X (Re)

X (Re)
Court (s) Database
Federal Court Decisions
Date
2013-11-22
Neutral citation
2013 FC 1275
File numbers
SCRS-30-08
Notes
Reported Decision
Decision Content
Date: 20131122
Docket:
CSIS-30-08
Citation: 2013 FC 1275
Ottawa, Ontario, November 22, 2013,
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
IN THE MATTER OF an application by
[xxxxx xxxxxx ] for a warrant pursuant to
Sections 12 and 21 of the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C-23;
AND IN THE MATTER OF [ XXXX XXXXXXXXX]
REDACTED AMENDED FURTHER REASONS FOR ORDER
MOSLEY J.
INTRODUCTION:
[1] On May 4, 2009 the Court issued Reasons for the issuance of a warrant to intercept foreign telecommunications and [ ] from within Canada. An amended and redacted public version of those reasons was released on October 5, 2009. The warrant was issued initially on January 26, 2009 for a period of three months and was reissued for a further 9 months on April 6, 2009. When first authorized, the warrant marked a departure from the position previously taken by the Court that it lacked jurisdiction to authorize the collection of security intelligence information concerning a threat to the security of Canada by the Service from countries other than Canada. In my private and public reasons I explained why I considered it appropriate to authorize the collection of foreign telecommunications and [ ] so long as the interception of the telecommunications and seizures of the information took place from and within Canada.
[2] In arriving at that decision, I was persuaded by the applicant’s legal argument as to how the proposed method of interception was relevant to the jurisdiction of this Court and by a description of the facts concerning the methods of interception and seizure of the information, which differed from that put before my colleague, Justice Edmond Blanchard, on a prior application. More precisely, the applicant argued that this Court had jurisdiction to issue warrants to ensure a measure of judicial control over activities by government officials in Canada in relation to an investigation that extends beyond Canadian borders. Counsel advanced the argument that this Court had such jurisdiction because the acts the Court was being asked to authorize would all take place in Canada.
[3] Since my May 2009 Reasons were issued, a number of similar warrants have been issued on fresh or renewed applications in relation to other targets of investigation under sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 ("the CSIS Act"). In these Reasons, I will refer to these warrants as “CSIS-30-08 warrants” or “30-08”.
[4] These Further Reasons for Order respond to recent developments and are intended to clarify the scope and limits of the Reasons issued in 2009. This has become necessary, in my view, as a result of additional information that has been provided to the Court following publication of the 2012-13 Annual Report of the Commissioner of the Communications Security Establishment Canada (CSEC), the Honourable Robert Décary, QC. These Further Reasons address issues that have arisen with respect to whether the duty of full disclosure owed by the Canadian Security Intelligence Service (“CSIS or the Service”) to the Court was respected and with regard to foreign collection practices undertaken by the Service and CSEC in connection with the issuance of the 30-08 warrants.
[5] Before addressing these issues, I think it important to lay out my understanding of the background to these events for the record.
BACKGROUND:
[6] CSIS has long taken the position that it is not barred by its statute from engaging in security intelligence collection activities outside of Canada. This view is supported by the absence of an express territorial limitation in s 12 of the Act, by statements made in the Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police 1981 (McDonald Commission) which led to the creation of the Service, and by statements in Parliament during the debates prior to enactment of the enabling statute. The Service has engaged in certain investigative activities in foreign countries by, among other things, [ ]
[ ] entering into sharing agreements with foreign agencies.
[7] The question which remained in doubt, however, was whether the conduct of intrusive activities abroad that in Canada required lawful authority, such as a warrant or express enabling legislation, would contravene the Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11 and the Criminal Code, R.S.C. 1985, c C-46. In the absence of express legislative authority, or a warrant, it was considered by the Service and its legal advisors that CSIS officers would be exposed to potential liability in Canada as well as in the foreign jurisdiction. While this could have been addressed by Parliament, no attempt was made to amend the legislation, most likely due to concerns about the controversy that opening the Act to insert such an amendment would engender.
[8] The Service did not attempt to seek the authorization of a warrant to conduct intrusive activities abroad until 2005. In that year, the Service applied for a warrant, in application CSIS 18-05, that if issued would have authorized the interception of the communications of a Canadian citizen who was temporarily resident outside Canada. The requested warrant would also have authorized the Service to obtain, in relation to the target, [ ]
[ ].
