I'm sorry, I promised and intended to reply to this some time ago and it slipped.
A quick serious of facts foundational to the problem:
- In administrative law (immigration, matters, foreign investment reviews, etc), the standard of proof in court is generally balance of probabilities.
- In criminal law, the standard of proof is the much higher 'beyond a reasonable doubt'.
- In criminal matters, an accused has the right to have disclosed to them all material that is fruits of the investigation and that is not either privileged or clearly irrelevant.
- In criminal matters, an accused has the right to know the case against them and what legal case has to be met in their defence.
- In criminal matters, there is a 'trier of law', the judge, who decides how the law is interpreted and applied.
- Separately, in criminal trials, there is a 'trier of fact' who hears and considers evidence and decides what they believe to be the true set of facts that will be relied on in applying the law. This can be either a judge or a jury.
- In serious criminal matters, an accused has the right to a jury trial, and there is extremely little screening that can be done regarding the jury, nor can they be obliged to get security cleared.
- Criminal matters are always prosecuted in provincial courts. Provincial courts are not equipped for classified information; they lack the facilities and security clearances.
- Administrative matters in the federal realm generally go through federal court, and facilities and security cleared personnel exist.
So, to the matter at hand, the Intelligence to Evidence dilemma:
Those who have no life and spend time reading up on this stuff or listening to informed commentators may read or hear that 'intelligence is not evidence'. That's a truism that I disagree with; typically you see it espoused by the pure intelligence side.
Intelligence is information that is collected, analyzed, corroborated where possible, and from which meaning is deduced or inferred to build a greater understanding of a bigger picture. It could be a body of disparate facts and data that paint a picture of a criminal network and their relationships and modus operandi. It can be information that sheds light on a foreign adversary's intentions. It can be information about the constitution, strength, dispositions, morale, and state of supply of a military force... It's information that gives us understanding, not because it is tested necessarily as proof of an assertion, but simply because when combined with what else is known, we understand something better than we did before. But it's fundamentally facts, data, measurements... Intelligence is just information given meaning.
Evidence is information that can be admitted in court, have its veracity tested (potentially through an adversarial process), and which, once either admitted or challenged and found reliable, constitute some amount of
proof of something; in criminal law that's going to be an allegation of a specific offence. In administrative law, similarly it's going to be proof to some extent of a specific set of facts that one party or another contends to be true in court. Whether in a criminal matter, such as charging someone with a crime, or an administrative matter such as revoking someone's immigration status for misrepresentation, there's generally one or more legal tests to be met, generally very formulaic- if criteria a, b, c, d and e are all met, the crime is proven and there can be a finding of guilt. So evidence is also information given meaning, though potentially subject to more rigor.
Just because a piece of information or data is intelligence, does not mean it's inherently not also evidence. It could be. It can be evidence is it can be
admitted to court and survive scrutiny and challenge.
Generally, for information to be admitted to court as evidence, it needs to be sourceable. Crown's gonna need to call a witness through which they will introduce the evidence, and who can answer questions about where it came from. For cops, we need to be prepared to speak to what gave us our reasonable belief, say, for a search warrant of a residence or office, or to order a third party to produce data or records. That can all be tested in open court. The accused gets to know and challenge almost all of this. The trier of fact - be it judge or jury - gets to hear it all. A verdict can only ultimately be rendered based on the evidence admitted into court. And they get to challenge that upstream -
why were we doing surveillance on person A on a given date?
How did we know we would likely find drugs and guns in the residence? There are some protections; confidential informants get their identities protected nearly without fail, and the exceptions aren't important here. Some sensitive techniques or equipment can be protected. The identity of a police undercover officer can be partly protected. But, generally, most of the info will be out there.
