Canada’s Intelligence Community: The Evolving Ethics of Sometimes Unwanted Protection

7/31/2019 Canadas Intelligence Community: The Evolving Ethics of Sometimes Unwanted Protection

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Lo Fugazza

Michael Duckett

Integrative Seminar

May 29th, 2012

Canadas Intelligence Community: The Evolving Ethics of Sometimes Unwanted

Protection

Abstract

Canada is often described as a leader in terms of human rights, including in the

domain of intelligence services. After reviewing the current legislation surrounding privacyand access to information, this paper dresses a portrait of the balance between concerns for

safety and security in Canada and the rights protected by the reviewed Acts. To understand

better the Acts surrounding the intelligence community, the evolution of data gathering is

described in an historical context, providing the basis for an ethical evaluation of the statu

quo. Ethical guidelines to be implemented for the future are then described, taking into

account the nature and goals of the intelligence services in Canada.

Canada est souvent dcrit comme un chef de file en termes de droits de lhomme,

incluant dans le domaine des services de renseignement. Aprs une rvision de la

lgislation actuelle entourant la vie prive et laccs linformation, ce document dresse un

portrait de la balance entre les considrations pour la sret et la scurit au Canada et les

droits protgs par les Actes examins. Pour mieux comprendre les Actes entourant la

communaut du renseignement, lvolution de la collecte de donnes est dcrite dans un

contexte historique, fournissant la base pour une valuation thique du statu quo. Des


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lignes directrices thiques mettre en place pour le futur sont ensuite dcrites, prenant en

compte la nature et les buts des services de renseignement au Canada.

Introduction

One of the most fascinating aspects of our society is the clash between rights and

freedoms. Guaranteed to us in the Canadian Charter of Rights and Freedoms, our

freedoms are to be unaltered by governmental intervention, while our rights are to be

directly protected by governmental intervention. Section 1 of the Charter provides that

these freedoms and rights be subject only to such reasonable limits prescribed by law ascan be demonstrably justified in a free and democratic society. However, time and time

again, the freedoms that were given to us without boundaries get encroached upon by the

very boundaries set in place to protect the inalienable rights that were also given to us. In

these dilemmatic situations, much debate on what constitutes reasonable limits, and on

which, of freedoms or rights, should prevail, arise.

One problematic interaction between our rights and freedoms is found in the field

of intelligence, or the romanticized spying. Section 7 of the Chartersays that everyone

has the right to life, liberty and security of the person and the right not to deprived thereof

except in accordance with the principles of fundamental justice, which intelligence

services set forth to protect. They constitute our first line of defense, often preventively,

against any harm or threat of harm. Yet, sections 8 and 9 also provide that everyone has

the right to be secure against unreasonable search or seizure and that everyone has the

right not to be arbitrarily detained or imprisoned, and section 12 states that everyone has

the right not to be subjected to any cruel and unusual treatment. Opponents to the


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pervasive powers of the intelligence services often denounce their work as infringing upon

these rights, as well as limiting our fundamental freedoms, including freedom of

conscience, of thought, belief, opinion and expression, of peaceful assembly, and of

association (Section 2). Now, obviously both the rights protected by the intelligence

services and the rights and freedoms allegedly infringed upon by these same intelligence

services are of importance, if not even vital in a democracy. Do intelligence services,

therefore, fall under the category of reasonable limits?

After a review of the current legislation framing these aforementioned rights and

freedoms, and of the evolution of the intelligence services themselves in Canada, it appearsthat the current intelligence services have greatly improved and are now closer than ever to

being reasonable limits to our rights and freedoms. Yet, still many aspects remain to be

improved. I take this evolution into account, as well as the nature of the intelligence

services, to draft a set of ethical guidelines to be applied if the intelligence services in

Canada are to reach the precarious balance known as reasonable limit.

Privacy and Access to Information versus Safety and Security in Canadian Laws: A

Fragile Balance of Conflicting Interests

The occidental societies have at all time struggled with the notions of freedom,

liberty and rights as opposed to those of stability, security and safety. From Hobbess all-

powerful Leviathan to Rousseaus self-regulating assembly of free men, political thinkers

have prescribed various ways of balancing them. Their views range from dictatorships for

peace to chaotic and anarchist villages for ultimate freedom, and still shape the political

environment to this day.


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However, in the past century and a half, as these societies slowly entrenched

themselves in democracy, this everlasting question has taken a new turn. It is transmuting

into a more subtle debate: how should privacy and governmental transparency be balanced

with the need for safety and security? This is only exacerbated by the exponentially

increasing technological advances, and has become one of the major conundrums of the

web era.

With its roots deeply anchored in Occidental legal philosophy, what is the Canadian

answer? As a constitutional monarchy, with confederated provinces and territories, and

with a charter of rights and freedoms, do we value security and safety over privacy andaccess to information, vice versa, or have we found a delicate balance between the two? By

exploring Canadas three major privacy and access to information laws, the Access to

Information Act, thePrivacy Act, and thePersonal Information Protection and Electronic

Documents Act, and taking into account the paradigm expressed in the Anti-terrorism Act,

it appears clear that Canada favours the respect of privacy and the transparency of

government, but subdues these concerns when it comes to the personal safety of its

citizens, national security, and even the economic security of third parties.

Personal Safety Trumps Everything

In Canadian law, everything is supposed to be subordinated to the safety of

individuals. We presuppose that preserving life must trump non-vital concerns such as

access to information and privacy. In fact, the first whereas of the preamble to theAnti-

terrorism Act reads: Canadians and people everywhere are entitled to live their lives in

peace, freedom and security, and it defines terrorist activities in section 83.01(b)(i)(B) and


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83.01(b)(ii)(A) to (C) as an act or omission, in or outside Canada, in whole or in part with

the intention of intimidating the public, or a segment of the public, with regard to its

security [], and that intentionally causes death or serious bodily harm to a person by the

use of violence, endangers a persons life, [or] causes a serious risk to the health or safety

of the public or any segment of the public. Canadian law does not permit directly putting

someone into harms way.

Given this sacro-saint legal perspective on personal safety, the government has

imposed rigorous conditions to the disclosure of personal information and governmental

records under its control. TheAccess to Information Actand thePrivacy Actcontain suchlimitations, respectively in section 17 and 25: The head of a government institution may

refuse to disclose any [record requested under this Act that contains] [personal information]

the disclosure of which could reasonably be expected to threaten the safety of individuals.

They manage here to intertwine protection of safety and protection of privacy, although to

the cost of a broader access to information. In fact, the government is told that they may

refuse to disclose any personal information [] that relates to the physical or mental health

of the individual who requested it where the examination of the information by the

individual would be contrary to the best interests of the individual (Access to Information

Act, Section 28). The individual is even protected from himself, if necessary

This focus on personal safety is not limited to the Access to Information Act.

Similar clauses can be found in the Personal Information Protection and Electronic

Documents Act, that applies to companies in Canada: an organization may collect personal

information without the knowledge or consent of the individual only if the collection is

clearly in the interests of the individual and consent cannot be obtained in a timely way


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(Section 7(1)(a) ). What, then, constitutes the interests of the individual? The rest of the

Actoffers some clues, and seems to equate the interests of the individual to a balanced

protection of safety and consent: an organization may disclose personal information

without the knowledge or consent of the individual only if the disclosure is made to a

person who needs the information because of an emergency that threatens the life, health or

security of an individual and, if the individual whom the information is about is alive, the

organization informs that individual in writing without delay of the disclosure (Section

7(3)(e) ), and may, without the knowledge or consent of the individual, use personal

information only if it is used for the purpose of acting in respect of an emergency thatthreatens the life, health or security of an individual (Section 7(2)(b) ). In the same logic,

companies are not required to give access to personal information if to do so could

reasonably be expected to threaten the life or security of another individual (Section 9(3)

(c) ), though this does not apply if the individual needs the information because an

individuals life, health or security is threatened (Section 9(4) ).

