TOP SECRET
Date: 20241024
Dockets: CSIS-13-17
CSIS-16-18
Citation: 2024 FC 1689
Ottawa, Ontario, October 24, 2024
PRESENT: The Honourable Madam Justice Kane
BETWEEN: |
IN THE MATTER OF AN APPLICATION BY [_..._] FOR WARRANTS PURSUANT TO SECTIONS 16 AND 21 OF THECANADIAN SECURITY INTELLIGENCE SERVICE ACT, RSC 1985, C C-23
AND IN THE MATTER OF [_..._]
|
REASONS
I. Background
[1] On December 7, 2018 the Attorney General of Canada [AGC] filed an application [the Application] seeking authority for the Canadian Security Intelligence Service [CSIS or the Service] to retain solicitor-client communications intercepted, retained and isolated in the course of executing warrants granted pursuant to sections 16 and 21 of the Canadian Security Intelligence Service Act, RSC 1985 c C-23 [CSIS Act] in 2017 and 2018. The retention of those solicitor-client communications was governed by Condition 2 of the respective warrants, as Condition 2 provided at the relevant time.
[2] Solicitor-client privilege is very close to an absolute privilege, but narrow exceptions exist. The law governing solicitor-client privilege has continued to emphasize the almost absolute nature of the privilege. The law has evolved largely in the context of the searches of law offices and in criminal proceedings. There is limited jurisprudence regarding solicitor-client privilege in the national security context and none in the international affairs context. In recent years, in the context of specific warrant applications, including this Application, the Court has questioned whether the condition in warrants that recognize exceptions to solicitor-client privilege and the internal practices within CSIS with respect to the identification of solicitor-client communications reflect the jurisprudence.
A. Issues raised by the Court
[3] By Order dated January 21, 2019, I raised the same questions in the particular circumstances of the Application (i.e., an interception in the execution of a warrant granted pursuant to sections 16 and 21 of the CSIS Act). I requested submissions on the following issues:
Whether Condition 2 found in warrants issued pursuant to sections 16 and 21 of the CSIS Act complies with the current jurisprudence with respect to solicitor-client privilege;
In the event that Condition 2 does not fully comply with the prevailing jurisprudence, under what circumstances may the Service use, retain or disclose solicitor-client privileged communications that have been intercepted or obtained pursuant to a warrant issued under sections 16 and 21 of the CSIS Act; and
Any related issue or refinement or expansion of the above noted issues, following the amicus’ review of the relevant information and discussion with counsel for the AGC, and with the Court if necessary or helpful.
[4] I appointed Mr. Gordon Cameron as amicus curiae [amicus] to assist the Court.
[5] The AGC recently confirmed that CSIS is no longer seeking authority to retain the solicitor-client communications at issue in the Application and that the recordings of the incidentally intercepted communications have been deleted. Reports from four of the communications remained sequestered and would soon be destroyed. As a result, I do not need to determine the Application. However, I will address the issues initially raised in my January 2019 Order and subsequently expanded by the AGC and the amicus.
[6] There were many unforeseen delays in the receipt of affidavits from the AGC and submissions on the issues, including the availability of affiants for this Application due to the impact of COVID-19 and their personal access to relevant information.
[7] In the interim, in Re Unnamed person, 2020 FC 1190 [Unnamed person], Justice Henry S. Brown considered similar and related issues. In Unnamed person, in the execution of a warrant granted pursuant to sections 12 and 21 of the CSIS Act, CSIS incidentally intercepted communications [_..._].
[8] Justice Brown found that the process for CSIS to seek a determination from the Court on whether incidentally intercepted communications were protected by solicitor-client privilege required change in order to comply with the law. Justice Brown canvassed the jurisprudence and set out the requirements for a new process for CSIS to seek a determination from the Court on whether the intercepted communications are solicitor-client privileged and if so, whether and how CSIS may retain or use the communications.
[9] In response to Unnamed person, the AGC has clarified some definitions and proposed other changes to the conditions, including to reflect a revised CSIS protocol.
[10] Despite the time that has elapsed since I requested submissions on the questions raised in this Application, the Court has remained alert to the evolution in the jurisprudence governing solicitor-client privilege and has been guided by the process set out in Unnamed person.
[11] A short description of the findings in Unnamed person and the process set out by Justice Brown follows.
[12] In Unnamed person, Justice Brown addressed several issues, including how to protect solicitor-client privilege in communications intercepted pursuant to a warrant. Justice Brown noted, based on the facts of the specific application, that it was known that communications [_..._] would likely be incidentally intercepted [_..._].
[13] The warrants at issue included definitions of “solicitor”
and “solicitor-client communication”
and imposed the customary condition regarding the prohibition on interception at the premises of a solicitor, the requirement to destroy such communications where incidentally intercepted and the exception to the requirement to destroy.
[14] Justice Brown noted the scope of solicitor-client privilege and identified concerns about the scope of the privilege, the implications of incidental collection and the exceptions that would permit retention of the communications. Justice Brown also highlighted concerns about the process by which CSIS identifies solicitor-client communications and then determines whether the communications are privileged and whether judicial authority to retain the communications should be sought.
[15] Justice Brown canvassed the Supreme Court of Canada jurisprudence governing solicitor-client privilege more generally and the jurisprudence of the Federal Court of Appeal and of this Court regarding solicitor-client privilege in the context of warrants issued pursuant to section 12 of the CSIS Act (i.e., to investigate a threat to national security).
[16] Justice Brown did not express the concerns now raised by the amicus in this Application that the jurisprudence (Atwal v Canada, [1988] 1 FC 107; CanLII 8975 (FCA) [Atwal]; Mahjoub (Re), 2013 FC 1096 [Mahjoub FC] and Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 [Mahjoub FCA]) should not be relied on to justify a national security exception to solicitor-client privilege in the section 12 warrant context. Justice Brown cited Mahjoub FC at paragraph 88, in support of finding that the jurisprudence allows solicitor-client communications to be incidentally intercepted under a warrant issued in accordance with section 21 of the CSIS Act on national security grounds and that section 21 does not infringe sections 7 or 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK) [the Charter].
[17] In Unnamed person, Justice Brown relied on Mahjoub FC and Mahjoub FCA, and agreed that necessity may require the interception of solicitor-client communications, but that any such intrusion must be minimized.
[18] In Unnamed person, at paragraph 47, Justice Brown noted that in Mahjoub FC (a challenge to the security certificate and to exclude evidence obtained pursuant to CSIS warrants), at paragraph 84, the Federal Court cited Almrei (Re), 2008 FC 1216 [Almrei], to find that “while it is permissible to intercept and review solicitor-client communications under national security warrants, the privilege is to be pierced ‘in as minimal ways as the circumstances dictate’”
.
[19] Justice Brown also relied on the Federal Court of Appeal’s finding in Mahjoub FCA that solicitor-client communications may be intercepted incidentally in the execution of warranted intercepts against a target. Justice Brown noted that the circumstances in Mahjoub were similar to those in Unnamed person given that it was anticipated that communications between the target and a lawyer would be intercepted. Justice Brown cited Mahjoub FCA at paragraphs 315- 316, regarding the inevitability of the incidental interception.
