Information sharing between intelligence officers and police needs to be overhauled — and that could start with informing police of the reasons for arrests on national security grounds — says a recently obtained internal report examining the often strained relationship between the Canadian spy agency and the RCMP.
In one case, officers from one of the RCMP’s national security units quit their jobs after being asked to make an arrest without knowing the reasons, says the redacted report, which was released as part of a request for access to information.
The document is the end result of a behind-the-scenes review of how the Canadian Security Intelligence Service and the national police force share information — or not.
In 2018, at the request of both agencies, two lawyers from outside national security — Anil Kapoor and Dana Achtemichuk — were brought in to review the issues, conduct interviews and make recommendations. A copy of their final exam was recently released to CBC News a year after he requested it.
The incident that led to the officers quitting came in a ‘catch and release’ case – a technique that sees police arrest an individual to thwart a national security incident or attack, even if it means releasing them later without charge.
The report indicates that catch and release operations require exchanges of information between the agencies involved. This did not happen with the RCMP’s Integrated National Security Enforcement Team (INSET) involved in the incident cited in the report.
INSETs are multi-agency teams—sometimes made up of RCMP officers, members of provincial and municipal police departments, and federal agencies—scattered across the country to investigate cases involving national security, the extremism and terrorism.
“We have come across a case where INSET was tasked with making an arrest but without knowing the reason. This caused a great conflict within the investigation team, causing some officers to leave “, says the report.
“Overall, morale was depressing for INSET.”
The details of this case are hidden in the report.
The authors said that while police officers involved in a national security investigation may not know all the details, they still need to be briefed by their intelligence counterparts.
“Being a player in the world of national security involves both living up to the ‘need to know’ principle and understanding that more RCMP officers do in fact ‘need to know,'” they wrote. .
“Kept in the Dark”
Kent Roach, a University of Toronto professor who studies national security and counter-terrorism law, called the incident disturbing.
“The report recognizes that RCMP officers are often kept in the dark by CSIS and this could affect the validity of the arrest,” he said.
He said tactics such as capture and release, the “Al Capone” strategy (named after the infamous mobster who was jailed for tax evasion instead of the more serious allegations against him) and peace bonds public order are poor substitutes for actual prosecution.
“There is not the same public or judicial scrutiny of the conduct of CSIS or the RCMP that there would be in a terrorism prosecution,” Roach said.
“There are certainly legitimate and legal alternatives to criminal prosecution. But I think from a public perspective, it’s really in criminal prosecution that the most light is shed, both on how the state acted and also on the actual danger, or lack thereof, that the accused presents.”
The report says part of the problem (sometimes called “evidence intelligence”) is that CSIS is under pressure to protect operational information – its tactics, its methods, where its spies are – while the police and prosecutors are expected to both secure prosecutions and protect the accused’s right to a fair trial.
“It strikes us that there is no benefit to public safety in leaving [CSIS’s] untapped information when it could be used to enhance a national security criminal investigation,” the report said.
“As well, [CSIS] must accept that in the event of litigation, there is always a risk that certain information will not be protected, but the advantage of helping in the investigation and possible prosecution of people who pose a threat to the country is worth this risk.”
One of the report’s recommendations is that CSIS seek advice from criminal law experts to better understand the risks and benefits of information sharing and to recognize when a crime has been committed.
“For [CSIS] to adopt a more active posture, there must be a shift in attitude and culture from a traditional Cold War intelligence agency to a modern intelligence agency that actively manages national security threats,” says The report.
CSIS adopts certain recommendations
Keira Lawson, CSIS spokesperson, said work was underway to implement the recommendations “as appropriate”. This work, she said, will include a memorandum of understanding with the RCMP.
She recognized that more could be done.
“There remains an urgent need for all parties, including Public Safety Canada, to continue to continuously review potential areas of legislative reform that would address[…]the intelligence and evidentiary issues facing the government in various legal proceedings, while maintaining full respect for the Charter of Rights and Freedoms,” Lawson wrote in a press release.
The RCMP did not come out of the review unscathed. The authors denounced “a belief in some quarters within the RCMP that receiving any [CSIS] the information will compromise police investigations.
“The basis for this belief is not entirely clear.”
The report also pointed to tensions between INSET’s regional offices and the Federal National Security Police (FPNS) team based at RCMP headquarters in Ottawa.
“Often, the FPNS does not provide INSET with the context of why certain actions are taken. The effect has a corrosive impact on the relationship between the FPNS and INSET,” he said.
“Furthermore, a lack of trust is generated within INSET, which serves to depress morale with potentially perilous consequences.”
The RCMP did not respond to CBC’s request for comment.