A Longer Arm for CSIS: Assessing the Extraterritorial Spying Provisions

The government tabled Bill C-44 yesterday.  Mostly amendments to the CSIS Act, the bill is largely a response to court cases over the last six years that have complicated CSIS's legal landscape.  Other than the hubristic over promise of its short title ("Protection of Canada from Terrorists Act"), few of the proposed CSIS Act changes are a surprise.  Indeed, several of them are too long in coming.

Put another way, this is not a response to last week's Ottawa attacks -- the other legal shoe (perhaps a steel-toed Kodiak boot) has yet to drop.

In this post, I shall begin discussing the Bill's key CSIS Act changes.  Here, I want to focus on the extraterritorial operations issue.

1. Responding to Justices Blanchard and Mosley

Once upon a time (that is, before 2008), most observers (myself included) assumed that CSIS's core "security intelligence" mandate in s.12 of the Act included overseas operations.  We believed this because the definition of "threats to the security of Canada" included references to threats from both inside and outside Canada, and because s.12 did not delimit CSIS security intelligence operations to the territory of Canada (unlike s.16, relating to CSIS's "foreign intelligence" mandate).

In a Federal Court decision made public in 2008, Justice Blanchard demurred, concluding (among other things) that s.12 did not possess an extraterritorial aspect, at least in relation to the covert surveillance at issue in that case.  He also concluded that a Federal Court had no authority to issue a warrant authorizing (presumably covert) surveillance on Canadians located overseas.  The statute did not authorize what would be, in his view, a violation of international law (to wit: spying in a foreign state, without that state's consent). For more on this decision and the international law angle, see my article posted here.

The Service then faced a choice: A. appeal, B. pull in its eyes and go blind, C. concoct some sort of work-around, or D. amend the CSIS Act to reverse Justice Blanchard's construal.  It chose option C, unfortunately in my view.  Its work-around resulted ultimately in a practice of seeking warrants on the basis that while surveillance was directed outwards, it was physically conducted in Canada.  Except the practice morphed from there, and turned into a system of seeking surveillance assistance from allied spy services.  When the Federal Court (in the form of Justice Mosley) learned of this (not directly, but incidentally when reading the reports of the CSIS and Communications Security Establishment review bodies), the Service was called in and issued a stern rebuke.  The blow by blow behind this saga is distilled here, as best as I understand it.  The decision condemning the CSIS practice was then appealed. That appeal has apparently been decided, but the Federal Court of Appeal has not released a public version.  The fact that the government has now reacted with legislation suggests that the outcome was not to the government's liking.

So fast forward to yesterday: the bill now makes abundantly clear that s.12 investigations may be conducted "within or outside Canada" (same with security clearance investigations).  So we return to the situation many of us thought to be the case pre-2008.

2. A Very Canadian Honesty about Spying

The more interesting change is in the amendments to s.21.  These would permit CSIS to seek and obtain a warrant from the Federal Court for overseas investigations.  And "[w]ithout regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada."

This reverses the other aspect of Blanchard J's decision: his refusal to authorize a warrant where to do so might violate international law (namely, the sovereignty of another country).  After all, what we are really talking about with covert surveillance, some of which may be so covert the territorial state is unaware of it.  And that may violate that foreign state's law, and by extension is sovereignty.  The latter would violate international law.

Now we need to be clear (because I am hearing strange things on this): in our constitutional system, Parliament is absolutely and without any doubt able to legislate in violation of international law, so long as the principle at issue isn't also a principle of our constitutional law.  A prohibition on violating the state sovereignty of another state is not a Canadian constitutional law principle.  (While international human rights law is often the benchmark for construing the Charter, nothing in international human rights law is offended by a system of authorized surveillance by the state, even in another state.  Human rights law just doesn't have granularity on this question.  Whether it should is an important discussion.  But in its present form, privacy law in international human rights law is anemic, despite best efforts to "talk it up".  See my views on this here.)

In my 2010 article, I concluded, however, that "it will be no simple thing to overcome this caution [on international law, by Blanchard J.] by legislative amendment.  No Canadian politician – cognizant of Canada’s modest position in the hierarchy of nations – will enthusiastically endorse an amendment that authorizes emphatically what other states only accept tacitly: that extraterritorial spying is permissible." 

And yet, showing that I misjudged the political and diplomatic courage of this government, that is exactly what the new bill proposes.  I have never seen (and I have started looking in earnest) a state codify so clearly in its law books that it's organs will authorize spying in another state, regardless of the law of that state.  States spy all the time, of course.  But this is real Canadian honesty.  I think I admire that.

3. CSIS and CSEC

And so what will it do?  First, it will probably keep some folks at Foreign Affairs up at night.

