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.

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.

Special prosecutor required to investigate spies and their lawyers lying to the Federal Court

On Saturday, I blogged about the stunning decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF](See Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).

The Court specifically found that agents of the Canadian Security Intelligence Service -- on the advice of and with the concurrence of their Department of Justice lawyers -- misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act. The Court specifically found -- as a fact -- that this had occurred:

[117] In my view, as soon as it was determined that the Service would rely on the general power to investigate set out in s 12 of the Act to request second party assistance with the interception of the communications of Canadian subjects abroad, that determination constituted facts known to the affiant which could lead the Court to find that there was no investigative necessity to issue a 30-08 warrant. The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.

[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants.

Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.

The decision names five Department of Justice lawyers who made "appearances" at the hearing of this matter but does not specify on whose specific advice CSIS was acting.

The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.

This cannot go unnoticed. This is not a "no harm, no foul" situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country's top lawyer and prosecutor. Anything less would be sweeping this under the rug.

Canadian intelligence agencies lied to obtain warrants, Federal Court judge says

In what can only be called a stunning decision (IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF]), a judge of the Federal Court of Canada has concluded that Canadian intelligence agencies essentially lied to the court in order to get warrants that never would have been granted had they exercised the appropriate level of candor. In addition, they sought to have other members of the "Five Eyes" group carry out surveillance of Canadians that they would have been prohibited from doing themselves.

The Ottawa Citizen does a great job summarizing the decision and its impact: CSIS asked foreign agencies to spy on Canadians, kept court in dark, judge says. It also includes good insights from national security law expert Craig Forcese at the University of Ottawa.

Some extracts from the decision:

“I am satisfied that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for 30-08 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 principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the Five Eyes to intercept the communications of the Canadian targets, CSIS and CSEC officials knew ... this would involve the breach of international law by the requested second parties.”

“There is nothing in any of the material that I have read ... that persuades me that it was the intent of Parliament to give the service authority to engage the collection resources of the second party allies to intercept the private communications of Canadians.”

“It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the service either directly or through the assistance of CSEC.”

“There must be no further suggestion in any reference to the use of second party assets by CSIS and CSEC, or their legal advisers, that it is being done under the authority of a (section) 21 warrant issued by this court.”

The Citizen also obtained the following unsurprising reactions from CSIS and CSEC, which I would also say don't live up to any reasonable interpretation of "candor":

CSIS: “Protecting Canada’s national security interests in today’s globalized world is increasingly challenging, with little margin for error, especially in matters of counterterrorism. The international character of terrorism means that security is more than ever a shared effort. Everything that CSIS does, alone or with trusted partners, is consistent with Canadian law and Canadian values.

“We understand that protecting Canada’s national security interests is not just an important mandate but a sensitive one. As an organization, we are always looking to become more effective as we adapt to increasingly complicated threat environments.”

CSEC: “We will be reviewing this decision carefully. CSE may only conduct intelligence activities in Canada under its mandate to provide assistance to federal law enforcement and security agencies upon request. These activities respect Canadian laws and Canadian values, and are conducted under the requesting agency’s legal authorities, such as any applicable court warrant. CSE is bound by and must respect any limits in those authorities. All CSE activities are subject to review by the CSE commissioner, who for 16 years has reported that CSEC continues to act lawfully in the conduct of its current activities.”

The Globe & Mail also has good coverage of this decision: Canada’s spy agencies chastised for duping courts.

I can't help but think that though spies are not expected to have scruples and ethics, the Federal Department of Justice lawyers who participated in this likely failed to meet their professional obligations that exist regardless of their political masters and whom they are representing.

The misleading affidavits used at the ex parte hearings to obtain the warrants were prepared by and sworn in front of lawyers who have a free-standing, ethical obligation to never mislead the court. This is noted by Justice Mosley:

[82] The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v Canada (Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3 at para 27:

In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank, supra, at paragraph 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c.10, r.8.

[83] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re), 2010 FC 1243 at para 117, rev’d on other grounds 2012 FCA 122, appeal on reserve before the Supreme Court; Charkaoui (Re), 2004 FCA 421 at paras 153, 154; Almrei (Re), 2009 FC 1263, para 498. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service must present all material facts, favourable or otherwise.

The Court then goes on to note that this misleading conduct was sanctioned by DOJ counsel:

[90] Based on the documentary record before me and Mr. Abbott’s evidence, I am satisfied that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 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.

I find this to be appalling conduct on the part of CSIS, but it is even more egregious that it was in consultation with legal counsel. It brings shame on the profession and also brings the administration of justice into disrepute.