Canada (Service canadien du renseignement de sécurité) (Re)

Canada (Service canadien du renseignement de sécurité) (Re)
Court (s) Database
Federal Court Decisions
Date
2007-10-22
Neutral citation
2008 FC 301
File numbers
SCRS-10-07
Notes
Reported Decision
Decision Content
Date: 20071022
Docket: SCRS- 10-07
Citation: 2008 FC 301
Ottawa, Ontario, October 22, 2007
PRESENT: The Honourable Mr. Justice Blanchard
DANS L'AFFAIRE d'une demande de mandats
faite par en vertu des articles 12 et 21
de la Loi sur le Service canadien du renseignement
de sécurité, L.R.C. (1985), chap. C-23
ET DANS L'AFFAIRE visant le
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to sections 12 and 21 of the Canadian Security Intelligence Services Act, R. S 1985, c. C-25(the Act), for a warrant in respect of 10 subjects. The warrant powers sought relate to investigative activities in countries other than Canada. The subjects of investigation are currently named in certain warrants in application SCRS-10-07 which I granted on April 25, 2007, in relation to the Canadian Security Intelligence Service (the
Service or CSIS) investigation of The warrants issued in April are for investigative activities within Canada and are valid for a period of one year from May 1, 2007 to April 30, 2008. All subjects of investigation, except for one, are
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Canadian citizens, permanent residents or refugees. The exception is a foreign national
[2] At the time I issued the warrants on April 25, 2007, I was satisfied of the matters referred to in paragraphs 21(2)(a) and (b) of the Act based on the information provided in the April 19, 2007 affidavit of sworn in support of the application. The only issue remaining to be determined, and which will be dealt with in these reasons, is the question of whether this Court can issue the extraterritorial warrant sought.
[3] At the time I issued the initial warrants in application SCRS-10-07, I was not prepared to authorize investigative activities by the Service outside Canada as requested, without further consideration. To that end, I appointed Mr. Ron Atkey, Q.C., to serve as Amicus Curiae (the Amicus) on the application and requested that both the Service and the Amicus file written submissions to address first, whether the Service has a mandate to undertake threat-related investigations outside Canada and second, whether the Federal Court has jurisdiction, to issue the warrant requested.
[4] Upon reviewing the written submissions filed and the relevant jurisprudence and upon hearing Counsel on behalf of the Service and the Amicus at an ex parte in camera hearing held on June 19, 2007, I determined that further submissions from the Service and the Amicus were required. Since the filing of the within application, the Supreme Court of Canada decided R. v. Hape, 2007 SCC 26 on June 7, 2007. Following my review of Hape, I thought it useful to seek
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further written submissions and, as a consequence, directed the Service and the Amicus to answer the following questions:
(i) On what basis or foundation does the Court then issue a warrant which admittedly would not be enforceable outside Canada and which would likely involve the authorization of illegal activity in the host state? More specifically, what would be the purpose of seeking such a warrant?
Further, if such Parliamentary intent can be established and pursuant to section 21 of the Act, it can be construed to provide the Court authority to issue such extraterritorial warrants, should the Court be engaged in the issuance of such warrants, which would not be enforceable outside Canada, and which would likely involve the authorization of illegal activity in the host state?
[5] Both the Service and the Amicus filed supplementary submissions which I considered before deciding the application.
Preliminary Issue
[6] In June 2005, the Service filed application CSIS-18-05. An application for a warrant pursuant to sections 12 and 21 of the Act which raised the same questions of law as the present application.
[7] My colleague, Mr. Justice Simon Noel, who was seized of that matter, had appointed Mr. Ron Atkey, Q.C., to serve as Amicus in that proceeding. Justice Noel raised a preliminary issue as to whether the question of law could be dealt with in a public hearing. After receiving written and oral submissions on the issue from Counsel for the Deputy Attorney General of Canada and the Amicus, the learned judge concluded that the hearing of the application should
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be conducted in private. Comprehensive reasons for that decision were filed and have not yet been made public.
[8] On August 23, 2006, a notice of discontinuance in relation to application CSIS 18-05 was filed by Counsel for the Deputy Attorney General of Canada.
