Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2013-10-25
Neutral citation
2013 FC 1096
File numbers
DES-7-08
Notes
A correction was made on November 7, 2014
Decision Content
Date: 20131025
Docket: DES-7-08
Citation: 2013 FC 1096
Ottawa, Ontario, October 25, 2013
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN THE MATTER OF A CERTIFICATE SIGNED PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT (IRPA);
AND IN THE MATTER OF THE REFERRAL OF A CERTIFICATE TO THE FEDERAL COURT PURSUANT TO SUBSECTION 77(1) OF THE IRPA;
AND IN THE MATTER OF MOHAMED
ZEKI MAHJOUB
REASONS FOR ORDER AND ORDER
[1] Mr. Mohamed Zeki Mahjoub is the named person in security certificate proceedings initiated pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. In the course of these proceedings, the Ministers have adduced evidence in support of their case that was obtained or derived from several warrants issued under section 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act]. These reasons dispose of a motion brought by Mr. Mahjoub to exclude this evidence.
Relief Sought
[2] In his “RE-MODIFIED NOTICE OF MOTION,” Mr. Mahjoub sets out his request for relief as follows:
a. An order quashing the warrants issued under sections 21, 22 or 23 of the Canadian Security Intelligence Service Act (or CSIS Act) ;
b. An order excluding all evidence and information obtained from the warrants pursuant to subsections 24(1) and (2) of the Charter;
c. An order excluding all evidence and information obtained illegally, and/or in violation of sections 7 and 8 of the Charter and in the course of procedures declared unconstitutional (Charkaoui v. Canada, [2007] 1 S.C.R. 350) pursuant to subsections 24(1) and/or (2) of the Charter and
d. A declaration as to the violation of the applicant’s rights as protected under sections 7 and 8 of the Charter;
e. An order reserving the applicant his right to seek a permanent stay of proceedings pursuant to section 24(1) of the Charter for the Charter violations suffered;
f. Any other remedy that the Court find [sic] just and appropriate;
g. A declaration that the part of section 2 defining a “threat to the security of Canada” with sections 12 and 21 - 24 of the CSIS Act are unconstitutional and with [sic] no force or effect, as per section 52 of the Constitution Act, 1982, in that these sections unjustifiably violate sections 2, 7, 8 of the Charter;
Mr. Mahjoub seeks this relief pursuant to paragraph 399(1)(a) of the Federal Courts Rules, SOR/98-106 and section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7.
Facts
[3] Prior to the issuance of the first security certificate in June 2000 under subsection 77(1) of the IRPA naming Mr. Mahjoub, the Canadian Security Intelligence Service (CSIS or the Service) applied to a designated judge of the Federal Court of Canada pursuant to section 21 of the CSIS Act for warrants allowing for the interception of some of Mr. Mahjoub’s communications. One or more of these warrants was in operation after Mr. Mahjoub’s arrest on June 26, 2000. Disclosure of the specifics of the warrants obtained by the Service during its investigation of Mr. Mahjoub would, in my opinion, be injurious to national security or the safety of persons. An overview of the warrants is therefore found in the “Facts” section of the Confidential Annex.
[4] When the Ministers signed the second security certificate on February 22, 2008, certifying that Mr. Mahjoub is inadmissible to Canada on the grounds of national security, the Security Intelligence Report (SIR) on which they relied contained information obtained as a result of the section 21 warrants. That information is contained at the following paragraphs in the SIR:
(a) Paragraph 6: In July 1999, MAHJOUB’s Canadian wife, Mona El-Fouli, was convinced that MAHJOUB would only stay married to her until such time as he received his citizenship papers. This is an intercepted communication: see Revised Summaries of Conversations and Surveillance Reports, April 6, 2010, Tab 7.
(b) Paragraph 6: In addition, on the day of MAHJOUB’s arrest (June 26, 2000) El Fouli stated that she had decided to marry MAHJOUB because “all she knew that he was a ‘mujahed’ (holy fighter) and her marriage to MAHJOUB would bring her, and her son (Hani), closer to God”. This is an intercepted communication: see Revised Summaries of Conversations and Surveillance Reports, April 6, 2010, Tab 9.
