X (Re)

X (Re)

The Court found that CSIS breached its duty of full and frank disclosure by failing to disclose its practice and intention to seek second party (foreign partner) assistance in intercepting communications of Canadian persons; further, the Court held that s.12 of the CSIS Act does not, absent express parliamentary authorization, permit CSIS or CSEC to request foreign agencies to intercept communications of Canadians abroad and that a s.21 warrant issued by the Federal Court does not authorize or imply judicial approval for foreign agencies to perform such interceptions.

Citation
2013 FC 1275
Parties
Applicant: Canadian Security Intelligence Service; Subject: [XXXX XXXXXXXXX]; Amicus: Gordon Cameron
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 November 2013
Procedural Posture
Warrant Application Under the Canadian Security Intelligence Service Act (ss.12 and 21) and Subsequent Judicial Review / Further Reasons for Order Resolving Disclosure and Extraterritorial Assistance Issues After Issuance of 30 08 Warrants
Outcome
Judge Mosley issued Further Reasons for Order: found breach of duty of candour by CSIS in 30-08 warrant applications; provided declaratory guidance that s.12 does not authorize outsourcing interceptions of Canadians to foreign agencies and that s.21 warrants do not authorize foreign interceptions; mandated...
Legal Topics
Warrants, Extraterritorial Jurisdiction, Duty of Candour / Full and Frank Disclosure, CSEC Assistance and Second Party Collection, Interception of Communications, S12 CSIS Act, S21 CSIS Act, Charter Applicability, Solicitor Client Privilege Waiver
Source Language
English
National Security Constitutional Law Administrative Law Criminal Law International Law Privacy Intelligence Law Warrants +8 more

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Parties

Canadian Security Intelligence Service

Applicant

[XXXX XXXXXXXXX]

Subject

Gordon Cameron

Amicus

Procedural Posture

Warrant Application Under the Canadian Security Intelligence Service Act (ss.12 and 21) and Subsequent Judicial Review / Further Reasons for Order Resolving Disclosure and Extraterritorial Assistance Issues After Issuance of 30 08 Warrants

Legal Issues

  1. 1 Whether CSIS met its duty of full and frank disclosure in ex parte 30-08 warrant applications concerning requests for foreign (second party) assistance
  2. 2 Whether CSIS (through CSEC) has legal authority under s.12 CSIS Act to seek foreign partners' assistance to intercept communications of Canadians outside Canada
  3. 3 Whether warrants issued under s.21 authorize or imply Court approval for foreign agencies to intercept communications of Canadian persons

Ratio Decidendi

The Court found that CSIS breached its duty of full and frank disclosure by failing to disclose its practice and intention to seek second party (foreign partner) assistance in intercepting communications of Canadian persons; further, the Court held that s.12 of the CSIS Act does not, absent express parliamentary authorization, permit CSIS or CSEC to request foreign agencies to intercept communications of Canadians abroad and that a s.21 warrant issued by the Federal Court does not authorize or imply judicial approval for foreign agencies to perform such interceptions.

Court Disposition

Judge Mosley issued Further Reasons for Order: found breach of duty of candour by CSIS in 30-08 warrant applications; provided declaratory guidance that s.12 does not authorize outsourcing interceptions of Canadians to foreign agencies and that s.21 warrants do not authorize foreign interceptions; mandated...

Orders

  • Declare that CSIS breached its duty of full and frank disclosure in the 30-08 applications by omitting intent to seek second party assistance
  • Direct that future 30-08 warrant applications must disclose whether any request for foreign assistance has been or will be made and the results of any such requests for the subjects of the application