[9] A preliminary issue arose as to whether the questions of law raised by the application could be dealt with in a public hearing. An amicus curiae, Mr. Ron Atkey QC, was appointed to assist the
Court in determining that issue. Following oral and written submissions, Justice Simon Noël concluded that the application should be dealt with in private. A public version of his Reasons for Order and Order was released in 2008: Re Canadian Security Intelligence Services Act 2008 FC 300, [2008] F.C.R. 477. For operational reasons, a notice of discontinuance of the application was filed on August 23, 2006 without a determination of the merits or other legal issues.
[10] The questions were then raised again in an application (CSIS 10-07) brought before Justice Edmond Blanchard in April, 2007. In that application, CSIS sought the authority of warrants in respect of investigative activities against 10 subjects in Canada and other countries. On the strength of the evidence of a CSIS affiant, Justice Blanchard was satisfied that the requirements of paragraphs 21 (2) (a) and (b) of the CSIS Act had been met for the issuance of warrants for execution in Canada. However, he was not prepared to authorize investigative activities by the service outside Canada, as requested, without further consideration. Mr. Ron Atkey was again appointed to serve as amicus curiae. Justice Blanchard requested that 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 had jurisdiction to issue the requested warrant.
[11] In the application before Justice Blanchard, the Service sought a warrant to intercept any telecommunication destined to or originating from the subjects of investigation including such communications abroad; to obtain information or records relating to the targets [
]
[ ] It was requested that the warrant provide that it may be executed, in addition to locations in Canada, at any place outside of Canada under the control of the government of Canada or of a foreign government. [
].
[12] In addition to the evidence of the CSIS affiant required to establish the statutory prerequisites to the issuance of a warrant, counsel for the applicant filed the affidavit evidence of James D. Abbott, CSEC’s then Acting Director of Signals Intelligence (“SIGINT”) Requirements.
[13] CSEC’s mandate is set out in the National Defence Act, R.S.C. 1985, c. N-5, as amended by the Anti-terrorism Act, S.C. 2001, c. 41. Under paragraph 273.64(1) (a) of this statute, the agency is authorized to acquire and use information from the global information infrastructure (i.e., communications systems, information technology systems and networks) for the purpose of providing foreign intelligence to the government of Canada.
[14] Prior to the 2001 legislation, it was unlawful for CSEC to intercept the communications of a foreign target that either originated or terminated in Canada. Under the then prevailing regimen, CSEC could only target communications that originated and terminated in foreign jurisdictions, and which involved foreign intelligence. The 2001 legislation empowered the Minister of National Defence to authorize CSEC to target foreign entities physically located outside the country that may engage in communications to or from Canada, for the sole purpose of obtaining foreign intelligence.
A major factor prompting the legislation was CSEC's need for lawful authority to operate effectively without transgressing the Criminal Code prohibition against intercepting "private communications", as will be discussed further below. The legislation enabled CSEC to intercept communications to or from Canada for the purpose of obtaining foreign intelligence subject to ministerial authorization and contingent on specific provisos set out in s 273.65 (2):
a) the interception is directed at foreign entities outside of Canada;
b) the information could not reasonably be obtained by other means;
c) the expected foreign intelligence value of the information justifies its collection; and
d) satisfactory measures are in place to protect the privacy of Canadians to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.
[15] CSEC is expressly prohibited under paragraph 273.64(2) (a) of the National Defence Act from directing these activities at Canadian citizens and permanent residents (“Canadian persons”) wherever located or at any person in Canada regardless of nationality.
[16] The limitations respecting Canadian persons and any persons in Canada do not apply to technical and operational assistance which CSEC may provide to federal law enforcement and security agencies in the performance of their lawful duties pursuant to paragraph 273.64(1) (c) of the National Defence Act. Subsection 273.64(3) of this statute provides that such assistance activities are subject to any limitations imposed by law on the federal agencies in the performance of their duties.
[17] In his affidavit filed in application CSIS 10-07, Mr. Abbott described how CSEC would assist the Service if the warrant sought was issued. [
] While there is a long-standing agreement that each allied agency would treat the citizens of another allied nation as its own for the purposes of the application of its domestic legislation, Mr. Abbott acknowledged that it remained open to those agencies to pursue their own national interest with respect to the information collected.
