Federal Court (Canada) Justice James O’Reilly’s topic of choice for this year’s McLaughlin Public Policy Lecture, which took place Jan. 22 at the Keele campus, drew a full house.
In his lecture titled, “Overseeing CISS: The Federal Court’s Role”, O’Reilly provided a rare view of the Federal Court of Canada in national security. A capacity crowd turned out for the lecture, which was held in the McLaughlin Junior Common Room.
O’Reilly’s lecture outlined, in some detail, the little known role of the Federal Court (Canada) in overseeing the work of the Canadian Security Intelligence Service (CSIS). He also provided a glimpse into the arcane world of security intelligence, the administration of the CSIS Act, designated judges who are appointed to deal specifically with national security matters and national security matters (designated proceedings) that are delegated by law to the Federal Court. He explained the issuance of “investigative warrants” to CSIS and provided an overview of recent pertinent legal issues and jurisprudence from the Federal Court. His public policy lecture gave the audience numerous insights into how the court has dealt with the “nature of the threat to Canada’s security.”
The little known and even less studied aspect of the work of the Federal Court in holding CSIS to account for its work in the opaque and clandestine world of intelligence, counter-intelligence, and the ultra-secrecy of national security enthralled the audience. At the same time and in equal measure, O’Reilly explained the inordinate challenges and demands of judges in applying and interpreting the law to national security intelligence, which is intended to protect all Canadian citizens and other persons in Canada.
Only a small number of justices are designated, exclusively by the Chief Justice of the Federal Court (Canada), to serve in this oversight capacity for CSIS. These individuals are on call 24/7. “Designated proceedings” with all the relevant parties present are held in special facilities. Some matters are decided by a designated judge, while others are heard “en banc.” Wherever possible, judgments and reasons are made public with the appropriate segments and sections redacted in the interest of national security. O’Reilly said that a certain amount of “secrecy” is an inevitable aspect of these proceedings.
The role of the judiciary in national security, national defence and international affairs is little known, appreciated or studied. In particular, the interception of foreign communications outside Canada that may have national security implications raises serious legal and public policy concerns. The question of the full disclosure of the Communications Security Establishment Canada’s (CSEC) operational relationship with CSIS raises important legal and public policy concerns. O’Reilly alluded to a public agency’s “duty of candor” before the courts and how such matters may make ineluctably their way up the judicial hierarchy to the Supreme Court of Canada in the near future.
With files from Professor James Simeon, director of the School of Public Policy & Administration in the Faculty of Liberal Arts & Professional Studies