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AuthorCraig Forcese/Leah West
Pages458-511
458
CH AP TER 11
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The sharing of information between and within states is among the
most sensitive and controversial intell igence issues in the post-9/11
era. Too much information sharing was at the hear t, for example, of
the events examined in the 2003–2006 commission of inquiry into the
treatment of Maher Arar. There, the RCMP’s ill-considered provision
of raw information to American authorities, along with sensational ist
commentary on the putative aliation of Mr Arar and his wi fe, Monia
Mazigh, with al Qaeda, was the likely cause of Arar’s rendition by the
United States to Syria, where the Syrian security ser vice tortured him.
Further, as Dennis O’Connor JA repeatedly underscored in h is report,
“the RCMP provided American authorities w ith information about Mr.
Arar without attaching w ritten caveats, as required by RCMP policy,
thereby increasing t he risk that the informat ion would be used for pur-
poses of which the RCMP would not approve, such as sending Mr. Arar
to Syria.”1 Although critical of the performance of the RCMP on the
specif‌ics of the Arar case, O’Connor JA nevertheless underscored the
importance of internat ional information sharing to national security.2
1 Commission of In quiry into the Actions of Ca nadian Ocials in R elation to
Maher Arar, Report of the Events Relating to Maher Arar: An alysis and Recommen-
dations (Ottawa: Publ ic Works and Govern ment Services Canad a, 2006) at 13
[Arar Inquir y, Factual Report].
2 Ibid at 22.
Share 459
That is because too little in formation-sharing has f‌ig ured in
many “intelligence failures.” In 1985, James Bartleman was the head
of the intelligence division at what was t hen the Canadian Depart-
ment of External Aairs. He later testif‌ied that he had received a secret
Communicat ions Secur ity Establi shment document i ndicating t hat
Khalistan extremists were ta rgeting Air India Flight 182. On 23 June
1985, a bomb exploded while Flight 182 was in mid-f‌light, killing 329
passengers and crew. Another bomb destined for an Air Ind ia f‌light
killed two baggage handlers in Tokyo.
Bartleman’s recollection — f‌iercely resisted by the government at the
commission of inquiry that followed decades later was, in the words
of that inquiry ’s head, “credible.” More than that, there were other
documents “that should have led the Government to have anticipated
the bombing of Flight 182 and to have acted to put in place security
precautions to minimi ze the risk.”3 Justice John Major, the commis-
sioner, concluded that “there was enough information in the hands of
various Canadi an authorities to make it inexcusable that the system
was unable to process that information correctly and ensure th at there
were adequate security measures in place to deal with the threat.”4 The
facts of which the government was aware cre ated “a mosaic of informa-
tion which clearly identif‌ied a particularised threat to Air India for the
month of June 1985. This constellation of factors should have compelled
the Government to tailor and implement secur ity measures to meet this
identif‌ied th reat.5 In other words, the government had enough pieces of
the puzzle, but failed to put them together.
The obvious policy challenge, therefore, lies in bal ancing too much
information-shari ng with too little. Increasingly, achieving that bal-
ance is a legal exercise. This ch apter reviews the rules and pri nciples
governing information shar ing at both the international a nd domes-
tic level. It examines information sharing between states a nd then
information sharing within Canada. It sta rts, however, with a review
of background legal preoccupations shaping both ty pes of sharing:
the Canadian Ch arter of Rights and Freedoms and the Privacy Act. We
also introduce a collateral concept, als o discussed in Chapter 16: the
“intelligence- to- evidence” dilemma.
3 Commission of Inqu iry into the Investigat ion of the Bombing of Air India Flight
182, Air India Flight 182: A Canadian Tragedy — The Overview, vol 1 (Ottawa:
Public Works, 2010) at 26 [Air India Inquiry].
4 Ibid.
5 Ibid.
NATIONAL SECUR ITY LAW460
PART I: GENER AL LEGAL CONSIDER ATIONS
A. CONST ITU TION AL PR INCIPLES
Section 8 of the Charter protects against “unreasonable search or sei z-
ure.” As discussed in Chapter 10, section 8 applies to information in
which a person has a reasonable expectation of privacy a norma-
tive concept whose precise scope is fact dependent and can be d icult
to predict in advance. An invasion of this privacy interest generally
requires pre-authorization by an independent judicial ocer, typically
in the form of a warrant. Warrantless searches and sei zures are pre-
sumptively unconstitutional but are perm issible in narrow circum-
stances if authorized by a reasonable law and conducted reasonably.6
Section 8 requirements apply to search and seizures carr ied out by
police and CSIS.7 Section 8 may not, however, apply in the same way to
regulatory or other bodies acquiring information for other lawful pur-
poses. For instance, privacy expectations are more rudiment ary (and
warrantles s searches more permissible) where the state acquires infor-
mation to ensure regulator y compliance rather than prosecute crimin al
acts.8
1) Sharing as an “End-Run” Around the Charter
Section 8 protections would diminish if the regulatory arm of govern-
ment could share information acquired war rantlessly with police and
intelligence agencies who require a warrant to obtain the same infor-
mation. Law enforcement (and intelligence services) conducting their
investigations cannot, therefore, piggyback on an ongoing regulatory
investigation and avoid warrant requirement s through information-
shari ng.9 A wrinkle in this statement concerns regulatory a nd police
6 For a recent overview of these pr inciples, see R v Reeves, 2018 SCC 56 at para 11
et seq.
7 X (R e), 2017 FC 1047 at para 165 et seq.
8 See, for example, Comité paritaire de l’indust rie de la chemise v Potash, [1994] 2
9 R v Cole, 2012 SCC 53 at para 67 (“The fact that the school b oard had acquired
lawful po ssession of the laptop for its own ad ministrative pur poses did not vest
in the police a delegate d or derivative power to appropriate and s earch the com-
puter for the purpos es of a criminal inve stigation.”); R v Colarusso, [1994] 1 SCR
20 at 90. (“[A] seizure by a corone r will only be reasonable wh ile the evidence is
used for the purp ose for which it was seized, na mely, for determinin g whether
an inquest into t he death of the individual i s warranted. Once the ev idence has

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