Fugazza 1 Lo Fugazza Michael Duckett Integrative Seminar May 29th, 2012 Canadas Intelligence Community: The Evolving Ethics

of Sometimes Unwanted Protection Abstract Canada is often described as a leader in terms of human rights, including in the domain of intelligence services. After reviewing the current legislation surrounding privacy and access to information, this paper dresses a portrait of the balance between concerns for safety and security in Canada and the rights protected by the reviewed Acts. To understand better the Acts surrounding the intelligence community, the evolution of data gathering is described in an historical context, providing the basis for an ethical evaluation of the statu quo. Ethical guidelines to be implemented for the future are then described, taking into account the nature and goals of the intelligence services in Canada. Canada est souvent dcrit comme un chef de file en termes de droits de lhomme, incluant dans le domaine des services de renseignement. Aprs une rvision de la lgislation actuelle entourant la vie prive et laccs linformation, ce document dresse un portrait de la balance entre les considrations pour la sret et la scurit au Canada et les droits protgs par les Actes examins. Pour mieux comprendre les Actes entourant la communaut du renseignement, lvolution de la collecte de donnes est dcrite dans un contexte historique, fournissant la base pour une valuation thique du statu quo. Des

Fugazza 2 lignes directrices thiques mettre en place pour le futur sont ensuite dcrites, prenant en compte la nature et les buts des services de renseignement au Canada.

Introduction One of the most fascinating aspects of our society is the clash between rights and freedoms. Guaranteed to us in the Canadian Charter of Rights and Freedoms, our freedoms are to be unaltered by governmental intervention, while our rights are to be directly protected by governmental intervention. Section 1 of the Charter provides that these freedoms and rights be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. However, time and time again, the freedoms that were given to us without boundaries get encroached upon by the very boundaries set in place to protect the inalienable rights that were also given to us. In these dilemmatic situations, much debate on what constitutes reasonable limits, and on which, of freedoms or rights, should prevail, arise. One problematic interaction between our rights and freedoms is found in the field of intelligence, or the romanticized spying.Section 7 of the Charter says that everyone has the right to life, liberty and security of the person and the right not to deprived thereof except in accordance with the principles of fundamental justice, which intelligence services set forth to protect. They constitute our first line of defense, often preventively, against any harm or threat of harm. Yet, sections 8 and 9 also provide that everyone has the right to be secure against unreasonable search or seizure and that everyone has the right not to be arbitrarily detained or imprisoned, and section 12 states that everyone has the right not to be subjected to any cruel and unusual treatment. Opponents to the

Fugazza 3 pervasive powers of the intelligence services often denounce their work as infringing upon these rights, as well as limiting our fundamental freedoms, including freedom of conscience, of thought, belief, opinion and expression, of peaceful assembly, and of association (Section 2). Now, obviously both the rights protected by the intelligence services and the rights and freedoms allegedly infringed upon by these same intelligence services are of importance, if not even vital in a democracy. Do intelligence services, therefore, fall under the category of reasonable limits? After a review of the current legislation framing these aforementioned rights and freedoms, and of the evolution of the intelligence services themselves in Canada, it appears that the current intelligence services have greatly improved and are now closer than ever to being reasonable limits to our rights and freedoms. Yet, still many aspects remain to be improved. I take this evolution into account, as well as the nature of the intelligence services, to draft a set of ethical guidelines to be applied if the intelligence services in Canada are to reach the precarious balance known as reasonable limit.

Privacy and Access to Information versus Safety and Security in Canadian Laws: A Fragile Balance of Conflicting Interests The occidental societies have at all time struggled with the notions of freedom, liberty and rights as opposed to those of stability, security and safety. From Hobbess allpowerful Leviathan to Rousseaus self-regulating assembly of free men, political thinkers have prescribed various ways of balancing them. Their views range from dictatorships for peace to chaotic and anarchist villages for ultimate freedom, and still shape the political environment to this day.

Fugazza 4 However, in the past century and a half, as these societies slowly entrenched themselves in democracy, this everlasting question has taken a new turn. It is transmuting into a more subtle debate: how should privacy and governmental transparency be balanced with the need for safety and security? This is only exacerbated by the exponentially increasing technological advances, and has become one of the major conundrums of the web era. With its roots deeply anchored in Occidental legal philosophy, what is the Canadian answer? As a constitutional monarchy, with confederated provinces and territories, and with a charter of rights and freedoms, do we value security and safety over privacy and access to information, vice versa, or have we found a delicate balance between the two? By exploring Canadas three major privacy and access to information laws, the Access to Information Act, the Privacy Act, and the Personal Information Protection and Electronic Documents Act, and taking into account the paradigm expressed in the Anti-terrorism Act, it appears clear that Canada favours the respect of privacy and the transparency of government, but subdues these concerns when it comes to the personal safety of its citizens, national security, and even the economic security of third parties.

Personal Safety Trumps Everything In Canadian law, everything is supposed to be subordinated to the safety of individuals. We presuppose that preserving life must trump non-vital concerns such as access to information and privacy. In fact, the first whereas of the preamble to the Antiterrorism Act reads: Canadians and people everywhere are entitled to live their lives in peace, freedom and security, and it defines terrorist activities in section 83.01(b)(i)(B) and

Fugazza 5 83.01(b)(ii)(A) to (C) as an act or omission, in or outside Canada, in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security [], and that intentionally causes death or serious bodily harm to a person by the use of violence, endangers a persons life, [or] causes a serious risk to the health or safety of the public or any segment of the public. Canadian law does not permit directly putting someone into harms way. Given this sacro-saint legal perspective on personal safety, the government has imposed rigorous conditions to the disclosure of personal information and governmental records under its control. The Access to Information Act and the Privacy Act contain such limitations, respectively in section 17 and 25: The head of a government institution may refuse to disclose any [record requested under this Act that contains] [personal information] the disclosure of which could reasonably be expected to threaten the safety of individuals. They manage here to intertwine protection of safety and protection of privacy, although to the cost of a broader access to information. In fact, the government is told that they may refuse to disclose any personal information [] that relates to the physical or mental health of the individual who requested it where the examination of the information by the individual would be contrary to the best interests of the individual (Access to Information Act, Section 28). The individual is even protected from himself, if necessary This focus on personal safety is not limited to the Access to Information Act. Similar clauses can be found in the Personal Information Protection and Electronic Documents Act, that applies to companies in Canada: an organization may collect personal information without the knowledge or consent of the individual only if the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way

Fugazza 6 (Section 7(1)(a) ). What, then, constitutes the interests of the individual? The rest of the Act offers some clues, and seems to equate the interests of the individual to a balanced protection of safety and consent: an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is made to a person who needs the information because of an emergency that threatens the life, health or security of an individual and, if the individual whom the information is about is alive, the organization informs that individual in writing without delay of the disclosure (Section 7(3)(e) ), and may, without the knowledge or consent of the individual, use personal information only if it is used for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual (Section 7(2)(b) ). In the same logic, companies are not required to give access to personal information if to do so could reasonably be expected to threaten the life or security of another individual (Section 9(3) (c) ), though this does not apply if the individual needs the information because an individuals life, health or security is threatened (Section 9(4) ). It is reasonable to assume that most can agree with the merits of those clauses. Indeed, privacy and access to information seem insignificant in the face of concerns for the health and safety of individuals, and ought to be overlooked in cases of emergencies. Even in those cases, privacy is valued over access to information. So should it be.