[20] Justice Brown echoed the words in Mahjoub FCA that the “key is what happens to those interceptions afterwards”
(para 48 Unnamed person) and went on to address what should happen next.
[21] Justice Brown found that the previously used definition of “solicitor”
and “solicitor-client privilege”
was too narrow and failed to reflect the principle that all communications made with a view to obtaining legal advice must remain confidential (Descôteaux et al v Mierzwinski, [1982] 1 S.C.R. 860 [Descôteaux]).
[22] In crafting directions to better protect incidentally intercepted solicitor-client communications, including to minimize who has access prior to the Court making a determination, Justice Brown considered the principles that govern the search of law offices (Lavallee v Canada (Attorney General), 2002 SCC 61; [2002] 3 S.C.R. 209). Justice Brown emphasized that the procedure to protect solicitor-client privilege must be crafted on a case-by-case basis by the Designated Judge in the context of warrant applications and should reflect the same principles.
[23] Justice Brown noted that the prevailing CSIS process revealed that several CSIS employees had access to the content of an incidentally intercepted solicitor-client communication. This practice was inconsistent with the principle that any intrusion on solicitor-client privilege be the absolute minimum necessary. Justice Brown proposed, at paragraph 64, that the communications analyst, who first listens to the intercept and identifies that it is potentially a solicitor-client communication, prepare a report that is then submitted directly to the Court for a determination. Justice Brown acknowledged that “possibly his or her superior”
would prepare the report or have access to the communication, but that the communication “may not be seen by higher level Service personnel”
. The Court, or referees appointed by the Court, would then determine without delay whether the communication is privileged.
[24] Justice Brown noted that the Court’s duty to protect solicitor-client privilege cannot be delegated. The Court as the “gatekeeper”
must determine what is or is not a privileged communication. Justice Brown added that although counsel for the AGC may make submissions to the Court seeking authorization to retain and/or use the intercepted communication, counsel cannot have access to the content of the communication.
[25] Justice Brown acknowledged that a condition permitting the use, retention or disclosure of solicitor-client communications in cases of imminent death, danger or bodily harm would remain, but should arise only in exceptional circumstances, and a report to the Court is required when this occurs.
II. The Outstanding Issues
[26] The questions initially posed by the Court (set out at para 3) have been expanded in light of the concerns raised by the amicus.
[27] The AGC characterises the broader issues as,
Whether CSIS should be permitted to seek judicial authorization to retain, use or disclose solicitor-client or litigation privileged communications or information collected under a warrant, [section 12 or 16] and if so, in what circumstances; and,
If yes, what safeguards are necessary to protect potentially privileged communications and information during the process to seek the judicial authorization, consistent with the jurisprudence governing privilege.
[28] The AGC also seeks an order, which is more specifically tailored to the Court’s initial questions regarding section 16:
That CSIS may continue to apply for judicial authorization to retain, use, or disclose privileged communications or information collected under the authority of a warrant issued pursuant to sections 16 and 21, in accordance with the conditions proposed;
To the extent that a CSIS application made pursuant to the warrant conditions relies on an exception to solicitor-client privilege or litigation privilege to retain, use or disclose a privileged communication or information, the conduct of Canada’s international affairs is recognized as an exception.
[29] The AGC notes that without an exception to solicitor-client privilege, CSIS would be required to cease the interception and destroy the communications in accordance with the common law.
[30] As described below, the amicus questions whether any exception to permit the incidental interception of solicitor-client communications can be justified in the CSIS warrant context, and more particularly where the interception is pursuant to a section 16 warrant. Despite the amicus’ concerns, the amicus collaborated with the AGC on proposals to ensure, to the extent possible, that the inclusion of any conditions to permit interception are justified, intrude on solicitor-client privilege in the most minimal manner, and that all steps leading to a determination by the Court respect the privilege.
[31] The current proposals of the AGC and the amicus stem from the requirements set out in Unnamed person. The AGC and the amicus propose a new Condition 2 and additional Conditions 3 and 4, which inter alia, address the terminology (for example, provide a definition of “lawyer”
rather than solicitor); define “legal privilege”
to include “solicitor-client privilege”
and “litigation privilege”
and define both terms; address how legal privilege is judicially determined; and, set out the narrow circumstances where CSIS would be permitted to use, retain or disclose potentially privileged communications prior to receiving judicial authorization.
[32] The amicus submits that additional requirements should apply at the time the warrants are granted. The AGC responds that these requirements are unnecessary and/or impossible to satisfy.
[33] Given that the amicus has raised the need for closer scrutiny of the jurisprudence relied on for the exceptions to solicitor-client privilege in the CSIS warrant context and calls for additional requirements to comply with the jurisprudence, the amicus’ submissions are set out first, followed by those of the AGC. The summary of the submissions may be helpful to Designated Judges when faced with warrant applications that seek to include the conditions permitting the interception of solicitor-client communications.
[34] The questions initially identified, and expanded by the amicus and AGC, in the simplest terms are:
Whether the inclusion of condition(s) to permit the incidental interception of solicitor-client communications (or litigation privileged information) in the context of warrants issued pursuant to section 12 or 16 of the CSIS Act comply with the prevailing jurisprudence.
If so, how the specific conditions can be tailored to ensure that any intrusion on solicitor-client privilege is necessary and minimal.
III. The Warrant Provisions – Sections 12, 16 and 21
[35] Section 12 requires CSIS to collect, analyze and retain information and intelligence respecting activities that there are reasonable grounds to suspect constitute threats to the security of Canada, with the caveat that the collection is “to the extent that is strictly necessary”
. CSIS is required to report and advise the Government of Canada of this information.
[36] Section 16 permits CSIS, in relation to the defence of Canada or the conduct of international affairs of Canada, to assist the Minister of National Defence or the Minister of Foreign Affairs, within Canada, in the collection of information or intelligence relating to the capabilities, intentions or activities of (a) any foreign state or group of foreign states, or (b) any person (not a Canadian citizen, permanent resident or Canadian or provincial corporation). (The Court notes that recent amendments to the CSIS Act, now in force, add subsection 16 (1.1), which clarifies that CSIS’s assistance to the Ministers may include “the collection, from within Canada, of information or intelligence that is located outside of Canada if the assistance is directed at a person or thing in Canada or at an individual who was in Canada and is temporarily outside of Canada.”
)
[37] Section 21 sets out the criteria upon which the Court may authorize CSIS, by warrant, to investigate a threat to the security of Canada (section 12) or perform the duties and functions under section 16 and the matters to be specified in the application for the warrant and in the warrant. Subsection 21(2) prescribes the content of the application, accompanied by an affidavit; this includes the facts justifying the belief on reasonable and probable grounds that a warrant is required; that other investigative procedures have been tried and have failed or are likely to fail and urgency exists; the type of communication to be intercepted; the identity of the person, if known, whose communication is proposed to be intercepted; and, the description of the place where the warrant is proposed to be executed.
