April 28, 2022
Information-sharing between intelligence officers and police needs an overhaul — and it could start with informing police of the reasons behind national security arrests — says a newly obtained internal report looking at the often fraught relationship between Canada’s spy agency and the RCMP.
In one instance, officers in one of the RCMP’s national security units left after being asked to carry out an arrest without being told the reasons, says the redacted report, which was released through an access to information request.
The document is the end result of a behind-the-scenes review of how the Canadian Security Intelligence Service and the national police force share information — or don’t.
In 2018, at the request of both agencies, two outside national security lawyers — Anil Kapoor and Dana Achtemichuk — were brought in to look at the problems, conduct interviews and make recommendations. A copy of their final review was released recently to CBC News a year after it was requested.
The incident that led the officers to quit arose during a case of “catch-and-release” — a technique that sees police arrest an individual to thwart a national security incident or attack, even if it means releasing them later without charges.
The report says that catch-and-release operations demand exchanges of information between the agencies involved. That didn’t happen with the RCMP Integrated National Security Enforcement Team (INSET) involved in the incident cited in the report.
INSETs are multi-agency teams — sometimes made up of RCMP officers, provincial and municipal police service members and federal agencies — scattered across the country to investigate cases concerning national security, extremism and terrorism.
“We learned of a case where the INSET was tasked with carrying out an arrest but not given the reason why. This caused great conflict in the investigative team, causing some officers to quit,” said the report.
“On balance, it was morale depressing for the INSET.”
Details of that case are blacked-out in the report.
The authors said that while police officers in a national security investigation might not know all the details, they still need to be brought into the loop by their intelligence counterparts.
“Being a player in the national security world involves both respecting the ‘need to know’ principle and understanding that more RCMP officers do in fact ‘need to know,'” they wrote.
‘Kept in the dark’
University of Toronto professor Kent Roach, who studies national security and anti-terrorism law, called the incident troubling.
“The report recognizes that the RCMP officers are often kept in the dark by CSIS and this could affect the validity of the arrest,” he said.
He said tactics like catch-and-release, the “Al Capone” strategy (named after the infamous gangster who was jailed for tax evasion instead of the more serious allegations against him) and peace bonds are poor substitutes for actual prosecutions.
“There’s not the same public or judicial scrutiny of the conduct of either CSIS or the RCMP as there would be in a terrorism prosecution,” said Roach.
“Certainly there are legitimate and lawful alternatives to criminal prosecutions. But I think from the public’s perspective, it’s really in the criminal prosecution where the most light is cast, both on how the state acted and also the actual danger, or lack of danger, that the accused presents.”
The report said that part of the problem (sometimes referred to as “intelligence to evidence”) is that CSIS is under pressure to safeguard operational information — its tactics, methods, where its spies are located — while police and prosecutors are expected to both secure prosecutions and protect a defendant’s right to a fair trial.
“It strikes us that there is no benefit to public safety to leave [CSIS’s] information unexploited when it could be used to enhance a national security criminal investigation,” said the report.
“Also, [CSIS] has to accept that in litigation there is always a risk that some information will not be protected, but the benefit of assisting in the investigation and the eventual prosecution of persons who are threats to the country is worth that risk.”
One of the report’s recommendations is that CSIS obtain expert criminal law advice to better understand the risks and rewards of sharing information and to recognize when a crime has been committed.
“For [CSIS] to adopt a more active posture, there has to be a change in attitude and culture from viewing themselves as a traditional cold war intelligence agency to a modern intelligence agency that is actively managing threats to national security,” said the report.
CSIS taking on some recommendations
Keira Lawson, a spokesperson for CSIS, said work is ongoing to implement the recommendations “as appropriate.” That work, she said, will include a memorandum of understanding with the RCMP.
She acknowledged that more could be done.
“There remains a pressing need for ongoing consideration by all parties, including Public Safety Canada, to continue to identify any potential areas for legislative reforms that would address … the intelligence and evidence issues that the Government faces in various judicial proceedings, while maintaining full respect for the Charter of Rights and Freedoms,” Lawson wrote in a media statement.
The RCMP didn’t escape the review unscathed. The authors called out “a belief in some quarters within the RCMP that receiving any [CSIS] information will compromise police investigations.
“The basis for this belief is not entirely clear.”
The report also flagged tensions between the regional INSET offices and the Federal Policing National Security (FPNS) team based at RCMP headquarters in Ottawa.
“Often, FPNS does not provide the INSET with context for why certain actions are being taken. The effect has a corrosive impact on the relationship between FPNS and the INSET,” it said.
“Also, a lack of confidence is generated within the INSET which serves to depress morale with potentially perilous consequences.”
The RCMP did not respond to CBC’s request for comment.