About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

National Security Law Blog Search
Subscribe to National Security Law Blog

Best Law School/
Law Professor Blog Award

 

Most Recent Blog Postings

Latest Book: Available from Irwin Law in April 2018.

Entries by craigforcese (276)

Monday
Mar042019

Another Rule of Law Test in the Meng Extradition Matter

By Craig Forcese and Leah West

 

The Meng extradition proceeding will clearly test one area of Canadian law: extradition law. (See here). It will also now probe another: constitutional rights at the border. Ms Meng’s lawyers filed a civil action suing officials (and especially the CBSA) for detaining Ms Meng at the border. There (plaintiffs allege) officials conducted pretextual border detention, questioning and searches (including of her electronic devices, for which she provided the passcode) in aid of US authorities, not in support of Ms Meng’s arrest for extradition purposes. The statement of claim is posted here. There have been questions about the legal niceties of this case. We offer a few quick observations.

 

The alleged torts

Ms Meng is suing for false imprisonment, misfeasance of public office, and Charter breaches. Each of these causes of action has distinct elements. None will be easy to establish.

False imprisonment stems from unlawful detention. Such lawsuits do arise in the wake of arrests by authorities, and the key issue then is the lawfulness of that arrest. In police arrest cases, for instance, the focus is on whether a police officer had lawful authority (for instance, reasonable and probable cause) for an arrest: Storrey.

Misfeasance of public office is a more complicated tort, resuscitated by the Supreme Court in Odhavji. Its elements were admirably summarized there:

…the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff.  Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts.  More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.  

Again, the core consideration is whether authorities acting “unlawfully”. 

Constitutional torts are also now available as separate causes of action, although obtaining monetary damages for these violations is not easy. Obviously, success for the plaintiff depends on proving a Charter breach. Further still, damages would have to be justified as necessary to provide compensation for the pecuniary or non-pecuniary harms suffered by the plaintiff, or to vindicate the value of the Charter or to deter Charter violations in the future: Ward.

 

Remedies

Having filed a civil action, Ms Meng is in fact seeking damages. Damages, of course, will not provide any relief from her possible extradition or the American criminal case. For one thing, any information collected during the border search is likely irrelevant to a US criminal indictment stemming from a distant fraud done years ago in another part of the world. Even if there were some way to supress evidence acquired at the Canadian border (and then shared) in a subsequent US criminal case, the information collected is likely irrelevant.

Nor, in this extradition proceeding, is evidence collected in Canada likely to be important – the extradition proceeding is not a trial. It is largely an exercise to ensure the requesting state has some basis to seek extradition.

Ms Meng’s action is, therefore, probably an effort to raise the stakes for the Canadian government. One might call it a form of “lawfare”. Nevertheless, the issues at stake are important ones for everyone who crosses a Canadian border. This is especially true for searches of electronic devices.

 

The Charter Issues

The “unlawfulness” underlying the torts alleged by Meng are Charter violations. Consequently, Meng’s case is likely to turn on whether the government’s sweeping interpretation of its powers at the border remains true in an evolving Charter environment.  

First point: despite handful of exceptions that are irrelevant here, Charter rights attach to all people in Canada, regardless of their nationality or immigration status.

Second point: the government takes the view that Charter rights are more attenuated at the border. And to this point, the courts have concurred.

Upon arrival in Canada, s. 11(1) of the Customs Act stipulates that everyone must present themselves to an officer without delay and answer any questions asked by the officer in the performance of his or her duties under any act of parliament truthfully. Additionally,  s.99 of the Customs Act gives authorities (in practice, CBSA) substantial search authority. The government asserts that this authority applies to smartphones in the same way it applies to suitcases. CBSA guidelines explain that s. 99:

provides CBSA officers with the legislative authority to examine goods, including digital services and media, for customs purposes only. Although there is no defined threshold for grounds to examine such devices, CBSA’s current policy is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media.

Goods may also be examined under s. 99 of the Customs Act if an officer has reasonable grounds to suspect that, in relation to those goods, any act of Parliament enforced by them may have been contravened.

The Supreme Court has interpreted these provisions broadly on the basis that persons have a diminished expectation of privacy at the border. In R v Simmons, the Supreme Court considered the constitutionality of a strip search conducted by a customs officer at an airport who had reasons to suspect that the accused was secreting narcotics. It held:

People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process.

The Supreme Court went on to find that “routine questioning,” luggage searches, and frisk and pat down searches conducted by customs officers without any individualized suspicion were not unreasonable searches under s.8 of the Charter. Furthermore, searches of the person that “are not routine” but carried out on the basis of the officer’s reasonable suspicion that a person has secreted contraband on their body were also found to be reasonable under s.8 because they were carried out in private and subject to review at the individual's request.

Lower courts have also determined that electronic devices and smartphones qualify as “goods” under the Customs Act, and searches of such devices are permitted under s. 99(1). See, e.g., R v Moroz; R. v. Canfield.