[9] Upon the filing of the within application, the same legal issues in respect to extraterritorial warrants raised in CSIS-18-05 were again before the Court. I raised the issue of whether the question of law could be dealt with in a public hearing. Both the Amicus and Counsel for the Attorney General of Canada were of the view that the question had been decided by Justice Noel and were content to accept his decision as deciding the issue for the purpose of this application.
[10] I have reviewed Justice Noel's Reasons for Order and Order in application CSIS-18-05. I agree with his decision and his reasons. Consequently, I am also of the view that the hearing of this application is to be conducted in private.
[11] I now turn to the substantive issues raised in this application.
Issues
[12] In my view, the following issues are raised in this application:
(A) Does the Federal Court have jurisdiction to issue the warrant requested?
(B) Does the Service have a mandate to undertake threat-related investigations in a country other than Canada?
(C) Does the Criminal Code, R.S.C. 1985, c. C-46 (the Code) of Canada and the Canadian Charter of Rights and Freedoms, Schedule B, Part 1 to the Canada Act 1982 (U.K.) 1982, c. 11 (the Charter) apply to activities of the Service and its agents in undertaking threat-related investigations in a country other than Canada?
(D) Can the Canadian Security Establishment (C SE) assist the Service in the execution of the warrant sought?
[13] In my considered opinion, for reasons that follow, I conclude that the answer to the first issue is in the negative. It is therefore unnecessary to deal with the other issues raised. I will nevertheless deal with the third issue stated since it is the central focus of the Service's submissions before the Court.
The warrant sought
[14] The Service seeks a warrant authorizing the Director of the Service (the Director) and any person under his authority to intercept any telecommunication destined to or originating from the subjects of investigation, to obtain information or record relating to the targets
[15] The Service further requests that the warrant provide that it may be executed at:
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[16] Finally, the warrant sought would provide that, for the above purposes, the Service and its agents may: (i) install, maintain or remove any thing
(ii) install, maintain or remove any
thing o obtain access to, search
for, examine, take extracts from, make copies of, or otherwise record the information; and (iii) install, maintain or remove any thing
to obtain access to, search for, examine, take excerpts from, make copies of, or otherwise record the information.
Does the Federal Court have jurisdiction to issue the warrant requested?
[17] Before beginning my analysis, I propose to review the applicable statutory framework regarding the issuance of warrants under the Act and the respective positions of the Service and the Amicus on this issue.
[18] Section 12 of the Act outlines the Service's mandate and provides that it shall collect, "by investigation or otherwise", to the extent that it is strictly necessary, and analyze and retain information and intelligence respecting activities that may on reasonable grounds be suspected of
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constituting threats to the security of Canada. The Service is further required to advise and report to the Government in respect to such activities. "Threats to the security of Canada" are defined at section 2 of the Act and include "activities within or relating to Canada directed toward or in support of the threat" (my emphasis).
[19] The Court's role with respect to the issuance of warrants is stated at section 21 of the Act. Where the Director of the Service believes, on reasonable grounds, that a warrant is required to enable it to investigate a threat to the security of Canada or to perform its duties under section 16, the Director may, with the approval of the Minister, apply to the Court for a warrant. Subsection 21(2) of the Act sets out the information that must be provided on a warrant application. Subsection 21(3) provides that "[n]notwithstanding any law but subject to the Statistics Act", upon being satisfied that the requirements in subsection 21(2) are met, a Judge may issue a warrant for the following purposes:
a) l'accès à un lieu ou un objet ou l'ouverture d'un objet;
b) la recherche, l'enlèvement ou la remise en place de tout document ou objet, leur
examen, le prélèvement des informations qui s'y trouvent, ainsi que leur enregistrement et l'établissement de copies ou d'extraits par tout procède;
c) l'installation, l'entretien et l'enlèvement d'objets (je souligne).
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[20] Subsection 21(4) requires that the type of communication authorized to be intercepted, the type of information, record or thing to be obtained, the persons or classes of persons to whom the warrant is directed, a general description of the place where the warrant may be executed and other terms as the Judge considers advisable in the public interest must be included in the warrant.
[21] The full text of the above provisions of the Act and other pertinent provisions are reproduced and attached to these reasons as Schedule "A".
