2020 FC, 2020 FC 1190

TOP SECRET Date: 20201231 Docket: |||||||||||||||||||||||| Citation: 2020 FC 1190 Ottawa, Ontario, December 31, 2020 PRESENT: The Honourable Mr.

Justice Brown BETWEEN: IN THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||||||||||||||| FOR WARRANTS PURSUANT TO SECTIONS 12 AND 21 OF THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT , RSC 1985, c C-23 IN THE MATTER OF AN APPLICATION BY |||||||||||||||||||||||||||||||||||||||| FOR WARRANTS PURSUANT TO SECTIONS 12 AND 21 OF THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT , RSC 1985, c C-23 AND IN THE MATTER OF |||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| AND IN THE MATTER OF |||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ORDER AND REASONS TABLE OF CONTENTS: I.

Introduction and

summary 2 II. Background 8 III. Solicitor-client privilege 18 A. The definition of solicitor-client communication was too narrow 19 B. It was necessary to strengthen the conditions to minimize access by the Service and AG Canada to communications potentially covered by solicitor-client privilege 21 C. Jurisprudence governing solicitor-client communications 23 D. Need to appoint amici and Referees 36 E. Review of documents at the Federal Court’s secure premises 37 F. Provincial bar not engaged regarding likely incidental intercept of lawyer’s communications 38 G. Sequestration and preservation Orders 40 H.

Procedure adopted with respect to communications potentially containing solicitor-client privileged information implemented in the Fall of 2018 41 I. Decisions on Draft Reports – forwarded in some cases without and in some cases with redactions 44 IV. Duty of Candour 45 A. First interruption of review and release of redacted or complete Draft Reports January – February 2019 – disclosure of potentially illegal conduct by human sources not brought to the Court’s attention in October 2018 45 B. CSIS ordered to report non-disclosure to SIRC 46 C.

Interruption of Draft Reports and Orders allowing full or redacted Draft Reports – February 2019 to April 2019 47 D. Alleged illegality of human source activities disclosed February 2019 51 E. Criminal Code provisions on participation in terrorist activity 52 F. Supreme Court of Canada jurisprudence on participation in terrorist activities generally and

section 83.18 58 G. Supreme Court jurisprudence on the defence of de minimis 62 H. Application of legal principles to the Supplemental Evidence 66 I. Full Balancing Analysis – determining whether any information should be excised from the 2018 Application for Warrants 71 J. Resumption of Draft Reports and Orders allowing full or redacted Draft Reports – April 10, 2019 72 K.

Second interruption of review and release of Draft Reports September / October 2019 due to additional evidence concerning (1) non-disclosure of material going to reliability and credibility of human sources and (2) disclosure of additional potentially criminal conduct by human sources 74 L. New information regarding credibility and reliability | 79 M. General observations on reliability and credibility 81 N. Assessment of potentially negative information concerning the credibility and reliability | 87 O. Assessment of new evidence of potentially positive reliability and credibility 92

P. High legal risk assessments, report to the Minister of Public Safety and Emergency Preparedness, and meeting of Warrant Committee in the Summer of 2018 98 V. Concluding remarks 115 I. Introduction and

summary [ 1 ] These reasons are divided into four parts: introduction and

summary, background, solicitor-client privilege, and duty of candour and full disclosure. They are issued as part of the Court’s ongoing effort to shed public light where appropriate on the Court’s role in relation to the Canadian Security Intelligence Service [ " “CSIS” " or " “the Service” " ] and its counsel, the Attorney General of Canada [AG Canada], in relation to warranted activities involving suspected threats to the security of Canada.

These Reasons deal with a number of determinations in relation to two issues which arose in connection to warrants issued by me in October 2018 [2018 Warrants]. [ 2 ] The first issue concerns how best to protect solicitor-client privilege in the context of judicially warranted intercepted communications under the Canadian Security and Intelligence Act , RSC 1985, c C-23 , as amended [ CSIS Act ].

This issue arises because |||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| I dealt with the solicitor-client issues both when the 2018 Warrants issued in October 2018 and in a number of subsequent Orders and Directions, some but not all of which are discussed below. [ 3 ] The second issue relates to the duties of candour and full disclosure.

I consider this one duty and will henceforth refer to it as the duty of candour. The duty of candour was first drawn to the Court’s attention by the Service in January and early 2019 with disclosure of information that was available to the Service, but which the Service did not present to the Court when the Service requested the 2018 Warrants. In early October 2019, almost a year after the 2018 Warrants were issued, the Service revealed additional previously undisclosed information not revealed in January 2019.

Once again, almost all this additional information was available to the Service in October 2018, but was not presented to the Court at that time. [ 4 ] These instances of non-disclosure squarely raise the duty of candour resting on the Service, which requires the Service to make full disclosure when seeking national security warrants under the CSIS Act . This duty arises because Service applications for national security warrants are of necessity and by statute, conducted in secret.

In addition, the Court does not generally hear from anyone except the Service; that is, warrant applications are made in private, in camera and ex parte . [ 5 ] The Service frankly concedes, and I agree, that the non-disclosures reported in January and early 2019 and in October 2019 breached its duty of candour by failing to disclose information that should have been disclosed when it applied for the 2018 Warrants in October 2018.

The information belatedly disclosed in January and early 2019 concerned potentially unlawful conduct on the part of confidential informants, or ‘human sources’ relied upon by the Service. The information belatedly brought to the attention of the Court in October 2019 concerned matters that may have affected the Court’s assessment of the credibility and reliability of information |||||||||||||||||||||||||||||||||||||| relied on by the Service to obtain the 2018 Warrants. The October 2019 disclosures provided additional information concerning potentially unlawful human source conduct. [ 6 ] In

summary, with respect to the issue of solicitor-client privilege, the Court will outline the required balancing exercise and the mechanisms the Court put in place to ensure that the Service did not gain impermissible access to intercepted communications that might contain solicitor-client communications, while also ensuring, to the extent possible, that the Service is able to investigate threats to the security of Canada in a timely manner where authorized to do so under CSIS Act warrants issued by this Court. [ 7 ] On the issue of non-disclosure, there is no doubt, it is admitted and I find that the Service failed in its duty of candour by not disclosing that human source information relied upon in the warrant application might have been derived from activities that potentially contravened the Criminal Code , RSC 1985, c C-46 [ Criminal Code ], and in particular, that might have breached the anti-terrorism provisions in sections 83.01 and following thereof. [ 8 ] The Court also finds that the Service breached its duty of candour in failing to disclose information that had the potential to reflect adversely on the reliability and credibility of the human source information the Service presented to and the Court relied upon in the 2018 Warrant application. [ 9 ] Both breaches occurred through a combination of institutional and systemic negligence.

