2013 FC 1275, 2013 FC 1275

CSIS-30-08 2013 FC 1275 IN THE MATTER OF an application by [***] for a warrant pursuant to Sections 12 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, Mosley J.—Ottawa, September 4, October 23 and 24; November 22, 2013. *Editor’s Note: This decision has been affirmed on appeal (A-145-14, 2014 FCA 249 ). The reasons for judgment, handed down July 31, 2014, are published at [2015] 1 F.C.R. 684. Portions deleted by order of the Court are indicated by [***].

Security Intelligence — Redacted amended further reasons for order clarifying scope, limits of reasons for order issued May 4, 2009 (CSIS-30-08 application) — May 2009 reasons authorizing issuance of warrant to intercept foreign telecommunications from within Canada — Similar warrants (CSIS-30-08 or 30-08 warrants) issued since under Canadian Security Intelligence Service Act (CSIS Act or Act), ss. 12 , 21 — No reference made to tasking allied foreign agencies with collection of telecommunications intercepts in CSIS-30-08 application — Nevertheless, attempts made to do just that despite fact Court, in previous application (CSIS-10-07 application), determining not having jurisdiction to issue extraterritorial warrant — Whether Canadian Security Intelligence Service (CSIS) meeting duty of full, frank disclosure when applying for 30-08 warrants; what is legal authority of CSIS, through Communications Security Establishment Canada (CSEC), to seek assistance from foreign partners to intercept telecommunications outside of Canada — CSIS having to present all material facts in warrant application pursuant to CSIS Act, ss. 12 , 21 — Adopting narrow conception of relevance tantamount to suggesting that Court should be kept in dark about certain matters, including history of attempts to have Court authorize collection of security intelligence abroad, implications of sharing information with foreign partners — CSIS strategically omitting information in 30-08 applications about intention to seek assistance of foreign partners — Court led to believe that all interception activity taking place in or under control of Canada — Material omission for CSIS not to explain new position that warrant authority not required to task assets of allied nations to conduct foreign interceptions — 30-08 warrant not authorizing interception of communications of Canadian by foreign service on behalf of CSIS directly or through assistance of CSEC — Act, s. 12 not giving CSIS exemption from operation of Criminal Code , Canadian Charter of Rights and Freedoms — Not authorizing CSIS to invoke interception capabilities of foreign agencies — Parliament not authorizing CSIS to violate international law, sovereignty of foreign nations — Principle of comity between nations ending where clear violations of international law, human rights beginning — CSIS, CSEC officials knew tasking allied nations breach of international law — Exercise of Court’s warrant issuing authority used as cover for unauthorized activities — Parliament not authorizing CSIS to engage second-party allies to intercept communications of Canadians under s. 12 — Not contemplating that CSEC can extend such assistance to CSIS solely under s. 12 — Court’s jurisdiction to issue warrant for domestic interception of foreign telecommunications not extending to interception by foreign agencies of communications of Canadian persons travelling abroad.

Federal Court Jurisdiction — Redacted further reasons for order clarifying scope, limits of reasons for order issued May 4, 2009 authorizing issuance of warrant to intercept foreign telecommunications from within Canada — Court having jurisdiction to issue warrant under Canadian Security Intelligence Service Act, s. 21 for domestic interception of foreign telecommunications — That jurisdiction not extending to authority to empower Canadian Security Intelligence Service to request that foreign agencies intercept communications of Canadians travelling abroad either directly or through assistance of Communications Security Establishment Canada.

Criminal Justice — Evidence — Duty of full and frank disclosure — Redacted further reasons for order clarifying scope, limits of reasons for order issued May 4, 2009 (CSIS-30-08 application) authorizing issuance of warrant to intercept foreign telecommunications from within Canada —Similar warrants (CSIS-30-08 or 30-08 warrants) issued since under Canadian Security Intelligence Service Act (CSIS Act), ss. 12 , 21 — No reference made to tasking allied foreign agencies with collection of telecommunications intercepts in CSIS- 30-08 application — Nevertheless, attempts made to do just that despite fact Court, in previous application (CSIS-10-07 application), determining not having jurisdiction to issue extraterritorial warrant — Whether CSIS meeting duty of full, frank disclosure when applying for 30-08 warrants — CSIS having to present all material facts in warrant application pursuant to CSIS Act, ss. 12 , 21 — CSIS strategically omitting information in 30-08 applications about intention to seek assistance of foreign partners — Court led to believe that all interception activity taking place in or under control of Canada — Material omission for CSIS not to explain new position that warrant authority not required to task assets of allied nations to conduct foreign interceptions.

These were redacted amended further reasons for order clarifying the scope and limits of the top secret reasons for order issued May 4, 2009 (the CSIS-30-08 application) as a result of additional information provided to the Court following publication of the Annual Report 2012–2013 of the Commissioner of the Communications Security Establishment Canada (CSEC). The May 4, 2009 reasons for order authorized the issuance of a warrant to intercept foreign telecommunications from within Canada.

The warrant marked a departure from the position previously taken by the Court that it lacked jurisdiction to authorize the collection of security intelligence information concerning a threat to the security of Canada by the Canadian Security Intelligence Service (CSIS) from other countries. The collection of foreign telecommunications was appropriate if the interception of the telecommunications and seizures of the information took place from and within Canada .

Since the CSIS-30-08 application, similar warrants (the CSIS-30-08 or 30-08 warrants) were issued on fresh or renewed applications in relation to other targets of investigation under sections 12 and 21 of the Canadian Security Intelligence Service Act (CSIS Act). In a 2007 application (the CSIS-10-07 application), CSIS sought a warrant to intercept any telecommunication destined to or originating from the subjects of investigation including communications abroad. CSIS requested that the warrant be executed outside of Canada

under the control of the Government of Canada or of a foreign government. The Court concluded that it did not have the jurisdiction to issue an extraterritorial warrant. Nothing in the CSIS-10-07 application reasons supported an

interpretation that CSIS officials did not need a warrant or other lawful authority, including that of the foreign state, to conduct intrusive intelligence collection activities abroad. The Court found, rather, that the Act did not provide for the issuance of such a warrant and that the Canadian Charter of Rights and Freedoms (Charter) did not extend to such activities. On the CSIS-10-07 application, CSEC discussed in detail how the resources of the allied foreign agencies would be tasked with intercepting the communications of a Canadian travelling abroad.

In the CSIS-30-08 application, CSEC stated that the targeted communications would be intercepted solely by Canadian government equipment. No reference was made to tasking allied foreign agencies. There were sufficient factual and legal grounds to distinguish the CSIS-30-08 application from the CSIS-10-07 application and the 30-08 warrant was granted. Shortly after the May 4, 2009 reasons were issued, attempts were made to task foreign agencies with the collection of telecommunications intercepts in relation to the targets of the warrant.

The link between the 30-08 warrants and the requests for foreign assistance appears in a memorandum from CSIS to all CSIS branch and regional offices that stated, inter alia , that allied foreign agencies’ telecommunication collection systems could be used in intercepting foreign telecommunications. CSEC’s annual report states that the Commissioner had examined CSEC assistance to CSIS in support of a number of the warrants relating to counter-terrorism.

The Commissioner recommended that CSEC discuss with CSIS the expansion of an existing practice to protect privacy to other circumstances; and that CSEC advise CSIS to provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS. Upon review of information presented by CSIS and CSEC, it was apparent that the focus of the Commissioner’s concern was the information that had been before the Court in the CSIS-10-07 application and was not presented in the CSIS-30-08 application or in any subsequent application for a 30-08 warrant.

This was CSEC’s evidence that if the warrant was issued, CSEC would provide assistance to CSIS by, among other things, tasking its partners within the “Five Eyes” alliance (the United States, United Kingdom, Australia and New Zealand) to conduct surveillance on the warrant targets. While it was not addressed in the evidence submitted in support of the CSIS-30-08 application, this became the default action taken by CSIS and CSEC upon issuance of a 30-08 warrant.

