Federal Court


Criminal Law

Admissibility of private communications

Authorization

Affiants provided sufficient facts to justify belief that individuals might be involved in threat

In investigations by Canadian Security Intelligence Service (CSIS) into activities believed to constitute threat to security of Canada, applications by CSIS for warrant powers to obtain basic identification data (BII) from communication service providers were dismissed. CSIS applied for same warrant powers in several new cases. Applications granted. Deficiencies in prior applications had been overcome. Court could not authorize CSIS to obtain BII in respect of communication accounts corresponding to telephone numbers or electronic identifiers that might in future come to its attention in course of investigation. Request to obtain such warrant power required CSIS to describe and establish specific nexus to investigations or to propose alternate approaches, in view of potential delays adversely affecting investigative ability, that were compliant with Canadian Charter of Rights and Freedoms. CSIS provided essentially same information provided in internal forms seeking authorization within organization to request BII powers from court, which described nexus between investigation and telephone numbers or electronic identifiers in respect of which BII were sought. CSIS’s affiants provided sufficient facts to justify belief that individuals behind electronic identifiers might be involved in threat posed or able to provide information to assist in investigation into that threat, in affidavit and during oral testimony. Applications were each supported by ministerial approval and designation of affiant. In urgent and exceptional circumstances, when it was not possible to obtain ministerial approval in writing, there would have to be undertaking to provide such approach in writing and confirmation that it had been provided orally. Several motions seeking to amend warrants by adding BII were abandoned before judgment was rendered.

X (Re) (2018), 2018 CarswellNat 7377, 2018 CarswellNat 7378, 2018 FC 874, 2018 CF 874, Paul S. Crampton C.J. (F.C.).

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