And In The Matter of [...] Indexed As: Canadian Security Intelligence Service Act, Re. Federal Court Mactavish, J. December 6, 2012.

Transcription

1 In The Matter of an Application by [...] for Warrants Pursuant to Sections 16 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, C. C-23 (2012 FC 1437) And In The Matter of [...] Indexed As: Canadian Security Intelligence Service Act, Re Federal Court Mactavish, J. December 6, Summary: The Canadian Security Intelligence Service (CSIS) applied for warrants pursuant to s. 16 of the Canadian Security Intelligence Services Act. CSIS's argument was that s. 16(2) only prohibited it from directing foreign intelligence assistance at [a Canadian citizen, permanent resident or corporation], but did not prohibit the naming of [a Canadian citizen, permanent resident or corporation] in a warrant, whose communications were proposed to be intercepted where the request for assistance was directed at [a foreign state or group of foreign states, corporation or person] in accordance with s. 16(1). The Federal Court dismissed the application insofar as it related to [a Canadian citizen, permanent resident or corporation]. Properly interpreted, s. 16(2) "prohibits the interception of the communications of [a Canadian citizen, permanent resident or corporation],... except insofar as those communications may be incidentally intercepted through the exercise of warrant powers in relation to the communications of [a foreign state or group of foreign states, corporation or person]." National Security - Topic 2208 Investigation of security threats - Judicial control - Warrants - General - [See Statutes - Topic 2614]. Statutes - Topic 1449 Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - [See Statutes - Topic 2614]. Statutes - Topic 1450 Interpretation - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - [See Statutes - Topic 2614]. Statutes - Topic 1803 Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See Statutes - Topic 2614]. Statutes - Topic 2407 Interpretation - Interpretation of words and phrases - By context - [See Statutes - Topic

2 2614]. Statutes - Topic 2603 context) - Intention from whole of section or statute - [See Statutes - Topic 2614]. Statutes - Topic 2614 context) - Legislative or statutory context - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought Cases Noticed: R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 29]. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 46]. Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 46]. Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 47]. Montreal (City) v Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 49]. Felipa v. Canada (Minister of Citizenship and Immigration), (2011), 422 N.R. 288; 2011 FCA 272, refd to. [para. 50]. R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 50]. Hill v. Hill (William) (Park Lane) Ltd., [1949] A.C. 530 (H.L.), refd to. [para. 95]. Statutes Noticed: Canadian Security Intelligence Services Act, R.S.C. 1985, c. C-25, sect. 16 [para. 14]; sect. 21(2)(d) [para. 26]. Authors and Works Noticed: Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 210 [para. 95].

3 Counsel: Charles Murray, for the applicant; Colin Baxter, amicus curiae. Solicitors of Record: William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant; Cavanagh Williams Conway Baxter LLP, Ottawa, Ontario, as amicus curiae. This application was heard at Ottawa, Ontario, before Mactavish, J., of the Federal Court, who delivered the following order and public reasons for order, dated December 6, Editor: E. Joanne Oley Order accordingly. National Security - Topic 2208 Investigation of security threats - Judicial control - Warrants - General - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought here. As a consequence, I am satisfied that I do not have the jurisdiction to issue warrants authorizing the Service to intentionally intercept the communications of, or utilize other intrusive investigative techniques in relation to [a Canadian citizen, permanent resident or corporation]" - The court's interpretation of s. 16(2) was confirmed when regard was had to the French version, and was further borne out when regard was had to the legislative history of Bill C-9 (introduced in 1984), incorporating almost all of the changes that had been recommended by the Report of the Special Senate Committee - One of those changes was the addition of the prohibition contained in s. 16(2) - See paragraphs 84 to Statutes - Topic 1449 Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought

4 Statutes - Topic 1450 Interpretation - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought here. As a consequence, I am satisfied that I do not have the jurisdiction to issue warrants Statutes - Topic 1803 Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought Statutes - Topic 2407 Interpretation - Interpretation of words and phrases - By context - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a

5 target of the warrants sought here. As a consequence, I am satisfied that I do not have the jurisdiction to issue warrants authorizing the Service to intentionally intercept the communications of, or utilize other intrusive investigative techniques in relation to [a Canadian citizen, permanent resident or corporation]" - The court's interpretation of s. 16(2) was confirmed when regard was had to the French version, and was further borne out when regard was had to the legislative history of Bill C-9 (introduced in 1984), incorporating almost all of the changes that had been recommended by the Report of the Special Senate Committee - One of those changes was the addition of the prohibition contained in s. 16(2) - See paragraphs 84 to Statutes - Topic 2603 context) - Intention from whole of section or statute - The Federal Court stated that s. 16(2) of the Canadian Security Intelligence Services Act, properly interpreted, "clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought