Wednesday, November 05, 2014

Appeals Court upholds decision that CSIS lawyers lied to the court to obtain warrants to spy on Canadians outside of Canada

The Federal Court of Appeal has confirmed the decision by Justice Moseley which found that CSIS and the Department of Justice had lied and withheld material evidence in order to get warrants under the CSIS Act to surveil Canadians outside of Canada. (X (Re), 2014 FCA 249) I wrote about the decision under appeal here: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says.

In summary, Justice Mosley had found that the Department of Justice lawyers, acting for CSIS in various warrant applications, had withheld information from the Court in order to get warrants under the CSIS Act. What they withheld was that they would get one or more of their Five Eyes partners to do the spying for them. Justice Mosley had found that the CSIS Act (and customary international law) did not permit the Court to grant a warrant that would effectively authorize the intelligence service to violate the laws of wherever the spying was to take place. (This last part has been addressed in proposed amendments to the CSIS Act in Bill C-44.)

The Federal Court of Appeal agreed with Mosley J that DOJ lawyers did not meet the standard expected and required on an ex parte application:

[66] On this evidence we are satisfied 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 question of spying outside of Canada, the Court of Appeal did not reach the same conclusion as Mosley J. The Service is authorized to conduct activities at home and abroad. In general, the Court can authorize intrusive activities outside of Canada, but there was not sufficient information in the record before the Court to decide about its ability to authorize activities that would violate the laws of another jurisdiction:

[90] Here, we emphatically endorse the submission of the amicus that the question of whether the Federal Court had jurisdiction to issue a warrant authorizing the Service to lawfully intercept the communication of Canadians abroad (through the agency of CSEC and another country) was not before Justice Blanchard. Further, we see no legal impediment to the issuance of such a warrant. Thus, for example, the Federal Court could issue a warrant where the interception authorized by the warrant is in accordance with the domestic law of the state in which the interception takes place.

[91] What Justice Blanchard found was that the Federal Court lacked jurisdiction to issue a warrant that authorized activities in another country that CSIS conceded would violate the laws of that country. This issue does not properly arise on this record and cannot be decided on the record before us.

.... [96] It is for another day on another application with a more fully developed record for the Federal Court to consider whether in the national security context, section 21 warrants necessarily have a sufficient real and substantial link to Canada that the Court may issue a warrant that authorizes intrusive extraterritorial activity without offending the principle of comity and principles of international law.

The Court of Appeal did seem to accept that CSIS or CSEC could engage one of the other Five Eyes intelligence agencies to carry out the surveillance on its behalf.

According to the Canadian Press, the government is looking to appeal this to the Supreme Court of Canada.

Here is some additional coverage: Appeal Court upholds ruling CSIS kept judge in the dark on foreign spying.

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