X(Re): A Check on CSIS Powers or a Roadmap for Expanding Them?
On July 31, 2014, the Federal Court of Appeal (“FCA”) released its judgment in X(Re), 2014 FCA 249, largely upholding a Federal Court finding that limited the scope of powers that may be exercised by the Canadian Security Intelligence Service (“CSIS”) while carrying out surveillance of Canadians abroad. The matter arose after the Federal Court became aware that CSIS had used surveillance warrants as grounds for working with foreign intelligence agencies to intercept the communications of Canadians in foreign nations. Both the Federal Court and the FCA found that CSIS failed to be candid in obtaining these surveillance warrants and undertook illegal surveillance.
While the decision declares current limits on the powers of CSIS in undertaking foreign surveillance, the FCA’s explanation of the law in this area may now serve as a means for expanding those powers. Following recent attacks on soldiers in Ottawa and St-Jean, Quebec, the Federal Government has proposed new legislation to give greater surveillance powers to CSIS. The proposed legislation applies the logic set out by the FCA in X(Re) in order to provide basis for permitting surveillance warrants of precisely the type that the FCA rejected in its decision.
Federal Court Decisions Giving Rise to DIFTS Warrants
While the warrants that gave rise to this decision are secret, the series of decisions leading to the issuance of these warrants is set out in detail by the FCA in X(Re).
In 2007, CSIS was denied a warrant application that related to surveillance of Canadians who were abroad. That denial was issued by Justice Blanchard, a designated judge of the Federal Court, who found that it would violate the law of foreign nations if CSIS was authorized to carry out its intended surveillance activities upon Canadians abroad. Based on this finding, Justice Blanchard determined that the Federal Court did not have jurisdiction to authorize such warrants.
In 2009, CSIS nevertheless succeeded in obtaining a very similar warrant (labelled “CSIS-30-08”). This time, the application provided that all surveillance activities would take place within Canada. The designated judge who heard the new application, Justice Mosley, accepted the CSIS argument that the surveillance contemplated by these warrants was distinct from the surveillance previously denied by Justice Blanchard. Because, surveillance took place in Canada, the Federal Court had jurisdiction to grant the warrant and Justice Mosley did so.
Since that successful application was made, CSIS went on to successfully request numerous similar warrants, which came to be known as Domestic Interception of Foreign Telecommunications and Search (DIFTS) warrants.
The Annual Report of the Commissioner of the Communications Security Establishment Canada
Following the release of a public version of the Annual Report of the Commissioner of the Communications Security Establishment Canada, written Robert Décary, QC, the Federal Court learned that DIFTS warrants were being executed via information-sharing between Canada and its partners in other nations. Specifically, the Communications Security Establishment Canada (CSEC) provided CSIS with access to intercepted communications that had been collected by partner agencies in the United States, United Kingdom, Australia and New Zealand (alongside Canada, collectively referred to as the “Five Eyes“).
On learning this information, Justice Mosley issued an order requiring counsel for CSIS and CSEC appear before him to address the information provided in obtaining the initial 2009 DIFTS warrant.
New Federal Court Hearing and Decision
After hearing initial submissions from CSIS and CSEC, Justice Mosley appointed amicus counsel and directed a further hearing into (1) whether CSIS breached its duty of candour when applying for the initial DIFTS warrant; and (2) whether CSIS may legally act through CSEC to have foreign partners intercept the communications of Canadians who are abroad. On hearing from amicus counsel, CSIS and CSEC, Justice Mosley rendered judgments against the security agencies on both issues.
CSIS submitted that interactions of CSIS and foreign partners generally did not need to be disclosed to the Federal Court because these fell within the scope of the general investigative authority set out in Section 12 of the Canadian Security Intelligence Service Act (“CSIS Act”). Additionally, CSIS argued that Justice Blanchard’s earlier decision meant that surveillance activities conducted in foreign nations fell outside of the jurisdiction of the Federal Court. Additionally,Justice Mosley rejected both of these lines of argument.
On the duty of candour, Justice Mosley stated that surveillance warrant applications must provide the court with a “good understanding” of how the proposed surveillance will be executed, regardless of the blanket power in Section 12. With respect to the applications for CSIS-30-08 and the DIFTS warrants that followed, the facts indicated that CSIS officials had decided to “strategically omit information in applications for DIFTS warrants.”
