A-339-87
Harjit Singh Atwal (Appellant)
v.
The Queen (Respondent)
INDEXED AS: ATWAL V. CANADA
Court of Appeal, Mahoney, Hugessen and Mac-
Guigan JJ.—Ottawa, June 24, 25, 26 and August
12, 1987.
Security intelligence — Warrant issued under CSIS Act s.
21 not required to set out judge's conclusions as to every
matter prerequisite to issuance thereof — Warrant not
required to specify threat to security of Canada — Act s. 21
not in violation of Charter s. 8 — In interest of justice,
affidavit in support of warrant to be disclosed after appropri
ate security editing - Interference with solicitor-client privi
lege permissible only to exient absolutely necessary — Public
interest in administration of justice independent of other
public interests — Up to Minister, not Judge, to invoke
national security interest pursuant to Canada Evidence Act.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Wiretap and search warrant issued
under CSIS Act s. 21 — Act s. 21 satisfying prescription in
Hunter et al. v. Southam Inc. as to minimum criteria demand
ed by Charters. 8 of legislation authorizing search and seizure
— Objective standard set by requirement judge be satisfied, on
reasonable and probable grounds, threat to security of Canada
exists and warrant required to investigate.
Federal Court jurisdiction — Appeal Division — Appeal
from Federal Court judge's refusal to rescind wiretap and
search warrant issued under CSIS Act s. 21 — Jurisdiction in
Court as proceeding not appeal from warrant but from final
judgment of Trial Division refusing to rescind warrant.
Judges and courts — Status of Federal Court judge desig
nated for purposes of Canadian Security Intelligence Service
Act — Whether member of "discrete superior court" composed
of designated judges.
In July 1985, a member of the Federal Court of Appeal,
acting as a Federal Court judge designated by the Chief Justice
for the purpose of the Canadian Security Intelligence Service
Act (CSIS Act), issued a wiretap and search warrant against
the appellant, pursuant to section 21 of that Act, for the
investigation of a threat to the security of Canada. The appel
lant was subsequently charged with criminal offences in British
Columbia. To prevent the use at his trial of certain intercepted
communications, the appellant moved the Judge who had
issued the warrant to rescind the order granting its issuance.
This is an appeal against the dismissal of the application to
rescind.
Four issues are raised: (1) the respondent argues that the
Court is without jurisdiction to hear this appeal since it is not
an appeal specifically authorized by the CSIS Act, nor is it an
appeal from the Trial Division authorized by subsection 27(1)
of the Federal Court Act; (2) the appellant argues that the
warrant is invalid in that it fails to comply with the require
ments of section 21 of the Act, or (3) in the alternative, that the
warrant and the authorizing provisions of the Act violate
section 8 of the Charter; (4) finally, the appellant argues that
the Judge below erred in refusing to permit the appellant to
examine the supporting affidavit, or an edited version thereof.
Held (Hugessen J. dissenting in part), the appeal should be
allowed only to the extent of permitting disclosure of the
affidavit, after security editing.
Per Mahoney J. (MacGuigan J. concurring): This is not an
appeal from the issuance of the search warrant but rather from
the refusal to rescind on an application under Rule 330, and
there is no doubt that the Court has jurisdiction to entertain
such an appeal from an order of the Trial Division.
In performing functions under the CSIS Act, a judge desig
nated for the purposes of the Act is acting as a Federal Court
judge rather than as a persona designata, since the issuance of
a warrant is an accepted judicial function of a Federal Court
judge. Nor is the judge acting as a member of a "discrete
superior court" composed of the designated judges. While
Parliament could have constituted such a court, there was
nothing in the Act to indicate such an intention. And, given the
original jurisdiction conferred on the Trial Division, the refusal
to rescind the warrant was a final judgment of that Division.
The fact that the judge who issued the warrant is a member of
the Court of Appeal is immaterial since he is ex officio a
member of the Trial Division.
The warrant was in full compliance with section 21 of the
CSIS Act. Although the warrant was silent as to the Judge's
specific satisfaction as to each matter prerequisite to its issu
ance, there was a general statement that it was required, and
that is sufficient. In that same vein, the failure to describe the
perceived threat to the security of Canada in terms other than
the words of the Act did not render the warrant invalid on its
face. Since the CSIS Act is directed primarily to gathering
information in an attempt to anticipate future occurrences, it
will be generally less practically possible to be specific, in
advance, in authorizations to intercept private communications
under the Act than under the Criminal Code.
Provided that the warrant, as in this case, meets the require
ment that the confidentiality of solicitor-client communications
be interfered with only to the extent absolutely necessary to
achieve the objects of the Act, an authorization broad enough
to encompass interception of communications protected by
solicitor-client privilege does not render the warrant invalid on
its face.
Neither section 21 of the CSIS Act nor the warrant was in
violation of section 8 of the Charter. To say that section 8
applies to the interception and recording of conversations is not
to expand the notion of search and seizure but rather to
recognize that technology has changed the ways a search and
seizure may be effected and added verbal communications to
the things which can be seized. However, paragraph 21(2)(a)
of the CSIS Act fully satisfied, mutatis mutandis, the prescrip
tion of Hunter et al. v. Southam Inc. as to the minimum
criteria, demanded by section 8 of the Charter, of legislation
authorizing a search and seizure. The judge is required to be
satisfied—as he was in this case—on reasonable and probable
grounds established by sworn evidence, that a threat to the
security of Canada exists and that a warrant is required to
enable its investigation. That is an objective standard.
The affidavit submitted in support of the warrant should be
produced, after appropriate security editing. Normally, when
evidence of an offence against a person has been acquired by
means of a search warrant, that person has the right, before the
evidence is used against him, to challenge the validity of the
warrant for insufficiency of the supporting material. This
implies access to that material.
The only absolute prohibition against disclosure under the
CSIS Act concerns information from which the identity of an
informer or an employee engaged in covert operations can be
inferred. Nothing in the Act expressly prohibits disclosure of
information by Court order. If it is not to be disclosed, it must
be because an interested party properly objects to its disclosure,
not because disclosure is prohibited by law. What must be
sought is the maximum accountability and accessibility of and
to the judicial presence in the intelligence gathering system but
not to the extent of impairing the investigation of genuine
threats to national security.
The public interest in the administration of justice must
invariably weigh in favour of the openness of all judicial
processes. It is an interest entirely independent of other public
interests which may weigh against and, on occasion, outweigh
it. It is not the judge's function, however, to invoke the national
security interest. It is incumbent upon the responsible Minister
to do so by invoking section 36.1 of the Canada Evidence Act.
Per Hugessen J. (dissenting in part): The objection to juris
diction was not well taken. Whatever may have been the
judge's status when he issued the original warrant in July 1985,
when he heard the application to rescind that warrant over a
year and a half later, he could only have done so as a judge of
the Federal Court of Canada exercising his jurisdiction as an ex
officio member of the Trial Division.
Section 21 of the CSIS Act, adopted just before the decision
of the Supreme Court of Canada in Hunter et al. v. Southam
Inc., is in violation of section 8 of the Charter. Since the powers
which can be granted by a section 21 warrant are vast and
intrusive to the highest degree, the issue is where to draw the
line between the individual's reasonable expectation of being
left alone and the State's need to defend itself against attack.
The key (provided by Dickson C.J. in the Southam case) is that
there must be an objective test to guide the judicial officer who
is charged with the responsibility of authorizing the intrusion.
Section 21 of the CSIS Act requires that the judge be satisfied
that there are reasonable grounds to believe that a warrant is
required to enable the Service to investigate a threat to the
security of Canada. This does not provide a reasonable stand
ard by which the judge may test the need for the warrant.
Nothing in the language of the statute requires a direct rela
tionship between the information it is hoped to obtain from the
intercepted communication and the alleged threat to the secu
rity of Canada. The language employed is so broad as to
provide no objective standard at all. Without appropriate safe
guards, section 21 is incompatible with section 8 of the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.1 (as
added by S.C. 1980-81-82-83, c. 1l1, Schedule III, s.
4), 36.2 (as added idem).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 8, 10(b).
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 2, 13, 18, 19, 21, 27, 28.
Constitution Act, 1867, 30 & 31 Viet., c. 3 (U.K.)
[R.S.C. 1970, Appendix Il, No. 5] (as am. by Canada
Act 1982, 1982, c. l l (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 101.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 3,
4, 5(1) (as am. by S.C. 1985, c. 38, s. I I ), 26(1),
27(I), 28, 52(b)(iii).
Federal Court Rules, C.R.C., c. 663, RR. 330 (as am. by
SOR/79-58, s. 1), 1204.
CASES JUDICIALLY CONSIDERED
APPLIED:
Société pour l'Avancement des droits en audiovisuel
(SADA) Ltée v. Collège Edouard-Montpetit, [1981] 2
F.C. 307 (C.A.); Minister of Employment and Immigra
tion v. Widmont, [1984] 2 F.C. 274 (C.A.). Herman et
al. v. Deputy Attorney General (Can.), [1979] I S.C.R.
729; Re Donnelly and Acheson and the Queen (1976), 29
C.C.C. (2d) 58 (Alta. S.C.); United States v. U. S.
District Court, 407 U.S. 297 (1972); Grabowski v. The
Queen, [ 1985] 2 S.C.R. 434; Descoteaux et al. v. Mierz-
winski, [1982] 1 S.C.R. 860; Hunter et al. v. Southam
Inc., [1984] 2 S.C.R. 145; Realty Renovations Ltd. v.
A.G. Alta., [1979] 1 W.W.R. 74 (Alta. S.C.); Attorney
General of Nova Scotia et al. v. Maclntyre, [1982] 1
S.C.R. 175; Wilson v. The Queen, [1983] 2 S.C.R. 594.
NOT FOLLOWED:
R. v. Taylor et al., judgment dated December 30, 1983,
Supreme Court of British Columbia, not reported.
DISTINGUISHED:
Goldman et al. v. Hoffman- LaRoche Limited, judgment
dated June 4, 1987 Ontario Court of Appeal, not yet
reported; R. v. Church of Scientology and Zaharia
(1987), 18 O.A.C. 321; Re Herman et al. and Deputy
Attorney-General of Canada (1979), 26 O.R. (2d) 520
(C.A.); Bergeron et al. v. Deschamps et al., [1978] 1
S.C.R. 243; (1977), 33 C.C.C. (2d) 461; R. v. Dunbar
and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.);
Goguen v. Gibson, [ 1983] 2 F.C. 463 (C.A.); Gold v. R.,
[ 1986] 2 F.C. 129 (C.A.); International Business
Machines Corporation of Canada Limited and Xerox
Corporation (1977), 16 N.R. 355 (F.C.A.).
CONSIDERED:
Re Borden & Elliott and The Queen (1975), 30 C.C.C.
