The Federal Court of Appeal has refused to let the Canadian Security Intelligence Service (CSIS) and the Justice department off the hook for scathing criticism by a lower court judge on a foreign surveillance case.
As I wrote last December, a Federal Court judge came down hard on the Canadian Security Intelligence Service (CSIS) and the Justice department for lying withholding material evidence to get a warrant so agents could keep Canadians outside of Canada under surveillance. What the hearing judge wasn’t told was that surveillance would be handled by another country.
As a result the hearing judge set four conditions for approving what are called domestic interception of foreign telecommunications and search warrants. One is that the court has to be told by CSIS if a request for foreign help has been made. Another is that it also has to be made clear an approved judicial warrant doesn’t authorize the interception of communications of a Canadian by any foreign agency on behalf of CSIS or our electronic spy agency, the Communications Security Establishment Canada (CSEC).
Not wanting its hands tied, the Harper government appealed that ruling. But this week the Federal Court of Appeal upheld that decision, saying the hearing judge didn’t err in finding CSIS breached its duty of candour, or in his finding that the CSIS Act doesn’t authorize the agency to request foreign spy agencies to intercept the telecommunications of Canadians abroad.
On the other hand, the appeal court said a Federal Court judge can issue a warrant authorizing CSIS to intercept a foreign telecommunication and to allow a foreign agency to do it for them — but only if intercepting telecommunications it is legal in that country. “It remains an open question,” it added, “as to whether the Federal Court possesses such jurisdiction when the interception is not legal in the country where it takes place.”
In part, it is a victory for the federal government, although the hearing judge’s rules still stand. As a result, it dismissed the appeal.
Public Safety Minister Stephen Blaney said the government is seeking leave to appeal the decision to the Supreme Court of Canada because it left uncertain important questions of law.will now take the case to the Supreme Court of Canada.
Meanwhile, last month the government has introduced legislation (Bill C-44, read it here) to amend the Canadian Security Intelligence Service Act. In a brief description of the proposed ammendments, Blaney said the changes confirm CSIS’s authority to conduct investigations outside of Canada; confirm the Federal Court can issue warrants for CSIS to investigate threats to our national security outside of Canada; and gives the Federal Court authority to operate within the scope of relevant Canadian law when issuing warrants to authorize CSIS to undertake certain activities to investigate a threat to the security of Canada outside of Canada.
The synopsis doesn’t say if the court can authorize an interception of communications in a country where it isn’t legal.