And on the Twelfth Day of Christmas, our government gave to us…a whole whack of speeches, studies, reports, policy announcements in national security. In this episode we start plowing through them. Today, we talk about CSIS Director David Vigneault’s Toronto speech, https://www.canada.ca/en/security-intelligence-service/news/2018/12/remarks-by-director-david-vigneault-at-the-economic-club-of-canada.html. We also walk through some of the things we drew out of the CSE’s Canadian Centre for Cyber Security first cyber security threat assessment, https://cyber.gc.ca/en/guidance/national-cyber-threat-assessment-2018. Finally, we decided that while we’re on cyber, we’d go Down Under, for a first impression of the new Australian lawful access law, designed to compel some sort of solution to the communications encryption issue and the “Going Dark” dilemma.
First, let’s make clear, Stephanie is responsible for the title of today’s episode. But yes, it’s the Huawei special. We do a deep dive into the extradition proceedings at play now in Vancouver, brought against the CFO of Huawei for some sort of alleged US sanctions busting. We bring in the big guns: Alan Kashdan, an export controls, trade and sanctions law expert from Hughes Hubbard & Reed LLP in Washington DC, walks through what might be at issue with the US criminal investigation sparking the extradition process. And then Rob Currie from Dalhousie’s Schulich School of Law guides us through the, yes, very political extradition process. (Extradition is the most political legal process we’re likely to ever talk about on this show). Thanks to both Alan and Rob on becoming INTREPID alums.
Sound the legal geekery klaxon! Craig and Stephanie are burning both ends of the candle trying to stay up with Canadian national security developments. Like batters in a batting cage, they swing away at three new cases implicating either CSIS warrants or police “production orders”. And they throw in a Canada Evidence Act decision by the Federal Court updating the Canadian approach to disclosure in court cases of intelligence over which a foreign state claims “originator control”. This is the nitty gritty of national security law practice. If you get through the whole thing without yawning, let Stephanie know.
Well, the first report of the National Security and Intelligence Committee of Parliamentarians is out. It’s on the politically contentious issue of “how did a person with a serious Canadian criminal record of political violence get into a diplomatic reception during the PM’s Indian visit” earlier this year. And assorted other issues, including whether there was foreign interference and whether the National Security and Intelligence Advisor should have briefed the media on the latter. Stephanie and Craig agree that (1) the report exists and (2) it is fifty pages long. That’s about it. Proving why we will never do a live recording, we were able to edit out about 10 minutes of “yes”, “no”, and “what about para X”, and “but there is also para Y”. This redacted version of the podcast preserves, however, our essential differences. Also, Carvin is an easy grader (can you tell who handles the tech and posting?)
As promised, Stephanie and Craig circle back to the question of foreign interference, elections and the new electoral law, bill C-76, with Craig’s uOttawa law school colleague, Michael Pal. We get into the weeds on weaknesses in the current system of electoral regulation, and where foreign actors may exercise influence. We then walk through changes proposed in C-76, designed to minimize any foreign footprint in Canadian elections. Michael also lays out his wish list of further changes he believes will keep Canadian federal elections free and fair. (We will be doing a least one other podcast on election law and foreign influence in the led up to the 2019 foreign election, with a special INTREPID podsight, to be announced)
Stephanie and Craig are back with a brief update on bill C-59 and its trajectory through the Senate. We then update listeners on the appeal of a case we discussed in Ep 48, concerning whether CSIS may conduct foreign intelligence intercepts of some sort outside of Canada. Then we get to our headline topic: security screening and clearances, with an eye to the National Security and Intelligence Committee of Parliamentarians (NSICoP). This discussion is sparked by the alleged extortion attempt against Tony Clement, a NSICoP member, over photos communicated via electronic means. There is no allegation this attempted crime was aimed at NSICoP information. But this development has sparked reporting and discussion of how NSICoP members are security screened. The government is holding that information close to chest, but we walk through how we think it should work, based on the NSICoP Act, the Security of Information Act and the Government Standard on Security Screening. We also debate whether screening of parliamentarians to Top Secret should be as thorough as it is for executive officials.
