Canadian Security Intelligence Services Act (CA) (Re)

Canadian Security Intelligence Services Act (CA) (Re)
Court (s) Database
Federal Court Decisions
Date
2020-06-16
Neutral citation
2020 FC 697
Notes
A correction was made on March 17, 2022.
Decision Content
TOP SECRET
Date: 20220309
Docket: ||||||||||||||||||
Citation: 2020 FC 697
Ottawa, Ontario, March 09, 2022
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
IN THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||||||||||||| FOR WARRANTS PURSUANT TO SECTIONS 16 AND 21 OF THE CANADIAN SECURITY INTELLIGENCE SERVICES ACT, RSC 1985, c. C-23
AND IN THE MATTER OF [A FOREIGN STATE, GROUP OF STATES, CORPORATION, OR PERSON]
AMENDED JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Background 2
II. Issue One – What is the scope of s 16 of the CSIS Act? 5
A. Background – The History and Purpose of s 16 6
B. Incidental Collection of Information About Canadians 8
(1) Introduction 8
(2) Background 9
(3) The Service’s practices relating to information about Canadians 11
(4) Communications and privileges of elected officials 18
C. The Relationship Between s 16 and s 12 28
D. Proposed Changes to the s 16 Warrant Templates 33
(1) Incidental changes to warrant templates 34
(2) Clarifying the scope of some powers 35
(3) New powers or locations 36
(4) Conclusion on warrant templates 37
III. Issue Two – Does s 16 authorize use of CSS technology? 37
IV. Issue Three – Does s 16 authorize interception of |||||||||| data? 45
(1) The Technology 46
(2) Does s 16 provide sufficient legal authority? 51
V. Issue Four – Does s 16 authorize interception of communications outside Canada? 59
VI. Conclusion and Disposition 62
I. Background
[1] This case began as an application for warrants to gather foreign intelligence pursuant to s 16 of the Canadian Security Intelligence Act, RSC 1985, c 23 (see Annex for all provisions cited). It then grew, becoming a vehicle for the consideration of a number of issues that have arisen in the context of s 16 over recent years.
[2] Section 16 grants the Service authority to provide assistance to the Minister of National Defence or the Minister of Foreign Affairs by collecting information or intelligence about the capabilities, intentions, or activities of a foreign state or foreign person. The Service’s role under s 16 is distinct from its primary mandate to investigate threats to the security of Canada under s 12 of the CSIS Act.
[3] The original application before me was heard in October 2017. Counsel for the Attorney General of Canada had alerted the Court that the application would include submissions on amendments that the Service was seeking to the templates on which s 16 warrants were then based, as well as representations on the treatment of information collected about Canadians, including elected officials, in the course of s 16 investigations. The latter was in response to an earlier Direction from the Court requesting the Service to explain its practices and procedure in a future s 16 warrant application. (I provide further details relating to that Direction below.)
[4] After the October 2017 hearing, I appointed two amici curiae to assist me, Mr. Gordon Cameron and Mr. Owen Rees. (Mr. Rees withdrew as amicus in the fall of 2018 due to a change in his employment). In March 2018, the AGC sought to address other issues that had not been previously considered by the Court in the s 16 context. In addition to the issues relating to the warrant templates and the treatment of information about Canadians, the AGC, jointly with the amici, requested that I address:
The interplay between s 12 of the CSIS Act and s 16 (this was in response to concerns expressed periodically by the Court).
Whether s 16 gives lawful authority for the Service to employ cell-site simulator (CSS) technology.
Whether s 16 gives lawful authority for the Service to conduct |||||||||| surveys.
Whether s 16 gives lawful authority for the Service to intercept communications of [foreign persons] when they are travelling outside of Canada.
[5] Shortly thereafter, the AGC filed a number of additional affidavits relating to these issues. A schedule was worked out for the presentation of evidence and oral arguments. A hearing took place in July 2018 and supplementary written submissions were received up until December 2018.