Nevertheless, I am unable to find any intention to mislead or deceive the Court. The Court does not find personal culpability on the part of either the lawyers or Service witnesses who appeared before it. The breach of candour resulted from numerous factors discussed below, and in far more detail by my colleague Justice Gleeson in Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 ( Re ) , 2020 FC 616 , [2020 FC 616]. I should note that I sat with Justice Gleeson (and Justice Kane) in a mini en banc , when much of the evidence in his case of a general nature was presented.

The three of us were also part of a full Court en banc hearing in 2019.

I have read the decision of Justice Gleeson, and concur with his findings, analysis and conclusions on the general. [ 10 ] In particular, some matters addressed by Justice Gleeson are mirrored in the matter before me now, in particular the question of whether the Court may invalidate the warrant or take other action after it has issued, if the Court becomes aware that information placed before it was likely collected in contravention of the law. [ 11 ] I fully agree with and adopt the analytical framework outlined by Justice Gleeson in his decision: a judge of the Federal Court may review a prior decision to issue a warrant.

As outlined by Justice Gleeson at paragraph 223 of his decision: As a matter of practicality and in furtherance of the efficient use of judicial resources, when faced with the review of a previously issued warrant for reasons of candour, a designated judge may commence with a sufficiency assessment after automatically excluding the impugned information as an initial procedural step […] However, if automatic excision leads to the conclusion that the warrant could not have issued then I am of the view that the designated judge would be required to engage in a full balancing analysis prior to reaching a final conclusion on the question of whether the warrant could have issued. [ 12 ] Justice Gleeson explains that the balancing analysis to determine what information on the record is to be excised, if any, in an ex post facto review where the validity of a warrant is called into question for reasons relating to a breach of candour should take into account the following factors: (1) seriousness of the illegal activity; (2) fairness; and (3) societal interest. [ 13 ] In this case, I have opted in my discretion, as allowed by Justice Gleeson’s framework, not to first assess the validity of the warrant after automatically excluding the impugned information.

Instead I will proceed directly with the full balancing analysis. [ 14 ] I have weighed the above-mentioned factors in reviewing the information relating to human source activities provided after the fact. I am not required to determine if the conduct belatedly identified breached the Criminal Code .

In this case I am required to determine if the human source information obtained through potentially illegal activity could have been relied on in issuing the warrants and whether the potential illegality and other information brought to the Court’s attention after the 2018 Warrants were issued sufficiently affects the credibility of human source information such that the warrant could not have issued. [ 15 ] Let me be clear: the Service should have disclosed the undisclosed human source related information to the Court when it applied for the 2018 Warrants.

That was required as part of the duty of candour resting on the Service. However, in my respectful view and on a balance of probabilities, much if not all of the human source conduct in question would be entitled to the defence of de minimis : if the conduct contravened the Criminal Code , the contraventions were minor and technical in nature, and in some cases lacked a causal connection to the information relied upon to issue the warrants.

I have concluded that the potentially illegal conduct could not have affected the issuance of the 2018 Warrants; they could have issued even if this information had been disclosed. [ 16 ] I have reached the same conclusion with respect to the information potentially reflecting adversely on the reliability |||||||||||||||||||||||||||||||||||||| I am far from persuaded on a balance of probabilities that the 2018 Warrants could not have issued if the information reported in October 2019 was disclosed when the 2018 Warrants were issued in October 2018.

In my respectful view, in my ex post facto review, the human source related information should not be excised, and consequently, the 2018 Warrants could have issued even if this information had been disclosed. II. Background

[ 17 ] The Federal Court is authorized by

section 12 and

Part II of the CSIS Act to issue warrants authorizing CSIS to intercept communications if this Court is satisfied there are reasonable grounds to believe such a warrant is required to enable the Service to investigate a threat to the security of Canada, and where other investigative procedures have been tried and failed or are unlikely to succeed. These powers are set out in subsections and paragraphs 21(1), 21(2)(a), (

b) and (

c) and (3) (a), (b), and (c), of the CSIS Act and the definition of what constitutes a threat to the security of Canada is found in

section 2:

Definitions " " Définitions " " 2 In this Act, " " 2 Les définitions qui suivent s’appliquent à la présente loi. […] " " […] " " threats to the security of Canada means " " menaces envers la sécurité du Canada Constituent des menaces envers la sécurité du Canada les activités suivantes : " " (

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, " "

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) 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, " "

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) 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 " "

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) 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, " "

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. " " 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). ( menaces envers la sécurité du Canada ) " " 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). ( threats to the security of Canada ) " " […] " " […] Collection, analysis and retention Informations et renseignements " " 12

(1) 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. " " 12

(1) 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. […] " " […] 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. Matters to be specified in application for warrant Contenu de la demande

(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely,

(2) La demande visée au paragraphe (1) est présentée par écrit et accompagnée de l’affidavit du demandeur portant sur les points suivants :

(

a) 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;

a) les faits sur lesquels le demandeur s’appuie pour avoir des motifs raisonnables de croire que le mandat est nécessaire aux fins visées au paragraphe (1); (

b) that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures or that without a warrant under this

section it is likely that information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under

section 16 referred to in paragraph (

a) would not be obtained;

b) le fait que d’autres méthodes d’enquête ont été essayées en vain, ou la raison pour laquelle elles semblent avoir peu de chances de succès, le fait que l’urgence de l’affaire est telle qu’il serait très difficile de mener l’enquête sans mandat ou le fait que, sans mandat, il est probable que des informations importantes concernant les menaces ou les fonctions visées au paragraphe (1) ne pourraient être acquises; […] […] Issuance of warrant Délivrance du mandat

(3) Notwithstanding any other law but subject to the Statistics Act, where the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraphs (2)(

a) and (

b) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to intercept any communication or obtain any information, record, document or thing and, for that purpose,

