Canada

Bill C-59 Flowcharts: Revised and Expanded

Once more unto the breach...

Bill C-59 will hopefully, finally, soon (?) inch its way to the senate committee, after second reading (still underway) in the senate. I confess, I am looking at the parliamentary calendar and starting to feel a bit nervous. As readers of this blog or listerners to "A Podcast Called INTREPID" will know, I do not embrace every aspect of C-59. But I think it a vital bill -- and a vast improvement on the status quo -- measured on both accountability and security grounds.  And in its absence, that status quo will oblige a number of public interest groups to reignite their various court challenges. (If I were the government, I'd be worried about at least some of those challenges.) And watchdog entities like SIRC will have to continue issuing reports saying CSIS is in non-compliance with its current laws (in relation to datasets) and the CSE commissioner will be obliged to continue its decade-long complaints about statutory ambiguities. None of this is sustainable. And meanwhile, our security services would have all the powers and competencies necessary for the analog era. So this is an important law project.

But it is also important for people to understand what is in this complicated bill. I have reached my 20th year as a lawyer, and I continue to believe the most important thing I ever learned in law school is how to reduce a complicated area of law to a decision-tree flow chart. Unless you can make those boxes in the flow chart connect, you are missing something, or the law is missing something. So I continue to make such charts and devices, usually for my personal understanding.

In the event, however, that my labours are useful to others, I post my revised and expanded bill C-59 flowcharts. These now do two things: 1. They outline how CSE's new mandate powers will operate, and the checks and balances on those. 2. They show how CSIS's security intelligence, threat reduction, foreign intelligence and "dataset" (bulk data collection and retention) regimes will work (and the checks and balances on those), if C-59 becomes law.

I have done my best *not* to make mistakes, and have shared these charts with knowledgeable people who have made helpful comments. But caveat emptor -- there will be glitches. Also, there are areas where provisions may be interpreted differently. I have tried to flag those areas where I know others have a different take -- that provides evidence either that I am idiosyncratic or that the provision in question is ambiguous. And then I have also flagged areas where I have concerns that I know I am not alone in having. (Those are in the red boxes.)  Here, I feel danger lies, as these uncertainties could be tomorrow's controversies.

If anyone spies any errors, please let me know.

Revised C-59 Flow Charts:

1. CSE Manadates (as of Senate first reading)

2. CSIS Powers (as of Senate first reading)

Canada's Foreign Intelligence Desert

The recent flare-up in relations between Canada and the Kingdom of Saudi Arabia (KSA) places into sudden relief the challenges in Canada's foreign intelligence architecture. It follows hard on the heels of a Federal Court decision affirming the Canadian Security Intelligence Service (CSIS) can only collect foreign intelligence "within Canada". That case is discussed at length here and on Episode 48 of A Podcast Called INTREPID.

Just to be clear: CSIS may investigate threats to the security of Canada anywhere. "Threats to the security of Canada" are espionage, sabotage, foreign influenced activity (within or relating to Canada, and detrimental to Canada), terrorism and (in principle) subversion (in practice, CSIS has not run a counter-subversion program since the 1980s).

"Security intelligence" is *not* intelligence on the foreign, economic or defence policy or posture of another country, unless it falls within one of the categories listed above. Rather, these broader classes of information are "foreign intelligence" (defined, obliquely, in the CSIS Act as: "intelligence relating to the capabilities, intentions or activities of [foreigners or foreign states or groups]").

Canada's electronic intelligence service, the Communications Security Establishment (CSE), has the mandate to collect foreign intelligence, anywhere. But it does so electronically, through the "global information infrastructure" (defined in the National Defence Act as including "electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks"). CSE does not collect HUMINT (intelligence from human sources).

For its part, Global Affairs Canada does collect diplomatic information, but is not per se an intelligence service. The scope of its collection activities is not well-documented and murky to an outsider like me. It is my understanding that GAC's Associate Deputy Minister for “International Security” manages a “threat assessment and intelligence services division” and that GAC possesses a Global Security Reporting Program (GSRP). My assumption, though, is that GAC will not run confidential sources, for a host of reasons.

In its reported form, the KSA spat is not a security intelligence matter -- unless you count that terrible, threatening tweet picturing an Air Canada jet flying toward the Toronto skyline. But understanding what is going on in KSA is clearly of foreign intelligence interest.

I would assume Global Affairs is feeding diplomatic intelligence into the decision-making process. I assume CSE is involved in signals intelligence. But beyond what Global Affairs is doing through its diplomatic networks, no Canadian intelligence agency can collect information from confidential sources outside of Canada on "the capabilities, intentions or activities of" the KSA.

This is a different sort of "gap" than the one at issue in the recent Federal Court case (which seemingly dealt with footloose communications, not extraterritorial confidential human sources). And it is a gap of longstanding duration, regularly discussed every decade or so.

We have muddled through so far with no human foreign intelligence service because of our minor footprint in foreign relations and because of close, allied relations.

But those allied relations are not what they used to be. I have precisely zero confidence that non-security intelligence sharing with the United Kingdom or the United States on a matter like the KSA is done in Canada's interest, rather than the interests of the UK and US. And that means intelligence-sharing may be selective. And even if it is not currently selective, it could well be selective in the future. We do not control the spigots.

Should we?

Creating an enhanced human foreign intelligence capacity is no small thing. In the past, I expressed considerable skepticism it was worth the risk, or that we could pull it off without starving more important activities of resources.

But the geopolitical situation is more complicated now than at any time since the Second World War, with a move toward multipolarity rather than the near-unipolarity of the post-Cold War and the bipolarity of the Cold War. States may realign in keeping with Viscount Palmerston's old adage that a state has no permanent friends or permanent enemies, just permanent interests.

It is not clear to me that Canada knows what its permanent interests are -- even (what for me is the unambiguous) need to remain a permanent friend of the United States is under strain among the commenting class.

But we may also not have the tools to preserve those permanent interests, anyway. If revisionist states see Canada as the runt of the Western litter and as a low-cost place for target-practice, a better understanding of the world seems wise. I am, therefore, no longer sure that building an enhanced foreign intelligence capacity is just one of those shiny baubles, distracting from more important things.

How to do this is another question. (It would be useful to know, for example, what exactly GAC does in this space rather than treat it as a black box.)

These are all questions now worth serious study.


Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.

Intelligence Swords and Shields in Canadian Law

Speaking Notes (February 2018)

(Posted with permission)

 “Caught between the Scylla and Charybdis…

 -          Sting, “Wrapped Around Your Finger”

What I’ve been asked to do is step back and imagine how intelligence intersects with evidence, producing swords and shields in Canadian law.

Let me start with two, high-level observations, providing a working definition of “evidence” and of “intelligence”.  First, evidence is legally-cognizable information material to the exercise of law enforcement powers and judicial decision-making. Intelligence, in comparison, is a more fluid category of information, designed to “extract certainty from uncertainty and to facilitate coherent decision in an incoherent environment.”[1]

Intelligence may include evidence, but it will also include information that is not evidence. There are two obvious reasons for this fact.

First, intelligence may cover matters that cannot be the subject matter of a legal proceeding, and therefore there need never be consideration of its evidential value. I would hazard that this is the traditional view of intelligence.

But second, increasingly, there are instances where the information collected as intelligence is probative of matters amenable to legal proceedings, but other things stand in the way of it being evidence.

For one thing, “intelligence” is a diffuse concept that can sit poorly with the concept of “evidence”. As the Ontario Court of Appeal noted, discussing intelligence supplied by foreign services, intelligence is often “unsourced, uncircumstanced,” and its provenance “unknown”.[i]  But not always.

And so I will focus mostly on this issue of how different sorts of intelligence overlay the concept of evidence and produce intelligence-to-evidence dilemmas.

I2E Issues

Intelligence-to-Evidence, or I2E, is the inelegant phrase we use to describe several discrete types of issues. This first is the movement of intelligence procured by intelligence services to police, to support law enforcement investigations. I shall call this the actionable-intelligence issue.

Ample actionable-intelligence is an ingredient of successful security – a point made in the 2010 Air India inquiry, by the 9/11 commission and recently affirmed in the UK context by David Anderson’s study of security services’ performance in relation to the 2017 terror attacks in that country.

But actionable-intelligence sharing is closely linked to a second, closely-related component of I2E: something that I shall call the evidentiary-intelligence issue. And evidentiary-intelligence has two aspects. This first I will call the evidentiary-intelligence sword. The evidentiary-intelligence sword problem relates to the use of intelligence in legal proceedings, to justify state action. The second, much better-canvassed issue in Canada is the evidentiary-intelligence shield problem. And here, I am talking about legal tools used to block disclosure of intelligence in court proceedings.

Typology of Intelligence

Before exploring this triumvirate of issues more fully, though, I need to propose a more detailed breakdown of intelligence.

 1.     Direct Surveillance or Raw Intelligence

Some raw intelligence should be easily cognizable as evidence, in principle. Communications metadata collected under a CSIS warrant should, in principle, be no different than that obtained by police under a transmission data order.

Still, even conventionally-collected intelligence may be difficult to use as evidence, not because of its nature but rather because of what its disclosure or deployment in a legal proceeding would do to the sources, means and methods used to collect it.

A second use issue may stem from the complicated provenance of some raw intelligence. For example, raw intelligence may be secured from the battlefield in Syria or Iraq. That information may be relevant and material to the participation of an accused in Daesh, as it has been in the UK. But use of records acquired through unorthodox intelligence channels raises issues of reliability, and especially concerns about whether they are genuine or not.

2.     Confidential Source Intelligence

Intelligence may be procured from confidential sources, including informants. Intelligence services balk at sources appearing in court and so some legal proceedings permit indirect use of confidential source intelligence.

In the immigration security certificate context, CSIS has used information acquired through confidential sources, communicated through the proxy of an intelligence officer. Even so, the Federal Court has affirmed it (and special advocates) must nevertheless be able “to effectively test the credibility and reliability of that information” and source.[ii]

3.     Processed Analytical Intelligence      

Some intelligence stems from the application of analytical judgment. An intelligence report may not include raw intercepts, but rather summaries of them. Or it may piece together different sources of raw information to draw intelligence conclusions.

Whether with primary materials referenced or conclusions left to stand on their own and omitting these primary sources, analytical workproduct of this sort may be very hard to use as evidence of the facts it asserts. It necessarily raises concerns about probative value, opinion evidence and hearsay.

This is especially true if the processed intelligence amounts to stacked hearsay: a report summarizing information supplied in other, shared reports (especially by another service), that in turn summarize information supplied in other reports, and so on.

Use of this sort of information is permissible in some legal proceedings. For example, the affidavits sworn to obtain both CSIS and Criminal Code warrants may include hearsay,[iii] including intelligence-based allegations.[iv]

Hearsay may also be used in immigration security certificate proceedings, if the Federal Court judge regards it as “reliable and appropriate”.[v] But even in administrative proceedings, hearsay may diminish the weight given to this processed analytical intelligence, and raise questions about procedural fairness.[vi]

4.     Torture Intelligence

Whether in raw or processed form, it is not possible to use as evidence in any proceeding over which Parliament has jurisdiction “any statement obtained as a result” of torture criminalized in section 269.1 of the Criminal Code.[vii] The Charter, international law and ministerial directions issued to CSIS and other security and intelligence services also preclude such use.

5.     Caveated Intelligence

Intelligence shared between services include caveats, limiting the use to which the shared intelligence can be put. Honouring these caveats often means declining to disclose it, including disclose it in legal proceedings. Caveats are not a legal rule, but are an essential intelligence practice, and therefore are frequently at issue in evidentiary-intelligence shield disputes.

Caveats are especially important as between foreign partners, because of the risk that failure to honour a caveat will jeopardize future information-sharing.

