Protecting Rights in the digital Age: The Application of the Charter in Cyberspace

Since the swift passage of the Anti-Terrorism Act (Bill C-51) in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take “reasonable and proportionate” measures — often referred to as “threat reduction measures”—to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms (Charter) so long as they are judicially authorized by a judge of the Federal Court of Canada. As new threats and threat actors proliferate online, it is anticipated that CSIS will increasingly carry out its threat reduction mandate in the digital world. Yet, in June 2018, CSIS’s former review body, the Security Intelligence Review Committee, reported that CSIS had never sought a threat reduction warrant from the Federal Court. What remains unclear is why. Is it possible that CSIS has never employed a measure that might violate someone’s freedom of association, expression, or mobility rights, or their right to liberty and personal security protected under the Charter? Or has CSIS concluded that the Charter does not govern actions carried out in cyberspace and, as such, that their online conduct falls beyond the reach and oversight of the Federal Court? Unfortunately, Canadian Courts have never been asked, and legal academics have never answered whether the Charter constrains online state action. The Department of Justice and CSIS have also never publicly enunciated their legal position on this subject. To date, the government’s interpretation of the Charter’s application to state cyber operations remains classified. This dissertation dissects these issues for the first time and ultimately concludes that the Charter governs state conduct in cyberspace.

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