Watch: Surveillance of Threats

AuthorCraig Forcese; Kent Roach
Watch: Surveillance of Threats
In March , a jury found Chiheb Essegha ier and Raed Jaser guilt y 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 t hat “[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 warra nt is usually what makes a
search reasonable and ensures that evidence obtained from it can be used in
a criminal tria l.
Police need evidence — not a lot, but some — to obtain one of these
wiretap permissions in the rst place. And in the VI A Rail investigation,
a superior court judge authorized the police intercepts on the strength of
evidence drawn from two sur veillance wiretap warrants earlier issued by the
Federal Court to CSIS and al lowing that agency to eavesdrop. CSIS does its
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–authoriz ed wire-
taps to the RCMP through what are known as “advisory letters.” ese let-
ters are careful ly scribed and formal disclosures of CSIS information that
police can then use for criminal investigation purposes. A nd 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 t he 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 a nd 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 R ail trial, defence law yers 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. A nd this could well knock t he
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 unusua l) negotiation
between CSIS, the prosecutors, and the criminal trial judge about which
portions of this CSIS material could be disclosed to the defence without

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