[6] While I have addressed all of the issues presented to me, I should point out that in some areas this judgment is simply a summary of information I received about the Service’s s 16 activities that do not require a definitive ruling. For example, in terms of the Service’s policies and practices on collecting and retaining information about Canadians, I describe those matters in detail and note the shortcomings that the amici identified. But I did not have a legal basis on which to order the Service to do more. I do, however, point out areas where the Service’s policies and practices should be bolstered. Similarly, I describe how the Service carries out parallel operations under sections 12 and 16 and note some concerns about them but, again, found no legal basis for an Order.
[7] However, three areas did require rulings – the proposed use of CSS technology, the collection of |||||||||| data, and the interception of [foreign persons’] communications outside Canada.
[8] I have consolidated the various issues before me under these four headings:
What is the scope of s 16 of the CSIS Act (particularly as it relates to the collection of information about Canadians and to concurrent investigations of threats to the security of Canada under s 12, and the appropriate warrant templates for the execution of intrusive powers in the collection of foreign intelligence)?
Does s 16 authorize use of CSS technology?
Does s 16 authorize interception of |||||||||| data?
Does s 16 authorize interception of [foreign persons’] communications outside Canada?
[9] In sum, I find that the Service’s treatment of information about Canadians, including elected officials is satisfactory, but should be improved. I also conclude that the Service’s approach to parallel investigations pursuant to ss 12 and 16 is satisfactory. I have also found that s 16 provides sufficient legal authority to the Service to use CSS technology. However, I find that s 16 does not provide lawful authority to the Service to intercept |||||||||| data; a warrant is required to do so. Finally, I conclude that s 16 authorizes the interception, within Canada, of a [foreign person’s] communications while outside Canada.
II. Issue One – What is the scope of s 16 of the CSIS Act?
[10] This application requires me to consider the overall scope of s 16 against which some of the more specific questions set out above can be posed. In this section, I begin with some background, then I will discuss the issue of the incidental collection of information about Canadians, including elected officials, in the conduct of s 16 investigations. I will also compare and contrast s 16 with s 12 and discuss the changes that the Service proposes to make to the s 16 warrant templates, largely to bring s 16 warrants into line with s 12 warrants.
A. Background – The History and Purpose of s 16
[11] From the beginning – that is, when the CSIS Act was enacted in 1984 – the Service was given the express authority, within Canada, to assist the Minister of National Defence and the Minister of Foreign Affairs in gathering information about the “capabilities, intentions or activities” of foreign states or any persons other than Canadian citizens, permanent residents, or corporations (s 16(1)(a),(b)). In this decision, I will refer to this mandate as the Service’s role in gathering “foreign intelligence.”
[12] It was also clear, however, that the need for the Service to be involved in protecting Canada from foreign clandestine activities was merely a secondary role (or even a tertiary one, according to the Special Committee on the Security Intelligence Service, Report of the Special Committee of the Senate on the Canadian Security Intelligence Service: Delicate Balance: A Security Intelligence Service in a Democratic Society (Ottawa: Senate of Canada), at para 49). See also Re X, 2018 FC 738 at para 28; Re X (Associated Data) 2016 FC 1105 at para 165.
[13] Nevertheless, s 16 provides broad powers. Arguably, the terms “capabilities, intentions or activities” could refer to virtually anything a foreign country [or foreign person] might wish to learn, achieve, obtain, accomplish, or carry out. Further, in pursuit of its s 16 mandate, the Service can request the Court to grant it a range of intrusive powers, including search, seizure, and electronic surveillance, to collect intelligence relating to any of those objects in order to assist one or both of the named Ministers.