[18] Mr. Abbott also explained how CSEC had the capability to direct activities from within Canada [
].
[19] Prior to any conclusion being reached by Justice Blanchard on the matters under consideration, in June 2007 the Supreme Court of Canada released its decision in R. v. Hape, 2007 SCC 26 respecting the application of the Charter to criminal investigations conducted in other countries by Canadian authorities.
[20] In Hape, the Supreme Court affirmed that Canadian legislation is presumed to conform to international law absent express statutory language to the contrary and that customary international law prohibited interference with the domestic affairs of other states. The Court found that extending the reach of the Charter to the actions of Canadian officials abroad would be inconsistent with those principles. The majority in Hape recognized, at paragraph 101, that the participation of Canadian officials abroad that would violate Canada’s international human rights obligations might justify a remedy under s 24(1) of the Charter because of the impact of those activities on the rights of the individual in Canada.
[21] In response to questions framed by Justice Blanchard following the release of Hape, counsel for the Deputy Attorney General of Canada (DAGC) took the position that the scope of the Supreme Court’s decision was not clear. In particular, it was submitted, it was not clear whether the Court’s rationale was intended to apply, and did apply, to the conduct of security intelligence investigations outside Canada. To that extent, they argued, such investigations outside Canada might raise Charter issues where those investigations implicated persons having a real and substantial connection to Canada. Further, the question of whether activities outside Canada may contravene provisions of the Criminal Code had not been resolved, they submitted.
[22] The responsible course of action for the Service was to seek a warrant, it was argued. Should the Charter and the Criminal Code be found to be inapplicable to security intelligence investigations abroad, the worst that could occur, it was submitted, is that the warrant would have been unnecessary. The converse, should it occur, would be untenable for the Service as its officers would continue to be exposed to Charter and Code liability if they engaged in intrusive activities without the authorization of a warrant.
[23] As discussed in my May 2009 Reasons for Order, the interception of telecommunications for which authorization was sought in the applications before Justice Blanchard in 2008 and before me in 2009 would come within the broad meaning of the term “intercept” as defined in s 2 of the Act by reference to the Criminal Code definition. The Service sought to listen to, record or acquire communications. Such activities constitute an “intercept” as interpreted by jurisprudence in relation to the Criminal Code definition: R. v. McQueen, (1975), 25 C.C.C. (2d) 262 (Alta. C.A.); R. v. Giles, 2007 BCSC 1147.
[24] Section 26 of the CSIS Act provides that Part VI of the Criminal Code does not apply in relation to any interception of a communication under the authority of a warrant issued under section 21 of the Act. Absent this protection, Part VI would apply to the interception of any “private communication” as defined by section 183 of the Criminal Code; that is any private communication where either the originator or the recipient was in Canada. The place of “interception” under the Code has been interpreted as the location where a call has been acquired and recorded: R. v. Taylor, [1997] B.C.J. No. 346 affirmed [1998] 1 S.C.R. 26; R. v. Taillefer and Duguay (1995), 100 C.C.C. (3d) 1. Thus the concern about potential liability absent a warrant or express legislative authority discussed by the DAGC in his Supplementary Submissions to the Court in the summer of 2008 was not unrealistic.
[25] Justice Blanchard issued classified Reasons for Order and Order on October 22, 2007. A public, redacted version was issued in February 2008 (Re CSIS Act, 2008 FC 301). Justice Blanchard described the issues before him as follows at paragraph 12 of his Reasons:
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…and the Canadian Charter of Rights and Freedoms… apply to activities of the Service and its agents in undertaking threat related investigations in a country other than Canada?
d) Can the Canadian [sic] Security Establishment (CSE) assist the Service in the execution of the warrant sought?
[26] The Service's rationale in support of its position that the Court had jurisdiction to issue the warrant was set out in paragraphs 22 and 23 of Justice Blanchard's decision:
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 extraterritorial reach.
23. The Service further contends that the warrant is required to ensure the Canadian agents engaged in executing a warrant abroad do so in conformity with Canadian law. The Service maintains that the warrant is required to judicially authorize activities that, absent a 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 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.