It is reasonable to assume that most can agree with the merits of those clauses.

Indeed, privacy and access to information seem insignificant in the face of concerns for the

health and safety of individuals, and ought to be overlooked in cases of emergencies. Even

in those cases, privacy is valued over access to information. So should it be.

National Security Above All

Privacy and access to information are also, more controversially, subdued to

concerns of national security and defence. The first whereas of the preamble to the Anti-


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terrorism Actreads: acts of terrorism constitute a substantial threat to both domestic and

international peace and security, while the last whereas states that its goal is to protect

the [] security of Canada and Canadas relations with its allies. Similar security

concerns are set in place in the privacy and access to information laws of Canada.

In the Access to Information Act, the information and records obtained from the

government of a foreign state []; an international organization []; the government of a

province[]; a municipal or regional government established by or pursuant to an Act of

the legislature of a province or an institution of such a government; or an aboriginal

government are not to be disclosed (Section 13(1)(a) to (e) ). Similar points exist in thePrivacy Act(Sections 8(2)(f) and 19(1) ). There are clauses protecting federal-provincial

affairs (Access to Information Act, Section 14), but also protecting international affairs

(Access to Information Act, Section 15(1)(e) to (i)(i) andPrivacy Act, Section 21).

However, theAccess to Information Actis also intractable on the issues of national

defence (Section 15(1)(a) t o (d)(ii) and Section 15(1)(i)(ii) to (iii) ), and of law

enforcement (16(1) and (2) ). ThePrivacy Acthas similar sections (21 and 22(1) ), but also

includes the disclosure of personal information if the public interest in disclosure clearly

outweighs any invasion of privacy that could result from the disclosure (Section 8(2)(m)(i)

).

The Personal Information Protection and Electronic Documents Act states that

organization must also respect national security, the defence of Canada or the conduct of

international affairs [and] the enforcement of any law of Canada, a province or a foreign

jurisdiction, an investigation relating to the enforcement of any such law or the gathering of

intelligence for the purpose of enforcing any such law (Section 9(2.3)(a) and (b) ) in


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refusing to disclose personal information. On the other extreme, they can also disclose

without the consent of the individual their personal information on the grounds of national

defence and lawful investigations (7(3)(c.1)(i) to (iii) ).

It is easy to agree to the subjugation of privacy and access to information to

national security. Everyone wants to keep themselves and their family to be safe, and

concerns for less vital rights, such as privacy and access to information, could easily be

given up for the right to safety. But what exactly constitute this national security? What

exactly is the public interest mentioned in Section 8(2)(m)(i) of thePrivacy Act? How can

it justify the trumping of our other rights? Our rights and freedoms are, from a strictly legalperspective, subdued to a vague concept, applicable in a multitude of situations. It is one

thing to refuse to reveal details of military plans before it comes into effect, but it is another

to reveal the identity of political dissidents in the name of the political stability of the

nation.

Economic Security, A Priority

Finally, and in a more subtle manner, our rights to privacy and access to

information are limited by economic concerns. The Acts under our examination all protect

the economic security of the nation and of third parties. Attacks against this principle are

decried in the Anti-terrorism Act, in the third whereas of its preamble: acts of terrorism

threaten Canadas political institutions, the stability of the economy and the general welfare

of the nation. This act also state in the last whereas of its preamble that it must the

political, social and economic security of Canada. It is interesting to note that they have


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not been ranked in any way, hinting that the economic security of Canada is as important as

its political and social security.

What is maybe most frightening given the usual clarity of the Acts is that, though

this protection of the economy is enforced, it is almost absent from the privacy and access

to information laws in Canada. In fact, they are found in one section of the Access to

Information Act, and in two sections of the Personal Information Protection and

Electronic Documents Act. Sections 20(1)(a) to (b) and (c) to (d) (1) of the Access to

Information Actdescribe the extent to which the government needs to protect the economic

interests of third parties: the head of a government institution shall refuse to disclose anyrecord requested under this Act that contains trade secrets of a third party; financial,

commercial, scientific or technical information that is confidential information supplied to

a government institution by a third party and is treated consistently in a confidential

manner by the third party; and information the disclosure of which could reasonably be

expected to result in material financial loss or gain to, or could reasonably be expected to

prejudice the competitive position of, a third party; or information the disclosure of which

could reasonably be expected to interfere with contractual or other negotiations of a third

party. Not only are these provisions vague, but they also give tremendous discretionary

power to the government. Government should not be playing the market game, but it is

exactly what is demanded of it in these sections. Rather than defending the interests of its

citizens, as it should be doing, government is thus defending the interests of the people

incorporated under its laws.

The Personal Information Protection and Electronic Documents Actallows only

companies to disclose personal information under strict conditions: for the purpose of


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collecting a debt owed by the individual to the organization (Section 7(3)(b) ), and not if it

could reasonably be expected to be injurious to the detection, prevention or deterrence of

money laundering (Section 9(2.3)(a.1) ).

Yet, protecting the economy clearly remains a goal of the Canadian government

(Anti-terrorism Act, Preamble). The logical conclusion must be that the government is

acting on this principle without including it in its written laws, but proving such a claim

would be a risky enterprise. However, given the relatively small influence it seems to have

on legislation itself, more focus should be put on the subduing of our rights to concerns of

personal safety and national security.Shifting Legislation: But One Facet of An Evolving Situation

While our rights to privacy and access to information have been inferred from the

Canadian Charter of Rights and Freedoms and entrenched in the Access to Information

Act, thePrivacy Act, and the Personal Information Protection and Electronic Documents

Act, it is evident that such rights are subordinated to security and safety concerns, namely

of the individual first; then of the nation, both in terms of political stability internally and

internationally and of military and police defence of orderand therefore, arguably, of the

many individuals; and finally, of the economy, national or private. There is also a visible

and positive trend to favour privacy over access to information in all the Acts reviewed.

This particular current legal state of affairs must be understood in order to start considering

the evolution of the balance between privacy and access to information versus safety and

security.

When Data Became Power: A History of the Intelligence Agencies in Canada


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A survey of Canadian laws on privacy and access to information shows clearly that

while Canada favours the respect of privacy and the transparency of government, it also

subdues these concerns to the personal safety of its citizens and national security. It reveals

the conflicting nature of the power of information in Canada, used both by the people to

keep the government accountable and by the government to keep the people in line.

Information is portrayed as a force for good, but is it?

The answer is intrinsically linked not to the nature of information itself, but rather,

to the nature of the intelligence services making use of the information, either by

suppressing it, creating it, amalgamating it, spreading it, or hiding it. To understand thisconcept better, it is useful to illustrate extreme cases. A country with no intelligence service

would probably have a highly empowered citizenship, with no government control, but

might suffer from high crime rates because of a lack of crime prevention. A country with

an omnipresent intelligence service, on the contrary, would probably have a close to zero

crimes as traditionally understood. However, their social control would also likely leave no

freedoms to its citizenship, effectively dehumanizing them, and may have a whole slew of

Orwellian thought crimes to be enforced. The question therefore is: does Canadas

intelligence service favour a culture of accountability, or a culture of secrecy? As history

unfolded, Canadas intelligence service took many forms and shape. As such, the answer

depends on the stage of interest.

