In the Matter of an Application for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23
(Federal Court) (Civil) (By Leave)
National security - Securities.
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National security – Security intelligence – Warrants – Federal Court issuing warrant to CSIS for the interception from within Canada of telecommunications of Canadian citizens travelling abroad – CSIS failing to disclose on warrant application its intention to seek the assistance of foreign partner agencies for the interception of telecommunications of Canadians abroad – Federal Court finding that CSIS breached its duty of candour on ex parte warrant application – Federal Court holding that s. 12 of the Canadian Security Intelligence Service Act does not authorize CSIS to make such requests to foreign partner agencies – What is the scope of the Federal Court’s jurisdiction under s. 21 of the CSIS Act to issue warrants governing the interception of communications of Canadians by foreign agencies at Canada’s request – What is the scope of CSIS’s disclosure obligations on warrant applications – Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, ss. 12, 21.
In 2009, a warrant was issued permitting the Canadian Security Intelligence Service (“CSIS”) to intercept, within Canada, the telecommunications of two Canadian citizens travelling abroad. In 2013, it came to the attention of the issuing judge that, where similar warrants were issued, it had become the practice for CSIS and for the Communications Security Establishment (“CSE”) to make requests to foreign partner agencies for assistance in the targeting of the communications of Canadians abroad. The court recalled counsel to address two issues: (1) whether the Attorney General had met his duty of candour when applying for such warrants, and in particular, whether the assistance provided by CSE in tasking foreign partners should have been disclosed; and (2) whether s. 12 of the Canadian Security Intelligence Service Act authorizes CSIS to engage the assistance of foreign agencies in intercepting the communications of Canadians abroad. The court found that the Attorney General had breached his duty of candour and that s. 12 of the CSIS Act did not authorize CSIS to engage the assistance of foreign agencies. The Court of Appeal dismissed the Attorney General’s appeal.
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