DATE: 1998079
DOCKET: C11823
COURT OF APPEAL FOR ONTARIO
ABELLA, AUSTIN and CHARRON JJ.A.
BETWEEN: )
) Ian J. Roland,
THE CORPORATION OF THE CANADIAN ) Martin J. Doane and
CIVIL LIBERTIES ASSOCIATION ) Pamela Shime,
) for the appellant
Appellant )
(Applicant) )
)
and ) Donald MacIntosh and
) David Sgayias,
THE ATTORNEY GENERAL OF CANADA ) for the respondent
)
Respondent )
) Heard: November 4 and 5, 1997
)
CHARRON J.A.:
[1] The appellant, the Corporation of the Canadian Civil
Liberties Association, was granted standing to bring an
application challenging the constitutional validity of certain
investigative powers contained in the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23 (the "Act"), and
seeking injunctive relief. The issue of standing was determined
prior to the hearing as a preliminary matter. The decision is
reported at (1990), 74 O.R. (2d) 609 (H.C.J.) [References are to
this decision unless otherwise stated.]. Following a hearing, the
application was dismissed: (1992), 8 O.R. (3d) 289 (Gen. Div.).
[2] The appellant appeals from the dismissal of the application.
The respondent, the Attorney General of Canada, cross-appeals on
the issue of standing.
[3] I have come to the conclusion that the issue of standing is
determinative in this case. The main issues argued by counsel in
relation to the appeal on the substantive merits of the
application are more properly directed to the question of
standing. In my view, the motions judge erred in granting the
appellant standing to bring its application. In the result, I
would allow the cross-appeal and dismiss the appellant's
application on the ground of no standing. Consequently, I would
also dismiss the appeal on the same ground.
A. The Applicant
[4] The appellant is a non-profit corporation, established
pursuant to the laws of Canada, the objects of which are
identical to those of the Canadian Civil Liberties Association
(the "Association"). In its material, the appellant states that
its governance is closely linked to that of the Association. The
appellant essentially relies on the status of the Association in
support of its application for standing in this case.
[5] The appellant describes the Association in its factum as
follows:
The Association is a national organization
with more than sixty-five hundred (6,500)
individual members. The Association's major
objectives include the promotion of legal
protection of the freedom and dignity of the
individual against unreasonable invasion of
public authority and the advancement of fair
procedures for the determination of
individual rights and obligations. The
Association has long had a serious concern
with the powers accorded the police and
national security agencies in Canada. It has
publicly addressed how far the powers of a
national security agency may impinge on basic
civil liberties such as those of speech,
freedom of association and reasonable
expectation of privacy.
[6] The motions judge recognized the Association's Along history
of involvement in the public debate over the constitutional
validity of the CSIS legislation" (at p. 617) and the
contributions to the debate of its General Counsel, Alan Borovoy.
It would appear from the reasons of the motions judge that the
appellant and the Association were treated as one and the same
for the purpose of the application for standing. The parties on
appeal have chosen to confine their argument to their respective
facta on the issue of standing and no issue is raised on this
question in either factum. In these circumstances, I am prepared
to adopt the same approach as the motions judge and consider the
appellant's interest to be the same as that of the Association.
B. Nature and Scope of the Application
[7] The appellant seeks a declaration that ss.12 and 21 to 26
inclusive of the Act are unconstitutional and of no force and
effect to the extent that they authorize the use of intrusive
surveillance techniques of lawful activities of Canadian citizens
and permanent residents. It is contended that the impugned
legislative provisions violate the freedoms of speech, assembly
and association and the right to be secure against unreasonable
searches or seizures as guaranteed under ss. 2(b), (c), (d) and 8
of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11. The appellant has abandoned its claim that
the Act violated s. 7 Charter rights. The appellant also relies
on s. 52(1) of the Constitution Act. The relevant constitutional
provisions read as follows:
2. Everyone has the following fundamental
freedoms:
. . .
(b) freedom of thought, belief, opinion
and expression, including freedom
of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
8. Everyone has the right to be secure
against unreasonable search or seizure.
52 (1) The Constitution of Canada is
the supreme law of Canada, and any law that
is inconsistent with the provisions of the
Constitution is, to the extent of the
inconsistency, of no force or effect.
[8] The appellant is also seeking injunctive relief restraining
the Canadian Security Intelligence Service ("CSIS") from acting
under the impugned provisions of the Act. Specifically, the
appellant seeks the following relief:
(a) A declaration that s. 12 of the Act is
unconstitutional and of no force and
effect to the extent that it authorizes
CSIS to use the intrusive surveillance
techniques of electronic bugging,
surreptitious search, mail opening,
invasion of confidential records, and
the deployment of covert informants,
against Canadian citizens and permanent
residents, in the course of
investigating "activities" that are not
unlawful but are defined as "threats to
the security of Canada" in s. 2 of the
Act.;
(b) A declaration that ss. 21 to 26 of the
Act are unconstitutional and of no force
and effect, to the extent that they
provide for the issuance of warrants
that may authorize the use of the
foregoing intrusive surveillance
techniques against Canadian citizens and
permanent residents, in the course of
investigating "activities" that are not
unlawful but are defined as "threats to
the security of Canada" in s. 2 of the
Act;
(c) A permanent injunction restraining CSIS
or any of its employees or agents from
using the foregoing intrusive
surveillance techniques against Canadian
citizens or permanent residents in the
course of investigating "activities"
that are not unlawful but are defined as
"threats to the security of Canada" in
s. 2 of the Act.
[9] CSIS is mandated, pursuant to ss.12 and 21 to 26 of the Act,
to collect information respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, to report to and
advise the Government of Canada. "Threats to the security of
Canada" are defined in s. 2 of the Act:
?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 unlawful acts, or
directed toward or intended ultimately
to lead to the destruction or overthrow
by violence of, the constitutionally
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). [Emphasis added.]
[10] The appellant argues that certain key components of that
definition, when combined with some of the enabling provisions
found in ss.12 and 21 to 26 of the Act, in effect permit
techniques of intrusive surveillance for use against Canadian
citizens and permanent residents which exceed any clearly
demonstrated need. The appellant therefore relies on the
overbreadth of the legislative provisions as a basis for
establishing a violation of Charter rights and freedoms. The
impugned provisions of the Act are appended to this decision for
ease of reference.
[11] The appellant concedes that there is a need for the creation
of a government intelligence service. However, it is the
appellant's position that the powers of surveillance available to
CSIS against Canadian citizens and permanent residents in regard
to their lawful activities are "excessive and needlessly broad."
The appellant does not take issue with CSIS surveillance in
relation to unlawful activities of Canadian citizens and
permanent residents, or in relation to activities, lawful or
unlawful, of foreign visitors.
[12] The appellant further restricts its application to the use
of intrusive techniques of surveillance authorized under the Act.
It takes issue with the express authority under the Act for the
use by CSIS, pursuant to judicial warrant, of powers such as
electronic surveillance, mail opening, surreptitious searches and
the invasion of confidential records. The appellant also takes
issue with the deployment of covert informants, a surveillance
technique CSIS can use without judicial authorization. The
appellant does not take issue with the use of overt surveillance
techniques.
[13] In short, the appellant contends that the very existence of
intrusive surveillance techniques under the Act inhibit and deter
individuals from expressing themselves freely and participating
in legitimate activities. The appellant expresses concern that,
due to the surreptitious nature of the impugned CSIS surveillance
techniques, its members and other Canadian citizens and permanent
residents will not be able to gather satisfactory proof that
their constitutional rights have been threatened or violated by
CSIS and will therefore be unable to seek judicial protection of
their rights and freedoms. Hence, it argues that it is in the
best position to bring these issues before the court. The
appellant states that it brings this application in order to
secure and promote the constitutionally guaranteed rights of
freedom of speech, freedom of assembly, freedom of association
and the right to be secure against unreasonable searches or
seizures.
[14] In support of its application, the appellant relies on the
alleged overbreadth of the impugned provisions themselves and on
evidence which purports to show the adverse effects of the
legislation. This evidence consists of four affidavits and a
number of excerpts of reports prepared by the Security
Intelligence Review Committee ("SIRC"). SIRC is an independent
body established under the Act for the purpose of reviewing the
performance of CSIS; ensuring that its activities are carried out
in accordance with the Act and that the activities do not involve
any unreasonable or unnecessary exercise by CSIS of its powers;
and conducting investigations into complaints and other matters
with respect to CSIS.
[15] I will review this evidence in further detail later in this
judgment; however, for the purpose of this overview, I will
reproduce the motions judge's summary of the appellant's evidence
(at p. 619):
The applicant has put before the court
affidavit evidence and copies of the SIRC
Annual Reports for 1986-87 to 1988-89
inclusive, which purport to show that the use
of intrusive surveillance techniques and
other such powers have a "chilling effect" on
the willingness of citizens to exercise their
right to engage in lawful advocacy, protest
or dissent. The applicant submits that since
individuals proposing to do no more than
engage in advocacy and dissent do not always
know whether their lawful activities will be
monitored, the cautious among them may, and
do, choose to refrain from engaging in
legitimate political activities for fear of
becoming objects of CSIS surveillance. This
assertion is supported somewhat by the
affidavit evidence of three members of three
different lawful advocacy groups who feel
that they, their organizations and their
membership have been the subject of CSIS
surveillance. The fear of intrusion into
their lives by CSIS, through the use of
covert surveillance or actual interference in
their affairs, is alleged by the applicant to
be an infringement of the Charter rights of
freedom of expression, assembly, association,
the right to privacy and the right to be free
from unreasonable search and seizure.
