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JURISDICTION
Only foreign nationals could be targeted when CSIS exercising warrant powers

Canadian Security Intelligence Service (“CSIS”) applied for warrants pursuant to ss. 16 and 21 of Canadian Security Intelligence Services Act. Issue raised was whether Federal Court has power to issue warrants, pursuant to ss. 16 and 21 of Act, authorizing CSIS to intercept communications of or utilize other intrusive investigative techniques in relation to Canadian citizen, permanent resident or corporation. Section 16(1) of Act provides that CSIS may assist Minister of National Defence or Minister of Foreign Affairs in collection of intelligence relating to activities of “(a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen (ii) a permanent resident ..., or (iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province”. Section 16(2) states “assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)”. Application included request for assistance in collection of intelligence relating to foreign state(s), corporation or person and included but operative portions of warrants referred specifically to interception of communication of certain named Canadian citizens, permanent residents or corporations. CSIS argued that s. 16(2) of Act does not preclude naming of Canadian citizen, permanent resident or corporation whose communications may be intercepted in warrant so long as request for assistance directed at foreign state(s), corporation or person. Application for warrants dismissed. Degree of potential intrusion on privacy interest of individual named in Part III of warrant, which permits intentional interception, significantly greater than potential intrusion on rights of those whose communications may only be incidentally intercepted. Special Senate Committee Report indicated clear understanding that while requests for assistance could be made to obtain foreign intelligence, “only foreign nationals could be targeted” when CSIS exercising warrant powers in relation to s. 16 request. Section 16(2) specifically seeks to prohibit obtaining assistance in relation to activities of foreign state(s), corporation or person, by targeting intrusive investigative techniques aimed at Canadian citizens, permanent residents or corporations.

Canadian Security Intelligence Service (Re) (Dec. 6, 2012, F.C., Mactavish J.) 223 A.C.W.S. (3d) 959.

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