X (Re)

X (Re)
Court (s) Database
Federal Court Decisions
Date
2018-08-30
Neutral citation
2018 FC 874
File numbers
CONF-2-18
Decision Content
TOP SECRET
Date: 20180830
Docket: ||||||Case D||||||
CONF-2-18
Citation Number: 2018 FC 874
Ottawa, Ontario, August 30, 2018
PRESENT: THE CHIEF JUSTICE
BETWEEN:
IN THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| FOR WARRANTS 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 ISLAMIST TERRORISM
REASONS
CRAMPTON C.J.
I. Introduction
[1] This Court is committed to increasing the transparency of its decisions in private proceedings under the Canadian Security Intelligence Service Act, R.S.C. 1985, C.c-23 [the Act]. In furtherance of that objective, I have described below a series of developments that have occurred with respect to a particular type of warrant power, subsequent to my decision in X (Re), 2017 FC 1048 [X (Re)].
[2] In X (Re), I rejected an application for that warrant power, due to deficiencies in the application. I ultimately granted an application for essentially the same warrant power in the present proceeding after satisfying myself that those deficiencies, and others that were identified in the intervening applications discussed below, had been overcome. The paragraphs below explain why this is so.
[3] The warrant power in question concerns the ability of the Canadian Security Intelligence Service [CSIS] to obtain basic identifying information [BII] from communications service providers [CSPs]. In the past, that information has pertained to communications accounts of individuals whose telephone number, ||||||||||||||||Electronic identifier(s)|||||||||||||||||||||||||||||||||||||| or other electronic identifiers might, at a future date, come to CSIS’s attention in the course of its investigations. Those investigations have concerned identified activities that CSIS has established constitute threats to the security of Canada.
[4] BII consists of the name and address of a subscriber to a communications account, |||||||||||| |||||||||||||||||||||||||||and certain other information related to the account||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[5] In X (Re), above, I concluded that the Court cannot authorize CSIS to obtain BII in respect of communications accounts corresponding to telephone numbers or electronic identifiers that may in the future come to its attention in the course of its investigations, where CSIS has not described and established their specific nexus to those investigations. In my view, a request to obtain such a power in those circumstances does not meet the basic requirements for authorizing intrusive activity by the state. I summarized the basis for this view as follows:
[6] Before the Court may authorize CSIS to obtain BII or to exercise other intrusive search powers, the Court must have an understanding of the nexus between CSIS’s investigation and the specific persons or class of persons whose privacy rights would be engaged. Only then can the Court assess whether the specific privacy interests of those persons must give way to the interests of the state in obtaining the information in question. In addition, CSIS must satisfy the requirements for obtaining a warrant set forth in subsections 21(2) and (3) of the Canadian Security Intelligence Service Act [the Act], in respect of such person or class of persons.
[6] Given that the Court had not been provided with such an understanding of the nexus described above in respect of the broad BII warrant power that CSIS had sought in |||||| separate applications in Re (X), I refused CSIS’s requests for those powers. In brief, for the reasons set forth in the passage quoted immediately above, those requests were not compliant with Section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], which guarantees the right to be secure against unreasonable search or seizure: X (Re), above, at paras 60-74.
[7] In reaching my decision in X (Re), I recognized that the position set forth above would impose a potentially significant additional burden on CSIS. In this regard I observed as follows:
[13] Where the Court is not able to conduct, in advance, the assessment required by section 8 of the Charter in respect of the specific individuals or class of individuals whose privacy interests would be engaged by CSIS’s access to their BII, CSIS will need to return to the Court each time it identifies additional telephone numbers or electronic identifiers in respect of which it wishes to obtain BII from a CSP. At that time, CSIS will have to establish a sufficient nexus between the telephone number or other identifier in question and its investigations to satisfy the Court that there are reasonable grounds to believe that CSIS requires the BII of the corresponding communications account to advance those investigations.
