OTTAWA - The Conservative government revealed Monday that it lost an important Federal Court of Appeal ruling that found CSIS hid the extent of its overseas spying activities from a judge.
A redacted version of the decision of the Federal Court of Appeal, dated July 7, 2014, was posted on the court’s website Monday with no notice to the media — a highly unusual move.
It upheld an earlier Federal Court ruling by Justice Richard Mosley that rebuked the Canadian Security Intelligence Service and the federal government for hiding the fact that CSIS had turned to CSE, Canada’s electronic spy agency, and its allied partners in the “Five Eyes” international spying network to carry out intrusive surveillance abroad on two Canadians.
The ruling gives strong backing to CSIS’s power to operate abroad.
But Justices Eleanor Dawson, Robert Mainville and Pierre Blais, the recently retired chief justice, declared that a judge’s decision to issue a warrant is “not the simple ‘box-ticking’ exercise the attorney general suggests.” And they said CSIS had to level with the courts.
“The duty of candour and utmost good faith required that CSIS disclose to the Federal Court the scope of its anticipated investigation, and in particular that CSIS considered itself authorized by . . . the CSIS Act to seek foreign agency assistance without a warrant. CSIS failed to make such disclosure.”
However, the appeal ruling disagreed with the lower court, and found that a Federal Court judge does have jurisdiction to issue a warrant that would authorize intrusive surveillance by CSIS overseas.
“A warrant is required when the (Canadian Security Intelligence) Service either directly, or through the auspices of a foreign intelligence service, engages in intrusive investigative methods such as the interception of telecommunications. In our view, the Federal Court has jurisdiction to issue such a warrant when the interception is lawful where it occurs. In our further view, it remains an open question as to whether the Federal Court possesses such jurisdiction when the interception is not legal in the country where it takes place.”
However, under a bill tabled week by the Conservatives that gap would be fixed.
Bill C-44 would provide explicit authorization for CSIS to seek and use Federal Court warrants to authorize investigative activities — including electronic intercepts and other covert surveillance activities — outside Canada “without regard to any other law, including that of any foreign state.”
Public Safety Minister Steven Blaney said in a written statement late Monday the government would appeal the latest Federal Court of Appeal ruling, even as it seeks parliamentary approval for the bill he said is a direct legislative response to the Federal Court of Appeal ruling the government lost — undisclosed until that moment.
Federal Court of Appeal officials did not respond to a request from the Star to explain why the judgment had been kept secret until now, although it is clear that there had been follow-up discussions after July 7 between the government and the court about how much of the ruling could be made public, and how much should be redacted. In the end, several lines are blacked out, but the gist of the ruling is clear.
Hours earlier, in kicking off parliamentary debate on Bill C-44, Blaney did not even refer to the Federal Court of Appeal loss. But he quoted the twin sister of slain Warrant Officer Patrice Vincent, who was run down by Martin Couture-Rouleau on Oct. 20 in St-Jean-sur-Richelieu, Que.
At Vincent’s private funeral last weekend, Blaney said Vincent’s twin sister had “asked us to ensure her brother’s death is not in vain.” He told the Commons all parties had the opportunity to begin that work by supporting C-44.
Blaney said the attacks that led to the death of Vincent and, two days later, Cpl. Nathan Cirillo, who was shot by Michael Zihef-Bibeau in Ottawa, were “both terrorist attacks.”
“We have to call a spade a spade,” said Blaney. “We are facing a serious terrorist threat, one we must address with strong measures.”
Opposition parties agreed to study the bill further in committee, but both called for greater oversight.