(2d) 337 (Ont. C.A.); R. v. Welsh and lannuzzi (No. 6)
(1977), 32 C.C.C. (2d) 363.
REFERRED TO:
R. v. Gill (1980), 56 C.C.C. (2d) 169 (B.C.C.A.); R. v.
Volpe (1981), 63 C.C.C. (2d) 506 (Ont. C.A.); R. v.
Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont.
C.A.); Solosky v. The Queen, [ 1980] 1 S.C.R. 821.
AUTHORS CITED
Watt, David. Law of Electronic Surveillance in Canada,
Toronto: Carswell, 1979.
COUNSEL:
David Gibbons and Michael Code for
appellant.
Michael R. Dambrot and James W. Leising
for respondent.
Alexander Budlovsky for Attorney General of
British Columbia.
SOLICITORS:
Ruby & Edwardh, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
Ministry of Attorney General of British
Columbia for Attorney General of British
Columbia.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from a decision
of a Judge of the Federal Court of Canada [[1987]
2 F.C. 309] designated by the Chief Justice for
purposes of the Canadian Security Intelligence
Service Act, S.C. 1984, c. 21, hereafter "the Act".
The Judge had, on ex parte application made
pursuant to subsection 21(1) of the Act, granted a
warrant authorizing the Canadian Security Intelli
gence Service, hereafter "the Service", to intercept
communications and to search for and seize docu
ments pertaining to the appellant. The warrant
issued July 26, 1985. On September 10, 1986, the
appellant was charged with conspiracy to commit
murder contrary to paragraph 423(1)(a) of the
Criminal Code [R.S.C. 1970, c. C-34]. The pros
ecution is committed to a Crown counsel appointed
by the Attorney General for British Columbia.
The Crown counsel provided a copy of the warrant
to the appellant and informed him that it was
intended to adduce evidence obtained pursuant
thereto at trial. The appellant then applied, pursu
ant to Rule 330 of the Federal Court Rules
[C.R.C., c. 663 (as am. by SOR/79-58, s. 1)], to
rescind the warrant.
Rule 330. The Court may rescind
(a) any order that was made ex parte, or
(b) any order that was made in the absence of a party who
had failed to appear through accident or mistake or by
reason of insufficient notice of the application;
but no such rescission will affect the validity or character of
anything done or not done before the rescinding order was
made except to the extent that the Court, in its discretion, by
the rescission order expressly provides.
This appeal is taken from the refusal of that
application by the same Judge. By consent, the
Attorney General for British Columbia was heard
on the application and appeal. The respondent and
the Attorney General for British Columbia support
each other's position throughout and will not be
referred to separately unless necessary.
THE ISSUES
1. The respondent says that this Court is without
jurisdiction to hear this appeal inasmuch as it is
not an appeal specifically authorized by the Act
nor is it an appeal from the Trial Division author
ized by subsection 27(1) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10].
2. The appellant says the learned Judge erred in
refusing to rescind the warrant because it is invalid
on its face in that it fails to comply with the
requirements of section 21 of the Act.
3. In the alternative, assuming compliance with
section 21, the appellant says the learned Judge
erred in failing to find that the warrant, on its
face, and the authorizing provisions of the Act fail
to meet the minimum standards for a reasonable
search and seizure thereby violating section 8 of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)].
4. In the further alternative, the appellant says the
learned Judge erred in refusing to permit the
appellant to examine the affidavit, -or an edited
version thereof, upon which the warrant issued.
1. JURISDICTION
The provisions of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, as amended, material to
this issue are section 4 and subsections 5(1) [as
am. by S.C. 1985, c. 38, s. 11], 26(1) and 27(1).
4. The Federal Court of Canada shall hereafter consist of
two divisions, called the Federal Court—Appeal Division
(which may be referred to as the Court of Appeal or Federal
Court of Appeal) and the Federal Court—Trial Division.
5. (1) The Federal Court of Canada shall consist of the
following judges:
(a) a chief justice called the Chief Justice of the Federal
Court of Canada, who shall be the president of the Court,
shall be the president of and a member of the Court of
Appeal and shall be ex officio a member of the Trial
Division;
(b) an associate chief justice called the Associate Chief
Justice of the Federal Court of Canada, who shall be the
president of and a member of the Trial Division and shall be
ex officio a member of the Court of Appeal; and
(c) not more than twenty-three other judges, ten of whom
shall be appointed to the Court of Appeal and shall be ex
officio members of the Trial Division, and the remainder of
whom shall be appointed to the Trial Division and shall be ex
officio members of the Court of Appeal.
26. (1) The Trial Division has original jurisdiction in
respect of-any matter, not allocated specifically to the Court of
Appeal, in respect of which jurisdiction has been conferred by
any Act of the Parliament of Canada on the Federal Court,
whether referred to by its new name or its former name.
27. (1) An appeal lies to the Federal Court of Appeal from
any
(a) final judgment,
(b) judgment on a question of law determined before trial, or
(c) interlocutory judgment,
of the Trial Division.
Subsection 27(1) is the only provision of the Fed
eral Court Act under which this Court's jurisdic
tion to entertain the appeal could arise.
The Canadian Security Intelligence Service Act
provides:
2. In this Act,
"judge" means a judge of the Federal Court of Canada desig
nated by the Chief Justice thereof for the purposes of this
Act;
21. (I) ... the Director or employee may ... make an
application in accordance with subsection (2) to a judge for a
warrant under this section.
The warrant issued on an application under sub
section 21(1).
(a) No right of an appeal provided by the
Canadian Security Intelligence Service Act.
The respondent points out that the Act provides
no right of appeal in respect of the issuance of a
warrant under section 21. This omission is con
trasted with the provision of a right of appeal in
subsection 36.2(3) of the Canada Evidence Act,
R.S.C. 1970, c. E-10, as amended [added by S.C.
1980-81-82-83, c. 111, Schedule III, s. 4].
Goldman et al. v. Hoffman-LaRoche Limited,
an as yet unreported decision of the Ontario Court
of Appeal released June 4, 1987, is particularly
relied on. There, the court quashed an appeal
taken from the issuance of a search warrant under
section 13 of the Competition Act, R.S.C. 1970, c.
C-23, as amended [by S.C. 1986, c. 26, s. 24], by a
judge of the High Court of Ontario. Neither the
Competition Act nor the Criminal Code which, it
was held, would also apply, make provision for an
appeal from the issuance of a search warrant. The
argument that the issuance of a search warrant
was a final order and, thus, appealable under
paragraph 17(1)(b) of the Courts of Justice Act,
1984, S.O. 1984, c. 11, was rejected. That conclu
sion followed from an earlier decision of the same
court in R. v. Church of Scientology and Zaharia
(1987), 18 O.A.C. 321 which held that "a search
warrant is merely an investigative tool". The
Court adopted with approval the following state
ment by Lacourcière J.A., for the majority, in Re
Herman et al. and Deputy Attorney-General of
Canada (1979), 26 O.R. (2d) 520 (C.A.), dealing
with an attempt to appeal a High Court Judge's
determination of a question of solicitor-client privi
lege in respect of documents removed from a
solicitor's office in the course of an investigation
under the Income Tax Act [R.S.C. 1952, c. 148
(as am. by S.C. 1970-71-72, c. 63, s. 1)], at page
528:
If Parliament deliberately failed to provide for a right of appeal
on the erroneous assumption that the Judge's preliminary
ruling was reviewable, it is in my opinion far better to let
Parliament correct this omission. I believe, however, that there
has been a deliberate decision by Parliament to exclude an
appeal from an order made at the investigatory stage as a
matter of policy.
In my opinion, this submission fails at the first
hurdle. The underlying assumption that this is an
appeal from the issuance of the search warrant is
not correct. This appeal is taken from the refusal
to rescind on an application under Rule 330. This
Court has accepted its jurisdiction to entertain
such an appeal, to conclude that the Trial Judge
erred in refusing to rescind an ex parte order and,
by allowing the appeal, effectively to set aside that
order, e.g., Société pour l'Avancement des droits
en audiovisuel (SADA) Ltée v. Collège Edouard-
Montpetit, [1981] 2 F.C. 307 (C.A.). No strong
reason for this Court to depart from its previous
decisions as to its jurisdiction in the circumstances
has been shown, Minister of Employment and
Immigration v. Widmont, [1984] 2 F.C. 274
(C.A.). Provided this is an appeal from an order of
the Trial Division, we have jurisdiction to entertain
it.
(b) Not an appeal from the Trial Division.
The judge who issued the warrant is, in fact,
appointed to the Court of Appeal. However, by
paragraph 5(1)(c) of the Federal Court Act, he is
ex officio a member of the Trial Division. Accord
ingly, the fact that he is a member of the Court of
Appeal is not material.
The appellant moved that, should we find that
we are without jurisdiction because this is not an
appeal from the Trial Division, this proceeding be
converted to an application under section 28 of the
Federal Court Act. The respondent conceded that
there would be no prejudice should that motion be
granted.
Counsel of the Attorney General for British
Columbia submitted that a judge designated for
purposes of the Act, in performing his functions
under the Act, is acting neither as persona desig-
nata, so as to be amenable to our supervisory
jurisdiction under section 28, nor as a judge of the
Trial Division whose judgments are subject to
appeal under section 27. He postulated a third
judicial status which, if I understood his argument,
would entail us finding that, under the Act, Parlia
ment had constituted a discrete superior court,
composed of the designated judges. It would have
to be a superior court because, since it would
clearly be a federal tribunal, it would otherwise
not escape the supervisory jurisdiction of one or
the other division of the Federal Court.
Parliament could certainly have constituted a
discrete superior court, composed of those ordinar
ily judges of another court, as it had, by section
201 of the National Defence Act, R.S.C. 1970, c.
N-4 [as am. by S.C. 1985, c. 38, s. 13], created the
Court Martial Appeal Court of Canada. However,
I find nothing in the Act to support the conclusion
that it has. Such an exercise of its legislative
authortiy under section 101 of the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)], would, in my opinion,
require clear expression by Parliament or, at least,
is not to be inferred unnecessarily.
I conclude that there is no third category: a
judge designated for purposes of the Act is either
acting as a judge of the Federal Court or persona
designata. In Herman et al. v. Deputy Attorney
General (Can.), [1979] 1 S.C.R. 729, Dickson J.,
as he then was, canvassed the authorities on the
concept of persona designata and, at page 749,
came to the following conclusion:
Prima facie, Parliament should be taken to intend a judge to
act qua judge whenever by statute it grants powers to a judge.
