Canada's Legal Framework For Intelligence

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International Journal of Intelligence and

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Canada's Legal Framework for

Intelligence
Stéphane Lefebvre
Published online: 25 Feb 2010.
To cite this article: Stéphane Lefebvre (2010) Canada's Legal Framework for Intelligence,
International Journal of Intelligence and CounterIntelligence, 23:2, 247-295, DOI:
10.1080/08850600903347137
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International Journal of Intelligence and CounterIntelligence, 23: 247–295, 2010
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DOI: 10.1080/08850600903347137
STÉPHANE LEFEBVRE
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Canada’s Legal Framework

for Intelligence
The Government of Canada has the responsibility to provide for the safety
and security of its citizens and permanent residents, and its Parliament the
legislative authority to make ‘‘Laws for the Peace, Order, and good
Government of Canada.’’1 In fulfilling their duties in the interest of the
greater collectivity, the Government and Parliament may affect the rights
of the individual citizen. This is why the rule of law, 2 enshrined in
common law and the Canadian Charter of Rights and Freedoms impose
restraints on the executive and legislative powers of the state. While
‘‘everyone has the right to life, liberty and security of the person,’’
everyone also has the right ‘‘not to be deprived thereof except in
accordance with the principles of fundamental justice.’’ 3 The intrusive
nature of intelligence gathering is such that a democratic state founded
upon principles that recognize the rule of law must impose adequate
restraint on the intelligence activities of its government. As Canada’s
Supreme Court has recognized, ‘‘the restraints imposed on government
from prying into the lives of the citizen go to the essence of a democratic
state.’’ Privacy, therefore, ‘‘is at the heart of liberty in a modern state.’’
But claims to privacy, although vaguely defined, must ‘‘be balanced
Stéphane Lefebvre is Section Head—Strategic Analysis at the Centre for

Operational Research and Analysis (CORA), Defence Research and
Development Canada (DRDC), Ottawa. He has written extensively on
intelligence and security issues. The views expressed in this article are his
own and do not necessarily reflect the official position of the government of
Canada or any of its departments and agencies. An earlier version of this
article was presented at the International Studies Association’s 50th Annual
Convention in New York City on 16 February 2009.
AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2 247

248 STEŁPHANE LEFEBVRE
against other societal needs, and in particular law enforcement, and that is
what s.84 is intended to achieve.’’5
In matters of national security, Canadian courts have usually shown
deference to the executive branch because, as Supreme Court Justice Ian
Binnie publicl y noted, security age nci es ‘‘have more e xper tise ,
information and resources on such matters than the courts.’’ 6 In the
post–11 September 2001 (9=11) context, deference to the executive in the
fight against terrorism initially appeared to predominate, especially with
the rapid adoption of a major piece of legislation, the omnibus
Anti-Terrorism Act, in December 2001. The courts have remained fully

independent, however, and have set limits to the deference they have
usually shown, for example by striking down as unconstitutional
provisions brought into law by the Anti-Terrorism Act. In this regard, the
Supreme Court plays a key role in the interpretation and application of
the rule of law, and, since the adoption as part of Canada’s Constitution
of the Canadian Charter of Rights and Freedom in 1981, the protection of
individual rights. In fact, Supreme Court Justices have had a significant
margin of maneuver in deciding the extent to which individual rights shall
be restricted for the benefit of the collective rights that national security
law is intended to protect. Interestingly, in a September 2004 poll, 64
percent of those Canadians polled agreed that more emphasis should be
placed on protecting public security than guaranteeing civil liberties,
whereas 32 percent gave more emphasis to guaranteeing civil liberties. 7
Context, therefore, does matter and influences the balancing between
collective and individual rights.8
In today’s context, the Intelligence Community is expected to conduct its
activities in a lawful manner, and in a way that would protect the rights
and liberties enjoyed by all Canadians. Specific pieces of legislation,
Officers of Parliament, review bodies, executive controls, and the public
each play a role in making the nation’s intelligence agencies account for
their activities. Although each of these mechanisms varies in its
effectiveness, and even in its interest for intelligence matters, together they
represent a major improvement over the state of Canada’s legal framework
for intelligence that existed prior to 1984, when the Canadian Security
Intelligence Service Act created the Canadian Security Intelligence Service
(CSIS). For most of the Cold War period, Canadian intelligence activities
were largely conducted in secrecy, and the monopoly of the executive
branch. As Professor Reg Whitaker has noted, ‘‘the security of the state
and order in the community normally took precedence over individuals
and group rights.’’9
Until the CSIS came onto the scene, the security intelligence function
was the responsibility of Canada’s national police, the Royal Canadian
Mounted Police (RCMP). The RCMP had few restrictions, other than
INTERNATIONAL JOURNAL OF INTELLIGENCE

CANADA’S LEGAL FRAMEWORK FOR INTELLIGENCE 249
provisions of the Criminal Code and internal policies, in the manner in

which its gathered intelligence. After a Royal Commission in 1966
looked into RCMP practices related to subversion and the granting
of security clearances and recommended the creation of a civilian
intelligence organization separate from the RCMP, small steps were
eventually taken to clarify the RCMP’s mandate with respect to
intelligence-related investigations. In 1974, the Official Secrets Act
was amended to require the RCMP to seek the authorization of the
Solicitor General of Canada before intercepting or seizing
communications related to subversive activities or for the ‘‘purpose of

gathering foreign intelligence information essential to the security of
Canada.’’10 A year later, the Cabinet issued guidelines for the activities
of the RCMP Security Service, which contained a clearer mandate.11 In
1984, when the RCMP Security Service was disbanded and the majority
of its officers joined the new CSIS, the RCMP was given responsibility,
under the new Security Offences Act, over national security law
enforcement. Intelligence, therefore, was collected only to support law
enforcement activities. After 9=11, the RCMP increased its involvement
in national security law enforcement, but the manner in which it
used the intelligence it had received from the CSIS led to a commission
of inquiry.
Foreign intelligence was also an area of intense activity throughout the
Cold War and after. Besides the military intelligence activities which fell
under the purview of the Canadian armed forces, and were focused on the
intentions and capabilities of foreign militaries, Canada also had, and still
has, a signals intelligence organization, but its very existence was not
publicly acknowledged by the government until 1983. Unsurprisingly,
therefore, it did not have a legislated mandate until amendments to the
National Defence Act were made in December 2001 as part of the
Anti-Terrorism Act. From a legal point of view, foreign intelligence
activities have rarely been a source of major debate or concern, in the
belief that they were not interfering much or even at all with the lives of
Canadians. Domestic intelligence activities, by their very nature, were more
problematic at times and the sources of periodic scandals. For the most
part, however, the focus of these activities was on Soviet bloc espionage
and foreign interference, and did not affect the lives of Canadians as much
as did their focus on subversion.
Beyond the core agencies (security intelligence, military intelligence, and
signals intelligence), Canada’s Intelligence Community today encompasses
a wide array of organizations that are part of federal departments or
agencies, as well as an independent agency—the Financial Transactions
and Reports Analysis Centre (FINTRAC)—Canada’s financial intelligence
organization, which reports to the Minister of Finance. The mandate and
AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

legislation applicable to each are detailed in the 2006 report of the

Commission of Inquiry into the Actions of Canadian Officials in Relation
to Maher Arar, titled A New Review Mechanism for the RCMP’s National
Security Activities (Ottawa: Public Works and Government Services
Canada, 2006), and will not be discussed here. The complexity of Canada’s
legal system, and the absence of legislation covering the Intelligence
Community as a whole, have compelled me to limit my discussion to those
laws and court decisions most impacting the core agencies, and the balance
between collective and individual rights with respect to the government’s
effort to protect everyone’s right to life, liberty, and security of the person.
I also pay close attention to the legal mechanisms in place to protect
intelligence from unauthorized disclosure.
THE LEGAL FRAMEWORK FOR INTELLIGENCE

IN CANADA: CURRENT ISSUES
The legal framework governing the various components of Canada’s
Intelligence Community (IC) has significantly evolved since the Canadian
Charter of Rights and Freedom was incorporated into the Constitution in
1981. Whereas most of the decisions regarding the organization, powers,
and mandate of each component were within the executive prerogative of
the government and administrative in nature, issued for example as
orders-in-council under the authority of the Governor General and at the
request of the federal Cabinet,12 these decisions, with respect to the core
components, are now subject to enabling legislation and an increasingly
substantial body of jurisprudence from the courts. The governance
framework atop the Community remains, however, within the executive
prerogative of the government. The intelligence priorities of the
government, for example, are set by a Privy Council Office 13 –chaired
committee,14 and approved annually by the Cabinet’s Ad Hoc Committee
on Intelligence Priorities (formerly the Meeting of Ministers on Security
and Intelligence), which is chaired by the Prime Minister.15 The intent to
appoint Canada’s first National Security Advisor (NSA) to the Prime
Minister was annouced in April 2004 in the much publicized National
Security Policy. 16 The NSA is appointed by order-in-council on the
recommendation of the Prime Minister, pursuant to paragraph 127.1(1)(a)
of the Public Service Employment Act. 17 A Deputy National Security
Advisor to the Prime Minister is similarly appointed. The National
Security Advisor (concurrently double-hatted as Associate Secretary to
the Cabinet) provides the Prime Minister with advice and
recommendations and
ensures the effective coordination of Canada’s security and intelligence
community and, together with the Deputy Minister of National

Defence, is responsible for the Communications Security Establishment.

The National Security Advisor also oversees the provision of intelligence
assessments to the Prime Minister, other ministers and senior government
officials.18
The NSA chairs the Deputy Minister Committee on National Security

and is co-responsible, with the Foreign and Defence Policy Advisor to
the Prime Minister, for the effective operation of the Cabinet Committee
for Foreign Affairs and Security (FAS), 19 which ‘‘considers foreign
affairs, international development, public and national security, and

defence policy issues.’’20 The NSA is assisted in these functions by two
Privy Council Office secretariats—Security and Intelligence (S&I) and the
International Assessments Staff (IAS)—and the Assistant Secretary to the
Cabinet (Security and Intelligence), all reporting through the Foreign and
Defence Policy Advisor. The Assistant Secretary, supported by three
divisions—Security and Intelligence Operations; Strategic Policy and
Planning; and Security Operations—‘‘provides overall coordination and
direction on security and intelligence issues.’’21 The IAS, which assesses
foreign political and economic developments and trends of interest to
Canada, coordinates the overall international assessment effort of the
Intelligence Community and acts as the secretariat to the Intelligence
Assessment Coordinating Committee (IACC).22 In 2007, the
then–Executive Director of the IAS, Gregory Fyfe, explained the role of
IACC as follows:
The IAS chairs the Intelligence Assessment Coordinating Committee.

This committee replaced the former Intelligence Assessment
Committee, which focused almost entirely on the discussion of
community assessments. The IACC focuses much more on community
coordination issues, although I expect the number of community
assessments will gradually increase in keeping with our own experience
and with allied experience.
As part of the IACC structure, there are subject matter committees
comprised of analytical experts from across the community. These
committees are often, but not always, chaired by an IAS director or
analyst and are a means of bringing the collective knowledge of the
community into the preparation of assessments.23
The NSA’s coordination of Canada’s security and intelligence community,

noted above as part of his functions, is of a strategic nature; it does not in
general extend, for example, to the day-to-day management of all-source
intelligence gathering and surveillance, which are more operational and
tactical in nature than strategic. Furthermore, the Minister responsible for
CSIS and the RCMP, namely the Minister of Public Safety, also has
responsibility for the coordination of the activities of the agencies under

his purview. Under section 5 of the Department of Public Safety and

Emergency Preparedness Act,
The Minister shall coordinate the activities of the entities for which the
Minister is responsible, including the Royal Canadian Mounted Police,
the Canadian Security Intelligence Service, the Canada Border Services
Agency, the Canadian Firearms Centre, the Correctional Service of
Canada, and the National Parole Board, and establish strategic
priorities for those entities relating to public safety and emergency
preparedness.
Pursuant to subsection 6(2) of the Canadian Security Intelligence Service

Act, the Minister of Public Safety ‘‘may issue to the Director written
directions with respect to the Service,’’ a provision the minister has
exercised from time to time. Over the past few years, for example, he has
issued annual National Requirements for Security Intelligence to the
Director of CSIS, which provides general direction for the CSIS’s
collection, analytical, and advisory responsibilities.24
A. The Canadian Security Intelligence Service Act

The Canadian Security Intelligence Service Act (CSIS Act) came into being on
16 July 1984 after three years of debate which followed the release of the final
report of the The Commission of Inquiry Concerning Certain Activities of
the Royal Canadian Mounted Police (popularly known as the McDonald
Commission) in 1981. The Commission had recommended the
establishment, apart from the RCMP, of a civilian security intelligence
organization along with a series of external controls. About two-thirds of
the Act is indeed devoted to the judicial control and external review of
CSIS activities. The CSIS Act was Canada’s first-ever enabling legislation
in the area of intelligence and has stood the test of time and court
challenges quite admirably.
The powers given to the CSIS are broad and can be exercised, subject to
judicial control, very intrusively. Its duties and functions are described in
sections 12 to 20. The key section is Section 12, which gives the CSIS the
authority to ‘‘collect, by investigation or otherwise, to the extent that it is
strictly necessary, and analyse and retain information and intelligence
respecting activities that may on reasonable grounds be suspected of
constituting threats to the security of Canada and, in relation thereto, shall
report to and advise the Government of Canada.’’ As noted by the CSIS
so often in public fora, Section 12 makes no distinction as to where the
CSIS can collect information and intelligence. Threats to the security of
Canada are defined in Section 2 of the Act, and include espionage and

sabotage, foreign-influenced activities, the threat or use of acts of serious

violence against persons or property from within or relating to Canada,
and subversive activities. Prospective targets of investigations, and the level
of intrusiveness required for each, are approved by the CSIS Target
Approval and Review Committee (TARC), chaired by the Director of
CSIS, and on which sit a lawyer from the Department of Justice and a
representative of the Deputy Minister of Public Safety. A Warrant Review
Committee (WRC), with a similar membership plus an independent
counsel, reviews all warrant applications prepared pursuant to Section 21
before they are submitted for approval by the Minister, and then to the
Federal Court accompanied by an affidavit.25
Section 13 authorizes the CSIS to provide security assessments to
departments of the government, and, with the approval of the Minister of
Public Safety, to provinces, and with the approval of the same minister
and after consultation with the Minister of Foreign Affairs, to foreign
states. A security assessment consists, as per Section 2, of an ‘‘appraisal of
the loyalty to Canada and, so far as it relates thereto, the reliability of an
individual.’’ As of this writing, the CSIS provides security assessments for
all federal employees requiring a security clearance (which grants the
bearer access to confidential, secret and top secret information on a need
to know basis),26 with the exception of the RCMP. Security screenings are
also conducted for landed immigrant status, refugee, and Canadian
citizenship applicants (under Sections 14 and 15), the government
employees of the provinces of Alberta and New Brunswick, as well as on
behalf of foreign governments on individuals who have resided in Canada.
In addition, the CSIS, at the request of Transport Canada, Parliament,
nuclear facilities, and other government departments, provides security
assessments for site-access programs approved by the Treasury Board
Secretariat.27 In performing their functions, screening officers are guided
by the CSIS’s ‘‘Security Screening Investigators Guidebook,’’ which
contains the criteria that must be taken into consideration during their
investigation. These include:
. the existence of ‘‘any family or close continuing relationships with persons who
reside in countries of security concern’’;
. the ‘‘extent of homeland links: family, friends, homeland political and cultural
involvement, financial, property or business interests and use of non-Canadian
passports’’; and
. the presence of risky character traits (such as greed, habitual use of intoxicants to
excess, illicit or abnormal sexual behavior, secrecy about sexual orientation),
stressful personal problems, noticeable changes in established work patterns,
deliberate misrepresentation, ‘‘expectations to be exceedingly well-off in a short
time,’’ and ‘‘expectations well beyond ability.’’28

