Chapter 2: The Legal Framework
Special Report on the Collection, Use, Retention and Dissemination of Information on Canadians in the context of the Department of National Defence and the Canadian Armed Forces Defence Intelligence Activities

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Defence intelligence authorities

22. The deployment of CAF members and DND employees, which includes the cond uct of defence intelligence activities, is governed and constrained by Canadian and international law. In the context of the Committee's 2018 review of DND/CAF defence intelligence activities, the Judge Advocate General explained:

  • All CAF operations are authorized by law.
  • All CAF operations are conducted in accordance with the law.
  • While the sources of legal authority may vary:
    • all domestic operations must have a legal basis in Canadian law, and be conducted in accordance with Canadian law; and
    • all international operations must have both a legal basis under Canadian law and a legal basis under international law, and must be conducted in accordance with both Canadian law and with the applicable international law. Footnote 32

23. DND/CAF conducts defence intelligence activities under a unique and complex authority structure. The authority of DND/CAF to undertake the bulk of those activities is derived from exercises of the Crown prerogative, while other authorities can be found in domestic statutes. DND/CAF is also subject to a number of international legal instruments and binding customary international law, some of which may affect the conduct of defence intelligence activities. These activities are also subject to numerous policy instruments, including overarching government policies, ministerial directions and authorizations, internal policies and proced ures, functional directives, and orders given through the militar; chain of command. The Committee's Annual Report 2018 described the authorities under which DND/CAF conducts its defence intelligence activities, and how those authorities support departmental and ministerial accountability for their use. The relevant portions of the Annual Report are summarized here for ease of reference.

The Crown prerogative

24. In addition to the authorities provided by the Constitution Act, 1867 and the National Defence Act, the Crown prerogative is the main source of authority for the deployment of the CAF. It is also the source from which DND/CAF takes its authority to cond uct associated defence intelligence activities. The Crown prerogative is a source of executive power and privilege accorded by the common law to the Crown, in circumstances in which the authority of the Crown is not otherwise limited. Footnote 33 British constitutional theorist A. V. Dicey described the Crown prerogative as the "resid ue of discretionary or arbitrary authority, which at any time is left in the hands of the Crown." Footnote 34 Put simply, the Crown prerogative is the authority exercised by the government to make decisions in areas where the "hands of the Crown" have not been tied by the Constitution, an act of Parliament or a court decision interpreting the scope of a governmental power.

25. In the most general terms, the authority to conduct defence intelligence activities is an accessory of the authority to deploy military forces. As DND/CAF stated, "[t]he authority to conduct defence intelligence activities is implicit when the DND/CAF is legally mandated, pursuant to legislation or an exercise of the Crown prerogative, to conduct military operations and other defence activities." Footnote 35 Neither the National Defence Act nor any other statute contains provisions that specifically govern the conduct of defence intelligence activities by DND/CAF in the context of the execution of its core mandate.

26. DND/CAF stated that the conduct of defence intelligence activities under the Crown prerogative is subject to the requirement for a "nexus," or a "reasonable connection," between defence intelligence activities and a defence mission, which is meant to serve as "a constraint on defence intelligence activities." Footnote 36 In 2013, DND/CAF formalized the requirement for a nexus in the Ministerial Directive on Defence Intelligence.

Legal framework for defence intelligence activities conducted in Canada

27. Defence intelligence activities may support DND/CAF domestic operations. These operations are authorized either by statute, or by an exercise of the Crown prerogative.

28. Where intelligence activities are used to support such domestic operations, their scope is circumscribed by law, by the specific responsibilities of various departments and agencies, and by the balance of jurisdiction between federal and provincial authorities. In terms of domestic legislation, DND identified several sources of law: Footnote 37

  • The National Defence Act: Section 273.6 of the Act permits DND/CAF to provide public service and assistance in law enforcement matters. Part VI of the Act defines when CAF can come to the Aid of the Civil Power (that is, to respond to riots or disturbances of the peace that cannot be handled without the assistance of DND/CAF).
  • The Canadian Charter of Rights and Freedoms: DND/CAF intelligence activities must not violate the provisions of the Charter, particularly section 7 (the right to life, liberty and security of the person) and section 8 (the right to be secure against unreasonable search and seizure).
  • The Criminal Code: DND/CAF intelligence activities must not violate the Criminal Code, including sections dealing with the interception of private communications.
  • The Access to Information Act and Privacy Act: DND/CAF intelligence activities and storage practices must comply with the provisions of the Access to Information Act and the Privacy Act.

29. In most cases, DND/CAF domestic operations are conducted in support of other government departments and agencies, and at the formal request of their minister. In such cases, these operations, including defence intelligence activities, are conducted pursuant to the legal authorities of the supported entity. As the Judge Advocate General stated, this means that "[w]hen acting in support of another organization, the Canadian Armed Forces have no more powers than those of the supported agency." Footnote 38 In short, DND/CAF can conduct an intelligence activity (for example, intercept communications) only to support another government department (for example, the Royal Canadian Mounted Police) if that department itself has the authority (for example, a court warrant) to conduct that activity.

Legal framework for defence intelligence activities conducted in international operations

30. Defence intelligence activities in support of DND/CAF international operations are mostly undertaken under the authority of the Crown prerogative. DND/CAF is also subject to instruments of international law that could involve defence intelligence activities, including the United Nations Charter, the Geneva Conventions, and other conventional or customary rules in the Law of Armed Conflict.

31. DND/CAF noted that the specific source of domestic or international law that may affect a defence intelligence activity varies depending on the circumstances of each case, including:

  • the location of an operation;
  • whether the operation is conducted at the invitation of a foreign state or under the auspices of a United Nations resolution;
  • whether the operation is conducted in relation to a recognized international armed conflict, to which specific instruments of international law and international humanitarian law apply; and
  • whether a particular activity is recognized as contrary to international law, including international humanitarian law.