[8] I also recognized that the requirements I identified may give rise to additional costs and delays associated with obtaining BII warrant powers in relation to telephone numbers or electronic identifiers that may come to CSIS’s attention during the course of its investigations, and that are not linked to an identified target of investigation. Having regard to the adverse implications that the potential delays might have for CSIS’s ability to investigate threat-related activities, I stated that the Court would remain open to considering alternate approaches that are Charter compliant: X (Re), above, at para 109.
[9] In this regard, I proceeded to suggest that the additional costs and delays that may be associated with making Charter-compliant applications for BII warrant powers might be considerably reduced in two ways.
[10] The first way would be by providing the Court with essentially the same information that CSIS officers already provide, in their internal |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| forms, when they seek authorization within CSIS to request BII powers from this Court. This information describes the nexus between CSIS’s investigation into a threat posed to the security of Canada and the telephone numbers or electronic identifiers in respect of which an intelligence officer would like to obtain BII. I suggested that it might be possible to provide such information |||||||||||||||||||| Nexus Information] to the Court in the form of supplementary affidavits, filed in support of periodic requests for a proposed amendment to an existing warrant. However, after obtaining the benefit of submissions from the amici curiae [1] in one of the subsequent proceedings described below, I expressed three serious concerns that are more fully described in the paragraphs below. The first pertained to a potential practice of seeking “routine” amendments to previously issued BII warrants. The second related to whether CSIS can rely on a ministerial approval provided in respect of a prior request for BII warrant powers, when seeking such powers in respect of newly discovered telephone numbers or electronic identifiers. The third pertained to whether designated judges of this Court have the jurisdiction to amend each other’s warrants.
[11] As a result of the foregoing concerns that I expressed, CSIS has represented that, for the “foreseeable future”, it will bring fresh applications, supported by documentation that is either required by the Charter or appears to be contemplated by the Act, each time it seeks an authorization to obtain BII information from a CSP. The latter documentation includes a new designation and approval of the Minister of Public Safety and Emergency Preparedness [the Minister], as contemplated by subs. 21(1) of the Act, and a new consultation with the Deputy Minister, as contemplated by subs. 7(2) of the Act. Once again, this will be further discussed below.
[12] Given that such documentation was provided in the present proceeding, I granted the BII warrant power that CSIS sought. At that time, I also informed CSIS and the Attorney General’s representatives that I would be issuing these reasons to explain to the public why the BII warrant power which had not been granted in X(Re), above, had been granted in this application.
[13] The second way in which I suggested that costs and delays might be reduced would be by simply adding the |||||||||||||||||| Nexus Information to the more general information that CSIS provides to the Court regarding the relevant threat to the security of Canada, when it seeks BII warrant powers in relation to that threat: X (Re), above, at paras 110-111. In the case of the threat posed by Islamist terrorism, [2] although this general information is updated from time to time to reflect relevant developments, the bulk of it has remained essentially the same since the applications that were the subject of my decision in X (Re), above. This information has provided the basis for the affiant’s knowledge and belief concerning the threat posed by Islamist terrorism, and has been set forth in either the main body of the affiant’s affidavit or in one or more of the exhibits to that affidavit. In the latter case, the affiant has attested to his or her personal belief that the information in those exhibits is accurate. CSIS and the Court continue to have exchanges regarding the format in which the affiant provides this general information to the Court.
II. Developments since X (Re)
[14] Subsequent to the issuance of my decision in X (Re) last Fall, the general approach that CSIS and the Attorney General will follow in the future when seeking BII warrant powers that are unconnected with particular targets of investigation was established over the course of four applications: two in |||||Case B||||||| one in |||||Case C |||| and the present application ||||||Case D||||||||
[15] Given my past involvement with CSIS’s request for BII warrant powers and related powers that CSIS has sought in the past (see X(Re), above at paras 17-23), I presided over the above-mentioned applications and the related motions discussed below.
A. |||Case B ||
[16] ||||Case B||||||| was characterized by counsel as an initial “test case,” following my decision in X (re), above. As such, it was limited in scope, and appeared to be designed to establish the basic requirements of an application for a BII warrant. CSIS simply sought authorization to obtain BII in respect of |||||||electronic identifier(s)||||||||||||||||||||||||||||||||||||||| It was a fresh application, accompanied by the required ministerial approval and designation, together with the required confirmation that the Deputy Minister had been consulted. In the initiating Notice of Application, dated |||||||||||||||||||||||||||||||||||| the Attorney General of Canada [Attorney General] stated that the grounds for the application included the affiant’s reasonable grounds to believe that a warrant was required to enable CSIS to investigate Islamist terrorism.
