Read Part 1: Pulling Back the Curtain on Canada’s Mass Surveillance Programs – Part One: A Decade of Secret Spy Hearings

The BCCLA is sharing over 4,000 never-before-seen pages detailing the Communications Security Establishment’s (CSE) surveillance practices.

These documents paint a picture of a powerful spy agency in dire need of oversight. Read on to learn more. 

Introduction

A key aspect of any legal proceeding is the discovery process, where both parties are required to disclose all relevant documents in their possession, regardless of whether they support or undermine their position. In the context of national security litigation, this process can be challenging for claimants. Courts tend to give significant weight to claims of secrecy by national security agencies, particularly when it relates to specific methods used by these agencies.

As part of the case these released documents come from, the Federal Court granted the government’s request that the hearings be conducted in secret, and that the related court files be sealed to prevent public access. These measures were allowed despite the fact that all documents were heavily redacted to conceal sensitive national security information. It seemed the public might never be allowed to learn important details about CSE’s spying programs or the BCCLA’s court case challenging them.

That changed when Bill Robinson, a researcher who worked with BCCLA on the case, made a request for the documents under the Access to Information Act. CSE initially refused to release them, claiming litigation privilege. Robinson then made a formal complaint to the Information Commissioner, which the commissioner upheld. Finally, CSE agreed to release the documents with no additional redactions, and the government agreed to lift the implied undertaking of confidentiality, allowing the BCCLA to share these critical documents with the public.

Document Contents

Even with these heavy redactions, the documents paint a picture of a powerful spy agency in dire need of oversight.

Despite rules against targeting Canadians, CSE regularly collected Canadians’ communications, shared Canadians’ information with third parties, chose to protect those intelligence sharing relationships over the privacy of Canadians, and prioritized its continued operation over all else.

These documents total over 4,900 pages, making up 284 individual documents and focus on the period immediately before the litigation was filed, from the mid-2000s to mid-2010s.

The documents fall into 3 broad categories:

1. Ministerial Authorizations, Ministerial Directives, and Memoranda of Understanding

Ministerial Authorizations and Ministerial Directives are documents signed by the Minister of National Defence. Ministerial Authorizations grant CSE authorities to conduct various classes of surveillance activities, while Ministerial Directives provide instruction on how to exercise those authorities.

The documents in this batch include:

Ministerial Authorizations from 2010 – 2015;

Ministerial Directives relating to:

• the collection and use of metadata [1];
• measures necessary to protect the privacy of Canadians [2]; and
• information sharing with other governments when sharing the information creates a “substantial risk of mistreatment” [3];

Memoranda from the CSE chief requesting the Ministerial Authorizations and Directives and providing rationales for granting them; and

Memoranda of Understanding (“MOUs”) between CSE and various government agencies or departments allowing CSE to provide assistance with various matters, including computer network security, and often allowing CSE to intercept that agency or body’s communications. MOUs were signed with:

• Canada Revenue Agency (CRA) [4];
• Canadian Forces [5];
• Canadian Nuclear Safety Commission [6];
• Canadian Security Intelligence Service (CSIS) [7];
• Department of Foreign Affairs and International Trade (DFAIT) [8];
• Health Canada [9];
• Public Works and Government Services Canada [10];
• Natural Resources Canada [11];
• Royal Canadian Mounted Police (RCMP) [12]; and
• Shared Services Canada [13].

2. Policy and operations manuals

These documents include a wide array of CSE policy and operations manuals that guide the activities of the various branches of CSE and the agency as a whole. These include multiple documents from the following series:

• Operational Policy Series (OPS);
• Canadian SIGINT Operations Instructions (CSOI);
• IT Security Operational Instructions (ITSOI);
• Canadian SIGINT Security Standards (CSSS);
• Policy and Communication Instructions (PCI); and
• SIGINT Programs Instructions (SPI).

3. Reports and reviews

These documents cover a wide range of subjects, including public annual reports from the CSE Commissioner,[14] CSE reports to the Minister of National Defence,[15] and previously secret documents detailing failures by CSE to follow its own procedures intended to protect Canadians’ information,[16] and transferring information about Canadians to its Five Eyes partners without properly removing identifying information.[17]

7 Key Takeaways

1. A glossary of CSE’s vocabulary and non-standard use of words

Like many government agencies, CSE has developed a set of jargon and acronyms that can seem designed to be impenetrable to the public. The documents allowed us to produce a glossary of CSE terminology to assist you in reading them and other public documents released by the CSE. The documents also reveal how CSE redefines common words to create its own vocabulary. These non-standard definitions provide a misleading impression of CSE’s actions to the public, and potentially to the ministers tasked with authorizing CSE’s surveillance powers.

