Section 273.65 of the National Defence Act: Inappropriate and Unconstitutional

Abstract

After six short weeks of debate, Bill C-36, The Anti-terrorism Act,1 passed into law on 28 November 2001. Bill C-36 was Parliament’s formal legislative response to the terrorist attacks upon the U.S. on September 11. Among other things, Bill C-36 amended the National Defence Act2 to grant the Minister of National Defence, in place of a judge, the power to authorize the Communications Security Establishment (CSE) to intercept private communications for the purpose of obtaining foreign intelligence under section 273.65. The CSE’s mandate includes acquiring and providing foreign signals intelligence.3 In this article, I argue that this amendment to the National Defence Act abolished an essential safeguard to arbitrary state actions and likely violates section 8 of the Canadian Charter of Rights and Freedoms.4 The eventual removal of section 273.65 from the National Defence Act would uphold the long-standing, appropriate, and constitutional doctrine that the power to authorize agents of the state to intercept private communications rests solely with the judiciary.