Dockets:
CONF-3-17
Citation Number: 2017 FC 1048
Ottawa, Ontario,
September 27, 2017
PRESENT: THE CHIEF JUSTICE
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Docket:
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BETWEEN:
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IN THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||| FOR WARRANTS PURSUANT
TO SECTIONS 12 AND 21 OF THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT,
RSC 1985, c C-23
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and
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IN
THE MATTER OF |||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||| THREAT-RELATED
ACTIVITIES
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and
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Docket: ||||||||||||||||
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IN
THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||||||||||| FOR WARRANTS PURSUANT TO SECTIONS 12 AND 21
OF THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT, RSC 1985, c C-23
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and
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IN THE MATTER OF ISLAMIST TERRORISM
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PUBLIC
JUDGMENT AND REASONS
I. Introduction. 2
II. Background. 9
III. The
BII Authorizations Requested by CSIS. 13
IV. Issues. 17
V. Analysis. 19
A. Applicable
legal principles. 19
B. Can
the Court authorize CSIS to obtain BII in respect of communications accounts
corresponding to telephone numbers or electronic identifiers that may in the
future come to its attention in the course of its investigations, where CSIS
has not described and established their specific nexus to those investigations?. 21
(1) General 21
(2) The
BII Warrant and the first type of proposed amendments to the warrants issued in
|||||||||||||| 27
C. Can
the Court authorize CSIS to obtain BII in respect of communications accounts
identified pursuant to its review of specifically defined information obtained
in relation to ||||||
|| named individuals and |||||| additional
individuals who have been identified by reference to |||||||||||||||||||||||||||||||| 30
D. Can
the Court authorize an employee of CSIS to obtain BII of a communications
account that corresponds to a telephone number or an electronic identifier,
where a “Chief” within CSIS determines that the account was identified during
its investigation, and that the BII would assist CSIS in its investigation?. 33
VI. Conclusion. 39
APPENDIX I. 1
[1]
These applications concern requests by the Canadian
Security Intelligence Service [CSIS] for warrants in relation to its
investigation of two separate groups of activities that I am satisfied may on
reasonable grounds be suspected of constituting threats to the security of
Canada. CSIS has defined the first group in terms of “Islamist terrorism.” Those activities are the focus
of the application in Court file ||||||||||||||||||||||||
The second group consists of certain activities engaged in by ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Those activities are described in materials filed by CSIS in Court file ||||||||||||||||||||||
[2]
The applications raise three issues pertaining
to CSIS’s request to be able to obtain basic identifying information [BII] from
communications services providers [CSPs]. That information would be obtained in
respect of communications accounts of individuals whose telephone number, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
or other electronic identifiers may in the future come to CSIS’s attention in
the course of its investigations of the activities described above. BII consists
of the name and address of a subscriber to a communications account, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|||||||||||||||||||||||||||||[The information relating to IP addresses in certain
circumstances] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[3]
The Attorney General concedes that in the
absence of judicial pre-authorization, CSIS cannot obtain BII in respect of a
person’s communications account without contravening that person’s right to be
secure against unreasonable search or seizure, pursuant to section 8 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter].
[4]
Accordingly, the focus of these applications has
been upon a broad BII authorization that CSIS is seeking in each of ||||||||||||||||||||||
and ||||||||||||||||||||||,
a narrower BII authorization that it is seeking in ||||||||||||||||||||||
alone, and a delegation issue that exists with respect to the first of those
two authorizations. More specifically, the three issues raised by these
applications are as follows:
i.
Can the Court authorize CSIS to obtain BII in
respect of communications accounts corresponding to telephone numbers or
electronic identifiers that may in the future come to its attention in
the course of its investigations, where CSIS has not described and established
their specific nexus to those investigations? (This is a common issue in both
applications.)
ii.
Can the Court authorize CSIS to obtain BII in respect
of communications accounts identified pursuant to its review of specifically
defined information obtained in relation to |||||||| named individuals and ||||||
additional individuals who have been identified by ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(This issue arises only in ||||||||||||||||||||||||||
iii.
Can the Court authorize an employee of CSIS to
obtain BII in respect of a communications account that corresponds to a
telephone number or an electronic identifier, where a “Chief”
within CSIS determines that the account was identified during its
investigation, and that the BII would assist CSIS in its investigation? (This
is a common issue in both applications.)
[5]
In my view, the Court cannot provide the first
of the requested authorizations described above. It does not meet the basic
requirements for authorizing intrusive activity by the state.
[6]
Before the Court may authorize CSIS to obtain
BII or to exercise other intrusive search powers, the Court must have an
understanding of the nexus between CSIS’s investigation and the specific persons
or class of persons whose privacy rights would be engaged. Only then can the
Court assess whether the specific privacy interests of those persons must give
way to the interests of the state in obtaining the information in question. In
addition, CSIS must satisfy the requirements for obtaining a warrant set forth
in subsections 21(2) and (3) of the Canadian Security Intelligence Service
Act, RSC 1985, c C-23 [the Act], in respect of such person or class of
persons.
[7]
The Court has not been provided with that
required understanding of the nexus described above in respect of the broad BII
authorization that CSIS is seeking in both ||||||||||||||||||||||
and ||||||||||||||||||||||
Indeed, the Court has not been provided with any sense whatsoever as to how the
individual or class of individuals whose privacy interests would be intruded
upon would be linked to its investigations.
[8]
With respect to the second, narrower, BII
authorization that CSIS has requested in ||||||||||||||||||||||
alone, I am satisfied that the required nexus has been described and
established by CSIS. This is because that authorization is confined to
telephone numbers or electronic identifiers that CSIS may identify in the
course of reviewing information that specifically relates to ||||||||||||
identified individuals who are subjects of investigation. ||||||||
of those individuals have been identified by name, while the remaining ||||||
have been identified by reference to |||||| ||||||||||||||||||||||||||||||||||||||||||||||||
[9]
The information that relates to those
individuals includes BII |||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
information will reveal the ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
identifiers |||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[10]
I am satisfied that there are reasonable grounds
to believe that anyone with whom those |||||||||||| individuals has been in
contact may be able to provide information that will assist CSIS to advance its
investigation into the threat-related activities |||||||||||||||||||||| that it has
identified. For this reason, I am satisfied that there are reasonable grounds
to believe that CSIS requires the BII relating to the communications accounts
that correspond to the telephone numbers and electronic identifiers of those
third parties, to advance its investigation. Without being able to obtain that
BII, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[11]
Although the Court has not been provided with
the names of |||||| of those individuals, the Court has been
provided with sufficient information regarding ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
to be able to conduct the assessment required by section 8 of the Charter.