Stephanie and Craig return to their re-review of bill C-59, as it wends its way through Senate. Today, they address the CSIS Act changes — and bring back Bob from Mordor and his merry band of plotters to play a cameo role. First up: criminal law immunity for certain approved conduct that would otherwise constitute an offence, undertaken by CSIS employees or sources in the collection of intelligence. Then: CSIS’s powers of threat reduction were a controversial addition in bill C-51 (2015), and are renovated by C-59 in way that makes them more likely to be constitutional and certainly less unbounded. Finally: C-59 creates a new system for CSIS to collect, retain and query bulk datasets, an issue that has been controversial in the past (because CSIS was doing it when it should not have been). The C-59 dataset regime places this intelligence practice on a legal footing. The result is complicated — but it is complicated for a reason. Your INTREPID team does their best to walk through the “why” and the “what” of all these powers.
The headlines have kept Craig and Stephanie on their toes. In this episode, they catch up with things that have caught their eye in the world of national security law and policy. On deck, among other things: The Ford Government’s “Terrorist Activities Sanctions Act” (probably best called the “Populist Chest-Beating Act which Will Do the Opposite of What is Intended”); progress on bill C-76 (the amendments of the Canada Elections Act that, among other things, focuses on election security); the question of whether Canada should follow the US in charging state-actors for state-sponsored hacking; and a bevy of cyber-policy developments. This is a full episode with a treat for everyone (and a very old, stale Joe Louis we found in the attic for the Ford government’s first foray into national security-related law). (We’ve corrected a premature upload with a missing edit — sorry for the glitch in the first minute or so for those who downloaded this within 2 minutes of posting! Our technical team has been fired.)
Stephanie and Craig were very pleased to welcome Toronto Star journalist Alex Boutilier to the podcast. Alex has been reporting in the national security space for a number of years — and most recently on right-wing extremism in Canada. His stories can be found here: https://www.thestar.com/authors.boutilier_alex.html. Alex sat down with the INTREPID team to talk about these recent reports, and to walk through the right-wing extremism phenomenon in Canada. He also provided insight into the challenges and virtues of reporting on national security matters in Canada.
So Stephanie and Craig don’t have a Patreon fundraising account or commercial sponsors. We are, in fact, part of Big Academia. Our day jobs involve teaching in two academic programs we adore — the University of Ottawa, Faculty of Law (Common Law Section) and the Norman Paterson School of International Affairs, Carleton University. And those two institutions offer a shared JD/MA degree. So let us tell you about it, because some of you may be interested in becoming students in it. Everyone else, well, your Big Academia-sponsored crack team at INTREPID is back in the trenches with a new guest and new topic next week.
Craig was joined by Solomon Friedman, a supremely talented criminal defence lawyer who works on, among other things, terrorism cases. Defence lawyers play a vital role in our system of justice — and ultimately in the way we do national security in a democratic society. Join Solomon to understand how it all works. Solomon and Craig walk through the foreign fighter issue, and especially the revelations stemming from Stewart Bell (Global)’s reporting on Canadian detainees in Kurdish custody who have admitted to affiliations (and sometimes more) with the Islamic State (ISIS). Could these people be prosecuted in Canada? What could they be charged with? What evidence could be used against them? Why might CSIS and RCMP be reluctant to interview these people while in Kurdish custody? Should ministers involve themselves in the process, as some opposition politicians seem to want? What would happen if they did? (Hint: nothing good). How would the confessions recorded by Global hold up in court? Should Stewart and Amarnath Amarasingam (the terrorism expert who helped Stewart) expect a knock on the door, seeking their records from this Syrian trip? What about the social media footprint of the foreign fighters — could those things support a conviction? And as a bonus, we also talk about the Vice Admiral Norman case, and the defence’s recent effort to extract Cabinet documents. Short version: this is a game of disclosure chicken, and if the defence wins its application, it could lead to the end of this case if the government refuses more disclosure.
