OK, finally got a bit of time to bash out a (edit: LONG) post here on the criminal investigation/prosecution side of this, and the challenges. I'll try to go into better depth than just waving my hands and saying "I2E". I'll talk a bit about
why our courts struggle with using the material that exists.
First, to situate the conversation: As a definition of 'foreign interference' I'm going to go with a portion of the definition of "threats to the security of Canada" as written in the CSIS act. That definition is important because it establishes authority for CSIS to collect, as well as informing the policy on National Security investigations by RCMP and prosecutions by the Public Service Prosecution of Canada. So it's a useful and coherent definition. That definition is:
"(b) Foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,"
So:
- Foreign influenced
- In Canada OR outside but relating to Canada
- Detrimental to our interests (this is very broad)
- Clandestine or deceptive OR involve a threat to any person.
This captures the broad range of possibilities quite well.
Now, this is law empowering our security intelligence collection. It does NOT create crimes. In fact, until August 2024, most things that could constitute foreign interference
were not crimes. The erstwhile Security of Information Act mostly concerned espionage- very relevant, but only overlapping this issue, not comprehensive. It did have one offense for "Foreign-influenced or Terrorist-influenced Threats or Violence", but it was restrictive and needed pretty clear threats or violence to be met. It has never been charged or prosecuted, and most of the things we see in the news fall short of that- although, potentially, some of the Khalistani-related oppression-via-threats alleged to have been committed by India could hit the elements,
if proven. My wild guess is that the murder and extortion charges that have been prosecuted were much easier and cleaner to prosecute as straight murder or extortion, with no value added form testing an unproven offence that would involve, uh... 'complicated' evidence.
This just changed. Old SOIA is no more. In August it was amended to the 'Foreign Interference and Security of Information Act', FISOIA. It still has all the old familiar SOIA offences - STFU for life, don't talk about classified national security secrets, etc etc. But it added a number of new crimes for Intimidation, threats, or violence outside Canada; committing any other indictable offence for a foreign entity; engaging in 'surreptitious or deceptive conduct... for purposes prejudicial to the state...'' (there's that CSIS act definition sneaking in), and, written very broadly, 'political interference for a foreign entity' with a TON of ways to tick that box. All of these new offences have to be done at the direction of, in association with, or for the benefit of a "foreign entity". I've simplified and summarized a lot, but the new offences can be found in Ss. 20.1 to 20.4 of FISOIA.
Foreign Interference and Security of Information Act
So the good news is a lot of stuff is now illegal that wasn't. Particularly, I actually find the 'commit indictable offence for a foreign entity' to be EXTREMELY broad. Basically if you do
any other serious crime at the of, for the benefit of, or in association with a foreign entity, you've committed a separate and distinct offence. I let this bounce around my brain a bit. Extortion for a foreign power? New distinct offence on top of the extortion itself.
Oh, and these new crimes? All carry up to life in prison, and all specifically say that sentences are to be served
consecutively to any other sentence. So if you eat a Foreign Interference charge and are convicted, that adds years on top of anything else you would be serving for the other stuff you did. In practice, and I mention this to keep
@FJAG happy, probably in such cases we would see underlying offences treated as 'lesser included' and stayed per
Kienapple, with the sentencing for the FISOIA charge bumped upwards accordingly. But anyway- get convicted for foreign interference offences, you're walking in the door knowing you face life.
These offences cannot apply retroactively. Anything done before August 19th, 2024 does not fall under the new offences. Going forward, now that the crimes exist, prosecuting them will be the challenge. This pulls us right back into questions of I2E.
I see some people say "Intelligence is not evidence". I don't like this sweeping generalization. I usually see it uttered by or attributed to people working in the intelligence world who are used to a blanket approach of 'this material
shall not cross into criminal matters'. They take that to mean it
can not cross into criminal matters. Or they'll say that the nature of how the information came in means it cannot be sufficiently probative to be regarded as evidence.
I don't agree. To the second point first: National security intelligence is pulling in
information. So too is criminal evidence. Setting aside the question of admissibility for now, the quality of the information is more about how credible, compelling, and corroborated it is, not automatically determined by where it came from. CSIS works a lot of confidential informants who may be of dubious value and questionable integrity... But that equally describes police confidential informants. The people who can give actionable source info on drug gangs are often not the most upstanding or honest people. Similarly, and this is me going way out there now into hypotheticals, but if a domestic or foreign intelligence agency has communications intercepts... Well, police do that too. It's called a wiretap. What's different here is the legal framework and the methods.
Information is not valueless to law enforcement and prosecutions just because it is called 'intelligence'. Police also collect 'intelligence', albeit usually not with the degree of sensitivity and classification of, say, security intelligence human sources. Police intelligence can and does come with similar use caveats. I have written affidavits to get judicial orders where part of the process was requesting permission from a police organization to use their
intelligence material, and to modify their caveat.