That assessment is whether the specific privacy interests of those individuals
must give way to the interests of the state in obtaining the BII that CSIS
requires to advance its investigation into the identified threat-related
activities ||||||||||||||||||||||||
[12]
At the time it issues a warrant authorizing the
exercise of powers that would intrude upon the privacy interests of one or more
individuals or classes of persons, the Court does not need to know the specific
names of those individuals or persons within the class. However, the Court
needs to have a sufficient understanding of the nexus between CSIS’s
investigation and the specific persons or class of persons whose privacy
interests would be intruded upon. The Court has been provided with that
understanding in respect the |||||| individuals ||||||||||||||||||||||||||||||||||
have been described to the Court, as well as in respect of the third parties
who CSIS may discover have been in contact with those individuals, or with the ||||||
other individuals who have been identified by name.
[13]
Where the Court is not able to conduct, in
advance, the assessment required by section 8 of the Charter in respect
of the specific individuals or class of individuals whose privacy interests
would be engaged by CSIS’s access to their BII, CSIS will need to return to the
Court each time it identifies additional telephone numbers or electronic
identifiers in respect of which it wishes to obtain BII from a CSP. At that
time, CSIS will have to establish a sufficient nexus between the telephone
number or other identifier in question and its investigations to satisfy the
Court that there are reasonable grounds to believe that CSIS requires the BII
of the corresponding communications account to advance those investigations.
[14]
The third issue raised in these proceedings is
whether the Court can authorize any employee of CSIS to obtain BII in respect
of a communications account, where an individual holding the position of Chief
within CSIS makes certain determinations. In my view, the Court cannot do so,
because this would amount to the delegation of functions that must be exercised
by the Court itself. Although the Court may delegate to CSIS certain types of
decisions with respect to the execution of its warrants, it cannot delegate the
determination of which specific communications accounts will be the subject of
requests to CSPs for BII. To the extent that this determination requires an
assessment of whether the privacy interests of the persons in question must
give way to the interests of CSIS in obtaining the BII in question, this is a
function that must be performed by the Court.
[15]
I recognize that the conclusions I have reached
in respect of the first and third issues discussed above may well impose a
potentially significant additional burden on CSIS. I also recognize that this may
give rise to additional costs and delays associated with obtaining BII
authorizations in relation to telephone numbers or electronic identifiers that
may come to CSIS’s attention during the course of its investigations into
Islamist terrorism and the threat-related activities ||||||||||||||||||||||||
Given the adverse implications that the potential delays, in particular, may
have for CSIS’s ability to investigate threat-related activities, the Court
will remain open to considering alternate approaches that are Charter compliant.
[16]
These reasons for judgment are being issued
contemporaneously with my reasons for judgment in |||||||||||||||||||||| which concerns
CSIS’s use of cellular-site simulator [CSS] technology to capture the identifying
characteristics of an individual’s mobile device(s) without a warrant ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[17]
This Court has been authorizing CSIS to obtain
subscriber and similar information from CSPs in respect of accounts
corresponding to telephone numbers and electronic identifiers for many years.
In most cases, such authorizations have been provided in respect of the ||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||
identifiers of known individuals who are subjects of investigation, or of third
parties with whom such individuals may communicate. However, in some cases the Court
has also authorized CSIS to obtain such information in respect of
communications accounts of known, but still unidentified, individuals. For
example, such authorizations have been provided in respect of individuals ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The same is true with respect to the |||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||
identifiers of third parties with whom such known, but as yet unidentified,
individuals have communicated, or may in the future communicate. Given that the
|||||||||||||||||||| ||||||||||||||||||||||||
identifiers in question are not yet known at the time of the warrant
application, they cannot be specified in the warrant.
[18]
The types of authorizations described above have
always been provided in warrants that have focused primarily upon named
subjects of investigation, also known as “targets,”
and their involvement in particular threat-related activities. In some of those
warrants, the Court also granted authorizations to obtain BII in relation to
the communication accounts associated with ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
identifiers that CSIS identified during its investigation of the threat to the
security of Canada in question, even where there was no direct link between
such ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
identifiers and the target(s) identified in the warrants. There was simply the
indirect link that existed by virtue of the fact that the ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
identifier would be identified in the future course of CSIS’s investigation of
the same threat to the security of Canada with which the named targets were
also connected.
[19]
However, beginning in 2013, some of my
colleagues and I started to express concerns about granting the latter type of
authorizations. After CSIS failed to avail itself of opportunities to address
our concerns, we began to narrow the scope of the powers that we authorized. However,
given that we did so in the context of individual applications for warrants,
which sometimes had to be dealt with on an urgent basis, this gave rise to some
inconsistencies in the language of the authorizations in question.
[20]
As a result of the foregoing, Justice Noël
advised CSIS in X (Re), 2016 FC 1105, at para 230 [X
(Re)], that broad authorizations of the type being sought in the present
proceedings, as well as authorizations to obtain ||||||||||||||||||||||||||||||||||||||||||||||||||||||
would no longer be granted by the Court until they were the subject of further
exchanges between the Court and CSIS. Soon afterwards, in ||||||||||||||||||||||||||
I requested that CSIS endeavour to establish the legal basis for this Court to
authorize such powers, in a separate proceeding. I explained that if CSIS could
establish that legal basis, the powers in question could be authorized in a
single application that would be made each year. Among other things, I
considered that such an approach would avoid having to deal with CSIS’s
requests for such broad authorizations in the context of multiple different
applications made over the course of a year, that are otherwise focused on named
subjects of investigation. I made the foregoing request after declining to
issue such an authorization.
[21]
The application in ||||||||||||||||||||||
is CSIS’s response to my request and to Justice Noël’s decision. CSIS requested
that I hear that application.
[22]
Given the position taken by Justice Noël in X
(Re) with respect to broad authorizations to obtain access to subscriber
data, CSIS’s application in ||||||||||||||||||||||
was separated into two phases. The first phase focused on warrant powers that
CSIS sought in respect of individuals who are subjects of its investigation
into the threat to the security of Canada posed by |||||||||||||||||| That phase of the
proceeding took place in February of this year, and was based on affidavit
evidence provided by Mr. |||||||||||||||||||||||||||| After being
satisfied that ||||||||||||||||
is engaged in activities that may on reasonable grounds be suspected of
constituting threats to the security of Canada, Justice Noël issued the
warrants that were sought at that time.
[23]
At Justice Noël’s suggestion, the second phase
of ||||||||||||||||||||
took place before me, and concerned two additional authorizations that CSIS is
seeking to add to three of the warrants that Justice Noël issued in the initial
phase of that proceeding. The first of those authorizations is essentially the
same as the sole, and very broad, authorization being sought in ||||||||||||||||||||||
[the BII Warrant]. The second is much more focused, and would enable
CSIS to obtain the BII corresponding to the communications accounts of third
parties whose telephone number or electronic identifier has been linked to one
or more of ||||||||
named individuals, or to |||||| unnamed individuals ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
At CSIS’s suggestion, the evidentiary hearings and oral submissions in this
second phase of ||||||||||||||||||||||
as well as in ||||||||||||||||||||||
were held separately, but concurrently, on ||||||||||||||||||||||||||||||||||||||||
and ||||||||||||||||||
of this year.
