The federal solicitor general revealed yesterday Canada's spy agency has been granted unprecedented wiretapping powers over the last two years.
Andy Scott admitted the Canadian Security Intelligence Service has in some cases had authority to eavesdrop on people without judicial approval -- a practice blasted by a Federal Court Judge this week as unconstitutional.
Prominent criminal lawyer Clayton Ruby was flabbergasted CSIS had been handed the power to freely decide whom it could wiretap. "That's the hallmark of a police state", he said. "It's very serious."
CSIS requires a warrant approved by the court to electronically eavesdrop on a suspected terrorist or other person considered a threat to Canada.
But Scott said judges have in recent years allowed CSIS to tack a special clause onto such warrants that gives the spy agency leeway to eavesdrop on other suspects it discovers in midstream without returning to the court for permission, which presumably takes extra time and effort.
"I'm advised that this particular clasue has been used, and the courts have allowed it in the past", Scott said after question period in the House of Commons. "And I understand now that the court has decided that perhaps we should take another look at it."
In a decision released Monday, Federal Court Justice Donna McGillis rejected a recent CSIS proposal, approved by Scott, to include the special clause in warrants to investigate a particular security threat. No details of the case were revealed in the ruling.
The clause would permit CSIS to listen in on someone the service believed to be a threat to Canadian security.
In effect, it delegates to a CSIS employee powers normally held only by a federal judge, McGillis wrote.
"The proposed clause would vest in a service employee the discretion to apply the terms of the warrant against a person, without a judge ever scrutinizing the evidence to determine whether intrusive powers ought to be used against the individual."
Nothing in the CSIS Act allows such a move, which would be unconstitutional, she said, citing a 1990 Supreme Court of Canada decision.
Scott said government lawyers were reviewing the Federal Court ruling, and that he hoped to study it in detail today.
He acknowledged signing the CSIS proposal for expanded wiretap powers that McGillis rejected, suggesting he was told the request was nothing out of the ordinary.
"The clause in question, I'm advised, has been used over the last couple of years."
CSIS spokeswoman Marcia Wetherup confirmed the service had used the clause "numerous times" in investigations of foreign nationals visiting Canada.
Scott was appointed solicitor general in June, succeeding Herb Gray, who held the portfolio for more than three years.
Ruby harshly criticized the ministers and judges who have approved CSIS use of the clause.
"They must have all been asleep."