Position of the Service and Amiens
[22] The Service contends that the authorizations sought are to enable it to fulfill its mandate under section 12 of the Act. Section 12 differs from section 16 of the Act which limits the Service's collection of "foreign intelligence" to "within Canada". The Service submits that Parliament, by not imposing the same territorial limitation in section 12 as it did in section 16, must have intended its section 12 mandate to have an extraterritorial reach.
[23] The Service further contends that the warrant is required to ensure that Canadian agents engaged in executing the warrant abroad do so in conformity with Canadian law. The Service maintains that the warrant is required to judicially authorize activities that, absent the warrant, may breach the Charter and contravene the Code. This is so because the warrant powers sought to be authorized are directed at Canadians and arguably might impact on their expectation of privacy. The Service argues that the warrant would enable it to perform its duties and functions by removing the legal impediments to the conduct of a part of its security intelligence
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investigations outside Canada and would respect the rule of law and be consistent with the regime of judicial control mandated by Part II of the Act.
[24] The Service submits that the scope of the Supreme Court of Canada decision in Hape, cited above, is unclear. In particular, it is unclear as to whether the decision was intended to apply to the conduct of security intelligence investigations outside Canada where those investigations involve persons having a real and substantial connection to Canada, as in this case.
[25] More particularly, the Service submits that the decision in Hape does not stand for the broad proposition that, absent the consent of a foreign state or a principle of international law as contemplated by the Supreme Court of Canada, the Charter does not apply to any search and seizure by Canadian officials in a foreign state. Rather, it contends that Hape was based on the facts of that case and the principles of international law at play in the fight against transnational criminal activity, which include international cooperation and the comity of nations. It is argued that, here, different principles are at play. In matters of national security, the state always reserves the right to "go at it alone". A state's authority to investigate threats to its national security, by whatever means the state considers appropriate, can never be dependent on first securing the consent of another state, be it the state implicated in the threat or the state in which an individual who is implicated in the threat may be situated.
[26] To the extent that the scope of Hape is unclear, the Service argues a possibility exists that the security intelligence investigations outside Canada may raise Charter issues where those investigations implicate persons having a real and substantial connection to Canada, as in this
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case. The Service submits that the majority in Hape did not expressly or by necessary implication foreclose consideration of the Charter's application in the context of security intelligence investigations outside Canada.
[27] The Service further submits that customary international practice as it relates to intelligence gathering operations in a foreign state constitutes an overriding principle of international law that affords a basis on which to find that the Charter was intended to apply, and does apply, to security intelligence investigations outside Canada. The Service, however, produced neither evidence nor authority in support of this argument.
[28] The Service also contends that the enforceability of a warrant in a foreign state or the legality of investigative conduct in a foreign state is irrelevant to the issuance of a warrant pursuant to section 21 of the Act. In the Service's submission, subsection 21(3) of the Act authorizes the Court to issue warrants "notwithstanding any other law but subject to the Statistics Act." It is said that "any other law" includes international law. In support of this proposition, the Service cites the following passage from the secret reasons of Mr. Justice Heald in application CSIS 4-84 issued on December 27, 1984:
Subsection 21(3) authorizes the Court to issue warrants thereunder "Notwithstanding any other law but subject to the Statistics Act ...” The sweep of the language used is clear. It surely confers paramountcy over any other law including the existing customary international law and subject only to one statute namely the Statistics Act. I think it crystal clear and without doubt that Parliament has expressed an unambiguous intention in the Canadian Security Intelligence Service Act to provide the Director with the powers contained therein to provide for the security of
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Canada, notwithstanding the principles of customary international law.
I note that Justice Heald's decision related to an entirely different factual context.
The
circumstances here are significantly different.
[29] The Service adopts the position that it is not asking the Court to authorize a violation of foreign law, although it acknowledges that the activities to be authorized by the warrant are likely to constitute a violation of foreign law. It also acknowledges that the Federal Court has no jurisdiction to authorize such activities on foreign soil and that the warrant sought on this application is not "enforceable" in the foreign jurisdiction.