The Commissioner believed that the Court should be made explicitly aware in each case that CSEC may, at CSIS’s request, share with the second-party partners information about the Canadian target of a 30-08 warrant. This discussion and recommendation appeared to link the issuance of a 30-08 warrant for execution in Canada and the requests made to the second parties.

The issues were whether CSIS met its duty of full and frank disclosure when it applied for a 30-08 warrant in the CSIS-30-08 application and any subsequent 30-08 warrant application; and what is the legal authority of CSIS, through CSEC, to seek assistance from foreign partners to intercept the telecommunications of Canadians while they are outside of Canada. Held , the Court’s jurisdiction to issue a warrant under

section 21 of the Act for the domestic interception of foreign telecommunications does not extend to the interception by foreign agencies of the communications of Canadian persons travelling abroad. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, CSIS must present all material facts, favourable or otherwise. In the context of a warrant application pursuant to

section 21 of the CSIS Act, material facts are those which may be relevant to a designated judge in determining whether the criteria found in paragraphs 21(2) (

a) and (

b) have been met. However, a narrow conception of relevance is to be rejected as it would exclude information about the broader framework in which applications for the issuance of CSIS Act warrants are brought. This would be tantamount to suggesting that the Court should be kept in the dark about matters it may have reason to be concerned about if it was made aware of them.

In the circumstances under consideration herein, that would include matters relating to the prior history of attempts to have the Court authorize the collection of security intelligence abroad and the potential implications of sharing information about Canadian persons with foreign security and intelligence agencies. A decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners.

As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada. It was a material omission for CSIS not to explain its new, different and never articulated theory that, contrary to its position in the CSIS-10-07 application, it did not require warrant authority to task the assets of the second-party allied nations to conduct foreign interceptions. A 30-08 warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of CSIS either directly or through the assistance of CSEC.

No attempt was made to rely on

section 12 of the CSIS Act as the lawful authority required by CSEC to target Canadians in the exercise of its assistance mandate under paragraph 273.64(1) (

c) of the National Defence Act until after the Court had issued the first 30-08 warrant. There was concern that the authority granted to the Court by Parliament to authorize intrusive investigative activities by CSIS would be perceived in the public arena as approving the surveillance and interception of the communications of Canadian persons by foreign agencies. The scope of the power granted by

section 12 must be read in conjunction with the scheme of the Act, the guarantees and protections set out in the Charter and any limitations imposed under domestic law such as the Criminal Code .

Section 12 does not give CSIS an exemption from the operation of these laws of general application.

Section 12 does not expressly authorize CSIS to invoke the interception capabilities of foreign agencies. There is nothing in the CSIS Act or in its legislative history to suggest that, in enacting

section 12, Parliament granted express legislative authority to CSIS to violate international law and the sovereignty of foreign nations either directly or indirectly through the agency of CSEC and the second parties. The Supreme Court decision in Schreiber v. Canada (Attorney General) does not answer the question of whether a request can be made to a foreign agency to provide information about a Canadian person. There was no suggestion in Schreiber that in acting upon such a request, the foreign jurisdiction would violate the sovereignty of any other nation, as there was, implicitly, here.

The principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the “Five Eyes” to intercept the communications of the Canadian targets, CSIS and CSEC officials knew, based on the legal advice that they had been given about the implications of the Supreme Court decision in R. v. Hape and the decision in the CSIS-10-07 application, that this would involve the breach of international law by the requested second parties.

It was clear that the exercise of the Court’s warrant issuing authority was used as protective cover for activities that it had not authorized. It was not the intent of Parliament to give CSIS authority to engage the collection resources of the second-party allies to intercept the private communications of Canadians under the general power to investigate in

section 12. Moreover, there is nothing in the legislative history of the amendments to the National Defence Act in 2001 that would suggest that Parliament had contemplated that CSEC could extend such assistance to CSIS solely under the authority of

section 12 . Going forward, where an application is made for a 30-08 warrant, the Court must be informed whether there has been any

request for foreign assistance and, if so, what the results were in respect of the subjects of the application. The conclusion reached inapplication CSIS-30-08 that the Court has the jurisdiction to issue a warrant under

section 21 for the domestic interception of foreigntelecommunications under certain defined conditions remains valid. That jurisdiction does not extend to the authority to empower CSISto request that foreign agencies intercept the communications of Canadian persons travelling abroad either directly or through the agencyof CSEC under its assistance mandate. STATUTES AND REGULATIONS CITED Anti-terrorism Act, S.C. 2001, c. 41, s. 102. 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], s. 24(1). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2 “intercept”, 12, 21, 26. Criminal Code, R.S.C., 1985, c. C-46, s. 183 “private communication”. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. Ch. 36. National Defence Act, R.S.C., 1985, c. N-5, ss. 273.64(1),(2)(a),(3), 273.65(2). CASES CITED applied: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; R. v.

G.B.(application by Bogiatzis, Christodoulou, Cusato and Churchill), [2003] O.T.C. 785, 108 C.R.R. (2d) 294 (Ont. S.C.J.); Canada(Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125. considered: Canadian Security Intelligence Service Act (Re), 2008 FC 301, [2008] 4 F.C.R. 230; Canadian Security Intelligence Service Act (Re),2008 FC 300, [2008] 3 F.C.R. 477; Schreiber v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 841, (1998), 158D.L.R. (4th) 577; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, (1999) 117 D.L.R. (4th) 193. referred to: R. v.

McQueen, (AB CA), [1975] 6 W.W.R. 604, (1975), 25 C.C.C. (2d) 262 (Alta. C.A.); R. v. Giles, 2007 BCSC1147; R. v. Taylor, , 42 C.R.R. (2d) 371 (B.C.C.A.), affd (SCC), [1998] 1 S.C.R. 26, (1998), 100B.C.A.C. 319; R. c. Taillefer, , 100 C.C.C. (3d) 1 (Que. C.A.); Harkat (Re), 2010 FC 1243, 224 C.R.R. (2d) 167, revdon other grounds 2012 FCA 122, [2012] 3 F.C.R. 635, affd in part, 2014 SCC 37, [2014] 2 S.C.R. 33; Charkaoui (Re), 2004 FCA 421,[2005] 2 F.C.R. 299; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16; R. v. Lee,2007 ABQB 767, 427 A.R. 76. AUTHORS CITED Canada.

Communications Security Establishment Commissioner. Annual Report 2012–2013, online: <http://www.ocsec-bccst.gc.ca/ann-rpt/2012-2013/ann-rpt_e.pdf>. Canada. Security Intelligence Review Committee. Annual Report 2012‒2013. “Bridging the Gap: Recalibrating the Machinery ofSecurity and Intelligence Review”, online: <http://www.sirc-csars.gc.ca/pdfs/ar_2012-2013-eng.pdf>. Hubbard, Robert W. et al. The Law of Privilege in Canada. Toronto: Canada Law Book, 2014.

REDACTED amended FURTHER REASONS for order clarifying the scope and limits of the top secret reasons for order issued May 4,2009 authorizing the issuance of a warrant to intercept foreign telecommunications from within Canada. APPEARANCES Robert Frater, Isabelle Chartier, Jacques-Michel Cyr, Rémi Chapadeau for applicant Deputy Attorney General of Canada. Gordon Cameron as amicus curiae. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant.

The following are the redacted amended further reasons for order rendered in English by Mosley J.: INTRODUCTION [1] On May 4, 2009 the Court issued reasons for the issuance of a warrant to intercept foreign telecommunications and [***] fromwithin Canada. An amended and redacted public version of those reasons was released on October 5, 2009 [X (Re), 2009 FC 1058,

[2010] 1 F.C.R. 460]. The warrant was issued initially on January 26, 2009 for a period of three months and was reissued for a further nine months on April 6, 2009. When first authorized, the warrant marked a departure from the position previously taken by the Court that it lacked jurisdiction to authorize the collection of security intelligence information concerning a threat to the security of Canada by the Service [Canadian Security Intelligence Service] from countries other than Canada.

