The Day in Court: Litigation as a Tool of Accountability in National Security

Notes for Panel Presentation, Intelligence Collection and Accountability: Getting the Balance Right

Canadian Association of Security and Intelligence Studies Conference: "Terrorism and Canada"

November 2013

In late October, the BC Civil Liberties Association filed a lawsuit in BC Superior Court, challenging the intercept law governing Communications Security Establishment Canada and its metadata collection practices.  This is the first constitutional law challenge brought in relation to CSEC, possibly in its history and certainly since the codification of its chief governing law in 2001.           

In this brief talk, I wish to briefly outline one key legal issue arising from this lawsuit and then one reason why I think it is important from an accountability perspective.

 

1. The Key Legal Issue

The BC Civil Liberties notice of claim challenges those provisions in the National Defence Act that empower CSEC to collect “private communications” as part of its foreign intelligence mandate.  Private communications are essentially communications with a Canadian nexus. 

The most plausible challenge relies on s.8 of the Charter, which protects against unreasonable search and seizure.  Section 8 is the constitutional basis for warrant requirements in conventional police (and CSIS) practice.   The section 8 expectation, boiled to its essence, is that surveillance in circumstances where a reasonable expectation of privacy exists requires an advance authorization by an independent judicial officer.

Under the National Defence Act, however, it is the minister of national defence who authorizes the intercept of private communications, not a judge.

Now, it is true that the way in which CSEC intercept authorizations operate differs from warrants.  The authorizations are more broadly textured – they are not like warrants in enumerating with specificity the target and scope of the intercept.  They are issued just in case private communications are intercepted, not in some effort to target such communications.  Indeed, this targeting would be illegal under the National Defence Act.

As described by the CSEC commissioner in last year’s annual report, the ministerial permissions “relate to an ‘activity’ or ‘class of activities’ specified in the authorizations ... the authorizations do not relate to a specific individual or subject ....”

This practical difference does not, however, answer constitutional concerns, in my view.  Whether my communications are being collected under a targeted warrant or incidentally as part of an authorized foreign intelligence collection process doesn’t make much difference to me: my privacy is still being invaded in circumstances where I have a reasonable expectation of privacy.

As a consequence, I simply don’t see why the section 8 expectations should be different in relation to CSEC.  I do not see why it would be impossible for the “ministerial authorizations” of a “class of activities” to be “judicial authorizations” of a “class of activities”. 

Put another way, there is no reason why the legal regime can’t be designed to comply with section 8 – namely, authorization by an independent judicial officer.  In essence, that’s what the United States does with its FISA court (not necessary a model I would propose emulating in all its forms).  And CSIS warrants demonstrate that there is nothing magic about judicial authorization in a national security context.

In sum, I think it makes a difference whether a judge looks at this, as opposed to a political minister.

2.  Judicial Scrutiny and Accountability

And that brings me to my point about the virtue of this lawsuit.  It is comparatively rare that judges, or frankly anyone outside of executive government, scrutinize national security activities.

And yet it is often the case that bureaucracies benefit from external review.  Whether by reason of group-think, internal pressures or politics, the policies pursued by the government are sometimes aggressive construals of what the law will bear.  

Indeed, outside of the criminal law area, the government’s track record in relation to those national security cases that have gone to court on constitutional grounds is a very poor one.   It is rare for the government view to prevail, at least in full.  And even in those instances that come close to an outright victory – for example, the Supreme Court’s decision in relation to investigative hearings – the courts insist that the law be construed in a manner that departs from the government’s initial position.   More than that, the public learns things about its government (not all of which is flattering to the government) that would be entirely invisible but for these lawsuits.

There is clear virtue, in other words, to judicial testing of government positions.  I do not regard judicial involvement in accountability as a panacea.  I do, however, regard its absence as a serious deficiency. 

National security surveillance (and specifically, CSEC surveillance) is one the vital areas that has so far escaped any real judicial scrutiny.  And so practices in this area are entirely a product of inside-government deliberations, tempered in places by the recommendations of the CSEC commissioner.  That commissioner is, however, in no position to second guess the statutory architecture by which CSEC does business, and in relation to practices he doubts, can do little more than shine a light, rather than issue an order.

To be blunt, the recent past suggests that nothing drives reform in the area of national security practice like the prospect of judicial scrutiny, whether in the form of a judicial inquiry or a lawsuit.  And so the time has long since arrived for a close review in Canada’s courts of the constitutionality of CSEC’s practices.

Let me stop there and leave other matters to questions and answers.