foreign agency assistance without a warrant.
CSIS failed to make such disclosure.
B.
Did the Judge err in finding CSIS did not have
the legal authority to seek assistance, through CSEC, from foreign partners to
intercept telecommunications of Canadians while they are outside of Canada?
[67]
Whether CSIS has authority to seek such
assistance depends upon the proper interpretation of section 12 of the CSIS
Act.
[68]
The preferred approach to statutory
interpretation has been expressed in the following terms by the Supreme Court:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
See: Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27 at paragraph 21. See also: R. v. Ulybel Enterprises Ltd.,
2001 SCC 56, [2001] 2 S.C.R. 867 at paragraph 29.
[69]
The Supreme Court restated this principle in Canada
Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at
paragraph 10:
It has been long established as a matter of
statutory interpretation that “the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament”:
see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at
para. 50. The interpretation of a statutory provision must be made according to
a textual, contextual and purposive analysis to find a meaning that is
harmonious with the Act as a whole. When the words of a provision are precise
and unequivocal, the ordinary meaning of the words play a dominant role in the
interpretive process. On the other hand, where the words can support more than
one reasonable meaning, the ordinary meaning of the words plays a lesser role.
The relative effects of ordinary meaning, context and purpose on the
interpretive process may vary, but in all cases the court must seek to read the
provisions of an Act as a harmonious whole.
[70]
This formulation of the proper approach to
statutory interpretation was repeated in Celgene Corp. v. Canada (Attorney
General), 2011 SCC 1, [2011] 1 S.C.R. 3 at paragraph 21, and Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC
25, [2011] 2 S.C.R. 306 at paragraph 27.
[71]
Inherent in the contextual approach to statutory
interpretation is the understanding that the grammatical and ordinary sense of
a provision is not determinative of its meaning. A court must consider the
total context of the provision to be interpreted “no
matter how plain the disposition may seem upon initial reading” (ATCO
Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4,
[2006] 1 S.C.R. 140 at paragraph 48). From the text and this wider context the
interpreting court aims to ascertain legislative intent, “[t]he most significant element of this analysis” (R.
v. Monney, [1999] 1 S.C.R. 652 at paragraph 26).
[72]
Section 12 is as follows:
|
The Service shall
collect, by 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.
|
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.
|
[73]
The phrase “threats to
the security of Canada” found in section 12 is defined in section 2 of
the CSIS Act to mean:
|
(a)
espionage or sabotage that is against Canada or is detrimental to the
interests of Canada or activities directed toward or in support of such
espionage or sabotage,
|
a) l’espionnage
ou le sabotage visant le Canada ou préjudiciables à ses intérêts, ainsi que
les activités tendant à favoriser ce genre d’espionnage ou de sabotage;
|
|
(b) foreign influenced
activities within or relating to Canada that are detrimental to the interests
of Canada and are clandestine or deceptive or involve a threat to any person,
|
b) les
activités influencées par l’étranger qui touchent le Canada ou s’y déroulent
et sont préjudiciables à ses intérêts, et qui sont d’une nature clandestine
ou trompeuse ou comportent des menaces envers quiconque;
|
|
(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, and
|
c) les
activités qui touchent le Canada ou s’y déroulent et visent à 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 étranger;
|
|
(d)
activities directed toward undermining by covert unlawful acts, or directed
toward or intended ultimately to lead to the destruction or overthrow by
violence of, the constitutionally established system of government in Canada.
|
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.
|
[74]
Lawful advocacy, protest or dissent do not
constitute threats to Canada’s security, unless accompanied by one of the four
enumerated activities.
[75]
We begin consideration of the scope of section
12 with the uncontroversial observation that nothing in the text of section 12
suggests any geographic limit on the sphere of the Service’s operations.
Indeed, references in the definition of “threats to the
security of Canada” to such things as “foreign
influenced activities within or relating to Canada” and “activities within or relating to Canada directed toward […
the] use of acts of serious violence […] for the purpose of achieving [… an]
objective within Canada or a foreign state” are inconsistent with any
notion of a geographic limit on CSIS’ areas of operation.
[76]
This textual analysis is supported by a
contextual analysis when section 12 is compared with subsection 16(1) of the
CSIS Act. Section 16 deals with the collection of information concerning
foreign states and persons, and provides that the Service may assist the
Ministers of National Defence and Foreign Affairs “within
Canada”. Thus, a contextual analysis reveals that when Parliament
wished to limit the Service’s geographic sphere of operations it did so
expressly.
