National Security, Human Rights and the Federal Court
Speech delivered by the Honourable Anne Mactavish before the International Commission of Jurists in Ottawa, on February 4, 20131
Good afternoon. I have been asked to speak to you today about the work of the Federal Court in the national security field, and the efforts that we make to balance national security and human rights.
In 2004, Justice Ian Binnie, then of the Supreme Court of Canada, gave a speech to the Hong Kong Conference on the Criminal Law. He concluded his remarks by describing the conflict between human rights and national security as being “truly a clash of the titans”.
In Canada, the task of reconciling these titanic issues falls mainly on the shoulders of a small group of judges of the Federal Court who have been designated by its Chief Justice to exercise the Court's jurisdiction in this area.
I am going to speak to you this afternoon about the unique role that Parliament has entrusted to the Chief Justice and designated judges of the Federal Court in connection with national security matters, and the challenges that this presents to these judges as we try to strike a balance between human rights and Canada’s national security.
Let me start with the caveats.
First and foremost, as a sitting judge, it is simply not appropriate for me to debate or comment upon the policy choices which Parliament has made in legislation concerning national security matters. That is a matter for informed debate between Canadian citizens and their Parliamentarians. Designated judges of the Federal Court can, however, provide information to the public about our role in national security matters in order to help inform that debate.
Secondly, my work as a designated judge requires that I have access to highly sensitive information, and it is therefore important that I maintain a degree of judicial restraint and discretion in my comments. This may limit my ability to fully address questions that you may have that may touch on protected information.
Finally, my comments today are my own and I do not purport to speak for my fellow designated judges.
With this in mind, let me start by talking about the whole idea of “national security”.
National Security Defined
“National security” is a something that is more difficult to define than one might think.
The McDonald Commission2 suggested in 1981 that two concepts were central to national security: the need to preserve the territory of our country from attack, and the need to preserve and maintain the democratic processes of government. Any attempt to subvert these by violent means is a threat to the security of Canada.
The Canadian Security Intelligence Service Act3 also defines “threats to the security of Canada” as including espionage and sabotage, foreign influenced events detrimental to Canada, efforts to threaten or use serious violence to achieve a political, religious or ideological objective, and efforts to overthrow the government.
A threat to Canada's security, as defined by the Act, does not include lawful advocacy, protest or dissent, unless it is carried on in conjunction with any of the above activities.
Historically, national security may have been equated with the defence of the realm, but it is now generally recognized that terrorism in one country may well implicate national security interests in other countries.
Thus, in the Suresh4 case, a case involving a member of the Liberation Tigers of Tamil Eelam (more commonly known in Canada as the “Tamil Tigers”), the Supreme Court of Canada concluded that a danger to the security of Canada is not limited to a direct threat to Canada itself.
What is required, the Supreme Court said, is “a real and serious possibility of adverse effect to Canada. But the threat need not be direct, rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security”5.
Canada’s National Security Policy6 identifies three core interests, which reflect the inter-relation of our security with that of other countries.
1. Protecting Canada, and the safety and security of Canadians at home and abroad;
2. Ensuring that Canada is not used as a base for threats against our allies; and
3. Contributing to international security.
Over the years, the nature of the threats to Canada’s national security have changed. During the Cold War, the major threat to Canadian security came from the Warsaw Pact’s military and intelligence capabilities.
However, as Angela Gendron, a Senior Fellow at the Canadian Centre of Intelligence and Security Studies at Carleton University wrote in an article entitled “Just War, Just Intelligence: An Ethical Framework for Foreign Espionage”7:
Since September 2001, national security specialists have been in general agreement that the greatest threat comes from international terrorist networks, motivated by religious extremism and prepared to use powerful conventional explosives and chemical, biological, radiological, or nuclear weapons of mass destruction.
This is a very different threat to that posed during the Cold War when our western intelligence agencies worked, in largest part, to counter the work of East Block security agencies. Today, our intelligence services act to deal with the threat posed by individuals motivated by ideology. As the so-called “Toronto 18” case showed us, some of these individuals may be “home grown” citizens, born and raised within the very societies that they wish to target.
Combating terrorist threats from external or internal sources is, of course, the responsibility of the executive branch of government. It must use police, military, or intelligence resources with due regard to our civil liberties, Canadian values and the rights protected by the Charter of Rights and Freedoms.
By enacting laws to achieve these aims, Parliamentarians have given the Federal Court a substantial role to play in exercising its jurisdiction under the CSIS Act, the Canada Evidence Act8, the Immigration and Refugee Protection Act9, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act10 and under amendments to the Criminal Code made pursuant to the Anti-Terrorism Act11.