C. Principles Governing the Discretionary Grant of Public
Interest Standing
[16] The appellant does not contend that the impugned provisions
of the Act affect its own rights or that it is affected
differently from others so as to bring itself within the
traditional rules governing standing. Rather, the applicant
submits that, in the circumstances of this case, the court ought
to exercise its discretion in recognizing its right to assert
public interest standing.
[17] It is well established that the granting of public interest
standing is a discretionary matter. Further, it is trite law that
a court must exercise its discretion judicially and in accordance
with established principles. The Supreme Court of Canada, in a
pre-Charter trilogy of decisions, established the requirements
for a discretionary grant of public interest standing to
challenge the validity of legislation: Thorson v. Attorney
General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of
Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of
Canada v. Borowski, [1981] 2 S.C.R. 575.
[18] These cases have established that, before a court will
exercise its discretion in favour of an applicant seeking public
interest standing, three criteria must be met:
(a) there must be a serious issue as to the
validity of the Act;
(b) the applicant must be directly affected
by the Act or have a genuine interest in
its validity; and
(c) there must be no other reasonable and
effective way to bring the Act's
validity before the court.
These criteria have been reviewed by the Supreme Court in a
number of post-Charter cases. As will become apparent from the
brief review that follows, the criteria should not be considered
as mere technical requirements to be applied in a mechanistic
fashion. They have been extracted from various judicial responses
to concerns arising out of any proposed extension of the scope of
public interest standing. In order to understand and to apply
these criteria properly these underlying concerns should be kept
in mind.
[19] In Finlay v. Canada, [1986] 2 S.C.R. 607, the court extended
the scope of the trilogy to non-constitutional challenges of
administrative authority. Le Dain J., in writing for the court,
identified the judicial concerns underlying the test for public
interest standing and endeavoured to link its various
requirements to these concerns (at p. 631-33):
The traditional judicial concerns about the
expansion of public interest standing may be
summarized as follows: the concern about the
allocation of scarce judicial resources and
the need to screen out the mere busybody; the
concern that in the determination of issues
the courts should have the benefit of the
contending points of view of those most
directly affected by them; and the concern
about the proper role of the courts and their
constitutional relationship to the other
branches of government.
...
The concern about the proper role of the
courts and their constitutional relationship
to the other branches of government is
addressed by the requirement of
justiciability, which Laskin J. held in
Thorson to be central to the exercise of the
judicial discretion whether or not to
recognize public interest standing.
...
The judicial concern about the allocation of
scarce judicial resources and the need to
screen out the mere busybody is addressed by
the requirements affirmed in Borowski that
there be a serious issue raised and that a
citizen have a genuine interest in the issue.
...
The judicial concern that in the
determination of an issue a court should have
the benefit of the contending views of the
persons most directly affected by the issue -
a consideration that was particularly
emphasized by Laskin C.J. in Borowski - is
addressed by the requirement affirmed in
Borowski that there be no other reasonable
and effective manner in which the issue may
be brought before a court. [Emphasis added.]
[20] While Le Dain J. identifies justiciability as a separate
requirement, this factor appears to be subsumed in later cases in
the consideration of the "serious issue" criterion.
[21] In Canadian Council of Churches v. Canada, [1992] 1 S.C.R.
236, the court reviewed the approaches to standing taken in the
United Kingdom, Australia and the United States and concluded
that each of these jurisdictions has taken a more restrictive
approach than have the courts in Canada. The court then reviewed
the criteria established by the earlier quartet of cases and
posed the question whether the current test for public interest
standing should be extended. While the court maintained the
criteria set out in the earlier cases, it clearly opted for a
restrictive approach in their application. Cory J., in writing
for the court, stated as follows (at pp. 252-53):
The increasing recognition of the
importance of public rights in our society
confirms the need to extend the right to
standing from the private law tradition which
limited party status to those who possessed a
private interest. In addition some extension
of standing beyond the traditional parties
accords with the provisions of the
Constitution Act, 1982. However, I would
stress that the recognition of the need to
grant public interest standing in some
circumstances does not amount to a blanket
approval to grant standing to all who wish to
litigate an issue. It is essential that a
balance be struck between ensuring access to
the courts and preserving judicial resources.
It would be disastrous if the courts were
allowed to become hopelessly overburdened as
a result of the unnecessary proliferation of
marginal or redundant suits brought by well-
meaning organizations pursuing their own
particular cases certain in the knowledge
that their cause is all important. It would
be detrimental, if not devastating, to our
system of justice and unfair to private
litigants.
The whole purpose of granting status is
to prevent the immunization of legislation or
public acts from any challenge. The granting
of public interest standing is not required
when, on a balance of probabilities, it can
be shown that the measure will be subject to
attack by a private litigant. The principles
for granting public standing set forth by
this Court need not and should not be
expanded. The decision whether to grant
status is a discretionary one with all that
that designation implies. Thus undeserving
applications may be refused. Nonetheless,
when exercising the discretion the applicable
principles should be interpreted in a liberal
and generous manner. [Emphasis added.]
[22] The Canadian Council of Churches (the "Council"), a federal
corporation which represents the interests of a broad group of
member churches including the protection and resettlement of
refugees, was denied standing to challenge the constitutional
validity of a number of provisions contained in the amended
Immigration Act, 1976. Although the court was satisfied that the
Council had raised a serious issue of invalidity and had
demonstrated a genuine interest, it failed on the third
criterion. The court concluded as follows (at pp. 255-56):
From the material presented, it is clear
that individual claimants for refugee status,
who have every right to challenge the
legislation, have in fact done so. There are,
therefore, other reasonable methods of
bringing the matter before the Court. On this
ground the applicant Council must fail. I
would hasten to add that this should not be
interpreted as a mechanistic application of a
technical requirement. Rather it must be
remembered that the basic purpose for
allowing public interest standing is to
ensure that legislation is not immunized from
challenge. Here there is no such immunization
as plaintiff refugee claimants are
challenging the legislation. Thus the very
rationale for the public interest litigation
party disappears. [Emphasis added.]
[23] In the subsequent case of Hy and Zel's Inc. v. Ontario,
[1993] 3 S.C.R. 675, public interest standing was again denied,
by majority decision, on the basis that other reasonable and
effective ways to bring the issue before the court existed. In
arriving at this conclusion, Major J., in writing for the
majority, examined the lack of a proper evidentiary basis. He
noted that the applicants relied upon the evidence filed in other
applications and "presented almost no original evidence in
support of their claim" (at p. 692). The court stated as follows
(at pp. 693-94):
As this Court stated in MacKay v. Manitoba,
[1989] 2 S.C.R. 357, at pp.361-62:
Charter decisions should not and
must not be made in a factual vacuum. To
attempt to do so would trivialize the
Charter and inevitably result in ill-
considered opinions. The presentation of
facts is not, as stated by the
respondent, a mere technicality; rather,
it is essential to a proper
consideration of Charter issues. A
respondent cannot, by simply consenting
to dispense with the factual background,
require or expect a court to deal with
an issue such as this in a factual void.
Charter decisions cannot be based upon
the unsupported hypotheses of
enthusiastic counsel.
More recently in Danson v. Ontario (Attorney
General), [1990] 2 S.C.R. 1086, at p.1093,
this Court cautioned that "the failure of a
diffuse challenge could prejudice subsequent
challenges to the impugned rules by parties
with specific and factually established
complaints". This mirrors the Court's
vigilance in ensuring that it hears the
arguments of the parties most directly
affected by a matter. In the absence of facts
specific to the appellants, both the Court's
ability to ensure that it hears from those
most directly affected and that Charter
issues are decided in a proper factual
context are compromised.
[24] The majority decision does not provide any further analysis
as to how the sufficiency of evidence relates to the issue of
standing. L'Heureux-Dubé J. (McLachlin J. concurring) in her
dissenting judgment in Hy and Zel's disagreed on this point. A
consideration of her opinion may be useful in bringing the
relationship between sufficiency of evidence and standing into
better focus.
[25] L'Heureux-Dubé J. was of the view that the appellants had
standing under the traditional test and that they should also
succeed under the test for discretionary grant of public interest
standing. In considering the latter as an alternative basis for
standing, she indicated her disagreement with the majority
opinion on the relevance of the evidentiary basis to the issue of
standing (at p. 720):
This Court's decisions MacKay and
Danson, which dealt with the need to avoid
deciding Charter issues in a factual vacuum,
are not at all relevant to the question of
standing. If anything, they lend support to
the notion that standing is an issue separate
and apart from the question of the
sufficiency of the evidence and, furthermore,
that an appellant's standing can be
unassailable even when there is not a shred
of evidence to support a Charter claim.
In support of this statement, she notes that in MacKay, the court
indicated that there was not one particle of evidence before the
court, yet there was no suggestion that the appellants lacked
standing. Similarly, with respect to Danson, she noted that there
was a complete absence of adjudicative facts, yet the court
expressly stated that standing of the appellant was not an issue.
