To understand why Canada has failed to criminally prosecute foreign collusion, old news reports from Washington provide a useful starting point.
In 1981, a Canadian correspondent noted that Canada and the United States were on opposing paths when it came to using security intelligence for policing.
The US tightened regulations while Canada relaxed them — remnants of that era remain in Ottawa’s ongoing scandals — and it’s unclear how much the upcoming law will change that.
Some Canadians may have been surprised by reports earlier this month that politicians were knowingly or unwittingly cooperating with foreign governments to receive campaign assistance and overseas donations.
Those shocked include a former Canadian intelligence officer who worked closely with several U.S. agencies and saw the night-and-day difference in surveillance efforts by police in those countries.
“It wasn’t a surprise to us,” said Scott McGregor, a military and police intelligence official who recently co-authored a book about Chinese interference in Canada. “This information has been around for years.”
WATCH | Reports say some MPs are helping foreign powers interfere in Canadian politics
Reports say some MPs are helping foreigners interfere in Canadian politics
A new parliamentary report paints a stark picture of foreign interference in Canadian politics and characterizes the government’s response as a “serious failure” that could affect the country for years to come.
“The problem of moving from information to evidence”
After the explosive parliamentary report, the Royal Canadian Mounted Police released a lengthy statement announcing it was investigating – only to acknowledge in the next moment that the investigation had serious obstacles.
Firstly, police have limited access to information: the Royal Mounted Police admitted they were unaware of some of the details in the report.
On page 29, there is one striking example: Indian agents allegedly claimed to have repeatedly transferred funds from India to Canadian politicians at all levels of government in exchange for political favors, such as pushing certain issues in Parliament. Canada’s Security Intelligence Service had this information but did not share it with the RCMP, the report says.
Both the report and the Mounties cited other obstacles. Even if police do see the information, using it in court is another, more complicated story.
The foreign interference bill just passed by Parliament, Bill C-70, will not solve this problem, and two former heads of the Canadian Security Intelligence Service agree.
A copy of a shocking report alleging collusion between Canadian lawmakers and foreign governments is pictured holding Green Party Leader Elizabeth May. (Adrienne Wylde/CP)
Ward Elcock and Richard Faden told CBC News that while parts of the bill may be helpful, attempts to prosecute would continue to run into unresolved constitutional issues.
“It can be deadly. [for criminal cases]” said Mr Elcock.
There’s even an industry term for the issue, said a former CSIS analyst, who described it as central to Canada’s struggles to prosecute national security cases.
“We call this the information-to-evidence problem, or I2E,” says Stephanie Carvin, now an associate professor in the Norman Paterson School of International Relations at Carleton University.
The turning point: 1981
Carbin sees the early 1980s as a turning point.
At the time, the United States was just emerging from the post-Watergate era, and the intelligence community was tainted by scandal and disgrace. President Ronald Reagan signed an executive order and multiple national security directives encouraging intelligence agencies to work with law enforcement.
Meanwhile in Canada, a multi-year investigation found that the RCMP engaged in egregious illegal activities while conducting intelligence activities, including burning barns, opening mail, trespassing and stealing party membership data.
The government of the time turned a blind eye to such activities, a reaction to the 1970 Quebec terror crisis.
After the report was released, Pierre Trudeau’s government accepted its main recommendations and stripped the RCMP of its security intelligence role, handing it over to a new civilian agency, CSIS.
The first director of CSIS practically boasted about his lack of intelligence experience, which was well received.
“I’m a novice,” Fred Gibson, a former low-profile civil servant, told the Toronto Star in 1981.
To this day, Canada does not have a foreign intelligence agency like the CIA or Britain’s MI6, and CSIS fulfills the domestic security role usually played by the FBI and Britain’s MI5.
Getting information back to the RCMP can be difficult.
WATCH | LeBlanc says federal government cannot release names of lawmakers in foreign interference report ‘by law’
LeBlanc says federal government cannot release names of lawmakers in foreign interference report
Public Security Minister Dominique Leblanc said he takes very seriously the comments made by leaders who have read the unredacted NSICOP report, but wishes Conservative Party Leader Pierre Poirierbre had taken steps to obtain a security clearance so he could read the report. Leblanc also said that “by law” the government cannot release the names of lawmakers implicated in the document.
Intelligence agencies are rightly wary of leaking secrets: CSIS warrant applications, for example, can be as long as 50 pages and are full of details that could lead to the death of a source, Carvin said.
These applications are not publicly available, but if they are used in criminal cases they will need to be scrutinized in a more public setting.
“That’s where these cases fall apart” in court.
Lawyers have the right to know how a warrant was obtained and can challenge it on constitutional grounds, a right established in a 1990 Supreme Court decision.
If CSIS cannot convince the court, the information obtained from the wiretap will be thrown out, Carvin said.
