The Ugly Canadian? International Law and Canada’s New Covert National Security Vision

Speaking Notes

CBA National Section on International Law Notes
May 28, 2015

Craig Forcese

Thank you for your invitation.  I have been asked here this evening to speak about the international law aspects of two new laws – bill C-44, now enacted, and bill C-51, all but certain to be enacted by next week.

Most of you are probably familiar with at least C-51.  It is a large omnibus, with a number of moving parts.  But perhaps the most controversial part of the bill would give our covert security service -- CSIS – the powers to “reduce” threats to the security of Canada by taking any “measure”, except bodily harm, violation of sexual integrity or obstruction of justice.  

The government calls these “disruption” powers, although no one has clearly articulated what that means.  What we do know, however, from the legislative history is that the government intends CSIS to be able to pick from a menu of responses.  Politically, this has been painted as an anti-terror response.  Legally, CSIS’s new powers reach its entire national security mandate, and so apply to sabotage and espionage, violent subversion and so-called foreign influenced activities, as well as terrorism.

We also have some sense from the legislative history as what specifically the government has in mind.  Famously, the government has said it wants CSIS to be able to speak to parents of radicalizing children.  CSIS already does so, and so we need to look further. 

The parliamentary record includes suggestions that, legally speaking, the government believes the new powers could be used to interfere with mobility rights (as in returning Canadians); that the door is not closed legally speaking on rendition; and that the door is not closed in terms of some form of detention, although not criminal arrest. 

Other things that CSIS specifically identified as being among its new powers are “disrupting a financial transaction done through the Internet, disabling mobile devices use in support of terrorist activities, and tampering with equipment that would be used in support of terrorist activities”.

And the government also pointed to analogs – actually quite poor – in other laws that allows the state to remove content from the internet, in the context of discussing the CSIS power.  This suggests internet site take-downs are on the list. 

Exercising some of these powers would require warrants, because the bill requires a warrant where a measure would breach Canadian law or the Charter.

You may be less familiar with bill C-44.  This bill was tabled in the Fall, and on its face seeks to remedy confusion caused by a series of Federal Court cases concerning the extraterritorial reach of CSIS’s conventional surveillance jurisdiction.  Specifically, the court cases cast doubt on whether CSIS may legally conduct covert surveillance in violation of foreign law, and therefore territorial sovereignty. At any rate, they held that the court itself was not empowered to issue a warrant permitting such activity. 

Through a perplexing serious of events, these questions are now before the Supreme Court in the Re X matter, scheduled for hearing this Fall.

Critically, both C-51 and C-44 provide new extraterritorial reach for CSIS activities: they emphatically allow CSIS to operate internationally, and they emphatically allow courts to issue warrants in violation of foreign and "other (aka international) law.

Which brings me to today’s topic:  how it this to be evaluated with an eye to international law?  And do we risk becoming the proverbial “ugly Canadians”, because of international law banditry?

I will start by saying that the international law of spying is underdeveloped.  Certainly, sovereignty is a core precept of public international law, guarding a state’s essentially exclusive jurisdiction over its own territory.  A concomitant principle is the rule of non-interference in the internal and external affairs of any other state.

I want to focus first on collection of intelligence from human or electronic sources by non-diplomats.  Non-diplomatic state agents collecting human intelligence or engaging in electronic surveillance do not benefit from any diplomatic cover, or arguments that their activities fall within the scope of a diplomatic mission. 

They are, therefore, personally culpable for any violation of the laws of the state in which they spy, and their states are responsible for any resulting breaches of international law. 

On this last point, however, everything hinges on the breadth of the customary prohibitions on intervening in the internal or external affairs of any other state.  Does, for instance, a failure by a state agent to comply fully with the territorial state’s laws always amount a breach of sovereignty, and therefore of international law?

The exercise of what is known as “enforcement jurisdiction” by one state and its agents in the territory of another is clearly a breach of international law – it is impermissible for one state to exercise its physical power on the territory of another, absent consent or some other permissive rule of international law.  And so I pause here to say that much of the physical, kinetic activity that CSIS might undertake under C-51, done covertly without state consent, would violate international law.

More uncertain is whether a state agent’s violation of domestic rules through spying necessarily constitutes a violation of international law.

