2018 FC 738, 2018 FC 738

[2019] 1 F.C.R. 567 CONF-1-18 2018 FC 738 In the Matter of an application by [***] for warrants pursuant to Sections 16 and 21 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23; And in the Matter of [***] Indexed As: X ( Re ) Federal Court, Noël J.—Ottawa [***] and [***]. Editor’s Note: This decision has been affirmed on appeal (CONF-4-18, 2018 FCA 207 ). Portions redacted by the Court are indicated by [***].

Security Intelligence — Application by Canadian Security Intelligence Service (Service or CSIS) for warrant having extraterritorial effect pursuant to Canadian Security Intelligence Service Act (CSIS Act), ss. 16 , 21 — Minister [***] (Minister) requesting assistance from Minister of Public Safety in collection of information, intelligence respecting capabilities, intentions, activities of foreign state; Minister’s request for assistance granted — Whether Federal Court having jurisdiction under CSIS Act, ss. 16 , 21 to issue warrant that has extraterritorial effect; more specifically, whether expression contained in CSIS Act, s. 16 “within Canada” or in French “dans les limites du Canada” prohibiting Service from obtaining warrant for specific investigative activities or whether those activities contradicting express geographical limitation found in CSIS Act, s. 16 — Different mandates, functions granted to Service by CSIS Act examined — Three-part analysis (textual, contextual, purposive) conducted to properly interpret expression “within Canada”, “dans les limites” found in CSIS Act, s. 16 — Textual analysis showing that Parliament’s choice of words explicitly limiting Service’s secondary function to collection of information, intelligence to Canada — Regarding contextual analysis, CSIS Act, ss. 12 , 21 modified to explicitly authorize Service to “perform its duties and functions … within or outside Canada” but no similar amendment made to CSIS Act, s. 16 — Legislative history of s. 16 also examined, showing Parliament’s intention to restrict foreign collection to within Canada — Therefore, “within Canada” limitation in s. 16 reflecting Parliament’s clear intention to ensure that collection of foreign information, intelligence, occurring solely in Canada — Restriction “within Canada” found at s. 16 always created foreign intelligence gap in that Service barred from collecting information outside Canada — By explicitly restricting foreign intelligence collection to Canada, Parliament confirmed its intention to limit risk of damaging diplomatic, political relationships with foreign states — Wording of s. 16 clear; expression “within Canada” restrictive — Application dismissed.

International Law — In application by Canadian Security Intelligence Service (Service or CSIS) for warrant having extraterritorial effect pursuant to Canadian Security Intelligence Service Act (CSIS Act), ss. 16, 21 , territorial scope of s. 16 having to be determined — Principles of international law considered in conducting s. 16 analysis — Canadian legislation presumed to conform with international law —

Interpretation presented by Attorney General of “within Canada” at s. 16 as having extraterritorial dimension undermining interstate relationships, could not be said to conform with principle of comity of nations — Lastly, explicitness of “within Canada” not rebutting presumption against extraterritoriality. This was an application by the Canadian Security Intelligence Service (the Service or CSIS) for a warrant having extraterritorial effect pursuant to sections 16 and 21 of the Canadian Security Intelligence Service Act (CSIS Act). Pursuant to the requirements of paragraph 16(3) (

a) of the CSIS Act , the Minister [***] (the Minister) personally requested, by letter addressed to the Minister of Public Safety, assistance in the collection of information and intelligence with respect to the capabilities, intentions and activities of a foreign state. Pursuant to paragraph 16(3)(b), the Minister of Public Safety provided personal consent to the Director of the Service to assist the Minister in the collection of information or intelligence relating to the capabilities, intentions and activities of the foreign state by the means described in the request from the Minister.

The issue was whether the Federal Court has jurisdiction under sections 16 and 21 of the CSIS Act to issue a warrant that has extraterritorial effect. More specifically, the question at issue was whether the expression contained in

section 16 of the CSIS Act “within Canada” or in French “ dans les limites du Canada ” prohibits the Service from obtaining a warrant for specific investigative activities or whether those activities contradict the express geographical limitation found in

section 16 of the CSIS Act. Held , the application should be dismissed. The Attorney General submitted that the Court has the jurisdiction under sections 16 and 21 of the CSIS Act to issue the warrant. It argued that the Court had to adopt a purposive

interpretation of

section 16 that supports the presence of an extraterritorial dimension when providing assistance from “within Canada”. The amicus asked the Court to consider that the position of the Attorney General was not supported by the wording of

section 16 of the CSIS Act and, accordingly, that the Court does not have jurisdiction to issue the warrant. It submitted that the wording is clear: the phrase “within Canada” is an express restriction. The principles of statutory

interpretation and, in particular, those specific to national security legislation were reviewed. Strict limitations and controls on intelligence gathering powers are guiding principles in the

interpretation of national security legislation and this obliges the Court to interpret intrusive powers cautiously. If the scope of the powers in the CSIS Act require expansion in order to provide assistance to the Minister of Foreign Affairs or National Defence, such change must be brought through legislative amendment, not by the Court broadly interpreting the CSIS Act. The different mandates and functions granted to the Service by the CSIS Act were examined.

Section 16, which was at issue in this case, enables CSIS to collect foreign related information of a political, economic and commercial nature that could benefit Canada’s interests. When the

section 16 authority is coupled with a

section 21 warrant obtained from this Court, CSIS may be authorized to use intrusive

techniques to collect “within Canada” information concerning foreign states or persons. A three-part analysis (textual, contextual, purposive) was conducted in order to properly interpret the expression “within Canada” found in

section 16 of the CSIS Act . The textual analysis showed that when guided by the dictionary

definitions of the words “within” and “ dans les limites ” found in

section 16, the grammatical and ordinary meaning is clear and unambiguous in both official languages. Parliament’s choice of words explicitly limits the Service’s secondary function to the collection of information and intelligence to Canada. Moreover, other conditions exist limiting the foreign intelligence function within specific and strict statutory parameters. The Court also situated the foreign intelligence function within its entire context, more specifically within the Service’s primary and secondary functions.

While rarely amended, the CSIS Act was modified in 2015 in which extraterritorial powers in its subsections 12(2) , 15(2) , and 21(3.1) were added. Sections 12 and 21 were modified to explicitly authorize the Service to “perform its duties and functions … within or outside Canada”, but no similar amendment was made to

section 16 . These amendments sought to clarify the extraterritorial powers in the CSIS Act. Parliament had a clear opportunity to amend the territorial restriction in

section 16 to provide an extraterritorial collection power but did not do so. When looking at the precise wording used in

section 12 “within or outside Canada” and in

section 2 “within or relating to Canada” in parallel with the wording used in

section 16 “within Canada”, Parliament’s clear intention to geographically limit the application or execution of

section 16 to within Canadian borders is shown. The legislative history of

section 16 with a specific emphasis on “within Canada” to illuminate the correct

interpretation of this expression was also examined. This examination demonstrated that Parliament preserved a steady and constant line of thought on the territorial scope of

section 16 and, while the removal of “within Canada” from

section 16 was recommended throughout the years, Parliament consistently reconfirmed its intention to restrict foreign collection to within Canada. Therefore, the “within Canada” limitation in

section 16 reflects the clear intention of Parliament to ensure that the collection of foreign information and intelligence occurs solely in Canada. The Attorney General’s argument that the Court should adopt a purposive

interpretation of

section 16 that supports the presence of an extraterritorial dimension when providing assistance “within Canada” was rejected. The Court also rejected its argument that advances in technology have made

section 16 obsolete or inoperable. By creating the Communication Security Establishment (CSE) as having a primary jurisdiction to collect foreign signals intelligence abroad, Parliament could not have intended the Service to have the same wide powers at

section 16. The “within Canada” restriction found at

section 16 has always created a foreign intelligence gap in that the Service was always barred from collecting information not in Canada. Protecting Canada’s reputation and diplomatic relationships have always been an important consideration in the context of national security legislation. By explicitly restricting foreign intelligence collection to Canada, Parliament confirmed its intention to limit the risk of damaging diplomatic and political relationships with foreign states. Important policy considerations to protect Canada’s international reputation remain rooted in the purpose of the CSIS Act .