The CSIS’s security assessments are advisory in nature; they are not
decisions that must be implemented by the receiving departments.
According to the Government Security Policy, which is administered by the
Treasury Board Secretariat, the decision to grant a security clearance is
the responsibility of the Departmental Security Officer (DSO) on behalf of
the deputy head (deputy minister-level official). A security clearance can be
denied, suspended, or revoked only by a deputy head.29 A person denied a
security clearance on the basis of a CSIS security assessment can complain
to the CSIS’s review body, the Security Intelligence Review Committee
(SIRC), which would investigate the matter and make appropriate

recommendations. In a number of instances, the SIRC went against the
advice provided by the CSIS and severely criticized the Service for
the conclusions it had reached.
Under Section 16, the CSIS can collect only non-threat-related
information and intelligence ‘‘related to the capabilities, intentions or
activities of (a) any foreign state or group of foreign states; or (b) any
person other than [a Canadian]’’ within Canada pursuant to a specific
request from either the Minister of Defence or the Minister of Foreign
Affairs and with the concurrence of the Minister of Public Safety. In the
on-again-off-again debates on the creation of a full-fledged foreign human
intelligence capacity in Canada, the option of removing the words ‘‘within
Canada’’ from Section 16 has often been mentioned.30
The CSIS’s authority to collect information and intelligence, pursuant to
Sections 12 and 16, is not meant to meet the standards required of evidence
introduced in criminal trials. In cases where the CSIS is of the opinion that
it has sufficient material to justify a criminal investigation, it transfers the
relevant material to the RCMP for its review and action.31 The Federal
Court has clearly recognized this distinction.32 The CSIS, therefore, has
long held the view (incorporated into internal policy OPS-217 adopted on
15 December 1994, and renewed on 19 June 2001 and 1 May 2006) that
the operational notes taken by its intelligence officers when debriefing
human sources or targets of the Service could be destroyed after their
contents are transcribed into an intelligence report. In June 2008, the
Supreme Court somewhat disagreed in the context of a security certificate
proceeding heavily reliant on CSIS investigations. While the Court agreed
with the Federal Court that the CSIS ‘‘is not a police force,’’ it observed
that its activities and those of the RCMP:
have in some respects been converging as they, and the country, have
become increasingly concerned about domestic and international
terrorism. The division of work between CSIS and the RCMP in the
investigation of terrorist activities is tending to become less clear [. . .].
In this light, we would qualify the finding of the Federal Court that
CSIS cannot be subject to the same duties as a police force on the basis

that their roles in respect of public safety are, in theory, diametrically

opposed. The reality is different and some qualification is necessary.33
Therefore, in the opinion of the Court, Section 12 of the CSIS Act, and a
contextual analysis of the case law on the disclosure and retention of
evidence, impose on the CSIS an obligation to retain information, including
operational notes, ‘‘when conducting an investigation that targets an
individual or group.’’ The Court further noted that these notes, ‘‘which
include drafts, diagrams, recordings and photographs, must serve a practical
purpose. As a result, the meaning of the word ‘intelligence’ in S. 12 should

not be limited to the summaries prepared by officers. The original
operational notes are a better source of information and of evidence.’’34 The
destruction of interview notes, the Court added, could compromise the
function of judicial review, and be prejudicial to an individual subject to a
security certificate. To maintain procedural fairness, the Court said that the
CSIS should be required to retain all the information in its possession

and to disclose it to the ministers and the designated judge. The
ministers and the designated judge will in turn be responsible for
verifying the information they are given. If the ministers have access to
all the original evidence, they will be better positioned to make
appropriate decisions on issuing a certificate.35
As part of the judicial control over the use of intrusive measures by the
CSIS, the Federal Court must approve or reject warrant applications
prepared by the Service and approved by the Minister of Public Safety.
Between 1993 and 2003, the CSIS submitted 2,544 warrant applications to
the Federal Court pursuant to Section 21 of the Act; all but eighteen were
approved by Federal Court, for a success rate of 99.3 percent. These
warrants can be granted only after ‘‘other investigative procedures have
been tried and have failed’’ and ‘‘the urgency of the matter is such that it
would be impractical to carry out the investigation using only other
investigative procedures.’’36 Once granted, a warrant allows the CSIS to:
intercept any communication or obtain any information, record,
document or thing and, for that purpose,
(a) to enter any place or open or obtain access to any thing;

(b) to search for, remove or return, or examine, take extracts from, or
make copies of or record in any other manner the information,
record, document or thing; or
(c) to install, maintain or remove any thing.37
The CSIS has attributed its high success rate to strong internal vetting and
approval procedures, including ministerial sign off, and rejected the notion

that judges were simply rubber-stamping applications.38 The warrant system,

as established in the CSIS Act, and acknowledged by the Federal Court, ‘‘is
aimed at both ensuring the lawfulness of the operations of the CSIS and the
secrecy of the information that is disclosed to the Court in seeking and
obtaining warrants.’’ 39 In other words, the Federal Court is asked to
exercise ‘‘judicial scrutiny on the lawfulness, necessity and reasonableness
of the techniques of investigations of CSIS, keeping in mind that the
privacy requirement of warrant applications is justified given the national
security concerns at stake.’’40
The CSIS’s authority to collect information and intelligence has been

challenged in a variety of ways since the 9=11 terrorist attacks, with new
parameters set by the courts. In August 2005, the Federal Court
restricted the CSIS’s ability to collect information and intelligence from
prisoners held by the United States at Guantanamo Bay, Cuba.
Canadian-born Omar Khadr, imprisoned there following his alleged
attempt to kill U.S. soldiers in Afghanistan, had challenged his
questioning by Canadian intelligence officials.41 The Federal Court ruled
that he should not be interrogated as long as he is imprisoned at
Guantanamo. It objected to the CSIS’s past questioning because Khadr
had not been read his rights or been questioned in the presence of his
legal counsel. But, as the CSIS was not questioning Khadr for the
purpose of obtaining evidence to be used in a criminal trial, the decision
was, in my view, rightly criticized. Certainly, no improper treatment by
the CSIS was at play in this case, nor were police or prosecutors present
during CSIS questioning. The CSIS’s objective was to learn more about
potential or actual threats to the security of Canada, as per its mandate.
In other words, standards that would apply in a case of criminal
prosecution should not apply in the context of intelligence gathering
authorized by legislation. As law professor Ed Morgan aptly quipped: ‘‘If
the rules of criminal investigations applied to intelligence gathering, then
intelligence gathering would come to a halt.’’42
In its Annual Report 2004–2005, the Security Intelligence Review
Committee (SIRC), established pursuant to Subsection 34.(1) of the CSIS
Act to review all aspects of the CSIS’s performance and conduct
investigations in a number of areas, examined the role played by the
CSIS in the Terrorist Entity Listing (TEL) process mandated by
Section 83.05 of the Criminal Code, which came into effect as part of the
Anti-Terrorism Act in December 2001. As part of that process, the CSIS
prepares Security Intelligence Reports (SIRs) that are used by the
Minister of Public Safety in determining whether reasonable grounds
exist to recommend to the Governor-in-Council that a terrorist entity
should be listed.43 The SIRC noted that several listed entities, including
Japan’s Aum Shinrikyo and Colombia’s Autodefensas Unidas, did not

appear ‘‘to fall within the definition of ‘threats to the security of Canada’
under the CSIS Act.’’ While the SIRC agreed that the CSIS had acted in
compliance with Ministerial Direction and internal operational policies, it
concluded that collecting information on entities not posing a threat to
the security of Canada was of concern and lacking in authority.
However, the review conducted by the SIRC was not as complete as it
should ordinarily have been because it could not get access to SIRs,
which are considered Cabinet confidences, and which the SIRC is
p r e c l u d e d t o s e e , p u r s u a n t t o S u b s e c t i o n 3 9 ( 3 ) o f t h e A c t. 4 4
Notwithstanding the SIRC’s position on the listing of Aum Shinrikyo

and Autodefensas Unidas, Subsection 83.05 of the Criminal Code does
not require that a listed entity shall be a threat to the security of
Canada. Arguably, the CSIS does not necessarily need to rely on
information gathered pursuant to Section 12 of the CSIS Act to make a
case that an entity meets the standard of the Criminal Code; for example,
the CSIS may have received sufficient information to make a case from
the government of a foreign country through a cooperation arrangement
entered into pursuant to Section 17 of the CSIS Act. This is recognized
by Subsection 83.06(1)(a) of the Criminal Code, which allows the
Minister of Public Safety, in the case of a listed entity requesting judicial
review of a listing decision, to ‘‘make an application to the judge for the
admission of information obtained in confidence from a government, an
institution or an agency of a foreign state, from an international
organization of states or from an institution or an agency of an
international organization of states.’’
Briefly in 2005, and again in 2007, the Federal Court received
extraterritorial warrant applications from the CSIS (in August 2006, the
2005 application was subject to a notice of discontinuance). When CSIS
application SCRS-10-07 was received by the Federal Court, the judge
decided not to approve the warrant application without further
consideration, and asked the CSIS and an amicus curiae (Ron Atkey, a
former Conservative Cabinet Minister and Chair of the Security
Intelligence Review Committee from 1984 to 1989) for submissions
containing answers to the following two questions:
(i) On what basis or foundation does the Court then issue a warrant
which admittedly would not be enforceable outside Canada and
which would likely involve the authorization of illegal activity in
the host state? More specifically, what would be the purpose of
seeking such a warrant?
(ii) Further, if such Parliamentary intent can be established and pursuant
to section 21 of the Act, it can be construed to provide the Court
authority to issue such extraterritorial warrants, should the Court

be engaged in the issuance of such warrants, which would not be

enforceable outside Canada, and which would likely involve the
authorization of illegal activity in the host state?45
In addition to these two interrelated questions, the Federal Court also

asked whether the Canadian Charter of Rights and Freedom does apply to
CSIS activities abroad, and whether the Communications Security
Establishment Canada (CSEC) can assist the CSIS in executing a warrant
abroad (the warrant application included the intercept of
telecommunications to or from the Canadian subjects of investigation).

After reading the submissions and studying the matter, the Federal Court
decided to answer the juridictional issue in the negative (that is, the
Federal Court does not have jurisdiction to issue the extraterritorial
warrants requested by CSIS): as the Court noted, Sections 12 and 21 of
the CSIS Act are silent on territoriality; the established principles of
statutory interpretation therefore applies.46 With respect to the latter, the
Court observed that
While the language of the legislative text may allow for an inference to be
drawn in respect to a mandate for the Service to conduct certain activities
extraterritorially, that inference is not sufficiently obvious to provide a
basis to conclude that the Service has a clear mandate to conduct the
activities sought to be authorized in the warrant in countries other
than Canada, and that the Court has jurisdiction to authorize such
activities. In my view, such a construction cannot be taken or implied
from the applicable provisions of the Act, read together.47
The Federal Court further stated that no legislative history would suggest
that Parliament intended for extraterritorial reach, especially with respect for
a role by the Federal Court in authorizing extraterritorial warrants. The
execution of such a warrant would therefore be ‘‘inconsistent with and
likely to breach the binding customary principles of territorial sovereign
equality and non-intervention, by the comity of nations.’’48 As decisions
on warrant applications cannot be appealed, a CSIS spokesperson later
c o n f i r m e d t h a t t h e S e r v i c e ha d d r o p p e d i t s a t t e m p t t o g e t t h e
extraterritorial warrants.49
Among the other powers granted to the CSIS in the Act, its Director is
entitled to appoint and discipl ine all employees of the Se rvice
(Subsections 8(1) and 8(2)), and to determine their terms and conditions of
employment, as well as to establish disciplinary and grievance procedures.
However, if a breach of discipline involves noncompliance with legislation
or policy or an unlawful act in the performance of an employee’s duties, it
must, pursuant to Section 20, be reported to the Minister of Public Safety
and the action investigated. While CSIS intelligence officers are not

unionized, the CSIS, with the approval of the Governor-in-Council on the

recommendation of the Minister of Public Safety, has entered into a
collective agreement with the Public Service Alliance of Canada (PSAC)
for the benefit of its Administrative Support Category employees. The
identity of a CSIS intelligence officer ‘‘engaged in covert operational
activities of the Service’’ and of confidential sources assisting the Service
shall not be disclosed pursuant to Section 18 of the Act. A disclosure is
punishable on summary conviction or imprisonment for a term not
exceeding five years.
The CSIS Act is built with a series of accountability mechanisms, including

direct control by a Minister accountable to Parliament; approval procedures
requiring the involvement of the CSIS Director, the Minister, and a Federal
Court judge when the use of intrusive methods (such as entering premises and
intercepting communications)50 are envisaged; and review agencies, namely
an Inspector General (IG) 5 1 and the Security Intelligence Review
Committee.52 The IG acts as the ‘‘eyes and ears’’ of the Minister of Public
Safety, and scrutinizes the Service’s annual operational report of its
activities with a fine-tooth comb—the IG issues a certificate on her
satisfaction with the report pursuant to Subsection 33(2) of the Act, 53
monitors the compliance of the CSIS with its own operational policies,
and, when directed by the SIRC, conducts reviews of specific activities.
The IG is part of the Department of Public Safety and is responsible to its
Deputy Minister. The SIRC—whose members are Privy Councillors
chosen by the Prime Minister after consultations with the other political
parties represented in the House of Commons—reports to Parliament
through the Minister of Public Safety and can scrutinize any aspect of the
Service’s duties and functions; in other words, nothing is beyond the
purview of the Committee, except Cabinet confidences. In particular, it is
responsible to review arrangements entered into by the CSIS with domestic
and foreign entities, targeting authorizations approved by the TARC, and
to address complaints with respect to any act or thing done by the CSIS or
relating to the denial of a security clearance. Combined, the IG and
the SIRC employ twenty-four people, whose first point of contact with the
CSIS is with its External Review and Liaison (ER&L) section under
the Assistant Director, Secretariat, who directly reports to the CSIS
Director. CSIS officers throughout the organization support the ER&L in
responding to IG and SIRC queries, and can be interviewed at any time
by IG and SIRC officers during audits or investigations. At formal
hearings held by the SIRC, CSIS officers must testify as witnesses if so
requested.54 Since 1984, in addition to its annual reports to the Minister of
Public Safety, the SIRC has prepared over 178 reports and studies on
particular aspects of CSIS. The SIRC has a long history of criticizing the
Service,55 but has not always done so in a timely and very effective manner.56

