2020 FC 697, 2020 FC 697

[***] 2020 FC 697 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 [***a foreign state, group of states, corporation or person***] Indexed as: Canadian Security Intelligence Service Act ( Re ) Federal Court, O’Reilly J.—Ottawa, March 15, 16, 20, April 24, July 11, 2018 and June 16, 2020. Editor’s Note: Portions redacted by the Court are indicated by [***].

Security Intelligence — Application for warrants to gather foreign intelligence pursuant to Canadian Security Intelligence Service Act ( CSIS Act or Act ), s. 16 — Number of issues arising in context of s. 16 over recent years also considered — Act, s. 16 granting Canadian Security Intelligence Service (Service or CSIS) authority to provide assistance to Minister of National Defence or Minister of Foreign Affairs by collecting information or intelligence about capabilities, intentions, or activities of foreign state or foreign person — Service’s role under s. 16 distinct from its primary mandate to investigate threats to security of Canada under Act, s. 12 — Application including submissions on amendments that Service seeking to templates on which s. 16 warrants initially based, as well as representations on treatment of information collected about Canadians, including elected officials, during s. 16 investigations — Court appointing two amici curiae in proceeding; asked to address additional specific issues which consolidated — At issue was: scope of CSIS Act, s. 16 (particularly as it relates to collection of information about Canadians, to concurrent investigations of threats to security of Canada under s. 12 , appropriate warrant templates for execution of intrusive powers in collection of foreign intelligence); whether s. 16 authorizing use of cellular site simulator (CSS) technology; whether s. 16 authorizing interception of [***] data; whether s. 16 authorizing interception of [***foreign persons***] communications outside Canada — S ection 16 providing broad powers but Service’s mandate thereunder containing limits — Service’s authority to collect foreign intelligence strictly confined to foreign entities, precluding targeting of Canadians — Service can intercept communications of Canadians under s. 16 only incidentally; has overarching duty to minimize intrusions on privacy of Canadians who are innocent third parties to s. 16 investigation — Where appropriate, Court can impose terms or conditions on execution of s. 16 warrant to curtail excessive intrusions on privacy — Parliamentary privilege not justifying creation of special rules or guidelines to address situations where communications of elected officials intercepted pursuant to s. 16 warrants — Service should advise Court of guidelines it develops for distributing, unminimizing identities of Canadians whose communications incidentally intercepted; permit Court opportunity to comment thereon — Service took steps to ensure no operational interaction existing between Service’s foreign intelligence activities under s. 16 , its s. 12 mandate relating to security intelligence; addressing Court’s concerns in serious way — Service’s proposed amendments would bring s. 16 warrant templates in line with s. 12 templates — Regarding Service’s ability to capture information through use of CSS, minimally intrusive searches authorized by s. 16 without requirement of warrant — Sufficient safeguards constraining potential over-extension of Service’s foreign intelligence role to satisfy Canadian Charter of Rights and Freedoms, s. 8 respecting minimally intrusive searches, such as use of CSS without warrant — Therefore, in present context, no significant difference between nature, purpose of s. 16 as compared to s. 12 — Interceptions of [***] data capture more personal information than CSS operations — Service engaging in [***] surveys whereby Service trying to identify particular device used by target of investigation — Surveys at issue may involve collection of intrusive lifestyle information — Thus, impartial judicial prior authorization (i.e. warrant) required for Service to collect such information — Act, s. 16 requiring that foreign intelligence be collected only “within Canada” which unambiguously meaning within Canada’s geographical boundaries — Geographical requirements of s. 16 met when interceptions taking place within Canada in respect of communications outside Canada — Application allowed.

This case began as an application for warrants to gather foreign intelligence pursuant to

section 16 of the Canadian Security Intelligence Service Act ( CSIS Act or Act ). It then grew, becoming a vehicle for the consideration of a number of issues that have arisen in the context of

section 16 over recent years.

Section 16 of the Act grants the Canadian Security Intelligence Service (Service or CSIS) authority to provide assistance to the Minister of National Defence or the Minister of Foreign Affairs by collecting information or intelligence about the capabilities, intentions, or activities of a foreign state or foreign person. The Service’s role under

section 16 is distinct from its primary mandate to investigate threats to the security of Canada under

section 12 of the Act . When the original application was heard, the Court was alerted that the application would include submissions on amendments that the Service was seeking to the templates on which

section 16 warrants were then based, as well as representations on the treatment of information collected about Canadians, including elected officials, in the course of

section 16 investigations. The latter was in response to an earlier Direction from the Court requesting the Service to explain its practices and procedure in a future

section 16 warrant application. Two amici curiae were appointed by the Court. Later, the Attorney General of Canada (AGC) sought to address other issues that had not been previously considered by the Court in the

section 16 context. In addition to the issues relating to the warrant templates and the treatment of information about Canadians, the AGC, jointly with the amici , requested that the Court address other specific issues. These various issues were consolidated and rulings were made. At issue was: the scope of

section 16 of the CSIS Act (particularly as it relates to the collection of information about Canadians and to concurrent investigations of threats to the security of Canada under

section 12 , and the appropriate warrant templates for the execution of intrusive powers in the collection of foreign intelligence); whether

section 16 authorizes use of cellular site simulator (CSS) technology;

whether

section 16 authorizes interception of [***] data; and whether

section 16 authorizes interception of [***foreign persons***] communications outside Canada. Held , the application should be allowed. Although the Service’s need to be involved in protecting Canada from foreign clandestine activities is merely a secondary role,

section 16 provides broad powers. However, the Service’s

section 16 mandate contains limits. Its authority to collect foreign intelligence has always been strictly confined to foreign entities and has precluded the targeting of Canadians.

Section 16 allows the Service, within Canada, to gather information or intelligence about a foreign state or group of foreign states, or of a person who is not a Canadian citizen, permanent resident of Canada, or a Canadian corporation. This means that the Service can intercept communications of Canadians under

section 16 only incidentally. The Service has an overarching duty to minimize intrusions on the privacy of Canadians who are innocent third parties to a

section 16 investigation. Where appropriate, the Court can impose terms or conditions on the execution of a

section 16 warrant to curtail excessive intrusions on privacy. The fact that incidental collection of communications by, and information about, Canadians is an inevitable by-product of the collection of foreign intelligence under

section 16 has been recognized since the creation of the Service. At the same time, the collection, retention, and use of incidentally intercepted information raises concerns about Canadians’ privacy. Previously, the Court had requested an explanation from the Service as to CSIS retention practices of communications of Canadians with [***foreign person***] in particular. On receiving the Service’s response, a further Direction was issued directing that the legal issue on the legitimacy of collection and retention when related to information on Canadians, and even more so when such Canadians are democratically elected representatives, be raised as part of a new

section 16 warrant application to allow the Court to have all the information needed to make a proper determination if required. The Service complied with this Direction in the present application. Regarding the Service’s practices relating to information about Canadians, the Service emphasized the scope of the current safeguards in respect of the collection of foreign intelligence pursuant to

section 16 . A policy on the minimization of information about Canadians was also adopted and this serves to limit disclosure of the identities of Canadians in all

section 16 related intelligence. A particular concern related to the incidental interception of communications between members of federal or provincial legislatures and foreign persons or entities—an inevitable consequence of foreign intelligence gathering. Parliamentary privilege does not justify the creation of special rules or guidelines to address situations where the communications of elected officials are intercepted pursuant to

section 16 warrants. The amici were right in stating that the Service should develop criteria and guidelines on the unminimization of identifying information about Canadians. Greater protection should be granted to information about Canadians incidentally collected in the gathering of foreign intelligence. Without guidelines, decisions about the retention, disclosure, and distribution of this information is left to individual discretion. The information about Canadians that the Service obtains in this fashion merits special care and respect.