The Challenge for the Court
No one can seriously dispute that maintaining Canada’s national security is of considerable importance. As U.S. Supreme Court Chief Justice Warren Burger observed in a 1981 decision, “no government interest is more compelling than the security of the Nation”12 for the simple reason that without such security, it is not possible for the state to protect other values and interests such as human rights.
The right of the state to take strong measures proportionate to the threats posed against it in order to protect national security is recognized in international law, in international covenants such as the International Covenant on Civil and Political Rights13 and in the jurisprudence of the Supreme Court of Canada in cases such as Chiarelli14 and Ruby15. In the 2005 Medovarski case16, the Supreme Court held that the objectives of the Immigration and Refugee Protection Act indicated a Parliamentary intent to prioritize Canada’s national security in immigration matters.
At the same time, however, liberal democracies such as Canada, with its entrenched Charter of Rights17, define themselves by the respect they show to the Rule of Law and the protection that they provide for civil liberties and human rights. Canadians expect, and are generally guaranteed, open courts, transparent decision-making, political accountability and robust reporting by a free press.
The tension that exists between the imperatives of the collective interest in security and individual rights is thus readily apparent, and the challenge for us, as designated judges, is to strike the appropriate balance between legitimate national interests and security on one hand, and the rights and equality of individuals, as well as public accountability and transparent decision-making, on the other.
Finding this balance is, I have to say, an extraordinarily difficult task.
The Work of the Federal Court
So, with all of this in mind, who are the designated judges of the Federal Court and what is it exactly that we do?
First of all, let me explain that not all Federal Court judges are involved in national security work – rather, there is a small group of judges designated to sit in national security matters. It should be noted that the selection of these judges is made by the Chief Justice of the Court, and that the Government of Canada has no involvement whatsoever in their selection.
Having only a small number of judges doing the national security work allows for the development and concentration of expertise, and encourages collegiality and consistency in our decision making, while recognizing that it always remains open to each judge to decide each case independently, as he or she sees fit.
Having a small group of judges doing this work also limits the potential for the inadvertent dissemination of highly sensitive information.
To expand our expertise in the area, the designated judges meet frequently to discuss national security issues, new developments in the jurisprudence, and best practices. We have also developed educational programs dealing with issues of human rights and civil liberties, privacy, technology, international affairs and national security, and we meet from time to time with national security judges from other jurisdictions and with scholars in the field.
All proceedings that involve national security matters are conducted in a specially-designed facility within the National Capital Region. This facility contains a secure Registry for receiving and storing confidential information, secure offices and computer systems, and secure hearing rooms. We have specialized Registry staff who deal exclusively with national security matters, and every staff member who is involved in national security proceedings has a Top Secret level security clearance and is bound by the Security of Information Act18 to permanently maintain the secrecy of classified information.
Insofar as the work that we do is concerned, I think that there may be a perception based upon media reports that the Federal Court’s involvement in national security matters is relatively recent, and is limited to Security Certificate cases. Neither perception is accurate.
The Federal Court has been involved in national security matters for nearly 30 years, and national security issues may arise in a variety of cases coming before the Court. As I noted earlier, we exercise national security jurisdiction under various acts, including the CSIS Act, the Canada Evidence Act, the Immigration and Refugee Protection Act, the Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. I will discuss our role under each of these acts next.
The Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
Before getting into the three main sources of the Court’s jurisdiction in national security matters, I will touch briefly on the most recent sources of the Court’s national security jurisdiction, which are the Criminal Code amendments brought in by the Anti-Terrorism Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
The Criminal Code was amended in 2001 by the Anti-Terrorism Act to give the Federal Court jurisdiction to judicially review the listing by the Governor in Council of any entity for which there are reasonable grounds to believe has carried out, attempted to carry out, participated in or facilitated a terrorist act.
The Court was also given jurisdiction to issue warrants for the seizure or forfeiture of property owned or used by a terrorist group.
In addition, under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Federal Court has been given jurisdiction to consider applications made by CSIS for disclosure of information held by FINTRAC (the Financial Transactions and Reports Analysis Centre of Canada) and jurisdiction to review decisions of the Director of FINTRAC objecting to the disclosure of information to police officers for use in a criminal investigation.
Turning now to our better known areas of jurisdiction, I will start with a discussion of our work under the CSIS Act.
The CSIS Act
As you know, CSIS is one of the organizations charged with protecting Canada's national security. The Service is established pursuant to the Canadian Security Intelligence Service Act, and it has two principle mandates.
The first is to collect, analyze and retain information and intelligence respecting activities that may, on reasonable grounds, be suspected of constituting threats to the security of Canada.