The National Defence Act

Canada’s signals intelligence agency, Communications Security Establishment
Canada (CSEC),57 did not have a legislated mandate until amendments to the
National Defence Act were made in December 2001 as part of the
Anti-Terrorism Act. In fact, its very existence was not acknowledged by the
government until 1983, thirty-seven years after its creation as the
Communications Branch of the National Research Council (NRC), and eight
years after it was renamed the Communications Security Establishment (CSE)
and transferred to the Department of National Defence (DND). A proposal
to give the CSE a legislated mandate, made by a special committee reviewing

the CSIS Act in 1990, was not heeded at the time by the government. In
subsequent years, the Privacy Commissioner, the Auditor General of Canada,
and the Senate Committee on Security and Intelligence similarly
recommended giving the CSE enabling legislation. By the time of 9=11, the
CSE’s ability to contribute to the fight against terrorism was seriously
hampered by the Criminal Code, which prohibited the acquisition of any
private communications in Canada. Before intercepting any communications,
the CSE therefore had to guarantee that these communications would be
entirely foreign-to-foreign and not involve any private communication of
Canadians.58 Given how difficult this was, the CSE was ‘‘essentially winding
down out of business.’’59 The CSE thus urgently needed legal protection so as
not to run afoul of the Criminal Code while being of assistance to the CSIS.
Under the CSE’s enabling legislation, the Chief of the CSEC reports to the
Minister of National Defence on matters related to finance and
administration, and to the NSA on matters related to operations and
policy matters. The CSEC has the mandate, pursuant to section 273.64 of
the National Defence Act,
(1) (a) to acquire and use information from the global information
infrastructure for the purpose of providing foreign intelligence,60
in accordance with Government of Canada intelligence priorities;
(b) to provide advice, guidance, and services to help ensure the
protection of electronic information and of information
infrastructures of importance to the Government of Canada; and
(c) to provide technical and operational assistance to federal law
enforcement and security agencies in the performance of their
lawful duties.
(2) Activities carried out under paragraphs (1)(a) and (b)
(a) shall not be directed at Canadians or any person in Canada; and
(b) shall be subject to measures to protect the privacy of Canadians in
the use and retention of intercepted information.
The private communications of Canadians (i.e., Canadian citizens and

permanent residents) can be intercepted (but never targeted) when so

authorized by the Minister of National Defence only if necessary for the

targeting of a foreign communication (Subsection 273.65(1)) or the conduct of
essential information technology security activities (Subsection 273.65(3) and
Subsection 184(2)(c) of the Criminal Code), or under judicial warrants when
assisting law enforcement and security agencies (Subsection 273.64(1)(c)).61
More specifically, before issuing a ministerial authorization necessary for the
targeting of foreign intelligence, the Minister of National Defence must be
satisfied, pursuant to Subsection 273.65(2) of the Act, that:
(a) the interception will be directed at foreign entities located outside

Canada;
(b) the information to be obtained could not reasonably be obtained by
other means;
(c) the expected foreign intelligence value of the information that would
be derived from the interception justifies it; and
(d) satisfactory measures are in place to protect the privacy of Canadians
and to ensure that private communications will only be used or
retained if they are essential to international affairs, defence or
security.
Ministerial authorizations, which are valid for one year and can be
renewed, are carefully prepared and reviewed, including by a team of
in-house lawyers from the Department of Justice. According to the
then–Chief of the CSE, Keith Coulter, in 2005 the number of ministerial
authorizations concerning foreign intelligence collection or information
technology security was very low but of high value: twenty-four from 2002,
and six in force, as of his testimony to a parliamentary committee.62
All CSEC employees are unionized and members of the PSAC (the
bargaining agent), except for those in positions approved by the Public
Service Labor Relations Board (PSLRB), namely, ‘‘directors, persons
above the rank of director, employees involved in the planning,
development, delivery or management of human resources, and such other
persons employed in a managerial or confidential capacity.’’ In 2005, the
CSE, pursuant to Subsection 71(1) the Public Service Labour Relations Act,
applied to the Board for an order declaring that some positions are
managerial or confidential positions. However, its application was not in
compliance with Section 33 of the Public Service Labour Relations Board
Regulations as it did not provide the name of the occupant for any of the
positions because that information was considered to be classified.
Pursuant to Section 72 of the Act, the CSE provided a copy of its
application, with position numbers only, to the bargaining agent, which
had twenty days, pursuant to Subsection 34(1) of the Public Service Labour
Relations Board Regulations, to file an objection to the Board. As the
bargaining agent did not respond within the allotted time, the CSE’s

application was approved by the Board pursuant to Section 75 of the Public

Service Labour Relations Board Regulations and the CSE was relieved from
complying with Section 33.63 A similar application was made earlier that
year and ended up with exactly the same result.64
The CSEC Commissioner is appointed by order-in-council, on the
recommendation of the Minister of National Defence, and reports to the
Minister on CSEC activities and their compliance with the law. His role
is one of ex post review, not oversight, and his recommendations—about
100 between April 1996 and March 2006, 75 percent of which have been
accepted—are nonbinding on the CSEC.65 The first CSE Commissioner

was appointed in 1996 under the Inquiries Act, and the position legislated
in December 2001 when the Anti-Terrorism Act amended the National
Defence Act to give the CSE a statutory basis. The CSEC Commissioner
can undertake any investigation he deems necessary in response to a
complaint from a member of the public, and must inform the Minister of
National Defence and the Attorney General of Canada of any CSEC
activity he believes is not in compliance with the law, and, with respect
to the latter, if there is probable cause for prosecution. Because it is not
described in the Act, what the Commissioner should do when he is
informed of concerns about CSE activities pursuant to the Security of
Information Act is not clear. 66 However, in his 2006–2007 Annual
Report, the Commissioner noted that his ‘‘office does have internal
policies and procedures in place’’ to address such concerns.67 In addition
to classified reports on specific CSEC activities, the CSEC Commissioner
must also submit to the Minister of National Defence an Annual Report
on his activities and findings within ninety days of the end of each fiscal
year (the fiscal year ends on 31 March in Canada). 68 The Minister
subsequently tables (i.e., presents) the Annual Report before Parliament.
So far, the Commissioner has yet to report any illegal activities, with the
exception of minor qualifications, on the part of the CSEC. As the CSE
Commissioner noted in his 2003–2004 Annual Report, this does not
mean that all CSE activities are lawful, because the Commissioner does
not, and cannot, review all of the CSE’s activities in any given year.69
The only major concern so far raised by the CSEC Commissioner—that
the subsections on ministerial authorizations in the National Defence Act
lack clarity and ought to be amended—has been reported to the Minister
of National Defence and the Attorney General of Canada, as his
interpretation of these subsections differs from that of the Deputy
Minister of Justice. In his 2005–2006 Annual Report, the Commissioner
therefore noted that CSE activities ‘‘complied with the law as it is
currently interpreted by the Department of Justice [. . .].’’ 7 0 The
government is expected, in due course, to propose legislative amendments
to resolve this interpretative issue.

While no mention is made of the Chief of Defence Intelligence (CDI) in

the National Defence Act, Department of National Defence and Canadian
Forces intelligence activities are subject to the laws of Canada, such as the
Criminal Code and the Privacy Act. The CDI has functional authority
within the Department of National Defence and the Canadian Forces
for common policy, oversight, doctrine, and procedures for the entire
defense intelligence function, which ‘‘consists of 2,500 individuals from
over a dozen military and civilian classifications.’’71 The CDI is focused
on the collection of information on the military capabilities and
intentions of foreign states and entities. Its ability to collect information

domestically is limited, and conducted either in support of domestic
Canadian Forces operations or in support of other departments and
agencies and under their legal authorities. 72 Defence Administrative
Orders and Directives (DAOD), issued under the authority of the Deputy
Minister of National Defence and the Chief of Defence Staff, provide
guidance and direction to counterintelligence activities, which are
focused on the investigation of security threats to the Department of
National Defence and the Canadian Forces. Any intrusive measures
used as part of these investigations must be included in a warrant
application to be approved by the courts. 73 The Canadian Forces
Signals Intelligence (SIGINT) Operations Centre (CFSOC), which
primarily gathers foreign intelligence in support of the Canadian Forces
and allied military forces and operations, operates under the Deputy
Chief of the Defence Staff Direction for Domestic Operations (J3
Continental) of 1 April 2005, which superceded National Defence
Headquarters Instruction DCDS (Deputy Chief of the Defence Staff)
2=98 Guidance for the Conduct of Domestic Operations, of 10 July
1998.74 When it operates in support of the CSEC, the CFSOC does so
under the CSEC’s mandate and review mechanisms. No information is
publicly available on the directives, orders, or policies governing the
newly established Human Intelligence Company, which is charged with
the collection of human intelligence abroad in support of Canadian
Forces missions. 7 5 And no specific agency has the mandate to
independently review the intelligence activities of the Department of
National Defence and the Canadian Forces.
To date, no legal challenge has been made to the provisions of the National
Defence Act concerning the CSEC.
The Immigration and Refugee Protection Act

The Immigration and Refugee Protection Act (IRPA) contains important
provisions related to national security, and the CSIS plays a pivotal role in
making these provisions operative. Since its introduction by the

immigration law, the security certificate process has been a major source of
contention, repeatedly involving the Federal Court, and lately the Supreme
Court of Canada. Between 1991, when they came into law, and November
2006, twenty-nine security certificates were issued, the majority in relation
to terrorism, and the remaining few in relation to espionage. 76 In a
security certificate, the Ministers of Public Safety and of Citizenship and
Immigration certify that reasonable grounds exist to believe, based on an
SIR prepared for them by the CSIS, that, pursuant to Section 34(1) of the
Act, a permanent resident or a foreign national is inadmissible on security
grounds. Specifically:
(1) A permanent resident or a foreign national is inadmissible on security

grounds for
(a) engaging in an act of espionage or an act of subversion against a
democratic government, institution or process as they are
understood in Canada;
(b) engaging in or instigating the subversion by force of any
government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives
or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts
referred to in paragraph (a), (b), or (c).77
When a security certificate is issued, it is referred, on behalf of the

Ministers, to the Federal Court for a determination, pursuant to
Section 80(1), which concerns the reasonableness of the certificate. A
notice that the certificate has been referred to the Federal Court is given
by an immigration officer to the person named on the certificate. The
Federal Court has the responsibility, ‘‘on the basis of the information and
evidence available,’’ to ‘‘determine whether the certificate is reasonable
and whether the decision on the application for protection, if any, is
lawfully made.’’ To determine the reasonableness of the certificate, a
Federal Court judge is bounded by the provisions of Section 78, which
state, inter alia, that he
shall ensure the confidentiality of the information on which the certificate

is based [. . .] if [. . .] its disclosure would be injurious to national security
or to the safety of any person; [. . .] examine the information and any
other evidence in private [. . .]; on each request of the Minister or the
Minister of Public Safety and Emergency Preparedness [. . .] hear all or
part of the information or evidence in the absence of the permanent
resident or the foreign national named in the certificate and their

counsel if [. . .] its disclosure would be injurious to national security or to

the safety of any person; [. . .] shall provide the permanent resident or the
foreign national with a summary of the information or evidence that
enables them to be reasonably informed of the circumstances giving
rise to the certificate, but that does not include anything that in [his
opinion] would be injurious to national security or to the safety of any
person if disclosed; [. . .] shall provide the permanent resident or the
foreign national with an opportunity to be heard regarding their
inadmissibility; and [that he] may receive into evidence anything that,
in [his opinion], is appropriate, even if it is inadmissible in a court of
law, and may base the decision on that evidence.
The IRPA’s Subsection 82(2) stipulates that the government shall

detain, without the issue of a warrant, a foreign national subject to a
security certificate issued pursuant to IRPA’s Subsection 77(1). A
permanent resident may be detained only if there are reasonable
grounds to believe he is a danger to national security or to a person,
or if he is unlikely to appear at his removal proceedings. However, as
noted by the Department of Public Safety, ‘‘a person subject to a
security certificate is free to leave Canada at any time and return to
their country of origin.’’ 7 8 The fact that inadmissibility can be
determined simply on the basis of reasonable grounds for believing,79
rather than beyond a reasonable doubt, has often been criticized as
unfair: ‘‘It is a burden easily met and difficult to overcome by the
person concerned.’’80 Jurisprudence seems to support this claim. With
respect to Subsection 34(1)(d), the Supreme Court ruled in 2002 (in
Suresh v. Minister of Citizenship and Immigration, pp. 85–88) that
‘‘danger to the security of Canada’’ was difficult to define, but that it
was highly fact-based and political. Because of that, the Supreme
Court adopted a deferential standard of judicial review: it would not
interfere with the Minister’s decision, as long as the Minister has
provided evidence that reasonably supports his finding.
Until 9=11, security certificates had been used rather successfully against a
variety of terrorism suspects who were subsequently deported. Since then,
however, repeated legal challenges have weakened its legal foundations. The
majority of these challenges have originated from individuals named in
security certificates and who faced deportation because of their alleged links
to terrorist activities. In 2002, the Supreme Court ruled that a person
should not be deported from Canada to face torture, unless exceptional
cir cumst ance s just ify that de po rt at ion. Wha t the se e xc epti onal
circumstances could be was not defined by the Court. In 2006, the Federal
Court ruled that such an exceptional circumstance would mean more than a
person simply constituting, on reasonable grounds, a danger to the security
of Canada. In the case at hand, the judge noted that the person had not

been involved in violence, and that therefore there was no exceptional

circumstance that would warrant his deportation to face torture.81
Five (pre- and post-9=11) long-term detainees have captured the attention
of the media and of the public with respect to the application of the
security certificate process. They and their legal challenges are summarized
as follows:
. Mohammad Zeki Mahjoub came to Canada in 1995, and was detained in 2000 on
the basis of a security certificate which was found reasonable by the Federal Court
in 2001. In 2004, he was ordered deported by the Minister of Citizenship and

