The Book

 

 

 

 

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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Tuesday
May162017

Could a Canadian PM do what Trump seems to have done: Spill secrets to a hostile foreign power?

As most people who would ever bother to read this blog know, the Washington Post reported last night that Donald Trump spilled a major classified bean in his (already) bizarre White House meeting with the Russian foreign minister and ambassador.  The information in question originated from an allied intelligence service, most likely in the Middle East.

Early indications suggest this was patented Trump braggadocio (“Oh, I have the best intelligence services. And Trump Tower makes the best taco bowels”).  But undisciplined disclosure is almost scarier than malevolent disclosure, and it will raise inevitable questions about whether allied sharing services can possibly hope for originator control with Trump in the White House.

Some in the Five Eyes may be feeling particularly righteous, given past US objections to disclosure of US origin material. (The British case of Binyam Mohamed being the poster child).  But such schadenfreude is not likely to be shared within the intelligence services. Stephanie Carvin does a good job identifying key policy issues.

In terms of legal implications, Lawfare (in its blog and emergency podcast) notes that there are few criminal law implications for Trump.  Basically, the US president owns the classification system as part of his constitutional executive powers, and therefore has lawful authority to waive it.

Thought Experiment: Prime Minister Trump

But as is my wont, I can’t help but transpose the US events onto a Canadian legal context, to perform a legal thought experiment: If a Canadian PM were to disclose top secret (and probably compartmentalized) information to a hostile foreign power, could he or she go to jail?

In truth, no one can say for certain, since this is so novel an issue. But speculation is terrifically fun and I am going to go with “yes”, for reasons that follow. (And thanks to the several people on twitter who bandied around thoughts with me on this issue.  In full disclosure, not all will agree with this analysis.)

Starting Point: Crimes

We will assume that the PM has access to this sort of sensitive information, with this degree of sensitivity. If he or she disclosed it, two statutes contain crimes that might be applicable: the Security of Information Act (SOIA) and the Criminal Code (CC).  The most likely provisions boil down to SOIA s.16 “communicating safeguarded information”, SOIA s.17 “communicating special operational information”, CC s.46(2)(b) “treason” and CC s.122 “breach of trust”.  (Other SOIA crimes limited to “persons permanently bound by secrecy” would be inapplicable, because the PM is not such a person.)

No Executive Immunity

In Canadian law, there is no executive branch immunity. That is, the PM is not above the law, and is subject to the regular criminal rules.  The PM, as an MP, does enjoy parliamentary privilege.  And parliamentary privilege should immunize statements made during parliamentary proceedings from being questioned anywhere outside of Parliament (for example, through a prosecution in court).  But that privilege is confined to official proceedings in, most likely, the House or committee of the House – indeed, it does not even reach statements made in the precinct of Parliament, but outside of formal proceedings.

In our hypothetical, the PM would be conversing with the representatives of a hostile foreign power in his or her executive office, and so parliamentary privilege is irrelevant.

“Lawful Authority”

The much thornier issue is whether the PM would have “lawful authority” to disclose (unilaterally) classified information in this setting.  The SOIA and treason offences apply only where the person acts without such “lawful authority”. 

Breach of trust is more difficult to describe.  Not every administrative error by a public official (a category in which the PM falls) is a breach of trust – in the Supreme Court’s words, it “must represent a ‘marked’ departure from the standards expected of an individual in the accused’s position of public trust.” In determining whether there is such serious misconduct, one takes into account “the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities” (citing with approval Shum Kwok Sher at paras. 53 and 54).

Would a PM have “lawful authority” to act in the manner proposed?

My answer is “no”.

“Lawful authority” is not a defined term, and so requires a further inquiry into the way information security is maintained by the Government of Canada.  Information classification is not governed directly by statute, but by Treasury Board policy. Originally, this policy derives from royal prerogative over the management of the public service, not displaced by the Public Service Employment Act. (This is a reasonable inference from the Supreme Court’s decision in Thomson).

Security of information was governed by a 1956 Privy Council Office document called “Security of Information in the Public Service of Canada”, while security clearances were governed by Cabinet Directive 35 (1963).  These instruments were replaced in 1987 by the “Security Policy of the Government of Canada”, issued by Treasury Board under authority of the Financial Administration Act (FAA).  

Treasury Board is a statutorily-constituted sub-committee of Cabinet whose responsibilities under s.7 of the FAA are to “act for the Queen’s Privy Council for Canada on all matters relating to … [among other things] (a) general administrative policy in the federal public administration”.

This is all a very complicated way of saying: government security classification policy has always been set by Cabinet, either directly or through the Treasury Board.

This is not one of those few instances where the PM him or herself has exercised the royal prerogative personally or where he or she enjoys a personal prerogative. At least I can find no indication that it has been.

Cabinet generally exercises prerogatives.  Sometimes individual ministers may exercise special aspects of the prerogative. And, it is sometimes said that the Prime Minister may personally exercise the prerogative, because head of government. As support for this, some authorities point to a slender statement by the Ontario Court of Appeal in Black, and the fact that in that case the PM gave direct advice to the Queen on the award of honours (See, e.g., discussion here at 13.)