When we get into the space where
threats to the security of Canada cross into
criminality, then you're into that really awkward overlap between security intelligence such as CSIS (or foreign counterparts), and police/peace officers - usually but by no means always RCMP (could be CBSA, Corrections, sometimes other police that have sections focused on antiterrorism). If there is potentially valid information on threats to the security of Canada, then in some way shape or form it probably needs to be operationalized so the threat is stopped or mitigated. Unfortunately, whatever goes over to police is pretty much by default going to be relevant for disclosure purposes. That could ultimately mean that if CSIS were to disclose information to police about a confidential informant, or a wiretap, or their surveillance, and if police build on it, well then you have a strong potential for compromise of sources and methods when that comes out as evidence in open court. After all, it's not just the evidence Crown will use to build their case that could come out in open court, but also the evidence defence calls, and they can potentially call a lot if they want to try to discredit or rebut witnesses, if they want to undermine the grounds for obtaining search warrants, things like that. So if CSIS sends info to police, that information might end up substantially divulged to twelve random men and women comprising a jury.
Now, there's a legal mechanism under the Canada Evidence Act for the government to assert national security privilege over material that would otherwise be evidence. I've talked about it in other posts so I won't repeat it now, but essentially after a process through federal court, the courts will settle on what are going to be the black boxes drawn on documents; what testimony is out of play. In some cases, the trial court may be provided with a summary of some classified information that's essentially sanitized. In a criminal trial, before the judge and jury, if one side gets to rely on it, so does the other. Crown cannot offer evidence that defence doesn't get to hear.
When that sanitized material comes down from federal court to the trial court, the defence can make a pre-trial application based on the redactions being prejudicial to trial fairness. The trial court judge needs to then consider how to keep the trial fair. The judge might determine that the trial can still proceed fairly; they might allow certain witnesses to testify under partial anonymity. They might entirely dismiss certain charges because the defence would need to rely on information they aren't permitted to use; this happened a couple years ago in the Cameron Ortis case.
Pretty much all of this stems from our government needing to protect highly sensitive information from public disclosure through the open court process. What could be done?
Well, constitutionally all criminal matters are in provincial court. We don't have federal criminal courts like the US, nor can we. Conceivably, government could legislate a section of the criminal code to deal with trials for designated national security offences. The government could try to assert a Section 1 Charter limitation to the Section 11(f) right to a jury, and legislate a system of judge-only criminal trials for certain offences, and public exclusions from the court room (there is already certain limited ability to exclude the public; this also happened in portions of the Ortis trial). This could also allow for security cleared judges and court staff, and court rooms within which certain material could be used and accessed. Conceivably parliament could also legislate, in such a court, in-camera presentation of evidence that the accused is not privy to but that their security cleared defence counsel are. Maybe this could allow more fulsome CSIS information to be heard in court; this would potentially let that information be used more directly by police investigators instead of a police investigative team having to basically being pointed in the direction of a person with a vague nature of a threat and told "good luck!"
National security intelligence from non-police sources being disclosed in criminal matters is very, very rare and very limited, for the reasons I describe above. It's used more in immigration matters (kicked out of the country for being a national security threat), or Investment Canada Act reviews of foreign investments in Canada (e.g., if this company buys our company, country X gets access to sensitive intellectual property). Even at that though we don't really know the full scope of where it gets used in legal processes because it's only if there's a court record generated that we end up able to learn about it.
So, the government
could try to push legislation through that would be inherently limiting on certain legal rights, but argue that it's defensible under the reasonable limitations Charter clause- but you don't know if it worked til it's tested in a real case and survives a Charter challenge. Or they could use the Notwithstanding clause, but that's generally a terrible approach for criminal law. Somehow, the nut that must be cracked is the reliance of criminal prosecutions on information that gets disclosed in open court including potentially to twelve random members of the public. If some sort of different trial process for sensitive national security prosecutions could be devised, then conceivably there would be more protections in place for, say, CSIS or CSE providing information to be admitted as evidence that someone is playing on Canadian soil for another team. Failing that, it will remain left to police to be able to investigate their way to the same conclusions themselves, but probably without access to whatever it is that initially put a problem on the radar. CSIS can work human sources who know their info will never get revealed in open court. CSE can do all the wild shit CSE can do. The threat detection in the national security space simply casts a vastly wider net than police generally can for legal or practical reasons. Anything that could feed more of that information in to police investigations in a way that it could be admissible in court and tested for veracity would be a help. But if it doesn't protect sources and methods, it's useless.
www.telegraph.co.uk
www.thebureau.news
www.thecanadianpressnews.ca