[38] In order to grant a warrant pursuant to sections 12 or 16, the judge must be satisfied that there are reasonable grounds to believe that a warrant is required by CSIS to either investigate a threat to the security of Canada or to perform its duties under section 16 and that other investigative procedures have not been, or will not be, successful or practical, or that without a warrant “information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16”
would not be obtained. In making that determination, the judge will consider all the information included in the affidavit accompanying the application and any oral testimony of the affiant and will probe any or all of that information.
IV. The Amicus’ Submissions
A. Overview
[39] The amicus notes that the privilege on solicitor-client communications (i.e., where a solicitor-client relationship exists and the communications pertain to the provision of legal advice), may yield only when there is an imminent risk of death or serious bodily harm to an individual, where the innocence of an accused person is at stake, or where a threat to national security exists. The amicus notes that the first two exceptions find support in Supreme Court of Canada jurisprudence; the threat to national security exception does not.
[40] The amicus submits that the Court must reconsider whether the incidental interception of solicitor-client communications should be permitted pursuant to a section 12 warrant despite the previous recognition of a “national security exception”
in Atwal, and subsequently in Mahjoub FC and Mahjoub FCA. The amicus highlights that there is no jurisprudence to support an “international affairs exception”
for the interception of solicitor-client communications pursuant to a section 16 warrant and that the Court should question whether an interception should ever be permitted.
[41] The amicus emphasizes that solicitor-client privilege is the most closely protected privilege and is almost absolute. The privilege is a principle of fundamental justice and is constitutionally protected. The jurisprudence continues to enhance—not diminish—the privilege.
[42] The amicus submits that the jurisprudence governing solicitor-client privilege in the context of a criminal investigation has established a very high threshold to justify any intrusion on the privilege. The amicus argues that the protection of solicitor-client privilege in the context of information obtained in the execution of CSIS warrants demands a higher threshold.
[43] The amicus submits that the inclusion of warrant conditions, if any, to permit an exception to solicitor-client privilege should be justified at the time the warrant is granted; the conditions in the warrant must be revised; and stricter protocols must be implemented within CSIS for identifying and protecting the communications to ensure that any intrusion on solicitor-client privilege is necessary and minimal.
B. National security exception
[44] The amicus submits that the national security exception has permitted the proactive review of communications yet there is no other circumstance where the state is authorized to prospectively review solicitor-client communications before identifying whether any exception to the privilege exists.
[45] The amicus notes that CSIS warrant applications are generally insulated from scrutiny given that the proceedings are ex parte and the Court’s decisions are rarely subject to appellate review. The amicus cautions that CSIS warrants could be challenged, particularly in the context of criminal proceedings based on criminal investigations that stem in part from the sharing of intelligence gathered by CSIS. The amicus suggests that the warrants may not withstand such challenges if conditions are included that permit the incidental interception, use and retention of solicitor-client communications, even if such communications are not intercepted.
[46] The amicus submits that the jurisprudence relied on for the national security exception (section 12) is unreliable; Atwal, Mahjoub FC and Mahjoub FCA are dated, do not reflect the evolution in the law, and were based on a different understanding of the process within CSIS governing the incidental interception of solicitor-client communications.
[47] The amicus notes that in Atwal, the Federal Court of Appeal upheld the appeal of the Federal Court’s decision refusing to rescind a warrant issued pursuant to sections 12 and 21 of the CSIS Act. Atwal challenged the validity of the warrant, including due to the inclusion of the condition governing the interception of solicitor-client communications. The amicus notes that no evidence was provided to the Court about how solicitor-client communications were intercepted by CSIS at that time, or more particularly, whether the intrusion was necessary and minimal.
[48] The amicus adds that Mahjoub FC, at paragraph 85, does not provide more recent or independent authority for a national security exception because the Court simply applied Atwal as binding.
[49] The amicus further submits that in Atwal and Mahjoub FCA, the Federal Court of Appeal was under the impression that the communications analyst—who first intercepted the communication—simply flagged it and sent it on to their superior for review. [In Mahjoub FCA, at paragraph 316, the Court of Appeal referred to a policy where the Director General at CSIS made the determination whether the intercepted communication was a solicitor-client communication that related to a threat to the security of Canada and the communications analyst “disengaged”
(i.e., had no further role in the investigation)]. The amicus notes that the process described by the CSIS affiant in this Application differs from the process understood by the Court of Appeal in Mahjoub FCA, at paragraph 316, in acknowledging a national security exception.
[50] To comply with the current jurisprudence governing solicitor-client privilege in the non- national security context, the amicus proposes that the criteria for authorizing the collection and review of incidentally intercepted solicitor-client communications should be restricted to where there are reasonable grounds to believe, at the time a section 12 warrant is granted, that there will be or are likely to be communications between the target of the warrant and a lawyer and that such communications will contain information relevant to the threat to national security at issue.
C. International affairs exception
[51] The amicus questions whether solicitor-client communications incidentally intercepted pursuant to a section 16 warrant should ever be collected and reviewed. The amicus acknowledges that a condition governing the interception of solicitor-client communications has been included in section 16 warrants, but submits that the grounds for inclusion of the condition are not clear and that the rationale for an international affairs exception is far weaker than for a national security exception.
[52] The amicus suggests that, unlike the section 12 context, where solicitor-client communications may be intercepted incidentally (for example, where the target communicates with a lawyer), in the context of a section 16 warrant, CSIS may be proactively looking for solicitor-client communications to better inform the conduct of foreign relations (for example, [_..._]. In other words, the interception is not incidental. The amicus submits that this targeting cannot be justified.
[53] The amicus acknowledges that in the execution of a section 16 warrant, national security threat related information may be incidentally gathered, although this is not the goal of the section 16 warrant. The amicus agrees that where CSIS intercepts solicitor-client communications in the execution of a section 16 warrant and the communications reveal a threat to the security of Canada, CSIS should be able to seek judicial authorization to retain the communications, as it would in the section 12 context, but in accordance with a more rigorous protocol. However, the amicus questions whether the interception of solicitor-client communications related only to the conduct of international affairs should be permitted.
[54] The amicus submits that the inclusion of a condition to permit the interception of solicitor-client communications in a section 16 warrant should be rare and should first require that the Designated Judge be satisfied that CSIS has grounds to believe that solicitor-client communications will be or are likely to be intercepted. In addition, the Designated Judge must be satisfied that there are reasonable and probable grounds that the communications will contain information relevant to the objectives of section 16 (the “conduct of international affairs of Canada”
).
D. Additional requirements should be imposed
[55] The amicus submits that a Designated Judge determining whether to grant a warrant should be mindful of the weakness in the jurisprudence when considering whether solicitor-client communications should be permitted to be intercepted at all, and if so, on what conditions.
[56] The amicus argues that to best comply with Supreme Court of Canada jurisprudence—which has never addressed the proactive examination of solicitor-client communications (but rather situations where it is known at the outset that solicitor-client communications will be the subject of a search) and would not authorize a proactive examination (i.e., to review communications to determine if they are solicitor-client related)—additional conditions must be imposed.
