Reference re sections 16 and 21 of the Canadian Security Intelligence Service Act (CA)

Reference re sections 16 and 21 of the Canadian Security Intelligence Service Act (CA)

Subsection 16(2) of the CSIS Act, read in context and with regard to the French text and legislative history, prohibits issuing warrants under section 16 (and thus under ss.16 and 21 in this context) that authorize the intentional interception or other intrusive investigative targeting of Canadian citizens, permanent residents or Canadian corporations; only incidental interception of such persons as a consequence of properly directed foreign-target warrants is permitted, and therefore the Court lacked jurisdiction to issue the warrants as sought by CSIS in relation to those Canadian persons.

Citation
2012 FC 1437
Parties
Applicant: Canadian Security Intelligence Service; Amicus Curiae: Colin Baxter; Judge: Anne Mactavish
Court
Federal Court
Jurisdiction
Canada
Judgment Date
6 December 2012
Procedural Posture
Application for Warrants Under Sections 16 and 21 of the Canadian Security Intelligence Service Act / Warrant Hearing Including Ex Parte Hearing and Subsequent Jurisdictional Hearing With Amicus Submissions
Outcome
Application dismissed insofar as it related to Canadian citizens, permanent residents or Canadian corporations; warrants were signed in amended form for foreign targets and the Court found no jurisdiction to authorize intentional interception of Canadian persons under ss.16 and 21
Legal Topics
Scope of CSIS Foreign Intelligence Powers, Interpretation of S.16(2) of the CSIS Act, Jurisdiction to Issue Interception Warrants, Incidental Interception (vanweenan Principle), Bilingual Statutory Interpretation
Source Language
English
Administrative Law Statutory Interpretation National Security Law Privacy Law Criminal Procedure (warrants) Scope of CSIS Foreign Intelligence Powers Interpretation of S.16(2) of the CSIS Act Jurisdiction to Issue Interception Warrants +2 more

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Parties

Canadian Security Intelligence Service

Applicant

Colin Baxter

Amicus Curiae

Anne Mactavish

Judge

Procedural Posture

Application for Warrants Under Sections 16 and 21 of the Canadian Security Intelligence Service Act / Warrant Hearing Including Ex Parte Hearing and Subsequent Jurisdictional Hearing With Amicus Submissions

Legal Issues

  1. 1 Whether subsection 16(2) of the CSIS Act permits naming a Canadian citizen, permanent resident or Canadian corporation as a person whose communications may be intentionally intercepted under a section 16 warrant
  2. 2 Whether the Federal Court has jurisdiction to issue warrants under sections 16 and 21 authorizing intentional interception or intrusive techniques targeted at Canadian persons in the context of a ministerial request relating to foreign intelligence
  3. 3 Whether the words "directed at" in subsection 16(2) exclude the practice of naming Canadians in Part III of warrants when the request is nominally directed at a foreign state or person

Ratio Decidendi

Subsection 16(2) of the CSIS Act, read in context and with regard to the French text and legislative history, prohibits issuing warrants under section 16 (and thus under ss.16 and 21 in this context) that authorize the intentional interception or other intrusive investigative targeting of Canadian citizens, permanent residents or Canadian corporations; only incidental interception of such persons as a consequence of properly directed foreign-target warrants is permitted, and therefore the Court lacked jurisdiction to issue the warrants as sought by CSIS in relation to those Canadian persons.

Court Disposition

Application dismissed insofar as it related to Canadian citizens, permanent residents or Canadian corporations; warrants were signed in amended form for foreign targets and the Court found no jurisdiction to authorize intentional interception of Canadian persons under ss.16 and 21

Orders

  • Dismissed CSIS application for warrants insofar as they related to Canadian citizens, permanent residents or Canadian corporations
  • Authorized and signed amended warrants insofar as they related to foreign targets (as distinct from named Canadian persons)