A Warrant for All Seasons: Four New Charter Section 8 Cases
Friday, December 15, 2017 at 12:08PM
craigforcese in Canada, Chapter 11: Surveillance, charter, metadata, search, wiretaps

And on the fourth day of Christmas, federally-appointed judges gave to us…four new Charter s.8 cases.  There are two Federal Court cases involving CSIS intercept of IMSI information and seeking access to subscriber data. And two Supreme Court cases involving text messages received by the recipient and stored by the service provider.

Here’s the one-paragraph (often one long-run-on sentence) summaries:

These cases, combined with the federal Privacy Commissioner’s decision on a complaint about RCMP IMSI collection activities, create, well, a maze.  The Privacy Commissioner concluded in September that RCMP warrantless collection was unconstitutional.  This is hard to square with the new Federal Court’s decision on CSIS, but the Privacy Commissioner would probably say that the RCMP offered no specifics on what they were doing of the sort that led the Federal Court to conclude that CSIS’s warrantless intercepts were still reasonable, although done warrantlessly.

So here’s a brief scenario.

Hans, the scheming villain from a famous holiday classic, is working for the Chinese government, and conducting himself in a manner that constitutes a threat to the security of Canada under the CSIS Act and a violation of the criminal provisions found in the Security of Information Act (SOIA).  So both CSIS and police have investigations underway (and are doing all that difficult deconfliction work that is a Canadian thing).

CSIS knows that Hans has a cellphone and they want to figure out what the IMSI number is.  So they conduct a targeted intercept meeting the standards described In the Matter of Islamist Terrorism (above).  They do this without warrant.

RCMP also wants to know what Hans’s IMSI number is. So either CSIS gives it them through an advisory letter (which seems very, very unlikely).  Or they collect it themselves.  But they have to use s.492.2 of the Criminal Code to get a transmission data recorder order from a judge, on a reasonable grounds to suspect standard.

Now CSIS wants to know where Hans has been going and what he will saying.  So they need to go to Federal Court and obtain judicial authorization for an intercept under s.21 of the CSIS Act, on a reasonable grounds to believe standard.  Section 21 is a one-standard provision for all sorts of intercepts, so this same standard will apply for archived geolocational metadata (obtained from a service provider) and content (wiretapped).

And now the police also want to know where Hans has been going and what he will saying. To know what he is saying, they need a Part VI Criminal Code warrant, allowing a wiretap. This too is on a reasonable grounds to believe standard.  But for archived geolocational data, the police may be able to obtain a production order directed at the service provider, requiring that this sort of “transmission data” (metadata) be produced. Transmission data production orders may be obtained on a reasonable grounds to suspect standard.

So perhaps the police, who find it easier to share with CSIS than the vice versa, can share the transmission data with CSIS, obviating the need for CSIS to get their own metadata-related warrant?

Both CSIS and the police decide they should also figure out what Hans has been texting his friends in Beijing. Again, CSIS proceeds via Federal Court authorization under s.21 of the CSIS Act, for both archived texts and future intercepts.  This requires a reasonable grounds to believe standard.

As per Jones, the police for their part can obtain the archived text messages from the service provider using a general production order under s.487.014 of the Criminal Code, issued by a judge on a reasonable grounds to believe standard.  But to track his on-going texts, they need a Part VI wiretap order, on a reasonable grounds to believe standard.  (And even if they had Hans’ friend’s phone, Marakah establishes they would need a search warrant to search it for the text messages, on a reasonable grounds to believe standard.  Of course, if they arrested Hans they might be able to search his phone without warrant, as a search incident to arrest per Fearon.  But Hans would need to have left it unlocked.)

This is all getting rather complicated. A “cacophony of lawful access rules” joins “herd of bison”, “murder of crows” and “pack of wolves” as a Canadian thing.  It will be interesting to see if the government moves on lawful access reform in 2018. (So far this is a government showing real appetite to fix big things in the national security/public safety law space.)

Update on Friday, December 15, 2017 at 12:12PM by Registered Commentercraigforcese

For those looking for an immersive audio experience, Stephanie Carvin and I offer a longer discussion of these cases in Ep 15 of our Podcast Called Intrepid.

Update on Sunday, December 17, 2017 at 8:55AM by Registered Commentercraigforcese

Edited this a bit because I realized that I messed up in the discussion of s.487.014.

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