X, Re, 2009 FC 1058

JudgeMosley, J.
CourtFederal Court (Canada)
Case DateOctober 05, 2009
JurisdictionCanada (Federal)
Citations2009 FC 1058;(2009), 356 F.T.R. 32 (FC)

X, Re (2009), 356 F.T.R. 32 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. OC.033

In The Matter Of an application by X for a warrant pursuant to sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23;

And In The Matter Of X

(CSIS-30-08; 2009 FC 1058)

Indexed As: X, Re

Federal Court

Mosley, J.

October 5, 2009.

Summary:

On November 27, 2008, the Federal Court issued warrants pursuant to ss. 12 and 21 of the Canadian Security Intelligence Service Act respecting the activities of two Canadian citizens whose activities, on reasonable grounds, were believed to constitute threats to the security of Canada. The warrants authorized the use of intrusive investigative techniques and information collection at locations within Canada for one year. On January 24, 2009, an application was filed on urgent grounds seeking the issuance of an additional warrant against the same two individuals respecting newly identified threat-related activities. This application differed from the November 2008 application in that it pertained to threat-related activities which, it was believed, the two individuals would engage in while travelling outside of Canada. At issue was whether the court had jurisdiction to authorize acts by the Canadian Security Intelligence Service in this country which entailed listening to communications and collecting information obtained from abroad.

The Federal Court allowed the application. The court held that what had been proposed in the present warrant did not constitute the enforcement of Canada's laws abroad, but rather the exercise of jurisdiction here relating to the protection of Canada's security.

Civil Rights - Topic 1445

Security of the person - Right to privacy - Surreptitious voice recording, data interception, etc. - This was an application for a warrant pursuant to ss. 12 and 21 of the Canadian Security Intelligence Service Act - At issue was whether the court had jurisdiction to authorize acts by the Canadian Security Intelligence Service in this country which entailed listening to communications and collecting information obtained from abroad, with assistance from the Communications Security Establishment - The Federal Court held that it had jurisdiction - Every activity that affected the ability to intercept would take place in Canada - In the present context, the interceptions for which the authorization was granted would take place at the locations within Canada where the calls would be acquired, listened to and recorded - A seizure, within Canada, of information in which the holder had a reasonable expectation of privacy invoked s. 8 of the Charter - Here, there were ample grounds for interfering with the privacy interests of the individuals concerned and no issue arose as to whether the collection of the information would breach their Charter rights to protection against unreasonable search and seizure - The question was whether the court could authorize such action in Canada knowing that the collection of such information in a foreign country might violate that state's territorial sovereignty - The court held that what had been proposed in the present warrant did not constitute the enforcement of Canada's laws abroad, but rather the exercise of jurisdiction here relating to the protection of Canada's security.

Civil Rights - Topic 1445

Security of the person - Right to privacy - Surreptitious voice recording, data interception, etc. - At issue was whether the court had jurisdiction to authorize acts by the Canadian Security Intelligence Service (CSIS) in this country which entailed listening to communications and collecting information obtained from abroad, with the assistance of the Communications Security Establishment (CSE) - The Federal Court stated that "Canada has given CSE a mandate to collect foreign intelligence including information from communications and information technology systems and networks abroad. It is restricted as a matter of legislative policy from directing its activities against Canadians or at any person within Canada, but it is not constrained from providing assistance to security and law enforcement agencies acting under lawful authority such as a judicial warrant. CSIS is authorized to collect threat-related information about Canadian persons and others and, as discussed above, is not subject to a territorial limitation. Where the statutory prerequisites of a warrant are met, including prior judicial review, reasonable grounds and particularization of the targets, the collection of the information by CSIS with CSE assistance, as proposed, falls within the legislative scheme approved by Parliament and does not offend the Charter." - See paragraphs 75 and 76.

International Law - Topic 2255

Sovereignty - Incidents of - Jurisdiction - Extraterritorial jurisdiction - [See both Civil Rights - Topic 1445 ].

National Security - Topic 2213

Investigation of security threats - Judicial control - Warrants - Territorial limitations - [See both Civil Rights - Topic 1445 ].

Telecommunications - Topic 5204

Search and seizure - General - Unreasonable search and seizure - [See first Civil Rights - Topic 1445 ].

Cases Noticed:

Canadian Security Intelligence Service Act, Re (2007), 356 F.T.R. 56; 2008 FC 301, dist. [para. 3].

Canadian Security Intelligence Service Act, Re (2006), 358 F.T.R. 1; 2008 FC 300, refd to. [para. 6].

R. v. Hape (L.R.), [2007] S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 9].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 13].

Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al. (2008), 320 F.T.R. 257; 2008 FC 336, affd. (2008), 383 N.R. 268; 2008 FCA 401, refd to. [para. 19].

R. v. McQueen (1975), 25 C.C.C.(2d) 262 (Alta. C.A.), refd to. [para. 45].

R. v. Giles (D.F.), [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 45].

R. v. Taylor (S.D.) (1997), 86 B.C.A.C. 224; 142 W.A.C. 224 (C.A.), affd. [1998] 1 S.C.R. 26; 221 N.R. 280; 100 B.C.A.C. 319; 163 W.A.C. 319, refd to. [para. 51].

R. v. Taillefer (1995), 100 C.C.C.(3d) 1 (Que. C.A.), refd to. [para. 51].

United States of America v. Denman (1996), 100 F.3d 399 (5th Cir.), refd to. [para. 53].

United States of America v. Rodriguez (1992), 968 F.2d 130 (2nd Cir.), refd to. [para. 53].

United States of America v. Luong (2006), 471 F.3d 1107 (9th Cir.), refd to. [para. 53].

United States of America v. Ramirez (1997), 112 F.3d 849 (7th Cir.), refd to. [para. 53].

United States of America v. Jackson (2000), 471 F.3d 910 (7th Cir.), refd to. [para. 53].

United States of America v. Tavarez (1994), 40 F.3d 1136 (10th Cir.), refd to. [para. 53].

People v. Perez, 848 N.Y.S.2d 525 (Sup. Ct.), refd to. [para. 53].

Castillo v. Texas (1990), 810 S.W.2d 180 (Tex. Ct. Crim. App.), refd to. [para. 53].

eBay Canada Ltd. et al. v. Minister of National Revenue (2008), 382 N.R. 261; 2008 FCA 348, refd to. [para. 65].

Sealed Case, In re (2002), 310 F.3d 717 (U.S.F.I.S.C.), refd to. [para. 77].

Statutes Noticed:

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 12, sect. 21 [Annex A].

Convention on Cybercrime (2004), C.E.T.S. 185, generally [para. 68].

Authors and Works Noticed:

Currie, John H., Public International Law (2008), p. 332 ff. [para. 67].

Goldsmith, Jack, The Internet and the Legitimacy of Remote Cross-Border Searches, 2001 U. Chi. Legal F. 103, generally [para. 74].

Wilskie, Stephan, International Jurisdiction in Cyberspace: Which States may Regulate the Internet?, 50 Fed. Commun. L.J. 117, generally [para. 69].

Counsel:

Not disclosed.

Solicitors of Record:

Not disclosed.

This application was heard by Mosley, J., of the Federal Court, who delivered the following redacted reasons for judgment on October 5, 2009.

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