‘The alleged behaviour is not treasonous’: Former CSIS head Richard Fadden on foreign interference by MPs and Senators

HARRISON LOWMAN: In the report, NSICOP says it has “seen troubling intelligence that some Parliamentarians are, in the words of the intelligence services, ‘semi-witting or witting’ participants in the efforts of foreign states to interfere in our politics.”

Can you provide examples of how these “witting” interactions theoretically play out, for Hub readers who may not understand what these relationships look like on the ground?

RICHARD FADDEN: Foreign states seeking to interfere in Canada typically want one of two outcomes: to promote their policies/perspective, or to stop or reduce what they perceive to be negative Canadian policies/perspectives.

One example of the former would be a foreign state making funds available to a candidate who is known to favour that state. This would be in violation of Canada’s election laws. An example of the latter might be the foreign state seeking to shift what it perceives as negative policy discussions by discouraging the election of a specific individual supporting that policy. This can be done through the use of mis- or disinformation about the individual or the policy. The key in both cases is that the activity of the foreign state needs to be “secret” from the public and ideally from the person being targeted.

HARRISON LOWMAN: I’m interested in that the examples you chose to focus on involve nomination or election meddling, as opposed to influencing the policymaking of already elected or appointed officials, once they are on the job. Is this to say that foreign actors focus the majority of their time and attention on the election/nomination stage, rather than engaging with elected officials after they’ve taken their seats in Parliament?

RICHARD FADDEN: I picked the nomination phase because it merits the most attention at the present time. It is entirely unregulated and rather opaque.  I do not mean to suggest that foreign interference attention involving elected officials is less important. The problem is that we do not really know where foreign interference is being focused and whether there is a significant difference in the level of effort.

HARRISON LOWMAN: Do you view any of the behavior of Canadian MPs/Senators referred to in the report as treasonous?

RICHARD FADDEN: The alleged behaviour is not treasonous. Canadian law requires it to be the use of force [or violence] for the purpose of overthrowing the government. Or, it requires the communication of information (of a military or scientific nature) to a foreign state that would be prejudicial to the safety or defence of Canada. None of the examples provided in the report suggests either of these conditions are present.

This situation illustrates a broader problem—there is no offence of “foreign interference.” So, parliamentarians would have to be charged with an existing crime that fits the circumstances of the foreign interference. For example, violations of election funding laws or intimidation. A bill recently introduced in the House of Commons, Bill C-70, would fill this gap by creating offences which would directly address foreign interference.

HARRISON LOWMAN: Many are calling for the names of the parliamentarians alleged to have taken part in foreign interference within the report to be released publicly. The government says it won’t do it. Should the names be released?

RICHARD FADDEN: While I do not agree that names should be released at this point in time, I strongly believe they should be released—if appropriate—after some due process. In Canada, we do not release the identity of accused persons on the basis of intelligence alone and without an investigation that would allow those accused to explain themselves. Otherwise, we risk destroying careers and lives while ignoring the presumption of innocence and a right to privacy.

The challenge is to find a process that would protect identities while further investigations take place. At a minimum, party leaders should be briefed on the intelligence and appropriately deal with the allegations within their parties. If this cannot take place, perhaps a special committee of the House could be constituted with the right to hear evidence and listen to what those accused have to say and then issue a report with names. Of course, the police should inquire as well. All the foregoing supports the view that the creation of foreign interference offences contemplated by C-70 is needed.

HARRISON LOWMAN: Some might hear that and say, “So…we should leave partisan, optics-obsessed politicians to sort a lot of this out amongst themselves?” What would you say to that response?

RICHARD FADDEN: I take your point about the possible reaction of some. What I am trying to get across is that policing of political parties should start with the parties themselves, perhaps in the short term, because we do not have ready alternatives. I am undoubtedly being naive but perhaps this responsibility would encourage greater transparency?

HARRISON LOWMAN: Recent coverage from The Globe and Mail referred to you in this way: “When the then-head of the Canadian Security Intelligence Service, Richard Fadden, referred obliquely, in 2010, to certain unnamed Canadian politicians being under the sway of foreign powers, he was very nearly hounded out of office.”

Is this an accurate characterization of how your comments were received, and should CSIS officials have more freedom to publicly warn Canadians if their elected officials are working with hostile foreign actors?

RICHARD FADDEN: The question of whether CSIS should be granted additional authority to discuss intelligence about elected officials subject to foreign interference is complex. Bill C-70 in fact will grant CSIS additional authority to discuss its intelligence, but without revealing the identity of individuals. This is because of the long-held view that intelligence is not evidence and therefore should not be used to publicly accuse individuals. The creation of foreign interference offences should make it easier for the police to conduct criminal investigations which would, where appropriate, result in public charges being laid.

HARRISON LOWMAN: When intelligence agencies like CSIS collect information that may suggest criminality, how is it shared with the RCMP? How, in other words, is it that the RCMP seems to have learned of these allegations from the committee report rather than through an internal government process?

RICHARD FADDEN: CSIS intelligence passed to the RCMP that can be used to launch an investigation is not an easy issue. The challenge is that CSIS intelligence can’t be used by the police if it reveals how CSIS collects information and from whom. This is because it would effectively seriously hamper CSIS’ ability to collect intelligence in the future. If this intelligence is passed to the police, it cannot be used or, in most cases, used to create new sources of information.

Intelligence to evidence is a serious challenge with constitutional implications. The issue is that persons accused of criminal offences are entitled to know the details of the accusations against them, including from who and how information against them was collected. For a resolution to the intelligence-to-evidence issue to be developed, some innovative thinking will be required both by Parliament and the courts.

HARRISON LOWMAN: What do you think the hostile countries attempting to infiltrate Canadian institutions are thinking right now when they see how this is playing out?

RICHARD FADDEN: Our adversaries will be distraught that we are finally seriously wakening up to the risks of foreign inference and taking steps to deal with it. Having said this, there is no silver bullet to deal with foreign interference. It will have to be an ongoing effort as our adversaries adapt to our new legislation and policies.

This interview has been edited and condensed.