This is the first civil challenge to surveillance by the CSEC. The British Columbia Civil Liberties Association (“BCCLA”) challenges the power that the National Defence Act, section 273.65(2) and 273.68 grants the Minister of National Defence’s (“the Minister”) to authorize the CSEC to intercept Canadians’ “private communications” for foreign intelligence purposes when the “interception is directed at foreign entities.” Also challenged are the Collection and Use of Metadata Ministerial Directives (“the Directives”), issued by the Minister in 2005 and re-issued in 2011, and used to authorize the CSEC to collect, analyze, and use metadata on Canadians’ telephone and Internet communications.
The BCCLA claims that these provisions infringe on the right against unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) by empowering the Minister to authorize the CSEC to collect, analyze and use communications and metadata without prior judicial review. S.8 is also infringed because the authorizations are issued without “application of the reasonable and probable grounds standard, or, in the alternative … any clear and articulable grounds standard,” without “restriction on the breadth of communications to be collected,” and without “a reasonable time limit.” Notice of Civil Claim, paras. 36, 38. BCCLA states that “CSEC shares information it collects or acquires with foreign intelligence entities in the United States, the United Kingdom, New Zealand and Australia,” and claims that the absence of a prohibition against “the distribution and use of private communications [and metadata] to entities or authorities outside of Canada” infringes on s.8. Paras. 19, 36, 38. In addition, the collection, analysis and use of metadata infringes on s. 8 because “CSEC’s collection, analysis, retention and/or use of metadata under the Directives is not authorized by law.” Para. 38.
Further, BCCLA contends that the challenged provisions infringe on the “freedom of thought, belief, opinion and expression” in s. 2b of the Charter. BCCLA seeks a declaration that the infringements on ss. 2b and 8 violate the Charter because they do not meet s.1’s requirement that any restrictions on Charter rights and freedoms be “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Canadian government filed a statement of defence in January 2014.