I2E Dilemmas

All this brings me to the practical I2E dilemmas. The short version: CSIS is acutely concerned that disclosure in judicial proceedings of its intelligence will prejudice its sources, means and methods and impair its intelligence-sharing relationship with foreign partners. The government responds in three manners, two legal and one operational.

1. Legal Swords in Closed Courts

As suggested above, intelligence may be used as evidence in special, closed-court proceedings. And that list may expand: the government has proposed the use of classified information in closed civil proceedings, modelled on the UK system devised in the Justice and Security Act, 2013.

2. Legal Shields in Open Courts

Legally, the evidentiary-intelligence shield problem drives special procedures used to protect intelligence from disclosure in legal proceedings, most notably section 38 of the Canada Evidence Act. Section 38 questions concern sensitive intelligence that might be subject to disclosure in proceedings, if not for successful invocation of this national security privilege.

3. Operational Shields

Operationally, the evidentiary-intelligence shield issue provokes complicated choreography between police and CSIS, designed to minimize the prospect that CSIS will be subjected to full Stinchcombe disclosure in any trial, and/or will need to resort to the Canada Evidence Act. To this end, CSIS stays at arm’s length from police investigations, taking advantage of O’Connor third-party status rules. It also meters out the intelligence it shares with police, using carefully-crafted disclosure and advisory letters.  This minimizes disclosure risk, but at the cost of close inter-agency collaboration and potentially nimble responses to terrorism risks.

In this manner, evidentiary-intelligence shield problems are in acute tension with the needs of actionable intelligence sharing. They reinforce a relationship between police and CSIS that strives to maintain investigative arm’s-length, dependent on separate, parallel investigations touching gently through deconfliction protocols.

This is dangerous security. Kent Roach at the University of Toronto and I have argued that safeguards provoked by evidentiary-intelligence shield concerns are suboptimal in terms of ensuring actionable-intelligence sharing, and therefore public safety.

Reform

One response, detailed in a forthcoming paper by Leah West Sherriff, is to minimize the amount of intelligence that needs to be shielded. In its consultation document, the government proposed codifying an O’Connor process for a CSIS third party status. The would provide legislative certainty and predictability. But of course, it can only be done constitutionally if CSIS remains a third party. And so, the effect would be to entrench the parallel investigation, with its consequences for actionable-intelligence sharing.

Maintaining third-party status becomes less essential if CSIS is more comfortable with disclosure.  And so on the operational side, in my paper, I have pointed to MI5’s practice in the United Kingdom to urge CSIS should be collecting intelligence to “evidential standards” in counter-terrorism investigations.

The core idea behind “collection to evidential standards” is not to convert CSIS into the police, whose purpose becomes law enforcement. “Collection to evidential standards” should instead be regarded as short-hand for “collection of intelligence in a manner that facilitates actionable-intelligence sharing and minimizes reliance on evidentiary-intelligence shields”.

I am engaged in a slow motion thought experiment about what this might mean in practice, one that is terribly disconnected from the real world because I have no access to classified information. And I have also started working through a list of more particular I2E solutions responsive to different policy challenges in a longer paper.  

For my purposes today, I shall end my initial remarks with the simple observations: collecting to evidential standards obliges careful, forward-thinking choreography so that pursuing intelligence objectives does not end up trenching on the evidential prospects in the case.  That is an organizational challenge, and the degree to which it is being met is something I cannot judge from the outside.  My sense is, however, that most recognize it as an unresolved challenge.

 


 


[1]              Richard Betts, Enemies of Intelligence: Knowledge and Power in American National Security (Columbia, NY: Columbia University Press, 2007) at 30.

[i]               France v. Diab, 2014 ONCA 374 at para. 205.

[ii]               Harkat (Re), 2009 FC 1050 at para 48. See also Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 at para. 88 (“The Minister has no obligation to produce CSIS human sources as witnesses, although the failure to do so may weaken the probative value of his evidence”) and para. 90 (noting that “the designated judge's weighing of the relevant [source] evidence took into account the fact that it was hearsay”).

[iii]              See Eccles v Bourque, [1975] 2 SCR 739 at 746 (“That this information was hearsay does not exclude it from establishing probable cause”, in an arrest context); R. v. Morris (1999), 134 C.C.C. (3d) 539 at 549 (NS CA) (“Hearsay statements of an informant can provide reasonable and probable grounds to justify a search.”; R. v. Philpott, 2002 CanLII 25164 (ON SC) at para. 40 (“The [warrant] issuing court may consider hearsay evidence obtained by the affiant from other officers or informants.”).

[iv]              For instance, the CSIS affidavit sworn as Federal Court file CSIS 15-12 (sworn in relation to Raed Jasser) specifies at para 6: “The information in this affidavit has been conveyed to me by employees of the Service who are, or were, involved in the Service’s investigation of international Islamist terrorism and through a review of relevant records maintained by the Service. The information was obtained through various sources including government agencies, open information, as well as [redacted] associated with international Islamist terrorism.” (The affidavit is supported by exhibits, fully redacted.) Likewise, the affidavit PPSC Number 1-12-073 (concerning Raed Jaser) relies on information conveyed in, e.g., letters from the FBI.

[v]               IRPA, s. 83(1)(h). Almrei (Re), 2009 FC 3 at para. 53 (This section “permits the reception of hearsay evidence such as that which may be provided by a confidential informant or a foreign intelligence service.”). See also Harkat, 2014 SCC 37 at para. 75.

[vi]              See, eg, Harkat, 2014 SCC 37 at paras 76 and 235 (suggesting judges are able under the security certificate process to “exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person.”); Mahjoub (Re), 2013 FC 1097 at para. 130 et seq. (concluding that hearsay evidence may be admissible in security certificates, but must be tested for reliability and appropriateness); Zundel (Re), 2004 CF 1308 at para. 25 (indicating in a security certificate context that “hearsay evidence is given less weight”).

[vii]             Criminal Code, s.269.1(4). This requirement is supplemented in the immigration security certificate context: “reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.” IRPA, s. 83(1.1).

 

Updated: A listener's guide to C-59

The Parliamentary process on bill C-59, the largest overhaul of Canadian national security law since 1984, is well underway.  You can find the proceedings in front of the House of Commons Standing Committee on National Security and Public Safety here.

Lots of people have written primers. Kent Roach and I did a basic early assessment here.  And I posted a meditation here. I have posted two "decision-tree" schematics, one on the new CSE powers and other on CSIS datasets.  The written notes to my committee appearance are here.

But for those following along with A Podcast Called INTREPID, Stephanie Carvin and I have been getting into the weeds. And we finally got through the whole bill! So here is a Listener's Guide to Bill C-59:

  • Episode 3: The Challenge of Watching Watchers: bill C-59's new "review" body, the National Security and Intelligence Review Agency.
  • Episode 6: Commissioner, Minister, Lawyer, Spy: bill C-59's fix to CSE's current (very) constitutionally-suspect system of foreign intelligence and cybersecurity activities implicating Canadian private communication or metadata. (We did not discuss how we haven't quite fixed the problem but could with a few words of amemdment. See here. I think I have been persuaded that my one-word fix may fix the a constitutional problem and create an operational problem. So I have a different, five or six word fix that I presented to the committee here.)  This podcast also discusses new powers for CSIS to receive and analyze and retain information not tied only to threats to the security of Canada. (Feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 8: The Legal Pile-One, the No-Fly Glitch, and the Police Probe: includes a discussion of Canada's creaky no-fly list and how C-59 fixes it in part, but still fails to resolve it in full.
  • Episode 9: Cyber-Cyber-Bang-Bang: discusses C-59's considerable expansion of CSE's mandate to include offensive and defensive cyber.  (Again, feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 10: The first thing we do, let's disrupt all the lawyers: discusses C-59 and CSIS threat reduction powers and what changes and what doesn't.  And discusses new criminal immunity powers for CSIS sources (and officers) doing intelligence work and the checks and balances. (Please keep shaking that head if people try to tell you this bill doesn't offer anything to the security services).
  • Episode 12: The SCISA in the Limit (on Information-Sharing): C-59 and the Security of Canada Information Sharing Act, focusing on the tension between the ready flow of information and privacy.
  • Episode 14: Locking Them Up: We foocus on the Criminal Code amendments: the parts of C-59 that can involve locking people up or otherwise constraining their liberty. They discussing changes to the bill C-51 speech crime and also "preventive detention" and "peace bonds" as well as the terrorism group listing process.

Hope some of this helps!

A Listener's Guide to Bill C-59

Bill C-59 is back with a rush. The initial debate in the Commons was disappointing and I fear for the future of the little that remains of my hair. So without pointing specific fingers: We need to debate what is *really* in this bill (or not), not what various political bases want to *believe* is in the bill. There are important things that can be meaningfully debated about what *is* in the bill and what *is not* in the bill.  There is no meaningful debate to be had about things one *imagines* are in the bill.

Once more unto the breach, I will try to squeeze a few compact video primers into the short space between the end of the teaching term and the beginning of the grading purgatory. Kent Roach and I did a basic early assessment here.  And I posted a meditation here. But for those following along with A Podcast Called INTREPID, Stephanie Carvin and I are getting into the weeds .  So here is a Listener's Guide to Bill C-59:

  • Episode 3: The Challenge of Warching Watchers: bill C-59's new "review" body, the National Security and Intelligence Review Agency.
  • Episode 6: Commissioner, Minister, Lawyer, Spy: bill C-59's fix to CSE's current (very) constitutionally-suspect system of foreign intelligence and cybersecurity activities implicating Canadian private communication or metadata. (We did not discuss how we haven't quite fixed the problem but could with a few words of amemdment. See here. I think I have been persuaded that my one-word fix may fix the a constitutional problem and create an operational problem. So I have a different, five or six word fix.)  This podcast also discusses new powers for CSIS to receive and analyze and retain information not tied only to threats to the security of Canada. (Feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 8: The Legal Pile-One, the No-Fly Glitch, and the Police Probe: includes a discussion of Canada's creaky no-fly list and how C-59 fixes it in part, but still fails to resolve it in full.
  • Episode 9: Cyber-Cyber-Bang-Bang: discusses C-59's considerable expansion of CSE's mandate to include offensive and defensive cyber.  (Again, feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 10: The first thing we do, let's disrupt all the lawyers: discusses C-59 and CSIS threat reduction powers and what changes and what doesn't.  And discusses new criminal immunity powers for CSIS sources (and officers) doing intelligence work and the checks and balances. (Please keep shaking that head if people try to tell you this bill doesn't offer anything to the security services).

In Episode 12, we will discuss C-59 and the Security of Canada Information Sharing Act.  And in Episode 14, we intend to discuss C-59 and changes to the C-51 speech crime and some of C-51 changes to preventive detention.

You can decide for yourself whether you like what's in C-59 or not, and whether its good policy.  You can decide for yourself if the bill grapples properly with hard dilemmas. We have our own views and perhaps make our own errors. But we believe that any opinion on C-59 is necessarily guided by (a) knowing what those dilemmas are and (b) what is in C-59. Hope this helps.

Rethinking Intelligence Sharing and Torture

The government released yesterday revamped ministerial directions on intelligence sharing that may implicate mistreatment. The new directions reach CSIS, CBSA and RCMP (the agencies under the Public Safety Portfolio). We should hope for and expect the roll-out of equivalents for other departments and agencies (such as CSE and GAC).

The standards Canada should apply in sharing and receiving intelligence from foreign agencies which may engage in mistreatment (torture or cruel, inhuman or degrading treatment) is a longstanding debate. I rehearse the history in a 2014 article. I have blogged regularly on the issue in this space (keyword search "torture" in the site search field).  And Roach and I cover the topic in our 2015 book, False Security.

Here, I offer up a few quick process thoughts and a few quick substance thoughts tied to the latest development.

