There's an old problem Canada's new foreign-interference law won't fix
When it comes to using intelligence to prosecute crimes, U.S. and Canada are a world apart
To understand Canada's failure to criminally prosecute foreign collusion, an old news report from Washington offers a useful starting point.
In 1981, a Canadian correspondent made an observation: when it came to using security intelligence in policing, Canada and the U.S. were diverging onto opposite paths.
The Americans were ramping up, while Canadians were dialling down. The legacy of that era lingers to this day in an ongoing Ottawa scandal. And it's unclear how much will change under a soon-to-be-enacted law.
Some Canadians might have been startled by a report earlier this month that politicians wittingly, and unwittingly, collaborated with foreign governments, getting campaign help and even receiving foreign donations.
The shocked did not include one intelligence veteran in Canada who worked closely with multiple U.S. agencies and has seen the night-and-day difference in how police in each country use surveillance.
"It wasn't a surprise to us," said Scott McGregor, a military and police intelligence official who recently co-authored a book on Chinese interference in Canada. "This information has been around for a number of years."
The 'intelligence-to-evidence problem'
After the bombshell parliamentary report, the RCMP issued a lengthy statement that announced it was investigating. But in the next breath, it acknowledged serious roadblocks to investigating.
For starters, police get limited access to intelligence. The Mounties confirmed they'd been unaware of some details in that report.
There's a striking example on Page 29: An Indian proxy allegedly claimed to have repeatedly transferred funds from India to Canadian politicians at all levels of government in exchange for political favours, like promoting certain issues in Parliament. Canada's security-intelligence service had this information and did not share it with the RCMP, said the report.
The report and the Mounties both cited other obstacles. Even if police had seen the intelligence, using it in a trial is another, more complicated, story.
The foreign-interference legislation that just passed Parliament, Bill C-70, doesn't solve this problem. Two former heads of the Canadian Security Intelligence Service agree on that point.
While parts of the legislation might prove useful, Ward Elcock and Richard Fadden both told CBC News, attempts to prosecute will keep bumping into unresolved constitutional challenges.
"That can be a killer [for criminal cases]," Elcock said.
There's even an industry acronym for this issue, says a former CSIS analyst, who describes it as a core factor in Canada's struggle to prosecute national-security cases.
"We all call it the intelligence-to-evidence problem — I2E," said Stephanie Carvin, now an associate professor at Carleton University's Norman Paterson School of International Affairs.
A fork in the road: 1981
Carvin identified the early 1980s as an inflection point.
At the time, the U.S. was just emerging from a post-Watergate era, in which its intelligence services had been marred by scandal and disrepute. President Ronald Reagan signed executive orders and multiple national-security directives that encouraged intelligence agencies to co-operate with police.
Meanwhile in Canada, a multi-year inquiry found the RCMP had engaged in inexcusable and illegal behaviour while conducting intelligence work: burning a barn, opening mail, breaking-and-entering and stealing a political party's member data.
The government of that era had turned a blind eye to such activity, which was, in part, a reaction to the 1970 Quebec terrorist crisis.
When the inquiry report came out, Pierre Trudeau's government accepted its key recommendation, stripping the RCMP of its security-intelligence role and handing it to a new civilian agency, CSIS.
The man who led CSIS as it was being created candidly admitted he had no intelligence experience. This was seen as a positive.
"I'm a neophyte," Fred Gibson, previously a low-profile civil servant, told The Toronto Star in 1981.
To this day, Canada does not have a separate foreign-intelligence service like the CIA or Britain's MI6; CSIS serves the domestic-security role played by the FBI or Britain's MI5.
Getting information back to the RCMP has its challenges.
Intelligence services are understandably wary of having secrets spill out. For example, Carvin said applications for a CSIS warrant might be 50 pages long and loaded with details that could get sources killed.
Those applications are not public, but if they're to be used in a criminal case, they must be scrutinized in a more public setting.
In court: 'That's where these cases fall apart'
Defence lawyers have a right to learn how a warrant was obtained, and can challenge it on constitutional grounds, a right entrenched in a 1990 Supreme Court decision.
