Judge limits Canada’s international spying reach

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The Canadian Security Intelligence Service does not have the legal authority to spy outside of Canada unless national security is at stake, a Federal Court judge has ruled.

Under Canadian law, CSIS can track down terrorism suspects and other national-security threats in Canada and around the world. It is also allowed to spy on foreigners who are not considered threats to the country, but these specific probes of foreigners have to be conducted wholly within Canada, according to the court’s decision.

Wednesday’s ruling comes after CSIS sought judicial permission to buttress aspects of a domestic investigation targeting foreigners in Canada with information about them that came from outside the country.

Few other details about this particular probe are known − the names of specific countries, targets, techniques and even dates are all being withheld from the publicly released version of the decision.

The federal intelligence agency’s core mandate is to collect what it calls “security intelligence," such as information concerning terrorist threats to Canada. This mission was extended in legislation three years ago that explicitly gave CSIS the ability to conduct national-security operations outside of Canada − for example, by eavesdropping upon what terrorism suspects are saying in foreign countries.

Read more: CSIS purging years of communications data collected on Canadians

But CSIS also has a secondary mission, which is to collect “foreign intelligence." By law, these probes can only be sparked by a request from either Canada’s Foreign Affairs Minister or Defence Minister. The goal is to allow CSIS to investigate foreigners in Canada who are not classified as threats but who may hold “foreign-related information of a political, economic and commercial nature that could benefit Canada’s interests,” according to the ruling.

The problem for CSIS is that Parliament has limited these foreign-intelligence probes to “within Canada.” Government lawyers argued that such geographical distinctions are growing obsolete. In the past, federal officials have pointed out that an intelligence analyst sitting in Ottawa today can draw upon all manner of global interception techniques now shared among closely allied agencies.

Because the Federal Court oversees all CSIS bids for invasive powers, the agency filed a warrant application asking Justice Simon Noël to consider extending the reach of one of its foreign-intelligence probes so that some of the spying could take place outside Canada.

The judge’s response was to deny the bid. He reasoned that Canadian spies have never been allowed to play by U.S. Central Intelligence Agency rules.

“What is clear is that Parliament intended to grant the Service … a limited secondary mandate to collect foreign intelligence to assist the respective Ministers,” he wrote. “The geographical limitation’s purpose was to bar the Service from conducting CIA-like controversially aggressive ‘covert’ and ‘offensive’ activities abroad.”

Justice Noël went on to say that restrictions exist for good reason. The parameters are in place to “mitigate the political, diplomatic and moral risk of conducting foreign intelligence collection abroad.”

Section 16 of the CSIS Act contains the clauses that permit the ministers of Foreign Affairs or Defence to launch CSIS probes that can look at any foreigner, foreign corporation, or foreign state “within Canada.” Most of Canada’s allies have dedicated foreign-intelligence agencies, like the CIA, whose intelligence officers are free to do such investigations abroad − where they can recruit sources, implant bugs, or eavesdrop on politicians or trade delegations, to name a few well-known techniques.

Very little is known about CSIS’s own more limited and localized forays into foreign intelligence work.

Under its security-intelligence mandate, the service has tracked Russian spies, white supremacists and terrorism suspects. In the 2000s and 2010s, it was feared that terrorists could be entering Canada and “homegrown” extremists started surfacing in Algeria, Iraq and Bangladesh to launch mass-casualty attacks. As a result, Parliament updated these laws.

But the longer leash was not extended to CSIS’s foreign-intelligence work. Government lawyers acting for CSIS had argued that “Parliament would not have intended to create such a foreign intelligence gap” and that “advances in technology have made section 16 obsolete or inoperable.”

The lawyers also said that the rules could limit CSIS’s ability to gather any data. In summarizing government arguments, Justice Noël said: “The Attorney-General argues that a strict and literal interpretation of ‘within Canada’ would prevent the collection of any information with a foreign dimension.”

But the judge emphasized that the law is clear. “Parliament had a clear opportunity to amend the territorial restriction in Section 16 to provide an extraterritorial collection power but did not do so,” he wrote.

He then added: “I am not permitted to grant warrants for extraterritorial activities when Parliament has clearly not given me the power under my warrant jurisdiction to do so." He also said: "I am very concerned that the interpretation put forward by the Attorney-General could open the door to other activities not intended by Parliament.”

This is the second time in three years that Justice Noël has devoted lengthy passages of a public ruling to warn CSIS not to veer from its own laws. In 2016, he used similar logic to attack the spy service’s creation of a data warehouse without telling his court about it. Forms of data were unlawfully retained there for years, he ruled.

CSIS is not accused of having done anything unlawful in the new case. “It’s important to note that today’s decision by the Federal Court is not a criticism of activities of the Service, but rather serves to again highlight the need to continuously update the CSIS Act,” said John Townsend, spokesman for the spy agency. He added that “the collection of foreign intelligence is crucial” and that this material helps Canada decide “key foreign-policy issues and national defence.”