(3) Par dérogation à toute autre règle de droit mais sous réserve de la

Loi sur la statistique, le juge à qui est présentée la demande visée au paragraphe (1) peut décerner le mandat s’il est convaincu de l’existence des faits mentionnés aux alinéas (2)

a) et

b) et dans l’affidavit qui accompagne la demande; le mandat autorise ses destinataires à intercepter des communications ou à acquérir des informations, documents ou objets. À cette fin, il peut autoriser aussi, de leur part : (

a) to enter any place or open or obtain access to any thing;

a) l’accès à un lieu ou un objet ou l’ouverture d’un objet; (

b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing; or

b) la recherche, l’enlèvement ou la remise en place de tout document ou objet, leur examen, le prélèvement des informations qui s’y trouvent, ainsi que leur enregistrement et l’établissement de copies ou d’extraits par tout procédé; (

c) to install, maintain or remove any thing.

c) l’installation, l’entretien et l’enlèvement d’objets. […] […] Matters to be specified in warrant Contenu du mandat

(4) There shall be specified in a warrant issued under subsection (3)

(4) Le mandat décerné en vertu du paragraphe (3) porte les indications suivantes : (

a) the type of communication authorized to be intercepted, the type of information, records, documents or things authorized to be obtained and the powers referred to in paragraphs (3)(

a) to (

c) authorized to be exercised for that purpose;

a) les catégories de communications dont l’interception, les catégories d’informations, de documents ou d’objets dont l’acquisition, ou les pouvoirs visés aux alinéas (3)

a) à

c) dont l’exercice, sont autorisés; (

b) the identity of the person, if known, whose communication is to be intercepted or who has possession of the information, record, document or thing to be obtained;

b) l’identité de la personne, si elle est connue, dont les communications sont à intercepter ou qui est en possession des informations, documents ou objets à acquérir; (

c) the persons or classes of persons to whom the warrant is directed;

c) les personnes ou catégories de personnes destinataires du mandat; (

d) a general description of the place where the warrant may be executed, if a general description of that place can be given;

d) si possible, une description générale du lieu où le mandat peut être exécuté; (

e) the period for which the warrant is in force; and

e) la durée de validité du mandat; (

f) such terms and conditions as the judge considers advisable in the public interest.

f) les conditions que le juge estime indiquées dans l’intérêt public. [Emphasis added.] [Non souligné dans l’original.] [ 18 ] In this case, CSIS applied to the Federal Court for a number of national security warrants in October 2018. I say a number because several different warrants were requested albeit in respect of the same targets. These requests were made under

section 12 and sought the warrant powers set out in

Part II of the CSIS Act . [ 19 ] The application was based on an alleged threat to the security of Canada posed by what were described as |||||||||||||||||||||||||||||||| a group of individuals whose members are known or suspected to have ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||

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At that time, the Court had considerable evidence, including human source evidence, relating to the threat posed |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Previous warrants relating to the same threat had been issued by this Court.

The threat posed |||||||||||||| |||||||||||||||||||| was outlined, and the individuals whose communications were targeted by the 2018 Warrants were identified along with their activities. [ 22 ] In addition, among other things, the application for the 2018 Warrants identified individuals whose communications might incidentally be intercepted. [ 23 ] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| [ 24 ] I granted the requested warrants on the basis of written evidence supplemented by oral testimony presented at an ex parte , in camera hearing held on October |||| 2018.

As noted, the evidence before the Court included human source information. " “Human source” " is a term used by the Service and by Parliament in the CSIS Act to describe confidential informants. Human sources are individuals directed and relied upon by the Service who provide relevant information to the Service. The Service in turn presented the information to the Court in support of its application. The CSIS Act describes human source as follows:

Definitions " " Définitions " " 2 In this Act, " " 2 Les définitions qui suivent s’appliquent à la présente loi. […] " " […] " " human source means an individual who, after having received a promise of confidentiality, has provided, provides or is likely to provide information to the Service; ( source humaine ) " " source humaine Personne physique qui a reçu une promesse d’anonymat et qui, par la suite, a fourni, fournit ou pourrait vraisemblablement fournir des informations au Service. ( human source ): " " [ 25 ] At the time of the October 2018 hearing, the Court was required to satisfy itself that the conditions necessary for the issuance of the warrants were established.

This was done to my satisfaction. [ 26 ] The Court was given no reason to be concerned with any breach of the duty of candour by either the Service or its counsel, AG Canada. The Service affiant was called to give oral testimony before me, and assured me relative to knowledge of and compliance with the duty of candour.

The Service affiant was examined by counsel for the Service, and the witness was cross-examined by specialized amici appointed by me to assist the Court. [ 27 ] While the material filed in support of the 2018 Warrants specifically referred to human source information reported in the Service employee’s affidavit, there was no indication that the human source information relied on might be connected to contravention or contraventions of the anti-terrorism provisions of the Criminal Code . [ 28 ] Nor was the Court given any reason to believe that the human source information was unreliable or not credible even though brief information was presented in the Human Source Précis.

A Human Source Précis is an outline provided by the Service with the Warrant application of issues related to the credibility and reliability of human source information. In this case it was to the effect that human source information was provided by a person or persons who had ‘run-ins’ with the law. [ 29 ] It may be that information presented in the Human Source Précis might also go to the character of a relevant human source.

I note this because while of course character evidence might go to the reliability or credibility of human source information, there is no requirement that human sources be without blemish or exemplars of rectitude for their evidence to be believed by the Court. [ 30 ] Suffice it to say that nothing in the October 2018 warrant application could have stood in the way of issuing the 2018 Warrants. [ 31 ] The issue of solicitor-client privilege, however, was immediately, very specifically and properly flagged by the Service when it applied for the 2018 Warrants.

The Service disclosed that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| As noted, the Service fully and as required by the duty of candour, disclosed that communications |||||||||||||||||||||||||| would likely be incidentally intercepted during surveillance of individuals named as targets of the requested warrants.

III. Solicitor-client privilege [ 32 ] The Federal Court has long provided specific protections to prevent unauthorized interceptions and use of communications protected by solicitor-client privilege.

This is accomplished through special conditions forming part of each warrant issued by the Court pursuant to the CSIS Act . [ 33 ] The warrants I was asked to issue included among other things the following provisions relating to solicitor-client privilege, the first of which was set out in the definition section, and the second was set out in the applicable warrant conditions: “solicitor” means persons authorized to practice as an advocate or notary in Quebec or as a barrister or solicitor in any territory or other province in Canada; “solicitor-client communication” means any communication of a confidential character between a client and a solicitor directly related to the seeking, formulating or giving of legal advice or legal assistance; … CONDITION 1 No communication and no oral communication may be intercepted and no information may be obtained at the office or residence of a solicitor or at any other place ordinarily used by solicitors for the purpose of consultation with clients.

