Bill C-51: CSIS Powers and when warrants will be required

Please treat this entry as "rolling" addendum to the detailed backgrounder document that Roach and I have posted on the proposed bill C-51 CSIS powers.

There seems to be considerable uncertainty in public discussions as to when CSIS will need a warrant to exercise its proposed s.12.1 "measures" (what we call 'kinetic' powers).  There is an assumption that it will need a warrant whenever it deploys a s.12.1 measure. 

Roach and I do not believe this to be the case based on a simple reading of the Act, and based on past practice in relation to CSIS's existing powers.  As we write in our backgrounder:

We return to the warrant issue below.  Here, however, we note that the question of “reasonable and proportional” will be decided unilaterally within government (and CSIS) whenever a measure falls short of violating the law or the Charter.  The government need only seek a warrant under new s.21.1 where it has “reasonable grounds” to believe it is required.  Section 12.1(3) only requires such a warrant where “measures” “will” (not “may”) contravene a Charter right or Canadian law.  Other measures that do not go this far presumptively do not require a judicial warrant, and the only oversight in this instance will be internal, executive branch controls.

If the government wishes a warrant to be required for every measure under s.12.1 it will need to modify its language to ensure make this intent very clear.  Otherwise, the pattern will simply reflect practice with existing CSIS security intelligence investigations under existing s.12. 

Under section 12 of its existing statute, CSIS is to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada...”  It simply is not the case that every investigation must be authorized by warrant.  Under section 21, CSIS seeks a warrant from the Federal Court where it “believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada”.  The language, in other words, mimics that in the C-51, as applied now to the new kinetic powers in s.12.1 and the new warrant provisions in s.21.1.

In the existing s.12/s.21 context, the "reasonable grounds to believe" is triggered when the investigative methods trench on a reasonable expectation of privacy, and thus would be an unreasonable search under s.8 of the Charter absent a warrant.  That is the usual trigger under s.21 for getting a warrant.

This conventional understanding of "trigger" (aka reasonable grounds to believe) needs amplification in the new bill, because this is a new sort of warrant regime going well beyond search warrants/authorizations (and not governed by the specific arrest warrant rules under, e.g., Criminal Code).  We just can't fall back on everyone's understanding of how past warrant systems have always worked in deciding when someone should have a "reasonable grounds to believe".

So new s.12.1(3) specifies exactly when a warrant would be required for kinetic measures: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1".  This translates, in my view, into "reasonable grounds to believe" a warrant is required under s.21.1 = where the Service will violate Canadian law or any of the rights in the Charter.

Again, I don't see any other way to interpret the awkward construction in the CSIS Act, especially given the existing practice in relation to regular s.21 search/surveillance warrants.

And so again, if the government really means that "no measures of any sort will be taken unless there is a judicial warrant" they need to put that right into the Act and recraft s.12.1(3) to read something like: "The Service shall not take measures to reduce a threat to the security of Canada ..., unless the Service is authorized to take them by a warrant issued under section 21.1".

(This would also have the effect of eliminating even the hint that the statute is inviting a Court to authorize a Charter breach, something to which Kent and I object at great length in our backgrounder as totally contrary to foundational understandings of public law.  So talk about curing two problems with the deletion of simply a subclause.)

By the way, Roach and I have posted an unofficial consolidated version of the CSIS Act, as it would look at Bill C-51 (and Bill C-44).