Canada’s foremost jurist on national security law has slammed CSIS for deliberately keeping the Federal Court of Canada “in the dark” about outsourcing its spying on Canadians abroad to foreign agencies, according to a redacted version of a classified court decision made public Friday.
In a thundering rebuke, Federal Court Judge Richard Mosley said the Canadian Security Intelligence Service (CSIS) purposely misled him when he granted it numerous warrants beginning in 2009 to intercept the electronic communications of unidentified Canadians abroad suspected as domestic security threats.
“This was a breach of the duty of candour owed by the service and their legal advisers to the court,” Mosley said in his Further Reasons for Order.
CSIS also mistakenly assigned powers to the warrants that the court never authorized and which do not exist in law, he said.
“It is clear that the exercise of the court’s warrant issuing authority has been used as protective cover for activities that it has not authorized,” Mosley wrote.
Furthermore, tasking foreign security intelligence services to spy on Canadians overseas “carries the risk of the detention of or other harm to a Canadian person based on that information.
“Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several royal commissions, there can be no question that the Canadian agencies are aware of those hazards. It appears to me that they are using the warrants as authorization to assume those risks.”
Mosley, a former assistant deputy minister with the Justice Department who was intimately involved in the creation of the 2001 Anti-terrorism Act, has crossed swords with CSIS before, including in security certificate cases.
At the time the first warrants were issued, CSIS told the court “on clearly stated grounds” that the electronic intercepts would be carried out from within Canada by the Communications Security Establishment Canada (CSEC), the country’s foreign signals intelligence spy service.
CSIS is largely restricted to domestic spying operations. If an investigation involves the use of intrusive techniques, such as electronic intercepts, Section 21 of the CSIS Act requires it to obtain a warrant approved by a Federal Court judge to guard the Charter right to a reasonable expectation of privacy.
CSEC, meanwhile, is not allowed to spy on Canadians anywhere unless it is to provide technical and operational assistance to federal law enforcement and security agencies such as CSIS.
And the federal court only has jurisdiction to authorize warrants under the CSIS Act as long as the communications in question are intercepted within Canada.
CSIS successfully argued before Mosley that by limiting execution of the interception techniques to passive listening posts on Canadian soil, the arrangement would be within the power of the court to authorize. It also would respect the territorial sovereignty of the country or countries in which the terrorist targets were staying. No reference was made to tasking allied foreign agencies.
Yet once the so-called 30-08 warrants were approved by the court, CSEC, on behalf of CSIS, turned around and handed the jobs to one or more of its partners in the “Five Eyes” intelligence-gathering alliance between Canada, the United States, Great Britain, Australia and New Zealand.
Mosley found out about the situation late this summer and summoned CSIS, CSEC and government officials and lawyers to court to explain themselves. The public version of his reasons for order was released Friday.
Legal observers say this case and Mosley’s scolding will harm CSIS’s credibility and raise questions about whether the service has broken Criminal Code provisions dealing with the invasion of privacy.
“When a judge says the government breached its duty of candour that is a very big ‘ouch’ moment,” Craig Forcese, a national security law scholar at the University of Ottawa, wrote in a recent blog posting.
“Imagine a circumstance where CSIS says, ‘We’ve got concerns about these Canadians overseas and we’d like you to intercept their communications,’ and the [U.S. Central Intelligence Agency] decides it’s time for a Predator drone …” Forcese told Globe and Mail’s Colin Freeze.