National Security Above All Privacy and access to information are also, more controversially, subdued to concerns of national security and defence. The first whereas of the preamble to the Anti-

Fugazza 7 terrorism Act reads: acts of terrorism constitute a substantial threat to both domestic and international peace and security, while the last whereas states that its goal is to protect the [] security of Canada and Canadas relations with its allies. Similar security concerns are set in place in the privacy and access to information laws of Canada. In the Access to Information Act, the information and records obtained from the government of a foreign state []; an international organization []; the government of a province[]; a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government; or an aboriginal government are not to be disclosed (Section 13(1)(a) to (e) ). Similar points exist in the Privacy Act (Sections 8(2)(f) and 19(1) ). There are clauses protecting federal-provincial affairs (Access to Information Act, Section 14), but also protecting international affairs (Access to Information Act, Section 15(1)(e) to (i)(i) and Privacy Act, Section 21). However, the Access to Information Act is also intractable on the issues of national defence (Section 15(1)(a) to (d)(ii) and Section 15(1)(i)(ii) to (iii) ), and of law enforcement (16(1) and (2) ). The Privacy Act has similar sections (21 and 22(1) ), but also includes the disclosure of personal information if the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure (Section 8(2)(m)(i) ). The Personal Information Protection and Electronic Documents Act states that organization must also respect national security, the defence of Canada or the conduct of international affairs [and] the enforcement of any law of Canada, a province or a foreign jurisdiction, an investigation relating to the enforcement of any such law or the gathering of intelligence for the purpose of enforcing any such law (Section 9(2.3)(a) and (b) ) in

Fugazza 8 refusing to disclose personal information. On the other extreme, they can also disclose without the consent of the individual their personal information on the grounds of national defence and lawful investigations (7(3)(c.1)(i) to (iii) ). It is easy to agree to the subjugation of privacy and access to information to national security. Everyone wants to keep themselves and their family to be safe, and concerns for less vital rights, such as privacy and access to information, could easily be given up for the right to safety. But what exactly constitute this national security? What exactly is the public interest mentioned in Section 8(2)(m)(i) of the Privacy Act? How can it justify the trumping of our other rights? Our rights and freedoms are, from a strictly legal perspective, subdued to a vague concept, applicable in a multitude of situations. It is one thing to refuse to reveal details of military plans before it comes into effect, but it is another to reveal the identity of political dissidents in the name of the political stability of the nation.

Economic Security, A Priority Finally, and in a more subtle manner, our rights to privacy and access to information are limited by economic concerns. The Acts under our examination all protect the economic security of the nation and of third parties. Attacks against this principle are decried in the Anti-terrorism Act, in the third whereas of its preamble: acts of terrorism threaten Canadas political institutions, the stability of the economy and the general welfare of the nation. This act also state in the last whereas of its preamble that it must the political, social and economic security of Canada. It is interesting to note that they have

Fugazza 9 not been ranked in any way, hinting that the economic security of Canada is as important as its political and social security. What is maybe most frightening given the usual clarity of the Acts is that, though this protection of the economy is enforced, it is almost absent from the privacy and access to information laws in Canada. In fact, they are found in one section of the Access to Information Act, and in two sections of the Personal Information Protection and Electronic Documents Act. Sections 20(1)(a) to (b) and (c) to (d) (1) of the Access to Information Act describe the extent to which the government needs to protect the economic interests of third parties: the head of a government institution shall refuse to disclose any record requested under this Act that contains trade secrets of a third party; financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party; and information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. Not only are these provisions vague, but they also give tremendous discretionary power to the government. Government should not be playing the market game, but it is exactly what is demanded of it in these sections. Rather than defending the interests of its citizens, as it should be doing, government is thus defending the interests of the people incorporated under its laws. The Personal Information Protection and Electronic Documents Act allows only companies to disclose personal information under strict conditions: for the purpose of

Fugazza 10 collecting a debt owed by the individual to the organization (Section 7(3)(b) ), and not if it could reasonably be expected to be injurious to the detection, prevention or deterrence of money laundering (Section 9(2.3)(a.1) ). Yet, protecting the economy clearly remains a goal of the Canadian government (Anti-terrorism Act, Preamble). The logical conclusion must be that the government is acting on this principle without including it in its written laws, but proving such a claim would be a risky enterprise. However, given the relatively small influence it seems to have on legislation itself, more focus should be put on the subduing of our rights to concerns of personal safety and national security. Shifting Legislation: But One Facet of An Evolving Situation While our rights to privacy and access to information have been inferred from the Canadian Charter of Rights and Freedoms and entrenched in the Access to Information Act, the Privacy Act, and the Personal Information Protection and Electronic Documents Act, it is evident that such rights are subordinated to security and safety concerns, namely of the individual first; then of the nation, both in terms of political stability internally and internationally and of military and police defence of orderand therefore, arguably, of the many individuals; and finally, of the economy, national or private. There is also a visible and positive trend to favour privacy over access to information in all the Acts reviewed. This particular current legal state of affairs must be understood in order to start considering the evolution of the balance between privacy and access to information versus safety and security. When Data Became Power: A History of the Intelligence Agencies in Canada

Fugazza 11 A survey of Canadian laws on privacy and access to information shows clearly that while Canada favours the respect of privacy and the transparency of government, it also subdues these concerns to the personal safety of its citizens and national security. It reveals the conflicting nature of the power of information in Canada, used both by the people to keep the government accountable and by the government to keep the people in line. Information is portrayed as a force for good, but is it? The answer is intrinsically linked not to the nature of information itself, but rather, to the nature of the intelligence services making use of the information, either by suppressing it, creating it, amalgamating it, spreading it, or hiding it. To understand this concept better, it is useful to illustrate extreme cases. A country with no intelligence service would probably have a highly empowered citizenship, with no government control, but might suffer from high crime rates because of a lack of crime prevention. A country with an omnipresent intelligence service, on the contrary, would probably have a close to zero crimes as traditionally understood. However, their social control would also likely leave no freedoms to its citizenship, effectively dehumanizing them, and may have a whole slew of Orwellian thought crimes to be enforced. The question therefore is: does Canadas intelligence service favour a culture of accountability, or a culture of secrecy? As history unfolded, Canadas intelligence service took many forms and shape. As such, the answer depends on the stage of interest.