Privacy experts disagree. Many have argued that given the Supreme Court’s finding that searches of electronic devices may be highly intrusive, smartphones, computers and other devices should not be considered “goods” under the Customs Act. Testifying before a parliamentary committee, Federal Privacy Commissioner Daniel Therrien urged legislators to recognize that the “idea that electronic devices should be considered as mere goods and therefore be subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.”

 

Unanswered Questions

So who is right? Simmons is a very old case. Since then, technology has changed and the Supreme Court has demonstrated a dawning understanding of just how much data is included on our portable devices; the caselaw is now much more demanding of electronic searches within Canada. It remains to be seen whether the trend in recent search and seizures cases would colour the Supreme Court’s assessment of border searches – so far, it appears not to have influenced lower courts. Unfortunately, we have no modern appellate caselaw on the topic to guide us

Bottom line: what sort of Charter rights one has at the border is an important question for all travellers, and for once, we have a well-financed litigant who may be prepared to take this fight all the way up to the Supreme Court.

Friday
Mar012019

Meng Extradition: What to Watch For

Today is reportedly the deadline for the Minister of Justice to issue an “authority to proceed” in the extradition committal hearing in the Meng (Huawei) case. Because there has been much attention lately to the functions of Minister of Justice (MoJ) and AG and much confusion, I have sat down and compiled some observations on extradition proceedings. (This was initially prepared as a tweet string, last night, but I messed that up. I'd add that I have become a student of extradition law these last few months and do not claim a deep-seated expertise. But still, it might be helpful in this blog to codify what I have learned, and what has occurred to me as I have).

The authority to proceed is a fairly basic, box-checking exercise by the International Assistance Group at Justice Canada. The ultimate MoJ’s authority to proceed then authorizes the AG to act on behalf of the United States in seeking a court order, committing Ms Meng to extradition.

The MoJ and the AG are, in our system, the same person, presently Mr Lametti. Often the AG is, in practice, the Director of Public Prosecutions (DPP). Under the Director of Public Prosecutions Act, the DPP acts on behalf of AG in criminal proceedings, and under s.3(9), may perform the AG function under the Extradition Act. However, my (latest) understanding is that Justice Canada litigation division lawyers typically conduct the committal hearing, as agents of the AG. (Exactly who would issue instructions in such an arrangement is unclear to me, compounding questions about structural lack of independence, raised below.)

Because this is an extradition proceeding, it runs very differently than a criminal matter. It is, in essence, “administrative law”, not criminal law. It is, yes, “rule of law”, but “rule” of a very different law than exists for criminal trial proceedings. Extradition proceedings are much easier for the government to "win" than are criminal trials.

The rules of evidence are limited (aka weak). The court committal proceeding is comparatively perfunctory. It basically boils down to ensuring the alleged crime at issue would be capable of being committed for criminal trial in Canada. Again, this assessment is based on very limited evidence.

There are clever arguments that no doubt will be made by Ms Meng’s counsel at the committal hearing. This is a well-financed legal team. But the odds are stacked against them: almost always, the court will order committal. The extradition law is, after all, designed to facilitate extradition to a treaty partner. 

Once a court orders the subject of the extradition committed, it goes back to Mr Lametti – in his role as MoJ. This is the surrender phase. In deciding whether to surrender a person, there is a list of considerations—often open-ended—for the MoJ to consider.

Note, for example, s.47(e): "The Minister may refuse to make a surrender order if the Minister is satisfied that ... none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction." That could well be an issue, although I imagine the US argument will be that the dollar-based nature of the alleged fraudulent transactions touched US territory.

It is important to appreciate that Mr Lametti wears an MoJ hat at the surrender stage. Here, the MoJ has considerable discretion. And in doing so, it is fully anticipated she or he may contemplate political considerations, in the policy (not partisan) sense of the term. Chief among these: foreign relations. 

This “political” aspect of the extradition process is readily acknowledged by the Supreme Court – and indeed, has meant that the Court has been very reluctant to disturb the ministerial decision on judicial review. See this passage from Badesha:

The Minister’s decision to order the surrender of a person falls “at the extreme legislative end of the continuum of administrative decision-making” and is seen as “largely political in nature”: Lake, at para. 22, quoting Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659; Sriskandarajah, at para. 11. Given the Minister’s superior expertise in Canada’s international relations and foreign affairs, he or she is in the best position to determine whether the factors weigh in favour of or against extradition: Lake, at para. 41. The Minister’s decision to order surrender is therefore subject to review on a standard of reasonableness.

In his MoJ extradition role, Mr Lametti will have no true “AG independence”, a concept much in the ether lately. But there are various administrative law principles that could be violated if the MoJ were to exercise his or her discretion unreasonably – for example, with an eye to matters extraneous to the purposes of the Extradition Act. (Winning an election!)

Or the MoJ might run into trouble on procedural fairness grounds were he or she to convene in Cabinet and hash out a decision under instruction from others – this could well give rise to the sorts of administrative law “bias” claims found in cases like Tremblay.