“CSIS would basically have to go to court and say, ‘Yes, we’ve got this.’ [our informant] “Sarah will be killed by the Russians,” Carbin said, “and that’s where these cases usually fall apart.”
She points to a botched case in which Canadian military shipbuilding secrets were sent to China – charges dropped after a years-long dispute over intercepted communications from the Chinese embassy in Ottawa.
After eight years of delay, a judge in 2021 dropped charges against Quentin Huang Chin, who was accused of providing Canadian military shipbuilding secrets to China. Pictured, lawyer John Lee speaks to reporters in Toronto in 2013. (Mark Blinch/The Canadian Press)
McGregor recalled that former police colleagues actively avoided accessing the information, which they believed was more likely to harm than help the case.
“I took information to the Royal Canadian Mounted Police and they said, ‘Don’t say anything, you’re going to taint the case,'” McGregor said. “It’s not the only time that’s happened.”
He compares that to what he has seen from his international colleagues, who have worked frequently with Five Eyes civilian and military agencies during their careers in counterterrorism, narcotics, money laundering and piracy, and in roles with the Canadian Forces, the Royal Canadian Mounted Police and the British Columbia government, as well as in the Middle East and North America.
For example, a local police force in the United States might want to wiretap a drug cartel, and would likely get funding for the operation from the Drug Enforcement Administration and share its findings with the DEA, which has deep ties to the entire U.S. intelligence community.
“The United States understands intelligence,” McGregor said. “Canadian law enforcement doesn’t understand what intelligence is to the same extent as the United States.”
He said it was not surprising that U.S. intelligence agencies have led some of the most high-profile national security cases involving Canada.
Through the U.S. cases, Canadians learned details of the alleged murder of a Sikh nationalist in Canada at the behest of the Indian government, the alleged hiring of Canadians by Iranian intelligence to carry out assassinations in the United States, and a crackdown on so-called Chinese police stations in New York that had some connection to Canada.
US intelligence powers have expanded since 9/11
The United States was also involved in the arrest of a top Royal Canadian Mounted Police official who was coordinating the police’s use of intelligence.
The Washington state arrest brings to light a case against Cameron Otis, former head of the Royal Canadian Mounted Police’s National Intelligence Coordination Centre, who is currently serving a 14-year sentence for leaking state secrets and is currently on appeal.
“A significant percentage of our cases start with the U.S. intelligence community,” Carbin said. “They have more agencies, more people, and they’re putting resources into this.”
Benjamin Witts, a fellow at the Brookings Institution and founder of the blog Lawfare, said the trend accelerated after the Sept. 11, 2001, terrorist attacks, which led to a series of changes to U.S. law.
A communication gap between domestic police and international intelligence agencies was cited as a cause of failure just before the Sept. 11, 2001, terrorist attacks in the United States, the effects of which can be seen on the Manhattan skyline. (Ray Stubblevine/Reuters)
Reforms since 2001, such as the Patriot Act and subsequent legislation and related court cases, have expanded the use of intelligence in US policing. After investigations into the attacks found poor communication between the foreign-focused intelligence agencies and the domestically-focused FBI, subsequent reforms not only further integrated their activities but also made it easier to obtain surveillance warrants.
When Canada opened up public consultation on its current Bill C-70, the federal government said it was considering reforms to how intelligence information is used as criminal evidence.
But the bill, which passed the Senate and became law this week, does little on that front.
Criminalizing conspiracy
The C-70 has another role to play: Foreign agents must sign a public register in Canada, as they do in the United States, Britain and Australia.
In addition, it is a criminal offence punishable by life imprisonment to conspire with a foreign government, defined as a person engaging in deceptive conduct at the direction of a foreign government to influence Canada’s political process, such as legislation, party nominations or election platforms.
Carbin called the failure to resolve the so-called I2E issue a major disappointment.
The Royal Canadian Mounted Police, led by Michael Duhem, left, and the Canadian Centre for Information Sciences, led by David Vigneault, center, have struggled to share information for criminal trials. It’s unclear whether Bill C-70, a sweeping new foreign interference law being spearheaded by Public Security Minister Dominic Leblanc (right), will change that. (Justin Tan/The Canadian Press)
“I understand why the RCMP are frustrated,” she said. “Unless this issue is resolved, we can make as many laws as we want, but we’re never going to be able to prosecute the way we should be.”
Faden, the former CSIS director, said he spent years trying to resolve the issue, and he hopes politicians can enact legislation that achieves the two conflicting goals of keeping details secret while allowing defendants to access information under their constitutional rights.
In Elcock’s view, the only way to resolve this issue is to amend the constitution or for the courts to establish new precedent.
Until then, he said, using intelligence to prosecute cases will remain more difficult in Canada than in allies such as the United States and Britain, which have different constitutional realities.
“We can’t just wish this problem away,” he said.