One example of this is the verb “intercept”. In common usage, intercepting a communication would mean getting the contents of a communication between two people, like a wiretap or reading someone’s mail. Even in the Criminal Code, “intercept” has a broad meaning that aligns with the common understanding of the word: “intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.”[18]

CSE’s definition of “intercept” is much narrower. They say a communication is only “intercepted” when it is “selected by CSEC on specific criteria, and is sent from the [REDACTED] to CSEC traffic repositories”.[19] Using the CSE’s vocabulary, taking a copy of an instant message as it moves across the internet is not “interception” – it is merely “collection”.

2. CSE was not allowed to target Canadians but regularly collected Canadians’ information and received it from foreign partners

Under both the National Defence Act (NDA) regime and the new CSE Act regime, it is clear that CSE is not allowed to spy on Canadians or people in Canada and must have measures in place to protect the privacy of Canadians. The NDA, which was in place during the time period covered by the documents, stated that CSE’s activities “shall not be directed at Canadians or any person in Canada”[20], and “shall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information”.[21]

All the same, CSE collected vast quantities of information about Canadians. CSE collects “raw SIGINT” data directly from its collection points in Canada’s communications infrastructure and elsewhere, including both content of communications and metadata.[22]

Typically, information that identifies a Canadian person is “suppressed” or “minimized” (CSE-speak for redacted or removed) before it is shared by CSE. However, the unredacted “raw SIGINT” is still maintained by CSE, and a wide range of CSE personnel can access the raw SIGINT “as needed to fulfill official duties”.[23] Raw SIGINT can also be shared outside of CSE, with Canadian Armed Forces personnel or Departmental Security Officers. The circumstances under which such sharing is allowed are redacted.[24]

CSE also advised the CSE Commissioner that CSE did not need a Ministerial Authorization to use metadata or communications involving Canadians if those communications were provided to CSE by another country. In CSE’s view, the prohibition on intercepting private communications of Canadians does not apply if it receives the information from a foreign partner. CSE could not provide the CSE Commissioner with details on how often this occurs.[25]

3. CSE had expansive metadata surveillance programs in place, and those programs were expanding

The documents confirm what we have suspected since the original release of the Snowden documents, and the subject of the BCCLA’s litigation: CSE had programs in place for the bulk collection of metadata relating to telephone and internet traffic, much like the programs operated by the National Security Agency in the United States. A secret report from the CSE Commissioner dated 2015 confirmed that “CSE may acquire “bulk” or “unselected” metadata at all SIGINT collection apertures for all telecommunications events”[26] [emphasis added]. Those “SIGINT collection apertures” most likely include CSE surveillance posts located in or near internet backbones leading in and out of Canada.

In practice, this likely means that CSE has records of Canadians’ use of websites or apps based outside of Canada, including Google, Facebook, Instagram, YouTube, Tiktok, Twitter, and more, along with their calls, emails, or instant messages to people living outside Canada. Even the metadata of domestic telecommunications can be subject to collection, as a large percentage of Canada-to-Canada internet traffic crosses the Canadian border during its travels.

The 2015 report noted that “CSE’s collection posture has strengthened” since the last report on metadata in 2008.[27] It is likely that trend has continued, meaning the amount of data collected and sources it is collected from have increased since 2015.

4. CSE’s cybersecurity mandate gives it the authority to access Canadians’ personal information from within other government agencies

As the documents were produced via the BCCLA’s lawsuit over surveillance, most of the documents are focused on CSE’s SIGINT mandate. However, there are some interesting glimpses into CSE’s cybersecurity mandate provided in both policy documents and in a series of MOUs between CSE and various government agencies.

For example, a MOU with DFAIT, dated November 2012, allows CSE to “perform computer and network monitoring and related analysis”.[28] The MOU goes on to say that private communications will be intercepted by CSE, and that CSE may share any information that is identified as being relevant to CSE’s cybersecurity mandate, and thus comes under its “control”, with Five Eyes partners.[29]

5. CSE shared information potentially relating to Canadians with other government agencies and other countries, and developed a system to share bulk metadata collected by CSE with Five Eyes partners

CSE shared the information it collected with a variety of other government agencies. One example is shown in a MOU between CSE and CRA. Under that MOU, CSE provided CRA with access to SIGINT end-product reports to investigate terrorism financing and prevent terrorist organizations from obtaining charitable status.[30] Under the MOU, CRA had to notify CSE before taking any actions or initiating any proceedings based on information obtained from CSE, presumably to prevent the targets from learning about CSE’s techniques and information sharing.[31]