In my private and public reasons I explained why I considered it appropriate to authorize the collection of foreign telecommunications and [***] so long as the interception of the telecommunications and seizures of the information took place from and within Canada . [ 2 ] In arriving at that decision, I was persuaded by the applicant’s legal argument as to how the proposed method of interception was relevant to the jurisdiction of this Court and by a description of the facts concerning the methods of interception and seizure of the information, which differed from that put before my colleague, Justice Edmond Blanchard, on a prior application.

More precisely, the applicant argued that this Court had jurisdiction to issue warrants to ensure a measure of judicial control over activities by government officials in Canada in relation to an investigation that extends beyond Canadian borders.

Counsel advanced the argument that this Court had such jurisdiction because the acts the Court was being asked to authorize would all take place in Canada . [ 3 ] Since my May 2009 reasons were issued, a number of similar warrants have been issued on fresh or renewed applications in relation to other targets of investigation under sections 12 and 21 of the Canadian Security Intelligence Service Act , R.S.C.,1985, c. C-23 (the CSIS Act [or Act]).

In these reasons, I will refer to these warrants as “CSIS-30-08 warrants” or “30-08”. [ 4 ] These further reasons for order respond to recent developments and are intended to clarify the scope and limits of the reasons issued in 2009.

This has become necessary, in my view, as a result of additional information that has been provided to the Court following publication of the Annual Report 2012–2013 of the Commissioner of the Communications Security Establishment Canada (CSEC), by the Honourable Robert Décary, Q.C. [the Report or Public Report].These further reasons address issues that have arisen with respect to whether the duty of full disclosure owed by the Canadian Security Intelligence Service (CSIS or the Service) to the Court was respected and with regard to foreign collection practices undertaken by the Service and CSEC in connection with the issuance of the 30- 08 warrants. [ 5 ] Before addressing these issues, I think it important to lay out my understanding of the background to these events for the record.

BACKGROUND [ 6 ] CSIS has long taken the position that it is not barred by its statute from engaging in security intelligence collection activities outside of Canada. This view is supported by the absence of an express territorial limitation in

section 12 of the Act , by statements made in the report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, 1981 (McDonald Commission) which led to the creation of the Service, and by statements in Parliament during the debates prior to enactment of the enabling statute.

The Service has engaged in certain investigative activities in foreign countries by, among other things, [***] entering into sharing agreements with foreign agencies. [ 7 ] The question which remained in doubt, however, was whether the conduct of intrusive activities abroad that in Canada required lawful authority, such as a warrant or express enabling legislation, would contravene the 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] and the Criminal Code , R.S.C.,1985, c. C-46. In the absence of express legislative authority, or a warrant, it was considered by the Service and its legal advisors that CSIS officers would be exposed to potential liability in Canada as well as in the foreign jurisdiction.

While this could have been addressed by Parliament, no attempt was made to amend the legislation, most likely due to concerns about the controversy that opening the Act to insert such an amendment would engender. [ 8 ] The Service did not attempt to seek the authorization of a warrant to conduct intrusive activities abroad until 2005. In that year, the Service applied for a warrant, in application CSIS-18-05, that if issued would have authorized the interception of the communications of a Canadian citizen who was temporarily resident outside Canada.

The requested warrant would also have authorized the Service to obtain, in relation to the target, [***]. [ 9 ] A preliminary issue arose as to whether the questions of law raised by the application could be dealt with in a public hearing. An amicus curiae , Mr. Ron Atkey, Q.C., was appointed to assist the Court in determining that issue. Following oral and written submissions, Justice Simon Noël concluded that the application should be dealt with in private.

A public version of his reasons for order and order was released in 2008: Canadian Security Intelligence Services Act (Re) , 2008 FC 300 , [2008] 3 F.C.R. 477. For operational reasons, a notice of discontinuance of the application was filed on August 23, 2006 without a determination of the merits or other legal issues. [ 10 ] The questions were then raised again in an application (CSIS-10-07) brought before Justice Edmond Blanchard in April 2007. In that application, CSIS sought the authority of warrants in respect of investigative activities against 10 subjects in Canada and other countries.

On the strength of the evidence of a CSIS affiant, Justice Blanchard was satisfied that the requirements of paragraphs 21(2) (

a) and (

b) of the CSIS Act had been met for the issuance of warrants for execution in Canada. However, he was not prepared to authorize investigative activities by the service outside Canada, as requested, without further consideration. Mr. Ron Atkey was again appointed to serve as amicus curiae .

Justice Blanchard requested that the Service and the amicus file written submissions to address first, whether the Service has a mandate to undertake threat related investigations outside Canada and second, whether the Federal Court had jurisdiction to issue the requested warrant. [ 11 ] In the application before Justice Blanchard, the Service sought a warrant to intercept any telecommunication destined to or originating from the subjects of investigation including such communications abroad; to obtain information or records relating to the targets [***].

It was requested that the warrant provide that it may be executed, in addition to locations in Canada, at any place outside of Canada under the control of the Government of Canada or of a foreign government. [***]. [ 12 ] In addition to the evidence of the CSIS affiant required to establish the statutory prerequisites to the issuance of a warrant, counsel for the applicant filed the affidavit evidence of James D. Abbott, CSEC’s then acting director of Signals Intelligence (SIGINT) requirements.

[13] CSEC’s mandate is set out in the National Defence Act, R.S.C., 1985, c. N-5 [subsection 273.64(1)], as amended by the Anti-terrorism Act, S.C. 2001, c. 41 [section 102]. Under paragraph 273.64(1)(

a) of this statute, the agency is authorized to acquire and useinformation from the global information infrastructure (i.e., communications systems, information technology systems and networks) forthe purpose of providing foreign intelligence to the Government of Canada. [14] Prior to the 2001 legislation, it was unlawful for CSEC to intercept the communications of a foreign target that either originatedor terminated in Canada. Under the then prevailing regimen, CSEC could only target communications that originated and terminated inforeign jurisdictions, and which involved foreign intelligence.

The 2001 legislation empowered the Minister of National Defence toauthorize CSEC to target foreign entities physically located outside the country that may engage in communications to or from Canada,for the sole purpose of obtaining foreign intelligence. A major factor prompting the legislation was CSEC’s need for lawful authority tooperate effectively without transgressing the Criminal Code prohibition against intercepting “private communications”, as will bediscussed further below.

The legislation enabled CSEC to intercept communications to or from Canada for the purpose of obtainingforeign intelligence subject to ministerial authorization and contingent on specific provisos set out in subsection 273.65(2): (

a) the interception is directed at foreign entities outside of Canada; (

b) the information could not reasonably be obtained by other means; (

c) the expected foreign intelligence value of the information justifies its collection; and (

d) satisfactory measures are in place to protect the privacy of Canadians to ensure that private communications will only be used orretained if they are essential to international affairs, defence or security. [15] CSEC is expressly prohibited under paragraph 273.64(2)(

a) of the National Defence Act from directing these activities atCanadian citizens and permanent residents (Canadian persons) wherever located or at any person in Canada regardless of nationality. [16] The limitations respecting Canadian persons and any persons in Canada do not apply to technical and operational assistancewhich CSEC may provide to federal law enforcement and security agencies in the performance of their lawful duties pursuant toparagraph 273.64(1)(

c) of the National Defence Act. Subsection 273.64(3) of this statute provides that such assistance activities aresubject to any limitations imposed by law on the federal agencies in the performance of their duties. [17] In his affidavit filed in application CSIS-10-07, Mr. Abbott described how CSEC would assist the Service if the warrant soughtwas issued. [***]. While there is a long-standing agreement that each allied agency would treat the citizens of another allied nation as itsown for the purposes of the application of its domestic legislation, Mr.

