Federal Judge Grants CSIS Production Order for National Security Investigation

OUTCOME: Allowed

Date: 20260703 Docket: C-15-25 Citation: 2026 FC 897 Ottawa, [NAME], July 3, 2026 PRESENT: Mr. Justice Norris BETWEEN: IN THE MATTER OF AN APPLICATION FOR PRODUCTION ORDERS PURSUANT TO SECTIONS 12 AND 20.4 OF THE [NAME] , R.S.C., 1985, c. C-23

REASONS FOR

ORDER I. INTRODUCTION [ 1 ] On August 22, 2025, an employee of the [NAME] ([NAME] or the Service) applied in writing, without notice to any other party, for production orders under section 20.4 of the [NAME] , RSC 1985, c C-23 (the [NAME] or the Act). The Service was seeking the orders in connection with an investigation into a threat to the security of Canada under section 12 of the [NAME]. The application was supported by information on oath provided by the Service employee. [ 2 ] The application came before me as a judge [NAME] by the Chief Justice of the Federal Court for purposes of the [NAME]. In private hearings, I heard testimony from the Service employee and submissions from counsel for the Service. As a result of concerns I raised during the hearings, the Service ultimately narrowed its request to a single production order. [ 3 ] On the basis of the evidence and submissions presented in support of the application, I was satisfied that the application should be granted and that a production order should issue. I gave brief oral reasons at the time; however, I also indicated that, since this was the first time the Service had sought a production order, I would provide supplementary reasons addressing the requirements of section 20.4 of the Act generally. [ 4 ] These are those reasons. Since I have written them for publication, I have omitted any potentially sensitive information, including the nature of the threat to the security of Canada under investigation and the nature of the information, record or document whose production was being sought.

II. LEGISLATIVE CONTEXT [ 5 ] Among the responsibilities of the Service under the [NAME] is to investigate threats to the security of Canada. This responsibility is set out in section 12 of the Act: 12 (1) The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. 12 (1) [NAME] recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard. (2) For greater certainty, the Service may perform its duties and functions under subsection (1) within or outside Canada. (2) Il est entendu que [NAME] peut exercer les fonctions que le paragraphe (1) lui confère même à l’extérieur du Canada. [ 6 ] Section 2 of the Act defines “threats to the security of Canada” as (a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage, a) l’espionnage ou le sabotage visant le Canada ou préjudiciables à ses intérêts, ainsi que les activités tendant à favoriser ce genre d’espionnage ou de sabotage; (b) [NAME] influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person, b) les activités influencées par l’étranger qui touchent le Canada ou s’y déroulent et sont préjudiciables à ses intérêts, et qui sont d’une nature clandestine ou trompeuse ou comportent des menaces envers quiconque; (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a [NAME] state, and c) les activités qui touchent le Canada ou s’y déroulent et visent à favoriser l’usage de la violence grave ou de menaces de violence contre des personnes ou des biens dans le but d’atteindre un objectif politique, religieux ou idéologique au Canada ou dans un État étranger; (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada, d) les activités qui, par des actions cachées et illicites, visent à saper le régime de gouvernement constitutionnellement établi au Canada ou dont le but immédiat ou ultime est sa destruction ou son renversement, par la violence. but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). La présente définition ne vise toutefois pas les activités licites de défense d’une cause, de protestation ou de manifestation d’un désaccord qui n’ont aucun lien avec les activités mentionnées aux alinéas a) à d). [ 7 ] From time to time, in order to investigate a threat to the security of Canada, the Service requires judicial authorization to collect information. Generally speaking, judicial authorization is required when the collection of information by the Service would implicate a reasonable expectation of privacy in more than a minimally intrusive way: see X (Re) , 2017 FC 1047 at paras 218-219. [ 8 ] Section 21 of the Act sets out the general authority of a [NAME] judge to issue a warrant authorizing the Service to intercept communications or to obtain information, records, documents or things. In one form or another, this authority can be traced back to the creation of [NAME] in 1984. [ 9 ] In 2024, the [NAME] was amended to add section 20.4 (SC 2024, c 16, s 37). This provision permits the Service to apply for a production order in connection with an investigation into a threat to the security of Canada or the performance of its duties under section 16 of the Act: Production order Ordonnance de communication 20.4 (1) The Director or an employee who is [NAME] by the Minister for the purpose may, after having obtained the Minister’s approval, make an application to a judge for a production order under this section. 20.4 (1) Le [NAME] ou un [NAME] désigné à cette fin par le [NAME] peut, après avoir obtenu l’approbation du [NAME], demander à un [NAME] de rendre une ordonnance de communication en conformité avec le présent article. Making of order Délivrance de l’ordonnance (2) Despite any other law but subject to the Statistics Act , the judge may order a [NAME] to produce any information, record or document — regardless of medium or form — that is in their possession or control when they receive the order if the judge is satisfied by information on oath in Form 3 of Schedule 2 that there are reasonable grounds to believe that the information, record or document is in the [NAME]’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16. (2) Par dérogation à [NAME] autre règle de droit mais sous réserve de la Loi sur la statistique , [NAME] peut ordonner à [NAME] ou [NAME] entité de communiquer [NAME] information ou tout document — quel qu’en soit le support — qui sont en sa possession ou à sa disposition au moment où elle reçoit l’ordonnance, s’il est convaincu, par une dénonciation sous serment faite selon le formulaire 3 de l’annexe 2, qu’il existe des motifs raisonnables de croire que les informations ou documents sont en la possession de la [NAME] ou de l’entité, ou à sa disposition, et qu’ils aideront [NAME] à faire enquête, au Canada ou à l’extérieur du Canada, sur des menaces envers la sécurité du Canada ou à exercer les fonctions qui lui sont conférées en vertu de l’article 16. Form 4 Formulaire 4 (3) The order is to be made in Form 4 of Schedule 2. (3) L’ordonnance est rendue selon le formulaire 4 de l’annexe 2. Production outside Canada