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A federal appeals court has refused to overturn a ruling that blocks the Canadian Security Intelligence Service from conducting certain forms of spying on suspected agents of foreign states.

Writing for a unanimous three-judge panel, Justice John Laskin ruled that CSIS cannot pursue the kinds of surveillance it wants unless it more clearly conveys to judges that it is following the law. This includes the laws that place geographic restrictions on CSIS spying.

In this case, the spy agency failed to provide the courts with “clear and explicit evidence as to the nature and location of the activities for which a warrant was sought,” according to Justice Laskin.

The finding leaves in place a lower-court decision from July. In that decision, Justice Simon Noël granted CSIS a warrant to spy on a foreign power, but refused a request to lift traditional territorial restrictions on CSIS’s surveillance operations. No details about the specific targets or techniques were revealed in either ruling.

The spy agency’s foundational laws state that its investigations shall take place only “within Canada.” These limits were meant to help “mitigate the political, diplomatic and moral risk of conducting foreign intelligence collection abroad,” Justice Noël had ruled.

Government lawyers representing CSIS appealed that finding, saying it was a misinterpretation of the data-spying case they had presented. Earlier they had argued that a literalistic reading of the law had created “a foreign intelligence gap” and rendered the laws around important probes “obsolete or inoperable.”

These arguments did not persuade the Federal Court of Appeal.

In his heavily redacted ruling, Justice Laskin said the onus will always be on CSIS to communicate as clearly as it can to its judges. A court needs to “understand precisely what activities it is being asked to authorize, where those activities will take place, and what the impact of those activities might be,” he wrote. Justice Laskin added that this “is especially so where, as here, the location of the activities for which the warrant is sought is central.”

He was not fundamentally dismissive of the government’s argument to revisit the issues at stake in the case. “I would not foreclose the possibility that in a future warrant application, the evidence might be sufficiently specific” to grant the power, he wrote.

Cryptic questions about where exactly data spying is taking place have been expressed repeatedly and publicly by the Federal Court in recent years, as the judges designated to handle CSIS cases struggle to square old laws with new spying techniques.

Formed in 1984 by an act of Parliament, CSIS was created as a spy service on a short leash. Its principal laws dictated the territorial restriction, strong limits on data collection and that any bids for invasive spying would need to be first approved by the courts.

In the 2000s, CSIS began having trouble keeping up with internet communications and with Canadian-born terrorism suspects who were travelling to places such as Afghanistan, Somalia and Iraq. The spy agency and its handlers pressed in court and in Parliament for a relaxation of the rules. Eventually they were given legal permissions to spy globally for counterterrorism investigations.

But CSIS’s so-called “foreign intelligence” investigations remain restricted. By nature such relatively rare probes do not necessarily involve national-security threats. They are sparked by a request from the minister of national defence or foreign affairs, who can ask CSIS to discern what a foreign state or its agents may be up to in Canada.

Spy services inevitably strive to safeguard their methods, so the Federal Court hearings into CSIS intelligence-warrant applications are inevitably closed-door dialogues.

Traditionally these surveillance debates involve only government lawyers, CSIS witnesses and judges. But lately, a special class of cleared lawyers known as amicus curiae have been allowed inside the court to argue against the government.

Owen Rees, one of two such lawyers in the Federal Court of Appeal case, was hired by the government last month. He will head the federal Justice Department wing that manages CSIS’s relationship with its courts.

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