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The limits of intelligence collection

A recent decision of the Federal Court has confirmed that, under its existing legislation, the Canadian Security Intelligence Service cannot obtain warrants to collect information or intelligence if the requested warrant has extraterritorial effect.

In a ruling released on July 19, Justice Simon Noël held that existing s. 16 of the CSIS Act, which deals with the authority of CSIS to assist the Minister of National Defence or the Minister of Foreign Affairs to collect information or intelligence relating to the capabilities, intentions or activities of “any foreign states or group of foreign states” in defence of Canada or the conduct of the international affairs of Canada, was limited to acting “within Canada” (or, in French, “dans les limites du Canada”).

Arguing that the court had jurisdiction under ss. 16 and 21 of the act, the attorney general had urged the court to adopt a “purposive” interpretation of the act that allowed for an “extraterritorial dimension” when providing assistance from “within Canada” because the failure to do so would lead to “absurd results,” including preventing collection of any information with a foreign dimension. The attorney general also argued that advances in technology have made s. 16 of the act obsolete or inoperable. 

Regrettably, the Federal Court’s decision is highly redacted with large swaths of black obliterating the basic facts of the case (which makes for somewhat frustrating reading). Large parts of the parties’ arguments, the subjects of the warrant, even why CSIS sought the warrant to collect information with a foreign dimension and what it hoped to do with it are missing. The decision did mention that CSIS considered obtaining technical and operational assistance from Canada’s other intelligence service, the Communication Security Establishment, which is tasked with foreign signals intelligence collection and IT security. Accordingly, one could posit that CSIS’ proposed activities could conceivably involve accessing a cloud-based solution or other technology platform where the foreign state’s data is located or stored on servers and other hardware physically located outside of Canada.

What is left is a meticulous examination by the court, using the “modern approach to statutory interpretation,” to determine the proper scope of the expression or phrase “within Canada,” which Noël preceded to do in an exhausting fashion. This included reading and interpreting the words of the statute in their ordinary and grammatical senses, interpreting them in the context of the act as a whole as well as reviewing the context of s. 16 by analyzing extrinsic sources (such as Parliamentary debates, various commission reports, etc.). The court then reviewed the overall facts of the case along with the argument submitted by counsel in light of true meaning of the phrase “within Canada.”

The court confirmed that legislation that infringes on civil liberties, such as the act, must be interpreted cautiously to ensure minimal infringement of Canada’s most fundamental liberties while ensuring that the rule of law is upheld. Therefore,  courts must tread lightly, cautiously scrutinizing and interpreting the investigative powers granted by Parliament to Canada’s intelligence services, ensuring that they are “not authorized to overstep their mandate by Judges.” Noël repeatedly reiterated that if the scope of the powers in the act requires an expansion in order to provide assistance to the minister of Foreign Affairs or National Defence, such change must be brought through legislative amendment, not by a court broadly interpreting the CSIS Act.

Section 12 of the act sets out the primary mandate and function of CSIS, which is to investigate threats to the country’s security and allow CSIS to perform its functions and duties within or outside of Canada. Section 12.1(1) of the act specifically allows CSIS to take measures within or outside of Canada to reduce threats if there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, while s. 21 gives CSIS the right to seek warrants to enable the service to investigate, within or outside of Canada, a threat to the security of Canada or to perform its duties under s. 16. However, in contrast to s. 12, the court found that s. 16 of the act has an “assistance or policy oriented goal” rather than a threat-related one, since it looks to collect political, economic, commercial and military intelligence to assist ministers in making informed decisions in their respective portfolios.

While the act, which received royal assent in 1984, has rarely been amended, on April 23, 2015, Bill C-44, the Protection of Canada from Terrorists Act, did add extra-territorial powers to various sections of the act, including ss. 12(2), 15(2) and 21(3.1) that explicitly authorized CSIS to perform its duties “within or outside of Canada.” Section 21 was modified to authorize the Federal Court to issue warrants that could potentially violate the laws of foreign jurisdictions solely in s. 12-type investigations. No similar amendments were made at the time to s. 16 (foreign intelligence collection) or since. So, arguably, while Bill C-44 clarified and expanded the extraterritoriality powers (and geographic scope) of certain provisions of the act dealing with CSIS’ primary security intelligence functions, tellingly, Parliament apparently chose not to amend the territorial restrictions in s. 16 to provide for an extraterritorial collection power.

The court also considered and ultimately challenged the attorney general’s argument that the failure to interpret s. 16 of the act more broadly creates a “foreign intelligence gap.”  Stating that Canada already has another agency, the CSE, whose role is to collect foreign signals intelligence abroad (not directed at Canadians nor any person in Canada), Noël determined that Parliament could not have intended (i) CSIS to have the same wide powers under s. 16; nor (ii) “section 16 to be interpreted largely to include activities that require [redacted] which clearly falls under CSE’s mandate.” Acknowledging that technological advances have exacerbated the gap in collection powers, which is “far from an ideal situation for the Service,” the court was still not persuaded that the so-called foreign intelligence gap was sufficient enough to depart from Parliament’s clean intention to limit the application of s. 16 collection activities to “within Canada.”

The court observed that while Parliament intended CSIS to have, through s. 16, a limited secondary mandate to collect foreign intelligence to assist the respective ministers, it was not trying to encourage them to conduct “covert” or “offensive” activities abroad or operate in a manner similar to the United States’ Central Intelligence Agency. Historically, the inclusion of geographical limitations was also intended to mitigate any political, diplomatic or moral risks of conducting foreign intelligence collection (with its potential to breach international law, bring disrepute to Canada’s international reputation and negatively impact diplomatic relationships). In other words, just because technology has evolved doesn’t mean that CSIS should use it if the injudicious use of such technology against foreign powers could damage Canada’s diplomatic relations. The court found that the (unnamed, undisclosed) actions proposed within the applied-for warrant would likely damage Canada’s political or diplomatic reputation internationally and violate the laws of a foreign state.  

While, at times, reading this decision felt like reading tea leaves, there are nonetheless some important takeaways. The Federal Court clearly believes in the need to read the act narrowly and not apply purposive interpretation in a manner that will blanketly increase CSIS’ powers. The court will not grant warrants for CSIS’ extraterritorial activities when Parliament has not given it the authority to do so.  The court also highlighted the distinction between the broader rights of s. 12 of the act, which engages in Canada’s right to defend itself from threats within and outside of Canada, which opens the door to possible extraterritorial intent, v. s. 16, which is focused on intelligence/information gathering on the capabilities, intentions or activities of foreign states. While additional technological advances may cause Parliament to ultimately rethink its position, this is not the case in the present version of s. 16 of the act today. As noted Noël:

 “…the correct interpretation of the expression “within Canada” is “only in Canada”; anything else would amount to the Court legislatively rewriting this section…if section 16 needs a broader scope to effectively assist the Ministers, the Service should turn its eyes to Parliament, which is the appropriate forum to address the “gap” identified by the Attorney General”…The Attorney General’s argument would place the undersigned in a legislative seat which does belong, in the present circumstances, to the judiciary.”