1. Process

Up to now, it has been difficult to figure out a) what the government policy was and b) how it was applied. We know about earlier policies because of dogged access to information applications and work by, chiefly, Jim Bronskill. In assessing actual conduct under the policies, it's been like pulling teeth. In terms of public reporting, the best we've had it SIRC's short assessment from last year. And that was confined to CSIS.

The 2017 directions are notable for several reasons.  First, they were proactively released, in keeping with the government's new transparency pledge. Ministerial directions are, in essence, law, because of the manner in which governing statutes give them legal imprimatur. That they have been held close to the chest, and if released, redacted, has been a major irritation -- and should be concerning in a society governed by the rule of law. So A+ on the proactive release.

Second, the directions themselves impose transparency expectations. Key features include the following requirements:

19. Transparency about the use of this Direction is a key principle. In accordance with Principle 4 of the Government's National Security Transparency Commitment, CSIS is expected to publish information that explains how this Direction is implemented, including how risk assessments are conducted, in line with Canadian values, including those expressed by the Canadian Charter of Rights and Freedoms.

The agencies are to compile annual reports on their performance under the directions.  This will be classified, but shared with the minister and the review bodies. But also:

27. This report, in an unclassified format, will be released publicly, containing the contents described above to the extent possible without compromising the national interest, the effectiveness of operations, or the safety or security of an individual.

Maybe you need to have spent a career banging up against agency insularity, but I regard this too as a big deal.  We'll wait and see how thorough these reports are, but so far an A+ for the principle.

2. Content

Background

Intelligence sharing needs to be divided into "in-bound" (coming from foreign partners) and "out-bound" (disclosed to foreign partners).  Out-bound is the most fraught historically and legally. Sharing information in knowledge of risk that it might lead to someone's torture opens the door to a violation of Canada's international obligations (depending on how you define "complicity" in the Torture Convention), constitutional law (depending on the application of causality principles suggested in cases like Suresh) and international and domestic criminal law (depending on the scope of the intent requirement in aiding and abetting concepts).  I discuss all this in the 2014 article noted above. 

Out-bound intel sharing was at the heart of the Arar, Almalki, Elmaati and Nureddin matters -- which were tragic for the victims, tarnishing for the services and expensive in terms of liability and reputation for the government.

We have gone back and forth on the standard to be applied to outbound intel sharing for years.  In 2002, for instance, internal CSIS policies provided: “if there are allegations of human rights abuses, the Service always ensures to use a cautious approach when liaising with the foreign agency and closely scrutinizes the content of the information provided to, or obtained from, the foreign agency” either “in an effort to avoid instances where the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations” or “to ensure none of the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations.”

Various accountability bodies have questioned the effectiveness of these operational policies.  In its 2004-5 annual report, the Security Intelligence Review Committee doubted CSIS could meet the human rights standards expressed in its 2002 policy.

In May 2009, the minister of public safety issued a specific ministerial direction on CSIS information-sharing with foreign agencies.  This document provided:

 so as to avoid any complicity in the use of torture, CSIS is directed to

  • not knowingly rely upon information which is derived from the use of torture, and to have in place reasonable and appropriate measures to identify information that is likely to have been derived form the use of torture;
  • take all other reasonable measures to reduce the risk that any action on the part of the Service might promote or condone, or be seen to promote or condone the use of torture, including, where appropriate, the seeking of assurances when sharing information with foreign agencies.

This standard was revised again in 2011. The 2011 version began with a section on “Canada’s legal obligations”, defined several key terms, established “information sharing principles” and then provided a road map for approving both in-bound and out-bound information sharing “when there is a substantial risk of mistreatment in sharing information”.

Having acknowledged the international, statutory and constitutional prohibitions on torture, the instruments defined “mistreatment” to include both torture and CID treatment or punishment.  “Substantial risk” of such treatment meant a “personal, present and foreseeable risk of mistreatment” that is “real and must be based on something more than mere theory or speculation” that typically arises when “it is more likely than not that there will be mistreatment”.  The latter test was not, however, to be “applied rigidly because in some cases, particularly where the risk is of severe harm, the ‘substantial risk’ standard may be satisfied at a lower level of probability”.

The information-sharing principles applicable to CSIS, RCMP and CBSA included an obligation to avoid “complicity in mistreatment by foreign entities” as well as a requirement to assess the accuracy and reliability of information received from partner agencies.  Approvals for information-sharing was to be indexed to the level of risk of mistreatment.

Where the risk of sending or soliciting information from a foreign entity was substantial, and it was unclear that the risk could be mitigated by caveats and assurances, the CSIS director, the RCMP commissioner or the CBSA president decided on the information-sharing.  These officials considered a list of factors in arriving at their decisions, including the national security interest, the basis for believing a substantial risk existed, measures to mitigate that risk and the views of other departments, including Foreign Affairs.  The matter might also be referred to the minister.  The minister or the director “shall authorize the sharing of information with the foreign entity only in accordance with” the direction and “Canada’s legal obligations”.

For use of in-bound information, the 2011 directions noted that in exceptional circumstances CSIS, RCMP and CBSA could share information from foreign entities that likely stemmed from mistreatment: “When there is a serious risk of loss of life, injury, or substantial damage or destruction of property, CSIS [RCMP or CBSA] will make the protection of life and property its priority.”  As a prudential measure, “[m]easures will also be taken to ensure that the information which may have been derived through mistreatment is accurately described, and that its reliability is properly characterized. Caveats will be imposed on information shared with both domestic and foreign recipients to restrict their use of information, as appropriate.”

Bottom line: the 2011 directions for both out-bound and in-bound had "in case of emergency, break glass" permissions to share information even where torture risk remained high (or in the case of in-bound, even when it had occurred). Hence the criticism.

For me, the out-bound sharing was the most doubtful, because the link to complicity was more acute and the causal consequences more evident. I have urged that in-bound raises different issues. It is not enough to argue, as many human rights advocates do, that use creates a "marketplace" for torture. That is a good sound bite, but a bad analogy. And to the extent people conflate any use with complicity, they stretches the complicity concept beyond both it legal and plain meaning. (And I would accuse the UN Committee Against Torture of invoking implausible understandings of complicity, contributing to the unfortunate sense that the UN human rights bodies are norm entrepreneurs with an indifferent commitment to law.)

On the dilemmas of in-bound, see some of my discussion here and in my 2014 article.

There are, however, some bright lines for in-bound, beyond complicity. For instance, it can't be used as evidence. Art 15 of the UN Torture Convention provides: "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."

In 2006, a group of academics and human rights groups struggled with what other standards should guide in-bound use, beyond this Art 15 expectation. Even that group (which included Canada's chief international human rights groups of the period) chose not to endorse an absolute bar on in-bound use. This is what we came up with, codified as the Ottawa Principles on Human Rights and Anti-terrorism (principle 4.3.2):

Information, data, or intelligence that has been obtained through torture or cruel, inhuman or degrading treatment or punishment may not be used as a basis for:

  

(a) the deprivation of liberty;
(b) the transfer, through any means, of an individual from the custody of one state to another;
(c) the designation of an individual as a person of
interest, a security threat or a terrorist or by any other description purporting to link that individual to
terrorist activities; or
(d) the deprivation of any other internationally protected human right.

 

2017 Directions

So what is new in the 2017 directions? For out-bound, the "in case of emergency break glass" prospect is now gone: "If that substantial risk [of mistreatment] cannot be mitigated, information will not be disclosed to that foreign entity." So too when information is requested of a foreign service: "If that substantial risk cannot be mitigated, information will not be requested from that foreign entity."

This an important shift. It amounts to a moral choice about the primacy given to the prohibition on torture. Much will turn on what "mitigation" may mean (for example, would mitigation include doubtful possibilities like "we will tell the Americans and they will tell the Egyptians". )  But if the new checks and balances and transparency discussed above work, these are dilemmas that will regularly be "red teamed" by independent reviewers. [There will be lots of application issues. For instance, Paul Champ raises an excellent point about the definition of substantial risk, which reads in part "a personal, present and foreseeable risk of mistreatment." In Badesha this month, the Supreme Court declined to limit review of torture risk on extradition to this highly personalized assessment, and refused to foreclose "the possibility that there may be cases in which general evidence of pervasive and systemic human rights abuses in the receiving state can form the basis for a finding that the person sought faces a substantial risk of torture or mistreatment."]

On in-bound, there is no absolute bar on use. The information can never be used in a proceeding or "in any way that creates a substantial risk of further mistreatment".  But the "in case of emergency break glass" prospect remains: generally, the information could not be used to deprive someone of their rights or freedoms, except where "it is necessary to prevent loss of life or significant personal injury." So does this line up with the Ottawa Principles? Well, I struggle to imagine a deprivation of a right or freedom that would occur independent of "a judicial, administrative, or other proceeding", for which the suspect in-bound information cannot be used. So the result might be something like:

Ottawa Principles

2017 Direction

Cannot be used as basis for:

 

(a) the deprivation of liberty;

In Canada, would require use in a proceeding (criminal, civil, administrative, warrant or threat reduction, peace bond, preventive detention – all are proceedings). I would argue that passport revocation and no fly listing is a proceeding captured by this same limitation. Therefore, use in these contexts is barred. Maybe the initial detention under preventive detention in exigent circumstances, prior to show cause review by the court? But to justify detention on evidence could then never use in front of the court would be very suspect.

(b) the transfer, through any means, of an individual from the custody of one state to another; 

In Canada, would require use in a proceeding. Therefore barred.

(c) the designation of an individual as a person of interest, a security threat or a terrorist or by any other description purporting to link that individual to terrorist activities; or

This is the thorny issue.  See below.

(d) the deprivation of any other internationally protected human right. 

 

In Canada, would almost certainly require use in a proceeding. Therefore barred.

 

Paragraph c) is the headache. For instance, CSIS may commence an investigation on reasonable grounds to suspect a threat to the security of Canada. If in-bound information constitutes the basis for that reasonable suspicion, nothing in the directions would appear to preclude an investigation, subject to the requirement that the feared security threat is one related to loss of life or significant personal injury. (Or potentially even without this requirement if there is no risk of deprivation of someones rights or freedoms, which is the more likely prospect if we are simply talking about an investigation.)

Now to be clear, CSIS could never get a search warrant using this in-bound information -- that would require a proceeding. But it will collect open source information, perhaps follow a target and flag a person in a dataset of some sort.

People will debate whether this is appropriate. Again, be careful about calling this "complicity". And be careful of overreaching and arguing that this violates Canada's legal obligations.  And note also that if the investigation culminates in some proceeding, the in-bound information cannot be used in it.  Still, the tainted in-bound information seeds an investigation. It seems to me, at the very least, there should be standards on cleaning out this data trail if the investigation turns up nothing. The directions provide that tainted in-bound information needs to be caveated and its reliability properly categorised. But more than that, if there is an authorized use, which turns into a goose chase, then it seems to me that any person flagged by that information or in the deadend investigation it sparked should be protected from forever being in some government security database. That is, there should be a scrubbing. I fear otherwise that even caveated information will prove fungible and the genesis of fruit of poisoned trees down the path.

Government Proposals for Reforming National Security Criminal and Civil Trials

In August, the government circulated a targetted consultation document propoing a series of changes to the way in which national security secrets are kept in criminal and civil proceedings. This is very inside-baseball stuff, but essentially the government is responding to long-standing concerns about "intelligence-to-evidence", the thorniest matter in Canadian national security law.

The criminal law changes would reform the Canada Evidence Act, s.38 process to, among other things, open the door to provincial superior court trial judges, allowing them to participate more fully in it. (Section 38 allows the government to block disclosure of national security secrets in legal proceedings. This preserves sensitive information from exposure, but there is a trade-off: the government cannot then use these same secrets in the legal proceeding to defend or prosecute a case.) The civil law proposals echo these Canada Evidence Act changes, but then also propose "closed material proceedings" (CMP). The latter is a novel proposal. Basically, CMP would allow secret trials in civil cases: the government could use secrets in closed proceedings on the merits of the case, in a closed hearing from which the public and the other litigants are excluded.

