On July 31, 2014, the Federal Court of Appeal released its judgment in X (Re), 2014 FCA 249 upholding a Federal Court ruling that limited the scope of powers that may be exercised by the Canadian Security Intelligence Service (CSIS) while carrying out surveillance of Canadians abroad. This per curiam judgment was rendered by Chief Justice Pierre Blais, Justice Eleanor R. Dawson and Justice Robert M. Mainville.

The case arose when CSIS used surveillance warrants as grounds for working with foreign intelligence agencies to intercept communications of Canadians in foreign countries. The Federal Court found that CSIS failed to be candid in obtaining the warrants and the surveillance was therefore illegal. The Federal Court of Appeal set out the following two issues at para. 33.

First, did CSIS breach the duty of candour owed to the court in its application for a Domestic Interception of Foreign Telecommunications and Search warrant (DIFTS warrant) in CSIS-30-08 or in subsequent applications for DIFTS warrants?

Second, does CSIS have the legal authority to seek assistance, through Communications Security Establishment Canada (CSEC), from foreign partners to intercept the telecommunications of Canadians while they are outside of Canada?

CSEC provided CSIS with access to intercepted communications that had been collected by agencies in the United States, United Kingdom, Australia and New Zealand. Together with Canada they are referred to as the “Five Eyes”.

On the first question, the Federal Court of Appeal noted at para. 37(xi) that, based on the evidence, the designated judge in the Federal Court was satisfied, “…that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for DIFTS warrants about their intention to seek the assistance of the foreign partners. As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada.”

The Federal Court of Appeal added, at para. 66, that, “…once the decision was made to routinely seek the assistance of foreign agencies after the issuance of a DIFTS warrant, the duty of candour and utmost good faith required that CSIS disclose to the Federal Court the scope of its anticipated investigation, and in particular that CSIS considered itself authorized by section 12 of the CSIS Act to seek foreign agency assistance without a warrant. CSIS failed to make such disclosure.”

On the second question, I will begin with s. 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 which provides that CSIS shall collect, analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada. The Federal Court of Appeal concluded that the scope of this section did not extend so far as to permit CSIS to work with foreign partners to obtain the intercepted communications of Canadians abroad.

The Federal Court of Appeal began its analysis of s. 12, at para. 75, with the “uncontroversial observation” that nothing in the text of s. 12 suggests any geographic limit on the sphere of the Service’s operations. The designated judge in the Federal Court had concluded, however, that s. 12 did not give CSIS authority to engage foreign agencies to intercept private communications of Canadians under the general investigative power granted by s. 12. The Federal Court of Appeal agreed with that conclusion, at para. 80, except that it did not endorse the conclusion of the designated judge that intrusive investigative measures conducted abroad would necessarily violate international law or the principle of comity between nations.

The court went to hold, at paras. 81-82, that s. 12 does not give CSIS an exemption from the operation of laws of general application. Thus, a warrant is required under s. 21 of the Act when the service either directly, or through the auspices of a foreign intelligence service, engages in intrusive investigative methods such as the interception of telecommunications which would otherwise constitute a crime or a breach of the Charter of Rights. In case you may be wondering, the interception of communications is exempted from the legal regime governing wiretapping in Part VI of the Criminal Code by s. 26 of the Act.

The Federal Court of Appeal thus reached two conclusions, at para. 103, in this important case. The Federal Court has jurisdiction to issue a s. 21 warrant when the interception is lawful where it occurs. It remains an open question whether the Federal Court has jurisdiction when the interception is not legal in the country where it takes place.