[14] The range of matters on which a Minister might seek assistance is also broad. The mandate of the Minister of Foreign Affairs, for example, includes conducting the external affairs of Canada, as well as international trade, commerce, and development. Global Affairs Canada identifies current priorities as including a comprehensive engagement with countries in the Asia-Pacific Region, as well as diversified international trade and foreign investment. Other notable priorities include combatting drug trafficking, maintaining constructive relations with the United States, and expanding Canadian leadership on the global scene in areas such as human rights, climate change, and peacekeeping. The Minister also has responsibility for Canada’s diplomatic relations, which includes ensuring that foreign diplomats and consular agents in Canada abide by their obligations not to violate Canadian laws or interfere in Canada’s internal affairs.
[15] It is perhaps not surprising that the Service scoops up vast quantities of foreign intelligence when it exercises the broad mandate and authority given to it by Parliament under s 16.
[16] At the same time, it is important to recognize that the Service’s s 16 mandate contains limits. Its authority to collect foreign intelligence has always been strictly confined to foreign entities, and has precluded the targeting of Canadians. Section 16 allows the Service, within Canada, to gather information or intelligence about a foreign state or group of foreign states, or of a person who is not a Canadian citizen, permanent resident of Canada, or a Canadian corporation. It specifically provides that the Service’s assistance cannot be directed at Canadians, whether citizens, permanent residents, or companies (see Re CSIS, 2012 FC 1437 at para 98, per Justice Anne Mactavish, now a justice of the Federal Court of Appeal). This means that the Service can intercept communications of Canadians under s 16 only incidentally. These incidental interceptions are an inevitable by-product of the collection of foreign intelligence, especially when powers of electronic surveillance are employed.
[17] The Service has an overarching duty to minimize intrusions on the privacy of Canadians who are innocent third parties to a s 16 investigation. Accordingly, the Court requires the Service to provide in advance the names of persons whose communications may be incidentally intercepted (pursuant to R v Chesson, [1988] 2 SCR 148). Where appropriate, the Court can impose terms or conditions on the execution of a s 16 warrant to curtail excessive intrusions on privacy. However, intrusions on the privacy of targets are significantly greater than intrusions on the privacy of third parties because, unlike targets, their communications cannot be intercepted intentionally (Re CSIS at paras 33-34).
B. Incidental Collection of Information About Canadians
(1) Introduction
[18] The fact that incidental collection of communications by, and information about, Canadians is an inevitable by-product of the collection of foreign intelligence under s 16 has been recognized since the creation of the Service. A proposal that would have required the Service to terminate an interception if a Canadian was a party to the communication was rejected as impractical by the Standing Committee on Justice and Legal Affairs in 1984 (Canada, House of Commons, Minutes of Proceedings and Evidence, Issue No 38 (June 7, 1984, at pp 65-68).
[19] At the same time, the collection, retention, and use of incidentally intercepted information raises concerns about Canadians’ privacy.
[20] I received a significant amount of evidence about how the Service treats information about Canadians collected incidentally pursuant to s 16. Most of this evidence came in the form of affidavits and testimony from a senior Service employee, the Director General of the Secretariat of Deputy Director Operations (DDO), |||||||||||||||||||||||||||||||||||||||| The following description is taken largely from that person’s evidence.
(2) Background
[21] In 2017, my colleague Justice Simon Noël, issued a Direction requesting the Service to provide an explanation “as to the CSIS retention practices of Canadians’ communications with [foreign persons] and Condition 1 of the General Intercept and Search Warrant.” The Service responded to Justice Noël’s request by way of letter in which it pointed out that s 16 contemplates the incidental collection of information about Canadians as was specifically recognized by Justice Mactavish in her 2011 decision (Re CSIS, above). Justice Mactavish found that “properly interpreted, subsection 16(2) prohibits the interception of the communications of Canadian citizens . . . except insofar as those communications may be incidentally intercepted through the exercise of warrant powers in relation to the communications of non-Canadians” (at para 106). Accordingly, said the Service in its reply to Justice Noël, “warrants provide authority to the Service to intercept incidentally the communications and the oral communications of any person solely in the course of exercising the interception powers authorized in the warrants.”