Extraterritorial application of Canadian law

32. Canadian law follows DND/CAF. However, it is not always clear whether a statute applies outside of Canada. This section contains examples of how Canadian law can apply extraterritorially. It also provides an example of a ***

The Criminal Code

33. Whether serving in Canada or deployed on operations abroad, CAF personnel are subject to the Code of Service Discipline, contained in Part III of the National Defence Act. Footnote 39 This Code also applies to DND personnel accompanying CAF on international missions. It extends the application of Canadian criminal law to foreign locations. This means that if CAF members (and DND employees, in certain cases) commit a criminal offence, they may be charged for a service offence in the Canadian military justice system. Footnote 40 The term "service offence" includes an offence under the National Defence Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline. Footnote 41

34. Some portions of the Criminal Code are directly relevant to defence intelligence activities. For example, signals intelligence (SIGINT) activities may carry a high risk of intercepting private communications, which constitutes a criminal act if the activity that resulted in the interception was done without judicial authorization (for example, a warrant). As the Code of Service Discipline extends the application of the Criminal Code to foreign territories, DND/CAF members who intercept communications originating from or destined for Canada could be subject to prosecution. While some offences do not apply to DND/CAF members, Footnote 42 there is no exception in the Criminal Code for interceptions occurring in the context of a lawfully authorized military mission.

35. Under Part V.1 of the National Defence Act, the Minister of National Defence could authorize CSE to intercept private communications if certain conditions prescribed in that Act were met. Footnote 43 Under such an authorization, Part VI of the Criminal Code did not apply in relation to an interception of a private communication. Footnote 44 This means that the interception of private communications under Part V.1 of the National Defence Act, when authorized by the Minister, was not a criminal offence. Where DND/CAF conducted SIGINT activities under the authority of CSE, DND/CAF personnel were subject to the Minister's authorizations, and were also exempted from the application of Part VI of the Criminal Code in that regard. Footnote 43 That said, DND/CAF also had to abide by the legislative obligations, policies and procedures in place for CSE to protect the privacy of Canadians, including the absolute prohibition against directing their foreign intelligence SIGINT activities at Canadians or anyone in Canada. Footnote 46

The Privacy Act

36. The Privacy Act is the statute that governs the personal information ha ndling practices of federal government institutions, including DND/CAF. Footnote 47 The Act applies to all personal information that federal institutions collect, use and disclose. It also gives Canadians the right to access personal information held by these institutions. Footnote 48 For the most part, information collected as a result of intelligence activities, including defence intelligence activities, constitutes personal information within the meaning of the Privacy Act. Footnote 49

37. There is no jurisprudence on whether the Privacy Act applies extraterritorially. [*** Paragraphs 37 to 40 have been revised to remove injurious or privileged information. Those paragraphs describe consultations among departments. ***] *** Footnote 50

38. *** Footnote 51 *** Footnote 52

39. ***

40. *** *** Footnote 53

Canadian Charter of Rights and Freedoms

41. The Charter clearly applies to DND/CAF domestic intelligence activities. Footnote 54 It is unclear whether it applies to its extraterritorial defence intelligence activities. [*** The remainder of this paragraph was revised to remove injurious or privileged information. It discusses the extraterritorial application of the Charter. ***] Footnote 55

42. Canadian law offers strong constitutional protections against government intrusions into the lives of Canadians. Should the Charter apply to the extraterritorial defence intelligence activities of DND/CAF, those activities would need to be compliant, for example, with section 8 of the Charter, which provides that "everyone has the right to be secure against unreasonable search and seizure."Generally, a search or a seizure will be reasonable if it is authorized by law (most often a statute), the law is reasonable, and the manner in which the search or seizure is carried out is also reasonable. Footnote 56 In most cases, this means that the state may not interfere with a reasonable expectation of privacy, unless the state's activity in question is authorized by a judge.

43. In the national security and intelligence context there are two statutes of relevance to this review (in addition to the Criminal Code, explained at paragraphs 33-35). Footnote 57 The first governs the activities of CSIS, the CSIS Act, which provides that CSIS, both inside and outside Canada, "shall collect, by investigation or otherwise, to the extent that 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" The Director of CSIS may, if required in the context of such investigation, apply to a designated judge of the Federal Court for a warrant authorizing the Director of CSIS to use certain intrusive measures in the course of collecting information. The authorized activity may include the interception of the private communications of Canadians, or the seizure of devices that contain personal information. The designated judge may impose any condition deemed appropriate. Authorizations provided to CSIS by the Federal Court can apply to the information of or about Canadians who are inside or outside of Canada. Part VI of the Criminal Code (interception of private communications) does not apply to cases where the interception is authorized by the warrant. Footnote 58

44. The second statute of relevance is Part V.l of the National Defence Act (Communications Security Establishment), which authorized a certain level of intrusion into the privacy of individuals. Among other things, Part V.l of the Act gave CSE the mandate to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence in accordance with the Government of Canada intelligence priorities. Footnote 59 It also prohibited CSE from directing its activities at Canadians located anywhere, or any person in Canada. These activities also had to be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information. Under the Act, the Minister of National Defence could authorize CSE to intercept private communications in the execution of its mandate, provided that the conditions set out in the Act were satisfied.

45. However, sources of lawful authority to interfere with Charter-protected rights are not necessarily limited to statutes. Canadian courts have recognized that in some limited cases, the common law may provide sufficient authority to justify a search or seizure. Footnote 60 Those cases have thus far been limited to the actions of law enforcement agencies. There is currently no jurisprudence suggesting the common law provides sufficient justification for the use of intrusive methods and techniques in the context of national security and intelligence activities, including defence intelligence activities.

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