Judge denies CSIS request to collect foreign intelligence

OTTAWA — A court has put the brakes on a Canadian Security Intelligence Service request to collect foreign information, ruling a proposed technique would stray beyond the spy service’s legal mandate.

The service was seeking court warrants so it could gather intelligence in other countries, from a location inside Canada, to at the request of an unnamed federal minister.

The spy service is allowed to collect information about threats to national security anywhere in the world, but there are limits on gathering intelligence unrelated to security outside Canada.

Section 16 of the CSIS Act allows the service to collect, within Canada, foreign intelligence relating to the capabilities, intentions or activities of any foreign state, as long as the information-gathering is not aimed at Canadians.

The court has previously noted that Parliament imposed the “within Canada” requirement because collecting intelligence in other countries could harm Canada’s international relations.

In a newly released decision, Federal Court Justice Patrick Gleeson found the service’s proposed use of investigative powers did not meet the “within Canada” requirement of the law.

Gleeson delivered the decision last July but a public version with many passages blacked out was only released Wednesday.

CSIS spokesman John Townsend said federal lawyers have filed an appeal on specific questions relating to the interpretation of the service’s authority to collect foreign intelligence in support of the defence and foreign-affairs ministers.

“The collection of select foreign intelligence is crucial for the conduct of the affairs of the government of Canada and our national security interests,” Townsend said.

“It supports a broad range of priorities, including key foreign-policy issues and national defence.”

The redactions to the ruling mean the proposed CSIS method in question, the information sought and the specific foreign countries are not publicly known.

Federal lawyers acknowledged that the information CSIS sought may be outside of Canada’s borders, but nonetheless argued that the proposed method of collection occurs “within Canada” as the term is used in the law.

However, two lawyers hired to assist the court with the file disagreed, saying the method cannot be properly characterized as occurring within Canada. In addition, even if it could, the method is contrary to foreign and international law, they told the court.

In turning down the warrant request, Gleeson pointed to a previous ruling that said Parliament did not intend CSIS’s limited foreign-intelligence mandate to open the door to covert intelligence operations abroad.

Such operations, the Federal Court found in an earlier case, had the potential to breach international law and the domestic laws of other countries as well as tarnish Canada’s reputation.

“The authority Parliament has granted the service to engage in intrusive activity in furtherance of its duties is limited and controlled,” Gleeson wrote in the latest decision.

He added the method proposed by CSIS “involves significant activity outside of Canada, activity that is both legally relevant and that invites the risks Parliament has sought to mitigate.”

This report by The Canadian Press was first published Feb. 3, 2021.

Jim Bronskill, The Canadian Press