Supreme Court of Canada to hear case involving foreign spying and misconduct by government lawyers

The Supreme Court of Canada has agreed to hear the appeal from the Federal Court of Appeal in the case of Re X. That was an interesting case on the merits: Can a Canadian judge grant a warrant to Canada's spy agency to do something outside of Canada that would violate the laws of the country where it would be done.

For me, the bigger part of the case was that the Court 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.

In the lower court, 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.)

I really hope the Supreme Court will delve into the required level of candour and transparency for Government lawyers when they are making secret applications for secret warrants to do intrusive things that otherwise would be unlawful in Canada.

Here's the summary prepared by the Supreme Court of Canada:

Supreme Court of Canada - SCC Case Information - Summary - 3610736107

In the Matter of an Application for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23

(Federal Court) (Civil) (By Leave)

(Sealing order)

Summary - Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

National security – Security intelligence – Warrants – Federal Court issuing warrant to CSIS for the interception from within Canada of telecommunications of Canadian citizens travelling abroad – CSIS failing to disclose on warrant application its intention to seek the assistance of foreign partner agencies for the interception of telecommunications of Canadians abroad – Federal Court finding that CSIS breached its duty of candour on ex parte warrant application – Federal Court holding that s. 12 of the Canadian Security Intelligence Service Act does not authorize CSIS to make such requests to foreign partner agencies – What is the scope of the Federal Court’s jurisdiction under s. 21 of the CSIS Act to issue warrants governing the interception of communications of Canadians by foreign agencies at Canada’s request – What is the scope of CSIS’s disclosure obligations on warrant applications – Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, ss. 12, 21.

In 2009, a warrant was issued permitting the Canadian Security Intelligence Service (“CSIS”) to intercept, within Canada, the telecommunications of two Canadian citizens travelling abroad. In 2013, it came to the attention of the issuing judge that, where similar warrants were issued, it had become the practice for CSIS and for the Communications Security Establishment (“CSE”) to make requests to foreign partner agencies for assistance in the targeting of the communications of Canadians abroad. The court recalled counsel to address two issues: (1) whether the Attorney General had met his duty of candour when applying for such warrants, and in particular, whether the assistance provided by CSE in tasking foreign partners should have been disclosed; and (2) whether s. 12 of the Canadian Security Intelligence Service Act authorizes CSIS to engage the assistance of foreign agencies in intercepting the communications of Canadians abroad. The court found that the Attorney General had breached his duty of candour and that s. 12 of the CSIS Act did not authorize CSIS to engage the assistance of foreign agencies. The Court of Appeal dismissed the Attorney General’s appeal.