[30] The Service submits that the existing statutory scheme under the Act provides the necessary authority for the Court to issue such warrants. Subsection 21(3) of the Act, provides that a Judge, upon being satisfied that the conditions in subsection 21(2) of the Act are met, may issue a warrant authorizing certain investigative activities. Since the empowering provision has no territorial limitation; the Service maintains that a Judge of this Court has the jurisdiction to issue the warrant.
[31] The Amicus agrees with the proposition advanced by Counsel for the Service that there is
no territorial limitation on the activities of CSIS related to the collection, analysis and retention
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of information respecting threats to the security of Canada as set forth in section 12 of the Act. According to the Amicus, it follows that any application for a warrant under section 21 of the Act, which is "to enable the Service to investigate a threat to the security of Canada", may extend to investigative activities of CSIS outside Canada. However, the Amicus adopts the position that given the current state of the law, the Service could not execute a warrant obtained under section 21 of the Act and exercise its information gathering powers in another country unless the Service had obtained the permission of the country where the targets of the warrants reside or was a party to a treaty or agreement covering exercise of its powers in that other country. The Amicus contends that absent such a permission or treaty, the Service would be in violation of international law should its agents or officers attend another country to execute a warrant issued under section 21 of the Act and intercept communications. The Amicus points to section 17 of the Act which provides for the Service, with ministerial approval, to enter into cooperation agreements with foreign states for the purpose of performing its duties and functions under the Act. No such agreements are in evidence in respect of the intended investigative activities abroad covered under the warrant application.
[32] In his initial written submissions, the Amicus cites the following cases by the Supreme Court of Canada in support of his arguments.
[33] R. v. Harrer, [1995] 3 S.C.R. 562, is cited for the proposition that section 32 of the Charter restricts its application to matters within the competence of the legislative bodies of the governments of Canada and the provinces. The Charter therefore finds no application in foreign states.
[34] The Amicus cites R. v. Cook, [1998] 2 S.C.R.597, for the proposition that if a state permits Canada to enforce its law within its territory for limited purposes, the Charter would apply. In Cook, the Supreme Court of Canada found that notwithstanding the general prohibition in international law against extraterritorial application of domestic law, the Charter can, in certain rare circumstances, apply beyond Canada's borders. The Court found that such circumstances arise where "...the impugned act falls within the scope of subsection 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state" (See Cook at paragraph 48).
Analysis
[35] The Service, in its submissions to the Court, speaks of the "enforceability" of the warrant. This is misplaced and potentially confusing use of language. In contrast to laws that are enforced, warrants are executed. The warrant powers sought are essentially directed at collecting information and intelligence. It is acknowledged by all concerned that while such warrants may be issued in Canada, the Court has no jurisdiction in respect to the execution of the warrant in a foreign state. What matters, for our purpose, is whether the Court has the authority to issue the warrant for investigative activities which are intended to be executed in a foreign state. The answer must be found in the enabling statute, to which I now turn.
[36] The Service contends, based on its argument which I summarized in paragraphs 22, 27
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and as a consequence, the Court's warrant oversight authority under section 21 of the Act also extends extraterritorially. As a result, the Service argues that the Court has authority pursuant to section 21 of the Act, to issue the warrant sought.
[37] The Act does not expressly provide an extraterritorial mandate for the Service to engage in investigative activities in the nature of the activities sought to be authorized by the warrant. Section 21 of the Act, which provides for the Court's warrant oversight, also contains no express provision vesting the Court with jurisdiction to authorize such extraterritorial activities. Both sections 12 and 21 are silent on the issue of territoriality. The question to be resolved is whether, in the absence of express statutory authority for the Service to engage in the extraterritorial activities at issue, the Court has jurisdiction to issue a warrant authorizing extraterritorial activities. To answer this question, I turn to the established principles of statutory interpretation.
[38] In order to construe the applicable provisions that concern us, it is useful to turn to the modern principle of statutory interpretation as articulated by Professor Driedger, in Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002 at p.1 and 10 and which provides that the "words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament." This principle is often cited and relied upon by Canadian courts. It was declared to be the preferred approach of the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at 41. The modern principle guides us in determining whether the meaning of the legislative text is plain or ambiguous. If the text has plain meaning, then extra-textual evidence of legislative intent, such as legislative history and international law,
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will be inadmissible to contradict that plain meaning. If however, the text is ambiguous or uncertain, then extra-textual factors may be considered in interpreting the legislative text. The question to be determined here is whether it can be inferred from the plain meaning of applicable provisions, read in their entire context, that the Court has the jurisdiction to issue the warrant sought.
