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

 

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Friday
Mar142008

Open Courts and CSIS Warrant Applications

Cross-referencing: National Security Law (NSL), Ch. 11, p.451; Ch. 10, pp. 402 et seq.

 

In a decision issued in 2006, but only released publicly in 2008, the Federal Court set a new standard for transparency in the adjudication of CSIS warrant applications.  Pursuant to section 21 of the CSIS Act, CSIS must seek a warrant for certain intrusive investigative techniques from a special, designated judge of the Federal Court.  These applications are ex parte and in camera, for the obvious reason of preserving the surreptitious nature of the investigation.

 

The Federal Court concluded, however, that the CSIS Acts provisions requiring that warrant applications must be heard in private must be construed in keeping with the now rich (constitutional) jurisprudence favouring open courts.  The actual warrant applications themselves must be secret.  However, collateral matters arising in these applications – such as general questions of law – need not be.  As Justice Noël notes, “[i]n some circumstances, to debate a jurisdictional, procedural or constitutional question in public can be injurious to national security or prevent the proper execution of a warrant.  It is also possible to imagine cases where the public hearing would be allowed on some of the issues of law, while others would remain confidential” (at para. 47).  In the case at bar, the Court concluded that the jurisdictional question at issue, if disclosed publicly, could be prejudicial to national security – “addressing the question of law in public could have the effect of informing of methodologies utilized for obtaining information in a covert fashion” (at para. 55).

 

 

Some time after this decision, Justice Blanchard released a decision on the extraterritorial reach of the CSIS warrant process (discussed here).  Justice Blanchard refers to the Noël J. decision, which itself was also released in redacted form.  Like the Blanchard J. determination itself, it is now clear that the matter before Justice Noël dealt with the extraterritorial reach of the CSIS Act warrant process.

Friday
Mar142008

Extraterritorial Application of the CSIS Act

 Cross-referencing: National Security Law (NSL), Ch. 3, p. 84; Ch. 11, p.451.

 

In a decision issued in October 2007 (but released publicly in 2008), the Federal Court has placed strict geographic limitations on CSIS warrants (and indeed, perhaps CSIS operations).  At issue was whether the Court had the jurisdiction to issue a warrant under section 21 of the CSIS Act in relation to investigations concerning Canadians, but to take place overseas.  The Service had sought the warrant because the targets of the investigation were Canadians, and potentially enjoyed Charter rights.  That uncertainty, urged the Service, stemmed from the Supreme Court’s reasoning in Hape, which did not foreclose (it was argued) the application of the Charter to overseas security and intelligence activities affecting Canadians. (For further discussion on the confusion in the jurisprudence created by Hape, click here.)

 

Faced with this issue, there were two plausible courses of action open to the Court.  First, it could have concluded that the CSIS Act’s warrant provisions reached only as far as authorizing searches and seizures in Canada.  This would have allowed the Court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.  In these circumstances, the domestic legal propriety of CSIS’s conduct would hinge on whether the Charter (and its protections against unauthorized searches and seizures) had the extraterritorial reach imagined by the government.

 

Second, the Court could conclude that CSIS itself has no statutory authorization to conduct extraterritorial investigations.  Ultimately, this is where the Court came down.  At core, it takes the view that Canadian statutes have no extraterritorial reach unless expressly authorized.  Since, in the Court’s view, no such authorization can be imputed from the CSIS Act, there is no permission for CSIS to conduct security intelligence investigations overseas.  Moreover, unless expressly rebutted by the statute, Canadian statutes are to be construed in keeping with international law.  The conduct of extraterritorial investigations (without consent of the territorial state) would violate international law.