When interpreting the CSIS Act, a judge must be deferential to its strict limitations. The wording of

section 16 is clear; the expression “within Canada” is restrictive. The Service’s assistance must be conducted within Canada. The principles of international law were considered to conduct the analysis of

section 16’s territorial scope. Unless clearly stated, Canadian legislation is presumed to conform with international law. The

interpretation presented by the Attorney General of “within Canada” at

section 16 undermined interstate relationships and could not be said to conform with the principle of comity of nations. Lastly, the explicitness of “within Canada” does not rebut the presumption against extraterritoriality. This finding was reinforced by the 2015 amendments to the CSIS Act . The correct

interpretation of the expression “within Canada” is “only in Canada”; anything else would amount to the Court legislatively rewriting this section. Thus, the Court does not have jurisdiction to issue the applied-for warrant. If

section 16 needs a broader scope to effectively assist the ministers, the Service should turn its eyes to Parliament, which is the appropriate forum to address the “gap” identified by the Attorney General. STATUTES AND REGULATIONS CITED Bill C-9,

An Act to establish the Canadian Security Intelligence Service, to enact

An Act respecting enforcement in relation to certain security and related offences and to amend certain Acts in consequence thereof or in relation thereto , 32nd Parl., 2nd Sess., 1984. Bill C-44, Protection of Canada from Terrorists Act , 41st Parl., 2nd Sess., 2015. Bill C-157,

an Act to establish the Canadian Security Intelligence Service Act, to enact

an Act respecting enforcement in relation to certain security and related offences and to amend certain Acts in consequence thereof of in relation thereto , 32nd Parl., 1st Sess., 1983. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23, ss. 2 “threats to the security of Canada”, 12, 12.1 13, 14, 15, 16, 17(1) (b), 21, 21.1(1), 56. Copyright Act , R.S.C., 1985, c. C-42. Criminal Code , R.S.C., 1985, c. C-46. Income Tax Act , R.S.C., 1985 (5th Supp.), c. 1. National Defence Act , R.S.C., 1985, c. N-5, ss. 273.64, 273.65 . National Security Act of 1947 , 61 Stat. 498. Security Offences Act, R.S.C., 1985, c. S-7. CASES CITED

APPLIED: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998) 36 O.R. (3d) 418; X (Re), 2016 FC 1105, [2017] 2F.C.R. 396; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292. CONSIDERED: Canadian Security Intelligence Service Act (Re), 2012 FC 1437, [2014] 2 F.C.R. 514; Canadian Security Intelligence Service Act (Re),2008 FC 301, [2008] 4 F.C.R. 230; X (Re), 2014 FCA 249, [2015] 1 F.C.R. 684, affg 2013 FC 1275, [2015] 1 F.C.R. 635; Hill v.William Hill (Park Lane) Ltd., [1949] A.C. 530 (H.L.); Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1S.C.R. 350; Ruby v.

Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; Society of Composers, Authors and Music Publishersin Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427. REFERRED TO: X (Re), 2017 FC 136, [2017] 4 F.C.R. 391; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Atco Gas &Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077, (1990), 76 D.L.R. (4th) 256; Théberge v.

Galerie d’Art du Petit Champlain inc., 2002 SCC 34,[2002] 2 S.C.R. 336; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601. AUTHORS CITED Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. First Report: Security andInformation (Ottawa: Supply and Services Canada, 1981. Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report: Freedom andSecurity Under the Law, Vols. 1–2. Ottawa: Supply and Services Canada, 1981. Canada.

Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Third Report: Certain Activitiesand the Question of Governmental Knowledge, Ottawa: Supply and Services Canada, 1981. Canada. Parliament. House of Commons. In Flux But Not In Crisis: A Report of the House of Commons Special Committee on TheReview of the Canadian Security Intelligence Act and the Security Offences Act, September 1990. Canada. Parliament. House of Commons. Minutes of Proceedings and Evidence of the Justice and Legal Affairs Committee, 32nd Parl.,2nd Sess., Issue No. 29 (29 May 1984). Canada. House of Commons.

Minutes of Proceedings and Evidence of the Special Committee on The Review of the CSIS Act and theSecurity Offences Act, Respecting: Future Business, 34th Parl., 2nd Sess., Issue No. 9 (16 January 1990). Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 32nd Parl.,2nd Sess., Issue No. 28 (24 May 1984). Canada. Parliament. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Public Safety andNational Security, Evidence, 41st Parl., 2nd Sess., Issue No. 40 (24 November 2014). Canada. Parliament. House of Commons.

Standing Committee on Public Safety and National Security, Evidence, 39th Parl., 1st Sess.,Issue No. 44 (May 15, 2007). Canada. Parliament. House of Commons. The Government’s Response to the Report of the Special Committee of the Senate on theCanadian Security Intelligence Service (January 1984). Canada. Parliament. Senate. Proceedings of the Special Committee of the Senate on the Canadian Security Intelligence Service, Thesubject-matter of Bill C-157: “Canadian Security Intelligence Act”, 3rd Proceeding, 32nd Parl., 1st Sess., Issue Nos. 3–11 (19 August–22 September 1983). Canada. Parliament. Senate.

Proceedings of the Standing Senate Committee on National Security and Defence, 39th Parl., 1st Sess., IssueNo. 13 (March 26, 2007). Canada. Parliament. Senate. Report of the Special Committee of the Senate on the Canadian Security Intelligence Service. DelicateBalance: A Security Intelligence Service in a Democratic Society. Ottawa: Supply and Services Canada (November 1983). Canada. Security Intelligence Review Committee. Amending the CSIS Act: Proposals for the Committee of the House of Commons.Ottawa: Minister of Supply and Services, 1989. Canada. Security Intelligence Review Committee.

Annual Report of 1988–1989. Ottawa: Minister of Supply and Services, 1989. Canada. Security Intelligence Review Committee. Annual Report of 2012–2013: Bridging the Gap. Ottawa: Public Works andGovernment Services Canada, 2013. Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “within”. Canadian Security Intelligence Service Publication, Intelligence and Policy: What Is Constant? What Is Changing? by Blair Seaborn,Commentary no 45, Ottawa: Public Safety and Emergency Preparedness, June 1994.

Côté, Pierre-André. The

Interpretation of Legislation in Canada , 4th ed. Toronto: Carswell, 2011. Le petit Robert de la langue française , Paris: Le Robert, 2006 “ dans ”, “ limite ”. Library of Parliament. Parliamentary Research Branch. Current Issue Review 84-27e. The Canadian Security Intelligence Service (revised January 24, 2000). Solicitor General of Canada. On Course: National Security for the 1990s:The Government’s Response to the Report of the House of Commons Special Committee on the Review of the Canadian Security Intelligence Act and the Security Offences Act , February 1991. Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. Sullivan, Ruth . Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: Lexis Nexis, 2014. APPLICATION by the Canadian Security Intelligence Service for a warrant having extraterritorial effect pursuant to sections 16 and 21 of the Canadian Security Intelligence Service Act . Application dismissed. APPEARANCES [***] and [***] for applicant Deputy Attorney General of Canada. Gordon Cameron as amicus curiae . SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Blake, Cassels & Graydon LLP , Ottawa, as amicus curiae .