(c) Paragraph 25: MAHJOUB was a close associate of Mohamed Hafez Marzouk… This is based upon telephone toll records, see paragraph (d) below.
(d) Paragraph 26: After MAHJOUB’s arrival in Canada, he contacted Marzouk by telephone. A telephone at MAHJOUB’s residence was in regular contact with the cellular telephone of Marzouk from 1997 until Marzouk left Canada in May 1998. This allegation is based upon telephone toll records, which show that there were 11 calls between a telephone at MAHJOUB’s residence and the cellular telephone of Marzouk.
(e) Paragraph 31: When an associate of MAHJOUB’s inquired about MAHJOUB’s news, MAHJOUB stated that he preferred to talk face to face, and reluctantly explained that he could not delve into the subject right then because of the presence of the “Moukhabarat” (i.e. secret services). In turn, this same associate asked whether MAHJOUB was referring to the civil or military “Moukhabarat” to which MAHJOUB replied “both”. This is an intercepted communication: see Revised Summaries of Conversations and Surveillance Reports, April 6, 2010, Tab 8.
(f) Paragraph 32: In July 2001, MAHJOUB, while in detention, got in touch with Mona El Fouli and inquired whether “she still had her telephone number on the old number”, to which she replied in the affirmative. MAHJOUB commented that he should not be blamed if one of his ex-inmates got hold of El Fouli’s new number because of that and advised her to cancel the forwarding service. El Fouli in turn stated that she would provide him with a possibly different telephone number where he could contact her. El Fouli preferred to provide him with the telephone number later. This is an intercepted communication: see Revised Summaries of Conversations and Surveillance Reports, April 6, 2010, Tab 10.
(Sourced from a Communication from the Court dated September 23, 2010)
Items (a) and (b) have already been excluded from these proceedings following the Court’s June 19, 2012 Order.
[5] On October 3, 2008, in the context of its review of the security certificate pursuant to subsection 77(1) of the IRPA (the reasonableness proceeding), this Court ordered the disclosure of the section 21 warrants and supporting affidavits to the Special Advocates in accordance with the Ministers’ disclosure obligations outlined in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 [Charkaoui II]. On December 15, 2008 and January 15, 2009, the materials were disclosed to the Special Advocates, and summaries of the disclosed material were eventually provided to Public Counsel on October 5, 2010.
[6] On August 3, 2010, Mr. Mahjoub submitted an “informal request” by letter to the Court seeking an Order requiring the Ministers “to communicate to Mr. Mahjoub all the warrants, affidavits, exhibits and transcripts in relation with the intercepts/searches/investigations mentioned in the Security Intelligence Report for the purpose of challenging said warrants.” He filed a formal Notice of Motion for such disclosure on August 31, 2010.
[7] In a Direction, dated August 31, 2010, the Court explained that the legality of the section 21 warrants was not at issue in any of the motions previously brought by the Special Advocates. This fact was further confirmed at paragraphs 41, 45 and 55 of the Court’s September 13, 2010 Communication. Mr. Mahjoub filed his Motion Record for his August 31, 2010 disclosure motion on September 20, 2010.
[8] On October 5, 2010, summaries of five warrants and five supporting affidavits were prepared collaboratively and ordered on consent to be disclosed to Mr. Mahjoub and his counsel pursuant to the Court’s October 4, 2010 Reasons for Order.
[9] On October 25, 2010, Mr. Mahjoub brought his motion challenging the constitutional validity of the section 21 warrants, the admissibility of the evidence obtained pursuant to these warrants, and the constitutionality of sections 2, 6, 12, 17 and 21, 22, 23, and 24 of the CSIS Act. Mr. Mahjoub in a separate motion, of which the Attorneys general were notified, also challenges the constitutionality of these same sections of the CSIS Act. It is appropriate to deal with the latter challenge at this stage in the context of the within motion as the constitutionality of the CSIS Act has decisive bearing on the legality of the warrants.