But not all prerogatives are equal.  First, I am generally resistant to claims that the PM can exercise unilaterally prerogative powers typically exercised through the vehicle of Cabinet (technically, the Governor in Council). 

I am conscious that there is in the bowels of government likely some sort of trove of documents looking much like warehouse in the Raiders of the Lost Arc that might well prove me wrong.  But it is worth noting observations like the one from the Federal Court in Khadr v. Canada (Attorney General), suggesting that where Cabinet codifies the exercise of a prerogative (in that case in the Passport Order), it is for cabinet (and not an individual minister) to create any exceptions:

Having determined that the prerogative had not been exhausted or occupied by the Canadian Passport Order, the issue remains whether the Minister could exercise the prerogative given that an order in council governed the administration of passports. It seems logical that since Cabinet had devolved some aspects of the prerogative to the Passport Office under the Canadian Passport Order, only Cabinet could act to deal with exceptions to the Canadian Passport Order.

An obvious response to this is, “Yes, but the PM is a special minister”.  The PM is certainly special in being able to determine the Cabinet consensus, but I remain unpersuaded that in every instance, that specialness extends to unilateral exercise of the prerogative outside of Cabinet.

At any rate, all this is entirely academic in an entirely academic blog entry, for two reasons. First, whether or not the PM retained some sort of residual personal prerogative in this area, I think it has been usurped by statute. 

Parliament has expressly tasked the Treasury Board with establishing administrative policies, under the Financial Administration Act. It is the Treasury Board that is to “act for the Queen’s Privy Council for Canada” on such matters.  It has done precisely this in creating the government security policy. (I recognize there is a "may act" in there, suggesting that perhaps there is some residual authority in Privy Council as a whole, but that just puts us into a loop about whether in these circumstances, the PM can then exercise any residual authority.)

Botom line: there is a heck of a lot suggesting to me that the PM does not have autonomous power to determine security classifications.  That alone should decide the matter as to whether the PM has “lawful authority” to disclose.  My answer: no.

But there is a second wrinkle: The PM has access to this classified information because (and in consequence) of his or her membership in the Privy Council.  Being sworn into the Privy Council is the sine que non of being a minister.  (Note also that there is a reason why members of the Security Intelligence Review Committee are sworn in as privy councillors – as SIRC’s webpage notes “All of the Committee members must be Privy Councillors, which means that they have full access to highly classified information, a privilege which is not granted to most Parliamentarians”).

The privy councillor oath reads:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty's Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

[Emphasis added].

Leaking a secret revealed to the PM in his or her capacity as a Privy Councillor is, in my view, a breach of the oath.

That breach itself would vitiate any argument that the PM had “legal authority” within the meaning, e.g., of the SOIA.  And it would also constitute the egregious departure from standard practice, grounding a breach of trust charge.

Conclusion

All of which is to say that I do not believe the PM floats above the law in this area and can declassify on the fly without looking over his or her shoulder.  I may be totally wrong – this is one of those questions whose answer one only knows when a court tells you. 

But if I were PM and I wanted to spill a secret bean, I’d do it in Question Period to benefit from parliamentary privilege.  And boy, would that make the opposition parties happy.

Saturday
May132017

Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

Saturday
May132017

In Memoriam: The Honourable Ron Atkey, PC QC

I learned this week that my friend and colleague Ron Atkey, PC, QC, has died. This is very sudden and sad news, and my thoughts go to his family.

As I process Ron’s passing, I have been reaching for some way to memorialize his accomplishments. One of the few initial avenues open to me is a short essay on this blog.

Ron was the first chair of the Security Intelligence Review Committee (SIRC), between 1984-1989.  Both before and after that, he was a partner at Osler, Hoskin & Harcourt LLP, where he chaired the Arts, Entertainment and Media Law Group.  He was also a law professor – at Western (1967-1970) and Osgoode Hall Law School (1971-1973). There, he authored an array of law review articles and co-authored Canadian Constitutional Law in a Modern Perspective (1970). In the 1990s, he wrote a novel (The Chancellor’s Foot).  And after his retirement from Oslers in 2007, he returned to parttime teaching at both Western and Osgoode, leading classes in national security law. He worked on the Arar commission of inquiry and was a special advocate under the Immigration and Refugee Protection Act.

I know Ron best from his work on national security law – he was a generous mentor and gave of his time and expertise, including by commenting on and then writing the forward to National Security Law in 2008. He also reviewed and commented on the 2015 book that Kent Roach and I authored on Bill C-51, False Security.

And throughout debates on that law, and more recently in discussions of reformed national security review, Ron served as a confident and compass. I valued his wisdom and experience.

As first chair of SIRC, Ron played an invaluable role. As Peter Gill detailed in his study of national security accountability systems, Ron’s chairmanship “symbolise[d] a willingness to extract as much mileage as possible from the review process”.[1] A later study would note SIRC’s review mechanisms “work to the extent that committed and energetic persons staff them. The first Chairman of SIRC, the Hon. Ron Atkey, was such a person…”.[2]

In Ron’s early career, he was an MP and ultimately the Minister of Employment and Immigration in the Joe Clark government (1979-1980). In the latter role, he was instrumental in Canada’s decision to admit large numbers of Vietnamese refugees – the famous “Boat People”. This was Ron’s greatest professional legacy.