[27] On consideration of the principles of statutory interpretation, the legislative history of the Act and the principles of customary international law addressed in Hape, the answer to the first question was found to be negative. Absent consent of the foreign states concerned to the operation of Canadian law within their borders, the proposed investigative activities would breach their territorial sovereignty. This violation of international law could only be authorized by Parliament through express legislation. Justice Blanchard concluded, " [a]bsent an express enactment authorizing the Court to issue an extraterritorial warrant, the Court is without jurisdiction to issue the warrant sought" (paragraph 55).
[28] As a result of this determination, which was dispositive of the application, Justice Blanchard considered it unnecessary to deal with the other issues. He thought it appropriate, however, to provide his views on the third question since that had been the central focus of the Service’s submissions before the Court.
[29] Justice Blanchard considered that the principles set out in Hape with respect to investigative actions in criminal matters were equally relevant to the collection of information in the intelligence context abroad. He concluded that the Charter did not apply in that context and that the offence provisions of the Criminal Code with extraterritorial effect were not relevant to the activities of intelligence officers collecting information abroad. In the circumstances, he was unable to find why the warrant sought would be required for the stated purpose of protecting the Service or its agents from prosecution under the Code for the limited number of offences which Parliament had defined as having extraterritorial effect (paragraph 63). It does not appear that the link between Part VI of
the Criminal Code and the protection afforded by s 26 of the CSIS Act to the interception of communications having at least one end in Canada, noted above, was raised before Justice Blanchard.
[30] In any event, nothing in Justice Blanchard’s Reasons support an interpretation that CSIS officials do not need a warrant or other lawful authority, including that of the foreign state, to conduct intrusive intelligence collection activities abroad. He found, rather, that the Act did not provide for the issuance of such a warrant and that the Charter did not extend to such activities.
[31] In these proceedings, the Court has been provided with information about what transpired next. In the aftermath of Justice Blanchard’s decision, the Director of CSIS sought further legal advice from the DAGC respecting:
• the interception of the communications of Canadians or permanent residents who are outside Canada where the Service believes they are engaged in activities constituting a threat to the security of Canada; and
• whether the Service can lawfully [ ]
information [ ] outside
Canada in cases where the Service believes the information
relates to activities constituting a threat to the security of
Canada and where there is a current CSIS Act warrant
authorizing [ ] seizure of similar information in Canada. [underlining added]
[32] In a letter to the Director dated October 2, 2008, the DAGC set out his views on the implications of the decision in CSIS 10-07 in relation to seven factual scenarios. Several of these scenarios had not been raised in the application before Justice Blanchard and were not addressed in his decision. While these scenarios entailed the interception of communications of targets who are
outside Canada, the interceptions would take place entirely inside Canada.[
] Interceptions, [ ] and seizures conducted from within Canada, CSIS was advised, did not engage the territorial issues raised by Justice Blanchard and could properly be the subject of a warrant under s 21 of the CSIS Act given an appropriate factual context.
[33] The tasking of allied foreign agencies discussed by Mr. Abbott in his affidavit in CSIS 10-07 was briefly discussed in the opinion. This was described as the interception of a target’s communications outside Canada by a foreign agency at the Service’s request. Reference was not made to CSEC assistance. The DAGC stated that this did not engage the jurisdictional issues raised by Justice Blanchard and asserted that, in his view, a warrant to authorize such requests was not required. This, counsel for the DAGC now say, was based on a new interpretation of the scope of s 12 of the CSIS Act in light of Hape and Justice Blanchard’s decision.
[34] The opinion respecting the scope of s 12 in the DAGC’s letter of October 2, 2008 consists of no more than a bald assertion of legitimacy. The letter contains no analysis or discussion of the legislative history behind s 12 and its relationship to s 21 or other provisions of the Act read as a whole. Nor was there any discussion of the constraints placed on CSEC or the boundaries of the assistance it may provide to federal security and law enforcement agencies. The Service was cautioned that it should satisfy itself that the foreign party intercepting the communications was
acting in accordance with the laws of its own jurisdiction and that the actions of the foreign party did not give rise to serious violations of human rights. How that was to be done was not discussed.
[35] To address the Director’s concern about the Service's ability to investigate threats to Canada’s security by targets outside the country, the DAGC proposed that their respective officials work together to seek, by way of a fresh warrant application, an authoritative judicial interpretation of sections 12 and 21 of the Act in relation to the factual scenarios that were outside the scope of Justice Blanchard’s decision. Department of Justice counsel were instructed to work with CSIS officials to identify applications on which to seek such an authorization.