Preliminary Issues
[10] The Ministers argue that the Court’s August 31, 2010 Order (2010 FC 937) is dispositive of Mr. Mahjoub’s motion to exclude the evidence obtained by the warrants authorized under section 21 of the CSIS Act. That Order implemented the Court’s decision to exclude certain evidence pursuant to subsection 83(1.1) of the IRPA (2010 FC 787). The Ministers also argue that the within motion is duplicative of the Special Advocates’ motion, the motion to exclude evidence pursuant to subsection 83(1.1), which resulted in the August 31, 2010 Reasons for Order and Order and is consequently abusive.
[11] The Ministers rely on the following paragraph of the August 31, 2010 Reasons for Order and Order:
[66] I am of the view that the information in the supporting affidavit, not sourced from [redacted] interrogation, was sufficient to justify on reasonable grounds the belief that the warrant powers to intercept Mr. Mahjoub’s private communications were required for the Service to investigate a threat to the security of Canada pursuant to the requirements of s.21 of the CSIS Act… Consequently, the information obtained and relied on by the Ministers from the intercepted communications obtained as a result of the Warrant [redacted] is admissible.
[12] The motion brought by the Special Advocates on behalf of Mr. Mahjoub and the resulting Reasons and Order concerned the narrow issue of inadmissibility of evidence by operation of subsection 83(1.1) of the IRPA. Mr. Mahjoub in this motion now challenges the validity of the warrants on the basis of the alleged unconstitutionality of the CSIS Act, the Service’s alleged failure to provide full, fair and frank disclosure, and on the alleged non-compliance of the warrants with the CSIS Act. These issues were not before the Court at the time of the section 83(1.1) motion and were not considered in the June 9, 2010 Reasons for Order.
[13] The Ministers contend that the Special Advocates considered the issue and decided not to challenge the validity of the warrants. The Ministers appear to suggest that it is too late for Public Counsel to do so. The Ministers also contend that Mr. Mahjoub should not be allowed to re-litigate issues that have already been decided.
[14] The Ministers are correct that it is not open to Mr. Mahjoub to re-litigate issues that have already been decided by the Court. Mr. Mahjoub is estopped from bringing duplicative motions. See: Toronto (City) v. CUPE, Local 79, 2003 SCC 63 and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 at paragraph 24. However, while the Special Advocates must represent Mr. Mahjoub’s interests in camera, they are not his counsel. Their decision to refrain from bringing a particular motion should not therefore bind Mr. Mahjoub and his counsel. Put differently, Mr. Mahjoub should not be estopped from bringing a motion on an issue that the Special Advocates have said they will not raise.
Issues
[15] I will address the following issues on this motion:
1. Are certain provisions of the CSIS Act unconstitutional?
(a) Are sections 2, 6 and 12 of the CSIS Act unconstitutional for vagueness or overbreadth?
(b) Is section 17 of the CSIS Act unconstitutional because it authorizes CSIS to enter into intelligence-sharing arrangements with foreign agencies that have poor human rights records?
(c) Are sections 21, 22, 23 and 24 of the CSIS Act unconstitutional for authorizing unreasonable search and seizure?
2. Can the lawfulness of the section 21 warrants be challenged, and if so, in what way?
(a) Does the doctrine of collateral attack preclude challenge to the validity of the section 21 warrants in the context of determining the admissibility of evidence pursuant to section 24 of the Charter of Rights and Freedoms, Part I to the Constitution Act, 1982, c. 11 (U.K.), Schedule B [Charter] in a security certificate proceeding?
(b) Is the evidence obtained pursuant to the section 21 warrants inadmissible because Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui I] declared the previous IRPA regime, which was the law at the time the evidence was collected, unconstitutional?
(c) Does the non-disclosure of the confidential section 21 warrants and affidavits in support of the warrants to Mr. Mahjoub violate Mr. Mahjoub’s right to full answer and defence?
(d) In the context of a challenge to section 21 warrants in a security certificate proceeding, can the Court consider the confidential affidavits, or must the Court restrict its consideration to the summary of the affidavits disclosed to Mr. Mahjoub?
