Spy Vs. Spy

Spying, once a remnant of the Cold War as dramatized in John le Carre’s Tinker, Tailor, Soldier, Spy and now a major motion picture complete with authentic seventies gear, is now back in the news and our psyche. Tales of spoiled Arctic sovereignty and clandestine meetings is presently all over the media as a result of the charges laid against naval officer, Jeffery Delisle, for allegedly disclosing state secrets to a foreign entity under s. 16(1) of the newly enacted Security of Information Act. These are the first charges under this Act. He is also charged under s. 122 of the Criminal Code for breach of trust in connection with his duties. Mr. Delisle is still in custody awaiting a bail hearing, now scheduled for January 25.

The charging document for the offences, the Information, which contains the specific charges against Delisle allege the offences under s.122 of the Criminal Code and s.16(1) of the Security of Information Act occurred between July 6^th, 2007 and January 13, 2012 in Ottawa, Kingston, Halifax, and Bedford. Another charge under s.16(1) suggests a separate incident of communicating safeguarded information occurred between January 10, 2012 and January 13, 2012 in Halifax and Bedford, Nova Scotia. Delisle was arrested by RCMP on January 14. One can speculate that RCMP surveillance observed the January 10 to 13 transaction, which then lead to the charges. Delisle lives in Bedford.

Although the Government is not revealing any information on the charges, experts in intelligence suggest Russia is involved. This seemed to be confirmed by four Russian diplomats leaving Canada, but recent reports suggest some of these men left for other reasons and were not expelled from the country. This whodunit will most certainly be played out in the media for weeks to come. Indeed, CBC already has created a time-line of significant espionage events in Canada. Most the incidents involve China and Russia but do not involve the laying of criminal charges.

In fact, there is a paucity of charges relating to spying in Canada. There are cases of individuals who are not admitted on the basis of espionage. Under the Immigration Refugee Protection Act, individuals who are found to be “engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada” in accordance with s. 34(1)(a) are inadmissible into Canada. There are also cases of leaking secret information within Canada. The O’Neill case involved the investigation of Juliet O’Neill, an Ottawa journalist, who wrote a news article concerning Maher Arar, who was deported illegally by the USA to Syria where he was tortured. Subsequent information revealed that Canadian authorities had provided information, which lead to his improper rendition.

O’Neill’s home was searched by the RCMP under the very same piece of legislation with which Delisle is charged: the Security of Information Act. The allegation involved the leaking of secret official information under s.4 of the Act. Justice Ratushny found “the allegation of criminality against O’Neill in the Warrants that is the abusive conduct in this case and that amounts to an intimidation of the press and an infringement of the constitutional right of freedom of the press” and therefore the obtaining and execution of the Warrants offended “the public’s sense of decency and fairness and does undermine the integrity of the judicial process.” Juliet is now the media contact for Oxfam Canada.

The first Official Secrets Act was enacted on the heels of the British counterpart in 1890, which was eventually subsumed into the Criminal Code. On the eve of World War II, the official Official Secrets Act was enacted and remained in force until it was finally replaced by the Security of Information Act in 2001 after years of criticism. It was the 1969 Mackenzie Commission or the Royal Commission on Security, which described the Official Secrets Act as "an unwieldy statute, couched in very broad and ambiguous language.” Despite this call for reform, the Act was not dismantled for thirty years. According to The Canadian Encyclopedia, there were only 22 Canadian prosecutions under the Official Secrets Act. The most notable case, involving virtually half of the 22 prosecutions, was as a result of the revelations of Igor Gouzenko in 1945. Gouzenko, who was working in the Russian Embassy in Canada as a cipher clerk, fled the Embassy and defected with over a hundred documents proving there was a Russian spy network in Canada. He lived in hiding in Ontario until his death in 1982 and is considered “the man who started the Cold War.”

Now, some 67 years later, we are back to the beginning. It is a new and improved Act but there is, or may be, Russians involved. No Cold War but perhaps the cold shoulder as a result of the incident. Which brings me to the title of this posting: Spy Vs. Spy. This past October was the 50^th Anniversary of this dynamic or, shall we say, dysfunctional duo. Spying, it appears has been around a long time, and by all evidence, appears to be here to stay, whatever the climate.

The Internet Is Here To Stay!