[26] With respect, I have some difficulty with this reasoning
since public interest standing was not in issue in either MacKay
or Danson. In MacKay, the appellants were claiming that their own
rights were violated, hence the traditional rules of standing
would apply. However, the issue was never raised. In Danson, the
facts could have given rise to a question of public interest
standing but the only issue before the court was a narrow one,
that is whether it was appropriate to seek constitutional
declarations by way of application without alleging facts in
support of the relief claimed. In answering this question in the
negative, the court indeed expressly noted that standing of the
appellant was not an issue before the court. I interpret this
reference as a caution that the court's decision should not be
taken as confirmation of Danson's standing.
[27] In any event, L'Heureux Dubé J. was of the view that there
was an evidentiary basis in Hy and Zel's and her comments on
MacKay and Danson were not essential to her dissenting opinion. I
mention her opinion on this point for sake of completeness
because I wish to refer to another reference in her judgment
which I find of assistance in establishing the link between the
sufficiency of the evidence and standing. Earlier in her reasons,
L'Heureux-Dubé J. provides a useful review of the various
rationales which have been invoked for imposing restrictions on
standing. She states (at pp. 702-3):
Three major concerns are typically
identified: the proper allocation of judicial
resources; the prevention of vexatious suits
brought at the behest of mere "busybodies";
and the particular requirements of the
adversary system. The first category includes
such concerns as fears about a multiplicity
of suits, otherwise known as the "floodgates"
argument. Within the second category, courts
have employed standing restrictions to ensure
that issues are fully canvassed by promoting
the use of the judicial process to decide
live disputes between parties as opposed to
hypothetical ones. Under the latter category
are subsumed such matters as the
"justiciability" of the issue before the
courts, whether the full dimensions of the
issue can be expected to be aired before the
court and limits on the exercise of judicial
power.
[28] I would agree with L'Heureux-Dubé J. that the issue of
sufficiency of the evidence is entirely separate from the
question of standing for those litigants who have a cause of
action under the traditional rules, a situation which she was of
the view existed in Hy and Zel's. These litigants have standing
as of right. They do not depend on a discretionary grant of
standing to pursue their claim. Any screening of unmeritorious
claims which may be made under the rules of procedure on the
ground of a lack of a proper evidentiary basis will not likely be
related to any issue of standing.
[29] However, where a litigant does not have a cause of action
under the traditional rules and requires a discretionary grant of
public interest standing to pursue its claim, the concerns
identified above have to be addressed and these concerns, as held
by the majority in Hy and Zel's, include a consideration of the
sufficiency of the evidence. More will be said later on what
constitutes a sufficient evidentiary basis for this purpose.
[30] If one considers the rationales for imposing restrictions on
standing which were identified by L'Heureux-Dubé J., it would
seem to me quite clear that the lack of a proper evidentiary
basis could have a bearing on considerations such as "the proper
allocation of judicial resources", "ensuring that issues are
fully canvassed", "promoting the use of the judicial process to
decide live disputes between parties as opposed to hypothetical
ones" and determining "whether the full dimensions of the issue
can be expected to be aired before the court".
D. The Decision Under Appeal and the Issues Raised on the Cross-
Appeal
[31] The motions judge correctly instructed himself as to the
three criteria which must be met before public interest standing
will be granted. He did not, however, have the benefit of the
subsequent decisions of the Supreme Court in Canadian Council of
Churches and Hy and Zel's which assist in further defining these
criteria. His decision with respect to each of the criteria is as
follows:
1. Serious issue of invalidity
[32] The motions judge addressed the question whether the
seriousness of an issue relates to its general public importance
or to its substantive merits. He reviewed some of the relevant
jurisprudence and concluded that this requirement could not be
equated to "a reasonable cause of action" and, hence, that this
criterion related to the general importance of the issue. He
stated as follows (at p. 618):
In the case before me, the parties have
agreed to have the issue of standing
determined as a preliminary issue. While the
nature of the applicant's interest in the
substantive issues raised by the application
is set out by the allegations and contentions
in the application record and in the factums
and authorities brief filed by the parties, I
do not think it prudent to rule on the
substantive merits of the application.
Rather, the appropriate inquiry at this stage
of the proceedings is to ask whether or not
the application raises issues of general
public importance which deserve the
consideration of this court.
In applying this standard as to whether
or not the applicant has raised a "serious
issue" as to the validity of the legislation,
I do not wish to be seen as injecting another
verbal formula into the process of
determining the applicant's standing. Rather,
interpreting the "serious issue" criterion to
mean that the issue be one of general public
importance is to indicate that by granting
standing, the court is prepared to place a
certain societal value on an interest and
protect it by allowing it to be the subject
of litigation, thus recognizing that the
individual or group seeking to litigate is
not disputing something of merely
idiosyncratic interest.
The motions judge then reviewed the issues raised by the
appellant in its application and concluded as follows (at p. 619):
Without ruling on the adequacy of the
applicant's evidence, or on the substantive
merits of the issues of law presented, the
applicant has raised issues of general public
importance that ought to be the subject of a
full and complete judicial examination. There
may well be a nexus between the impugned
provisions of the CSIS Act and the legitimate
imposition of a "chill" on a citizen's
ability to express a thought, belief or
opinion. It is in the public interest for a
court to address the merits of this
application.
[33] The respondent, in its cross-appeal, submits that the
motions judge erred in relating the seriousness of the issues
raised by the application to their general importance rather than
to the substantive merits of the application. It is the
respondent's position that the application has no substantive
merit because it is unsupported by any evidentiary basis. Rather,
it is based on hypothetical consequences which, it is argued,
cannot form the basis for granting declaratory and injunctive
relief. Consequently, the respondent submits that standing ought
to have been denied for failure to raise a serious issue of
invalidity.
[34] It is clear from the above-noted review of the jurisprudence
that the motions judge erred in refusing to consider the merits
of the application. In particular, Canadian Council of Churches
and Hy and Zel's establish beyond controversy that the merits of
the application are a relevant consideration, and indeed can
become determinative, on the issue of standing. This court is in
as good a position as the motions judge to assess this factor and
I will address it later in these reasons.
2. Appellant's genuine interest in the validity of the Act
[35] No issue is raised on appeal on this criterion. The
respondent concedes that the appellant has demonstrated a genuine
interest in the validity of the Act.
[36] In my view, this concession is properly made with respect to
the Association. As stated earlier, the parties appear to have
been content throughout to have the appellant's interest
considered as being the same as that of the Association.
3. Another reasonable and effective way to bring the
issues before the court
[37] The motions judge's decision on this issue summarizes well
the position of the parties and it is useful to set out the full
text of his reasons on this point (at pp. 619-21):
The respondent's last objection to the
granting of standing to the applicant is that
the applicant has not shown that there is no
other effective manner in which this issue
may be brought before the court. The
respondent cites Le Dain J.'s concern in
Finlay, at p. 633 S.C.R., that the "court
should have the benefit of the contending
views of the persons most directly affected
by the issue". It is submitted that the
applicant is not among those "most directly
affected" by the legislation. Thus, the
respondent argues, the court will not have
the contending views of those most directly
affected by the legislation. Given the
scarcity of judicial resources, the court
should deal with these issues when they are
raised by persons whose rights have actually
been infringed or are actually threatened.
The applicant, on the other hand, argues
that it is particularly well suited to bring
an application under the circumstances of
this case. It argues that unless it is
allowed to challenge the constitutional
validity of CSIS's intrusive surveillance
powers, these powers will likely remain
unchallenged. Because many of the activities
of CSIS are surreptitious and are undertaken
essentially to gather and analyze certain
kinds of information, but not to collect
evidence for prosecution in court, it is
unlikely that the individuals whose rights
are most seriously and directly violated will
have sufficient proof that they are the
subjects of unconstitutional investigation,
nor would they have a real opportunity to
challenge the activities in court. The
applicant further submits that, even where a
group or individual may be aware of an
investigation, the chilling effect of the Act
and CSIS's activities will certainly serve to
discourage directly affected parties from
initiating litigation. Lastly, the applicant
submits that its expertise in matters
relating to security intelligence activities
and the advocacy of civil liberties issues in
Canada strongly suggested that a grant of
standing in this case is not only practical
but will also put before the court the most
informed and competent arguments in relation
to the issues before the court.
I tend to agree with the position taken
by the applicant. I place little weight on
the respondent's concern that, if the
applicant is granted standing, the court will
not have the contending views of the persons
most directly affected by the issues raised.
The CCLA and the federal Department of
Justice have undoubted knowledge and
expertise with respect to the issues at hand,
and both sides have the resources to ensure
that every relevant factual and legal
argument is put before the court. While it
is preferable for constitutional issues to be
brought before the courts by those whose
rights are most directly infringed (as it is
also with other issues raised under private
law), under the circumstances of this case,
where the "group" most directly affected
could be said to be the public at large (in
that, if we accept the arguments of the
applicant, the very processes of our
political democracy could conceivably be
threatened by a chill on s. 2 Charter
rights), the most reasonable and effective
manner in which the issues can be brought
before the court is to grant the applicant
standing.