Communication de tout élément se trouvant à l’extérieur du Canada (4) The order may be made in respect of information, records or documents located outside Canada, with any modifications that the circumstances require. (4) L’ordonnance peut être rendue à l’égard de [NAME] information ou de tout document qui se trouve à l’extérieur du Canada, avec les adaptations nécessaires. Measures Mesures (5) The judge may include in the order any measure that they consider necessary in the [NAME] interest, including to ensure the confidentiality of the order. (5) [NAME] peut prévoir dans l’ordonnance [NAME] mesure qu’il estime nécessaire dans l’intérêt [NAME], notamment afin de garantir la confidentialité de l’ordonnance. [ 10 ] Section 20.4 describes the sorts of thing a [NAME] may be required to produce very broadly: “any information, record or document – regardless of medium or form.” For the sake of readability, in the discussion that follows, occasionally I will refer to what is being sought with a production order simply as “information” . [ 11 ] The application before me related to an investigation into a threat to the security of Canada under section 12 of the Act. As already noted, production orders are also available to assist the Service to perform its duties under section 16 of the Act, which are to assist the [NAME] or the [NAME], within Canada, in the collection of [NAME] information or intelligence. [ 12 ] Subsection 20.4(2) states that the information on oath in support of an application for a production order is to be provided in Form 3 of Schedule 2 to the Act. Under subsection 20.4(3), the production order is to be made in Form 4 of Schedule 2. These forms are included in Annexes A and B to these reasons, respectively. [ 13 ] Subsection 27(1) of the Act provides that an application for a production order shall be made ex parte and heard in private. [ 14 ] As set out in the Form 4 template, a production order includes a term setting the time by which the [NAME] who receives the order must produce the information specified in the order to the Service. A time lag between when the production order is served on the [NAME] and when they must produce the information specified in the order is necessary because, under section 20.5 of the Act, before they produce the information to the Service, the [NAME] may apply in writing to a [NAME] judge to revoke or vary the order. On such an application, the judge may revoke or vary the order if satisfied that (a) it is unreasonable in the circumstances to require the applicant to produce the information, record or document; or (b) production of the information, record or document would disclose information that is privileged or otherwise protected from disclosure by law ( [NAME] , subsection 20.5(4)). [ 15 ] A notice of intention to apply for an order revoking or varying a production order shall be in Form 5 of Schedule 2 ( [NAME] , subsection 20.5(2)). This form is included in Annex C to these reasons. Currently, such notice must be provided to a [NAME] judge and to a Service employee within 14 days after the day on which the order is served ( [NAME] , subsection 20.5(2)). [ 16 ] Recently, the government has proposed amendments to section 20.5, first in Bill C-2 and then in Bill C-22, both of which are currently still before Parliament. For our purposes, Bill C-22 supersedes the relevant parts of Bill C-2. If enacted, Bill C-22 would, among other things, shorten the time within which notice must be given of an intention to apply to revoke or vary a production order under section 20.5 from 14 days to 10 days.

III. DISCUSSION [ 17 ] I will first examine three aspects of section 20.4 of the Act: (a) the purpose of the provision; (b) the statutory requirements to obtain a production order; and (c) the [NAME] judge’s authority to include in the order any measure that they consider necessary in the [NAME] interest. Since these reasons relate to an application for production orders in the context of a section 12 investigation into a threat to national security, for the most part, the discussion that follows will be framed in these terms. I will then offer some brief comments on the duty of candour. I will conclude by addressing the potential participation of an amicus curiae in an application for a production order. A. The Purpose of Section 20.4 [ 18 ] Sections 20.4 and 20.5 were enacted by Bill C-70, An Act respecting countering [NAME] interference , 1st Sess., 44th Parl., 2024 (Royal Assent June 20, 2024). [ 19 ] While a production order is a new investigative power under the [NAME] , production orders have been a part of the Criminal Code (RSC 1985, c C-46) for over two decades now. The general power of a judge to issue an order requiring a person to produce a copy of a document that is in their possession or control when they receive the order – originally section 487.012 of the Criminal Code , now section 487.014 – was first enacted in 2004. The Criminal Code also provides for production orders to obtain specific kinds of information such as information identifying a device or person involved in the transmission of a communication (section 487.015), transmission data (section 487.016), tracking data (section 487.017), and financial data (section 487.018). These are more recent additions. Section 487.014 requires an applicant to meet a reasonable grounds to believe standard; the other provisions only require an applicant to meet a reasonable grounds to suspect standard (see R v [NAME] , 2024 SCC 6 at para 85). Under section 487.0193 of the Criminal Code , before they are required to produce information in response to a production order, the [NAME] [NAME] in the order may apply for an order revoking or varying the order. A judge may revoke or vary the production order if satisfied that, in the circumstances, it is unreasonable to require the applicant to produce the information being sought or production of the information would disclose information that is privileged or otherwise protected from disclosure by law. In 2017, Parliament enacted a distinct regime governing Criminal Code searches – including the use of production orders – relating to a journalist’s communications or to information in the possession of a journalist: see Criminal Code , section 488.01. [ 20 ] Other Five Eyes intelligence agencies also have access to powers similar to a production order under section 20.4 of the Act. For example, Title V of the [NAME] (50 USC 1801) establishes procedures for the government to apply for an order compelling certain businesses to release records in connection with a [NAME] intelligence or counterterrorism investigation by the Federal Bureau of Investigation. [ 21 ] Section 20.4 of the Act permits the Service to apply to a [NAME] judge for an order to compel a [NAME] to produce information that is in their possession or control when they receive the