That is even more true for information about public officials and senior public officials, as the Service’s policies already recognize. The Service should advise the Court of the content of the guidelines on this matter it develops and permit the Court an opportunity to comment on them. In individual warrant applications, the Service should continue to inform the Court when there may be incidental interceptions of Canadians’ communications. It should also specifically disclose when there is a possibility that the communications of an elected official or other public servant may be intercepted.

This disclosure requirement will permit the Court, where appropriate, to attach terms and conditions on the execution of the warrants it issues. An ongoing concern was the potential overlap between, or the blending of, the Service’s mandates under

section 16 and

section 12 of the Act . Accordingly, the Service was asked to address this issue based on the observation that some recent requests for warrants under

section 16 for foreign intelligence purposes resemble applications under

section 12 for warrants to investigate threats to national security. The concern was that

section 16 could come to be used as an alternative or a supplement to

section 12 contrary to the intention of Parliament when enacting the CSIS Act . The Service satisfactorily addressed this issue. The evidence they submitted showed that the Service has taken steps to ensure that there is no operational interaction between the Service’s foreign intelligence activities under

section 16 and its

section 12 mandate relating to security intelligence. In brief, the Service addressed all concerns in a serious way in both its operations and policies and there was no need to propose any further action on the Service’s part. The Service proposed a number of amendments that would bring

section 16 warrant templates in line with

section 12 templates. The proposed modifications did not raise any legal issues. Any changes or improvements to the wording of the

section 12 warrant templates should generally result in corresponding changes to the warrant templates applicable in the foreign intelligence context. The Service sought to confirm that its authority pursuant to

section 16 of the CSIS Act includes the ability to capture information through use of CSS, which can be used to obtain data emitted by mobile devices. Minimally intrusive searches are authorized by

section 16 without the requirement of a warrant. There are at least three notable differences in the nature and purpose of

section 16 as compared to

section 12 . First, the role given to the Service under

section 16 is permissive, not mandatory. Second, the Service’s

section 16 mandate is not a direct responsibility to collect intelligence. The Service’s role is to assist the named ministers. Third,

section 16 does not require that the collection of the information or intelligence be “strictly necessary” or set out a standard comparable to the “reasonable suspicion” threshold. While the mandate given to the Service under

section 16 differs in important ways from its

section 12 role, that is not the equivalent of stating that the nature and purpose of

section 16 is somehow less important or less vital to Canada’s interests than those animating

section 12 . There exists sufficient safeguards constraining the potential over-extension of the Service’s foreign intelligence role to satisfy

section 8 of the Canadian Charter of Rights and Freedoms in respect of minimally intrusive searches, such as the use of CSS, without a warrant. Therefore, in this context, there was not a significant difference between the nature and purpose of

section 16 as compared to

section 12 . In both areas, the Service’s role furthers pressing national interests. In addition, though

section 16 may lack the limiting language of

section 12 , it contains an essential constraint that does not apply to

section 12 –section 16 targets only foreign persons and states, not Canadians. Therefore, no conflict between the warrantless use of CSS and

section 8 of the Charter existed.

Section 16 provides a sufficient and reasonable statutory basis for warrantless searches, so long as they are minimally intrusive and conducted in a reasonable manner. Interceptions of [***] data capture more personal information than CSS operations and require a warrant. The Service engages in [***] surveys, whereby the Service obtains [***] in an effort to identify a particular device used by a target of an investigation. A survey involves the use of a device specially configured to capture [***]. The Service submitted that the most valuable information it obtains in support of its

section 16 mandate often comes from intercepted communications of those [***foreign persons***] who are associated with [***foreign states, groups of foreign states, or foreign corporations***] in respect of which the Service is currently assisting the

Minister. Similar to the use of CSS technology, the surveys at issue allow the Service to obtain the unique electronic identifiersassociated with the devices which, in turn, will permit the Service to conduct warranted interceptions. Minimally intrusive [***] surveysconducted pursuant to

section 16 are carried out reasonably. As with CSS technology, there is no impact on any private communicationsor other private information stored in the device. Any third-party information collected is destroyed. Given the difference between CSSoperations, which involve minimally intrusive collections, and the surveys at issue, which may involve collection of intrusive lifestyleinformation, the latter require a warrant. These surveys may result in the gathering of personal information that is not open to publicview and not released or abandoned by the targets of investigations.

These factors tend in the direction of requiring a warrant. Whilesection 16 is a reasonable law to the extent that it permits conducting minimally intrusive searches without a warrant, the sameconclusion could not be reached regarding the surveys at issue that collect personal lifestyle information. Thus, impartial judicial priorauthorization—a warrant—is required for the Service to collect that information.

Section 16 requires that foreign intelligence be collected only “within Canada”. The words “within Canada” have been the subject ofother litigation in the Court, most particularly in the case of X (Re) ([***]) where it was concluded that the words “within Canada” insection 16 unambiguously mean within Canada’s geographical boundaries. The geographical requirements of

section 16 are met wheninterceptions take place within Canada in respect of communications outside Canada. In the absence of clear legal authority permittingthe Service to intercept a person’s communications outside of Canada, the Service’s current practice is to terminate an interception if itbecomes aware that a subject has left Canada. However, if the Service is not aware of that, the interceptions will continue. Based on theevidence, the Service’s proposed interceptions will be made within Canada and will comply with the geographical limits of

section 16. STATUTES AND REGULATIONS CITED 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. 8. Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2 “threats to the security of Canada”, 12, 12.1, 12.2, 16, 21, 21.1. Criminal Code, R.S.C., 1985, c. C-46, ss. 184, 430(1.1)(c). Radiocommunication Act, R.S.C., 1985, c. R-2, s. 9(1)(b). CASES CITED APPLIED: X (Re), 2018 FC 738, [2019] 1 F.C.R. 567, affd 2018 FCA 207; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R.667; X (Re), 2017 FC 1047, [2018] 3 F.C.R. 111.

CONSIDERED: X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396; Canadian Security Intelligence Service Act (Re), 2012 FC 1437, [2014] 2 F.C.R. 514;Caroline Lucas MP and Ors v. Security Service and Ors, [2015] UKIPTrib 14_79-CH; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212;X (Re), 2009 FC 1058, [2010] 1 F.C.R. 460. REFERRED TO: R. v. Chesson, (SCC), [1988] 2 S.C.R. 148, (1988), 90 A.R. 347; Pankiw v. Canada (Human Rights Commission), 2006FC 1544, [2007] 4 F.C.R. 578; R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399; R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, (1992), 93 D.L.R. (4th) 36; R. v.

Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Collins, (SCC), [1987] 1 S.C.R. 265, (1987), 38 D.L.R. (4th) 508; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Reeves, 2018 SCC 56,[2018] 3 S.C.R. 531; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Kang-Brown, 2008 SCC 18, [2018] 1 S.C.R. 456; R. v.Plant, (SCC), [1993] 3 S.C.R. 281, (1993), 145 A.R. 104; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432. AUTHORS CITED British Columbia. Legislative Assembly, Hansard, 32nd Parl., 2nd Sess. (June 6, 1980). Canada. Parliament. House of Commons. Standing Committee on Justice and Legal Affairs.

Minutes of Proceedings and Evidence, 32ndParl., 2nd Sess., Issue No. 38 (June 7, 1984). 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. Parliament. Senate. Special Committee of the Senate on the Canadian Security Intelligence Service, Proceedings of the Senateon the Canadian Security Intelligence Service on the subject matter of Bill C-157, 32nd Parl., 1st Sess., 1983. Canada. Public Safety.