3. Are the section 21 warrants themselves unlawful by reason of:
(a) The presence of information derived from torture in the supporting affidavits?
(b) CSIS’s breach of the duty of full, fair and frank disclosure by presenting misleading affidavits to the designated judge that also omitted exculpatory information?
(c) The absence of any indication that the warrants complied with the requirements of the CSIS Act, namely subsection 21(1) and paragraphs 21(2)(a) to (g)?
(d) The warrants’ authorization of solicitor-client interceptions, which constitutes unreasonable search and seizure?
4. Did CSIS engage in searches and seizures that were not authorized by the section 21 warrants and not otherwise authorized by law?
5. If evidence used in this proceeding was unlawfully obtained for any of the above reasons, should it nevertheless be admitted pursuant to subsection 24(2) of the Charter?
Analysis
[16] Mr. Mahjoub raised the issue of the constitutionality of the CSIS Act in the context of his general constitutional challenge to the proceeding. As stated above, I will deal with this issue at this juncture. In my view, it is more germane to the warrants motion than to the challenge to Division 9 of the IRPA. My conclusions here are intended to dispose of the issue and to inform my conclusions in the abuse of process and reasonableness decisions.
[17] The above noted issues will be considered in turn.
1. Are certain provisions of the CSIS Act unconstitutional?
(a) Are sections 2, 6 and 12 of the CSIS Act unconstitutional for vagueness or overbreadth?
Section 2 and Section 12
[18] Mr. Mahjoub challenges the term “threats to the security of Canada” in sections 2 and 12 of the CSIS Act, alleging that they are vague and overbroad, infringing section 7 of the Charter. For ease of reference, I reproduce the impugned provisions below.
2. In this Act,
“threats to the security of Canada”
« menaces envers la sécurité du Canada »
“threats to the security of Canada” means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
2. Les définitions qui suivent s’appliquent à la présente loi.
« menaces envers la sécurité du Canada »
“threats to the security of Canada”
« menaces envers la sécurité du Canada » Constituent des menaces envers la sécurité du Canada les activités suivantes :
a) l’espionnage ou le sabotage visant le Canada ou préjudiciables à ses intérêts, ainsi que les activités tendant à favoriser ce genre d’espionnage ou de sabotage;
b) les activités influencées par l’étranger qui touchent le Canada ou s’y déroulent et sont préjudiciables à ses intérêts, et qui sont d’une nature clandestine ou trompeuse ou comportent des menaces envers quiconque;
c) les activités qui touchent le Canada ou s’y déroulent et visent à favoriser l’usage de la violence grave ou de menaces de violence contre des personnes ou des biens dans le but d’atteindre un objectif politique, religieux ou idéologique au Canada ou dans un État étranger;
d) les activités qui, par des actions cachées et illicites, visent à saper le régime de gouvernement constitutionnellement établi au Canada ou dont le but immédiat ou ultime est sa destruction ou son renversement, par la violence.
La présente définition ne vise toutefois pas les activités licites de défense d’une cause, de protestation ou de manifestation d’un désaccord qui n’ont aucun lien avec les activités mentionnées aux alinéas a) à d).
12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.
[Emphasis added]
12. Le Service recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard.
[Je souligne]
[19] A similarly-worded provision, paragraph 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, withstood constitutional scrutiny in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. At paragraph 2, the Supreme Court of Canada explained that “danger to the security of Canada” was under attack for vagueness. Examining the provision through the lens of R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 [Nova Scotia Pharmaceutical Society], the Supreme Court concluded at paragraphs 83 and 92 that the phrase is not unconstitutionally vague although it is difficult to define, “highly fact-based and political in a general sense” (at paragraph 85). The Court did not insist on direct proof of a specific threat to Canada to define this term, but it did require that there “be real and serious possibility of adverse effect to Canada” that is potentially serious (at paragraphs 88-89).
[20] Further, in Nova Scotia Pharmaceutical Society, the Supreme Court explained at page 643 that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” At page 632, the Supreme Court stated that legislation must:
(1) give citizens fair notice of the consequences of their conduct, and
(2) limit law enforcement discretion.