The Early Days: Colonies


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In its early stages, Canada did not have a formal intelligence serviceper se. In New

France, the low population and high church frequentation assured that everyone knew

everyone. Information was a power collectively owned. Unless you partook in the fur trade,

and thus spent much time travelling the vast woods of the new continent, it was likely that

you were known to most if not all of the colonys inhabitants. The colonial powers did not

need an intelligence service, and relied on denunciations to carry out justice. The

knowledge of being surveilled by each and everyone served as a powerful enough deterrent

to commit crimes.

In 1763, the Royal Proclamation gave significantly larger powers to the colonialauthorities. It marked the change of hands of New France to England, and drew further

lines between Qubec and East and West Florida. The Royal Proclamation expressly

enjoin and require all officers to seize and apprehend all persons whatever, who standing

charged with treason, misprision of treason, murder or other felonies or misdemeanors,

shall fly from justice and take refuge in the said territory, and to send them under a proper

guard to the colony where the crime was committed of which they shall stand accused, in

order to take their trial for the same, but does not include provisions about intelligence

services (Royal Proclamation, 1763). However, the same year also marks the making of the

American Revolution. If the British Empire wants to keep control over Qubec, a better

form of social control must be put in place to oppose the influence of the American

revolutionaries. The Quebec Act of 1774 is an attempt at calming the aspirations of

Qubecers to join the rebels in their Revolution, granting them the right to free Exercise of

the Religion of the Church of Rome and maintaining the French Civil Code while

enforcing the English Criminal Code (Quebec Act, 1774). Yet, still no provision of the Act


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establishes an intelligence service yet, and thus we can safely conclude that the ground

work of data collecting and gathering was done la militaire, by and for soldiers, as it was

commonly practiced at the time. By the end of the American Revolution, with the Treaty of

Paris in 1783, tensions between the northern British colonies and the American Union were

far from resolved. In 1791, because of the growth of the British colonies with the arrival of

the Loyalists, the Empire established Lower and Upper Canada. Military presence is

maintained, and intelligence remains scattered and occasional instead of formalized. The

government operated mainly from afar, in England, and thus the population in the Canadas

was not heavily surveilled, but as a result could not really hold their governmentaccountable in any way.

The American Revolution: A Menace and Inspiration

The tension stemming from the American Revolution, after having been calmed by

the Treaty of London of 1794, would return with the breaking of the War of 1812, but the

British troops managed to drive back the Americans south of the border in 1815. However,

the population of Lower and Upper Canada shared some of the exasperations that had led

the Americans to revolt. In 1837 and 1838, two Rebellions calling, amongst other things,

for responsible government, were squashed, and Lord Durham was sent the following year

as Governor General of Canada, and given special powers as High-Commissioner of the

British North America to investigate the causes of the uprisings. He produced for theBritish Empire a report recommending amongst other suggestions the merging of Lower

and Upper Canada. In 1840, the Empire merged Lower and Upper Canada in the Province


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of Canada, and enacted the Act of Union. However, it is only after the British North

America Acts of 1867 that entrenched intelligence services are established.

After the Canadian Confederation, the newly established Canadian government

decided to take measures to protect its increasingly larger territory. It was both a way to

control a relatively unstable society and an incentive for other colonies to join Canada.

Two police forces were created: the Dominion Police, in 1868; and the North-West

Mounted Police, in 1873. The Dominion Police, according to their entry in Library and

Archives Canada, consisted originally of fewer than a dozen men, and their duty was to

protect federal government buildings in Ottawa and later included undercover security,the protection of Navy yards and the maintenance of a fingerprinting bureau. The North-

West Mounted Police did not have such a clear mandate of intelligence gathering, but their

reports were used by the authorities to fine tune policies to reduce social unrest, and they

had discretionary power in how best to enforce social peace in the regions under their

protection. Though these two forces worked quite efficiently for close to 50 years, they

were dismissed at the beginning of World War I, and finally merged in the Royal Canadian

Mounted Police (RCMP) in 1920. The era between the creation of Upper and Lower

Canada in 1791 and World War I saw rebellions for a more accountable government, but

the work of the military and of the police forces was too useful for most to be put in danger

for vague concepts of privacy. Intelligence activities existed, but were not overly intrusive

and were commonly, if not accepted, tolerated as a necessary evil.

The Royal Canadian Mounted Police: A Descent on the Intelligence Slippery Slope


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After World War I, the Canadian intelligence services were streamlined into the

single Royal Canadian Mounted Police. It would after almost fifty years lead to a police-

sponsored campaign of dirty tricks consisting of break-ins, arson and theft targeted at left-

leaning press and political parties (including one that was poised to form a government)

and a subsequent cover-up that was almost successfulinvolving a deception that

included lying to a Minister about the campaignbut was undermined by frank admissions

of people who participated directly in illegal activities in the 1970s (Security Intelligence

Review Committee, 7). But lets start from the beginning.

Gregory S. Kealey managed to get access to the early documents of the RCMP,including internal disciplinary matters; material relating to charges against Commissioner

Herchmer; the relationship of the RCMP to Doukhobors, Communists, enemy aliens, and

labour disputes, especially the Winnipeg General (201). His research provides an insight

in the ruthless work of the RCMP, filled with infiltration missions and sabotage operations.

Inside their reports, we read of comments on the social and political movements they

infiltrated and surveilled:

Special Agent Davies promises to be a very valuable man, and isinvestigating the Loggers' Union, an important society of which heis a member.

Special Agent Eccles is going through the Camps betweenPrince George and the Alberta Boundary, and I hope will obtainuseful information. (209)

They also had access to the files of the forces that united to form the RCMP:

Mrs. Dickson is doing the accounts, and helping with the M.S.A.work; getting information from the Dominion Police files, etc.

She is a capable woman.Her husband is very ill. (209)

Their role was to prevent civil, but also political, unrest:


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As far as labor generally is concerned, there are grave possibilities,for there is no doubt that there are very active campaigns going onamongst working men of a disturbing nature, []and the tone ofthese meetings is of the usual extreme kind against what is termedthe "capitalist" class, and is not favorable to the Government. The

speakers are very careful not to go too far, and a good deal of whatthey say has, I must admit, some truth in it, when you come toweigh the actual meaning of the words spoken. Most of the menwho do the speaking are probably in it for mercenary reasons, butthere are a few very determined men amongst them who meanbusiness.

I am of the opinion that the Police did not arrive here a day toosoon, and from what I can glean from the unsettled state of labor,Bolsheviki movement and the various other organizations of adisturbing nature, all point out that we shall have a very busy andinteresting time ahead of us. (209-210)

The RCMP also provided advice to the government, based on their observations

and own beliefs:

The Government must at all cost keep the returned soldiers unitedas far as possible. This is most important, as you will see fromvarious reports that the various Labor and other organizations areputting forth their united efforts to try and win as many returnedmen as possible to espouse their cause by using false propagandaand other means of prejudice them against the Government etc. Asa number of the returned men have been unable to obtainemployment, this has been taken advantage of by the agitators andare getting them some recruits. If we can only keep the returnedsoldiers with us I am of the opinion that in case of trouble there areenough good loyal people who will stand behind the troops tomake the outcome certain. On the other hand, if the disturbingelements win over a large number of returned men then thesituation will become very serious. As we could not figure exactlywhether they may not teach the man now in Camp here, no doubtthe authorities have been most careful in selecting men to bestationed in the different units here, as this is most important.