Ministerial Directive on Legislators’ Privileges and Immunities in relation to

Part IV.1 of the Criminal Codewithin the Precincts of Parliament, Provincial and Territorial Assemblies, Ottawa: Solicitor General Canada, 1983. Cheifetz, David. “Protection of Confidential Communications of Members of Parliament” (1981), 4 Can. Parl. Rev. 17. House of Commons Procedure and Practice, 2nd ed. Ottawa: House of Commons, 2009. Security Intelligence Review Committee. Annual Report, 1993–1994. Taylor, Donald E. “Electronic Surveillance and Members’ Privileges” (1989), 12 Can. Parl. Rev. 12.

APPLICATION for warrants to gather foreign intelligence pursuant to

section 16 of the Canadian Security Intelligence Service Act whereby the initial application grew to consider a number of issues that arose in the context of

section 16 of the Act over recent years. Application allowed. APPEARANCES Jennifer Poirier and Amy Joslin-Besner for applicant Attorney General of Canada. Gordon Cameron and Owen Rees as amici curiae . SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant Attorney General of Canada. Gordon Cameron and Owen Rees as amici curiae . The following are the reasons for judgment and judgment rendered in English by O’Reilly J.: Table of Contents I. Background II. Issue One—What is the scope of

section 16 of the CSIS Act? A. Background—The History and Purpose of

section 16 B. Incidental Collection of Information About Canadians

(1) Introduction

(2) Background

(3) The Service’s practices relating to information about Canadians

(4) Communications and privileges of elected officials C. The Relationship Between

section 16 and

section 12 D. Proposed Changes to the

section 16 Warrant Templates ( 1) Incidental changes to warrant templates

(2) Clarifying the scope of some powers

(3) New powers or locations

(4) Conclusion on warrant templates III. Issue Two—Does

section 16 authorize use of CSS technology? IV. Issue Three—Does

section 16 authorize interception of [***] data?

(1) The Technology

(2) Does

section 16 provide sufficient legal authority? V. Issue Four—Does

section 16 authorize interception of communications outside Canada? VI. Conclusion and Disposition I. Background [Back to table of contents ] [ 1 ] This case began as an application for warrants to gather foreign intelligence pursuant to

section 16 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. 23 [ CSIS Act or the Act ] (see Annex for all provisions cited). It then grew, becoming a vehicle for the consideration of a number of issues that have arisen in the context of

section 16 over recent years. [ 2 ]

Section 16 grants the Service [Canadian Security Intelligence Service or CSIS] authority to provide assistance to the Minister of National Defence or the Minister of Foreign Affairs by collecting information or intelligence about the capabilities, intentions, or activities of a foreign state or foreign person. The Service’s role under

section 16 is distinct from its primary mandate to investigate threats to the security of Canada under

section 12 of the CSIS Act . [ 3 ] The original application before me was heard in October 2017. Counsel for the Attorney General of Canada [AGC] had alerted the Court that the application would include submissions on amendments that the Service was seeking to the templates on which

section 16 warrants were then based, as well as representations on the treatment of information collected about Canadians, including elected

officials, in the course of

section 16 investigations. The latter was in response to an earlier Direction from the Court requesting the Service to explain its practices and procedure in a future

section 16 warrant application. (I provide further details relating to that Direction below.) [ 4 ] After the October 2017 hearing, I appointed two amici curiae to assist me, Mr. Gordon Cameron and Mr. Owen Rees. (Mr. Rees withdrew as amicus in the fall of 2018 due to a change in his employment). In March 2018, the AGC sought to address other issues that had not been previously considered by the Court in the

section 16 context. In addition to the issues relating to the warrant templates and the treatment of information about Canadians, the AGC, jointly with the amici, requested that I address: • The interplay between

section 12 of the CSIS Act and

section 16 (this was in response to concerns expressed periodically by the Court). • Whether

section 16 gives lawful authority for the Service to employ cell-site simulator (CSS) technology. • Whether

section 16 gives lawful authority for the Service to conduct [***] surveys. • Whether

section 6 gives lawful authority for the Service to intercept communications of [***foreign persons***] when they are travelling outside of Canada. [ 5 ] Shortly thereafter, the AGC filed a number of additional affidavits relating to these issues. A

schedule was worked out for the presentation of evidence and oral arguments. A hearing took place in July 2018 and supplementary written submissions were received up until December 2018. [ 6 ] While I have addressed all of the issues presented to me, I should point out that in some areas this judgment is simply a

summary of information I received about the Service’s

section 16 activities that do not require a definitive ruling. For example, in terms of the Service’s policies and practices on collecting and retaining information about Canadians, I describe those matters in detail and note the shortcomings that the amici identified. But I did not have a legal basis on which to order the Service to do more. I do, however, point out areas where the Service’s policies and practices should be bolstered.

Similarly, I describe how the Service carries out parallel operations under sections 12 and 16 and note some concerns about them but, again, found no legal basis for an order. [ 7 ] However, three areas did require rulings—the proposed use of CSS technology, the collection of [***] data, and the interception of [***foreign persons***] communications outside Canada. [ 8 ] I have consolidated the various issues before me under these four headings: i. What is the scope of

section 16 of the CSIS Act (particularly as it relates to the collection of information about Canadians and to concurrent investigations of threats to the security of Canada under

section 12, and the appropriate warrant templates for the execution of intrusive powers in the collection of foreign intelligence)? ii. Does

section 16 authorize use of CSS technology? iii. Does

section 16 authorize interception of [***] data? iv. Does

section 16 authorize interception of [***foreign persons***] communications outside Canada? [ 9 ] In sum, I find that the Service’s treatment of information about Canadians, including elected officials is satisfactory, but should be improved. I also conclude that the Service’s approach to parallel investigations pursuant to sections 12 and 16 is satisfactory. I have also found that

section 16 provides sufficient legal authority to the Service to use CSS technology. However, I find that

section 16 does not provide lawful authority to the Service to intercept [***] data; a warrant is required to do so. Finally, I conclude that

section 16 authorizes the interception, within Canada, of a [***foreign person’s***] communications while outside Canada. II. Issue One—What is the scope of

section 16 of the CSIS Act ? [Back to table of contents ] [ 10 ] This application requires me to consider the overall scope of

section 16 against which some of the more specific questions set out above can be posed. In this section, I begin with some background, then I will discuss the issue of the incidental collection of information about Canadians, including elected officials, in the conduct of

section 16 investigations. I will also compare and contrast

section 16 with

section 12 and discuss the changes that the Service proposes to make to the

section 16 warrant templates, largely to bring

section 16 warrants into line with

section 12 warrants. A. Background—The History and Purpose of

section 16 [Back to table of contents ] [ 11 ] From the beginning—that is, when the CSIS Act was enacted in 1984—the Service was given the express authority, within Canada, to assist the Minister of National Defence and the Minister of Foreign Affairs in gathering information about the “capabilities, intentions or activities” of foreign states or any persons other than Canadian citizens, permanent residents, or corporations (paragraphs 16(1)(a),(b)).

In this decision, I will refer to this mandate as the Service’s role in gathering “foreign intelligence.” [ 12 ] It was also clear, however, that the need for the Service to be involved in protecting Canada from foreign clandestine activities was merely a secondary role (or even a tertiary one, according to the Special Committee on the Security Intelligence Service, 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), at paragraph 49).