CSE had a similar MOU with Health Canada, noting that agency’s responsibilities for maintaining pandemic preparedness, and for responding to nuclear accidents or terrorist attacks. Like the MOU with CRA, the Health Canada MOU required Health Canada to notify CSE before taking actions based on information obtained from CSE.[32]

The Ministerial Directive on Metadata directs CSE to share the metadata it collects “with international allies to maximize its mandate activities […] and strengthen Canada’s partnerships abroad.”[33] However, when CSE shares information about Canadian persons with Five Eyes partners or other countries, information about Canadians must be “suppressed” or, in the case of metadata, “minimized”. [34]

A report from the CSE Commissioner in 2015 shows that CSE went beyond simply sharing information. It created an automated sharing system that allowed Five Eyes partners to search CSE’s collection of telephone and internet metadata.[35]

6. CSE violated law for five years by failing to minimize Canadian information shared with Five Eyes partners

As outlined above, under the Ministerial Directive on Metadata, CSE has the authority to share metadata with allied countries’ intelligence agencies as long as any information about people in Canada is “minimized” to remove any identifying information about the Canadian person.

A letter from the CSE Commissioner dated October 5, 2015, shows that information about Canadians was routinely shared with Five Eyes partners for five years without the data being properly minimized.  When sharing telephone metadata, CSE “failed to ensure” its systems were properly minimizing information identifying Canadian persons, resulting in Canadian information being shared. When allowing Five Eyes partners to search its collection of internet metadata, CSE failed to properly exclude search terms relating to Canadian persons. It shared results that included internet protocol (IP) addresses, which are considered personally identifiable information. [36] 

The report found that CSE had violated Canadian law, including the NDA and the Privacy Act, and that CSE “failed to act with due diligence”. CSE was not able to provide the CSE Commissioner with details showing the scope of the privacy violations resulting from the unauthorized sharing.[37] The unauthorized sharing of Canadian information continued from 2009, when the automated sharing system was established, to spring 2014, when CSE suspended its programs for sharing telephone and internet metadata with its Five Eyes partners.[38]

7. CSE prioritized its relationships with other intelligence agencies over the privacy and safety of Canadians

CSE places a heavy emphasis on developing and maintaining its relationships with other intelligence agencies, particularly the Five Eyes agencies. The documents show how this plays out in CSE policy and operations, and how efforts to maintain these relationships often come before CSE’s duty to protect the privacy of Canadians.

CSE’s prioritization of relationships with foreign partners can be seen in its approach to the 2011 Ministerial Directive providing a “Framework for Addressing Risks in Sharing Information with Foreign Entities” (the “Mistreatment MD”). The Mistreatment MD is a guide for making decisions about sharing information with a foreign government when the information creates a “substantial risk of mistreatment” of the subject of the information.[39] “Mistreatment” is defined by the Mistreatment MD as “torture or other cruel, inhuman, or degrading treatment or punishment”.[40]

CSE grades the risk of mistreatment according to a scale from Low Risk, when mistreatment is unlikely, to Speculative Risk, when the intended recipient has “a questionable human rights record” or there are “concerns about the recipient’s adherence to the Convention Against Torture,” to Substantial Risk if there is a “personal, present, and foreseeable risk of mistreatment”. A Substantial Risk can be mitigated by restrictions on the use of the information, assurances there will be no mistreatment, or further suppressing information so it is less likely to lead to mistreatment. [41]

Five Eyes countries have agreements for information sharing in place with CSE that set out how they will use the information shared, and are deemed “safe” for the purposes of the Mistreatment MD. The Five Eyes partners’ rules, such as NSA’s “strict policies that limit access to non-minimized raw traffic”, are cited by CSE as providing “confidence that partners are safeguarding the privacy of Canadians”.[42]

The CSE must conduct a Mistreatment Risk Assessment before sharing information with non-Five Eyes countries.[43] Sharing with those countries can also be limited based on those countries’ privacy safeguards and policies.[44] The CSE also makes sure that a “mention of mutual respect for privacy concerns be stated wherever appropriate in future agreements and shared policies”.

CSE asks Five Eyes countries to report monthly on measures meant to protect the privacy of Canadians whose information is shared with them. However, CSE states that it would not penalize second party countries for failing to comply with those safeguards, because doing so would “have a significant negative effect on [CSE].”[45] The CSE Commissioner recommended that CSE at least collect statistics on the number of Canadians’ private communications accessed by second parties, but CSE refused even this basic measure:

“The proposed requirement to have Second Parties expand their reporting to [CSE] to include statistics on recognized private communications would likely have a similar negative effect on [CSE], in that it would become too onerous for Second Parties to do business with [CSE] (given that this requirement would have to apply to all [CSE] collection programs). There are limits on partnership commitments.”