Immigration, but he sought judicial review of that decision. In 2005, the
Federal Court found that the Minister’s delegate had relied on incomplete
evidence in determining the danger he posed, and that as a consequence could
not properly balance the competing interests at stake. Hence, the Court allowed
for judicial review, and asked that his case be redetermined by a different
delegate of the Minister. In 2006, Mahjoub was reassessed as posing a danger
to the security of Canada and not at substantial risk of torture or unusual
treatment in Egypt, and was again ordered deported. Mahjoub applied for
judicial review of that decision. The Federal Court sided with him because the
deportation decision was patently unreasonable (the delegate having ignored
relevant and overwhelming evidence, in particular on the state of torture in
Egypt), allowed judicial review, and again asked for his case to be redetermined
by a different delegate of the Minister. 82 Throughout these proceedings,
Mahjoub had also applied for his release on bail, which was granted to
him in April 2007 under strict conditions. As of this writing, the Federal Court
was assessing the reasonableness of his latest security certificate, issued in
February 2008.
. Hassan Almrei, a Syrian citizen, was detained in October 2001 on the basis of a
security certificate alleging links between him and al-Qaeda and the forgery of
travel documents. The Federal Court found the certificate to be reaonable.
In 2007, Almrei applied for judicial release under conditions for a third time
following a Supreme Court decision that struck down a subsection of the IRPA
on detention, but was again unsuccessful. He was denied bail because, on
balance of probabilities, the proposed conditions of his release would not
diminish the serious risk he poses to Canada’s national security.83 In January
2009, however, the Federal Court determined that ‘‘any risk that he might pose
to national security or of absconding can be neutralized by conditions,’’ and
ordered his release from detention under strict conditions, ‘‘pending a
determination of the reasonableness of the security certificate under which he is
presently detained,84 and if the certificate should be found to be reasonable,
until a determination is made whether he can be removed from Canada to his
country of nationality or some other country.’’85
. Algerian-born Mohamed Harkat arrived in Canada in 1995 on a false Saudi
Arabian passport and obtained refugee status in February 1997. He was
arrested in December 2002, and in March 2005 the Federal Court upheld the
security certificate, judging there were sufficient grounds to believe that he had

supported al-Qaeda-related terrorist activity. 86 Harkat then challenged his

deportation order, and was granted bail under strict conditions. As of this
writing, the Federal Court was assessing the reasonableness of his latest security
certificate.
. Mahmoud Es-Sayyid Jaballah was detained in August 2001 because, inter alia, of
his alleged participation in al-Qaeda. The security certificate at the basis of his
arrest was ruled reasonable by the Federal Court in 2006. He was granted bail
under strict conditions in April 2007. A new security certificate concerning
Jaballah was issued in February 2008 and, as of this writing, a decision on its
reasonableness had not been reached.
. Adil Charkaoui was detained in May 2003 on the basis of a security certificate
linking him to al-Qaeda. In June 2003, Charkaoui challenged the
constitutionality of the procedure established under the Act for determining
whether a security certificate is reasonable and filed several other motions. In
February 2005, at his fourth detention hearing, he was granted bail under strict
conditions. The Federal Court noted that while Charkaoui was a national
security threat, he was no longer an imminent danger to Canadians. 8 7
In September 2008, the Supreme Court refused to hear Charkaoui’s appeal to
stop the deportation proceedings against him.88
In 2007, Charkaoui (along with Almrei and Harkat) successfully

challenged before the Supreme Court the secret ex parte hearings related to
those detained under a security certificate before the Supreme Court. The
Supreme Court ruled that ‘‘the procedure for the judicial confirmation of
certificates and review of the detention violates Section 7 of the [Canadian
Charter of Rights and Freedom] and has not been shown to be justified
under Section 1 of the Charter.’’ Ex parte hearings were found to breach
the principles of fundamental justice in the absence of at least a special
advocate to represent the interests of security certificate detainees. The
Court suspended its decision for one year to allow government to amend
the Act accordingly. After the one-year delay, the reasonableness of
security certificates had to be reassessed under the new process decided
upon by Parliament.89
As a result of the Supreme Court decision, in February 2008 amendments
to the IRPA, which introduced into the certificate process a special advocate,
whose role is ‘‘to protect the interests of the person subject to a certificate
during closed proceedings,’’ 90 took effect. 91 The special advocate can
challenge claims ‘‘that the disclosure of information used to support the
security certificate would be injurious to national security or would
endanger the safety of any person,’’ and ‘‘cross-examine witnesses and
make submissions to the Court.’’ The special advocate is also authorized
‘‘to communicate with the subject of a security certificate without
restriction until such time as they see the confidential information upon
which a certificate is based.’’92

Special advocates have already made a difference. In the Federal Court

proceedings on the reasonableness of the security certificate in respect to
Mahjoub, information surfaced that the CSIS had been intercepting, since
May 2007, all communications of security certificate subjects released on
strict bail conditions on behalf of the Canada Border Services Agency,
including those communications involving their legal counsels. After a
cease-desist-and-delete defense motion was introduced in court, the CSIS
responded that it would not in the future record any conversations
between the security certificate subjects and their lawyers.93
Security certificates continue to be contested by lawyers and nonprofit

organizations, such as Amnesty International Canada and the Campaign
to Stop Secret Trials in Canada,94 because, inter alia, of the ‘‘low threshold
of proof, [and] the lack of discernible standards for acceptance of
evidence.’’95 Even though special advocates have been introduced into the
security certificate process, further challenges to the process are expected.96
The Aeronautics Act

Canadian commercial air travelers rightfully expect that their government
would do what is necessary to ensure their safety and security before,
during, and after their flight. Therefore reason demands that measures be
implemented to prevent anyone posing a threat to aviation from causing
harm. In that regard, the Public Safety Act 2002 enacted in May 2004
introduced a series of amendments to the Aeronautics Act. Among these
amendments, Subsection 4.82(5) gives new powers to the CSIS Director to
require any air carrier or operator of an aviation reservation system to
provide the CSIS, for the purposes of transportation security or the
investigation of ‘‘threats to the security of Canada’’ (as per Section 2 of
the Canadian Security Intelligence Service Act), within the time and in the
manner specified, with the information on passengers set out in the
schedule to the Act, that is (a) in the air carrier’s or operator’s control
concerning the persons on board or expected to be on board an aircraft
for any flight specified; or (b) in the air carrier’s or operator’s control, or
that comes into their control within thirty days after the requirement is
imposed on them, concerning any particular person specified. The
retention and disclosure of information obtained in this manner are subject
to strict conditions, also contained in this subsection. As of this writing,
the CSIS was working with the RCMP, which acquired the same powers in
Subsection 4.82(5), to automate the transfer of passenger information
between air carriers or operators of an aviation reservation system and
themselves.
The CSIS and the RCMP are also involved in providing the Department of
Transport with intelligence on persons posing a threat to aviation security.97

This intelligence is used by the Department of Transport to build a list of

specified persons, which, for the purposes of transportation security, is
provided to air carriers. The air carriers, in turn, are required, pursuant to
Section 4.81(1), to provide the Minister, or any officer of the Department
of Transport authorized by the Minister, within the time and in the
manner specified by the Minister or officer, with information on these
specified persons set out in the schedule. If the Minister receives
information to the effect that a specified person is about to fly, and if he is
of the opinion that the specified person poses an immediate threat to
aviation security or to any aircraft or aerodrome or other aviation facility,

or to the safety of the public, passengers, or crew members, he may direct
that person not to board a plane, pursuant to his authority under
Section 4.76 of the Act on emergency direction. This, in essence, is the
legal foundation for Canada’s Passenger Protect program, popularly
known as the ‘‘No Fly List’’ program, which was implemented through the
Identity Screening Regulations98 in the summer of 2007.
Since Passenger Protect took effect in the summer of 2007, only a single
individual as of this writing has been issued with an emergency direction.
Although he has applied for a reconsideration of the decision to issue him
an emergency direction, he has also brought his case to the Federal Court.
A student, he has no access to the intelligence behind the decision and is
arguing ‘‘that the Passenger Protect program is a violation of his basic
Charter rights to free movement, privacy and due process.’’ 99 The
Canada-based International Civil Liberties Monitoring Group has similarly
argued that the Passenger Protect program is arbitrary, and that it violates
the presumption of innocence with the Minister of Transport as final
arbiter rather than an independent judge.
PROTECTING INTELLIGENCE FROM UNAUTHORIZED

DISCLOSURE AND PRYING EYES
Nothing is more important to an intelligence organization than preserving its
ability to protect its sources and methods of collection. Legislation that
would deter unauthorized disclosures and punish acts of espionage is
necessary for that purpose. Canada has the necessary legal instruments in
place, but they have, of late, been subject to legal challenges. Fortunately,
leaks of classified or sensitive intelligence information are relatively
infrequent in Canada, but they do occur from time to time. In December
2008, an Unclassified=For Official Use Only Threat Update on the 2010
Winter Olympics Games prepared by the Integrated Threat Assessment
Centre, a component of the CSIS, was leaked to the National Post,
a newspaper which usually relies on the Access to Information Act to
report on internal intelligence documents.100

A. The Security of Information Act

From World War II to 1980, just about the time when the Canadian Charter
of Rights and Freedom bacame part of Canada’s Constitution, only twenty
individuals were charged under the old Official Secrets Act. In the 1990s,
two CSE employees, Jane Shorten and David Frost, disclosed operational
information101 but were not charged, in the belief that the Official Secrets
Act would be struck down as unconstitutional because of its alleged
noncompliance with the Canadian Charter of Rights and Freedom (for one
thing, its provisions were considered overly vague). In December 2001, the
Anti-Terrorism Act replaced the Official Secrets Act with the Security of
Information Act, whose primary purpose is to permanently bind to secrecy
designated government officials from ever revealing special operational
information, which is defined under Subsection 8(1)(a) as:
(a) the identity of a person, agency, group, body or entity that was or is intended to
be, has been approached to be, or has offered or agreed to be, a confidential
source of information, intelligence or assistance to the Government of Canada;
(b) the nature or content of plans of the Government of Canada for military
operations in respect of a potential, imminent or present armed conflict;
(c) the means that the Government of Canada used, uses or intends to use, or is
capable of using, to covertly collect or obtain, or to decipher, assess, analyze,
process, handle, report, communicate or otherwise deal with information or
intelligence, including any vulnerabilities or limitations of those means;
(d) whether a place, person, agency, group, body or entity was, is or is intended to
be the object of a covert investigation, or a covert collection of information or
intelligence, by the Government of Canada;
(e) the identity of any person who is, has been or is intended to be covertly engaged
in an information- or intelligence-collection activity or program of the
Government of Canada that is covert in nature;
(f) the means that the Government of Canada used, uses or intends to use, or is
capable of using, to protect or exploit any information or intelligence referred
to in any of paragraphs (a) to (e), including, but not limited to, encryption
and cryptographic systems, and any vulnerabilities or limitations of those
means; or
(g) information or intelligence similar in nature to information or intelligence
referred to in any of paragraphs (a) to (f) that is in relation to, or received
from, a foreign entity or terrorist group.
For those intelligence officers and other designated officials to whom the
Act applies, the virtual certainty is that they never will be in a position to
publish memoirs on their experiences, unless all operational information of
the types described are expurged. 102 The Act also acts as a deterrent for
offenses relating to communications with foreign entities and terrorist
groups (up to imprisonment for life if it involves special operation

information), economic espionage (up to a ten-year imprisonment term),

foreign-influenced or terrorist-influenced threats of violence (up to
imprisonment for life), harboring or concealing a person known to have
committed, or likely to have committed an offense under the Act (up to a
ten-year imprisonment term), preparatory acts (e.g., entering Canada at
the direction of a foreign entity—up to a two-year imprisonment term),
and conspiracy attempts (same punishment as if the offense was committed).
The constitutionality of the new Act has already been successfully
challenged by an Ottawa Citizen journalist. In 2006, Juliet O’Neill brought
the action forward after her home was searched by the RCMP as part of
its investigation into a leak of confidential information on Maher Arar
that O’Neill had used in one of her newspaper articles. She argued, inter
alia, that Subsections 4(1)(a),103 4(3),104 and 4(4)(b)105 of the Act violated
her rights under Sections 7 and 2(b) of the Canadian Charter of Rights and
Freedoms. The court agreed. Section 4 of the Act was ruled
unconstitutional and in violation of Section 7 of the Charter (‘‘Everyone
has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of
fundamental justice’’) because it was overbroad, vague, and partly without
any fault requirement. Section 4 was also ruled not to be in compliance
with Section 2(b) of the Charter (‘‘freedom of thought, belief, opinion and
expression, inc luding freedom of the press and other media of
communication’’) and that Section 1 of the Charter (which ‘‘guarantees the
rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society’’) was not applicable.106 Interestingly, a year before that
section was declared unconstitutional, the Justice Department had been
looking at numerous options for strengthening the Act by making it even
more constraining on public servants, contractors, and recipients of
information unauthorized for disclosure.107
B. The Canada Evidence Act

Under Canadian law, government submissions concerning classified
information can be received by the courts ex parte and in private.108 The
Canada Evidence Act contains detailed procedures to ensure the
safeguarding, and preventing the unauthorized disclosure, of ‘‘information
of a type that, if it were disclosed to the public, could injure international
relations or national defence or national security,’’ and of sensitive
information ‘‘relating to international relations or national defence or
national security that is in the possession of the Government of Canada,
whether originating from inside or outside Canada, and is of a type
that the Government of Canada is taking measures to safeguard.’’

