Commons Ethics Committee urges 'stronger penalties' for intelligence leakers

The new recommendations follow a series of shocking intelligence breaches and leaked Canadian Security Intelligence Service (CSIS) briefings to media outlets that exposed grave concerns on foreign interference in Canada.

Commons Ethics Committee urges 'stronger penalties' for intelligence leakers
Facebook/ Mona Fortier, Facebook/ Justin Trudeau, and Facebook/ René Villemure
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Canada's ethics committee wants action now against intelligence leakers amid the ongoing inquiry into foreign interference.

A new report following a months-long study into foreign interference by the Standing Committee on Access to Information, Privacy and Ethics outlined measures to strengthen our national security. Among them are calls for the federal government to impose stronger penalties against so-called "leakers" and government whistleblowers.

"That the Government of Canada strengthen rules and penalties governing illicit disclosure of national security intelligence,” reads one.

The new recommendations follow a series of shocking intelligence breaches and leaked Canadian Security Intelligence Service (CSIS) briefings to media outlets that exposed grave concerns on foreign interference in Canada.

Several politicians were exposed in the leaks, leading to chaos, caucus resignations, and defamation lawsuits

The Globe and Mail alone has published more than 15 articles exposing foreign interference and attempts to disrupt federal elections based on anonymous national security sources and access to confidential intelligence documents. 

In February 2023, Global News alleged that Independent MP Han Dong told a Chinese diplomat to delay freeing Canadian citizens Michael Kovrig and Michael Spavor to curb Conservative favour in the polls then. Dong subsequently left the party in March to contest the allegations that he had meddled in the detention of Kovrig, a former diplomat, and consultant Spavor. 

The Independent MP then filed a $15 million defamation suit the following month against Global and its parent company, Corus Entertainment.  They released a statement claiming it "is governed by a rigorous set of journalistic principles and practices,” before Dong filed for litigation.

"When government officials leak intelligence, it undermines the human rights of the individuals named," said national security expert, Artur Wilczynski. "That information is released without due process, without a presumption of innocence, and with no ability for them to effectively defend themselves." 

Although whistleblowers who "illicitly disclosed national security intelligence may have focused national attention on foreign interference," Wilczynski says that "acting outside the rule of law makes illicit disclosures fundamentally anti-democratic."

"Leaks in general should be targeted," Bloc Québécois MP René Villemure told reporters October 24. "This is a serious offence to national security."

Despite the overly harsh tone generally taken towards whistleblowers in the report, Villemure, who serves as vice-chair of the committee, admitted that while security breaches are concerning, they proved helpful on foreign interference.

"As an ethics specialist, I would not approve leaks in general, but I’m forced to say it in this case: It helped a lot," he said. "And what we should be looking at is not trying to find who leaked in order to punish, but instead working on what was leaked and fixing it."

As part of the report's recommendations to the committee, it suggested that CSIS shares information and updates the public on regular intervals to counter foreign interference and bolster "national security literacy." It also calls on the federal government to modernize both the Criminal Code and the CSIS Act and add penalties that will cover "all foreign interference operations," noting "major gaps" in current legislation which doesn’t address the current scope of foreign interference activities in Canada. 

"There are no specific punitive sanctions for the general act of foreign interference in the Criminal Code or any other federal statute," notes the report. 

Former CSIS Chief, Michel Juneau-Katsuya, testified that "transparency is - or could be, if it were more properly leveraged - a crucial enabler of national security and one of our key assets in the fight against foreign interference."

He contents "it is not just foreign states that are involved, but [...] agents who are Canadians [...] acting on behalf of foreign states," and that it is "essential to have a criminal law on foreign interference [to] define the activities considered illegal and provide the penalties that could be incurred."

Other suggestions include tackling disinformation, creating a new foreign interference office and cabinet committee dedicated to countering foreign threats, and that the federal government proceeds with establishing a foreign agent registry "as soon as possible."

The full 82-page report and all of its recommendations, Foreign Interference and the Threats to the Integrity of Democratic Institutions, Intellectual Property and the Canadian State can be found here.

CSIS vowed afterwards to track down the sources of the anonymous intelligence leaks, whom the agency believes "may have been frustrated with Justin Trudeau." David Johnston, charged by the prime minister to investigate the claims detailed in the leaks, also echoed that sentiment in his final report.

On May 23, he tabled his initial report on foreign interference, stating a public inquiry into foreign interference is not possible because he cannot conduct public hearings into "classified" materials.

"When I began this process, I thought I would come to the same conclusion that I would recommend a public inquiry," he said, acknowledging that Opposition parties have repeatedly called for an independent, public inquiry.

The 'special rapporteur' said that although a public review of classified intelligence "cannot be done," he recommended Trudeau to invite national security agencies and three Opposition leaders to review the conclusions of the inquiry report as part of a "necessary step in transparency and accountability."

On September 7, Trudeau Québec Court of Appeal Justice Marie-Josée Hogue to head the public inquiry after months of negotiations between the governing Liberals and other house parties.

According to her Court of Appeal biography, Hogue does not appear to have a background in national security issues, with her legal experience in corporate commercial litigation, civil litigation and professional liability.

Her initial report on foreign interference by China and other foreign actors, in the 2019 and 2021 federal elections, is expected for February 29, 2024.

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