The recent report from the National Security and Intelligence Committee of Parliamentarians (NSICOP) that surfaced intelligence reporting about the role that some Parliamentarians have played as ‘witting’ or ‘semi-witting’ accomplices in foreign interference activities has forced us to look in the mirror and wonder about our politics and our society.
The revelations, which I have called indications of treason, as it is defined in our criminal code, have led to a hue and cry in some quarters for the naming of names. Prominent among these voices is the Globe and Mail opinion columnist, Andrew Coyne, who has issued a sandbox challenge to “some member of Parliament” to “rise in the House and, under cover of parliamentary privilege, read out the names of the MPs suspected of betraying their country.” To make this feasible, because, as Mr. Coyne appears to appreciate, the members of NSICOP do not have parliamentary privilege to reveal secrets, another someone will have to leak the intelligence to said MP. Coyne fears nothing will be done without the double-leak.
The latest version of the demand to name names will likely come in a motion from the opposition parties in Parliament to have the Hogue Inquiry investigate and produce a fact-finding report. What this ignores is that the Hogue Inquiry (Public Inquiry on Foreign Interference) has no magic wand to reveal secrets and would be under the same constraints as NSICOP in that regard. In addition, no judge would allow herself to be put in charge of an extra-legal process. The Hogue Inquiry might be able to deliver more context, minus names, but that is also something the government could choose to do.
Lost in the hue and cry is the question of whether naming and shaming is the right principle. The answer to that question, in my view, is a plain no.
I’ll list four quick reasons, and then I will re-publish below an Op Ed I wrote that was published by the Toronto Star online on June 7 (and in print on June 9).
The four reasons are these:
intelligence, no matter how damning seeming, is not evidence (this is why we confront the “intelligence to evidence” problem)
we have criminal code sanctions for treason
we have a law enforcement agency in the RCMP responsible for investigating national security crimes, of which treason is one. They need to do their job.
Lastly, and most importantly: we live in a democracy, underpinned by a principle that anyone accused of a crime has the right to a fair trial.
Would we throw this fundamental democratic principle overboard because of a temptation to an authoritarian impulse? I hope not. Hypothetical leaker, stay your hand; lone brave MP, stay seated. Political parties, stop playing games. While you are at it, Mr. Poilievre, get a security clearance, read the classified version of the NSICOP report and decide what needs to be done within your own caucus and in the national interest.
Hue and cry gang, cool it.
Here is my original Toronto Star Op Ed from June 7:
“Treason in Canada? That allegation leapt off the pages of a recent report from the National Security and Intelligence Committee of Parliamentarians. The worst example cited, with names and details redacted in the published report, concerned a former MP who engaged in communications with a senior official of a foreign intelligence service, and tried to arrange a meeting overseas with this official. According to CSIS, confidential information was passed. There is no other word for it, this is treason.
The Conservative party has demanded that the names of alleged “witting” politicians who have served foreign states be released. The Public Safety Minister has shot back saying no government would agree to release names in cases like this, based on secret intelligence and possibly still under investigation.
As Parliament battles, what should the public expect? Three things: a fuller explanation of what is known about these cases; a roadmap to action on the part of the Government and indeed of all political parties; and, most importantly, prosecutions under the law.
The fuller explanation is up to the government, the National Security and Intelligence Committee of Parliamentarians has done its job in bringing the problem to light.
A roadmap to action involves efforts to revamp legislation to sanction the involvement in political interference by political actors, something that is attempted in a recent bill introduced in Parliament, C-70, that is being fast-tracked. The bill has many parts, including a proposal to strengthen the foreign interference provisions of the Security of Information Act (our official secrets act) and to create a foreign influence transparency registry to match those of our key allies. Any roadmap must also involve work on the part of all political parties to be self-policing, to understand the foreign interference threat and stop corruption within.
Prosecutions have been missing in action. Our legal code distinguishes between high treason and treason. The former can involve efforts to kill or attempt to kill “Her Majesty.” The rest of the high treason offences involve acts in wartime. Treason, by contrast, can happen in peacetime, and includes both violent subversion and the unlawful communication of information. The criminal code, however musty, doesn’t take treason lightly. Some treasonable acts are punishable by life imprisonment. Communication of secrets can incur a 14-year prison term.
Heavy criminal penalties for alleged crimes that are likely to attract huge public interest generate a cautionary approach on the part of Government lawyers. DOJ prosecutors live and die by the rule of only advancing prosecutions where there is a ‘reasonable’ prospect of success. With crimes like treason the ‘reasonable prospect’ ceiling rises higher. Risk aversion is the order of the day.
Treason laws may be out of date, prosecutors may have to be dragged to take them on, but the real wrench in the system concerns law enforcement capacity.
The NSICOP report is candid about the lack of RCMP resources, as is the RCMP itself. The ad hoc, ‘temporary’ team at RCMP HQ responsible for overseeing all national foreign interference investigations is tiny—it consists of seven officers in total. Even at this miniscule scale, one senior RCMP officer told the committee that the effort could not be sustained.
On top of this is the challenge of “intelligence to evidence.” CSIS may provide intelligence leads to the RCMP, but CSIS intelligence has to be protected and cannot be revealed in court. The RCMP has to take the intelligence leads and mount a fresh investigation generating evidence that can be produced and tested in court. It’s a process that can lead (and has led) to dysfunction but its one we purposefully built with the CSIS Act in 1984.
So, challenges in the prosecutorial effort. But it is essential. Why? Not just to put bad actors behind bars, but to deter and to provide for public education about the threat.
Prosecutions have to be the real democratic response to foreign interference crimes. Demands for naming and shaming in the public square would be to stoop to authoritarian practices, and give foreign state actors a win. That would be the ultimate irony.”
I am grateful for the Star’s permission to allow me to republish this piece. You can find it if you are a TO Star subscriber at:
https://www.thestar.com/opinion/contributors/canadian-politicians-who-commit-treason-should-go-to-jail/article_3429f6b4-2441-11ef-817e-573af7605f34.html
Prosecutions are the right response but we know they wont take place because the RCMP isnt capable of investigating. They lack the resources. They lack the skills. They lack the will. And our political leaders wont reform them. So there is no solution available through the criminal courts.
So given these truths, what shall we do? Political parties must act. They are willing and quick to expel members from caucus or to refuse candidate nominations ( how quickly would the Liberals or NDP act to expel from caucus a MP who uttered an indigenous slur, used the n word, was accused of sexual harassment. ? Surely, our political leaders can review these serious accusations and take responsible actions to ensure they are not endorsing individuals who have betrayed their country. Asking too much?
As always, impressive analysis