Extraterritorial Application of the CSIS Act

 Cross-referencing: National Security Law (NSL), Ch. 3, p. 84; Ch. 11, p.451.

 

In a decision issued in October 2007 (but released publicly in 2008), the Federal Court has placed strict geographic limitations on CSIS warrants (and indeed, perhaps CSIS operations).  At issue was whether the Court had the jurisdiction to issue a warrant under section 21 of the CSIS Act in relation to investigations concerning Canadians, but to take place overseas.  The Service had sought the warrant because the targets of the investigation were Canadians, and potentially enjoyed Charter rights.  That uncertainty, urged the Service, stemmed from the Supreme Court’s reasoning in Hape, which did not foreclose (it was argued) the application of the Charter to overseas security and intelligence activities affecting Canadians. (For further discussion on the confusion in the jurisprudence created by Hape, click here.)

 

Faced with this issue, there were two plausible courses of action open to the Court.  First, it could have concluded that the CSIS Act’s warrant provisions reached only as far as authorizing searches and seizures in Canada.  This would have allowed the Court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.  In these circumstances, the domestic legal propriety of CSIS’s conduct would hinge on whether the Charter (and its protections against unauthorized searches and seizures) had the extraterritorial reach imagined by the government.

 

Second, the Court could conclude that CSIS itself has no statutory authorization to conduct extraterritorial investigations.  Ultimately, this is where the Court came down.  At core, it takes the view that Canadian statutes have no extraterritorial reach unless expressly authorized.  Since, in the Court’s view, no such authorization can be imputed from the CSIS Act, there is no permission for CSIS to conduct security intelligence investigations overseas.  Moreover, unless expressly rebutted by the statute, Canadian statutes are to be construed in keeping with international law.  The conduct of extraterritorial investigations (without consent of the territorial state) would violate international law.

 

The Court’s holding seems to reverse both CSIS’s own views in terms of its security intelligence function (namely, that it is authorized by section 12 of the Act to operate internationally) and the position many commentators, myself included, have taken about that ability.  (See, e.g., the discussion at p.84 of NSL.)   Section 12 has often been contrasted to section 16.  The latter allows CSIS, upon request from the ministers of defence or foreign affairs, to participate in foreign intelligence gathering (i.e., intelligence other than the security intelligence covered by the section 12 mandate), but only within Canada.  The absence of this geographic qualifier in section 12 – coupled with the geographically expansive definition of “threats to the security of Canada” – has led me (and others) to conclude that CSIS’s security intelligence function is geographically unbounded. Notably, the “threats” definition often includes threats that arise not only “within Canada” by also those “relating to” Canada.  The juxtaposition of “within” and “relating to” strongly suggests both a territorial and extraterritorial scope to the threats amenable to CSIS scrutiny under section 12.

 

That the Court saw the matter differently is proof that statutory interpretation is a matter very much in the eyes of the beholder.

 

The consequences of this decision are significant.  Because the Court chose to comment adversely on the reach of CSIS’s section 12 mandate, the door on extraterritorial security intelligence operations (conducted without the consent of the territorial state) may now be closed.  This creates a potentially acute blind spot.  Since the Communications Security Establishment is admonished by sub-section 274.64(2) of the  National Defence Act not to direct its foreign intelligence collection (in practice, signals intelligence) at Canadians, there would appear to be no agency now authorized to conduct intelligence investigations (of either the human or signals intelligence sort) targeting the extraterritorial activities of Canadians (without the consent of the territorial state).  At best, CSE can intercept communications with an incidental Canadian nexus (that is originating within or directed at Canada), with a ministerial authorization.  The resulting lacunae may tip the balance in prompting the government to table amending legislation creating a true foreign intelligence service or function.