Oh, What Tangled Webs the CSIS Act Weaves: The Federal Court's Latest Decision on CSIS's Foreign Intelligence Mandate

The Federal Court this week released a lengthy decision that, unusually, dealt with CSIS’s s.16 “foreign intelligence” mandate. In so doing, it proved, once again, that an Act mostly left fallow for a generation spits up weeds.

The decision is deeply redacted, and we know precisely nothing about the target, subject-matter issue or investigative technique at issue. And that means there is no way for me judge whether I think the Court “got it right”. But the underlying storyline is easy enough to imagine, even if the precise specifics are secret. And the policy issues can be surfaced with a hypothetical.

Who Was the Target?

The target was a foreigner physically in Canada. They could not be Canadian (or a Canadian permanent resident) – CSIS cannot investigate a Canadian or Canadian permanent resident under its s.16 mandate. And they had to be in Canada. This was a warrant application. A warrant would only be required, constitutionally, if the foreigner was in Canada. And besides, if the foreigner was overseas, CSE could have targeted him or her under its foreign intelligence mandate, Mandate A.  But CSE cannot direct its foreign intelligence activities at any person in Canada. So bottom line: the person was in Canada.

What was the Foreigner in Canada in Doing?

We do not know what our foreigner in Canada – who we shall call Bob – was doing. We do know what Bob was not doing. He was not involved in terrorism, espionage, sabotage or foreign-influenced activities (at least not foreign-influenced activities within Canada or related to Canada, while detrimental to the interests of Canada). And I suppose for the sake of completeness, I should add Bob was not involved in subversion of the Canadian government. Because if Bob was involved in any of these things, he would pose a “threat to the security of Canada” and this would have been a s.12 CSIS “security intelligence” investigation.

But it was a s.16 investigation.  Which means that Bob was being investigated to collect information or intelligence relating to the capabilities, intentions or activities of any foreign state or group of foreign states or some foreign person. This is what is called “foreign intelligence”. Basically, that means anything other than security intelligence.

Bob from Mordor

So, because all the good parts in the decision are redacted, let’s make up our hypothetical: Bob was a diplomat from the Embassy of Mordor, who was in fact from the Mordor Acquisition and Liaison Intelligence Collation Entity (MALICE).  And while in Canada, Bob was part of an intelligence operation designed to influence the Government of Isengard, in a manner advantageous to Mordor.

Global Affairs Canada, which has an obvious interest in developments in Isengard, wants to get a handle on this foreign influence campaign. And so, it turns to CSIS. There is no clear way an investigation into this influence op falls within a “threat to the security of Canada”.  (I suppose in some cases, it would be so egregious as to be “detrimental to the interests of Canada”, even though directed at a third state, but you can only bend that language so far.)

So, under s.16, the Minister of Foreign Affairs requests, and the Minister of Public Safety agrees, that CSIS will conduct a foreign intelligence investigation.  But s.16 also says that CSIS may only engage in foreign intelligence collection “within Canada”.

Alice of Isengard

That works fine, to a point. Bob is in Canada. But his chief asset in Isengard is Alice, someone who has influential contacts in the National Repressive Ring Association (NRRA). And Alice is not in Canada.  And moreover, Bob and Alice have 1990s style operational security.  When they communicate, they do so by logging into Gondor Mail (G-Mail), an email service in Gondor.  And they modify draft emails in an email account to which they both have access, housed on G-Mail’s Gondor-based servers.

The Warrant on Bob

CSIS wants to monitor Bob’s communications in Canada. Now Bob is a foreigner, but as noted, he has Charter s.8 rights. And so CSIS needs a warrant.  And CSIS wants, with that warrant, to wiretap not just Bob’s phone but also access his email communications. But, nuts, the G-Mail servers are overseas. And CSIS is no position to somehow insert keystroke logging on Bob’s embassy computer. And so, the only way (I shall assume, because I am not a tech-guy) to access the G-Mail draft folder is by hacking into the Gondor-based servers.

Now, pursuant to Mandate C, CSE can provide the technical wherewithal to do this. But CSIS needs to have lawful authority to seek this CSE assistance, meaning if CSIS needs a warrant, CSIS has to have one.

Whether CSIS needs a warrant may be a close call. If the communication is outside Canada, then perhaps the Charter does not apply because it generally does not apply extraterritorially. After all, if Bob were physically outside Canada, he would enjoy no Charter rights.  (The Hape exception would apply only if Canada were in violation of its international human rights obligations -- not clear cut here – and, says earlier Federal Court jurisprudence, where the victim was a Canadian – not true here.).

So, is it too much to say that CSIS's intercept of Bob’s Gondor communications doesn’t require a warrant?  Hmmm. Maybe. But this might still be a “private communication” under the Criminal Code (and I could easily change the facts so that it would be). And if so, the fact that one side of this communication starts in Canada is enough to require a judicial authorization process.  So not much relief there.  And besides, CSIS remembers the infamous Re X case and decides it is better to go to court now, to avoid a train wreck later.