There is no doubt that they are trying to organize aninternational strike some time in June or July to paralyse industry.Where are a lot of determined men in these organizations whowould stop at nothing to gain their end. (210)

In conclusion I have the honor to suggest that, as a large number ofthe disturbing element are from foreign countries that some means


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should be taken to send them home as speedily as possible. This Ifeel will ease the situation here very much. (211)

They favoured intrusive tactics, and got directly involved. According to the reports

Kealey found, some RCMP officers believed that the strongest lever to use in this sort ofpolicy to my mind, would be the festering of dissention between the leaders of the various

Unions and Labor Organisations (212).

The RCMP tried to shape public opinion, for political reasons more than to

maintain the social peace. They were pleased that The G.W.V.A. [Great War Veterans

Association] membership is increasing rapidly, as troops are arriving back, and are doing a

lot to mold public opinion in the right direction. This organization is opposed to the

Comrades of the Great War, which has not a very reliable reputation (214). They

conclude that they

are up against clever men with brains and with a certain smatterismof truth to give added weight to their teachings.

I consider that only by action on the part of the Government tokeep the various labor organizations from uniting, and if possiblesecure clever and capable men to lead the conservative element inthe various labor organizations and start an educational campaign;and thus develop a strong opposition to the extreme element, andby eradicating the foreign element of the agitating type can thepressure be relieved. This line of action I feel sure would soon winmany honest well-meaning laborers away from the extremists.Above all the returned soldiers must be provided with work, and bekept together as supporters of the Government. (211)

Of course, their work also includes the control of reading material:

PROHIBITED LITERATURE:There were no prosecutions entered in this Division during themonth under the above heading. A large quantity of radicalliterature is still being distributed at Labor Church meetings, etc.,but little of same appears on the prohibited list. (219)


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Canadas national securityhow it was conducted, managed and maintained

was largely a matter left unspoken at nearly all levels of civic discourse. The inherent and

obvious consequence was that an entire area of state powerconsiderable in its might and

scopewas wide open and vulnerable to abuse (Security Intelligence Review Committee,

8). In fact, bien qu'existant probablement depuis les annes 1860, ce n'est qu'en 1934

qu'un gouvernement a admis officiellement l'existence d'un service secret au sein de

l'administration (Krieber, 43). During World War II, la GRC n'a gure pratiqu le contre-

espionnage [], sans doute en raison du vaste programme d'internement qui a peut-tre

priv les agents ennemis de contacts au Canada. Pendant les premires annes de la guerre,avant que l'Union sovitique devienne notre allie, l'activit anti-subversive portait surtout

sur les prsumes tentatives de communistes pour nuire l'effort de guerre. La surveillance

visait galement le mouvement anti-conscriptionniste au Qubec et les Tmoins de

Jhovah. Ce dernier groupe, comme les communistes, avaient t dclar illgal en vertu

des Rglements concernant la dfense du Canada (Krieber, 48: [McDonald, 61]). Entre

les deux guerres, la GRC s'est surtout occupe [...] de la lutte contre la subversion. Ses

principales cibles taient les groupes communistes et les organisations ouvrires diriges

par les communistes. Les gouvernements successifs voulaient tre mis au courant des

projets rvolutionnaires de ces organisations et de leurs appuis l'tranger (Krieber, 48:

[McDonald, 59-60]). After the war, dans les annes 1930, la GRC avait infiltr une trs

large chelle le mouvement communiste canadien (Krieber, 48: [McDonald, 59-60]). The

RCMP was an omnipresent force, and was not accountable to anyone but their superiors.

They often failed to report to even the Ministers in charge. Incidents were bound to happen.


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The Communist-Hippy Effect of the 1960s-1970s: What Constitutes Too Far in the World

of Intelligence?

Starting in the 1960s, the fear of communism amongst the intelligence services

caused by the Cold War collided with their unease with the emerging social movements

that put to question the established order. Hippies, opponents to the Vietnam War, the

adherents of the New Left, and other soft-revolutionaries, inspired similar movements in

Canada and Qubec. This fracture between the social order and large parts of the

population scared the RCMP, that always targeted fringe movements, and led them to start

targeting larger and larger parts of the population. Cest au cours des annes 1960, aumoment de la cristallisation des contestations autour de la Nouvelle gauche, de

l'opposition la guerre du Vietnam aux tats-Unis et de l'mergence du nationalisme

violent au Qubec, que se sont intensifies les activits anti-subversives du

renseignement et que les cibles sont par consquent devenues intrieures (Krieber, 43).

The police-sponsored campaign of dirty tricks consisting of break-ins, arson and theft

[targeting] left-leaning press and political parties (including one that was poised to form a

government) and subsequent cover-up that was almost successfulinvolving a deception

that included lying to a Minister about the campaignbut was undermined by frank

admissions of people who participated directly in illegal activities that I foreshadowed

took place over the span of close to 20 years, targeting students, Qubec separatists and

other fringe groups (Security Intelligence Review Committee, 7). There was a mfiance

presque atavique de nos services envers les tudiants: la lumire de ces faits, nous en

sommes venus la conclusion, vers la fin des annes 1960, que la GRC a entrepris, sans

l'approbation du gouvernement, un important programme visant multiplier et amliorer


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les contacts avec les professeurs d'universit. Ce programme a t instaur cause du

militantisme qui tait en progression dans les universits et du terrorisme qui se

dveloppait dans quelques-unes (Krieber, 48: [McDonald, 362]). The RCMP Security

Service had conducted a systematic campaign throughout the 1970s to subvert

organizations in Vancouver deemed to be a threatthose espousing communist or far-left

leaning politics, and the RCMP members who were involved in the dirty tricks werent

bothered by the illegality of their deeds (Security Intelligence Review Committee, 10).

Bombs were planted, political parties infiltrated and their membership lists stolen, and the

RCMP even instigated certain events of a less than legal nature in a successful attempt toget then Qubec Premier, Robert Bourassa, to ask of then Canada Premier Pierre-Elliott

Trudeau to apply the War Measures Act, as part of the October Crisis. More newspaper

reports emerged in 1977, including revelations of how the offices of the Agence du Presse

Libre du Quebec (APLQ)a separatist newspaperhad been burglarized by the RCMP in

the early 1970s. Also revealed among the RCMP Security Services activities was the

torching of a barn outside of Montreal, which had been used as a meeting place of Quebec

intellectuals suspected of having separatist affiliations (Security Intelligence Review

Committee, 10). They made victims and overall escalated social unrest for political motives

instead of deescalating the social tension to preserve peace and the security of the

population, as was their role. John Sawatsky wrote for the Vancouver Sun that: illegal

activity was accepted with enthusiasm since it was exciting, was good for ones career and

contributed to the fight against communism (Security Intelligence Review Committee,

10).


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These were lessons that should have been learnedperhaps earlier than they were

about the need for changes in the way that security intelligence had been conducted in

Canada (Security Intelligence Review Committee, 7). It had became apparent that the

commonly held belief that the police acted in the best interest of the people, and under

governmental scrutiny, was based on a lie. Rapidly the public demanded in outcry a public

inquiry into the activities of the intelligence services of the RCMP, and understandably so.

Commissioning a Better Intelligence Service: The Time for Public Inquiry

Two commissions marked the development of the Canadian intelligence services:the Royal Commission on Security and the Commission of Inquiry Concerning Certain

Activities of the Royal Canadian Mounted Police. However, the first one predates the crisis

of confidence that explode in the 1970s: by the mid-1960s, fuelled in part by a desire to

modernize security practices at the federal level, the Royal Commission on Security,

headed by Maxwell MacKenzie was established. It submitted its report in 1968 (Security

Intelligence Review Committee, 9). It tried to address some of the issues that would lead to

the McDonald Commission: the MacKenzie report also included a progressive idea: that

the RCMPs security intelligence function be completely severed from the police force.

That latter recommendation caused considerable debate and friction between the RCMP

and the government. In 1969, a compromise was reachedthe RCMP retained its national

security role, but John Starnes, a career diplomat, was appointed as its first civilian

director (Security Intelligence Review Committee, 9).

As we know, this change was not enough. More than a full decade passed before

the MacKenzie Commissions controversial recommendation re-emerged (Security


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Intelligence Review Committee, 10). The McDonald Commission Report, published in

1981, heralded a new chapter in the history of Canadian security intelligence (Security

Intelligence Review Committee, 11). The government acted on its recommendation, which

included the creation of a new civilian intelligence service and an advisory council

(Security Intelligence Review Committee, 11). In 1984, the Canadian Security Intelligence

Service Act was passed, stripping the RCMP of its intelligence service role and creating the

civilian and accountable Canadian Security Intelligence Service (CSIS) and its organs of

control, including the Security Intelligence Review Committee (SIRC). This is the law

under which Canadian intelligence services operate today.

The Canadian Security Intelligence Service, A Step in the Right Direction?

After the controversies brought forward in the McDonald Commission, Canada

became the first democratic government anywhere in the world to establish a legal

framework for its security service (Security Intelligence Review Committee, 11). Though

this move was applauded by human rights activists, the case was far from settled. The

SIRC did work efficiently as the external watchdog of the CSIS, and acting as the

complement to the internal work of the Inspector General of the CSIS. However, the

balance between Canadians security and privacy was far from dealt with. The war on

terror has moved CSIS to the forefront of public attention, and reopened the question

(Security Intelligence Review Committee, 20). Canadas security and intelligence

apparatusCSIS in particularhas become the object of public and media scrutiny of a

kind not seen in decades. (Security Intelligence Review Committee, 20) The political

landscape changed: Canadians saw a sea change in public policy, immediately following


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the September 11th attacks. The Government of Canada quickly adopted additional

security measures, drafted new laws to combat terrorism, and within three months put in

place a comprehensive new Anti-Terrorism Act. But these new powers make it all the more

important to safeguard citizens rights and freedoms, to preserve Canada as an open and

democratic society (Security Intelligence Review Committee, 20). There is still a great

deal of doubt on exactly how, if it is even possible, greater powers to intelligence services

could lead to a better safeguard citizens rights and freedoms, let alone keep our

democratic society open. However, this conundrum cannot be answered from an

historical perspective. If the past provides lessons to be assimilated, other approaches are tobe adopted to provide guidelines for the future.

The Canadian Security Intelligence Service Act and Ethics: Clearing the Mist of

Moral Secrecy and Unaccountability in Canada.

As it now stands, the evolution of the intelligence services in Canada seems to have

reached an impasse. It clearly does not suffice to look at the past or to review the legal statu

quo if we are to find a way out of this impasse. Commentator J. LL. J. Edwards explains

that there has now been set in place for Canada's Security Intelligence Service a

comprehensive mandate framed in legislation that, despite its occasional defects, represents

a significant advance on anything that can be pointed to in the same field in other Western

democracies (144). Edwards describes the Act as sealing the essential balance that seeks

to accord proper recognition to the civil liberties of its citizens but with equal regard to the

duty of any democratic government to collect political intelligence on threats to the

security of the state (145). However, it is far from perfect. We have reached a standstill,


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but the current balance is not solid. The equilibrium is fragile, and is rocked by both

psychological and philosophical factors.

Psycho-philosophy, or what the ancient Greeks would have called ethics,

therefore seems like an appropriate field to inquire into in order to find a durable

foundation to the intelligence services in Canada. This perspective needs to be adopted if

we are to propose a durable path towards the future, to propose an improved intelligence

service. What ought to guide the Service, and what limitations should be imposed on it?

Given the very nature of intelligence services, but also of the people responsible for

keeping them accountable, it is likely that any ethical guideline that is too vague will leadto disastrous consequences. As well, given the flexibility of conscience required to perform

efficiently the espionage duties of an intelligence service, too strict moral considerations

might be counterproductive, if not destined to fail from the start. Only realistic ethical

guidelines, that give enough room to both the spy and the watchdog, can likely pretend to

serve as a durable foundation for the intelligence services in Canada.

Ambiguous Foundations: The Canadian Security Intelligence Service Act

Before even trying to put forward normative ethical guidelines, the current reality

of the intelligence services needs to be assessed and addressed. The CSIS Act is ambiguous

at best. The duties of CSIS seem simple, but are made complex by their contradictory

nature: the Service shall collect, by investigation or otherwise, to the extent that it is

strictly necessary, and analyse and retain information and intelligence respecting activities

that may on reasonable grounds be suspected of constituting threats to the security of

Canada and, in relation thereto, shall report to and advise the Government of Canada


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(Section 12). While they have to exert prudence, staying reasonable and acting only to

the extent that it is strictly necessary, their end goal is to investigate any activities

constituting threats to the security of Canada. Section 2 defines threats to the security of

Canada as:

(a) espionage or sabotage that is against Canada or is detrimentalto the interests of Canada or activities directed toward or in supportof such espionage or sabotage,(b) foreign influenced activities within or relating to Canada thatare detrimental to the interests of Canada and are clandestine ordeceptive or involve a threat to any person,(c) activities within or relating to Canada directed toward or insupport of the threat or use of acts of serious violence against

persons or property for the purpose of achieving a political,religious or ideological objective within Canada or a foreign state,and(d) activities directed toward undermining by covert unlawful acts,or directed toward or intended ultimately to lead to the destructionor overthrow by violence of, the constitutionally established systemof government in Canada.

However, this definition does not include lawful advocacy, protest or dissent.

Political rights need to respected, yet certain radical political objectives are frowned

upon. Confusion is bound to arise.