Any solicitor-client communication intercepted or obtained shall be destroyed unless the Deputy Director Operations or his designate has reasonable grounds to believe the communication relates to a threat in relation to which a warrant issued pursuant to

section 21 of the Act is in force, in which case an application shall

be brought to the Court for directions before the Service can use, retain or disclose the communication. However, where the Deputy Director Operations or his designate determines that there is information that raises real concerns that an individual or group is inimminent danger of death or serious bodily harm, the Deputy Director Operations or his designate may use, retain or disclose the communication to the extentstrictly necessary to address that danger.

The Service shall advise the Court, in writing, within 48 hours of such determination and shall seek directions from theCourt for further retention or disclosure of the communication. [34] Two problems arose with the above. A. The definition of solicitor-client communication was too narrow [35] First, the definition of "“solicitor”" was too narrow because it only applied to those actually authorized to practice as a lawyer or notary.

In this connection, it appearedthe Service treated communications with a lawyer differently from communications between a client and an individual acting in support of a lawyer’s law practice, such as asecretary, legal assistant, paralegal, or articling student. However, the law extends solicitor-client privilege not just to communications between a client and his or her actuallawyer (or notary), but also to those acting in support of a lawyer’s law practice. [36] In this connection, the

definitions in the warrants needed to be expanded to protect communications between a client and any individual acting in support of a lawyer’slaw practice. In this respect the Supreme Court of Canada has made it clear that all communications made with a view to obtaining legal advice must be kept confidential,whether the communications are made to the lawyer or to employees and whether the communications deal with matters of an administrative nature or with the actualnature of the legal problem. The Supreme Court did so in Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860 per Lamer J (as he was then) at 892-893[Descôteaux]: In

summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications[page 893] are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with theactual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purposeenjoys the privileges attached to confidentiality.

This confidentiality attaches to all communications made within the framework of the solicitor-clientrelationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established. There are certain exceptions to the principle of the confidentiality of solicitor-client communications, however.

Thus communications that are in themselvescriminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged, inter alia. … [Emphasis added.] [37] The solution to the excessively narrow definition of "“solicitor”" was achieved in two stages.

Initially, the Service and AG Canada agreed, and I ordered that thedefinition of solicitor was "“understood to include such communications between a client and an individual acting in support of a solicitor’s law practice.”" This additionwas made at the suggestion of AG Canada’s counsel in a recital as part of an Order.

Subsequently, on April 10, 2019, I specifically ordered that the definition of solicitor-client privilege "“includes communications between a client and an individual acting in support of a solicitor’s law practice.”" This revision to the definition of solicitor hasbeen adopted by subsequent judges and currently applies in all national security warrants issued by the Court. B.

It was necessary to strengthen the conditions to minimize access by the Service and AG Canada tocommunications potentially covered by solicitor-client privilege [38] The second solicitor-client issue posed by the draft Condition in the circumstances of this case was that while the Deputy Director Operations [DDO] of the Servicewas authorized to seek directions from the Federal Court in relation to solicitor-client privileged communications, it turned out that many other individuals in addition to theDDO were in fact involved in the process leading up to the DDO’s decision. [39] Without going into the details that are on the record, evidence at the hearing revealed some of those individuals had lower level functions, while others had what I willcall operational and managerial responsibilities in the risk and threat analysis and assessment.

In fact, the evidence was that as many as eight or ten, and possibly more,Service personnel would have access to communications that were potentially solicitor-client privileged communications, as they worked their way up the chain ofcommand from initial analyst’s report on the intercept, to the report to the DDO him or herself. [40] Mindful of the constitutional and legal imperative to minimize access to solicitor-client privilege and the wide scope of what is protected, I determined at the outset thattoo many Service personnel had potential access to potential solicitor-client communications.

In addition, I determined that once anyone with hands-on responsibility forthe analysis and assessment of risk read a potentially solicitor-client privileged communication, it would be difficult if not impossible not to factor that into subsequentassessments. The privilege in other words could or would have been lost by the time the DDO made a decision. [41] In my view at the time, this situation could very well have been in breach of Supreme Court of Canada jurisprudence.

That indeed turned out to be the case as discussedbelow. [42] Accordingly, I ordered the sequestration of all information that might be protected by solicitor-client privilege, and did so on October |||| 2018, the day after I signed the2018 Warrants. [43] At this point it is useful to set out relevant jurisprudence governing the warrant provisions in the CSIS Act in the context of solicitor-client privilege. C.

Jurisprudence governing solicitor-client communications [44] To begin with, there is constitutional jurisprudence to support the proposition that the regime respecting communication intercept warrants issued by the Federal Courtpursuant to the CSIS Act complies with 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 [Charter]. In particular, the CSIS Act warrant regime complies both with the protection of fundamental justice and the prohibition against unreasonablesearch and seizure set out in sections 7 and 8 of the Charter.

It also complies with the common law rules governing solicitor-client privilege as they have evolved: Atwal vCanada, (FCA), [1988] 1 FC 107 (FCA); Mahjoub (Re), 2013 FC 1096, per Blanchard J at paras 66–89 [Mahjoub per Blanchard J]; and Mahjoub vCanada (Citizenship and Immigration), 2017 FCA 157, per Stratas JA at paras 311–319 [Mahjoub per FCA], leave to appeal refused by the Supreme Court of Canada inMahjoub v Canada (Citizenship and Immigration), [2017] CSCR no 379. [45] This jurisprudence specifically allows communications between a solicitor and client to be intercepted incidentally under warrants properly issued by the Federal Courton national security grounds under

section 21 of the CSIS Act. As stated in Mahjoub per Blanchard J: Conclusion on the first issue [88] On the basis of the challenges submitted by Mr. Mahjoub and the facts of this case, I find that the impugned provisions of the CSIS Act infringe neithersection 7,

section 8 nor any other

section of the Charter. [89] The term “threats to the security of Canada” is adequately defined in

section 2 of the CSIS Act to provide notice to the citizen of what kind of activities willbe investigated and limits on the Service’s discretion to investigate activities. Parliament did not contemplate that

section 12 would authorize unreasonablesearches and seizures when privacy rights were engaged. Instead, intrusive searches and seizures were to be authorized by

section 21 warrants.

