In the Matter of an Application by [_…_] for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, C C-23

In the Matter of an Application by [_…_] for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, C C-23

Where an entity with only a virtual presence establishes a real and substantial connection to Canada and thus in personam jurisdiction, the Federal Court may issue an Assistance Order under the CSIS Act to require production of information in the entity's possession or control; enforceability concerns are a distinct discretionary factor but do not defeat jurisdiction. The Court granted the Assistance Order on the evidence of virtual presence and cooperation.

Citation
2023 FC 1128
Parties
Applicant: Canadian Security Intelligence Service; Respondent / Assistance Order Recipient: [REDACTED] (foreign communication service provider); Amicus Curiae: Matthew Gourlay
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 August 2023
Procedural Posture
Application for Warrants and Assistance Orders Under the Canadian Security Intelligence Service Act / Interim Assistance Order Granted; Reasons Following After in Camera Ex Parte Hearing and Submissions (application Heard June 7, 2023; Reasons Dated August 22, 2023)
Outcome
Assistance Order granted
Legal Topics
Assistance Order, In Personam Jurisdiction, Extra Territorial Effect, Production Orders Analogy, Virtual Presence, Enforcement and MLAT
Source Language
English
Administrative Law Public Law National Security Law Private International Law Criminal Procedure Privacy Law Assistance Order In Personam Jurisdiction +4 more

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Parties

Canadian Security Intelligence Service

Applicant

[REDACTED] (foreign communication service provider)

Respondent / Assistance Order Recipient

Matthew Gourlay

Amicus Curiae

Procedural Posture

Application for Warrants and Assistance Orders Under the Canadian Security Intelligence Service Act / Interim Assistance Order Granted; Reasons Following After in Camera Ex Parte Hearing and Submissions (application Heard June 7, 2023; Reasons Dated August 22, 2023)

Legal Issues

  1. 1 Whether the Federal Court has in personam jurisdiction to issue an Assistance Order under s.22.3(1) of the CSIS Act to an entity without a physical presence in Canada but with a virtual presence
  2. 2 Whether the Court should exercise its discretion to issue such an Assistance Order given enforceability concerns
  3. 3 Whether production‑order jurisprudence (s.487.014 Criminal Code) provides a proper analogy for Assistance Orders

Ratio Decidendi

Where an entity with only a virtual presence establishes a real and substantial connection to Canada and thus in personam jurisdiction, the Federal Court may issue an Assistance Order under the CSIS Act to require production of information in the entity's possession or control; enforceability concerns are a distinct discretionary factor but do not defeat jurisdiction. The Court granted the Assistance Order on the evidence of virtual presence and cooperation.

Court Disposition

Assistance Order granted

Orders

  • Assistance Order directed to the foreign communication service provider granted for a further period; initial limited Assistance Order previously issued pending consideration of extra‑territorial jurisdiction and subsequently extended (reasons issued August 22, 2023)