To help the Service interpret their contradictory mandate, the Act set forward a few

structural safety measures. First, the Director of the CSIS answers to the Minister of Public

Safety and Emergency Preparedness (Section 6(1-2) ), where the RCMP once only

answered to themselves, with no governmental accountability. Second, that Minister is not

solely in charge, and the Director is to consult the Deputy Minister on most of the workings

of the Service (Section 7(1) ) and notably before applying for the warrant or the renewal

of the warrant (Section 7(2) ). Section 21 describes the lengthy process the Service has to

go through before getting a warrant, and keeps CSIS accountable to the courts. Third, an


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Inspector General is to monitor the proper functioning of the Service and their application

of policies, and is to report to the Deputy Minister (Section 30). He is the ministrys eyes

and ears on the Service. He will very much be the ministers man in order to maintain an

appropriate degree of ministerial responsibility, and is not to be regarded as a functionary

of the CSIS (Edwards, 151). Finally, a Security Intelligence Review Committee is struck

in Section 34, to review and investigate the work of both the Service and its other

watchdogs. They are to have access to any information under the control of the Service or

of the Inspector General that relates to the performance of the duties and functions of the

Committee and to receive from the Inspector General, Director and employees suchinformation, reports and explanations as the Committee deems necessary for the

performance of its duties and functions (Section 39(2)(a) ), and are given court-like

powers such as summoning, administering oaths, and receive and accept evidences, in

Section 50. According to Edwards, this external watchdog committee is the lynchpin in

the entire system of control and accountability (149). Clearly, standards of accountability

are put forward in the CSIS Act, which is one avenue to explore as a basis for ethical

guidelines. However, other potential avenues are also included in the Act.

Under Section 14, the Service is allowed to advise ministers and provide them with

information regarding the security of Canada, and to conduct the investigations required to

efficiently do so, but Section 16 limits those investigations to non-Canadian citizens and to

non-permanent residents, and only on the demand of the ministers involved. This provides

for a classification of targets, which may form another basis for ethical guidelines.

The confidences of the Service to ministers, however, are not included in the

documents that any of the watchdogs has access to (Section 31(2), Section 39(3) ). Again,


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accountability is limited by section 18, which prevents the disclosure of information from

which the identity of (a) any other person who is or was a confidential source of

information or assistance to the Service, or (b) any person who is or was an employee

engaged in covert operational activities of the Service can be inferred. Anyone

contravening to Section 18 is (a) is guilty of an indictable offence and liable to

imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable

on summary conviction (Section 18(3) ). Though the focus is somewhat misplaced,

favouring secrecy over accountability, another basis for ethical guidelines can be found in

these punishments. Indeed, labelling unacceptable acts as offences under the Law could bea way to ensure the respect of the ethos of the intelligence services.

However, these complicated checks and balance have one provision that stand out

the most as a basis for ethical guidelines. Members of the CSIS and of the SIRC both are

sworn in their functions after taking oaths (Section 10, Section 37). Though they are quite

formal and do not include any ethical principles per say, their very existence provide for

expanding on the role of the sense of duty that is implied by swearing. The oath of office

for the CSIS agents reads: I, ...................., swear that I will faithfully and impartially to

the best of my abilities perform the duties required of me as (the Director, an employee) of

the Canadian Security Intelligence Service. So help me God. The secrecy oath taken by

both CSIS agents and SIRC members reads: I, ...................., swear that I will not, without

due authority, disclose or make known to any person any information acquired by me by

reason of the duties performed by me on behalf of or under the direction of the Canadian

Security Intelligence Service or by reason of any office or employment held by me

pursuant to the Canadian Security Intelligence Service Act. So help me God (Section 10).


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Without arguing the moral and ethical value of swearing on God, there is a tacit

understanding that higher powers can indeed make it so that agents of the intelligence

services have to comply with certain principles. What should those principles be, and what

should this higher power be?

Are Intelligence Services Even Necessary?

Before even trying to fix the intelligence services by giving them clear principles

to follow and ethical guidelines, the issue of their necessity needs to be addressed. Are they

even necessary? Unfortunately, the answer is yes. They are a necessary evil. Lock K.Johnson explains it best: in a strategic landscape plagued by still greater uncertainties, the

need to know not only endures but grows (19). He argues that although globalization has

brought about a new set of favourable circumstances for nations in terms of trade, travel,

and communications it has also brought greater exposure to foreign intrigue, against which

intelligence can provide a shield (19). He claims that intelligence services continue to

provide this first line of defense, including efforts to uncover the use of chemical and

biological warfare before the sarin gas, anthrax particles, or other horrendous substances

are released among mass civilian populations (25).

Pfaff and Tiel even argue that governments have a duty to determine what threats

lie on the horizons for their citizens, a duty which offers a moral justificationeven

strongera moral requirement for intelligence-gathering. To fail to engage in intelligence-

gathering would be to shirk a moral duty lying at the core of a governments responsibility,

for without timely information as to a potential enemys capability and intentions, civic

defense is impossible (4). They put forward the idea that, because the work of the


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professional intelligence officer is indispensable to the national security duties of the state,

espionage is itself a derivative moral obligation (14). For them, this means we should

dispense with the idea that somehow the work of the intelligence professional is not

compatible with the dictates of morality (14).

Espionage is needed, and even a moral requirement, but does it matter? The

consensus on the matter seems to be yes, at least in terms of improving our odds for civic

defense. As Richard H. Immerman puts it, that [a] strategy [is] better informed does not

mean that it [is] better strategyonly that it had a better likelihood of being good strategy

(11). After all, good strategic intelligence (the big picture) does not guarantee goodpolicy, but, holds the received wisdom, the better the intelligence, the more informed the

policymaker (1). However, he also warns that policy makers need to be willing to listen to

intelligence services if they are to matter. He argues that electoral success normally

requires holding strong beliefs or convincing the electorate that beliefs held are strong

and sound, and therefore asks: how likely is it [] for those who are politically

successful to learn from intelligence once in office that these beliefs are unfounded? (23).

Based on the American example, he explains that the norm is that presidents pursued

policies based on their predispositions, preexisting beliefs, and often their politics (17).

Ethical principles are entrenched in human psychology, and therefore need to take into

account the cognitive psychology theory of the core beliefs (2). They exist in equal

influence with intelligence in the mind of politicians: the policies and strategies developed

and recommended by managers of Americas national security reflected to a substantial

degree the intelligence about both allies and enemies that they received from their sources,

even if that intelligence was buffered by ideology, racial bias, cultural norms, and


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associated phenomena (2). As Immerman reports, part of the job of intelligence services

is to tell the emperor he has no clothes (3). He is critical of the influence of intelligence

services: what drove their policies were beliefs that translated into dogma, not intelligence

that is almost never conclusive (22). Yet, he recognizes that Intelligence need not

disconfirm a predisposition or preexisting belief in order to matter. Confirming or

reinforcing evidence is no less valuable than that which disconfirms or disproves (5-6).

There is clearly a need for intelligence services, though emphasis should be put on the

lawmakers to acknowledge their usefulness and remain critical in their use of the

information they receive from them, but also of their biases and preconceptions.

The Evil Nature of Intelligence Services

If there is a need for the necessary evil of intelligence services, there also ought

to be restrictions on their reach. Ethical guidelines ought to be imposed on the intelligence

services, but need to take into account the nature of the services inherent to the functions

and roles they fill. Pfaff and Tiel explain that effective espionage requires intelligence

officers to deceive, incite, and coerce in ways not acceptable for members of the general

public (1). Janine Krieber paints a portrait of the relationship between the State and the

intelligence services based on an almost pathological dependence, as a love/hate

relationship: les hommes qui exercent le pouvoir sont donc insatiables de renseignements,

autant sur l'ennemi extrieur que sur celui qui se terre l'intrieur des frontires. Le droit

de tout savoir sur tous semble presque, au dsespoir des dfenseurs des liberts, faire partie

de la lgitimit qui fonde l'tat moderne. Un service de renseignement bien organis et

efficace est, de tous les services gouvernementaux, la perle, l'enfant chri du politique, en


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mme temps qu'un repoussoir, le btard qu'on est prompt renier (37). For her,

intelligence services are founded on contradictions. En dmocratie parlementaire, la

relation du politique au renseignement est ambigu. Parce que l'activit secrte reste un

espace ncessairement soustrait la transparence dmocratique, elle est, par nature,

inacceptable. Parce qu'instrument de protection de la souverainet, du rgime et des

institutions, elle est indispensable la survie de cette dmocratie dont elle est la ngation.