[77]
As for the required purposive analysis, it is
undisputed that a state’s ability to protect itself from national security
threats depends upon its ability to obtain accurate and timely intelligence
relating to such threats. For that reason, [t]he Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted Police, 1981
(McDonald Commission) recommended that Canada’s intelligence agency should not
be confined to collecting intelligence or countering activities on Canadian
soil; otherwise, information and sources of information important to Canada’s
security would be lost. Given that the report of the McDonald Commission led to
the creation of CSIS, its recommendations support the conclusion that CSIS was
intended to conduct activities at home and abroad.
[78]
Having concluded on the basis of the required
textual, contextual and purposive analysis that the Service is not confined to
operating within Canada, it is next necessary to consider whether section 12 of
the CSIS Act permits the Service to seek foreign assistance to intercept the
telecommunications of Canadians while they are abroad.
[79]
As explained in some detail at paragraph 38
above, the Judge concluded that Parliament did not intend to give the Service
authority to engage foreign agencies to intercept private communications of
Canadians under the general power to investigate granted to the Service by
section 12 of the CSIS Act.
[80]
Subject to one caveat, we agree with the Judge’s
conclusion, substantially for the reasons given by the Judge. Our caveat,
developed below, is that we do not endorse his conclusion that intrusive
investigative measures conducted abroad would necessarily violate international
law or the principle of comity between nations.
[81]
To the Judge’s reasons we would add the
following: on the required textual, contextual and purposive analysis, judicial
authorization in the form of a warrant issued pursuant to section 21 of the
CSIS Act is required when the Service’s methods of investigation are intrusive,
as in the case of the interception of telecommunications, whether conducted
directly, or indirectly through the auspices of a foreign intelligence service.
We reach this conclusion on the following basis.
[82]
As the Judge noted, section 12 does not give
CSIS an exemption from the operation of laws of general application. Thus, when
intrusive investigation methods are resorted to, which methods would otherwise
constitute a crime or a breach of the Charter guarantee against
unreasonable search and seizure, the Service may apply to the Federal Court for
the issuance of a warrant under section 21 of the CSIS Act.
[83]
The condition precedent for the making of such
an application is that the CSIS Director, or a designated CSIS employee, “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 […]”.
[84]
Again, section 21 contains no geographic limit.
Given that “threats to the security of Canada” may include events outside of Canada, it appears that Parliament intended that
warrants may be applied for in the context of extraterritorial operations.
[85]
This textual analysis is supported contextually
by section 26 of the CSIS Act, which renders Part VI of the Criminal Code
inapplicable in relation to any interception of a communication under the
authority of a warrant or in relation to any communication so intercepted. It
may be inferred that Parliament intended that such legal protection be
available to all Service personnel, no matter where they are conducting
investigations. Such an interpretation also ensures that issues with respect to
the admissibility of any intercepted communication or derivative evidence will
be unlikely to arise.
[86]
A purposive interpretation leads to the same
conclusion. The need for strict controls on the operations of security
intelligence agencies has long been recognized. In Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 the Supreme
Court considered the legislative purpose and guiding principles that attended
the creation of CSIS. At paragraph 22 of the reasons the Court quoted from the
report of the Special Committee of the Senate on the Canadian Security
Intelligence Service to the effect that:
A credible and effective security
intelligence agency does need to have some extraordinary powers, and does need
to collect and analyze information in a way which may infringe on the civil
liberties of some. But it must also be strictly controlled, and have no more
power than is necessary to accomplish its objectives, which must in turn not
exceed what is necessary for the protection of the security of Canada.
(Report of the Special Senate Committee, at
para. 25)
[87]
Requiring judicial authorization of all
interception of private telecommunications is consistent with the need to
impose strict controls over intrusive collection methods carried out by CSIS.
[88]
This conclusion is also consistent with the National
Defence Act. Under subsection 273.65(2) of that Act, ministerial
authorization is required to intercept communications to or from Canada. Paragraph 273.64(2)(a) of that Act prohibits CSEC from directing collection
activities against Canadian persons. It is inconsistent with this scheme to
interpret section 12 of the CSIS Act to allow CSEC to conduct otherwise
prohibited collection activities without any ministerial or judicial oversight.
[89]
Having concluded that judicial oversight is
required, it is next necessary to consider the ability of the Federal Court to
issue such search warrants. This requires, to some extent, consideration of the
effect of Justice Blanchard’s decision that, on the facts before him, the
Federal Court lacked jurisdiction to issue the requested warrant.