[24]
To preserve the status quo with respect
to the BII-type power that is being sought in ||||||||||||||||||||||
in relation to the threat to the security of Canada posed by Islamist terrorism,
I granted an interim order on ||||||||||||||||||||||||||||||||||
which provided CSIS with that authorization for 60 days, to permit me to complete
this decision.
[25]
In view of the nature of the legal issues raised
in this application, the Court retained Mr. Gordon Cameron and
Mr. Owen Rees to act as amici curiae.
[26]
Given that BII authorizations similar to those being
requested in these applications may be sought in future proceedings before
other designated judges of this Court, I considered it appropriate to convene
the designated judges of the Court to join me on the bench, so that they would
have the benefit of the evidence provided by the affiants, including on
cross-examination by the Amici. I also considered it to be important
that they have the benefit of responses provided by the affiants to questions
that any of them, or I, might pose. This should assist each of the designated
judges of the Court in any future applications that may involve a request for a
BII or similar authorization, and could reduce the need for similar evidence in
those applications.
[27]
Notwithstanding the involvement of other
designated judges of this Court in this proceeding, I assured CSIS and
representatives of the Attorney General at the outset of the initial hearing on
these applications that my judicial independence would not thereby be
compromised in any way. I, and I alone, have decided the issues that have been
raised in these applications.
[28]
Like several of my designated colleagues before
me in previous applications dating back several years, I am satisfied that there
are reasonable grounds to believe that activities that CSIS has defined as “Islamist terrorism” constitute a threat to the
security of Canada, and that the same is true with respect to the threat-related
activities engaged in by |||||||||||||||| that CSIS has identified.
[29]
Accordingly, the balance of these reasons for
judgment will focus on the three issues that are identified at paragraph 4
above.
[30]
In passing, and for completeness, I will add
that CSIS informed the Court earlier this year that it did not intend to seek
or address in either |||||||||||||||||||||| or ||||||||||||||||||||||
the ||||||||||||||||||||||||| |||||||||||||||||||||||||||| that was referred
to in X (Re), above. The Court understands that CSIS may return to the
Court to make separate submissions in respect of that power at a future date,
and that CSIS will not in the meantime be seeking any authorizations to use
that power in respect of |||||||||||||||||||||||||| communications accounts that
correspond to telephone numbers or electronic identifiers that have no direct nexus
with identified subjects of investigation.
[31]
The warrant that CSIS has requested the Court to
issue in |||||||||||||||||||||| consists of a single authorization.
It is as follows:
I authorize the Director and any employee of
the service acting under his authority to obtain BII relating to any account
with a CSP where a Chief determines that
a) the account was identified during the
investigation of Islamist terrorism and
b) the identity of the subscriber to the account will assist in
the investigation of Islamist terrorism.
[32]
“BII” is defined in the warrant to mean:
i.
The name of a subscriber to an account;
ii.
The subscriber’s address;
|||||||||||||||||||||||[The information relating to IP addresses in certain
circumstances] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[33]
In essence, this authorization would enable CSIS
to obtain BII in respect of any communications account corresponding to any
telephone number or electronic identifier that CSIS may identify during its
investigation into Islamist terrorism, where a Chief within CSIS determines
that BII will assist CSIS to advance its investigation.
[34]
The Attorney General analogizes this authorization
to a power to obtain “telephone book”
information, which traditionally has been required to identify individuals. The
Attorney General, the affiant in ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
and the affiant in ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
each maintained that this was the sole purpose of the BII authorization being
requested. In this regard, they emphasized that the BII authorization is not
used to track online activity. The Attorney General added that if CSIS wanted to
exercise such a power or indeed any other intrusive powers in respect of a
person, it would have to return to the Court to seek specific authorizations to
do so.
[35]
The BII Warrant that has been requested in ||||||||||||||||||||||
also provides that if, in executing the warrant, CSIS provides ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CSIS shall also provide ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Islamist terrorism. This requirement has been included as a safeguard to help ensure
that BII is provided in respect of the correct account, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||
[36]
For the purposes of the BII Warrant, “Islamist terrorism” is defined to mean “activities in paragraph (c) of the definition of ‘threats to
the security of Canada’ found in section 2 of the Act ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||| including activities of the |||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[37]
Both Mr. |||||||||||| and Mr. ||||||||||
testified that an authorization to obtain BII is crucial to CSIS’s ability to
investigate the threats to the security of Canada posed by the activities ||||||||||||
||||||||
and Islamist terrorism. This is because this may be the only manner in which
CSIS can identify a person who is behind a phone number||||||||||||[or an electronic identifier] ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
In addition, the ability to identify individuals and assess the nature of
their relationship to Islamist terrorism or to the threat related activities ||||||||||||||||||||||
is a fundamental building block of an investigation. This is particularly so
given that many people associated with the threats in question interact
exclusively or primarily by electronic means, and may never meet in person. According
to Mr. |||||||||||| “identification is ||||||||||||||||||||||||||||||||||||||||||||
part of the job,” and |||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
He emphasized that, without being able to identify someone, CSIS would not be
able to fulfill its mandate.
[38]
According to Mr. |||||||||||||||| the 2014-2016
Intelligence Priorities for CSIS from the Minister of Public Safety ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[39]
The BII authorizations that CSIS is seeking in
the amendments that it has requested be made to three of the warrants were
issued in the first phase of ||||||||||||||||||||||
are of two types. The first type would provide essentially the same broad
power that is being sought in ||||||||||||||||||||||||
That is to say, it would provide essentially the same authorization as is being
requested in the BII Warrant, albeit in respect of communications accounts that
are identified during CSIS’s investigation of the threat-related activities ||||||||||||||||||||||
that it has described.
[40]
The second type of authorization that CSIS is
seeking to add to three of the warrants that have been issued in ||||||||||||||||||||||
is much narrower. In brief, it would authorize CSIS to obtain BII in respect of
communications accounts identified pursuant to its review of specifically
defined information obtained in relation to |||||| named
individuals and |||||| additional individuals who ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[41]
It bears underscoring that no individuals are
named in the BII Warrant being sought in ||||||||||||||||||||||||
or in the first group of amendments that CSIS is seeking to add to three of the
warrants that have been issued in |||||||||||||||||||||| In the words of
Mr. ||||||||||||||
“the warrant itself is not |||||||||||||||||||||||||||||||||||||||||||||||||||| it’s against
Islamist terrorism.” Likewise, the amendments sought to three of the
warrants issued in |||||||||||||||||||||| are directed
towards the threat-related activities |||||||||||| ||||||||.
