2017 FC 1047, 2017 FC 1047

TOP SECRET CONF-2-17 2017 FC 1047 IN THE MATTER of an Application by [***] for Warrants 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 Islamist Terrorism and [***] Indexed as: X (Re) Federal Court, Crampton C.J.—Ottawa, March 17, May 4 and September 27, 2017. Editor’s Note: Portions redacted by the Court are indicated by [***].

Security Intelligence — Reference seeking to determine whether information obtained by Canadian Security Intelligence Service (CSIS) from mobile devices of subject of investigation (subject) unlawful — CSIS capturing International Mobile Subscriber Identity (IMSI), International Mobile Equipment Identity (IMEI) numbers with cellular-site simulator (CSS) — CSIS using CSS technology to attribute cellular device to subject whose identity already known, to “geo-locate” subject’s cellular device — Attorney General submitting, inter alia, use of CSS not contravening Radiocommunication Act , s. 9(1) (b), Criminal Code, s. 184 , Canadian Charter of Rights and Freedoms, s. 8 — Whether CSIS’s use of CSS without warrant to obtain identifying characteristics of subject’s mobile devices unlawful — CSIS’s use of CSS technology not contravening Radiocommunication Act — Wording of Authority to Use Radio held by CSIS in accordance with Radiocommunication Act, s. 5(1) (a)(

v) sufficiently broad to cover use of CSS equipment by CSIS — CSIS also not contravening Criminal Code — Obtaining IMSI, IMEI identifiers through use of CSS equipment not capturing any content of communications made by targeted mobile devices — Criminal Code mischief provisions also not violated — As to Charter, s. 8, while capture of IMSI, IMEI constituting “search”, such capture only minimally intrusive and is authorized by law — Nothing in language of Canadian Security Intelligence Service Act (Act), s. 21 , or elsewhere supporting view that CSIS required to obtain warrant when engaging in minimally intrusive “search” — Act, s. 12 providing CSIS with authority to investigate suspicious activities without warrant — View that CSIS requiring warrant every time that person’s reasonable expectation of privacy engaged reading out requirement that search be “unreasonable” before it may be found contrary to Charter, s. 8 — Parliament implicitly allowing CSIS to use CSS when passing s. 12 — S. 12 reasonable law — “Reasonable grounds to suspect” standard sufficient to justify warrantless search — National security objectives sufficient to tip balance in favour of state interest when searches minimally intrusive — S. 12 neither overbroad nor vague — Scope of information CSIS may collect, retain limited to that which is “strictly necessary” — S. 12 not lacking in precision — Clearly articulating scope of activities to be investigated by CSIS — Judicial pre-authorization under Act, s. 21 necessary for more than minimally intrusive activities — Judgment: CSIS’s warrantless use of CSS technology to capture identifying characteristics of subject’s mobile devices not unlawful.

Constitutional Law — Charter of Rights — Unreasonable Search or Seizure — Canadian Security Intelligence Service (CSIS) capturing, without warrant, International Mobile Subscriber Identity (IMSI), International Mobile Equipment Identity (IMEI) numbers from mobile devices of subject of investigation (subject) with cellular-site simulator (CSS) — Attorney General submitting, inter alia, use of CSS not contravening Charter, s. 8 — Whether subject’s Charter, s. 8 rights violated — Specifically, whether CSIS conducting “search or seizure”, whether search or seizure “reasonable” — Individuals having reasonable expectation of privacy in respect of IMSI, IMEI identifiers — Capture of IMSI, IMEI identifiers therefore constituting “search” — However, such capture only minimally intrusive — CSIS not requiring warrant whenever wishing to gather information through use of new technology — Supreme Court making it clear there is no free-standing prohibition on use of electronic or other technologies without a warrant — Rather, question whether technology intruding on reasonable sphere of privacy of individual — Here, nothing about CSS technology per se justifying conclusion that its use objectively unreasonable — Minimally invasive search not necessarily contravening s. 8 — CSS technology reliable, not giving rise to consequences associated with “false positive” — CSIS’s CSS operations not unreasonable.

Radiocommunications — Canadian Security Intelligence Service (CSIS) capturing International Mobile Subscriber Identity (IMSI), International Mobile Equipment Identity (IMEI) numbers from mobile devices of subject of investigation with cellular-site simulator (CSS) — CSIS holding Authority to Use Radio (Authority) in accordance with Radiocommunication Act , s. 5(1) (a)(v) — Wording of Authority sufficiently broad to cover use of CSS equipment by CSIS.

Criminal Justice — Canadian Security Intelligence Service (CSIS) capturing, without warrant, International Mobile Subscriber Identity (IMSI), International Mobile Equipment Identity (IMEI) numbers from subject of investigation with cellular-site simulator (CSS) — CSIS use of CSS without judicial authorization not contravening Criminal Code, s. 184 as no content of communications made by targeted mobile devices captured — Criminal Code mischief provisions also not violated.

This was a reference seeking to determine whether the activity in which the Canadian Security Intelligence Service (CSIS) engaged to obtain information from the mobile devices of a known subject of investigation (subject) was unlawful.

The activity in question was conducted without a warrant and involved CSIS’s use of a cellular-site simulator (CSS) to capture the identifying characteristics of the mobile devices, which consisted of the International Mobile Subscriber Identity (IMSI) and International Mobile Equipment Identity (IMEI) numbers that were emitted by the mobile devices when they attempted to communicate with the cellular network of the telecommunications service providers (TSP).

The IMSI number identified the country in which the subject’s cellular account is located, the network code of his TSP, and the unique subscriber identifying number given to the subject by the TSP. The IMEI identified the make, model and unique serial number of his mobile devices. CSIS currently only uses CSS technology for two purposes: (1) to attribute a cellular device to a subject of investigation whose identity is already known, and (2) to “geo-locate” a subject of investigation’s cellular device.

The Attorney General submitted, inter alia , that CSIS’s use of CSS technology solely to capture IMSI and IMEI identifiers does not contravene the Radiocommunication Act , the Criminal Code or the Canadian Charter of Rights and Freedoms (Charter). Specifically, the Attorney General maintained that CSIS’s use of a CSS complies with the Radiocommunication Act because CSIS holds an Authority to Use Radio (Authority) in accordance with subparagraph 5(1) (a)(

v) of the Radiocommunication Act and that, by virtue of that Authority and

section 12 of the Canadian Security Intelligence Service Act (the Act), CSIS’s use of CSS technology does not contravene paragraph 9(1) (

b) of the Radiocommunication Act. CSIS also maintained that its use of a CSS without prior judicial authorization does not contravene

section 184 of the Criminal Code because its CSS equipment does not intercept any private communications. The main issue was whether CSIS’s use of a CSS without a warrant, and solely to obtain the identifying characteristics of the subject’s mobile devices, was unlawful. Held , CSIS’s warrantless use of CSS technology to capture the identifying characteristics of the subject’s mobile devices was not unlawful. CSIS’s use of CSS technology does not contravene the Radiocommunication Act . On its face, the wording of the Authority is sufficiently broad to cover the use of CSS equipment by CSIS.

Specifically, the use of such equipment would clearly fall within the scope of the words “in respect of any and all types of specially designed radio apparatus used for the purposes specified in paragraph 2”, as they appear in paragraph 1 of the Authority. Those words appear to have contemplated that the Authority would be used in respect of radio apparatus that was not yet in existence in 1992, when the Authority was issued. Those words have the effect of allowing the Authority to be used in respect of such radio apparatus.

Obtaining IMSI and IMEI identifiers through the use of CSS equipment does not capture any content of communications made by the mobile devices that are targeted by that equipment. Accordingly, CSIS’s use of CSS technology to attribute IMSI and IMEI identifiers to a subject of investigation does not contravene

Part VI of the Criminal Code . CSIS’s use of a CSS without a warrant also does not contravene the mischief provisions in

section 430 of the Criminal Code .