Under Subsections 38.01(1), (2), (3), and (4), for example, every participant
or an official, in connection with a proceeding, must notify in writing the
Attorney General if required to disclose such information, or believe that
such information will be disclosed either in the course of the proceeding or
at a later date. Exceptions, however, do apply in light of other statutory
requirements (i.e., the CSIS Act, Privacy Act, Immigration and Refugee
Protection Act, etc.). Within ten days of receiving a notice, the Attorney
General must notify the originator of his or her decision with respect to
the disclosure of the information. If the Attorney General does not provide
a decision, or agrees to only partial disclosure, he shall apply to the

Federal Court for an order with respect to disclosure of the information if
the person who gave notice is a witness. Under Subsection 38.04(2), two
other situations exist when an application should be made to the Federal
Court for an order: ‘‘(b) a person, other than a witness, who is required to
disclose information in connection with a proceeding shall apply to the
Federal Court for an order with respect to disclosure of the information;
and (c) a person who is not required to disclose information in connection
with a proceeding but who wishes to disclose it or to cause its disclosure
may apply to the Federal Court for an order with respect to disclosure of
the information.’’ Using any reliable and appropriate evidence, even if it
were not admissible under Canadian law, a judge of the Federal Court
would decide, subject to appeal to the Federal Court of Appeal, on the
disclosure order in the following manner:
Subsection 38.06
(1) Unless the judge concludes that the disclosure of the information would be
injurious to international relations or national defence or national security, the
judge may, by order, authorize the disclosure of the information.
(2) If the judge concludes that the disclosure of the information would be injurious
to international relations or national defence or national security but that the
public interest in disclosure outweighs in importance the public interest in
non-disclosure, the judge may by order, after considering both the public
interest in disclosure and the form of and conditions to disclosure that are
most likely to limit any injury to international relations or national defence or
national security resulting from disclosure, authorize the disclosure, subject to
any conditions that the judge considers appropriate, of all of the information,
a part or summary of the information, or a written admission of facts relating
to the information.
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge
shall, by order, confirm the prohibition of disclosure.
In determining whether disclosure would be injurious to international

relations or national defense or national security, the Federal Court gives
considerable weight to the Attorney General of Canada’s assessment that

injury would result ‘‘because of his access to special information and expertise
[and of his] protective role vis-à-vis the security and safety of the public.’’109
Limits to disclosure of information to affected individuals because of ‘‘the
importance of national security and the need for confidentiality in such
matters have been repeatedly recognized by the Supreme Court,110 notably
in 1992 [Chiarelli v. Canada (M.E.I.) 1 S.C.R. 711], 2002 [Ruby v.Canada
(Solicitor General) 4 S.C.R. 3] and 2007 [Charkaoui v. Canada (Citizenship
and Immigration) SCC 9]. This recognition includes the fact that ‘‘Canada
is a net importer of information essential to our security, defence, and
international relations. Much of it is provided by foreign agencies in

confidence that it will not be disclosed without the permission of the
provider or the source. The public has a very high level interest in
maintaining that confidence.’’111 Yet, this interest must be balanced by the
rights guaranteed by the Canadian Charter of Rights and Freedom when a
person would be affected by nondisclosure. In 2008, the Supreme Court
t h u s d e c i d e d t h a t a C a n a d i a n d e f e n da n t , O m a r K h a d r , h e l d a t
Guantanamo Bay, Cuba, by the United States was entitled, pursuant to
Section 7 of the Charter, to obtain from the CSIS, the RCMP, the Attorney
General of Canada, and the departments of Justice and Foreign Affairs all
materials relevant to U.S. proceedings against him that were in their
possession. 112 In the view of the Supreme Court, the involvement of
Canadian officials in the Khadr proceedings, in relation to which the
United States Supreme Court had found Guantanamo detainees to have
been illegally denied their rights under procedures violating the Geneva
Conventions, thus did not preclude the application of the Charter’s Section 7
and the disclosure of materials arising from their participation in an illegal
process, which include any records of the interviews conducted by
Canadian officials and any records of any information given to the U.S. as
a result of these interviews. Information relevant to U.S. proceedings
against Khadr provided to Canada by the United States for intelligence or
law enforcement purposes were thus excluded from disclosure because they
were unrelated to the visits of Canadian officials to Guantanamo. The
Supreme Court directed the Federal Court ‘‘to conduct a section 38 review
of the information to give effect to the Charter remedy arising from the
involvement of Canadian officials in an illegal foreign process.’’113
Subsection 38.11(1) stipulates that a hearing, appeal, or review of an
order shall be heard in private (where all parties are present), which by
definition prohibits the media from attending. The constitutionality of
that and related provisions (confidentiality of applications for an order,
and confidentiality of court records), as they specifically apply to the
Federal Court and where no secret information is disclosed, was
challenged in Federal Court in Toronto Star Newspapers Limited and
Kassim Mohamed v. Her Majesty the Queen in Right of Canada (2007).

The Attorney General agreed with the plaintiffs that these provisions
contradict the open court principle, a value enshrined, and recognized as
such by the Supreme Court, in Section 2b) of the Canadian Charter of
Rights and Freedom (freedom of thought, belief, opinion, and expression,
including freedom of the press and other media of communication). The
Federal Court agreed, for the reason the Supreme Court enunciated in
Ruby v. Canada (Solicitor General) [2002] 4 S.C.R., ‘‘that the mandatory
requirement to exclude the public from portions of the review hearing
when there existed no risk that national security information or foreign
confidences could be disclosed was overbroad.’’ 114 Private sessions,

therefore, are presumptively open to the public, with the courts retaining
sufficient discretionary authority to exclude the public in circumstances
when this may be deemed necessary. A similar logic applies to
applications and court records. The decision, of course, did not apply to
ex parte representations.
The Anti-Terrorism Act amended the Canada Evidence Act by giving power
to the Attorney General to keep information secret, after an order for
disclosure is issued by the Federal Court, upon the filing of a certificate to
that effect in Federal Court, subject to judicial review by the Federal
Court of Appeal. The applicable subsection reads as follows:
38.13
(1) The Attorney General of Canada may personally issue a certificate
that prohibits the disclosure of information in connection with a
proceeding for the purpose of protecting information obtained in
confidence from, or in relation to, a foreign entity as defined in
subsection 2(1) of the Security of Information Act or for the
purpose of protecting national defence or national security.115
The certificate is valid for fifteen years, and may be refiled.

Limits on disclosure are also recognized with respect to information already
available in the public domain, especially if disclosure would be injurious to
international relations or national defense or national security.
Circumstances in which limits could be set include: ‘‘where only a limited
part of the information was disclosed to the public; information is not widely
known or accessible; the authenticity of information is neither confirmed nor
denied; and where the information was inadvertently disclosed.’’116
C. Administrative Review
In situations where a security incident is reported or discovered, a review into
the incident may be ordered. The DSO of the Department or agency where
the incident occurred would normally be charged to undertake the review.
Section 10.15 of the Government Security Policy stipulates that each

government department and agency ‘‘must develop procedures for reporting

and investigating security incidents and taking corrective action,’’ and report
incidents as follows:
(a) Incidents suspected of constituting criminal offences to the appropriate law

enforcement authority.
(b) Incidents involving the compromise of Cabinet confidences to the Privy Council
Office.
(c) Incidents involving threats to the national interests to the Canadian Security
Intelligence Service.
(d) Incidents and threats affecting the availability of critical assets and services to
the Office of Critical Infrastructure Protection and Emergency Preparedness.
(e) Incidents which can be considered as a ‘‘hazardous occurrence’’ or involve
employee injury to the health and safety committee and to Health and Safety
Officers appointed under the Canada Labour Code.
(f) Incidents that have an impact on government operations or that could require
revisions to operational standards or technical documentation, to the
Treasury Board of Canada Secretariat.117
As incidents are internal to government, no statistics on their numbers

are available and very few of them are ever reported in the press. One
recent exception concerns the resignation of the Minister of Foreign
Affairs on 26 May 2008 after he acknowledged that he had left classified
documents (background briefing materials for the NATO Summit of
April 2008, which included Secret, Confidential, Protected, and NATO
Restricted documents) at a private residence. An administrative review of
that incident, including a damage assessment to determine the degree of
injury to the national interest and recommendations to prevent future
incidents of that nature, was ordered by the Clerk of the Privy Council
(Canada’s highest-ranked public servant) and conducted by the
Department of Foreign Affairs–DSO with the assistance of a private
investigations firm. The report of that review was made public due to the
public interest in the matter, and clearly pointed out the inadequacy of
procedures within the Office of the Minister for the protection of
classified information. On the matter of injury to the national interest,
the report concluded that it would not have been significant, especially
since the materials did not contain any operational information, as
defined by the Security of Information Act or classified material from
allied governments, with the exception of two documents marked NATO
Restricted.118 The authors of the report noted that external observers
would likely interpret the incident ‘‘as the result of careless handling of
classified information by an individual rather than a systemic failure of
the Government’s regime for protecting classified information.’’
Corrective measures have since been implemented to ensure full

compliance with the Government Security Policy and departmental policies

and guidelines.119
CHECKS AND BALANCES

In addition to the noted review mechanisms for the CSIS and CSEC, several
other acts apply to the activities of the core agencies of Canada’s Intelligence
Community. They include the following:
A. The Public Servants Disclosure Protection Act

Assented to in November 2005, the Public Servants Disclosure Protection Act
establishes a procedure for the disclosure of wrongdoings in the public sector,
including the protection of persons who disclose the wrongdoings, but
excludes from its application employees of the CSIS and CSEC. Instead,
organizations excluded from the Act, such as the CSIS and CSEC, must
establish internal procedures for the disclosure of wrongdoings, including
the protection of the employees who disclose the wrongdoings. Those
procedures must, pursuant to Section 52, and in the opinion of the
Treasury Board, be similar to those set out in the Act.
B. The Auditor General Act

The Auditor General of Canada, as an officer of Parliament, reports
annually to the House of Commons on his examinations of the accounts
of Canada, and calls attention, in accordance with Subsection 7(2) of the
Auditor General Act, to accounts that have not been faithfully and
properly maintained, or for which public money has not been fully
accounted for or paid; to essential records that have not been maintained;
to the lack of sufficient safeguards in the control of public property; to
unauthorized expenditures; to expenditures made without due regard to
economy or efficiency; to the lack of satisfactory procedures to measure
and report the effectiveness of programs; and to expenditures made
without due regard to their environmental effects. In his examinations, the
Auditor General, in accordance with Subsection 13(4) of the Act, shall
‘‘exercise all the powers of a commissioner under Part I of the Inquiries
Act.’’ The power of examination of the Auditor General extends to the
departments and divisions or branches of the federal public administration
listed in Schedule 1 of the Financial Administration Act. These include the
intelligence organizations, and departments and agencies performing an
intelligence function as part of their operations, namely the CSIS, the
Office of the CSEC Commissioner, the SIRC, the Department of National
Defence; the Department of Foreign Affairs and International Trade; the

Department of Transport, and the Department of Public Safety. The first

audits of the Intelligence Community by the Auditor General since the
position was established in 1868, on control and accountability, occurred
in 1996, and one of his recommendations was for the government to
propose enabling legislation for the CSE.120
Since 9=11, the Auditor General has scrutinized the Intelligence
Community on a few occasions. In Chapter 10 of her 2003 report to the
House of Commons, for example, the Auditor General noted a lack of
consistency in mandate, authorities, and reporting between the different
agencies tasked with a review function. She stressed the lack of

independent review for the majority of the players within the Intelligence
Community, in particular singling out the RCMP, noting that its
complaints commission was not set for that task and had too few
powers. 121 In her 2004 Report, the Auditor General devoted an entire
chapter to the government’s 2001 Public Safety and Anti-Terrorism
Initiative (PSAT), and the spending of C$7.7 billion over five years to
enhance the security of Canadians. Specifically, the Auditor General
examined the overall management of the initiative, the coordination of
intelligence among departments and agencies, and their ability to provide
adequate intelligence to law enforcement, the interoperability of security
and intelligence systems, and issues related to criminal intelligence. The
Auditor General concluded that spending under the initiative was
appropriately managed and channeled to priority areas, but that a
management framework was lacking to ‘‘direct complementary actions in
separate agencies or to make choices between conflicting priorities.’’122
With respect to intelligence, a lack of coordination and of a process to
capture lessons learned from critical incidents was noted, as well as the
failure to improve the interoperability of security information systems.
An examination of watch lists used to screen individuals reaching
Canadian soil revealed gaps, inconsistencies, and an overall lack of quality
control. Finally, the Auditor General noted that criminal intelligence was
not, but should be, used before granting access clerances to restricted areas
to airport workers.
C. Privacy Act
The purpose of the Privacy Act is twofold: to protect the privacy
of individuals, and to provide individuals with a right of access to
personal information about themselves held by the government. Section 4
explicitly forbids government institutions from collecting personal
information unless ‘‘it relates directly to an operating program or activity
of the institution.’’ Pursuant to Section 5, and to the extent possible,
personal information should be collected from the individuals themselves,

with government entities explaining to them why the information is being

collected. Once collected, personal information can be used only for the
purpose for which it was collected, or for a use consistent with that
purpose, unless otherwise authorized by any other act of Parliament.
Under Section 12, any Canadian or permanent resident can request access
to his personal information, and even request that corrections to be made
if he believes an error has been committed.
But the right of access is limited. The head of a government institution can
refuse to give access to any personal information requested, in which case an
applicant is entitled to complain to the Privacy Commissioner, and

subsequently apply for judicial review in Federal Court. The personal
information that cannot be disclosed includes, inter alia, any personal
information obtained in confidence from the government of a foreign state
or institution, any personal information which could reasonably be
expected to be injurious to the conduct of international affairs, the defense
of Canada or of any state allied or associated with Canada, or the efforts
of Canada toward detecting, preventing, or suppressing subversive or
hostile activities, and any personal information obtained or prepared by
any body investigating activities suspected of constituting threats to the
security of Canada within the meaning of the Canadian Security
Intelligence Service Act.
The Privacy Commissioner, usually a strong advocate of privacy rights,
can investigate complaints and prepare special studies. For instance, since
the National Defence Act was amended to give the CSEC a proper
legislative mandate, the Office of the Privacy Commissioner has examined
its activities but has not raised any issue of concern.123
D. Access to Information Act

The Access to Information Act became law in 1983. The Act contains several
exemptions that allow intelligence agencies to protect the records they receive
in confidence from foreign governments or dealing with national security.
The majority of requesters are in ‘‘business,’’ the minority are
‘‘academics.’’ Canadians denied access to documents on national security
grounds can complain to the Information Commissioner, who would try to
negotiate a solution to the differences between the complainant and the
department or agency which denied access. The Commissioner can also
represent a complainant at a Federal Court review.124 The Act, according
to intelligence scholar Wesley Wark, ‘‘has been no less than a disaster.’’
The process is slow and piecemeal, and neglects the bulk release of
historical records. The Act also does not envisage the automatic release of
any documents after a set period of time. Public knowledge of intelligence
issues is, therefore, not what advocates would hope it to be.125

Nonetheless, a surprising number of intelligence documents, although at

times heavily redacted, have been released under the Act by the CSIS
Inspector General and the CSIS, including several documents prepared by
its Integrated National Security Assessment Center (INSAC), which was
later replaced by the Integrated Threat Assessment Centre (ITAC).
In addition to corporate documents, some of the titles released in recent
years include: ‘‘ ‘Lone-Wolf Attacks’: A Developing Islamist Extremist
Strategy?’’; ‘‘Radicalization and Jihad in the West’’; ‘‘Espionage in
Canada’’; ‘‘Sons of the Father: The Next Generation of Islamic Extremists
in Canada’’; ‘‘The Creation of a New Peace Movement?’’; ‘‘Al-Qaida

Possessing Russian Nuclear Briefcases: Fiction or Fact?’’; ‘‘The
International Terrorist Threat to Maritime Transportation’’; ‘‘International
and National Terrorist Threats to Surface Transportation’’; ‘‘NATO’s
Intelligence Efforts to Prevent Terrorist Acts’’; ‘‘ETA’s Ceasefire’’;
‘‘Belgium, France and the Recognition of the 1915 Armenian Genocide:
Reactions and Potential for Violence’’; ‘‘End of Mandate for the United
Nations Transition Mission in Haiti (UNTMIH): Security Implications for
Canada’’; and ‘‘Threats to Canadian Interests from Colombia’s National
Liberation Army.’’126
E. Commissions and Inquiries

