Canada’s foremost jurist on national security law has slammed CSIS for deliberately keeping the Federal Court of Canada “in the dark” about outsourcing its spying on Canadians abroad to foreign agencies, according to a redacted version of a classified court decision made public Friday.
In a thundering rebuke, Federal Court Judge Richard Mosley said the Canadian Security Intelligence Service (CSIS) purposely misled him when he granted it numerous warrants beginning in 2009 to intercept the electronic communications of unidentified Canadians abroad suspected as domestic security threats.
CSIS also mistakenly assigned powers to the warrants that the court never authorized and which do not exist in law, he said.
“Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several royal commissions, there can be no question that the Canadian agencies are aware of those hazards. It appears to me that they are using the warrants as authorization to assume those risks.”
At the time the first warrants were issued, CSIS told the court “on clearly stated grounds” that the electronic intercepts would be carried out from within Canada by the Communications Security Establishment Canada (CSEC), the country’s foreign signals intelligence spy service.
CSIS is largely restricted to domestic spying operations. If an investigation involves the use of intrusive techniques, such as electronic intercepts, Section 21 of the CSIS Act requires it to obtain a warrant approved by a Federal Court judge to guard the Charter right to a reasonable expectation of privacy.
CSEC, meanwhile, is not allowed to spy on Canadians anywhere unless it is to provide technical and operational assistance to federal law enforcement and security agencies such as CSIS.
And the federal court only has jurisdiction to authorize warrants under the CSIS Act as long as the communications in question are intercepted within Canada.
CSIS successfully argued before Mosley that by limiting execution of the interception techniques to passive listening posts on Canadian soil, the arrangement would be within the power of the court to authorize. It also would respect the territorial sovereignty of the country or countries in which the terrorist targets were staying. No reference was made to tasking allied foreign agencies.
Yet once the so-called 30-08 warrants were approved by the court, CSEC, on behalf of CSIS, turned around and handed the jobs to one or more of its partners in the “Five Eyes” intelligence-gathering alliance between Canada, the United States, Great Britain, Australia and New Zealand.:
• “I am satisfied that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the court was led to believe that all of the interception activity would take place in or under the control of Canada.”
• “The principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the Five Eyes to intercept the communications of the Canadian targets, CSIS and CSEC officials knew … this would involve the breach of international law by the requested second parties.”
• “There is nothing in any of the material that I have read … that persuades me that it was the intent of Parliament to give the service authority to engage the collection resources of the second party allies to intercept the private communications of Canadians.”
• “It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the service either directly or through the assistance of CSEC.”
• “There must be no further suggestion in any reference to the use of second party assets by CSIS and CSEC, or their legal advisers, that it is being done under the authority of a (section) 21 warrant issued by this court.”
Forcese, meanwhile, raises some intriguing questions:
• If Five Eyes assistance was not authorized, and CSEC and CSIS nevertheless sought it, are they still protected from Criminal Code, Part VI (invasion of privacy) culpability? Culpability, he writes, is only avoided where the intercept is lawfully authorized. If the parameters of the warrant were disregarded, does that vitiate the lawful access?
• If CSEC and CSIS called on Five Eyes agencies to intercept communications, was the intercept still territorial, thus satisfying the international law concerns raised in the two warrant applications?