Spy Vs. Spy

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

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

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

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

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

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

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