ANNEX 15: THE LAW OF THE FIVE EYES
such cases the substantive decision is still taken by a single presiding judge. They are
entitled to appoint an amicus advocate to make submissions in respect of the privacy
issues raised by the application. I was told, in the course of my meeting with several
judges of the Court, that they frequently appoint amicus counsel when novel warrants
are sought that deploy new technology or propose new applications of old technology.
The members of the Court were of the view that those counsel provided them with real
assistance. I was told that warrant applicants can be made, heard and determined
within 24 hours, and dealt with even faster in an emergency. The ordinary time lag is
around 3 days.
43.
The applicants are subject to a high duty of candour and may not omit relevant or
important information. They will be criticised for failing to do so, as they were in X(Re)
(2013) FC 1275, when Judge Mosley concluded they had deliberately suppressed their
intention to monitor Canadian terror suspects outside of Canada (via cooperation with
other Five Eyes members).61
44.
In addition to the judges (who sit on rotation), the Designated Proceedings Registry
employs eight full time staff and one full time senior counsel. The Registry’s annual
budget (excluding infrastructure and some IT costs) was $826,000 last year (circa
£430,000). During 2013-14 the Federal Court dealt with 85 new warrant applications
and 178 renewal applications.
45.
A warrant must be supported by an affidavit, which I am told are ordinarily between 35
and 200 pages long. They set out (amongst other things):
(a)
Why the applicant believes “on reasonable grounds” that the warrant is
necessary for the Service to carry out its role;
(b)
Other procedures have been tried and failed or are unlikely to succeed;
(c)
The type of communication to be intercepted or information, records, documents
or things to be obtained;
(d)
The identity of the person whose communication is proposed to be intercepted
(if known); and
(e)
Any previous applications in respect of that person.
46.
A warrant may not be issued for longer than 60 days, where it is issued to enable the
Service to investigate “threats to the security of Canada”, or one year in any other case.
47.
Thus, this warrant process involves a two-stage review process: by the Minister and
also by the court. The judicial element was introduced following a series of reports into
abuses carried out by the Canadian police Security Services in the 1970s.
48.
In 2008 in Re CSIS, the Federal Court held that the CSIS had no power to carry out
activities beyond Canadian borders because the CSIS Act is not extraterritorial in
scope, or at least did not authorize overseas conduct that was not in compliance with
61
The judgment was upheld by the Court of Appeal (Re(X) 2014 FCA 249)
357