Section 6 doesnot engage Mr. Mahjoub’s rights and cannot be impugned by allegations attacking the constitutionality of the Service’s policies developed thereunder.Arrangements with foreign agencies established by the authority of

section 17 do not infringe Mr. Mahjoub’s rights, even if they entail sharing the personalinformation in the possession of the Service as intelligence. The public interest in sharing the information to further the mandate of CSIS is greater than the

“residual” privacy interest that Mr. Mahjoub has in the information. Lastly, sections 21-24 of the Act do not permit unreasonable searches and seizures simplybecause they allow the Federal Court to authorize the interception of solicitor-client communications.

Prior to the commencement of any legal proceedingsagainst a target, it may be necessary to incidentally intercept such communications in the interests of national security. [Emphasis added.] [46] The Federal Court of Appeal, on appeal from Justice Blanchard’s decision, made the same determination, namely that solicitor and client communications may beincidentally intercepted, that is, intercepted incidentally during the course of warranted intercepts targeting someone other than a lawyer.

In Mahjoub per FCA, Stratas JAconsidered the situation where the target of national security warrants was an individual who was expected to be in contact with his lawyer from time to time. While thewarrants did not target the lawyer involved, it was reasonable to expect that communications with the lawyer could and would be intercepted incidentally during warrantedsurveillance of communications with the target.

This situation is the same in principle as that in the case at bar; while the lawyer was not a target of warranted interceptions,in my view it was reasonable to expect that communications with the lawyer could and would be intercepted incidentally during warranted surveillance of communicationswith the target. In this respect, Stratas JA stated for a unanimous Federal Court of Appeal: [315] At the outset, one must recognize that it is inevitable that national security warrants authorizing the interception of communications sent and receivedusing Mr.

Mahjoub’s phone will result in the interception of solicitor-client communications. When a lawyer phones Mr. Mahjoub and discusses theproceedings, those discussions will inevitably be intercepted. This sort of “initial interception,” an inevitable one, is not fodder for an abuse of processcomplaint in itself: Atwal, above at paras 15 and 30.

The key is what happens to those interceptions afterwards. [316] In Atwal, this Court held that solicitor-client communications can be intercepted and reviewed by a Director or Regional Director General of the SecurityService to ascertain whether the communication relates to a “threat to the security of Canada.” If not, the communication is destroyed and no further disclosureis made: Atwal at paras 15 and 30. This has been incorporated into a policy that requires an analyst to disengage from the communication once it is known to bea solicitor-client communication.

This policy then requires the destruction of the communication. Except for a small number of calls in which Mr.

Mahjoub’swife acted as an agent, this policy was followed. [Emphasis added.] [47] Justice Blanchard also relied upon Justice Mosley’s ruling in Almrei (Re), 2008 FC 1216 [Almrei], to the effect that while it is permissible to intercept and reviewsolicitor-client communications under national security warrants, the privilege is to be pierced "“in as minimal ways as the circumstances dictate.”" As noted in Mahjoubper Blanchard J: [84] In Almrei (Re), 2008 FC 1216, Justice Mosley addressed a constitutional challenge to the IRPA based on an alleged breach to solicitor-client privilege.

Heobserved the following on the issue at paragraphs 60 and 61 of his reasons: [60] Despite its importance, solicitor-client privilege is not absolute: R v McClure, 2001 SCC 14 , [2001] 1 SCR 445, at paragraphs 34-35.The case law relied upon by the named persons to buttress the importance of the solicitor-client privilege does not exclude its possible breach forreasons of necessity: Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR. 574 at paragraphs 17 and22; Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61, atparagraph 36; Smith v Jones, (SCC), [1999] 1 SCR.455, at paragraph 57. [61] Avoiding injury to national security, which can include the risks of inadvertent disclosure, may constitute a necessity that warrants piercing the privilege inas minimal ways as the circumstances dictate.

This should not be decided in a factual vacuum. [Emphasis added.] [48] As Justice of Appeal Stratas held in Mahjoub per FCA that, "“the key is what happens to those interceptions afterwards.”" [49] This, with respect, is certainly the case and the next subject discussed in these Reasons. [50] In this context, it is critical to recognize the nature, breadth and scope of solicitor-client privilege.

I will refer to several decisions of the Supreme Court of Canada, theFederal Court of Appeal and Federal Court in this respect. [51] First, solicitor-client privilege is recognized as a rule of law and a principle of fundamental justice that has constitutional protection. This was determined by theSupreme Court of Canada in Lavallee v Canada (Attorney General), 2002 SCC 61 [Lavallee], where the Court struck down provisions of the Criminal Code by whichParliament purported to create a regime governing search warrants authorizing searches of law offices.

In Lavallee, the majority of the Supreme Court, per Justice Arbour,set out a number of governing principles concerning law office searches, which I will set out in full because they illustrate the extent to which solicitor-client privilege mustbe protected: [49] In the interim, I will articulate the general principles that govern the legality of searches of law offices as a matter of common law until Parliament, if itsees fit, re-enacts legislation on the issue.

These general principles should also guide the legislative options that Parliament may want to address in that respect.Much like those formulated in Descôteaux, supra, the following guidelines are meant to reflect the present-day constitutional imperatives for the protection ofsolicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out; in thisconnection, however, they are not intended to select any particular procedural method of meeting these standards.

Finally, it bears repeating that, shouldParliament once again decide to enact a procedural regime that is restricted in its application to the actual carrying out of law office searches, justices of thepeace will accordingly remain charged with the obligation to protect solicitor-client privilege through application of the following principles that are related tothe issuance of search warrants: 1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege. 2.

Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search. 3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-clientconfidentiality. 4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of alawyer must be sealed before being examined or removed from the lawyer’s possession. 5.

Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot becontacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents. 6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who shouldthen be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided. 7.

If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by theLaw Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonableopportunity to do so. 8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecutingauthority can only inspect the documents if and when it is determined by a judge that the documents are not privileged. 9.

Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation. 10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has aninterest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communicationsto a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, oreven accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system.

This is why all efforts must be madeto protect such confidences. [52] It is noteworthy that while Lavallee establishes these general principles and guidelines, warrant issuing judges "“are not intended to select any particular proceduralmethod”" to protect solicitor-client privilege.

Therefore, the procedures to protect the privilege must be judicially crafted on a case-by-case basis by the designated judgewith the Lavallee guidelines in mind. [53] Secondly, in Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC 20, the Supreme Court of Canada confirms the need for minimal impairmentof solicitor-client privilege which is not to be interfered with unless absolutely necessary given it must remain as close to absolute as possible.

