THE EFFECT OF BILL C44(2014) AND BILL C51(2015) ON THE INTELLIGENCE LANDSCAPE
The background context
In December 2007, CSIS agents applied to the federal court of Canada for a warrant to allow CSIS to surveil Canadians travelling on foreign soil[1]. This was admittedly a request for an ‘extra-territorial’ warrant. The request puzzled the federal court judge (Blanchard) who had reasons to reject the request and did reject the application.
Justice Blanchard asked CSIS: ‘what would be the purpose of seeking such a warrant?’ [para 4]. [2]CSIS replied that the warrant wasn’t to protect the agent from foreign laws[3]. Rather it would protect the agent in Canada from an accusation that the agent breached the privacy rights of the target of the surveillance while both the agent and the target were in the foreign country [para 57][4]. In other words, the warrant was to protect the agent from an accusation that the agent broke some Canadian law, namely, the Charter right to privacy[5]. In effect, CSIS worry was that the Charter applied to its international actions.[6]
Justice Blanchard asked the second logical question: ‘should the court be engaged in the issuance of such warrants, which would not be enforceable outside Canada, and which would likely involve the authorization of illegal activity in the host state?’ [para 4]
Blanchard rejected the application. He avoided having to answer the judicial policy question by finding that the CSIS Act itself did not grant any extra-territorial authority of any kind: to either the court to issue warrants, or to CSIS to act extra-territorially. Blanchard’s evasion of the real question (whether a judge should ever be involved in issuing warrants to commit ‘illegal’ activity in the host state), was only a temporary avoidance only.
The introduction of Bill C44 and C51 which grant the federal court authority to issue the warrants involving illegal activity in the host state, brings Blanchard’s question back for a direct answer by a future federal court judge.
This series of commentaries addresses the various issues to be dealt with regarding CSIS foreign action. It is assumed at all times for purposes of this analysis that the foreign action is illegal at foreign law. CSIS admitted this to be the issue at the Blanchard hearing[7]. The CSIS director admitted it to the issue before Parliament. [8]
[1] Canadian Security Intelligence Service Act (Re), 2008 FC 301 (CanLII)
[2] Ibid.
[3] note 1: [35] …It is acknowledged by all concerned that while such warrants may be issued in Canada, the Court has no jurisdiction in respect of the execution of the warrant in a foreign state.
[4]note 1: [57] The Service’s main contention in this application is that the warrant sought is required to ensure that Canadian agents engaged in executing the warrant abroad do so in conformity with Canadian law since the impugned investigative activities may, absent the warrant, breach the Charter and contravene the Code. I will address first the Charter and the Service’s position that the majority in Hape did not expressly or by necessary implication foreclose consideration of the Charter’s application in the context of security intelligence investigations outside Canada.
[5]note 1: [23] The Service further contends that the warrant is required to ensure that Canadian agents engaged in executing the warrant abroad do so in conformity with Canadian law. The Service maintains that the warrant is required to judicially authorize activities that, absent the warrant, may breach the Charter and contravene the Code. This is so because the warrant powers sought to be authorized are directed at Canadians and arguably might impact on their expectation of privacy. The Service argues that the warrant would enable it to perform its duties and functions by removing the legal impediments to the conduct of a part of its security intelligence investigations outside Canada and would respect the rule of law and be consistent with the regime of judicial control mandated by Part II of the Act.
[6] Ibid;
[7] [29] The Service adopts the position that it is not asking the Court to authorize a violation of foreign law, although it acknowledges that the activities to be authorized by the warrant are likely to constitute a violation of foreign law.
[8] CSIS Commissioner Michel Coulombe confirmed that the overseas CSIS conduct in issue in Bill C44 was conduct that would be illegal in the foreign country. He stated:
“Again, if you’re talking about a situation where activities that we were going to do overseas had to be lawful in the country where we were going to take place, again, I’m not sure that’s a viable practical system. Evidence before the National Defence Committee of the House of Commons November 24, 2014 , p.16