Beau dilemme (37). She believes that les contraintes tiennent une contradiction

irrconciliable entre le secret d'tat et la dmocratie, comprise comme sanction populaire,

rgulire et obligatoire, de l'activit politique; dpendante donc es liberts d'expression etsurtout d'information (38). After all, son succs maximal serait donc qu'aucune menace

pse sur qui que ce soit; du mme souffle, le service perd sa raison d'tre (39).

Contradiction difficile dpasser indeed (39). Loch K. Johnson echoes this conflicting

description, arguing that bureaucracies inevitably strive to advance their own interests,

especially when they are less accountable to the public (19). As shadowy figures

operating outside the law or conventions of war, spies are in some ways the ultimate agents

of national interest (19), yet these shadows, essential to the efficiency of spies, are easy to

see as threats to democracy. Krieber describes this as a mist, and le brouillard devient

presque total dans le monde de la prvention du crime politique. L'appareil juridico-

lgislatif ne suffit plus et laisse elle-mme, l'organisation de renseignement aura

tendance exagrer son rle, multiplier les cibles, bref, voir partout des ennemis (45). She

even wonders s'il est possible de concevoir un service de renseignement vraiment au

dessus de tout soupon (46). Johnson seems to predict Kriebers fears, but undermines

them as occasional: human rights activists and other champions of democracy have


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understandably balked at the excesses that have occasionally characterized intelligence

activities, whether assassination plots, coups, bribery, the spreading of propaganda, or the

lack of accountability (25). While l'espion sur le terrain, l'indicateur infiltr ont pour seul

mtier le mensonge. Solidarit l'intrieur et mfiance tout azimut, mme face aux

pouvoirs publics qui devraient contrler leurs activits, les services secrets sont passs

matres dans l'art de la dissimulation (Krieber, 59), it is also true that spying, then, can be

a vital support to democracy (Johnson, 25). They would agree on one thing: it can also

have just the opposite effect if a regime fails to maintain a system of accountability over its

secret agencies (Johnson, 25).How can a regime maintain a system of accountability, however, if cette manie de

la protection contre la plus petite fuite s'exerce non seulement face l'tranger, ce qui va de

soi, mais aussi vis--vis des hommes politiques (Krieber, 60)? Le projet, maintes fois

exprim, de dmocratisation du renseignement se heurte de fortes contraintes du milieu

(39). En effet, toute institution charge de surveiller l'ordre public, que ce soit par le

renseignement ou la rpression, est profondment conservatrice. [] Les individus plongs

dans ce monde o ce qui est comme avant est ce qu'il y a de meilleur ne peuvent

comprendre une volont dlibre de changement. Ils ne peuvent admettre qu'un tre

humain qui se bat pour que les choses changent soit un humain normal. La tentation est

alors grande de jeter la faute sur ces trangers qui ne sont pas comme nous. La scurit

extrieure sera donc lie troitement aux perceptions de la menace intrieure (Krieber,

49). The fact remains that dans un monde htrogne o les idologies s'affrontent, la

frontire est tnue entre l'influence trangre et les aspirations lgitimes d'un peuple au

changement (Kriber, 48). After all, although just about every major intelligence service


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shrank in size after the Cold War, most have eagerly embraced the "new threats" mantra as

a strategic imperative (Johnson, 18).

Until recently, the intelligence services of every nation enjoyed immunity from

close review by outside overseers: The philosophy was that, by necessity, secret agencies

had to be divorced from society (Johnson, 25). This philosophy is shifting, but its effects

are still felt within the intelligence community. Though the CSIS Act was a step in the right

direction, it still represents a change that the intelligence community is by nature opposed

to. Officials can difficultly enforce accountability in the intelligence services if the services

themselves are not ready to embrace this principle as guiding their actions. As Johnsonrecognizes, ultimately, in a democracy, the viability of an effective secret service relies on

public respect. Oversight by elected representatives provides an important link between the

people and the hidden side of government and helps to guard against the misuse of secret

power (26). What would then be enough to regain public respect? It is time to flesh out the

ethical principles that should guide both the intelligence services and their watchdogs.

Different Ethical Avenues: The Many Facets of Improvement

The review of the Canadian Security Intelligence Service Act allowed me to outline

four avenues to be considered in establishing ethical guidelines for intelligence services.

First, to maintain through the law standards of accountability within and around the

Service. Second, to classify clearly the targets of the intelligence services and codify proper

conduct for each category. Third, to lay out punishments for misconduct, or to criminalize


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non-ethical acts and behaviours. Fourth, to appeal to greater principles of ethics, be they

God or the social contract.

Before anything else, it needs to be said that accountability has recently taken a

major hit under the current Conservative government. Andrew Mitrovica recently

published in The Starthat if Canadians are to have any confidence that CSIS is abiding by

the law and its policies, then we need men and woman like [the Inspector General] to be

able to do their jobs without fear or favour. Instead, Ottawa appears to be suggesting that

the IGs responsibilities will be handed to the Security Intelligence Review Committee

(SIRC). This supposed cost-saving solution betrays a profound and instructivemisunderstanding of SIRCs responsibilities. In its familiar stealth-like fashion, Stephen

Harpers Conservative government shuttered the office of the Inspector General (IG) over

Canadas spy service, CSIS, Mitrovica critiques. He also notes that to date, the Prime

Minister has not found the time to appoint a new chair [of the SIRC], rendering the review

agency essentially rudderless. SIRC has a relatively minuscule budget of $2.2 million and

few staff. Its unlikely that it will be given any more money or resources to exercise any

new responsibilities. He concludes that this is what constitutes accountability over

Canadas spy service today, [] from a government that made a seemingly solemn pledge

to make accountability a guiding governing principle. What a dangerous farce.

Accountability is best served by the provisions set fourth in the present act, if applied both

in spirit and in letters. All the external controls provided for by the CSIS Act play a

significant role. Adequate funding is to be given to all the watchdogs created by the Act,

and their offices maintained.


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If accountability is re-established, as it should be, there is still room for

improvements. First, lets examine proposed classifications of targets. It involved two

classifications: the source of the information and the type of information collected, either

open, or hidden or clandestine; and the type of target, ranked according to their

involvement in the intelligence community. There is a debate in the intelligence

community about the merit of open versus hidden sources. Pfaff and Tiel stress that

the ethics of intelligence concerns not only who is targeted as a potential source, but also

the kind of information sought (5). The least harmful investigation technique is the

aggregation of open sources, and should be preconized above all other methods ofinvestigation by the intelligence services. Loch K. Johnson found that during the Cold

War, about 85 percent of the information contained in espionage reports came from the

public domain. Today, in light of the greater openness of governments around the world,

that figure is more like 90 to 95 percent (22). Janine Krieber arrives to the same

conclusion: le renseignement c'est donc plus que l'ide premire qu'on se fait de

l'espionnage. Tout un rseau travaille rassembler l'information et la traiter. Le matriel

est construit en grande partie, dans la mesure o on peut en juger de l'extrieur, partir de

sources ouvertes (42). Indeed, the effective intelligence analyst starts trying to answer

questions with an exhaustive examination of open sources-a much less expensive method

of detection (Johnson, 24). The system seems to have integrated open sources quite well.