Stephanie and Craig were joined Thursday by Thomas Juneau, professor at the Graduate School of Public and International Affairs at the University of Ottawa and from 2003-2014 a strategic analyst at the Department of National Defence, covering the Middle East. This was a big week of news from that region. We cover two things: first we discuss the disappearance and seeming murder of Saudi journalist Jamal Khashoggi in the Saudi consulate in Turkey. Thomas walks through what’s going on with Saudi foreign policy, and what this latest incident means. Then, we shift gears about 30 minutes into the podcast and talk about the breaking news reported by Stewart Bell at Global. All week Stewart has been reporting on Canadian former ISIS affiliates detained by Kurdish forces in Syria. This is a big new development in the continuing debate about “what to do about foreign fighters”. In this episode, we talk about whether Canada has to take these people back and who in the Canadian government should (and should not) be interviewing them. In our next episode, we’ll bring in another guest with lots of criminal law experience and do a deep dive on the question of prosecuting returning foreign fighters. (Apologies for the HVAC background noise. Our chief technician, Craig, had a bit of a mic fail.)
Ok, it is getting hard to keep up. So Stephanie and Craig are working on a couple of update podcasts. In this one, we go over last week’s astonishing spy caper, involving coordinated responses by European and North American authorities to more coordinated Russian hacking/espionage activities. We look at the Canadian angle, which reportedly included an attempted cyber penetration of the World Anti-Doping Agency (WADA), headquartered in Montreal. We also discuss the bizarre story out of Bloomberg about an apparent Chinese hardware spy hack of critical US computer systems, and the Globe and Mail’s story of a puzzling meeting held by US intelligence officials criticizing Canada’s capacity to protect against Chinese…tech hacks. And a final word on a Toronto Star report about CSE briefing provinces on electoral interference. Craig and Stephanie are back very soon with INTREPID friends on other major topics in the world of national security law and policy.
MGen (ret) Blaise Cathcart, Canada’s former Judge Advocate General, is back on INTREPID. He walks through how the “military justice system” works for the Canadian Armed Forces. This discussion is sparked by a recent Court Martial Appeal Court decision that casts doubt on the workings of the courts-martial system, when it comes to Criminal Code offences. You can find that decision, Beaudry, here: https://www.canlii.org/en/ca/cmac/doc/2018/2018cmac4/2018cmac4.html
Stephanie and Craig are joined by Leah West in the latest installment of INTRPID C-59 “storytime”. In this episode, Bob from Mordor (the star from Ep 47) is back with another devious plot. That plot implicates CSE’s foreign intelligence mandate. It spirals to a situation in which CSE might wish to use its proposed “active cyber” mandate. And then the Canadian Armed forces join the Gondor Defence Forces, and with CSE’s assistance, take on Mordor. Can they? The purpose of this podcast is to walk though CSE’s powers, pre C-59 and post C-59 and surface the policy and legal dilemmas being addressed — and ask questions about checks and balances. And now you can debate the fate of Middle Earth and whether CSE should save it with your family over turkey this Thanksgiving weekend.
Stephanie and Craig couldn’t record the week of September 24, so they put together a discussion of recent headlines in Canadian national security law and policy (admittedly, broadly defined), as of last week. They provide: a quick status update on the Abdelrazik and Peshdary court cases; talk about Facebook’s latest news integrity initiative; and the latest preoccupations with Chinese technology companies and Canada’s 5G plans. Then they wander into more political terrain (where they have no skill sets whatsoever, so caveat emptor): first, the recent “floor crossing” in the House of Commons and the Conservative shadow portfolio of “Global Security; and second, the Max Bernier “People’s Party” and how it might change their earlier speculation about foreign influence issues and the 2019 election. This podcast is an intermission between the more detailed “storytelling” approach to exploring the implications of Bill C-59, now being debated in the Senate. They began that in Episode 51 and will tell a new story in Ep 53 next week.