Earlier, something extraordinary happened: there was a paperless revolution. Across the Internet many major websites did the unheard of and went “dark,” meaning the websites were unavailable to users. Although unavailable, these “dark” sites had a message to their madness: Stop SOPA/PIPA. SOPA is an acronym for the Stop Online Piracy Act and PIPA stands for Protect IP. Both USA Bills are purportedly for the protection of intellectual property rights, but in reality the Bills are much more.

SOPA, in particular, gives broad authority to shut down websites, even foreign websites, without notice for “committing or facilitating” copyright infringement. The overreach of the legislation has the potential to adversely impact many websites we read and use on a daily, maybe even hourly, basis such as YouTube, Twitter, Open Culture, and Brain Pickings. For further explanation of the issues read the articles here and here. For an excellent understanding of why Canadians should be worried, read this blog by Michael Geist.

Of course, in Canada the Copyright Act protects copyright material from being distributed and published on the Internet without the copyright holder’s permission. However, there is presently no formal policing of the Act and it is the copyright holder’s responsibility to claim the right and seek enforcement. Interestingly, besides the Copyright Act, which has its main objective to protect intellectual property, there are other Canadian statutes in which the Internet is referred to as a tool to enhance, not detract, from the valid objective of the legislation.

For example, in the Canadian Environmental Assessment Act, which provides a mechanism for determining the efficacy of projects affecting the environment, a number of sections require the Canadian Environmental Assessment Agency to “establish and maintain an Internet site to be generally accessible” in order to provide public access to records and reports related to assessments. Thus, this remarkable piece of legislation provides transparent governance through the best possible platform: the Internet, which permits the greatest number of people the fullest access to possibly life-changing information. There are other Acts, which also require some form of Internet access as in the Civil Air Navigation Services Commercialization Act. Instead of restricting access, the Government is embracing it with this, dare I say, “anti-1984” legislation. Yes, we are out of the eighties and there the Internet shall stay!

Of course, the idea of restricting the use of information on a platform dedicated to global dissemination of ideas is not only counter-intuitive but also highly ironic. If the Information Highway cannot carry information, then what do we call it? Somehow the Information Cul de Sac just doesn’t cut it. Certainly, protection of intellectual property is valid but let’s hope we can accomplish protection and increase our worldly knowledge at the same time.

Required Reading For the Criminal Lawyer

The following five classic books should be required reading for any criminal lawyer or anyone simply interested in understanding the reason behind fundamental criminal law principles:

1. Rethinking Criminal Law by George P. Fletcher. Although written in 1978, this book by George P. Fletcher, a prolific and thoughtful legal scholar and now Chair of Jurisprudence at Columbia Law School, is still a relevant and fascinating journey through the landscape of criminal theory. From his first chapter entitled The Topology of Theft to his last on The Theory of Justification and Excuse, Fletcher covers the wide and varied spectrum of criminal offences and defences through elegant, yet colourful, language. Throughout, he questions the reasons behind traditional common law precepts and lends a decidedly American dimension to criminal law principles.


2. Punishment and Responsibility by H.L.A. Hart. What Fletcher is to American criminal jurisprudence, Hart, who was a professor of Jurisprudence at Oxford University, is to English criminal law, and then some. Hart, a legal positivist, expounded his legal philosophy in a series of books written in the sixties, his most famous being The Concept of Law in 1961. It is, however, his volume of essays in legal philosophy compiled in Punishment and Responsibility from 1968, which I have read and re-read since my first days in law school. Hart is definitely not for the “faint-hearted” as he extends and refines the theories of John Austin and Jeremy Bentham. Both John Rawls and Ronald Dworkin, also “giants” of legal philosophy, were past students of Hart’s and greatly influenced by him. Indeed, the “Hart-Dworkin” debate on the efficacy of legal positivism is legend in the annals of legal philosophy.


3. The Limits of the Criminal Sanction by Herbert Packer. Another American legal scholar, Packer coined the present-day models of criminal process: the “crime-control” model, which emphasizes the efficient apprehension and punishment of criminals in order to protect the law-abiding citizen and the “due process” model, which protects the rights of the accused through a fair and just criminal process. In this 1968 book, Packer extends his models and discusses the role of punishment or sanction in our criminal law. He speaks of both traditional modes of sanctioning and the ability for these methods to deter crime. As well, he offers alternative methods. Interesting to note that some 40 years later, we are still struggling with the same issues.


