Watch: Surveillance of Threats

• Author: Craig Forcese; Kent Roach
• Pages: 115-138

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CHAPTER FOUR

Watch: Surveillance of Threats

I. INTRODUCTION

Crime

In March , a jury found Chiheb Esseghaier and Raed Jaser guilty of a ter-

rorist plot to destroy or derail a VIA R ail train between Toronto and New York.

A substantial part of the evidence against the men — both non-Canadians

living in Canada — stemmed from secretly recorded conversations they had

held with an undercover FBI agent, often in person. Crown evidence in the

case also relied heavi ly on evidence from what is known as a “Part V I” Crim-

inal Code wiretap, which allows police to intercept “private communications”

— often telecommunications. Absent the judicial wiretap authorization, po-

lice intercepts would be a crime. ey would also infringe section  of the

Canadian Charter of Rights and Freedoms, which guarantees that “[e]veryone

has the right to be secure against unreasonable search or seizure.” Where

this standard is violated, police generally cannot rely on the fruits of their

surveillance in court. A duly authorized warrant is usually what makes a

search reasonable and ensures that evidence obtained from it can be used in

a criminal trial.

Police need evidence — not a lot, but some — to obtain one of these

wiretap permissions in the rst place. And in the VIA Rail investigation,

a superior court judge authorized the police intercepts on the strength of

evidence drawn from two surveillance wiretap warrants earlier issued by the

Federal Court to CSIS and allowing that agency to eavesdrop. CSIS does its

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own spying — not to catch criminals but to investigate “threats to the secur-

ity of Canada,” a broadly dened understanding of national security found

in the Canadian Security Intelligence Service Act. Under that statute, CSIS

must seek warrants for sur veillance where on “reasonable grounds” it believes

that a warrant is required to investi gate security threats — in other words, in

circumstances where absent the warrant CSIS would violate the reasonable

expectation of privacy protected by section  of the Charter.

CSIS conveyed information from the Federal Court–authorized wire-

taps to the RCMP through what are known as “advisory letters.” ese let-

ters are carefully scribed and formal disclosures of CSIS information that

police can then use for criminal investigation purposes. And police used the

material from the advisory letter to obtain their Part VI warrant.

e defence counsel knew all of this because police investigative war-

rants and their supporting information are disclosed in the course of a crim-

inal prosecution. And, indeed, even without a crimina l trial, the existence of

Part VI surveillance needs to be shared with the target after the end of an

investigation and the passage of time.

But CSIS itself needed evidence — not a lot, but some — to persuade

the Federal Court to issue its earlier warrants. And some of the supporting

material used by CSIS — its core adavit or sworn statement — to obtain

its own warrants was not conveyed to the police as pa rt of the advisory letter.

CSIS guards against sharing its sources and methods even to the police for

fear that those sources and methods will be disclosed to the accused under

the broad disclosure obligations that apply in Canadian criminal trials. And

so, as intended, the police were not able to give this adavit document to

the defence.

In the VIA Rail trial, defence lawyers sought the underlying CSIS a-

davit. ey wanted to see if, in obtaining its own warrants, CSIS had been

suciently forthcoming with the Federal C ourt. If the defence lawyers could

show that the CSIS warrants had been improperly obtained, then the Part

VI police wiretap t hat depended on the CSIS surveillance information might

itself be invalid for constitutional reasons. And this could well knock the

police intercepts out of the trial. In other words, CSIS’s intelligence war-

rant played a foundational role in the criminal trial, illustrating t hat “intelli-

gence” and “evidence” are not watertight compartments.

But CSIS did not want to disclose to the defence the full content of its

adavit presumably because it would betray information on CSIS’s sensi-

tive sources or methods. e result was a delicate (and unusual) negotiation

between CSIS, the prosecutors, and the criminal trial judge about which

portions of this CSIS material could be disclosed to the defence without