There’s an old problem Canada’s new foreign-interference law won’t fix

There’s an old problem Canada’s new foreign-interference law won’t fix

To understand Canada’s failure to criminally prosecute foreign collusion, an old news report from Washington offers a useful starting point.

In 1981, a Canadian correspondent made an observation: when it came to using security intelligence in policing, Canada and the U.S. were diverging onto opposite paths.

The Americans were ramping up, while Canadians were dialling down. The legacy of that era lingers to this day in an ongoing Ottawa scandal. And it’s unclear how much will change under a soon-to-be-enacted law.

Some Canadians might have been startled by a report earlier this month that politicians wittingly, and unwittingly, collaborated with foreign governments, getting campaign help and even receiving foreign donations.

The shocked did not include one intelligence veteran in Canada who worked closely with multiple U.S. agencies and has seen the night-and-day difference in how police in each country use surveillance.  

“It wasn’t a surprise to us,” said Scott McGregor, a military and police intelligence official who recently co-authored a book on Chinese interference in Canada. “This information has been around for a number of years.”

WATCH | Some MPs helping foreign actors meddle in Canadian politics, report says:

The ‘intelligence-to-evidence problem’

After the bombshell parliamentary report, the RCMP issued a lengthy statement that announced it was investigating. But in the next breath, it acknowledged serious roadblocks to investigating.

For starters, police get limited access to intelligence. The Mounties confirmed they’d been unaware of some details in that report.

There’s a striking example on Page 29: An Indian proxy allegedly claimed to have repeatedly transferred funds from India to Canadian politicians at all levels of government in exchange for political favours, like promoting certain issues in Parliament. Canada’s security-intelligence service had this information and did not share it with the RCMP, said the report.

The report and the Mounties both cited other obstacles. Even if police had seen the intelligence, using it in a trial is another, more complicated, story.

The foreign-interference legislation that just passed Parliament, Bill C-70, doesn’t solve this problem. Two former heads of the Canadian Security Intelligence Service agree on that point. 

While parts of the legislation might prove useful, Ward Elcock and Richard Fadden both told CBC News, attempts to prosecute will keep bumping into unresolved constitutional challenges.

“That can be a killer [for criminal cases],” Elcock said.

There’s even an industry acronym for this issue, says a former CSIS analyst, who describes it as a core factor in Canada’s struggle to prosecute national-security cases.

“We all call it the intelligence-to-evidence problem — I2E,” said Stephanie Carvin, now an associate professor at Carleton University’s Norman Paterson School of International Affairs.

A fork in the road: 1981

Carvin identified the early 1980s as an inflection point.

At the time, the U.S. was just emerging from a post-Watergate era, in which its intelligence services had been marred by scandal and disrepute. President Ronald Reagan signed executive orders and multiple national-security directives that encouraged intelligence agencies to co-operate with police.

Meanwhile in Canada, a multi-year inquiry found the RCMP had engaged in inexcusable and illegal behaviour while conducting intelligence work: burning a barn, opening mail, breaking-and-entering and stealing a political party’s member data. 

The government of that era had turned a blind eye to such activity, which was, in part, a reaction to the 1970 Quebec terrorist crisis. 

When the inquiry report came out, Pierre Trudeau’s government accepted its key recommendation, stripping the RCMP of its security-intelligence role and handing it to a new civilian agency, CSIS.

The man who led CSIS as it was being created candidly admitted he had no intelligence experience. This was seen as a positive.

“I’m a neophyte,” Fred Gibson, previously a low-profile civil servant, told The Toronto Star in 1981. 

To this day, Canada does not have a separate foreign-intelligence service like the CIA or Britain’s MI6; CSIS serves the domestic-security role played by the FBI or Britain’s MI5.

Getting information back to the RCMP has its challenges. 

WATCH | ‘By law’ feds can’t release MP names in foreign interference report, LeBlanc says:

Intelligence services are understandably wary of having secrets spill out. For example, Carvin said applications for a CSIS warrant might be 50 pages long and loaded with details that could get sources killed.

Those applications are not public, but if they’re to be used in a criminal case, they must be scrutinized in a more public setting. 

In court: ‘That’s where these cases fall apart’

Defence lawyers have a right to learn how a warrant was obtained, and can challenge it on constitutional grounds, a right entrenched in a 1990 Supreme Court decision. 

