CSIS-36-97
IN THE MATTER OF an application for warrants pursuant to section 21 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23
Indexed as: Canadian Security Intelligence Service Act (Re) (T.D.)
Trial Division, McGillis J."Ottawa, August 28, September 2, 19 and October 3, 1997.
Security intelligence — Application for warrants under Canadian Security Intelligence Service Act, s. 21 — CSIS seeking inclusion of provisions in warrants, including —visitors clause—, to enable Service to investigate threat to security of Canada — —Visitors clause— unlawful delegation to Service employee of functions of judge under Act, s. 21 — Purpose of s. 21 to ensure objective, detached analysis of facts asserted in warrant application — Judge initially issuing edited reasons for order due to concerns for national security — Releasing unedited version after CSIS spokeswoman divulging to media information Judge had agreed to omit from reasons.
Constitutional law — Charter of Rights — Legal rights — Search or seizure — CSIS applying for warrants under Canadian Security Intelligence Service Act, s. 21 — Whether —visitors— clause unlawfully delegates to Service employee functions of judge under s. 21 — Issue related to s. 8 Charter right to be secure against unreasonable search, seizure — Prior authorization precondition for valid search, seizure, should not be delegated to investigatory body — Person authorizing search must be judge, person capable of acting judicially — Purpose of judicial control under Act, s. 21 to ensure objective, detached analysis of facts set out in warrant application to determine whether interests of state prevail over individual's constitutional right to be secure from unreasonable search, seizure.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 8.
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, s. 21.
cases judicially considered
applied:
Hunter et al v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; R. v. Thompson, [1990] 2 S.C.R. 1111; (1990), 73 D.L.R. (4th) 596; [1990] 6 W.W.R. 481; 49 B.C.L.R. (2d) 321; 59 C.C.C. (3d) 225; 80 C.R. (3d) 129; 50 C.R.R. 1; 114 N.R. 1; Atwal v. Canada, [1988] 1 F.C. 107; (1987), 28 Admin. L.R. 92; 36 C.C.C. (3d) 161; 59 C.R. (3d) 339; 32 C.R.R. 146 (C.A.).
APPLICATION to include a "visitors clause" in warrants under section 21 of the Canadian Security Intelligence Service Act permitting delegation of the statutory powers of a judge to a Service employee. Application dismissed.
counsel:
Robert F. Batt for applicant.
solicitors:
Deputy Attorney General of Canada for applicant.
The following are the reasons for order and order rendered in English by
McGillis J.: I issued my reasons for order in this matter on September 19, 1997. Counsel for the Attorney General of Canada immediately took the position that my reasons for order should not be released to the public on the basis of "public interest immunity", and requested an opportunity to make submissions on that point.
On September 23, 1997, I conducted an ex parte hearing, during the course of which counsel for the Attorney General of Canada filed affidavit evidence in support of his submission that the release of any information concerning the persons targetted by the clause in question, namely certain foreign nationals visiting Canada, would compromise national security by revealing operational tactics and investigative interests of the Canadian Security Intelligence Service (CSIS). On the basis of the evidence adduced, I agreed to edit my reasons for order by excluding any reference to the "visitors clause". My edited reasons for order were released publicly on September 23, 1997.
On October 1, 1997, I read an article on page A3 of the Ottawa Citizen which contained the following sentence:
CSIS spokeswoman Marcia Wetherup confirmed the Service had used the clause "numerous times" in investigations of foreign nationals visiting Canada. [Emphasis added.]
Upon reading the article, it appeared to me that CSIS itself may have released the very information which I had agreed not to disclose based on the evidence relating to national security adduced by CSIS on September 23, 1997.
On October 2, 1997, I ordered counsel for the Attorney General of Canada to appear before me and to make submissions on the question of whether my reasons for order in this matter ought to be released to the public in their unedited form, given the statement attributed in the Ottawa Citizen to Ms. Wetherup, the spokeswoman for CSIS. At the outset of his submissions, counsel for the Attorney General of Canada attempted to provide explanations concerning the information conveyed by Ms. Wetherup to the media. I indicated to him that his explanations were not sufficient, and that she would be required to testify before me. Following a brief adjournment, Ms. Wetherup testified under oath concerning the information which she had conveyed to journalists. During the course of her evidence, Ms. Wetherup admitted that she had confirmed to the media that the clause in question was used in the investigation of foreign nationals visiting Canada.
Counsel for the Attorney General of Canada submitted that I ought not to release my unedited reasons for order on the basis that the comments made by Ms. Wetherup to journalists do not reflect the position of CSIS. I cannot accept that argument for the simple, and obvious, reason that Ms. Wetherup made her comments in her official capacity as the spokeswoman for CSIS. In the circumstances, CSIS cannot now attempt to distance itself from those comments. Since the information which was used to justify the existence of national security interests is now in the public domain, having been confirmed by the CSIS spokeswoman, the rationale for not releasing my unedited reasons for order no longer exists.