[57] Although the amicus cautions that the very existence of the condition(s) (i.e., the exception to solicitor client privilege) could render a section 12 or section 16 warrant invalid if challenged—even if the condition is never relied on—the amicus agrees that there could be a sufficiently important section 12 or 16 warrant that would justify the inclusion of the conditions coupled with the proposed protocols to ensure minimal intrusion.
(1) Section 12 warrants
[58] The amicus submits that the inclusion of the conditions governing solicitor-client communications should not be automatic; when the judge grants a warrant pursuant to sections 12 and 21, the conditions should only be included when the judge is satisfied that incidental interception of solicitor-client communications will arise. In other words, the judge must be additionally satisfied (i.e., beyond the criteria stated in section 21) that CSIS has reasonable grounds to believe that the target will be in communication with a lawyer (that this is expected or anticipated) and that these communications will contain information relevant to the threat to the security of Canada upon which the warrant is granted.
[59] The amicus suggests that if the judge refuses to include the condition permitting an exception to solicitor-client privilege, a condition should be included to state that any solicitor-client communications be destroyed (the analyst would immediately stop listening and destroy the communication intercepted). The amicus adds that where information later comes to light that the target (of a section 12 warrant) may be in communication with a lawyer, CSIS could return to the Court to seek the inclusion of the conditions in the warrant (e.g., by way of a supplemental application), but CSIS could not go back and retrieve previous solicitor-client communications.
(2) Section 16 warrants
[60] The amicus submits that, similarly, when the judge grants a warrant pursuant to sections 16 and 21, the conditions governing solicitor-client privilege should only be included when the judge is additionally satisfied that CSIS has reasonable grounds to believe that solicitor-client communications will be (or will likely be) intercepted that relate to the purpose for which the warrant is granted; for example, to assist the Minister of Foreign Affairs in the conduct of the international affairs of Canada.
[61] In response to the AGC’s concern that some information is impossible to sever (e.g., data files or a long conversation that only includes snippets of solicitor-client related information), the amicus appears to agree that CSIS should be able to seek judicial authorization to sequester the whole communication. This approach would permit CSIS to comply with the need to retain the information (in accordance with Charkaoui v Canada (Citizenship and Immigration), 2008 SCC 38, [referred to as Charkoui II], but to not exploit the solicitor-client communications in the information.
E. The process
[62] The amicus notes that the jurisprudence governing solicitor-client communication privilege demands that any intrusion be minimized and the current CSIS process does not minimize the intrusion.
[63] The amicus points to the evidence provided by the AGC’s ex parte affiant describing the role of the communications analyst who reviews the solicitor-client communications before alerting their superiors to the issue of whether judicial authorization is required in order to retain the communications. The amicus acknowledges that the communications analyst is knowledgeable about the particular investigation and as such can assess the significance of the communication, put it in context, and identify what may be relevant and of intelligence value. However, the amicus is concerned that the communications analyst, who remains part of the investigation team, would remain aware of the solicitor-client communications even if the communication is deleted; in other words, the communication is not deleted from the communications analyst’s knowledge.
[64] The amicus submits that the communications analyst who first determines that the intercepted communication may be solicitor-client privileged, must disengage immediately and refer the review of the communication to an independent analyst not part of the investigation; no-one within CSIS who is part of the investigation should have any access to the solicitor-client communication until the Court makes a determination whether the communications are privileged and whether the communications may be retained. If this approach is followed, the communications analyst may remain on the investigation, otherwise not.
[65] In addition, a strict protocol should set out how CSIS may seek the review and determination by the Court whether the communication is solicitor-client privileged and how to seek judicial authorization, if necessary, to retain and use the communications. The protocol should ensure that the fewest possible people have access to the communications (as established in Unnamed person).
[66] To summarize, the amicus submits that to reflect the principle that any intrusion on solicitor-client privilege be absolutely necessary and minimal, three requirements must be met: the condition governing the interception of solicitor-client communications should not be included in every warrant (i.e., CSIS must first satisfy the judge that it has reasonable grounds to believe that solicitor-client communications will be/will likely be intercepted and that the communications will relate to a threat to the security of Canada or the conduct of international affairs); the communications analyst who first flags the communications as potentially solicitor-client privileged should stop listening and defer to an independent analyst to review the content; and, a strict protocol should be implemented to govern how the communication is transmitted to the Court for a determination and, subsequently, for judicial authorization to retain the communication.
V. The AGC’s Submissions
A. Overview
[67] The AGC submits that warrants issued pursuant to section 12 and section 16 should continue to include conditions to permit CSIS to seek a judicial determination whether solicitor-client communications that are intercepted incidentally may be retained and used where CSIS establishes that the communications relate to a threat to national security or relate to the conduct of international affairs. The AGC acknowledges that the manner in which such judicial determinations are made requires revision to ensure the minimization of any intrusion on the privilege. The AGC agrees that new conditions are required, which include an enhanced protocol for the handling of the communications prior to judicial authorization in both the section 12 and section 16 contexts.
[68] The AGC disputes the amicus’ concern that the inclusion of a warrant condition to provide an exception to solicitor-client privilege—even if not relied on—would result in an appellate Court invalidating the warrant.
[69] The AGC notes that although CSIS infrequently seeks judicial authorization to retain solicitor-client communications, the conditions that recognize the exceptions to solicitor-client privilege are needed. The AGC provides three examples where such authority may be sought: where CSIS first needs a judicial determination whether the communications are privileged; where CSIS has assessed that there is intelligence value in the intercepted communications; and, where CSIS wants to retain and report on the non-privileged parts of a communication but cannot extricate only that part.
B. National security exception
[70] The AGC submits that the jurisprudence recognises a “national security exception”
for solicitor-client privileged communications (Atwal, Mahjoub FC, and Mahjoub FCA). The AGC further submits that in Unnamed person, Justice Brown relied on the same jurisprudence to again recognize the national security exception in the section 12 context.
[71] The AGC further submits that the national security exception applies whether the communications are collected pursuant to a section 12 or section 16 warrant. The AGC explains that the collection of foreign intelligence in the execution of a section 16 warrant may result in obtaining threat related information and, if so, this information may be used for the same purpose as section 12 as long as the section 16 warrant is not used to conduct a section 12 investigation (Canadian Intelligence Security Services Act (Re), 2020 FC 697 at para 90 [referred to as Preferred Networks]).
[72] The AGC submits that there is no principled reason why solicitor-client communications should be treated differently in the section 16 context where the intercepted communication relates to a threat to the security of Canada – e.g., [_..._].
[73] The AGC further submits that CSIS should be permitted to seek judicial authorization to retain and use solicitor-client communications incidentally intercepted pursuant to a section 16 warrant where it reveals a threat to national security. The AGC notes that is within the judge’s discretion whether to grant or refuse the authorization.
C. International affairs exception
[74] The AGC notes that the inclusion of the condition governing solicitor-client communications in the context of a section 16 warrant dates back to 2003.
[75] The AGC submits that where there is no nexus to national security (i.e., where the incidentally intercepted communication is not related to a threat to national security but only to international affairs), CSIS should continue to have the ability to seek authorization from the Court, on a case-by-case basis, to retain and use the solicitor-client communications intercepted pursuant to a section 16 warrant for a section 16 purpose. The AGC further submits that the Court should more generally recognize an “international affairs exception”
to solicitor-client privilege.