order. This is a more focused and limited authority to collect relevant information than the suite of powers typically sought under section 21 of the Act. Depending as it does on the [NAME] with possession or control of the information to retrieve it themselves and then turn it over to the Service, a production order can also be expected to be less intrusive than if the Service were to search for and seize the information itself. Two other search-related powers were added to the Act at the same time as section 20.4: preservation orders (section 20.3) and warrants to obtain any information, record, document or thing (sometimes referred to as a “single attempt” or “single use” warrant) (section 22.21). [ 22 ] In [NAME] statements, the government offered three main rationales for giving the Service these new search powers. First, the investigative tools granted to the Service in 1984 had become outdated because of technological changes since then. Second, the process for seeking a warrant under section 21 is complex and time consuming, meaning that valuable information could be lost before judicial authorization to collect it could be obtained. And third, having more tailored warrants for specific investigative techniques would allow for more timely and “tactical” applications to the Federal Court, especially early in a Service investigation. [ 23 ] At second reading of Bill C-70, the [NAME], [NAME], Democratic Institutions and Intergovernmental Affairs, explained that the amendments were intended to enable the Service to operate better in a digital world and to “increase [NAME]’s ability to be more agile and effective in investigations by introducing tailored warrants for specific investigative techniques” ( House of Commons Debates , 44-1, No 320 (May 29, 2024) at 1639 ([NAME])). Ms. [NAME], [NAME] Director General, [NAME], elaborated on these rationales in her testimony before the Standing Committee on [NAME] [NAME] and National Security. She explained that the new preservation, production, and search powers “would allow for much more tactical and regular approaches to the Federal Court earlier in investigations, and we anticipate that this could yield significant operational value and a much more nimble investigative posture” (House of Commons, Standing Committee on [NAME] [NAME] and National Security, Evidence , 44-1, No 109 (May 30, 2024) at 905 ([NAME])). [ 24 ] One of the reasons applications for warrants under section 21 of the Act are complex and time consuming is the need to provide evidence to satisfy paragraph 21(2)(b) – sometimes referred to as the investigative necessity requirement. Under this provision, an affidavit in support of a warrant application must depose that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures or that without a warrant under this section it is likely that information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16 referred to in paragraph (a) would not be obtained. [ 25 ] Under subsection 21(3), the judge before whom a warrant application is brought must be “satisfied of the matters referred to” in paragraph (2)(b) – in other words, they must be satisfied that the investigative necessity requirement is met – before they may issue a warrant. (To be precise, paragraph 2(b) sets out alternative requirements: investigative necessity in the strict sense that other methods have been tried and have failed or are unlikely to be successful or are impractical in the circumstances, and in the broader sense that important information would not be obtained without the powers sought ( [NAME] v Canada (Citizenship and Immigration) , 2017 FCA 157 at paras 269-270). Put another way, a warrant must be necessary in the senses mentioned in paragraph 2(b) but it need not be a last resort.) [ 26 ] Like paragraph 186(1)(b) of the Criminal Code , which provides that, apart from some limited exceptions, an authorization to intercept private communications by recording devices cannot be issued unless the court is satisfied that other investigative techniques have been tried and have failed or are unlikely to succeed or that the urgency of the matter is such that it would be impractical to use only other investigative techniques, the investigative necessity requirement in paragraph 21(2)(b) of the Act serves as a critical safeguard. This safeguard is required given the highly intrusive nature of the search powers that can be granted under section 21 (including the power to intercept communications), their broad reach (which can result in intrusions into the privacy interests of third parties who are not targeted by the national security investigation), and their duration (which can be for up to a year): see [NAME] ([NAME]) (Re) , 2021 FCA 92 at paras 124-126; see also, in the criminal investigation context, R v [NAME] , [1990] 1 SCR 30 at 45-46; R v [NAME] , [1990] 2 SCR 1421 at 1444-1445; R v [NAME] , 2000 SCC 65 at paras 21-35; and R v [NAME] , 2003 SCC 60 at paras 53-54. [ 27 ] Before Bill C-70 was introduced, a [NAME] [NAME] Canada consultation paper had suggested that having to meet the investigative necessity requirement under section 21 regardless of the type of investigative technique to be employed and its level of intrusiveness hindered the Service’s ability to obtain timely warrant powers: see “Enhancing measures to counter [NAME] interference: Whether to amend the [NAME] ” (November 24, 2023). Bill C-70 sought to solve this problem by not including an investigative necessity requirement for obtaining a production order (or the other new powers introduced at the same time). This decision reflects Parliament’s acceptance that a production order is less intrusive on privacy interests than the powers granted under section 21 – whether they be the privacy interests of the subject of the investigation or those of third parties – given that it is highly targeted and limited to the information, records or documents specified in the order. [ 28 ] Even so, section 20.4 guards against potential overbreadth and arbitrary intrusions upon privacy interests in six ways. [ 29 ] First, before seeking a production order, the Service must consult with the [NAME] and must obtain approval from the [NAME] to make an application ( [NAME] , subsections 7(2.2) and 20.4(1)). [ 30 ] Second, a production order requires prior judicial authorization. [ 31 ] Third, judicial authorization must be obtained on a reasonable grounds to believe standard. I will discuss this aspect of section 20.4 further below in connection with the statutory requirements. [ 32 ] Fourth, subsection 20.4(2) provides that a [NAME] judge “may order” a [NAME] to produce information, records or documents in their possession if satisfied that the statutory requirements are met. In other words, whether to grant the order, and upon what terms, remains a matter of judicial discretion, even if the statutory requirements