He who alleges that a judge is acting in the special capacity of
persona designata must find in the specific legislation provi
sions which clearly evidence a contrary intention on the part of
Parliament. The test to be applied in considering whether such
a contrary intention appears in the relevant statute can be cast
in the form of a question: is the judge exercising a peculiar and
distinct and exceptional jurisdiction, separate from and unrelat
ed to the tasks which he performs from day to day as a judge
and having nothing in common with the court of which he is a
member?
The issuance of search warrants and the authori
zation of electronic surveillance is an accepted
judicial function. It is not peculiar, distinct or
exceptional in the context of the work of most
judges of first instance of superior courts of crimi
nal jurisdiction in Canada. That it is not a routine
activity of the Federal Court, Trial Division,
simply reflects the subject matter jurisdiction ordi
narily exercised by that Court. The Federal Court
is a superior court of criminal jurisdiction, Federal
Court Act, s. 3, although it is rarely called upon to
exercise its jurisdiction in criminal matters. In my
opinion, neither that factor nor the fact that the
Chief Justice has designated very few or its judges
for purposes of the Act are the sort of consider
ations which the Supreme Court had in mind as
resulting in a judge acting as persona designata
rather than qua judge. I find no clear evidence in
the Act of a Parliamentary intention that a desig
nated judge act in any capacity other than as a
judge of the Federal Court.
In my opinion a judge designated by the Chief
Justice for purposes of the Canadian Security
Intelligence Service Act, in exercising functions
under that Act, is doing so as a Federal Court
judge. In view of subsection 26(1) of the Federal
Court Act, the original jurisdiction conferred by
the Act is conferred on the Trial Division. I there
fore conclude that this matter is properly before us
as an appeal pursuant to subsection 27(1). The
refusal to rescind the warrant was, in the present
circumstances, a final judgment of the Trial
Division.
Had I concluded that this appeal was not prop
erly before us, I should have granted the appel
lant's motion and disposed of the matter on the
basis of it being a section 28 application. That
would not, in my opinion, have led to a different
result.
2. WARRANT INVALID ON ITS FACE
NON-COMPLIANCE WITH AUTHORIZING STATUTE
The full text of the warrant follows. I have
prefixed the recitals with Roman numerals to
facilitate subsequent individual references to them.
[I] UPON the ex parte application in writing of Archie M.
BARR, made pursuant to Section 21 of the Canadian Security
Intelligence Service Act, S.C. 1983-84, c. 21 for a warrant
thereunder;
[II] WHEREAS the applicant is Archie M. BARR, an employee
of the Canadian Security Intelligence Service, designated for
this purpose by the Solicitor General of Canada pursuant to
subsection 21(1) of the Act who has consulted with the Deputy
Solicitor General and who has obtained the approval of the
Solicitor General of Canada for this purpose;
[Ill] AND WHEREAS I have read the affidavit of the applicant
and considered all of the evidence submitted in support of said
application;
[IV] AND WHEREAS I am satisfied that a warrant under
section 21 of the Canadian Security Intelligence Act is required
to enable the Canadian Security Intelligence Service to investi
gate a threat to the security of Canada, namely:
activities within or relating to Canada directed toward or
in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a
political objective within Canada or a foreign state,
which does not include lawful advocacy, protest or dissent,
unless carried on in conjunction with any of the activities
referred to above.
NOW THEREFORE I HEREBY AUTHORIZE THE DIRECTOR OF
THE CANADIAN SECURITY INTELLIGENCE SERVICE AND THE
EMPLOYEES ACTING UNDER HIS AUTHORITY OR ON HIS
BEHALF:
A. to intercept communications as hereinafter mentioned
namely:
the oral communications and telecommunications within
Canada addressed or destined to, received by, or originating
from Harjit Singh ATWAL, wherever he may be, or any
person at 12471-79A Avenue, Surrey, British Columbia, or
any other person at any other place in Canada which Harjit
Singh ATWAL may be using as a temporary or permanent
residence, whether stationary or mobile;
AND
for such purpose to enter:
a) the said premises at 12471-79A Avenue, Surrey, Brit-
ish Columbia, or any other place in Canada which Harjit
Singh ATWAL may be using as a temporary or permanent
residence, whether stationary or mobile;
b) any vehicle used by Harjit Singh ATWAL;
c) any other place in Canada where the Service has
reasonable grounds to believe Harjit Singh ATWAL will be
present,
in order to install, maintain or remove any thing necessary to
effect the said interceptions,
AND
for such purpose:
d) to install, maintain, or remove any thing necessary to
effect, at the place described at A. above, the interception
of oral communications and telecommunications.
B. to search for, remove or return, or examine, take extracts
from or make copies of or record in any other manner:
recorded communications outside the course of post, within
Canada, addressed or destined to, received by or originating
from:
a) Harjit Singh ATWAL;
b) 12471-79A Avenue, Surrey, British Columbia,
AND
for such purpose to enter:
c) 12471-79A Avenue, Surrey, British Columbia, or any
other place in Canada which Harjit Singh ATWAL may be
using as a temporary or permanent residence, whether
stationary or mobile;
d) any vehicle used by Harjit Singh ATWAL;
d) [sic] any other place where the said Harjit Singh
ATWAL has been present and where the Service has reason
able grounds to suspect that recorded communications of
Harjit Singh ATWAL may be found.
C. This warrant shall be valid for the period commencing on
the 26th day of July 1985 A.D. and expiring on the 25th day of
July 1986 A.D.
THE PRESENT WARRANT SHALL BE SUBJECT TO THE FOLLOW
ING CONDITIONS:
CONDITION 1:
Except for the purpose of determining whether the communi
cation is addressed or destined to, received by, or originating
from Harjit Singh ATWAL no cognizance will be taken of the
contents of any oral communication or telecommunication
intercepted at any place described in paragraph A.c) through
any thing installed for the purpose of such interception.
Where the person charged with monitoring the intercepted
communication determines that the communication is not
addressed or destined to, received by, or originating from
Harjit Singh ATWAL, all recordings or transcriptions of same
shall be forthwith erased or destroyed, as the case may be,
and the contents of same shall never in any manner be
further communicated to any person. If the person charged
with monitoring the intercepted communication determines
that the intercepted oral communication or telecommunica
tion is addressed or destined to, received by, or originating
from Harjit Singh ATWAL, it shall be subject to interception
pursuant to the authority conferred by this warrant.
CONDITION 2:
It is a condition of this warrant that no private oral com
munication, telecommunication or recorded communication
may be intercepted pursuant hereto at the office or residence
of a solicitor or any other place ordinarily used by a solicitor
and by other solicitors for the purpose of consultation with
clients.
CONDITION 3:
It is a further condition of this warrant that an oral com
munication, telecommunication or recorded communication
between Harjit Singh ATwAL and a solicitor or the solicitor's
employee may be intercepted initially only to enable the
Director or a Regional Director General of the Canadian
Security Intelligence Service to determine whether that com
munication relates to the threat to the security of Canada as
herein-before specified in this warrant. If the Director or the
Regional Director General determines that the communica
tion does not so relate, all records of the communication shall
be destroyed and no further disclosure thereof shall be made.
If the Director or the Regional Director General determines
that the communication does so relate, it shall be subject to
interception pursuant to the authority conferred by this
warrant. Where necessary to the making of his determina
tion, the Director or the Regional Director General may
authorize the translation of the communication that is the
subject of this condition. Where that occurs, the translator
shall disclose the contents of the communication only to the
Director or the Regional Director General.
Section 21 of the Act provides:
21. (I) Where the Director or any employee designated by
the Minister for the purpose believes, on reasonable grounds,
that a warrant under this section is required to enable the
Service to investigate a threat to the security of Canada or to
perform its duties and functions under section 16, the Director
or employee may, after having obtained the approval of the
Minister, make an application in accordance with subsection
(2) to a judge for a warrant under this section.
(2) An application to a judge under subsection (1) shall be
made in writing and be accompanied by an affidavit of the
applicant deposing to the following matters, namely,
(a) the facts relied on to justify the belief, on reasonable
grounds, that a warrant under this section is required to
enable the Service to investigate a threat to the security of
Canada or to perform its duties and functions under section
16;
(b) that other investigative procedures have been tried and
have failed or why it appears that they are unlikely to
succeed, that the urgency of the matter is such that it would
be impractical to carry out the investigation using only other
investigative procedures or that without a warrant under this
section it is likely that information of importance with
respect to the threat to the security of Canada or the
performance of the duties and functions under section 16
referred to in paragraph (a) would not be obtained;
(c) the type of communication proposed to be intercepted,
the type of information, records, documents or things pro
posed to be obtained and the powers referred to in para
graphs (3)(a) to (e) proposed to be exercised for that
purpose;
(d) the identity of the person, if known, whose communica
tion is proposed to be intercepted or who has possession of
the information, record, document or thing proposed to be
obtained;
(e) the persons or classes of persons to whom the warrant is
proposed to be directed;
(/) a general description of the place where the warrant is
proposed to be executed, if a general description of that place
can be given;
(g) the period, not exceeding sixty days or one year, as the
case may be, for which the warrant is requested to be in force
that is applicable by virtue of subsection (5); and
(h) any previous application made in relation to a person
identified in the affidavit pursuant to paragraph (d), the date
on which such application was made, the name of the judge
to whom each such application was made and the decision of
the judge thereon.
(3) Notwithstanding any other law but subject to the Statis
tics Act, where the judge to whom an application under subsec
tion (1) is made is satisfied of the matters referred to in
paragraphs (2)(a) and (b) set out in the affidavit accompany
ing the application, the judge may issue a warrant authorizing
the persons to whom it is directed to intercept any communica
tion or obtain any information, record, document or thing and,
for that purpose,
(a) to enter any place or open or obtain access to any thing;
(b) to search for, remove or return, or examine, take extracts
from or make copies of or record in any other manner the
information, record, document or thing; or
(c) to install, maintain or remove any thing.
(4) There shall be specified in a warrant issued under sub
section (3)
(a) the type of communication authorized to be intercepted,
the type of information, records, documents or things author
ized to be obtained and the powers referred to in paragraphs
(3)(a) to (c) authorized to be exercised for that purpose;
(b) the identity of the person, if known, whose communica
tion is to be intercepted or who has possession of the informa
tion, record, document or thing to be obtained;
(c) the persons or classes of persons to whom the warrant is
directed;
(d) a general description of the place where the warrant may
be executed, if a general description of that place can be
given;
(e) the period for which the warrant is in force; and
(f) such terms and conditions as the judge considers advis
able in the public interest.
(5) A warrant shall not be issued under subsection (3) for a
period exceeding
(a) sixty days where the warrant is issued to enable the
Service to investigate a threat to the security of Canada
within the meaning of paragraph (d) of the definition of that
expression in section 2; or
(b) one year in any other case.
The term "threats to the security of Canada" is
defined by the Act.
2....
