X (Re)

X (Re)

A judge must be provided with a sufficient, specific nexus between CSIS’s investigation and the particular individuals or clearly defined class whose privacy will be intruded upon before authorizing BII; broad prospective authorizations untethered to such a nexus are unreasonable under s.8 and unlawful under s.21 of the CSIS Act; further, the determination to authorize access to BII that requires balancing of privacy and state interests cannot be delegated to CSIS employees (Chiefs) because that would abdicate the court’s neutral judicial function; narrower BII authorizations tied to identifiable subjects or circumscribed classes may be authorized where reasonable grounds are shown.

Citation
2017 FC 1048
Parties
Applicant (seeking Warrants): Canadian Security Intelligence Service; Respondent / Crown Counsel: Attorney General of Canada; Amicus Curiae: Amici Curiae
Court
Federal Court
Jurisdiction
Canada
Judgment Date
27 September 2017
Procedural Posture
Application for Warrants Under the Canadian Security Intelligence Service Act / Application Hearings; Interlocutory Interim Order and Final Judgment (decision on Warrants)
Outcome
One application dismissed; the other application dismissed in part: broad BII warrant and first type of amendments denied; second, narrower group of amendments granting BII tied to specified review of identified individuals granted.
Legal Topics
Search and Seizure, Warrant Authorization, Basic Identifying Information (bii), Delegation of Judicial Functions, Section 8 Charter Analysis, CSIS Investigative Powers
Source Language
English
Constitutional Law National Security Law Privacy Law Administrative Law Criminal Procedure Search and Seizure Warrant Authorization Basic Identifying Information (bii) +3 more

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Parties

Canadian Security Intelligence Service

Applicant (seeking Warrants)

Attorney General of Canada

Respondent / Crown Counsel

Amici Curiae

Amicus Curiae

Procedural Posture

Application for Warrants Under the Canadian Security Intelligence Service Act / Application Hearings; Interlocutory Interim Order and Final Judgment (decision on Warrants)

Legal Issues

  1. 1 Whether the Court can authorize CSIS prospectively to obtain BII in respect of communications accounts that may in the future come to its attention absent a specified nexus to investigations
  2. 2 Whether the Court can authorize CSIS to obtain BII in respect of communications accounts identified through review of specifically defined information relating to specified identified individuals
  3. 3 Whether the Court can authorize an employee of CSIS (a "Chief") to determine, without prior judicial assessment, that BII may be obtained for a specified communications account

Ratio Decidendi

A judge must be provided with a sufficient, specific nexus between CSIS’s investigation and the particular individuals or clearly defined class whose privacy will be intruded upon before authorizing BII; broad prospective authorizations untethered to such a nexus are unreasonable under s.8 and unlawful under s.21 of the CSIS Act; further, the determination to authorize access to BII that requires balancing of privacy and state interests cannot be delegated to CSIS employees (Chiefs) because that would abdicate the court’s neutral judicial function; narrower BII authorizations tied to identifiable subjects or circumscribed classes may be authorized where reasonable grounds are shown.

Court Disposition

One application dismissed; the other application dismissed in part: broad BII warrant and first type of amendments denied; second, narrower group of amendments granting BII tied to specified review of identified individuals granted.

Orders

  • Application in docket |||||||||||||||||||| dismissed
  • Application in docket |||||||||||||||||||||| dismissed in part: broad BII warrant denied and first type of proposed amendments to three warrants not granted (specific new paragraphs not authorized)