Abbott acknowledged that it remained open to those agencies topursue their own national interest with respect to the information collected. [18] Mr. Abbott also explained how CSEC had the capability to direct activities from within Canada [***]. [19] Prior to any conclusion being reached by Justice Blanchard on the matters under consideration, in June 2007 the Supreme Courtof Canada released its decision in R. v.

Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, respecting the application of the Charter to criminalinvestigations conducted in other countries by Canadian authorities. [20] In Hape, the Supreme Court affirmed that Canadian legislation is presumed to conform to international law absent expressstatutory language to the contrary and that customary international law prohibited interference with the domestic affairs of other states.The Court found that extending the reach of the Charter to the actions of Canadian officials abroad would be inconsistent with thoseprinciples.

The majority in Hape recognized, at paragraph 101, that the participation of Canadian officials abroad that would violateCanada’s international human rights obligations might justify a remedy under subsection 24(1) of the Charter because of the impact ofthose activities on the rights of the individual in Canada. [21] In response to questions framed by Justice Blanchard following the release of Hape, counsel for the Deputy Attorney General ofCanada (DAGC) took the position that the scope of the Supreme Court’s decision was not clear.

In particular, it was submitted, it was notclear whether the Court’s rationale was intended to apply, and did apply, to the conduct of security intelligence investigations outsideCanada. To that extent, they argued, such investigations outside Canada might raise Charter issues where those investigations implicatedpersons having a real and substantial connection to Canada. Further, the question of whether activities outside Canada may contraveneprovisions of the Criminal Code had not been resolved, they submitted. [22] The responsible course of action for the Service was to seek a warrant, it was argued.

Should the Charter and the Criminal Codebe found to be inapplicable to security intelligence investigations abroad, the worst that could occur, it was submitted, is that the warrantwould have been unnecessary.

The converse, should it occur, would be untenable for the Service as its officers would continue to beexposed to Charter and Code liability if they engaged in intrusive activities without the authorization of a warrant. [23] As discussed in my May 2009 reasons for order, the interception of telecommunications for which authorization was sought inthe applications before Justice Blanchard in 2008 and before me in 2009 would come within the broad meaning of the term “intercept” asdefined in

section 2 of the Act by reference to the Criminal Code definition. The Service sought to listen to, record or acquirecommunications. Such activities constitute an “intercept” as interpreted by jurisprudence in relation to the Criminal Code definition: R.v. McQueen, (AB CA), [1975] 6 W.W.R. 604 (Alta. C.A.); R. v. Giles, 2007 BCSC 1147. [24]

Section 26 of the CSIS Act provides that

Part VI of the Criminal Code does not apply in relation to any interception of acommunication under the authority of a warrant issued under

section 21 of the Act. Absent this protection,

Part VI would apply to theinterception of any “private communication” as defined by

section 183 of the Criminal Code; that is any private communication whereeither the originator or the recipient was in Canada. The place of “interception” under the Code has been interpreted as the locationwhere a call has been acquired and recorded: R. v. Taylor, , 42 C.R.R. (2d) 371 (B.C.C.A.), affirmed

(SCC), [1998] 1 S.C.R. 26; R. c. Taillefer, , 100 C.C.C. (3d) 1 (Que. C.A.). Thus the concern about potential liabilityabsent a warrant or express legislative authority discussed by the DAGC in his supplementary submissions to the Court in the summer of2008 was not unrealistic. [25] Justice Blanchard issued classified reasons for order and order on October 22, 2007. A public, redacted version was issued inFebruary 2008 (Canadian Security Intelligence Service Act (Re), 2008 FC 301, [2008] 4 F.C.R. 230). Justice Blanchard described theissues before him as follows at paragraph 12 of his reasons: (

A) Does the Federal Court have jurisdiction to issue the warrant requested? (

B) Does the Service have a mandate to undertake threat-related investigations in a country other than Canada? (

C) Does the Criminal Code … and the Canadian Charter of Rights and Freedoms … apply to activities of the Service and its agents inundertaking threat-related investigations in a country other than Canada? (

D) Can Communications Security Establishment Canada (CSEC) assist the Service in the execution of the warrant sought? [26] The Service’s rationale in support of its position that the Court had jurisdiction to issue the warrant was set out in paragraphs 22and 23 of Justice Blanchard’s decision: The Service contends that the authorizations sought are to enable it to fulfill its mandate under

section 12 of the Act.

Section 12 differsfrom

section 16 of the Act which limits the Service’s collection of “foreign intelligence” to “within Canada”. The Service submits thatParliament, by not imposing the same territorial limitation in

section 12 as it did in

section 16, must have intended its

section 12 mandateto have extraterritorial reach. The Service further contends that the warrant is required to ensure the Canadian agents engaged in executing a warrant abroad do so inconformity with Canadian law. The Service maintains that the warrant is required to judicially authorize activities that, absent a warrant,may breach the Charter and contravene the Code. This is so because the warrant powers sought to be authorized are directed atCanadians and arguably might impact on their expectation of privacy.

The Service argues that the warrant would enable it to perform itsduties and functions by removing the legal impediments to the conduct of a part of its security intelligence investigations outside Canadaand would respect the rule of law and be consistent with the regime of judicial control mandated by

Part II of the Act. [27] On consideration of the principles of statutory

interpretation, the legislative history of the Act and the principles of customaryinternational law addressed in Hape, the answer to the first question was found to be negative. Absent consent of the foreign statesconcerned to the operation of Canadian law within their borders, the proposed investigative activities would breach their territorialsovereignty. This violation of international law could only be authorized by Parliament through express legislation.

Justice Blanchardconcluded, “absent an express enactment authorizing the Court to issue an extraterritorial warrant, the Court is without jurisdiction toissue the warrant sought” (paragraph 55) [emphasis added]. [28] As a result of this determination, which was dispositive of the application, Justice Blanchard considered it unnecessary to dealwith the other issues.

He thought it appropriate, however, to provide his views on the third question since that had been the central focusof the Service’s submissions before the Court. [29] Justice Blanchard considered that the principles set out in Hape with respect to investigative actions in criminal matters wereequally relevant to the collection of information in the intelligence context abroad. He concluded that the Charter did not apply in thatcontext and that the offence provisions of the Criminal Code with extraterritorial effect were not relevant to the activities of intelligenceofficers collecting information abroad.

In the circumstances, he was unable to find why the warrant sought would be required for thestated purpose of protecting the Service or its agents from prosecution under the Code for the limited number of offences whichParliament had defined as having extraterritorial effect (paragraph 63). It does not appear that the link between

Part VI of the CriminalCode and the protection afforded by

section 26 of the CSIS Act to the interception of communications having at least one end in Canada,noted above, was raised before Justice Blanchard. [30] In any event, nothing in Justice Blanchard’s reasons support an

interpretation that CSIS officials do not need a warrant or otherlawful authority, including that of the foreign state, to conduct intrusive intelligence collection activities abroad. He found, rather, thatthe Act did not provide for the issuance of such a warrant and that the Charter did not extend to such activities. [31] In these proceedings, the Court has been provided with information about what transpired next.

In the aftermath of JusticeBlanchard’s decision, the Director of CSIS sought further legal advice from the DAGC respecting: •€€€€€€€€ the interception of the communications of Canadians or permanent residents who are outside Canada where the Servicebelieves they are engaged in activities constituting a threat to the security of Canada; and •€€€€€€€€ whether the Service can lawfully [***] information [***] outside Canada in cases where the Service believes the informationrelates to activities constituting a threat to the security of Canada and where there is a current CSIS Act warrant authorizing [***] seizureof similar information in Canada. [Underlining added.] [32] In a letter to the Director dated October 2, 2008, the DAGC set out his views on the implications of the decision in CSIS-10-07[2008 FC 301, above] in relation to seven factual scenarios.