The Supreme Court alsoreiterates the constitutional and substantive law nature of solicitor-client privilege: [28] On the first question, it should be remembered that professional secrecy, which started out as a mere rule of evidence, became a substantive rule over time(Solosky v The Queen, (SCC), [1980] 1 SCR 821, at p 837; Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860, at pp 875-76;Smith v Jones, (SCC), [1999] 1 SCR 455, at paras 48-49; Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC44, at para 10).

The Court now recognizes that this rule has deep significance and a unique status in our legal system (R v McClure, 2001 SCC 14, at paras 28and 31-33; Smith, at paras 46-47). In Lavallee, the Court reaffirmed that the right to professional secrecy has become an important civil and legal right and thatthe professional secrecy of lawyers or notaries is a principle of fundamental justice within the meaning of s. 7 of the Charter (para 49). Moreover, professionalsecrecy is generally seen as a “fundamental and substantive” rule of law (R v National Post, 2010 SCC 16, at para 39).

Because of its importance, the Court hasoften stated that professional secrecy should not be interfered with unless absolutely necessary given that it must remain as close to absolute as possible(Lavallee, at paras 36-37; McClure, at para 35; R v Brown, 2002 SCC 32, at para 27; Goodis v Ontario (Ministry of Correctional Services), 2006 SCC 31, atpara 15). [Emphasis added.] [54] The Supreme Court of Canada and the Federal Court of Appeal have both taken a very broad approach to the scope of solicitor-client privilege, by establishing in broadterms communications covered by the privilege.

Whether communications are made to the lawyer or to the lawyer’s employees, and whether the communications deal withmatters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtainlegal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality.

As stated by the Federal Court of Appeal in TelusCommunications Inc v Canada (Attorney General), 2004 FCA 380, per Linden JA, quoting the Supreme Court of Canada in Descôteaux: [6] In Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860 at 892-93, Lamer C.J. summarized the privilege in this way: In

summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communicationsare made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actualnature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purposeenjoys the privileges attached to confidentiality.

This confidentiality attaches to all communications made within the framework of the solicitor-clientrelationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established. [Emphasis added.] [55] The Supreme Court also recognizes that there is a presumption that facts connected with a solicitor-client relationship are presumed to be privileged absent evidence tothe contrary.

In Canada (National Revenue) v Thompson, 2016 SCC 21 at para 19, the Court states: [19] Although Descôteaux appears to limit the protection of the privilege to communications between lawyers and their clients, this Court has since rejected acategory-based approach to solicitor-client privilege that distinguishes between a fact and a communication for the purpose of establishing what is covered bythe privilege (Maranda, at para 30).

While it is true that not everything that happens in a solicitor-client relationship will be a privileged communication, factsconnected with that relationship (such as the bills of account at issue in Maranda) must be presumed to be privileged absent evidence to the contrary (Maranda,at paras 33-34; see also Foster Wheeler, at para 42).

This rule applies regardless of the context in which it is invoked (Foster Wheeler, at para 34; R v Gruenke, (SCC), [1991] 3 SCR 263, at p 289). [Emphasis added.] [56] In my respectful view, it is central to the role of the Federal Court that the Court itself is the judicial decider of what – if anything – obtained under national securitywarrants may be accessed by CSIS. This Court is and must be the gatekeeper in this respect. This is generally true, and is specifically true with respect to communicationsthat may contain solicitor-client privilege.

In my view, the centrality of this Court’s role flows from the above set-out case law. This Court’s role as the gatekeeper or‘firewall’ is necessary to protect solicitor-client privilege.

As Lavallee directs, access to what may be solicitor-client privileged material is to be sealed (point 4), and claimsof solicitor-client privilege are to be "“judicially decided”" (point 6), that is, as I see it, determined by judges, and specifically in this context, by the judges of the FederalCourt. [57] I also note, as per point 8 of Lavallee, that the "“Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect thedocuments beforehand,”" which is what in fact occurred in this case. [58] In addition to emphasizing the centrality of the issuing court’s role, Lavallee requires that in the event the privilege is pierced, it must be pierced in as minimal a way asthe circumstances permit.

As the Supreme Court of Canada put it in Maranda v Richer, 2003 SCC 67, there is a duty to minimize impairments of solicitor-client privilegewhen a search in a lawyer’s office is authorized and executed. The duty to minimize access applies to the interception of communications that is or that might be covered bysolicitor-client privilege: [14] The first problem that arises is the question of the existence and effect, in Canadian criminal law, of a duty to minimize impairments of solicitor-clientprivilege when a search in a lawyer’s office is authorized and executed.

Under the current law, as set out in the decisions of this Court, there is no doubt thatsuch a duty exists. It rests on the informant who applies for a search warrant, the authorizing judge and those responsible for executing it. [59] I would add a further element to be factored into national security warrants. Warrants issued by the Federal Court under

section 12 of the CSIS Act may only be issuedin relation to threats to the security of Canada. It may be obvious, but in my respectful view requests for such national security warrants should be considered anddetermined in a timely way consistent with the interest to be protected, namely the security of Canada.

The Service should not be left to wait unduly once this Court isseized with making a decision on an issue: investigation of threats to the security of Canada should not be frustrated by delay in the judicial decision-making processes. [60] To summarize, and in the factual context of the case at bar, I came to several conclusions. First, the Federal Court itself has the duty to protect solicitor-client privilege.It cannot be delegated to others, such as to either an amicus or a Referee no matter how experienced.

That said, it may be necessary for the Court to appoint an amicus orReferee, as I did in this case, charged with the duty to review communications that might potentially contain solicitor-client privilege, and report their views and relatedadvice to the Court.

But it is this Court that must make the judicial determination of what is solicitor-client privileged and what is not, and thus to determine what may beseen by the Service and or its counsel. [61] As a consequence, it is, and was in this case necessary for the Court, as well as for any amicus or Referee, to actually see communications to determine which, if any,may be covered by solicitor-client privilege. That said, as set out in the Lavallee guidelines, although the Attorney General may make submissions on the issue of privilege,the Attorney General should not be permitted to inspect the documents beforehand.

I take this to mean that while AG Canada, as counsel for the Service, may makesubmissions on the issues of solicitor-client privilege generally, the Attorney General may not see any actual communication that might contain the solicitor-client privilegeuntil the Federal Court judicially determines the communication is not protected by solicitor-client privilege. [62] In practice, then, where the Court determines a communication contains no solicitor-client privileged content, the Service and AG Canada will be permitted to see theentire communication.