4. Narrative, Violence, and the Law: The Essays of Robert Cover. Although not a complete book written by Robert Cover, but a compilation of his works, the essays found within the covers are some of most mind-bending legal works I have read. Robert Cover, whom I discussed in a previous posting, was, in his short lifetime, a profoundly creative legal thinker, whose writings force the reader to think of traditional issues in a startling new way. I highly recommend Cover’s essay entitled Violence and the Word.


5. Criminal Law: The Meaning of Guilt: Strict Liability, Working Paper No. 2 1974, Limits of Criminal Law: Obscenity: A Test Case, Working Paper No. 10, 1975, Criminal Responsibility for Group Action, Working Paper No. 16, 1976 – all by the LRCC. In the early to mid-1970s, Antonio Lamer, who later became Chief Justice of the Supreme Court of Canada, was the Vice-Chairman and then Chairman of the Law Reform Commission of Canada (LRCC). During his sojourn as head of the organization, the LRCC produced a number of excellent Working Papers on criminal law generally but more specifically, on the issue of criminal liability. Three, in particular stand out, and are a must read for anyone interested in the fault element of crime or criminal intention. They are written in a very clear manner as they were intended for public consumption. The actual 1976 Parlimentary Report is entitled Our Criminal Law.

Public Disasters and the Criminal Law

The tragic and unfortunate Costa cruise ship disaster is a good example of how popular social activities, which are inherently legal and legitimate, can turn, on a dime, into a textbook criminal case. It is no surprise the Captain of the ill-fated ship is being investigated for a number of offences, including manslaughter. Indeed, after reading the victims’ accounts of the disaster, it should be expected. But caution is required when demanding “justice” for public disasters through the aegis of the criminal law.

Usually, government uses regulation to control legitimate and desirable activities, which if carried out improperly or without due care, would result in harm to individuals or the public at large. Any breach of regulation may result in a charge under the statute, which is then known as a public welfare offence. Thus, our local dry cleaner, which provides us with clean shirts and starched collars, must conform to government rules regarding the safe and proper use and disposal of chemicals.

When the failure to fulfill regulatory requirements is significantly outside of the public welfare scheme, the conduct becomes criminal and must be framed by the Criminal Code. When the Exxon Valdez struck a reef in 1989 and spilled 11 million gallons of crude oil into the Alaskan waters, the criminal law was invoked. In 2000, the Walkerton tainted water scandal, which left seven people dead and scores ill from e-coli­ bacterial ingestion, resulted in criminal charges of public endangerment, fraud, and breach of public trust against the two town managers. So too, when the British Columbian Ferry, Queen of the North, ran aground in 2006 causing both an environmental and social disaster (2 people died), the navigation officer, who had control of the ship at the time, was charged with criminal negligence causing death.

However, when these public welfare matters are criminalized, they are treated like any other criminal case. The conduct, which initially arose from legal activities, becomes part of the criminal law nomenclature as it is labeled as manslaughter, criminal negligence, or even murder. By labeling and identifying this conduct as criminal, the matter leaves the public opinion arena and enters a legal one where the case must adhere strictly to all relevant legal principles. Consequently, what appears to be an open and shut case of manslaughter may, in a courtroom, deteriorate into a plea to a lesser charge or even an acquittal.

Not only are legal requirements at issue in such a case, but other factors may impact the prosecution’s ability to prove a case beyond a reasonable doubt such as the credibility of witnesses, the conduct of the police, and the availability of institutional resources.  Admittedly, these factors are present when dealing with any criminal case, but when dealing with a public welfare crime, it is very difficult to prove the essential fault element or required criminal intention, which typically deals with a failure of a person to act in accordance with a required standard of care.

In a public welfare case the alleged offender is under a duty or standard of care, which would require him to fulfill his duties and responsibilities with all due care and attention. For a Crown to establish a failure of care, to the criminal standard needed for conviction would require evidence relating to the standard of care and a detailed examination of what those duties and responsibilities are in the circumstances.  Prosecutors would need to delve into corporate culture and industry standards. As a result, such trials can be lengthy and complicated with unsatisfying results.

That explains why the Exxon Valdez’s Captain, charged originally with criminal mischief, operating the Exxon Valdez while intoxicated, and reckless endangerment, and a misdemeanor charge of negligently discharging oil, was only convicted of the misdemeanor and was sentenced to $50,000 restitution order and 1000 hours of community service. It also explains why the town managers in the Walkerton case pleaded guilty to the lesser offence of common nuisance with one accused receiving a conditional sentence of nine moths and the other, a one-year jail term. Finally, it explains why the BC ferry navigator, Karl Lilgert, has yet to be tried on his charges, although the incident occurred in 2006. Lilgert’s preliminary hearing was heard in May 2011 and he is now in the Supreme Court system as he awaits a jury trial.

