Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (Re)

Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (Re)

Condition 3, as drafted for the cyber‑threats warrant, is lawful as a mechanism for supplemental applications to add newly identified investigative interests during the life of a warrant where the initial application establishes the nexus and balancing; paragraph 5(b) is not an unlawful delegation of a judicial function in the cyber‑threats context because the warrant‑issuing judge already understood and balanced the relevant nexus and the intrusion is limited to minimally intrusive subscriber identification. Nevertheless, narrowed drafting of paragraph 5(b) and additional conditions (amendments to Condition 4 and new Condition 5) are required to provide added safeguards.

Citation
2019 FC 1359
Parties
Applicant: ||||||||||||||||||||||||||||||||||||||||||||||||; Respondent: Attorney General of Canada; Amicus Curiae: Gordon Cameron
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 November 2019
Procedural Posture
Application for Warrants Under the Canadian Security Intelligence Service Act (sections 12 and 21) / Reasons/decision on Lawfulness and Conditions of Warrants
Outcome
Application granted in part: Condition 3 upheld as lawful in context; paragraph 5(b) held not to be an unlawful delegation in the cyber‑threats warrant context; court endorses narrowed drafting and additional conditions as safeguards
Legal Topics
Warrant Authorization, Search and Seizure, Delegation of Judicial Function, Subscriber Information, Basic Identifying Information, CSIS Act Interpretation, Charter S8
Source Language
English
National Security Privacy Law Constitutional Law Administrative Law Warrant Authorization Search and Seizure Delegation of Judicial Function Subscriber Information +3 more

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Parties

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Applicant

Attorney General of Canada

Respondent

Gordon Cameron

Amicus Curiae

Procedural Posture

Application for Warrants Under the Canadian Security Intelligence Service Act (sections 12 and 21) / Reasons/decision on Lawfulness and Conditions of Warrants

Legal Issues

  1. 1 Whether Condition 3 permitting supplemental written applications to add newly identified investigative interests is lawful or whether a fresh warrant application is required
  2. 2 Whether paragraph 5(b) delegating authority to obtain subscriber information to the CSIS Director/employee is an unlawful delegation of a judicial function
  3. 3 How the BII decisions (BII Decision and BII Procedures Decision) apply or are distinguishable in the cyber‑threats warrant context

Ratio Decidendi

Condition 3, as drafted for the cyber‑threats warrant, is lawful as a mechanism for supplemental applications to add newly identified investigative interests during the life of a warrant where the initial application establishes the nexus and balancing; paragraph 5(b) is not an unlawful delegation of a judicial function in the cyber‑threats context because the warrant‑issuing judge already understood and balanced the relevant nexus and the intrusion is limited to minimally intrusive subscriber identification. Nevertheless, narrowed drafting of paragraph 5(b) and additional conditions (amendments to Condition 4 and new Condition 5) are required to provide added safeguards.

Court Disposition

Application granted in part: Condition 3 upheld as lawful in context; paragraph 5(b) held not to be an unlawful delegation in the cyber‑threats warrant context; court endorses narrowed drafting and additional conditions as safeguards

Orders

  • Implement amended paragraph 5(b) narrowing the authority to obtain subscriber information to where a Chief has reasonable grounds to believe the subscriber meets the warrant criteria
  • Amend Condition 4 to require a fresh section 21 application where the activity falls outside the nexus established in the initial warrant