"threats to the security of Canada" means
(a) espionage or sabotage that is against Canada or is
detrimental to the interests of Canada or activities directed
toward or in support of such espionage or sabotage.
(b) foreign influenced activities within or relating to Canada
that are detrimental to the interests of Canada and are
clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or
in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a
political objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlaw
ful acts, or directed toward or intended ultimately to lead to
the destruction or overthrow by violence of, the constitution
ally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless
carried on in conjunction with any of the activities referred to
in paragraphs (a) to (d).
The appellant says that the learned Judge erred in
failing to find that the warrant did not, on its face,
comply with section 21 of the Act in that (a) it
does not recite the issuing judge's satisfaction as to
two of the matters required, by subsection 21(3),
as preconditions to issuance, (b) it does not specify
the "threat" in respect of which it issued, (c) it
fails to limit seizure to things that relate to the
threat, and (d) it authorizes seizure and intercep
tion of privileged solicitor-client communications.
(a) Non compliance with subsection 21(3)
Subsection 21(3) requires, as a precondition to
the issuance of the warrant, that the judge be
satisfied as to the matters referred to in para
graphs 21(2)(a) and (b). The matters, as para
phrased by the appellant in his memorandum of
fact and law, are: (i) that reasonable grounds exist
to believe that a warrant is required to enable the
Service to investigate a threat to the security of
Canada and (ii) that other investigative proce
dures have been tried and failed, are unlikely to
succeed, are impractical due to the urgency of the
matter or that important information concerning
the threat to security will not otherwise be
obtained. The warrant is, indeed, silent as to the
Judge's specific satisfaction, on reasonable
grounds, as to each of those matters. On the other
hand, he did, in recital IV, state "I am satisfied
that a warrant under section 21 of the [Act] is
required to enable the [Service] to investigate a
threat to the security of Canada, namely ...".
The appellant cited numerous, unexceptionable
statements of the general principle from the
authorities. It was, perhaps, most succinctly stated
by Arnup J.A., in Re Borden & Elliott and The
Queen (1975), 30 C.C.C. (2d) 337 (Ont. C.A.), at
page 347.
The issue of a search warrant is not a perfunctory matter. A
Justice who issues it must be satisfied that there are reasonable
grounds for believing that an offence has been committed and
that the documents sought to be seized will afford evidence
with respect to its commission. The information put before the
Justice must contain sufficient details to enable him to be so
satisfied.
I have no difficulty accepting that the issue of a
warrant under section 21 is not a perfunctory
matter. I also accept that subsection 21(3), by its
reference to paragraph 21(2)(a), requires that the
judge be satisfied, on reasonable grounds, that the
warrant is needed for a prescribed purpose and
that implies the application, by the judge, of objec
tive, not subjective, standards. That, however, does
not lead one to the conclusion that the judge must,
on the face of the warrant, set out his satisfaction,
on reasonable grounds, of each and every matter
prerequisite to its issuance.
In R. v. Welsh and lannuzzi (No. 6) (1977), 32
C.C.C. (2d) 363, the Ontario Court of Appeal
dealt with a similar argument, based on omissions
from the recitals of a wiretap authorization under
the Criminal Code, at page 372, per Zuber J.A., in
the following terms:
In this case it is argued that the authorization is invalid on its
face. It is said that the recitals make it plain that the Judge was
satisfied only that the authorization was in the best interests of
the administration of justice and that other investigative proce
dures were unlikely to succeed. It is further said that this
recital implied a rejection of the circumstances set out in
s. 178.13(1)(a) and (c). Assuming that this inference can be
drawn from the recital—an inference I would not have
drawn—and, indeed, that the recitals are something more than
mere surplusage, it is obvious that this argument is premised
upon the proposition that the requirements of s. 178.13(1) must
be read cumulatively.
While the particular requirements of the Criminal
Code are of no immediate relevance here, the
commentary on the status of recitals and the infer
ence which may be drawn from their failure to
cover all bases is. Dealing with the same Criminal
Code provisions, McDonald J., of the Supreme
Court of Alberta, in a trial judgment, Re Donnelly
and Acheson and The Queen (1976), 29 C.C.C.
(2d) 58, at pages 72 and 73, made the point
explicitly.
However, in the practice of this jurisdiction, it is not neces
sary, in a preamble or series of recitals in an order or judgment
to incorporate the evidentiary facts found by the Court. Where
one or more evidentiary facts are incorporated in the recitals,
they are neither determinative of the rights of the parties nor to
be taken as an exhaustive statement of the evidence before the
Court.
In his reasons for judgment, rendered April 30,
1987, rejecting this submission as a ground for
recission, the learned Judge, at pages 321 and 322,
said:
Since paragraphs 21(2)(a) and (b) are an integral part of
section 21 of the Act, surely it is unnecessary and redundant to
require a specific averment with respect to those provisions. A
judge issuing a warrant under the CSIS Act is required to be
satisfied of many things before the Warrant can be issued ....
For facial validity, the issuing judge should not be required to
specify with particularity, his satisfaction with a specific
requirement or requirements of the statute. In my view, surely
it can be presumed that when the issuing judge declares that he
is issuing a warrant under the authorizing section of a statute,
he is satisfied that there has been a full compliance with the
applicable provisions of that statute.
I fully agree with the logic of the learned Judge's
reasons and am content to adopt them.
Subsection 21(4) stipulates what must appear
on the face of a valid warrant. I accept that a
recital might disclose that a warrant ought not
have issued. I do not, however, accept that the
absence of a recital, not expressly required by the
authorizing statute, is a basis for concluding that
the warrant is invalid on its face.
(b) Failure to specify "threat"
The appellant argues, in the first place, parallel
to the argument just dealt with, that the warrant
must, on its face, state that the issuing judge is
satisfied, on reasonable grounds, that a threat to
the security of Canada exists and, in the second
place, that it is insufficient to describe that threat
by merely reciting the statutory language. In addi
tion to rejecting the first argument on the basis
just stated, I am of the opinion that the learned
Judge did, in fact, express his satisfaction in recital
IV. It does considerable violence to ordinary Eng-
lish usage to construe that recital, as the appellant
would have it, as expressing only satisfaction that
a warrant is required to enable investigation and as
not expressing satisfaction as to the existence of
the threat to Canada's security requiring the
investigation.
The second argument is based on analogous
Criminal Code search warrant authorities. For
example, the appellant relies on Bergeron et al. v.
Deschamps et al., [1978] 1 S.C.R. 243; (1977), 33
C.C.C. (2d) 461, a case that actually dealt with
the retention for use in evidence of documents
seized under an admittedly illegal warrant,
described by Laskin C.J.C., as follows [at pages
244 S.C.R.; 461 C.C.C.]:
The warrant, issued by a justice of the peace, was directed to
the seizure, at named premises, of various documents, described
only by class (e.g. invoices, correspondence, books of account,
cheques, handwritten notes and a list of names) and connected
with the financial affairs of the Quebec Association for the
Deaf. Although fraud was alleged, neither the perpetrator nor
the victim nor the object of the fraud was identified. There was
no indication whether the premises to be searched were those of
the Association or of the perpetrator or of the victim of the
alleged fraud which itself was left completely vague.
Rothman J. quashed the search warrant, and the correctness
of that decision was not challenged on appeal, nor is it chal
lenged here.
It was held by the Supreme Court that, [at pages
245 S.C.R.; 462 C.C.C.] of such a warrant, "it
cannot be said that there is any chargeable offence
to which the seized documents could be relevant".
Countering the appellant's authorities, which
were predicated on searches and seizures effected
on the authority of warrants issued after the
alleged commission of particular criminal offences,
the respondent referred us to a number of deci
sions which set forth the texts of wiretap authori
zations: R v. Welsh and Iannuzzi (No. 6), supra, at
page 366; R. v. Gill (1980), 56 C.C.C. (2d) 169
(B.C.C.A.), at page 174; R. v. Volpe (1981), 63
C.C.C. (2d) 506 (Ont. C.A.), at page 507 and R.
v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48
(Ont. C.A.), at pages 52 ff. It is clear that Crimi
nal Code wiretap authorizations have not been
struck down for want of particularity when, in the
nature of the investigation for which they were
issued, the missing particulars were not reasonably
to be expected to be forthcoming in advance.
It seems to me that it will be generally less
practically possible to be specific, in advance, in
authorizations to intercept private communications
under the Act than under the Criminal Code. The
Code contemplates interception as an investigative
tool after or during the event while the Act is
directed primarily to gathering information in an
attempt to anticipate future occurrences. The dis
tinction was recognized by the United States
Supreme Court in United States v. U. S. District
Court, 407 U.S. 297 (1972), at page 322.
Moreover, we do not hold that the same type of standards
and procedures prescribed by Title III are necessarily appli
cable to this case. We recognize that domestic security surveil
lance may involve different policy and practical considerations
from the surveillance of "ordinary crime". The gathering of
security intelligence is often long range and involves the interre
lation of various sources and types of information. The exact
targets of such surveillance may be more difficult to identify
than in surveillance operations against many types of crime
specified in Title III. Often, too, the emphasis of domestic
intelligence gathering is on the prevention of unlawful activity
or the enhancement of the Government's preparedness for some
possible future crisis or emergency. Thus, the focus of domestic
surveillance may be less precise than that directed against more
conventional types of crime.
In my opinion, the failure to describe in the war
rant the perceived threat to the security of Canada
in terms other than the words of the Act, does not
render the warrant invalid on its face.
(c) Failure to limit seizures
It is common ground that no search was con
ducted nor seizure effected under Part B of the
warrant. The appellant does not contest that Part
B is entirely severable, meeting the test of Gra-
bowski v. The Queen, [1985] 2 S.C.R. 434, at
page 453.
When there is a clear dividing line between the good and bad
parts of an authorization, and they are not so interwoven that
they cannot be separated but are actually separate authoriza
tions given in the same order, the court in my opinion can
divide the order and preserve the valid portion, which then
forms the authorization. In such a case interceptions made
under the valid authorization are admissible.
I have not considered what might have been had
Part B been acted upon by the Service. I do not
propose in these reasons to do so.
(d) Solicitor-client privilege
The issue here is not the admissibility in evi
dence of communications intercepted under au
thority of the warrant. What we have is the propo
sition that an authorization broad enough to
encompass interception of communications subject
of solicitor-client privilege renders the warrant
invalid on its face.