Kent Roach and I have prepared a brief response to these proposals, generally supporting the criminal law reforms, but also urging that the need for reform here is as much operational as legal. We also express doubts about the closed material proceedings proposal.  Our paper is posted here. The abstract for that paper is as follows:

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule -- something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

A Once & Final Parsing of the Legal Context for the Khadr Settlement

I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement.  Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved.  (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)

Disclosure Statement

In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.

These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.

 

I am mad as hell and so should you be

I may be mad for different reasons than you are, but here are my reasons:

1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession.  Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure.  We could have used real courts, with real judges, adjudicating real crimes, using real evidence. 

  • Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”.  Basically, he was a civilian who fought.  That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.
  • As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated.  And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason.  See Ribic.)

2. The youth offender issue was one our system could grapple with, and often does.  This didn’t need to be a overstated debate about a “child soldier”.  And any other extenuating or mitigating issues could have been part of sentencing.

3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS [and DFAIT] interrogators to interrogate/inteview Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment). 

4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency.  It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.

5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS.  Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back.  By the end of this saga, the Americans really wanted us to take Khadr back.  There are even Hilary Clinton emails.

In sum, the Government of Canada screwed this up. Massively.  And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes).  Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.

 

What about Khadr’s lawsuit: Shouldn’t the government have fought it?

It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:

The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401

In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:

$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.

Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS/DFAIT interrogations and sharing of resulting information with the Americans.  The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about.  But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs).  

I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.

On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough.  And some of them would have required some really interesting (and uncomfortable evidence).  Which brings me to…

 

But no one really can say how litigation should unfold.  So perhaps the government should have fought it.  Why not?

Well, if I had been advising the government, I would have urged them to settle.  Here’s why.  First, don’t underestimate the cost to the taxpayer of fighting: 

1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.

2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages. 

3. Either way, if you fight a trial, here’s what will happen:

  • Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
  • Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.
  • Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
  • Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly.  See above about staff resourcing.
  • The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).

Put another way, this will cost a bundle. And that’s not including resources expended by the court itself.  And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).

The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process.  All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million.  The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.

So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.

But then there are the more intangible (but perhaps even more pressing) costs:

  • Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
  • Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration.  This trial pokes a hornet’s nest.
  • The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade.  It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)
 

If I were the security services, I would have wanted this case settled, badly. 

In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic.  Maybe it would have been good to expose the government malfeasance.  Maybe the responsible should be exposed, and heads put on spikes.  Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner.  Maybe you don’t care about any of the reasons, but do care about the symbolism.

That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.

But was this really worth the $10.5M, and wasn't this too secretive?

I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate.  The negotiations are confidential, and so too (often) is the settlement.  (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).

Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government.  Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan.  I don't see how their relative virtues would affect the lawsuit.  An “eye for an eye” is ancient Sumerian law, not Canadian.

Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received.  Maybe the government should have conceded liability and gone to court on damages.  Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages. 

But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services. 

Perhaps there were other more partisan political reasons for settling.  This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government.  It is not immediately apparent to me.

 

What about Canada paying Ms Speer and Mr Morris?

I certainly know what I hope for on this question, as a human being.

But a couple of lawyerly points:

As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.

Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence.  Basically, we have no idea what happened in 2002.  Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.

As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record.  Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.

(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)

If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge.  (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)

Finally, whether the Speer and Morris proceeding itself will settle remains an open question.  It may be a good way to judge character.

 

Take home:

So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it.  There is too much “eye for an eye”, and too little “rule of law”.  None of this had to be this way.  Justice could have been served.  Be angry at your government, but make sure you are angry at them for all the right reasons.

It is possible to believe:

  • Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
  • Khadr should have been repatriated much earlier and held to account.
  • Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
  • That settling this case was smart for financial and security reasons, and that others may deserve compensation.

 

Addendum

I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol.  If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.

And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips.  And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.

A Law for New Seasons: Bill C-59 from the "Big Picture" Perspective of National Security Reform

Over the next few months, I will try to post thoughts on Bill C-59, the government’s massive national security overhaul package. Kent Roach and I have posted two quick assessments: an oped in Maclean’s and a longer piece at the Institute for Research on Public Policy website. I also provided reactions to the media in various placed, including on The House here and Power & Politics here.

(We always worry about pushing out analyses of such complex legislation on an insta-response basis, and qualify what we say with an open invitation to point out errors and omissions. Like most people, I learn best when I write, reflect, discuss, revise.)

In this space, I want to meditate on two issues emerging in the discussion.  First, that C-59 is about correcting C-51, creating the impression (fanned by some politicians) that C-59 rolls back security powers.  Second, the resource and burden issue.

 

C-59: Reforming without subtracting

A word of warning: Kent and I always took the view that C-51 was dealing (mostly) with real problems, but the solutions were so festooned with their own shortcomings that they didn’t solve the problems, but did create a host of new ones.  (The speech crime was the exception: it was always a solution in search of an invented problem).

I won’t repeat our analysis here. (We set out our conclusions in the 600 pages of False Security.)

This is by way of saying: I was never in the “repeal and return to the prior status quo” camp.  Because that status quo meant returning to a security law system that creaked with age and inadequacy.

 

Fixing the Problematic Parts

If we expect the state to protect us, we need to give it tools.  In part, this is because I believe the civil liberties implications of the day after a security failure are always worse than the civil liberties challenges raised during a calm, premeditated effort to give security services reasonable tools to prevent that incident. (After some bomb goes off, everyone assumes that it stems from a failure of law, and that we need fewer rights.  Usually, the reason is more complex: sometimes it is operational. And sometimes it is simply a manifestation of the old IRA slogan about security services needing to successful all the time, and terrorists only once. Those impossible odds mean something will always happen.  And so you need social resilience, not a stampede to turn your society into North Korea.)

When we do security law and policy reform properly, the questions always are: which tools, are they proportional, and are they compatible with a liberal democracy (and avoid the “burning villages to save them” problem).  And for anti-terror tools, focused on a threat embedded in a civil population, “overclocking” on your tools may precipitate the very threat you intend to stave-off.  (Witness the nonsense discussion on the margins of the internet last month, after the UK incidents, raising the prospect of mass internment. Setting aside the egregious rights violations, this is out past Pluto in terms of security: people need to spend more time examining the blowback consequences of mass internment. It’s a pretty good way to turn a difficult security environment into a 100-year war.)

C-59 is about correcting C-51’s (unnecessary, probably-never-actually-wanted-by-the-security-services) excess, and I think it generally does a good job here (with the real remaining concern being the light-touch amendments to the Security of Canada Information Sharing Act, renamed and tempered, but still vast).  For instance, I doubt CSIS ever wanted to be in the detention and rendition business – so why create a law that made that a legal possibility?

For more on these fixes, see our IRPP piece, linked above.

 

Dealing with (Some) of the Puzzling Omissions

But C-59 is also about giving new powers to the security services.  Four things stand out. First, by placing CSIS threat disruption powers on a more plausible (although surely still novel) constitutional foundation, it makes those actually usable.  (CSIS has clearly not been prepared to use threat reduction that raised constitutional issues under C-51, probably appreciating that the C-51 formula was an invitation for controversy in the courts and out).

Not everyone will think we’ve hit the sweet spot.  See Michael Nesbitt’s excellent analysis.  But we are way closer than with C-51 – with that bill’s formula, it was really hard to find a constitutional lawyer (not taking instruction from government) who thought we were even in the ballmark.  And whatever we might conclude about how carefully drafted some of the new “closed list” powers are, I simply cannot think of any other way to square the constitution with some of the more potent threat reduction powers I believe are quite properly on the table (e.g., interfering with a suspected terrorist’s communications). 

Second, I had not quite appreciated the extent to which CSIS was on the cusp on being paralyzed by its old law. For one thing, the limitations in its Act on retaining information – most dramatically illustrated by the Fall 2016 Federal Court decision on the CSIS ODAC initiative (see a write up here) -- must be deeply constrictive of CSIS deploying big data analytics – or even basic Boolean searching – on information…that they cannot have.  There are, of course, all sorts of privacy concerns – which is where close study is required of both the revamped collection and retention rules and their checks and balances. But at some point, one must concede that if you are to have an intelligence service, it needs to be able to collect, retain and analyze intelligence. (Privacy protections have always has been about checks and balances, from their inception in the early common law through to the present day).

For another thing, I had not quite appreciated how dramatically changes in the concept of Crown immunity – and doubts about its application to CSIS operations – must be crimping operations. It may not be too much of an exaggeration to say, with all the new terrorism crimes introduced since 2001, that every CSIS officer and source covertly infiltrating a terror plot is at risk of prosecution. CSIS recruiting must go something like: “Thank you for your service. As soon as you participate with this group, you are a criminal. But we’ll put in a good word with the prosecutor – assuming we’re prepared to cough up our secret op details. Hopefully things will be ok.”  The response must be something like: “No way.” Or: “Ok, give me $8 million.”

I have no way to know if the problem is that dramatic. But legally, it may be. And if so, together the limit on CSIS data retention and the crimp on human source immunity is pretty serious.  It might mean that Canada risks not having a real security intelligence service. 

Unless you think the world is much safer than I think it is, that is an unhappy prospect.  It is actually astonishing that this was not fixed a long time ago.  So the issue is: are you happy with the C-59 solutions?  And in responding, the first thing I look for it: checks and balances.  So far as I work through the details, I think they measure up quite well – indeed, potentially very well, measured against international comparisons.

Third, the Communications Security Establishment has been burdened with too little law, and too narrow a mandate. On law, we have known since it was first given statutory footing in 2001 that the issue of Canadian-origin information intercepts raised constitutional issues. People have been writing about it for a long time. But it was one of those questions that were, um, academic, until Snowden.  After that, it became a matter of public controversy, and litigation.  Fixing this was never that hard – and I am very pleased to see that C-59 proposes what I think is a viable and even elegant approach.  (Although there is a bug in the drafting, I think, that may leave the problem unfixed.  That requires more explaining, and I will blog on that soon.)

On mandate, CSE’s cybersecurity mandate basically reaches: get into a defensive crouch, protecting your core and vital organs, while the North Koreans, Russians, Chinese, hackers etc pummel you. But the world has changed since 2001. The new “active” and “defensive” cyber operations powers, and the broadening of the traditional cybersecurity mandate make a lot of sense.  Again, that assumes you agree that the world presents real security challenges that require viable responses.  If you do, then the remaining question is: are you happy with the checks and balances?

Four, tempering C-51, and adding a whole host of checks and balances is actually security-affirming.  In a democracy, the activities of the security service depend on consent and cooperation. Security powers that validate a lot of conspiracy theories erode that “social license”. 

C-51 took a lot of conspiracy theories from “plausible only if you assume everyone is a legal rogue and ethically unhinged”, to “legally possible, even if still doubtful in practice because the people involved are not venal and unethical”.  (Our various commissions of inquiry criticized the services, but did not suggest wrongdoing was ill-intentioned – with the exception of the poisonous leaks someone released to smear Maher Arar.)  But as anyone who has spent more than 5 minutes working in a human institution knows, people and institutions make mistakes – sometimes enormous mistakes. Silos, group think, cognitive bias, habit, incompetence, laziness, inattention, petty jealousies.  All the vices of the human form. Law, guidelines, protocols, oversight, review and checks and balances are what we use to minimize the prospect of systems failing, especially where the consequences of failure are significant.