If CSIS can't satisfy the court, the information from the wiretaps is tossed out, Carvin said.
"CSIS is basically going to have to come into court and be like, 'Yeah, we got this from [our informant] Sarah, and Sarah's gonna be killed by the Russians,'" Carvin said. "And that's usually where these cases fall apart."
She points to one failed case, involving Canadian military shipbuilding secrets being sent to China. Following a years-long dispute over communications intercepted from the Chinese embassy in Ottawa, the charges were dropped.
McGregor recalled how former police colleagues would actively recoil from accessing intelligence. To them, it was likelier to hurt their case than help.
"I've brought information to the RCMP and have them say, 'Don't say anything, because it'll taint the case,'" McGregor said. "It happened more than once."
He compares that to what he's seen from international peers. He worked frequently with Five Eyes civilian and military agencies during his career in counterterrorism, narcotics, money-laundering and piracy, in his roles with Canada's military, the RCMP and the B.C. government, in the Middle East and in North America.
A local U.S. police force, for example, might want to wiretap a drug gang. It could get funding for the operation from the U.S. Drug Enforcement Administration, then share its findings with the DEA, which is enmeshed in the broader U.S. intelligence community.
"The United States understands intelligence," McGregor said. "In Canada, law enforcement doesn't have the same comprehension of what intelligence is."
It's no surprise, he said, that U.S. intelligence drove several of the highest-profile national security cases involving Canada.
Through U.S. cases, Canadians learned details of the alleged Indian government-directed killings of Sikh nationalists on Canadian soil; of Iranian intelligence allegedly hiring Canadians to conduct assassinations in the U.S.; of a crackdown on a so-called Chinese police station in New York that had some Canadian connections.
U.S. intelligence powers expand after 9/11
Even in the arrest of a top RCMP official who co-ordinated the force's use of intelligence, there was a U.S. role.
It was an arrest in Washington state that broke open the case against Cameron Ortis, the former director general of the RCMP's National Intelligence Coordination Centre, who now faces 14 years in prison for leaking state secrets, pending an appeal.
"A significant percentage of our cases start with U.S. intelligence," Carvin said. "They have more agencies, more people, and … they put resources into this."
This accelerated after the terrorist attacks of Sept. 11, 2001, which led to a torrent of changes in U.S. law, said Benjamin Wittes, a fellow at the Brookings Institution and founder of the Lawfare blog.
Post-2001 reforms expanded the use of intelligence in U.S. policing with the Patriot Act, follow-up legislation and related court cases. An inquiry into the attacks found that foreign-focused intelligence agencies and the domestic-focused FBI communicated poorly, and subsequent reforms not only further integrated their work, but made it easier to get a surveillance warrant.
As Canada opened public consultations for what's now Bill C-70, the federal government said it was considering reforming how intelligence is used as criminal evidence.
But the bill, which just passed the Senate this week and will become law, does little on that front.
Criminalizing collusion
C-70 does other things. Agents of foreign countries will have to sign onto a public registry in Canada, as they do in the U.S., U.K. and Australia.
In addition, it will be a crime to collude with a foreign government — potentially punishable by a life sentence. Collusion is defined as someone engaging in deceptive conduct, at the direction of a foreign government, to influence a Canadian political process like legislation, a party nomination or an election platform.
Carvin calls the failure to resolve the so-called I2E problem a major disappointment.
"I do understand why the RCMP is frustrated," she said. "Until we fix this, we can pass as many laws as we want. But we're never going to be able to prosecute the way we should."
Former CSIS director Fadden said he spent years trying to crack this problem. He retains hope politicians might yet write a law that achieves two contradictory goals: letting defendants access intelligence as per their constitutional right, while keeping the details secret.
In Elcock's view, the only ways to resolve this issue are reforming the Constitution, or the courts setting new legal precedents.
Until then, he said, prosecuting cases using intelligence will remain more difficult in Canada than in allied countries, like the U.S., and the U.K., which have different constitutional realities.
"You can't simply wish this problem away," he said.
ABOUT THE AUTHOR