In the absence of direct judicial authority, the
appellant relied heavily on a text, Law of Elec
tronic Surveillance in Canada, Toronto: Carswell,
1979, by David Watt, now Mr. Justice Watt of the
High Court of Ontario. In particular, he relied on
a lengthy passage at pages 175 ff., in which the
learned author proposed the sort of limitations a
Criminal Code wiretap authorization ought to con
tain in order to provide reasonable protection
against the interception of privileged communica
tions. Perusal of that passage makes clear that the
immediate topic was conditions which might be
appropriate after the subject of the surveillance
had been charged with an offence, a circumstance
simply not analogous to surveillance under the Act
nor even arguably applicable to the actual situa
tion of the appellant, who was not charged while
the warrant was in effect. In the latter circum
stance, I do not propose to deal with arguments
based on paragraph 10(b) of the Charter.
The appellant also submits that, since the privi
lege attaching to a communication is lost once the
message has been intercepted, regardless of com
pliance with the requirements of condition 3 that
all records of a privileged communication be
destroyed once so identified and that it not be
disclosed further, a person with knowledge thereof,
e.g. the Director or a translator, would, neverthe
less, be compellable as a witness to testify as to its
content. Authority for this proposition is found in
R. v. Dunbar and Logan (1982), 68 C.C.C. (2d)
13, a case in which a co-accused had, without
authorization, come into possession of the subject's
privileged communication. Martin J. A., for the
Ontario Court of Appeal, at page 42, had this to
say:
In my view, the privilege was dissolved if Dunbar, even surrep
titiously removed the notes from Bray's cell. Wigmore on
Evidence (McNaughton Rev.), vol. 8, states at p. 633:
All involuntary disclosures, in particular, through the loss or
theft of documents from the attorney's possession, are not
protected by the privilege, on the principle that, since the law
has granted secrecy so far as its own process goes, it leaves to
the client and attorney to take measures of caution sufficient
to prevent being overheard by third persons. The risk of
insufficient precautions is upon the client. This principle
applies equally to documents.
In so arguing, the appellant accords no force to the
mandatory language of condition 3 forbidding
such disclosure and the readiness of the courts to
exclude evidence whose admission would tend to
bring into disrepute the administration of justice. I
cannot conceive that the apprehended situation
could actually arise.
It is the substantive law, not a rule of evidence,
that is to be considered in assessing the validity of
the warrant. In Descoteaux et al. v. Mierzwinski,
[1982] 1 S.C.R. 860, after referring to the Court's
earlier decision in Solosky v. The Queen, [ 1980] 1
S.C.R. 821, Lamer J., at page 875, said:
It is quite apparent that the Court in that case applied a
standard that has nothing to do with the rule of evidence, the
privilege, since there was never any question of testimony
before a tribunal or court. The Court in fact, in my view,
applied a substantive rule, without actually formulating it, and,
consequently, recognized implicitly that the right to confiden
tiality, which had long ago given rise to a rule of evidence, had
also since given rise to a substantive rule.
It would, 1 think, be useful for us to formulate this substan
tive rule, as the judges formerly did with the rule of evidence; it
could, in my view, be stated as follows:
1. The confidentiality of communications between solicitor and
client may be raised in any circumstances where such com
munications are likely to be disclosed without the client's
consent.
2. Unless the law provides otherwise, when and to the extent
that the legitimate exercise of a right would interfere with
another person's right to have his communications with his
lawyer kept confidential, the resulting conflict should be
resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something
which, in the circumstances of the case, might interfere with
that confidentiality, the decision to do so and the choice of
means of exercising that authority should be determined with
a view to not interfering with it except to the extent absolute
ly necessary in order to achieve the ends sought by the
enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and
enabling legislation referred to in paragraph 3 must be
interpreted restrictively.
That is the standard against which the warrant is
to be measured. In the present case, paragraphs 3
and 4 are particularly applicable.
Subsection 21(3) authorizes the judge to issue a
warrant "to intercept any communication". Given
that the confidential character of such communi
cations when electronically intercepted cannot
possibly be ascertained before they are monitored,
the authority of subsection 21(3) simply cannot be
interpreted so as to preclude their initial intercep
tion. In my view, conditions 2 and 3 set forth in the
warrant do meet the requirement that the confi
dentiality of solicitor-client communications be
interfered with only to the extent absolutely neces
sary to achieve the objects of the Act. The relevant
objects are stated in section 12.
12. The Service shall collect, by investigation or otherwise,
to the extent that it is strictly necessary, and analyse and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, shall report to and
advise the Government of Canada.
The disclosure of information so obtained to law
enforcement authorities, while permitted by para
graph 19(2)(a), is not an object of its collection.
3. WARRANT INVALID ON ITS FACE
NON-COMPLIANCE WITH CHARTER
The appellant says that section 21 of the Act
runs afoul of section 8 of the Canadian Charter of
Rights and Freedoms.
8. Everyone has the right to be secure against unreasonable
search or seizure.
Counsel for the Attorney General of British
Columbia argued that the interception and record
ing of conversations was not a seizure at all. He
relied on an unreported decision of the Supreme
Court of British Columbia, R. v. Taylor et al., no.
X011079, rendered December 30, 1983, in which
it was said:
I reject summarily the suggestion that there has been a seizure
of words. The best that could be made of such an argument is
that normally—once words are spoken—they are gone unless
remembered. The recording of those words and preparation of
transcripts of the communications has merely preserved for
posterity exactly what was said and by whom.
That proposition appears not to have been put nor
occurred to the Ontario Court of Appeal dealing
with the same Charter issue in respect of the same
provisions of the Criminal Code in R. v. Finlay
and Grellette (1985), 23 C.C.C. (3d) 48, at pages
61 ff. It would not have occurred to me either.
I do not think it implicitly enlarges the scope of
section 8 to encompass a right to privacy extending
beyond unreasonable search and seizure to hold
that it does apply to state authorized interception
of private verbal communications for purposes of
obtaining evidence, as under the Criminal Code, or
intelligence, as under the Act. To so approach the
matter is not to expand the notion of search and
seizure at all but rather to recognize that technolo
gy has changed the ways a search and seizure may
be effected and, coincidentally, added verbal com
munications to the things which, practically, can
be seized.
The leading decision on section 8 is Hunter et
al. v. Southam Inc., [1984] 2 S.C.R. 145. The
appellant says that decision establishes four mini
mum criteria that must be met if legislation
authorizing a search and seizure is to comply with
section 8, namely,
(i) prior authorization for the search or seizure, where
feasible;
(ii) the determination whether to grant the prior authoriza
tion must be made by a person capable of acting
judicially;
(iii) the determination must be based on sworn evidence; and
(iv) the objective standard on which the determination is to
be based must include reasonable and probable grounds
to believe that an offence has been committed and that
evidence of the offence is to be found at the place of the
search.
The appellant concedes that section 21 of the Act
meets the first three requirements but says it does
not meet the fourth.
It will be useful to quote at some length what
Dickson J., as he then was, said, at pages 167 ff.
The purpose of an objective criterion for granting prior authori
zation to conduct a search or seizure is to provide a consistent
standard for identifying the point at which the interests of the
state in such intrusions come to prevail over the interests of the
individual in resisting them. To associate it with an applicant's
reasonable belief that relevant evidence may be uncovered by
the search, would be to define the proper standard as the
possibility of finding evidence. This is a very low standard
which would validate intrusion on the basis of suspicion, and
authorize fishing expeditions of considerable latitude. It would
tip the balance strongly in favour of the state and limit the
right of the individual to resist to only the most egregious
intrusions. I do not believe that this is a proper standard for
securing the right to be free from unreasonable search and
seizure.
The state's interest in detecting the preventing crime begins to
prevail over the individual's interest in being left alone at the
point where credibly-based probability replaces suspicion. His
tory has confirmed the appropriateness of this requirement as
the threshold for subordinating the expectation of privacy to
the needs of law enforcement. Where the state's interest is not
simply law enforcement as, for instance, where state security is
involved, or where the individual's interest is not simply his
expectation of privacy as, for instance, when the search threat
ens his bodily integrity, the relevant standard might well be a
different one. That is not the situation in the present case. In
cases like the present, reasonable and probable grounds, estab
lished upon oath, to believe that an offence has been committed
and that there is evidence to be found at the place of the search,
constitutes the minimum standard, consistent with s. 8 of the
Charter, for authorizing search and seizure.
The appellant says that section 21 fails to meet the
fourth branch of the test because it does not
require the judge to believe, on reasonable and
probable grounds, (a) that an offence has been
committed and (b) that evidence of the offence
will be found at the place of the search.
The warrant in issue was granted in respect of a
threat to national security, not the commission of
an offence in the conventional sense. To conclude,
as Hunter et al. v. Southam Inc. anticipated, that
a different standard should apply where national
security is involved is not necessarily to apply a
lower standard but rather one which takes account
of reality.
Since the Act does not authorize the issuance of
warrants to investigage offences in the ordinary
criminal context, nor to obtain evidence of such
offences, it is entirely to be expected that section
21 does not require the issuing judge to be satisfied
that an offence has been committed and that
evidence thereof will be found in execution of the
warrant. What the Act does authorize is the inves
tigation of threats to the security of Canada and,
inter alla, the collection of information respecting
activities that may, on reasonable grounds, be
suspected of constituting such threats. Having
regard to the definition of "judge", paragraph
21(2)(a) of the Act fully satisfies, mutatis mutan-
dis, the prescription of Hunter et al. v. Southam
Inc. as to the minimum criteria demanded by
section 8 of legislation authorizing a search and
seizure. The judge is required to be satisfied, on
reasonable and probable grounds established by
sworn evidence, that a threat to the security of
Canada exists and that a warrant is required to
enable its investigation. In my opinion, that is an
objective standard.
I did not identify any submissions as to the
invalidity of the warrant itself by reason of conflict
with section 8 of the Charter which were not either
dependent on the invalidity of section 21 of the
Act or essentially repetitious of the arguments that
the warrant did not, on its face, comply with that
provision. I see no need to repeat myself by dealing
with them. I find no merit in the argument that
the warrant is invalid, on its face, by reason of its
failure to meet the minimum standards for a
reasonable search and seizure required by the
Charter.
4. NON-DISCLOSURE OF AFFIDAVIT
In the ordinary course of events, when evidence
of an offence against a person has been acquired
under the authority of a search warrant or an
electronic surveillance authorization, that person
has the right, before the evidence is used against
him, to challenge the validity of the warrant on the
basis that the judge who issued it erred in doing so
by reason of the insufficiency of the material
which supported the application. The basis of that
right was stated by H. J. MacDonald J., of the
Supreme Court of Alberta in Realty Renovations
Ltd. v. A.G. Alta., [1979] 1 W.W.R. 74, at page
80, in a passage quoted with approval by Dickson
J., as he then was, in Attorney General of Nova
Scotia et al. v. Maclntyre, [1982] 1 S.C.R. 175, at
page 181.