 

The Court’s holding seems to reverse both CSIS’s own views in terms of its security intelligence function (namely, that it is authorized by section 12 of the Act to operate internationally) and the position many commentators, myself included, have taken about that ability.  (See, e.g., the discussion at p.84 of NSL.)   Section 12 has often been contrasted to section 16.  The latter allows CSIS, upon request from the ministers of defence or foreign affairs, to participate in foreign intelligence gathering (i.e., intelligence other than the security intelligence covered by the section 12 mandate), but only within Canada.  The absence of this geographic qualifier in section 12 – coupled with the geographically expansive definition of “threats to the security of Canada” – has led me (and others) to conclude that CSIS’s security intelligence function is geographically unbounded. Notably, the “threats” definition often includes threats that arise not only “within Canada” by also those “relating to” Canada.  The juxtaposition of “within” and “relating to” strongly suggests both a territorial and extraterritorial scope to the threats amenable to CSIS scrutiny under section 12.

 

That the Court saw the matter differently is proof that statutory interpretation is a matter very much in the eyes of the beholder.

 

The consequences of this decision are significant.  Because the Court chose to comment adversely on the reach of CSIS’s section 12 mandate, the door on extraterritorial security intelligence operations (conducted without the consent of the territorial state) may now be closed.  This creates a potentially acute blind spot.  Since the Communications Security Establishment is admonished by sub-section 274.64(2) of the  National Defence Act not to direct its foreign intelligence collection (in practice, signals intelligence) at Canadians, there would appear to be no agency now authorized to conduct intelligence investigations (of either the human or signals intelligence sort) targeting the extraterritorial activities of Canadians (without the consent of the territorial state).  At best, CSE can intercept communications with an incidental Canadian nexus (that is originating within or directed at Canada), with a ministerial authorization.  The resulting lacunae may tip the balance in prompting the government to table amending legislation creating a true foreign intelligence service or function.

Friday
Jan182008

Amicus Role for Canada Evidence Act Proceedings

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).  See also posting below "Uncertainty in the Canada Evidence Act".

In section 38 Canada Evidence Act proceedings involving Abdullah Khadr, Justice Mosley ordered on January 15, 2008 the appointment of a security-cleared amicus curiae to attend the ex parte proceedings, view the secret information and test the government position.  Abdullah Khadr (brother of Omar Khadr, the Canadian detained at Guantanamo Bay) is in the midst of extradition proceedings involving the United States in which national security information is at issue, triggering the section 38 process.

Justice Mosley did not decide the issue of whether such an amicus is constitutionally required under section 7 (a position suggested in the earlier Federal Court case of Khawaja, but then made uncertain by the Federal Court of Appeal's decision in that case).  Rather, he relied on the court's inherent jurisdiction to appoint an amicus to assist in its deliberations.  The decision suggests that such an appointment will be an unusual exercise of this power.  However, on the facts in this case, the appointment was warranted.  Among the considerations cited by the court:

 

  • that the underlying proceeding involved an extradition in which Khadr had a limited ability to challenge the case and in which the potential penalty, upon conviction in the United States, was imprisonment well in excess of his life span.
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  • that the evidence employed by the United States in support of the extradition may have been obtained through torture and illegal detention;
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  • that the safeguards to preseve a fair trial in the Canada Evidence Act where information is withheld in underlying proceedings for national security reasons would not be applicable in a U.S. proceeding subsequent to an extradition; and,
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  • that the Attorney General is, in effect, in an adverse position vis a vis Khadr as the agency with carriage of the extradition proceeding on behalf of the United States.

 

The amicus was appointed in a capacity that would see them presenting issues favouring the disclosure of the information, and in that respect can be said to be acting for Mr. Khadr.  No solicitor-client relationship will, however, exist.  Moreover, continued contact between the amicus and Mr. Khadr after the former has seen the secret information will be permitted only by court order.

In this last respect, the regime constructed in this case resembles that anticipated by Bill C-3.  Of particular interest are the circumstances and constraints the the court will impose on continued contact between the amicus and Khadr.  Developments on this point will likely give some sense at to how the Federal Court will approach the identical issue in relation to special advocates under Bill C-3, if enacted.  As noted elsewhere in this blog, the effective absence of continued access in the United Kingdom special advocate system has gravely undermined the credibility of that system.