[39] In construing the applicable legislative provisions, I have considered the following factors:
(i) The express territorial limitation in section 16 of the Act which provides for the collection of information concerning foreign states and persons "within Canada";
(ii) The absence of express territorial limitation in section 12 which provides for the collection, analysis and retention of information and intelligence relating to threats to the security of Canada;
(iii) The definition of "threats to the security of Canada" provided for in section 2 of the Act, which includes: "(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state", (my emphasis); and
(iv) The absence of any territorial reference in section 21 of the Act, the section which provides for judicial control on warrant applications. The Service contends that
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the Court's oversight role should therefore extend to the Service's section 12 mandate, which it argues is extraterritorial in scope.
Upon considering the applicable provisions of the Act and the above factors, I am unable to attribute a plain, or sufficiently clear, meaning to the provisions in terms of their extraterritorial application. While the language of the legislative text may allow for an inference to be drawn in respect to a mandate for the Service to conduct certain activities extraterritorially, that inference is not sufficiently obvious to provide a basis to conclude that the Service has a clear mandate to conduct the activities sought to be authorized in the warrant in countries other than Canada, and that the Court has jurisdiction to authorize such activities. In my view, such a construction cannot be taken or implied from the applicable provisions of the Act, read together.
[40] Flowing from this lack of clarity, I will now turn to certain extra-textual factors to assists in interpreting the legislative provisions. I will first deal with legislative history. The Service adduced two specific excerpts from the McDonald Commission (see Schedule "B") in support of its position and which recommend that the security intelligence agency should (i) not be required to confine its intelligence collection and countering activities to Canadian soil and (ii) be permitted to carry out certain investigative activities abroad. I have included the two excerpts in Schedule "B" as well as other recommendations of the McDonald Commission which outline a "clear and effective system of control" to ensure that the conduct of such activities is always within the mandate of the agency. It is interesting to note that many of these recommendations regarding controls were not included in subsequent legislation.
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[41] While this information might be of historical interest, what matters for our purpose is Parliament's intention. The only evidence adduced from proceedings in the House of Commons in respect to Bill C-9, the precursor to the Act, is reported in minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 2nd Sess., 32nd Parl., No. 9 (April 2, 1984) at 9:25. The then Solicitor General, Robert Kaplan, in response to a question respecting extraterritorial activities of the Service stated:
There is no statutory requirement that the entire activities of the Security Intelligence Service be performed in Canada. I think that would be unduly inhibiting. If for example – and this is very common, and you know it... an individual who is under surveillance, or who is a source of the Security Service, has some purpose for leaving the country in relation to the activities the security Service is interested in putting under surveillance, they may very well want to become aware of what he does on his trip.
This evidence is insufficient to permit an inference to be drawn that Parliament intended the Service to be provided with a mandate to conduct investigative activities in the nature of those contemplated in the warrant sought to be authorized. Further, the evidence is silent in respect to the Court's jurisdiction to authorize such activities. Based on the limited evidence before me, the legislative history fails to establish a clear intention by Parliament in respect to the extraterritorial reach of the Service's activities in a country other than Canada, and particularly regarding the Court's role in authorizing such activities.
[42] I will now turn to the principles of international law as a guide in construing the legislation. It is argued that the applicable legislative provisions here provide for judicial authorization of investigative activities in a country other than Canada. To that end, the legislation has an extraterritorial effect and can be said to be extraterritorial legislation. The
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activities sought to be authorized by the warrant, fall under Canada's enforcement or adjudicative jurisdictions as defined by the Supreme Court in Hape, at paragraph 58.
[43] Justice LeBel equates "executive or enforcement" jurisdiction to "investigative" jurisdiction, which refers to the ability of the police "or other government actors" to investigate a matter. The Service and its agents in conducting the investigative activities in a foreign state can therefore be said to be acting under Canada's investigative jurisdiction.