The Early Days: Colonies

Fugazza 12 In its early stages, Canada did not have a formal intelligence service per se. In New France, the low population and high church frequentation assured that everyone knew everyone. Information was a power collectively owned. Unless you partook in the fur trade, and thus spent much time travelling the vast woods of the new continent, it was likely that you were known to most if not all of the colonys inhabitants. The colonial powers did not need an intelligence service, and relied on denunciations to carry out justice. The knowledge of being surveilled by each and everyone served as a powerful enough deterrent to commit crimes. In 1763, the Royal Proclamation gave significantly larger powers to the colonial authorities. It marked the change of hands of New France to England, and drew further lines between Qubec and East and West Florida. The Royal Proclamation expressly enjoin and require all officers to seize and apprehend all persons whatever, who standing charged with treason, misprision of treason, murder or other felonies or misdemeanors, shall fly from justice and take refuge in the said territory, and to send them under a proper guard to the colony where the crime was committed of which they shall stand accused, in order to take their trial for the same, but does not include provisions about intelligence services (Royal Proclamation, 1763). However, the same year also marks the making of the American Revolution. If the British Empire wants to keep control over Qubec, a better form of social control must be put in place to oppose the influence of the American revolutionaries. The Quebec Act of 1774 is an attempt at calming the aspirations of Qubecers to join the rebels in their Revolution, granting them the right to free Exercise of the Religion of the Church of Rome and maintaining the French Civil Code while enforcing the English Criminal Code (Quebec Act, 1774). Yet, still no provision of the Act

Fugazza 13 establishes an intelligence service yet, and thus we can safely conclude that the ground work of data collecting and gathering was done la militaire, by and for soldiers, as it was commonly practiced at the time. By the end of the American Revolution, with the Treaty of Paris in 1783, tensions between the northern British colonies and the American Union were far from resolved. In 1791, because of the growth of the British colonies with the arrival of the Loyalists, the Empire established Lower and Upper Canada. Military presence is maintained, and intelligence remains scattered and occasional instead of formalized. The government operated mainly from afar, in England, and thus the population in the Canadas was not heavily surveilled, but as a result could not really hold their government accountable in any way.

The American Revolution: A Menace and Inspiration The tension stemming from the American Revolution, after having been calmed by the Treaty of London of 1794, would return with the breaking of the War of 1812, but the British troops managed to drive back the Americans south of the border in 1815. However, the population of Lower and Upper Canada shared some of the exasperations that had led the Americans to revolt. In 1837 and 1838, two Rebellions calling, amongst other things, for responsible government, were squashed, and Lord Durham was sent the following year as Governor General of Canada, and given special powers as High-Commissioner of the British North America to investigate the causes of the uprisings. He produced for the British Empire a report recommending amongst other suggestions the merging of Lower and Upper Canada. In 1840, the Empire merged Lower and Upper Canada in the Province

Fugazza 14 of Canada, and enacted the Act of Union. However, it is only after the British North America Acts of 1867 that entrenched intelligence services are established. After the Canadian Confederation, the newly established Canadian government decided to take measures to protect its increasingly larger territory. It was both a way to control a relatively unstable society and an incentive for other colonies to join Canada. Two police forces were created: the Dominion Police, in 1868; and the North-West Mounted Police, in 1873. The Dominion Police, according to their entry in Library and Archives Canada, consisted originally of fewer than a dozen men, and their duty was to protect federal government buildings in Ottawa and later included undercover security, the protection of Navy yards and the maintenance of a fingerprinting bureau. The NorthWest Mounted Police did not have such a clear mandate of intelligence gathering, but their reports were used by the authorities to fine tune policies to reduce social unrest, and they had discretionary power in how best to enforce social peace in the regions under their protection. Though these two forces worked quite efficiently for close to 50 years, they were dismissed at the beginning of World War I, and finally merged in the Royal Canadian Mounted Police (RCMP) in 1920. The era between the creation of Upper and Lower Canada in 1791 and World War I saw rebellions for a more accountable government, but the work of the military and of the police forces was too useful for most to be put in danger for vague concepts of privacy. Intelligence activities existed, but were not overly intrusive and were commonly, if not accepted, tolerated as a necessary evil.

The Royal Canadian Mounted Police: A Descent on the Intelligence Slippery Slope

Fugazza 15 After World War I, the Canadian intelligence services were streamlined into the single Royal Canadian Mounted Police. It would after almost fifty years lead to a policesponsored campaign of dirty tricks consisting of break-ins, arson and theft targeted at leftleaning press and political parties (including one that was poised to form a government) and a subsequent cover-up that was almost successfulinvolving a deception that included lying to a Minister about the campaignbut was undermined by frank admissions of people who participated directly in illegal activities in the 1970s (Security Intelligence Review Committee, 7). But lets start from the beginning. Gregory S. Kealey managed to get access to the early documents of the RCMP, including internal disciplinary matters; material relating to charges against Commissioner Herchmer; the relationship of the RCMP to Doukhobors, Communists, enemy aliens, and labour disputes, especially the Winnipeg General (201). His research provides an insight in the ruthless work of the RCMP, filled with infiltration missions and sabotage operations. Inside their reports, we read of comments on the social and political movements they infiltrated and surveilled: Special Agent Davies promises to be a very valuable man, and is investigating the Loggers' Union, an important society of which he is a member. Special Agent Eccles is going through the Camps between Prince George and the Alberta Boundary, and I hope will obtain useful information. (209) They also had access to the files of the forces that united to form the RCMP: Mrs. Dickson is doing the accounts, and helping with the M.S.A. work; getting information from the Dominion Police files, etc. She is a capable woman. Her husband is very ill. (209) Their role was to prevent civil, but also political, unrest:

Fugazza 16 As far as labor generally is concerned, there are grave possibilities, for there is no doubt that there are very active campaigns going on amongst working men of a disturbing nature, []and the tone of these meetings is of the usual extreme kind against what is termed the "capitalist" class, and is not favorable to the Government. The speakers are very careful not to go too far, and a good deal of what they say has, I must admit, some truth in it, when you come to weigh the actual meaning of the words spoken. Most of the men who do the speaking are probably in it for mercenary reasons, but there are a few very determined men amongst them who mean business. I am of the opinion that the Police did not arrive here a day too soon, and from what I can glean from the unsettled state of labor, Bolsheviki movement and the various other organizations of a disturbing nature, all point out that we shall have a very busy and interesting time ahead of us. (209-210) The RCMP also provided advice to the government, based on their observations and own beliefs: The Government must at all cost keep the returned soldiers united as far as possible. This is most important, as you will see from various reports that the various Labor and other organizations are putting forth their united efforts to try and win as many returned men as possible to espouse their cause by using false propaganda and other means of prejudice them against the Government etc. As a number of the returned men have been unable to obtain employment, this has been taken advantage of by the agitators and are getting them some recruits. If we can only keep the returned soldiers with us I am of the opinion that in case of trouble there are enough good loyal people who will stand behind the troops to make the outcome certain. On the other hand, if the disturbing elements win over a large number of returned men then the situation will become very serious. As we could not figure exactly whether they may not teach the man now in Camp here, no doubt the authorities have been most careful in selecting men to be stationed in the different units here, as this is most important. There is no doubt that they are trying to organize an international strike some time in June or July to paralyse industry. Where are a lot of determined men in these organizations who would stop at nothing to gain their end. (210) In conclusion I have the honor to suggest that, as a large number of the disturbing element are from foreign countries that some means