[36] That opportunity arose in January 2009 in the CSIS 30-08 file. The application had been originally presented on November 27, 2008. At that time, the Court issued warrants with respect to the threat related activities of two Canadian citizens. The warrants authorized the use of intrusive investigative techniques and information collection at locations within Canada for a term of one year. On January 24, 2009 the Service sought an additional warrant as the targets were about to leave Canada and there was reason to believe that they would continue activities constituting a threat to Canada while abroad.
[37] The application was heard before me on an urgent basis on Saturday, January 26, 2009. Written submissions and authorities were filed. I was asked to revisit the question of jurisdiction and to distinguish Justice Blanchard’s reasoning in the 2007 decision on the basis of a different description of the facts relating to the activities necessary to permit the interception of the
communications and the procedures to be used to obtain the information sought and a different legal argument concerning how the proposed methods of interception were relevant to the jurisdiction of this Court.
[38] In addition to the evidence of a CSIS affiant, the Service relied on an affidavit from the CSEC employee, Mr. Abbott. Mr. Abbott gave oral evidence at the hearing and was questioned closely by myself as to how the proposed methods of interception and search differed from those presented to Justice Blanchard.
[39] On the application before Justice Blanchard, Mr. Abbott’s affidavit discussed in detail how the resources of the allied foreign agencies would be tasked with intercepting the communications of the Canadian travelling abroad in addition to CSEC’s own collection [ ]. In his evidence before me, Mr. Abbott stated that the targeted [ ] communications and [
] would be intercepted [ ] solely by Canadian government equipment [ ] No reference was made to tasking allied foreign agencies. There was no suggestion that CSIS or CSEC officials intended to engage the services of allied foreign agencies to assist in the collection effort. Mr. Abbott’s evidence stressed that the assistance provided to CSIS would be limited to the authority granted by the warrant:
The methods and techniques described in this affidavit could be used, were this warrant application granted, in the provision of assistance to the Service to the extent allowed by the warrant.
Affidavit of James D. Abbott, January 23, 2009, para 15.
[40] After reading the material before the Court and hearing the evidence of the witnesses and the submissions of counsel, I was satisfied that there were sufficient factual and legal grounds to distinguish the application before me from that considered by Mr. Justice Blanchard and the warrant was granted. It was initially issued for a term of only three months so that I might consider the matter further. On April 6, 2009 I heard additional submissions from counsel and on April 16, 2009 I extended the warrant for a further nine months. As noted above, I issued Top Secret Reasons for Order on May 4, 2009 to explain why I believed that the Court had the jurisdiction to issue the warrant and how the application differed from that considered by Justice Blanchard.
[41] While the record is not entirely clear on this point, it appears from the information before me that no attempt was made to task foreign agencies with the collection of telecommunications intercepts in relation to the targets of the warrant issued on January 24, 2009. However, it is apparent that such actions began shortly after my Reasons for Order were issued on May 4, 2009. [ xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ]. They recommended that requests for assistance to the allied foreign agencies should be made at the same time as requests for assistance were made by the Service to CSEC under a 30-08 warrant. CSIS senior management agreed.
[42] The first request for assistance involving a foreign partner in addition to the scope of a 30-08 warrant was made on May 7, 2009, according to Mr. Abbott’s evidence in this proceeding.
On May 27, 2009 a senior counsel of the Department of Justice Departmental Legal Services Unit at CSEC provided advice to his client that, “where a 30-08 warrant has been issued against a Canadian citizen or permanent resident located outside Canada” asking allied nations to intercept the communications of the subject of that warrant would not appear to be contrary to the CSIS Act or the Charter. In addition the opinion states that:
It is understood that the warrant contains no power granted to CSIS dealing with requests to foreign nations, and that CSIS would make such request only where a warrant is in force. [Underlining added]
[43] It is not clear whether the linkage between the 30-08 warrants and the requests for foreign assistance was made at the request of CSEC officials concerned about the scope of their assistance mandate. However, it appears in a memorandum from the office of the CSIS Deputy Director of Operations on September 11, 2009 to all CSIS branch and regional offices. The memorandum stated that as a result of the Court’s May 4, 2009 decision the Service could now request the Court to authorize intercepts of foreign telecommunications with the assistance of CSEC. It further states that the use of "2nd party assets will be the norm”, meaning the allied foreign agencies’ telecommunication collection systems. The memorandum does not state that the Court had not authorized the use of the foreign assets.