I would also suggest that Mr Lametti needs to stay well away from anything other than a perfunctory personal role in the extradition process, until the surrender decision arrives on his desk. If he does not – and gets up to his elbows early – that would spark another bias claim at the surrender stage, alleging personal “prejudgment”.

Indeed, I wonder about an Act in which the MoJ performs so many overlapping functions at different stages -- there is a caselaw concerning "structural lack of independence" that might reasonably apply where Charter rights and Bill of Rights interests are at issue (as they certainly are in extradition). (The Federal Court recently invalidated portions of the Citizenship Act under the Bill of Rights where the ministerial investigative and adjudicative function was not kept separate. See Hassouna at para. 100 et seq.) It will be interesting, therefore, to see if Ms Meng's lawyers challenge the constitutionality of the multi-hatted MoJ role (which so far has stood up).

In sum, extradition is still a “rule of law” undertaking – just not one in which courts tend to have the final say. While the courts may review, “the courts will decide” is not a helpful way to summarize extradition law. The ultimate merits of the matter will be decided by a minister -- not a judge or jury.

That said, there are still many legal niceties that should protect the integrity of the process. Again, to say this is a political decision means that the decision is exercised with a policy-oriented, not judicial, judgment. It is not to say that in extradition, one may engage in backroom political machinations or partisan haggling.

 

Friday
Jan042019

Transition Time 2019

Two thousand and nineteen will, of course, produce a new Parliament -- Canada's 43rd. It will, therefore, be the season of transition preparation in the public service -- and a good time for taking stock (and for filing access to information requests for all those informative ministerial briefing books).

It will also bring a bumper crop of Canadian national security scholarship. Stephanie Carvin, Thomas Juneau and I look forward to the publication of our book on the Canadian security & intelligence community. Stephanie and Thomas have other joint and separate projects that will produce excellent new resources on Canadian national security practices. And with Leah West, I look forward to publishing the long-delayed second edition of the book that justified this blog site: National Security Law (Irwin Law). (The timing of that book depends on the fate of bill C-59.)

With that task accomplished, it will be time to consider the future of Canadian national security blogging. The Canadian academic national security space now has grown -- albeit modestly -- since this blog began in 2007. And other platforms -- such as Twitter -- and forums -- such as our Podcast Called INTREPID -- now consume time and attention. Postings on this site have become more infrequent.

On the other hand, I have considerable evidence from structured conversations that blogging remains the single best means of "knowledge mobilization" in the public policy and law space. Contrary to the views of others, I do not think blogging is dead.

But it should change. The "my musings and commentary" style of blog has probably seen its day, replaced by Twitter. There is still room, however, for the research and analysis blog. In the United States, Lawfare and Just Security point the way. They share these qualities: (1) collaborative, with postings by academics and practitioners; (2) timely, responding to current events and helping shape "hot takes" in a direction helpful to the reality-based community; (3) robust but not inaccessible, written for generalist audience but helpful to a specialist cadre; (4) curated, if not truly peer-reviewed, ensuring quality-control. Unlike this blog platform (a product of Me Myself & I LLP) they are also resourced (which helps reduce the frequency of typos).

I *think* four things now make it possible to replicate this model in Canada. First, the scholarly community willing and able to engage in public-facing discussions may now have enough members to make such a platform sustainable. Second, sensible academic units now acknowledge the significance of a public-facing presence. Not so long ago, writing for a policy or general audience was (in some places) prejudicial to academic advancement. That conceit now seems more muted. Third, the government and the security & intelligence services are much more attuned to public discussions than they were in the near past. The illusion that we benefit from siloed cloisters may now be evaporating. That shift could turn on a dime, especially if 2019 marks a reversion to a more closed government. But I am inclined to think practitioners (present and past) might engage on and with a platform with the four above-noted qualities. Four, other collaborative academic blogs exist, but they are often stovepiped by institutional affiliations and are broad, rather than deep, in subject matter focus. Our experience with A Podcast Called INTREPID is that there is an audience for detailed national security obscurity and geekery.

That leaves the issue of resources. I am not interested in being an editor -- nor, given my inability to proof-read, am I qualified to be one. Everything then depends on helping hands.

I have begun approaching bodies who might be interested in providing an editorial foundation for a collaborative Canadian national security law and policy blog -- which I hereby entitle "A Blog Called INTREPID". The editorial approach would be modeled on that of student-edited law reviews. And the idea would be to twin a dynamic Lawfare/Just Security-style content, with our existing podcast. The platform would also consolidate various collateral products, such as my Secret Law Gazette and the various instructional videos that Leah West and I anticipate producing as the online feature for our National Security Law book. I also need a home for the database of state self-defence justifications prepared by my research assistant Peter Knowlton as a project related to my Destroying the Caroline book. And I know other scholars may be on the hunt for a similar depository.

Put in other words: by 2020, this space may have its own transition. Stay tuned.