That permission should be granted with as much dispatch as possible as noted above. However, where the Court determines that an intercept contains

communications that might be protected by solicitor-client privilege, the Service and its counsel may not be permitted to see the communication and instead may only see copies of the communication report with what may be solicitor-client privileged communications redacted.

Further, in making a judicial determination whether to allow the Service to see what might be a privileged solicitor-client communication, the Court should keep in mind the presumption set out by the Supreme Court of Canada that facts connected with solicitor-client relationship " “must be presumed to be privileged absent evidence to the contrary.” " [ 63 ] In the case at hand, the Court was also obliged to ensure that solicitor-client privilege was impaired in as minimal a way as possible.

The Court must recognize that jurisprudence surrounding CSIS warrants authorizes the Service to intercept and review solicitor-client communications collected under national security warrants, and does so regardless of whether |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| [ 64 ] However, Service review should not be automatic, least of all by a large number of Service personnel. Service review, as Lavallee dictates, must be as minimal as possible.

Evidently, someone has to prepare the communication report (a brief note prepared by an analyst who listened to the intercept) to decide if it might contain solicitor-client communication. In my view, that someone should be the first level analyst and possibly his or her superior. Once identified as containing possible solicitor- client communications, that communication may not be seen by higher level Service personnel. At that point, the Service must forward the report to and in effect seek the Court’s approval before the Service conducts any further review.

There is no reviewing role for the Attorney General of a communication that might contain solicitor-client privilege once it is determined the communication might contain solicitor-client communication. And as noted, given the important role in relation to Canada’s national security granted to the Service by Parliament, the Court must make its determinations in a timely manner.

This allows for lawfully intercepted non-privileged communications to be reviewed by those responsible for national security on as timely a basis as possible. [ 65 ] I should add that in cases of imminent danger of death or serious bodily harm, the Service’s Deputy Director of Operations may still use, retain or disclose a communication that might be a solicitor-client communication, but only to the extent strictly necessary to address that danger as provided by the following provision set out in the warrants themselves. This provision is in my respectful view clearly restricted to exceptional circumstances.

This provision is subject to its own terms, created and sanctioned by this Court over the years, which include the presence of danger of death or serious bodily harm, and the duty to report back to and seek further directions from the Federal Court: However, where the Deputy Director Operations or his designate determines that there is information that raises real concerns that an individual or group is in imminent danger of death or serious bodily harm, the Deputy Director Operations or his designate may use, retain or disclose the communication to the extent strictly necessary to address that danger.

The Service shall advise the Court, in writing, within 48 hours of such determination and shall seek directions from the Court for further retention or disclosure of the communication. D. Need to appoint amici and Referees [ 66 ] It was also obvious from the outset in this complex warrant application that the Court should engage an amicus , or a friend of the Court, to assist the Court in dealing with the solicitor-client issues, and to provide analysis of and recommendations concerning communications that might be covered by solicitor-client privilege.

Thus, I appointed Barbara McIsaac, Q.C. as amicus , a security-cleared, very experienced and capable lawyer who is also designated as a ‘special advocate’ under

section 87.1 of the Immigration and Refugee Protection Act, SC 2001, c 27 . Ms. McIsaac is also on a list of lawyers approved by the Federal Court to act as amicus in national security cases.

Her appointment was made shortly after I became seized of this matter. [ 67 ] In addition, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| I appointed two capable security-cleared lawyers experienced in criminal law to act as Referees, namely Howard Krongold and Ian Carter. While not special advocates, Messrs.

Krongold and Carter are also on the list of lawyers approved by the Federal Court to act as amici in national security cases. [ 68 ] All three of the amicus and Referees reside in the national capital region permitting timely access to the Court’s secure premises if necessary. The appointment of two Referees ensured that if one was not available, the other could step in and provide the Court with timely advice. In addition, if neither Referee could attend and provide assistance to the Court, amicus McIsaac could step in. I kept all three up to date in this matter through copies of various decisions and orders.

Each was able to review documents and discuss matters amongst themselves at the Court’s secure premises. E. Review of documents at the Federal Court’s secure premises [ 69 ] I also considered it best and directed that documents to be viewed by the amicus and or Referees must be examined at the Court’s secure facility and not, for example, at CSIS headquarters. In this connection, all three are officers of the Court and as such must always be seen to be acting under the authority of the Court and no one else. Examination at the Court’s secure premises also protects judicial independence.

In this manner, the Court best complies with its obligations under

section 27 of the CSIS Act to keep consideration of warrant applications secret, i.e., " “in private” " which I take to mean ‘secret’: Hearing of applications " " Audition des demandes " " 27 An application under

section 21, 21.1 or 23 for a warrant, an application under

section 22 or 22.1 for the renewal of a warrant or an application for an order under

section 22.3 shall be heard in private in accordance with regulations made under

section 28. " " 27 Une demande de mandat faite en vertu des articles 21, 21.1 ou 23, de renouvellement de mandat faite en vertu des articles 22 ou 22.1 ou d’ordonnance présentée au

titre de l’article 22.3 est entendue à huis clos en conformité avec les règlements d’application de l’article 28. " " [Emphasis added.] " " [Non souligné dans l’original.] F. Provincial bar not engaged regarding likely incidental intercept of lawyer’s communications [ 70 ] I did not consider it necessary to involve the provincial bar in the appointment of either the amicus or the Referees, a step referred to in the Lavallee guidelines.

I came to this conclusion because of the national security sensitivity of the issues at hand, the need to retain security cleared counsel for all three roles, and the very short time frames under which the Court was operating. Additional points of distinction include the fact that the warrants at issue in Lavallee involved the search of a lawyer’s office which was not the case with the 2018 Warrants, which dealt with intercepted communications in respect of which potential solicitor-client privileged intercepts would only arise as incidental intercepts .

Additionally, the warrant regime under review in Lavallee did not involve any national security element and did not engage the secrecy provisions of

section 27 of the CSIS Act . [ 71 ] In this connection, I note that Justice Downs of the Québec Superior Court in Rizzuto c R , 2018 QCCS 582 , after an extensive review, came to the same conclusion and likewise did not consider it necessary to involve the Barreau du Québec in relation to warrants issued under subsection 186(2) of the Criminal Code respecting intercepted communications at a law office.

Justice Downs concluded : [123] Even if the Court rejects a straightforward application of the principles in Lavallee to a wiretap authorization, it still remains relevant to ask whether an authorization to wiretap law offices should nevertheless provide for a mechanism whereby a representative of the Bar may oversee the various stages of the interceptions, as the applicants propose. [124] The Supreme Court has already ruled on the fact that s. 186(3) Cr. C. does not require the judge to impose terms and conditions.