[44] While specific details would not be provided to the second parties that the individuals concerned were Service targets, the memorandum acknowledges that the second parties could infer that the collection was being conducted on behalf of the Service as it would be outside of normal practice for CSEC [ ] What they might then do with the information was beyond the control of the Service.
[45] The Court has issued more than [ ] 30-08 warrants on fresh or renewal applications since May of 2009. It appears that in the majority of these cases, if not all, CSIS has asked CSEC to task their foreign partners [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ] Counsel for the Service concedes that the fact that this would be done was not disclosed in any of the applications to obtain a 30-08 warrant.
2012-2013 Annual Report of the CSEC Commissioner
[46] Commissioner Décary’s 2012-2013 Annual Report was transmitted to the Minister of National Defence in June 2013. A public expurgated version was issued in late August 2013. The Public Report observed that paragraph 273.64(1) (c) of the National Defence Act authorizes CSEC to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties. It was further noted that this would include the interception of Canadians’ communications if CSIS has a judicially authorized warrant issued under s. 21 of the CSIS Act.
[47] Pursuant to subsection 273.64(3) of the National Defence Act, the Report noted, CSEC is subject to any limitations imposed by law on the agency to which it is providing assistance. In carrying out its other mandates, the collection of foreign intelligence and protecting Canada’s electronic infrastructure, CSEC is expressly constrained from directing its activities at Canadian persons anywhere or any person in Canada and must take measures to protect the privacy of Canadian persons in the use and retention of intercepted information. Thus, the only circumstance in which CSEC may target Canadian persons is under its assistance mandate and only then if it does so in support of another federal agency that is acting under lawful authority.
[48] The CSEC Commissioner’s Annual Report contained a discussion of the Commissioner’s review of CSEC assistance to CSIS under part (c) of CSEC’s mandate and sections 12 and 21 of the CSIS Act. This discussion referred to the Court’s decisions in CSIS 10-07 and CSIS 30-08.
[49] The objectives of this review were described as the following at page 23 of the Public Report:
…to acquire detailed knowledge of and to document CSEC’s assistance to CSIS and to assess whether CSEC activities complied with the law, including with the terms of the warrants issued to CSIS, and any privacy protections found therein. CSEC’s assistance to CSIS under the warrants may include use of Canadian identity information and the interception of the communications of Canadians. CSEC’s collection, as defined in the warrant, may impact on the privacy of Canadians.
[50] The Public Report further states that the Commissioner had examined “CSEC assistance to CSIS in support of a number of the first warrants of this kind relating to counter-terrorism”. The Report sets out the specific information verified by the Commissioner to assess CSEC’s compliance with the law and privacy protections in this context:
• CSEC had a copy of the warrant and had clear and sufficient information about the assistance sought by CSIS;
• the communications targeted by CSEC for CSIS were only those communications referred to in the warrants;
• the communications were not targeted before the warrants came into force and were no longer targeted once the warrants expired;
• CSEC targeted the subjects of the warrants only while they were believed to be outside Canada;
• CSEC targeted only the types of communications and information that were authorized in the warrants to be intercepted or obtained; and
• CSEC complied with any other limitations imposed by law on CSIS, for example, any conditions in the warrants.
[51] In concluding this discussion, Commissioner Décary noted that he had consulted his independent counsel with respect to general questions of law relating to this subject and made two recommendations to the Minister to help ensure that CSEC assistance to CSIS is consistent with the authorities and limitations of the warrants and to enhance the measures in place to protect the privacy of Canadians. As described in the Public Report, the recommendations were that:
1. CSEC discuss with CSIS the expansion of an existing practice to protect privacy to other circumstances; and
2. CSEC advise CSIS to provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS.
[52] Commissioner Décary concluded by observing that notwithstanding these recommendations “CSEC conducted its activities in accordance with the law and ministerial direction and in a manner that included measures to protect the privacy of Canadians.” He noted that the Minister had accepted the recommendations and CSEC had raised them with CSIS. Commissioner Décary also stated that he had shared certain general points relating to CSIS that arose out of the two recommendations with the Chair of the Security and Intelligence Review Committee (SIRC).