So- Security intelligence is not
inherently not evidence in the sense that it's useless info. Au contraire, if it were authorized for use it could be quite compelling indeed. Intelligence info and witness testimony from the RCAF and CFINTCOM was used in a case int he early 2000s for some loser who took a Canadian Army officer hostage and used him as a human shield in Yugo. Approaches were found and actually a whole new structure developed to use that info.
So, if the security intelligence isn't 'not evidence' because of what it inherently is or how is it sourced, why is it 'not evidence'? Well, because the government of Canada says so- usually to
protect how it was sourced. And that's not wrong.
When evidence is tendered in court, the accused is able to challenge it. If I write a wiretap warrant, and it results in us listening to criminals' conversatiosn and we get evidence, eventually we need to disclose the existence of that wiretap, AND we need to disclose my (likely very lengthy and detailed) affidavit asking the court for permission to do that. That affidavit will spell out a lot of the investigation. There are some things we can redact, but they're gonna get most of it. That's our 'sources and methods' at risk. Now, we can write confidential appendices to include, say, human source info- the courts will protect source info, so if we write well and are selective in what info we include, the accused shouldn't be able to piece together who the informant(s) is/are. But they do get to try. Further, if the defense counsel argues that there are significant weaknesses in my affidavit, I as the affiant may have to take the stand as a police witness, be questioned, and testify as to my grounds for belief. That can get sketchy, and can be used by skilled defense counsel to try to paint police into a box where if they go any farther, the identity of a source might get compromised. If any investigator states that they 'believe' something, and act on it in the investigation, they need to be ready to defend the basis for their belief. 'Well, CSIS told me..." counts for very little if CSIS is not next on the stand to defend it.
In criminal prosecutions in Canada, Crown has a duty to disclose
all evidence that could possibly be relevant to the case. That's an extremely broad disclosure obligation. Contrast that with the U.S., where prosecutors have to disclose the evidence they rely on, as well as anything that 'exculpatory or impeaching', and material to guilt or innocence. It's still a lot, but it leaves out a ton of information that isn't
relied on by prosecutors, and isn't material to the defense, or the degree of culpability or possible punishment. This means that a lot of material can be collected and considered, but ultimately not disclosed because it doesn't get used, and it doesn't let the guy off the hook. So, in Canada, were intelligence information to enter a criminal investigation and prosecution, it would by default be disclosable (hold on, I'll get to it), whereas in the US there are easier way around that.
Now, jsut because something is presume disclosable, doesn't mean the accused will definitely get it. The Canada Evidence Act allows for privilege to be asserted to protect certain public interests (S. 37 CEA, often sensitive investigative techniques or other ongoing investigations), for national security or international relations (S. 38), or Cabinet confidence (S. 39). I'll focus on S. 38 - national security and international relations. And I'll do this by contrasting Canada and the US.
Let's imagine a national security offense. Say, unauthorized disclosure of security intelligence, or one of the new Foreign Interference offences. And let's suppose that in this investigation, there is classified intelligence involved - maybe as the actual information that was leaked, or maybe coming form a domestic or international intelligence partner to say "Hey, Buttcrackistan is running a foreign interference network in Canada; this diplomat is running seven agents, and this foreign intelligence officer is in Canada under the radar to pressure the diaspora to vote for certain candidates in leadership elections and the general election". Let's say that's some rock solid security intelligence whose sources and methods MUST NOT be burned, and that some of it is foreign and not authorized to be disclosed in court.
In Canada, this would be investigated by RCMP and prosecuted by the Public Prosecution Service of Canada. In the US, by FBI and DOJ. Pretty analogous.
In Canada, though, the prosecution of crimes is
always in Provincial courts. Serious offences will be in the Superior Court of Justice of a province. in the US, they have Federal criminal courts that can prosecute federal crimes - remember. Canada has a single system of criminal law, in the US they have at least 51. The feds, and each state.
Here's where this becomes a problem. In Canada, we
do have a system for the government to assert that S. 38 CEA National Security privilege, and to suppress information from seeing the light of day in court. This was developed for the aforementioned Yugoslavia / hostage taking prosecution of a gent named Ribic, a Serbo-Canadian who went home to fight for Serbia and ended up back in Canadian custody after his hostage taking. The way this works is essentially thus:
1. The Attorney General or a delegate asserts, based on notice from someone in the criminal prosecution (usually Department of Justice non-prosecution counsel, but could conceivably be the prosecutor or even investigating police) that information could be disclosed which would be potentially injurious.