[44] The Service may also be operating under the adjudicative jurisdiction of the state, which refers to the Court's power to resolve disputes or interpret the law through binding decisions. Here, the warrant is issued pursuant to a Court decision.
[45] In construing the applicable provisions of the Act in circumstances that involve investigative activities in countries other than Canada, the Supreme Court of Canada teaches that the principles of international law need be considered. The Court has repeatedly confirmed the relevancy of international law norms and values in the interpretation of domestic law. (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] SCC 1; R. v. Sharpe, [2001] 1 S.C.R. 45; 114957 Canada Ltée. V. Hudson (Town), [2001] 2 S.R.C. 241)
[46] At paragraph 53 of its reasons in R. v. Hape, the Court affirmed the well established principle of statutory interpretation that legislation is presumed to conform to international law. The Supreme Court explained that this presumption of conformity is based on the rule of judicial
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policy that, as a matter of law, a court will strive to avoid construction of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compelled that result. It is expected that "...in deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations."
[47] The Supreme Court of Canada also affirmed that the principle of international comity which "induces every sovereign state to respect the independence and dignity of every other sovereign state," will bear on the interpretation of our laws — "statutory and constitutional" — where such laws could have an impact on the sovereignty of other states. (See Hape at paragraphs 47 and 48.)
[48] In Hape, the Supreme Court of Canada also adopts the proposition that customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation. Justice LeBel, writing for the majority, states that Parliament may violate international law, "but it must do so expressly". At paragraph 39 of his reasons for judgment he writes:
39. ... In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty. Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary
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international law to aid in the interpretation of Canadian law and the development of the common law (my emphasis).
[49] In Hape, at paragraph 68, the Supreme Court of Canada further declares that Parliament's "clear constitutional authority" to enact legislation with extraterritorial effect is informed by the "binding customary principles of International law", which prohibit interference with the sovereignty and domestic affairs of other states. At paragraphs 45 of his reasons, Mr. Justice LeBel writes:
45. ... Each state's exercise of sovereignty within its territory is dependent on the right to be free from intrusion by other states in its affairs and the duty of every other state to refrain from interference.
[50] The intrusive activities that are contemplated in the warrant sought are activities that clearly impinge upon the above stated principles of territorial sovereign equality and non­intervention. Further, the activities are likely to violate the laws of the jurisdiction where the investigative activities are to occur. This is not disputed by the Service. The Amicus maintains that there is no evidence which would allow the Court to make such a determination. In my view, to require such evidence to be adduced would be to place a heavy burden on the Service. The Service intends to execute the warrant wherever the targets are located. Understandably, no specific foreign state is identified in the application since the Service is likely unable to predict where these targets may travel once they leave Canada. It is therefore difficult, if not impossible; to lead evidence as to the legality of the investigative activities sought to be authorized in a given jurisdiction at the application stage, since no foreign state is identified.
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[51] Among the powers sought to be authorized under the warrant are: the ability to obtain access, install any thing search for, examine, take excerpts, make copies of, or otherwise record information. Given the intrusive nature of the activities at issue, it is reasonable to infer that the activities are likely to violate the laws of the jurisdiction(s) where the warrant is to be executed. In any event, absent consent of the foreign state, the investigative activities at issue impinge upon the territorial sovereignty of the foreign state.
[52] By authorizing such activities, the warrant would therefore be authorizing activities that are inconsistent with and likely to breach the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations. These prohibitive rules of international law (Hape at paragraph 39) have evolved to protect the sovereignty of nation states against interference from other states. Antonio Cassese, a renowned international law jurist, cited in Hape, referred to the "sovereign equality of nations" as "...the linchpin of the whole body of international legal standards, the fundamental premise on which all international relations rest." As stated earlier in these reasons, these "prohibitive rules of customary international law" are directly incorporated into Canadian domestic law.
[53] The Service argues that the principles of international law at play in matters of national security are different and that the customary international practice as it relates to intelligence gathering operations in a foreign state constitutes an overriding principle of international law that affords a basis on which to find that the Charter was intended to apply, and does apply, to security intelligence investigations outside Canada. I am not persuaded that in the national
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security context, the practice of "intelligence gathering operations" in foreign states is recognized as a "customary practice" in international law. Again, no evidence or authority was adduced in support of this contention. I will deal with the Service's Charter arguments later in these reasons.