[21] The legislation itself defines “threats to the security of Canada” in a detailed manner in paragraphs (a) to (d). These paragraphs clearly define those activities that may be considered a threat and specifically exclude lawful advocacy and dissent. I am of the view that the impugned provisions provide fair notice to the citizen and appropriately limit the Service’s investigative discretion.
[22] Mr. Mahjoub cites the case of Ernst Zündel as an example of the definition’s vagueness: a Holocaust-denier captured by this provision and by the inadmissibility provisions of the IRPA. However, Justice Blais (as he then was) at paragraph 6 of Zündel (Re), 2005 FC 295, explained:
It is important to note that Mr. Zündel’s views on the Holocaust had been known for years, but were of no concern to the Canadian Security Intelligence Service (CSIS). They may well have been an irritant to many and may have been considered as vile and perverse, but they were not enough to label him as a security threat. Rather, the investigations only began when Mr. Zündel crossed the boundaries of free speech and pursuant to the Ministers’ opinion, entered the realm of incitement to hatred and potential political violence in relation to the White Supremacist Movement.
The Court found that is was not because of Zündel’s views on the Holocaust that he was considered a security threat, but rather because of the threat of political violence. In my view, Zündel falls well within the ambit of a restricted definition of “threats to the security of Canada.” It is not an example of vagueness of the impugned language of the CSIS Act.
[23] In Mr. Mahjoub’s case, the investigation of his potential membership in terrorist groups and activities linked with terrorism is also related to a threat of political violence. As such, it also comes within the ambit of a restricted definition of “threats to the security of Canada.”
[24] The test for overbreadth is found in R. v. Heywood, [1994] 3 S.C.R. 761 at page 793 (and used in R. v. Khawaja, 2012 SCC 69 at paragraph 37). If legislation is overbroad, it is such that “in some applications the law is arbitrary or disproportionate” to the state interests it seeks to advance.
[25] The internal restrictions found in sections 2 and 12 of the CSIS Act define the Service’s scope of discretion by specifically defining “threats to the security of Canada” and only permitting the Service to collect information “to the extent that it is strictly necessary”. Further, the “threat” can only be investigated on reasonable grounds to suspect standard. Based on the limitations and requirements imposed on the Service by the above cited provisions, I find that the sections at issue are neither arbitrary nor disproportionate to the state interests that they seek to advance. I conclude that the provisions are not overbroad.
[26] Mr. Mahjoub next appears to argue by implication that section 12 of the CSIS Act authorized unreasonable searches and seizures that engage his section 7 privacy rights, thereby violating his section 8 Charter rights.
[27] Mr. Mahjoub’s main concern appears to be that the Service does not require “reasonable and probable grounds” to investigate an individual. He argues that the “reasonable grounds to suspect” standard in section 12 is too low and thereby results in an unreasonable search and seizure. He relies on Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 [Hunter], the landmark decision of the Supreme Court of Canada interpreting section 8 of the Charter. In that case, the Supreme Court established that for a search to be reasonable, it requires reasonable and probable grounds that an offence is committed and that there is evidence to be found as a result of the search.
[28] Section 12 is about the collection of intelligence on activities that are suspected threats to the security of Canada. “Search” is defined as an investigative technique by the state that diminishes the reasonable expectation of privacy of a person (Hunter at pages 159-160; R. v. Gomboc, 2010 SCC 55 at paragraph 77), and “seizure” is defined as “taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. 417 at page 431, R. v. Buhay, 2003 SCC 30 at paragraph 33). There is typically no reasonable expectation of privacy if the individual does not keep the information in question private, for example in R. v. Edwards, [1996] 1 S.C.R. 128, the Court found that an individual did not have a reasonable expectation of privacy in his girlfriend’s apartment. There is also no reasonable expectation of privacy in garbage (R. v. Krist, 100 C.C.C. (3d) 58 (BCCA)).