[38] The respondent submits that the motions judge erred in this
conclusion. Persons whose activities are actually targeted by the
legislation and who can claim that CSIS has actually violated
their rights can, and do, challenge the constitutionality of the
legislation. By way of example, the respondent notes the case of
R. v. Atwal (1987), 36 C.C.C. (3d) 161 (F.C.A.) where, by
majority decision, the Federal Court of Appeal held that s. 21 of
the Act met the constitutional requirements set out in s. 8 of
the Charter. The respondent argues that those persons directly
affected by the Act are the ones who can bring the issues before
the court in the most reasonable and effective manner. It is
submitted that, because the court did not have before it those
persons who are most directly affected by the legislation, the
application proceeded without a proper factual foundation.
[39] As seen in Hy and Zel's, the sufficiency of the evidence can
have some bearing on the application of this criterion. I will
therefore return to it after my review and assessment of the
evidence and the merits of the application.
E. The merits of the application
[40] As stated earlier, the respondent contends that the
application is without merit because it is without any
evidentiary basis. I will review the evidence in some detail in
order to assess this factor.
1. The evidence
[41] In reviewing and assessing the evidence, it may be useful to
recall the nature and scope of the application. What is brought
in issue is the deleterious effect of the intrusive techniques of
CSIS surveillance, (this is electronic surveillance, mail
opening, surreptitious searches, the invasion of confidential
records and the deployment of covert informants), as they relate
to the lawful activities of Canadians and permanent residents. No
issue is taken with the constitutional scope of overt
surveillance techniques.
[42] It is also important to review the distinction between
adjudicative facts and legislative facts. Sopinka J. in Danson
refers to this distinction (at p. 1099):
It is necessary to draw a distinction at
the outset between two categories of facts in
constitutional litigation: "adjudicative
facts" and "legislative facts". These terms
derive from Davis, Administrative Law
Treatise (1958), vol. 2, para. 15.03, p.353.
(See also Morgan, "Proof of Facts in Charter
Litigation", in Sharpe, ed., Charter
Litigation (1987).) Adjudicative facts are
those that concern the immediate parties: in
Davis' words, "who did what, where, when,
how, and with what motive or intent...". Such
facts are specific, and must be proved by
admissible evidence. Legislative facts are
those that establish the purpose and
background of legislation, including its
social, economic and cultural context. Such
facts are of a more general nature, and are
subject to less stringent admissibility
requirements: see e.g., Re Anti-Inflation
Act, [1976] 2 S.C.R. 373, per Laskin C.J., at
p.391; Re Residential Tenancies Act 1979,
[1981] 1 S.C.R. 714, per Dickson J. (as he
then was), at p. 723; and Reference re Upper
Churchill Water Rights Reversion Act, [1984]
1 S.C.R. 297, per McIntyre J., at p.318.
[43] As noted earlier, the applicant filed four affidavits and
various excerpts of reports from SIRC. The contents of this
material can be summarized as follows:
a) affidavit by A. Alan Borovoy
[44] Mr. Borovoy identifies himself as General Counsel of the
Canadian Civil Liberties Association and states that, as such, he
has authority to speak on behalf of the appellant. He states that
the corporate objects of the appellant are identical to those of
the Association. He then describes the Association, its objects
and its extensive involvement in the litigation of civil
liberties issues over the years.
[45] This part of the affidavit, which consists of approximately
one half of it, is of relevance to show that the Association (and
presumably, the appellant ) has a genuine interest in the
validity of the Act. It is of no relevance to the substantive
merits of the application.
[46] In the second half of the affidavit, Mr. Borovoy describes
some of the contents of the SIRC reports and refers to the other
affidavits filed in support of the application. He then expresses
the following belief with respect to the activities of CSIS:
... it is very difficult to conduct such
pervasive intelligence operations without
casting a chill over political liberty and
personal privacy. At the very least, many
people are likely to feel that they are under
surveillance. This will particularly apply to
those who have unconventional beliefs and
ideologies. If such people think their
organizations are infested with spies, they
will not speak freely at their meetings. If
they think they are being followed, they will
not attend certain functions. If they think
that their telephones are tapped, they will
not speak freely on the telephone.
Mr. Borovoy then describes some "evidence" discovered as a result
of the Association's investigations into the American experience.
None of this "evidence" is filed. The remaining few paragraphs
make further reference to SIRC reports. Finally, Mr. Borovoy
states that unless an organization such as the appellant
initiates legal proceedings to challenge the intrusive
surveillance powers contained in the Act, such challenge is not
likely to be made for a long period of time. He concludes as
follows:
Since so many activities of a civilian
intelligence agency are surreptitious and are
undertaken essentially to gather and analyze
information, and not to collect evidence for
prosecution in court, it is unlikely that the
individuals whose rights are most seriously
violated would have satisfactory proof that
they were targets, nor would they have a
ready opportunity to challenge that targeting
in court.
[47] Quite clearly, this second half of the affidavit consists of
personal opinion and argument. Apart from its questionable
admissibility either as adjudicative fact or legislative fact, it
is of no evidentiary value on the merits of the application.
b) affidavit of Margaret Third-Tsushima
[48] The affiant identifies herself as the Executive Director of
the St. Barnabas Refugee Society. She states that the St.
Barnabas Society was instrumental in the formation of the
Edmonton branch of the Coalition for a Just Refugee and
Immigration Policy ("the Coalition") and remains a member of this
Coalition. She describes the objectives of the Coalition as
"includ[ing] lobbying for the enactment of legislation to ensure
a fairer and more efficient processing of refugee claims in
Canada, the easing of the restrictions in immigration law on
family reunification, and the defeat of Bills C-55 (regarding a
new refugee determination process,) and C-84 (providing for the
interdiction of ships and detention of refugee claimants)".
[49] Ms. Third-Tsushima states that the Alberta Federation of
Labour ("AFL") has been an active member of the Coalition, and
its representative on the Coalition, Mr. Don Aitken, has on
occasion been spokesperson for the Coalition. She states that she
also has, on occasion, been spokesperson for the Coalition.
[50] The affiant then relates the incident which caused her some
concern. In the spring of 1987, shortly after Mr. Aitken appeared
at a press conference as spokesperson for the Coalition, she
received a call from a person (whose name she cannot recall) who
identified himself as an agent for CSIS and who asked her to meet
him to discuss the Coalition. She agreed to meet him. She
described the encounter as follows:
In the spring of 1987, shortly after
Mr. Aitken appeared at a press conference as
spokesperson for the Coalition, I received a
telephone call from an agent of the Canadian
Security Intelligence Service (CSIS) asking
that I meet with him at the Westin Hotel in
Edmonton in order to discuss the Coalition.
I met with the CSIS official in the
lounge of the Westin Hotel. The CSIS
officer, whose name I do not recall, asked me
several questions about the Coalition. For
example, he asked me to identify the members
of the Coalition. I cooperated fully by
answering all of his questions but suggested
that he attend a Coalition meeting which is
open to the public and which would likely
answer most of his questions. The CSIS
official also offered, more than once during
the course of the conversation, to buy me a
drink.
After I answered a number of his
questions, the CSIS official then expressed
concern about the participation of one of the
members in the Coalition. He advised me that
the Coalition should be particularly careful
as such groups can be influenced and taken
over by foreign powers. He commented that
one group was involving itself as a member of
the Coalition when it had never been involved
in immigration and refugee matters before.
Near the end of the conversation, the
CSIS official intimated that he was concerned
that the AFL was a member of the Coalition.
However, he did not expressly say that this
was the group that was being directed by, or
could be influencing or taking over the
Coalition on behalf of, a foreign power.
However he mentioned the names of no other
members of the Coalition during the whole of
our meeting.
[51] Ms. Third-Tsushima then describes the effect this encounter
had on her. First, it caused her to contact Mr. Aitken to advise
him about the meeting with the CSIS official. She states that Mr.
Aitken volunteered, on behalf of the AFL, to drop out of the
Coalition or to "take a back seat in the affairs of the
Coalition". She states that, on behalf of the Coalition, she
refused his offer and insisted that the AFL continue on as a full
member as before. Secondly, she describes her subjective concerns
as follows:
I am concerned that CSIS was attempting
to cause dissension between members by
questioning the motives of certain members
and/or to cause certain members to be
excluded or limited in participation, thus
limiting the effectiveness of the Coalition.
I am also concerned that, if CSIS has shown
an interest in the internal affairs of the
Coalition, it might have used, or might be
willing to use, techniques of intrusive
surveillance against me or other members of
the Coalition, such as wiretapping and the
use of covert informants. I am particularly
concerned about a wiretap at the offices of
the St. Barnabas Refugee Society as it speaks
with refugees who may be escaping persecution
by foreign governments. Some of those
conversations deal with information which, if
passed on by CSIS to such a foreign
government, could go so far as to endanger
the lives of potential refugee claimants.
[52] It is difficult to see how this evidence can assist the
appellant in establishing an infringement of Charter rights and
freedoms as alleged. Quite clearly the incident described by the
affiant is an overt act of surveillance, a technique which the
appellant concedes is constitutionally permissible. Any effect
the described CSIS intervention may have had on Mr. Aitken
(assuming this evidence can be admitted through this affiant) can
hardly be said to constitute evidence of the adverse effects of
the impugned provisions, that is those provisions which permit
intrusive techniques. In any event, it is not clear what adverse
effect this constitutionally permissible intervention has had on
anyone's Charter rights or freedoms. The suggestion appears to be
that this overt act of surveillance almost caused Mr. Aitken to
curtail his freedom to associate with the Coalition. But, in the
end result, it would appear that he carried on as before.
