Foreign-influenced Canadian politicians: The legal issues

Cross-referencing: NSL, ch. 10, pp. 421 et seq.

The Globe and Mail, reporting on a CBC story, writes this morning that "[a]t least two provincial cabinet ministers and a number other government officials and employees are under the control of foreign countries as part of espionage schemes".  This information stems from a CBC interview with CSIS director Richard Fadden, who is quoted in the story as saying "[w]e’re in fact a bit worried in a couple of provinces that we have an indication there are some political figures who have developed quite an attachment to foreign countries.”  The news story then reports that CSIS regards the unnamed provincial Cabinet ministers as "agents of influence" or "secret supporters."

 

These revelations are rightly regarded as surprising, perhaps not so much for the actual facts alleged as for the fact that they have been publicly alleged by CSIS.  No doubt further details will emerge on what may be a percolating scandal. 

[ADDENDUM: Several hours after this post was written, CSIS Director Fadden reportedly retracted his remarks, saying:  “Recent comments I made in the context of a special report by the CBC
on CSIS have given rise to some concerns about foreign interference in
Canada. The following statement is meant to place those comments in
context ... I have not apprised the Privy Council Office of the
cases I mentioned in the interview on CBC ... [A]t this point,
CSIS has not deemed the cases to be of sufficient concern to bring them
to the attention of provincial authorities ... There will be no further comments on these operational matters.” What exactly is happening is extremely murky, given this retraction.]

At this point, it is worth canvassing briefly the legal issues raised by this matter.

CSIS Investigations

Investigating "agents of influence" or "secret supporters" is properly within CSIS's core section 12 mandate.  That mandate requires the Service to "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". 

"Threats to the security of Canada" include, among other things, "(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," and  "(b) foreign 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". 

In his CBC interview, Director Fadden indicates that CSIS may investigate "anyone" (presumably, an underlying assumption being that the investigation lies with CSIS's mandate).  This is true, although there is some obvious nuance impossible to convey in a television interview.  First, investigation is "to the extent strictly necessary" and where there "are reasonable grounds" to suspect the threat to the security of Canada. As discussed in NSL, p.83, these words mean something, and a CSIS investigation cannot be commenced on a whim.

Second, the techniques of investigation may require independent blessing.  As soon as we are in the realm of invasions of constitutionally protected privacy rights, the warrant requirements under the CSIS Act are triggered, and warrants are approved (if at all), first, by a delegate of the minister of public safety and then by a Federal Court judge.

Third, it seems likely that investigations into politicians falls into an investigation of a "sensitive sector" of the sort that may require notice to the minister under the ministerial directions governing CSIS.  Since I do not have copies of the existing directives, I cannot be sure of that, but it would certainly be irksome to the federal minister and his or her boss, the Prime Minister, to be surprised by tardy notice of a CSIS investigation into provincial-level politicians. [ADDENDUM: Given the retraction today, one wonders if there was in fact some irking being done at the Prime Minister's Office.]

When do you call the RCMP?

The more interesting issue is when a CSIS investigation morphs into a criminal investigation.  CSIS is not a law enforcement body.  (The CBC story makes this point, specifying that CSIS officers don't "usually" carry guns, the implication being that they sometimes do carry guns.  I question if they can ever carry guns (at least in Canada) in conducting official business, but that's another research issue.)

At some point, a CSIS investigation into "agents of influence" or "secret supporters" may become a criminal matter, and the issue becomes a RCMP responsibility under the Security Offences Act.

At issue, then, is what crimes might be at issue.  A first point: having sympathies for a foreign government is not, and should not be, a crime.  If it were, most politicians would be in jail for their various predispositions.  Something more manifest that bias is required. 

Here are some plausible candidates, if we are talking about active spying for a foreign government:

 

 

 

 

 

 

 

 

 



























Offence

Criminalized
Acts


Treason[1]

While
in Canada (or in the case of a Canadian citizen, while in or outside Canada),
among other things, discloses without authorization to a foreign agent
military or scientific evidence that may be used for a purpose prejudicial to
the safety or defence of Canada.



Foreign-influenced
acts or threats of violence
[2]

At
the direction of, for the benefit of or in association with a foreign entity,
induces or attempts to induce, by threat, accusation, menace or violence, any
person to do anything or to cause anything to be done


·      
that is for the purpose of
increasing the capacity of a foreign entity to harm Canadian interests [a
defined term]; or 


·      
that is
reasonably likely to harm Canadian interests.


Reconnaissance
for a foreign power
[3]

 For any purpose prejudicial to the
safety or interests of the State, approaches, inspects, passes over, is in
the neighbourhood of or enters a prohibited place at the direction of, for
the benefit of or in association with a foreign entity.”


Information
the government is “taking measures to safeguard”


Without lawful authority, communicates to a foreign entity or
terrorist group information
while believing (or
reckless as to whether) that information is safeguarded and in order to
increase the capacity of that foreign entity or terrorist group to do harm to
Canadian interests
[4]
Without lawful authority, communicates to a foreign entity or to
a terrorist group information
while believing (or
reckless as to whether) that information is safeguarded and
harm to Canadian
interests results
[5]

Trade
secret
[6]

 

 

 

 

 

 

 

At the direction of, for
the benefit of or in association with a foreign economic entity, fraudulently
and without colour of right, communicates a trade secret to another person or
organization or obtains, retains, alters or destroys a trade secret “to the
detriment of” Canada’s economic interests,
international relations or national defence or national security

 

 

 


Given that we may not be talking about actual espionage so much as corrupted exercises of power in favour of a foreign power, the offences in the Criminal Code dealing with such things as breach of public trust and influence peddling may also be relevant.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Section 119 prohibits the
actual or attempted bribing of members of
, among other things,
provincial legislatures, imposing penalties of up to fourteen years imprisonment
upon conviction for both the briber and the recipient.
The bribe can be
in the form of money, valuable consideration, office, place or employment. 

Other provisions apply to
“officials,” a term defined broadly to include all those who hold a government
office or who are appointed to “discharge a public duty.”  Section 122 makes fraud or “breach of
trust” committed in connection with an official’s duties a crime with a maximum
punishment of five years imprisonment. 

The Criminal Code also makes so-called influence peddling by public
officials a crime attracting a penalty of up to five years imprisonment. Put
simply, influence peddling under section 121 is the selling, or offering to
sell influence with the government for a fee. The Criminal Code provision applies to anyone who makes (and any
official who accepts) an offer to sell influence, whether or not the official
actually has the power to influence a government decision.

Also of note, provincial and perhaps municipal conflict of interest rules might be violated by "agent of influence" activities.

Conclusion

In sum, the assertions made by Director Fadden, if true, could trigger a host of rarely invoked criminal law provisions.  Even so, it seems unlikely such cases would come to trial.  First, as the summary of offences above suggests, it would take quite egregious behaviour for the agent of influence to transgress the existing criminal threshold.  Second, any trial would inevitably raise the prospect of "graymail" -- the commonplace concern associated with trying spies in court.  That is, trying spies for espionage means putting in the public domain spy-catching tactics and techniques.

 


 

 

 


 

 

 

 

 

[1]             Criminal Code, s.46.

 

 

 

 

 

[2]             Security of Information Act, R.S.C.
1985, c. O-5, s. 20.

 

 

 

 

 

[3]             SOIA,
s. 6.

 

 

 

 

 

[4]             SOIA, s. 16.

 

 

 

 

 

[5]             Ibid.

 

 

 

 

 

[6]             Ibid s.19.