[29] According to R. v. Collins, [1987] 1 S.C.R. 265 at page 278, a search is reasonable without prior judicial authorization if it is authorized by a reasonable law and conducted in a reasonable manner. Since Mr. Mahjoub has raised no allegations that any searches conducted pursuant to section 12 of the CSIS Act were conducted in an unreasonable manner, I will address whether section 12 of the CSIS Act is a reasonable law.
[30] In R. v. Kang-Brown, 2008 SCC 18 [Kang-Brown] and R. v A.M., 2008 SCC 1, the Supreme Court determined that the threshold for using a certain common law-authorized investigative technique, namely dogs trained in drug detection or “sniffer dogs”, was “reasonable suspicion”, a lower threshold than “reasonable and probable grounds” as described in Hunter. The recent companion cases R. v. Chehil, 2013 SCC 49 [Chehil] and R. v. MacKenzie, 2013 SCC 50 [MacKenzie] addressed another challenge to this standard and upheld the “reasonable suspicion” standard for deploying the sniffer dogs. Using sniffer dogs can be done without prior judicial authorization because “they are minimally intrusive, narrowly targeted, and can be highly accurate” (Chehil at paragraph 1). As Justice Karakatsanis wrote in Chehil at paragraph 6, “[t]he reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour.” There must be a constellation of factors (or a single factor such as travelling under a false name) that is particularized enough to prevent indiscriminate or discriminatory searches (at paragraphs 30-31, 35). In addition, there must be a “nexus” between the factors and the criminal conduct, even if the factors are not themselves criminal conduct (at paragraph 37).
[31] The learned judge further commented in Chehil at pararaph 23 that “[b]oth the impact on privacy interests and the importance of the law enforcement objective play a role in determining the level of justification required for the state to intrude upon the privacy interest in question.” She concluded at paragraph 24 that the appropriate justification for a search lies along a spectrum depending on these factors.
[32] The public interest in the Service investigating threats to the security of Canada is great. Nevertheless, section 12 of the CSIS Act does not, on its face, constrain the investigative techniques that may be used by the Service. In addition, unlike sniffer dog searches, under normal circumstances there is no judicial scrutiny for techniques employed pursuant to section 12, for the search is typically conducted unbeknownst to the target individual. It is therefore useful to examine the legislative constraints on section 12 and which techniques are actually employed by the Service pursuant to section 12 in order to determine whether the “reasonable suspicion” standard strikes the correct balance in these circumstances.
[33] While section 12 appears to be broad in scope, it is nonetheless constrained by the warrant requirements, namely sections 21 to 24 of the CSIS Act. Parliament intended these provisions to be used in circumstances where the investigation required interference with an individual’s reasonable expectation of privacy. In such cases, the Service is required to obtain judicial authorization. Under the warrant process, the threshold is higher than that required for section 12 activities. To request a warrant an affiant on behalf of the Service must attest to “the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada or to perform its duties and functions under section 16… ” (section 21(1) of the CSIS Act). Consequently, section 12 does not authorize intrusive searches and seizures of private information.
[34] In the “Amended Final Response to Questions Re: National Security Privilege Objections” prepared by the Service and dated March 5, 2012 (Exhibit R82), the Service disclosed a significant portion of its policies dealing with investigative techniques pursuant to section 12, as follows:
1. OPS-101 2006, Level 1 investigative techniques allowed include reporting of open information, querying federal/provincial/territorial/municipal records and databanks, querying records held by foreign police/security/intelligence organizations. Level 1 is valid for 90 days and terminated immediately if the Service discovers that the activities of a target do not constitute a threat.
2. OPS-102 2006, Level 2, techniques allowed include level 1, use of physical surveillance, interview of the target or any other person who may have relevant information, and tasking of human sources. Level 2 is valid for 2 years.
3. OPS-103 2006, Level 3, techniques allowed include levels 1 and 2, use of physical surveillance, and application for or execution of warrant powers of Federal Court warrants. It is valid for 2 years.
It is also clear from the evidence that higher levels require higher authorization within the Service.