[17] With respect to the threat to the security of Canada posed by Islamist terrorism, the affiant provided essentially the same information that he had provided in ||||Case A||||| which was one of the two applications at issue in X (Re), above.
[18] With respect to the required nexus between, on the one hand, the |||||electronic identifier(s)|||| |||||||||||||||||||||||||||||||||||||||| and on the other hand, CSIS’s investigation into Islamist terrorism, CSIS provided the brief |||||||||||||||||| Nexus Information discussed at paragraph 10 above. Ultimately, I issued the requested warrant, after satisfying myself that the requisite nexus had been established. That is to say, I issued the warrant after satisfying myself that CSIS’s affiant had provided sufficient facts to justify the belief, on reasonable grounds, that the individuals behind ||||||electronic identifier(s)||||||||||||||||||||||| in question either may be involved in the threat posed to the security of Canada by Islamist terrorism, or may be able to provide information to assist CSIS’ investigation into that threat. Those facts were provided in the affiant’s affidavit and during oral testimony at the hearing of the application. Of course, I also satisfied myself as to the other matters set forth in paragraphs 21(2)(a) and (b) of the Act, as required by subsection 21(3).
[19] Before signing the warrant sought in |||Case B||||| I requested a change to Condition 3. As initially proposed by the Attorney General, it stated as follows:
Any information obtained by the Service through the execution of this warrant, other than basic identifying information described in paragraphs 1 to 3, shall be destroyed within 6 months of its receipt by the Service.
[20] Upon first reading, it appeared to me that Condition 3 had been inserted to address the concern that I had identified in Re (X), above, at paras 75, 87 and 100, regarding the retention of BII information pertaining to the communications accounts of third parties who have no nexus whatsoever to Islamist terrorism. That is to say, persons in respect of whom the reasonable grounds described in paragraph 21(2)(a) have not been identified to the Court.
[21] However, counsel clarified that Condition 3 was designed to address something quite different, namely, the situation in which a CSP provides more information to CSIS than simply BII. As explained by counsel, when requested to provide BII pursuant to a warrant issued by this Court, CSPs sometimes electronically transfer files that include more than BII. For example, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||
[22] Based on the foregoing explanation, I changed the six month period to four months, and signed the warrant. I also requested counsel to return to the Court within one month with language that would make it clear that BII or other information pertaining to “third parties,” as described in paragraph 20 above, would be destroyed as soon as CSIS determines that it belongs to such a person. As a result of subsequent exchanges, that condition in the most recently issued BII warrants read as follows: “Any information obtained by the Service through the execution of this warrant, other than basic identifying information described in paragraph 1, shall be destroyed as soon as possible and, in all instances, within 4 months of its receipt by the Service”.
B. Amendment to warrant issued in |||Case B|||||
[23] On |||||||||||||||||||||||||||||||||||||||||| less than two weeks after I issued the warrant described immediately above, CSIS brought an urgent motion, supported by a supplementary affidavit sworn by the same affiant, to amend the warrant that I had issued in ||||Case B||||||| In brief, CSIS sought to expand that warrant to include |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||an electronic identifier associated with the threat|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||
[24] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||Case B||||||||||||||||||||||||||||A description of the association of the electronic identifier with the threat and the timing of the application||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[25] Upon satisfying myself that CSIS’s affiant had provided reasonable grounds to believe that a warrant to obtain BII information in respect of |Electronic identifier(s)| question was required to enable CSIS to investigate the threat to the security of Canada posed by Islamist terrorism, I amended by hand the warrant that I had previously issued, to include the additional |Electronic identifier(s) I did so pursuant to Rule 399(2)(a) of the Federal Courts Rules, SOR/98-106 [the Rules], which provides that, on motion, the Court may set aside or vary an order by reason of a matter that arose or was discovered subsequent to the making of the order.