Despite the limited “partnership commitments” from Five Eyes partners, CSE is aware that Five Eyes countries “may derogate from the agreements, if it is judged necessary for their respective national interests.”[46] The documents show CSE and its Five Eyes partners do not “seek or share evidence from each other to demonstrate that these rules are in fact being followed.”[47]

The CSE acknowledged to the CSE Commissioner that, “[t]he sanction for not complying with these measures is the ability to restrict the sharing of further information.”[48] The documents show this is not a step CSE was willing to take. As CSE told the CSE Commissioner, “there are limits to what any country can require of another”.

Conclusion

The documents in this collection demonstrate that the facts alleged by the BCCLA in its lawsuit were correct: CSE operates bulk metadata surveillance programs that collect and share information about Canadians with government clients and foreign intelligence agencies. What was truly shocking is how hard CSE pushes up against the edge of legality, and pushes back against even the most reasonable regulation and oversight.

The findings above are just the tip of the iceberg. We encourage journalists, academics, watchdogs, advocates, and the general public to dig into the documents and help us see what else can be found. We hope you’ll share your findings with the public, collaborate with each other, and reach out to us if you think you’ve found something we missed.

The BCCLA was represented by David Martin of Martin & Associates, Sebastian Ennis of Iris Legal, and Neil Abraham of Olthuis van Ert. The BCCLA was also represented by Joseph Arvay, O.C., O.B.C., Q.C.

Bill Robinson and Greg McMullen served as experts on the case. Due to the scope and duration of this litigation, it is not possible to give credit to all those who participated but the BCCLA is extremely grateful to everyone who contributed.

Explore the CSE Secret Spying Archive!

Index and Glossary of CSE Glossary of Terms:

Please note that this glossary is a work in progress and not intended as a formal dictionary.

Indexed Secret Spying Documents:

Please note, to view these documents, click the link and download the file (rather than viewing in a browser) as they are in a portfolio file structure.

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[1] AGC0017

[2] AGC0021

[3] AGC0081

[4] AGC0148

[5] AGC0116

[6] AGC0149

[7] AGC0165

[8] AGC0120 and AGC0150

[9] AGC0147

[10] AGC0177

[11] AGC0156

[12] AGC0164

[13] AGC0128

[14] AGC0001-10, AGC0013-4, AGC0027, AGC0038, AGC0158, and AGC0282

[15] AGC0070, AGC0194, and AGC0236-7

[16] AGC0261

[17] AGC0166 and AGC0278

[18] Criminal Code, s 183

[19] AGC0241 at p 13 (p 8 of Report)

[20] NDA,s 273.64(1)(a)

[21] NDA,s 273.64(1)(b)

[22] AGC0157 at p 9

[23] AGC0157 at p 9

[24] AGC0157 at p 14

[25] AGC0166 at p 25.

[26] AGC0278 at p 15

[27] AGC0278 at p 31

[28] AGC0120 at p 2

[29] AGC0120 at p 3

[30] AGC0148

[31] AGC0148 at p 2

[32] AGC0147

[33] AGC0017

[34] AGC0157 at p 9.

[35] AGC0281

[36] AGC0281

[37] AGC0281

[38] AGC0281

[39] AGC0081

[40] AGC0081 at p 2

[41] AGC0266 at p 10-11

[42] AGC0166 at p 13, fn 17

[43] AGC0168 at p 10

[44] AGC0166 at p 13, fn 17

[45] AGC0166 at p 12, fn 16

[46] AGC0166 at p 18

[47] AGC0166 at p 29

[48] AGC0166 at p 13, fn 17

The BC Civil Liberties Association (BCCLA) awarded the Reg Robson Award to Dr. Mary Ellen Turpel-Lafond as part of the 2020 Liberty Awards. The BCCLA’s annual Liberty Awards honour exceptional contributions to the fields of human rights and civil liberties in Canada. Named after a former Board President, spokesperson, civil rights advocate, and BCCLA co-founder, the Reg Robson Award honours substantial career contributions to the cause of civil liberties in British Columbia and Canada. Through a nomination process open to our entire membership, Dr. Turpel-Lafond’s name was put forward and selected by our Board of Directors. 

In awarding Dr. Turpel-Lafond with BCCLA’s most prestigious and long-standing award, the Board had believed in Dr. Turpel-Lafond’s public representations regarding her professional accomplishments, as well as her Indigenous ancestry. In particular, the Board understood that Dr. Turpel-Lafond’s Cree ancestry played an essential role in informing her professional roles, her position in the community, and her work to advance human rights on behalf of Indigenous peoples and advocacy organizations. 

