The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue. 

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.