There are now three lawsuits in Canadian courts related to the Communications Security Establishment Canada’s intercept of metadata. These are:
- BC Civil Liberties Association’s action for a declaration in BC Superior Courtalleging that CSEC’s intercept activities violate sections 8 and 2 of the Charter.
- BCCLA’s class action in Federal Court, brought “in order for those persons whose private communications and/or metadata have been intercepted to have access to remedies under s.24 of the Charter once the issues of the unconstitutionality of the impugned provisions, Authorizations and Directives are resolved in the [BC Supreme Court] Declaratory Action”.
- Canadian Civil Liberties Association (CCLA)’s application for a declaration in Ontario Superior Courtthat sections 7 and 8 of the Charter are violated by those provisions in the FederalPersonal Information and Protection of Electronic Documents Act(PIPEDA) that permit government agencies (including, it is alleged, CSEC) to obtain personal information from Canadian telecommunications companies with prior judicial authorization.
These cases overlap. The BCCLA class action is intended to be derivative of its BC Superior Court declaratory action. The CCLA case seems likely to engage the question of a person’s reasonable expectation of privacy of metadata in the possession of third party telecommunications providers. That question must inevitably also arise in the BCCLA declaratory action.
If you track surveillance and national security issues in North America you know that litigation of these issues has been ongoing and active in the United States. An oft-heard critique of Canada has been ‘where is the litigation?’ As Craig Forcese notes, there are a series of important actions ongoing in Canada that may significantly affect how our signal intelligence agency conducts its business on behalf of Canadians.