Information has since come to BCCLA’s attention that demonstrates, in our view, that Dr. Turpel-Lafond falsified her claims to Cree ancestry. Furthermore, certain professional and academic accomplishments claimed by Dr. Turpel-Lafond have been disproven or called into question, all of which, in our view, erode her professional integrity. This includes, for example, her claim to be “the first treaty Indian to be appointed to the [Provincial Court in Saskatchewan],”[1] as well as her claims to an honorary degree from First Nations University,[2] and to have been awarded a Queen’s Counsel designation in the province of Saskatchewan.[3] To date, Dr. Turpel-Lafond has failed to provide public transparency or accountability regarding any of these claims.

Dr. Turpel-Lafond’s misrepresentation regarding her purported Indigenous ancestry must also be contextualized within the greater, widespread pattern of Indigenous identity fraud, and the severe harms that it causes. Indeed, Indigenous identity fraud perpetuates colonial violence and assimilation practices, allowing settlers to shape the future for Indigenous communities while marginalizing Indigenous voices and weakening self-determination.[4] 

In this case, Dr. Turpel-Lafond’s actions have taken away opportunities and recognition which was rightfully owed to Indigenous women. This is particularly egregious, given the manner in which colonization and patriarchy intersect to cause particular harm to Indigenous women. Further, any further damage caused by Dr. Turpel-Lafond’s use of her professional position of influence, in particular to the rights of Indigenous peoples, is yet to be duly reviewed and understood.

The recent revelations about Dr. Turpel-Lafond’s purported Indigenous identity and professional claims, as well as her lack of accountability or remorse on these matters, have been shocking and disturbing. The Indigenous Women’s Collective has issued a resounding call to rescind the honorary degrees and awards issued to Dr. Turpel-Lafond.[5] As a largely settler organization, the BCCLA has a responsibility to stand with Indigenous communities and follow the lead of Indigenous scholars, leaders, and organizations on the appropriate measures to address ongoing harms faced by Indigenous peoples. The BCCLA also recognizes that in awarding Dr. Turpel-Lafond the 2020 Reg Robson Award, our organization contributed to amplifying Dr. Turpel-Lafond’s false claims and position of influence. Furthermore, as a legal advocacy organization that takes its professional and ethical obligations seriously, the BCCLA cannot in good faith ignore the impact that Dr. Turpel-Lafond’s false claims have played in gravely undermining the public confidence and trust in the legal profession within the communities we serve.

For these reasons, the BCCLA Board and Staff have unanimously decided to formally rescind the 2020 Reg Robson Award given to Dr. Turpel-Lafond and understand we have an obligation to be transparent and accountable regarding our decision.

Beyond this award, the BCCLA recognizes that identity fraud is part of a greater and nuanced conversation on Indigenous identity within colonial structures and the ongoing work of decolonization. We recognize the important contributions of those working to illuminate the ways forward in this area[6] and intend to actively reflect on these discussions and our role in this work. The BCCLA re-iterates our commitment to standing in solidarity with Indigenous people, particularly Indigenous women, and to listen with open hearts and minds in our support against colonial violence. 

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[1] National Inquiry into Missing and Murdered Indigenous Women and Girls, Panel IV: Dr. Mary Ellen Turpel-Lafond, “A Voice for Children and Youth”, (4 October 2018), online: <https://www.mmiwg-ffada.ca/wp-content/uploads/2018/10/20181004_MMIWG_Winnipeg_Child_Family_Welfare_Parts_2__3_Vol_13.pdf>; See also: Geoff Leo, “Disputed history”, CBC News (12 October 2022), online: <https://www.cbc.ca/newsinteractives/features/mary-ellen-turpel-lafond-indigenous-cree-claims>.

[2] Geoff Leo, “Universities weighing call from Indigenous women’s group to revoke Turpel-Lafond’s honorary degrees, CBC News, (1 November 2022), online: <https://www.cbc.ca/news/canada/saskatchewan/indigenous-collective-wants-universities-revoke-turpel-lafond-honorary-degrees-1.6637426>.

[3] Geoff Leo, “Missing book, non-existent honour, leaked membership list among new Turpel-Lafond revelations”, CBC News, (2 November 2022), online: <https://www.cbc.ca/news/canada/saskatchewan/turpel-lafond-new-information-emerges-1.6635033>.

[4] Jean Teillet, Indigenous Identity Fraud: A Report for the University of Saskatchewan, (17 October 2022), <https://leadership.usask.ca/documents/about/reporting/jean-teillet-report.pdf>.