[22] The Service also explained to Justice Noël that the processing of incidentally collected information was conducted promptly and that information that did not fall within the exceptions contained in Condition 1 of the warrants was destroyed |||||||||||||||||||||||||||||| Condition 1 states that information about Canadians shall be destroyed unless it (a) relates to activities constituting a threat to national security; (b) could be used to prevent, investigate, or prosecute a crime; or (c) relates to the capabilities, intentions or activities of any foreign state, person, or corporation for which Ministerial assistance has been requested.
[23] According to the Service, information that falls within one of the exceptions in Condition 1 would be retained in accordance with the CSIS Retention Schedule for |||||||||||||||| (although this has since been reduced in practical terms to |||||||||||||||||| The information could be used in a report, however, and reports can be retained for 20 to 50 years.
[24] On receiving the Service’s response, Justice Noël issued a further Direction in which he noted that the letter “raises questions as to the legitimacy of collection and retention when related to information on Canadians and even more so when such Canadians are democratically elected representatives.” He directed that “this legal issue should be raised as part of a new section 16 warrant application so that the Court can have all the necessary factual and legal information to make a proper determination if required.”
[25] In due course, the Service complied with Justice Noël’s Direction in the application before me. As explained above, the Service also took the opportunity to raise a number of other legal issues arising under s 16.
(3) The Service’s practices relating to information about Canadians
[26] The Service emphasized the scope of the current safeguards in respect of the collection of foreign intelligence pursuant to s 16.
[27] The powers available under s 16 can be invoked only if the Minister of Foreign Affairs or the Minister of National Defence personally requests, in a written Letter of Request, the assistance of the Service. Assistance will be provided only if the Minister of Public Safety and Emergency Preparedness personally responds with a written Letter of Consent.
[28] Attached to the Minister’s Letter of Request is an Annex called “Rationale” setting out the specific intelligence requirements being sought. The Rationale includes “Clear Requirements/Tasking” providing particulars about the matters of greatest interest to the requesting Minister.
[29] Receipt of a Letter of Request does not automatically lead to a Service application for a warrant. Rather, the Service may begin to deploy minimally intrusive measures to gather intelligence – physical surveillance, human source contacts, and so on. If more intrusive tools are needed, the Service may then seek a warrant.
[30] According to the DDO Directive on Section 16 of the CSIS Act (2014), when the Service receives a request for assistance, it initially examines the request to ensure that it falls within the ambit of s 16, that it does not target Canadians, and that it does not seek information that would normally be obtained under the Service’s s 12 mandate (i.e. relating to threats to the security of Canada).
[31] Any information collected pursuant to s 16 is reviewed by a Communications Analyst (CA) who determines whether it has value. If not, the information is destroyed. If so, the CA will draft an internal report which is then reviewed by the CA’s supervisor who verifies the relevance of the information, and ensures compliance with the Service’s policies. If the report is approved, it is added to the Service’s s 16 database.
[32] Internal reports prepared by a CA may form the basis of an external report drafted by a Requirements Officer (RO) whose task is to respond to the Minister’s requirements as set out in the Rationale accompanying the Letter of Request. External reports have limited distribution on a need-to-know basis. Recipients must obtain permission from the Service to make further use of them. The level at which approval must be obtained varies according to the sensitivity of the contents of the report.
[33] Information that is collected incidentally about Canadians is protected in a number of ways. To begin with, access to the s 16 database is limited; it is granted only on a file-by-file basis, meaning that persons involved in analyzing foreign intelligence about one country will not have access to information about another. Access is controlled by a senior Service employee, |||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[34] The Service has also adopted a policy on the minimization of information about Canadians. The DDO Directive on Section 16 of the CSIS Act, cited above, defines minimization as the measures taken to reduce the extent of electronic surveillance while allowing legitimate investigations to be carried out. However, a better definition of minimization for present purposes is contained in OPS-221 s 1.19:
A term used to identify the practise whereby, unless subject to a specific exemption, any recognizable reference to a Canadian citizen, a permanent resident within the meaning of the Immigration and Refugee Protection Act (IRPA) or a corporation incorporated by or under an Act of Parliament or of the legislature of a province or territory, is replaced by a generic term.