C-59 puts the law back in play as a code of conduct, in a way that C-51 relaxed too much.  I think that is important. One might expect this of a law professor. But I cannot really think of any examples of where “the gloves are coming off” approach to security law and policy in a democracy has worked well.  It tends to produce outcomes that some future political leader needs to apologize for, after a commission of inquiry, disastrous court losses, public acrimony and a general erosion of public trust.

 

Administrative Burden: Better than the alternative

And that brings me to the administrative burden conversation.  C-59 will amp up the checks and balances in national security law considerably.  So considerably that Canada may well be back to where it was in 1984: a leader in this area.  Predictably, there will be anxiety that this will shackle responses, drain resources and infuse lawyers and overseers into the nitty-gritty of security work.  C-59 is, in some respects, the judicialization of intelligence that former CSIS director Jim Judd disliked a decade or so ago.

It is also consistent with developments in other Five Eye states, and even the French have new law in the area of intelligence. (The French, famously, have had little).  It is inevitable: as soon as you focus on security threat emanating from your civil society, intelligence starts to drift closer to police work.  And so, it needs to abide by at least some of those standards that guard police work (many of which echo those announced by Robert Peel in establishing the first police force in the 19th century).

The new systems could be impossibly bureaucratic.  Or they could be elegant and effective.  Much will turn on design, resourcing, staffing. Inattention on these issues will produce disasters: impairing necessary security conduct, done by cautious, risk-adverse services; and/or overpromising on accountability without delivering.

But I will say this: they are the quid pro quo to accomplishing that security expansion noted in the first four points of this blog.  C-59 should establish a regularized, professionalized system of checks and balances.  And whatever burden they impose, that would be dwarfed by the burden imposed by a creaky, inadequately constructed security system that lurches from scandal to commission of inquiry to judicial slap-down; with powers uncertain, planning interrupted by public controversy and all your staff-time devoted to appeasing a disgruntled Parliament, judge or commissioner.  In other words: the 2000s. I don’t know anyone (in any walk of life) that wants to go back to the scandal/response system of national security policy-making. That would be bad for security and rights.

 

Conclusion

In sum, C-59 is probably in, or near, the Goldilocks space between too hot and too cold. Which is not to say it is perfect, or that it fixes everything, or will please everyone.  For instance, the SCISA is not falling. (The author chuckles to himself.) And it isn’t to say we won’t suddenly discover a new concern in the 150 page document.

But based on about 5 readings of the full text and some deep dives on some of the more complex parts, it appears to be more carefully crafted than anything we’ve seen in this area in a long time – probably the 1988 Emergencies Act, and before that the 1984 CSIS Act.  That’s a good place to be, going into the parliamentary process.

Agenda for National Security Law Day

Today, the government will introduce the blandly titled "Act respecting national security matters" in the House of Commons. Kent Roach and I have cleared the decks in order to provide prompt analysis. None of that analysis will spring fully formed, and will require weeks of careful contemplation, revision, rethink. But we have long since overcome the academic resistance to "hot takes", probably to our considerable peril. (There will be typos). So this is our plan:

  • The early arrivals will probably be government backgrounders. I generally do not like backgrounders, since they tend to be written in happy-face emoticons. It's all about the legislation. Legislation is the "doors and corners where they get you" that Miller warns about in The Expanse (excellent series streaming on CraveTV, by the way. Great books for scifi fans). But I will start tweeting out initial reactions to the backgrounders in an effort to "take the temperature" on this new legislation. My twitter account is @cforcese.
  • Once we have eyes on legislation, we will do a quick diagnostic.  First out the gate, we shall post a short oped-style piece. Maclean's has generously reached out to offer to work with us.
  • Along the way, I may jot down some issue-specific provisional comments via this blog space.
  • I shall be doing some media -- right now CBC Power & Politics has invited me on this evening's program for a quick analysis.
  • By tomorrow morning, Kent and I hope to have a longer "report card" style assessment, juxtaposing the new legislation against that which ails Canadian national security law, post bill C-51. Our jump-off point in preparing this assessment are the recommendations contained in our book False Security and those made in our response to the government's Green Paper consultation on national security. The IRRP has kindly agreed to work with us on this piece.
  • We have also sketched out the template for a longer, issue-specific working paper. As has been our pattern, we will post that on our SSRN website, and announce it here and on twitter. This longer piece may take a few days to produce -- much hinges on what is in (or missing from) the new law.
  • Since I imagine the new law proposal will have something or other in it requiring me to modify my teaching materials for the uOttawa National Security Law course this Fall, I will prepare some short video primers on aspects of the new bill periodically over the summer. As is my practice, these will be posted open access on my Vimeo videoblog feed. I will provide an organizational table of contents on this blog space.
  • Finally, this bill will probably be the impetus for Stephanie Carvin (NPSIA) and I finally to pull together a national security and policy podcast show, inspired by Lawfare's podcast, and that done by Bobby Chesney and Steve Vladeck. We shall not be able to compete in terms of quality or quantity (they have unusual presidential material to work with!). But there really is limited Canadian content on national security in the Canadian podcast space, so we figure it's worth a try. I am the law person, Stephanie the policy person. She'll be interesting. I'll be boring. We'll be calling on a lot of our friends in academia and (to the extent they are able) government to be guests.  You've all been warned.  When the time comes, we will trumpet how to subscribe and listen. (This will be different from the more doctrinal podcasted summaries of national security law posted here, though I suppose I will eventually need to update those as well.)
  • Very soon, I will be disappearing into the summer writing cave and archives here and far yonder to finish my book on the 1837 destruction of the steamboat Caroline on the Niagara River. (If you want to understand how, legally, the US and its coalition partners can be fighting Daesh in Syria, the Caroline incident is your starting point. This book has been a fascinating deep dive into a terrifically interesting clash, with repercussions that echo to our present day. The facts of the Caroline have often been misunderstood, so it's also an incredible "cold case". I hope for a massive readership and a Netflix series.)

See you on the flipside.

Enhancing the National Security and Intelligence Committee of Parliamentarians: Reduxed and Reduced

My part of the joint submission that Kent Roach and I made yesterday to the Senate SECD committee, studying bill C-22, is posted here (just after the earlier Commons testimony).  C-22 creates a National Security and Intelligence Committee of Parliamentarians -- one that would be security-cleared and entitled to see (at least some) classified information.

Also included in my document is an updated table comparing the C-22 proposal to parliamentary review bodies in the United Kingdom, Australia and New Zealand.

Discerning readers will note that Kent Roach and I have, as the saying goes, "put water in the wine" relative to our position at the Commons. There, we called for full C-22 committee access to classified information. But we live in the real world: having had a kick at the can, it is clear that this level of access is not going to happen.

So at the senate, we proposed some modest compromise positions that we think might bridge the distance between the government and opposition. Such a bridge is unusually important here, with a body whose members will be those same parliamentarians. There needs to be a shared commitment and confidence in the body, or it will suffer from a failure to thrive. (See my discussion here. I really hope that rumours of an opposition boycott once the committee starts-up are exaggerated -- this is not a body so anemic in its powers that it should attract that treatment. Nor should any party use national security to triangulate on partisan advantage. That way, madness lies.)

There is now also a measure of urgency. This bill has been in Parliament almost a year. I have little doubt that the government could get a delayed bill through after a rumoured prorogation. But we are running down the parliamentary calendar. Not only will other matters compete for attention, but also it takes considerable time to stand-up a new review body. For instance, even with existing national security review bodies, training a new reviewer takes roughly a year. Starting from scratch means, among other things: determining & security-clearing the membership, finalizing the budget, hiring an executive director, hiring staff (and the body must be well staffed), security-clearing the staff, acquiring secure facilities, putting in place document handling safeguards, establishing protocols for information-sharing by the security agencies (and existing review bodies), establishing internal rules of procedure (including regulations governing that), setting review priorities and...starting actually to fulfil the committee's mandate.

We are talking years before this body is fully operational. We have two years until the next election. Doing all this in an election year would be a very bad idea. And then, during the election the committee ceases to exist, and after the election, its composition will change.

The current C-22 proposal isn't perfect. But even on first reading, it was better than the earlier government bill under the Martin government. After the Commons process, it is much better. It also compares favourably to the systems in other Westminster democracies.

The glass is three-quarters full. Perhaps three-quarters full of watered wine. But at least there is wine. Indeed, at least there is a glass.  Even water. The alternative is: vacuum.

Let's get this done.

Secrets and Strategic Leaking: Situating Canada among its close allies

Spring has sprung, and so has the United States intelligence community. Specifically, the last several months have witnessed an astonishing pattern of leaks from the US government.  Some of the leaks come from the White House -- in one case apparently as part of run-on bombast from the man at the top. But in the wake of the Manchester bombing last week, some leaks seem to be coming out of the intelligence community itself. American leaks have fuelled angst among allies, most recently the British.

The New York Times ran two interesting analyses of US leaking of information collected by British authorities in the Manchester bombing investigating (here and here). They note how the culture of leaking is embedded in the United States in a manner without parallel in the United Kingdom, not least because of the broad reach of the First Amendment. I suspect also that the competing power centres in the American republican system (Congress/Executive) also facilitate an environment receptive to leaking. And the sheer size of the US intelligence community, and its vast penumbra of contractors, has contributed to leaky information control (the Snowden matter constitutes the obvious poster child for this).

But where does (Westminster) Canada lie on a spectrum of leakiness, with the United Kingdom on one pole and the United States on the other? My instinct is to say we are closer to the United Kingdom than the United States, with caveats.

The Law

First, there are many serious penalties for leaking classified information. On top of workplace discipline and loss of a security clearance, there is a prospect of going to jail. Security and intelligence community employees (and a number of others) are "persons permanently bound by secrecy" under the Security of Information Act (SOIA). It is a serious crime for them to reveal special operational information.  It could also be a breach of trust under the Criminal Code for any official to leak any classified information. And s.18 of the CSIS Act includes its own offence for leaks of Service information relating to source identity, applicable to those acting under the CSIS Act (a category that would include not just CSIS officers and employees, but also those of SIRC and ministerial officials.)

US and UK law also include penalties for leaky intelligence employees.

But we are more like the United States in one key respect: our Security of Information Act is probably even more unworkable than the US Espionage Act (and way more unworkable than the UK Official Secrets Act) when it comes to leaks by officials, other than those permanently bound by secrecy, to entities, other than foreign entities or terrorist groups. So, for instance, a leak by an official (other than a person permanently bound by secrecy) to the Canadian media would be very difficult to prosecute under the Security of Information Act (although Criminal Code breach of trust would still apply).  The reason for this is that the "anti-leakage" provision of SOIA (the infamous section 4) has not been updated since 1939 and is unconstitutional gibberish -- and so concluded the Ontario Superior Court of Justice in 2006.

We are also more like the United States in our constitutional arrangement. Pointing to Charter s.2, the Federal Court has recognized a constitutionalized right in Canada of whistleblowing. But this right is limited by s.1 considerations (See discussion in Forcese & Freeman, Laws of Government, 2011 at 220). And basically, that means that whistleblowing is limited to dire necessity, and must be done first through an internal mechanism and not initially to the media and public.

This approach is codified even for persons permanently bound by secrecy as a defence to a criminal charge under the SOIA, where they might otherwise be convicted for leaking special operational information. That defence specifies that whistleblowing should go through SIRC or the CSE commissioner, although the provision (s.15) leaves a lot of unanswered questions about how that mechanism might work.

Practice

On balance, we seem to be more like the UK in our practice. It is true that Canada has management issues with classified information. For instance, the CBC reported in November 2016 that "[t]here have been more than 10,000 incidents of classified or secure documents being improperly left or stored since Prime Minister Justin Trudeau's government came to office." This included 659 cases in CSIS itself. But all countries struggle with information management -- that is different from intentional leaking.