Fugazza 17 should be taken to send them home as speedily as possible. This I feel will ease the situation here very much. (211) They favoured intrusive tactics, and got directly involved. According to the reports Kealey found, some RCMP officers believed that the strongest lever to use in this sort of policy to my mind, would be the festering of dissention between the leaders of the various Unions and Labor Organisations (212). The RCMP tried to shape public opinion, for political reasons more than to maintain the social peace. They were pleased that The G.W.V.A. [Great War Veterans Association] membership is increasing rapidly, as troops are arriving back, and are doing a lot to mold public opinion in the right direction. This organization is opposed to the Comrades of the Great War, which has not a very reliable reputation (214). They conclude that they are up against clever men with brains and with a certain smatterism of truth to give added weight to their teachings. I consider that only by action on the part of the Government to keep the various labor organizations from uniting, and if possible secure clever and capable men to lead the conservative element in the various labor organizations and start an educational campaign; and thus develop a strong opposition to the extreme element, and by eradicating the foreign element of the agitating type can the pressure be relieved. This line of action I feel sure would soon win many honest well-meaning laborers away from the extremists. Above all the returned soldiers must be provided with work, and be kept together as supporters of the Government. (211) Of course, their work also includes the control of reading material: PROHIBITED LITERATURE: There were no prosecutions entered in this Division during the month under the above heading. A large quantity of radical literature is still being distributed at Labor Church meetings, etc., but little of same appears on the prohibited list. (219)

Fugazza 18 Canadas national securityhow it was conducted, managed and maintained was largely a matter left unspoken at nearly all levels of civic discourse. The inherent and obvious consequence was that an entire area of state powerconsiderable in its might and scopewas wide open and vulnerable to abuse (Security Intelligence Review Committee, 8). In fact, bien qu'existant probablement depuis les annes 1860, ce n'est qu'en 1934 qu'un gouvernement a admis officiellement l'existence d'un service secret au sein de l'administration (Krieber, 43). During World War II, la GRC n'a gure pratiqu le contreespionnage [], sans doute en raison du vaste programme d'internement qui a peut-tre priv les agents ennemis de contacts au Canada. Pendant les premires annes de la guerre, avant que l'Union sovitique devienne notre allie, l'activit anti-subversive portait surtout sur les prsumes tentatives de communistes pour nuire l'effort de guerre. La surveillance visait galement le mouvement anti-conscriptionniste au Qubec et les Tmoins de Jhovah. Ce dernier groupe, comme les communistes, avaient t dclar illgal en vertu des Rglements concernant la dfense du Canada (Krieber, 48: [McDonald, 61]). Entre les deux guerres, la GRC s'est surtout occupe [...] de la lutte contre la subversion. Ses principales cibles taient les groupes communistes et les organisations ouvrires diriges par les communistes. Les gouvernements successifs voulaient tre mis au courant des projets rvolutionnaires de ces organisations et de leurs appuis l'tranger (Krieber, 48: [McDonald, 59-60]). After the war, dans les annes 1930, la GRC avait infiltr une trs large chelle le mouvement communiste canadien (Krieber, 48: [McDonald, 59-60]). The RCMP was an omnipresent force, and was not accountable to anyone but their superiors. They often failed to report to even the Ministers in charge. Incidents were bound to happen.

Fugazza 19 The Communist-Hippy Effect of the 1960s-1970s: What Constitutes Too Far in the World of Intelligence? Starting in the 1960s, the fear of communism amongst the intelligence services caused by the Cold War collided with their unease with the emerging social movements that put to question the established order. Hippies, opponents to the Vietnam War, the adherents of the New Left, and other soft-revolutionaries, inspired similar movements in Canada and Qubec. This fracture between the social order and large parts of the population scared the RCMP, that always targeted fringe movements, and led them to start targeting larger and larger parts of the population. Cest au cours des annes 1960, au moment de la cristallisation des contestations autour de la Nouvelle gauche, de l'opposition la guerre du Vietnam aux tats-Unis et de l'mergence du nationalisme violent au Qubec, que se sont intensifies les activits anti-subversives du renseignement et que les cibles sont par consquent devenues intrieures (Krieber, 43). The police-sponsored campaign of dirty tricks consisting of break-ins, arson and theft [targeting] left-leaning press and political parties (including one that was poised to form a government) and subsequent cover-up that was almost successfulinvolving a deception that included lying to a Minister about the campaignbut was undermined by frank admissions of people who participated directly in illegal activities that I foreshadowed took place over the span of close to 20 years, targeting students, Qubec separatists and other fringe groups (Security Intelligence Review Committee, 7). There was a mfiance presque atavique de nos services envers les tudiants: la lumire de ces faits, nous en sommes venus la conclusion, vers la fin des annes 1960, que la GRC a entrepris, sans l'approbation du gouvernement, un important programme visant multiplier et amliorer

Fugazza 20 les contacts avec les professeurs d'universit. Ce programme a t instaur cause du militantisme qui tait en progression dans les universits et du terrorisme qui se dveloppait dans quelques-unes (Krieber, 48: [McDonald, 362]). The RCMP Security Service had conducted a systematic campaign throughout the 1970s to subvert organizations in Vancouver deemed to be a threatthose espousing communist or far-left leaning politics, and the RCMP members who were involved in the dirty tricks werent bothered by the illegality of their deeds (Security Intelligence Review Committee, 10). Bombs were planted, political parties infiltrated and their membership lists stolen, and the RCMP even instigated certain events of a less than legal nature in a successful attempt to get then Qubec Premier, Robert Bourassa, to ask of then Canada Premier Pierre-Elliott Trudeau to apply the War Measures Act, as part of the October Crisis. More newspaper reports emerged in 1977, including revelations of how the offices of the Agence du Presse Libre du Quebec (APLQ)a separatist newspaperhad been burglarized by the RCMP in the early 1970s. Also revealed among the RCMP Security Services activities was the torching of a barn outside of Montreal, which had been used as a meeting place of Quebec intellectuals suspected of having separatist affiliations (Security Intelligence Review Committee, 10). They made victims and overall escalated social unrest for political motives instead of deescalating the social tension to preserve peace and the security of the population, as was their role. John Sawatsky wrote for the Vancouver Sun that: illegal activity was accepted with enthusiasm since it was exciting, was good for ones career and contributed to the fight against communism (Security Intelligence Review Committee, 10).

Fugazza 21 These were lessons that should have been learnedperhaps earlier than they were about the need for changes in the way that security intelligence had been conducted in Canada (Security Intelligence Review Committee, 7). It had became apparent that the commonly held belief that the police acted in the best interest of the people, and under governmental scrutiny, was based on a lie. Rapidly the public demanded in outcry a public inquiry into the activities of the intelligence services of the RCMP, and understandably so.

Commissioning a Better Intelligence Service: The Time for Public Inquiry Two commissions marked the development of the Canadian intelligence services: the Royal Commission on Security and the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. However, the first one predates the crisis of confidence that explode in the 1970s: by the mid-1960s, fuelled in part by a desire to modernize security practices at the federal level, the Royal Commission on Security, headed by Maxwell MacKenzie was established. It submitted its report in 1968 (Security Intelligence Review Committee, 9). It tried to address some of the issues that would lead to the McDonald Commission: the MacKenzie report also included a progressive idea: that the RCMPs security intelligence function be completely severed from the police force. That latter recommendation caused considerable debate and friction between the RCMP and the government. In 1969, a compromise was reachedthe RCMP retained its national security role, but John Starnes, a career diplomat, was appointed as its first civilian director (Security Intelligence Review Committee, 9). As we know, this change was not enough. More than a full decade passed before the MacKenzie Commissions controversial recommendation re-emerged (Security

Fugazza 22 Intelligence Review Committee, 10). The McDonald Commission Report, published in 1981, heralded a new chapter in the history of Canadian security intelligence (Security Intelligence Review Committee, 11). The government acted on its recommendation, which included the creation of a new civilian intelligence service and an advisory council (Security Intelligence Review Committee, 11). In 1984, the Canadian Security Intelligence Service Act was passed, stripping the RCMP of its intelligence service role and creating the civilian and accountable Canadian Security Intelligence Service (CSIS) and its organs of control, including the Security Intelligence Review Committee (SIRC). This is the law under which Canadian intelligence services operate today.