are met. [ 33 ] Fifth, the [NAME] judge may include in the order “any measure that they consider necessary in the [NAME] interest” ( [NAME] , subsection 20.4(5)). As I will also discuss below, such measures can address potential concerns about the impact of a production order on privacy interests, among other things. [ 34 ] Finally, the [NAME] served with a production order has the right to apply to revoke or vary the order before having to comply with it. This is an important check on the potential intrusiveness of the power granted to the Service under section 20.4 that is not available under section 21. (As described above, production orders under the Criminal Code can be challenged in a similar way and on the same grounds.) [ 35 ] To develop the last point a little more, as the Federal Court of Appeal has observed, in most cases, the [NAME] judge hearing a warrant application under section 21 “will be the only check on state power since the target of the warrant cannot rely on the adversarial process to test the assertions made by the Service” ( [NAME] ([NAME]) (Re) , at para 126). The right under section 20.5 to seek an order revoking or varying a production order is a limited but important exception to this inherent limitation in the judicial authorization process in the national security context. Even though the target of the investigation must remain unaware of the fact that the Service is seeking information relating to them, the [NAME] with possession or control of the information is given the opportunity, should they wish to do so, to test the assertions made by the Service and to raise any other relevant concerns before they must comply with the order. As mentioned above, the [NAME] judge hearing an application to revoke or vary a production order may grant the application if satisfied that it is unreasonable in the circumstances to require the [NAME] to produce the information or if production of the information would disclose information that is privileged or otherwise protected from disclosure by law. B. Statutory Requirements [ 36 ] Counsel for the Service submits, and I agree, that a Service employee seeking a production order in the context of an investigation under section 12 of the [NAME] must demonstrate three things on the basis of the reasonable grounds to believe standard: a) a threat to the security of Canada under section 2 of the Act exists; b) the information, record or document being sought is in the possession or control of a [NAME]; and c) the information, record or document will assist in the investigation of the threat. [ 37 ] If satisfied by information on oath that there are reasonable grounds to believe these three things, the [NAME] judge may order a [NAME] to produce to the Service the information, record or document specified in the order ( [NAME] , subsection 20.4(2)). [ 38 ] If the production order is sought in relation to the Service’s duties and functions under section 16 of the Act, the statutory requirements would be adjusted accordingly. While it is not necessary to establish the existence of a threat to the security of Canada, the Service would still have to establish on a reasonable grounds to believe standard that the information being sought is in the possession or control of a [NAME] and, further, that having access to the information will assist the Service to perform its duties and functions under section 16. [ 39 ] There is no question that a production order engages a reasonable expectation of privacy and, as a result, attracts the protections of section 8 of the Canadian Charter of Rights and Freedoms. Indeed, by enacting section 20.4, Parliament must be taken to have accepted that requiring a [NAME] to produce information in its possession or control to the Service will intrude upon reasonable expectations of privacy in more than a minimal way. Granting the Service access to the information is an intrusion upon the privacy interests of the target of the investigation to whom the information relates. And requiring a [NAME] to produce the information is an intrusion upon their privacy interests as well, at least to the extent that their right to be left alone by the state has been interfered with. [ 40 ] Section 8 of the Charter states that “[e]veryone has the right to be secure against unreasonable search or seizure.” Its purpose “is to protect individuals from unjustified state intrusions upon their privacy” ( [NAME] v [COMPANY] , [1984] 2 SCR 145 at 160). Section 8 “is concerned with preventing state intrusions on an individual’s reasonable expectation of privacy, not with validating them after the fact” ( R v [NAME] , 2026 SCC 8 at para 36; see also [NAME] , at para 88). It does this by providing a framework for balancing an individual’s interest in being left alone against the legitimate needs of the state ( [NAME] v [COMPANY] , at 159-160). Generally, “the proper balancing of these interests requires that there be a system of prior authorization through the issuance of a warrant by a decision maker capable of balancing the interests at stake and acting judicially” ( [NAME] , at para 38). This requirement of prior judicial authorization is built into the [NAME] , originally in section 21 and now in the new search powers as well. Obviously, this was a deliberate choice on the part of Parliament. Why Parliament made this choice can be traced, at least in part, to the events that led to the creation of [NAME] itself: see [NAME] v Canada , [1988] 1 FC 107 at 139 ([NAME]). [ 41 ] The standard for a search power to withstand scrutiny under section 8 varies depending on the context ( R v [NAME] , 2006 SCC 15 at para 35). Reasonable suspicion can be constitutionally sufficient to support less intrusive searches; more intrusive searches will engage “the more exacting reasonable and probable grounds standard” ( R v [NAME] , 2013 SCC 49 at paras 24 and 28). [ 42 ] Parliament adopted the reasonable grounds to believe standard for an application for a production order, presumably recognizing the potential intrusiveness of even a precisely targeted production order. On the other hand, it adopted the less exacting standard of reasonable grounds to suspect in relation to a preservation order under subsection 20.3 of the Act, presumably because such orders were judged to intrude less upon reasonable expectations of privacy. [ 43 ] In conjunction with the requirement of prior judicial authorization, the reasonable grounds to believe standard promotes the goal of preventing state action that arbitrarily intrudes on a reasonable expectation of privacy in at least three ways. [ 44 ] First, the subjective element – that the Service employee believes on reasonable grounds   – helps ensure that state agents turn their mind to the requirements of the law and personally be satisfied that those requirements are met before any intrusive action is taken.