[5] Indigenous Women’s Collective, “Response to Vancouver Island University Announcement Regarding Mary Ellen Turpel-Lafond’s Relinquishing Their Honorary Degree”, (17 January 2023 at 9:43 PM), online: Twitter <https://twitter.com/IndigenousWome4/status/1615585676518359042>.

[6] See also, for example: First Nations University of Canada & National Indigenous University Senior Leaders’ Association, Indigenous Voices on Indigenous Identity: What Was Heard Report, (June 2022), <https://fnuniv.ca/wp-content/uploads/Indigenous-Voices-on-Indigenous-Identity_National-Indigenous-Identity-Forum_Report_March-22_June-22-FINAL.pdf>.

The BCCLA would like to honour the memory of Mr. Robert (Bob) J. Rowan, a founding director of our organization, who recently passed away on 11^th December 2022. Bob served on the BCCLA board for many years, including as President in 1968. He infused life into an organization that has come to achieve legal victories that have shaped profound changes to the society we live in today. Bob left a lasting legacy, with his son Alan, following his footsteps to also serve the community as a Board member of the BCCLA.    

Jay Krishan, a current Board member, writes:

“The BCCLA is deeply indebted to Robert Rowan. His unremitting attention to the advancement of civil liberties and the clarity of his vision will continue to foster change through our mandate.”

In his memory, we will continue to defend, protect, and extend the inalienable human rights and inherent civil liberties of those most disadvantaged and marginalized within our communities today.

Family statement: https://robertjrowan.wordpress.com

To learn more about the life and work of Bob Rowan, please visit this selection of Bob’s writing and speeches from across the years: https://bccla.org/the-writing-and-speeches-of-bob-rowan/

I am humbled and honoured to join the BC Civil Liberties Association in its seventh decade. Over its dedicated history, the BCCLA, together with community partners and supporters, has achieved profound and impactful change across a vast range of vital rights-based issues. These precedent-setting milestones, including historic wins addressing solitary confinement, medical assistance in dying, and police accountability, speak to the breadth of our collective accomplishments and the importance of our work ahead in demanding accountability for systemic abuses that disproportionately impact marginalized communities.

We are steadfast in our commitment to ending discrimination against marginalized people within the criminal justice and other government systems. We will work to uphold our obligations in relation to the Truth and Reconciliation Commission’s Calls to Action, and demand that governments do the same. We will remain vigilant in protecting against the erosion of the rights and freedoms of those who continue to endure unfair treatment and discrimination.

Our resolve to defend, protect and extend the inalienable human rights and inherent civil liberties of those most disadvantaged and marginalized within our communities remains well-supported in the hands of our talented and dedicated staff, Board, pro-bono counsel, and collaborative network of community partners. As our community strengthens, each new day offers us a chance to work together, pursue opportunities, face new challenges and to improve on the lessons learned from our past.

I want to thank our partners, fellow supporters, donors, community partners, board members, and especially our dedicated team for the warm welcomes I have received. I look forward to meeting and working with many more as we continue to work towards achieving our shared goal of a more free and just society.

Thank you for your continued support.

Sincerely,

Joanne Macri (she/her)

Introduction

Just under a decade ago, in 2013, the BCCLA filed lawsuits challenging secret spying programs operated by the Communications Security Establishment (“CSE”), the Canadian version of the U.S. National Security Agency (“NSA”). CSE is responsible for collecting intelligence from communications and computer systems (“signals intelligence” or “SIGINT”) and for securing Canadian government and associated computer systems and networks (“cybersecurity”). Since 2019, it has also been mandated to conduct cyberwarfare activities (“active and defensive cyber operations“). The BCCLA challenged CSE’s bulk surveillance of metadata about Canadians’ telephone and internet communications. The BCCLA alleged that CSE’s bulk collection of metadata and collection of private communications violated Canadians’ Charter rights to privacy.

After years of secret hearings, the case is over. The BCCLA’s litigation ended with the government making sweeping changes to how Canada’s spy agencies operate, including an entirely new review body that can receive public complaints, and new policies restricting how the identities of individuals can be reported. The BCCLA also secured the release of documents that were previously secret, providing a greater understanding of how Canada’s spy programs operate and who is targeted by them.

This is the first of two posts on the BCCLA’s litigation over secret spying by the CSE. This post will provide background on the litigation and the new legislative framework, while the next post will release the new documents detailing the CSE’s surveillance practices.

CSE Background

The CSE has a long history of operating in the shadows and without appropriate oversight or review. Despite being formed at the beginning of the Cold War, its intelligence-gathering role was only officially acknowledged by the government in 1983. Its mandate was codified in the Anti-Terrorism Act in 2001, marking the first time it was set out in statute, and in 2011, CSE became an official government agency.1

The CSE’s mandate has two main parts: signals intelligence and cybersecurity. CSE was granted its spying authority by secret “ministerial authorizations” and “ministerial directives” issued by the Minister of National Defence. These authorizations set out a broad scope for CSE to obtain and store communications, metadata about communications, and other electronic data.