[76] The AGC notes that solicitor-client privilege is not absolute and the exceptions are not closed. The AGC argues that the conduct of international affairs is of significant importance and justifies an exception. The AGC points to Preferred Networks at paragraph 114, where Justice James O’Reilly found that although the mandate of CSIS differs in sections 12 and 16 “that is not the equivalent of stating that the nature and purpose of s 16 is somehow less important or less vital to Canada’s interests than those animating s 12”
.
[77] The AGC explains that the communications of a foreign or Canadian lawyer could be incidentally collected pursuant to a section 16 warrant and those communications could relate to the conduct of foreign affairs.
[78] The AGC notes the evidence of its affiant who described a range of issues or scenarios where incidentally collected solicitor-client communications would be essential to inform the conduct of international affairs. (For example, making war and peace, leading humanitarian, peace and security efforts, and engaging in international negotiations.)
[79] The AGC agrees that although it will be rare for CSIS to seek authority to use and explore solicitor-client privileged information for an international affairs purpose, it should remain possible; the Court would make the initial determination whether a communication is solicitor-client privileged and CSIS would, if necessary, seek judicial authorization to retain or sequester the communications. The AGC notes that the Court will decide whether and how the information may be used on a case-by-case basis; i.e., the collection and retention of the communication by CSIS does not result in reporting to the Minister of Foreign Affairs without the Court’s authorization regarding the use, if any, of the information.
[80] The AGC submits that, at minimum, warrant conditions to permit the Court to determine if the communication is privileged and, if so, whether and how the communications can be retained, are needed where privileged information is within the raw intelligence and cannot be extricated, for technical reasons, from the non-privileged information, which is of value for foreign intelligence.
D. Additional requirements are not needed
[81] The AGC rejects as unnecessary the amicus’ proposal that the warrant include a recital that the Court is satisfied that solicitor-client privileged communications will or are anticipated to be intercepted that will be related to the threat to national security or the conduct of foreign affairs, and that the conditions permitting the exception to the privilege are justified. The AGC submits that the inclusion of the conditions signal that the Court has considered the issue and that the conditions are necessary. Moreover, the inclusion of such a recital would not “save”
the warrant in the event of a challenge. The AGC does not agree with the amicus that CSIS warrants would be successfully challenged due to the inclusion of the conditions.
[82] The AGC notes that requiring CSIS to establish reasonable and probable grounds to believe that solicitor-client communications will be incidentally collected is impractical, if not impossible, and inconsistent with the jurisprudence (Atwal, at 128). This is not known at the time CSIS seeks the warrant, except in circumstances where, based on non-warranted collection of information, it is known that a target is in communications with a lawyer [_..._]. The AGC notes that whether an intercepted communication is solicitor-client privileged (e.g., whether it is with a lawyer, relates to legal advice etc.) is often not obvious. CSIS needs to be able to seek this determination from the Court and then, if necessary, to seek judicial authorization to retain and use the privileged information. The AGC also notes that solicitor-client communications may be inextricable from non-privileged communications that are authorized to be collected and have intelligence value.
[83] The AGC notes that the retention of the communications does not necessarily mean that CSIS will seek authority to use the communications; however, some communications include both solicitor-client and non-solicitor-client communications, which cannot be separated, and if so, sequestration of the communication would be required.
[84] The AGC submits that imposing the additional threshold proposed by the amicus at the time of issuing a section 16 warrant would be even more challenging. The AGC emphasizes that in the context of a section 16 warrant, there is no intention to seek solicitor-client communications. The collection would be incidental and would not be anticipated.
[85] The AGC submits that there is no need to include a condition in all warrants requiring that solicitor-client communications be destroyed because this is a common law obligation. If the warrant condition to permit CSIS to seek authority to retain such communications based on an exception (and to first seek a determination whether the communication is privileged) is not included, the common law applies. The AGC notes that the proposed conditions require the destruction of the communications “unless …. ”
(i.e., the Court is satisfied that an exception is justified).
E. Going forward
[86] The AGC submits that the revisions made to Condition 2 subsequent to Unnamed person and the proposed conditions developed with the amicus reflect the law of privilege as adapted to the CSIS warrant context and will safeguard the privileged communications pending judicial determination.
[87] The AGC notes the key changes to the definitions in the proposed conditions, including “legal privilege”
to encompass solicitor-client and litigation privilege, both with their own definitions. Solicitor-client privilege will attach to communications where the criteria are met: the communication is between a lawyer and client (i.e., a solicitor-client relationship exists); the communication is made in connection with seeking or providing legal advice; the communication is based on the lawyer’s expertise in the law; and, the communication is intended to be made in confidence. The AGC acknowledges that litigation privilege is also captured by the conditions, but it does not enjoy the same level of protection as solicitor-client privilege.
[88] The AGC notes that the proposed new conditions will address the protocol for handling potentially litigation privileged and solicitor-client privileged communications prior to seeking judicial authorization to retain the communications. The first person who processes the communication (the communications analyst who listens to an intercept) would prepare a report indicating the nature of the communication and the raw intelligence that CSIS would seek to retain. The AGC notes that only two persons would be exposed to the content of the communication – the communications analyst and (possibly) their Director General; no other person within CSIS would have access to the content of the communication. The Court would determine whether the communication falls within the scope of litigation privilege or solicitor-client privilege and if so, would redact (block out) that part until judicial authorization is granted to retain or use the communication.
[89] The AGC also notes that the Director General would need to determine whether there is an imminent threat requiring the retention of the communication.
[90] The AGC rejects the amicus’ suggestion that the communications analyst who first listens to the intercept and identifies it as possibly a solicitor-client communication should stop listening and defer to a second analyst to listen and prepare the report to submit to the Court for a determination. The AGC submits that the communications analyst is best able to identify the communication; the communications analyst will be familiar with the language of the communication, whereas a second analyst may not; a second analyst may not be readily available; and, a second analyst, with no knowledge about what they are listening to, could not identify whether there is any value in the information.
[91] The AGC proposes that where CSIS concedes that the communication is definitely privileged, or where the Court makes this determination, CSIS may then apply to the Court to seek authorization to retain and use the information. CSIS would be required to justify why any exception to solicitor-client privilege should be granted. Where the Court finds that the exception is justified, the Court could impose any necessary conditions on the retention or use of the communication.
[92] The AGC adds that if the Court does not authorize the retention of the communication, the communications analyst who prepared the report to the Court cannot not rely on the information at all and cannot further report on it; the concern underlying the amicus’ suggestion does not arise.
[93] The AGC submits, as in Unnamed person, that the condition must be retained that permits CSIS—without judicial authorization—in cases of imminent threat of bodily harm or death to use the communication to prevent such a threat.
[94] The AGC submits that the proposed new conditions to be included in the warrant respect the need for any intrusion on solicitor-client privilege to be minimal, noting that the conditions will limit access to the potentially solicitor-client privileged communications to the communications analyst and to their Director General (until the Court makes a determination about the privilege and subsequently, the retention and use of the communication).