Section 12 of the Act and the Authority provide a lawful exemption from conviction under

section 429 of the Criminal Code . There were two distinct issues to be assessed in determining whether there was a violation of

section 8 of the Charter , namely (

i) whether there was a “search or seizure”, and (ii), if so, whether that search or seizure was “unreasonable”. A consideration of the totality of the circumstances, and taking a purposive approach to

section 8 of the Charter, suggests that individuals have a reasonable expectation of privacy in respect of the IMSI and IMEI identifiers. This is because of the nature of the information that those numbers permit CSIS to obtain or infer. The use of CSS technology therefore constitutes a “search”. It can be assumed that individuals in general likely have a subjective expectation that any information concerning their mobile devices that may be communicated to the cell towers operated by their TSPs will not be surreptitiously captured by agents of the state, such as CSIS.

In addition, the average person likely would not consider his or her IMSI and IMEI identifiers to have been “abandoned” when they are disclosed to cell towers by their mobile devices. There is no implied waiver of a person’s privacy rights in his or her IMSI and IMEI identifiers vis-à-vis the general public, when their mobile device offers that information to the cellular environment. CSS technology is minimally intrusive. Neither the mobile device nor its contents are accessed in any way.

Although CSIS may be able to begin putting together an initial profile of the subject of investigation and communications patterns, it is difficult to see how the inferences that it may be able to draw regarding the individual’s personal activities would be particularly strong or invasive. CSIS does not require a warrant whenever it wishes to gather information through the use of new technology.

The Supreme Court made it clear that there is no “free-standing prohibition on [the use of] electronic or other technologies without a warrant.” Rather, the question is whether the technology intrudes on the reasonable sphere of privacy of an individual. The answer to this question requires an assessment of the “totality of the relevant circumstances”. In this particular case, there was nothing about CSS technology per se that would justify a conclusion that its use is objectively unreasonable.

Individuals’ subjective expectations of privacy in relation to the IMSI and IMEI information on their mobile devices are objectively reasonable. In conclusion, regarding whether the capture of IMSI and IMEI identifiers constitutes a “search”, although intrusions on individuals’ anonymity interests do not always engage

section 8 of the Charter , the capture of IMSI and IMEI information does reach this threshold, because of the profiles of individuals that CSIS can begin to build upon acquiring that information. It is those very profiles that may ultimately assist CSIS to obtain a warrant to acquire subscriber information and engage in even more intrusive activities. However, until CSIS is able to obtain that subscriber data and exercise other warranted powers, its capture of IMSI and IMEI identifiers is only minimally intrusive. CSIS’s use of a CSS to intercept and attribute the IMSI and IMEI numbers of a mobile device is authorized by law. There is nothing in the language of

section 21 , or elsewhere in the Act , that would support the view that CSIS is required to obtain a warrant anytime that it engages in a minimally intrusive “search” within the meaning of the Charter . The language of

section 12 of the Act provides CSIS with all the authority it requires to investigate activities that may on reasonable grounds be suspected of constituting threats to the security of Canada, without a warrant, unless one is required at common law. The view that CSIS requires a warrant every time that a person’s reasonable expectation of privacy is engaged would conflate the two elements in

section 8 of the Charter into a single element, by effectively reading out the requirement that a search be “unreasonable” before it may be found to be contrary to

section 8 . Parliament implicitly allowed CSIS to use a CSS to intercept and attribute the IMSI and IMEI numbers of a mobile device to a subject of investigation, based on “reasonable grounds to suspect”, when it passed

section 12 of the Act. The nature and purpose of

section 12 support the view that it is a reasonable law. The “reasonable grounds to suspect” standard set forth in

section 12 of the Act is sufficient to justify a warrantless search by CSIS. The national security objectives permeating

section 12 will generally be sufficient to tip the balance in favour of the state interest, when searches conducted by CSIS are minimally intrusive.

Section 12 is neither overbroad nor vague, because it imposes objective standards and strict limits on the collection of information by CSIS. The scope of information that may be collected by CSIS is explicitly limited to that which “is strictly necessary”. This limitation also implicitly applies to the retention of information collected by CSIS. In the presence of these clearly ascertainable and understandable limitations, it cannot be said that

section 12 “so lacks in precision as not to give sufficient guidance for legal debate”. On the contrary,

section 12, read together with the definition of “threats to the security of Canada” set forth in

section 2 of the Act, clearly articulates thescope of activities that may be investigated by CSIS. By including the provisions of

section 21 pertaining to warrants in the Act,Parliament implicitly contemplated that CSIS would not conduct collection activities under

section 12 that are more than minimallyintrusive, without first obtaining judicial pre-authorization under

section 21. The case law relied upon by the amici does not support the proposition that a minimally invasive search necessarily contravenessection 8 of the Charter in the absence of prior judicial authorization or after-the-fact judicial control. The Supreme Court of Canadatrilogy of “sniffer dog” cases, i.e. R. v. A.M., R. v. Kang-Brown and R. v. Chehil can be distinguished from CSIS’s use of CSS technologyto capture IMSI and IMEI numbers from an individual’s wireless electronic devices.

This is because CSS technology is highly reliableand therefore does not give rise to the potentially severe consequences associated with a “false positive”. The roles and responsibilities ofthe Minister, the Security Intelligence Review Committee and CSIS’s Director assist in ensuring that

section 12 is a reasonable law forthe purposes of assessing whether the minimally invasive searches that it authorizes are reasonable. The manner in which CSIS currentlyconducts its CSS operations is not unreasonable. 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”, 6, 12, 16, 20(2),(3),(4), 21,21.1(1),(3),(4), 22, 27, 34(1), 38(1). Code of Conduct Regulation, Alta. Reg. 160/2003, s. 10(3)(f). Criminal Code, R.S.C., 1985, c. C-46, ss. 183 “ intercept”, private communication”, 184, 429, 430, 487.01, 492.2. Electric Utilities Act, S.A. 2003, c. E-5.1. Privacy Act, R.S.C., 1985, c. P-21, s. 51(2)(a). Radiocommunication Act, R.S.C., 1985, c.

R-2, ss. 2 “harmful interference”, 5(1)(a), 9(1)(b). CASES CITED FOLLOWED: X (Re), 2016 FC 1105, [2017] 2 F.C.R. 396. APPLIED: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; Thomson Newspapers Ltd. v.Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R.425, (1990), 67 D.L.R. (4th) 161; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 (also distinguished on another ground); R. v. Plant, (SCC), [1993] 3 S.C.R. 281, (1993), 145 A.R. 104 (also distinguished on another ground); R. v.

Patrick, 2009 SCC 17,[2009] 1 S.C.R. 579; Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, (1984), 55 A.R. 291; R. v. Chehil, 2013SCC 49, [2013] 3 S.C.R. 220 (also distinguished on another ground); R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 (alsodistinguished on another ground). DISTINGUISHED: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 (also considered on another ground); R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432(also applied on another ground); R. v. Plant, (SCC), [1993] 3 S.C.R. 281, (1993), 145 A.R. 104 (also applied on anotherground); Goodwin v.

British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250 (also considered onanother ground); R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (also applied on another ground); R. v. Kang-Brown, 2008 SCC 18,[2008] 1 S.C.R. 456 (also applied on another ground). CONSIDERED: Canadian Security Intelligence Service Act (Re), 2008 FC 300, [2008] 3 F.C.R. 477; Canada (Citizenship and Immigration) v. Harkat,2014 SCC 37, [2014] 2 S.C.R. 33; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; R. v. Brewster, 2016ONSC 4133 ; R. v.

A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 (also distinguished on another ground); R. v. Jarvis, 2002 SCC 73,[2002] 3 S.C.R. 757; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Goodwin v. British Columbia (Superintendent of MotorVehicles), 2015 SCC 46, [2015] 3 S.C.R. 250 (also distinguished on another ground); Mahjoub (Re), 2013 FC 1096, 457 F.T.R. 1;Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 602; Mahjoub v. Canada (Citizenship and Immigration), 2017FCA 157, 387 C.R.R. (2d) 1; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v.