The Canadian Security Intelligence Service, A Step in the Right Direction? After the controversies brought forward in the McDonald Commission, Canada became the first democratic government anywhere in the world to establish a legal framework for its security service (Security Intelligence Review Committee, 11). Though this move was applauded by human rights activists, the case was far from settled. The SIRC did work efficiently as the external watchdog of the CSIS, and acting as the complement to the internal work of the Inspector General of the CSIS. However, the balance between Canadians security and privacy was far from dealt with. The war on terror has moved CSIS to the forefront of public attention, and reopened the question (Security Intelligence Review Committee, 20). Canadas security and intelligence apparatusCSIS in particularhas become the object of public and media scrutiny of a kind not seen in decades. (Security Intelligence Review Committee, 20) The political landscape changed: Canadians saw a sea change in public policy, immediately following

Fugazza 23 the September 11th attacks. The Government of Canada quickly adopted additional security measures, drafted new laws to combat terrorism, and within three months put in place a comprehensive new Anti-Terrorism Act. But these new powers make it all the more important to safeguard citizens rights and freedoms, to preserve Canada as an open and democratic society (Security Intelligence Review Committee, 20). There is still a great deal of doubt on exactly how, if it is even possible, greater powers to intelligence services could lead to a better safeguard citizens rights and freedoms, let alone keep our democratic society open. However, this conundrum cannot be answered from an historical perspective. If the past provides lessons to be assimilated, other approaches are to be adopted to provide guidelines for the future.

The Canadian Security Intelligence Service Act and Ethics: Clearing the Mist of Moral Secrecy and Unaccountability in Canada. As it now stands, the evolution of the intelligence services in Canada seems to have reached an impasse. It clearly does not suffice to look at the past or to review the legal statu quo if we are to find a way out of this impasse. Commentator J. LL. J. Edwards explains that there has now been set in place for Canada's Security Intelligence Service a comprehensive mandate framed in legislation that, despite its occasional defects, represents a significant advance on anything that can be pointed to in the same field in other Western democracies (144). Edwards describes the Act as sealing the essential balance that seeks to accord proper recognition to the civil liberties of its citizens but with equal regard to the duty of any democratic government to collect political intelligence on threats to the security of the state (145). However, it is far from perfect. We have reached a standstill,

Fugazza 24 but the current balance is not solid. The equilibrium is fragile, and is rocked by both psychological and philosophical factors. Psycho-philosophy, or what the ancient Greeks would have called ethics, therefore seems like an appropriate field to inquire into in order to find a durable foundation to the intelligence services in Canada. This perspective needs to be adopted if we are to propose a durable path towards the future, to propose an improved intelligence service. What ought to guide the Service, and what limitations should be imposed on it? Given the very nature of intelligence services, but also of the people responsible for keeping them accountable, it is likely that any ethical guideline that is too vague will lead to disastrous consequences. As well, given the flexibility of conscience required to perform efficiently the espionage duties of an intelligence service, too strict moral considerations might be counterproductive, if not destined to fail from the start. Only realistic ethical guidelines, that give enough room to both the spy and the watchdog, can likely pretend to serve as a durable foundation for the intelligence services in Canada.

Ambiguous Foundations: The Canadian Security Intelligence Service Act Before even trying to put forward normative ethical guidelines, the current reality of the intelligence services needs to be assessed and addressed. The CSIS Act is ambiguous at best. The duties of CSIS seem simple, but are made complex by their contradictory nature: the Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada

Fugazza 25 (Section 12). While they have to exert prudence, staying reasonable and acting only to the extent that it is strictly necessary, their end goal is to investigate any activities constituting threats to the security of Canada. Section 2 defines threats to the security of Canada as: (a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage, (b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person, (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada. However, this definition does not include lawful advocacy, protest or dissent. Political rights need to respected, yet certain radical political objectives are frowned upon. Confusion is bound to arise. To help the Service interpret their contradictory mandate, the Act set forward a few structural safety measures. First, the Director of the CSIS answers to the Minister of Public Safety and Emergency Preparedness (Section 6(1-2) ), where the RCMP once only answered to themselves, with no governmental accountability. Second, that Minister is not solely in charge, and the Director is to consult the Deputy Minister on most of the workings of the Service (Section 7(1) ) and notably before applying for the warrant or the renewal of the warrant (Section 7(2) ). Section 21 describes the lengthy process the Service has to go through before getting a warrant, and keeps CSIS accountable to the courts. Third, an

Fugazza 26 Inspector General is to monitor the proper functioning of the Service and their application of policies, and is to report to the Deputy Minister (Section 30). He is the ministrys eyes and ears on the Service. He will very much be the ministers man in order to maintain an appropriate degree of ministerial responsibility, and is not to be regarded as a functionary of the CSIS (Edwards, 151). Finally, a Security Intelligence Review Committee is struck in Section 34, to review and investigate the work of both the Service and its other watchdogs. They are to have access to any information under the control of the Service or of the Inspector General that relates to the performance of the duties and functions of the Committee and to receive from the Inspector General, Director and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions (Section 39(2)(a) ), and are given court-like powers such as summoning, administering oaths, and receive and accept evidences, in Section 50. According to Edwards, this external watchdog committee is the lynchpin in the entire system of control and accountability (149). Clearly, standards of accountability are put forward in the CSIS Act, which is one avenue to explore as a basis for ethical guidelines. However, other potential avenues are also included in the Act. Under Section 14, the Service is allowed to advise ministers and provide them with information regarding the security of Canada, and to conduct the investigations required to efficiently do so, but Section 16 limits those investigations to non-Canadian citizens and to non-permanent residents, and only on the demand of the ministers involved. This provides for a classification of targets, which may form another basis for ethical guidelines. The confidences of the Service to ministers, however, are not included in the documents that any of the watchdogs has access to (Section 31(2), Section 39(3) ). Again,

Fugazza 27 accountability is limited by section 18, which prevents the disclosure of information from which the identity of (a) any other person who is or was a confidential source of information or assistance to the Service, or (b) any person who is or was an employee engaged in covert operational activities of the Service can be inferred. Anyone contravening to Section 18 is (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction (Section 18(3) ). Though the focus is somewhat misplaced, favouring secrecy over accountability, another basis for ethical guidelines can be found in these punishments. Indeed, labelling unacceptable acts as offences under the Law could be a way to ensure the respect of the ethos of the intelligence services. However, these complicated checks and balance have one provision that stand out the most as a basis for ethical guidelines. Members of the CSIS and of the SIRC both are sworn in their functions after taking oaths (Section 10, Section 37). Though they are quite formal and do not include any ethical principles per say, their very existence provide for expanding on the role of the sense of duty that is implied by swearing. The oath of office for the CSIS agents reads: I, ...................., swear that I will faithfully and impartially to the best of my abilities perform the duties required of me as (the Director, an employee) of the Canadian Security Intelligence Service. So help me God. The secrecy oath taken by both CSIS agents and SIRC members reads: I, ...................., swear that I will not, without due authority, disclose or make known to any person any information acquired by me by reason of the duties performed by me on behalf of or under the direction of the Canadian Security Intelligence Service or by reason of any office or employment held by me pursuant to the Canadian Security Intelligence Service Act. So help me God (Section 10).