So, for those awaiting a speedy outcome from the Costa tragedy, or indeed, any other public disaster, they will be disappointed. For the few who actually stick with the case to the bitter end, the result may be even more socially disconcerting. All of this may lead us to wonder if our criminal law can appropriately respond to crimes of such epic proportions and make us re-consider if it even really should in the first place. The problem is: what’s the alternative?

Update on Sunday, January 15, 2012 at 4:28PM by Lisa A. Silver

For more discussion on the criminalization of public welfare offences and the use of the civil sanction as an alternative to the criminal justice system, read my Masters Thesis.

The Presumption of Innocence: The International Perspective

The presumption of innocence is firmly entrenched in the Anglo-American justice system. As discussed my last two postings, found here and here, the presumption of innocence has grown into its own: from simple beginnings as a rule of evidence, it is now the cornerstone of our criminal law.

As a result of the development and acceptance of the presumption of innocence in the Western legal tradition, the presumption has also taken root internationally. Most International human rights documents speak to the presumption of innocence as a required element of a fair trial.

The presumption of innocence protection appears under Article 11(I), in the post-World War II Universal Declaration of Human Rights, of which I have discussed in a prior posting. Additionally, the International Covenant on Civil and Political Rights of 1966 in Article 14 contains the right to the presumption of innocence. As a signature nation to the UN, Canada has adopted these documents as evidenced by our own Charter equivalent found in s.11(d).

However, it is easy to see why Canada, the United States, and other Commonwealth countries would readily implement this right into their legal process considering the English common law legal origin of the presumption of innocence. For other signatory countries following the differing tradition of an inquisitorial based legal system or Continental Law, the issue of implementing the presumption of innocence is not as simple despite their acceptance of the Latin maxim of in dubio pro reo, meaning “when in doubt, for the accused.”

In France, for instance, the presumption of innocence or presomption d'innocence comes not from case law, but from the political and philosophical heart of the Nation as found in the 1789 Declaration of the Rights of Man and of the Citizen under article 9, which reads in part “Tout homme etant presume innocent jusqu'l ce qu'il ait eti dc'clare coupable” or “As all persons are held innocent until declared guilty.” As argued by Francois Quintard-Morenas in an excellent journal article in The American Journal of Comparative Law on The Presumption of Innocence in the French and Anglo-American Legal Traditions, although the French have arrived at the presumption in a more cultural manner and have implemented it consistent with their legal tradition, it is still a defining principle of French continental law.

The German concept of the presumption of innocence or unschuldsvermutung derived from the Latin maxim of in dubio pro reo was integrated into their legal system as a result of the adoption of International human rights documents such as the 1950 European Convention on Human Rights in article 6(2). Again, World War II had a large impact on the acceptance of this principle.

Interestingly, Spain and Russia have, within the last decade, turned to a jury trial system requiring the implementation of the presumption of innocence as an integral part of the jury trial process. Although continental law accepts the concept, it is quite another matter to integrate the concept into the continental inquisitorial system. It becomes even more complicated when the jury system, a purely English common law construct, is imposed. For an interesting discussion of this issue, see Stephen Thaman’s article Europe's New Jury Systems: The Cases of Spain and Russia in Law and Contemporary Problems, Vol. 62, No. 2, The Common Law Jury (Spring,1999), pp. 233-259.

In the People’s Republic of China, the presumption of innocence does not exist, but neither does the presumption of guilt. Instead, the Chinese legal system “presumes” nothing, preferring to seek “truth from facts” by “taking facts as the basis and the law as the yardstick.” Yet, this seemingly neutral manner of deciding guilt or innocence contradicts case reality: certainly the “Gang of Four” trial would suggest otherwise. For an interesting discussion of these issues, see The People's Republic of China and the Presumption of Innocence by Timothy Gelatt found in The Journal of Criminal Law and Criminology (1973-), Vol. 73, No. 1 (Spring, 1982),pp. 259-316.

All of this leads us to appreciate that Anglo-American legal principles do not “rule” the world. There are many other jurisdictions where our fundamental core principles are either not followed or are merely general guidelines. Legally, this may be acceptable. When, however, a fundamental value like the presumption of innocence is involved, it becomes more difficult to accept the differences.