“This is the most open and transparent government in Canadian history.”
—JOHN BAIRD1
If John Baird, a man known for his sense of humour, is right when he says the Harper government set the Canadian record for openness, it’s still damnation by faint praise. Canada’s governments have always been stingy with facts. Information is power. And Canadians, as a deferential lot, have always been willing to let the government sit on its voluminous files, as long as they, themselves, did not have an axe to grind with Ottawa, one of the provinces or their community government. In the United States, even with the clampdowns after 9/11 and the paranoia of the Obama administration, it’s been much easier to get information from their governments than it is in Canada. One of the big differences is that government information in the States is seen by Americans as the property of the people. Here, in a country where, through most of its history, the people have been subjects, information has always belonged to a government over which the people felt little ownership.
And now, under Harper, information is seen as something dangerous that must be contained, or stored like nuclear waste. Those who seek it are treated with fear and contempt, even when the material that they want is in no way embarrassing to the government.
In theory, all people should have a right to see government information, as long as the material is not dangerous to the state and doesn’t undermine the privacy of individuals. How else can voters make informed choices and citizens deal, with some measure of equality, with governments?
The Access to Information Act was passed by Pierre Trudeau’s government in 1982. That was just a little over a year before Trudeau retired and sixteen years after Lyndon Johnson had signed the U.S. Freedom of Information Act into law. Through the 1970s, according to Ken Rubin, one of the country’s leading experts on the topic, the Trudeau government “was the centre for evasion and secrecy” and was “married to the Official Secrets Act.”2 That law was used against reporters, including Peter Worthington and Bob MacDonald of the Toronto Sun in the 1970s, when they exposed wrongdoing in the RCMP. Even after the freedom of information law was passed, bureaucrats and elected cabinet ministers were allowed to hang on to all kinds of information, stall and charge very high research and copying fees. In many ways, it codified the secrecy in official Ottawa, with the Ottawa Citizen saying the new law, “with its exemptions and with its spirit undermined, could have the reverse effect to what the public thought was intended. Instead of loosening government information … [it] may have merely codified the ways in which information can be suppressed.”3 Not many Canadians use the system: in a busy year, perhaps forty thousand people file information requests. Journalists, researchers, political parties, lobbyists and academics make up the bulk of users.
No government really likes freedom of information laws. They exist to provide some kind of structure. Back in the 1970s, reporters and curious citizens could write to a government department or show up at the front counter of a town hall and ask to see documents created on the public’s dime. Sometimes, they wanted to know what the government had on them. Other times, a person might want to know who owned a particular piece of property so they could make the owner an offer to buy it. At all three levels, most governments had no set policy on who could see what.
Freedom of information laws were supposed to be a way to set out a legal process for people to ask for public documents. And, if the bureaucracy turned them down, there were supposed to be ways for people to appeal. In theory, documents that weren’t controversial—that had always been available—would still be easy to get. More controversial stuff would have to go through a vetting and, maybe, an appeals system. But, instead, Access to Information has become a shield that allows public servants and politicians to delay or deny all documents, making the appeal process the punishment.
A new bureaucracy was created, both to handle the applications and to staff the appeal process. The federal government created the job of information commissioner to advocate for openness and to point out situations where bureaucrats and politicians had thwarted curious members of the public, of whom journalists made up a part. The Chrétien Liberals were notorious for keeping secrets. Retired journalist John Grace, who served as information commissioner under Jean Chrétien, banged his head against the Liddle Guy’s regime, observing in his final report in 1998 that freedom of information had turned out to be anything but:
If some of its architect’s fine hopes were unrealistic and unrealized, the fault lies not in the stars, not in the law: It must be placed at the feet of governments and public servants who have chosen to whine about the rigors of access rather than embrace its goals; chosen not to trust the public with information which taxes have paid for. The insult is equal only to the intellectual arrogance of it all. The commitment, by word and deed, to the principle of accountability through transparency has been too often faltering and weak-kneed.
Former MP John Reid, Grace’s successor as commissioner, made it clear that he wasn’t going to be pushed around. He warned early in his mandate that he had “zero tolerance” for bureaucrats who were late handing over documents. He would use the full power of his office against them. But two years later, he was forced to concede that his powers caused little fear among public servants: “A full counter-attack [is] in progress” by the “stubborn persistence of a culture of secrecy in Ottawa” that “distorts the thinking of the citizenry, giving rise to unfounded conspiracy theories and an unnecessary high level of mistrust of government,” he said in one of his annual reports. This “love of secrecy is so deeply entrenched that extraordinary steps are taken by public servants to maintain it even in the face of a legislated right of access.”
He described how the act had changed the way the government operates: “The attitude has truly become: ‘Why write it when you can speak it? Why speak it when you can nod? Why nod when you can wink?’” The opposition Tories had lots of fun using this stuff against the Chrétien and Martin Liberals. They did not want the system to be used on them.
IN 2006, right after it took power, Harper’s government set up a separate computer database and Internet server to protect ministers’ documents from Access to Information applications. Responses to requests for information are put through the Centre. Frequent requesters, especially those asking for sensitive information, are profiled. Requests from journalists and opposition parties are usually stalled, sometimes by political staffers in ministers’ offices.4
From the beginning, the workings of the system created by the information law have been under attack by the staffs of prime ministers and by bureaucrats. Some of the kind of meddling done by Harper went on during Jean Chrétiens term—and long before that. Chrétien imposed his will on Communication Canada, which was responsible for administering access requests. The department showed its obedience to Chrétiens Prime Minister’s Office by trying to thwart people who asked for information on the crooked federal sponsorship advertising system in Quebec.