[42]
As explained at paragraph 4 above, the
applications in |||||||||||||||||||||| and ||||||||||||||||||||
raise the following three issues:
i.
Can the Court authorize CSIS to obtain BII in
respect of communications accounts corresponding to telephone numbers or
electronic identifiers that may in the future come to its attention in the
course of its investigations, where CSIS has not described and established
their specific nexus to those investigations?
ii.
Can the Court authorize CSIS to obtain BII in
respect of communications accounts identified pursuant to its review of specifically
defined information obtained in relation to |||||| named
individuals and |||||| additional individuals who have been
identified ||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||
iii.
Can the Court authorize an employee of CSIS to obtain
BII in respect of a communications account that corresponds to a telephone
number or an electronic identifier, where a “Chief”
within CSIS determines that the account was identified during its
investigation, and that the BII would assist CSIS in its investigation?
[43]
In both ||||||||||||||||||||||
and |||||||||||||||||||||||| the Attorney General raised an
additional issue, namely, the threshold issue of whether a warrant is required
to obtain BII from a CSP. However, in each proceeding, the Attorney General
conceded that a warrant is required to obtain BII from a CSP, because it may
engage privacy rights that are protected by section 8 of the Charter. This
is because “||||||||||||||||||||
information can be revealed to [CSIS] when BII is obtained from CSPs.”
Indeed, this was demonstrated by a number of examples included in the Attorney
General’s written submissions.
[44]
The Amici agreed. They maintained that,
in view of the fact that CSIS may well be able to use BII ||||||||||||||||||||||||||||||||||||||||||||||
to link previously anonymous |||||||||||||||||||||||||||| activity to
a named individual, such activity by CSIS would normally require a warrant. I
agree.
[45]
Given the Attorney General’s acknowledgement
that a warrant is required to access BII from a CSP, it is unnecessary to address
this issue in detail. I will simply note that the linking of previously
anonymous |||||||||||||||| activity to an individual’s
identity “engages a high level of informational privacy”
(R v Spencer, 2014 SCC 43, at para 51 [Spencer]). As
such, obtaining the information to make such a link, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
would constitute a “search” that is more
invasive than the minimally intrusive warrantless searches that are authorized
by section 12 of the Act.
[46]
The same is true with respect to telephone
numbers, which can assist CSIS to obtain valuable personal information about a
person. This was corroborated by one of the examples provided by Mr. ||||||||||||
in his affidavit.
[47]
I will simply add that the Attorney General’s
position that a warrant is required to obtain BII is consistent with the
position that she took in |||||||||||||||||||||| where she stated
on multiple occasions that a warrant would be required to obtain subscriber
information pertaining to any identifiers ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[48]
Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable
search or seizure.”
[49]
It follows that section 8 of the Charter
does not afford protection against all searches, only against unreasonable
ones (R v Gomboc, 2010 SCC 55, at para 20 [Gomboc]).
[50]
In assessing whether a search is “unreasonable,” courts must adopt “a purposive approach that emphasizes the protection of
privacy as a prerequisite to individual security, self-fulfilment and autonomy
as well as to the maintenance of a thriving democratic society” (Spencer,
above, at para 15).
[51]
Broadly speaking, a determination of whether a
search is unreasonable requires a balancing assessment of “whether in a particular situation the public’s interest in
being left alone by government must give way to the government’s interest in
intruding on the individual’s privacy in order to advance its goals” (Hunter
et al v Southam Inc, [1984] 2 S.C.R. 145, at 159–160 [Hunter]).
[52]
Given that the underlying purpose of section 8 is
to protect individuals from unjustified state intrusions upon their privacy,
prior authorization of those intrusions is presumptively required. Such
authorization must be given by an entirely neutral and impartial arbiter who is
capable of acting judicially in balancing the interests of the state against
those of the individual (Spencer, above, at para 68; Goodwin v BC
(Superintendent of Motor Vehicles), 2015 SCC 46, at para 56
[Goodwin]; Hunter, above, at 160-162).
[53]
In addition, the neutral arbiter must be
satisfied that the person seeking the authorization has reasonable grounds,
established under oath, to believe that the relevant statutory or other
conditions to be met before the search power may be exercised, have in fact been
met (Hunter, above, at 166-168).
[54]
In deciding whether to issue a warrant, the
neutral arbiter must have sufficient flexibility to consider all of the
circumstances that may be relevant to the exercise of discretion to issue the
warrant, and to impose any conditions that may be considered necessary (Baron
v Canada, [1993] 1 S.C.R. 416, at paras 437, 439, 440 [Baron]).
[55]
In her written and oral submissions, the
Attorney General characterized this issue as being whether the Act authorizes a
judge of this Court to issue warrants against “threat-related
activities.”
[56]
In support of her position that the Act is
sufficiently flexible to allow for the issuance of warrants in respect of activities,
the Attorney General notes that section 12 of the Act empowers CSIS to
investigate activities, and that the definition of “threats
to the security of Canada” that is set forth in section 2 of the Act also
refers to activities, without any reference to the persons who
would be conducting those activities. The Attorney General further notes that
paragraph 21(2)(d) requires a warrant application to be accompanied by an
affidavit that addresses various issues, including “the
identity of the person, if known, whose communication is proposed to be
intercepted or who has possession of the information, record, document or other
thing proposed to be obtained” (emphasis added).
[57]
The Attorney General submits that it may be
inferred from all of the foregoing that warrants issued pursuant to section 21
of the Act can be obtained to investigate identified threat-related activities.
She maintains that this is so even where the warrant does not name any
individuals or describe the specific nexus between CSIS’s investigation and the
individuals whose privacy interests would be intruded upon.
[58]
I disagree. With respect, that position confuses
the activities that CSIS is authorized to investigate under section 12 of the
Act, with the privacy interests that might be engaged by a warrant issued under
section 21 in connection with an investigation. Privacy interests are not held
by activities or threats, such as those posed by |||||||||||||||| or “Islamist terrorism,” or in respect of an event that
might be the focus of an investigation, such as the Vancouver Olympics or the
G7 meeting that took place in Toronto.
[59]
Privacy interests are held by individuals and
corporations, whether they be subjects of investigation, persons whose
connection to an investigation may remain to be ascertained, or persons who
might, on reasonable grounds, be believed to have information that is likely to
assist an investigation. In my view, the words “the
identity of the person, if known” (emphasis added) in paragraph
21(2)(d) simply reflects the practical reality that CSIS may not know, at the
time it applies for a warrant, the identity of an ascertainable person
whose communication is proposed to be intercepted, or who has possession of the
information, record, document or other thing proposed to be obtained under the
warrant, as contemplated by that provision.
