A special prosecutor should investigate why Canada’s intelligency agency was selective in the information they gave a judge to get a warrant for intercepting foreign telecommunications, says a Halifax lawyer.
David Fraser, who writes a privacy law blog, said last week that the “stunning” decision by Justice Richard Mosley of the Federal Court that the Canadian Security Intelligence Service (CSIS) wasn’t told that the service would use the warrant to allow another country to do the actual interception.
In his blog Fraser alleges Mosley was lied to by CSIS officials and federal lawyers. In his decision Mosley didn’t go quite that far. He said the government didn’t disclose what it was doing, which was assuming the warrant – which CSIS needs to allow the Canadian electronic spy agency, Communications Security Establishment Canada (CSEC) to intercept communications within Canada – allowed it to hand off the interception to an ally.
“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,” Mosley wrote.
“This was a breach of the duty of candour owed by the Service and their legal advisors to theCourt. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the … warrants.”
If Parliament wanted to give CSIS and CSEC the power to hand off intercepting communications to an agency outside Canada it should have changed the law governing CSIS, Mosley said.
In his blog Fraser noted that five government lawyers argued the case before Mosley.
The Ottawa Citizen, which reported on the decision, noted that Mosley is a former deputy minister with the Justice department. It quoted CSIS saying everything the service does is consistent with Canadian law.
The case comes amid revelations by former NSA contractor Edward Snowden about the capabilities of U.S., Canadian and British spy agencies.