Update: Chapter 10 (p 455): "Within Canada" in s 16 CSIS Act (foreign intelligence)

12 Feb 2021

Section 16 of the CSIS Act permits CSIS to conduct foreign intelligence collection, but only within Canada. (NB: “Foreign intelligence” should not be confused with security intelligence, governed by s 12. In relation to security intelligence, CSIS was conduct activities without or outside Canada.)

            The CSIS Act’s legislative history suggests that Parliament intended the inclusion of “within Canada” as an important limiter on CSIS’s foreign intelligence collective activities. However, the geography of an investigation becomes uncertain where CSIS intercepts communications straddling borders. Hypothetically, for example, would CSIS violate the “within Canada” injunction by copying an email originating in Canada but stored on a foreign server? In a 2018 warrant decision, the Federal Court considered the meaning of “within Canada,” and concluded that a foreign intelligence warrant cannot have “extraterritorial effect.”[1] (2018 FC 738 (“Within Canada” Case, Justice Noel)). The Federal Court of Appeal declined to disturb this decision, because the evidence before it was not “sufficiently informative to permit the Court to properly address the grounds argued in the appeal”.[2]

            Since the finalization of NSL 2d Ed, the Federal Court has issued two additional cases discussing the “within Canada” fetter on section 16 activities. This update summarizes holdings drawn from the public, redacted versions of these decisions.

2020 FC 697 (Justice O’Reilly)

The first case “began as an application for warrants to gather foreign intelligence pursuant to s 16 of the Canadian Security Intelligence Act ... It then grew, becoming a vehicle for the consideration of a number of issues that have arisen in the context of s 16 over recent years.”[3] One of these issues was: “Whether s 16 gives lawful authority for the Service to intercept communications of [foreign persons] when they are travelling outside of Canada”.[4] Specifically, “The Service seeks an assurance that it has lawful authority to intercept [a foreign person’s] communications from within Canada even if [the foreign person] is outside of Canada. The Service claims that this authority would enhance its ability to collect information relevant to the particular |||||||||||||||||||||||||||| capabilities, intentions, or activities.”[5] Thusfar, “In the absence of clear legal authority permitting the Service to intercept a person’s communications outside of Canada, the Service’s current practice is to terminate an interception (their operation “goes down”) if it becomes aware that [a foreign person] has left Canada. However, if [the foreign person] has left the country without the Service being aware, the interceptions will continue.”[6]

            Based on this practice, the Court was “satisfied that the Service’s proposed interceptions will be made within Canada and will comply with the geographical limits of s 16.”[7]

2020 FC 757 (Justice Gleeson)

The second case involved warrant applications that “included the authority to initiate, from a location inside Canada, the collection of information outside Canada” in a section 16 activity.[8] The agree facts specified that:

The Court can reasonably infer that the collection of information in the manner described in the question before the Court will violate [foreign domestic and/or international law and/or the international law principle of non-intervention] over the location in which [aspects of the collection will occur].[9]

The government asked the Court to conclude, nevertheless, that section 16 permitted collection 1. “…without regard to whether [the information is] inside of outside Canada [using the proposed method] satisfies the “within Canada” limitation as prescribed at section 16 of the CSIS Act”, 2. and that section 21 (the provision authorizing the issuance of warrants) “provides this Court with the jurisdiction to authorize the Service to engage in activity that is in breach of foreign domestic and international law.”[10]

The government urged that “within Canada” requires “that information or intelligence be undertaken ‘from within Canada’ rather than abroad.”[11] That is, the limitation in section 16 is a “from” constraint – the “collection occurs from within Canada”.[12]

The Court disagreed, holding that “no persuasive interpretive argument has been advanced to support [the government’s] assertion.” Parliament, as the Court interprets the Act, turned its mind to the question of geography and balanced intelligence and foreign relations considerations to arrive at the existing formula, something demonstrated by the legislative history. Parliament “did not intend the limited foreign intelligence collection mandate to ‘open the door to interpretations permitting covert intelligence operations abroad.”[13]

The threshold “within Canada” is met

where all “significant assistance or collection activity occurs only” within Canada. What is significant assistance or collection activity is to be assessed on a case by case basis. However, activity that is significant to the provision of assistance or the collection activity will minimally include (1) all legally relevant and consequential activity; and (2) all activity that attracts the very risks Parliament has sought to mitigate in adopting the geographic limitation found at section 16 of the Act. Activity that is contrary to principles of international law will generally attract those risks absent Parliament’s expressed or implied intent not to be limited by foreign or international law.[14]

For a discussion of international law issues pertinent to this discussion, see NSL, pp 263-66; 277-78.

[1]                X (Re), 2018 FC 738 at para 15.

[2]                Re Sections 16 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23, 2018 FCA 207 at para 5.

[3]                2020 FC 697 at para 1.

[4]                Ibid at para 4.

[5]                Ibid at para 182.

[6]                Ibid at para 192.

[7]                Ibid at para 193.

[8]                2020 FC 757, Explanatory Note.

[9]                Ibid at para 42.

[10]              Ibid at para 81.

[11]              Ibid at para 96.

[12]              Ibid at para 97.

[13]              Ibid at paras 101 and 107.

[14]              Ibid at para 132.