[60]
Accordingly, the more relevant question that
arises in these proceedings is whether CSIS can be prospectively authorized to
obtain BII in relation to communications accounts that may in the future come
to its attention in the course of its investigations, where CSIS has not yet described
and established their specific nexus with those investigations. In my view, the
answer is “no, except in exceptional circumstances that
have not been demonstrated to exist in this case.”
[61]
This is because persons who are responsible for
authorizing the use of intrusive powers are required to consider the impact of
such intrusion on the specific “subject of the
search” (Hunter, above, at 157; Spencer, above, at para 36
(emphasis added)). In other words, an assessment must be made of the context of
each “particular situation,” and its impact on “the individual.” As the Amici
underscored, the balancing analysis to be conducted is between the interests of
the state and the interests of the specific individual whose privacy
interests are at issue (Hunter, above, at 159-160, 161-162, 167; Baron,
above, at 435-436, 437; R v Rodgers, 2006 SCC 15, at para 27
(emphasis added)).
[62]
Where a “class of
persons” whose privacy interests may be encroached upon can be described
in a manner that enables the Court to clearly understand the nexus between
those persons and the threat-related activities that are the focus of a CSIS
investigation, the balancing analysis described above can comfortably be
conducted in respect of those persons. In my view, this is contemplated by the
references to “class of persons” in paragraphs
21(2)(e) and 21(4)(c) of the Act.
[63]
The need to consider the interests of the
specific individual or class of individuals whose privacy interests are engaged
is reinforced by three additional requirements that have been established by
jurisprudence under section 8 of the Charter. The first is the
requirement to assess the individual’s subjective expectation of
privacy, when considering whether there is a reasonable expectation of privacy (Spencer,
above, at para 18). The second is the requirement that CSIS’s powers to
investigate activities that pose threats to the security of Canada must be “strictly controlled” (Charkaoui v Canada, 2008
SCC 38, at para 22 [Charkaoui], quoting the Report of the Special
Senate Committee on the Canadian Security Intelligence Service, Delicate
Balance: A Security Intelligence Service in a Democratic Society, November
3, 1983, at para 25; see also Baron, above, at 436-437). The third is the
requirement to consider “the totality of the
circumstances” (Spencer, above, at para 18). In my view, this implies
that the interests of the specific person(s) whose privacy interests are at
stake must be taken into account. It is difficult to imagine how the totality
of the circumstances would not involve an assessment of the privacy interests
of the very individual(s) whose interests would be engaged if CSIS were to
obtain BII from a CSP.
[64]
Notwithstanding the foregoing, it is not
necessary for warrants that authorize CSIS to obtain BII to associate the communications
accounts in question with named individuals. It is often precisely because CSIS
does not know the name associated with a telephone number, ||||||||||||||||||||[or an electronic identifier] ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
etc. that it needs to be able to obtain BII in respect of the corresponding
communications account from a CSP.
[65]
Even though CSIS may not know an individual’s
name, it may know sufficient information about the individual ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
to provide the Court with reasonable grounds to believe that obtaining the BII of
a particular communications accounts is required to advance its investigation,
as contemplated by paragraph 21(2)(a) of the Act. This may be because the
individual behind a telephone number or electronic identifier appears to be
engaged in activities that pose a threat to the security of Canada, or because
he or she appears to be in a position to provide information that will assist
CSIS to advance its investigation into those activities. I accept Mr. ||||||||||||||
testimony that obtaining BII, and thereby learning who is behind ||||||||||||||||||||||||||||||||||||||||
identifiers |||||||||||||||||||||||||||||||||||||| can
assist CSIS to advance an investigation.
[66]
In such situations, it will suffice if CSIS can
provide sufficient evidence about a telephone number or one of the types of other
identifiers mentioned above to establish reasonable grounds to believe that CSIS
requires the BII of the account corresponding to that number or identifier, to
advance its investigation. In my experience, those grounds can often be
established by providing the Court with a brief description of the context in
which CSIS obtained the telephone number or other identifier in respect of
which BII is sought. It is that specific context that can provide the Court
with the nexus between the unidentified individual whose privacy rights will be
engaged by the BII power, and CSIS’s investigation.
[67]
Where CSIS is not in possession of the telephone
number or other identifier at the time of a warrant application for
authorization to obtain BII information, it will remain open to CSIS to
describe the telephone number or identifier in a way that enables the Court to satisfy
itself of the matters referred to in paragraphs 21(2)(a) and (b) of the Act.
With respect to the reasonable grounds to believe referred to in paragraph
21(2)(a), it may suffice to provide the Court with an understanding of the
nexus between CSIS’s investigation and the specific individual(s) whose privacy
interests would be intruded upon. For example, it may suffice to describe a
telephone number in terms of a future communication by a subject of
investigation. If there were reasonable grounds to believe that the subject of
investigation may be engaged in activities that pose a threat to the security
of Canada, there would be reasonable grounds to believe that the BII associated
with the telephone numbers at each end of a future call placed or received by
that individual is required to assist CSIS to advance its investigation of the
threat-related activities of that person. Stated differently, this information would
provide the Court with the reasonable basis contemplated by section 8 of the Charter
on which to authorize CSIS to obtain the BII pertaining to the accounts of both
the subject of investigation, and the yet-to-be identified third parties with
whom he or she may communicate.
[68]
For the same reason, it may suffice for CSIS to
describe a BII authorization that it may wish to seek, by reference to a ||||||[landline or electronic account] ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
account that CSIS may in the future discover has been used by a subject of
investigation. The same would apply with respect to ||||||||||[landline or
electronic account] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
accounts that CSIS may in the future discover are used by individuals ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Of course, CSIS would have to establish at the time it seeks the BII authorization
in question that there are reasonable grounds to believe that persons ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
may have been associated with the threat-related activities in question.
[69]
In my view, the foregoing examples would meet
the requirements of both section 21 of the Act and section 8 of the Charter.
They strike an appropriate balance between the public interest in affording
CSIS with a reasonable degree of flexibility to fulfill its statutory mandate,
and the privacy interests of yet-to-be identified individuals whose BII would
be obtained under a warrant. Among other things, those examples help to respond
to the practical difficulty associated with threat-related activities in
respect of future events (Atwal v Canada, [1988] 1 FC 107,
127 [Atwal]).
[70]
With the foregoing in mind, it should be readily
apparent that the appropriate balance is not met with the BII Warrant that CSIS
has sought in ||||||||||||||||||||||
or with the first type of amendments that have been proposed to three of the
warrants that were issued in ||||||||||||||||||||||||
[71]
This is because the requested authorizations
would permit CSIS to obtain BII in respect of any communications
accounts that CSIS may identify over the course of very broadly defined
investigations into threats to the security of Canada posed by Islamist
terrorism and certain activities of |||||||||||||||||| where CSIS simply
determines that BII will assist it in its investigation. Among other things,
CSIS has not provided the Court with any understanding whatsoever of the
specific nexus between (i) the as-yet-to be discovered telephone numbers and
electronic identifiers in respect of which BII would be sought, and (ii) CSIS’s
investigations. The loosely defined “nexus” is
simply too broad and nebulous (R v Chehil, 2013 SCC 49, at paras 36 and 51).