If CSIS can’t satisfy the court, the information from the wiretaps is tossed out, Carvin said.

“CSIS is basically going to have to come into court and be like, ‘Yeah, we got this from [our informant] Sarah, and Sarah’s gonna be killed by the Russians,'” Carvin said. “And that’s usually where these cases fall apart.”

She points to one failed case, involving Canadian military shipbuilding secrets being sent to China. Following a years-long dispute over communications intercepted from the Chinese embassy in Ottawa, the charges were dropped.

McGregor recalled how former police colleagues would actively recoil from accessing intelligence. To them, it was likelier to hurt their case than help.

“I’ve brought information to the RCMP and have them say, ‘Don’t say anything, because it’ll taint the case,'” McGregor said. “It happened more than once.”

He compares that to what he’s seen from international peers. He worked frequently with Five Eyes civilian and military agencies during his career in counterterrorism, narcotics, money-laundering and piracy, in his roles with Canada’s military, the RCMP and the B.C. government, in the Middle East and in North America.

A local U.S. police force, for example, might want to wiretap a drug gang. It could get funding for the operation from the U.S. Drug Enforcement Administration, then share its findings with the DEA, which is enmeshed in the broader U.S. intelligence community.

“The United States understands intelligence,” McGregor said. “In Canada, law enforcement doesn’t have the same comprehension of what intelligence is.”

It’s no surprise, he said, that U.S. intelligence drove several of the highest-profile national security cases involving Canada.

Through U.S. cases, Canadians learned details of the alleged Indian government-directed killings of Sikh nationalists on Canadian soil; of Iranian intelligence allegedly hiring Canadians to conduct assassinations in the U.S.; of a crackdown on a so-called Chinese police station in New York that had some Canadian connections.

U.S. intelligence powers expand after 9/11

Even in the arrest of a top RCMP official who co-ordinated the force’s use of intelligence, there was a U.S. role.

It was an arrest in Washington state that broke open the case against Cameron Ortis, the former director general of the RCMP’s National Intelligence Coordination Centre, who now faces 14 years in prison for leaking state secrets, pending an appeal.

“A significant percentage of our cases start with U.S. intelligence,” Carvin said. “They have more agencies, more people, and … they put resources into this.”

This accelerated after the terrorist attacks of Sept. 11, 2001, which led to a torrent of changes in U.S. law, said Benjamin Wittes, a fellow at the Brookings Institution and founder of the Lawfare blog.

Post-2001 reforms expanded the use of intelligence in U.S. policing with the Patriot Act, follow-up legislation and related court cases. An inquiry into the attacks found that foreign-focused intelligence agencies and the domestic-focused FBI communicated poorly, and subsequent reforms not only further integrated their work, but made it easier to get a surveillance warrant.

As Canada opened public consultations for what’s now Bill C-70, the federal government said it was considering reforming how intelligence is used as criminal evidence.

But the bill, which just passed the Senate this week and will become law, does little on that front.

Criminalizing collusion

C-70 does other things. Agents of foreign countries will have to sign onto a public registry in Canada, as they do in the U.S., U.K. and Australia.

In addition, it will be a crime to collude with a foreign government — potentially punishable by a life sentence. Collusion is defined as someone engaging in deceptive conduct, at the direction of a foreign government, to influence a Canadian political process like legislation, a party nomination or an election platform.

Carvin calls the failure to resolve the so-called I2E problem a major disappointment.

“I do understand why the RCMP is frustrated,” she said. “Until we fix this, we can pass as many laws as we want. But we’re never going to be able to prosecute the way we should.”

Former CSIS director Fadden said he spent years trying to crack this problem. He retains hope politicians might yet write a law that achieves two contradictory goals: letting defendants access intelligence as per their constitutional right, while keeping the details secret.

In Elcock’s view, the only ways to resolve this issue are reforming the Constitution, or the courts setting new legal precedents.

Until then, he said, prosecuting cases using intelligence will remain more difficult in Canada than in allied countries, like the U.S., and the U.K., which have different constitutional realities.

“You can’t simply wish this problem away,” he said.

Published at Sat, 22 Jun 2024 08:00:00 +0000

The ghosts of Canada’s 1993 Conservative wipeout hang over Britain’s election campaign

Rural Alberta may be a continent away from the faded British seaside town of Clacton-on-Sea, but Nigel Farage believes both places will be remembered for starting political revolutions. 