Since the issue of a search warrant is a judicial act and not
an administrative act, it appears to me to be fundamental that
in order to exercise the right to question the validity of a search
warrant, the interested party or his counsel must be able to
inspect the search warrant and the information on wich it is
based. Although there is no appeal from the issue of a search
warrant, a superior court has the right by prerogative writ to
review the act of the Justice of the Peace in issuing the warrant.
In order to launch a proper application, the applicant should
know the reasons or grounds for his application, which reasons
or grounds are most likely to be found in the form of the
information or warrant.
That rationale applies equally to a wiretap author
ization as to a search warrant and to surveillance
under the Act as to surveillance in a conventional
criminal investigation. The appellant has a right to
mount such an attack, he wishes to do so but
cannot unless he is given access to the affidavit of
Archie Barr referred to in recital III. The issue for
this Court, at this juncture, is whether the learned
Judge erred in refusing to order its production.
The Act does not, expressly, forbid production
of the affidavit. Its relevant provisions are sections
18, 19, 27 and 28, whereof the material portions
follow:
18. (1) Subject to subsection (2), no person shall disclose
any information that the person obtained or to which the person
had access in the course of the performance by that person of
duties and functions under this Act or the participation by that
person in the administration or enforcement of this Act and
from which the identity of
(a) any other person who is or was confidential source of
information or assistance to the Service, or
(b) any person who is or was an employee engaged in
convert operational activities of the Service
can be inferred.
(2) A person may disclose information referred to in subsec
tion (1) for the purposes of the performance of duties and
functions under this or any other Act of Parliament or the
administration or enforcement of this Act or as required by any
other law or in the circumstances described in any of para
graphs 19(2)(a) to (d).
(3) Every one who contravenes subsection (1)
(a) is guilty of an indictable offence and is liable to impris
onment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary
conviction.
19. (1) Information obtained in the performance of the
duties and functions of the Service under this Act shall not be
disclosed by the Service except in accordance with this section.
(2) The Service may disclose information referred to in
subsection (1) for the purposes of the performance of its duties
and functions under this Act or the administration or enforce
ment of this Act or as required by any other law and may also
disclose such information,
(a) where the information may be used in the investigation
or prosecution of an alleged contravention of any law of
Canada or a province, to a peace officer having jurisdiction
to investigate the alleged contravention and to the Attorney
General of Canada and the Attorney General of the province
in which proceedings in respect of the alleged contravention
may be taken;
Recitation of paragraph 19(2)(a) is sufficient to
illustrate the sort of disclosure of information by
the Service contemplated by the Act. It was the
release of information to the Attorney General for
British Columbia, authorized by that provision,
that gave rise to this proceeding. Without that
release, the appellant would, presumably, never
have known of the warrant's existence. Paragraphs
(b),(c) and (d) authorize disclosure, in specified
circumstances, to ministers of the Crown in right
of Canada or persons in the federal public service.
None contemplate the disclosure sought here.
27. An application under section 21, 22 or 23 to a judge for
a warrant or the renewal of a warrant shall be heard in private
in accordance with regulations made under section 28.
28. The Governor in Council may make regulations
(a) prescribing the forms of warrants that may be issued
under section 21 or 23;
(b) governing the practice and procedure of, and security
requirements applicable to, hearings of applications for such
warrants and for renewals of such warrants; and
(c) notwithstanding the Federal Court Act and any rules
made thereunder, specifying the places where such hearings
may be held and the places where, and the manner in which,
records or documents concerning such hearings shall be kept.
No regulations have been made pursuant to sec
tion 28. No rules of Court specially applicable in
the circumstances have been made under the Fed
eral Court Act. While it may be impertinent to
raise it, since the appellant did not, I can well
conceive that, in the absence of such rules or
regulations, the failure to produce such an affida
vit as part of the appeal case, as appears to be
required by Rule 1204, may be an issue in a future
appeal. Perhaps the inference to be drawn from its
absence is that the learned Judge, dealing with the
application to rescind some 20 months after issu
ing the warrant, did not again review the affidavit.
In any event, to the extent the general Rules of
Court are pertinent they militate in favour of
disclosure.
The only statutory limitation on disclosure is an
absolute prohibition against disclosure by any
person of information from which the identity of
an informer or an employee engaged in covert
operations can be inferred. That prohibition should
be respected by the Court. The requirement that
the application for the warrant be heard in private
does not, in my opinion, sustain the conclusion that
the supporting affidavit is not to be disclosed
under any circumstances. So far as I am aware, it
is standard practice that all initial applications for
search warrants or wiretap authorization be made
in private. It is only after execution that the right
of an interested party to inspect the supporting
information arises.
Counsel for the Attorney General for British
Columbia argued that the disclosures specified by
section 19 are exhaustive of the permitted disclo
sures of the information contained in the affidavit
and that its disclosure to the appellant is, therefor,
prohibited by the Act. I infer that the information
in the affidavit is, in all probability, "information
obtained in the performance of the duties and
functions of the Service" and, thus, within the
ambit of the section. The failure of this argument
lies in the fact that the section deals with disclo
sure of information by the Service. We are here
concerned with a request to the Court that it
disclose information. Nothing in the Act expressly
prohibits that. If it is not to be disclosed it must be
because an interested party properly objects to its
disclosure, not because disclosure is forbidden by
law.
The respondent cites two decisions of this Court
as authority for the proposition that, as a matter of
law, the affidavit ought not, in view of national
security considerations, be disclosed. Those deci
sions, Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.)
and Gold v. R., [ 1986] 2 F.C. 129 (C.A.), both
upheld the refusal of a judge designated under
subsection 36.2(1) of the Canada Evidence Act
[R.S.C. 1970, c. E-10 (as added by S.C. 1980-81-
82-83, c. 111, s. 4)] to even examine the material,
objection to the production of which had been
taken, with a view to considering its possible dis
closure. Disclosure was sought, in Goguen, by the
defence in a criminal prosecution and, in Gold, by
the plaintiff in a civil action. Perusal of both
decisions makes clear that the ratio for not even
directing examination of the material was the
Court's satisfaction as to its evidentiary value. In
Goguen, the Court was satisfied that the material
could have no value except to confirm direct evi
dence otherwise available and, in Gold, it was
satisfied that the material could have no relevance
to any matter in issue having regard to admissions
in the statement of defence. There can simply be
no question as to the relevance of the affidavit to
the attack the appellant wishes to make on the
warrant.
The respondent also argues that, in the context
of an application to rescind an ex parte order
pursuant to Rule 330, the refusal to order produc
tion of the affidavit is a discretionary matter and
that
A Court of Appeal will not interfere with the exercise of his
discretion by a Judge of first instance in an interlocutory
matter of this kind, unless it is clear that, in exercising his
discretion, the learned Trial Judge proceeded on some errone
ous principle or some misapprehension of the facts, or that the
Order is no just and reasonable.
International Business Machines Corporation of
Canada Limited and Xerox Corporation (1977),
16 N.R. 355 (F.C.A.) and decisions referred to in
footnote 1 thereof. While the matters to be dealt
with in an application to a judge of first instance
under Rule 330 will, in all probability, usually be
interlocutory in nature, the order made in this
instance is clearly final in nature. Our duty is to
determine whether the learned Judge erred in law
in refusing to order production.
The learned Judge dealt at some length with the
question whether, in the application under Rule
330, the process under sections 36.1 [as added by
S.C. 1980-81-82-83, c. 111, Schedule III, s. 4] and
36.2 of the Canada Evidence Act had been trig
gered. His conclusion that it had not is not in issue
here.
I think it fair to characterize the threat to the
security of Canada in respect of which the warrant
issued as terrorism. No right-minded person will
dispute that, in this day and age, terrorism
presents a threat to the security of a good many
nations, that Canada and Canadians are not
exempt either as a situs or object of terrorism, and
that it is in our clear national interest that infor
mation as to such threats be gathered by the
Service. The events that led to the McDonald
Commission inquiry and report and Parliament's
ultimate decision to introduce the judiciary into
the intelligence gathering system are fresh enough
in our minds to permit judicial notice of some
generalities. The previous system had been ren
dered unacceptable to the government and Parlia
ment by its loss of public credibility. A great many
people simply did not believe that what had been
done in the name of national security had been
justified, important as most of them accepted na
tional security to be. Popular scepticism was
prompted as much, if not more, by the identities of
targets of the system, as they became known, as by
the modus operandi of those engaged in it. One
measure chosen to lend the new civilian Service
public credibility was the introduction of judicial
control at the point where its covert activities may
intrude into the private lives of Canadian citizens
and residents. Judicial intervention was not
required to allow the Service to conduct surveil
lance effectively; that could, more conveniently,
have continued under executive fiat. It was
required to protect potential targets against unjus
tified surveillance and to assure the public that
such protection was being effectively afforded. The
benefit of judicial intervention to the Service and,
thus, to Canada, will be imperilled if it is present
ed to and perceived by the public as primarily a
function of the intelligence gathering system
rather than of the judicial system.
In his reasons, the learned Judge recited the
following passage from the Maclntyre decision, at
pages 183 and 184, in which Dickson J., speaking
of search warrants, after observing that there is a
strong public policy in favour of "openness" in
respect of judicial acts, went on:
The rationale of this last-mentioned consideration has been
eloquently expressed by Bentham in these terms:
'In the darkness of secrecy, sinister interest, and evil in every
shape have full swing. Only in proportion as publicity has
place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice.'
`Publicity is the very soul of justice. It is the keenest spur to
exertion and surest of all guards against improbity. It keeps
the judge himself while trying under trial.'
The concern for accountability is not diminished by the fact
that the search warrants might be issued by a justice in camera.
On the contrary, this fact increases the policy argument in
favour of accessibility. Initial secrecy surrounding the issuance
of warrants may lead to abuse, and publicity is a strong
deterrent to potential malversation.
In short, what should be sought is maximum accountability
and accessibility but not to the extent of harming the innocent
or of impairing the efficiency of the search warrant as a
weapon in society's never-ending fight against crime.
With little adaptation that last statement is par
ticularly apt. What must be sought here is the
maximum accountability and accessibility of and
to the judicial presence in the intelligence gather
ing system but not to the extent of impairing the
investigation of genuine threats to national secu
rity. At the risk of repeating myself, the credibility
of the Service has a direct and positive, but by no
means exclusive, dependency on the credibility of
the judicial presence in the system; since judicial
credibility is so dependent on openness, the Ser
vice, too, has an interest in the openness of that
judicial presence.
At page 346 of his reasons, the learned Judge
defined the issue as:
... whether or not there are special circumstances here which
would permit the Court to depart from the general rule of full
disclosure of all Court documents to all parties, absent a section
36.1 certificate? I state the issue in this way because of
jurisprudence which, in my view, entitles the Court to depart
from the general rule, if, in its view, disclosure would be
inimical to the best interests of the administration of justice.