The Snowden Leaks

Midway through 2013, an anonymous leaker – later revealed to be Edward Snowden – provided journalists with documents proving a vast surveillance program operated by the NSA. The documents provided by Snowden revealed the indiscriminate harvesting of the metadata attached to every phone call made or email sent within the United States, surveillance programs within major internet companies, and sharing of records internationally within the Five Eyes alliance of the US, United Kingdom, Australia, New Zealand, and Canada.

Metadata is information about information. It includes things like the to and from fields of an email, call, or text, the subject line of emails, IP addresses, and so on. Individual pieces of metadata are not particularly sensitive, but they can be seen as pieces of a puzzle. With enough metadata, patterns start to emerge: networks of family and friends, or sensitive personal details like political affiliation, religious beliefs, sexual orientation, and so on. The bulk surveillance described in the Snowden leaks suggested that intelligence agencies, including Canada’s CSE, could be developing intimate profiles of anyone who used the internet or telephone.

Soon after the first Snowden leaks, the Harper government was forced to comment on CSE’s own bulk metadata collection, offering the misleading excuse that Canadians’ information was not “targeted.”2 However, as the documents produced in the litigation will reveal, this denial was largely meaningless. The CSE has its own unique vocabulary, so while Canadians may not be “targeted” by CSE, their information can still be obtained by CSE and, in some cases, shared with other countries.

A Decade of Secret Hearings

Although the public picture of CSE’s spying programs was not complete, there were enough pieces in place to allow the BCCLA to bring lawsuits challenging the sections of the National Defence Act that enabled the CSE’s secret spying programs. One case sought a declaration that the programs were a violation of Canadians’ Charter rights and orders preventing the operation of the secret spying programs. The other was a proposed class action seeking damages for these Charter violations.

Like the programs it challenged, the BCCLA’s litigation was shrouded in secrecy by the government. The claims were not allowed to proceed under the usual principles of open court. Canada insisted that public hearings would compromise national security, so the Federal Court ordered closed-door hearings and imposed confidentiality on document production. Even then, the documents that were produced were heavily redacted.

New National Security Intelligence Framework

The BCCLA’s litigation pushed the government to introduce Bill C-59, legislation that would create a new framework for national security and intelligence activities in Canada. Bill C-59 became law in 2019, bringing significant changes to how CSE operates:

• The CSE was brought under a new statutory framework with publicly defined mandates, as set out in the new Communications Security Establishment Act.
• The signals intelligence mandate allows CSE to obtain information from various communications and computer systems.
• The cybersecurity mandate allows it to assist other government and non-government entities with cybersecurity matters and obtain information required to do so.
• The new law also includes controversial provisions that go beyond intelligence-gathering and protecting Canadian communications systems, allowing CSE to conduct cyberwarfare in certain circumstances. (CSE Act, s 18-19)
• Ministerial authorizations for surveillance require written requests from the CSE and can only be approved if a set of criteria are met.  (CSE Act, s 34(1))
• Ministerial authorizations are overseen by the Intelligence Commissioner, a new office created by the Intelligence Commissioner Act, and can only come into effect if the Commissioner concludes the Minister’s approval was “reasonable.”
• CSE activities cannot “[interfere] with the reasonable expectation of privacy of a Canadian or a person in Canada” unless specifically authorized to do so. (CSE Act, s 22(3)). The CSE Act does not specify whether Canadians have a reasonable expectation of privacy in metadata about their communications.
• CSE activities cannot violate other laws unless they are specifically authorized to do so (CSE Act, s 22(4)).
• A new review body, the National Security and Intelligence Review Agency (“NSIRA”), reviews the operations of CSE and can take complaints from the public, pursuant to the National Security and Intelligence Review Agency Act.

The new system is far from perfect. The powers given to Canada’s intelligence agencies are still incredibly broad, and the oversight and review bodies have limited authority and resources to do their jobs. However, it is still a vast improvement over the secrecy and unaccountable ministerial authorizations that were in place, and NSIRA has the potential to serve as a meaningful watchdog. The BCCLA will continue to push for additional limits and oversight on the broad spying powers available to CSE.

End of the Litigation and Public Release of Documents

The new legislation replaced the sections of the National Defence Act challenged by the BCCLA. Since the goals of the litigation had broadly been achieved, BCCLA withdrew the claims.