Prior to 9=11, Royal Commissions or commissions of inquiries relating to
security and intelligence were quite rare. One was focused on Soviet
espionage (the Taschereau–Kellock Commission of 1946 on the
Gouzenko revelations of Soviet espionage in Canada) and the other two
(the Mackenzie Royal Commission reporting in 1969, and the
MacDonald Royal Commission in 1981) on certain activities of the
RCMP (the first on security procedures against subversion and the rights
of those accused, and the second on illegal activities directed at Quebec’s
separatist movement). Because national security intelligence work was
deemed incompatible with the role of a police force, the Mackenzie
Commission had recommended the creation of a civilian security service
separate from the RCMP, and a Security Review Board to hear appeals
from individuals denied a security clearance. The government did not
follow this advice; instead, it further isolated the Security Service from
the rest of the RCMP. The MacDonald Commission made very similar
recommendations, along with strong and wider-ranging accountability
mechanisms, a s t he Mackenzie Commission, and many of the
Commission’s recommendations were ultimately heeded by government
with the subsequent passing of the Canadian Security Intelligence Service
Act in 1984.127 Post-9=11, an unprecedented number of commissions of
inquiry were set up to address specific national security issues in which

the Intelligence Community was heavily involved. Under the Inquiries Act,
a commissioner can compel someone to testify or produce documents, but
the Attorney General reserves the right to claim national security
confidentiality to prevent the disclosure of information into the public
domain. If national security confidentiality is claimed, the commissioner
can then hold hearings in camera.
1. The Commission of Inquiry into the Actions of Canadian Officials in

Relation to Maher Arar. The Commission was established in February
2004 pursuant to the Inquiries Act and mandated ‘‘to investigate and
report on the actions of Canadian officials in relation to Maher Arar
(Factual Inquiry) as well as to recommend an arm’s-length review
mechanism for the activities of the RCMP with respect to national security
(Policy Review).’’128
The Commission issued its report in two parts, Part I and Part II. In Part I,
the Commissioner, the Honourable Dennis R. O’Connor, Associate Chief
Justice of Ontario, found that the sharing of intelligence (that was shown
to be inaccurate) by the RCMP, some of which had been obtained from
the CSIS for investigative purposes, was not done in accordance with its
own policies (that the information intended for sharing be assessed with
respect to its relevance, reliability, and that it be properly caveated), and
that it was very likely U.S. authorities had relied on RCMP intelligence in
deciding to deport Maher Arar to Syria, where he was tortured. In Part II,
the Policy Review, the Commissioner concluded that the RCMP’s national
security activities were not subject to adequate accountability and review
mechanisms. He recommended a new review mechanism for the RCMP
(the Independent Complaints and National Security Review Agency)
following the model of the SIRC, but which would also have extensive
investigative powers similar to those found in the Inquiries Act, and
jurisdiction over all of the RCMP’s activities. With respect to the national
security activities of departments and agencies not subject to any
independent review mechanism—namely, the Canada Border Services
Agency, Transport Canada, Citizenship and Immigration Canada, the
Financial Transactions and Reports Analysis Centre of Canada, and
Foreign Affairs and International Trade Canada—the Commissioner
recommended that their activities be reviewed by the SIRC, with the
exception of the Canada Border Services Agency, whose activities would
fall under the purview of the RCMP’s new review mechanism. In addition,
he recommended that all review agencies be linked, which would facilitate
the review of integrated operational activities.129
2. Commission of Inquiry into the Investigation of the Bombing of Air India

Flight 182. The Commission was established in May 2006 pursuant to the

Inquiries Act and mandated to conduct an inquiry into the investigation of

the bombing of Air India Flight 182, which occurred on 22 June 1985,
killing 329 passengers and crew. The Commission issued its first report in
December 2007, well before the Inquiry was complete. In it, the
Commissioner, the Honourable John C. Major, Q.C., focused on the
human element of the tragedy and detailed the stories of many of
the victims of the bombing and their families. In a second report that has
yet to be published, the Commissioner is expected, as per his terms of
reference, to give ‘‘weight to the findings of other examinations of
the circumstances surrounding the bombing of Air India Flight 182,’’ and
to make findings and recommendations with respect to the following,
namely, in so far as it concerns intelligence matters:
(i) if there were deficiencies in the assessment by Canadian government officials of

the potential threat posed by Sikh terrorism before or after 1985, or in their
response to that threat, whether any changes in practice or legislation are
required to prevent the recurrence of similar deficiencies in the assessment of
terrorist threats in the future,
(ii) if there were problems in the effective cooperation between government
departments and agencies, including the Canadian Security Intelligence
Service and the Royal Canadian Mounted Police, in the investigation of the
bombing of Air India Flight 182, either before or after June 23, 1985,
whether any changes in practice or legislation are required to prevent the
recurrence of similar problems of cooperation in the investigation of
terrorism offences in the future, and
(iii) the manner in which the Canadian government should address the challenge, as
revealed by the investigation and prosecutions in the Air India matter, of
establishing a reliable and workable relationship between security intelligence
and evidence that can be used in a criminal trial.130
3. Internal Inquiry into the Actions of Canadian Officials in Relation to

Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin. The
Internal Inquiry was established in December 2006 pursuant to the
Inquiries Act and mandated to determine
(1) whether the detention of Abdullah Almalki, Ahmad Abou-Elmaati, and

Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from
actions of Canadian officials, particularly in relation to the sharing of
information with foreign countries and, if so, whether those actions were
deficient in the circumstances;
(2) whether there were deficiencies in the actions taken by Canadian officials to
provide consular services to Abdullah Almalki, Ahmad Abou-Elmaati, and
Muayyed Nureddin while they were detained in Syria or Egypt; and
(3) whether any mistreatment of Abdullah Almalki, Ahmad Abou-Elmaati, and
Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from

actions of Canadian officials, particularly in relation to the sharing of

information with foreign countries and, if so, whether those actions were
deficient in the circumstances.
The Commissioner, The Honourable Frank Iacobucci, Q.C., issued two

reports to the Governor-in-Council in October 2008—one public, and one
confidential to avoid the disclosure of information subject to national
security confidentiality. Contrary to the preceding two inquiries, his was
conducted in private, given the wide range of national security issues at
play. This allowed for a faster, and less complicated and expensive
inquiry. With respect to his terms of reference, the Commissioner
concluded that, in the case of Abou-Elmaati, a dual Canadian–Egyptian
citizen, the actions of Canadian officials—namely, the sharing of
information, the sending of questions by the CSIS, and the lack of
consular support—likely contributed to his detention in Syria and Egypt,
where he was mistreated. With respect to Almalki, a dual Canadian–
Syrian citizen, the Commissioner concluded that the actions of Canadian
officials did not directly result in his detention in Syria, where he was
mistreated, but he could not say whether his detention was the indirect
result of the actions of Canadian officials. As for Almalki’s mistreatment,
the commissioner assessed that it was an indirect result of two actions of
Canadian officials—namely, the sharing of information with U.S.
agencies by the RCMP, and the sending by the RCMP of questions to
Syria to be answered by Almalki. In the case of Nureddin, a dual
Canadian–Iraqi citizen, the Commissioner found that his detention in
Syria, where he was mistreated, was not the direct result of actions by
Canadian officials, but that their actions, including the sharing of
information with foreign agencies, likely contributed to his detention as
well as his mistreatment.131
FACING A CONTINUING CHALLENGE

In light of the foregoing, Canada’s legal framework for intelligence is under
qualified stress. While the judiciary continues to give deference to the
executive in national security matters, this deference is not without limits.
In several cases, the courts have noted severe deficiencies related to due
process, and even declared unconstitutional numerous amendments
introduced by the 2001 Anti-Terrorism Act. Post-9=11, the SIRC, the
CSEC Commissioner, and two commissions of inquiry have highlighted
legal problems and intelligence-sharing practices lacking safeguards that
are in need of resolution. Both the conflict betwee n the CSEC
Commissioner and the Department of Justice over the legal interpretation
of Ministerial Authorizations, and the need for the CSEC to keep pace

with technological developments, are pressing issues.132 The CSIS would

eagerly support the latter point, as it would like to obtain the ability to
legally access ‘‘rapidly-changing e-mail and voice-over-Internet
communications,’’ since it finds tapping the communications of its
investigative targets increasingly difficult. Such changes were first proposed
nearly a decade ago, in 2000, but they have apparently not moved beyond
the consultative stage. 133 The CSIS would also welcome changes to the
CSIS Act that would allow it to obtain the legal authority to use intrusive
measures, such as communications intercepts, against Canadian targets
abroad.134 Also pressing is the need to fix the unconstitutional provisions

of the Security of Information Act, and to provide a better legal or policy
framework for intelligence-sharing practices across government
departments and agencies, and with foreign entities, 1 3 5 as well as
implementing the recommendations of the O’Connor Commission. 136
While the government has amended the IRPA to provide for special
advocates, future challenges to the security certificate process are likely to
emerge. The pressure by law enforcement for using intelligence as evidence
will probably grow, as it is the best means to justify preventive actions. As
Professor Wesley Wark has quipped:
After more than six years of debate over national security law, we still
haven’t satisfied ourselvs that we have got it right. That is to our great
credit as a society, but it is not good enough. The ultimate objective is
to have a workable system of laws to protect national security. We are
not there yet.137
The legal framework for intelligence in Canada was not much in anyone’s
mind prior to 9=11, with the exception of the review mechanisms for the
CSIS.138 As national security law has become more pervasive in its effect
on individual rights, more attention is being paid to it by scholars. In 2008,
Craig Forcese of the University of Ottawa published Canada’s only national
security law textbook.139 Developing further expertise in this area of law will
be necessary if Canada’s Intelligence Community is to remain legally resilient
and effective despite the tensions between ensuring both collective security
and individual rights.
REFERENCES
1
Section 91 of the Constitution Act, 1867.
2
As Donald F. Kettl noted, ‘‘the rule of law creates the foundation for
administrative accountability. Since government in action so often is the
action of administrators, the rule of law provides the mechanism for
constraining how administrators exercise their power. It tells them what they
can do and what will happen to them if they step beyond their boundaries.’’

Kettl, ‘‘Administrative Accountability and the Rule of Law,’’ PS: Political

Science and Politics, Vol. 42, No. 1, January 2009, p. 12.
3
Section 7 of the Canadian Charter of Rights and Freedom, Schedule B to the
Canada Act 1982 (U.K.) 1982, c. 11.
4
Of the Canadian Charter of Rights and Freedom, which states: ‘‘Everyone has the
right to be secure against unreasonable search or seizure.’’
5
R. v. Dyment, [1988] 2 S.C.R. 417, quoted in A. Wayne MacKay, ‘‘Human
Rights in the Global Village: The Challenges of Privacy and National
Security,’’ National Journal of Constitutional Law, Vol. 20, No. 1, December
2006, p. 9.
6
As reported by the Communications Security Establishment Commissioner in
his Annual Report 2004–2005 (Ottawa: Minister of Public Works and
Government Services Canada, 2005), p. 16.
7
Canada’s Security Response: Accommodation or Divergence? Presentation to the
Standing Committee on Justice, Human Rights, Public Safety, and Emergency
Preparedness (Ottawa: EKOS Research Associates, 14 December 2004), p. 9.
8
For a brief discussion, see Emmett Macfarlane, ‘‘Terms of Entitlement: Is There
a Distinctly Canadian ‘Rights Talk?,’’’ Canadian Journal of Political Science,
Vol. 41, No. 2, June 2008, pp. 314–315, 319.
9
Reg Whitaker, ‘‘Before September 11—Some History Lessons,’’ in Terrorism,
Law, and Democracy: How Is Canada Changing Following September 11?,
David Daubney, Wade Weisman, Daniel Jutras, Errol P. Mendes, and Patrick
A. Molinari, eds. (Montreal: Les Éditions Thémis, 2002), p. 48.
10
Section 16 of the then Official Secrets Act.
11
Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar, A New Review Mechanism for the RCMP’s National Security
Activities (Ottawa: Public Works and Government Services Canada, 2006),
pp. 30–31.
12
Such was the case, for example, of the creation of Canada’s voluntary Interview
Program, now a component of the Department of Foreign Affairs and
International Trade, approved through an order-in-council in April 1953. See
Kurt F. Jensen, ‘‘Canada’s Foreign Intelligence Interview Program,
1953–1990,’’ paper presented at the 2002 CASIS International Conference on
‘‘The New Intelligence Order: Knowledge for Security and International
Relations,’’ Ottawa, 27 September 2002.
13
‘‘The Privy Council Office (PCO) reports directly to the Prime Minister
and is headed by the Clerk of the Privy Council and Secretary to the Cabinet.
It is both the Cabinet secretariat and the Prime Minister’s source of public
service advice across the entire spectrum of policy questions and operational
issues facing the Government.’’ The Role and Structure of the Privy Council
Office, revised edition (Ottawa: Her Majesty the Queen in Right of Canada,
2008), p. 1.
14
In 2005, it was referred to as the ‘‘requirements committee’’ by the then–Chief of
the Communications Security Establishment. See the testimony of Keith Coulter

before the Subcommittee on Public Safety and National Security of the Standing
Committee on Justice, Human Rights, Public Safety and Emergency
Preparedness, House of Commons, 38th Parliament, 1st Session, Evidence,
4 May 2005.
15
Communications Security Establishment Commissioner, Annual Report
2003–2004 (Ottawa: Minister of Public Works and Government Services
Canada, 2004), p. 3.
16
Securing an Open Society: Canada’s National Security Policy (Ottawa: Privy
Council Office, April 2004), p. 9.
17
Subsection 127.1 (1)(a) states: ‘‘The Governor in Council may appoint persons
to the following positions and fix their remuneration: (a) deputy minister,
associate deputy minister and positions of equivalent ranks.’’
18
The Role and Structure of the Privy Council Office, p. 2.
19
There have been few Cabinet committees with a focus on national security and
intelligence in Canada’s history, a clear reflection of the neglect of security and
intelligence among successive governing political classes. See Reg Whitaker,
‘‘9=11 and the Canadian Security and Intelligence Community,’’ paper
presented at the 2002 CASIS International Conference on ‘‘The New
Intelligence Order: Knowledge for Security and International Relations’’
(Ottawa: 26 September 2002), pp. 2–3. On the lack of an intelligence culture
in Canada, see Stéphane Lefebvre, ‘‘Cultura de la Inteligencia en Canadá:
Una Evaluación [Canada’s Intelligence Culture: An Assessment],’’ in
Democratización de la Función de Inteligencia: El Nexo de la Cultura
Nacional y la Inteligencia Estratégica, Russell G. Swenson and Susana
C. Lemozy, eds. (Washington, D.C.: National Defense Intelligence College
Press, 2009), pp. 365–386.
20
Cabinet Committee Mandates and Membership (Ottawa: Office of the Prime
Minister, 30 October 2008), accessed at http://www.pm.gc.ca/grfx/docs/
Cab_committee-comite.pdf
21
The Role and Structure of the Privy Council Office, pp. 9–10.
22
Ibid., p. 10.
23
Proceedings of the Standing Senate Committee on National Security and
Defence, Issue 17—Evidence—Meeting of 18 June 2007, accessed at http://
www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/defe-e/17evb-
e.htm?Language=E&Parl=39&Ses=1&comm_id=76
24
Details on these requirements have appeared in the Annual Reports of the
Security Intelligence Review Committee (SIRC). See SIRC’s Web page at
http://www.sirc-csars.gc.ca
25
CSIS Director Jim Judd, ‘‘Control, Accountability, and Review: The CSIS
Experience,’’ a submission to the O’Connor Commission of Inquiry, 21
February 2005; Colin Freeze, ‘‘Heard of CSIS, CIA, RCMP? Time to Meet
TARC,’’ The Globe and Mail (Toronto), 24 June 2004.
26
According to the Government Security Policy: ‘‘The Government of Canada
must ensure that individuals with access to government information and assets

