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Canada 'risk averse' on spies, ex-MI-6 head says

Rethinking on CSIS in order, he says, but doubts Canada has will to pass laws allowing foreign spy service

From Wednesday's Globe and Mail

The former head of Britain's Secret Intelligence Service says a recent Federal Court decision that may block Canadian agents from intercepting conversations of domestic targets abroad cements Canada's reputation as a "risk averse" nation.

"Plus ca change, plus c'est la même chose ... I doubt Canada has the will" to plug the security gap by passing new laws, says Sir Richard Dearlove, who headed MI-6 from 1999 to 2004.

Sir Richard acknowledged during a phone interview that he's heard the Canadian Security Intelligence Service has been doing some good strategic work, including clandestine activities in Afghanistan and dredging up valuable intelligence sources from within Canadian ethnic communities.

But he says a much broader rethinking is in order, as CSIS's relatively few foreign agents remain legally obliged to operate as passive receptacles of information - "postboxes" in the words of Sir Richard - as opposed to classic foreign operatives who actively gather intelligence.

CSIS was created in 1984 as a spy service that would operate within the confines of Canada, though its leadership now says the agency has the capacity to work overseas.

Unlike every other G-7 nation except Japan, Canada has no dedicated foreign spy service along the lines of MI-6.

In a era of transnational threats, where targets are as likely to be Canadian citizens as not, CSIS is encountering some growing pains.

CSIS director Jim Judd nodded to this in a speech in Vancouver this week. "While our organization's principal mandate is domestic," he said, "there is virtually no issue with which we are dealing these days that does not have some international dimension to it."

A once-secret court decision released in February brought the foreign-domestic dichotomy into sharp relief, by revealing a major vulnerability that has been quietly acknowledged within CSIS for years but which remains completely unaddressed by any Canadian law.

A Federal Court judge, Mr. Justice Edmond Blanchard, was asked by CSIS to sign off on warrants that would allow agents to intercept the communications of a group of unnamed terrorism targets, nearly all of them Canadian citizens.

The judge had no problem with the conventional warrants, agreeing the subjects were high-level threats. He endorsed spying on them - within Canada.

Then CSIS asked Judge Blanchard to go a bold, new step further and sign off on warrants that would allow the same targets to be spied on when they left Canada.

This prompted many months of legal debate, including discussion as to whether CSIS agents would be violating the Criminal Code or possibly breaching the Privacy Act entitlements of their Canadian-citizen targets.

The judge concluded he simply had no authority to endorse any foreign warrants, saying it was Parliament's job to grant CSIS any enhanced powers.

The gap highlighted by the legal gambit has prompted much concern in the past, extending far beyond the 10 anonymous terrorism suspects at the centre of the court case.

Sources say the problem has arisen dozens of times, for example, when Canadian targets and their monitored cellphones have flown out of the country, or driven cars with clandestinely implanted GPS-transmitters across the U.S. border.

The bugs may remain working and in place, but the law effectively obliges Canadian agencies to close their eyes and cover their ears whenever borders are crossed.

Sir Richard points out that a spy service can always ask an allied foreign agency to pick up on the spying, but adds co-operation isn't always a given, especially when a target is travelling to a hostile nation or one whose loyalties are in doubt.

In "fairly rare" instances, he says, spies need the legal powers to follow their targets abroad.

Canadian officials would be "naive," Sir Richard says, if they don't seek to take inspiration from two relevant British laws passed in the past 15 years: the Intelligence Services Act and the Regulation of Investigatory Powers Act. "The classic legislation is in the U.K., because it's been groundbreaking and it's been shown to work," he said.

The laws allow British agents to engage in foreign intelligence gathering under proscribed conditions, provided high-level police or political officials sign off on the requests.

Conceding that extraterritorial intelligence gathering is, by nature, illegal in the foreign countries it may take place in, Sir Richard said that such actions by agents are supported in British law, meaning they wouldn't face the risk of prosecution at home.

The Federal Court of Canada case appears to have reaffirmed the ex-spymaster's long-standing complaints. "The fact is, the whole Canadian system is so risk averse," Sir Richard said.

"The risk aversion is because Canada sees itself as a benign power. ... Canada free-rides on the backs of British and American intelligence."

Beyond plugging the gap, he says, Ottawa should consider setting up a new foreign-geared agency, probably run under the Foreign Affairs Department.

The Conservatives floated this notion as an election promise, but have not taken any concrete steps toward it since being in office.

Melisa Leclerc, spokeswoman for Public Safety Minister Stockwell Day, said: "The government continues to assess different options regarding the collection of intelligence beyond Canada's borders."

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