Several of these scenarios had not been raised in the application beforeJustice Blanchard and were not addressed in his decision. While these scenarios entailed the interception of communications of targetswho are outside Canada, the interceptions would take place entirely inside Canada. [***]. Interceptions, [***] and seizures conductedfrom within Canada, CSIS was advised, did not engage the territorial issues raised by Justice Blanchard and could properly be the subjectof a warrant under

section 21 of the CSIS Act given an appropriate factual context. [33] The tasking of allied foreign agencies discussed by Mr. Abbott in his affidavit in CSIS-10-07 was briefly discussed in the

opinion. This was described as the interception of a target’s communications outside Canada by a foreign agency at the Service’s request. Reference was not made to CSEC assistance. The DAGC stated that this did not engage the jurisdictional issues raised by Justice Blanchard and asserted that, in his view, a warrant to authorize such requests was not required. This, counsel for the DAGC now say, was based on a new

interpretation of the scope of

section 12 of the CSIS Act in light of Hape and Justice Blanchard’s decision. [ 34 ] The opinion respecting the scope of

section 12 in the DAGC’s letter of October 2, 2008 consists of no more than a bald assertion of legitimacy. The letter contains no analysis or discussion of the legislative history behind

section 12 and its relationship to

section 21 or other provisions of the Act read as a whole. Nor was there any discussion of the constraints placed on CSEC or the boundaries of the assistance it may provide to federal security and law enforcement agencies. The Service was cautioned that it should satisfy itself that the foreign party intercepting the communications was acting in accordance with the laws of its own jurisdiction and that the actions of the foreign party did not give rise to serious violations of human rights.

How that was to be done was not discussed. [ 35 ] To address the Director’s concern about the Service’s ability to investigate threats to Canada’s security by targets outside the country, the DAGC proposed that their respective officials work together to seek, by way of a fresh warrant application, an authoritative judicial

interpretation of sections 12 and 21 of the Act in relation to the factual scenarios that were outside the scope of Justice Blanchard’s decision. Department of Justice counsel were instructed to work with CSIS officials to identify applications on which to seek such an authorization. [ 36 ] That opportunity arose in January 2009 in the CSIS-30-08 file. The application had been originally presented on November 27, 2008. At that time, the Court issued warrants with respect to the threat-related activities of two Canadian citizens.

The warrants authorized the use of intrusive investigative techniques and information collection at locations within Canada for a term of one year. On January 24, 2009 the Service sought an additional warrant as the targets were about to leave Canada and there was reason to believe that they would continue activities constituting a threat to Canada while abroad. [ 37 ] The application was heard before me on an urgent basis on Saturday, January 26, 2009. Written submissions and authorities were filed.

I was asked to revisit the question of jurisdiction and to distinguish Justice Blanchard’s reasoning in the 2007 decision on the basis of a different description of the facts relating to the activities necessary to permit the interception of the communications and the procedures to be used to obtain the information sought and a different legal argument concerning how the proposed methods of interception were relevant to the jurisdiction of this Court. [ 38 ] In addition to the evidence of a CSIS affiant, the Service relied on an affidavit from the CSEC employee, Mr. Abbott. Mr.

Abbott gave oral evidence at the hearing and was questioned closely by myself as to how the proposed methods of interception and search differed from those presented to Justice Blanchard. [ 39 ] On the application before Justice Blanchard, Mr. Abbott’s affidavit discussed in detail how the resources of the allied foreign agencies would be tasked with intercepting the communications of the Canadian travelling abroad in addition to CSEC’s own collection [***]. In his evidence before me, Mr.

Abbott stated that the targeted [***] communications and [***] would be intercepted [***] solely by Canadian government equipment [***]. No reference was made to tasking allied foreign agencies. There was no suggestion that CSIS or CSEC officials intended to engage the services of allied foreign agencies to assist in the collection effort. Mr. Abbott’s evidence stressed that the assistance provided to CSIS would be limited to the authority granted by the warrant (affidavit of James D.

Abbott, January 23, 2009, paragraph 15): The methods and techniques described in this affidavit could be used, were this warrant application granted, in the provision of assistance to the Service to the extent allowed by the warrant. [ 40 ] After reading the material before the Court and hearing the evidence of the witnesses and the submissions of counsel, I was satisfied that there were sufficient factual and legal grounds to distinguish the application before me from that considered by Mr. Justice Blanchard and the warrant was granted.

It was initially issued for a term of only three months so that I might consider the matter further. On April 6, 2009 I heard additional submissions from counsel and on April 16, 2009 I extended the warrant for a further nine months.

As noted above, I issued top secret reasons for order on May 4, 2009 to explain why I believed that the Court had the jurisdiction to issue the warrant and how the application differed from that considered by Justice Blanchard. [ 41 ] While the record is not entirely clear on this point, it appears from the information before me that no attempt was made to task foreign agencies with the collection of telecommunications intercepts in relation to the targets of the warrant issued on January 24 , 2009.

However, it is apparent that such actions began shortly after my reasons for order were issued on May 4, 2009. [***]. They recommended that requests for assistance to the allied foreign agencies should be made at the same time as requests for assistance were made by the Service to CSEC under a 30-08 warrant. CSIS senior management agreed. [ 42 ] The first request for assistance involving a foreign partner in addition to the scope of a 30-08 warrant was made on May 7, 2009, according to Mr. Abbott’s evidence in this proceeding.

On May 27, 2009 a senior counsel of the Department of Justice Departmental Legal Services Unit at CSEC provided advice to his client that, “where a 30-08 warrant has been issued against a Canadian citizen or permanent resident located outside Canada” asking allied nations to intercept the communications of the subject of that warrant would not appear to be contrary to the CSIS Act or the Charter .

In addition the opinion states that: It is understood that the warrant contains no power granted to CSIS dealing with requests to foreign nations, and that CSIS would make such request only where a warrant is in force . [Underlining added.] [ 43 ] It is not clear whether the linkage between the 30-08 warrants and the requests for foreign assistance was made at the request of CSEC officials concerned about the scope of their assistance mandate. However, it appears in a memorandum from the office of the CSIS Deputy Director of Operations on September 11, 2009 to all CSIS branch and regional offices.

The memorandum stated that as a result of the Court’s May 4, 2009 decision the Service could now request the Court to authorize intercepts of foreign telecommunications with the assistance of CSEC. It further states that the use of “2nd party assets will be the norm”, meaning the allied foreign agencies’ telecommunication collection systems. The memorandum does not state that the Court had not authorized the use of the foreign assets.

[ 44 ] While specific details would not be provided to the second parties that the individuals concerned were Service targets, the memorandum acknowledges that the second parties could infer that the collection was being conducted on behalf of the Service as it would be outside of normal practice for CSEC [***]. What they might then do with the information was beyond the control of the Service. [ 45 ] The Court has issued more than [***] 30-08 warrants on fresh or renewal applications since May of 2009.

It appears that in the majority of these cases, if not all, CSIS has asked CSEC to task their foreign partners [***]. Counsel for the Service concedes that the fact that this would be done was not disclosed in any of the applications to obtain a 30-08 warrant. 2012–2013 Annual Report of the CSEC Commissioner [ 46 ] Commissioner Décary’s Annual Report 2012–2013 was transmitted to the Minister of National Defence in June 2013. A public expurgated version was issued in late August 2013. The Public Report observed that “[p]aragraph 273.64(1)(

c) of the National Defence Act authorizes CSEC to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties” [at page 22]. It was further noted that this would include the “interception of Canadians’ communications if CSIS has a judicially authorized warrant issued under

section 21 of the CSIS Act .” [ 47 ] Pursuant to subsection 273.64(3) of the National Defence Act , the Report noted, “CSEC is subject to any limitations imposed by law on the agency to which it is providing assistance” [at page 22]. In carrying out its other mandates, the collection of foreign intelligence and protecting Canada’s electronic infrastructure, CSEC is expressly constrained from directing its activities at Canadian persons anywhere or any person in Canada and must take measures to protect the privacy of Canadian persons in the use and retention of intercepted information.