are reliable and trustworthy. For national security, it must also ensure the
individual’s loyalty to Canada in order to protect itself from foreign
intelligence gathering and terrorism. Special care must be taken to ensure the
continued reliability and loyalty of individuals, and prevent malicious activity
and unauthorized disclosure of classified and protected information by a
disaffected individual in a position of trust.’’ Government Security Policy
(Ottawa: Treasury Board Secretariat, 1 February 2002), accessed at http://
www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12322&section=text#sec10.9
27
The Treasury Board is a Cabinet committee of the Queen’s Privy Council of
Canada ‘‘responsible for accountability and ethics, financial, personnel and

administrative management, comptrollership, approving regulations and most
Orders-in-Council.’’ See http://www.tbs-sct.gc.ca/tbs-sct/abu-ans/tb-ct/abu-
ans-eng.asp
28
These guidelines, revised in 1999, were released to the media under the Access to
Information Act. Sarah Everts, ‘‘CSIS Civil Service Screening Criticized,’’
Canadian Press, 11 July 2004.
29
Government Security Policy, Subsection 10.9.
30
Reid Morden, ‘‘A Canadian Foreign Intelligence Service: A New Necessity or an
Expensive Frill?,’’ essay published by the Canadian Defence and Foreign Affairs
Institute, Calgary, 2006.
31
Such disclosure is the subject of Section 19 of the CSIS Act.
32
In Henrie v. Canada (Security Intelligence Review Committee) [1989] 2 F.C. 229,
Justice Addy noted: ‘‘The very nature and source of the information [obtained
from a national security intelligence investigation] more often than not renders
it completely inadmissible as evidence in any court of law.’’
33
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, pp. 20–21.
34
Ibid., pp. 3–4.
35
Ibid., p. 4. It is important to note that the Court did not declare to be unlawful
Service investigations where OPS-217 was applied because ‘‘[t]he seriousness of
the consequences of applying this policy may vary considerably. These
consequences must be assessed by the designated judge in light of all the
information in his or her possession. The fact that the notes are unavailable
because they have been destroyed will be a relevant factor, but not
determinative, in every case. For the future, this Court’s opinion will of course
determine the legal frameworks for the interpretation of s. 12 and for the
policy on the retention of operational notes.’’ Ibid., p. 28.
36
Subsection 21(2)(b) of the CSIS Act.
37
Subsection 21(3) of the CSIS Act.
38
Colin Freeze, ‘‘CSIS Has Easy Time Getting Warrants,’’ The Globe and Mail
(Toronto), 15 November 2004.
39
Reason for Order and Order in the Matter of an Application by [. . .] for Warrants
Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act,
R.S.C. 1985, c. C-23, Docket CSIS-18-05 (Ottawa: Federal Court of Canada, 13
July 2006), p. 11.

40
Ibid., p. 14.
41
Three CSIS intelligence officers and an official from the Department of Foreign
Affairs Foreign Intelligence Division interviewed Khadr from 13 to 16 February
2003 and again in September 2003. A Foreign Affairs official returned in March
2004. Each of these interviews was conducted for intelligence garthering
purposes. Omar Khadr and the Attorney General of Canada, Public Reason for
Order and Order, 2008 FC 807, 25 June 2008, pp. 25–26.
42
Ed Morgan, ‘‘Let CSIS into Guantanamo,’’ National Post (Toronto), 11 August
2005.
43
‘‘It is not a crime to be listed. However, one of the consequences of being
listed is that the entity’s property can be the subject of seizure=restraint
and=or forfeiture. In addition, institutions such as banks, brokerages, etc.
are subject to reporting requirements with respect to an entity’s property
and must not allow those entities to access the property nor may these
institutions deal or otherwise dispose of the property.’’ Web page of the
Department of Public Safety at http://www.publicsafety.gc.ca/prg/ns/le/
index-eng.aspx
44
Security Intelligence Review Committee, SIRC Annual Report 2004–2005: An
Operational Review of the Canadian Security Intelligence Service (Ottawa:
Public Works and Government Services Canada, September 2005), pp. 4–10.
45
Reason for Order and Order dans l’affaire d’une demande de mandats faite par
[. . .] en vertu des articles 12 et 21 de la Loi sur le Service canadien du
renseignement de sécurité, L.R.C. (1985), chap. C-23, Docket SCRS 10-07
(Ottawa: Federal Court of Canada, 22 October 2007), p. 3.
46
The judge quotes Professor Driedger, Sullivan and Driedger on the Construction
of Statutes, 4th edition (Markham: Butterworths, 2002), pp. 1, 10 with respect to
the key principle: ‘‘words of an Act are to be read in their entire context, in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act and the intention of Parliament.’’ Ibid., p. 14. Another
principle is: ‘‘a court will strive to avoid construction of domestic law
pursuant to which the state would be in violation of its international
obligations, unless the wording of the statute clearly compelled that result.’’
Ibid., p. 19.
47
Ibid., p. 16.
48
Ibid., p. 21.
49
Colin Freeze, ‘‘Judge Denies CSIS Bid to Track Terror Suspects,’’ The Globe and
Mail (Toronto), 16 February 2008. See also, Colin Freeze, ‘‘Monitoring
Canadian Suspects Abroad: Spying Laws Outdated, Expert Argues,’’ The
Globe and Mail (Toronto), 20 February 2008.
50
Physical surveillance generally does not require judicial authorization. See
Cody v. R [2007] QCCA 1276 para. 26 and 2009 FC 33, 15 January 2009,
para. 151.
51
See http://www.publicsafety.gc.ca/abt/wwa/igcsis/igcsis-en.asp
52
See http://www.sirc-csars.gc.ca/index-eng.html

53
The 2007 certificate submitted to the Minister of Public Safety by the IG read as
follow: ‘‘In respect of all the reports and information that I, and my Office, have
obtained and reviewed and of all the discussions held, and subject to the
concerns raised below, I am as satisfied as I can be with the Director’s Annual
Report to you on the Service’s operational activities for the period 2006–2007.
In that respect, it is my opinion that the Service has not acted beyond the
framework of its statutory authority, has not contravened any Ministerial
Directions, and has not exercised its powers unreasonably or unnecessarily.’’
See http://www.publicsafety.gc.ca/abt/wwa/igcsis/cert2007-eng.aspx
54
CSIS Director Jim Judd, ‘‘Control, Accountability and Review: The CSIS
Experience,’’ a submission to the O’Connor Commission of Inquiry, 21
February 2005.
55
A good sample of SIRC’s findings over the years is contained in Accountability
of Security Intelligence in Canada: A Background Paper to the Commission’s
Consultation Paper (Ottawa: Commission of Inquiry into the Actions of
Canadian Officials in Relation to Maher Arar, 10 December 2004), pp. 21–31.
56
Communication from Professor Stuart Farson of Simon Fraser University.
57
The name was changed from Communications Security Establishment (CSE) to
Communications Security Establishment Canada (CSEC) on 27 September
2007, in accordance with the government’s Federal Identity Program,
pursuant to subsection 7(1)(a) of the Financial Administration Act, which
authorizes the Treasury Board to act on matters relating to general
administrative policy in the public service of Canada. See http://www.tbs-
sct.gc.ca/fip-pcim/index-eng.asp
58
What constitutes a private communication is defined in section 183 of the
Criminal Code: ‘‘[. . .] any oral communication, or any telecommunication, that
is made by an originator who is in Canada or is intended by the originator to
be received by a person who is in Canada, and that is made under
circumstances in which it is reasonable for the originator to expect that it will
not be intercepted by any person other than the person intended by the
originator to receive it [. . .].’’
59
Testimony of Keith Coulter, Chief of CSE, before the Subcommittee on Public
Safety and National Security of the Standing Committee on Justice, Human
Rights, Public Safety and Emergency Preparedness, House of Commons, 38th
Parliament, 1st Session, Evidence, 4 May 2005.
60
In the Act, foreign intelligence is defined as: ‘‘information or intelligence about
the capabilities, intentions or activities of a foreign individual, state,
organization or terrorist group, as they relate to international affairs, defence
or security.’’
61
The RCMP is the CSE’s primary client in this regard. Communications Security
Establishment Commissioner, Annual Report 2004–2005 (Ottawa: Minister of
Public Works and Government Services Canada, 2005), p. 6.
62
Pursuant to section 273.65, part I, of the Act, a ministerial authorization must
meet four conditions: ‘‘(a) the interception will be directed at foreign entities
located outside Canada; (b) the information to be obtained could not

reasonably be obtained by other means; (c) the expected foreign intelligence

value of the information that would be derived from the interception justifies
it; and (d) satisfactory measures are in place to protect the privacy of
Canadians and to ensure that private communications will only be used or
retained if they are essential to international affairs, defence or security.’’ See
also the testimony of Keith Coulter, Chief of CSE, before the Subcommittee
on Public Safety and National Security, 4 May 2005.
63
2005 PSLRB 89, 3 August 2005, decision available at http://www.canlii.org/
64
2005 PSLRB 68, 30 June 2005, decision available at http://www.canlii.org/
65
‘‘Binding recommendations would usurp the prerogative of both the Minister [of
National Defence], who has overall responsibility for CSE, and the Chief of
CSE, who is responsible [. . .] for the management and control of the
organization.’’ Communications Security Establishment Commissioner, Annual
Report 2004–2005, p. 10. Numbers are from Communications Security
Establishment Commissioner, Annual Report 2005–2006 (Ottawa: Minister of
Public Works and Government Services Canada, 2006), p. 12.
66
Pursuant to subsection 15.(5)(b)(ii) of the Security of Information Act, these
concerns would be from a person who has not received a response from the
deputy head of the Deputy Attorney General of Canada within a reasonable
time with respect ‘‘to an alleged offence that has been, is being or is about to
be committed by a member of [CSE] [. . .].
67
Canada, 2007), p. 6.
68
Prior to the Anti-Terrorism Act, the Commissioner submitted annual reports to
the Minister on his activities and findings pursuant to paragraph (g) of the Order
in Council appointing him to the position.
69
Canada, 2004), p. 10.
70
Canada, 2006), p. 11.
71
Isabelle Moses, ‘‘CDI: Building a 21st Century Defence Intellience Capability,’’
The Maple Leaf, Vol. 10, No. 5, 14 February 2007, p. 16.
72
Office of the Auditor General of Canada, Report of the Auditor General of
Canada to the House of Commons. Chapter 10: Other Audit Observations
(Ottawa: Minister of Public Works and Government Services Canada,
November 2003), p. 35.
73
These DAO Ds are: 8002-0, Counter-Intelligence; 8002-1, National
Counter-Intelligence Program; 8002-2, Canadian Forces National
Counter-Intelligence Unit; and 8002-3, Security Intelligence Liaison Program.
They are available on the Internet at http://www.admfincs.forces.gc.ca/dao-
doa/8000/index-eng.asp

74
CFSOC Web page is at: http://www.img-ggi.forces.gc.ca/org/cfi-goi/cfsoc-
cosfc-eng.asp As the CFSOC Web page appears outdated, the new 2005
Direction’s reference was found at http://bib.cfc.dnd.ca/ipac20/ipac.
jsp?session=12OB4A1013509.38549&profile=cfc&uri=full%3D3100001~!37497
~!0&booklistformat=#focus
75
See ‘‘Canada Sets Up New Military Spy Unit,’’ CBC News, 26 May 2008,
accessed at http://www.cbc.ca/news/; ‘‘Intelligence Soldiers in Afghanistan
Since Start of Mission: Commander,’’ CBC News, 26 May 2008, accessed at
http://www.cbc.ca/news/; and Omar El Akkad, ‘‘Proposed Army Spy Unit
Raises Worry,’’ The Globe and Mail (Toronto), 27 May 2008.

76
The case of ‘‘Paul William Hampel,’’ a Russian spy, was the latest espionage case
for which a security certificate was issued. See Stéphane Lefebvre, ‘‘Russian
Intelligence Activities in Canada: The Latest Case of an ‘Illegal,’ ’’ The Journal
of Slavic Military Studies, Vol. 20, No. 4, December 2007, pp. 549–558.
77
There were several, largely unsuccessful, challenges to these terrorism provisions.
See Barbara Jackman, ‘‘Immigration and Terrorism,’’ National Journal of
Consitutional Law, Vol. 23, 2007=2008, pp. 229–246.
78
‘‘Security Certificates,’’ at http://www.publicsafety.gc.ca/prg/ns/seccert-
eng.aspx
79
The parameters to be followed by the Minister were set by the Federal Court of
Appeal (Attorney General of Canada v. Jolly, [1975] F.C.216 (C.A.), pp.
225–229): ‘‘the fact itself need not be established and that evidence which falls
short of proving [. . .] will be sufficient if it is enough to show reasonable
grounds for believing [. . .] even after prima facie evidence negativing the fact
had been given it [is] only necessary for the Minister to lead evidence to show
the existence of reasonable grounds for believing the fact and it [is] not
necessary for him to go further and establish the fact itself.’’
80
Barbara Jackman, ‘‘Immigration and Terrorism,’’ p. 241. See also A. Wayne
MacKay, ‘‘Human Rights in the Global Village: The Challenges of Privacy
and National Security,’’ National Journal of Constitutional Law, Vol. 20, No. 1,
December 2006, pp. 33–35.
81
Barbara Jackman, ‘‘Immigration and Terrorism,’’ p. 245.
82
Mohammad Zeki Mahjoub v. The Minister of Citizenship and Immigration and the
Solicitor General of Canada, 2006 FC 1503, 14 December 2006.
83
Hassan Almrei v. The Minister of Citizenship and Immigration and the Minister of
Public Safety and Emergency Preparedness 2007 FC 1025.
84
A new security certificate was issued in February 2008 after the Supreme Court
declared unconstitutional the procedures for determining the reasonableness of a
security certificate.
85
‘‘Reasons for judgment in the matter of a certificate signed pursuant to
section 77(1) of the Immigration and Refugee Protection Act (IRPA); and in
the matter of the referral of a certificate to the Federal Court pursuant to
section 77(1) of the IRPA; and in the matter of a review of the detention of
Hassan Almrei,’’ 2009 FC 3.