Accordingly, the Service employee must set out their belief that the statutory requirements are met in the information on oath supporting the application: see Form 3 in Annex A to these Reasons. This requirement that a state agent consciously advert to the scope and limits of their investigative powers before exercising them reinforces the purpose of prior judicial authorization, which is to prevent unlawful intrusions before they occur. This principle is well established in the context of criminal investigations: see, for example, R v Storrey , [1990] 1 SCR 241 at 250-251 (concerning police powers of arrest); and R v Caslake , [1998] 1 SCR 51 at paras 19-21 (concerning searches incident to arrest). It applies equally to national security investigations given their potential to intrude upon reasonable expectations of privacy. [ 45 ] Second, the balancing of interests must be done on an objective standard ( [NAME] v [COMPANY] , at 166-67). “The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them” ( [NAME] v [COMPANY] , at 167).

Accordingly, the Service employee’s beliefs “must be grounded in objective facts” ( [NAME] , at para 27) and they must be justified from an objective point of view ( [NAME] , at 251). Discussing the reasonable suspicion standard in [NAME] , the Supreme Court held that it “derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances” (at para 26). All this could also be said about the reasonable grounds to believe standard. The requirement of objective and ascertainable facts as the basis for reasonable belief permits meaningful review by the [NAME] judge when determining whether to grant the power sought. This independent review is another critical protection against arbitrary state action before it occurs. [ 46 ] Third, what must be established is not merely a possibility but a probability. It is well established that “reasonable grounds” connotes “reasonable and probable grounds” ( [NAME] v Canada , [1993] 1 SCR 416, at 446-447) – in other words, that the standard to be met in order to establish reasonable grounds for a search is reasonable probability. If the information relied on in support of an application for a production order reasonably supports only a possibility that something is the case, and not a probability that it is so, this would only amount to a reasonable suspicion, not reasonable grounds to believe, and would be insufficient to satisfy subsection 20.4(2) of the Act. As [NAME] J observed in [NAME] v [COMPANY] , a standard based merely on suspicion would “authorize fishing expeditions of considerable latitude” and “would tip the balance strongly in favour of the state” (at 167). Reasonable grounds to believe does not require proof on a balance of probabilities. Nevertheless, by engaging probabilities rather than possibilities, it is a higher standard than reasonable suspicion ( [NAME] , at para 27; see also R v [NAME] , 2008 SCC 18 at para 75 ( per [NAME]) and paras 164-169 ( per [NAME], dissenting, but not on this point)). In sum, to use the familiar language of [NAME] v [COMPANY] (at 167), by incorporating the reasonable grounds to believe standard into subsection 20.4(2), Parliament determined that it is only at the point where credibly-based probability has been demonstrated that the state’s interest in using a production order to investigate a threat to the security of Canada begins to prevail over an individual’s interest in being left alone, whether that individual is the [NAME] with possession or control of the information being sought, or the target of the investigation. [ 47 ] Returning to the statutory requirements set out above, an objectively ascertainable state of affairs underlies the first requirement – that a threat to the security of Canada exists. While the nature of the threat can make this more difficult to establish in some cases than in others, information or intelligence available to the Service employee can provide an objective basis to believe that there is a probability that the threat exists. The sworn information in support of the production order application must set out the basis for the employee’s belief. This evidence, together with any evidence adduced at the private hearing, allows the [NAME] judge to determine whether, in fact, that belief is reasonable. [ 48 ] What underlies the second requirement – that the information, record or document is in the possession or control of a [NAME] – is also an objectively ascertainable state of affairs. As with the first requirement, information or intelligence available to the Service employee can provide an objective basis to believe – and for the [NAME] judge to be satisfied in light of all the evidence – that there is a reasonable probability that the information being sought is in the possession or control of the [NAME] [NAME] in the order. [ 49 ] The third requirement – that the information, record or document being sought will assist the Service to investigate the threat to the security of Canada – is less a state of affairs and more a matter of the potential value of the information to the Service. Situated as it is under the reasonable grounds to believe standard, to meet this requirement, the Service employee must establish an objective probability that the information the Service seeks will assist its investigation into the threat to the security of Canada it has identified. One way to do this would be for the sworn information to provide a reasoned explanation – grounded in the nature of the information, the nature of the threat, and the nature of the Service’s investigation into that threat – of how having access to the information will advance its investigation into the threat. Again, it is not necessary to establish this on a balance of probabilities. On the other hand, purely speculative or hypothetical possibilities will not suffice. C. Measures in the [NAME] [ 50 ] As mentioned above, subsection 20.4(5) of the Act provides that the [NAME] judge “may include in the order any measure that they consider necessary in the [NAME] interest, including to ensure the confidentiality of the order.” This provision confers a broad power on the [NAME] judge that can be tailored to the particular circumstances of an application. I will highlight four circumstances in which a [NAME] judge may consider that a measure under subsection 20.4(5) is necessary in the [NAME] interest. The discussion that follows is not intended to be exhaustive. [ 51 ] Looking first at measures to ensure the confidentiality of the order, it is obvious that, in most if not all cases, exposing the Service’s interest in a particular target to the target could risk compromising its investigation, which would be contrary to the [NAME] interest: see Canada (Attorney General) v [NAME] , 2014 FC 1050 at para 50. While it is not an express statutory requirement, as a matter of common sense, it may be presumed that the [NAME] [NAME] in the production order is not the target of the Service investigation.