2. An application is made to
Federal Court to have the matter considered in camera by a federal court judge, to determine if in fact the potential for injury exists. The federal court judge will consider the relevance of the material, the potential injury, and whether the public interest favours disclosure. The Department of Justice (as opposed to Prosecutors) will propose the actual redactions, based on consultation with the actual agencies that 'own' the material, or who are Canada's counterpart to the applicable foreign agency that does. So, say for example, CSIS would say 'here are the black boxes we want' and DOJ would say 'OK' and argue that to federal court. The defense does not get to see the material when fighting this, however they can have a security cleared lawyer appointed by the court as an Amicus who will hear the proposed arguments of both sides, will see the material, and will advise the judge to help decide. The federal court judge can order full or partial disclosure, or completely uphold the AG's proposed redactions. If the AG disagrees, the AG
can by fiat overrule the court with regards to the admissibility of the info. A rare executive veto over the judiciary.
3. Once this is determined, the resulting final vetted version of the disclosure is given to defense. Maybe that's pages entirely covered in a big black box, maybe it's heavily or lightly redacted. But the defense
never gets to see under the black. So too, the trial court judge
never gets to see under the black. This is important: The judge presiding over the criminal trial will never get to know the actual contents that are redacted, and so is unable to make their own assessment of the impact in full knowledge of both the information content, and the larger impact on the trial.
4. The defense then will probably make an application saying that the lack of access to classified information renders the trial unfair. The trial court judge - again, not knowing what the material actually is - has to take their best stab at what's reasonable and fair. This can mean some charges completely dismissed, or it can mean certain crown evidence is excluded, or what have you. But, I think it's fair to say, the court will lean toward erring on the side of protecting the right to presumption of innocence.
The U.S., by contrast, will prosecute such matters in federal trial courts, and they will essentially import into the individual court and case a system to security clear court staff and counsel, brief, handle, safeguard, and argue classified materials. The judge
does get to see the contents, while ultimately filling a similar role of deciding what will and what will not be disclosed. The judge can make similar determinations about trial fairness, can toss charges, order certain evidence suppresses, etc. But it's a decision that is made much more knowingly, and therefore, I would content, much more precisely and surgically. It's also happening within the same court as part of the pre-trial process, so it's not bouncing between (and causing delays in) various levels of court as it would here.
So- Canada has a more cumbersome process for taking such information into criminal proceedings. It's a process that leaves the trial judge ignorant about the actual precise content in question, and having to make a decision on trial fairness by making their best guess, with only the written decision of the federal court to rely upon (although this can include classified portions that the trial judge will see but the public won't).
Canada also uses this
far less frequently. There have only ever been I think three prosecutions under SOIA, only one of which went to trial and ultimately to a jury verdict last year. I'm sure there was at least a bit of this as well in some terrorism cases, though those tend to be built on conventional non-classified police evidence, potentially after a national security agency says, with minimal to no detail, 'Uh- this guy's a problem, you better take a look'.
National security evidence considerations would inform every single stage of the investigation from early on all the way to the final trial. You need investigators and prosecutors who can wrap their heads around this and not crash into the problems that can arise. In Canada there are likely only a handful of prosecutors and police investigators who have worked most or all of the lifecycle of these sorts of files and who understand how to handle this stuff, because it's simply very rare. Why try to bring this evidence in if you can just run a clean murder or extortion trial? But this lack of experience will be a friction on future investigations; sort of the 'every roto is roto 0' that's familiar to anyone in CAF. If you don't rep something out enough you don't really build up institutional knowledge. And of course even after doing something once, doesn't mean someone's career keeps them in situ to be there running the file when the issue comes up again. Maybe they're on to higher management, or a different field office.
So, in the shell of a really huge nut, these are a lot of the practical considerations and, at times, barriers to bringing security intelligence into a prosecution. As a rule of thumb, investigators will seek clean, usable information... But in some crimes that simply may not exist. Police may not be able to replicate a signals intelligence intercept that tells us another government is screwing with our democracy. They may not be able to prove classified information was leaked without actually tendering the leaked information in court - Canada has never yet cracked that nut in the security intelligence space, though it's barely had any chances to.
I do not believe that our new FISOIA offences are impotent. I do believe they'll be challenging to investigate and prove without relying on information that comes form intelligence agencies and which they aren't cool with having disclosed in court. That pushes some of this back into the policy realm to decide if we will change how we view the sanctity of security intelligence... But that is best done super carefully, because those wells can and will dry up fast if we draw from them too liberally. And we have no authority at all to waive the privileges asserted by international partners. They can't stop us from doing it with material we already have, but fuck with it and watch how quickly Five eyes becomes Four Eyes-
very much to Canada's detriment.
This long overdue post of dubious quality brought to you by my kid sleeping in and two cups of coffee.
nationalpost.com