[53] At best, this affidavit can be said to show that, once this
affiant was armed with the knowledge that an organisation which
whom she is associated was a source of interest to CSIS, she
developed a subjective fear that the organisation may have been
or may become the target of intrusive surveillance techniques and
hence, presumably a possible victim of s. 8 violations. In my
view, this evidence adds nothing more to the simple reliance on
the overbreadth of a legislative provision on its face to
establish a Charter infringement. Whether this argument raises a
serious issue of invalidity is a matter I will address later.
[54] In any event, this evidence is so weak that it is difficult
to see how it has any probative value at all. A few questions
which come to mind are the following:
Is the subjective fear at all linked to the
impugned provisions of the Act? Does Ms.
Third-Tsushima even have knowledge of the
existence of the Act or of the tenor of any
of its provisions? Would she have the same
fear if the Act didn't exist or if some of
its provisions were struck down?
Is her fear reasonable? Is it perhaps based
on an ignorance of the fact that, except for
the deployment of covert informants, all
forms of intrusive surveillance are subject
to judicial control under the Act? Or is it
based rather on a general distrust of the
judicial system's efficiency in protecting
her Charter rights?
How does this evidence connect the subjective
fear (presumably related to the impugned
provisions) to the alleged Charter
violations? In other words, as the result of
this fear, has any of the freedoms of speech,
assembly and association or the right to be
secure against unreasonable searches and
seizures been curtailed for anyone?
c) affidavit of William Zander
[55] Mr. Zander states that he is, and has been since 1975,
President of the British Columbia Provincial Council of
Carpenters. He describes the Council as a province-wide
federation of carpenter unions chartered by the United
Brotherhood of Carpenters and Joiners of America and as the
certified bargaining agent for 25 local unions in the province of
British Columbia.
[56] Mr. Zander states that in the summer of 1985, it was brought
to his attention that there had been "outside interference" in
the affairs of one of the local unions. He does not describe the
nature of this interference, which presumably would have occurred
prior to or during the summer of 1985. He then states that two
rival slates were vying for the election of officers to the
executive of this local union and that in the fall of 1985, he
was advised that a member of the Royal Canadian Mounted Police
(RCMP) had attended a strategy session of one the groups, the
"opposition slate" seeking to displace the incumbent officers. He
was informed by a letter from one of the members of the
"opposition slate" that this RCMP officer, whose name could not
be recalled, had been invited to attend the meeting. The letter,
annexed to the affidavit, does not say who invited the RCMP
officer.
[57] This information about the attendance of the RCMP officer at
the meeting prompted Mr. Zander to write to the Honourable Perrin
Beatty, Solicitor General of Canada at the time, "registering
[his] objection" to RCMP interference in local union affairs and
requesting that a thorough investigation be made. Mr. Beatty
responded, indicating that the RCMP were not involved in the
alleged affair and informing Mr. Zander that his letter had been
forwarded to CSIS.
[58] A few months later, it was confirmed that the officer had
been a member of CSIS. Mr. Beatty wrote to Mr. Zander and
informed him that the Director of CSIS "is fully satisfied that
there has been no impropriety by a member of the Service in
relation to the affairs of the British Columbia Provincial
Council of Carpenters". Mr. Zander communicated his
dissatisfaction to Mr. Beatty with this response. In yet further
correspondence, Mr. Beatty assured Mr. Zander that the contact
between the union members and the member of CSIS was voluntary
and that there had been no improprieties. The affidavit describes
further exchanges between Mr. Beatty and Mr. Zander to the same
effect.
[59] The affiant also states that the matter was raised by Mr.
Svend Robinson as Member of Parliament during question period in
the House of Commons, demanding an explanation for "CSIS
involvement in the internal affairs of the union". In answer to
the question, the Solicitor General of Canada at the time
referred to the exchange of correspondence mentioned above.
[60] Mr. Zander then expresses his concerns as follows:
As a result of CSIS involvement in the
internal democratic process of Local 452, the
reputation of the British Columbia Provincial
Council of Carpenters has been harmed.
Concerns about CSIS involvement have been
expressed directly to me by union members.
They have asked me what it is that the union
is doing that could trigger CSIS involvement.
If our union is so open, they asked, why
should CSIS be interested in local union
affairs. Similar concerns have been
intimated to me by other union members. It
is my belief that some of the union members
are concerned that if they become involved in
union politics they could become targets of
CSIS surveillance. As a result, they may be
less likely to get involved in union affairs
by running for election for union office.
As a result of the CSIS involvement in
the internal democratic process of Local 452,
I am now concerned that CSIS may be using
some of its other techniques of intrusive
surveillance that are available to it, such
as wiretapping and the use of covert
informants, against the union.
[61] This affidavit also describes the effect of overt techniques
of CSIS surveillance, an activity which falls outside the scope
of the appellant's application. It is essentially of the same
tenor as Ms. Third-Tsushima's affidavit and it is fraught with
the same difficulties noted above.
d) affidavit of Wendy Wright
[62] Ms. Wright states that she is a member and a spokesperson of
the Toronto Disarmament Network (TDN). She describes the TDN as
an umbrella organization of approximately 80 Toronto groups which
support various peace initiatives described in a document
entitled "Basis of Unity". These initiatives include the
opposition to war, the support of general disarmament, the
opposition to policies which increase the level of conventional
and nuclear armaments, the reduction and elimination of nuclear
weapons on a world scale, the opposition to the militarization of
space, the dissolution of military blocks and the opposition to
the export of nuclear technology and radioactive fuels which may
be used for the production of nuclear weapons.
[63] Ms. Wright describes a number of public activities carried
out by the TDN in furtherance of its objectives and expresses her
belief that these activities are recorded by police agencies. She
states that unidentified photographers are always present at any
public demonstrations conducted by TDN. These photographers
"generally" refuse to identify themselves.
[64] Ms. Wright expresses the belief that fear of CSIS
surveillance has undermined TDN's efforts to carry out its
programs and objective. She states that this fear has been
evidenced by "restricted participation in demonstrations, fear of
signing petitions, fear of loss of reputation and decreased
morale among supporters". She has been told by a number of
individuals who would otherwise join in public demonstrations
that they do not do so because of the taking of photographs.
People have told her that they do not sign petitions for fear of
being placed on a "police list".
[65] Ms. Wright also expressed the belief that TDN has been the
object of surreptitious surveillance by CSIS because of an
"illegal break and enter" which occurred on August 6, 1988.
Ms. Wright describes how the state of the office after the
intrusion was discovered led her to believe that the intruders
were looking for information on TDN's sources of funding and its
connection with the Soviet Union and how this inference, in turn,
led her to believe that the intrusion was the result of CSIS
surveillance. She relies on the following facts in support of her
belief:
* Shortly before the intrusion, a Co-ordinator of the TDN had
travelled to the Soviet Union on invitation by the
government of the Soviet Union to view the destruction of a
nuclear missile and this trip received media attention.
* Some cash boxes had not been touched by the intruders.
* The financial records were neatly stacked on a different
shelf while material unrelated to the internal affairs of
TDN was strewn across the floor.
* The minute books were not found on the floor and "appeared
to have been scrutinized".
Ms. Wright does not indicate whether anything was taken at the
time of the break and enter. She states that police investigated
the occurrence and, to her knowledge, the intruders were never
found.
[66] She states that "[t]he intensity and regularity of CSIS
surveillance detracts from the reputation of the peace movement
as a legitimate social force". She gives no other specifics with
respect to this intense and regular CSIS surveillance.
Presumably, she is referring to the unidentified photographers
and the break and enter.
[67] She states that, following the break-in on August 6, 1988,
"office morale suffered". She states that she believes that
members feared that further intrusive searches of the premises or
"other reprisals might follow future travels abroad". "Further,
members were required to choose whether they were more frightened
by the threat of nuclear war or the threat of government
retaliation." She expresses the opinion that "this kind of fear
inhibits and chills legitimate efforts in the organization and
communication of ideas and the achievement of the programs and
objectives of TDN." She does not provide any specifics as to how
and to what extent TDN activities have been curtailed.
[68] Finally she expressed the view that this fear of
surveillance interferes with "our freedom of expression and
freedom of conscience by curtailing participation in
demonstrations, petitions and other activities through which we
lawfully express our social and political beliefs".
[69] This evidence is relied upon by the appellant to show the
adverse effects of the impugned provisions on the s. 2 freedoms
of speech, assembly and association. It is also relied upon to
establish a s. 8 infringement of the right to be secure against
unreasonable searches or seizures.
[70] In so far as s. 2 freedoms are concerned, the evidence is
subject to much the same difficulties described above. Many of
the effects described flow from the presence of the unidentified
photographers. Even assuming CSIS involvement in that activity,
it remains an overt technique which is conceded to be
constitutionally permissible. It does not assist the appellant in
establishing the adverse effects of the impugned legislative
provisions.
[71] In so far as the August 6 intrusion may have had an effect
on s. 2 freedoms, again assuming CSIS involvement, the evidence
goes no further than expressing a subjective fear and making a
bare allegation of interference with the programs and objectives
of TDN. No evidence is provided of any curtailment of the freedom
of speech, assembly or association. In my view this affidavit
does not add anything of substance to the appellant's bare
reliance on the overbreadth of a legislative provision on its
face to establish a s. 2 Charter infringement.