And CSIS has complained regularly about compelled disclosure in security certificate and Canada Evidence Act proceedings. But again, disclosure by court order is different from leaking.

In relation to intentional, unauthorized disclosure (aka leaking) of intelligence by the intelligence community or related entities (such as review bodies or special advocates), I cannot think of many (publicized) examples from the recent past.

The two instances that do come to mind were concerning, not because they revealed sensitive secrets but because they constitute examples of someone in government selectively disclosing intelligence information (or innuendo at least) to cast the security services in a favourable light.

The first was the leak concerning Maher Arar, during the Arar inquiry. This involved both selective leaks of information/analyses along with slanderous editorializing about Arar's character. And it came just as the RCMP and CSIS (among others) were being rightly castigated for their failings in the treatment of Arar. The Arar commission was so concerned about this behaviour, it added an entire chapter on the leaks to its report. And it said this about leaks done in 2003:

Unlike many other actions of Canadian officials that I describe in this report, leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.

 

The second major example were similar leaks relating to Messieurs Charkaoui and Abdelrazik, again as the government was losing in front of a judge while trying to defend its efforts to deport and exile, respectively, these men.

It is unclear who did all this leaking -- a lot of the information was in circulation in government departments outside of the RCMP and CSIS. Both of these leak cases prompted RCMP investigations -- none have resulted in any further action being taken. In the Arar matter, the RCMP's hamfisted investigation involved a raid on Ottawa Citizen journalist Juliet O'Neill's home and office.  That in turn prompted the Citizen to challenge the constitutionality of s.4 of the Security of Information Act -- successfully.

In the second matter, an investigation has apparently been ongoing, but here again the RCMP appears to have made serious strategic errors by targeting journalists in an effort to find their sources. And on top of that, they did so in a manner that did not comply with ministerial directions on national security investigations that implicate sensitive sectors (such as the media).

I discuss the fall-out from this conduct here.

Conclusion

So in sum: We are like the United Kingdom in our strict rules and a general pattern of few intelligence leaks from our broader intelligence and security community.  We are like the United States in that leaking raises constitutional free speech issues (and also constitutional safeguards on overbroad anti-leakage provisions, like s.4 of SOIA).  And we have an unpleasant tradition -- however modest -- of government leaks to the media designed to cast the security services in the most favourable light when those services are embroiled in controversy.

 

A Feast of Commons Reports: National Security Studies by ETHI and SECU Released

This week, two standing committees released their reports on national security law and policy related matters. The Commons Standing Committee on Public Safety and National Security (SECU) released the product of its cross-country Fall 2016 hearings on national security writ large.  The Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) released its more focused assessment of one aspect of the last Parliament's infamous bill C-51, the Security of Canada Information Sharing Act.

Both reports make for interesting reading. And I am generally sympathetic to many of their recommendations.  A few quick words on each.  But before the dissecting, a general word: MPs should be congratulated in getting into the weeds on many difficult issues.  This is a hard area, and these reports join the government's own Green Paper in putting into circulation thinking on national security law and policy.

SECU Study

The SECU report is the shorter of the two studies, notwithstanding its broader coverage.  It has a fairly succinct summary of issues and evidence, and then a lengthy list of recommendations.  Not all the recommendations are closely anchored in supporting discussion, and so in some cases they are a bit unclear.  Generally, the recommendations range from very specific to very open ended.  I shan't assess on a recommendation-by-recommendation basis, but will address matters that caught my eye.

National Security Accountability

Readers of this blog will know that shortcomings in our national security review system is a recurring preoccupation in Canada. SECU highlights these difficulties in detail, and its report constitutes a welcome addition to the now vast literature on problems with Canadian national security accountability systems.

Its recommendations risk, however, a repeat of the Arar commission of inquiry error: two much bureaucratic complexity. There are basically two solutions to our institutional shortcomings in this area: a move to an all-of-government expert reviewer (sometimes dubbed a "super-SIRC); or the Arar commission proposal of "statutory gateways" between existing bodies, coupled with an expanded remit for some of them to capture agencies not currently subject to review.  The SECU report seems uncertain on which course of action to prefer.  There is some language favourable to a super-SIRC and a lot of language favouring statutory gateways, and then a complex-sounding means of coordination (including possibly the creation of still new bodies).

Too many moving parts in any policy proposal in Ottawa means certain death.  So while the spirit of the SECU recommendations is bang-on, I suspect the detailed recommendations will have limited impact.

CSIS Threat Reduction

SECU proposes abolishing statutory language suggesting CSIS can breach any and all Charter rights in engaging in "threat reduction".  This is welcome, although I think in practice there will still be a need to draft affirmatively what things we wish CSIS to do as threat reduction. Rather than a carte blanche, security legislation should lay out a detailed menu.  For reasons Roach and I discuss in various places (including some linked below), this enumeration approach would help put the regime on a more conventional constitutional footing.

SECU also recognizes the risk that CSIS and RCMP may be driving in the same lane post-C-51, and has some open textured language about, in essence, deconfliction.

This is a nod to the broader issue of intelligence to evidence.  But that is a complex matter deserving some very delicate law-making, and this report probably doesn't have the granularity to move the ball further down the field on that question.  That said, the related recommendation proposing the elimination of the bifurcated court process under the Canada Evidence Act is welcome.

Peace Bonds

SECU proposes a move to a "balance of probabilities" evidentiary standard for peace bonds -- the recommendation is unclear, but I assume this means abandoning the current "fear on reasonable grounds" (a low threshold).  I personally wouldn't support this. Balance of probabilities is a considerable burden of proof.  It will pretty much end the utility of peace bonds as a preemptive tool.  I think there are other safeguards that should be part of the peace bond regime, but this is not one of them. The state needs to have tools -- and this one has the virtue of requiring a proceeding in an open court (as opposed to all the secret administrative things like no fly lists).

Speech Crime

The SECU recommendations limiting the scope of Bill C-51's speech crime are important. That is a horribly overbroad crime at present.  It simply does not need to be so broad -- and reach so much speech only distantly linked to violence -- in order to meet the government's stated objectives. 

(I note that the dissenting Tory report expresses particular enthusiasm for the speech offence. I also note that a number of very serious lawyers had to debate at length in 2015 whether some Tory fundraising letters reproducing terrorism propaganda violated the speech crime. This is not a good offence if some very bright legal minds think there might be a real issue there. 

The Tories also argue that the offence has not injured free speech. Still, it has meant less privacy: RCMP documents suggest that the police are using the offence to seed investigations, including obtaining wiretap warrants. So to be clear: the police can wiretap speech in an effort to find the wrong kind of speech. This is not a happy situation).

The SECU recommendations cut away much of the excess of the speech crime, without undermining the stated purpose of this offence (which I happen to believe is already meet by existing crimes, but that is another debate. Personally, on this specific issue, I am with the NDP "supplementary opinion" to the report: the speech crime is unnecessary; repeal.)

No Fly List etc

There are many recommendations on improving the no fly list.  A redress system for false positives would be very welcome -- and we await action on this by government.  And use of special advocates during the secret appeal hearings would also be welcome.  Generally, there are a number of quite sensible recommendations on this topic. 

Likewise, the oblique reference to rolling back constraints on special advocate access to information in immigration security certificate matters created by C-51 is also welcome.

Lawful Access

SECU basically ducks the issue of lawful access, encryption and CSE collection of metadata and private communication.  The report does propose an appropriate warrant where CSE shares with other agencies -- a very vague recommendation.  But interpolating from what is intended, this is actually an issue, since I understand that some sharing may be occurring without warrant.  That is, CSE may be sharing information (incidentally) collected under its Mandate A with CSIS and police. In some instances, this may be information that the latter agencies could only collect had they obtained a warrant.  Since administrative end-runs around Charter rights are unconstitutional (says the Supreme Court), it would be nice to have a handle on this.  Likewise, however incidentally collected, the fact that CSE is acquiring Canadian personal information without judicial authorization raises its own constitutional problems.  I have discussed these issues before.  They are still unresolved.

Final observations

I suppose, not surprisingly, the report continues to be coloured by C-51 and the (disproportionate) focus on terrorism.  There are allusions to other national security threats.  But not a lot of detail on espionage, insider-threats, influence activities, cyber-security, etc.  Hopefully, there will be future opportunity to forward think on these and other national security challenges.

Overall, the report is a welcome benchmark on many of today's key (primarily anti-terror) issues.  Worth a read.

ETHI Report

ETHI's study is a deep dive into the obscure Security of Canada Information Sharing Act (SCISA).  I have less to say on this because the study is particularly comprehensive in its narrative. Covered both the criticism and defence of SCISA fairly, I thought.  And informative on government positions. 

SCISA's problems have always, in my view, been ones of drafting, and less conception.  I think the most of the ETHI report SCISA recommendations are sensible, justifiable and sound.  For the most part, implementing them (or reasonable variants on them) would not degrade the government's objectives with SCISA.  (I think there are technical issues involved in getting SCISA and the Privacy Act to work properly together, but I would be less concerned about subordinating the Privacy Act to SCISA if SCISA was more reasonable.  On the other hand, I still think the best solution would actually be a careful process of amendment and pruning of the multitudinous laws on security and information sharing to make them more coherent, adding where necessary; clarifying in other instances. SCISA was wallpaper over a fissured wall.)

ETHI also has recommendations on reformed accountability review. ETHI doesn't opt for either a super-SIRC or statutory gateways but does press for action of some sort.

And ETHI too raises the intelligence-to-evidence issue (I am so happy!) by recycling the Air India commission recommendations.  I confess that my own thinking on how to address intelligence to evidence has moved beyond the Air India recommendations, but keeping this issue alive in the public policy mind is critical.

Overall, a thorough study on highly technical issues.

If you have a couple of hours, these two studies are worth a read.

If you have even more time: Kent Roach and I discuss many of the issues at play in more detail here and here and here and here.  For the long version, still available, still current, still affordable, consider picking up our book False Security: The Radicalization of Canadian Anti-terrorism, written with verve and élan.

 

 

 

 

 

The Citizenship Revocation Zombie: The Endless Saga of Bill C-6

Bill C-6 constitutes the Liberal government’s efforts to reverse the Tory changes to the Citizenship Act.  Among other things, it restores fraud in acquisition as the sole basis of revoking Canadian nationality.  It repeals the Tory provisions permitting revocation for those dual nationals who commit terrorism offences.

Why this is a good thing

For reasons discussed here and here and here and here, I do not agree with revocation for dual national terrorists.  I understand why it superficially seems like a good idea.  I also understand the impulse that demands denunciation and exclusion.

But revocation does little to make us more secure, while at the same time throwing other values under the bus.

As I discuss here, the Tory regime suffers from obvious constitutional infirmities. And as I discuss here, it is a measure motivated by a sense of grievance, not a cold-eyed assessment of its usefulness as a counter-terrorism tool.  Indeed, in all the parliamentary proceedings, there has been no cogent evidence of which I am aware setting out how revocation makes us safer.  The security presumption amounts to a naïve “Not in My Backyard” supposition.  Pick at the logic of that assumption, and all you are left with is that it just feels good to denounce terrorists.

Which of course is important – and it is exactly what we do with the criminal law, a much more robust and meaningful tool. If we have a problem with anti-terrorism in Canada, it is that we resort too often to administrative measures – which would include revocation – and not enough to prosecutions. But that is another discussion.

Bill C-6’s tardy trajectory

Reverting to C-6, that bill has taken a dog’s age in an apparently very dilatory parliamentary process. Now it is at third reading in the Senate, where under Senate rules it can be further amended.  And proposed amendments there are, including on additional due process standards for the classic revocation for fraud.  That is a good thing, assessed by my lawyerly eye.

