Open Courts and CSIS Warrant Applications

Cross-referencing: National Security Law (NSL), Ch. 11, p.451; Ch. 10, pp. 402 et seq.

 

In a decision issued in 2006, but only released publicly in 2008, the Federal Court set a new standard for transparency in the adjudication of CSIS warrant applications.  Pursuant to section 21 of the CSIS Act, CSIS must seek a warrant for certain intrusive investigative techniques from a special, designated judge of the Federal Court.  These applications are ex parte and in camera, for the obvious reason of preserving the surreptitious nature of the investigation.

 

The Federal Court concluded, however, that the CSIS Acts provisions requiring that warrant applications must be heard in private must be construed in keeping with the now rich (constitutional) jurisprudence favouring open courts.  The actual warrant applications themselves must be secret.  However, collateral matters arising in these applications – such as general questions of law – need not be.  As Justice Noël notes, “[i]n some circumstances, to debate a jurisdictional, procedural or constitutional question in public can be injurious to national security or prevent the proper execution of a warrant.  It is also possible to imagine cases where the public hearing would be allowed on some of the issues of law, while others would remain confidential” (at para. 47).  In the case at bar, the Court concluded that the jurisdictional question at issue, if disclosed publicly, could be prejudicial to national security – “addressing the question of law in public could have the effect of informing of methodologies utilized for obtaining information in a covert fashion” (at para. 55).

 

 

Some time after this decision, Justice Blanchard released a decision on the extraterritorial reach of the CSIS warrant process (discussed here).  Justice Blanchard refers to the Noël J. decision, which itself was also released in redacted form.  Like the Blanchard J. determination itself, it is now clear that the matter before Justice Noël dealt with the extraterritorial reach of the CSIS Act warrant process.