Accordingly, Parliament expressly recognized the importance of ensuring the confidentiality of the order. As a matter of sound investigative practice, it should generally be the Service itself that controls when and under what circumstances others may learn about its operational activities, especially while they are ongoing. A measure ordered under subsection 20.4(5) could thus promote the [NAME] interest by prohibiting the [NAME] who receives a production order from disclosing its existence except to the extent necessary to comply with the order or to apply to have it revoked or varied. [ 52 ] Second, as discussed above, a production order is a targeted investigative power that is limited to the information, documents or records specified in the order. Nevertheless, whether as a result of a mistake by the [NAME] [NAME] in the order, as a result of the information being sought having been comingled with other information, or for some other reason, information that does not relate to the matter under investigation could be produced to the Service in response to a production order. In such circumstances, it would be incumbent on the Service under section 12 of the Act to destroy that information. In the exercise of their discretion, a [NAME] judge could also consider that it was necessary in the [NAME] interest to include a measure obliging the Service to destroy any unrelated information, records or documents within a specific period of time. This could also be an effective way to address any concerns about overbreadth that may be inherent in the nature of the information being sought or that arise from some other circumstance. [ 53 ] Third, as we have seen, paragraph 20.5(4)(b) provides that a [NAME] judge may revoke or vary a production order if satisfied that production of the information “would disclose information that is privileged or otherwise protected from disclosure by law.” Despite this safeguard, the [NAME] judge who issues the production order may nevertheless consider that it is necessary in the [NAME] interest to include a measure obliging the Service to cease reviewing any information, record or document provided in response to a production order as soon as it appears that it may contain privileged or protected information – for example, information protected by solicitor-client or litigation privilege – and to refrain from further review except as authorized by the Court. This would enhance the safeguarding of such information by not leaving its protection contingent on the [NAME] with possession or control of the information having applied for an order under section 20.5 of the Act. [ 54 ] Fourth, as under the Criminal Code , whether to issue a production order under section 20.4 is a discretionary determination. As mentioned above, a [NAME] judge may decline to make the order even if the statutory requirements are met. In the criminal context, in deciding whether to exercise their discretion in favour of granting a search power like a production order, a judge or justice must consider all the circumstances ( [COMPANY] v Lessard , [1991] 3 SCR 421 at 445; R v [COMPANY] , 2018 SCC 53 at para 82). Relevant circumstances include the place from which the information is to be obtained and the impact of the order on the constitutional rights of the [NAME] [NAME] in the order, the target of the investigation, and the [NAME]. Some circumstances will require a judge to consider whether additional conditions to minimize the impact of the order on protected interests should be included. This principle, which is grounded in the Charter section 8 reasonableness requirement, is particularly well developed in the context of police searches of the news media: see, among other decisions, Lessard ; [COMPANY] v New Brunswick (Attorney General) , [1991] 3 SCR 459; R v [NAME] , 2010 SCC 16; and [NAME] . [ 55 ] In the context of Service investigations into threats to the security of Canada, section 8 of the Charter also obliges the [NAME] judge to consider all of the circumstances in deciding whether to grant the order being sought and, if so, upon what conditions. For example, a production order could be directed at what policies governing Service operational activities describe as Canadian Fundamental Institutions. These include religious institutions, academia, trade unions, government and political institutions, and the media. Without a doubt, information, records or documents in the possession or control of such entities could be particularly sensitive and their seizure by the Service could implicate a range of Charter -protected interests, even if the entities themselves are not the targets of an investigation. When such an institution is [NAME] in a production order, the [NAME] judge may consider it necessary in the [NAME] interest to include measures to minimize the impact of the order on the activities and interests of the institution. [ 56 ] In sum, apart from measures to ensure the confidentiality of the order, which serve a different [NAME] interest, measures imposed under subsection 20.4(5) can help to ensure that the use of a production order in a particular set of circumstances is within the limits of the law, including the requirements of section 8 of the Charter . D. The Duty of Candour [ 57 ] A party seeking ex parte relief from a court is subject to duty of candour. This “exceptional duty . . . mitigates against the obvious risk of injustice inherent in a one-party hearing” ( Canada (Commissioner of Competition) v [NAME] , 2026 