But there is also an amendment proposed by Conservative Senator Lang that would restore a species of revocation for a terrorism offence.  The cross-referencing in all these changes is difficult to follow, but as I understand the language: the amendment would permit a criminal court judge trying a terrorism offence to make a declaration as part of any sentencing.  This declaration would have the effect of stripping nationality, but only (in practical effect) for dual nationals.  (The amendment replicates the existing standard guarding against revocation that would violate Canada’s international obligations and produce statelessness).

Meanwhile, the defendant would (still) have the onus of proving that they are not a dual national to avoid this prospect.

Why this is a bad thing

I will give Senator Lang credit for a system more honest that the existing scheme.  The existing scheme introduced by the Harper government was all dressed up as an administrative proceeding, but was clearly punitive.  At least Senator Lang’s proposal embeds revocation in an unequivocal penal setting.  (Although, not having researched it, I cannot think of another instance where a sentencing element for a crime is external to the Criminal Code).

At the very least, the close link to a Canadian criminal proceeding obviates concern about revocation being used in response to some doubtful foreign prosecution, or used by a political minister (the current system) rather than a judge.

But, it will surprise no one to learn that I still think it is a bad idea, on stilts.  First, it does precisely nothing to address my concerns about the security downside of revocation, discussed here, or the practical incongruity of where it would be available (in practice, for terrorist plotters but not actual terroristic killers never charged with terrorism offences, for the sort of reasons discussed here).

But second, the Charter section 11 protections in penal matters clearly now attach.  And there will be no doubt about the applicability of section 7 (fundamental justice) or section 12 (cruel and unusual treatment).  As discussed here, in the United States, the US Supreme Court held long ago that punitive revocation was cruel and unusual – it does not take much imagination to contemplate Canada’s Supreme Court following this reasoning.

As for onus of proof, the jurisprudence on onus of proof under section 11(d) and section 7 could be clearer, but placing the onus on a person to prove that they are not in the category of persons who may be punished by revocation (a form of aggravated punishment) strikes me as, well, supremely problematic.

Take this passage from the Supreme Court's decision in Pearson, directly related to onus of proof in sentencing: "it is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt ...While the presumption of innocence as specifically articulated in s. 11(d) may not cover the question of the standard of proof of contested aggravating facts at sentencing, the broader substantive principle in s. 7 almost certainly would." (The Court cited with approval the earlier case of Gardiner and the following passage from an article by JA Olah: "... because the sentencing process poses the ultimate jeopardy to an individual . . . in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.")

A majority of the Court again cited these authorities more recently in R v. DB to conclude: "the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies" (at para 78).

It is also notable that in the US, revocations (where available at all -- basically, fraud) attract robust due process protections to a criminal standard of proof standard.

A Dual National Canadian is Not-Quite Canadian Enough

All that should be enough to deter any reasonable parliamentarian from venturing down this impossible path. But that’s all nothing as compared to the nuclear issue: The Lang amendment creates a separate penalty regime for dual national and for single-nationality Canadians. For exactly the same conduct and for exactly the same offence, the dual national is exposed to the considerable consequences of revocation, on top of criminal sentence. The single-national is not. 

(Perhaps you could argue that this additional peril might be mitigated by a sentencing judge, for instance, tempering the prison sentence in favour of revocation.  But there is no obligation that they do so.  And the Supreme Court in Pham suggested that there are limits in terms of whether immigration consequences can figure into criminal sentencing.  Nor, as I have suggested, do I think preferring revocation over incarceration is a great idea from a security perspective. Nor do I think you can quantify the relative implications of revocation – leading ultimately to permanent banishment – as compared to a sentence of years. Citizenship, after all, has been properly called the “right to have rights” and the consequences stemming from its revocation may be both more serious and enduring than a criminal sentence. In this last respect, this story of what happened to two former Britons is sobering).

So bottom line: as with the Harper government scheme, we still have a massive section 15 equality problem. Dual nationals would not be equal before and under the law, based entirely on the fact that they have (and perhaps are often stuck with) a dual nationality – or because they can’t prove that they are not dual nationals.  I discuss the niceties of section 15 issues at length here.

The takeaway

Generally, lawyers and law professors are reluctant to speak definitively about how courts might decide questions of constitutional law.  That is because prediction in this area is more idiosyncratic art than true science, and it is embarrassing not to be omniscient. 

But I am going to go out on a limb here (and yes, if ever proved wrong, I will leave this post up): zombies shall walk the earth and winged pigs flock to the sky before a system as proposed in this amendment satisfies the Charter.

C-22 National Security Committee of Parliamentarians Redux: The Good, the Bad, and Avoiding the Ugly

By all accounts, bill C-22 will complete third reading in the Commons next week and will be off to the Senate. But things have not been going all that well.

The Good

C-22 would create a security-cleared national security committee of parliamentarians (CoP). For the first time in Canadian history, parliamentarians who don’t also happen to be ministers would be entitled to access at least some classified information in reviewing Canada’s national security framework and activities.

This is a big deal.

For one thing, Canada is essentially alone among peer states in shutting parliamentarians entirely out of the secrecy tent. 

For another, this idea has been bandied about in one form or another in Canada since the early 1980s. All the official political parties have supported the idea at one point or another. Under the Martin government, an ad hoc parliamentary committee studied the matter and issued a comprehensive report.  The government itself released a detailed discussion paper.  And there was an actual bill introduced in Parliament – that then died with the Martin government.

So in reading what follows, it is important to keep a clear-eyed view of an essential truth: almost any (proverbial) loaf is better than the non-existent loaf we’ve had to date.  

Elsewhere, I have advanced arguments as to why a CoP is important.  But no one can reasonably claim it is a panacea.  No one can reasonably claim that even the most legally formidable CoP could burrow into the deep recesses of the security services and unearth facts that the security services were determined not to share. 

And so everything has always depended on a whole bucketful of good faith: Good faith that the security services are acutely aware that they depend on social licence and they operate in a system built on the rule of law. 

And good faith that a CoP will be something other than another venue in which partisan politicians will play piñata. That is, the CoP must be a place willing to embrace complexity, recognize wicked problems and grapple with nuance.

If you scoff at either of these good faith pre-requisites, then there is no point reading further. And in truth, the idea that parliamentarians could and would meet the good faith standard has been greeted very skeptically in a lot of different places over a good number of years.

In some large measure, C-22 constitutes a suspension of this worry.  And in large measure, that worry is superseded by realization that all of us (the security services included) would benefit from a more sophisticated parliamentary and public discussion of national security.

The Bad

But aspects of the worry lurk, and they explains the structure of C-22.

So where did we start on that structure?  Let’s be clear: even when first introduced in Parliament, C-22 was stronger than its Martin government predecessor.  And while there is some variation of opinion on this, I believed (and continue to believe) that on paper it was (and is) stronger than its Australian and UK analogues.[1] (Whether it will in practice depends on that intangible: the bucketful of good faith).

In other words, C-22 was (and is) at least a half loaf.  But, of course, any half loaf is…missing a half loaf.  And so the parliamentary process is where parliamentarians have a chance to consider a law project.  And I am grateful and appreciative when those parliamentarians call on those of us who are struggling to research and analyze these kind of things.

And so my views (expressed with colleagues) have been: good law project; important development in Canadian national security accountability; has shortcomings that can be fixed.  Put another way: C-22 was a Volkswagen, with some doubtful emissions control results.  With amendments, it could be a BMW.

Without rehearsing all of those shortcomings, the key issue has been: will the CoP have a sufficient entitlement to see the information it needs to do its job? For more on that question, see here.  My view has been that in its first reading version, there were excessive limits on the CoPs access to information that opened the door to too many roadblocks, even when everyone was operating in good faith.  That is because even people operating in good faith can disagree.  And good faith disagreements over sharing of classified information may be the biggest challenge in national security law and policy.  So it would be nice to obviate that inevitable problem by giving the CoP indisputable access.

When C-22 was vetted and amended at committee stage of enactment, we actually got there: full access, except Cabinet confidences. This put the CoP on the same footing as our existing expert review bodies for CSIS and CSE.  I think this is wise and justifiable (see here).

But the manner by which the legislative committee got to these amendments was, well, confusing and did not necessarily reflect the intent of all members of the committee. That is, there were politics in play. And so what had to that point seemed to me to be a very high-calibre legislative deliberation (reportedly) frayed into something less high-calibre.

Predictably, the government put back the legal restraints on access to information when the bill came back to the House on report stage.  Now to be clear: they didn’t put everything back.  They definitely headed in the right direction.  For one thing, they did not restore fully the list of automatic information exclusions.  For instance, military intelligence is no longer automatically excluded from CoP consideration.  But yes, CoP access to information can be carefully controlled by the executive.

And so the question is: what to do now?

Avoiding the Ugly

I’ll offer a few oblique thoughts, for what they’re worth.  Above all else, let’s cool the jets. C-22 is not like other laws.  With most other laws, politicians can irritate each other in Parliament, a bill can pass and the resulting law can still function. 

It can still function because it doesn’t depend on the same politicians now sitting on the institution created by the law, and making it work. 

The C-22 CoP is radically different.  A committee of parliamentarians born in partisan acrimony will die in partisan acrimony.  If the opposition parties see the CoP as a unilateral “Liberal project” bereft of any input attributable to their interventions, they will have no political incentive to seeing the CoP succeed. We may be able to overcome this kind of politics – the actual members of the CoP will not be brick-throwers from their parties. 

But the absence of cross-party buy-in and an accrual of partisan acrimony reduces the prospect that the CoP will work, at all.  The members of the C-22 CoP will need to consolidate around a shared mission, shared professional culture and shared mores of behaviour. 

And if they don’t then the skeptics will be proved right: parliamentarians should never be let anywhere near classified information.

So let me step even further outside of my lane: to get there, there needs to be water in everyone’s wine. The amendments that have been made since first reading close some gaps.  We aren't that far off from a compromise.

What precise changes would bridge the current political crevasse is a matter best left to those who can speak for their parties.  But surely, this is no longer a debate between Volkswagen and BMW.  Instead, we may be within reach of a nice Subaru Outback PZEV with the technology package. (Full disclosure: I have an Outback. It plows through snowy roads nicely).

And so the task shall fall to the Senate. It needs to find us an off-ramp from the impasse.  And along the way, it needs to be thinking about the day after C-22 becomes law. My key point in this essay of mixed metaphors: A parliamentary process that exhausts the stock of good faith needed to power a CoP cuts off the nose to spite the face.

 


[1]                 There is some element of apple and oranges in making this statement. And much depends on how you weight and offset differences in various areas. (For me, breadth of mandate and access to information are the two most important considerations. I also worry a lot about staff resourcing and coordination with the expert review bodies.) For a table that compares the systems in C-22 (as it was at first reading), UK, Australia and NZ, see here.

But to amplify on my view: I think the subject matter and the institutional remit of the C-22 committee is broader than the UK and Australian analogues. (Although Richard Bolto’s fascinating recent study suggests that Australian committee is increasingly able to review operation matters.)

Access to information appears likely to be better for the C-22 committee than the Australian committee – or at least there appear to be more checks and balances on denials.

It is probably a toss-up as to whether the general language in the UK Act on denying access to information is narrower or broader than the more detailed language in the C-22, but what I like about C-22 is that exclusions don’t reach such things as solicitor client privilege.

(In the UK, my sense is that the access to info is a negotiated outcome in some instances, and so it is hard to compare laws and determine what happens in practice. But what is really important is that UK exclusions from information are discretionary -- that is, the government consciously chooses to deny information.  In C-22, there is now a (shorter) list of mandatory exclusions. But that is still a problem: "We can't give you this information, the law stops us. Blame the law". Hard to evolve if that is the standard. Recrafting at least some of these automatic exclusions -- especially the one dealing with law enforcement -- into discretionary exclusions would be a good compromise and something to learn from the UK. Meanwhile, the MoU between the UK ISC and the UK Prime Minister suggests that agency power to deny UK ISC access to information will be exercised “very rarely”.  Hint, hint on where another line of compromise over C-22 might be drawn).