A study of Canada’s immigration policy noted in “June 1979, Ron Atkey, the new Conservative government’s Immigration minister, raised the year’s intake [of Vietnamese newcomers] to 12,000, of whom 4,000 were to be sponsored by private organizations.” Then, in July, “Atkey announced that Canada would increase its intake of refugees to 3,000 a month, with 50,000 to arrive by the end of 1980.”[3] 

Ron was not, of course, singlehandedly responsible for this humanitarian effort – and he would never so claim.  But without Ron, his Cabinet colleague and ally Flora MacDonald, and a supportive Prime Minister, this policy shift would never have happened.  A recent study credits the role of Prime Minister Joe Clark in backing Ron and Flora MacDonald “in the face of skeptical Cabinet colleagues”. It observes: “The courage and leadership of MacDonald and Atkey in fighting for an unprecedented commitment, and in inspiring officials and ordinary Canadians to deliver on it, cannot be overstated.”[4]

With characteristic humility, in a foreword to that same book, Ron attributed much of the success of this humanitarian project to Canadian communities and organizations, and to the public service.

But the details of Ron’s involvement in Canada’s response to the Southeast Asian refugee crisis has almost mythical status in public policy lore. In 1979, Ron read a scholarly manuscript detailing Canada’s appalling conduct in turning away Jewish refugees from the Nazis, authored by Irving Abella and Harold Troper. His response is recorded in those authors’ later book, None is Too Many: Canada and the Jews of Europe, 1933-1948:[5]

Atkey was shocked and dismayed at the seeming historical parallels between the Vietnamese crisis and that of Jewish refugees from Nazis. Already decided on a path of activism on behalf of Vietnamese refugees, he later explained “The article stiffened my resolve to be bold.” True to his word, he convinced the Cabinet that Canada must not turn its back on Vietnamese refugees as it previously had done to Jews. As a result of Atkey’s efforts, Canada’s refugee resettlement program, enriched by unparalleled citizen participation, was second to none among nations of the world.

Ron never abandoned his humanitarian commitments.  Along with other prominent Canadians, he pressed the government to increase its intake of Syrian refugees in 2015. As reported in the Toronto Star:

Ron Atkey believes the 25,000 Syrians Ottawa is promising to re-settle initially is a “noble objective” but he wants Canada to up the ante.

“If Canada can do another 25,000 — that would make a significant contribution in line with Canada’s contribution with the Vietnamese boat people in 1979 to 1980. It will demonstrate to the Americans that they have to do more. We’ll shame them into it, similarly the Australians,” says Atkey, who was immigration minister in the Joe Clark government in 1979 when 50,000 Vietnamese refugees were granted asylum in Canada. By the end of 1980, that number had risen to 60,000.

 “For us to take a dramatic position on the world stage is important. We won a medal from the United Nations High Commission for Human Rights. We gained a lot of prestige as a humanitarian country. I think that’s consistent with Canadian tradition.”

In 1988, Morton Beiser interviewed Ron about his role in opening Canada’s doors to Vietnamese refugees:

Over tea served in elegant porcelain cops, Mr. Atkey talk with obvious pride about the role he and his government had played in admitting refugees. I asked him what prompted a country that had not been notably generous in the past to bring in so many Southeast Asians. The former minister recalled the headiness of being a member of the freshly elected cabinet leading a prosperous nation, and seizing on a global issue like the “Boat People” crisis to show both its UK parents and its US big brother that Canada could do better. …

Speaking more personally, Mr. Atkey mused that one is not often given the chance, as he put it, “to make a difference.” … Atkey told me “I didn’t want my children to have to remember me as somebody who said ‘None is too many.’” [6]

There is no chance of that. Ron’s legacy is found in headlines like this: “Vietnamese boat people of more than 3 decades ago now thriving, proud Canadians”.

Ron was a lawyer who helped build Canada’s national security review system, then persistently advocated correction of its shortcomings; a warm mentor who supported more junior colleagues; a politician who put country before party; and, a humanitarian who acted on his principles.

He will be missed. Rest in peace my friend.

 


[1]           Peter Gill, Policing Politics: Security Intelligence and the Liberal Democratic State (Frank Cass, 1994) at 287.

[2]           Jean-Paul Brodeur, “The Globalization of Security and Intellience Agencies: A Report on the Canadian Intelligence Community,” in Peter Gill, Democracy, Law and Security: Internal Security Services in Contemporary Europe (Ashgate, 2003).

[3]           Ninette Kelley and M. J. Trebilcock, The Making of the Mosaic, University of Toronto Press, 1998, at 407.

[4]           Michael Molley, Peter Duschinsky, Kurt Jensen and Robert Shalka, Running on Empty: Canada in the Indochinese Refugees, 1975-1980 (McGill-Queens University Press, 2017) at 458.

[5]           University of Toronto Press, 1983.

[6]           Morton Beiser, Strangers at the Gate: The “Boat People’s” First Ten Years in Canada (University of Toronto Press, 1999) at 41.