The following are the reasons for judgment and judgment rendered in English by Noël J. : Table of Contents Paragraph I. General Overview 1 II. Facts 2 III. Issue 15 IV. A Brief Outline of the Submissions 16 V. Principles of Statutory

Interpretation 19 VI. Principles of Statutory

Interpretation Specific to National Security Legislation 22 A. The Canadian Security Intelligence Service’s Mandate and Function 27 B. Interpreting

Section 16 of the CSIS Act 30

(1) The Textual Meaning 31

(2) The Contextual Approach 48 (

a) The Scheme of the CSIS Act 49 (

b) The 2015 Amendments to the CSIS Act 55 (

c) Conditions in the Applied-for-Warrant 64 (

d) Legislative History and Extrinsic Evidence 67 (

i) The McDonald Commission (1981) 73 (ii) The Pitfield Report (1983) 76 (iii) Bill C-9: Act to establish the Canadian Security Intelligence Service Act (1984) 83 (iv) The Security Intelligence Review Committee Report (1989) 84 (

v) The 5-year Parliamentary Review following the enactment of the CSIS Act (1990) 86 (vi) The Government Response to the 5-year review Report (1991) 91 (vii) The Government’s Interest in a Foreign Intelligence Agency (2006– 2007) 94 (viii) The SIRC Annual Report 2012– 2013: Bridging the Gap 97 (ix) Bill C-44: Protection of Canada from Terrorists Act 98

(3) The Purposive Approach 101 (

a) Canada’s Material Interest in the Information to be [***] 107 (

b) The Perceived Foreign Intelligence Gap 112 (

c) The Changing Nature of [***] 117 (

d) Technological Advances: [***] 125

(4) The Presumption of Conformity with International Law 132 VII. [***] 150 A. [***] interpreting

section 16 of the CSIS Act ? 152 B. Should the Court consider [***] 155 C. Would the Service, [***] be acting “within Canada”? 168 VIII. CONCLUSION 172 IX. BIBLIOGRAPHY

I. GENERAL OVERVIEW [ 1 ] Can this Court issue a warrant authorizing the Canadian Security Intelligence Service (the Service or CSIS) to [***] pursuant to sections 16 and 21 of the Canadian Security Intelligence Service Act [R.S.C., 1985, c. C-23] (the CSIS Act)? The Service proposes to [***]. The Attorney General of Canada (the Attorney General) argues that the authority for such an operation is found in

section 16 of the CSIS Act and is contemplated by the “within Canada” requirement in the section. II. FACTS [ 2 ] On [***] pursuant to the requirements of paragraph 16(3) (

a) of the CSIS Act , the Minister [***] (the Minister) personally requested, by letter addressed to the Minister of Public Safety, assistance in the collection of information and intelligence with respect to the capabilities, intentions and activities of [***] (the foreign state). [ 3 ] On [***] pursuant to paragraph 16(3)(b), the Minister of Public Safety provided personal consent to the Director of the Service to assist the Minister in the collection of information or intelligence relating to the capabilities, intentions and activities of the foreign state by the means described in the request from the Minister. [ 4 ] On [***] the Service applied to the Federal Court for a warrant pursuant to sections 16 and 21 of the CSIS Act .

At the time I issued the warrants on [***] I was satisfied that the legislative prerequisite for

section 16 warrants were met. However, I was not prepared to authorize the Service to [***]. The only issue remaining to be determined in this judgment is whether this Court has jurisdiction under sections 16 and 21 of the CSIS Act, to issue a warrant that has extraterritorial effect. [ 5 ] The subjects of the warrant are [***]. [ 6 ] [***]. [ 7 ] Information and intelligence collected, through past

section 16 warrants, permitted the Service to provide the Minister with useful information on [***]. It also provided the Service with information concerning [***] of which [***] is deemed essential for the Service to be able to fulfill requests for assistance from the Minister. [ 8 ] [***]. [ 9 ] [***]. [ 10 ] [***]. [ 11 ] The warrant seeks to authorize the Service [***]. [ 12 ] To have a more in depth understanding of the facts, I reproduce the following exchange, in which the CSIS witness [***] (Transcript of file [***] at pages 16–18): Juge Noël: [***]. The witness: That’s right. … Juge Noël: [***].

The witness: That’s right. Juge Noël: [***]. The witness: Yes. Juge Noël: [***]. The witness: Yes. … The witness: [***]. [ 13 ] The Service advised that it may also seek technical and operational assistance from the Communication Security Establishment (CSE) [***]. [ 14 ] Due to the important and novel legal issues brought forward in this warrant application, I appointed Mr. Gordon Cameron as Amicus Curiae (the amicus ). III. ISSUE [ 15 ] The legal issue arising from the facts enumerated above require this Court to determine whether it has jurisdiction under

section 16 of the CSIS Act , to issue a warrant that has extraterritorial effect. More specifically, the question at issue is whether the expression contained in

section 16 of the CSIS Act “within Canada” or in French “ dans les limites du Canada ”, prohibits the Service from obtaining a warrant for investigative activities that [***]. Or put in another way, [***] contradict the express geographical

limitation found in

section 16 of the CSIS Act? IV. A BRIEF OUTLINE OF THE SUBMISSIONS [16] The Attorney General submits that the Court has the jurisdiction under sections 16 and 21 of the CSIS Act to issue the warrantbecause (1) [***] and (2) [***]. The Attorney General argues that the Court must adopt a purposive

interpretation of

section 16 thatsupports the presence of an extraterritorial dimension when providing assistance from “within Canada”. Accordingly, a strict and literalinterpretation would lead to absurd results since it would prevent the collection of any information with a foreign dimension, such as inthis case, where the Service seeks to [***]. Moreover, (3) the “within Canada” restriction was intended by Parliament to restrict theService [***]. [17] The amicus asked the Court to consider that the position of the Attorney General is not supported by the wording of

section 16 ofthe CSIS Act; accordingly the Court does not have jurisdiction to issue the warrant. The amicus submits that the wording is clear, thephrase “within Canada” is an express restriction, and should be understood as [***]. [18] As it will be explained in more detail below, in order to answer the question we must rely on the modern approach to statutoryinterpretation to determine the proper scope of the expression or phrase “within Canada”.

We must first meticulously read the words ofthe statute to ascertain their ordinary and grammatical senses, and further interpret them in the context of the CSIS Act as a whole.Second, we must illuminate the ordinary sense of the words by ascertaining Parliament’s intention by analyzing extrinsic sources such asparliamentary debates, commission reports, parliamentary committee reports, and oversight body recommendations as well asgovernment responses to these aforementioned reports. Once the correct

interpretation of the expression “within Canada” is determined,the facts shall be reviewed to address in greater depth the arguments submitted by counsel in light of the true meaning of the phrase. V. PRINCIPLES OF STATUTORY

