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Government Law - CROWN - Ministries, departments and agencies - Authority and powers

Thursday, November 17, 2016 @ 7:00 PM  

Reference regarding warrants presented by the Canadian Security Intelligence Service (CSIS) pursuant to ss. 12 and 21 of the Canadian Security Intelligence Act. The reference hearing arose in the context of an ongoing discussion between CSIS and the Federal Court regarding protection of third-party information collected through operation of warrants. In January 2016, the Security Intelligence Review Committee filed an annual report which included new evidence concerning a CSIS program of collection and retention of information that had existed since 2006. The Court learned that the Operational Data Analysis Centre (ODAC) retained information which included a specific type of metadata and associated data obtained from service providers that extended beyond the targets of a particular warrant. The Court learned that the metadata was retained indefinitely by the ODAC for future investigative purposes. In the course of the ensuing en banc hearings, CSIS sought amendments to its warrant templates to reflect its current practice regarding retention and destruction of the information obtained by the ODAC.

HELD: CSIS breached its duty of candour by failing to clearly and transparently inform the Court of its ODAC retention program, specifically in respect of the data collected and retained through the operation of warrants. The breach by CSIS was unacceptable and contrary to the interests of justice. The legislative intent of s. 21 of the CSIS Act was to impose judicial control over the s. 12 warrant process. The legislative intent of s. 12(1) was to limit the functions of both collection and retention of information to the extent that was strictly necessary. However, limiting the related analysis function in respect of such information would be contrary to legislative intent and common sense given CSIS’s investigative mandate. CSIS was allowed to collect and retain, to the extent strictly necessary, information gathered by investigation or otherwise that was associated to activities related to threats to the security of Canada, but not information falling outside those specific parameters. Associated data, as assessed by the CSIS to be non-threat related, and of no assistance to an investigation, to a prosecution, to the defence of Canada, or to international affairs, stripped of its analogous content, was information that did not fall within the CSIS’s limited mandate. Retention of information outside of those parameters, as had occurred since 2006, was unlawful and outside of the ambit of warrants approved by the Court. The Court imposed a process for assessment of data obtained via warrants, and CSIS was ordered to amend its warrant templates accordingly.