Thus, the only circumstance in which CSEC may target Canadian persons is under its assistance mandate and only then if it does so in support of another federal agency that is acting under lawful authority. [ 48 ] The CSEC Commissioner’s Annual Report [at pages 21‒23] contained a discussion of the Commissioner’s review of CSEC assistance to CSIS under part (c) [ paragraph 273.64(1) of the National Defence Act ] of CSEC’s mandate and sections 12 and 21 of the CSIS Act .

This discussion referred to the Court’s decisions in CSIS-10-07 [2008 FC 301, above] and CSIS-30-08 [2009 FC 1058, above]. [ 49 ] The objectives of this review were described as the following at page 23 of the Public Report: … to acquire detailed knowledge of and to document CSEC’s assistance to CSIS and to assess whether CSEC activities complied with the law, including with the terms of the warrants issued to CSIS, and any privacy protections found therein. CSEC’s assistance to CSIS under the warrants may include use of Canadian identity information and the interception of the communications of Canadians.

CSEC’s collection, as defined in the warrant, may impact on the privacy of Canadians. [ 50 ] The Public Report [at page 23] further states that the Commissioner had examined “CSEC assistance to CSIS in support of a number of the first warrants of this kind relating to counter-terrorism”.

The Report [at page 23] sets out the specific information verified by the Commissioner to assess CSEC’s compliance with the law and privacy protections in this context: • €€€€€€€€ CSEC had a copy of the warrant and had clear and sufficient information about the assistance sought by CSIS; • €€€€€€€€ the communications targeted by CSEC for CSIS were only those communications referred to in the warrants; • €€€€€€€€ the communications were not targeted before the warrants came into force and were no longer targeted once the warrants expired; • €€€€€€€€ CSEC targeted the subjects of the warrants only while they were believed to be outside Canada; • €€€€€€€€ CSEC targeted only the types of communications and information that were authorized in the warrants to be intercepted or obtained; and • €€€€€€€€ CSEC complied with any other limitations imposed by law on CSIS, for example, any conditions in the warrants. [ 51 ] In concluding this discussion, Commissioner Décary noted that he had consulted his independent counsel with respect to general questions of law relating to this subject and made two recommendations to the Minister to help ensure that CSEC assistance to CSIS is consistent with the authorities and limitations of the warrants and to enhance the measures in place to protect the privacy of Canadians.

As described in the Public Report [at page 25], the recommendations were that: 1. CSEC discuss with CSIS the expansion of an existing practice to protect privacy to other circumstances; and 2. CSEC advise CSIS to provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS. [ 52 ] Commissioner Décary concluded by observing that notwithstanding these recommendations “CSEC conducted its activities in accordance with the law and ministerial direction and in a manner that included measures to protect the privacy of Canadians” [at page 25].

He noted that the Minister had accepted the recommendations and CSEC had raised them with CSIS. Commissioner Décary also stated that he had shared certain general points relating to CSIS that arose out of the two recommendations with the Chair of the Security Intelligence Review Committee (SIRC). [ 53 ] Upon reading the CSEC Commissioner’s Annual Report, I issued an order on August 26, 2013 requiring that Counsel for CSEC and CSIS appear before the Court prepared to speak to the matter.

More specifically I directed that: … counsel should be ready to speak as to whether the application of the CSE Commissioner’s recommendation “that CSEC advise CSIS

to provide the Federal Court of Canada, when the occasion arises, with certain additional evidence about the nature and extent of theassistance CSEC may provide to CSIS” relates to the evidence presented to the Court in the application to obtain CSIS-30-08 and allother similar applications since, and, if yes, whether the evidence would have been material to the decision to authorize the warrant(

s) inCSIS-30-08 or any subsequent applications. [54] Counsel for CSIS and CSEC appeared before me on September 4, 2013. In preparation for that hearing, they filed a book ofdocuments that included, among other things, the reasons for order and order in File No. CSIS-10-07, the reasons for order in CSIS-30-08, the top secret affidavits of James D. Abbott filed on both applications and the top secret version of the portion of the CSECCommissioner’s Annual Report relating to the Commissioner’s review of “CSEC assistance to CSIS under part (c) [paragraph273.64(1)

c) of the National Defence Act] of CSEC’s mandate and sections 12 and 21 of the CSIS Act”. [55] Upon reviewing this information it became apparent to me that the focus of the Commissioner’s concern was the informationthat had been before Justice Blanchard in the CSIS-10-07 application and was not presented in the CSIS-30-08 application or in anysubsequent application for a 30-08 warrant. This was Mr.

Abbott’s evidence before Justice Blanchard that if the warrant was issued,CSEC would provide assistance to CSIS by, among other things, tasking its partners within the “Five Eyes” alliance (the United States,United Kingdom, Australia and New Zealand) to conduct surveillance on the warrant targets.

While it was not addressed in the evidencesubmitted in support of the CSIS-30-08 application, as noted above this became the default action taken by CSIS and CSEC uponissuance of a 30-08 warrant. [56] In his top secret report, Commissioner Décary summarized how the practice evolved based on the information reviewed: [***] [57] Commissioner Décary noted that CSEC’s affidavit for Justice Blanchard discussed in detail that CSEC would use second-partyassets to assist in intercepting communications under 30-08 warrants, as well as how each second-party partner may make use of theinformation that would be shared.

In contrast, CSEC’s affidavit and testimony in the application before me contained no informationabout the involvement of the second parties. [58] In response to Commissioner Décary’s inquiries about the legal grounds pertaining to 30-08 interceptions and the second parties,a letter from the Director General, Policy and Communications, CSEC dated April 12, 2011 states the following: … CSEC is pleased to share with the Commissioner’s office copies (attached) of the six legal opinions provided to CSEC by itsDirectorate of Legal Services (DLS) pertaining to the interception of the communications of Canadians located outside of Canada,pursuant to a 30-08 Warrant obtained by the Canadian Security Intelligence Service (CSIS). … In relation to CSEC’s legal position requesting Second Party assistance with 30-08 interception, CSEC refers the Commissioner’s officeto the October 2007 decision by Justice Blanchard in which he states that a warrant would not be required to authorize investigativeactivities outside Canada.

For this reason, CSEC believes that requests for assistance to foreign nations are not within the scope of the30-08 (in those instances where foreign assistance is provided outside Canada, the domestic law of the foreign nation applies).[Underlining added.] [59] The underlined passage is an

interpretation of Justice Blanchard’s October 2007 decision by CSEC legal counsel. As discussedabove, there is nothing in Justice Blanchard’s reasons that states that a warrant (or express legislative authority) would not be required toauthorize investigative activities outside Canada. Rather, as he declared, the Court lacked the jurisdiction under the statute to grant such awarrant.

He did not address whether Parliament could authorize such activities other than by reference to the analysis in Hape whichacknowledged that it is open to Parliament to enact such legislation. [60] Commissioner Décary questioned whether forwarding [***] information about the Canadian subjects of 30-08 warrants to thesecond parties resulted in a loss of control over the information which may result in an unauthorized violation of the subjects’ reasonableexpectations of privacy. CSEC officials, in response, relied on the reasoning of the majority of the Supreme Court of Canada in Schreiberv.

Canada (Attorney General), (SCC), [1998] 1 S.C.R. 841. In Schreiber, the majority held that the requirement underCanadian domestic law to obtain a prior judicial authorization for a search does not apply to requesting a foreign nation to undertake anactivity that could potentially engage the rights of an individual under the Charter, if the impugned activity was undertaken in Canada bythe Government of Canada.