[26] At that time, having had the benefit of submissions from the Amici, I also manually struck out certain language from the warrant. In essence, that language permitted CSIS to obtain BII from CSPs in a particular type of emergency situation, provided that CSIS advised the Court, in writing, within 48 hours of obtaining such BII, and seeks instructions from the Court.
[27] I will pause to note that this motion to amend the BII warrant that I had previously issued was not accompanied by a fresh Ministerial authorization or a fresh confirmation by the Deputy Minister stating that he had been consulted in respect of the motion. However, the ministerial authorization that had been provided in support of the main application in |||Case B||||||| stated that it applied to that application as well as to “subsequent requests for judicial authorization to obtain BII.” Although the Amici expressed concerns about the nature of that authorization, the urgency of the situation was such that they supported the Attorney General’s request for the amendment in question. They did so on the express understanding that the issue of the open-ended nature of the Minister’s authorization, dated |||||||||||||||||||||||||||||||||||| would be revisited in the near future.
C. Additional Application in ||Case B||||
[28] On |||||||||||||||||||||||||||||||||||||||||| CSIS filed another application for an authorization to obtain BII in respect of |||||||||||||||||||||||||||||||||||||||||||||||Electronic identifier(s)||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| That application was supported by a new affidavit, a new Ministerial authorization and designation, and a new confirmation that the Deputy Minister had been consulted. [3] As such, it did not give rise to some of the difficulties that arose in some of the subsequent proceedings, described below.
[29] Once again, the affidavit, as amended immediately following the hearing of the application, contained essentially the same general information with respect to the threat posed by Islamist terrorism as had previously been provided by CSIS, both in support of its initial application in |||||Case B|||||||| and in one of the applications ||||Case A||||| that was the subject of X(Re), above.
[30] In addition, the affidavit, supplemented by the affiant’s testimony, provided sufficient facts pertaining to the nexus between, on the one hand, the above-mentioned |Electronic identifier(s)| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| and on the other hand CSIS’s investigation into the threat posed to the security of Canada by Islamist terrorism, to provide the reasonable grounds to believe that are contemplated by subs. 21(3) of the Act and the Charter.
[31] Given the foregoing, and upon satisfying myself as to the other matters contemplated by subs. 21(3), I granted the further warrant that CSIS sought.
D. Motion to further amend the warrant issued in | Case B |
[32] On |||||||||||||||||||||||||||||||||||| the Attorney General filed a motion to vary the initial warrant issued in |||Case B||||| In that motion, the Attorney General sought ||||||||Electronic identifier(s)|||||||||||||| |||||||||||||||||||||||||||||||||||||| that had been brought to its attention subsequent to |||||||||||||||||||||||||||||||||||||||||| when I made the initial amendment to the first warrant I issued in |||Case B||| The motion was supported by an affidavit that provided essentially the same general information as had previously been provided to the Court regarding the threat posed by Islamist terrorism, together with |||||||||||||||||| Nexus Information to establish the requisite nexus between that threat and each of the new |||||Electronic identifier(s)|||||||||||.
[33] In support of the motion, the Attorney General provided written submissions. Those submissions were addressed toward the following three legal issues that the Attorney General maintained were raised by the motion:
Whether the Federal Court has the authority to issue warrants that contemplate the granting of further authorizations with respect to BII, when specifically authorized by the Court at the time such further authorizations are sought;
Whether the BII warrant, as amended on November 16, 2017, may be variedpursuant to Rule 399(2)(a) or Rule 4 of the Rules; and
Whether the affidavit filed in support of the motion contained sufficient information to enable the Court to understand the nexus between the persons whose privacy interests may be encroached and the threat-related activities that are the focus of the CSIS investigation into Islamist terrorism.
[34] The Amici recast these issues in the following way:
Does the Director (or the Director’s designate) need to consult with the Deputy Minister and obtain the approval of the Minister before applying to the Court for new BII authorizations?
Can new BII searches be authorized pursuant to a motion to vary under Rule 399(2)(a)?
Does the affidavit evidence filed in support of the motion to vary meet the standard required under s. 21 of the Act and s. 8 of the Charter for the issuance of a BII warrant?