Stephanie and Craig are back with two topics: piracy (for reasons we explain) and then our main topic, the “promotion and advocacy of terrorism offences in general” crime created by bill C-51. It’s up for modification in bill C-59, and as that bill is debated in Senate, expect all sorts of claims about whether the modifications are good, bad or indifferent. Some of these claims will be partisan, so we try to be clinical. We walk through a series of hypothetical “speech acts” and examine how each could trigger legal consequences, culminating in a discussion of what (if any) gap the C-51 speech crime fills. And also we talk about the related issue of terrorism propaganda. Warning: Our hypotheticals must, by necessity, be examples of bad speech. THEY ARE NOT OUR VIEWS. If listeners are interested in a more detailed discussion of terrorism speech crimes, the paper Craig mentions (coauthored with Kent Roach) is here: https://albertalawreview.com/index.php/ALR/article/view/280
Stephanie and Craig find the national security in everything. After a brief update on the Abdelrazik case and a discussion of the controversial question of whether the trial will involve “closed material proceedings” (in which the plaintiff is excluded) and an update on a recent Ottawa terrorism peace bond that wasn’t, they pick up the thread on citizenship and national security. This discussion is motivated by the Vavilov case — involving the sons of Russian spies who assumed Canadian identities now fighting for Canadian citizenship. We’ve talked about this saga before, but this week, the case has been tied into a broader public debate about “birthright citizenship”. We try to unpack the different legal and policy issues associated with the way Canada gives citizenship. And then, to round out the episode: we couldn’t resist jumping on the “notwithstanding clause” (s. 33 of the Charter of Rights and Freedoms) bandwagon. But we address the question: does s.33 mean a Parliament could actually enact a redo of the infamous War Measures Act? Lots more we could have said on all these issues. And probably will in the future.
Stephanie and Craig are back for season 2 of "A Podcast Called INTREPID". In this first episode of the new season, we catch up on developments in August, and then look forward to things that will be happening in national security law and policy world this Fall. We begin by discussing the Jeffrey Delisle case -- the espionage case from earlier in this decade, now back in the news because Mr Delisle was released on parole in August. We talk about the nature of his spying, the investigation into it, the criminal law issues, and the policy matters they raise (including, of course, intelligence to evidence, and the supplemental "graymail" issue of espionage trials). We then talk briefly about the Five Eyes ministerial statement, "Statement of Principles on Access to Evidence and Encryption", released in August. We think this is a bit of a 'nothingburger' in terms of furthering the debate on encryption and the "going dark" issue. And of course, we can't start off the new season without talking about August's Saudi Arabia meltdown. We offer thoughts this on what this event might say about Canada's foreign intelligence needs. We end the podcast talking about things we'll be watching this Fall: developments with bill C-76 (election law and security) and C-59 (the major national security law overhaul); the first National Security and Intelligence Committee of Parliamentarians report (out soon); and two trials (Abdelrazik civil lawsuit against Canada and the Norman criminal trial). Thanks for joining us again for INTREPID and we hope to keep earning your listening time.
In this final podcast of INTREPID's season 1, Stephanie and Craig catch up on some recent developments in the national security space. Cabinet has been shuffled, and a new portfolio – Minister of Border Security and Organized Crime Reduction – added. Lots of people have views about the politics of the shuffle, but we’re your source for the geeky machinery of government discussion. Next up, a public opinion survey commissioned by CSIS reveals most people can’t specifically identify CSIS but have faith in it. We get into some of the weeds – there are important aspects of the survey. But our big topics are these: a walk through the recently-issued annual report of the Communications Security Establishment commissioner, CSE’s review body. What can we glean from it about some of the issues and challenges CSE confronts in its activities? And our really big development: a new Federal Court decision on CSIS’s investigative powers, this time in relation to its “section 16” “foreign intelligence” mandate. Does the decision produce a “gap” in CSIS’s intelligence gathering capacities? We do some “INTREPID Speculative Storytime” to leap over the heavy redactions in this case and address this question. And then to end, we talk about real stories for the lake or beach: books that we recommend or which are on our own summer reading list. And that’s a wrap for season 1. Our plan is to be back with season 2 in September. In the meantime, we are genuinely gratified by reviews on iTunes and elsewhere that suggest we’re not completely wasting our time. And since we’re sponsored exclusively by good karma, please spread the word about INTREPID!