And it does not provide sufficient information for the Court to be
satisfied that such BII information is required to enable CSIS to
investigate the threat to the security of Canada posed by Islamist terrorism,
as contemplated by paragraph 21(2)(a) of the Act.
[72]
As I have noted earlier, CSIS has described the
threat to the security of Canada in ||||||||||||||||||||||
in terms of “activities in paragraph (c) of the
definition of ‘threats to the security of Canada’ found in section 2 of the Act
that are ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[73]
The language of the proposed BII Warrant does not
enable the Court to know with which of the |||| identified ||||||||||||||||||||||||||||||||||
groups a communications account would be associated. Indeed, it does not even
enable the Court to know the ||||||||||||||||||||
to which the telephone number or identifier would pertain. In my view, this
does not permit to the Court to have a sufficient sense of the nexus between the
identified threat-related activities of Islamist terrorism and the individual
whose privacy rights would be encroached upon to be considered “reasonable” within the meaning of section 8 of the Charter.
[74]
This problem, which is fatal in and of itself,
is exacerbated by the fact that one of the clauses in the BII Warrant that I
initially assumed would limit, at least to some extent, the scope of the
warrant, will not in fact have that effect. Specifically, I had assumed that
the words “where a Chief determines that […] the
identity of the subscriber to the account will assist in the investigation of
Islamist terrorism,” would place some important limit on the scope of
the warrant. However, Mr. |||||||||| testified that obtaining BII
will always assist CSIS’s investigation, even if it merely confirms that
the individual who is identified through the BII is of no value to the
investigation. Mr. ||||||||||
explained that even just eliminating a person from further consideration will
invariably assist an investigation. The logical extension of that argument is
that the obtaining the BII corresponding to any and all accounts that
are merely identified in the course of an investigation will always assist in
that investigation.
[75]
I will pause here to observe that one of the
consequences of a determination that the BII of any account will assist in
CSIS’s investigation is that CSIS would retain collected information
indefinitely. Another consequence is that such information may well be shared
with a foreign intelligence agency.
[76]
The same problems exist with the first of the
two types of BII authorizations that CSIS requested be added to three of the
warrants that were issued in the first phase of |||||||||||||||||||||| I recognize
that the threat-related activities in ||||||||||||||||||||||
are more narrowly defined than they are in ||||||||||||||||||||||||
as they are confined to activities of ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||that
fall within paragraphs (a) and (b) of the definition of “threats to the security of Canada” set forth in
section 2 of the Act. Nevertheless, to the extent that the language of the
first group of authorizations sought in the requested warrant amendments in ||||||||||||||||||||||
is virtually identical to the language of the BII Warrant being sought in ||||||||||||||||||||||||
it suffers from the same fatal flaw of overbreadth. This is because the Court
has no understanding whatsoever of the specific nexus between the as-yet-to be
discovered telephone numbers or electronic identifiers, and CSIS’s
investigation.
[77]
In passing, I will pause to recognize that in
exceptional circumstances, CSIS may require BII or similar information in a
shorter timeframe than may be needed to obtain a warrant or an amendment to an
existing warrant. One such circumstance was the focus of an ||||||||||||||||||||||||||||||||||||
Warrant that was sought and granted in ||||||||||||||||||||||||||
There, Justice Noël recognized that CSIS needed to be able to investigate
threat-related ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Accordingly, he authorized CSIS to obtain subscriber information ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
during its investigation of the threat to the security of Canada in question,
where a Regional Director General or his designated had reasonable grounds to
believe that such information might assist in that investigation. ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
However, CSIS was then subject to a condition that required it to bring a
further application to the Court, without delay, to execute the warranted
powers in respect of any ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
all as defined in the warrant.
[78]
In my view, no exceptional situation of this
nature, or any other nature, has been identified in these proceedings.
[79]
This issue is raised solely in respect of the
second type of BII authorization that CSIS has requested be added to three of the
warrants in ||||||||||||||||||||||
This authorization would enable CSIS to obtain BII in respect of communications
accounts identified pursuant to its review of specifically defined information
obtained in relation to |||||| named individuals and ||||||
additional individuals who have been identified ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[80]
In my view, this authorization does not suffer
from the defects described in the preceding section above. It is perhaps for
that reason that it was not the subject of significant submissions by the
Attorney General or the Amici in these applications. Accordingly, I will
only deal with this type of authorization briefly.
[81]
In contrast to the first type of authorization
sought in |||||||||||||||||||||||| and to the BII Warrant
sought in |||||||||||||||||||||||| the Court has been
provided with the information that it requires to grant the authorization. That
is to say, it has been provided with sufficient information to have reasonable
grounds to believe that the BII of the specific individuals whose privacy
rights would be encroached upon is required to assist CSIS to advance its
investigation into |||||||||||||||||||||| threat-related
activities.
[82]
Specifically, paragraph 10(a) of the ||||||||||||||||||||||||||||||||||||||||||||||||||||||
would authorize the Director of CSIS and any employee of CSIS acting under his
authority to obtain BII in respect of any third party account with a CSP that
CSIS may identify during its review of:
i.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|||||||||||||||||||| [the Identified Individuals];
ii.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||
iii.
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
iv.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||
[83]
CSIS seeks to include essentially the same
authorization in paragraph 2(a) of the ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
and in paragraph 5(a) of the ||||||||||||||||||||||||||||||||||||
[84]
The information described at paragraph 82 above
all relates directly to |||||||||||||||||||||||||||||||||||||||||| individuals who
are subjects of investigation. There are reasonable grounds to believe that
those individuals may be engaged in activities that constitute threats to the
security of Canada. Based on those facts, I am satisfied that CSIS has
established reasonable grounds to believe that BII in respect of telephone
numbers or electronic identifiers that it may identify, after reviewing the
information described at paragraph 82 above, is required to enable CSIS to
advance its investigation into the threat-related activities ||||||||||||||||||||||||
[85]
I will simply add in passing that I am satisfied
that the other preconditions to obtaining a warrant, as set forth in paragraph
21(2)(b) of the Act, have been met.
[86]
In summary, I will grant the second group of
requested amendments to three of the warrants that were previously issued by
Justice Noël in |||||||||||||||||||||||| to enable CSIS to
obtain BII in respect of communications accounts of third parties that may be
identified pursuant to its review of the information of the Identified
Individuals that is described at paragraph 82 above.