He then quoted, with emphasis he added, the
following from page 189 of the Maclntyre
decision.
Undoubtedly every Court has a supervisory and protecting
power over its own records. Access can be denied when the ends
of justice would be subverted by disclosure or the judicial
documents might be used for an improper purpose. The pre
sumption, however, is in favour of public access and the burden
of contrary proof lies upon the person who would deny the
exercise of the right.
He concluded:
This passage makes it clear that a judge has a discretion to
deny access to any Court document "when the ends of justice
would be subverted by disclosure."
The special circumstances upon which the learned
Judge relied in refusing to disclose the affidavit
were twofold. I quote from pages 350 and 351 of
his reasons.
... firstly, that affidavit relates to political terrorism which was
in the course of being investigated in the interests of national
security. Disclosure might well result in the revelation of
security investigatory methodology which could lead to the
significant impairment of the effectiveness of this and future
security investigations. The public interest in protecting and
preserving the Security Service's ability to discharge the oner
ous and important mandate given to it under the CSIS Act in
the interests of national security cannot be disregarded or
ignored. Secondly, and in any event, and for the reasons
expressed supra, I have the view that insofar as this applicant is
concerned and relating to the criminal charge against him in
British Columbia, other avenues of redress may well be open to
him relating to disclosure of the Barr Affidavit.
It is at this point that I find myself parting com
pany with the learned Judge. It seems to me that if
access to the affidavit is to be refused it cannot be
on the ground that the ends of justice would be
subverted by its disclosure. The ends of national
security are not tantamount to the ends of justice.
The second consideration seems to me, with
respect, to be irrelevant. The applicant is entitled
to challenge the validity of the warrant and it is in
this Court that he must challenge it. Wilson v. The
Queen, [1983] 2 S.C.R. 594, dealt with a determi
nation by a provincial court judge that evidence
obtained under a Criminal Code wiretap authori-
zation issued by a Queen's Bench judge was inad
missible, having been illegally obtained. He was
held to have erred in excluding the evidence and a
new trial was ordered. McIntyre J., for the majori
ty, at page 607, held:
Since no right of appeal is given from the granting of an
authorization and since prerogative relief by certiorari would
not appear to be applicable (there being no question of jurisdic
tion), any application for review of an authorization must, in
my opinion, be made to the court that made it. There is
authority for adopting this procedure. An authorization is
granted on the basis of an ex parte application. In civil matters,
there is a body of jurisprudence which deals with the review of
ex parte orders. There is a widely recognized rule that an ex
parte order may be reviewed by the judge who made it.
Rule 330 provides the procedure for such review in
this Court.
As to the first consideration, it is not clear to me
whether the learned Judge incorporated the na
tional security interest, whose existence and impor
tance I do not question, into an interest to avoid
subversion of the ends of justice, or whether he
thought it proper, ex proprio motu, effectively to
invoke sections 36.1 ff. of the Canada Evidence
Act since the respondent had not. Whichever it
was, in my opinion, he erred.
The public interest in the administration of jus
tice must, it seems to me, invariably weigh in
favour of the openness of all judicial processes. It
is an interest which judges must approach as
entirely independent of other public interests
which may weigh against and, on occasion, out
weigh it. All these interests must be treated as
competing interests, not as constituent elements of
some global public interest whose bearing on the
openness of the judicial process is to be applied by
judges on a case by case basis. To adopt the latter
approach is to risk cooption of the administration
of justice by other, perhaps only momentarily
pressing, concerns. Assuming that its disclosure
would not have a cataclysmic impact on our entire
social order, it is not the ends of justice that may
be subverted by disclosure of the affidavit.
None of the foregoing is to suggest that when a
judge anticipates a disclosure of information
damaging to the national security interest in a
proceeding in which that might not have been
expected, or the Crown in right of Canada is not
represented, he ought not afford the responsible
authority the opportunity to assert the interest. It
is no more a judge's function passively to permit
the national security interest to be put at risk than
it is actively to assert it against the norm of open
judicial process. This is not such a case.
The Canada Evidence Act provides:
36.1 (1) A minister of the Crown in right of Canada or
other person interested may object to the disclosure of informa
tion before a court, person or body with jurisdiction to compel
the production of information by certifying orally or in writing
to the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweighs in importance the specified public interest.
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
(5) An application under subsection (I) or an appeal
brought in respect of such application shall
(a) be heard in camera; and
(b) on the request of the person objecting to the disclosure of
information, be heard and determined in the National Capi
tal Region described in the schedule to the National Capital
Act.
(6) During the hearing of an application under subsection
(1) or an appeal brought in respect of such application, the
person who made the objection in respect of which the applica
tion was made or the appeal was brought shall, on the request
of that person, be given the opportunity to make representa
tions ex parte.
I have set out these provisions to demonstrate that
Parliament has provided clear means whereby the
national security interest against disclosure of the
affidavit may be asserted and adjudicated should
the responsible minister of the Crown choose to
assert it.
I again note that the learned Judge has seen the
subject affidavit, and no doubt others like it, as I
have not. He may well have good reason to con
clude that the interests of national security, if
invoked, would preclude disclosure of any mean
ingful part of it. However, it is not his function to
invoke the national security interest. The respon
sible Minister is entirely capable of taking the
responsibility Parliament has assigned to him and,
in the interest of the administration of justice, it is
he, not a judge, who should accept it. It is no part
of an appropriate exercise of judicial discretion to
avoid subversion of the ends of justice to anticipate
that such an objection will be taken much less that
it will be taken and sustained as to the entire
affidavit.
CONCLUSION
In my respectful opinion, the warrant is valid on
its face but, in the absence of an objection under
section 36.1 of the Canada Evidence Act, the
learned Judge should have ordered disclosure of
the affidavit after deleting therefrom anything
from which the identity of any person described in
paragraph 18(1)(a) and/or (b) of the Act can be
inferred. He erred in failing to do so and I would
so declare. I would allow the appeal with costs
and, pursuant to subparagraph 52(b)(iii) of the
Federal Court Act, I would refer the matter back
to the learned Judge for a continuance of the
hearing of the application in light of the foregoing
declaration.
MACGUIGAN J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J. (dissenting in part): On July 26,
1985, Heald J., acting as a judge of the Federal
Court of Canada designated by the Chief Justice
for the purposes of the Canadian Security Intern-
gence Service Act (S.C. 1984, c. 21) (CSIS),
issued a warrant pursuant to section 21 of that act
authorizing the interception of, and search for, the
private communications, both oral and written, of
the appellant Harjit Singh Atwal. Mr. Atwal,
having subsequently been charged with criminal
offences in British Columbia and having been
notified of the Crown's intention to make use of
certain intercepted communications as evidence at
his trial, then moved Heald J. to rescind the ex
parte order by which he has issued the warrant.
That motion was purportedly made pursuant to
Rule 330 of this Court:'
Rule 330. The Court may rescind
(a) any order that was made ex parte, or
(b) any order that was made in the absence of a party who
had failed to appear through accident or mistake or by
reason of insufficient notice of the application;
but no such rescission will affect the validity or character of
anything done or not done before the rescinding order was
made except to the extent that the Court, in its discretion, by
rescission order expressly provides.
In a long and carefully written decision dated
April 3, 1987, Heald J. dismissed the application
to rescind. The present appeal is from that
decision.
At the outset of the hearing, counsel for the
respondent raised an issue as to our jurisdiction to
hear the appeal. It must be emphasized that no
objection was taken either before us or before
Heald J. as to the latter's jurisdiction to entertain
the application to rescind the original warrant;
such application appears to be of the type specifi
cally approved by the majority of the Supreme
Court in Wilson v. The Queen, [1983] 2 S.C.R.
594. Rather, the objection was to the jurisdiction
of the Appeal Division of this Court to entertain
an appeal from Heald J.'s decision. The point,
briefly put, is that Heald J. was not sitting as a
judge of the Trial Division when he issued the
warrant and that therefore section 27 of the Fed
eral Court Act 2 (the only arguably applicable
provision) does not apply so as to create a right of
appeal.
' C.R.C., c. 663.
2 R.S.C. 1970 (2nd Supp.), c. 10.
In my view, the point is not well taken for,
whatever may have been Heald J.'s status when he
issued the original warrant on July 26, 1985, when
he sat over a year and a half later to hear the
application to rescind that warrant he could only
have done, so as a judge of the Federal Court of
Canada. I repeat that his jurisdiction to entertain
that application was never questioned. In those
circumstances, it seems plain to me that subsection
26(1) of the Federal Court Act applies and that
Heald J. must have been exercising his jurisdiction
as an ex officio member of the Trial Division when
he rendered the judgment under appeal.
The point is, in any event, academic. Counsel
conceded that there could be no prejudice if an
order were made converting the appeal into an
application to review and set aside pursuant to
section 28 of the Federal Court Act. It was sug
gested, somewhat halfheartedly, that Heald J. was
not sitting as a judge at all but rather as a persona
designata who was not subject to the provisions of
section 28. Not only do I find that suggestion to be
incompatible with the concession that Heald J.
had jurisdiction to entertain the application to
rescind; I also find it to fly in the teeth of the
decision of the Supreme Court of Canada in
Herman et al. v. Deputy Attorney General (Can.),
[1979] 1 S.C.R. 729. Accordingly, if I were wrong
in my view that the subject decision is appealable
according to section 27 of the Federal Court Act, I
would make the necessary order to convert the
appeal into an application under section 28.
This brings me to the merits of the matter. A
large number of points were argued before us, but
I find it necessary to deal with only one of them
since I consider it to be conclusive. That point,
simply put, is that section 21 of the CSIS Act,
which was adopted some three months prior to the
seminal decision of the Supreme Court in Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145, is
incompatible with the guarantee against unreason
able search and seizure contained in section 8 of
the Canadian Charter of Rights and Freedoms as
interpreted by Hunter.
The CSIS Act was adopted in 1984 in response
to considerable dissatisfaction with the manner in
which operations relating to national security had
theretofore been conducted. It creates a civilian
agency charged with the responsibility of investi
gating threats to national security and subjects its
operations to a carefully constructed scheme of
inspections and review designed to ensure that,
notwithstanding the necessity of secrecy of such
operations, there shall be public confidence that
the vast powers of the Service are not being
abused. One of the features of that scheme is to
require that intrusions upon the privacy of Canadi-
ans by electronic surveillance or otherwise shall
only be undertaken with prior judicial authoriza
tion. This is the only non political control which
operates before the fact; this is not to minimise the
importance of the other mechanisms created by
the Act for monitoring the activities of the Service
after they have taken place, but the point is neces
sary to an understanding of the judicial role in the
entire context of the CSIS Act.