Nova ScotiaPharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, (1992), 114 N.S.R. (2d) 91. REFERRED TO: R. v. McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627, (1990), 68 D.L.R. (4th) 568; R. v. Evans, (SCC), [1996] 1 S.C.R. 8, (1996), 131 D.L.R. (4th) 654; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20, (1994), 110D.L.R. (4th) 297; R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, (1991), 84 D.L.R. (4th) 161; R. v. Tse,2012 SCC 16, [2012] 1 S.C.R. 531; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549; R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, (1987), 38 D.L.R. (4th) 508; ); Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38,

[2008] 2 S.C.R. 326; Comité paritaire de l’industrie de la chemise v. Potash; Comité paritaire de l’industrie de la chemise v. SélectionMilton, (SCC), [1994] 2 S.C.R. 406, (1994), 115 D.L.R. (4th) 702; R. v. Simmons, (SCC), [1988] 2S.C.R. 495, (1988), 55 D.L.R. (4th) 673; R. v. Monney, (SCC), [1999] 1 S.C.R. 652, (1999), 171 D.L.R. (4th) 1; R. v.M. (M.R.), (SCC), [1998] 3 S.C.R. 393, (1998), 166 D.L.R. (4th) 261; R. v. Grant, (SCC),[1993] 3 S.C.R. 223, [1993] 8 W.W.R. 257; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. AUTHORS CITED 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) (Chair: P. M.Pitfield). “RCMP, CSIS launch investigations into phone spying on Parliament Hill after CBC story”, CBC News (April 4, 2017), online:˂www.cbc.ca˃. “Spies’ use of cellphone surveillance technology suspended in January, pending review”, CBC News (May 3, 2017), online:˂www.cbc.ca˃. Tamir Israel and Christopher Parsons, Gone Opaque?

An Analysis of Hypothetical IMSI Catcher Overuse in Canada, Ottawa: TelecomTransparency Project & Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, 2016. Wikipedia – The Free Encyclopedia. “International mobile subscriber identity”, online:˂https://en.wikipedia.org/wiki/International_mobile_subscriber_identity˃. REFERENCE seeking to determine whether the Canadian Security Intelligence Service’s warrantless use of CSS technology to capturethe indentifying characteristics from the mobile devices of a known subject of investigation was unlawful. Judgment: Such use was notunlawful.

APPEARANCES Jennifer Poirier, Stéphanie Dion and Ilana Bleichert for Department of Justice, National Security Litigation and Advisory Group. Gordon Cameron and Owen M. Rees as amici curiae. SOLICITORS OF RECORD Deputy Attorney General of Canada for Department of Justice, National Security Litigation and Advisory Group. The following are the public reasons for judgment and judgment rendered in English by Crampton C.J.: TABLE OF CONTENTS

Section ParagraphI. Introduction 1II. Background 10III. This Proceeding 21IV. Preliminary Issue Regarding the Openness of the Hearing on the LegalArguments 35 V. CSS Technology 51VI. CSIS’s Policy Regarding the Collection and Retention of ElectronicIdentifiers 75 VII. Assessment of Legal Submissions 80A. The Radiocommunication Act 82B. The Criminal Code 96C.

Section 8 of the Charter 107(1) Legal Principles 107(

a) What Constitutes a Search or Seizure? 110(

b) What Constitutes an Unreasonable Search or Seizure? 125(2) Application of the Legal Principles to the Facts of this Application 137(

a) Did CSIS’s Use of CSS Technology Constitute a “Search”? 137(

i) The Subject Matter of the Intrusive Activity 141(ii) Individuals’ Interest in the Subject Matter 147(iii) Do Individuals Have a Subjective Expectation of Privacy in the SubjectMatter? 148 (iv) If So, Are Such Expectations Objectively Reasonable? 149The Nature of the Privacy Interest at Stake 149The Circumstances in which IMSI and IMEI Identifiers Are Obtained 152The Manner and Place of the Capture of IMSI and IMEI Identifiers 153Whether the IMSI/IMEI Identifiers have been Abandoned or Disclosed toOne or More Third Parties 158 The Extent to which the Search Technique is Intrusive in Relation to theIdentified Privacy Interest 161

The Relevant Statutory and Contractual Framework 164 Is the Use of CSS Technology Objectively Unreasonable? 182 Conclusion Regarding the Objective Reasonableness of Individuals’ Subjective Expectations of Privacy in Relation to the IMSI and IMEI Identifiers of their Mobile Devices 185 (

v) Conclusion Regarding Whether the Capture of IMSI and IMEI Identifiers Constitutes a “Search” 187 (

b) Is CSIS’s Interception of IMSI and IMEI Numbers Unreasonable? 190 (

i) Was the “Search” Authorized by Law? 192 (ii) Is

Section 12 of the Act a Reasonable Law? 202 The Nature and Purpose of

Section 12 203 The Degree of Intrusiveness Authorized by

Section 12 218 The Extent to Which the Act Provides for Judicial Supervision 220 The Presence of Other “Checks and Balances” or Accountability Measures 230 Conclusion Regarding the Reasonableness of

Section 12 236 (iii) Was the Manner in Which the Search was Carried Out Unreasonable? 237 (iv) Conclusion Regarding the Reasonableness of CSIS’s Use of CSS Technology 244 VIII. Conclusion 247 Appendix I Appendix II Appendix III I.

Introduction [ 1 ] In a free and democratic society, it can be expected that citizens will not want the identifying characteristics of their mobile telephones to be surreptitiously obtained by anyone, including the Canadian Security Intelligence Service (CSIS), for the purpose of assisting to build a profile about them. [ 2 ] However, unless it is unlawful for CSIS to engage in such activity, it is free to do so within the parameters established by its enabling legislation and 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] (the Charter). The question to be decided in this case is whether the activity in which CSIS engaged to obtain such information from the mobile devices of a known subject of investigation, [***] was in fact unlawful.

That activity was conducted without a warrant and involved CSIS’s use of a cellular-site simulator (CSS) to capture the identifying characteristics of his mobile devices. [ 3 ] Those identifying characteristics consisted of the International Mobile Subscriber Identity (IMSI) and International Mobile Equipment Identity (IMEI) numbers that were emitted by [***] mobile devices when they attempted to communicate with the cellular network of his telecommunications service providers (TSP).

The IMSI number identified the country in which [***] cellular account is located, the network code of his TSP, and the unique subscriber identifying number given to him by the TSP. The IMEI identified the make, model and unique serial number of his mobile devices. [ 4 ] In my view, CSIS’s use of a CSS without a warrant, and solely to obtain the identifying characteristics of [***] mobile devices, was not unlawful. This is in part because of a number of measures that were taken to ensure that the activity was minimally intrusive.

So long as similar measures are followed by CSIS in the future, its CSS operations would also be lawful. In other words, they would not contravene the Radiocommunication Act , R.S.C., 1985, c. R-2, the Criminal Code , R.S.C., 1985, c. C-46, or the Charter . [ 5 ] Generally speaking, the measures adopted by CSIS in carrying out CSS operations should strictly limit its intrusion on the privacy rights of the subjects of its investigations.

In addition, these measures should ensure that CSIS does not capture the contents of any communications or any of the contents stored on, or available through, anyone’s mobile device(s). They should also ensure that the incidentally captured information pertaining to the mobile devices of third parties is quickly destroyed and is not subject to any analysis whatsoever, once it has been confirmed that those devices are not the mobile device(

s) used by the subject of investigation [***] Furthermore, CSS technology should not be used to geo-locate anyone without a warrant. [ 6 ] CSIS’s use of a CSS against [***] constituted a “search” within the meaning of

section 8 of the Charter . This is because [***] had a reasonable expectation of privacy in respect of the information that CSIS was in a position to begin to gather about him, or about which it was able to make informed inferences, upon gaining access to the IMSI and IMEI numbers of his mobile devices. In brief, those numbers assisted CSIS to begin building a profile on [***] including by potentially helping CSIS to determine his [***[contacts]***] and communication patterns” with the aid of information already available to CSIS.

To the extent that this enabled CSIS to begin to gain an understanding of, or to make reasoned inferences about, certain aspects of [***] core biographic personal information, it engaged his rights under

section 8 of the Charter. [ 7 ] Nevertheless, the search was not “unreasonable”, because it was narrowly targeted, highly accurate and minimally intrusive.

