Spies Keep Judges in the Dark
- November 28, 2018
- Clayton Rice, K.C.
On November 16, 2018, the Federal Court of Appeal released the unanimous opinion of a three member panel in X (Re), 2018 FCA 207. The exact dates of oral argument and the judgment are unknown because they are redacted from the opinion. The case involved an application for extraterritorial warrants by the Canadian Security Intelligence Service (CSIS) under ss 16 and 21 of its governing statute, the Canadian Security Intelligence Service Act, RCS 1985, c C-23.
The appeal was brought by the Attorney General of Canada from a ruling of Justice Simon Noel in the Federal Court, reported as X (Re), 2018 FC 738, dated August 30, 2018, refusing the application by CSIS for warrants to collect intelligence relating to “the capabilities, intentions and activities” of a foreign state. Justice Noel based the refusal on the language of sub-sec (1) of s 16 which provides that the activities of CSIS must take place “within Canada”, or in the French version “dans les limites du Canada”. Justice Noel concluded that he did not have jurisdiction to grant the warrants. Although the opinion of the Federal Court of Appeal is heavily redacted, it is clear that the case raised this question: What evidence is sufficiently specific to demonstrate that granting a warrant under s 21 of the statute would be consistent with the “within Canada” requirement of s 16?
Justice John Laskin, with Justices Eleanor Dawson and Judith Woods concurring, cited the standard of review established by the Supreme Court of Canada in Housen v Nikolaisen,  2 SCR 235 but went on to hold that it was unnecessary to decide what standard applied in this case. “If the correctness standard applies,” Justice Laskin said at para 10, “it will not be possible for the Attorney General to show that the decision at first instance was incorrect in the absence of clear and explicit evidence as to the nature and location of the activities for which a warrant was sought. If the palpable and overriding error standard applies, it will similarly be impossible to demonstrate a palpable and overriding factual error in the absence of a satisfactory evidentiary record.” (See also: X (Re),  FCR 684)
2. What is happening?
During the initial hearing of the application, Justice Noel requested that a supplementary affidavit be filed “clearly and explicitly informing as evidence what […] exactly is happening.” He inquired about any involvement of Communications Security Establishment (CSE) which is Canada’s national cryptologic agency. CSE operates under Part V.1 of the National Defence Act, RSC 1985, c N-5 with a mandate “to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence”. CSE is responsible for foreign signals intelligence (SIGINT) and the protection of the Canadian government’s electronic information and communication networks. Justice Noel granted the warrants, in part, contingent on receipt of the additional evidence.
In response to the court’s request, the supplementary affidavit of an employee of CSIS responsible for managing warranted technical operations was filed. The affidavit advised that CSIS “may seek technical and operational assistance from CSE” within the terms and conditions of the warrant. The supplementary affidavit, however, did nothing to improve the record and the evidence before the court remained general in nature.
The position of the Attorney General was that the court must adopt a purposive interpretation of s 16 that supports the presence of an extraterritorial dimension when providing assistance from “within Canada”. Justice Noel rejected the argument, at para 172, and held that the correct interpretation of “within Canada” is “only in Canada”. Any other construction of “within Canada” would require the court to rewrite the section. Justice Noel went on to conclude, at para 175, that Parliament has not given the court jurisdiction to grant warrants for extraterritorial activities. “I am very concerned,” he continued, “that the interpretation put forward by the Attorney General could open the door to other activities not intended by Parliament. Permitting such activities that have not been publicly debated in Parliament and without strict judicial and legislative controls would not be consistent with Parliament’s past approach to the CSIS Act.”
3. The appeal
The answer to the question – What is happening? – did not get better on appeal. Justice Laskin said this, at para 29: “Sufficient details are lacking to explain what would be done under the warrant if it was granted and how these activities would be carried out. Despite the request by the designated judge for evidence that would clearly and explicitly explain ‘what […] exactly is happening’ – which would include explanation of [xxx] the explanation in the evidence remains very general. Indeed, counsel for the Attorney General acknowledged in oral argument the sparsity of the evidentiary record.”
The amici curiae posed this question as one of the “overall issues” raised: “Does the Federal Court have jurisdiction to issue a warrant under sections 16 and 21 of the CSIS Act to violate foreign law and international law?” Justice Laskin was not any more able to answer that question than the central one raised by the Attorney General, at para 32: “[A]nswering the central question as set out in the Attorney General’s memorandum requires the conclusion that despite the fact that the information [xxx] the assistance that the Service would provide to the Minister would be provided in Canada. To reach that conclusion it would be necessary for the Court to understand and consider what specific activities the Service would carry out under the authority of the warrant and where they would be carried out. Determining the issues as put forward by the amici requires similar understanding and consideration. How, for instance, can the court assume a violation of international law without specific evidence of the activities said to give rise to the violation?”
Justice Laskin went on to conclude, at paras 34-5, that the evidentiary record must be “sufficiently detailed” to permit the court to understand the activities being authorized, where they will take place and what impact those activities might have – particularly where they might be unlawful. In this case, the location of the activities for which the warrant was sought was central to determining whether they may be authorized. Because the record did not meet this threshold, the court would not interfere with Justice Noel’s refusal to grant authorization. (See also: Colin Freeze. Federal appeals court upholds ruling blocking CSIS from conducting certain forms of spying on foreign states. The Globe and Mail. November 19, 2018)
The extraterritorial dimension in this case raised the difficult problem at the core of defining jurisdiction by geographical boundary and then applying that territorial domain to a borderless digital world. Justice Noel recognized the problem, at para 176, when he suggested that, “[i]t is Parliament, not a court of law, that should be tasked with determining these multifaceted policy questions that have an impact far beyond our borders.” The digital world continues to provoke profound questions, not only of internet commerce and privacy rights, but also questions of how to balance national sovereignty and the comity of nations. “With the fast pace of digitization,” Justice Noel wrote, “legal issues that intersect with questions of jurisdiction are becoming more and more complicated by the day. Parliament should seek to clarify these important questions of jurisdiction within the larger context of federal law.”