Already a familiar face to Britons, Farage has injected some drama into an otherwise staid British general election that the Labour Party under leader Keir Starmer appears well on its way to winning.   

Farage, instead, has set his sights on the Conservatives, transforming his political party, Reform UK, into a rising political force that appears to be siphoning off their votes.  

“What we want to do is replace [the Conservatives] with something more positive,” Farage told CBC News at a well-attended political rally earlier this week in Clacton, where he’s running to be the next member of Parliament. 

Reform UK is just the latest in a series of political vehicles invented by Farage over the past three decades that have aimed to disrupt Britain’s political status quo. 

He was the former leader of the Euroskeptic United Kingdom Independence Party that pushed for Britain to leave the European Union. After Britain voted to leave in the 2016 Brexit referendum, he created the Brexit Party to push for a no-deal Brexit. 

Though successful at securing seats in the 2019 European Parliament elections, the party didn’t win any in the last U.K. general election that same year.

In 2021, after the final terms of departure from the EU were finalised, the Brexit Party was reborn as Reform UK. Farage has had seven failed attempts at securing a seat in Britain’s Parliament, but his eighth attempt may be his best chance yet.

Since 2020, Reform UK has attracted a couple of high-profile defections from the governing Conservatives, but the July 4 vote will be its first major electoral test.

Likely best known for his anti-immigration policies, Farage has praised the political skills of Russian President Vladimir Putin, even though he said he “doesn’t like him as a human being.” 

He also counts himself as a big admirer and friend of former U.S. president Donald Trump.  

And, as he told CBC News in an interview in Clacton this week, he has great respect for former Canadian politician Preston Manning as well.

Modelled after Manning

“Huge, huge, huge,” he said,  when asked about how important the former leader of Canada’s Reform Party has been in shaping his current campaign. 

Farage’s often-stated ambition is for Reform UK to eventually replace the mighty British Conservative Party, which has run the country for the last 14 years. He said his blueprint for doing so is modelled after what Manning did in Canada.

Founded and led by Manning as a Western protest movement, Reform won its first seat in Canada’s Parliament in a by-election in Alberta in 1989.   

Manning campaigned on a populist agenda, which included creating an elected Senate, abolishing official bilingualism and broadly reducing the size of government. In the 1993 federal election, Reform stormed to prominence, winning 52 seats and replacing the Progressive Conservatives as the voice of Western Canada. 

The Progressive Conservatives, which only nine years earlier under Brian Mulroney had won the largest majority in Canadian history, were reduced to just two seats. Even Prime Minister Kim Campbell lost her riding. 

‘Our Canadian cousins’

“I met Preston a few years ago,” Farage told CBC News. “I watched what [Reform] did, and I set the Brexit Party up for a reason to complete the Brexit process and we were very successful — and [then] I rebranded it Reform UK, thinking very much of our Canadian cousins.

“In the end they sort of ‘reverse took over’ the old Conservative Party — they are the model. That’s the plan.”

After failing to break out from its Western protest roots, Manning transformed Reform into the Canadian Alliance, but he lost the leadership in the process.

Stephen Harper, who worked closely with Manning in Reform, eventually took over the party and led a merger with the remnants of the PCs, forming a new Conservative Party, going on to serve as prime minister of Canada for nine years.

Farage has not been shy of his ambitions to be prime minister by 2029. He said he intends to follow a similar blueprint as the Canadian Reform Party to usurp the British Conservatives, who he says have “betrayed’ their voters. 

“They’ve done it again and again and again, and in the end relationships break down,” he said.  

But just how transferable Reform’s Canadian experience is to U.K. politics is debatable.  

While there are undoubtedly similarities between the trajectory of Farage’s Reform and Manning’s Reform, there are also key differences, said Tim Bale, a professor of politics at Queen Mary University of London. 

“This [Reform UK] insurgency does not have a geographical base in the same way that Reform in Canada had,” he told CBC News.

That means that while Reform UK may end up attracting voters from across the country, in Britain’s first-past-the-post electoral system, without a concentration of votes, the party may not win many seats.

A high rate of ‘Leave’ voters

Also, even the worst-case scenarios for Rishi Sunak’s Conservatives still have them surviving this election with dozens of members of Parliament — far from the wipeout that Canada’s Progressive Conservatives experienced in 1993. 