[87]
Nevertheless, I have a concern regarding the
potentially large number of third parties whose BII may be obtained by CSIS, as
a result of the execution of this BII authorization in respect of the ||||||||||||||||||||||||||||||
Individuals who are targets ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Those ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
respectively. Given the nature of ||||||||||||||||||||||||||||
it is reasonably foreseeable that a potentially large number of members of the
public who communicate with those individuals for entirely legitimate purposes will
come within the scope of the BII authorization. And once subject to that
authorization, their BII may be obtained by CSIS and retained indefinitely.
Accordingly, it will be necessary to develop some conditions to address these
issues.
[88]
The Attorney General submits that a judge of
this Court has the required discretion to allow a designated employee within
CSIS to determine whether prescribed circumstances have been met for CSIS to
request and obtain BII from a CSP. In this regard, the Attorney General
maintains that discretion may rest with those responsible for the execution of a
warrant, because such discretion will frequently be necessary. For example, she
notes that general warrants issued under the Criminal Code, RSC, 1985, c
C-46, often allow police a degree of discretion that is reasonably necessary to
carry out a search (R v Poirier, 2016 ONCA 582, at paras 34 and 49), to search
things that are not identified in the warrant (R v Noseworthy, 33 OR
(3d) 641), or to search during a timeframe that is not specified in the warrant
(R v Telus Communications Co., [2013] 3 S.C.R. 16, at para 69).
[89]
The Attorney General asserts that the discretion
being sought is appropriate because of several safeguards that have been put in
place to ensure that there is only a minimal impact on any privacy rights that
may be engaged as a result of CSIS obtaining access to BII, and to ensure
compliance with what the Court will be authorizing. Those safeguards are as
follows:
i.
Before making a request for BII from a CSP, CSIS
will first try to confirm the identity of the subscriber in question by other
means.
ii.
Each request for BII from a CSP ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
iii.
Before a Chief may approve a request for BII, he
must be satisfied that the circumstances specified in the warrant exist, namely
that (i) the telephone number or |||[electronic
identifier] |||||||| was identified in the course of
the investigation in question, and (ii) obtaining the identity of the
subscriber will assist in that investigation.
iv.
The BII authorization provides that, when CSIS ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||||
v.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
vi.
CSIS will be required to destroy any information
provided by a CSP that does not fall within the strict definition of BII.
[90]
The Amici acknowledge that agents of the
state such as CSIS may be accorded a certain degree of discretion with respect
to the manner in which a warrant is executed, including the discretion
to do what is reasonably necessary to execute the warranted powers, and some
temporal flexibility. However, they maintain that the BII Warrant and the first
type of proposed amendments to the warrants that were issued in ||||||||||||||||||||||
go far beyond the discretion that may be granted to CSIS with respect to the execution
of the proposed warranted powers.
[91]
I agree. In my view, those proposed
authorizations would impermissibly delegate to a person holding the position of
“Chief” within CSIS a function that must be
performed by a designated judge of this Court (Canadian Security
Intelligence Service Act (Re), [1998] 1 FC 420, at para 17 [CSIS
Act (Re)]). That function is the determination of which specific
communications accounts will be the subject of requests to CSPs for BII. In the
exercise of that function, persons holding the position of “Chief” within CSIS would, in essence, make the determination
of whether the grounds that must be established before a specific individual’s
privacy interests can be intruded upon, have been met.
[92]
Only a designated judge can make such determinations
in respect of the exercise of powers by CSIS that are more than minimally
intrusive in nature. In conceding that a warrant is required to obtain the
proposed authorizations, the Attorney General has also effectively conceded
that those authorizations would be more than minimally intrusive in nature.
[93]
An authorization for CSIS to engage in what
amounts to a search that is more than minimally invasive in nature must be
given by an entirely neutral and impartial arbiter who is capable of acting judicially
in balancing the interests of the state against those of the individual whose
privacy rights would be encroached upon (Spencer, above, at para 68; Goodwin,
above, at para 56; Hunter, above, at 160-162; R v Thompson,
[1990] 2 S.C.R. 1111, at 1134; R v Grabowski, [1985] 2 SCR 434,
at 445-446).
[94]
An individual holding the position of Chief
within CSIS is not capable of acting judicially in this regard, because such
individuals cannot neutrally and impartially conduct that balancing exercise.
As employees of CSIS, they are not neutral or independent in the sense required
by the jurisprudence. In other words, the nature of their investigative
functions “ill-accords with the neutrality and
detachment necessary to assess whether the evidence reveals that the point has
been reached where the interests of the individual must constitutionally give
way to those of the state” (Hunter, above, at 164; R v
Généreux, [1992] 1 S.C.R. 259, at 311-312).
[95]
This is borne out by the testimony provided by
Mr. ||||||||||
regarding the likely incentives of an individual holding the position of Chief
within CSIS. For example, at one point during the hearing, Mr. ||||||||||
stated:
I think the Chief’s incentive is the same as
everybody else’s incentive. It’s to determine whether or not there is a threat
activity going on, to determine whether or not there is a threat to national
security, and if so, to be in a position to investigate it and thereby be able
to inform the government.
[96]
In response to further questioning from the Court
on this point, he stated:
To me the calculus on this one is very easy.
The risk of not pursuing means I have a potential threat that I know nothing
about, and I’m not willing to live with that.
[97]
Elsewhere, he observed:
[…] I am not sure that the risk that the
Chief would be assessing would be the risk of doing it but perhaps the risk of
not doing it.
If we had a situation where there is a piece
of information that is missing from the puzzle and I believe as the Chief, if I
am signing this, that to get that piece of information will advance my
investigation and allow me to have a better overview of the situation, then the
risk of not doing that is I can’t do my job. I can’t provide that value added
advice to the Government of Canada. I can’t tell them what the threat is.
[98]
In my view, it is readily apparent from the
foregoing passages of Mr. |||||||||||||| testimony that a Chief within CSIS would
have a bias towards authorizing the obtaining of BII from a CSP any time that
he thought that this would advance CSIS’s investigation. And as discussed at
paragraph 74 above, Mr. |||||||||| also testified that obtaining BII would always
advance CSIS’s investigation, even where it simply assists CSIS to determine
that the individual behind a telephone number or electronic identifier is not
involved in threat-related activities, and therefore cannot provide information
that will assist CSIS to advance its investigation.
[99]
In summary, this Court cannot authorize an
employee within CSIS to obtain BII corresponding to a telephone or an
electronic identifier, where a “Chief” within
CSIS determines that the account was identified during its investigation, and
that the BII would assist CSIS in its investigation. Determinations as to which
specific communications accounts may be the subject of requests to CSPs for BII
must be made by a designated judge of this Court. Allowing such determinations
to be made by a Chief within CSIS would constitute an impermissible delegation
of the Court’s responsibility to determine whether the grounds to be met before
an individual’s privacy interests can be intruded upon, have been met.