[35] For the purposes of the summary provided below, I will use the statement of the issues provided by the Amici.
[36] Given that the Attorney General ultimately withdrew the motion, I will refrain from taking a definitive position on those issues.
(1) Does the Director (or the Director’s designate) need to consult with the Deputy Minister and obtain the approval of the Minister before applying to the Court for new BII authorizations?
[37] The Attorney General submitted that the requirement in subsection 21(1) that the Minister approve the making of warrant applications does not apply to a motion to vary the BII warrant that I had previously issued, by simply expanding it to include additional |||||||||||||||||||||||||||||||||| ||Electronic identifier(s)|
[38] In the Attorney General’s view, the principle of ministerial accountability that underpins the ministerial approval requirement in subsection 21(1) does not require the Minister to authorize the intrusion into the reasonable expectation of privacy of each and every person that may take place pursuant to a warrant issued under that provision of the Act. Instead, the Minister is simply required to approve the extent of the intrusive powers to be sought from the Court, after assessing both the nature of the relevant threat to the security of Canada and the scope of the privacy concerns or intrusions that are contemplated by the requested warrant. The Attorney General maintained that Minister had already provided such approval, and conducted those two assessments, immediately before the Attorney General sought the initial BII warrant from this Court, in ||||||||||||||||||||||||||||
[39] Stated differently, the Attorney general asserted that the subject of the warrant was Islamist terrorism, and that the Minister had already assessed the nature of the threat posed by Islamist terrorism, as well as the narrow scope of the privacy concerns raised by an authorization to obtain BII in respect of communications accounts, at the time the initial BII authorization was sought, in ||||||||||||||||||||||||||||
[40] The Amici disagreed. In their written submissions they maintained that subsection 21(1) makes the Minister accountable for each intrusion upon the reasonable expectation of privacy of a person. They asserted that the text, the scheme and the legislative history of the Act all support the conclusion that, to properly perform his mandate under s. 21 of the Act, the Minister must understand the factual nexus between the relevant threat to the security of Canada and the person(s) whose privacy interests will be intruded upon. Viewed from this perspective, each intrusion into the privacy interests of each additional person constitutes a new “search.” Moreover, the subject of the warrant is the person whose privacy interests would be intruded upon, rather than the threat posed by Islamist terrorism. The Amici emphasized that to permit the Minister to grant a blanket authorization in respect of a broad threat such as that posed by Islamist terrorism would effectively and impermissibly delegate to the Director or another designated employee of CSIS the decision as to whether to apply for a warrant.
[41] Subsection 21(1) of the Act states as follows:
Application for warrant
Demande de mandat
21 (1) If the Director or any employee designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16, the Director or employee may, after having obtained the Minister’s approval, make an application in accordance with subsection (2) to a judge for a warrant under this section.
21 (1) Le directeur ou un employé désigné à cette fin par le ministre peut, après avoir obtenu l’approbation du ministre, demander à un juge de décerner un mandat en conformité avec le présent article s’il a des motifs raisonnables de croire que le mandat est nécessaire pour permettre au Service de faire enquête, au Canada ou à l’extérieur du Canada, sur des menaces envers la sécurité du Canada ou d’exercer les fonctions qui lui sont conférées en vertu de l’article 16.
[42] In support of their position, the Amici referred to two important aspects of the legislative history of the Act, namely, (i) the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Policy, Second Report – Volume 1. Freedom and Security Under the Law. Ottawa: 1981 [the McDonald Commission Report], and (ii) some of the statements that were made by the responsible Minister when Bill C-9, which became the Act (after certain amendments were made), was before the House of Commons Justice and Legal Affairs Standing Committee [the Committee].