INTERPRETATION [19] In Sullivan on the Construction of Statutes, Professor Ruth Sullivan set forth a three-pronged method to interpret statutes. First,the ordinary meaning approach, which requires the interpreter to use the literal text of the statute as the primary source. Second, thecontextual approach, originally defined by Elmer Driedger, redefined and endorsed by the Supreme Court of Canada in Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, requires the interpreter to look at the words of the statute in their entirecontext. Third, the purposive approach, which requires the interpreter to consider the practical idea behind the enactment of both theinterpreted

section and the statute as a whole while considering the real-world effects of the Court’s

interpretation (Ruth Sullivan,Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: Lexis Nexis, 2014) (Sullivan 2014), at paragraphs 2.1–2.5). [20] This Court has preferred the modern or contextual approach to statutory

interpretation of the CSIS Act (see X (Re), 2017 FC 136,[2017] 4 F.C.R. 391; X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396 (Associated Data); Canadian Security Intelligence Service Act (Re),2012 FC 1437, [2014] 2 F.C.R. 514; Canadian Security Intelligence Service Act (Re), 2008 FC 301, [2008] 4 F.C.R. 230 (CSIS (Re)2008)). Particularly, in X (Re), 2014 FCA 249, [2015] 1 F.C.R. 684, Dawson J.A. thoroughly summarized the current state of the lawconcerning statutory

interpretation [at paragraphs 68–71]: The preferred approach to statutory

interpretation has been expressed in the following terms by the Supreme Court (see: Rizzo& RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 21. See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56,[2001] 2 S.C.R. 867 at paragraph 29): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The Supreme Court restated this principle in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, atparagraph 10: It has been long established as a matter of statutory

interpretation that “the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:see 65302 British Columbia Ltd. V. Canada, (SCC), [1999] 3 S.C.R. 804, at para. 50. The

interpretation of a statutoryprovision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as awhole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in theinterpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of thewords plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in allcases the court must seek to read the provisions of

an Act as a harmonious whole. This formulation of the proper approach to statutory

interpretation was repeated in Celgene Corp. v. Canada (Attorney General), 2011SCC 1, [2011] 1 S.C.R. 3, at paragraph 21, and Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011SCC 25, [2011] 2 S.C.R. 306, at paragraph 27. Inherent in the contextual approach to statutory

interpretation is the understanding that the grammatical and ordinary sense of a provisionis not determinative of its meaning. A court must consider the total context of the provision to be interpreted “no matter how plain thedisposition may seem upon initial reading” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1S.C.R. 140, at paragraph 48). From the text and this wider context the interpreting court aims to ascertain legislative intent, “[t]he mostsignificant element of this analysis” (R. v.

Monney, (SCC), [1999] 1 S.C.R. 652, at paragraph 26). [21] Furthermore, as expressed by the Federal Court of Appeal, both Professor Côté and Professor Sullivan asserted that the ordinarymeaning approach by itself is no longer sufficient to adequately interpret statutes. Rather, the context is paramount and

interpretation islegitimate even if the ordinary meaning appears to be clear. In his book, The

Interpretation of Legislation in Canada, Professor Côtéindicates: … we want to note our profound disagreement with the idea that

interpretation is legitimate or appropriate only when the text is obscure.

This idea is based on the view, incorrect, that the meaning of a legal rule is identical to its literal legislative wording. The role of the interpreter is to establish the meaning of rules, not texts, with textual meaning at most the starting point of a process which necessarily takes into account extra-textual elements. The prima facie meaning of a text must be construed in the light of the other indicia relevant to

interpretation. A competent interpreter asks whether the rule so construed can be reconciled with the other rules and principles of the legal system: Is this meaning consistent with the history of the text? Do the consequences of construing the rule solely in terms of the literal rule justify revisiting the

interpretation and so on? [Footnote omitted.] (Pierre-André Côté, The

Interpretation of Legislation in Canada , 4th ed. (Toronto: Carswell, 2011) (PA Côté 2011), at pages 268–269.) VI. PRINCIPLES OF STATUTORY

INTERPRETATION SPECIFIC TO NATIONAL SECURITY LEGISLATION [ 22 ] Legislation that infringes on civil liberties, such as the CSIS Act must be interpreted cautiously to ensure minimal infringement of our most fundamental liberties, while ensuring that the rule of law is upheld. Accordingly, this requires courts to cautiously scrutinize and interpret the investigative powers that have been meticulously prescribed by Parliament with a view to ensure that security intelligence agencies are not authorized to overstep their mandate by Judges.

The Supreme Court has recognized that strict controls have been put in place in the CSIS Act to limit the extraordinary powers of the Service. As I explained in the above cited Associated Data [at paragraph 153]: First, the Federal Court of Appeal’s assessment of the purpose of the CSIS Act in X (Re) , 2014 FCA 249 , [2015] 1 F.C.R. 684 [cited above], at paragraph 86 , provides a good starting point to support the idea that strict controls are built into the scheme of the CSIS Act: …. The need for strict controls on the operations of security intelligence agencies has long been recognized. In Charkaoui v.

Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326, the Supreme Court considered the legislative purpose and guiding principles that attended the creation of CSIS.

At paragraph 22 of the reasons, the Court quoted from the Report of the Special Committee of the Senate on the Canadian Security Intelligence Service [ Delicate Balance: A Security Intelligence Service in a Democratic Society ] to the effect that: A credible and effective security intelligence agency does need to have some extraordinary powers, and does need to collect and analyze information in a way which may infringe on the civil liberties of some.

But it must also be strictly controlled, and have no more power than is necessary to accomplish its objectives, which must in turn not exceed what is necessary for the protection of the security of Canada. (Report of the Special Senate Committee, at para. 25) [ 23 ] In Associated Data , I also touched upon strict controls in the context of the primary mandate of CSIS, where I set out the legislative history of the CSIS Act and demonstrated that the primary mandate of CSIS, threat-related security intelligence collection ( sections 2 , 12 and 21 of the CSIS Act ), which I will expand upon in detail below, was to be strictly and expressly defined in order to restrain and deter illegal activities by members of the Service (see Associated Data , at paragraphs 120–158).

To support my conclusions, I cited the 1981 McDonald Commission, which was born out of an investigation into the illegal activities carried out by the former Intelligence Service of the RCMP. The McDonald Commission report recommended that the mandate of the Service be specific: 190. …. But in the absence of a clearly defined mandate, there is a natural tendency for a security intelligence agency, no matter how good its analytical capabilities, to err on the side of excessive intelligence-gathering, lest it be faulted by government for not having intelligence when asked.

Intelligence-gathering is not something that can be simply turned on and off like a tap. This is another reason for the importance of Parliament’s establishing a coherent, comprehensive mandate for security intelligence activities in this country. (Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report: Freedom and Security Under the Law , Vol. 1,

Part V (Ottawa: Supply and Services Canada, 1981) [McDonald Commission], at page 499, at paragraph 190.) [ 24 ] I continued my analysis in Associated Data , by highlighting the importance of legal parameters, which aim to prevent intelligence officers from acting illegally in the name of national security (see specifically paragraph 130 of my reasons). The McDonald Commission also cemented the importance of the rule of law in the sense that the mandate of the Service must not be interpreted broadly so as to include powers that are not found in the letter of the law. 21. ….

If those responsible for security believe that the law does not give them enough power to protect security effectively, they must try to persuade the law-makers, Parliament and the provincial legislatures, to change the law. They must not take the law into their own hands. This is a requirement of a liberal society.

It is, therefore, unacceptable to adopt the view, which we have found expressed within the R.C.M.P., that when the interests of national security are in conflict with the freedom of the individual, the balance to be struck is not for the court of law but for the executive. [Emphasis mine.] (Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report: Freedom and Security Under the Law , Vol. 1,

Part II (Ottawa: Supply and Services Canada, 1981), at page 45 [at paragraph 21].) [ 25 ] Even though my conclusions in Associated Data apply to the primary mandate and function of CSIS, that of security intelligence collection, my general finding concerning the importance of a circumscribed and strict mandate, is also pertinent to the secondary functions including

section 16, which is at issue before us. Strict limitations and controls on intelligence gathering powers are guiding principles in the

interpretation of national security legislation. This obliges the Court to interpret intrusive powers cautiously to avoid authorizing excessive intelligence gathering that is not prescribed by

an act of Parliament. If the scope of the powers in the CSIS Act requires expansion in order to provide assistance to the Minister of Foreign Affairs or National Defence, such change must be brought through legislative amendment, not by the Court broadly interpreting the CSIS Act. [ 26 ] Some may assert that primary and secondary functions of CSIS should not be compared in the same light since they have two distinct policy objectives. However, I am inclined, subject to a more in-depth analysis, to view the totality of the functions given to the