Moreover, Chiefs within CSIS would not have the required degree of neutrality
and impartiality to perform this important function.
[100]
In my view, all of the foregoing is rendered
even more troublesome by (i) the very broad definition of Islamist terrorism
that CSIS has adopted, (ii) the fact that CSIS would indefinitely retain all of
the BII that it seeks to obtain under the requested authorizations, and (iii) the
fact that there would be no limit whatsoever on CSIS’s ability to share that
information with foreign intelligence agencies.
[101]
The defects identified above do not exist with
respect to the second type of authorization that CSIS has sought in ||||||||||||||||||||||
This is because the Court is able to perform, in advance, the required
balancing assessment in respect of the privacy rights of the ascertainable, but
yet-to-be identified third parties behind those telephone numbers and
electronic identifiers, and the interests of the state. As in Thompson,
above, those yet-to-be identified third parties can be ascertained and
circumscribed by reference to their communications with known subjects of
investigation who have been identified in the warrant (Thompson, above
1134-1135).
[102]
In brief, once the Court is satisfied that there
are reasonable grounds to believe that the Identified Individuals are engaged
in activities that may pose a threat to the security of Canada, it has a
specific basis upon which to be satisfied on that basis alone that there are
reasonable grounds to believe that third parties, with whom the Identified
Individuals are communicating, may have information that will assist CSIS to
advance its investigation, and that, therefore, CSIS requires the BII in
question in order to advance its investigation.
[103]
For the reasons set forth in Parts V.B and D.
above, the Court cannot provide the broad authorization that CSIS has sought in
the BII Warrant and in the first type of proposed amendments to three of the
warrants that were issued in the first phase of ||||||||||||||||||||||||
[104]
This is so for two principal reasons. First,
CSIS has not established and described the specific and required nexus between
(i) the future telephone numbers and electronic identifiers that it may
identify, and in respect of which it would like to be authorized prospectively
to obtain BII, and (ii) its investigations into Islamist terrorism, or the
threat-related activities ||||||||||||||||||||||||
respectively. The loosely defined “nexus” that
CSIS has described is simply too broad and nebulous. Moreover, CSIS has not provided
sufficient information for the Court to be satisfied that BII is required
to enable it to investigate the threats to the security of Canada posed by
Islamist terrorism and |||||||||||||||||| as contemplated by paragraph 21(2)(a)
of the Act.
[105]
Second, that proposed authorization would
impermissibly delegate to a person holding the position of “Chief” within CSIS a function that must be performed
by a designated judge of this Court. That function is the determination of
whether the grounds that must be established before a specific individual’s
privacy interests can be intruded upon, have been met. Quite apart from the
fact that this is a function that must be performed by a designated judge of
this Court, a Chief within CSIS is not capable of making the required
determination in a neutral and unbiased manner, as required by section 8 of the
Charter.
[106]
However, for the reasons set forth in Part V.C
above, the Court is able to authorize the second group of amendments that CSIS
has proposed be made to the warrants that were granted in ||||||||||||||||||||||||
This is because CSIS has established reasonable grounds to believe that BII
information in respect of telephone numbers or electronic identifiers that it
may identify after reviewing the information described at paragraph 82 above,
is required to enable CSIS to advance its investigation. That information all
relates directly to |||||||||||| Identified Individuals who
are subjects of investigation.
[107]
Given the conclusion that I have reached with
respect to the BII Warrant and the first group of amendments that CSIS has
proposed in ||||||||||||||||||||||
it will be necessary for CSIS to seek an authorization from the Court each time
it identifies additional telephone numbers or electronic identifiers in respect
of which it wishes to obtain BII from a CSP. At that time, CSIS will have to
establish a sufficient nexus between the telephone number or other identifier
in question and its investigation to satisfy the Court that there are
reasonable grounds to believe that CSIS requires the BII of the corresponding
communications account to advance its investigation.
[108]
This is subject to the proviso that CSIS
need not return to the Court when it has already obtained an advance authorization
to obtain the BII of communications accounts corresponding to the telephone
numbers or electronic identifiers of ascertainable, but yet-to-be identified
individuals, such as those described in paragraphs 65-69 and 101-102 above.
[109]
I recognize that the conclusion I have reached
will likely impose an additional burden on CSIS. I also recognize that this may
give rise to additional costs and delays associated with obtaining BII
authorizations in relation to telephone numbers or electronic identifiers that
may come to CSIS’s attention during the course of its investigations into
Islamist terrorism and the threat-related activities ||||||||||||||||||||||||
and which are not linked with a target that is the subject of a warrant. Given
the adverse implications that the potential delays, in particular, may have for
CSIS’s ability to investigate threat-related activities, the Court will remain
open to considering alternate approaches that are Charter compliant.
[110]
In this regard, I note that CSIS already has an
internal process in place that requires those who wish to seek warrant powers
to explain why they require BII in respect of a telephone number or an
electronic identifier that has been identified in the course of an
investigation. Those explanations are provided in ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
forms, a number of examples of which were provided to the Court in the course
of these applications. In my view, many of the examples of ||||||
forms provided to the Court contain sufficient information to provide the Court
with reasonable grounds to believe that the BII in question was required to
enable CSIS to investigate the threat-related activities of Islamist terrorism
and ||||||||||||||||||
[111]
I find it difficult to understand why it would
require substantial time and effort to provide the Court with essentially the
same information that has already been prepared by CSIS internally. If such
information were simply provided by way of a supplementary affidavit, together
with a proposed amendment to an existing warrant, the time and effort that
would be required on CSIS’s part may not be unduly onerous at all.
JUDGMENT in ||||||||||||||||
THIS COURT’S JUDGMENT is that this
application is dismissed.
JUDGMENT in ||||||||||||||||
THIS COURT’S JUDGMENT is
that this application is dismissed in part. Specifically:
1.
For the reasons provided in Parts V.B. and D. of
the attached Judgment and Reasons, the following amendments that the Attorney
General has sought to three of the warrants that were issued by Justice Noël
during the first phase of this application will be not be granted:
i.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||| new paragraph 10(b);
ii.
|||||||||||||||||||||||||||||||||||||| new paragraph 5(b);
iii.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| new paragraph 2(b));
2.
For the Reasons provided in Part V.C. of the
attached Judgment and Reasons, the other amendments that the Attorney General
has sought to the aforementioned warrants will be granted.
The present Judgment and Reasons shall, within seven (7)
days of receipt, be reviewed jointly by the amici curiae and the
Attorney General with a view to making a joint recommendation to the Court
regarding redactions to the version of the Judgment and Reasons that will be
made public. The Attorney General and the Amici must be guided by the
open Court principle in their consultation and determination. Any contentious
issues shall be drawn to my attention or to the attention of another designated
judge, if I am unable to exercise my judicial function.
"Paul S. Crampton"
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