[54] As stated in Hape at paragraph 65, extraterritorial jurisdiction is governed by international law rather than being at the absolute discretion of the individual state. Extraterritorial jurisdiction, prescriptive, enforcement or adjudicative, exists under international law and is subject to the strict limits under international law based on sovereign equality, non­intervention and the territorial principle. As discussed earlier in these reasons, it is well-established that a state's laws cannot apply within the territory of another state absent either the consent of that state, or in exceptional cases, some other basis under international law. (See Hape at paragraph 65). No other basis under international law has been put before me that would warrant displacing the above stated principles of sovereign equality, non-intervention and territoriality recognized by the Supreme Court of Canada as a "binding customary principle of international law".
[55] In construing the applicable provisions of the Act, I am guided by the principle of statutory interpretation that legislation is presumed to conform to international law. Applying the above stated principles, I am unable to construe the applicable provisions of the Act, as drafted, as providing the Court with a jurisdictional basis to issue the warrant sought. To do so would require that I read into the applicable provisions of the Act, a jurisdiction for the Court to authorize activities that violate the above stated principles of customary international law. As
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stated earlier in these reasons, such a mandate must be expressly provided for in the Act. Given the principles of law in play, and guided by the teachings of the Supreme Court of Canada in Hape, I am left to conclude that, absent an express enactment authorizing the Court to issue an extraterritorial warrant, the Court is without jurisdiction to issue the warrant sought.
[56] My above finding is determinative of the application. I will nevertheless now turn to the arguments raised by the Service in respect to the extraterritorial application of the Charter and the Code in the context of the warrant sought. These arguments were the main focus of the Service's submissions before the Court.
[57] The Service's main contention in this application is that the warrant sought is required to ensure that Canadian agents engaged in executing the warrant abroad do so in conformity with Canadian law since the impugned investigative activities may, absent the warrant, breach the Charter and contravene the Code. I will address first the Charter and the Service's position that the majority in Hape did not expressly or by necessary implication foreclose consideration of the Charter's application in the context of security intelligence investigations outside Canada.
[58] The Charter serves as a constitutional instrument to enshrine rights. It does not endow any powers. Canadian law is subject to the Charter, and may be challenged in circumstances where its application impinges Charter rights. Charter issues arise only with the application of Canadian law. In Hape, the Supreme Court of Canada confirmed that the Charter is subject to the same jurisdictional limits as Canada's other laws. It concluded that Canadian law is
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unenforceable in another state's territory without that state's consent. At paragraph 69 of its reasons, Mr. Justice LeBel wrote:
69. As the supreme law of Canada, the Charter is subject to the same jurisdictional limits as the country's other laws or rules. Simply put, Canadian law, whether statutory or constitutional, cannot be enforced in another state's territory without the other state's consent. This conclusion, which is consistent with the principles of international law, is also dictated by the words of the Charter itself. The Charter’s territorial limitations are provided for in s. 32, which states that the Charter applies only to matters that are within the authority of Parliament or the provincial legislatures. In the absence of consent, Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory. Since effect cannot be given to Canadian law in the circumstances, the matter falls outside the authority of Parliament and the provincial legislatures.
[59] The issue before the Court in Hape concerned the application of the Charter to investigations conducted by Canadian officers outside Canada. The Service argues that the case can be distinguished since Hape involved a criminal investigation, and in this case the investigative activities are not intended to gather evidence for a criminal prosecution, but rather to enable the Service to carry out its mandate as provided for in the Act.
[60] I am not convinced that Hape can be so easily distinguished. While it is true that Hape did not deal with security intelligence investigations outside Canada, and that the objective or ultimate purpose of the investigative activities may be different, the investigative activities of the Canadian police officers in Hape and those intended by agents of the Service pursuant to the warrant sought both engage the "investigative jurisdiction" of the Canadian state.
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[61] In my view, the pronouncements in Hape articulate the current state of Canadian law on its applicability, including the Charter, on matters that arise as a result of the extraterritorial investigative jurisdiction of the Cana