The CSS operations conducted by CSIS were even more minimally intrusive with respect to the information that was incidentally captured from the wireless devices of third parties, because that information was quickly destroyed and was not subject to any analysis whatsoever, after it was determined that the information did not pertain to [***] wireless devices. [ 8 ] More generally, the evidence in this proceeding establishes that the CSS technology used by CSIS does not permit it to identify the individual whose mobile devices are targeted by the CSS operation, or to gain access to billing or other intrusive information.

Indeed, the identity of targets of CSIS’s CSS operations, as well as their location and other information, typically is already known at the time such operations are conducted. Where CSIS requires detailed billing or subscriber information from a TSP, it will require a warrant. This is because of the more highly intrusive nature of such information, which can include a listing of all calls made during a billing period, the duration of those calls, and the locations of the parties to those calls.

[ 9 ] Agents of the state who are responsible for the safety and security of the general public may engage in minimally intrusive activities without violating

section 8 of the Charter so long as those activities are authorized by law, the law is reasonable, and the activity is carried out in a reasonable fashion. Such minimally intrusive activities can include the physical surveillance of people in public, and even the monitoring of the level of heat emanating from their homes. In this case, CSIS’s use of CSS technology was authorized by

section 12 of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 (Act),

section 12 is a reasonable law, and CSIS’s search was conducted in a reasonable manner. II. Background [ 10 ] This is the first proceeding in which CSIS has explicitly sought the Court’s views regarding its use of CSS technology to obtain information or intelligence in the course of an investigation, without a warrant. [ 11 ] CSIS has used CSS technology for that purpose for several years. However, prior to February 10, 2016, the Court was unaware of this fact.

On that date, CSIS provided the Court with a copy of the classified report of the Security Intelligence Review Committee (SIRC), entitled, SIRC Review 2014-03 —Review of CSIS’s use of Metadata . Among other things, that report referred to two case studies. The first was entitled The Use of Metadata by the Operational Data Analysis Centre (ODAC) and ultimately led to a decision by my colleague, Justice Simon Noël, concerning CSIS’s program of collection and retention of such information ( X (Re) , 2016 FC 1105 , [2017] 2 F.C.R. 396 ( X (Re) ).

The second case study was entitled The Service’s Collection of International Mobile Subscriber Identity (IMSI) Data , and provided a brief overview of the history of CSIS’s use of CSS technology. In brief, after getting introduced to the technology [***] CSIS gradually increased its use of the technology to the point that it has now been used across the country, [***] [ 12 ] According to SIRC’s report and the evidence provided in this proceeding, CSIS currently only uses CSS technology for two purposes, which are described in greater detail in

Part V of these reasons below. The first such purpose is to attribute a cellular device to a subject of investigation whose identity is often already known. This was the case with [***] Such attribution is done by obtaining, through CSS technology, the IMSI associated with a subject of investigation’s SIM [subscriber identity module] card, as well as the IMEI that is associated with a specific mobile device. Based on the information available to SIRC at the time it prepared its report, SIRC concluded that this activity alone does not require a warrant from this Court.

However, SIRC added that any change to the uses of the information captured by the use of CSS technology would require further legal consideration. [ 13 ] The second use that CSIS makes of CSS technology is to “geo-locate” a subject of investigation’s cellular device.

SIRC observed, and CSIS has since conceded, that this use of CSS technology must be sanctioned by a warrant issued by this Court. [ 14 ] Before receiving SIRC’s report in February 2016, Justice Mosley inquired about CSIS’s use of the “Stingray” technology in the context of an ex parte hearing that took place on [***] and that concerned proposed changes to the template language of certain of this Court’s warrants.

However, CSIS’s legal counsel was not in a position to provide a response to his general inquiry at that time. [ 15 ] Shortly after having had an opportunity to review SIRC’s above-mentioned report, Justice Mosley again inquired about the use of CSS technology. The affiant in that hearing [***] testified that the technology had been used in the investigation that led to that application for warrants, and explained how the technology had been used. The affiant undertook to confirm that data from the mobile devices of third parties which is collected at the time of a CSS operation is destroyed by CSIS.

That confirmation ultimately was provided on [***] and again by a senior employee of CSIS, [***] during the evidentiary hearing in this application. [ 16 ] A similar inquiry was made by Justice Mosley, and a similar response was provided by another affiant, during the hearing of another application [***] [ 17 ] At a subsequent case management meeting that I co-presided with Justice Noël on [***] Justice Noël inquired about the “Stingray” technology, how it operates, and whether it was being used under this Court’s warrants. [i] In response to Justice Noël’s request, the Deputy Director Operations (DDO) of CSIS, Mr.

Jeff Yaworski, undertook to obtain the relevant details and to provide them to the Court. It was only as a result of information subsequently provided by CSIS that the Court began to gain a more fulsome appreciation of the nature and extent of CSIS’s use of CSS technology. [ 18 ] On [***] counsel to CSIS confirmed in a letter to the Court that there were no other instances, apart from those mentioned above, in which references were made to CSS or similar technology, in exchanges between the Court and CSIS or its counsel.

At the end of that letter, the Court was informed that [***] This was the first time that the Court had been informed that CSIS was using CSS or similar technology pursuant to its warrants. [ 19 ] [***] [***] [***] [ 20 ] On [***] Justice Noël directed CSIS and the Attorney General “to provide information and evidence regarding the nature, scope, usage and minimization of the investigative technique called Stingray.” Justice Noël’s direction added that “[t]he Court requires the information and evidence in order to fully and clearly understand the investigative technique; and, to assess whether [***] or any other warrant provides lawful authority for the technique”.

Ultimately, CSIS decided to provide that information and evidence in the context of this proceeding. III. This Proceeding [ 21 ] In this proceeding, CSIS sought a number of warrants from the Court pursuant to sections 12 and 21 of the Act to permit it to continue to investigate the activities of [***] in connection with Islamist terrorism. As explained below, I granted those warrants with two amendments, for the period commencing on [***] and ending on [***]

[ 22 ] [***] [ 23 ] The IMSI and IMEI numbers that were obtained from [***] wireless devices in [***] assisted CSIS to execute interception powers that this Court authorized in [***] by ensuring that those powers were exercised against the wireless devices described in this Court’s warrants. [ 24 ] In support of its application for warrants in this proceeding, CSIS relied on two affidavits, provided by [***] affidavit) and [***] affidavit).

In addition, CSIS and the amici submitted a number of documents, including responses to undertakings given to me during the proceeding, that were marked as exhibits. [ 25 ] [***] [ 26 ] With two exceptions, the operative language of the warrants granted in this proceeding was identical to the language of the warrants that had previously been granted by Justice [***] in respect of [***] and that had been scheduled to expire on [***] The first exception was that I included language which prohibits the use of CSS [***] in paragraph [***] warrant.

That prohibition has been included in several other warrants since the Court learned that CSIS had been relying on paragraph [***] in using CSS [***] against targets of the Court’s warrants.

In including that prohibition, I made it clear to CSIS and the Attorney General that this amendment to the warrant should not be taken as any pronouncement by the Court with respect to the legality of the CSS technology, whether or not used pursuant to a warrant, as these remained “live” issues in this application [***] [ 27 ] The second amendment that I made to the warrant powers sought in this proceeding was to delete the requested authorization to obtain [***] That amendment was made after I determined that the evidence adduced by CSIS did not establish reasonable grounds to believe that [***] [ 28 ] On [***] at the end of the evidentiary hearing in this proceeding, I granted the warrants sought by CSIS, with the two amendments described above.

I did so after satisfying myself that, among other things, CSIS had established that there were reasonable grounds to believe that [***] activities constitute a threat to the security of Canada, as defined in paragraph 2 (

c) of the Act , and that CSIS required the warrants to investigate that threat. [ 29 ] In making my decision to grant those warrants, I relied on the evidence provided by [***] which included considerable information obtained in the course of CSIS’s investigation of Islamist terrorism as well as more specific information concerning [***] That information was obtained through various methods of investigation, including physical surveillance and warranted intercepts involving [***] Additional information was also collected from human sources, interviews, open information, government agencies in Canada and foreign agencies that are investigating Islamist terrorism.

I did not rely on the very limited information that was obtained by CSIS using CSS technology against [***] without a warrant. That information was obtained through the use of the technology during a two-day period, and simply consisted of the attribution of three devices to [***] namely, [***] According to one of the affiants in this proceeding, that information has now been destroyed.

