Pursuant to notice of December 10, 2019, moved:

That the Standing Senate Committee on National Security and Defence be authorized to examine and report on the body of issues known as “intelligence to evidence”, when and if the committee is formed; and

That the committee submit its final report no later than December 31, 2020.

He said: Honourable senators, I’d like to begin by explaining what I understand by “intelligence to evidence”. I will then talk about some of the problems that the issue poses to both public safety and the administration of justice, problems that were raised and recognized by all stakeholders and experts involved. I will close with a few comments on the need for and importance of the study that I am proposing.

The concept of intelligence to evidence refers to the operational and legal issues arising from the movement of intelligence gathered by intelligence services such as CSIS to support public security and law enforcement, whether it be in the context of criminal law or that of the administrative and regulatory process.

This field has been described as an enigma and a dilemma for reasons that are easy to see. The dilemma arises from two competing values: first, the need for secrecy in intelligence gathering and assessment for the purposes of national security and, second, the legal and constitutional obligation to disclose relevant evidence to a person accused of a crime or otherwise subject to legal proceedings.

Obviously, it is important to keep some information confidential and private. Information may come from sources whose existence and identity may need to be protected not only for their own safety but because those sources may still be able to provide information to our national security organizations. The information may also have been provided by an ally that insists on nondisclosure as a condition of sharing information.

However, sometimes the information is relevant for law enforcement and related legal proceedings. In such cases, individuals subject to proceedings have basic rights that must be respected, such as knowing the charges laid against them and participating in decisions that will affect their lives and freedom. To ensure those rights, Canadian law provides for broad disclosure of relevant information to the individuals subject to legal proceedings.

In response to this dilemma or conundrum, Canadian law and Canadian practice has developed a series of mechanisms to strike a balance between the demands of secrecy and fair disclosure. These include very complicated provisions of evidence law governing disclosure where national security issues arise; a bifurcated court system whereby designated judges of the Federal Court deal with these issues while the trial on the merits takes place before the superior courts; the use of closed hearings where the affected party is not privy — and indeed not present — to the intelligence information that cannot be disclosed; the use of amicus curiae, friends of the court, in certain legal proceedings or security-cleared special advocates in other types of proceedings.

These mechanisms have their proponents and their critics, but all stakeholders tend to agree that the intelligence-to-evidence issue has potentially serious impacts on criminal prosecutions for terrorism, administrative proceedings regarding immigration, and on national security and public safety itself.

Let’s start with public safety. The fear that sensitive information may ultimately be disclosed may lead our intelligence agencies to decide not to share it with law enforcement, with a corresponding and very real risk to public safety. And lest you think this is merely a hypothetical example, you may remember that CSIS chose not to share with the RCMP information it had in the period leading up to the bombing of Air India Flight 182 in 1985, which killed 329 people aboard.

A similar situation came before the Ontario Superior Court of Justice in a 2009 terrorism prosecution where CSIS knew of the location of a terrorist training camp and did not share it with the RCMP. In the same case, CSIS also knew the RCMP was following the wrong person but did not tell them.

The intelligence-to-evidence problem also affects the administration of justice in several ways. The prosecution of terrorism offences may be, and often is, based upon nondisclosable intelligence, thereby making it impossible for the accused to know the full case against them and receive a fair trial. That results either in prosecutions not being pursued or judges being forced to enter a stay of proceedings.

We’re dealing with such issues as we speak. Take, for example, the case of returning terrorists. Then Minister of Public Safety, Ralph Goodale, explained that prosecuting battlefield returnees to Canada is difficult, because there must be evidence that will stand up in court. In his words:

And this is an issue that is bedeviling countries around the world in terms of how you actually move from intelligence to evidence, and make a case stick.

Furthermore, when we do decide to proceed to prosecute such cases, our bifurcated court system can result in serious delays as challenges to the nondisclosure of intelligence work their way through the courts, up the courts, between courts and so on.

Take the case of Mr. Huang, who allegedly tried passing Canadian military secrets to China through the Chinese embassy here in Ottawa. Mr. Huang’s criminal trial has apparently been going on for at least three years, if not longer, with applications to obtain CSIS wiretaps and a series of Federal Court decisions and appeals.

But the issue also goes beyond the criminal law context and extends to immigration procedures and border security, whether in the context of secure certificates based upon CSIS intelligence, persons placed on no-fly lists based upon such intelligence or the procedures for passport revocation. The issue may also affect foreign investment decisions, because a decision to block foreign investment, which may be based upon intelligence, is subject to judicial review, with the result that the underlying intelligence is at risk of being disclosed.