See also X ( Re ) , 2018 FC 738 , [2019] 1 F.C.R. 567 , at paragraph 28 ; X ( Re ) , 2016 FC 1105 , [2017] 2 F.C.R. 396 ( Associated Data ), at paragraph 165 . [ 13 ] Nevertheless,

section 16 provides broad powers. Arguably, the terms “capabilities, intentions or activities” could refer to virtually anything a foreign country [***or foreign person***] might wish to learn, achieve, obtain, accomplish, or carry out. Further, in pursuit of

its

section 16 mandate, the Service can request the Court to grant it a range of intrusive powers, including search, seizure, and electronicsurveillance, to collect intelligence relating to any of those objects in order to assist one or both of the named ministers. [14] The range of matters on which a minister might seek assistance is also broad. The mandate of the Minister of Foreign Affairs, forexample, includes conducting the external affairs of Canada, as well as international trade, commerce, and development.

Global AffairsCanada identifies current priorities as including a comprehensive engagement with countries in the Asia-Pacific Region, as well asdiversified international trade and foreign investment. Other notable priorities include combatting drug trafficking, maintainingconstructive relations with the United States, and expanding Canadian leadership on the global scene in areas such as human rights,climate change, and peacekeeping.

The Minister also has responsibility for Canada’s diplomatic relations, which includes ensuring thatforeign diplomats and consular agents in Canada abide by their obligations not to violate Canadian laws or interfere in Canada’s internalaffairs. [15] It is perhaps not surprising that the Service scoops up vast quantities of foreign intelligence when it exercises the broad mandateand authority given to it by Parliament under

section 16. [16] At the same time, it is important to recognize that the Service’s

section 16 mandate contains limits. Its authority to collect foreignintelligence has always been strictly confined to foreign entities, and has precluded the targeting of Canadians.

Section 16 allows theService, within Canada, to gather information or intelligence about a foreign state or group of foreign states, or of a person who is not aCanadian citizen, permanent resident of Canada, or a Canadian corporation. It specifically provides that the Service’s assistance cannotbe directed at Canadians, whether citizens, permanent residents, or companies (see Canadian Security Intelligence Service Act (Re), 2012FC 1437, [2014] 2 F.C.R. 514 (Re CSIS), at paragraph 98, per Justice Anne Mactavish, now a justice of the Federal Court of Appeal).This means that the Service can intercept communications of Canadians under

section 16 only incidentally. These incidentalinterceptions are an inevitable by-product of the collection of foreign intelligence, especially when powers of electronic surveillance areemployed. [17] The Service has an overarching duty to minimize intrusions on the privacy of Canadians who are innocent third parties to asection 16 investigation. Accordingly, the Court requires the Service to provide in advance the names of persons whose communicationsmay be incidentally intercepted (pursuant to R. v. Chesson, (SCC), [1988] 2 S.C.R. 148, (1988), 90 A.R. 347). Whereappropriate, the Court can impose terms or conditions on the execution of a

section 16 warrant to curtail excessive intrusions on privacy.However, intrusions on the privacy of targets are significantly greater than intrusions on the privacy of third parties because, unliketargets, their communications cannot be intercepted intentionally (Re CSIS, at paragraphs 33–34). B. Incidental Collection of Information About Canadians [Back to table of contents]

(1) Introduction [Back to table of contents] [18] The fact that incidental collection of communications by, and information about, Canadians is an inevitable by-product of thecollection of foreign intelligence under

section 16 has been recognized since the creation of the Service. A proposal that would haverequired the Service to terminate an interception if a Canadian was a party to the communication was rejected as impractical by theStanding Committee on Justice and Legal Affairs in 1984 (Canada, House of Commons, Minutes of Proceedings and Evidence, IssueNo. 38 [32nd Parl., 2nd Sess.] (June 7, 1984), at pages 65–68). [19] At the same time, the collection, retention, and use of incidentally intercepted information raises concerns about Canadians’privacy. [20] I received a significant amount of evidence about how the Service treats information about Canadians collected incidentallypursuant to

section 16. Most of this evidence came in the form of affidavits and testimony from a senior Service employee, the DirectorGeneral of the Secretariat of Deputy Director Operations (DDO), [***] The following description is taken largely from that person’sevidence.

(2) Background [Back to table of contents] [21] In 2017, my colleague Justice Simon Noël, issued a Direction requesting the Service to provide an explanation “as to the CSISretention practices of Canadians’ communications with [***foreign persons***] and Condition 1 of the General Intercept and SearchWarrant.” The Service responded to Justice Noël’s request by way of letter in which it pointed out that

section 16 contemplates theincidental collection of information about Canadians as was specifically recognized by Justice Mactavish in her 2011 decision (Re CSIS,above). Justice Mactavish found that “properly interpreted, subsection 16(2) prohibits the interception of the communications of[Canadian citizens] … except insofar as those communications may be incidentally intercepted through the exercise of warrant powers inrelation to the communications of [non-Canadians]” (at paragraph 106).

Accordingly, said the Service in its reply to Justice Noël,“warrants provide authority to the Service to intercept incidentally the communications and the oral communications of any personsolely in the course of exercising the interception powers authorized in the warrants.” [22] The Service also explained to Justice Noël that the processing of incidentally collected information was conducted promptly andthat information that did not fall within the exceptions contained in Condition 1 of the warrants was destroyed [***] Condition 1 statesthat information about Canadians shall be destroyed unless it (

a) relates to activities constituting a threat to national security; (

b) couldbe used to prevent, investigate, or prosecute a crime; or (

c) relates to the capabilities, intentions or activities of any foreign state, person,or corporation for which Ministerial assistance has been requested. [23] According to the Service, information that falls within one of the exceptions in Condition 1 would be retained in accordance withthe CSIS Retention

Schedule for [***] (although this has since been reduced in practical terms to [***] The information could be used ina report, however, and reports can be retained for 20 to 50 years. [24] On receiving the Service’s response, Justice Noël issued a further Direction in which he noted that the letter “raises questions asto the legitimacy of collection and retention when related to information on Canadians and even more so when such Canadians are

democratically elected representatives.” He directed that “this legal issue should be raised as part of a new

section 16 warrant application so that the Court can have all the necessary factual and legal information to make a proper determination if required.” [ 25 ] In due course, the Service complied with Justice Noël’s Direction in the application before me. As explained above, the Service also took the opportunity to raise a number of other legal issues arising under

section 16.

(3) The Service’s practices relating to information about Canadians [Back to table of contents ] [ 26 ] The Service emphasized the scope of the current safeguards in respect of the collection of foreign intelligence pursuant to

section 16. [ 27 ] The powers available under

section 16 can be invoked only if the Minister of Foreign Affairs or the Minister of National Defence personally requests, in a written Letter of Request, the assistance of the Service. Assistance will be provided only if the Minister of Public Safety and Emergency Preparedness personally responds with a written Letter of Consent. [ 28 ] Attached to the Minister’s Letter of Request is an Annex called “Rationale” setting out the specific intelligence requirements being sought.