Thus, the Supreme Court does not seem to consider that a wiretap authorization necessarily has to include a mechanism whereby representatives of the Bar ensure the protection of the privilege. [125] Moreover, it does not appear to the Court that the presence of a representative of the Bar is as sound in a case involving wiretapping as it is in the context of a physical search.

[126] First, the involvement of one or more representatives of the Bar is difficult to reconcile with the particularly sensitive and secret nature of such an investigation. The presence of one or more representatives of the Bar might interfere with the surreptitious and delicate nature of the operation. [127] Second, the Court does not believe that the presence of a representative of the Bar would have prevented the problems of execution that the applicants invoke.

For example, it is difficult to imagine how the involvement of a representative of the Bar would have made it possible for sessions 143-144 and 195, which had been classified as privileged, not to be released. [128] The problems the applicants raise, such as the unlocking of conversations classified as privileged by the judge, are problems of execution caused by some negligence, not by a defective authorization. [129] Finally, the Court rejects the proposal that a representative of the Bar would be in a better position than a judge to determine whether or not a conversation is privileged. [130] In any event, even if involving representatives of the Bar might be appropriate in some wiretap authorizations, the “firewalls” provided by the authorizing judge in this case were sufficient to ensure the protection of solicitor-client privilege. [Footnotes omitted.] G.

Sequestration and preservation Orders [ 72 ] From October |||| 2018 forward it became necessary to implement procedures to reflect the foregoing. At the same time, I was concerned that no communications in the possession of the Service that might contain solicitor-client privilege could be left without adequate protection from viewing by unauthorized personnel of CSIS and or AG Canada. [ 73 ] Therefore, as already noted, I issued a sequestration Order that took place immediately.

The sequestration Order covered all communications intercepted by the Service containing communications |||||||||||||||||||||||||||||| incidentally intercepted under previous warrants, pending determination by the Court as to whether their contents should be subject to review by the Court or the Applicant for potential solicitor-client privilege. [ 74 ] While I left in place the warrant condition discussed above which allowed the Service’s DDO to use such communications in the event of imminent danger of death or serious bodily harm, I sought submissions from the Service and its counsel (AG Canada) as well as from the amicus (at this time the Referees had not yet been appointed) as to procedures required to be implemented on a going forward basis. [ 75 ] Shortly thereafter, I ordered the preservation of all communications obtained under previous warrants |||||||||||||||||||||||||||| I directed Ms.

McIsaac, who in addition to being amicus , I also appointed a Referee, to review all Reports of communications involving |||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||| and to advise and provide all instances of any communications that might contain solicitor-client communications. Ms. McIsaac subsequently advised there were none that contained solicitor client privileged information.

With her report in hand I personally reviewed the communications and agreed with her conclusion, at which point I ordered the release from sequestration of all communications intercepted under previous warrants and authorized their use by the Service in the normal course of its investigations in accordance with the terms of the previous warrants. H.

Procedure adopted with respect to communications potentially containing solicitor-client privileged information implemented in the Fall of 2018 [ 76 ] Eventually, after several hearings, submissions, and related interim and further Orders, the following procedure was put in place with respect to intercepted communications obtained under the 2018 Warrants. When a CSIS analyst reviewed a communication obtained under the 2018 Warrants in which a lawyer or a person supporting the lawyer was involved, the analyst would prepare a written Draft Report.

For quality control purposes, his or her supervisor was authorized to review the Draft Report. [ 77 ] I authorized |||||||||||||||||||| of the Service’s DDO Secretariat to take responsibility for assembling binders containing the Draft Reports prepared by the analyst(s), which binders would then be forwarded weekly (or more frequently) directly to clerical staff with AG Canada. The intent was that the roles of both the DDO Secretariat and AG Canada were to be entirely administrative.

Such clerical staff would then send the binder directly to the Federal Court’s secure facility without review by any other Service or AG Canada personnel, i.e., neither anyone else in the Service or within AG Canada would see the contents of the binder. [ 78 ] At that point, the binder of Draft reports would be reviewed by a Referee or amicus at the Court’s secure facilities.

The amicus or Referees as the case may be, would then prepare a written submission advising the Court if any part of any Draft Report contained communications that might be covered by solicitor-client privilege. [ 79 ] The Court would then review the Draft Reports and determine if any communications were covered by solicitor-client privilege. Depending on this review, the Court would issue such instructions as might be required. [ 80 ] I wish to note the Court did not make these decisions alone; it always sought and obtained input from the amicus or Referees before making a decision one way or the other.

I did so because in the circumstances of this case the interposition of and input from the amicus or Referees provided an extra layer of protection for such communications. It was also relevant that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| [ 81 ] In practice, the binders arrived on Fridays. Usually, a Referee or the amicus would complete the review and prepare a report to the Court quickly, sometimes the same day, sometimes the following Monday.

On occasion the Court was able to review communications that might contain solicitor-client communications, review and consider the advice of the Referee or amicus , and if appropriate, release the Draft Reports to the Service and Attorney General’s counsel either with full or unrestricted access, on the same day, or the first business day the following week. [ 82 ] The procedures set out above were worked out over many days of hearings and many written filings and submissions.

I have not set out all of the many Orders and directions issued, nor will I summarize the various positions which, in the end, entailed remarkably few disagreements.

I do wish to thank AG Canada and the Service for their helpful and candid roles in developing and implementing the procedures that accomplished the various goals of protecting solicitor-client privilege, making decisions in a timely manner, and releasing non-privileged information to the Service. [ 83 ] I stress that prior to implementing this procedure, AG Canada and the Service had the right to and made submissions as to what system should be put in place, what constituted solicitor-client privilege, and other relevant matters.

AG Canada, the Service, the amicus and the Referees were given the opportunity to comment and work together to craft the workable procedural regime set out above, and for that I am very appreciative. [ 84 ] Importantly, except for Service analysts who prepared the Draft Reports and their supervisors, and the clerical staff of AG Canada who assembled, tabbed and delivered sealed binders of Draft Reports to the Court’s secure facility, nobody at either the Service or AG Canada had access to the Draft Reports unless and until the Draft Reports were released in whole or in part by Order of the Federal Court.

The role of intercepting and preparation of Draft Reports was unavoidable and in my view could not be further minimized; while I had initial doubts about the supervisor having access, I determined this was necessary for quality control purposes. [ 85

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