Why would there be anything to fix there? There is indeed nothing to fix their. Open

sources are the first source of information for intelligence services. However, sometimes

information that is openly available proves insufficient to answer an intelligence question

(Johnson, 22). Open reporting is often better for the long-term interpretation of political


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events, but too often, however, analysts set aside open sources in favor of the more

beguiling and abundant (if frequently less reliable) secret information that pours in from

agents and spy machines (Johnson, 24). They do serve a purpose: intelligence agencies

perform especially well on topics that open reporting sources have trouble tracking, notably

the precise whereabouts of foreign military forces, the activities of terrorist groups, the

machinations of international criminals, and events and personalities in closed societies

(Johnson, 24). If open sources are to be favoured, it remains that the open and clandestine

sources each [reveal] pieces of the [] jigsaw puzzle; when joined together, the picture

[becomes] much clearer (Johnson, 24).Open sources are clearly preferable, but what should guide the collection of

clandestine information, as it is often necessary as well? After all, the intelligence services

must cast a wide net sometimes directed at people and nations who do not and never will

represent any kind of threat in order to assess and prevent threats to security (Pfaff & Tiel,

5-6). Thus, preliminary intelligence gathering must be permissible against persons who

may turn out to be wholly innocent of possessing any vital information (Pfaff & Tiel, 6).

Pfaff and Tiel argue that intelligence agencies must possess a means to determine who are

the likely sources of critical information beyond the obvious candidates like foreign

military personnel, foreign intelligence officers, foreign government personnel, etc. (6).

The ethical criteria they follow in determining the level of potential targets is the degree

of consent to participate in the world of national secrecy on all levels of a countrys self-

defense structures together with the quality of information possessed proportionately

permit increasingly invasive means of attempting to acquire that information by foreign

powers (6). They classify targets in five categories: ordinary citizens not possessing


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information (6), people possessing information without being aware of its importance (6),

aware individuals not aware of their surveillance (7), potential double-agents, who are

aware individuals aware of their surveillance and willing to betray (8), and intelligence

professionals unwilling to betray (9). I disagree with their classification, because it ignores

the spying conducted on your own citizens. I instead propose the following large categories

of targets: citizen civilians, foreign civilians, citizen agents, and foreign agents. Pfaff and

Tiel argue that acting morally does not necessarily mean states must give up obtaining

critical information, but it does mean they may have to give up certain ways of obtaining it,

even if that means intelligence officers must take greater risks (Pfaff & Tiel, 14). I sharethis conclusion. They also believe that they may only target those who have voluntarily

entered the game and avoid involving people who may be useful, but who have not, by any

choice they have made, involved themselves. When it is necessary to involve innocents,

they must observe the limitations imposed by the doctrine of double effect (Pfaff & Tiel,

14). I also share this belief, but disagree with their analysis that by functioning as citizens

of a foreign power, the average citizen renders himself vulnerable to those elements of

intelligence-gathering necessary to fulfil [sic] the goal of preliminary intelligence

gathering: identifying the real sources of information, hence why I separate foreign

civilians and agents (Pfaff & Tiel, 6). I hold that minimum ethical considerations for citizen

civilians are needed to ensure the respect from the public towards the Service if it is to

function efficiently, and that foreign citizens should also be guaranteed minimum rights, to

avoid reciprocal dehumanization of our own civilians. As such, I apply their argument that

any kind of conduct in intelligence-gathering that results in self-defeat, in the de facto


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cessation of respect for the other partys (and derivatively, my sides) free agency, is

likewise irrational relative to the ethics of intelligence (Pfaff & Tiel, 5).

The CSIS Act also opened the door to the punishment of certain acts or behaviours.

I do not see this as effective, holding the belief that punishment is neither constructive nor

appropriate, but see this opening as an opportunity to classify acts. If certain acts are

punishable, then they are bad. However, that also means that certain acts could be good,

and rewarded. I would tie in the oaths included in the Act, and call this category the moral

imperatives. Here, Pfaff and Tiel again provide useful initial guidance:

It might be useful to stipulate a preliminary set of distinctions toavoid confusion later. We will employ the terms lie, steal,adultery, and murder as moral violation terms per se. We willtreat moral violations as unexceptionable and their permissibleequivalents as non-moral actions. So, murder is always wrong(moral term), while killing is not (non-moral term). Adultery isalways wrong (moral term), while sex is not always wrong (non-moral term). Theft or stealing is always wrong (moral terms), whileappropriation is not always wrong (non-moral term). Lying isalways wrong (moral term), while deliberate falsehood ordeception is not always wrong (non-moral terms). Ethicists of warand intelligence do themselves a service by avoiding theimpression that they really think that it is permissible to murderpeople in wartime. Admitting this makes it very difficult to identifyatrocities as the murders that they really are. (11)

Indeed, similar acts are tainted by the intention behind them and context around

them. The exercise of legitimate authority as an intelligence service does excuse certain

behaviours, but the slippery slope of seeing oneself above moral laws is easy to fall into.

However, no one outside of the secretive world of intelligence could potentially imagine

the various details that would go into providing a comprehensive list of reprehensible and

encouraged acts. I will therefore limit myself to saying that due adhesion to a code of

conduct to be drafted by the legislators, the Service and the watchdogs is to be encouraged


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account ethical considerations that seem to undermine an intelligence officers

effectiveness will not always be morally compelling (2). I hope to have reasonably

demonstrated that ethical considerations, on the contrary, can only enhance the efficiency

of the work of the intelligence services while contributing to protecting our rights and

freedoms. I also hope to have reasonably demonstrated that these ethical considerations can

be based on both the historical and legal reality of Canada, as well as the intrinsic nature of

intelligence services.


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Works Cited

Canada. (1981). Commission of Inquiry Concerning Certain Activities of the RoyalCanadian Mounted Police. Second Report: Freedom and Security under the Law.Ottawa: Public Works and Government Services Canada. (Commissioner: Mr.

Justice D.C. McDonald) [As quoted by Krieber, J.]Canada. (1982). Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,

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Canada. (1985).Access to Information Act. R.S.C., 1985, c. A-1. Ottawa: Public Worksand Government Services Canada.

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Other Acts, and to Enact Measures Respecting the Registration of Charities, in

Order to Combat Terrorism. 37th Parliament, 1st Session, 2001. Ottawa: PublicWorks and Government Services Canada.

Edwards, J. LL. J. (1985). The Canadian Security Intelligence Act 1984--A Canadianappraisal. Oxford Journal of Legal Studies , 5(1). 143-153.

Great Britain. (1783). Royal Proclamation, 1763. Capitulations and Extracts of TreatiesRelating to Canada; With His Majesty's Proclamation of 1763, establishing the

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Immerman, R. H. (2008). Intelligence and strategy: Historicizing psychology, policy, andpolitics.Diplomatic History, 32(1), 1-23.

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Krieber, J. (1988). La dmocratie du secret : le contrle des activits de renseignement auCanada.Politique, 13, 37-62.

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Mitrovica, A. (2012). CSIS freed from final shreds of oversight. The Star. April 30.

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Canada’s Intelligence Community: The Evolving Ethics of Sometimes Unwanted Protection

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