Service within the same interpretative parameters. After all,

an Act must be interpreted by looking at it as a whole, rather than as individual distinct watertight compartments. A. The Canadian Security Intelligence Service’s Mandate and Functions [ 27 ] I will first begin the discussion with a brief overview of the different mandates and functions granted to the Service by the CSIS Act . This will permit us to contextualize the foreign intelligence collection within the broader context of the Service’s mandate and various functions. Understanding the larger context in which this foreign intelligence collection operates, will be vital throughout the interpretative exercise. [ 28 ] The primary mandate of the Service found in

section 12 , is to collect, analyse and retain information and intelligence respecting “threats to the security of Canada” as defined in

section 2 . The Service also has secondary functions:

section 13 enables it to provide security assessments to various departments of the Government of Canada;

section 14 authorizes it to advise the Crown on matters related to the security of Canada;

section 15 allows it to conduct investigations in the course of activities falling under sections 13 and 15; and,

section 16, often called the foreign intelligence function, enables CSIS to collect foreign related information of a political, economic and commercial nature that could benefit Canada’s interests. [ 29 ] When the

section 16 authority is coupled with a

section 21 warrant obtained from this Court, CSIS may be authorized to use intrusive techniques to collect “within Canada”, information concerning foreign states or persons for the benefit of the Minister of Foreign Affairs or the Minister of National Defence. B. Interpreting

Section 16 of the CSIS Act [ 30 ] In order to properly interpret the expression “within Canada” found in

section 16 of the CSIS Act , we will conduct our analysis in three parts: first, according to the textual meaning of the legislative text; second, through the contextual approach; and third, according to the purposive approach with a particular emphasis on the practical consequences of the said

interpretation.

(1) The Textual Meaning [ 31 ] I have reproduced below the pertinent sections of the CSIS Act to facilitate the interpretative exercise: Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 Collection of information concerning foreign states and persons 16

(1) Subject to this section, the Service may, in relation to the defence of Canada or the conduct of the international affairs of Canada, assist the Minister of National Defence or the Minister of Foreign Affairs, within Canada , in the collection of information or intelligence relating to the capabilities, intentions or activities of (

a) any foreign state or group of foreign states; or (

b) any person other than (

i) a Canadian citizen, (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act , or (iii) a corporation incorporated by or under

an Act of Parliament or of the legislature of a province. Limitation

(2) The assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii). Personal consent of Ministers required

(3) The Service shall not perform its duties and functions under subsection (1) unless it does so (

a) on the personal request in writing of the Minister of National Defence or the Minister of Foreign Affairs; and (

b) with the personal consent in writing of the Minister. [I have underlined the specific wording in subsection 16(1).] [ 32 ] Although dictionary

definitions should not be considered determinative of the plain meaning of the statute, they may permit a judge to consider the plausible breadth of available meanings. However,

definitions are of little assistance if the words are removed from their context. As explained by Prof. Sullivan: Dictionaries also assist by suggesting the limits of plausible

interpretation. Although it is permissible to reject the ordinary meaning of a provision in favour of an

interpretation that promotes the purpose or avoids unacceptable consequences, under the plausible meaning rule the

interpretation that is adopted must normally be one that the words are capable of bearing. By fixing the outer limits of meaning, dictionary

definitions help to establish the range of plausible meanings a given word may bear. [Footnotes omitted.] (Ruth Sullivan, Statutory

Interpretation , 3rd ed. (Toronto: Irwin Law, 2016) (Sullivan 2016), at pages 65–66.) [ 33 ] Reproducing dictionary

definitions of “within” and “ dans les limites ” in

section 16, can only help us determine the scope of plausible

interpretations related to these words.

[ 34 ] The Canadian Oxford Dictionary defines “within” as: A preposition 1 inside; enclosed or contained by. 2 a not beyond or exceeding (within one’s means). 2 b not transgressing (within the law; within reason). 3 not further off than (within three miles of a station; within shouting distance …) … 5 lying within an area implied … “within the walls of London.” It is also defined as an adverb inside; to, at or on the inside; ( Canadian Oxford Dictionary , 2nd ed.

Toronto: Oxford University Press, 2004, sub verbo “within”.) [ 35 ] The French dictionary Le petit Robert de la langue française defines “ dans ” as a: “ préposition indiquant la situation d’une personne, d’une chose par rapport à ce qui la contient.

(1) Marque le lieu […] ”. [ 36 ] The same dictionary defines the noun “ limite ” as: Ligne qui sépare deux terrains ou territoires contigus. Bord, borne, confins, démarcations frontière, lisière. […] 2.

Partie extrême où se termine une surface, une étendue […] 4. Point que ne peut ou ne doit pas dépasser l’influence, l’action de [quelque chose]. ( Le petit Robert de la langue français , Paris: Le Robert, 2006, sub verbo “ dans ” and “ limite ”.) [ 37 ] The expression “within Canada” acts as both an adverb describing the action to assist, but also acts as a preposition that latches onto the noun “Canada”. The expression “within Canada” is an express geographical limitation of the Service’s assistance function. The preposition “within” refers to an action occurring inside a range or a boundary.

The French version explicitly evokes the concept of a geographical limitation because of the use of the noun “ les limites ” (literally the limits or the limitations). Limits are understood as lines that circumscribe, designate or mark the start and the end of a space. The preposition “within” and the noun “ les limites ” both clearly put forward the notion of circumscribing the Service’s assistance function to Canada’s physical and geographical boundaries. [ 38 ] Once the words of the said expression are interpreted, we must contemplate how this isolated

interpretation interacts with the remainder of the words in the section. We must consider “within Canada” in relation to the broader statutory context of the foreign intelligence function.

A literal analysis of the words of subsection 16(1) reveals six intelligible components that make up the foreign intelligence function of the Service which can be dissected as follows: the Service may, in relation to (1) the defence of Canada or the conduct of the international affairs of Canada (2) assist the Minister of National Defence or the Minister of Foreign Affairs, (3) within Canada, (4) in the collection of information or intelligence (5) relating to the capabilities, intentions or activities of (6) any foreign state or group of foreign states; or any person other than a Canadian citizen a permanent resident, or a corporation incorporated in Canada. [ 39 ] First, the Service is authorized to collect information in relation to the “defence of Canada or the conduct of the international affairs of Canada” or in French “ dans les domaines de la défense et de la conduite des affaires internationales du Canada ”.

These represent the respective portfolios of the Minister of National Defence and the Minister of Foreign Affairs. [ 40 ] Second, the Service has the mandate “to assist” the Minister of National Defence or the Minister of Foreign Affairs in relation to the conduct of international affairs or the defence of Canada.

The verb “to assist” or in French “ prêter son assistance ” refers to the action by the Service of lending assistance to the Ministers in relation to their respective portfolios, such as the conduct of international affairs or the defence of Canada. [ 41 ] Third, as mentioned above “within Canada” or in French “ dans les limites du Canada ” is an express geographical limitation of the Service’s assistance function. [ 42 ] Fourth, the Service assists the Ministers “in the collection of information or intelligence” or in French “ à la collecte d’informations ou de renseignements ”.

The Service is thus mandated to acquire and gather information or intelligence. [ 43 ] Fifth, the Service must collect information on “the capabilities, intentions or activities of” or “ sur les moyens, les intentions ou les activités d’un ”. These nouns help qualify what type of information or intelligence that the Service collects within Canada when assisting the Ministers. [ 44 ] Sixth, the Service can only collect information on any foreign state or group of foreign states; or any person other than a Canadian citizen, a permanent resident or a corporation incorporated in Canada.