[90]
Here, we emphatically endorse the submission of
the amicus that the
question of whether the Federal Court had jurisdiction to issue a warrant
authorizing the Service to lawfully intercept the communication of Canadians
abroad (through the agency of CSEC and another country) was not before Justice
Blanchard. Further, we see no legal impediment to the issuance of such a
warrant. Thus, for example, the Federal Court could issue a warrant where the
interception authorized by the warrant is in accordance with the domestic law
of the state in which the interception takes place.
[91]
What Justice Blanchard found was that the
Federal Court lacked jurisdiction to issue a warrant that authorized activities
in another country that CSIS conceded would violate the laws of that country.
This issue does not properly arise on this record and cannot be decided on the
record before us.
[92]
That said, we express concern that the argument
presented to Justice Blanchard does not appear to have been well-developed.
Notably, two important and interrelated legal doctrines do not appear to have
been addressed before Justice Blanchard.
[93]
First, as Justice LaForest wrote in R. v.
Libman, [1985] 2 S.C.R. 178 at pages 212-213, what is required to make an
activity that occurs outside of Canada subject to the jurisdiction of our
courts is that there be a “real and substantial link”
between the activity (in that case a criminal offence) and Canada. The real and
substantial link or connection test is well-established in both public and
private international law.
[94]
In Hape, at paragraph 62, the majority
quoted with approval Justice LaForest’s comment in Libman that what
constitutes a “real and substantial link” justifying
extraterritorial jurisdiction may be “coterminous with
requirements of international comity”.
[95]
It appears from Hape at paragraphs 61 to
64, that the stronger the real and substantial link between Canada and the extraterritorial enforcement of its law, the less such enforcement offends the
principle of comity.
[96]
It is for another day on another application
with a more fully developed record for the Federal Court to consider whether in
the national security context, section 21 warrants necessarily have a
sufficient real and substantial link to Canada that the Court may issue a
warrant that authorizes intrusive extraterritorial activity without offending
the principle of comity and principles of international law.
[97]
The second argument that apparently was not
developed before Justice Blanchard was the unique principles of
extraterritorial jurisdiction that can arise in the context of national
security.
[98]
In Charkaoui v. Canada (Citizenship and
Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, in the opening line of the
opening paragraph, the Chief Justice acknowledged that one of the most fundamental
responsibilities of a government is to ensure the security of its citizens.
This is so because the maintenance of national security is essential to the
maintenance of the Rule of Law.
[99]
It follows from the primacy of national security
that:
National security is arguably the most
important justification that can be advanced in support of legislation,
springing, as it does, from the necessity to safeguard and preserve the very
existence of the state and its democratic institutions and ensure their continued
survival. The need to safeguard the security of the nation can also be rooted
in the ability of the state to take measures to protect the national interest,
conduct its national defence or in the power to enact laws to ensure the
“peace, order and good government” of Canada. [footnotes omitted]
(Stanley A. Cohen “Safeguards in and
Justifications for Canada’s New Anti-terrorism Act”, 14 N.J.C.L. 99)
[100] Again, Justice Blanchard would have benefited from developed legal
arguments about the ability of Canada to take measures proportionate to threats
to its national security, including arguments based upon the doctrines of
necessity, self-defence and precautionary state activity.
[101] In the result, we respectfully question the conclusion that the
Federal Court lacks the jurisdiction to issue warrants authorizing CSIS to
conduct activities in another state where those activities may violate the laws
of that state. The intricacies of international law and the complexities of the
national security context do not lend themselves to an answer on such a topic
without a better record and fully developed arguments.
VIII.
Conclusion
[102] For the foregoing reasons, we have concluded that an appeal lies
from the Judge’s decision, the necessary extension of time should be granted
and that the decision is not moot. We have also decided that the Judge did not
err in his finding that CSIS breached its duty of candour or in his finding
that section 12 of the CSIS Act does not authorize CSIS to make requests to
foreign partners for the interception of telecommunications of Canadians
abroad.
[103] We have additionally noted that a warrant is required when the
Service either directly, or through the auspices of a foreign intelligence
service, engages in intrusive investigative methods such as the interception of
telecommunications. In our view, the Federal Court has jurisdiction to issue
such a warrant when the interception is lawful where it occurs. In our further
view, it remains an open question as to whether the Federal Court possesses
such jurisdiction when the interception is not legal in the country where it
takes place.
[104]
It follows that we will dismiss the appeal.
Counsel for the Service and the amicus have 10 days to provide written submissions on any redactions
required before these reasons are translated and released to the public.
“Pierre Blais”
“Eleanor R. Dawson”
“Robert M. Mainville”
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