My reasons for order dated September 19, 1997 shall be released forthwith to the public.
* * *
The following are the reasons for order rendered in English by
McGillis J.: A designated employee of the Canadian Security Intelligence Service (Service) applied, with the approval of the Solicitor General of Canada, for the issuance of warrants under section 21 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 as amended (Act) to enable the Service to investigate a threat to the security of Canada.1 In the evidence tendered on the application, the designated employee deposed in an affidavit to the matters enumerated in subsection 21(2) of the Act, and sought the inclusion of various provisions in the warrants to enable the Service to investigate the threat, including a "resort to" clause, a "basket" clause and a "visitors" clause. Under the terms of the warrants, the proposed "resort to" clause would permit the Service to intercept the communications of a target and to use the other powers granted in the warrant at a place, other than a named place, to which it believes he has resorted or will resort; the "basket" clause would permit the interception of communications of unknown persons at places specified in the warrant. The proposed "visitors" clause would extend beyond the limitations imposed in the "resort to" or "basket" clauses, and would permit the Service to use, at any place, the full range of powers granted in the warrant against the following class of persons:
(a) a person being of a specific nationality;
(b) who is admitted to Canada as a visitor;
(c) who is identified in Service data banks as a known intelligence officer;2
(d) who is a person whom the Director General of Counter Terrorism (or other person of similar level) has reasonable grounds to believe would engage in espionage (or other threat related activity) while in Canada.
On August 28, 1997, I conducted an ex parte hearing on the application, during the course of which I expressed reservations concerning the legality of the proposed "visitors" clause. At the request of counsel, I adjourned the hearing in order to enable him to file supplementary affidavit evidence. On the same date, I directed him to file written submissions on the question of whether the proposed "visitors" clause constitutes an unlawful delegation to a Service employee of the powers accorded to a judge under section 21 of the Act. On September 2, 1997, I reconvened the hearing and issued in part the warrants requested, but deleted the proposed "visitors clause", pending my decision on its legality.
In his written submissions, counsel for the Attorney General of Canada properly conceded that a judge could not lawfully, under section 21 of the Act, authorize a Service employee to identify a target and to make the decision to direct intrusive powers against that person. Counsel acknowledged that, by including a "visitors" clause in a warrant, a judge would "endorse, in advance, decisions as to the use of certain powers that might be taken by the Service during the life of a warrant." He further acknowledged that the "visitors" clause "permits a degree of delegation to a Service employee to exercise discretion within parameters established by the designated Federal Court judge issuing the warrant." However, he submitted that the "clear parameters" limiting the "visitors" clause rendered it lawful. Counsel for the Attorney General of Canada attempted to justify the need for a "visitors" clause by indicating that a hostile intelligence service will often operate from within the confines of its own borders, but will "use delegations, joint ventures and short term visits as a means of gathering information in another country." In those circumstances, he stated that it would be "very difficult" for the Service to investigate certain persons using "only non-warrant investigative techniques." He further stated that "valuable intelligence as to the threat related activities of a hostile intelligence agency or terrorist organization may be lost." Counsel for the Attorney General of Canada filed no supplementary affidavit evidence in this matter.
In order to determine whether the "visitors" clause unlawfully delegates to a Service employee the functions of a judge under section 21 of the Act, it is important to refer to certain principles which have developed in the context of the section 8 Charter right [Canadian Charter of Rights and Freedoms , being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] to be secure against unreasonable search or seizure.3 In the leading case of Hunter et al v. Southam Inc., [1984] 2 S.C.R. 145, Dickson J. (as he then was), writing for the Court at page 158 of the judgment, construed section 8 of the Charter as guaranteeing "a broad and general right to be secure from unreasonable search and seizure", and adopted a purposive approach in assessing the limitation inherent in the right. In terms of his analysis, two of the four factors which he considered in Hunter et al v. Southam Inc. , supra, are important for the purposes of the present case: the point at which the balance of interests must be assessed, and the person who must grant the authorization.
With respect to the assessment of the balance of interests, Dickson J. determined at page 160 of the judgment that the purpose of protecting individuals "from unjustified state intrusions upon their privacy" could "only be accomplished by a system of prior authorization , not one of subsequent validation." In that regard, he stated as follows [at pages 160-161]:
A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.
