Assessing CSIS: 3. The Problem of Extraterritoriality Pt 1

The following is the third entry in a serialized article I am preparing on CSIS and best practices in the intelligence area.  The other entries for this series can be found here.

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1.  Ambiguity in the CSIS Act

While section 12 is silent on the geographic reach of CSIS’s security intelligence function, the section 12 mandate is itself predicated on the reach of “threat to the security of Canada”.  That concept, for its part, includes clear references to threats that stem from sources outside the territorial bounds of the country.  Examples include “foreign influenced activities within or relating to Canada” and “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state” (emphasis added).  In including within the security intelligence mandate matters that merely “relate to” Canada, Parliament surely intended some extraterritorial flavor to CSIS section 12 activities.  This apparently has been the prevailing view within CSIS and among commentators.

This expectation has been shaken by a relatively recent Federal Court decision implying (at least on some levels) that the CSIS Act provides an insufficiently express extraterritorial reach to CSIS’s section 12 mandate.[1]  At issue in that case was whether the court had the jurisdiction to issue a warrant under the Act in relation to investigations concerning Canadians, but taking place overseas.  CSIS had sought the warrant because the targets of the investigation were Canadians, and potentially enjoyed privacy rights under the Charter.  The Court might have resolved the matter simply by construing its own (lack of) authority to authorize a warrant with extraterritorial content.  It decided, however, to go much further and address the Service’s legislative competence to act extraterritorially. 

Summarized to its essence, the court’s analysis hinges on the application of statutory interpretation doctrines. In its clearest holding, it observed that Canadian statutes are presumed to comply with international law.  Since the activities to be undertaken by CSIS included the (presumably surreptitious) “ability to obtain access, install any … search for, examine, take extracts from, make copies of, or otherwise record information”, they likely violated the law of the foreign jurisdiction.  They therefore impinged on that state’s territorial sovereignty and international law.  Since the legislative provisions could not be construed as authorizing the court to violate international law, the court had no jurisdiction to issue the requested warrant.[2]

The court also made a number of broader observations about the content of the CSIS Act.  They boil down to a doubt that the Act is sufficiently emphatic in authorizing surreptitious and intrusive surveillance overseas.  Referring to the “relating to” Canada language in the CSIS Act, the court concluded that an inference of extraterritorial authority stemming from this language is “not sufficiently obvious”.[3]

I have written elsewhere as to the state of international law on extraterritorial intelligence-gathering, and note there that it is a good deal more complicated and less clear-cut than the court assumes.[4]  Nevertheless, it seems clear that the precise circumstances in which CSIS may conduct extraterritorial section 12 investigations is now unclear, at least of the margins.  Certainly, there will be section 12 activities that indisputably comply with international law, and therefore do not raise the issues addressed by the Federal Court.  These will include activities undertaken internationally with the consent of the territorial state.  There will also be activities with an extraterritorial dimension but with enough of a Canadian nexus that there they can properly be considered an expression of Canada’s own territorial sovereignty.[5]  However, there will also be many instances where CSIS may undertake investigations that, while perhaps not as clearly intrusive as those at issue in the Federal Court case, nevertheless are covert.  Since international law itself is murky on the legalities of peacetime intelligence collection, any construal of the CSIS Act made with an eye to this international law will itself be opaque. 

The obvious solution is for careful law-making in this area to cure ambiguity and to specify the extraterritorial mandate of CSIS.  However, there may be little political appetite for enacting statutory authorizations arguably violating international law or offending diplomatic sensibilities.  A compromise may flow from the Scheinin report’s guidance.  Specifically, Parliament could enact provisos that clearly limit extraterritorial conduct in contravention of international human rights law.  In this manner, Parliament could artfully authorize extraterritorial activity, but by imposing reasonable prudential limits, blunt at least some of the controversy that might be associated with such activities.

 


[1]           Canadian Security Intelligence Service Act (Canada) (Re), 2008 FC 301.

[2]           Ibid at para. 55.

[3]           Ibid at para. 39.

[4]           Craig Forcese, “Spies without Borders: International Law and Intelligence Collection,” (2011) 5 Journal of National Security Law & Policy 179.

[5]           See, e.g., the scenario at issue in Canadian Security Intelligence Service Act (Can.) (Re.), 2009 F.C. 1058.