[72] At best, this affidavit provides some evidence towards
proving a s. 8 breach. I will comment further on the sufficiency
of this evidence when I return to the test for standing.
e) excerpts of SIRC reports
[73] As indicated earlier, the Security Intelligence Review
Committee ("SIRC") is an independent body established under the
Act for the purpose of reviewing the performance of CSIS;
ensuring that its activities are carried out in accordance with
the Act and that the activities do not involve any unreasonable
or unnecessary exercise by CSIS of its powers; and conducting
investigations into complaints and other matters with respect to
CSIS. SIRC has extensive powers under the Act to enable it to
fulfil its mandate. The material reveals that SIRC has access to
all information in CSIS's hands. Apart from investigating any
complaints, it carries an ongoing extensive review of all CSIS
activities. Annual reports are prepared.
[74] Some of SIRC's reports are relied upon by the appellant as
legislative facts in support of its application. The excerpts
relied upon by the appellant include the following:
* recommendations on CSIS policies and practices
* comments on some perceived by-products of overt CSIS
surveillance activities: on the one hand, deterrence of
terrorists, on the other hand, inhibition in the exercise of
legitimate and lawful dissent
* expressions of concern over the scope and wording of the
s. 2 definition of "threats to the security of Canada" and
recommendations for amendments to bring more precision and
clarity to the legislation
* criticism with respect to many of the activities of the
counter-subversion branch of CSIS (since disbanded)
* identification of situations where CSIS has overstepped its
mandate
* suggestions for management of targeting
* compilation of statistics on warrants sought and obtained to
authorize intrusive forms of surveillance.
[75] In summary, the evidentiary basis in support of the application
is as follows:
(1) with respect to the s. 2(b), (c), and (d) alleged
infringements,
(a) the overbreadth of the impugned provisions and its
consequential adverse effect on the freedoms of
speech, assembly and association; and
(b) some legislative facts;
(2) with respect to the s. 8 alleged infringement,
(a) the overbreadth of the impugned provisions and its
consequential adverse effect on the right to be
secure against unreasonable searches or seizures;
(b) the August 6, 1988 incident at TDN headquarters;
and
(c) some legislative facts.
F. Application of the Test for Public Interest Standing
to the Appellant's Application
[76] As I have indicated at the outset, it is my view that the
motions judge erred in granting standing in this case. As it
turns out, his reasons for dismissing the application on the
merits lend support to the conclusion that this is not a proper
case to grant public interest standing.
[77] First, the motions judge's ultimate conclusion on the s. 2
alleged infringements was in essence a finding that the
appellant had not raised an issue recognized in Canadian
constitutional jurisprudence. In these circumstances, it could
hardly be said that a serious issue of invalidity had been raised
and standing ought to have been refused on that basis. In fact,
the appellant argued that the motions judge's decision on s. 2 of
the Charter was inconsistent with his decision to grant standing.
[78] Second, on the s. 8 alleged infringement, the issue was
ultimately resolved on the basis of stare decisis. The motions
judge held that the decision of the Federal Court of Appeal in R.
v. Atwal was authoritative on the constitutional question before
him. As seen earlier, when the impugned legislative provision is
or will be subject to attack by a private litigant, the purpose
for granting public interest standing disappears. Standing ought
to have been refused on the basis that there was another
reasonable and effective way to bring the issue before the court.
[79] It therefore becomes quite apparent that the motions judge's
fundamental error was in refusing to consider the merits of the
application on the issue of standing. Had he considered the
merits on the preliminary motion, he would likely have refused
standing. I will review the issues raised on standing in light of
the merits of the application.
1. Serious issue of invalidity
[80] What will constitute a serious issue of invalidity is not
easy to ascertain with any precision from the case law. It would
be unwise to attempt to answer this question in any exhaustive
manner in this case because the full scope of this question was
not argued. I will limit my consideration of the question to the
issues raised by the parties.
[81] One question raised is whether it is sufficient for the
appellant to raise issues of "general public importance" in the
abstract without regard to the substantive merits of the
application. This question has already been answered in the
negative. It is now beyond controversy that the substantive
merits of the application are relevant to a consideration of this
criterion.
[82] Of course, the consideration of the merits for the purpose
of determining standing is not a determination of the ultimate
merits of the case. It is more akin to the question whether there
is a reasonable cause of action. Depending on the facts of the
particular case, the issues of standing and reasonable cause of
action tend to merge: see Finlay, at p. 636, Canadian Council of
Churches, at p. 253, Energy Probe v. Canada (1989), 68 O.R. (2d)
449 (C.A.) at 465. In this case as well, the two issues tend to
merge.
a) Alleged infringement of s. 2(b), (c) and (d) of the
Charter
[83] A consideration of the merits of the application leads to
the conclusion that the appellant cannot succeed in its challenge
to the constitutionality of the impugned provisions on the basis
of the alleged infringements of s.2 (b), (c), and (d) because of
the lack of an evidentiary basis. As set out above, the appellant
presents no relevant adjudicative facts. The application is based
entirely on the argument that the legislation is overbroad and,
consequently, creates a "chill" or an adverse effect on the
freedoms of speech, assembly and association.
[84] In support of this argument, the appellant cited a number of
American cases for their persuasive value. The motions judge, in
his decision on the merits of the application, rejected the
appellant's argument. With respect to each of the alleged
s. 2(b), (c) and (d) infringement, the motions judge held that no
breach had been established on the following basis (8 O.R. (3d)
at 319):
In conclusion, as previously determined with
respect to s. 2(b) [and s. 2(c)] of the
Charter, current Canadian law has not adopted
the chilling effect doctrine in determining
the sphere of conduct to be protected under
s. 2 of the Charter, nor will this court
adopt the American chilling effect doctrine
in determining the scope of the s. 2(d)
freedom. Therefore the applicant has not
established that the purpose or the effect of
the Act restricts the freedom of association.
[85] The argument was put to this court, not in terms of the
American "chilling effect doctrine" but in terms of "overbreadth"
as a basis for establishing an infringement. I do not find it
necessary to review any of the American authorities cited to us.
Following the hearing in this matter, the case of R. v. Nova
Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 was decided
and, in my view, it is determinative on this point. The
following passage fully answers the appellant's argument (at p.
628):
Overbreadth in American law is tied to
the First Amendment. It is grounds to obtain
what is termed "facial invalidation" of a
statute, as opposed to a declaration that the
statute is unconstitutional in the case of
the particular plaintiff, which is the usual
remedy. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489
(1982), indicates how overbreadth interacts
with vagueness in First Amendment cases. The
court wrote at pp. 494-95:
In a facial challenge to the
overbreadth and vagueness of a law, a
court's first task is to determine
whether the enactment reaches a
substantial amount of constitutionally
protected conduct. If it does not, then
the overbreadth challenge must fail.
The court should then examine the facial
vagueness challenge and, assuming the
enactment implicates no constitutionally
protected conduct, should uphold the
challenge only if the enactment is
impermissibly vague in all of its
applications.
Overbreadth ties in to the taxonomy of
protected and unprotected conduct and
expression developed by American courts under
the First Amendment. Some conduct or
expression receives First Amendment
protection and some does not, and to the
extent that a statute substantially touches
upon protected conduct and cannot be severed
or read down, it will be declared void (see
L. H. Tribe, American Constitutional Law (2nd
ed. 1988), at p. 1022).
This distinction between protected and
unprotected conduct or expression is typical
of American law, since the American
Constitution does not contain a general
balancing clause similar to s. 1 of the
Charter. Balancing must be done within the
First Amendment itself. In this respect, it
can be seen that the doctrine of overbreadth
in American law involves an element of
balancing, since the aims and scope of the
statute must be compared with the range of
protection of the First Amendment.
C. Rogerson, "The Judicial Search for
Appropriate Remedies Under the Charter: The
Examples of Overbreadth and Vagueness", in R.
J. Sharpe, ed., Charter Litigation (1987), at
pp. 261-62, traces this element of balancing
to Broadrick v. Oklahoma, 413 U.S. 601
(1973).
This Court has repeatedly emphasized the
numerous differences which exist between the
Charter and the American Constitution. In
particular, in the interpretation of s. 2 of
the Charter, this Court has taken a route
completely different from that of U.S.
courts. In cases starting with Irwin Toy up
to Butler, including the Prostitution
Reference and Keegstra, this Court has given
a wide ambit to the freedoms guaranteed by
s. 2 of the Charter, on the basis that
balancing between the objectives of the State
and the violation of a right or freedom
should occur at the s. 1 stage. Other
sections of the Charter, such as ss. 7 and 8,
do however incorporate some element of
balancing, as a limitation within the
definition of the protected right, with
respect to other notions such as principles
of fundamental justice or reasonableness.
A notion tied to balancing such as
overbreadth finds its proper place in
sections of the Charter which involve a
balancing process. Consequently, I cannot
but agree with the opinion expressed by
L'Heureux-Dubé J. in Committee for the
Commonwealth of Canada that overbreadth is
subsumed under the "minimal impairment
branch" of the Oakes test, under s. 1 of the
Charter. This is also in accordance with the
trend evidenced in Osborne and Butler.
Furthermore, in determining whether s. 12 of
the Charter has been infringed, for instance,
a court, if it finds the punishment not
grossly disproportionate for the accused,
will typically examine reasonable hypotheses
and assess whether the punishment is grossly
disproportionate in these situations (R. v.