Having outlined the necessity for prior authorization, Dickson J. addressed the important question concerning who must grant the authorization, by stating as follows at pages 161-162:
The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner. At common law the power to issue a search warrant was reserved for a justice. In the recent English case of Inland Revenue Commissioners v. Rossminster Ltd., [1980] 1 All E.R. 80, Viscount Dilhorne suggested at p. 87 that the power to authorize administrative searches and seizures be given to "a more senior judge". While it may be wise, in view of the sensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, I agree with Prowse J.A. that this is not a necessary precondition for safeguarding the right enshrined in s. 8. The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.
In applying those principles to the statutory scheme at issue in the case before him, Dickson J. drew a clear distinction between investigatory and adjudicative functions, and concluded at pages 164-165 that the system of prior authorization mandated in the impugned legislation violated section 8 of the Charter on the basis that it failed to specify "a truly neutral and detached arbiter to authorize searches." In his analysis on that point, he stated as follows at page 164:
In my view, investing the Commission or its members with significant investigatory functions has the result of vitiating the ability of a member of the Commission to act in a judicial capacity when authorizing a search or seizure under s. 10(3). This is not, of course, a matter of impugning the honesty or good faith of the Commission or its members. It is rather a conclusion that the administrative nature of the Commission's investigatory duties (with its quite proper reference points in considerations of public policy and effective enforcement of the Act) ill-accords with the neutrality and detachment necessary to assess whether the evidence reveals that the point has been reached where the interests of the individual must constitutionally give way to those of the state. A member of the R.T.P.C. passing on the appropriateness of a proposed search under the Combines Investigation Act is caught by the maxim nemo judex in sua causa. He simply cannot be the impartial arbiter necessary to grant an effective authorization.
In short, Dickson J. concluded in Hunter et al v. Southam Inc., supra, that, as a minimum constitutional requirement, the person authorizing a search must be either a judge or a person capable of acting judicially.
The requirement that the judicial functions in authorizing a search or seizure not be delegated to an investigatory body was reinforced by the Supreme Court of Canada in the majority decision in R. v. Thompson, [1990] 2 S.C.R. 1111, in the following words of Sopinka J. at pages 1134-1135 of the judgment:
Unlike the authorization in Grabowski, the authorizations at issue do not permit the interception of communications of anyone anywhere within the province. It is limited in location to places resorted to by certain named individuals. A basket clause which would permit interception of any persons unknown to the police at the time of the application for the authorization and which would permit the police to intercept such communications at any place provided that there are reasonable and probable grounds to believe that the interception may assist in the investigation has been held to be invalid. The basis for that decision is that such a clause vests in the police the discretion to intercept the private communications of any or all persons if there are reasonable or probable grounds to believe that the interceptions would assist in the investigations, which is the function given by statute to the issuing judge: see R. v. Paterson, Ackworth and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd [1987] 2 S.C.R. 291. Neither paragraph (c) nor (d) of the authorizations in this case is in that category. Each contains limitations. Paragraph (c) is limited to named persons. Paragraph (d) is limited to persons who resort to or use named premises or communicate with named persons. As to place, each is limited to places resorted to by five named individuals. It cannot therefore be said to delegate to the police the determination as to whether the interceptions would assist in the investigation. That was determined by the authorizing judge on the basis of the connection to the targets detailed above. [Emphasis added.]
In the present case, the question to be determined is whether the proposed "visitors" clause unlawfully delegates to a Service employee the functions assigned to a judge by section 21 of the Act. In determining that question, the purpose and the import of the "visitors" clause must be considered. A review of each warrant as a whole confirms that the "visitors" clause, when read in context, is intended to supplement the "resort to" and "basket" clauses, by extending the ambit of the warrant and by permitting the use of all of its intrusive powers against certain persons in circumstances not covered by either of those two other clauses. In other words, if a person who would otherwise fall within the precise terms of the "visitors" clause either resorted to a place where interceptions of a target were occurring, or communicated with a target whose communications were being intercepted, his communications could lawfully be intercepted under the terms of the warrant, using either the "resort to" or the "basket" clause, as the case may be. In those circumstances, a "visitors" clause would not be necessary to permit the Service to lawfully intercept the "visitor's" communications. The range of the "visitors" clause therefore extends significantly beyond that of either the "resort to" or the "basket" clause. In practical terms, the "visitors" clause would permit the Service to use the full range of intrusive powers in the warrant against a person, following an assessment by a Service employee of the available evidence and a determination by him that reasonable grounds exist to believe that the proposed target would engage in activities constituting a threat to the security of Canada. In other words, the "visitors" clause vests in a Service employee the discretion to apply the terms of the warrant against a person, without a judge ever scrutinizing the evidence to determine whether intrusive powers ought to be used against that individual. Under paragraph 21(2)(a ) and subsection 21(3) of the Act, it is the judge hearing the ex parte application for a warrant who must satisfy himself that the facts establish reasonable grounds for believing that the issuance of a warrant is required. By arrogating that function to a Service employee, the "visitors" clause delegates to him the statutorily mandated functions of a judge.4 Nothing in the Act permits the judge's function in paragraph 21(2)(a) and subsection 21(3) to be delegated. Furthermore, even if a delegation were permitted by the Act (which it is not), it would offend the minimum constitutional requirement in Hunter et al v. Southam Inc., supra, in that it would empower a Service employee, who by the very nature of his position acts in an investigative and not in an adjudicative capacity, to assess evidence and to apply the full range of the intrusive powers in the warrant against a person. For these reasons, I have concluded that the terms of the "visitors" clause constitute an unlawful delegation to a Service employee of the functions accorded to a judge under paragraph 21(2)(a ) and subsection 21(3) of the Act.