[35] In other words, minimization serves to limit disclosure of the identities of Canadians (citizens, permanent residents, and companies) in all s 16 related intelligence by deleting them or replacing them with non-specific labels, such as “a Canadian company” or “a named Canadian person.”
[36] There are four exemptions in OPS-221. Minimization will not occur if the reference to a Canadian:
Is necessary to the understanding or exploitation of the foreign intelligence;
Concerns activities that could constitute a “threat to the security of Canada” as defined in s 2 of the CSIS Act;
Concerns the prevention, investigation, or prosecution of an alleged indictable offence; or
Is already in the public domain.
[37] In practice, there is more minimization in external reports than in internal reports. Generally speaking, recipients of external reports do not need to know Canadians’ identities in order to understand or use the intelligence the Service provides in response to a Ministerial request. The main purpose of an external report is to respond to the Rationale contained in the Minister’s Letter of Request; personal information is less likely to be relevant to that purpose. On the other hand, the raw information contained in internal reports will be difficult to understand if the identities of the persons involved are not disclosed. The Service witness provided examples of internal reports in which the identity of a Canadian was integral to the intelligence that had been gathered; without it, the information would have been virtually useless.
[38] When deciding whether to provide a Canadian’s identity in an external report on the grounds that it is necessary to an understanding of the foreign intelligence, ROs do not apply any formal criteria, although the Intelligence Assessment Branch of the Service is developing guidelines. However, ROs do consider the client department receiving the report and the use to which the report will likely be put, and will sometimes limit the distribution of reports containing identifying information, or include a special caveat within the report. The RO’s decision not to minimize an identity is reviewed by his or her supervisor.
[39] OPS-221 contains special guidance in respect of Canadian “public officials” and “senior public officials.” The former category includes provincial and territorial legislators, mayors, deputy mayors, and municipal council members. The latter consists of a broad range of officials:
Prime Minister, Governor General, Lieutenant Governors, Clerk of the Privy Council, Order-in-Council appointments, Provincial/Territorial Premiers, Provincial/Territorial leaders of opposition parties, Members of Parliament, Senators, Parliamentary/legislative Secretaries, Deputy Ministers, Associate Deputy Ministers, Assistant Deputy Ministers, heads of public agencies or corporations, members of the Judiciary, and Chiefs of Staff for senior public officials.
[40] The policy requires the approval of the Director of the Service or a designate before any external reports can include information or intelligence relating to public officials or senior public officials (OPS-221, s 3.1).
[41] Where information about a Canadian has been minimized in an external report, the recipient of the report can request the Service to reveal the identity of the person or company referred to; that is, it can request un-minimization. If the Service agrees to provide that information, it will be contained in a separate report so that the original report containing minimization is not altered; in other words, other recipients of the report will not receive the Canadian’s identity.
[42] No particular rationale needs to be given for the un-minimization of information in an external report, and the Service does not apply any specific criteria for granting such a request. However, the standard practice is that the requester must give some reason why a person’s identity should be disclosed and provide information about the extent to which that identity will be distributed further. The request is then forwarded to the relevant operational branch for consideration. The branch considers the rationale and the source of the request. It may ask for further information before responding. The branch will also consider whether the minimized identity relates to a source, or could otherwise lead to the identification of a source; if so, the request will be denied. Similarly, if the disclosure would jeopardize an ongoing Service operation, the request will be denied.
[43] The Service’s operations relating to s 16 intelligence gathering has been reviewed by the Security Intelligence Review Committee and discussed in various Annual Reports. In the early 1990s, SIRC began examining foreign intelligence retained by the Service (little use had been made of s 16 up to then). It found that the Service was not targeting Canadians or retaining excessive or unnecessary information from s 16 operations (1993-94 at p 36).