So CSIS does the appropriate thing and concludes it probably needs a warrant. And more than that, it might also reasonably argue that on our facts (communication commences in Canada, travelling overseas through Canada etc) the collection really was “within Canada, enough”, and thus squares with s.16 of the Act. (A view that would be consistent with: the assumption that the Charter applies to Bob’s transiting communications, and the concept of private communication in the Criminal Code, and arguably the concept of territoriality in cases like R. v. Libman.)

But there is also another view: the content of what CSIS is intercepting is not in Canada. It can only be accessed by reaching out electronically across Canadian borders to Gondor, all the way over in Middle Earth.

So, what’s the answer? How do we read “within Canada” in s.16? Well, obviously it means “within Canada”, but what does that mean for footloose-communications? The redactions are thick in this case, and we really don’t know what sort of extraterritorial activity was at issue. But after a lengthy and seemingly exhaustive statutory interpretation exercise, the Federal Court says: this [REDACTED FOR PAGES] extraterritorial CSIS intrusive investigative activity was not within Canada.

Let's assume that hacking into Bob's Gondor Mail would also exceed whatever threshold of impermissible extraterritoriality was at issue in the Federal Court case. That is, it too would not be "within Canada". So, CSIS, in our story, you are out of luck. Maybe you should just ask Gondor to collect and share the Gondor Mail communications itself?  But do you want to rely on Denethor II, son of Echtelion II, Steward of Gondor? In The Two Towers, he struck me as a bit unhinged, to be honest.  And perhaps he was a little too inclined to appeasement to Mordor.

The CSE Knock-On Effect

Ok, then. Open Door Number 2: if the communication is not “within Canada”, then that must mean that CSE can, in fact, collect under Mandate A (foreign intelligence). Surely, if the communication being targeted is not within Canada (and involves no one, but foreigners), then CSE collection activities are not being “directed at Canadians or any person in Canada” (the quoted phrase being a stipulation that limits what CSE can do under Mandate A).  But hold that “surely”.  It is a bit disingenuous to say: “so we are investigating Bob, who is a person in Canada, and we are specifically interested in Bob, and that is why we are doing this collection activity, but when we go after this particular communication, we are not directing collection at Bob, the person in Canada”.  That seems too clever by half.

And anyway, the Federal Court has a collateral discussion in this case with knock-on implications that will make life for CSE very difficult. Basically, intrusive activity overseas of the sort at issue in the case (whatever they may be) constitute an extraterritorial exercise of enforcement jurisdiction. Done without the consent of the territorial state, this violates international law. And Canadian statutes will be read to comply with international law, unless they explicitly derogate from it. And neither the CSIS Act (for s.16, but not for s.12) nor the current National Defence Act (for CSE) nor the proposed Bill C-59 CSE Act derogate from international law. (On the latter issue, see my discussion here.)

So CSE, you have no legislative jurisdiction to engage in extraterritorial activities of (at minimum) the same degree or more intrusive than the ones at issue in this Federal Court case.  Which means you can kiss Mandate A and B goodbye under the current National Defence Act, to the extent they exceed this threshold (which, reading between the redactions, is quite low). And unless you amend bill C-59, you can also kiss those defensive and active cyber powers away.  Unless, that is, you just want to plow ahead and see what the Intelligence Commissioner, the new National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians have to say about this issue. This, in my view, would be insane, since a quick flick of the legislative pen could cure this problem for you, CSE.

Fixing the CSIS Act

As for CSIS, well, you could roll the dice and appeal. Or you too could fix this by legislative amendment (which is what happened to the s.12 power when this same issue arose a decade ago, and was resolved by 2015’s C-44). 

But let’s be clear here: if you want CSIS to have its current extraterritorial security intelligence functions (plus its post-2015 threat reductions powers) and now extraterritorial foreign intelligence functions, you are creating, essentially, a blended MI5/MI6.  And until recently, it was considered a bad idea to put security intelligence and a full foreign intelligence function in the same agency: rule-of-law security intelligence should be kept segregated from somewhat-less-than-rule-of-law James Bond.

So, we might wish, finally, to do some serious thinking about design issues, accountability issues, resource issues, training issues, etc, before we knee-jerk amend the CSIS Act (yet again). So, enter a ponderous process of deliberation. On the other hand, this is not a situation you want to leave hanging. Because in my story, Bob from MALICE is still out there, swanning away on Gondor Mail. (In truth, I don’t know how important that prospect is – it took to 2018 before this issue got to court, and yet presumably the technological dilemma I describe here could have arisen decades ago. So maybe this case won’t have much practical effect.)

But bottom line: sometimes national security law is hard. And perhaps it is sometimes harder than it has to be. I think it’s often hard because we don’t update the statute law enough. But that’s just me.

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.