Importantly, this ensures that the information collected must have a nexus with a foreign individual or entity, in the sense that the Service is barred from collecting foreign intelligence from Canadians, permanent residents or Canadian companies. [ 45 ] Mactavish J. interpreted subsection 16(2) in Canadian Security Intelligence Service ( Re ) , 2012 FC 1437 , [2014] 2 F.C.R. 514 [cited above], and concluded that

section 16 was intended to prevent Canadian citizens, permanent residents or corporations being named as targets of interception in

section 21 warrant applications [at paragraph 84]: Subsection 16(2) of the Canadian Security Intelligence Services Act clearly prohibits the provision of assistance by the Service in response to a ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought here.

As a consequence, I am satisfied that I do not have the jurisdiction to issue warrants authorizing the Service to intentionally intercept the communications of, or utilize other intrusive investigative techniques in relation to [a Canadian citizen, permanent resident or corporation] […]. [ 46 ] When guided by the dictionary

definitions of the words “within” and “ dans les limites ”, the grammatical and ordinary meaning is clear and unambiguous in both official languages. First, Parliament’s choice of words explicitly limits the Service’s secondary function to the collection of information and intelligence to Canada. Second, the collection must assist the respective Ministers in accomplishing their duties in relation to the defence of Canada or the conduct of international affairs.

Third, the type of information and intelligence collected must concern the capabilities, intentions or activities of foreign states or groups of foreign states or any person except Canadian citizens, permanent residents or corporations incorporated in Canada. The aforementioned conditions limit the foreign intelligence

function within specific and strict statutory parameters. [47] The grammatical or ordinary meaning of the text should be given significant weight especially when it is clear and unambiguous.However, even though the grammatical or ordinary meaning of “within Canada” speaks clearly and loudly, it is important for the Courtto situate the foreign intelligence function within its entire context, more specifically within the Service’s primary and secondaryfunctions.

(2) The Contextual Approach [48] Even though the literal text may seem unambiguous, the literal meaning must not conflict with the larger statutory context(Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paragraph 10). The contextual approach requires theinterpreter to look at the grammatical and ordinary meaning of the words of the text harmoniously with the scheme of the act, the objectof the act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 [cited above]).

Aswill be seen, recent legislative amendments can help illuminate the context of the statute in the sense that it can illustrate whatParliament intended presumptively to remain unchanged. (

a) The Scheme of the CSIS Act [49] As discussed above, in order to comprehensively understand CSIS’ foreign intelligence function, it is important to look at theCSIS Act as a whole. To that effect, I have reproduced and emphasized in underline/soulignés, the sections constituting the Service’sPrimary mandate, which includes the definition of “threats to the security of Canada” in

section 2, as well as sections 12, 12.1 and 21: Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23

Definitions 2 In this Act, … 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 ofsuch espionage or sabotage, (

b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine ordeceptive 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 orproperty 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 oroverthrow 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 inparagraphs (

a) to (d). (menaces envers la sécurité du Canada) … Collection, analysis and retention 12

(1) The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retaininformation and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security ofCanada and, in relation thereto, shall report to and advise the Government of Canada. No territorial limit

(2) For greater certainty, the Service may perform its duties and functions under subsection (1) within or outside Canada. Measures to reduce threats to the security of Canada 12.1

(1) If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service maytake measures, within or outside Canada, to reduce the threat. … Judicial Control Application for warrant 21

(1) If the Director or any employee designated by the Minister for the purpose believes, on reasonable grounds, that a warrant underthis

section is required to enable the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform itsduties and functions under

section 16, the Director or employee may, after having obtained the Minister’s approval, make an applicationin accordance with subsection (2) to a judge for a warrant under this section.

… Issuance of warrant (3) … Activities outside Canada

(3.1) Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada. [ 50 ] It is important to situate “within Canada” in the broader context of the CSIS Act .

Section 12 sets out the Service’s primary mandate and function, which is to investigate threats to the security of Canada, and

section 2 complements

section 12 by defining “threats to the security of Canada”. Read together these two sections make up the primary mandate of the Service. It is noteworthy that

section 2 , subsections 12 (2), 12.1(1) and 21(3.1), explicitly define and provide the Service with the ability to assume its primary mandate to investigate threats outside of Canada. [ 51 ] In Associated Data , I detailed and distinguished the primary and secondary functions of the Service, I repeat my reasons here in the following paragraphs [159–160]:

Part I of the Act addresses the normal administrative set-up of a civilian agency, and also establishes and qualifies the duties and functions of the Service. The “primary function”, to investigate threats to the security of Canada, is defined as such in the Pitfield Report and is established at subsection 12(1) (subsection 12(1) was originally subsection 14(1) in its predecessor, Bill C-157, and then

section 12 before recent amendments). The Pitfield Report refers to subsection 12(1) as the “principal activity of any security intelligence service agency”, such principal activity being “investigation, analysis and the retention of information and intelligence on security threats”. (Canada. Parliament. Senate. Report of the Special Committee of the Senate on the Canadian Security Intelligence Service, Delicate Balance: A Security Intelligence Service in a Democratic Society . Ottawa: Supply and Services Canada (November 1983) (Chair: P.M Pitfield), at page11, paragraph 28.) This “primary function” is complemented by the definition of “threats to the security of Canada” elaborated in

section 2 . Taken together, subsection 12(1) and

section 2 form the core of the CSIS’s essential function: investigate threats to the security of Canada. [ 52 ]

Section 21 provides CSIS with the possibility of advancing investigations through the issuance of warrants when intrusive methods are necessary. This Court has the authority to issue warrants when all the requirements of

section 21 are fulfilled. As I stated in Associated Data , at paragraphs 161–163: When conventional means of investigation do not allow to meaningfully advance an investigation, subsections 21(1), 21(2), and specifically paragraph 21(2)b) (further referred to simply as “

section 21 ”) come into play to allow the CSIS to apply for warrants before the Court. The application must show, on reasonable grounds, that the information sought is factually related to a threat to the security of Canada as referred to in subsections 21(1), 12(1), and as defined in

section 2 . The affidavit in support of the warrant application and the examination that follows at the hearing are determinative for the designated judge charged with deciding whether to issue the warrant or not. As the Pitfield Report rightly noted when discussing this primary function, the definition of the “threats to the security of Canada” at

section 2 of the Act: …. constitutes the basic limit on the agency’s freedom of action. It will establish for the CSIS, its director, and employees the fundamental standard for their activities. It will enter crucially into judicial determination of whether a particular intrusive investigative technique can be used. [Emphasis added by Justice Noël.] Canada. Parliament. Senate. Report of the Special Committee of the Senate on the Canadian Security Intelligence Service. Delicate Balance: A Security Intelligence Service in a Democratic Society . Ottawa: Supply and Services Canada (November 1983) (Chair: P.M Pitfield), at page 12, paragraph 31.)

Section 21 supports advancing an investigation when conventional means are not sufficient and intrusive methods are necessary. The role of the Court, in such cases, is to ensure all requirements of the legislation are respected in the application for warrants and that the measures sought are justified in light of the facts put forward.