The relevant provision for our purposes is sec
tion 21. It is found in Part II of the Act, headed
"Judicial Control" and reads as follows:
21. (l) Where the Director or any employee designated by
the Minister for the purpose believes, on reasonable grounds,
that a warrant under this section is required to enable the
Service to investigate a threat to the security of Canada or to
perform its duties and functions under section 16, the Director
or employee may, after having obtained the approval of the
Minister, make an application in accordance with subsection
(2) to a judge for a warrant under this section.
(2) An application to a judge under subsection (1) shall be
made in writing and be accompanied by an affidavit of the
applicant deposing to the following matters, namely,
(a) the facts relied on to justify the belief, on reasonable
grounds, that a warrant under this section is required to
enable the Service to investigate a threat to the security of
Canada or to perform its duties and functions under section
16;
(b) that other investigative procedures have been tried and
have failed or why it appears that they are unlikely to
succeed, that the urgency of the matter is such that it would
be impractical to carry out the investigation using only other
investigative procedures or that without a warrant under this
section it is likely that information of importance with
respect to the threat to the security of Canada or the
performance of the duties and functions under section 16
referred to in paragraph (a) would not be obtained;
(c) the type of communication proposed to be intercepted,
the type of information, records, documents or things pro
posed to be obtained and the powers referred to in para
graphs (3)(a) or (c) proposed to be exercised for that
purpose;
(d) the identity of the person, if known, whose communica
tion is proposed to be intercepted or who has possession of
the information, record, document or thing proposed to be
obtained;
(e) the persons or classes of persons to whom the warrant is
proposed to be directed;
(/) a general description of the place where the warrant is
proposed to be executed, if a general description of that place
can be given;
(g) the period, not exceeding sixty days or one year, as the
case may be, for which the warrant is requested to be in force
that is applicable by virtue of subsection (5); and
(h) any previous application made in relation to a person
identified in the affidavit pursuant to paragraph (d), the date
on which such application was made, the name of the judge
to whom each such application was made and the decision of
the judge thereon.
(3) Notwithstanding any other law but subject to the Statis
tics Act, where the judge to whom an application under subsec
tion (1) is made is satisfied of the matters referred to in
paragraphs (2)(a) and (b) set out in the affidavit accompan
ying the application, the judge may issue a warrant authorizing
the persons to whom it is directed to intercept any communica
tion or obtain any information, record, document or thing and,
for that purpose,
(a) to enter any place or open or obtain access to any thing;
(b) to search for, remove or return, or examine, take extracts
from or make copies of or record in any other manner the
information, record, document or thing; or
(c) to install, maintain or remove any thing.
(4) There shall be specified in a warrant issued under sub
section (3)
(a) the type of communication authorized to be intercepted,
the type of information, records, documents or things author
ized to be obtained and the powers referred to in paragraphs
(3)(a) to (c) authorized to be exercised for that purpose;
(b) the identity of the person, if known, whose communica
tion is to be intercepted or who has possession of the informa
tion, record, document or thing to be obtained;
(c) the persons or classes of persons to whom the warrant is
directed;
(d) a general description of the place where the warrant may
be executed, if a general description of that place can be
given;
(e) the period for which the warrant is in force; and
(/) such terms and conditions as the judge considers advis
able in the public interest.
(5) A warrant shall not be issued under subsection (3) for a
period exceeding
(a) sixty days where the warrant is issued to enable the
Service to investigate a threat to the security of Canada
within the meaning of paragraph (d) of the definition of that
expression in section 2; or
(b) one year in any other case.
Also of importance in the context of the present
case is section 12:
12. The Service shall collect, by investigation or otherwise,
to the extent that it is strictly necessary, and analyse and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, shall report to and
advise the Government of Canada.
There can be no question in my mind that both
the warrant and the provisions of section 21 itself
are subject to the controls of section 8 of the
Charter. That the latter is not limited to the
traditional forms of entry and physical seizure of
documents and objects, but extends to other intru
sions on privacy, by electronic or other means,
appears to me to be self-evident.
Two observations would seem to be apposite at
this point.
Firstly, the powers which can be granted by a
warrant issued under section 21 are vast and
instrusive to the highest degree. In Hunter,
Dickson J., as he then was, described the authori
zation under subsections 10(1) and 10(3) of the
Combines Investigation Act 3 as having a "Breath-
taking sweep". The warrant issued against Atwal
under section 21 of the CSIS Act in the present
case far exceeds anything that was dreamed of in
Hunter. It authorizes the clandestine interception,
by electronic or other means, of all of Atwal's
private communications, at any place in Canada,
or of any other person's at any place in Canada
used by Atwal as a temporary or permanent resi
dence. It also authorizes the clandestine search for,
and examination of, all of his recorded communi
cations, outside the course of post. It is truly
awesome in its reach.
Secondly, national security is a matter in which
the interests of the state must frequently be
allowed to prevail over those of the individual. The
3 R.S.C. 1970, c. C-23.
rights and freedoms of which we are so proud in
Canada and which are now, with the working out
of the Charter, receiving new and more vibrant
expression, the free and democratic system of gov
ernment which we take for granted at all levels,
and indeed the very peace and safety of all of us,
are dependent upon the continuing existence of the
state. Threats to that existence, by subversion,
terrorism or force of arms, must be vigorously
combatted.
The issue therefore is where to draw the line
between the individual's legitimate and reasonable
expectation of being left alone and the state's need
to defend itself against attack.
I return to Hunter. That case was not about
matters of national security, but rather about an
ordinary search to investigate the commission of a
crime. However, in the course of his judgment,
Dickson J. not only set out a clear indication of the
minimum standards set by section 8 of the Charter
for criminal investigations but also provided valu
able guidelines to the test which should apply in a
case such as this. The key is that, for any search or
seizure to be reasonable, there must be an objec
tive test to guide the judicial officer who is
charged with the responsibility of authorizing the
intrusion [at page 166]:
The location of the constitutional balance between a justifiable
expectation of privacy and the legitimate needs of the state
cannot depend on the subjective appreciation of individual
adjudicators. Some objective standard must be established.
This is how the requisite test was described for the
purposes of that case [at pages 167 and 168]:
The state's interest in detecting and preventing crime begins to
prevail over the individual's interest in being left alone at the
point where credibly-based probability replaces suspicion. His
tory has confirmed the appropriateness of this requirement as
the threshhold for subordinating the expectation of privacy to
the needs of law enforcement. Where the state's interest is not
simply law enforcement as, for instance, where state security is
involved, or where the individual's interest is not simply his
expectation of privacy as, for instance, when the search threat
ens his bodily integrity, the relevant standard might well be a
different one. That is not the situation in the present case. In
cases like the present, reasonable and probable grounds, estab
lished upon oath, to believe that an offence has been committed
and that there is evidence to be found at the place of the search,
constitutes the minimum standard, consistent with s. 8 of the
Charter, for authorizing search and seizure. [Emphasis added.]
Three criteria seem to me to emerge from this
passage. First, there must be some standard of
proof established by the legislation ("reasonable
and probable grounds ... to believe ..." ); second,
there must be a showing of the relevant state
interest ("an offence has been committed"); and
third, and most important, a reasonable and pro
portionate relationship between that interest and
the proposed intrusion must be demonstrated
("there is evidence to be found").
I return again to section 21 of the CSIS Act.
The relevant provision is paragraph 21(2)(a), as to
which, by operation of subsection 21(3), a judge
must be satisfied before issuing a warrant. When
the two provisions are read together they require
that the judge be satisfied that there are reason
able grounds to believe that a warrant
is required to enable the Service to investigate a threat to the
security of Canada.
In my view, this provision fails to meet the third
criterion because it does not provide any reason
able standard by which the judge may test the
need for the warrant. There is no requirement to
show that the intrusion into the citizen's privacy
will afford evidence of the alleged threat or will
help to confirm its existence or non-existence.
Nothing in the language of the statute requires a
direct relationship between the information it is
hoped to obtain from the intercepted communica
tion and the alleged threat to the security of
Canada. On the contrary, the relationship that is
required to be established on reasonable grounds
appears to be between the interception and the
investigation of the threat. In practical terms this
means that the statutory language is broad enough
to authorize the interception, in the most intrusive
possible manner, of the private communications of
an intended victim of a terrorist attack without his
knowledge or consent. Even more alarming, it
would also allow an interception whose purpose
was not directly to obtain information about the
threat being investigated at all, but rather to
advance the investigation by obtaining other infor-
mation which could then be used as a bargaining
tool in the pursuit of the investigation.
A hypothetical illustration may serve to make
the latter point. It is not wholly fanciful to postu
late a suspected threat to national security posed
by a radical movement, all of whose adherents are
drawn from a minority of the members of an
identifiable group which is readily distinguishable
by reason of race, religion, culture, geographic
origin, or the like. Such a group may itself be quite
small, with only a few hundred members in
Canada, and the radical fringe which formed the
threat to national security would by definition be
far smaller yet. In such circumstances, it might be
quite possible to believe, on reasonable grounds,
that the only effective way to investigate the threat
would be to penetrate the fringe movement from
within. Such penetration, however, could only be
effected by a member of the relevant minority
group since no outsider could qualify for member
ship in the movement. For a variety of reasons, it
might prove impossible or impractical for the Ser
vice to recruit a volunteer from amongst the mem
bers of the group and the only other way might be
to force someone to act as an informer by obtain
ing confidential information about him which
could be used against him if he did not do as he
was asked.
Now, I do not suggest for a moment that a
judge would ever authorize the issuance of a war
rant under section 21 for the purpose of allowing
such official blackmail on the part of the Service.
Nor, I hope, would he permit the surveillance of an
unsuspecting victim. That is not the point. What is
important is that section 21 itself does not exclude
those possibilities. By using the words
required to enable the Service to investigate a threat to the
security of Canada,
it employs language that is so broad as to provide
no objective standard at all. Even when due
account is taken of the importance of the state
interest involved, the extent of the possible intru
sion on the privacy of the citizen is wholly dispro
portionate. A search and seizure for the purposes
suggested would not be reasonable. Since section
21 would allow it, the section itself cannot stand.
As was aptly pointed out in Hunter, at page 169:
... it is the legislature's responsibility to enact legislation that
embodies appropriate safeguards to comply with the Constitu
tion's requirements. It should not fall to the courts to fill in the
details that will render legislative lacunae constitutional. With
out appropriate safeguards legislation authorizing search and
seizure is inconsistent with s. 8 of the Charter.
For these reasons, I would allow the appeal, set
aside the judgment appealed from and substitute
for it a judgment rescinding the ex parte order of
July 26, 1985 authorizing the issuance of a war
rant pursuant to section 21 of the Canadian Secu
rity Intelligence Service Act on the grounds that
the section is inoperable as being incompatible
with section 8 of the Charter. The appellant should
have his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.