[35] I am satisfied, on a review of the techniques enumerated in the Service policies above, that they are minimally intrusive, if they engage a reasonable expectation of privacy at all. The “reasonable suspicion” standard must be satisfied in order to employ these techniques. Further, the policies contemplate obtaining Federal Court warrants, governed by sections 21 to 24, for more intrusive techniques. In my view, section 12 of the CSIS Act, as interpreted by the Service, requires the Service to have an objective, particularized basis for the use of any minimally intrusive investigative techniques and strikes the appropriate balance between the public interest in investigating threats to the security of Canada and the individual target’s privacy rights.
[36] The Ministers argue that Parliament has legislated a lower standard than that required by Hunter, thereby allowing an intrusive search to be conducted on reasonable grounds to suspect standard, relying on Kang-Brown at paragraphs 3, 10, and 13. While I accept that Parliament has the authority to legislate a lower standard for such searches and seizures, it is not apparent to me that Parliament has done so by enacting section 12 of the CSIS Act. Intrusive searches and seizures require a warrant pursuant to section 21.
[37] Disclosure of activities specifically undertaken by the Service in relation to Mr. Mahjoub under the authority of section 12 would, in my opinion, be injurious to national security or the safety of persons. The specifics of what was done can therefore be found in “Section A” of the Confidential Annex.
[38] The following paragraphs are a summary of my findings on this issue from the Confidential Annex.
[39] In my view, on the basis of the record, all of the techniques used pursuant to section 12 of the CSIS Act were minimally intrusive, and none of them were employed in a discriminatory or indiscriminate way.
[40] Further, Mr. Mahjoub and the Special Advocates have raised no specific facts which would indicate that specific techniques authorized by section 12 constitute unreasonable search and seizure. They have not argued that the Service did not have reasonable grounds to suspect that Mr. Mahjoub was connected to a threat to the security of Canada, nor have they argued that any particular technique failed to respect the balance between public and privacy interests. It was necessary for them to do so in order for the Court to assess a particular technique according to the requirements set out in Chehil and MacKenzie.
[41] Mr. Mahjoub also challenges section 12 of the CSIS Act as it apparently permits Service personnel to obtain statements from him pertinent to his security certificate case without his knowledge, which he claims is an infringement of section 13 of the Charter against self-incrimination. Mr. Mahjoub, in his anaemic submissions on this issue, has failed to establish any ground upon which section 12 of the CSIS Act could be found to be unconstitutional on the basis of section 13 of the Charter. Section 12 is concerned with investigating threats to the security of Canada, not obtaining statements for an immigration proceeding. These allegations pertain to the conduct of the Service in collecting and using the information gathered under the authority of section 12, not to the constitutional validity of the provision itself.
[42] For the above reasons, I find that Mr. Mahjoub’s constitutional challenge to section 12 of the CSIS Act is without merit.
Section 6
[43] Section 6 of the CSIS Act gives the Director of the Service, under the direction of the Minister, the control and management of the Service and all matters connected therewith. Mr. Mahjoub alleges that the provision enables several unconstitutional policies and guidelines.
[44] For ease of reference, I reproduce the impugned provision below:
6. (1) The Director, under the direction of the Minister, has the control and management of the Service and all matters connected therewith.
(2) In providing the direction referred to in subsection (1), the Minister may issue to the Director written directions with respect to the Service and a copy of any such direction shall, forthwith after it is issued, be given to the Review Committee.
…
(4) The Director shall, in relation to every 12-month period or any lesser period that is specified by the Minister, submit to the Minister, at any times that the Minister specifies, reports with respect to the Service’s operational activities during that period, and shall cause the Review Committee to be given a copy of each such report.
6. (1) Sous la direction du ministre, le directeur est chargé de la gestion du Service et de tout ce qui s’y rattache.
(2) Dans l’exercice de son pouvoir de direction visé au paragraphe (1), le ministre peut donner par écrit au directeur des instructions concernant le Service; un exemplaire de celles-ci est transmis au comité de surveillance dès qu’elles sont données.
[…]
(4) Pour chaque période de douze mois d’activités opérationnelles du Service ou pour les périodes inférieures à douze mois et aux moments précisés par le ministre, le directeur présente à celui-ci des rapports sur ces activités; il en fait remettre un exemplaire au comité de surveillance.