According to Justice Mosley, Justice Blanchard’s earlier decision did not render non-domestic CSIS activities outside of the jurisdiction of the Federal Court. Rather, Justice Blanchard’s decision established that surveillance in foreign nations constituted a violation of international law and that the the Federal Court lacked jurisdiction to authorize such violations. This distinguishes the Canadian surveillance regime from other regimes such as that of the United States, where secret Foreign Intelligence Surveillance Act (“FISA”) Courts are legally authorized to issue warrants for surveillance that violates privacy in foreign nations where it is carried out.
Following the Supreme Court’s decision in R v Hape,  2 SCR 292, Justice Mosley stated that violations of customary international law are outside of the scope of Section 12 of the CSIS Act, and could only be permitted under domestic law if “expressly authorized by Parliament”.
The Federal Court of Appeal
Although the Federal Court’s findings were declaratory and did not result in a formal order, the Federal Court of Appeal (“FCA”) determined that these findings were “of such importance that they cannot be immunized from review.” Relying on Housen v Nikolaisen,  2 SCR 235, the FCA’s review was undertaken on a correctness standard. The judgment was rendered by a panel of 3 that included the Chief Justice of the FCA and was released as a decision of “The Court.”
The FCA found Justice Mosley’s decision to be correct on both issues, but attached a proviso that obtaining intercepted information does not necessarily give rise to a breach of international law in all cases.
On the duty of candour, the FCA focused on the fact that CSIS never disclosed the fact of second-party assistance in the initial application for CSIS-30-08, or in any of the applications that followed the adoption of this pratice. Based on this pattern of non-disclosure, it was open for Justice Mosley to conclude that “at the least…a strategic decision was made not to include that information”. The FCA added that once the practice of obtaining intercepted communications had become commonplace, a duty of candour and good faith obliged CSIS to disclose this information and their interpretation of power under the CSIS Act to the Federal Court.
On the scope of the general investigative powers set out in Section 12 of the CSIS Act, the FCA applied Rizzo & Rizzo Shoes Ltd. (Re),  1 SCR 27, to determine that the scope this authority did not extend so far as to permit CSIS to work with foreign partners to obtain the intercepted communications of Canadians abroad. The FCA did not agree with Justice Mosley’s determination that intercepting the information of Canadians abroad would necessarily constitute a violation of international law. Rather, such violations only exist where methods of investigation are “intrusive” — sufficient to constitute a crime or a Charter breach in Canada. Where such intrusive methods are employed, they may only be permitted by a warrant that corresponds with domestic law.
In light of recent developments, the limitation of CSIS powers set out in X(Re) may prove to be short-lived. Instead, the FCA’s decision may effectively supply needed guidance to the Federal Government as it works to develop legislation that expands the ability for CSIS to intercept the communications of Canadians who are abroad. Following tragic attacks on soldiers at Parliament and in Quebec during the week of October 20th, the Federal Government tabled Bill C-44 with this precise purpose. According to The Globe and Mail, the proposals in the Bill C-44 would establish the first legal changes to the CSIS Act since the agency’s inception in 1984.
One of the most prominent changes contained in Bill C-44 is the authorization of surveillance activities that violate the laws of foreign nations. The lack of this “express authorization” was arguably the key to the Federal Court and FCA’s decision in X(Re). If the authorization proposed by Bill C-44 becomes law, then future applications for DIFTS warrants may be authorized by the Federal Court under a regime that will bear increasing similarity to the United States’ FISA Court system. As the introduction of Bill C-44 comes at a time when there is much momentum behind the push for greater powers to be granted to security agencies, much will depend on whether this momentum carries forward or fizzles out in the months ahead.
The express legislative authority needed to make broad surveillance powers domestically legal may soon be on it’s way, bringing Canada’s model of foreign surveillance closer to that of the United States. If passed, the recently-proposed Bill C-44 would explicitly permit CSIS to carry out surveillance in foreign nations regardless of whether such surveillance would constitute a violation of any foreign nations’ privacy laws. But in the US, there is oversight – with expanded powers in Canada, a proportionate increase in oversight would also be appropriate.