The Rationale includes “Clear Requirements/Tasking” providing particulars about the matters of greatest interest to the requesting Minister. [ 29 ] Receipt of a Letter of Request does not automatically lead to a Service application for a warrant. Rather, the Service may begin to deploy minimally intrusive measures to gather intelligence—physical surveillance, human source contacts, and so on. If more intrusive tools are needed, the Service may then seek a warrant. [ 30 ] According to the DDO Directive on

Section 16 of the CSIS Act (2014), when the Service receives a request for assistance, it initially examines the request to ensure that it falls within the ambit of

section 16 , that it does not target Canadians, and that it does not seek information that would normally be obtained under the Service’s

section 12 mandate (i.e. relating to threats to the security of Canada). [ 31 ] Any information collected pursuant to

section 16 is reviewed by a Communications Analyst (CA) who determines whether it has value. If not, the information is destroyed. If so, the CA will draft an internal report which is then reviewed by the CA’s supervisor who verifies the relevance of the information, and ensures compliance with the Service’s policies. If the report is approved, it is added to the Service’s

section 16 database. [ 32 ] Internal reports prepared by a CA may form the basis of an external report drafted by a Requirements Officer (RO) whose task is to respond to the Minister’s requirements as set out in the Rationale accompanying the Letter of Request. External reports have limited distribution on a need-to-know basis. Recipients must obtain permission from the Service to make further use of them. The level at which approval must be obtained varies according to the sensitivity of the contents of the report. [ 33 ] Information that is collected incidentally about Canadians is protected in a number of ways. To begin with, access to the

section 16 database is limited; it is granted only on a file-by-file basis, meaning that persons involved in analyzing foreign intelligence about one country will not have access to information about another. Access is controlled by a senior Service employee, [***] [ 34 ] The Service has also adopted a policy on the minimization of information about Canadians. The DDO Directive on

Section 16 of the CSIS Act , cited above, defines minimization as the measures taken to reduce the extent of electronic surveillance while allowing legitimate investigations to be carried out. However, a better definition of minimization for present purposes is contained in OPS-221,

section 1.19: A term used to identify the practise whereby, unless subject to a specific exemption, any recognizable reference to a Canadian citizen, a permanent resident within the meaning of the Immigration and Refugee Protection Act ( IRPA ) or a corporation incorporated by or under

an Act of Parliament or of the legislature of a province or territory, is replaced by a generic term. [ 35 ] In other words, minimization serves to limit disclosure of the identities of Canadians (citizens, permanent residents, and companies) in all

section 16 related intelligence by deleting them or replacing them with non-specific labels, such as “a Canadian company” or “a named Canadian person.” [ 36 ] There are four exemptions in OPS-221. Minimization will not occur if the reference to a Canadian: i. Is necessary to the understanding or exploitation of the foreign intelligence; ii. Concerns activities that could constitute a “[threat] to the security of Canada” as defined in

section 2 of the CSIS Act ; iii. Concerns the prevention, investigation, or prosecution of an alleged indictable offence; or iv. Is already in the public domain. [ 37 ] In practice, there is more minimization in external reports than in internal reports. Generally speaking, recipients of external reports do not need to know Canadians’ identities in order to understand or use the intelligence the Service provides in response to a Ministerial request.

The main purpose of an external report is to respond to the Rationale contained in the Minister’s Letter of Request; personal information is less likely to be relevant to that purpose. On the other hand, the raw information contained in internal reports will be difficult to understand if the identities of the persons involved are not disclosed.

The Service witness provided examples of internal reports in which the identity of a Canadian was integral to the intelligence that had been gathered; without it, the information would have been virtually useless. [ 38 ] When deciding whether to provide a Canadian’s identity in an external report on the grounds that it is necessary to an

understanding of the foreign intelligence, ROs do not apply any formal criteria, although the Intelligence Assessment Branch of the Service is developing guidelines. However, ROs do consider the client department receiving the report and the use to which the report will likely be put, and will sometimes limit the distribution of reports containing identifying information, or include a special caveat within the report.

The RO’s decision not to minimize an identity is reviewed by his or her supervisor. [ 39 ] OPS-221 contains special guidance in respect of Canadian “public officials” and “senior public officials.” The former category includes provincial and territorial legislators, mayors, deputy mayors, and municipal council members.

The latter consists of a broad range of officials: Prime Minister, Governor General, Lieutenant Governors, Clerk of the Privy Council, Order-in-Council appointments, Provincial/Territorial Premiers, Provincial/Territorial leaders of opposition parties, Members of Parliament, Senators, Parliamentary/legislative Secretaries, Deputy Ministers, Associate Deputy Ministers, Assistant Deputy Ministers, heads of public agencies or corporations, members of the Judiciary, and Chiefs of Staff for senior public officials. [ 40 ] The policy requires the approval of the Director of the Service or a designate before any external reports can include information or intelligence relating to public officials or senior public officials (OPS-221,

section 3.1). [ 41 ] Where information about a Canadian has been minimized in an external report, the recipient of the report can request the Service to reveal the identity of the person or company referred to; that is, it can request un-minimization.

If the Service agrees to provide that information, it will be contained in a separate report so that the original report containing minimization is not altered; in other words, other recipients of the report will not receive the Canadian’s identity. [ 42 ] No particular rationale needs to be given for the un-minimization of information in an external report, and the Service does not apply any specific criteria for granting such a request.

However, the standard practice is that the requester must give some reason why a person’s identity should be disclosed and provide information about the extent to which that identity will be distributed further. The request is then forwarded to the relevant operational branch for consideration. The branch considers the rationale and the source of the request. It may ask for further information before responding. The branch will also consider whether the minimized identity relates to a source, or could otherwise lead to the identification of a source; if so, the request will be denied.

Similarly, if the disclosure would jeopardize an ongoing Service operation, the request will be denied. [ 43 ] The Service’s operations relating to

section 16 intelligence gathering has been reviewed by the Security Intelligence Review Committee [SIRC] and discussed in various Annual Reports. In the early 1990s, SIRC began examining foreign intelligence retained by the Service (little use had been made of

section 16 up to then). It found that the Service was not targeting Canadians or retaining excessive or unnecessary information from

section 16 operations ([ Annual Report ] 1993–1994, at page 36). [ 44 ] By the mid-1990s, SIRC was satisfied that the Service was dealing appropriately with information about Canadians, including Canadian political figures, and was reviewing the Service’s warrant applications at least annually. The number of

section 16 applications was, however, growing. [ 45 ] In the late 1990s, however, SIRC found that there were a number of instances in which the Minister’s

section 16 requests did not comply with the prohibition on targeting Canadians (1997–1998, at page 53). [ 46 ] In 1999, noting that some

section 16 warrants did not contain caveats about the incidental interception of communications by Canadians, SIRC recommended that ministers seeking the Service’s assistance should indicate when there is a real likelihood of those interceptions occurring, and that

section 16 warrants should explicitly prohibit targeting Canadians (1999–2000, at page 30). SIRC also expressed concern about the duration of the Service’s retention of information about Canadians, and suggested that reports to requesting agencies should contain only the information that was absolutely essential for the exploitation of the foreign intelligence. [ 47 ] In the within warrant application, the Service proposes to reinforce its recognition of the limited scope of

section 16 in respect of Canadians by adding the following recital indicating that the authorizing judge is satisfied that the

section 16 warrant requested is not directed at any Canadians: I am satisfied that the warrants do not contravene the limitation stipulated at paragraph 16(2) of the Act . In particular, I am satisfied that the warrant powers set out herein will not be directed at any person who is a Canadian citizen, a permanent resident within the meaning of the Immigration and Refugee Protection Act , or a corporation incorporated by or under

an Act of Parliament or of the legislature of a province. [ 48 ] This recital has been included in

section 16 warrants over the past year. It is an important addition to these warrants and, in my view, should continue to be employed. This is particularly so given the concerns expressed by SIRC over the years.

(4) Communications and privileges of elected officials [Back to table of contents ] [ 49 ] A particular concern relates to the incidental interception of communications between members of federal or provincial legislatures and foreign persons or entities. Again, this is an inevitable consequence of foreign intelligence gathering. For example, a [***foreign person***], whose communications are intercepted pursuant to a warrant issued by the Court to the Service, may telephone a member of Parliament to discuss a matter of mutual interest or concern.

The member’s comments will be intercepted incidentally as a result of the warrant. [ 50 ] The amici suggest that these kinds of interceptions do not impinge directly on Parliamentary privilege; however, they maintain that the values that underscore and permeate the concept of Parliamentary privilege are put in play. This requires, they say, special care and treatment of the incidentally intercepted communications. [ 51 ] In my view, parliamentary privilege does not justify the creation of special rules or guidelines to address situations where the communications of elected officials are intercepted pursuant to

section 16 warrants. First, properly understood, parliamentary privilege is

not engaged by these kinds of interceptions. Second, the Service’s current procedures relating to the treatment of incidentally intercepted communications of all Canadians, described above, including public officials and senior public officials, under

section 16 warrants are generally adequate and consonant with the Service’s

section 16 mandate.

