Chapter 2: Canada’s Legal Framework for Lawful Access
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations
Canadian Security Intelligence Service Act
37. Under section 12 of the CSIS Act, CSIS is responsible for investigating, collecting, and analyzing information on activities suspected of constituting threats to the security of Canada. Footnote 65 These are defined in the Act as espionage or sabotage, foreign-influenced activities, terrorism, and subversion. Footnote 66 CSIS is also authorized to assist the Minister of National Defence or the Minister of Foreign Affairs in the collection of information and intelligence on foreign states or actors within Canada under section 16 of the CSIS Act.
38. To support its intelligence collection mandates, CSIS may seek warrants Footnote 67 from the Federal Court under section 21 of its Act to conduct electronic surveillance, known informally as section 12 or section 16 warrants, depending on whether they are acting pursuant to their section 12 or section 16 mandate. In June 2024, An Act Respecting Countering Foreign Interference amended the CSIS Act to include new authorities related to lawful access. Footnote 68 This included a specific warrant to obtain information, records, and documents, and an ability for CSIS to seek production orders. Prior to these amendments, CSIS only had one warrant authority under the Act to authorize privacy intrusive activities, regardless of the actual impact of the investigative tool or technique on one’s reasonable expectation of privacy.
39. In order to obtain a warrant, CSIS provides the Federal Court an affidavit that sufficiently describes “the nature and background of the particular threat, the course of the investigation to date, and the purpose for which the intrusive powers are being sought.” Footnote 69 CSIS must also demonstrate to the judge that the criteria in the CSIS Act to issue the warrant are satisfied. Unlike warrants sought under the Criminal Code, CSIS warrant applications do not generally face the same level of public scrutiny and legal challenges by interested parties given that there is no notification to those individuals who are subject to interception under the warrant. This is primarily because CSIS’ objective is to collect intelligence and not evidence for eventual use in a prosecution; this approach also reflects the sensitivity of the information included in warrant applications and of the underlying investigations. Footnote 70 For this reason, a range of administrative and executive safeguards, such as approval by the Minister, are required for each application. Footnote 71