In addition to encouraging the government to reform its unaccountable surveillance regime, the BCCLA litigation will give Canadians a close look at what CSE has been doing in secret. Thanks to an access to information request by researcher Bill Robinson, almost all the documents produced by the government in the litigation can now be made public. The documents cover a wide range of subjects, from CSE operational handbooks to previously secret reports on breaches of privacy by the CSE. We will be releasing these never-before-seen documents in the coming weeks, along with another blog post providing context and highlighting some of the more interesting things we learned from the documents.

The BCCLA was represented by David Martin of Martin & Associates, Sebastian Ennis of Iris Legal, and Neil Abraham of Olthuis van Ert. The BCCLA was also represented by Joseph Arvay, O.C., O.B.C., Q.C.

Bill Robinson and Greg McMullen served as experts on the case.

1. https://www.cse-cst.gc.ca/en/culture-and-community/history/timeline
2. https://www.thestar.com/news/canada/2013/06/10/tories_deny_canadian_spy_agencies_are_targeting_canadians.html

The British Columbia Civil Liberties Association urges Mayor Ken Sim and Vancouver City Council not to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism.

The IHRA definition of antisemitism is extremely vague, open to misinterpretation, and the document states that it is “non-legally binding.” Not only is the text unsuitable for any legal or administrative purpose in British Columbia or Canada, but the accompanying “illustrations” suggest that the definition conflates certain critiques of the state of Israel with antisemitism. If implemented, the IHRA definition will serve to severely chill political expressions of criticism of Israel as well as support for Palestinian rights.

Read the Whole Letter

Join us in welcoming the new members of BCCLA team. Vibert and Ga will be joining us as our new Litigation director and Litigation Staff counsel. We are very excited to have them on board! Learn more about them below.

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Vibert Jack, Litigation Director

Vibert Jack joined the BCCLA as Litigation Director in 2022. He completed an undergraduate degree in engineering at the University of British Columbia and following that worked briefly in the mining industry. Vibert decided to change paths in order to find a career that better aligned with his core values. He returned to UBC, this time to study law. Following that, he articled at a boutique criminal and administrative law firm. Vibert then joined Prisoners’ Legal Services, where he worked tirelessly to defend the civil liberties and human rights of incarcerated people, who are among the most marginalized and vulnerable populations in our Country. Vibert is committed to confronting injustice at every opportunity.

Outside of work Vibert enjoys playing soccer, football, and an especially lively game of chess.

Ga Grant

Ga (she/her) joined the BCCLA as Staff Litigation Counsel in 2022. Ga brings four years experience in legal practice serving First Nations with a focus on Indigenous rights, litigation, and specific claims. Previously, Ga clerked with the BC Supreme Court, assisted with legal aid work on Gitxsan and Wet’suwet’en territories, and summered with government and a boutique litigation firm, among other community justice work. Ga holds her Juris Doctor from the University of Victoria following her Bachelor of Music from the University of Ottawa. 

Ga was called to law to find creative and strategic use of the colonial legal system as a tool for justice, practiced alongside a lens of decolonial engagement. Ga is a settler of immigrant Lebanese and Jewish-American descent. She grew up on the traditional territories of the Haudenosaunee and Anishinaabe peoples and for the past decade has lived between the territories of Skwxwú7mesh (Squamish), Səl̓ílwətaɬ (Tsleil-Waututh), xʷməθkwəy̓əm (Musqueam), lək̓ʷəŋən (Songhees and Esquimalt), and W̱SÁNEĆ (Saanich) peoples.

Ga is also a musician and singer-songwriter; she can often be found writing new ditties and hanging out with her cat.

The BCCLA condemns BC Attorney General David Eby for throwing human rights, civil liberties, and evidence under the bus by suggesting the state should be able to involuntarily detain and force treatment on people who use drugs. As a lawyer, Minister Eby knows that such a law would violate Charter rights. Section 7 of the Charter guarantees everyone the right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice. The right to decide what is done to one’s own body is essential.  Forced treatment of people who use drugs cannot be demonstrably justified in a free and democratic society. He also knows that just this Spring, his government abandoned a similar proposal to involuntarily treat youth because of  “the trauma associated with holding youth against their will, especially Indigenous youth.” Health experts know that the evidence does not support Eby’s dangerous musings; all evidence is clear that involuntary drug treatment can cause great harm – even death – and does not save lives. 

Minister Eby said involuntary care is needed to give people who use drugs a “chance” to survive. He is wrong and he knows it. What is needed is an end to the criminalization of drugs, a safe supply, and culturally safe, accessible, and voluntary treatment services for all.

This attempt to score political points for his leadership campaign is misleading, immoral, and reckless. But David Eby knows that too.