Clacton-on-Sea, an economically depressed community of 50,000, would seem to be a good fit for Reform UK. During the Brexit referendum, the area had one of the highest rates of “Leave” voters in the country.

It’s also one of the oldest, whitest and poorest parts of England, demographics where populist messaging has tended to resonate.

On a pier jutting out into the North Sea, there’s a ferris wheel and amusement rides, with faded and torn Union Jacks fluttering from flag poles.   

Almost every person who spoke to our CBC News team said they intended to shift their vote from Conservative to Farage this election.

“Nigel is a breath of fresh air — he’s someone you can believe in,” said Pamela Denny, who was out with her husband, Kevin Denny, walking their dog along the boardwalk. 

‘It’s got to change’

Both Pamela, historically a Labour supporter, and Kevin, a Tory voter, told us they would back Reform. 

“Immigration, especially with the boats [crossing the English Channel] … needs addressing,” she said. “You can’t have the rest of the world arriving here because there’s not enough infrastructure.”

“Hope is dwindling with the other two parties and it’s got to change,” she said.

Many locals told CBC News they knew Farage from his decades-long crusade to get Britain out of the European Union — or from a stint on the reality TV show I’m a Celebrity … Get Me Out of Here!, where he had to compete against other personalities to survive being stranded in a jungle.

“I met him in a pub, he was brilliant,” said Kevin Cripps, who’s on a disability pension. “He’s a cracking man, and I mean, he’s more for the people. He’s a people person. He’s got the gift of the gab … he’s funny, he’s a comedian. You can’t help but like the guy.”

Visits to local pubs have tended to play an outsized role in Farage’s various political campaigns.   

During his speech to supporters in Clacton, he joked that he had made a significant “self-sacrifice” by visiting 48 pubs in the constituency to talk to people.

“I sense we are the conversation around the country,” he told the enthusiastic crowd. 

‘A lot of Farage on TikTok’

Local teenagers visiting the amusement arcades in Clacton said it was Farage’s prolific social media videos that caught their attention.

“I’ve seen a lot of Farage on TikTok,” said 19-year-old Mitchell Canfield. “I agree with a lot of the things that he says.”

While a slew of recent polls have all pointed to a Labour blowout amid heavy Conservative losses — including the possibility that Prime Minister Rishi Sunak might not win his own seat — the picture is less clear for how Reform UK might fare. 

One Sky News breakdown of recent polling suggested Reform might win five seats. Another poll done for the Daily Telegraph said Reform support is spread so thinly that the party may not win any at all.

Bale, the politics professor, said because the U.K. election lacks drama, there may also be a tendency to overstate Farage’s appeal.

More charisma than the others

“He is an incredibly good communicator, whatever you think of his politics,” he said.  

“And I think that obviously marks him out in some ways from the leaders of the two main parties who, whatever they are, couldn’t be called charismatic.”

Farage has an immense following on social media platforms, such as TikTok, where he counts more than 750,000 followers. 

Ironically, Farage’s greatest political success to date has come in the European Parliament, where he was elected and served for 21 years as part of the UK Independence Party, and later, the Brexit Party.

After Britain formally left the EU, Farage retired from politics in 2021, saying his job was done. But he changed his mind shortly after Sunak called the July 4 election.

At the Clacton event, he entered the Prince’s Theatre to Eminem’s hit, Without Me, the lyrics “Guess who’s back, back again?” blaring from the sound system. 

“I’ve come back out of retirement because I genuinely believe that Britain is broken and that Britain needs reform. Nothing works anymore,” he told the crowd.

Reform UK’s platform calls for sweeping tax cuts, a freeze on most immigration, scrapping all net zero environmental goals and removing so-called “woke” ideology from schools, such as the teaching of transgender issues.

But one of Britain’s top independent fiscal watchdogs has labelled Farage’s platform “problematic”.  

The Institute for Financial studies says all of his promises would cost far more than any new money Reform predicts will come in.

For Farage’s supporters, however, such criticism is easily dismissed as more talk from an establishment that has repeatedly failed to deliver, especially on cutting immigration.   

“Hope is dwindling with the other two parties [Labour and Conservatives],” said Pamela Denny, from the Clacton seaside promenade. 

“It’s got to change. Otherwise, people just won’t go out and vote.”

Published at Fri, 21 Jun 2024 08:00:00 +0000