VI. New Conditions Governing the Incidental Interception of Litigation Privileged and Solicitor-Client Communications May Be Included in Warrant Applications
A. Overview
[95] As noted above, I sought submissions on specific questions, set out at paragraph 3, the questions were subsequently broadened, as noted at paragraph 27, and are more simply summarized at paragraph 34.
[96] In response, I find that CSIS may incidentally intercept solicitor-client communications in the execution of warrants issued pursuant to sections 12 and 16, but those solicitor-client communications shall not be retained or used except in accordance with new conditions that will reflect the fundamental principles established in the jurisprudence as adapted to the CSIS warrant context, including to ensure that any intrusion on solicitor-client privilege is necessary and minimal. The conditions proposed by the AGC and the amicus provide a good starting point; however, further refinement and clarification is needed regarding the process that applies from the time of interception to seeking a determination from the Court whether a communication is litigation privileged or solicitor-client privileged and, subsequently, to seeking judicial authorization to retain and/or use the communications. The details and comprehensiveness of the process are important.
[97] With respect to communications incidentally intercepted in the execution of a section 16 warrant, prohibiting the inclusion of an exception to intercept or retain solicitor-client communications, as suggested by the amicus, would foreclose CSIS’ ability to seek a determination from the Court whether the communication is privileged and to then seek judicial authorization to retain and use that information, even where the information is related to a threat to the security of Canada, and even where the threat is imminent, although the warrant was not issued for that purpose.
[98] I find that the conditions may be included in a section 16 warrant. However, the judge determining whether to grant the section 16 warrant will determine whether the conditions governing solicitor-client communications should be included.
[99] I also find that the inclusion of the conditions does not require that CSIS first establish that there are grounds to believe that solicitor-client communications are expected or that any such communications will either relate to threats to national security or the conduct of foreign affairs. However, where this is known, the affiant and counsel’s duty of candour require that they inform the Court. The concerns raised by the amicus would be addressed at the stage where CSIS seeks to retain and/or use any incidentally collected solicitor-client communications; the judge would consider how that information could assist in fulfilling CSIS’ section 16 mandate.
[100] While the incidental interception of solicitor-client communications that relate to the specific purpose of the section 16 warrant (the conduct of international affairs) may be a rare event, I am not persuaded that CSIS should be prohibited from doing so. It may be impossible to predict in advance whether solicitor-client communications are likely to be incidentally intercepted and equally impossible to predict the nature of any such communications. As in all warrant applications before this Court, the Court must be satisfied that the warrant is necessary and will assess the need for the inclusion of conditions in that context. In the event that the conditions are included and solicitor-client communications are intercepted, the conditions will govern the process for the next steps. If CSIS seeks judicial authorization, the Court will demand justification for sequestering, retaining or using the information on a case-by-case basis. I anticipate that judges may be more rigorous in probing the justification where CSIS relies on the information as necessary to assist in the conduct of foreign affairs as opposed to the investigation of a threat to the security of Canada.
[101] In the event that the judge grants the warrant, but does not include the conditions, the common law applies and any solicitor-client communications incidentally intercepted must be destroyed.
B. Section 21 requirements
[102] As noted, the amicus submits that a CSIS warrant issued pursuant to sections 12 and 21 or issued pursuant to sections 16 and 21 may fail a challenge by virtue of the inclusion of conditions permitting the interception of solicitor-client communications even when the conditions are not relied on. This concern may overlook the level of scrutiny by Designated Judges in determining whether to grant warrant applications and whether to include appropriate conditions.
[103] As noted above, section 21 sets out the requirements for an application for a warrant and the matters to be addressed in the affidavit accompanying the warrant. In order to grant a warrant the Designated Judge must be satisfied that there are reasonable grounds to believe that a warrant is required by CSIS to investigate a threat to the security of Canada (section 12) or to perform its duties under section 16 and that other investigative procedures have not been or will not be successful or practical, or that without a warrant “information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16”
would not be obtained.
C. The jurisprudence is not unreliable
(1) Section 12
[104] The amicus acknowledges that the Supreme Court of Canada has not considered solicitor-client privilege in the national security context, particularly as the threat to, and concerns for, Canada’s national security have increased. The amicus also acknowledges the requirement that this Court must be satisfied of the specific threat to national security (and other requirements) before granting a section 12 warrant and that the inclusion of a condition to protect solicitor-client communications with narrow exceptions is based on being related to the threat.
[105] Apart from this acknowledgement, the amicus has called on the Court to consider whether the jurisprudence relied on to permit the inclusion of exceptions to solicitor-client privilege does so, taking into account the jurisprudence in the non-national security context and the amicus’ submission that the Court in Atwal, Mahjoub FC and Mahjoub FCA did not consider the requirement of necessity and minimization of intrusion on the privilege.
[106] Despite the amicus’ thought-provoking submissions, I do not share the view that Atwal, Mahjoub, Mahjoub FCA or the other jurisprudence cited in those decisions cannot be relied on to permit the Court to recognize a national security exception in the section 12 context where the facts so justify.
[107] In Unnamed person, Justice Brown considered those same cases as well as the jurisprudence governing solicitor-client privilege in the non-national security context and concluded that the jurisprudence recognized a national security exception. In my view, Unnamed person has settled the issue regarding section 12; Justice Brown has done all the “heavy lifting”
. Moreover, I agree with Justice Brown’s analysis of the underlying jurisprudence.
[108] Regardless of whether the Federal Court of Appeal was made fully aware of the process followed by CSIS once a solicitor-client communication is identified in deciding Atwal and Mahjoub FCA, I have no reason to depart from Justice Brown’s conclusions in Unnamed person, which were based on a thorough analysis of the jurisprudence in the national security context and the non-national security context and the process within CSIS at that time. As Justice Brown found, the need for the exception remains, but changes to the process to ensure that any intrusion on the privilege is necessary and minimal are required.
[109] Moreover, national security issues have evolved significantly in nature, scope and frequency since Atwal. The law must be responsive to both the need to protect the privilege and need to ensure that CSIS can fulfill its obligations and seek warranted powers to do so.
[110] In Atwal, the Federal Court of Appeal noted, at page 128, that the issue before it was “not the admissibility in evidence of communications intercepted under authority of the warrant”
but rather whether the inclusion of a provision authorizing “interception of communications subject of solicitor-client privilege renders the warrant invalid on its face.”
As noted, the amicus suggests that this issue should be revisited.
[111] At page 128, the Federal Court of Appeal noted that in Descôteaux, the Supreme Court of Canada confirmed that solicitor-client privilege is a substantive rule. The Federal Court of Appeal then went on to assess the CSIS warrant before them against that substantive rule, finding,
Subsection 21(3) authorizes the judge to issue a warrant "to intercept any communication". Given that the confidential character of such communications when electronically intercepted cannot possibly be ascertained before they are monitored, the authority of subsection 21(3) simply cannot be interpreted so as to preclude their initial interception. In my view, conditions 2 and 3 set forth in the warrant do meet the requirement that the confidentiality of solicitor-client communications be interfered with only to the extent absolutely necessary to achieve the objects of the Act. The relevant objects are stated in section 12.