For greater certainty, I also did not rely on any information that was derived from the IMSI and IMEI numbers obtained through CSIS’s use of CSS technology, including communications over any of those devices that were subsequently intercepted by CSIS. [ 30 ] In issuing the most recent warrants against [***] I made it clear that I would remain seized of this application in order to (

i) take notice of the amendments to this Court’s warrant templates that are ultimately made as a result of the decision that Justice Simon Noël issued on October 4, 2016, in X (Re) , above, (ii) make corresponding amendments to the warrants that I have provisionally issued in this proceeding, and (iii) make any further amendments to those warrants that I consider appropriate, after having had an opportunity to consider the legal submissions made in this proceeding. [ 31 ] As an aside, and for completeness, it is relevant to note that the Attorney General confirmed in a letter dated [***] that the only instances in which the language of [***] was relied on were [***] geo-location CSS operations.

The Attorney General added that CSIS did not rely on any warrants issued by this Court to conduct any of its other past CSS operations, because it does not consider that it requires a warrant to capture IMSI and IMEI numbers for the purposes of attributing a device to a subject of investigation. [ 32 ] This proceeding was organized as an en banc hearing because it involves the first application to the Court in which CSIS has (

i) explicitly stated that it had resorted to CSS technology in the course of investigating the activities of its subject of investigation, (ii) made submissions on the lawfulness of its use of the technique in that investigation, and (iii) provided evidence regarding its use of that technology. I considered it appropriate to convene the other designated judges of the Court to join me on the bench, so that they would have the benefit of the evidence provided by [***] including on cross-examination by the amici .

I also considered it to be important that they have the benefit of responses provided by [***] to questions that any of them, or I, might pose. This should assist each of the designated judges of the Court in future applications involving CSS technology, and may reduce the need for similar evidence in such applications. [ 33 ] Notwithstanding the presence of other designated judges of this Court in this proceeding, I assured CSIS and representatives of the Attorney General at the outset of the hearing that was held on [***] that my judicial independence would not thereby be compromised in any way.

I, and I alone, have decided the issues that have been raised in this application. [ 34 ] Given the importance of the legal issues raised in this application, the Court retained Mr. Gordon Cameron and Mr. Owen Rees to act as amici curiae . IV. Preliminary Issue Regarding the Openness of the Hearing on the Legal Arguments [ 35 ] During the evidentiary hearing on [***] I learned that there is more information in the public domain regarding CSS technology and its use by law enforcement agencies than I had previously appreciated.

With that in mind, and having regard to the recent significant increase in public interest concerning the oversight of CSIS’s activities by the Court, I invited the Attorney General’s views as to whether it was necessary for the hearing of legal arguments concerning the CSS technology to be held in camera .

[ 36 ] Counsel to the Attorney General undertook to seek instructions and get back to the Court on this matter. However, she observed that CSIS likely would be reluctant to participate in a public hearing on this issue, given that its use of CSS technology had never been publicly acknowledged. [ 37 ] Subsequently, in a letter dated [***] the Attorney General took the position that a public hearing of the legal submissions in this hearing would not be suitable. In brief, the Attorney General submitted that such a public hearing would be contrary to

section 27 of the Act and could cause serious injury to Canada’s national security interests. Among other things, the Attorney General maintained that a public hearing would adversely impact [***] Instead of a public hearing, the Attorney General proposed that a public decision be issued, subject to appropriate redactions. [ 38 ]

Section 27 of the Act states: Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 Hearing of applications 27 An application under

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

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

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

section 28. [Emphasis added.] [ 39 ] In support of its position that a public hearing of the legal arguments in this proceeding would be contrary to the explicit terms of

section 27, the Attorney General relied on the following passage from Justice Noël’s decision in Canadian Security Intelligence Service Act (Re) , 2008 FC 300 , [2008] 3 F.C.R. 477, at paragraph 34 :

Section 27 provides that applications for warrant “shall be heard in private” (“ huis clos ” in French). “Private” is defined as “[c]onfidential; secret” in Brian A. Garner, Black’s Law Dictionary , 8th ed. (St-Paul: Thomson West, 2004), s.v . “private”.

In Hubert Reid, Dictionnaire de droit québécois et canadien: avec lexique anglais-français , (Montréal: Wilson & Lafleur, 1994), s.v. “ huis clos ”, the expression “ huis clos ” is described as being “ une exception au principe de la publicité des débats, qui consiste à interdire au public l’accès à la salle d’audience. ” Again, the main aims of the privacy of applications for a warrant are to preserve the secrecy of sensitive information in general and to ensure the execution of warrant [ sic ].

The interested person(s) (targets) must not be present or aware of the warrant application; otherwise its purpose would become academic. The public should not have access to the information because it is related to national security and because of the effectiveness of the CSIS depends on the secrecy of its methods and operations. Finally, third party information is often transmitted under the caveat that it would not be released. If warrants were debated in public, sensitive information would likely be released advertently or inadvertently.

It would prevent CSIS from being informed about threats to Canada’s security, would render useless the investigation, would be dangerous to human sources involved and could endanger Canada’s relationship with allied countries. [ 40 ] However, the Attorney General failed to note that Justice Noël proceeded to observe, at paragraph 46 of his decision, that “issues that are ‘collateral’ to a warrant application, such as jurisdictional issues, could be heard in open courts in some circumstances.” In this regard, Justice Noël emphasized that “each case turns on its facts keeping in mind the clear wording of

section 27 of the [ Act ] and the necessary balance between national security and fundamental rights” (paragraph 47). Ultimately, Justice Noël concluded that the issues of law and of fact in the particular case that was before him were so intertwined that the jurisdiction issue that had been raised could not be dealt with in public. [ 41 ] In the present proceeding, it was not initially apparent to me that the factual and legal issues were similarly intertwined.

However, it subsequently transpired that the factual evidence adduced was critical to the findings I ultimately made in respect of the issue of whether CSIS’s use of CSS technology constituted a search, as well as the issue of whether that search was “unreasonable”, within the meaning of

section 8 of the Charter . [ 42 ] The Attorney General’s stated reasons for opposing a public hearing were significantly undermined by two important developments that occurred between the time of the evidentiary hearing and the hearing of the parties’ legal submissions.

The first of those developments was that the Minister was reported to have publicly confirmed the use of CSS technology by CSIS and the RCMP, but only “within the four corners of the law” (“RCMP, CSIS launch investigations into phone spying on Parliament Hill after CBC story”, CBC News (April 4, 2017) online: ˂www.cbc.ca˃.) The Attorney General confirmed this fact in a letter to the Court dated April 5, 2017, yet continued to maintain that “the hearing [of the legal] submissions concerning the Service’s use of CSS must continue to be held in camera in order to comply with

section 27 of the [ Act ] and to avoid serious injury to national security interests”. [ 43 ] The second important intervening development consisted of a CBC news article, published the day before the hearing of the legal submissions in this proceeding, in which CSIS was reported to have “confirmed [that] it has used the cellphone identification and tracking technology in recent years, both with and without a warrant” (“Spies’ use of cellphone surveillance technology suspended in January, pending review”, CBC News (May 3, 2017) online: ˂www.cbc.ca˃.) [ 44 ] In light of that reported confirmation by CSIS of its use of CSS technology, the amici sent a short letter to the Court suggesting that the circumstances were such that the hearing of the legal submissions in this proceeding should be made open to the public.

While recognizing the requirement in

section 27 that warrant applications be heard in private, they observed that certain statements made by the Supreme Court of Canada in Canada (Citizenship and Immigration) v.

Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33 ( Harkat ), “would support a decision by the Court to make the legal argument on the Service’s use of cell site simulators open to the public.” At paragraph 25 of that decision, the Supreme Court observed that the issues in that case did “not turn on confidential information and could have been debated fully in public without any serious risk of disclosure, supplemented where necessary by brief closed written submissions and by the closed record.” The Court proceeded to add, at paragraph 26, that the content of the closed part of the hearing in that case did not assist the Court in deciding the issues before it, and “served only to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.” The amici did not address the differences between the case that was before the Supreme Court and the application that is before this Court in the current proceeding.