However, as discussed below, I agree with the amici that the Service should develop criteria and guidelines on the unminimization of identifying information about Canadians. [ 52 ] According to the House of Commons Procedure and Practice , 2nd ed. [Ottawa: House of Commons], 2009, Parliamentary privilege refers to those rights possessed by members of a legislature that are essential to their role: Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…. and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law . [ 53 ] As an example, to enhance their freedom to debate issues of public policy, legislators are immune from liability for defamation in respect of comments made within the Parliamentary precinct on subjects relating to Parliamentary business. That privilege is limited, and does not extend even to communications between legislators and constituents ( Pankiw v.

Canada (Human Rights Commission) , 2006 FC 1544 , [ 2007] 4 F.C.R. 578 ). [ 54 ] The question whether the electronic interception of legislators’ communications intrudes on Parliamentary privilege has been considered by legislative bodies, but not definitively answered, over the years. [ 55 ] In the late 1970s, the then Speaker of the House of Commons, Mr.

James Jerome, ruled that the interception of communications of a Member of Parliament raised a prima facie question of privilege, even when it took place outside the Parliamentary precinct, if it amounted to harassment, obstruction, molestation, or intimidation.

However, a motion to refer the question to the Standing Committee on Privileges and Elections was defeated in the House, so no formal ruling on the matter was made. (See Special Committee of the Senate on the Canadian Security Intelligence Service, Proceedings of the Senate on the Canadian Security Intelligence Service on the subject matter of Bill C-157 [32nd Parl., 1st Sess., 1983]; House of Commons Procedure and Practice , 2nd ed., 2009, page 9.) [ 56 ] In 1980, a Special Committee of the British Columbia legislature concluded that the interception of a member’s communications by the RCMP amounted to a breach of privilege and contempt of the legislature.

Fear of intercepts, the Committee found, interfered with members’ ability to perform their legislative duties, including in their homes. It stated [at page 2850 of Legislative Assembly, Hansard , 32nd Parl., 2nd Sess., (June 6, 1980)]: … parliamentary democracies flourish only when member and constituent can communicate freely, openly and candidly without having the spectre of interception … interfering with such communications. [ 57 ] Also in 1980, a Special Committee of the Yukon Assembly considered whether the wiretapping of the Minister of Justice’s telephone interfered with Parliamentary privilege.

Like the B.C. Committee, the Yukon Special Committee concluded that the actions of the RCMP amounted to a breach of privilege and contempt of the House (see Donald E Taylor, “Electronic Surveillance and Members’ Privileges” (1989), 12 Can. Parl. Rev. 12; David Cheifetz, “Protection of Confidential Communications of Members of Parliament” (1981), 4 Can. Parl. Rev. 17). [ 58 ] These events in B.C. and Yukon led the Solicitor General of Canada in 1983 to issue a Ministerial Directive on Legislators’ Privileges and Immunities in relation to

Part IV.1 of the Criminal Code within the Precincts of Parliament, Provincial and Territorial Assemblies . The Directive required the RCMP to seek advance legal advice from the federal or provincial Department of Justice and to inform the agent designated to apply for the warrant that a privilege may be in play. In turn, the agent would have to inform the judge hearing the warrant application of the particular circumstances. Further, the responsible cabinet member—the Solicitor General at the federal level and the Attorney General in the province—was to be informed before the warrant was executed.

In addition, if execution of the warrant was to take place within the precincts of Parliament or a legislature, consent of the Speaker would be required. [ 59 ] These examples show special concern about the interception of legislators’ communications. None of them, however, involved rulings by the courts on the scope of parliamentary privilege in general, or the impact that intercepting legislators’ communications would have on any privilege. [ 60 ] In the United Kingdom, the Investigatory Powers Tribunal considered the issue in 2015: Caroline Lucas MP and Ors v.

Security Service and Ors , [2015] UKIPTrib 14_79-CH. The Tribunal noted that the general policy, referred to as the “Wilson doctrine”, prohibits interception of parliamentarians’ communications. However, according to the Official Guidance given to security services, the Wilson doctrine applies only where the communications of members of parliament are deliberately, not incidentally, targeted. Even so, if special measures are followed, the communications of a Member of Parliament can be targeted and intercepted under warrant.

Those measures include special authorization by designated officials, and the involvement of the Secretary of State, the Cabinet Secretary, the Prime Minister, and a special legal advisor charged with retaining and handling the intercepted communications. [ 61 ] Accordingly, notwithstanding the Wilson doctrine, there is no absolute prohibition against the targeted interception of parliamentarians’ communications in the United Kingdom, but great care is taken to ensure that interceptions are justified and that their fruits are carefully handled.

Note, however, that these U.K. warrants are not subject to judicial authorization. [ 62 ] The Supreme Court of Canada has pronounced on the scope of Parliamentary privilege generally but not on the question of intercepting parliamentarians’ communications ( Canada (House of Commons) v. Vaid , 2005 SCC 30 , [2005] 1 S.C.R. 667 [ Vaid ]).

At issue in Vaid was Parliament’s jurisdiction to deal with rights owed to employees of the House of Commons as compared to the jurisdiction of other bodies, such as the Canadian Human Rights Tribunal, with responsibilities for federal public servants generally. [ 63 ] Vaid makes clear that defining the scope of Parliamentary privilege falls to the courts, not to the legislatures. The first step is to determine whether “ the existence and scope of the claimed privilege have been authoritatively established” in respect of the Canadian Parliament or the U.K. House of Commons (at paragraph 39).

Where there has been no authoritative ruling on the question, the court must “test the claim against the doctrine of necessity, which is the foundation of all parliamentary privilege” (at paragraph 40). While not

bound by them, courts will give “considerable deference” to the views of legislators on the scope of autonomy they consider necessary to their function (at paragraph 40). [ 64 ] It is the courts, then, that define the scope of a privilege, while legislators determine the merits or the appropriateness of its exercise. [ 65 ] To determine what is “necessary”, one must consider what is needed “to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business” (at paragraph 41).

The requirement of necessity imports “important limits” on the scope of the privilege (at paragraph 43). For example, there may be words or actions that are unrelated to parliamentary business and would, therefore, fall outside the parameters of the privilege.

Courts will recognize as privileged only those activities that are “so closely and directly connected” with parliamentary functions that “outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (at paragraph 46). [ 66 ] In Vaid , the Court found that parliamentary privilege did not oust the jurisdiction of the Tribunal, and laid out a number of general principles, the most pertinent of which for present purposes are: • Parliamentary privilege includes the immunity necessary for members to do their legislative work. • The test for necessity is what the dignity and efficiency of the House require.

The concept of dignity and efficiency is linked to the autonomy that is necessary to enable Parliament and its members to do their jobs. • The party seeking to rely on the immunity provided by parliamentary privilege has the onus of establishing it. • Once a category or sphere of activity has been established, it is for Parliament to decide whether the exercise of the privilege is necessary or appropriate. • Existing categories include: freedom of speech, control by the House over debates and proceedings in Parliament, the power to exclude strangers from proceedings, disciplinary authority over members and non-members who interfere with the discharge of Parliamentary duty, and immunity of members from subpoenas during a parliamentary session. • The mere affirmation by a legislative body that a certain act is a breach of its privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists. • The courts will look more closely at cases in which the privilege claimed will have an impact on persons outside the legislative assembly, than those in which the matters are entirely internal to the legislature. [ 67 ] The Court did not refer to the kind of the privilege discussed above that was recognized in respect of the B.C. and Yukon legislatures; nor did it address the issue of immunity from wiretapping within the categories of privilege currently recognized.

