BY COLIN FREEZE
The Globe and Mail
Canada’s spy agencies have deliberately misled judges to expand their eavesdropping powers unlawfully, a newly released ruling says.
In a rebuke to Canadian counter-terrorism practices, the 51-page ruling says federal agencies are wrongly enlisting U.S and British allies in global surveillance dragnets that risk harming Canadian terrorism suspects and could expose government agents to criminal charges. On the advice of watchdog agencies, the judge was reconsidering a 2008 decision to expand the wiretapping reach of Canadian intelligence services.
At issue are the actions of the Canadian Security Intelligence Service and Communications Security Establishment Canada. The two agencies have shared information with allied agencies on their investigations of Canadian citizens done under the expanded powers – but never told the court they were going to do so.
Federal Court Judge Richard Mosley said he and other judges have fallen victim to “a deliberate decision to keep the court in the dark.” His written ruling, released on Friday, was summarized last month in a statement, but national-security experts say only the full version communicates the depths of his disgruntlement.
“A decision was made by CSIS officials … to strategically omit information in [warrant] applications … about their intention to seek the assistance of the foreign partners,” Judge Mosley writes.
He adds that the Federal Court never authorized any international intelligence exchanges, and likely would not have approved some warrant applications if it had known about the practice.
Judge Mosley said his court has no legal power to authorize CSIS “to request that foreign agencies intercept the communications of Canadian persons travelling abroad either directly or through the agency of CSEC.”
Without any legal cover, CSIS “incurs the risk that targets may be detained or otherwise harmed as a result of the use of the intercepted communications by the foreign agencies.”
The 2008 decision authorized an eavesdropping partnership allowing CSIS, the domestic-intelligence agency, to expand global wiretapping with the help of CSEC, the foreign-intelligence electronic-eavesdropping agency.
Craig Forcese, a University of Ottawa law professor called the ruling a “significant chastisement.”
He said the court is rightly worried investigations authorized after the 2008 ruling could have endangered people.
“Imagine a circumstance where CSIS says, ‘We’ve got concerns about these Canadians overseas and we’d like you to intercept their communications,’” Mr. Forcese said. “… And the [U.S. Central Intelligence Agency] decides it’s time for a Predator drone …”
The Federal court has allowed CSIS and CSEC – which have different powers and mandates – to team up more than 35 times. But this year, watchdog agencies told Judge Mosley Australia, Britain, New Zealand and the United States were briefed on the probes.