[ 45 ] In response to the amici ’s suggestion, the Attorney General sent a short letter to the Court later that day in which she agreed to discuss the possibility of holding a public hearing. However, the Attorney General noted that an adjournment might be required in order to identify which elements could be heard in a public hearing and which would require consideration in camera . The Attorney General also “urge[d] consideration of

section 27 of the [ Act ]”. [ 46 ] At the outset of the hearing of the legal arguments in this application the following morning, the amici once again suggested that the Court adjourn the hearing to permit them to work with the Attorney General to devise a means to have at least part of the oral legal submissions made in a public forum. [ 47 ] However, given the last-minute nature of the amici ’s suggestion, and in the absence of additional submissions from the amici and the Attorney General as to how a public hearing could occur given the express language of

section 27, I decided to proceed with the hearing, as previously scheduled. [ 48 ] In reaching that decision, I was cognizant of the decision in Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3 [ Ruby ], at paragraphs 57–58 , where the Supreme Court of Canada observed that it was not open to the parties, even on consent, to bypass the mandatory in camera requirement set forth in paragraph 51(2) (

a) of the Privacy Act , R.S.C., 1985, c. P-21.

The Court added that, constitutional issues aside, it was also not open to a judge to conduct an open hearing, even if only in respect of legal issues, in direct contradiction of the statute, regardless of the proposal put forth by the parties. (For constitutional reasons, the Court then proceeded to “read down” certain provisions of the Privacy Act to apply only to certain types of ex parte submissions, thereby permitting a court to conduct other parts of a hearing in public ( Ruby , above, at paragraphs 58–60 ).) [ 49 ] I also considered the practical difficulty that would have been associated with reconvening an appropriate number of the Court’s designated judges any time prior to October or November of this year.

In addition, I was sensitive to the fact that the Attorney General’s legal submissions had already been filed with the Court when I initially expressed an interest in the possibility of having an open hearing of all or part of the oral legal submissions in this proceeding. I was also mindful of the fact that it would have been unprecedented to have such an open hearing in respect of an application for warrants under

section 21 of the Act . Assuming that

section 27 does not preclude the holding of a public hearing in some circumstances, I considered that it would be preferable for such a hearing to be held in a proceeding that had been better planned for that purpose. Finally, at the time I was not entirely convinced that the factual and legal issues were intimately linked.

As I have already noted, it subsequently became apparent that they were indeed so linked. [ 50 ] In the meantime, I considered it appropriate to considerably reduce the opacity that otherwise would be associated with this proceeding by issuing public redacted versions of both this decision and the written versions of the parties’ arguments. In my view, those measures, taken together, will represent an important additional step by this Court to foster greater openness with respect to the ex parte proceedings that are brought before it under the Act .

Stated differently, these measures will increase the principles of transparency and accountability to which the Supreme Court referred in Harkat , above, at paragraph 26. V. CSS Technology [ 51 ] Information regarding the manner in which the CSS technology functions was provided to the Court by [***] both through the [***] affidavit and orally during the evidentiary hearing on [***] [ 52 ] [***] is employed by CSIS as a [***] He did not testify on what was done specifically in the case of [***] but rather spoke of the CSS technique generally.

Among other things, he described himself as a subject-matter expert with respect to the CSS technology. [***] His evidence was provided for the purpose of assisting the Court to determine whether information obtained without a warrant that specifically sanctioned the use of a CSS, had been obtained lawfully and may be relied upon in an application by CSIS for warrants under

section 21 of the Act . [ 53 ] [***] explained that CSS is an umbrella term that encompasses both generic terms that are sometimes used, such as “IMSI grabber” or “IMSI catcher, as well as manufacturer or vendor-based names such as Stingray, [***] [ 54 ] [***] confirmed that CSIS utilizes CSS technology solely for the two purposes that were previously identified by SIRC, and discussed at paragraph 12 above, namely, (

i) to attribute a cellular device to a known subject of investigation and, (ii) once attributed, to geo-locate a subject of investigation’s cellular device at some later date, when the subject’s precise whereabouts are no longer known by CSIS. [ 55 ] [***] noted that, when CSIS uses a CSS for the first purpose, it already knows the location of the individual, but not the IMSI or IMEI of the individual’s mobile device(s). In addition, the identity of the subject of investigation is also typically known.

In describing this use of the CSS technology, [***] stated: “Our goal is to identify cellular devices and attribute them to subjects of investigation.

This would be a clear investigative requirement in order to be able to determine [***[contacts]***] and communication patterns [***] [ 56 ] In contrast to the facts that are known by CSIS at the time it conducts a CSS operation for the purpose described above, when CSIS uses a CSS to geo-locate an individual, it knows one or more of that person’s IMSI or IMEI identifiers, but not the individual’s location. [***] specified that CSIS does not seek to geo-locate individuals through the use of CSS operations without a warrant. [ 57 ] According to [***] TSPs are able to identify mobile devices that are allowed access to their services through two unique pieces of information that are provided by such devices, namely, the IMSI and the IMEI. [***] described those identifiers in his affidavit as follows: 13.

An IMSI is a 15 digit string that uniquely associates to a TSP a subscriber account. It is comprised of three parts; a 3 digit Mobile Country Code (MCC) identifying the country of the IMSI subscriber; a 2 or 3 digit Mobile Network Code (MNC) identifying the home network of the IMSI subscriber; and the remaining digits ascribed to a Mobile Subscriber Identification Number (MSIN) which is associated by the service provider to uniquely identify a user’s account within a provider’s system. 14.

An IMEI is a 15 digit string that uniquely identifies a cellular device, the actual hardware, to a TSP […] The first 8 digits of an IMEI

is comprised of a Type Allocation code (TAC) which identifies the make and model of the equipment. The following 7 digits are the serial number which uniquely identifies the device. [ 58 ] By way of example, [***] gave the following IMSI number 302720123456789. In this sequence, the digits “302” represent the MCC (country code of the subscriber); the digits “720” represent the MNC (network code of the subscriber’s TSP); and the remaining digits represent the MSIN (unique subscriber identifying number).

This information is stored on the SIM cards of mobile devices. [ 59 ] By way of further example, [***] gave the following IMEI number: 353778081234560. In this sequence, the numbers “35377808” represent the TAC (device make and model), while the numbers “1234560” represent the unique device serial number.

The Court understands that this information is stored on the device itself, rather than on its SIM card. [ 60 ] [***[technical information]***] [ 61 ] [***[technical information]***] [ 62 ] To facilitate the provision of telecommunications services by TSPs, each TSP is licensed to operate and broadcast on frequencies that are different from those licensed to other TSPs. [***[technical information]***] [ 63 ] [***[technical information]***] [ 64 ] By mimicking a TSP’s cell tower, CSS devices induce cellular devices to interact with them as if they were a bona fide cell tower.

In essence, a CSS is a “false” tower that requests devices to authenticate themselves to something that is posing as a TSP’s tower. [ 65 ] [***[technical information]***] [ 66 ] To then identify the IMSI and IMEI identifiers that correspond to the device used by the subject of the CSS operation, [*** [technical information]***] [ 67 ] [***[technical information]***] [ 68 ] [***[technical information]***] [ 69 ] [***[technical information]***] [ 70 ] [***[technical information]***] [ 71 ] [***[technical information]***] [ 72 ] [***] CSIS operates its CSS equipment in a manner that does not degrade or otherwise affect in any perceptible way the quality of service experienced by the user of a mobile device that is in the vicinity of a CSS. [***[technical information]***] [ 73 ] [***] further assured the Court that, with one exception, the CSS technology used by CSIS does not have any capacity to capture either the content of any communications made by users of mobile devices, or the information stored on their mobile devices. [***] [ii] [***] [ 74 ] Finally, [***] stressed that the IMEI and IMSI identifiers that are captured by CSS equipment is not encrypted, but rather is “in the open”.