Section 21 does not create a separate scheme wholly distinct from the primary function of CSIS as described in subsection 12(1); rather,

section 21 complements the primary function of “investigating threats” by establishing procedural requirements when an application for warrants is sought. As it can be read in

section 21 , an application for warrants must contain: the relevant facts; an explanation that other investigative methods were tried, but had either failed or are unlikely to succeed; the type of information to be intercepted; the identity of the target, if known, or classes of proposed targeted persons; a general description of the place where the warrant is to be executed; the proposed duration of the warrant; and any previous application for a warrant made by CSIS in relation to a person identified in the affidavit. [ 53 ] In Associated Data , I further detailed the secondary functions of the Service [at paragraphs 164–166]: …. The secondary functions of the CSIS are also detailed in

Part I. They involve activities such as: providing security assessments to departments of the Government of Canada, to provinces, and to police forces (subsections 13(1) and 13(2) respectively); allowing the CSIS to enter into arrangements with foreign partners (subsection 13(3)); and providing advice to ministers of the Crown on matters related to the security of Canada (section 14). Notably,

section 16, also included in the secondary functions, allows the collection of information concerning foreign states or persons in relation to the defence of Canada or to the conduct of international affairs. Canadian citizens, permanent residents, and Canadian or provincial corporations are excluded from

section 16’s ambit. …

As it can be read in

section 21 , intrusive warrants may be sought for the purposes of

section 16. But, contrary to warrants sought for the purposes of subsection 12(1) (relating to threats to the security of Canada at

section 2), warrants sought through the application of

section 16 in conjunction with

section 21 requirements do not have to show a nexus to threats to the security of Canada. Rather, the alternate safeguard in place is that

section 16 warrants may only be sought after either the Minister of Defence or the Minister of Foreign Affairs personally requests permission to do so from the Minister of Public Safety and Emergency Preparedness; who must agree. [ 54 ] A comparison of the Service’s primary and secondary functions provides a couple of salient insights.

Section 12 gives the Service a security intelligence mandate to collect information on threats to the security of Canada; and, investigations can be conducted in a defensive or an offensive way, which engages Canada’s right to defend itself from threats from within and outside of Canada. Contrary to

section 12 ,

section 16 gives the Service a non-threat foreign intelligence collection mandate concerning the capabilities, intentions or activities of a foreign state, group of foreign states, persons other than Canadian citizens, permanent residents and corporations incorporated in Canada. Moreover,

section 16 has an assistance or policy oriented goal, rather than a threat related one, in the sense that it looks to collect political, economic, commercial and military intelligence to assist the Ministers in making informed decisions in their respective portfolios (see paragraph 2 of these reasons, above). We shall now review the relevance of the 2015 amendments to the CSIS Act . (

b) The 2015 Amendments to the CSIS Act [ 55 ] The CSIS Act has rarely been amended since receiving Royal Assent in 1984. On April 23, 2015, Bill C-44, titled the Protection of Canada from Terrorists Act [41st. Parl., 2nd Sess., 2015] (Bill C-44) added extraterritorial powers in subsections 12(2) , 15(2) , and 21(3.1) of the CSIS Act. Bill C-44 modified sections 12 and 21 to explicitly authorize the Service to “perform its duties and functions … within or outside Canada”, but no similar amendment was made for

section 16. In addition, Bill C-44 also modified

section 21 to authorize the Court to issue warrants that could potentially violate the laws of foreign jurisdiction only in

section 12-type investigations. [ 56 ] I have reproduced and identified in underline/ soulignés the amendments as between the pre- and post-2015 versions of sections 12 and 21 of the CSIS Act: Pre-2015 Post 2015 Collection, analysis and retention Collection, analysis and retention 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. 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. No territorial limit

(2) For greater certainty, the Service may perform its duties and functions under subsection (1) within or outside Canada Measures to reduce threats to the security of Canada 12.1

(1) If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service may take measures, within or outside Canada , to reduce the threat. … … Judicial control Judicial Control Application for warrant Application for warrant 21

(1) Where 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 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 approval of the Minister, make an application in accordance with subsection (2) to a judge for a warrant under this section. 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. … … Issuance of warrant Issuance of warrant (3) … (3) … Activities outside Canada

(3.1) Without regard to any other law, including that of any foreign state , a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada. [Emphasis added.] [ 57 ] When interpreting statutory provisions, it is necessary to presume that every word in a statute is intended to have meaning and “a

[ 57 ] When interpreting statutory provisions, it is necessary to presume that every word in a statute is intended to have meaning and “a specific role to play in advancing the legislative purpose” (Sullivan 2014, above, at paragraph 8.23). Moreover, “[w]hen the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before” and that the phrase “add[s] something which would not be there if the words were left out” ( Hill v.

William Hill (Park Lane) Ltd. , [1949] A.C. 530 (H.L.), at page 546, as cited in Sullivan 2014, above, at paragraph 8.23). The principle of the consistent expression presumes that Parliament “uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings” (Sullivan 2014, above, at paragraph 8.32). Finally, it is presumed that Parliament knows all the circumstances surrounding the adoption of new legislation ( Atco Gas & Pipelines Ltd. v.

Alberta ( Energy & Utilities Board) , 2006 SCC 4 , [2006] 1 S.C.R. 140, at paragraph 59 ). [ 58 ] As attested by the Honourable Minister Blaney, former Minister of Public Safety, when he appeared before the standing committee on Public Safety and National Security, Bill C-44 was in part a response to two Federal Court of Canada decisions: Re CSIS Act , 2008 (Blanchard J.); and, X ( Re ) , 2013 FC 1275 , [2015] 1 F.C.R. 635 (Mosley J.) ( X (Re) 2013 ), and the appeal in X (Re) 2014 (Dawson J.A.). The Bill aimed in part to clarify the extraterritorial powers of the Service.

Minister Blaney explained: Turning to the second court decision affecting CSIS’ mandate, the Federal Court of Appeal recently unsealed its July 2014 decision related to the government’s appeal of Justice Mosley’s decision that was issued by the Federal Court last year. The protection of Canada from terrorists act confirms CSIS’ authority to conduct investigations outside of Canada related to the threats, to the security of Canada, and security assessments. This is not a big thing. CSIS can operate within and outside Canada.

That’s fairly simple. … CSIS has always had the power to undertake investigative activities abroad. The Federal Court of Appeal acknowledged this fact when it found that

section 12 of the Canadian Security Intelligence Service Act in no way suggests geographic limitations for CSIS’ activities. However, the power of CSIS to conduct activities abroad in order to investigate threats to Canada’s security is not indicated as clearly as it should be in the Canadian Security Intelligence Service Act .

It is therefore important that Parliament and that elected representatives of the people clarify this matter. [Emphasis mine.] (House of Commons, Standing Committee on Public Safety and National Security, Evidence , 41st Parl., 2nd Sess., No. 40 (24 November 2014), at page 2 (Chairperson: Daryl Kramp).) [ 59 ] As I stated earlier, there is an important distinction between the security intelligence function and the foreign intelligence function. When interpreting legislation, we are asked to look at the words of the statute in light of their entire context.

When reading the foreign intelligence and security intelligence functions together, it is evident that both functions have different geographical parameters as to where the collection activities can occur. As the Minister explained, Bill C-44 sought to clarify the extraterritorial powers in the CSIS Act . Parliament had a clear opportunity to amend the territorial restriction in

section 16 to provide an extraterritorial collection power, but did not do so. [ 60 ] Prior to the 2015 amendments, the wording of

section 12 was silent as to the territorial scope of the security intelligence collection powers, while

section 16 was explicit as to its territorial scope. In the post-2015 amendments, in subsections 12.1(1), 15(2), 21(1) and 21.1(1), Parliament explicitly gave the Service the power to perform its duties and functions “within or outside Canada” or “ même à l’extérieur du Canada ”. While on the other hand,

section 16 remained the same by restricting the collection of information and intelligence to “within Canada” or “ dans les limites du Canada ”. [ 61 ] As I emphasized earlier,

section 12 must be read concurrently with

section 2, which defines “threats to the security of Canada”. Subsection (

b) defines threats as foreign influenced activities “within or relating to Canada” or “ qui touchent le Canada où s’y déroulent ”.