There is no international jurisprudence on peacetime espionage, state practice is a muddle, and the academic literature is deeply divided on the question of legality. 

Helpfully, the academic literature splits into three categories: those who regard espionage as illegal in international law; those who see it as “not illegal”; and those who envisage espionage as neither legal nor illegal. 

The very fact that there are three camps with such diametric and somewhat uncertain positions itself suggests that the third view – neither legal nor illegal -- lies closest to the truth: there is no clear answer on the international legality of extraterritorial espionage, assessed from the sovereignty perspective. And the international community seems content with an artful ambiguity on the question.

On the other hand, human rights principles constrain the means and methods of spying by prohibiting torture, cruel, inhuman and degrading treatment and unauthorized intrusions into privacy.  But when and whether these rules apply to extraterritorial spying is a complex question.

The answer to that question depends on whether international human rights instruments have extraterritorial reach.  Put succinctly, a state’s obligations under the Torture Convention extend to territories over which it has factual control.  Its ICCPR responsibilities, meanwhile, attach to persons under its effective control, including potentially those detained surreptitiously for purposes of interrogation. 

The rules governing extreme forms of interrogation do, therefore, extend to extraterritorially.  It is difficult to see, however, how the ICCPR concept of “effective control” applies to privacy interests and constrains, for instance, extraterritorial electronic surveillance.  Extraterritorial surveillance, almost by definition, will not be of persons within the spying state’s effective control.

I would note that since the Snowden revelations, there has been a lot of soft law emerging in this area – and so customary law here will likely become a moving target.  But we’re not there yet.

And so what does all this mean for CSIS going forward.  First, covert surveillance done without the consent of a foreign state may currently be ungoverned by international law – although whether it would nevertheless be governed by section 8 of the Charter is a novel issue that may well be reached by the Supreme Court in the Re X case.  And so international law is mostly unhelpful in assessing C-44.  (Subject to the caveat that the more kinetic the surveillance -- the more it amounts to a physical exercise of state powers -- the more likely it is to stray across an enforcement jurisdiction boundary).

The situation with C-51 is more complex.  Some of CSIS’s possible, so-called disruption activities clearly stray into the enforcement jurisdiction range: holding someone in custody; rendering someone.  These are kinetic activities of a sort that amount to enforcing state powers on the territory of another state. 

It is also possible to conceive of hacking into a foreign bank account to delete an account or attacking a foreign server to bring down a website as sufficiently physical acts in today’s world to amount to the wrongful exercise of enforcement jurisdiction.

More than this if CSIS detains someone or renders someone, it seems very likely that the human rights standards in the ICCPR apply.  The effective control standard would be met.

CSIS, review bodies, and courts will need to keep this range of possibilities in mind as they approach CSIS’s new powers.  It would be cardinal mistake to treat every exercise of CSIS’s new powers as equivalent, in international law. Each requires a unique international law assessment.

I will end on a final point: I mentioned that in both bills, the Federal Court is empowered to issue a warrant authorizing CSIS conduct.  At issue, however, is when the Service needs to seek a warrant – if it doesn’t need to actually seek a warrant, it can act unilaterally. 

C-44 is ambiguous – probably intentionally -- on this question.  It specifies no precise trigger for seeking a warrant.  The implied trigger would be whenever a warrant is required under the Charter.  Since the extraterritorial reach of the Charter is a disputed issue, we will need clarity from the Supreme Court on that question in Re X.

In C-51, a warrant must be sought if CSIS’s conduct will violate Canadian law or the Charter.  Canadian statutory law rarely applies outside Canada, and again the reach of the Charter is contested.  And so, this too risks becoming a closely litigated issue. 

To obviate the possibility of CSIS unilateral extraterritorial action, my own view would be that principles of customary international law, such as state sovereignty, are part of the common law of Canada.  Common law persists unless displaced by statute.  These are settled issues in Canadian law.  I would then argue that there has been no such displacement of the common law by C-51.  And since CSIS requires a warrant for a breach of Canadian law – a concept that properly includes common law – a warrant is required under C-51 every time the Service does anything that violates state sovereignty.

I suspect that the government will not warmly embrace this analysis.  And so I imagine some of these arguments will soon be made in a more formal setting.

Thanks for your interest.