Saturday, December 21, 2013

End product meets fan: Justice Mosley's Further Reasons for Order

The redacted version of Justice Richard Mosley's 22 November 2013 Further Reasons for Order has now been released (Ian Macleod, "CSIS asked foreign agencies to spy on Canadians, kept court in dark, judge says," Ottawa Citizen, 20 December 2013):
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.”

...

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.
Macleod's article also reports CSEC's response:
We will be reviewing this decision carefully. CSE may only conduct intelligence activities in Canada under its mandate to provide assistance to federal law enforcement and security agencies upon request. These activities respect Canadian laws and Canadian values, and are conducted under the requesting agency’s legal authorities, such as any applicable court warrant. CSE is bound by and must respect any limits in those authorities. All CSE activities are subject to review by the CSE commissioner, who for 16 years has reported that CSEC continues to act lawfully in the conduct of its current activities.
Yeah, well, maybe not for much longer.

And this isn't the first questionable moment in those 16 years.

More coverage:

- Colin Freeze, "Canada’s spy agencies chastised for duping courts," Globe and Mail, 20 December 2013
- Colin Perkel, "Judge slams Canadian spies for misleading court, withholding information," Canadian Press, 20 December 2013

Background here and here.

Update 27 October 2014: Amendments to the CSIS Act introduced in parliament today should enable CSIS and CSEC to resume monitoring Canadians abroad.

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