By analogy, CSEC argued, they could request that a foreign agency do within its jurisdiction that whichCSIS and CSEC could not do in Canada without a warrant. [61] In the result, Commissioner Décary accepted that Canadian law, encompassing the privacy protections contained in the Charter,does not apply to the interception of communications of Canadians by the second parties because they are acting within their own legalframework.

He referred to this conclusion in these terms: Overall, the Commissioner accepts Justice Canada’s and CSEC’s arguments that the law can allow for second party assistance with 30-08. [62] The DAGC relies on this conclusion but argues that Commissioner Décary’s analysis as a whole is erroneous in so far as itappears to link requests for second party assistance to the 30-08 warrant authority.

In my view, notwithstanding the unfortunatejuxtaposition of the references to second-party assistance and 30-08, Commissioner Décary understood the distinction between thelimited assistance mandate authorized by the warrant and that pursued by the Service and CSEC. In any event, Commissioner Décary’sanalysis, while worthy of respect, does not bind the Court. [63] Commissioner Décary remained concerned that the second parties may decide to use the [***] information associated with aCanadian person should one of the allies see a national interest in the subject.

He noted that each of the second parties, as a sovereignnation, can derogate from the agreements made with CSEC to respect each other’s laws as dictated by their own national interest.

[64] Accordingly, Commissioner Décary deemed it appropriate to recommend that CSEC discuss with CSIS an extension of itsexisting practice with [***]—a caveat not to disclose or to take other action on Canadian [***] information [***] relating to theCanadian subjects of 30-08 warrants—to assistance with 30-08 involving CSEC’s other second-party partners [***]. [65] Moreover, for clarity and to remove any ambiguities between CSEC’s practices and the decision in CSIS-30-08 and because ofthe privacy implications of CSEC sharing with the second parties Canadian [***] information [***] associated with the Canadiansubjects of the 30-08 warrants, Commissioner Décary believed that the Federal Court should be made explicitly aware in each case thatCSEC may, at CSIS’s request, share with the second-party partners information about the Canadian target of a 30-08 warrant.

Thisdiscussion and recommendation appears to link the issuance of a 30-08 warrant for execution in Canada and the requests made to thesecond parties. [66] Having read Commissioner Décary’s secret report and heard the preliminary submissions of counsel for CSIS and CSEC, at theconclusion of the hearing on September 4, 2013, I considered it necessary to direct that further evidence and argument be presented ontwo issues arising from the information before me and a hearing was scheduled for October 23–24, 2013. [67] To assist me with the examination of these matters I appointed as amicus curiae, Mr.

Gordon Cameron, a lawyer with the Blake,Cassels and Graydon law firm in Ottawa. Mr. Cameron is one of the special advocates with a top secret security clearance on the listmaintained by the Attorney General of Canada. [68] On October 4, 2013, counsel for the DAGC filed an affidavit from Mr. Abbott (now director general SIGINT programs) andwritten submissions together with two books of authorities. This material was also provided to Mr. Cameron and he prepared a writtenoutline of the oral submissions he intended to make at the hearing. ISSUES [69] The issues that I considered to arise from the record were: 1.

Whether CSIS met its duty of full and frank disclosure when it applied for a 30-08 warrant in application CSIS-30-08 and anysubsequent 30-08 warrant application; and 2. The legal authority of CSIS, through CSEC, to seek assistance from foreign partners to intercept the telecommunications ofCanadians while they are outside of Canada. Preliminary question of privilege [70] On October 22, 2013, counsel for the DAGC submitted an amended affidavit and supplemental affidavit from Mr. Abbotttogether with the affidavit of a CSIS officer, [***] and a chronology of events.

The supplemental affidavit and [***]’s affidavit wereprovided in a sealed envelope with the request that the Court consider oral submissions before opening and reading the documents. [71] Appended to Mr. Abbott’s supplemental affidavit and [***]’s affidavit were documents containing legal opinions provided toCSIS and CSEC by Department of Justice counsel. At the start of the hearing on October 22, 2013, I heard the oral submissions ofcounsel for the DAGC and the responding submissions of Mr. Cameron as to whether the documents were protected by solicitor-clientprivilege.

The position taken by counsel for the DAGC was that the testimony of the affiants, Messrs. Abbott and [***] would be that inany matter pertaining to the 30-08 warrants CSIS and CSEC officials had acted on the advice of their lawyers. The appended documentswould demonstrate that was the case, I was told.

It was submitted, however, that the specific content of that advice remained privileged.The amicus responded that any privilege attaching to the documents was implicitly waived by the assertion of legal advice as thejustification for the actions of CSIS and CSEC officials. [72] Counsel for the DAGC invited me to review the material and determine whether privilege attached to the content of thedocuments. Accordingly, I recessed to read the documents and consider the matter.

Upon resuming the hearing, I indicated that I wassatisfied that the content was not privileged. [73] As argued by the amicus, waiver may implicitly result from reliance on privileged communications in litigation: Robert W.Hubbard et al., The Law of Privilege in Canada (Toronto: Canada Law Book, 2014), at page 11-64. Thus in R. v.

Campbell, (SCC), [1999] 1 S.C.R. 565, at paragraph 67, it was found that where the holder of privilege relies upon legal advice to justify thelegality of his or her actions, they have “waived the right to shelter behind solicitor-client privilege the contents of the advice thusexposed and relied upon.” [74] I considered, however, that it was not necessary to share the entire content of one document attached to Mr. Abbott’ssupplemental affidavit with the amicus; that being the opinion provided by the DAGC to the Director of CSIS in October 2008 which Ihave discussed above.

While that document provided useful information about the background to the issues, its disclosure to the amicusin full was not necessary for him to assist me in the determination of the issues. I read what I considered to be the most relevant portionof the opinion into the record—that related to the

interpretation of

section 12 of the CSIS Act. The affidavits and the other appendeddocuments were then entered as received at the hearing and, apart from the October 2008 opinion, disclosed to Mr. Cameron. Messrs.Abbott and [***] were then called as witnesses and examined as to their knowledge of the circumstances giving rise to the applicationsfor CSIS-10-07, CSIS-30-08 and subsequent warrants.

ARGUMENT AND ANALYSIS Did CSIS meet its duty of full and frank disclosure when it applied for a 30-08 warrant in application CSIS-30-08 and any subsequent30-08 warrant application? [75] As I have noted above, on the record before me it is not clear that a request for foreign assistance was made in application CSIS-30-08 although that might be inferred from the timing of the first request just days after my top secret reasons for order were released,

according to Mr. Abbott’s evidence. The DAGC agreed, however, that the issue should not be resolved on the basis that there was no actual non-disclosure in CSIS-30-08. The DAGC acknowledges that there was no disclosure of the requests for foreign assistance in the applications that followed the rationale developed in CSIS-30-08. Rather than have the matter addressed in each of those files, the DAGC agreed that the issue ought to be dealt within a single proceeding. [ 76 ] In his testimony, Mr.

Abbott candidly stated that his evidence in CSIS-30-08 was “crafted” with legal counsel to exclude any reference to the role of the second parties described in his affidavit before Justice Blanchard. [***]. [ 77 ] While discussions had been ongoing between CSIS and CSEC prior to the January 2009 application about the implications of Justice Blanchard’s decision, Mr.

Abbott stated that he was not aware of any actual requests for second party assistance prior to the issuance of the first 30-08 warrant (transcript, October 23, 2013, at pages 42–43): Yes, they would have been in the context of 30-08 warrants from January of 2009 when we receive the first signed warrant from the Federal Court. This is the first instance where they requested that we utilize second party assets to target that individual while he was outside of Canada. [ 78 ] In his amended affidavit dated October 22, 2013, Mr.

Abbott disclosed that in relation to the individuals who were subject to a 30-08 warrant over the preceding 12 months, [***]. [ 79 ] The DAGC contends that the Service met its duty of full and frank disclosure when it sought a 30-08 warrant in application CSIS-30-08 and in all subsequent applications for such a warrant.

