This opinion by The Honorable Justice Mosley concerns warrants that he issued starting in January 2009 (“the 30-08 warrants”), authorizing the Canadian counterpart of the NSA and GCHQ, the Communications Security Establishment Canada (“CSEC”), to assist the Canadian Security Intelligence Service (“CSIS”) by intercepting the foreign telecommunications of Canadians from within Canada. After an expurgated version of the CSEC Commissioner’s Annual Report for 2012-2013 was released to the public in August 2013, the judge conducted hearings and requested information from the CSIS and CSEC on the manner of executing the 30-08 warrants. On this basis, he learned that beginning in May 2009, the CSEC standardly requested that the Five Eyes partners (i.e., the US, UK, Australia and New Zealand) assist it by conducting surveillance on Canadians overseas.
Justice Mosley found that “the exercise of the Court’s warrant issuing authority has been used as protective cover for activities that it has not authorized,” and ordered CSIS and CSEC’s use of the Five Eyes to spy on Canadians to end. Para. 110. “It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the Service [the CSIS] either directly or though the assistance of CSEC.” Para. 125.
In issuing these rulings, Justice Mosley reasoned that paragraph 273.64 of the National Defence Act prohibits the CSEC from targeting anyone in Canada or Canadians wherever located for surveillance, except when it is assisting federal or security agencies in the performance of their lawful duties. The judge then held that the performance of CSIS’ lawful duties could not encompass enlisting (or having the CSEC enlist) the Five Eyes partners to surveil on Canadians overseas. To reach this holding, he reasoned that “the principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin.” Para. 105. He then found that the provisions for warrantless surveillance in FISA Section 1881a were an instance of “the violation of foreign sovereignty in [a] manner … contrary to the principles of customary international law.” Para. 102. More generally, “[i]n tasking the other members of the ‘Five Eyes’ to intercept the communications of Canadian targets, CSIS and CSEC knew … that this would involve the breach of international law by the requested second parties.” Para. 105. In addition, Justice Mosley relied on the 2012-2013 reports of the CSEC Commissioner and the Security Intelligence Review Committee to find that CSIS and CSEC’s use of the Five Eyes partners to execute the 30-08 warrants created an unlawful risk of human rights violations. “[T]he ability of a Five Eyes partner to act independently on CSIS originated information carries the risk of detention of or other harm to a Canadian person based on that information. … Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several Royal Commissions there can be no question that the Canadian agencies are aware of those hazards.” Para. 115.
Furthermore, Justice Mosley held that CSIS had breached “the duty of full and frank disclosure in an ex parte proceeding” through “a deliberate decision to keep the Court in the dark about the scope and extent of foreign collection efforts that would flow from the Court’s issuance of a warrant.” Paras. 82, 117.