In his written submissions, counsel for the Attorney General of Canada stated that it would be "very difficult for the Service to investigate threat related activity" in the circumstances envisaged by the "visitors" clause "using only non-warrant investigative techniques [sic ]." As I indicated previously, the Service may use the "resort to" or "basket" clauses in its investigations of such persons. Furthermore, if evidence exists for a Service employee to consider under a "visitors" clause, that evidence is equally available to be placed before a judge on an emergency application. Indeed, a judge is on duty, twenty-four hours a day, to hear precisely such matters. The fact that it may be more expedient for a Service employee to perform the function is patently irrelevant.
From time to time, it is useful to recall that the purpose of the judicial control mandated by section 21 of the Act is to ensure an objective, detached analysis of the facts asserted in the application for a warrant in order to determine whether the interests of the state should prevail over a person's constitutional right to be secure from unreasonable search and seizure. As stated by Mahoney J.A. in Atwal v. Canada, [1988] 1 F.C. 107 (C.A.), at page 140 "the credibility of the Service has a direct and positive, but by no means exclusive, dependency on the credibility of the judicial presence in the system". Although it should be unnecessary to state the obvious, steps should never be taken to undermine or to diminish the statutory functions of the designated judges under the Act.
The application to include a "visitors" clause in the warrants is therefore dismissed.
1 S. 21 of the Act is reproduced in Schedule A to these reasons for order.
2 Another variation of the "visitors" clause substitutes the words "as a known member of X group" for the words "as a known intelligence officer."
3 S. 8 of the Charter provides as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
4 Even counsel for the Attorney General of Canada conceded that the "visitors" clause permits a "degree of delegation" to a Service employee.
SCHEDULE "A"
Canadian Security Intelligence Service Act
PART II
JUDICIAL CONTROL
21. (1) Where the Director or any employee designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada or to perform its duties and functions under section 16, the Director or employee may, after having obtained the approval of the Minister, make an application in accordance with subsection (2) to a judge for a warrant under this section.
(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely,
(a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada or to perform its duties and functions under section 16;
(b) that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures or that without a warrant under this section it is likely that information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16 referred to in paragraph (a) would not be obtained;
(c) the type of communication proposed to be intercepted, the type of information, records, documents or things proposed to be obtained and the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised for that purpose;
(d) the identity of the person, if known, whose communication is proposed to be intercepted or who has possession of the information, record, document or thing proposed to be obtained;
(e) the persons or classes of persons to whom the warrant is proposed to be directed;
(f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;
(g) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force that is applicable by virtue of subsection (5); and
(h) any previous application made in relation to a person identified in the affidavit pursuant to paragraph (d), the date on which the application was made, the name of the judge to whom each application was made and the decision of the judge thereon.
(3) Notwithstanding any other law but subject to the Statistics Act, where the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraphs (2)(a) and (b) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to intercept any communication or obtain any information, record, document or thing and, for that purpose,
(a) to enter any place or open or obtain access to any thing;
(b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing; or
(c) to install, maintain or remove any thing.
(4) There shall be specified in a warrant issued under subsection (3)
(a) the type of communication authorized to be intercepted, the type of information, records, documents or things authorized to be obtained and the powers referred to in paragraphs (3)(a) to (c) authorized to be exercised for that purpose;
(b) the identity of the person, if known, whose communication is to be intercepted or who has possession of the information, record, document or thing to be obtained;
(c) the persons or classes of persons to whom the warrant is directed;
(d) a general description of the place where the warrant may be executed, if a general description of that place can be given;
(e) the period for which the warrant is in force; and
(f) such terms and conditions as the judge considers advisable in the public interest.
(5) A warrant shall not be issued under subsection (3) for a period exceeding
(a) sixty days where the warrant is issued to enable the Service to investigate a threat to the security of Canada within the meaning of paragraph (d) of the definition of that expression in section 2; or
(b) one year in any other case.