Monday, November 17, 2014

Monitoring Canadians abroad pre-Mosley

As we all know by now, CSIS and CSE interpreted Justice Richard Mosley's 2009 ruling in the X(re) case as opening the way not only for CSIS to obtain warrants to monitor specific Canadians outside Canada from within Canada, but also for CSIS and CSE to call on the services of Canada's Five Eyes allies to assist in that monitoring. Justice Mosley, who learned of the latter interpretation only in 2013, had a very different view, and much excitement has since ensued. The government recently proposed Bill C-44 to establish a legal basis for CSIS to conduct intrusive surveillance abroad (and presumably to call on the assistance of allies in such operations).

What was the situation before the 2009 decision? A request for a warrant to use intrusive measures abroad was rejected by Justice Edmond Blanchard in 2007, but it may be that CSIS did not take that rejection to mean that Five Eyes assistance was not permitted.

At least, that's how the U.S. Embassy understood the situation.

In a 9 October 2009 cable commenting on the Mosley decision (one of the diplomatic cables leaked to Wikileaks), the Embassy explained that
Previous to Justice Mosley's [2009] ruling, CSIS had to ask allies to conduct electronic surveillance on CSIS's behalf or to request that Canadian telecom companies voluntarily provide international call records when Canadian terror suspects left the country.
If the Embassy's account is correct, CSIS was indeed calling on the assistance of allied surveillance resources in the pre-Mosley period, even, it would appear, after Blanchard's 2007 decision.

That is not the situation as Justice Mosley understood it, however. Mosley's 2013 Further Reasons for Order notes that the Deputy Attorney General of Canada advised CSIS in October 2008 that "interception of a target’s communications outside Canada by a foreign agency at the Service’s request" did not, in his view, require a warrant. But Mosley also noted that "Neither agency appears to have been prepared to proceed solely on the strength of the DAGC’s October 2008 opinion."

Was the Embassy misinformed?

Whatever the answer to that question may be, the Embassy's statement that Canadian telecom companies were also being asked (and presumably agreeing) to voluntarily provide the international call records of Canadians abroad is also very interesting.


Anonymous Anonymous said...

Michael Heroux said

Very interesting, if you're not a lawyer you should be. I read your blog all the time and you do a great job at taking the complicated and simplifying it and making it easier to understand, thanks. Follow the money.

November 17, 2014 8:40 pm  

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