VI. CSIS’s Policy Regarding the Collection and Retention of Electronic Identifiers [ 75 ] On [***] CSIS DDO issued a Directive relating to the collection and retention of electronic identifiers. According to [***] that Directive was issued as a result of Justice Noël’s decision in X (Re) , above , where he decided, among other things, that the words “strictly necessary” in

section 12 of the Act apply to both the collection and the retention of information by CSIS. [ 76 ] For the purposes of the Directive, electronic identifiers include IMSI and IMEI numbers, [***] [ 77 ] Pursuant to the Directive, a moratorium was imposed on the use of technical means for the purpose of collecting electronic identifiers. [***] [ 78 ] According to [***] all of those electronic identifiers previously obtained by CSIS pursuant to CSS operations, including those for which an operational report has been written, have now been destroyed in accordance with the Directive. [***] [ 79 ] By way of further background, the Attorney General explained during the evidentiary hearing in this application that, given Justice Noël’s decision in X (Re) , above, and given CSIS’s view that the retention of IMSI and IMEI identifiers cannot be said to be “strictly necessary” once an operational report of the collection exercise has been finalized, those identifiers are generally deleted at that time. [***] testified that the operational reports are usually prepared “within [***] days”.

However, he added that, once CSS operations have been resumed following the issuance of these judgment and reasons, CSIS is considering requesting up to [***] months within which to determine whether IMSI and IMEI identifiers that it has collected can be attributed to a subject of investigation. That is the period of time within which Justice Noël determined, in X (Re) , above, at paragraph 253 , that “information that is evidently not threat- related and that does not involve the target” must be destroyed. [***] VII.

Assessment of Legal Submissions [ 80 ] The Attorney General submits that CSIS’s use of CSS technology solely to capture IMSI and IMEI identifiers does not contravene either the Radiocommunication Act , the Criminal Code , or the Charter . I agree, subject to the reasons set forth below.

[ 81 ] The Attorney General’s submissions in respect of each of those laws will be addressed separately below. A. The Radiocommunication Act [ 82 ] The Radiocommunication Act governs the use of radio apparatus and radio-sensitive equipment to ensure the orderly development and efficient operation of radiocommunications in Canada. To this end, paragraph 5(1)(

a) of that legislation allows the Minister of Industry (now the Minister of Innovation, Science and Economic Development) to issue licences and certificates to govern radio apparatus, including “any other authorization relating to radiocommunication that the Minister considers appropriate.” [ 83 ] Among other things, paragraph 9(1) (

b) of the Radiocommunication Act prohibits anyone from interfering with or obstructing any radiocommunication “without lawful excuse.” [ 84 ] The Attorney General concedes that a CSS device is a “radio apparatus” within the meaning of the Radiocommunication Act . However, she maintains that CSIS’s use of a CSS complies with that legislation because CSIS holds an Authority to Use Radio (Authority), which was issued on September 1, 1992. She further maintains that, by virtue of that Authority and

section 12 of the Act , CSIS’s use of CSS technology does not contravene paragraph 9(1) (

b) of the Radiocommunication Act . [ 85 ] For the present purposes, the provisions in the Authority which are most relevant are the following: 1) In accordance with subparagraph 5(1) (a)(

v) of the Radiocommunication Act , this constitutes authorization for the Canadian Security Intelligence Service (CSIS) in respect of any and all types of specially designed radio apparatus used for the purpose specified in paragraph 2, for which a radio licence, under subparagraph 5(1)(a)(

i) of the Radiocommunication Act, is not appropriate. 2) This authorization applies to radio apparatus specified in paragraph 1 only when it is being tested, used for training, or used for operations, solely in relation to investigations under sections 12 and 16 of the Canadian Security Intelligence Services Act, R.S.C. 1985, c.

C-23 . … 7) All radio apparatus covered by this authorization shall not cause harmful interference to other authorized or licensed radio apparatus. … 9) This authorization is valid unless withdrawn by the Department of Communications or the Canadian Security Intelligence Service (CSIS) indicates in writing that it is no longer required. [Emphasis added.] [ 86 ] The full text of the Authority is set forth in Appendix I to these judgment and reasons. [ 87 ] The amici note that CSIS was not “exposed to” CSS technology [***] They maintain that it cannot reasonably have been in the Minister’s contemplation in 1992, at the dawn of cellular technology, that the Authority would be interpreted to authorize the use of CSS equipment for the purpose of obtaining IMSI and IMEI identifiers.

They add that, had CSIS sought authorization from the present Minister, the Minister would likely have circumscribed its use of CSS technology, as he did in the authorization that was provided to the RCMP on March 13, 2017. The full text of that authorization is set forth in Appendix II to these judgment and reasons. [ 88 ] The foregoing may all very well be true.

However, it fails to come to grips with the fact that, on its face, the wording of the Authority is sufficiently broad to cover the use of CSS equipment by CSIS. [ 89 ] Specifically, the use of such equipment would clearly fall within the scope of the words “in respect of any and all types of specially designed radio apparatus used for the purposes specified in paragraph 2”, as they appear in paragraph 1 of the Authority.

I am inclined to agree with CSIS that those words appear to have contemplated that the Authority would be used in respect of radio apparatus that was not yet in existence in 1992, when the Authority was issued. [ 90 ] In any event, those words have the effect of allowing the Authority to be used in respect of such radio apparatus. Until the Minister withdraws the Authority, as provided for in paragraph 9, the Authority will remain sufficient authorization, for the purposes of the Radiocommunication Act , for CSIS to use CSS equipment.

The evidence adduced in this proceeding is that the Minister has not taken any such action. [ 91 ] I pause to observe that the Attorney General noted that, prior to obtaining the above-mentioned authorization in March of this year, the RCMP had been relying upon a different authorization pertaining to “jammers”, to conduct its CSS operations. [ 92 ] The amici added that the use of a CSS to obtain IMSI and IMEI identifiers associated with cellular devices clearly does cause some interference with those devices and has the potential to cause harmful interference, within the meaning of paragraph 7 of the Authority.

In this regard, they note that “harmful interference” is defined in

section 2 of the Radiocommunication Act to mean: Radiocommunication Ac t, R.S.C., 1985, c. R-2

Definitions 2 … harmful interference … an adverse effect of electromagnetic energy from any emission, radiation or induction that (

a) endangers the use or functioning of a safety-related radiocommunication system, or (

b) significantly degrades or obstructs, or repeatedly interrupts, the use or functioning of radio apparatus or radio-sensitive equipment.

[93] The amici further note that the potential to cause harmful interference, including interfering with emergency calls to 911, formedpart of the record before Justice Code of the Ontario Superior Court of Justice in R. v. Brewster, 2016 ONSC 4133 , atparagraphs 34, 38, 51–52. However, the passages from that decision that were cited by the amici simply described (

i) measures that theRCMP adopt, in operating its CSS equipment, to minimize the potential to cause unreasonable interference with mobile telephones, (ii)the capacity of that equipment to interrupt calls for up to two minutes (when configured in a rarely used mode), and (iii) argumentsregarding alleged deficiencies in the RCMP’s warrant, which Justice Code did not accept.

Moreover, it bears underscoring that JusticeCode’s observations were made based on the specific evidence that was adduced in that case. [94] The evidence in this case is that the equipment used by CSIS [***[maintains contact with a mobile device for a few seconds]***]In my view, [***] do not constitute significant degradations or obstructions, and do not constitute repeated interruptions, as contemplatedby the above-quoted language from

section 2 of the Radiocommunications Act. [95] Given the foregoing, I am satisfied that CSIS’s use of CSS technology does not contravene the Radiocommunication Act. B. The Criminal Code [96]

Part VI [ss. 183 to 196.1] of the Criminal Code provides a scheme that governs the interception of private communications.Among other things,

section 184 of the Criminal Code prohibits the wilful interception of private communications by means of anyelectro-magnetic, acoustic, mechanical or other device, where done without consent or prior judicial authorization. [97] CSIS maintains that its use of a CSS without prior judicial authorization does not contravene

section 184 of the Criminal Codebecause its CSS equipment does not intercept any private communications. [***] [98] Pursuant to

section 183 of the Criminal Code, private communication is defined to mean: Criminal Code, R.S.C., 1985, c. C-46