But it is clear from its reasoning that it would fall to the courts, not the legislators, to determine whether any such privilege existed. Accordingly, while the views of the B.C. and Yukon legislators merit considerable deference, they are not determinative. [ 68 ] In sum, there is no clear legal authority for the proposition that intercepting the communications of parliamentarians, in itself, violates Parliamentary privilege.

Only if the interception interfered with a member’s ability to conduct parliamentary business or otherwise constituted harassment or intimidation, would the question of privilege arise. [ 69 ] For

section 16 purposes, a parliamentarian, being Canadian, could not be directly targeted. However, as mentioned, his or her communications could be intercepted incidentally pursuant to a valid

section 16 foreign intelligence warrant. Not being a target, it is difficult to see how an interception could amount to an attempt to interfere with the member’s ability to conduct parliamentary business. Similarly, if the member is not the target, it is unlikely that the execution of the warrant would take place within the Parliamentary precinct.

There would be no need to obtain the permission of the Speaker of the House to conduct an interception. [ 70 ] In any case, however, as explained above, the amici do not assert that parliamentarians enjoy actual immunity from incidental interceptions of their communications in the foreign intelligence gathering context. Therefore, I need not rule definitively on that question.

I do, however, have to consider whether applications for, and the fruits of, those interceptions require special treatment. [ 71 ] The amici suggest that the current policies that apply to the incidental interception of parliamentarians’ communications provide inadequate protection of Canadians’ privacy. They propose that the Court impose conditions on the Service relating to the retention, disclosure, and minimization of information about elected officials pursuant to the authority to include terms and conditions on the execution of warrants issued by the Court ( CSIS Act, paragraph 21(4) (f)).

They also suggest that the Court play a supervisory role. In particular, they submit that the Service should be required to return to the Court for permission to retain incidentally collected communications of Canadians, to distribute information collected, or to unminimize the identities of Canadians. They note that, in the case of incidental collection of communications of elected officials, these requirements would permit the Court to rule on any issues of parliamentary privilege that might arise.

While they do not see the need for special rules for parliamentarians, they note that clearer rules about Canadians generally would also foster communications between elected officials and their constituents. [ 72 ] I largely agree with the amici . Greater protection should be granted to information about Canadians incidentally collected in the gathering of foreign intelligence. As mentioned, there are no formal criteria guiding Service employees or others on unminimizing identities of Canadians.

Without guidelines, decisions about the retention, disclosure, and distribution of this information is left to individual discretion. More is required, especially since this is information that is acquired merely as a by-product of the Service’s mandate to collect foreign intelligence. I would not go so far, however, as to impose a blanket obligation on the Service to return to the Court for permission to retain incidentally collected information about Canadians. [ 73 ] The information about Canadians that the Service obtains in this fashion merits special care and respect. That is even more true

for information about public officials and senior public officials, as the Service’s policies already recognize. As explained, it is not parliamentary privilege itself that animates the need for extra care; indeed, few officials could mount any real claim to privilege. The concern about gathering information about public officials is that the Service may be intercepting highly sensitive communications emanating from persons charged with the governance of Canada.

That information, particularly information about the identity of the Canadian persons involved, must be carefully handled. [ 74 ] In my view, the Service must develop guidelines for distributing and unminimizing the identities of Canadians whose communications have been incidentally intercepted. It should advise the Court of the content of those guidelines and permit the Court an opportunity to comment on them. In individual warrant applications, the Service should continue to inform the Court when there may be incidental interceptions of Canadians’ communications.

It should also specifically disclose when there is a possibility that the communications of an elected official or other public servant may be intercepted. This disclosure requirement will permit the Court, where appropriate, to attach terms and conditions on the execution of the warrants it issues. Those terms and conditions could include imposing a requirement on the Service to return to the Court for directions on the handling of information collected, as proposed by the amici . C. The Relationship Between

section 16 and

section 12 [Back to table of contents ] [ 75 ] An ongoing concern of members of the Court is the potential overlap between, or the blending of, the Service’s mandates under

section 16 and

section 12. Accordingly, I asked the Service to address this issue based on the observation that some recent requests for warrants under

section 16 for foreign intelligence purposes resemble applications under

section 12 for warrants to investigate threats to national security. The resemblance arises from two features of these

section 16 applications. First, they have related, in essence, to matters that could easily be described as threats to the security of Canada. Second, they sometimes involve targets who are already the subject of warrants under

section 12. [ 76 ] The concern that arises from this situation is that

section 16 could come to be used as an alternative or a supplement to

section 12, contrary to the intention of Parliament when enacting the CSIS Act . When requesting a warrant, the Service may sometimes perceive an advantage in proceeding under

section 16 rather than

section

Section 16 arguably has a broader scope relating as it does to the collection of information about “the capabilities, intentions or activities” of any foreign state or non-Canadian person. By contrast,

section 12 applies only to the collection, analysis, and retention of information relating to “threats to the security of Canada”, a term that is statutorily defined. [ 77 ] A potential scenario would be this: If the Service believed that a foreign person in Canada was involved in some activity that posed a danger that did not necessarily fall within the definition of a “[threat] to the security of Canada,” it could seek a warrant under

section 16 to determine the person’s intentions, capabilities, or activities. Of course, there are constraints that apply to

section 16. The Service could seek a foreign intelligence warrant only if its assistance was requested by the Minister of National Defence or the Minister of Foreign Affairs, and with the consent of the Minister of Public Safety and Emergency Preparedness. Further, the Service could collect information only within Canada. The Service could not directly target a Canadian person. However, if a Canadian was known to be in contact with [***] or other foreign persons, the Service could target the latter and “incidentally” intercept the communications of the former. In effect, a Canadian could become the indirect target of a foreign intelligence warrant, even though

section 16 specifically prohibits the targeting of Canadians. [ 78 ] I hasten to point out that there is no suggestion that the Service has ever used

section 16 in this manner. The concern arises from the potential to use

section 16 in this way and, as mentioned, the facial similarity between some recent

section 16 applications and

section 12 requests. [ 79 ] The Service addressed this issue by presenting the evidence of two senior and experienced Service members. This evidence satisfies me that the Service has taken steps to ensure that there is no operational interaction between the Service’s foreign intelligence activities under

section 16 and its

section 12 mandate relating to security intelligence. The following is a

summary of that evidence. [ 80 ] The Service’s operations, whether under

section 12 or

section 16, or otherwise, are subject to internal policy directions. For matters relating to national security, if the Service has grounds to suspect that a person or group poses a threat, it may request internal authority to begin an investigation. Those charged with reviewing these requests help ensure that the proposed investigation complies with the Service’s policies and the governing law, and amounts to a proportional response to the perceived threat. [ 81 ] Information collected under

section 12 is reviewed by an analyst who determines its intelligence value. Information is retained only as permitted by the Service’s retention schedule. Information with no intelligence value is destroyed after [***] Valuable information may be retained for 20 or 25 years after the last action on the file. Information that was collected pursuant to a warrant is subject to the conditions set out in it.

For example, specific time periods for destruction of information are provided for solicitor-client communications and the communications of third parties. [ 82 ] Policies also govern the preparation of operational reports. If the analyst concludes that the information collected is valuable, and that the applicable policies and conditions have been respected, he or she will prepare an operational report.