[44] By the mid-1990s, SIRC was satisfied that the Service was dealing appropriately with information about Canadians, including Canadian political figures, and was reviewing the Service’s warrant applications at least annually. The number of s 16 applications was, however, growing.
[45] In the late 1990s, however, SIRC found that there were a number of instances in which the Minister’s s 16 requests did not comply with the prohibition on targeting Canadians (1997-1998, at p 53).
[46] In 1999, noting that some s 16 warrants did not contain caveats about the incidental interception of communications by Canadians, SIRC recommended that Ministers seeking the Service’s assistance should indicate when there is a real likelihood of those interceptions occurring, and that s 16 warrants should explicitly prohibit targeting Canadians (1999-2000 at p 30). SIRC also expressed concern about the duration of the Service’s retention of information about Canadians, and suggested that reports to requesting agencies should contain only the information that was absolutely essential for the exploitation of the foreign intelligence.
[47] In the within warrant application, the Service proposes to reinforce its recognition of the limited scope of s 16 in respect of Canadians by adding the following recital indicating that the authorizing judge is satisfied that the s 16 warrant requested is not directed at any Canadians:
I am satisfied that the warrants do not contravene the limitation stipulated at paragraph 16(2) of the Act. In particular, I am satisfied that the warrant powers set out herein will not be directed at any person who is a Canadian citizen, a permanent resident within the meaning of the Immigration and Refugee Protection Act, or a corporation incorporated by or under an Act of Parliament or of the legislature of a province.
[48] This recital has been included in s 16 warrants over the past year. It is an important addition to these warrants and, in my view, should continue to be employed. This is particularly so given the concerns expressed by SIRC over the years.
(4) Communications and privileges of elected officials
[49] A particular concern relates to the incidental interception of communications between members of federal or provincial legislatures and foreign persons or entities. Again, this is an inevitable consequence of foreign intelligence gathering. For example, a [foreign person], whose communications are intercepted pursuant to a warrant issued by the Court to the Service, may telephone a member of Parliament to discuss a matter of mutual interest or concern. The member’s comments will be intercepted incidentally as a result of the warrant.
[50] The amici suggest that these kinds of interceptions do not impinge directly on Parliamentary privilege; however, they maintain that the values that underscore and permeate the concept of Parliamentary privilege are put in play. This requires, they say, special care and treatment of the incidentally intercepted communications.
[51] In my view, parliamentary privilege does not justify the creation of special rules or guidelines to address situations where the communications of elected officials are intercepted pursuant to s 16 warrants. First, properly understood, parliamentary privilege is not engaged by these kinds of interceptions. Second, the Service’s current procedures relating to the treatment of incidentally intercepted communications of all Canadians, described above, including public officials and senior public officials, under s 16 warrants are generally adequate and consonant with the Service’s s 16 mandate. However, as discussed below, I agree with the amici that the Service should develop criteria and guidelines on the unminimization of identifying information about Canadians.
[52] According to the House of Commons Procedure and Practice, Second Edition, 2009, Parliamentary privilege refers to those rights possessed by members of a legislature that are essential to their role:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…. and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.
[53] As an example, to enhance their freedom to debate issues of public policy, legislators are immune from liability for defamation in respect of comments made within the Parliamentary precinct on subjects relating to Parliamentary business. That privilege is limited, and does not extend even to communications between legislators and constituents (Pankiw v Canada (Human Rights Commission), 2006 FC 1544).
[54] The question whether the electronic interception of legislators’ communications intrudes on Parliamentary privilege has been considered by legislative bodies, but not definitively answered, over the years.
