Absence of formal order should not be impediment to right to have findings reviewed

Federal appeal | Courts

JURISDICTION

Absence of formal order should not be impediment to right to have findings reviewed

Court had to determine if it had jurisdiction to hear appeal from Further Reasons in light of fact that no formal order was rendered by judge. In 2007, Canadian Security Intelligence Service (CSIS) applied to Federal Court to obtain warrant to assist in investigation of threat-related activities CSIS believed individuals would engage in while travelling outside of Canada. Justice dismissed warrant application on basis that Federal Court did not have jurisdiction to authorize CSIS employees to conduct intrusive investigative activities outside of Canada in circumstances where activities authorized by warrant were likely to constitute violation of foreign law. In 2009, CSIS asked Federal Court to revisit and distinguish justice’s 2007 decision. Another judge was persuaded to issue warrant authorizing CSIS to intercept foreign telecommunications and conduct searches from within Canada. Judge reached this conclusion based upon legal argument different from that before first justice and upon description of facts concerning methods of interception and seizure of information different from that put before first justice. Another judge issued order requiring counsel for both Communications Security Establishment Canada and CSIS to appear before him. Judge was of view that information that had been before justice in 2007 application was not presented to Federal Court in 2009 application or in any subsequent application for Domestic Interception of Foreign Telecommunications and Search (DIFTS) warrant. Judge concluded that CSIS breached its duty of candour by failing to disclose to Federal Court in DIFTS warrant applications that it intended to make requests to foreign agencies to intercept telecommunications of Canadians abroad and that CSIS had no lawful authority under s. 12 of Canadian Security Intelligence Service Act to make such requests and s. 21 of Act did not allow court to authorize CSIS to request that foreign agencies intercept communications of Canadians travelling abroad. Judge made going forward directions of disclosure to courts. No order was issued by judge and he denied request by Attorney General that order issue reflecting judge’s views. Court determined it had jurisdiction to hear appeal. Proceeding before judge had character of generalized inquiry as opposed to continuation of warrant application. Given this and significance of judge’s finding that CSIS had repeatedly failed in its duty of candour, absence of formal order should not be impediment to appellant’s right to have judge’s findings of fact and law reviewed. Findings were declaratory in nature. They were of such importance that they could not be immunized from review.
X, Re (Jul. 31, 2014, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and Robert M. Mainville J.A., File No. A-145-14) Decision at 111 W.C.B. (2d) 847 was affirmed. 117 W.C.B. (2d) 364.

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