These reports are reviewed by supervisors who verify the relevance of the information collected, ensure that the Service’s policies have been respected and, if the information was gathered under a warrant, confirm compliance with the applicable terms and conditions. If the supervisor approves the report, it will be stored in the Service’s

section 12 database. These reports may then form the basis of other intelligence reports submitted to persons within the Government of Canada, with the caveat that they not be used or distributed further without the Service’s permission. [ 83 ] Information collected under

section 16 is treated similarly, but separately. Again, an investigation must first be authorized. Here, though, that authority comes from the Minister of Public Safety’s consent to a written request for assistance from the Minister of Foreign Affairs or the Minister of National Defence. Once the Service receives the request and the consent, it will begin gathering relevant information and, if there are reasonable grounds to believe that the powers available under warrant are necessary, it will seek the Court’s authority under

section 21 of the CSIS Act .

[ 84 ] The Service itself recognizes the possibility of a co-mingling of

section 12 and

section 16 mandates. The Service’s operations policy acknowledges that parallel investigations may be necessary in some circumstances; however, it specifically provides that “operations conducted to support an investigation under one

section of the CSIS Act will not be used as a pretext for conducting operations pursuant to another

section of the Act ” (emphasis in the original). [ 85 ] Over the years, the Security Intelligence Review Committee has repeated similar concerns. [ 86 ] In 2006–2007, SIRC reported that the Inspector General had noted considerable overlap between

section 12 and

section 16 operations. For example, agents tasked with obtaining information abroad under

section 12 provided intelligence relevant to

section 16. Indeed the Inspector General wondered whether the geographical constriction of

section 16 (“within Canada”) was a meaningful limitation on the Service’s powers (page 37). [ 87 ] Further, in 2009–2010, SIRC noted that the Service had referred to simultaneous

section 16 and

section 12 investigations as “blended collections”, where the Service was engaged in

section 12 and

section 16 operations against the same targets. It observed that if this situation were to continue, the Service could become a body with equivalent foreign intelligence and security intelligence mandates, which was not the original intention of Parliament. It recommended that the Government of Canada provide direction or guidance to the Service on its expanded role in collecting foreign intelligence (2009–2010, at page 15). [ 88 ] In 2013, SIRC again detected a potential tension between the Service’s two mandates under sections 12 and 16. The Service itself felt its

section 16 non-threat-related mandate had the potential to distract it from its primary role of gathering threat-related intelligence under

section 12 (2012–2013, at page 16). [ 89 ] In 2015, SIRC commended the Service for adapting its

section 16 procedures to coordinate and streamline its priorities and activities. The Service had also made changes to distinguish between its

section 12 and

section 16 operations (2014–2015, at page 22). [ 90 ] The amici emphasize that the Service must not make any “colourable use” of a

section 16 foreign intelligence warrant to collect

section 12 security intelligence. This means that the Service should seek a separate

section 12 warrant if its

section 16 investigation discloses a threat to national security. In addition, where parallel investigations are ongoing, the Service must satisfy the discrete requirements for

section 12 and

section 16 warrants separately and independently, and inform the judge receiving each warrant application of the existence of the other. [ 91 ] The amici accept, based on the evidence filed on this application, that the Service is currently abiding by the procedures they propose. They note, however, that the heightened protection in respect of incidentally collected information about Canadians that they recommend (as discussed above) would help ensure that the Service does not use foreign intelligence warrants to collect security intelligence about Canadians. [ 92 ] In my view, the Service is acutely aware of the Court’s (and SIRC’

s) concerns in this area. It has addressed those concerns in a serious way in both its operations and policies. I see no need to propose any further action on the Service’s part. I have no doubt, however, that members of the Court will continue to expect the Service to address any concerns the Court may have about future “blended collections.” In addition, I agree with the amici that stronger protection in respect of incidentally collected information about Canadians would help dispel some of those concerns. D. Proposed Changes to the

section 16 Warrant Templates [Back to table of contents ] [ 93 ] The AGC proposes a number of changes to the templates that provide a presumptive format and content for the various kinds of foreign intelligence warrants the Court issues pursuant to

section 16. These changes fall within three categories: i. Incidental changes bringing the

section 16 warrant templates into line with

section 12 warrants. ii. Amendments clarifying the scope of particular powers. iii. New powers. [ 94 ] In this section, I will deal only with proposed changes that do not amount to any significant expansion of the powers exercised under

section 16 warrants. I will deal elsewhere with the comparatively substantial changes the Service seeks, such as those relating to the use of CSS and [***] surveys.

(1) Incidental changes to warrant templates [Back to table of contents ] [ 95 ] The Service proposes a number of amendments that would bring

section 16 warrant templates in line with

section 12 templates.

These include: • Inclusion of a new condition clarifying the meaning of the word “destroyed” when creating an obligation on the Service to destroy information. “Destroyed” would be defined as meaning that the information “shall not be retrieved by the Service or by any other agency or person on its behalf.” • Amendment of the definition of “residence” to include any place in which a Regional Director General has reasonable grounds to believe a person resides. • Inclusion of a definition of “test data” and a corresponding condition allowing the Service to retain intercepted communications solely for purposes of developing or maintaining its interception and collection capabilities. • Replacing the definition of [***] with [***] to provide a more accurate description of the means used to locate a person or vehicle [***]

• Expanding the description of places where warrants can be executed to include [***] • Adding a power to intercept [***] • Adding a power to obtain images of persons named in the warrant or attending places specified in the warrant. • Amending the retention condition of the warrants by including an assessment period of [***] after which the collected information (other than information from [***] must be destroyed unless the stipulated conditions have been met (i.e. the information relates to a threat, a crime, or the capabilities, intentions, or activities of the foreign state). • Inclusion of a new condition allowing the Service to create backups of collected intercepted information. • In the [***] Warrant, adding a power to obtain information about [***] [ 96 ] The amici raised no significant concerns about these changes.

I agree that the proposed modifications are routine and raise no legal issues.

(2) Clarifying the scope of some powers [Back to table of contents ] [ 97 ] The Service wishes to clarify that it has the lawful authority to [***] This would enable the Service to intercept [***] without having to [***] [ 98 ] Neither of these two activities would require any amendment to the warrants or involve the use of any new powers. [ 99 ] The Service also seeks to clarify its power to search [***] This is not, strictly speaking, a new power but the Service proposes that the locations where searches can be carried out be expanded to include, [***] [ 100 ] Again, the amici raised no concerns in this area, and I see no legal issues arising from the proposed amendments.

(3) New powers or locations [Back to table of contents ] [ 101 ] The Service seeks two powers that it has not previously sought for purposes of

section 16 investigations—search of [***] and the search of [***] In both cases, the searches would be confined to [***locations used by foreign persons***] [ 102 ] These kinds of powers are frequently used in the

section 12 context, and there is no obvious reason not to permit them for

section 16 investigations.

(4) Conclusion on warrant templates [Back to table of contents ] [ 103 ] Many of the amendments described above have been the subject of submissions and discussions with the Court following the en banc hearing giving rise to Justice Simon Noël’s decision in the Associated Data case ( X ( Re ) , 2016 FC 1105 , [2017] 2 F.C.R. 396 [cited above]). These discussions are ongoing. Any changes or improvements to the wording of the

section 12 warrant templates should generally result in corresponding changes to the warrant templates applicable in the foreign intelligence context. III. Issue Two—Does

section 16 authorize use of CSS technology? [Back to table of contents ] [ 104 ] The Service seeks to confirm that its authority pursuant to

section 16 of the CSIS Act includes the ability to capture information through use of cellular site simulators (CSS). CSS can be used to obtain data emitted by mobile devices, namely IMSI (International Mobile Security Identity) and IMEI (International Mobile Equipment Identity). The former reveals the country where the user’s cellular account is located, the network code for the service provider, and a subscriber identity numb

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