[43] Concerning the McDonald Commission Report, the Amici referred to a number of passages. This included the following:
32. […] The decision to subject an individual or group to any or all of these techniques for national security purposes is a decision with important policy implications which in our view ought to have the approval of a responsible Minister. […]
33. […] As we see it, the ministerial role with respect to these powers is to make policy decisions. For example, the Minister must decide whether the activities of a certain country's diplomats are sufficiently suspect and dangerous to risk the diplomatic repercussions of possible exposure of security intelligence surveillance, or whether the activities of a violence-prone group pose a sufficient threat to the country's democratic process to warrant deploying the full investigative resources of the security intelligence agency. It is primarily questions of this kind which the Solicitor General must consider in deciding whether to approve an application for a judicial warrant. He might refuse to authorize an application even though convinced that it met the statutory standard. The Solicitor General should by no means be indifferent as to whether the legal requirements were satisfied by a proposed application: on the contrary, he should not approve the application for a judicial warrant unless satisfied that the legal requirements have been met. However, our proposals give the judiciary, not the Minister (or his legal advisers), the final decision whether the law is being properly applied. In our view this would ensure the application of the rule of law to these aspects of security intelligence operations and does not depart from the appropriate distribution of responsibilities between Ministers and judges.
34. In the system we propose, at the same time that the Minister gives his general approval to a proposal to initiate a full investigation he may also approve a proposal to apply for a judicial warrant to use one or more particular techniques. He might, however, not be asked for such approval or might withhold it until other techniques not requiring a judicial warrant have been used. [4]
[…]
101. First, it might be argued that the question of whether an individual or group constitutes a sufficient threat to national security to justify an electronic intrusion should be decided by Ministers who, unlike judges, are accountable to Parliament and ultimately to the electorate for national security policies. We agree with part of this argument. Ministers are responsible for the national security activities of government; in particular, the Solicitor General, as the Minister responsible for the security intelligence agency, is responsible for the investigative policies and practices of that agency. That is why we think the Solicitor General should approve proposals by the agency to use electronic surveillance (and other intrusive techniques). He should approve such proposals from a policy point of view. But he and the Cabinet must discharge their responsibility for national security policy within the law. When the law establishes a carefully defined standard for exercising an investigative power which would otherwise be a criminal offence, there is, in our view, no derogation of ministerial responsibility in denying Ministers the final authority to determine whether a particular case meets that standard. Our system of government is not based on the single principle of ministerial responsibility: it involves other important principles, one of which is the rule of law. In a system of responsible Cabinet government operating within the rule of law Ministers are responsible for the effective and proper execution of the powers lawfully available to government, but they do not have the final responsibility for determining what the law is. In our system of government this is normally the function of judges.
102. We should emphasize that we are not suggesting that the Minister should be indifferent as to whether a proposal to employ electronic surveillance meets the legal requirements. On the contrary, he and his advisers should thoroughly scrutinize proposals from a legal as well as a policy point of view before approving an application for a judicial warrant. But our review of the administration of section 16 of the Official Secrets Act has indicated to us that there is not sufficient assurance that in every case Ministers will carefully and judiciously apply their minds to all of the legal requirements for the use of this extraordinary power. We think that judges are more apt to have the appropriate experience and to be operating in an appropriate setting for making that kind of determination of the law. As we argued earlier, normally the courts determine the legality of government action only when it is challenged after the fact. However, because the effective use of this power should always be secret, no such ex post facto challenge is possible by persons who may be subject to an unlawful exercise of the power. Therefore, we think it necessary that a judicial determination of lawfulness be made before the power is exercised. [5] [Emphasis added.]
[44] With respect to statements made by the relevant Minister (the Solicitor General) when Bill C-9 was before the Committee, the Amici noted that the Solicitor General rejected the recommendation of the Senate that the Bill include a clause permitting the Court to assess the gravity of the threat, as apparently was the case in the United States. In this regard, the Solicitor General explained as follows:
Mr. Kaplan: I did not agree with the recommendation because I felt that what the judge was being asked to do in that case was not to make a judicial decision about protecting the rights or privacy of an individual, but to decide on the importance of a national security matter, and that that was a matter that should be left to the government and one for which the government should be responsible.