Honourable senators, the issue of intelligence to evidence has been acknowledged to be a problem by commissions of inquiry, academic commentators and stakeholders alike. Let me cite a few examples. I have already alluded to the Air India bombing. Consider what was written in the final report of the commission of inquiry into the Air India bombing, presided over by former Supreme Court of Canada Judge John Major:

. . . problems of information sharing were present throughout the Air India narrative. CSIS failed to share information with the RCMP about important facts relevant to the police investigation. . . .

This was summarized by Professors Craig Forcese and Kent Roach in a 2017 piece in Policy Options Magazine, where they wrote:

The Air India Commission devoted four years to the study of the difficulties of sharing CSIS intelligence with the police, to be used by prosecutors in terrorism trials. . . .

. . . until we solve the intelligence-to-evidence issue, we may not be able to ensure seamless, inter-agency responses to terrorism.

This opinion is also shared by the current Director of CSIS, David Vigneault. His remarks are worth quoting:

I am not shy to say that I think that [the] intelligence to evidence issue is one of the most significant policy-legal-operational questions facing [the] national security community. . . .

. . . the way we have to arrange the system [so it] can function to allow for legitimately collected intelligence to be able to enable another partner to accomplish his or her mandate, is extremely difficult in the current system. . . .

It is, I would say, without a doubt, one of the most significant problems that we’re facing.

Despite the recognition of this problem — and I have been very limited in my references; there are many more — the intelligence-to-evidence issue has not been addressed in a systematic manner; indeed, it was completely ignored in Bill C-51, which was passed in the last months of the Forty-first Parliament, and was not addressed at all in Bill C-59, which we passed just last spring.

Honourable colleagues, I’m not alone in calling for a study on this important issue. Consider the following passage from the dissenting opinion from the Conservative Party of Canada in the 2017 report of the House of Commons Standing Committee on Public Safety and National Security:

We have a serious gap in converting intelligence collected by our security services into evidence that can be used in a court case to put criminals behind bars. There is a problem here that is not well understood, even by the legal experts. That is why Conservatives recommend that the Government study the intelligence to evidence problem and develop a method to ensure that terrorists are not able to walk free because intelligence sources cannot be disclosed to law enforcement. Paramount in this enquiry must be the preservation of relationships with key allies — particularly in the Five Eyes community of nations — from whom Canada receives the vast majority of its intelligence and with whom Canada has enjoyed decades of indispensable cooperation in the safeguarding of our national interests.

Finally, only last spring, this chamber adopted the following observation to the National Security and Defence Committee’s report on Bill C-59, in observation no. 8:

Prior to the review set out in section 168(1), the Senate should, on its own initiative, undertake a study of the unique challenges surrounding terrorism and other national security prosecutions, including, but not limited to, the operational and legal challenges of converting intelligence to evidence and the respective jurisdictions of the Federal Court and trial courts in deciding disclosure of sensitive evidence.

Honourable senators, we have an opportunity in the Senate to shed a light on an important issue of public policy — one that has been neglected for decades, if not indeed longer — and we have the opportunity to educate Canadians about the critical role played by our security and intelligence agencies and the ways in which we need to integrate the protection of our national security with the preservation of our constitutional rights and freedoms. We have the opportunity to place these issues on the political and legislative agenda to provide a solid foundation for any legislative or operational changes and reforms that may be warranted.

That is what the proposed study will do. I hope you will support it.

Thank you for the question, senator. To answer the second one, this is very much my idea. In the course of the study on Bill C-59 and what I learned in that process from stakeholders, academics — it became clear to me that this was an issue and it runs through the literature, that has just been hanging out there demanding attention for the longest time and having been ignored. This is very much my initiative. I took advice from the Senate clerks as to the appropriateness of doing it now because it wasn’t my original thought. I thought it was important enough and I wanted to get it on the table and to set the table for this. It goes without saying that it will be for the Senate committee, when it is constituted to decide how and when to proceed and the like. I was advised by COPO that I was to put a date on the end so I chose one based upon my sense of what would give them enough time. But the motion and again the wording of the motion was provided to me by COPO which was to authorize them to do so. It’s not to mandate them to do so — that may be a fine point. I assumed this was to give them the blessing to do that. I think it’s an important study, following from the observations in the actual report. I think it was a timely thing to do, given the rather long breaks we have had and are about to have.

Thank you for the question. In my study of this, I think there is no one easy answer and there is no one magic bullet. I think there are operational and cultural issues that I know are being looked at seriously by our intelligence services and the RCMP who are working together on this. There have been many suggestions for legal fixes. Some of them were dramatic and others more modest. There are people relatively camped in their positions and have been for some time. All seem to agree that it’s time that in an objective, principled way that we shine a light on this subject and see whether we can make some progress in understanding it and seeing where some improvements may be found.