Fugazza 28 Without arguing the moral and ethical value of swearing on God, there is a tacit understanding that higher powers can indeed make it so that agents of the intelligence services have to comply with certain principles. What should those principles be, and what should this higher power be?

Are Intelligence Services Even Necessary? Before even trying to fix the intelligence services by giving them clear principles to follow and ethical guidelines, the issue of their necessity needs to be addressed. Are they even necessary? Unfortunately, the answer is yes. They are a necessary evil. Lock K. Johnson explains it best: in a strategic landscape plagued by still greater uncertainties, the need to know not only endures but grows (19). He argues that although globalization has brought about a new set of favourable circumstances for nations in terms of trade, travel, and communications it has also brought greater exposure to foreign intrigue, against which intelligence can provide a shield (19). He claims that intelligence services continue to provide this first line of defense, including efforts to uncover the use of chemical and biological warfare before the sarin gas, anthrax particles, or other horrendous substances are released among mass civilian populations (25). Pfaff and Tiel even argue that governments have a duty to determine what threats lie on the horizons for their citizens, a duty which offers a moral justificationeven strongera moral requirement for intelligence-gathering. To fail to engage in intelligencegathering would be to shirk a moral duty lying at the core of a governments responsibility, for without timely information as to a potential enemys capability and intentions, civic defense is impossible (4). They put forward the idea that, because the work of the

Fugazza 29 professional intelligence officer is indispensable to the national security duties of the state, espionage is itself a derivative moral obligation (14). For them, this means we should dispense with the idea that somehow the work of the intelligence professional is not compatible with the dictates of morality (14). Espionage is needed, and even a moral requirement, but does it matter? The consensus on the matter seems to be yes, at least in terms of improving our odds for civic defense. As Richard H. Immerman puts it, that [a] strategy [is] better informed does not mean that it [is] better strategyonly that it had a better likelihood of being good strategy (11). After all, good strategic intelligence (the big picture) does not guarantee good policy, but, holds the received wisdom, the better the intelligence, the more informed the policymaker (1). However, he also warns that policy makers need to be willing to listen to intelligence services if they are to matter. He argues that electoral success normally requires holding strong beliefs or convincing the electorate that beliefs held are strong and sound, and therefore asks: how likely is it [] for those who are politically successful to learn from intelligence once in office that these beliefs are unfounded? (23). Based on the American example, he explains that the norm is that presidents pursued policies based on their predispositions, preexisting beliefs, and often their politics (17). Ethical principles are entrenched in human psychology, and therefore need to take into account the cognitive psychology theory of the core beliefs (2). They exist in equal influence with intelligence in the mind of politicians: the policies and strategies developed and recommended by managers of Americas national security reflected to a substantial degree the intelligence about both allies and enemies that they received from their sources, even if that intelligence was buffered by ideology, racial bias, cultural norms, and

Fugazza 30 associated phenomena (2). As Immerman reports, part of the job of intelligence services is to tell the emperor he has no clothes (3). He is critical of the influence of intelligence services: what drove their policies were beliefs that translated into dogma, not intelligence that is almost never conclusive (22). Yet, he recognizes that Intelligence need not disconfirm a predisposition or preexisting belief in order to matter. Confirming or reinforcing evidence is no less valuable than that which disconfirms or disproves (5-6). There is clearly a need for intelligence services, though emphasis should be put on the lawmakers to acknowledge their usefulness and remain critical in their use of the information they receive from them, but also of their biases and preconceptions.

The Evil Nature of Intelligence Services If there is a need for the necessary evil of intelligence services, there also ought to be restrictions on their reach. Ethical guidelines ought to be imposed on the intelligence services, but need to take into account the nature of the services inherent to the functions and roles they fill. Pfaff and Tiel explain that effective espionage requires intelligence officers to deceive, incite, and coerce in ways not acceptable for members of the general public (1). Janine Krieber paints a portrait of the relationship between the State and the intelligence services based on an almost pathological dependence, as a love/hate relationship: les hommes qui exercent le pouvoir sont donc insatiables de renseignements, autant sur l'ennemi extrieur que sur celui qui se terre l'intrieur des frontires. Le droit de tout savoir sur tous semble presque, au dsespoir des dfenseurs des liberts, faire partie de la lgitimit qui fonde l'tat moderne. Un service de renseignement bien organis et efficace est, de tous les services gouvernementaux, la perle, l'enfant chri du politique, en

Fugazza 31 mme temps qu'un repoussoir, le btard qu'on est prompt renier (37). For her, intelligence services are founded on contradictions. En dmocratie parlementaire, la relation du politique au renseignement est ambigu. Parce que l'activit secrte reste un espace ncessairement soustrait la transparence dmocratique, elle est, par nature, inacceptable. Parce qu'instrument de protection de la souverainet, du rgime et des institutions, elle est indispensable la survie de cette dmocratie dont elle est la ngation. Beau dilemme (37). She believes that les contraintes tiennent une contradiction irrconciliable entre le secret d'tat et la dmocratie, comprise comme sanction populaire, rgulire et obligatoire, de l'activit politique; dpendante donc es liberts d'expression et surtout d'information (38). After all, son succs maximal serait donc qu'aucune menace pse sur qui que ce soit; du mme souffle, le service perd sa raison d'tre (39). Contradiction difficile dpasser indeed (39). Loch K. Johnson echoes this conflicting description, arguing that bureaucracies inevitably strive to advance their own interests, especially when they are less accountable to the public (19). As shadowy figures operating outside the law or conventions of war, spies are in some ways the ultimate agents of national interest (19), yet these shadows, essential to the efficiency of spies, are easy to see as threats to democracy. Krieber describes this as a mist, and le brouillard devient presque total dans le monde de la prvention du crime politique. L'appareil juridicolgislatif ne suffit plus et laisse elle-mme, l'organisation de renseignement aura tendance exagrer son rle, multiplier les cibles, bref, voir partout des ennemis (45). She even wonders s'il est possible de concevoir un service de renseignement vraiment au dessus de tout soupon (46). Johnson seems to predict Kriebers fears, but undermines them as occasional: human rights activists and other champions of democracy have