Smith, [1987] 1 S.C.R. 1045, and R. v. Goltz,
[1991] 3 S.C.R. 485). This inquiry also
resembles the sort of balancing process
associated with the notion of overbreadth.
In all these cases, however, overbreadth
remains no more than an analytical tool. The
alleged overbreadth is always related to some
limitation under the Charter. It is always
established by comparing the ambit of the
provision touching upon a protected right
with such concepts as the objectives of the
State, the principles of fundamental justice,
the proportionality of punishment or the
reasonableness of searches and seizures, to
name a few. There is no such thing as
overbreadth in the abstract. Overbreadth has
no autonomous value under the Charter. As
will be seen below, overbreadth is not at the
heart of this case, although it has been
invoked in argument. [Emphasis added.]
[86] In my view, it is clear from the above that the appellant
cannot simply rely on "overbreadth" as proof of an infringement
of s. 2 freedoms. I also find the cases in MacKay and Danson,
which emphasize the importance of a factual basis in Charter
litigation, apposite to this case. Both cases are referred to
above in the passage quoted from Canadian Council of Churches. I
would further note the following passage from Danson at pp.1099-
1101:
This Court has been vigilant to ensure
that a proper factual foundation exists
before measuring legislation against the
provisions of the Charter, particularly where
the effects of impugned legislation are the
subject of the attack.
...
In the present case, the appellant
contends that he ought to be entitled to
proceed with his application under Rule
14.05(3)(h) in the complete absence of
adjudicative facts, and, moreover, that it is
sufficient that he present in argument (but
not prove by affidavit or otherwise)
legislative "facts", in the form of textbooks
and academic material about the prevailing
understanding of the concept of the
independence of the bar, and material
concerning the legislative history of the
impugned rules. In the view I take of this
matter, the appellant is not entitled to
proceed with the application as presently
constituted.
In the time between the granting of
leave to appeal in this matter and the
hearing of the appeal, this Court heard and
decided MacKay v. Manitoba, [1989] 2 S.C.R.
357, a case concerning an action for a
declaration that certain provisions of The
Elections Finances Act, S.M. 1982-83-84,
c. 45, violated the guarantee of freedom of
expression contained in s. 2(b) of the
Charter. Cory J., speaking for a unanimous
Court, stated, at pp. 361-62:
Charter decisions should not and
must not be made in a factual vacuum.
To attempt to do so would trivialize the
Charter and inevitably result in ill-
considered opinions. The presentation
of facts is not, as stated by the
respondent, a mere technicality; rather,
it is essential to a proper
consideration of Charter issues....
Charter decisions cannot be based upon
the unsupported hypotheses of
enthusiastic counsel.
Later [in the MacKay v. Manitoba case],
Cory J. stated, at p. 366:
A factual foundation is of
fundamental importance on this appeal.
It is not the purpose of the legislation
which is said to infringe the Charter
but its effects. If the deleterious
effects are not established there can be
no Charter violation and no case has
been made out. Thus the absence of a
factual base is not just a technicality
that could be overlooked, but rather it
is a flaw that is fatal to the
appellant's position.
This is not to say that such facts must
be established in all Charter challenges.
Each case must be considered on its own facts
(or lack thereof). As Beetz J. pointed out
in Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110
at 133:
There may be rare cases where the
question of constitutionality will
present itself as a simple question of
law alone which can be finally settled
by a motion judge. A theoretical
example which comes to mind is one where
Parliament or a legislature would
purport to pass a law imposing the
beliefs of a state religion. Such a law
would violate s. 2(a) of the Canadian
Charter of Rights and Freedoms, could
not possibly be saved under s. 1 of the
Charter, and might perhaps be struck
down right away; see Attorney General of
Quebec v. Quebec Association of
Protestant School Boards, [1984] 2
S.C.R. 66, at p. 88. It is trite to say
that these cases are exceptional.
[Emphasis is Cory J.'s.]
The unconstitutional purpose of
Beetz J.'s hypothetical law is found on the
face of the legislation, and requires no
extraneous evidence to flesh it out. It is
obvious that this is not one of those
exceptional cases. In general, any Charter
challenge based upon allegations of the
unconstitutional effects of impugned
legislation must be accompanied by admissible
evidence of the alleged effects. In the
absence of such evidence, the courts are left
to proceed in a vacuum, which, in
constitutional cases as in nature, has always
been abhorred. As Morgan put it, op. cit.,
at p. 162: "... the process of constitutional
litigation remains firmly grounded in the
discipline of the common law methodology."
This case is not one of these exceptional cases where the law, on
its face, violates one of the fundamental freedoms.
[87] It therefore becomes clear upon considering the merits of
the application that the appellant has failed to present a
serious issue of invalidity in so far as it is based on s. 2 of
the Charter.
b) Alleged infringement of s. 8 of the Charter
[88] In my view, the adjudicative facts presented in support of
the s. 8 claim are so weak that the same result should probably
follow. However, I do not find it necessary to determine whether
the appellant has succeeded in raising a serious issue of
invalidity with respect to that aspect of the application since I
am of the view that the appellant fails on the next criterion.
2. Another reasonable and effective way to bring the issue
before the court
[89] As discussed above, standing should be granted in those
situations where it is necessary to ensure that the legislation
is not immune from constitutional challenge. To repeat the words
of Cory J. in Canadian Council of Churches, "The granting of
public interest standing is not required when, on a balance of
probabilities, it can be shown that the measure will be subject
to attack by a private litigant" (at p. 252).
[90] In this case, a challenge to the impugned provisions was
made on the basis of s. 8 of the Charter in R. v. Atwal. By
majority decision, the Federal Court of Appeal upheld the
constitutional validity of the legislation. In fact, the
appellant on appeal urged this court to adopt the reasoning of
the dissenting judge in Atwal and the respondent urged this court
to follow the majority. It would appear from the motions judge's
reasons that the argument followed essentially the same course in
first instance. He ultimately ruled as follows (8 O.R. (3d) at
327-28):
It is the respondent's position that Atwal v.
Canada, supra, is binding on all designated
judges and therefore there is no need for
this court to entertain a similar challenge
to this Act.
In summation, the object of this Act is
not law enforcement, and therefore the
standard set out in Hunter v. Southam Inc.,
supra, with respect to statute-authorized
searches does not necessarily apply; yet,
upon reviewing ss. 21 through 26, the statute
meets the four minimum criteria set out in
Hunter v. Southam Inc., supra. Moreover, the
Federal Court of Appeal in Atwal v.Canada has
held that the Act meets the criteria set out
in Hunter v. Southam Inc., supra. It is to be
concluded that a statute-authorized search
under the Act would be reasonable. Therefore,
the Act does not infringe the right to be
free from unreasonable search and seizure.
[Emphasis added.]
To grant standing in this case is to create a duplication which
can hardly be said to be a wise allocation of limited judicial
resources.
[91] Further, the scant evidentiary basis in this case raises
other concerns referred to by L'Heureux-Dubé J. in Hy and Zel's.
A comparison of the factual basis in Atwal with the scant
adjudicative facts alleged in this case confirms that better use
can usually be made of the judicial process to decide live issues
between parties as opposed to hypothetical ones. In Atwal, CSIS
involvement was clearly established. An actual warrant had been
obtained and executed pursuant to the Act. Clearly, the impugned
provisions of the Act were engaged. In this case, a mere
suspicion was raised that CSIS was involved. Many facts would
have to be presumed before an intelligible debate on the
constitutionality of the section could be engaged in. The scant
evidentiary basis does not allow the issues to be fully
canvassed.
[92] Hence, again here, a consideration of the merits of the
application makes it clear that, in so far as the application
alleged a s. 8 violation, the motions judge erred in finding that
the Amost reasonable and effective manner in which the issues can
be brought before the court is to grant the applicant standing".
He ought to have refused standing for failure to meet this
criterion.
G. Conclusion
[93] In the result, I would allow the cross-appeal and set aside
the motions judge's judgment dated March 25, 1992. I would
dismiss the application on the ground of no standing. I would
also dismiss the appeal on the ground of no standing.
ABELLA J.A. (Dissenting in part):
[95] I have had the benefit of reading the reasons of Charron
J.A. While I agree with her disposition of the appeal on the
merits, I am unable to agree with her conclusion that standing
ought not to have been granted. In my view, Potts J. was correct
in exercising his discretion to grant standing to the Corporation
of the Canadian Civil Liberties Association (C.C.L.A.). There
was, in this case, a serious issue as to the constitutionality of
portions of the legislation and C.C.L.A. was in the best position
to bring the issue effectively to the court's attention.
[96] There is no dispute that the applicable authorities are
Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova
Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister
of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Finlay v.
Canada (Minister of Finance), [1986] 2 S.C.R. 607; Canadian
Council of Churches v. Canada, [1992] 1 S.C.R. 236; and Hy and
Zel's Inc. v. Ontario, [1993] 3 S.C.R. 675.
[97] As Charron J.A. points out, the two latest cases were
decided after the 1990 decision on standing in this case. In my
view, while these two cases do not expand the law of standing,
neither do they fundamentally restrict the scope or principles
applied by Potts J. and set out in the "standing quartet" of
Thorson, McNeil, Borowski, and Finlay. The most recent cases
continue to promulgate the triplicate requirements for the
granting of standing: that there be a serious issue of
legislative validity; that the applicant have a genuine as
opposed to a theoretical interest in the issue; and that no
other reasonable and effective way exists for bringing the issue
before the court.