[55] In the late 1970s, the then Speaker of the House of Commons, Mr. James Jerome, ruled that the interception of communications of a Member of Parliament raised a prima facie question of privilege, even when it took place outside the Parliamentary precinct, if it amounted to harassment, obstruction, molestation, or intimidation. However, a motion to refer the question to the Standing Committee on Privileges and Elections was defeated in the House, so no formal ruling on the matter was made. (See Special Committee of the Senate on the Canadian Security Intelligence Service, Proceedings of the Senate on the Canadian Security Intelligence Service on the subject matter of Bill C-157; House of Commons Procedure and Practice, Second Edition, 2009, p 9).
[56] In 1980, a Special Committee of the British Columbia legislature concluded that the interception of a member’s communications by the RCMP amounted to a breach of privilege and contempt of the legislature. Fear of intercepts, the Committee found, interfered with members’ ability to perform their legislative duties, including in their homes. It stated:
[P]arliamentary democracies flourish only when member and constituent can communicate freely, openly and candidly without having the spectre of interception . . . interfering with such communication. (at para x)
[57] Also in 1980, a Special Committee of the Yukon Assembly considered whether the wiretapping of the Minister of Justice’s telephone interfered with Parliamentary privilege. Like the BC Committee, the Yukon Special Committee concluded that the actions of the RCMP amounted to a breach of privilege and contempt of the House (see Donald E Taylor, “Electronic Surveillance and Members’ Privileges” (1989), 12 Canadian Parliamentary Review 12; David Cheifetz, “Protection of Confidential Communications of Members of Parliament” (1981), 4 Canadian Parliamentary Review 17).
[58] These events in BC and Yukon led the Solicitor General of Canada in 1983 to issue a Ministerial Directive on Legislators’ Privileges and Immunities in relation to Part IV.1 of the Criminal Code within the Precincts of Parliament, Provincial and Territorial Assemblies. The Directive required the RCMP to seek advance legal advice from the federal or provincial Department of Justice and to inform the agent designated to apply for the warrant that a privilege may be in play. In turn, the agent would have to inform the judge hearing the warrant application of the particular circumstances. Further, the responsible cabinet member – the Solicitor General at the federal level and the Attorney General in the province – was to be informed before the warrant was executed. In addition, if execution of the warrant was to take place within the precincts of Parliament or a legislature, consent of the Speaker would be required.
[59] These examples show special concern about the interception of legislators’ communications. None of them, however, involved rulings by the courts on the scope of parliamentary privilege in general, or the impact that intercepting legislators’ communications would have on any privilege.
[60] In the United Kingdom, the Investigatory Powers Tribunal considered the issue in 2015: Caroline Lucas MP and Ors v Security Service and Ors, [2015] UKIPTrib 14_79-CH. The Tribunal noted that the general policy, referred to as the “Wilson doctrine,” prohibits interception of parliamentarians’ communications. However, according to the Official Guidance given to security services, the Wilson doctrine applies only where the communications of members of parliament are deliberately, not incidentally, targeted. Even so, if special measures are followed, the communications of a Member of Parliament can be targeted and intercepted under warrant. Those measures include special authorization by designated officials, and the involvement of the Secretary of State, the Cabinet Secretary, the Prime Minister, and a special legal advisor charged with retaining and handling the intercepted communications.
[61] Accordingly, notwithstanding the Wilson doctrine, there is no absolute prohibition against the targeted interception of parliamentarians’ communications in the United Kingdom, but great care is taken to ensure that interceptions are justified and that their fruits are carefully handled. Note, however, that these UK warrants are not subject to judicial authorization.
[62] The Supreme Court of Canada has pronounced on the scope of Parliamentary privilege generally but not on the question of intercepting parliamentarians’ communications (Canada (House of Commons) v Vaid, 2005 SCC 30). At issue in Vaid was Parliament’s jurisdiction to deal with rights owed to employees of the House of Commons as compared to the jurisdiction of other bodies, such as the Canadian Human Rights Tribunal, with responsibilities for federal public servants generally.