Fugazza 32 understandably balked at the excesses that have occasionally characterized intelligence activities, whether assassination plots, coups, bribery, the spreading of propaganda, or the lack of accountability (25). While l'espion sur le terrain, l'indicateur infiltr ont pour seul mtier le mensonge. Solidarit l'intrieur et mfiance tout azimut, mme face aux pouvoirs publics qui devraient contrler leurs activits, les services secrets sont passs matres dans l'art de la dissimulation (Krieber, 59), it is also true that spying, then, can be a vital support to democracy (Johnson, 25). They would agree on one thing: it can also have just the opposite effect if a regime fails to maintain a system of accountability over its secret agencies (Johnson, 25). How can a regime maintain a system of accountability, however, if cette manie de la protection contre la plus petite fuite s'exerce non seulement face l'tranger, ce qui va de soi, mais aussi vis--vis des hommes politiques (Krieber, 60)? Le projet, maintes fois exprim, de dmocratisation du renseignement se heurte de fortes contraintes du milieu (39). En effet, toute institution charge de surveiller l'ordre public, que ce soit par le renseignement ou la rpression, est profondment conservatrice. [] Les individus plongs dans ce monde o ce qui est comme avant est ce qu'il y a de meilleur ne peuvent comprendre une volont dlibre de changement. Ils ne peuvent admettre qu'un tre humain qui se bat pour que les choses changent soit un humain normal. La tentation est alors grande de jeter la faute sur ces trangers qui ne sont pas comme nous. La scurit extrieure sera donc lie troitement aux perceptions de la menace intrieure (Krieber, 49). The fact remains that dans un monde htrogne o les idologies s'affrontent, la frontire est tnue entre l'influence trangre et les aspirations lgitimes d'un peuple au changement (Kriber, 48). After all, although just about every major intelligence service

Fugazza 33 shrank in size after the Cold War, most have eagerly embraced the "new threats" mantra as a strategic imperative (Johnson, 18). Until recently, the intelligence services of every nation enjoyed immunity from close review by outside overseers: The philosophy was that, by necessity, secret agencies had to be divorced from society (Johnson, 25). This philosophy is shifting, but its effects are still felt within the intelligence community. Though the CSIS Act was a step in the right direction, it still represents a change that the intelligence community is by nature opposed to. Officials can difficultly enforce accountability in the intelligence services if the services themselves are not ready to embrace this principle as guiding their actions. As Johnson recognizes, ultimately, in a democracy, the viability of an effective secret service relies on public respect. Oversight by elected representatives provides an important link between the people and the hidden side of government and helps to guard against the misuse of secret power (26). What would then be enough to regain public respect? It is time to flesh out the ethical principles that should guide both the intelligence services and their watchdogs.

Different Ethical Avenues: The Many Facets of Improvement The review of the Canadian Security Intelligence Service Act allowed me to outline four avenues to be considered in establishing ethical guidelines for intelligence services. First, to maintain through the law standards of accountability within and around the Service. Second, to classify clearly the targets of the intelligence services and codify proper conduct for each category. Third, to lay out punishments for misconduct, or to criminalize

Fugazza 34 non-ethical acts and behaviours. Fourth, to appeal to greater principles of ethics, be they God or the social contract. Before anything else, it needs to be said that accountability has recently taken a major hit under the current Conservative government. Andrew Mitrovica recently published in The Star that if Canadians are to have any confidence that CSIS is abiding by the law and its policies, then we need men and woman like [the Inspector General] to be able to do their jobs without fear or favour. Instead, Ottawa appears to be suggesting that the IGs responsibilities will be handed to the Security Intelligence Review Committee (SIRC). This supposed cost-saving solution betrays a profound and instructive misunderstanding of SIRCs responsibilities. In its familiar stealth-like fashion, Stephen Harpers Conservative government shuttered the office of the Inspector General (IG) over Canadas spy service, CSIS, Mitrovica critiques. He also notes that to date, the Prime Minister has not found the time to appoint a new chair [of the SIRC], rendering the review agency essentially rudderless. SIRC has a relatively minuscule budget of $2.2 million and few staff. Its unlikely that it will be given any more money or resources to exercise any new responsibilities. He concludes that this is what constitutes accountability over Canadas spy service today, [] from a government that made a seemingly solemn pledge to make accountability a guiding governing principle. What a dangerous farce. Accountability is best served by the provisions set fourth in the present act, if applied both in spirit and in letters. All the external controls provided for by the CSIS Act play a significant role. Adequate funding is to be given to all the watchdogs created by the Act, and their offices maintained.

Fugazza 35 If accountability is re-established, as it should be, there is still room for improvements. First, lets examine proposed classifications of targets. It involved two classifications: the source of the information and the type of information collected, either open, or hidden or clandestine; and the type of target, ranked according to their involvement in the intelligence community. There is a debate in the intelligence community about the merit of open versus hidden sources. Pfaff and Tiel stress that the ethics of intelligence concerns not only who is targeted as a potential source, but also the kind of information sought (5). The least harmful investigation technique is the aggregation of open sources, and should be preconized above all other methods of investigation by the intelligence services. Loch K. Johnson found that during the Cold War, about 85 percent of the information contained in espionage reports came from the public domain. Today, in light of the greater openness of governments around the world, that figure is more like 90 to 95 percent (22). Janine Krieber arrives to the same conclusion: le renseignement c'est donc plus que l'ide premire qu'on se fait de l'espionnage. Tout un rseau travaille rassembler l'information et la traiter. Le matriel est construit en grande partie, dans la mesure o on peut en juger de l'extrieur, partir de sources ouvertes (42). Indeed, the effective intelligence analyst starts trying to answer questions with an exhaustive examination of open sources-a much less expensive method of detection (Johnson, 24). The system seems to have integrated open sources quite well. Why would there be anything to fix there? There is indeed nothing to fix their. Open sources are the first source of information for intelligence services. However, sometimes information that is openly available proves insufficient to answer an intelligence question (Johnson, 22). Open reporting is often better for the long-term interpretation of political

Fugazza 36 events, but too often, however, analysts set aside open sources in favor of the more beguiling and abundant (if frequently less reliable) secret information that pours in from agents and spy machines (Johnson, 24). They do serve a purpose: intelligence agencies perform especially well on topics that open reporting sources have trouble tracking, notably the precise whereabouts of foreign military forces, the activities of terrorist groups, the machinations of international criminals, and events and personalities in closed societies (Johnson, 24). If open sources are to be favoured, it remains that the open and clandestine sources each [reveal] pieces of the [] jigsaw puzzle; when joined together, the picture [becomes] much clearer (Johnson, 24). Open sources are clearly preferable, but what should guide the collection of clandestine information, as it is often necessary as well? After all, the intelligence services must cast a wide net sometimes directed at people and nations who do not and never will represent any kind of threat in order to assess and prevent threats to security (Pfaff & Tiel, 5-6). Thus, preliminary intelligence gathering must be permissible against persons who may turn out to be wholly innocent of possessing any vital information (Pfaff & Tiel, 6). Pfaff and Tiel argue that intelligence agencies must possess a means to determine who are the likely sources of critical information beyond the obvious candidates like foreign military personnel, foreign intelligence officers, foreign government personnel, etc. (6). The ethical criteria they follow in determining the level of potential targets is the degree of consent to participate in the world of national secrecy on all levels of a countrys selfdefense structures together with the quality of information possessed proportionately permit increasingly invasive means of attempting to acquire that information by foreign powers (6). They classify targets in five categories: ordinary citizens not possessing