It is argued that the Service provided all material information in these applications and the fact that the Service may request assistance from foreign partners through CSEC to intercept the telecommunications of Canadians abroad is not an issue properly before this Court on warrant applications. [ 80 ] The view of the amicus is that there was a serious breach of the duty of candour to the Court in the CSIS-30-08 application and in the subsequent applications that relied on that decision.

That breach has been exacerbated, the amicus submits, by the failure to acknowledge the lack of candour in this proceeding because it demonstrates that the Service does not understand its duty when it comes before this Court ex parte . [ 81 ] The information about the requests to foreign agencies was relevant to the application in CSIS-30-08 and subsequent applications, the amicus submits, because, if correct, the Service has an alternative means of investigation that paragraph 21(2) (

b) of the Act requires be disclosed to the judge hearing the warrant application. The application in CSIS-30-08 and the subsequent applications for 30-08 warrants were calculated, he submits, to have the Court understand the opposite of what was put before Justice Blanchard. The applications were crafted to give the Court the impression that the only interceptions of the target’s communications would be [***] Canada under authority of the warrant. It was solely on this basis that the Court concluded that it had jurisdiction to issue a warrant.

Had the information been disclosed, the Court may have reached a different conclusion. [ 82 ] The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3, at paragraph 27 : In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court.

The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank , supra , at para.11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers.

See for example the Alberta Code of Professional Conduct , c.10, r. 8. [ 83 ] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat ( Re ) , 2010 FC 1243 , 224 C.R.R. (2d) 167, at paragraph 117 , revd on other grounds 2012 FCA 122 , [2012] 3 F.C.R. 635, appeal on reserve before the Supreme Court [the Supreme Court has since rendered its decision; see 2014 SCC 37 , [2014] 2 S.C.R. 33]; Charkaoui (Re) , 2004 FCA 421 , [2005] 2 F.C.R. 299, at paragraphs 153–154 ; Almrei (Re) , 2009 FC 1263 , [2011] 1 F.C.R. 163, paragraph 498 .

In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service must present all material facts, favourable or otherwise. [ 84 ] It is submitted on behalf of the Service that: … the fact that in addition to seeking warrants from the Court the Service may also seek the assistance, through CSEC, of foreign partners to intercept under their own legal framework telecommunications of a Canadian subject of investigation abroad as part of a lawful investigation in Canada is not a material fact which could have been relevant to the designated judge in making determinations required for the purpose of exercising a discretion in the context of a warrant application pursuant to

section 21 of the CSIS Act . [ 85 ] In advancing this argument, the DAGC relies on

definitions of “material facts” set out in decisions relating to criminal proceedings. In the context of a criminal trial, evidence is material if what it is offered to prove or disprove is a fact in issue as determined by the allegations contained in the indictment and the governing procedural and substantive law: R. v.

Luciano , 2011 ONCA 89 , 267 C.C.C. (3d) 16, at paragraph 207 . [ 86 ] It is submitted by the DAGC that in the context of a warrant application, materiality refers to information that is probative to the legal or factual determination that a judge will be asked to make when deciding whether to grant or deny the request for a warrant: R. v. Lee , 2007 ABQB 767 , 427 A.R. 76, at paragraphs 132–136 .

The lack of any reference to requests for assistance to foreign partners was not included in 30-08 warrant applications because it was legally and factually irrelevant to the issuance of the warrant sought, it is argued. This Court’s jurisdiction, as determined by Mr. Justice Blanchard, did not extend to governing the relationship between the Service and the foreign partners, the DAGC submits. [ 87 ] In R. v. G.B . (application by Bogiatzis, Christodoulou, Cusato and Churchill) , [2003] O.T.C. 785 (Ont.

S.C.J.) , a case involving an application for a stay of proceedings on the ground that a police officer had lied in affidavits to obtain wiretap authorizations, the Court described material facts as follows at paragraphs 11 and 12:

Material facts are those which may be relevant to an authorizing judge in determining whether the criteria for granting a wiretap authorization have been met. For the disclosure to be frank, meaning candid, the affiant must turn his or her mind to the facts which are against what is sought and disclose all of them which are known, including all facts from which inferences may be drawn .

Consequently, the obligation of full and frank disclosure means that the affiant must disclose in the affidavit facts known to the affiant which tend to disprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposed authorization.

The obligation of full and frank disclosure also means that the affiant should never make a misleading statement in the affidavit, either by means of the language used or by means of strategic omission of information . [Underlining added.] [ 88 ] I agree with counsel for the DAGC that in the context of a warrant application pursuant to

section 21 of the CSIS Act, material facts are those which may be relevant to a designated judge in determining whether the criteria found in paragraphs 21(2) (

a) and (

b) have been met. The criteria are as follows: 21. Matters to be specified in application for warrant (2) … (

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 ; (

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. [ 89 ] However, I do not accept the narrow conception of relevance advocated by the DAGC in this context as it would exclude information about the broader framework in which applications for the issuance of CSIS Act warrants are brought. In my view it is tantamount to suggesting that the Court should be kept in the dark about matters it may have reason to be concerned about if it was made aware of them.

In the circumstances under consideration that would include matters relating to the prior history of attempts to have the Court authorize the collection of security intelligence abroad and the potential implications of sharing information about Canadian persons with foreign security and intelligence agencies. [ 90 ] Based on the documentary record before me and Mr.

Abbott’s evidence, I am satisfied that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada. [ 91 ] Mr.

Abbott certainly understood the importance of providing the Court with information about the process “so that the Court would have a good understanding of how these activities would be undertaken.” On cross-examination he observed that (transcript, October 23, 2013, at page 59): … if we are seeking this assistance, the Court should be aware of what the second party agency would see and what they may or may not choose to do with that information. [ 92 ] It was a material omission for the Service not to explain its new, different and never articulated theory to the Court that, contrary to its position before Justice Blanchard, it did not require warrant authority to task the assets of the second-party allied nations to conduct foreign interceptions.

That leads me to the second issue. Does CSIS have the legal authority to seek assistance, through CSEC, from foreign partners to intercept the telecommunications of Canadians while they are outside of Canada? [ 93 ] In the CSIS-10-07 application before Justice Blanchard, the Service’s main contention was that the warrant sought was required to ensure that Canadian agents engaged in [***] abroad did so in conformity with Canadian law since the impugned investigative activities may, absent the warrant, breach the Charter and contravene the Criminal Code .

At that time they argued that a warrant could be issued under

section 21 of the Act . This approach would respect the rule of law and would be consistent with the regime of judicial control mandated by

Part II of the Act, they submitted. [ 94 ] The Service contends now that they accepted the outcome of Justice Blanchard’s decision and, in particular, his finding that the Court had no authority to issue such a warrant. In light of that, they say, they turned to the general authority to investigate threats to the security of Canada set out in

section 12 of the Act . They reached the conclusion, through the advice of their legal counsel, that a warrant was not required for CSIS to engage the assistance of the second parties through CSEC to intercept the private communications of Canadians outside the country. CSEC, they argue, does not breach the prohibition against targeting Canadians in the National Defence Act when it provides assistance to CSIS operating under the general investigative authority granted the Service by

section 12 . [ 95 ] On the record before me it appears that no attempt was made to rely on

section 12 as the lawful authority required by CSEC to target Canadians in the exercise of its part ( c ) [ paragraph 273.64(1) (

c) of the National Defence Act ] assistance mandate until the spring of 2009 after the Court had issued the first 30-08 warrant. [ 96 ] In the view of the amicus , the Attorney General’s

interpretation of the scope of

section 12 of the Act allows the Service “to contract out interceptions of Canadians’ communications or accessing Canadians’ information without any warrant or supervision by this Court”. Mr. Cameron characterized this as “effectively an end run around s 21 and following of the Act”. He submitted, however, that I did not have to decide the issues of the scope of

section 12 of the Act, or this Court’

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