The C-22 regime has more built in efforts to try to web the expert bodies and the C-22 committee together.  On paper, there is more robust staffing powers in C-22. 

The post-2013 UK ISC has some attractive features not reflected in C-22, including the manner in which committee membership is determined.  My own view is that these are not all that consequential. 

For other comparisons that take a less positive view than I do in comparing the C-22 CoP and the UK ISC, see here and here.

 

Much Ado about Probably Very Little: Canadian intelligence and 2012 French election

Last week, some Canadian newspapers posted a story [here and here] about CIA documents leaked by Wikileaks. The second article described the implications of this document as follows:

On Thursday, WikiLeaks released three CIA tasking orders detailing their plan to closely monitor 2012 French presidential candidates, including current President Francois Hollande and current first-round frontrunner Marine Le Pen.

Canada is listed along with New Zealand, Great Britain, the United States and Australia in a section indicating which countries are assisting with the “HUMINT” or human intelligence aspects of the operation. Those countries make up the Five Eyes intelligence sharing alliance.

Within hours, the NDP was calling on the government to explain the document: “Canadians don’t expect their government to spy on our closest allies, especially when it involves their own domestic elections. There’s nothing more sensitive than that, as we’re observing right now with the allegations in the U.S. election.”

This was a remarkable escalation of events.

The actual documents are here.  Like most leaked documents, they lack context, even if they are genuine.  More than that, they are also sprinkled with agency nomenclature that requires parsing.

The single reference to Canada reads:

Apparently on this basis of this single reference, the news reports concluded Canada was asked to "assist" the CIA. (As the story eventually notes: "The documents contain only a single reference to Canada, making it unclear what parts of the CIA efforts Canada may have been involved in.")

But this whole allegation of Canadian participation seems (very) doubtful.  First, none of Canada's actual intelligence agencies has the legal competency to conduct covert, overseas HUMINT foreign intelligence gathering.  CSIS is confined to security intelligence in its overseas activities (and this France activity would not be security intelligence, as defined in s.2 of the CSIS Act). CSIS's broader foreign intelligence collection must be conducted "within Canada" under s.16 of the CSIS Act.

CSE is a signals intelligence agency and would clearly be acting outside of its statutory mandate in doing HUMINT.

Military intelligence operates pursuant to the royal prerogative of defence -- and it is hard to see how that fits.

Global Affairs Canada has a broader remit -- including under the general language of the DFAIT Act and also a conceivable remit under the royal prerogative relating to foreign affairs. It has no express statutory intelligence function, but its legal authorities are broad enough to allow it to collect information in its diplomatic/foreign relations function. Whether it runs covert HUMINT is another matter -- it has confidential contacts, but I'd be surprised to learn it runs more complex HUMINT sources. (Sadly, because Global Affairs is subject to no external independent review, there is little on the public record on its activities, but see this statement made to Parliament.  There, then-DFAIT specified "Canadian diplomats do not work under cover or collect intelligence covertly from human sources").

All of this is to say that there is only a narrow range of options if Canada were to participate in a (let us assume covert) CIA HUMINT foreign intelligence (as opposed to security intelligence) activity: either it is a Global Affairs program of greater breadth than what has been reported in the past, or it is a Canadian intelligence service acting illegally.

But we don't need to go down this rabbit hole for one reason above all else: the document does not seem to say what the news stories inferred. "S//REL TO USA, AUS, CAN, GBR, NZL" is a classification tag (governing intelligence sharing). It translates into Secret//Release to USA, Australia, Canada, Great Britain, New Zealand" (or, in other words, the Five Eyes). See this guide to US classification nomenclature.

It does not, in other words, mean (in any respect that I can discern) that Canada is "assisting with the 'HUMINT' or human intelligence aspects of the operation" (whatever those might be -- and the document is actually very unclear on what, if anything, was being done in terms of HUMINT).

Put another way, unless you want to believe that Canada must be complicit just because you don't trust intelligence agencies, there appears to be no evidence supporting the conclusion on a Canadian role reported in the news stories.

Revoking Citizenship for Terrorism Offences: Testimony to the Senate studying Bill C-6

The following are my speaking notes from my testimony before the Senate on bill C-6 and terrorism citizenship stripping:

Speaking Notes

Bill C-6

Standing Senate Committee on Social Affairs, Science and Technology

Feb 16, 2017

Good morning.  I’d like to express my thanks to the committee for inviting me to appear on bill C-6.  In my statement, I shall focus exclusively on the issue of citizenship revocation for terrorism.  These were powers enacted in 2014, and would be repealed by C-6. I support that repeal.

I will focus on two key points.  First, terrorist citizenship stripping provisions are different from other rules, such as revocation for fraud.  Second, they are problematic from a security perspective.

On the first point:  those defending the 2014 revocation law sometimes claim that war criminals have citizenship stripped, and that the 2014 law is, therefore, no different.

This analogy is misleading.  Nazi collaborators have lost citizenship -- because they lied about their conduct at the time they became Canadians.  The revocation is for fraud, not war crimes.  No Canadian has lost their citizenship for a war crime committed while a Canadian.

The 2014 law did something different: it used citizenship stripping as a supplemental punishment to penalize dual nationality Canadians for things done while a Canadian. In so doing, it effectively converted the many Canadians with dual citizenship into probationary Canadians.

Let me turn to why terrorism citizenship revocation is poor security policy.

First, there simply is no empirical basis to conclude that dual nationals pose a more serious security risk than single national Canadians.

Singling out dual nationals for the special risk of revocation is not, therefore, rationally connected to a security objective, a lethal shortcoming both from a security and constitutional perspective.

Second, Canada has worked arduously and deployed tools like no-fly lists, passport revocation, peace bonds and outright criminal prosecution to stop Canadians from traveling for the purpose of participating in terrorist activity. But the objective of citizenship stripping is, ultimately, to deport these people. If truly dangerous people are deported, the net effect may be to speed foreign fighters on their way.

Again, this raises questions of rationality.

But third, an irony of the structure of terrorism law in Canada is that citizenship revocation will not be imposed on the most dangerous of people. The manner in which terrorism offences are designed in the Criminal Code means they are most likely to be applied to plotters, not killers. Once someone becomes a killer, police and prosecutors are much more likely to charge the person with murder, not terrorism offences.  That is the reason why Justin Bourque, Richard Bains and most recently Alexandre Bissonette (at least so far) were not charged with terrorism offences.

Not a single person currently in prison in Canada for a terrorism offence enacted after 9/11 has actually committed an act of violence.  They were pre-empted.  And so as pre-empted plotters, they now face the risk of revocation, assuming they are dual nationals.  Killers would not.

Four, revocation would consume huge resources, best deployed for different objectives.  Setting aside the inevitable constitutional challenges to revocation itself, subsequent efforts to remove these former Canadians would be an arduous undertaking.  The risk of maltreatment in foreign countries may be high, placing Canada in the invidious position of trying to remove people to torture. 

We have been down this path before, with immigration security certificates.  At the end of the last decade, the government was spending multiple millions of dollars per year per security certificate, often in a vain attempt to defend the measures.  This was not money well spent.

Indeed, more money by a large margin was spent trying to remove people, than Canada has spent in total so far on counter-violent extremism and terrorist disengagement strategies.  While these programs are themselves unproven and untested, they are an area in which Canada clearly needs to improve its practices.  At the end of the day, even for terrorist convicts, rehabilitation, not displacement to other countries, is the most plausible security strategy.

That is because, fifth, displaced dangerous people remain dangerous – and indeed potentially more dangerous than if they remained in Canada. They will likely be impossible for Canadian security services to monitor, they may be free of strictures such as peace bonds, and history suggests that dangerous people outside of Canada can continue to do harm to Canadians and Canadian interests. 

Nor, sixth, would other countries readily welcome the arrival of a person radicalized to violence in Canada – and almost all of those serving terrorism sentences are made-in-Canada terrorists.

Canada’s international anti-terrorism objectives are poorly served if we become an exporter of instability, rather than invest in the hard work of terrorist disengagement.

In sum, it is my view that little recommends terrorism citizenship stripping, and there much that condemns it.

Thank you for your attention.  I welcome your questions.

Prosecutor's Dilemma: Terrorism or Not?

We are all struggling to digest the news from Ste-Foy last night.  We will learn more, as in this case (unlike in several past incidents) the perpetrator appears to be alive, and in police custody.

I am reluctant to write on this tragic matter, but I shall dip my paddle in briefly on one thorny and highly emotive question doing the rounds on social media: "terrorism or not".

Police and prosecutors will need to decide how best to proceed.  If they bring terrorism charges, they will need to prove all the elements of "terrorist activity" as defined in the Criminal Code.  This shall require proof of motive and purpose -- the violent act is not enough. 

Police and prosecutors shall certainly have the basis for murder charges, assuming they have the perpetrator in custody.  If the Justin Bourque experience is any guide, the Crown may wish to proceed on the murder counts, without adding specific terrorism offences to the charge sheet. In 2014, twenty-four-year-old Justin Bourque shot five RCMP members in Moncton, killing three. He later outlined an ideological motive for his conduct, not tremendously different from that of so-called right wing extremists:

[H]e hated the government and the authorities because of the different rules that were made — gun regulation. He talked about foreign workers coming to work in Canada while some Canadians have no jobs. He was convinced that the police were intimidating and screwing everyone in Moncton by working for the politicians. He repeated a few times how he hated the authorities, the government and the police for working for the politicians. . . . [H]e felt oppressed by the law. . . He was rational and aware of what he was about to do. He consciously decided not to shoot civilians. His battle is with the authority.[1]

In sum, he targeted RCMP officers because he viewed them as “‘soldiers’ in the employ and propping-up of a corrupt government.”[2]

Bourque was convicted of murder and attempted murder and will likely spend the rest of his life in jail. But his conduct was not addressed using terrorism provisions, even though his conduct likely satisfied the threshold of terrorist activity and police considered terrorism charges.[3] Bourque is not a one-off. Richard Bain killed one person and injured another in 2012 in an attempt to assassinate Pauline Marois — then Quebec’s newly elected premier and leader of the Parti Québécois — on election night. His statement, “the English are waking up” reveals a political motive.

As Kent Roach and I note in False Security, there may be good reason for the evident prosecutorial parsimony, faced with these incidents.

For one thing, most terrorism offences are directed at conduct preparatory to violence and thus, are of marginal utility at this juncture. 

Moreover, a prosecutor able to secure a conviction for more conventional offences may see no purpose in also pursuing a separate terrorism offence, or seeking an augmented sentence for conventional offences done in association with a terrorist activity. A prosecutor pursuing the terrorism angle would then need to prove the complicated elements of terrorist activity beyond a reasonable doubt, and Justin Bourque could not have been sentenced to a longer term had his prosecutors made that effort. Bourque (and Bain) faced charges with mandatory minimum life sentences — meaning that there is no possibility of an increased penalty for terrorist activity.  And the same seems likely to be true in this case.

But there is a political downside: what may be good prosecution strategy may contribute to the impression that terrorism offences are confined to only certain sorts of perpetrators, motivated by AQ/ISIS-related ideology. This makes for a horrific narrative.

Nevertheless, going forward, it will be helpful that we all keep an eye on these sort of legal preoccupations in understanding what may unfold in this case.



[1]               R v Bourque, 2014 NBQB 237 at para 8.

[2]               Ibid at para 10.

[3]               Douglas Quan, “Justin Bourque: Terrorism charges were once pondered against man who shot dead three Mounties” O-Canada.com (31 October 2014), online: o.canada.com/news/justin-bourque-terrorism-charges-were-once-pondered-against-man-who-shot-dead-three-mounties.