Fugazza 37 information (6), people possessing information without being aware of its importance (6), aware individuals not aware of their surveillance (7), potential double-agents, who are aware individuals aware of their surveillance and willing to betray (8), and intelligence professionals unwilling to betray (9). I disagree with their classification, because it ignores the spying conducted on your own citizens. I instead propose the following large categories of targets: citizen civilians, foreign civilians, citizen agents, and foreign agents. Pfaff and Tiel argue that acting morally does not necessarily mean states must give up obtaining critical information, but it does mean they may have to give up certain ways of obtaining it, even if that means intelligence officers must take greater risks (Pfaff & Tiel, 14). I share this conclusion. They also believe that they may only target those who have voluntarily entered the game and avoid involving people who may be useful, but who have not, by any choice they have made, involved themselves. When it is necessary to involve innocents, they must observe the limitations imposed by the doctrine of double effect (Pfaff & Tiel, 14). I also share this belief, but disagree with their analysis that by functioning as citizens of a foreign power, the average citizen renders himself vulnerable to those elements of intelligence-gathering necessary to fulfil [sic] the goal of preliminary intelligence gathering: identifying the real sources of information, hence why I separate foreign civilians and agents (Pfaff & Tiel, 6). I hold that minimum ethical considerations for citizen civilians are needed to ensure the respect from the public towards the Service if it is to function efficiently, and that foreign citizens should also be guaranteed minimum rights, to avoid reciprocal dehumanization of our own civilians. As such, I apply their argument that any kind of conduct in intelligence-gathering that results in self-defeat, in the de facto

Fugazza 38 cessation of respect for the other partys (and derivatively, my sides) free agency, is likewise irrational relative to the ethics of intelligence (Pfaff & Tiel, 5). The CSIS Act also opened the door to the punishment of certain acts or behaviours. I do not see this as effective, holding the belief that punishment is neither constructive nor appropriate, but see this opening as an opportunity to classify acts. If certain acts are punishable, then they are bad. However, that also means that certain acts could be good, and rewarded. I would tie in the oaths included in the Act, and call this category the moral imperatives. Here, Pfaff and Tiel again provide useful initial guidance: It might be useful to stipulate a preliminary set of distinctions to avoid confusion later. We will employ the terms lie, steal, adultery, and murder as moral violation terms per se. We will treat moral violations as unexceptionable and their permissible equivalents as non-moral actions. So, murder is always wrong (moral term), while killing is not (non-moral term). Adultery is always wrong (moral term), while sex is not always wrong (nonmoral term). Theft or stealing is always wrong (moral terms), while appropriation is not always wrong (non-moral term). Lying is always wrong (moral term), while deliberate falsehood or deception is not always wrong (non-moral terms). Ethicists of war and intelligence do themselves a service by avoiding the impression that they really think that it is permissible to murder people in wartime. Admitting this makes it very difficult to identify atrocities as the murders that they really are. (11) Indeed, similar acts are tainted by the intention behind them and context around them. The exercise of legitimate authority as an intelligence service does excuse certain behaviours, but the slippery slope of seeing oneself above moral laws is easy to fall into. However, no one outside of the secretive world of intelligence could potentially imagine the various details that would go into providing a comprehensive list of reprehensible and encouraged acts. I will therefore limit myself to saying that due adhesion to a code of conduct to be drafted by the legislators, the Service and the watchdogs is to be encouraged

Fugazza 39 through rewards, and punishments be limited and follow legal principles otherwise generally accepted. This guideline would deserve work in a stand alone research, and will hopefully be written and implemented in the future, but it is not my place given my limited expertise to pretend knowing what detailed principles should be included.

A Glimmer of Hope in the Shadowy World of Intelligence The nature of intelligence services themselves seems to oppose the idea of scrutiny and accountability. However, such scrutiny and accountability is necessary if the public is to approve and tolerate the existence of the intelligence services, which do provide an often necessary service. As such, lawmakers ought to find a balance that will serve everyones interests. The Canadian Security Intelligence Service Act was a step in the right direction, and planted the seeds for ethical guidelines to be drafted. If accountability is maintained through the offices of the various watchdogs, and its agents adhere to higher than average moral and ethical standards, as they swore to do under oath, then there is hope for the CSIS.

Conclusion As we have seen, there remains much to be done before the Canadian intelligence services become ethical. The historical evolution of these services has lead to an increasingly more adequate reality, both in the organizations and the legislation. Yet, there remains a risk for relapse into abuse and unethical behaviours. As Pfaff and Tiel recognize, with the possibility of such events in the future, intelligence professionals feel considerable moral pressure to accomplish their missions. This means that taking into

Fugazza 40 account ethical considerations that seem to undermine an intelligence officers effectiveness will not always be morally compelling (2). I hope to have reasonably demonstrated that ethical considerations, on the contrary, can only enhance the efficiency of the work of the intelligence services while contributing to protecting our rights and freedoms. I also hope to have reasonably demonstrated that these ethical considerations can be based on both the historical and legal reality of Canada, as well as the intrinsic nature of intelligence services.

Fugazza 41 Works Cited Canada. (1981). Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report: Freedom and Security under the Law. Ottawa: Public Works and Government Services Canada. (Commissioner: Mr. Justice D.C. McDonald) [As quoted by Krieber, J.] Canada. (1982). Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, c. 11. Ottawa: Public Works and Government Services Canada. Canada. (1985). Access to Information Act. R.S.C., 1985, c. A-1. Ottawa: Public Works and Government Services Canada. Canada. (1985). Canadian Security Intelligence Service Act. R.S.C., 1985, c. C-23. Ottawa: Public Works and Government Services Canada. Canada. (1985). Privacy Act. R.S.C., 1985, c. P-21. Ottawa: Public Works and Government Services Canada. Canada. (2000). Personal Information Protection and Electronic Documents Act. S.C. 2000, c. 5. Ottawa: Public Works and Government Services Canada. Canada. (2001). Bill C-36: An Act to Amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and Other Acts, and to Enact Measures Respecting the Registration of Charities, in Order to Combat Terrorism. 37th Parliament, 1st Session, 2001. Ottawa: Public Works and Government Services Canada. Edwards, J. LL. J. (1985). The Canadian Security Intelligence Act 1984--A Canadian appraisal. Oxford Journal of Legal Studies , 5(1). 143-153. Great Britain. (1783). Royal Proclamation, 1763. Capitulations and Extracts of Treaties Relating to Canada; With His Majesty's Proclamation of 1763, establishing the Government of Quebec. 339. Great Britain. (1174). Quebec Act, 1774. 31. Immerman, R. H. (2008). Intelligence and strategy: Historicizing psychology, policy, and politics. Diplomatic History, 32(1), 1-23. Johnson, L. K. (2000). Spies. Foreign Policy, 120, 18-26. Kealey, G. S. (1988). The Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Public Archives of Canada, and Access to Information: A curious tale. Athabasca University Press. Labour / Le Travail, 199-226.

Fugazza 42 Krieber, J. (1988). La dmocratie du secret : le contrle des activits de renseignement au Canada. Politique, 13, 37-62. Library and Archives Canada. Dominion Police. Retrieved April 27, 2012. <http://www.collectionscanada.gc.ca/genealogy/022-913.004-e.html> Mitrovica, A. (2012). CSIS freed from final shreds of oversight. The Star. April 30. Pfaff, T., & Tiel, J. R. (2004). The ethics of espionage. Journal Of Military Ethics, 3(1), 115. Security Intelligence Review Committee (2005). Reflections: Twenty Years of Independent External Review of Security Intelligence in Canada. Ottawa: Public Works and Government Services Canada.