FCA 64 at para 61). [ 58 ] Much has been written about the duty of candour in the context of applications by the Service for warrants or other forms of judicial authorization: see, in particular, [NAME] ([NAME]) (Re) , at paras 120-133. There is no need for me to repeat that discussion or add to it other than to state the obvious. Like any ex parte application, an application for a production order under section 20.4 engages the duty of candour on the part of the Service employee who seeks the order, on the part of other Service employees who provide information or other assistance to that employee in connection with the application, and on the part of the Department of Justice counsel who represents the Service on the application. [ 59 ] In the present case, both the Service employee who provided the sworn information in support of the application and the Department of Justice counsel who appeared on the application demonstrated a comprehensive understanding of their respective duties and diligence in ensuring those duties were met. I have no hesitation in saying that all the requirements of the duty of candour were satisfied here. E. The Potential Participation of an Amicus Curiae [ 60 ] Depending on the specific circumstances of an application for a production order, the [NAME] judge may find it to be in the interests of justice to appoint an amicus curiae . [ADDRESS]’s authority to appoint an amicus flows from its inherent jurisdiction to manage its own process and to function as a court of law so as to ensure a fair proceeding and the just adjudication of a matter ( R v [NAME] , 2023 SCC 20 at paras 36-39; [NAME] v [COMPANY] , 2013 SCC 43 at para 46; [NAME] v [NAME]) , 2020 FC 731 at paras 37-40). [ 61 ] As has been mentioned several times already, an application for a production order must proceed ex parte. Consequently, the usual benefits of an adversarial hearing in which all interested parties participate may be lost ( [NAME] ([NAME]) (Re) , at para 122; [NAME] , at paras 51-52; [NAME] v Canada (Citizenship and Immigration) , 2007 SCC 9 at paras 48-52). In a given case, a [NAME] judge may therefore consider it appropriate to appoint an amicus to assist them in the discharge of their responsibilities under the Act. For example, the legal or factual issues arising in the application may be such that the [NAME] judge would benefit from the participation of an amicus who could, among other things, cross-examine the Service’s witnesses and provide submissions on points of law. The specific responsibilities of the amicus would be determined in light of the circumstances of the application before the Court, including the exigencies of the investigation to which the application relates. [ 62 ] In the present case, I was satisfied that the assistance of an amicus was not required.

IV.

CONCLUSION [ 63 ] For the reasons provided at the hearing of this application, and as elaborated upon here, I was satisfied that the requirements of section 20.4 of the Act were met and that a production order should issue. “John Norris” Judge ANNEX “A” FORM 3 (Subsection 20.4(2)) Application to Obtain a Production Order (Court File No.) FEDERAL COURT IN THE MATTER OF an application by ( Name ) for a production order under section ( 12 or 16 ) and subsection 20.4(2) of the [NAME] , R.S.C. 1985, c. C-23 AND IN THE MATTER OF ( Subject ) This is the information of ……….. ( name of Director or [NAME] employee ), of (“the applicant”). The applicant says that they have reasonable grounds to believe that ( specify the information, record or document ) is in the possession or control of ( name of the [NAME] ) and that it will assist the [NAME] to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16 of the [NAME] . The applicant says that they have obtained the approval of the [NAME] and [NAME] to make this application. The reasonable grounds are: The applicant therefore requests that ( name of the [NAME] ) be ordered to produce ( specify the information, record or document ) that is in their possession or control when they receive the order. Sworn before me on ( date ), at ( place ). ( Signature of applicant ) ( Signature of commissioner for taking oaths ) ----------------------------------------- FORMULAIRE 3 (paragraphe 20.4(2)) Demande en vue d’obtenir une ordonnance de communication ( No du dossier de la Cour ) COUR FÉDÉRALE DANS L’AFFAIRE d’une demande d’ordonnance de communication présentée par ( préciser le nom ) en vertu de l’article ( 12 ou 16 ) et du paragraphe 20.4(2) de la Loi sur [NAME] canadien du renseignement de sécurité , L.R.C. (1985), ch. C-23 ET DANS L’AFFAIRE VISANT ( préciser ) La présente constitue la dénonciation de ……….. ( nom du [NAME] ou de l’[NAME] désigné ), de line blanc, ci-après appelé(e) « le [NAME] ». Le [NAME] déclare qu’il a des motifs raisonnables de croire que ( préciser les informations ou documents ) sont en la possession de ( nom de la [NAME] ou de l’entité ) ou à sa disposition et qu’ils(elles) aideront [NAME] canadien du renseignement de sécurité à faire enquête, au Canada ou à l’extérieur du Canada, sur des menaces envers la sécurité du Canada ou à exercer les fonctions qui lui sont conférées en vertu de l’article 16 de la Loi sur [NAME] canadien du renseignement de sécurité . Le [NAME] déclare avoir obtenu l’approbation du [NAME] de la Sécurité publique et de la Protection civile afin de présenter cette demande. Les motifs raisonnables sont les suivants : En conséquence, le [NAME] demande qu’il soit ordonné à ( nom de la [NAME] ou de l’entité ) de communiquer ( préciser les informations ou documents ) qui sont en sa possession ou à sa disposition au moment où il ou elle reçoit l’ordonnance. Fait sous serment devant moi ce ( date ), à ( lieu ). ( Signature du [NAME] ) ( Signature du commissaire aux serments ) ANNEX “B” FORM 4 (Subsection 20.4(3)) Production Order (Court File No.) FEDERAL COURT IN THE MATTER OF an application by ( Name ) for a production order under section ( 12 or 16 ) and subsection 20.4(2) of the [NAME] , R.S.C. 1985, c. C-23 AND IN THE MATTER OF ( Subject ) To ( name of [NAME] ), of : Whereas I am satisfied by information on oath of ( name of Director or [NAME] employee ), of ……….., that there are reasonable grounds to believe that ( specify the information, record or document ) is in your possession or control and that it will assist the [NAME] to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16 of the [NAME] . Therefore, you are ordered to produce ( specify the information, record or document ) that is in your possession or control when you receive this order. The ( specify the information, record or document ) must be produced to the Director or an employee of the Service in accordance with that person’s instructions, within ( time ) and in ( form ). You have the right to apply to revoke or vary this order in accordance with section 20.5 of that Act. Dated ( date ), at ( place ). ( Signature of judge ) ----------------------------------------- FORMULAIRE 4 (paragraphe 20.4(3)) Ordonnance de communication (N o du dossier de la Cour) COUR FÉDÉRALE DANS L’AFFAIRE d’une demande d’ordonnance de communication présentée par ( préciser le nom ) en vertu de l’article ( 12 ou 16 ) et du paragraphe 20.4(2) de la Loi sur [NAME] canadien du renseignement de sécurité , L.R.C. (1985), ch. C-23 ET DANS L’AFFAIRE VISANT ( préciser ) À ( nom de la [NAME] ou de l’entité ), de : Attendu que je suis convaincu, en me fondant sur une dénonciation sous serment par ( nom du [NAME] ou de l’[NAME] désigné ), de ………., qu’il existe des motifs raisonnables de croire que ( préciser les informations ou documents ) sont en votre possession ou à votre disposition et qu’ils(elles) aideront [NAME] canadien du renseignement de sécurité à faire enquête, au Canada ou à l’extérieur du Canada, sur des menaces envers la sécurité du Canada ou à exercer les fonctions qui lui sont conférées en vertu de l’article 16 de la Loi sur [NAME] canadien du renseignement de sécurité . En conséquence, vous êtes tenu(e) de communiquer ( préciser les informations ou documents ) précisé(e)s qui sont en votre possession ou à votre disposition au moment où vous recevez la présente ordonnance. Les ( préciser les informations ou documents ) doivent être communiqué(e)s au [NAME] du Service ou à un [NAME] du Service conformément à ses instructions, dans un délai de ( indiquer le délai ) et présenté(s) ( indiquer la forme ). Vous avez le droit de demander la révocation ou la modification de la présente ordonnance conformément à l’article 20.5 de cette loi. Fait le ( date ), à ( lieu ). ( Signature du [NAME] ) ANNEX “C” FORM 5 (Subsection 20.5(2)) Notice — Application for Revocation or Variation of a Production Order (Court File No. — to match Production Order) FEDERAL COURT IN THE MATTER OF an application by ( Name ) for the revocation or variation of a production order under section 20.5 of the [NAME] , R.S.C. 1985, c. C-23 NOTICE This is a notice that ( name of [NAME] [NAME] in the order ) (“the applicant”) intends to apply to the Federal Court for the revocation or variation of the production order made on ( date ) and served on the applicant on ( date ). A copy of this notice has been provided to an employee of the [NAME] on ( date ). The applicant intends to file the application for revocation or variation on or before ( date ), the date by which the applicant must comply with the production order. Dated ( date ), at ( place ). ( Signature of applicant ) ----------------------------------------- FORMULAIRE 5 (paragraphe 20.5(2)) Préavis — demande de révocation ou de modification d’une ordonnance de communication (N o du dossier de la Cour — correspondant à celui de l’ordonnance de communication) COUR FÉDÉRALE DANS L’AFFAIRE d’une demande de révocation ou de modification d’une ordonnance de communication présentée par ( préciser le nom ) en vertu de l’article 20.5 de la Loi sur [NAME] canadien du renseignement de sécurité , L.R.C. (1985), ch. C-23 PRÉAVIS La présente constitue un préavis de l’intention de ( nom de la [NAME] ou de l’entité visée par l’ordonnance ), ci-après appelé(e) « le [NAME] », de demander la révocation ou la modification de l’ordonnance de communication rendue le ( date ) et lui ayant été signifiée le ( date ). Une copie de ce préavis a été fournie à un [NAME] du Service canadien du renseignement de sécurité le ( date ). Le [NAME] a l’intention de déposer une demande de révocation ou de modification d’ici le ( date ), soit la date à laquelle il est tenu de se conformer à l’ordonnance de communication. Fait le ( date ), à ( lieu ). ( Signature du [NAME] ) FEDERAL COURT SOLICITORS OF RECORD DOCKET: C-15-25 STYLE OF CAUSE: IN THE MATTER OF AN APPLICATION FOR JUDICIAL AUTHORIZATION PURSUANT TO SECTION 20.4 (1) OF THE [NAME] , R.S.C., 1985, c. C-23 PLACE OF HEARING: Ottawa, [NAME] OF HEARING: September 19, 2025 AND October 10, 2025

REASONS FOR

ORDER: NORRIS J. DATED: July 3, 2026 APPEARANCES : [NAME] [NAME] SOLICITORS OF RECORD : Attorney General of Canada Ottawa, [NAME] [NAME]