Second, it will regularize the CSIS/CSEC relationship.  There seems to be a lot of confusion on this point and on CSEC's mandate in general.  Cutting to the chase, CSEC can do foreign signals intelligence (Mandate A).  That's been the source of controversy post-Snowden, because of concerns that its Mandate A operations are drifting into the domestic sphere, or at least implicating Canadians.  Much has been said, denied and is unknown about all this.

But CSEC can (and has legally been able, since 2001) to provide "technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties" under its so-called Mandate C.  (These letters are in reference to the powers listed in the National Defence Act, s.273.64).

So CSIS comes with warrant in hand, and CSEC can act as CSIS's technological appendage, shielded by the lawful authority in the CSIS warrant.  The issue in the 2013 decision by Justice Mosley is that CSIS was coming and seeking assistance beyond the scope of the shielding warrant.

Now, with the bill, it will be clear that CSIS is authorized to conduct overseas invetigations, and that the Court can authorize intercepts by warrant. 

So yes, Canadians (and non-Canadians) who pose a threat to the security of Canada can be lawfully spied upon, inside or outside the country. 

Personally, I think this is sensible, if it is subjected to proper oversight and review.  And therein lies the rub.

4. Federal Court Extraterritorial Warrants: When do you seek them?

First, the amendments give the Federal Court the power to issue the extraterritorial warrant, but don't establish when CSIS needs to seek one on the first place.  This is more than a technical lapse.  It really is a conundrum.  The trigger for the obligation to seek a warrant is where CSIS believes "on reasonable grounds, that a warrant is required" to investigate a threat, now inside or outside Canada.  And that begs the question, when is it reasonable think a warrant is required.  The classic answer is: where your investigation amounts to a search or seizure regulated by s. 8 of the Charter -- in other words, where at stake is a reasonable expectation of privacy.  So, short answer: where the Charter applies.

But does the Charter apply overseas?  That question causes consternation up and down the court system.  But whatever else may be the case, the Supreme Court in Hape suggested that s.8 of the Charter doesn't really reach beyond the borders. So that may well mean that you never need to actually seek the warrant for overseas investigations that the Act will now permit you to get from the Federal Court.

The wary lawyers at CSIS didn't want to make that assumption when they went to Blanchard J in 2007, in the case that sparked this whole drama in the first place.  And they were probably right to be cautious.  For one thing, Hape was an overseas police investigation done with the assistance of foreign authorities.  The Court was clearly motivated by concerns of comity, and not superimposing on a foreign state Canadian niceties. But I could see a court concluding that s. 8 does reach circumstances in which, rather than acting in concert with foreign states, you acted secretly without even the oversight associated with that foreign law.  This distinguishes Hape, and constitutional law abhors a vacuum.

Likewise, if the surveillance does reveal facts that are later used as evidence in a criminal trial, I could also easily see a court saying: "So, let me understand this.  You were acting covertly without the knowledge of the territorial state, and in violation of its laws.  And you also had no oversight by the courts in Canada.  So basically, you were making it all up on your own.  And now you want us to admit this as evidence and for us to say, no problem, fair trial.  Well, on that point we demur, as Hape allows us to."

Still, it would be nice to have some language in the bill specifying in greater detail the trigger for seeking warrants in the first place.

4. Federal Court Extraterritorial Warrants: Lions and Tigers and Bears

Second, assuming we do have a practice of regularly seeking Federal Court extraterritorial warrants, I think this is a positive development.  A Federal Court, confronted with a request to spy in violation of a foreign states laws and international law, will breathe fire to ensure that the Service's homework is done thoroughly and that the warrant is, well, warranted.  Because if the whole operation goes sideways, it's not just the Service whose credibility will now be in question.

Foreign Affairs will not be the only place with sleepless people.

5. Review, Where Art Thou?

But here's the big issue for me: The clock ticks, post-Arar and nowhere, on no horizon, are the review and accountability reforms recommended by that inquiry on the agenda.  And yet our review system clearly groans in its efforts to keep pace.  SIRC chairs resign in controversy.  It remains understaffed, and deserving of more resources.  The latest SIRC report suggests all is not well with the CSIS cooperation with its review body.  SIRC and the CSEC commissioner coordinate, but are reportedly criticized by the security services when they make moves to deepen their coordination.  Other important and powerful agencies -- such as CBSA -- wander about without any review at all.  Parliamentarians are blind and often oblivious, and no legislated committee of parliamentarians has attracted government support despite private members bills calling for such measures.

The accountability system is a village around which has grown a metropolis.  Let me editorialize (it is my blog): This is absurd.  Absolutely, Federal Court oversight via warrant is a fine development, assuming its used.  But it is only part of the equation, and one that the government has been forced to address, not proactively develop.  More generally, it is time for the "Protecting Canadians from the Protection of Canadians from Terrorism Act".  Enact the Arar recommendations, staff the review bodies earnestly, completely, on a full time basis and with resources to spare.  Make Parliamentarians relevant by supporting a law project like Bill C-622.