[63] Vaid makes clear that defining the scope of Parliamentary privilege falls to the courts, not to the legislatures. The first step is to determine whether “the existence and scope of the claimed privilege have been authoritatively established” in respect of the Canadian Parliament or the UK House of Commons (at para 39). Where there has been no authoritative ruling on the question, the court must “test the claim against the doctrine of necessity, which is the foundation of all parliamentary privilege” (at para 40). While not bound by them, courts will give “considerable deference” to the views of legislators on the scope of autonomy they consider necessary to their function (at para 40).
[64] It is the courts, then, that define the scope of a privilege, while legislators determine the merits or the appropriateness of its exercise.
[65] To determine what is “necessary,” one must consider what is needed “to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business” (at para 41). The requirement of necessity imports “important limits” on the scope of the privilege (at para 43). For example, there may be words or actions that are unrelated to parliamentary business and would, therefore, fall outside the parameters of the privilege. Courts will recognize as privileged only those activities that are “so closely and directly connected” with parliamentary functions that “outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (at para 46).
[66] In Vaid, the Court found that parliamentary privilege did not oust the jurisdiction of the Tribunal, and laid out a number of general principles, the most pertinent of which for present purposes are:
Parliamentary privilege includes the immunity necessary for members to do their legislative work.
The test for necessity is what the dignity and efficiency of the House require. The concept of dignity and efficiency is linked to the autonomy that is necessary to enable Parliament and its members to do their jobs.
The party seeking to rely on the immunity provided by parliamentary privilege has the onus of establishing it.
Once a category or sphere of activity has been established, it is for Parliament to decide whether the exercise of the privilege is necessary or appropriate.
Existing categories include: freedom of speech, control by the House over debates and proceedings in Parliament, the power to exclude strangers from proceedings, disciplinary authority over members and non-members who interfere with the discharge of Parliamentary duty, and immunity of members from subpoenas during a parliamentary session.
The mere affirmation by a legislative body that a certain act is a breach of its privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists.
The courts will look more closely at cases in which the privilege claimed will have an impact on persons outside the legislative assembly, than those in which the matters are entirely internal to the legislature.
[67] The Court did not refer to the kind of the privilege discussed above that was recognized in respect of the BC and Yukon legislatures; nor did it address the issue of immunity from wiretapping within the categories of privilege currently recognized. But it is clear from its reasoning that it would fall to the courts, not the legislators, to determine whether any such privilege existed. Accordingly, while the views of the BC and Yukon legislators merit considerable deference, they are not determinative.
[68] In sum, there is no clear legal authority for the proposition that intercepting the communications of parliamentarians, in itself, violates Parliamentary privilege. Only if the interception interfered with a member’s ability to conduct parliamentary business or otherwise constituted harassment or intimidation, would the question of privilege arise.
[69] For s 16 purposes, a parliamentarian, being Canadian, could not be directly targeted. However, as mentioned, his or her communications could be intercepted incidentally pursuant to a valid s 16 foreign intelligence warrant. Not being a target, it is difficult to see how an interception could amount to an attempt to interfere with the member’s ability to conduct parliamentary business. Similarly, if the member is not the target, it is unlikely that the execution of the warrant would take place within the Parliamentary precinct. There would be no need to obtain the permission of the Speaker of the House to conduct an interception.
[70] In any case, however, as explained above, the amici do not assert that parliamentarians enjoy actual immunity from incidental interceptions of their communications in the foreign intelligence gathering context. Therefore, I need not rule definitively on that question. I do, however, have to consider whether applications for, and the fruits of, those interceptions require special treatment.
[71] The amici suggest that the current policies that apply to the incidental interception of parliamentarians’ communications provide inadequate protection of Canadians’ privacy. They propose that the Court impose conditions on the Service relating to the retention, disclosure, and minimization of information about elected officials pursuant to the authority to include terms and conditions on the execution of warrants issued by the Court (CSIS Act, s 21(4)(f)). They also suggest that the Court play a supervisory role. In particular, they submit th