[112] In Mahjoub FC, Mr. Mahjoub sought to quash the CSIS warrant, including because the warrant allowed CSIS to intercept solicitor-client communications. Mr. Mahjoub argued that Atwal was not good law because it did not reflect the Supreme Court of Canada jurisprudence.
[113] Justice Blanchard relied on Atwal, noting at paragraph 69,
The Federal Court of Appeal in Atwal finds that the CSIS Act warrant regime described in these provisions is constitutional following a challenge to certain warrants in the context of a criminal proceeding. The Court of Appeal also finds that when specifically authorized by a warrant, the Service may intercept solicitor-client communications for the purposes of ascertaining whether there is a threat to national security. In addition, the exception to solicitor-client privilege described in Atwal is confined to the limits of section 12 of the CSIS Act, which requires the acquisition and retention of the information to be “strictly necessary” to investigate a security threat. Moreover, the potential for incidental interception of solicitor-client communications is a preoccupation of the Court in the process of judicial approval due to the unique status of solicitor-client privilege as a principle of fundamental justice in Canadian law (Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 [Lavallee] at paragraph 21).
[114] Justice Blanchard found that Atwal did not conflict with Descôteaux, but rather adapted those requirements to the national security context. Justice Blanchard stated at paragraph 81,
Atwal was decided in the national security context and reflects the state of the law in Canada concerning section 21 warrants authorizing interception of solicitor-client communications to which this Court is bound. My determination finds support in Corp. of Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 40 O.R. (3d) 489, at paragraphs 38, 78, and 90-91 (C.A.). In that case, on a similar constitutional challenge, section 21 warrants were found to be constitutional, and the Court expressly relies on Atwal as the leading case. Leave to appeal to the Supreme Court of Canada was refused.
[115] Justice Blanchard concluded, at paragraph 87, after his analysis, that Atwal “creates a national security exception to solicitor-client privilege in the narrow context of a prospective CSIS investigation of a national security threat authorized by a section 21 warrant”
and had not been overruled.
[116] Justice Blanchard also concluded, at paragraph 88, that sections 21, 22, and 23, challenged by Mr. Mahjoub, did not infringe section 7, section 8 or any other Charter provision, adding at paragraph 89,
Lastly, sections 21-24 of the Act do not permit unreasonable searches and seizures simply because they allow the Federal Court to authorize the interception of solicitor-client communications. Prior to the commencement of any legal proceedings against a target, it may be necessary to incidentally intercept such communications in the interests of national security.
[117] In both Atwal and Mahjoub FC, the courts acknowledged that the nature of the communications could not be ascertained until interception.
[118] In Mahjoub FCA, the Court of Appeal determined the appeal of three related decisions including Mahjoub FC.
[119] In Mahjoub FCA, the Court of Appeal focussed on whether the security certificate proceedings against Mr. Mahjoub should be stayed due to the actual interception of solicitor-client communications. The Court of Appeal noted that in the particular circumstances it was “inevitable”
that the execution of the warrant would result in intercepting solicitor-client communications. The FCA emphasized, at paragraph 315, that “The key is what happens to those interceptions afterwards.”
[120] With respect to “what happens … afterwards”
, the Federal Court of Appeal noted at paragraph 316,
[316] In Atwal, this Court held that solicitor-client communications can be intercepted and reviewed by a Director or Regional Director General of the Security Service to ascertain whether the communication relates to a “threat to the security of Canada.” If not, the communication is destroyed and no further disclosure is made: Atwal at paras. 15 and 30. This has been incorporated into a policy that requires an analyst to disengage from the communication once it is known to be a solicitor-client communication. This policy then requires the destruction of the communication. Except for a small number of calls in which Mr. Mahjoub’s wife acted as an agent, this policy was followed.
[121] As noted, the amicus argues that the Court misunderstood the process within CSIS for handling incidentally intercepted solicitor-client communications and recognized the exceptions to solicitor-client privilege based on this misunderstanding. I am not persuaded that this was the basis for the Court to acknowledge the national security exception. The Federal Court of Appeal in both Atwal and Mahjoub FCA clearly acknowledged that necessity and minimisation were required but accepted that national security interests may constitute the necessity to intrude on the privilege. Moreover, it is now not disputed that the process—even if it was misdescribed to the Federal Court of Appeal—should be revised.
[122] In Unnamed person, Justice Brown did not find any frailties in the law supporting the national security exception and stated, at paragraph 44,
To begin with, there is constitutional jurisprudence to support the proposition that the regime respecting communication intercept warrants issued by the Federal Court pursuant to the CSIS Act complies with 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 [Charter]. In particular, the CSIS Act warrant regime complies both with the protection of fundamental justice and the prohibition against unreasonable search and seizure set out in sections 7 and 8 of the Charter. It also complies with the common law rules governing solicitor-client privilege as they have evolved: Atwal v Canada, [1988] 1 FC 107 (FCA); Mahjoub (Re), 2013 FC 1096, per Blanchard J at paras 66–89 [Mahjoub per Blanchard J]; and Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157, per Stratas JA at paras 311–319 [Mahjoub per FCA], leave to appeal refused by the Supreme Court of Canada in Mahjoub v Canada (Citizenship and Immigration), [2017] CSCR no 379.
[My emphasis.]
[123] Citing Mahjoub at paragraphs 88-89, Justice Brown found, at paragraph 45, that “[t]his jurisprudence specifically allows communications between a solicitor and client to be intercepted incidentally under warrants properly issued by the Federal Court on national security grounds under section 21 of the
CSIS Act.”
[124] Justice Brown noted that in Mahjoub FC, Justice Blanchard had also relied on Almrei, where the Court stated at paragraph 60, that solicitor-client privilege is not absolute, adding,
Avoiding injury to national security, which can include the risks of inadvertent disclosure, may constitute a necessity that warrants piercing the privilege in as minimal ways as the circumstances dictate. This should not be decided in a factual vacuum.
[Emphasis in original]
[125] Justice Brown went on to draw on the principles governing solicitor-client privilege in non-national security jurisprudence to conclude that new conditions and processes are needed to ensure that the scope of the privilege is broadened and the exceptions and intrusions are necessary and minimal.
(2) Section 16
[126] The jurisprudence has established that solicitor-client privilege is not absolute; narrow exceptions are recognized and others could be recognized, including on a case-by-case basis.
[127] As noted, prohibiting the inclusion of the conditions governing the interception of solicitor-client communications in a section 16 warrant could thwart CSIS’ ability to fulfill their mandate and would prevent the court from making case-by-case determinations whether to include the conditions, and if included and relied on, whether to permit the retention and use of solicitor-client communications, where necessary.
[128] In Preferred Networks, at paragraph 114, Justice O’Reilly noted the importance of CSIS’ role pursuant to section 16,
Again, while the mandate given to the Service under s 16 differs in important ways from its s 12 role, that is not the equivalent of stating that the nature and purpose of s 16 is somehow less important or less vital to Canada’s interests as those animating s 12. In s 16, Parliament envisioned the Service playing a significant role, albeit secondary to its s 12 mandate, in furthering Canada’s interests in national defence and international affairs. Canada’s capacities to defend itself and to conduct productive relations with other states are arguably as essential to its sovereignty as its ability to combat threats to its security.
