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This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Wednesday
May182016

Police "rogues", journalists & the hapless victims of classified innuendo

There is considerable discussion today (again) concerning the RCMP investigations into leaks of seemingly classified information said to implicate two individuals in a phone call in which they allegedly plotted a terrorist activity.

The narrative, at present, seems to have lost its mooring and to be a discussion of "police spying on journalists", with most people (reasonably) being quite concerned about that prospect.

But context is everything. I have watched this matter from a distance, and so do not claim intimate command of the facts.  But here are those facts, as I understand them (with corrections from those closer to the matter appreciated).

In the beginning...

There were two men that the government of Canada considered dangerous.  One -- Charkaoui -- was subjected to an immigration security certificate.  That process collapsed when the government withdrew the case, in the face of a court order that it provide more information on the case against him to Mr. Charkaoui.  (Mr. Charkaoui is famous for two eponymous decisions on the constitutionality of security certificates issued by the Supreme Court of Canada).  He remains in Canada

The second man -- Abdelrazik -- is a Canadian of Sudanese origin whose travails with the government were detailed in a Federal Court decision that concluded, along the way, that "CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese."

Sour grapes or frustrated anxiety...

Caught up in legal proceedings that the government could not win, someone in government apparently took it upon themself(ves) to leak information that alleged the two men were dangerous.  There was an initial leak in 2007 discussed here. There were additional leaks in 2011, covering some of the same ground.  In both instances, defenders of the two men accused the government (or persons in the government) of an orchestrated smear campaign.  Indeed, that question is still (as best I know) before the Federal Court.

These leaks followed other leaks made in the case of Maher Arar, casting aspersions on Mr Arar's character.  The O'Connor judicial commission of inquiry commented as follows on those 2003 leaks:

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.

 

In both cases, the leaks were reported by journalists, raising questions as to whether those journalists were being fed information favoured by the faction or individual in government inclined to denounce individuals in cases that the government had (or would) lose in court.  Certainly, this was information to which there was no adversarial challenge before an adjudicator -- and this is of real concern given the difficulty the government had making out its case where there was such adversarial challenge.

This raises a collateral issue.  I am loath to comment adversely on a profession for which I have considerable respect, but surely there is some code or expectation among journalists designed to guard against being used in this manner?  If there is such a code or practice, I leave it to journalism experts to comment on its applicability to these scenarios.

Enter the police...

Canada does have a secrecy law, the Security of Information Act.  Among other things, it makes it a crime for persons within the security services (permanently bound by secrecy) to leak classified information (I am simplifying the rule greatly).  In the Arar matter, the Mounties investigated the crime.  And so too in the Charkaoui/Abdelrazik matter.  In neither matter did the investigation lead anywhere (as best I know).

The police are, in fact, supposed to investigate these crimes, and those inclined to think that government officials should not be able to take it upon themselves to leak selectively classified information (whether for an ulterior purpose or not) would welcome the idea of such investigations.  There are things that should be secret.  And certainly, secrecy should not be waived unilaterally by officials deciding to fight a cause lost in court in the much more carefree court of public opinion.

But these investigations are a mine field for the police.  That is because the lynchpin of the investigation may be the journalists. (This is less so now -- as US experience suggests, big data compilation of government information systems can now sometimes out a leaker with greater ease than poking around with a journalist).

In both the Arar leak case and the Abdelrazik/Charkaoui cases, the Mounties' investigations did involve journalists.  The Arar matter was the most notorious -- then-Ottawa Citizen journalist Juliet O'Neill was subject to a very invasive search, pursuant to a warrant issued in support of the Security of Information Act investigation.  The Citizen challenged the constitutionality of the crime being investigated -- successfully.  And so part of the Security of Information Act should be considered a dead-letter (and the prior government chose to live with this gaping hole, although sometimes consequences under this unconstitutional provision were threatened, as in the Bernier/Couillard matter).

Investigations involving sensitive sectors...

But other provisions -- including those governing persons permanently bound by secrecy -- persist.  And so the issue is: can the police conduct suveillance on journalists in an effort to find their source?  To which the legal answer is: yes, so long as done in compliance with the law.  And the law requires warrants (but only for searches and seizures and not for surveillance in public spaces).  Journalists are not immune, constitutionally or otherwise.  On the other hand, journalists (like academics, labour unions, religious institutions) are part of "sensitive sectors".  Pursuant to ministerial directions issued by the then-solicitor general Wayne Easter in 2003 (at the height of the Arar matter), there are special procedures that must be followed in investigations that touch on these sectors.

Those special procedures involve senior sign-off within the RCMP.  In the latest scandal, reported today, that senior sign-off was not (initially at least) obtained.  And hence, the RCMP officers were described by the CBC today as "rogue".

But we should be clear: if they were rogue, it was because they did not follow the ministerial directions.  There is no allegation of which I am aware that they did anything else off-colour, including any allegation that they broke a law.  (I stand to be corrected if someone can point me to a source that I have not seen.)

In sum: be careful what you wish for.  This was an investigation into a troubling practice of character assassination through the use of information leaked in possible violation of secrecy law.  Civil liberties groups called for an investigation (although certainly not for the RCMP to be ham-fisted in conducting it).  I for one have been disappointed that those investigations came to naught.