[53] Upon reading the CSEC Commissioner’s Annual Report, I issued an Order on August 26, 2013 requiring that Counsel for CSEC and CSIS appear before the Court prepared to speak to the matter. More specifically I directed that:
…counsel should be ready to speak as to whether the application of the CSE Commissioner’s recommendation “that CSEC advise CSIS to provide the Federal Court of Canada, when the occasion arises, with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS” relates to the evidence presented to the Court in the application to obtain CSIS-30-08 and all other similar applications since, and, if yes, whether the evidence would have been material to the decision to authorize the warrant(s) in CSIS-30-08 or any subsequent applications.
[54] Counsel for CSIS and CSEC appeared before me on September 4, 2013. In preparation for that hearing, they filed a Book of Documents that included, among other things, the Reasons for Order and Order in File No. CSIS 10-07, the Reasons for Order in CSIS 30-08, the Top Secret affidavits of James D. Abbott filed on both applications and the Top Secret version of the portion of the CSEC Commissioner’s Annual Report relating to the Commissioner’s review of CSEC assistance to CSIS under part (c) of CSEC’s mandate and sections 12 and 21 of the CSIS Act.
[55] Upon reviewing this information it became apparent to me that the focus of the Commissioner’s concern was the information that had been before Justice Blanchard in the CSIS 10-07 application and was not presented in the CSIS 30-08 application or in any subsequent application for a 30-08 warrant. This was Mr. Abbott’s evidence before Justice Blanchard that if the warrant was issued, CSEC would provide assistance to CSIS by, among other things, tasking its partners within the “Five Eyes” alliance (the United States, United Kingdom, Australia and New Zealand) to conduct surveillance on the warrant targets. While it was not addressed in the evidence submitted in support of the CSIS 30-08 application, as noted above this became the default action taken by CSIS and CSEC upon issuance of a 30-08 warrant.
[56] In his Top Secret Report, Commissioner Décary summarized how the practice evolved based on the information reviewed:
[xx xxx xx
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[57] Commissioner Décary noted that CSEC's affidavit for Justice Blanchard discussed in detail that CSEC would use second party assets to assist in intercepting communications under 30-08 warrants, as well as how each second party partner may make use of the information that would be shared. In contrast, CSEC’s affidavit and testimony in the application before me contained no information about the involvement of the second parties.
[58] In response to Commissioner Décary’s inquiries about the legal grounds pertaining to 30-08 interceptions and the second parties, a letter from the Director General, Policy and Communications, CSEC dated April 12, 2011 states the following:
… CSEC is pleased to share with the Commissioner's office copies (attached) of the six legal opinions provided to CSEC by its Directorate of Legal Services (DLS) pertaining to the interception of the communications of Canadians located outside of Canada, pursuant to a 30-08 Warrant obtained by the Canadian Security Intelligence Service (CSIS).
…
In relation to CSEC's legal position requesting Second Party assistance with 30-08 interception, CSEC refers the Commissioner's office to the October 2007 decision by Justice Blanchard in which he states that a warrant would not be required to authorize investigative activities outside Canada. For this reason, CSEC believes that requests for assistance to foreign nations are not within the scope of the 30-08 (in those instances where foreign assistance is provided outside Canada, the domestic law of the foreign nation applies).
[Underlining added]
[59] The underlined passage is an interpretation of Justice Blanchard's October 2007 decision by CSEC legal counsel. As discussed above, there is nothing in Justice Blanchard’s Reasons that states that a warrant (or express legislative authority) would not be required to authorize investigative activities outside Canada. Rather, as he declared, the Court lacked the jurisdiction under the statute to grant such a warrant. He did not address whether Parliament could authorize such activities other than by reference to the analysis in Hape which acknowledged that it is open to Parliament to enact such legislation.
[60] Commissioner Décary questioned whether forwarding [ ] information about the Canadian subjects of 30-08 warrants to the second parties resulted in a loss of control over the information which may result in an unauthorized violation of the subjects’ reasonable expectations of privacy. CSEC officials, in response, relied on the reasoning of the majority of the Supreme Court of Canada in Schreiber v. Canada [1998] 1 S.C.R. 841. In Schreiber, the majority held that the requirement under Canad