[129] As the amicus notes, there is no jurisprudence regarding the interception of solicitor-client communications in the section 16 context. However, the condition has been included in section 16 warrants, although CSIS has rarely sought to rely on the condition to retain information. There is also no evidence before me to indicate—as the amicus suggests—that CSIS is proactively seeking solicitor-client communications. Counsel for the AGC and the CSIS affiant(s) are bound by their duty of candour and would be required to advise the Court if they were aware of the likelihood of incidental interception of solicitor-client communications in executing a section 16 warrant. In addition, the Court carefully scrutinizes whether a particular warrant and particular power within the warrant should be granted.
[130] In Preferred Networks, Justice O’Reilly noted, at paragraphs 115-118, (albeit regarding a different concern with respect to section 8) that section 16 included several other requirements that guarded against the over-extension of CSIS’ foreign intelligence role. Justice O’Reilly found no basis to question the bone fides of Ministers. Similarly, the Court does not share the amicus’ concern that the inclusion of the conditions governing solicitor-client communications in a section 16 warrant would permit CSIS to proactively look for solicitor-client communications to inform the conduct of international affairs.
[131] As noted, in Atwal and Mahjoub FC, CSIS would not know whether the incidentally intercepted communication is a solicitor-client privileged communication until it is intercepted (i.e., until the communications analyst listens to the communication). The same applies in the section 16 context.
D. The threshold for granting the warrant need not require that CSIS first have reasonable grounds to believe that solicitor-client communications will be/or are likely to be intercepted
[132] It is not necessary to include a recital in the warrant, as proposed by the amicus, that CSIS has established reasonable grounds to believe that solicitor-client privileged communications will or are anticipated to be intercepted and that the communications will be related the threat to national security or the conduct of international affairs. In most circumstances, it would not be feasible for CSIS to make such a prediction.
[133] Where information exists from non-warranted methods that solicitor-client communications are likely to be intercepted, the Court expects that the affiant and counsel will advise the Court, in accordance with their duty of candour.
[134] I agree with the AGC that the very inclusion of the conditions in the warrant demonstrates that the Court has found that the conditions are justified and should be included. The Court will only grant a warrant where the requirements of subsection 21(2) are met; the threshold is already high, as is the Court’s scrutiny at the time the Court grants the warrant. The Court must first be satisfied that there is a threat to national security or, for a section 16 warrant, that the intelligence will assist in relation to the defence of Canada or the conduct of international affairs.
E. The new process-related conditions
[135] As noted above, the process established by Justice Brown in Unnamed person has provided the starting point for the AGC and the amicus’ proposed new conditions. However, some further clarity is needed, including about how the communications analyst provides the report to the Court and the role of their Director General (without sharing the content of the report with others within CSIS). I note that the proposed new conditions do not reflect the submissions of the AGC as they do not limit access to the content of the communication to only the communications analyst and their Director General.
[136] I find that, as the AGC stated in their submissions in this matter, only the communications analyst and their Director General (where necessary) should have access to the content of the communication. This restriction is required to minimize any intrusion on solicitor-client privilege.
[137] I do not agree with the amicus that the communications analyst who listens to the intercepts and flags a communication as potentially solicitor-client privileged should “disengage”
and defer to a second analyst. For the reasons noted by the AGC, this is counterproductive, impractical and unnecessary, particularly when the new conditions to minimize the intrusion on any privilege are imposed. If the Court ultimately determines that the communications cannot be retained or used, they must be destroyed and the analyst cannot report on this information and it cannot be used.
F. Next steps
[138] As I noted at the hearing of this matter, the joint proposal of the AGC and the amicus for the new conditions to address legal privilege would be shared with Designated Judges for their comments before the Court more formally adopts the wording of the new conditions to be included in section 12 or section 16 warrants, where appropriate. Preliminary discussions have highlighted that the proposed conditions do not appear to sufficiently limit who has access to the communications. The jurisprudence requires that the intrusion on the privilege be necessary and minimal.
[139] The AGC and the amicus undertook to continue to collaborate to refine the conditions in accordance with the Court’s reasons. The refinement of the proposed conditions should address the following issues:
The proposed definitions to be included in the warrant to refer to “legal privilege”
as including solicitor-client privilege and litigation privilege, and to define each of those terms, may require refinement.
Condition 2 governs how CSIS handles the incidentally intercepted communication, where it is potentially subject to legal privilege. The condition must ensure that the fewest number of CSIS personnel have access to the content of the communication. As proposed in the draft conditions, it appears that up to five personnel have access. This is not consistent with the submissions of the AGC that the communications analyst would identify the communication and prepare the report to the Court in order for the Court to first determine whether it is in fact a solicitor-client privileged communication and that their Director General would be the only other person who may require access. No other personnel within CSIS should have access to the content of the communication. Some CSIS or AGC personnel may have a role in transmitting the communications, but should not have access to the content.
Further clarification about how CSIS assesses that a communication is litigation privileged or solicitor-client privileged (without seeking Court determination) may be required. The communications analyst should be able to make the assessment in clear-cut cases without engaging their Director General; however, where the communications analyst is uncertain, only the Director General should be consulted. Once that assessment is made, the communications must be sequestered pending a further application to the Court.
Condition 4, which grants the Director General the ability to retain the litigation privileged or solicitor-client communication where it reveals a threat of imminent death or serious bodily harm “to the extent necessary”
without prior judicial authority, followed by a report to the Court, is acceptable. However, as noted above, the process for the Director General to review the communication in order to make this determination requires clarification. [The communications analyst would be the first person to identify the communication as potentially solicitor-client privileged and also as revealing an imminent threat, and should quickly alert their Director General.]
The threshold for Condition 4 may also require further refinement, as noted in the proposals. For example, the term “real”
concerns raises the question of the degree of concern required. Other descriptors may be considered, for example “serious concerns”
or “reasonable concerns”
.
[140] Given the undertaking of the AGC and the amicus to further refine the conditions, I invite them to submit revised proposed conditions to the Court. The revised proposed conditions would be shared with Designated Judges, following which I would convene a Case Management Conference with the AGC and amicus to clarify any outstanding issues. The goal is to arrive at consistent wording for the conditions that will be included in section 12 and section 16 warrants, where such conditions are included. While it always remains within the discretion of the judge granting the warrant to modify the conditions depending on the particular circumstances, the use of the consistent wording would be the norm.
[141] Given that the Application underlying the consideration of the issues identified by the Court, the AGC and the amicus will not be determined, the Court will not issue an order, as requested by the AGC. These reasons respond to the issues raised (as summarized above at paras 96-101) and will guide future applications.
[142] In conclusion, I commend Counsel for the AGC and the amicus for their thoughtful and probing submissions and for their collaboration in proposing conditions to better reflect the jurisprudence.
"Catherine M. Kane" |
Judge |
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