86
Jim Bronskill, ‘‘Harkat Loses Bid to Quash Security Certificate, Faces
Deportation,’’ Canadian Press, 22 March 2005.
87
Tu Thanh Ha, ‘‘Terror Suspect Held for 21 Months Granted Bail,’’ The Globe
and Mail (Toronto), 18 February 2005.
88
Jan Ravensbergen, ‘‘High Court Won’t Block Deportation,’’ The Gazette
(Montreal), 19 September 2008.
89
Adil Charkaoui=Hassan Almrei and Mohammed Harkat v. The Minister of
Citizenship and Immigration and The Minister of Public Safety and Emergency
Preparedness 2007 SCC 9.
90
Specifically, under IRPA’s subsection 85.1(1), ‘‘A special advocate’s role is to
protect the interests of the permanent resident or foreign national in a
proceeding under any of sections 78 and 82 to 82.2 when information or other
evidence is heard in the absence of the public and of the permanent resident
or foreign national and their counsel.’’
91
The Act to amend the Immigration and Refugee Protection Act (certificate and
special advocate) and to make a consequential amendment to another Act, S.C.
2008, c. 3, received Royal Assent on 14 February 2008, and came into force
on 22 February 2008.
92
‘‘Security Certificates,’’ at http://www.publicsafety.gc.ca/prg/ns/seccert-eng.aspx
93
Colin Freeze, ‘‘National Security: Eavesdropping and Attorney–Client
Privilege,’’ The Globe and Mail (Toronto), 19 December 2008.
94
Canadian Press, ‘‘Six People Charged by Police after Sit-In at Lobby of CSIS
Office in Toronto,’’ 20 October 2004.
95
Barbara Jackman, ‘‘Immigration and Terrorism,’’ p. 246.
96
Charkaoui’s legal counsel said she would contest the special advocate
mechanism because, in her view, it still is not in compliance with the
Canadian Charter of Rights and Freedom. Tu Thanh Ha, ‘‘Bill C-3: Updated
Security Certificates to Face Legal Challenge,’’ The Globe and Mail (Toronto),
29 February 2008. The constitutional motion, however, was filed by Hassan
Almrei’s lawyer. In November 2008, the Federal Court ruled that that it was
too soon to decide on the constitutionality of special advocate mechanism as
there was yet no factual basis upon which to decide the motion. Colin Perkel,
‘‘Terrorism Suspects: Judge Upholds Security Legislation,’’ The Globe and
Mail (Toronto), 4 November 2008.
97
CSIS and the RCMP are part of the Passenger Protect Advisory Group, which
has the mandate ‘‘to assess information on a case-by-case basis and make
recommendations to the Minister concerning the designation of individuals or
the removal of the designation as specified persons under section 4.81 (1)(b) of
the Aeronautics Act. Transport Canada leads the Advisory Group, which is
advised by the Department of Justice.’’ See http://www.tc.gc.ca/vigilance/
sep/passenger_protect/menu.htm
98
See the Canada Gazette Part I, Vol. 140, No. 43, on 28 October 2006.
99
Michael Friscolanti and Martin Patriquin, ‘‘Caught in the No-Fly Web,’’
Maclean’s, Vol. 121, Issue 37, 22 September 2008; Michael Friscolanti, Martin

Patriquin, and Dominique Jarry-Shore, ‘‘Why Can’t This Man Fly?,’’ Maclean’s,
Vol. 121, Issue 38, 29 September 2008.
100
See Stewart Bell, ‘‘Olympics Likely Terrorist Target: CSIS,’’ The National Post
(Toronto), 11 December 2008. On ITAC, visit http://www.itac-ciem.gc.ca/
101
The Mike Frost revelations were published as Spyworld: Inside the Canadian and
American Intelligence Establishments (Toronto: Doubleday Canada Limited,
1994). On Shorten’s revelations, see Clyde H. Farnsworth, ‘‘Canadian Agency
Is Accused of Spying on Citizens and Allies,’’ The New York Times, 28
December 1995.
102
Wesley K. Wark, ‘‘Canada’s Access to Information Act and the Canadian
Security and Intelligence Community,’’ paper presented at the workshop on
‘‘Democratic and Parliamentary Oversight of Intelligence Services,’’ Geneva,
3–5 October 2002.
103
(1) Every person is guilty of an offence under this Act who, having in his possession
or control any secret official code word, password, sketch, plan, model, article,
note, document or information that relates to or is used in a prohibited place or
anything in a prohibited place, or that has been made or obtained in
contravention of this Act, or that has been entrusted in confidence to him by
any person holding office under Her Majesty, or that he has obtained or to
which he has had access while subject to the Code of Service Discipline within
the meaning of the National Defence Act or owing to his position as a person
who holds or has held office under Her Majesty, or as a person who holds or
has held a contract made on behalf of Her Majesty, or a contract the
performance of which in whole or in part is carried out in a prohibited place, or
as a person who is or has been employed under a person who holds or has held
such an office or contract, (a) communicates the code word, password, sketch,
plan, model, article, note, document or information to any person, other than a
person to whom he is authorized to communicate with, or a person to whom it
is in the interest of the State his duty to communicate it.
104
(3) Every person who receives any secret official code word, password, sketch,
plan, model, article, note, document or information, knowing, or having
reasonable ground to believe, at the time he receives it, that the code word,
password, sketch, plan, model, article, note, document or information is
communicated to him in contravention of this Act, is guilty of an offence
under this Act, unless he proves that the communication to him of the code
word, password, sketch, plan, model, article, note, document or information
was contrary to his desire.
105
(4) Every person is guilty of an offence under this Act who (b) allows any other
person to have possession of any official document issued for his use alone, or
communicates any secret official code word or password so issued, or, without
lawful authority or excuse, has in his possession any official document or
secret official code word or password issued for the use of a person other than
himself, or on obtaining possession of any official document by finding or
otherwise, neglects or fails to restore it to the person or authority by whom or
for whose use it was issued, or to a police constable.

106
See O’Neill v. Canada (Attorney General), 2006 CanLII 35004 (Ontario Superior
Court of Justice), 18 December 2006 at http://www.canlii.org/on/cas/onsc/
2006/2006onsc16405.html
107
Chris Cobb, ‘‘Liberals Aim to Broaden Secrecy Law,’’ The Ottawa Citizen,
8 September 2005.
108
Toronto Star Newspapers Limited and Kassim Mohamed v. Her Majesty the
Queen in Right of Canada 2007 FC 128, p. 21.
109
Omar Khadr and the Attorney General of Canada, Public Reason for Order and
Order, 2008 FC 807, 25 June 2008, p. 19.
110
Ibid., p. 20.
111
Ibid.
112
Canada (Minister of Justice et al.) v. Khadr, 2008 SCC 28.
113
2008 FC 807.
114
2007 FC 128, p. 21.
115
In subsection 2(1) of the Security of Information Act, a foreign entity means: ‘‘(a)
a foreign power, (b) a group or association of foreign powers, or of one or more
foreign powers and one or more terrorist groups, or (c) a person acting at the
direction of, for the benefit of or in association with a foreign power or a
group or association referred to in paragraph (b). Security of Information Act
(R.S., 1985, c. O-5).
116
Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of
Canadian Officials in Relation to Maher Arar–O’Connor Commission) 2007 FC
766, quoted in 2008 FC 807, p. 21.
117
Government Security Policy, available at http://www.tbs-sct.gc.ca/pol/doc-
eng.aspx?id=12322
118
NATO classified information must be handled by all member-states in
accordance with the NATO Security Policy, document C-M(2002)49, and the
NATO Security Committee Directive on the Security of Infornation, document
AC=35-D(2002)-REV2, both available at http://www.freedominfo.org/
119
See Final Report on the Administrative Review into the Security Incident Reported
by Maxime Bernier—Classified Documents Left at a Private Residence (Ottawa:
Department of Foreign Affairs, 16 July 2008).
120
Canada to the House of Commons. Chapter 27: ‘‘The Canadian Intelligence
Community—Control and Accountability’’ (Ottawa: November 1996).
121
Canada to the House of Commons. Chapter 10: ‘‘Other Audit Observations’’
(Ottawa: Minister of Public Works and Government Services Canada,
November 2003), pp. 33–40.
122
Canada to the House of Commons. Chapter 3: ‘‘National Security in Canada—
The 2001 Anti-Terrorism Initiative’’ (Ottawa: Minister of Public Works and
Government Services Canada, March 2004), p. 1.

123
See the testimony of Keith Coulter, Chief of CSE, before the Subcommittee on
Public Safety and National Security, 4 May 2005.
124
Accountability of Security Intelligence in Canada: A Background Paper to the
Commission’s Consultation Paper (Ottawa: Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar, 10 December 2004),
p. 47.
125
Wesley K. Wark, ‘‘Canada’s Access to Information Act and the Canadian
Security and Intelligence Community.’’
126
These titles were either released to the author or to the National Post under the
Access to Information Act.

127
For a discussion on the differences between the recommendations of the
MacDonald Commission and those recommendations that ended up in the
CSIS Act, see Accountability of Security Intelligence in Canada: A Background
Paper to the Commission’s Consultation Paper, pp. 5–10.
128
2006–2007, p. 8.
129
Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar, A New Review Mechanism for the RCMP’s National Security
Activities (Ottawa: Public Works and Government Services Canada, 2006), pp.
18–22.
130
Commission of Inquiry into the Investigation of the Bombing of Air India Flight
182, The Family Remembers (Ottawa: Minister of Public Works and
Government Services, 2008), pp. 189–191.
131
Frank Iacobucci, Internal Inquiry into the Actions of Canadian Officials in
Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin
(Ottawa: Minister of Public Works and Government Services, 2008), pp. 35–39.
132
In his 2006–2007 Annual Report, the CSE Commissioner noted that Canada’s
laws were not keeping pace with technological developments and urged that
drafters not to prepare legislation with the technologies of today in mind.
Instead, he advocated laws that ‘‘have a broad enough scope, and are also
structured [. . .] that they can accommodate new technologies, and continue to
protct both our privacy and security. Communications Security Establishment
Commissioner, Annual Report 2006–2007 (Ottawa: Minister of Public Works
and Government Services Canada, 2007), p. 4.
133
James Gordon, ‘‘CSIS Stymied by Tech-Savvy Terrorists,’’ The Ottawa Citizen,
8 August 2005.
134
CSIS’s Inspector General has reported to the Minister of Public Safety that there
is a lack of clarity with respect to what intelligence officers are allowed to do
overseas, a gap that Parliament should clarify. Colin Freeze, ‘‘Rules Urged for
Spies in Afghanistan,’’ The Globe and Mail (Toronto), 9 May 2008.
135
Both the O’Connor and Iacobucci commissions found faults with intelligence
sharing. But as Wesley Wark aptly noted: ‘‘Judicially inspired degrees of
caution about the sharing of intelligence might save some Canadians
from harm; it might also expose many Canadians to harm.’’ Wesley Wark,

‘‘The Perils of Intelligence Sharing,’’ The Globe and Mail (Toronto),

23 October 2008.
136
The government has been criticized by Amnesty International Canada, Human
Rights Watch, the Council on American–Islamic Relations Canada, and the
International Civil Liberties and Monitoring Group for not acting swiftly on
the O’Connor Commission’s recommendations. See Alex Neve, Nehal Bhutta,
Warren Allmand, and Sameer Zuberi, ‘‘Clear the Air on Security,’’ The
Ottawa Citizen, 29 July 2008. Two months later, the government
acknowledged having implemented a few recommendations, but would not
provide a status report for of each of the initial 23 recommendations made by

Justice O’Connor. Jim Bronskill, ‘‘Ottawa Stays Mum on Arar Inquiry,’’ The
Kingston Whig-Standard, 19 September 2008.
137
Wesley Wark, ‘‘Security and Freedom at an Impasse,’’ The Ottawa Citizen,
7 February 2008.
138
For a pre-9=11 overview of the Canadian intelligence literature, see Geoffrey
R. Weller, ‘‘Assessing Canadian Intelligence Literature: 1980–2000,’’
International Journal of Intelligence and CounterIntelligence, Vol. 14, No. 1,
Spring 2001, pp. 49–61.
139
Craig Forcese, National Security Law: Canadian Practice in International
Perspective (Toronto: Irwin Law, 2008).

Canada's Legal Framework For Intelligence

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Canada's Legal Framework For Intelligence

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This article was downloaded by: [Texas A & M International University]

On: 08 October 2014, At: 07:20

International Journal of Intelligence and

Canada's Legal Framework for

To link to this article: http://dx.doi.org/10.1080/08850600903347137

PLEASE SCROLL DOWN FOR ARTICLE

Canada’s Legal Framework

Stéphane Lefebvre is Section Head—Strategic Analysis at the Centre for

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2 247

Anti-Terrorism Act, in December 2001. The courts have remained fully

INTERNATIONAL JOURNAL OF INTELLIGENCE

provisions of the Criminal Code and internal policies, in the manner in

communications related to subversive activities or for the ‘‘purpose of

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

legislation applicable to each are detailed in the 2006 report of the

THE LEGAL FRAMEWORK FOR INTELLIGENCE

INTERNATIONAL JOURNAL OF INTELLIGENCE

Defence, is responsible for the Communications Security Establishment.

The NSA chairs the Deputy Minister Committee on National Security

affairs, international development, public and national security, and

The IAS chairs the Intelligence Assessment Coordinating Committee.

The NSA’s coordination of Canada’s security and intelligence community,

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

his purview. Under section 5 of the Department of Public Safety and

Pursuant to subsection 6(2) of the Canadian Security Intelligence Service

A. The Canadian Security Intelligence Service Act

INTERNATIONAL JOURNAL OF INTELLIGENCE

sabotage, foreign-influenced activities, the threat or use of acts of serious

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

(SIRC), which would investigate the matter and make appropriate

INTERNATIONAL JOURNAL OF INTELLIGENCE

that their roles in respect of public safety are, in theory, diametrically

purpose. As a result, the meaning of the word ‘intelligence’ in S. 12 should

CSIS should be required to retain all the information in its possession

(a) to enter any place or open or obtain access to any thing;

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

that judges were simply rubber-stamping applications.38 The warrant system,

The CSIS’s authority to collect information and intelligence has been

INTERNATIONAL JOURNAL OF INTELLIGENCE

Notwithstanding the SIRC’s position on the listing of Aum Shinrikyo

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

be engaged in the issuance of such warrants, which would not be

In addition to these two interrelated questions, the Federal Court also

telecommunications to or from the Canadian subjects of investigation).

INTERNATIONAL JOURNAL OF INTELLIGENCE

unionized, the CSIS, with the approval of the Governor-in-Council on the

The CSIS Act is built with a series of accountability mechanisms, including

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

The National Defence Act

to give the CSE a legislated mandate, made by a special committee reviewing

The private communications of Canadians (i.e., Canadian citizens and

INTERNATIONAL JOURNAL OF INTELLIGENCE

authorized by the Minister of National Defence only if necessary for the

(a) the interception will be directed at foreign entities located outside

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

application was approved by the Board pursuant to Section 75 of the Public

accepted—are nonbinding on the CSEC.65 The first CSE Commissioner

INTERNATIONAL JOURNAL OF INTELLIGENCE

While no mention is made of the Chief of Defence Intelligence (CDI) in

intentions of foreign states and entities. Its ability to collect information

The Immigration and Refugee Protection Act

AND COUNTERINTELLIGENCE VOLUME 23, NUMBER 2

(1) A permanent resident or a foreign national is inadmissible on security