Definitions 183 … private communication … any oral communication, or any telecommunication, that is made by an originator who is in Canada or isintended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable forthe originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, andincludes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligiblereception by any person other than the person intended by the originator to receive it. [99] Pursuant to

section 183 of the Criminal Code, the word intercept “includes [to] listen to, record or acquire a communication oracquire the substance, meaning or purport thereof.” It is common ground between CSIS and the amici that obtaining IMSI and IMEIidentifiers through the use of CSS equipment does not do any of these things, or otherwise capture any content of communications madeby the mobile devices that are targeted by that equipment. [100] Accordingly, the amici agree that in the absence of any interception of the content of communications, CSIS’s use of CSStechnology to attribute IMSI and IMEI identifiers to a subject of investigation does not contravene

Part VI of the Criminal Code. [101] However, the amici maintained that CSIS’s use of a CSS without a warrant contravenes the mischief provisions in

section 430 ofthe Criminal Code, and that neither

section 12 of the Act nor the Authority discussed at paragraphs 84–90 above provide a lawfulexemption from

section 430. I disagree. [102] Subsection 430(1) states: Criminal Code, R.S.C., 1985, c. C-46 Mischief 430

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. [103] Pursuant to

section 429 of the Criminal Code, “[n]o person shall be convicted of an offence under sections 430 to 446 where heproves that he acted with legal justification or excuse and with colour of right.” [104] For the reasons set forth in

Part VII.A. immediately above, I do not accept the amici’s position that the Authority does notprovide such legal justification. [105] For the reasons that are provided in

Part VII.C.(2)(b)(ii) below, I do not accept the amici’s position with respect to

section 12. [106] I will simply add in passing that, in their oral submissions, the amici conceded that if I find that

section 12 provides sufficientauthorization for the capture of IMSI and IMEI identifiers through the use of CSS technology, that would be sufficient to bring that

activity within the scope of the defence afforded by

section 429 of the Criminal Code. C.

Section 8 of the Charter

(1) Legal Principles [107]

Section 8 of the Charter provides: “Everyone has the right to be secure against unreasonable search or seizure.” [108] It follows that there are two distinct issues to be assessed in determining whether there has been a violation of

section 8, namely(

i) whether there has been a “search or seizure”, and (ii), if so, whether that search or seizure was “unreasonable”, (R. v. Gomboc, 2010SCC 55, [2010] 3 S.C.R. 211 (Gomboc), at paragraph 20). [109] In approaching these issues, courts must adopt “a purposive approach that emphasizes the protection of privacy as a prerequisiteto individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society” (R. v. Spencer, 2014SCC 43, [2014] 2 S.C.R. 212 (Spencer), at paragraph 15). (

a) What Constitutes a Search or Seizure? [110] A “seizure” has been defined as “the taking of a thing from a person by a public official without that person’s consent” as well asthe compelled production of information, for example, pursuant to a regulatory statute (Thomson Newspapers Ltd. v. Canada (Directorof Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425 (ThomsonNewspapers), at page 505; R. v.

McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627 (McKinlay), at page 642). [111] By contrast, a “search” occurs when an individual who is the object of intrusive state activity has a reasonable expectation ofprivacy in the subject matter of the alleged search. If so, then the activity in question constitutes a “search” and

section 8 is engaged(Spencer, above, at paragraph 16; Gomboc, above, at paragraph 20). [112] In assessing whether an individual had a reasonable expectation of privacy in relation to the subject matter of an alleged search,the totality of the circumstances to be assessed include various factors directly related to the individual’s expectation of privacy, bothsubjectively and objectively viewed.

These include: i. the subject matter of the alleged search; ii. the individual’s interest in the subject matter; iii. the individual’s subjective expectation of privacy in the subject matter; and iv. whether the individual’s subjective expectation of privacy was objectively reasonable, having regard to the totality of thecircumstances. (Spencer, above, at paragraph 18.) [113] With respect to the first of the four factors listed above, an assessment must be made of both the subject matter of the allegedsearch or seizure, as well as any inferences that can reasonably be made from that subject matter regarding private activities or otherprivate information of the individual (Spencer, above, at paragraphs 26–31).

Put differently, when the subject matter of an alleged searchis information, a court must consider the significance of the information obtained as a result of the search (R. v. A.M., 2008 SCC 19,[2008] 1 S.C.R. 569 (A.M.), at paragraph 38). [114] The protection afforded by

section 8 of the Charter does not extend to all matters that the individual may wish to keep out of thehands of agents of the state (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 (Tessling), at paragraph 26). Rather, that protection islimited to a “biographical core of personal information which individuals in a free and democratic society would wish to maintain andcontrol from dissemination to the state [including] information which tends to reveal intimate details of the lifestyle and personal choicesof the individual” (R. v.

Plant, (SCC), [1993] 3 S.C.R. 281 (Plant), at page 293 (emphasis added); Spencer, above, atparagraph 27). [115] In evaluating the second of the above-listed factors (the individual’s interest in the subject matter of the alleged search), the focusis upon the extent to which that interest may be said to be direct (Tessling, above, at paragraph 32; Spencer, above, at paragraph 19; R. v.Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 (Patrick), at paragraph 27). [116] With respect to the third of those factors (the individual’s subjective expectation of privacy in the subject matter), this may beestablished by direct evidence demonstrating such an expectation, or by inference from the circumstances (Spencer, above, atparagraph 19; Tessling, above, at paragraph 38).

For example, a subjective expectation of privacy can be presumed in respect of activitiesthat take place in a person’s home (Patrick, above, at paragraph 37; Gomboc, above, at paragraph 25). However,

section 8 of the Charter“does not cloak the home in an impenetrable veil of privacy”, and where there is no direct search of the home itself, “the informationalprivacy interest should be the focal point of the analysis” (Gomboc, above, at paragraphs 46, 49).

In this latter regard, the fact that thehome may have been involved “should be subsidiary to what the investigative technique was capable of revealing about the home andwhat information was actually disclosed” (Gomboc, above, at paragraph 50). [117] Turning to the fourth of the factors (whether the individual’s subjective expectation of privacy was objectively reasonable), thedegree of privacy a citizen can reasonably expect may vary significantly depending upon the activity that brings him or her into contactwith the state (Thomson Newspapers, above, at pages 506–507). [118] The considerations to be assessed in evaluating this factor include: i. the nature of the privacy interest at stake;

ii. the circumstances in which the search occurred; iii. the place in which it occurred; iv. whether the information has already been abandoned or disclosed to third parties; v. the purpose of the intrusion; vi. the extent to which the search technique that was used was intrusive in relation to the identified privacy interest; vii. the relevant statutory and contractual framework, if any; and viii. whether the use of the search or surveillance technology that was used was itself objectively unreasonable. (Spencer, above, at paragraph 20; Tessling, above, at paragraph 32; Patrick, above, at paragraph 38.) [119] The Supreme Court has also held the view in the past that the nature of the state’s interest in conducting a particular type ofintrusive activity can also be considered in determining whether that activity constitutes a “search” (R. v.

Evans, (SCC),[1996] 1 S.C.R. 8 (Evans), at paragraph 40; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20 (Colarusso), at page 53).However, it has since stated that it is more logical to consider this factor when considering whether a search was unreasonable (Tessling,above, at paragraph 64, discussing the seriousness of the offence). [120] Insofar as the nature of the privacy interest at stake is concerned, privacy interests can be primarily territorial, personal orinformational in nature. These are not strict or mutually exclusive categories (Spencer, above, at paragraph 35; Tessling, above, atparagraph 20).

The analysis of these categories “turns on the privacy of the area or the thing being searched and the impact of the searchon its target, not on the legal or illegal nature of the items sought” (Spencer, above, at paragraph 36). [121] Territorial privacy includes an individual’s privacy in an area or place, such as his or her home, hotel room or place of work.Personal privacy connotes a person’s bodily integrity, and in particular the right not to have his or her body touched, explored or sampledto disclose objects or information an individual may wish to conceal.

Informational privacy includes privacy in information that anindividual may want to keep secret or to be kept in confidence, information over which an individual may wish to maintain control, andinformation that has been provided to others on an anonymous basis or that is related to activities in which the individual has engaged onan anonymous basis (Spencer, above, at paragraphs 38–44). [122] The factors to be considered in determining the parameters of the protection afforded by

section 8 with respect to informationalprivacy include the n

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