[45] Even if it were established, as alleged, that executive action performed under an enabling statute is unconstitutional, this does not render the statute itself unconstitutional (Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215 at page 216). Mr. Mahjoub has failed to show how the provision at issue falls afoul of the Charter or his Charter rights. Further, while certain policies or executive action enacted pursuant to the section might engage Mr. Mahjoub’s individual rights, the provision itself does not.
[46] I have dealt with Mr. Mahjoub’s challenges to individual policies and practices, insofar as they have been raised, in the Abuse of Process Decision.
(b) Is section 17 of the CSIS Act unconstitutional because it authorizes CSIS to enter into intelligence-sharing arrangements with foreign agencies with poor human rights records?
[47] Mr. Mahjoub alleges that section 17 of the CSIS Act is unconstitutional because it violates individuals’ right to privacy pursuant to section 7 of the Charter. It enables intelligence-sharing arrangements with intelligence agencies having poor human rights records, and it therefore has the potential to enable sharing of personal information.
[48] For ease of reference, I reproduce the impugned provision below:
17. (1) For the purpose of performing its duties and functions under this Act, the Service may,
(a) with the approval of the Minister, enter into an arrangement or otherwise cooperate with
(i) any department of the Government of Canada or the government of a province or any department thereof, or
(ii) any police force in a province, with the approval of the Minister responsible for policing in the province; or
(b) with the approval of the Minister after consultation by the Minister with the Minister of Foreign Affairs, enter into an arrangement or otherwise cooperate with the government of a foreign state or an institution thereof or an international organization of states or an institution thereof.
(2) Where a written arrangement is entered into pursuant to subsection (1) or subsection 13(2) or (3), a copy thereof shall be given forthwith to the Review Committee.
17. (1) Dans l’exercice des fonctions qui lui sont conférées en vertu de la présente loi, le Service peut :
a) avec l’approbation du ministre, conclure des ententes ou, d’une façon générale, coopérer avec :
(i) les ministères du gouvernement du Canada, le gouvernement d’une province ou l’un de ses ministères,
(ii) un service de police en place dans une province, avec l’approbation du ministre provincial chargé des questions de police;
b) avec l’approbation du ministre, après consultation entre celui-ci et le ministre des Affaires étrangères, conclure des ententes ou, d’une façon générale, coopérer avec le gouvernement d’un État étranger ou l’une de ses institutions, ou une organisation internationale d’États ou l’une de ses institutions.
(2) Un exemplaire du texte des ententes écrites conclues en vertu du paragraphe (1) ou des paragraphes 13(2) ou (3) est transmis au comité de surveillance immédiatement après leur conclusion.
[49] Mr. Mahjoub’s challenge is relevant to paragraph 17(1)(b) and not to the other provisions, so I shall examine that provision only.
[50] This provision authorizes the Service, with Ministerial approval, to enter into an arrangement or otherwise cooperate with foreign governments or agencies after consultation with the Minister of Foreign Affairs and International Trade. It is consequently assumed that in completing the arrangement, Department of Foreign Affairs and International Trade (DFAIT) input relating to country conditions was properly obtained and considered. The terms of that cooperation are then left to the Minister and the Service to arrange. I accept that one of the purposes of arrangements made under this provision may be information-sharing.
[51] The provision governing the creation of the arrangements, paragraph 17(1)(b), is constrained by the requirement of consultation with the Minister of Foreign Affairs and International Trade, a minister with particular expertise in country conditions including human rights. This ensures that the Minister of Public Safety is informed about the country in question and has independent advice from outside of the Service and his or her department.
[52] Other legislative provisions further govern the information-sharing aspect of section 17 arrangements. Pursuant to subsection 8(2) of the Privacy Act, R.S.C. 1985, c. P-21 [Privacy Act], the Service may disclose personal information for the purpose of furthering the objectives of the CSIS Act. Paragraphs 8(2)(f) and (m), provide that:
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
…
(f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the council of the Westbank First Nation, the council of a participating First Nation — as