If the government is of the view that a matter is important enough to justify surveillance, we did not want the judge to have to have that decision about how important it was. The judge makes the decision about whether other methods are available, whether the belief is reasonable or probable, to add that matter, whether the warrant should be long, whether additional terms and conditions should be imposed, but the fundamental question of whether the national security justifies that application to be made is not something that we wanted… It is just not within the judging responsibility to make a decision like that. The government ought to make a decision like that. The government ought to be responsible for determining the gravity of the matter in terms of national security. [Emphasis added]
House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs respecting Bill C-9, 32nd Parl, 2nd Sess, Issue No 29, at 32.
[45] The Solicitor General proceeded to emphasise the importance of requiring the Minister to approve every warrant:
Mr. Robinson (Burnaby): Surely that significantly dilutes the significance of the judicial intervention in the process of the granting of warrants. In effect, what the Minister is saying is that the judge will have to grant the warrant unless these other techniques are available.
Mr. Kaplan: Do you mean unless he does not believe that there is reasonable evidence? But weighing evidence and assessing alternatives are judicial functions. Considering whether the national security is affected or not is a matter for the government.
This was a point in which we went further than the Pitfield committee, recognizing their concern on that issue, and that is to require the Minister to approve every warrant. The Senate was content with a process in which warrants could be sought without the approval of the Minister. The court, in a sense, was assigned the Minister’s function of assessing gravity. What we have in the Bill is that the Minister assesses the gravity and approves of a warrant if he feels that the game is worth the candle. The court then has all the other responsibilities that the Senate committee wanted it to have. [Emphasis added]
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs respecting Bill C-9, 32nd Parl, 2nd Sess, Issue No 29 (May 29, 1984), at 32.
[46] In Reply to the Amici, the Attorney General noted that the Solicitor General subsequently stated the following in response to concerns regarding the assistance power in s. 16 of the Bill:
I want to reassure them by pointing out that activity under this clause requires the highest level of approval. It requires approval by Ministers of the Crown accountable to Parliament. I think in our system of government that is the best safeguard you can have - if you are asking for the power, and we are asking for the power.
I am reminded by my deputy that warrants are needed from judges for this, too. So there is not only the control of accountable Ministers who have to seek it but also a judge who has to be satisfied that the invasion of privacy which a warrant is justified. [Emphasis added]
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs respecting Bill C-9, 32nd Parl, 2nd Sess, Issue No 38 (June 7, 1984), at 59
[47] The Attorney General maintained that the underlined passage in the quote immediately above makes it clear that it is a judge of this Court, rather than the Minister, who has to weigh the intrusion on an individual’s privacy rights against the interest of the state in obtaining particular warranted powers that may be sought before this Court.
[48] However, during the hearing, I questioned whether subs. 21(1) contemplated that CSIS could return to the Court, perhaps on a weekly basis, to seek amendments to a warrant based on a single ministerial approval provided to the Court at the time of the initial warrant application. I observed that such a process could result in expanding a BII warrant over time to include what could ultimately amount to potentially |||||||many more||||||||| telephone numbers or electronic identifiers. In this regard, I queried how the Minister could be accountable if he had no idea how many times CSIS might seek to expand the BII authorization in a warrant, or how many individuals might ultimately wind up having have their privacy interests intruded upon.
[49] I also questioned how such an expansion of warrant powers without a fresh approval from the Minister could be consistent with the Ministerial Direction for Operations and Accountability, approved by the Minister on |||||||||||||||||||||||||| [the Ministerial Direction]. Among other things, Annex B to that document stipulates that CSIS “will seek the approval of the Minister for any changes that substantially alter the application occurring after the Minister has approved the application,” including:
Changes to the subject(s) of the warrant, and the supporting justification;
Changes to the length of time for which any of the requested warrants are proposed to be in force and the supporting justification; and
Additions to the list of places where the warrant may be executed and the supporting justification, if the request is in relation to a Canadian fundamental institution.
[50] With regard to the foregoing, counsel to the Attorney General struggled to explain why the Minister would insist on approving changes to the manner in which a warrant might be executed (i.e., changes to the length of time of the warrant and to the list of places where it might be executed), but would not insist upon approving potentially significant expansions to the number of persons whose privacy interests might be intruded upon, where the nexus between those individuals and the investigation in question has not been established in advance.
[51] I will simply add that counsel to the Attorney