[98] The discussions in Canadian Council of Churches and Hy and
Zel's emphasize the significance of an adequate factual context.
They reinforce the judicial interest in having the most effective
presentation possible of important public issues and in avoiding
gratuitous, frivolous or hypothetical litigation. But they do
not, in my view, go so far as to suggest that the merits of a
case be given pre-eminent consideration when considering the
threshold issue of standing.
[99] It would be a significant diminution of access to public
interest standing to so merge the question of standing and the
merits, that a preliminary conclusion about the merits determines
whether the case should be heard at all. There must certainly be
enough evidence to justify the conclusion that the issue is an
arguable one and serious enough to warrant judicial scrutiny
(Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d)
449 (C.A.)). But I would resist an approach that appears to
require that there should be enough evidence to demonstrate the
likelihood of success.
[100] Focusing too emphatically on the merits at this stage
means that a pre-trial assessment could immunize issues from
judicial review in cases where it would be in the public's
interest to have the matter openly reviewed.
[101] It bears noting that in Canadian Council of Churches,
Cory J. bracketed his comments on the need to prevent the
overburdening of courts through the "unnecessary proliferation of
marginal or redundant suits", with a restatement of the
significance of public interest standing and the corresponding
need to keep the door open:
The increasing recognition of the importance
of public rights in our society confirms the
need to extend the right to standing from the
private law tradition which limited party
status to those who possessed a private
interest. In addition some extension of
standing beyond the traditional parties
accords with the provisions of the
Constitution Act, 1982.
...
... [W]hen exercising the discretion the
applicable principles should be interpreted
in a liberal and generous manner. [emphasis
added] (pp. 252-53)
[102] Standing is essentially a preliminary issue about
access to the judicial system. Although it is undoubtedly tied
to the substantive issues it seeks to expose, it is at heart a
decision about whether an applicant is entitled to have the
courts consider the merits of an arguable legal claim. To
determine those merits at the outset could defeat the purpose of
public interest standing principles. Those principles were
designed to keep out needless claims and claimants, not just
unsuccessful ones. A claimant entitled to standing may not
ultimately be entitled to succeed on the claim itself, but that,
it seems to me, is not a determinative argument against granting
standing.
[103] The 1989 Ontario Law Reform Commission's Report on
Standing pointed out (at p. 92):
... courts are essentially engaged in a
process of acknowledging and granting access
to the courts to a variety of interests.
This process reflects certain value judgments
respecting what kinds of interest "deserve"
recognition.
In determining how to exercise the discretion to grant standing,
the evidence must, of course, be examined to ensure that the
claim is not frivolous or unworthy of public attention. But it
should not be used to exclude from judicial, and therefore public
examination, issues worthy of serious consideration, whether or
not the challenge proves ultimately to be successful.
[104] The information contained in C.C.L.A.'s supporting
affidavits raises serious questions about whether the
constitutionally protected rights of citizens to engage in lawful
expression, association, or assembly may be compromised or
threatened under the authority of the C.S.I.S. Act. These were
legal organizations engaged in legal activity. When members of
labour unions, refugee organizations, or peace movements find
themselves monitored by a branch of government, the Canadian
public is entitled to be assured that the legislative framework
under which the Canadian Security Intelligence Service (C.S.I.S.)
operates does not equate lawful dissent with threats to national
security. There is no question that the perception of C.S.I.S.
intervention was, to say the least, unsettling to the people
involved and potentially inhibiting (see Jonathan R. Siegel,
"Chilling Injuries as a Basis for Standing" (1989), Yale Law
Journal 906).
[105] It goes to the heart of an open democracy that members
of the public are, and perceive that they are, free from
unwarranted government surveillance when they are engaging in
lawful, even if provocative, activity. Yet under s. 2 of the
C.S.I.S. Act, lawful activities can be investigated if done in
conjunction with activities defined as threats to national
security. This is an exceptional legislative tool. It was in
the public's interest that the statutory scheme be judicially
reviewed to ensure that it met constitutional standards.
[106] Moreover, in my view, C.C.L.A. is the most effective
litigant to raise the issues in an informed and comprehensive
way. C.C.L.A. and its General Counsel, A. Alan Borovoy, have
devoted years of institutional and professional energy to
ensuring that under the rubric of "threats to national security",
covert surveillance is not a ruse for intelligence-gathering into
lawful, constitutionally protected activities. No person or
organization has greater expertise in the area or is better able
to elucidate the relevant issues for the court.
[107] One of the major tenets in the Ontario Law Reform
Commission's Report on Standing was that, given the nature of
public interest standing, the requirement that no other way
exists for bringing the matter before the court, should be
liberally construed:
... no proceeding [should] be dismissed and
no pleading struck out only on the ground
that the person bringing the proceeding has
no personal, proprietary, or pecuniary
interest in the proceeding or that the person
has suffered or may suffer injury or harm of
the same kind or to the same degree as other
persons. (at p. 79)
The fact that a private litigant once raised a related issue (R.
v. Atwal (1987), 36 C.C.C. (3d) 161 (F.C.A.)) should not
therefore foreclose the granting of standing to C.C.L.A.
[108] The question of who is most directly affected by the
legislation and is therefore in the best position to raise the
issues, is more easily applied in less opaque legal environments.
By its nature, C.S.I.S. operates covertly and usually without
prior or subsequent disclosure. Individuals may not know they
are being targeted or what happens to the information gathered
about them. The harm may not therefore be easily discernable,
but there is nonetheless a profound public interest in ensuring
that whatever is done, is done within constitutional limits.
[109] By applying for standing, C.C.L.A. offered to bring the
issue of the constitutionality of C.S.I.S.'s governing
legislation before the courts on the public's behalf. The
application raised serious issues which have profound
implications, and was brought to the judicial forum by the best
possible applicant.
[110] The inability of C.C.L.A. to provide an evidentiary
basis demonstrating the likelihood of success, or to prove that
the legislative provisions are unconstitutional, in no way
diminishes the importance of the issue being argued, or the
benefit to the public of judicial consideration.
[111] I would therefore dismiss the cross-appeal of Pott's
J.'s decision to grant standing, but dismiss the appeal from his
decision on the merits of the application.
Released: July 9, 1998
APPENDIX "A"
Sections 12 and 21 to 26 of the Canadian Security Intelligence
Service Act:
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.
21. (1) 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 [s. 16
is of no relevance to this appeal.], 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 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 proposed to be obtained and the
powers referred to in paragraphs (3)(a)
to (c) proposed to be exercised for that
purpose;
(d) the identity of the person, if
known, whose communication 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;
(f) 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 the application was made,
the name of the judge to whom each
application was made and the decision of
the judge thereon.
(3) Notwithstanding any other law but
subject to the Statistics Act, where the
judge to whom an application under subsection
(1) is made is satisfied of the matters
referred to in paragraphs (2)(a) and (b) set
out in the affidavit accompanying the
application, the judge may issue a warrant
authorizing the persons to whom it is
directed to intercept any communication 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 subsection (3)
(a) the type of communication
authorized to be intercepted, the type
of information, records, documents or
things authorized 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 communication is to be
intercepted or who has possession of the
information, 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 advisable 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.
22. On application in writing to a judge for the
renewal of a warrant issued under subsection 21(3) made
by a person entitled to apply for such a warrant after
having obtained the approval of the Minister, the judge
may, from time to time, renew the warrant for a period
not exceeding the period for which the warrant may be
issued pursuant to subsection 21(5) if satisfied by
evidence on oath that
(a) the warrant continues to be required to
enable the Service to investigate a threat to the
security of Canada or to perform its duties and
functions under section 16; and
(b) any of the matters referred to in paragraph
21(2)(b) are applicable in the circumstances.
23. (1) On application in writing by the Director
or any employee designated by the Minister for the
purpose, a judge may, if the judge thinks fit, issue a
warrant authorizing the persons to whom the warrant is
directed to remove from any place any thing installed
pursuant to a warrant issued under subsection 21(3)
and, for that purpose, to enter any place or open or
obtain access to any thing.
(2) There shall be specified in a warrant issued
under subsection (1) the matters referred to in
paragraphs 21(4)(c) to (f).
24. Notwithstanding any other law, a warrant
issued under section 21 or 23
(a) authorizes every person or person included in
a class of persons to whom the warrant is
directed,
(i) in the case of a warrant issued under
section 21, to exercise the powers specified
in the warrant for the purpose of
intercepting communications of the type
specified therein or obtaining information,
records, documents or things of the type
specified therein, or
(ii) in the case of a warrant issued under
section 23, to execute the warrant; and
(b) authorizes any other person to assist a
person who that other person believes on
reasonable grounds is acting in accordance with
such a warrant.
25. No action lies under section 18 of the Crown
Liability Act in respect of
(a) the use or disclosure pursuant to this Act of
any communication intercepted under the authority
of a warrant issued under section 21; or
(b) the disclosure pursuant to this Act of the
existence of any such communication.
26. Part VI of the Criminal Code does not apply in
relation to any I interception of a communication under the
authority of a warrant issued under section 21 or in relation
to any communication so intercepted |