The Service’s second main mandate relates to the defence of Canada and the conduct of its international affairs. In furtherance of this mandate, CSIS is to assist the Minister of National Defence and the Minister of Foreign Affairs, within Canada, in the collection of information relating to the capabilities, intentions or activities of any foreign state, group of foreign states, or any person (other than a Canadian citizen, a permanent resident of Canada, or a corporation incorporated in Canada).
As Ms. Gendron explains in the article referred to earlier, much of the information referred to as “intelligence” is actually gathered from open sources such as websites and newspaper reports. Some information, is however, is gathered by covert means. This is necessary to assess the threats posed by hostile groups and regimes that are clandestine in their operations. Put simply, secrecy is required in order to counter the activities of those who operate in secret.
However, CSIS cannot simply do what it pleases in carrying out its statutory mandate. The Rule of Law requires that there be judicial supervision and authorization of intrusive methods of intelligence gathering that would otherwise be illegal. It is the designated judges of the Federal Court that exercise such jurisdiction.
On an application made by CSIS, which application must be personally approved by the Minister of Public Safety, the Court may issue warrants to enable the Service to investigate a threat to the security of Canada or to assist the Minister of Foreign Affairs or the Minister of National Defence in collecting intelligence on matters relating to the conduct of international affairs or the defence of Canada.
How are these warrants obtained?
There is a designated judge on duty on a 24/7 basis to respond to any warrant applications that may be filed, sometimes on an urgent basis. The identity of the duty Judge is not disclosed in advance to avoid any possibility or perception of judge shopping.
The CSIS Act stipulates that warrant applications are to be conducted in private19, and they are heard in the Court's secure premises in Ottawa. The application and the evidence filed in support of an application are filed with the Court on a confidential basis.
The duty judge studies the materials filed by CSIS very carefully in order to ensure that the record meets all of the requirements of the CSIS Act for the issuance of a warrant. These requirements are set out in sections 7 and 21 through 28 of the Act. There is a lengthy list of approvals required and statutory conditions that must be met before a warrant can issue, and it is the role of the designated judge to ensure that all of these have been satisfied. It can take hours to prepare for a warrant hearing.
An oral hearing is then held, and a typical hearing is attended by counsel for CSIS, the CSIS affiant, and CSIS analysts knowledgeable about the application. Court is formally opened by a Court Registrar, who remains in Court, as in any hearing. The judge has an opportunity to question the affiant or the analyst under oath on matters of fact, and we routinely question the affiant very closely with respect to the facts underlying the warrant application.
Any concerns that the duty judge may have are raised and addressed, and the judge may require that additional information be provided if he or she is not satisfied with the information that has been provided by the Service. Counsel for CSIS may also be questioned on matters of law.
On occasion, where a warrant application raises, for example, a novel question of jurisdiction, the Court may appoint an Amicus Curiae to ensure that the matter is fully argued and the Court has the benefit of competing views. The Amicus will usually be a security-cleared lawyer with experience in national security matters.
As our former Chief Justice has noted publicly20, over the past several decades, the Court's designated judges have provided constructive criticism to the Service and its counsel, keeping in mind human rights, privacy and other issues that have arisen in the warrant context. This has led to a steady improvement in the quality of applications for, and the terms of, the warrants granted by the Court.
As was noted earlier, the CSIS Act stipulates that warrant hearings must be held in camera. The reason for this is obvious - the purpose of the warrant would be thwarted if the subject of the warrant was made aware that his or her communications were to be intercepted.
However, the Court has, from time to time, released public versions of decisions issued in warrant cases that raise important issues of law or jurisdiction. Decisions have been published dealing with matters such as geographical jurisdictional issues that have arisen as a result of the use of new intelligence-gathering technology21, and questions of statutory interpretation with respect to who may and may not be the target of a CSIS warrant22.
While it is usually necessary that these decisions be partially redacted, the Court nevertheless strives, insofar as possible, to respect the Open Court principle, recognizing that public confidence in the system can only be enhanced through transparency.
There is additional oversight of the warrant process. That is, the Security Intelligence Review Committee, or SIRC, annually reviews a number of warrant applications approved by the Court. In its review, SIRC has full access to all CSIS file materials in order to be able to assess the accuracy of affidavit evidence filed with the Court.
The 2011-2012 SIRC Annual Report23 shows that for that fiscal year, the Federal Court approved 206 warrants. Fifty of these were new warrants, whereas 156 replaced, renewed, or supplemented existing warrants.
It is thus clear that warrant work forms a substantial portion of the national security work done by the Federal Court.