Section (

c) also defines threats as activities in support of violence to achieve a political, religious or ideological objective “within or relating to Canada” or—“ qui touchent le Canada ou s’y déroulent ”. [ 62 ] When looking at the precise wording used in

section 12 “within or outside Canada” and in

section 2 “within or relating to Canada” in parallel with the wording used in

section 16 “within Canada”, I cannot help but see Parliament’s clear intention to geographically limit the application or execution of

section 16 to within Canadian borders. First, there is an express textual difference between the geographic scope of sections 12 , 21 and 16. Therefore, Parliament clearly intended that there be a meaningful difference between “within or outside Canada” found in subsections 12(2) and 21(1) with “within Canada” found in

section 16 or else it would have used a consistent expression. After all, when I am asked to interpret legislation, I presume that every word in a statute is intended to have meaning and purpose. I also assume that Parliament desires consistency when meticulously choosing words to express itself. When looking at the CSIS Act as a whole, I cannot ignore the significance of contradictory and opposing words in the same legislative scheme. I should also add that when Parliament amends existing legislation, it has the opportunity to clarify what it thinks is unclear and ambiguous.

If Parliament clarifies and changes the text of a specific section, but omits to do the same in another—a judge can only presume that it did so having the full knowledge of the consequence of their omission. [ 63 ] In the case before us, the 2015 amendments clearly give the Service the mandate to conduct its security intelligence activities within or outside Canada. The fact that the government had the opportunity to consider such amendments to the CSIS Act, to extend the geographic scope to

section 16 foreign intelligence “within or outside Canada”, is a very telling indicator that Parliament did not intend to extend

section 16 foreign intelligence collection to outside Canada. Not to repeat myself, but the fact that Parliament decided to enlarge and clarify the security intelligence powers, but did not do so for the foreign intelligence powers speaks volumes. Parliament speaks in one voice and writes with one pen—its volition cannot be understood to mean similar things when clearly choosing different words. (

c) Conditions in the Applied-for-Warrant [ 64 ] The applied-for-warrant is subject to the following conditions: CONDITION 1

Information about Canadians and any person referred to in paragraph 1 obtained pursuant to this warrant shall be destroyed unless the information

a) relates to activities which would constitute a threat to the security of Canada as defined in

section 2 of the Act ;

b) could be used in the prevention, investigation or prosecution of an alleged indictable offence; or [Emphasis mine.] [ 65 ] The importance of strict limitations is even more apparent when recognizing that

section 16 provides the Service, depending on the warrant conditions, with the possibility to incidentally collect and retain as a result of Condition 1, information which could be used in the furtherance of its primary threat-related mandate without a new warrant. Therefore, the Court must be cognizant that information obtained under the foreign intelligence function can subsequently be transferred internally to supplement a security intelligence investigation. [ 66 ] Consequently, when conducting

section 16 investigations, the Service can only collect on Canadian soil and cannot collect on a Canadian citizen, a permanent resident of Canada, or a corporation incorporated by or under

an Act of Parliament or the legislature of a province. Parliament did not intend

section 16 powers to be exercised without limits. Thus, critical restrictions placed by Parliament on CSIS must be respected and given deference during the interpretative exercise. Again, the Court’s duty to uphold the rule of law calls for a cautious

interpretation of internal legislative controls found in the CSIS Act , since these circumscribe the Service’s power and are meant to bar the Service from excessive intelligence gathering. Having concluded our schematic overview of the CSIS Act, I find it appropriate to review the legislative history of the CSIS Act through extrinsic evidence, starting from its beginnings. (

d) Legislative History and Extrinsic Evidence [ 67 ] To continue the contextual analysis, the plain meaning of the expression “within Canada” should also be interpreted in conjunction with the intention of Parliament. To find this intention both Professors Ruth Sullivan and Pierre-André Côté agree that extrinsic materials are useful.

However, the Court must determine what weight and authority the interpreter should attribute to these various sources (Sullivan 2014, above, at paragraphs 23.15–23.17; PA Côté 2011, above, at page 47). [ 68 ] In Associated Data , extrinsic evidence was a fundamental interpretative tool that helped me ascertain the legislative intent surrounding the primary mandate of CSIS. As I explained [at paragraphs 115–116]: It is well recognized that legislative histories are useful extrinsic aids to ascertain the legislator’s intent and the purpose of

an Act. When analysing legislative history materials, Prof. Sullivan specifies that, generally “[i]n a Parliamentary system of government, there is likely to be a relatively small number of individuals whose intentions largely control the content of legislative initiatives.

In the case of statutes, this would include the recommending Minister, who will reflect the views of Cabinet; it would also include the Parliamentarians who comprise a majority of the Committee that reviews the bill.” Thus, the statements given by those relevant persons are much more useful than simple comments or debates from other Parliamentarians.

The Supreme Court of Canada regularly relies on legislative history materials to ascertain the objectives of schemes created by statutes. (Sullivan 2014, above, at paragraphs 23.67, 23.81, 23.83.) (PA Côté 2011, above, at page 47.) Although commission reports do not represent the voice of sponsoring ministers or involved Parliamentarians directly, both Prof. Sullivan and Prof. Côté clearly opine that commission reports are useful and admissible. In fact, they regard commission reports as particularly helpful to the

interpretation process and note that they were the first type of extrinsic supports to receive affirmation from the Courts. Prof. Sullivan explains: …. Often legislation is preceded by the report of a law reform commission or similar body that has investigated a condition or problem and recommended a legislative response. Such reports typically review the research carried out by the commission, state its findings, describe the policy options explored and set out recommendations. The work is non-partisan and the conclusions are carefully reasoned.

These features potentially make reports more reliable than the materials found in Hansard . In addition, commission reports often play a clear role in the preparation of legislation, in some cases a major role which potentially enhances their relevance and significance. Not surprisingly, then, commission reports were the first type of legislative history to be admitted by the courts in statutory

interpretation cases. (Sullivan 2014, above, at paragraph 23.68.) (PA Côté 2011, above, at pages 455–456.) [ 69 ] The Attorney General submits that parliamentary history shows firstly that the enactment of

section 16 was sought to improve the Government’s foreign intelligence capabilities within Canada’s international boundaries. Secondly, the expression “within Canada” was intended to prevent officers from engaging in offensive or covert collection within the territory of another state; and, it cannot be discerned that

section 16 was meant to prohibit the collection of intelligence outside Canada. [ 70 ] The amicus tried but was unable to find a firm indication of parliamentary intent behind the “within Canada” restriction on either side of the argument, but was able to apprise the Court that there was a concern not to establish a controversially aggressive “CIA [Central Intelligence Agency]-like” agency with a mandate for surveillance abroad. Additionally, he could not find the express authority for the proposition put forward by the Attorney General, specifically that the wording of

section 16 ensured “that in performing its duties and function under

section 16, the Service was not engaged in offensive or covert collection activities directly within the territory of a foreign state”. However, the amicus submits that this makes the point that Parliament would not, without express wording, have authorized the Service to [***] scandal-provoking and international-relation damaging behaviour the government intended to avoid. [ 71 ] What the Attorney General is seeking, [***]. The Attorney General is asking the Court, in the context of a

section 16 assistance request from the Minister [***] to issue a warrant permitting it to conduct [***]. [ 72 ] I will now examine the legislative history of

section 16 with a specific emphasis on “within Canada” to illuminate the correct

interpretation of this expression. Once a clear Parliamentary intent is ascertained, I will ensure that the expression “within Canada” does not conflict with the purpose of

section 16 as enacted by Parliament.

(

i) The McDonald Commission (1981) [ 73 ] The 1981 McDonald Commission set the stage for a future national security agency completely separate from the RCMP. In its report, the McDonald Commission suggested further study was needed on the possible creation of a foreign intelligence agency, but refused to make any formal recommendations. It is pertinent, however, to underline that the creation of a security intelligence agency with extraterritorial powers was considered. The Commission unofficially endorsed the view that the operations of a security intelligence agency outside Canada could be permissible in rare circumstances mandated by the law. 14. Now, turning to the third dimension —

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