Under Harper, the Privy Council Office replaced Communications Canada as the vetting centre for access requests. Cabinet ministers’ offices meddle, too. In many cases, a request for information is a red flag to message spinners in the Harper government that previously ignored material is valuable or dangerous, and they get to work to try to make sure it’s kept under wraps. In February 2009, Information Commissioner Robert Marleau filed a report to Parliament saying the Conservatives are “addicted” to secrecy. Marleau, the former clerk of the House of Commons, found “deficiencies” in information management, poor consultation, lousy training and poor executive leadership. Time limits were routinely extended. People requesting information were threatened with hefty fees for “preparation time” that bureaucrats claimed they needed to find and organize public documents. “The President of the Treasury Board, as the designated minister under the Act, must provide the political leadership to change a transparency adverse culture,” Marleau reported.5
He found that bureaucrats put “amber lighting” on selected information requests—ones that came from journalists, parliamentarians and immigration lawyers. The Canadian Newspaper Association found that “more than one in four of all requests designated for special handling comes from media requesters, even though fewer than one in six requests overall come from the media. In fact, media requests are about twice as likely to get the tougher treatment as requests overall.”6
The next information commissioner of Canada found three Conservative staffers were involved in “systemic interference” with Access to Information requests. Suzanne Legault, the commissioner, wanted to bring in the RCMP, but the Public Works Department, which was the target of the Tory interference, said no. The staffers worked as political aides to the minister of public works and tried to prevent information from the department from being released. But Public Works officials said it would be a waste of time to call in the RCMP, since, in at least one similar case, they had done the same kind of investigation and the police would not lay charges. In fact, the RCMP is notoriously, perhaps deliberately, inept when it comes to investigating anything with political overtones.
“Through the investigation that is the subject of this report, I found a pattern of improper involvement by a small group of ministerial staff members at [Public Works] in responding to requests under the Access to Information Act,” Legault wrote in her 2014 annual report. “These staffers inserted themselves in various ways into a process that was designed to be carried out in an objective manner by public servants. Consequently, the rights conferred under the Act were compromised.” The Access to Information and Protection of Privacy Act prohibits people to “direct, propose, counsel or cause any person” to conceal a government record, with a maximum penalty of $10,000 and two years in jail. No one has yet been convicted under the section.7
Sometimes, the whole thing becomes completely ridiculous. In September 2011, a very important person visited Ottawa. He was met at the airport by someone. But, under the privacy rules in the Access to Information law, government documents showing the identity of the visitor and just about everything to do with his trip are officially not available to the public. There’s nothing particularly sinister about the trip itself. British Prime Minister David Cameron was the visitor. He was met at the Ottawa airport by Defence Minister Peter MacKay. The visit was a goodwill call. But the law protects Cameron’s privacy to the point that almost every detail of his trip was censored out of material released by the Privy Council Office. And those censored documents were released after bureaucrats gave the people who applied for the material a two-year run-around.
When the papers were finally released, most of Cameron’s agenda was blacked out, even though the British prime minister was safely and securely back in London. The rule used to protect Cameron’s privacy—even though the British prime minister had never asked for the censorship—can be overridden by another part of the law that allows bureaucrats more flexibility when dealing with the records of public figures. But rather than just hand over the very mundane documents, Harper’s office, again, chose to make life difficult for people trying to see public information.
In 2012, in recognition of his skills as a hoarder of information, Harper won the Canadian Association of Journalists’ Cone of Silence Award. It’s not much of a prize, since it recognizes the most secretive government, department or publicly funded agency in Canada. “This was the overwhelming choice—while we received a few other worthy nominations, no single one outnumbered the Harper government in volume or depth,” CAJ president Hugo Rodrigues said in presenting the award at the association’s 2012 convention. “The death grip on information has long frustrated journalists in this country, but it may now be reaching a point where the public at large is not only empathetic, but shares it.” It wasn’t just journalists who felt that way. A 2012 report by the Halifax-based Centre for Law and Democracy ranked Canada 55th out of 93 developed countries for the weakness of our information laws.8
Information commissioners appointed under the Access to Information Act have complained for years about foot-dragging in the bureaucracy and a culture of secrecy in Ottawa. In 2010, Marleau warned of “inappropriate use of time extensions and the increase in time-consuming consultations among institutions.”9 The following year, Legault reported:
Over the past decade, there has been a steady decline in two important measures of access to government information. In terms of timeliness, slightly more than half of all access requests made to federal institutions are now completed within the 30-day limit set by the Access to Information Act. In terms of disclosure, fewer than one-fifth of all requests currently result in all information being released. Far from reaching the presumption of disclosure inherent in the Access to Information Act, the exercise of discretion in determining which information to disclose has been skewed toward greater protection of information. For example, the percentage of exemptions claimed for national security has increased threefold since 2002–2003.10
By 2013, departments were no less secretive. And, with budget cuts, they could now plead poverty as an excuse for foot-dragging. “One organization was so understaffed it could not acknowledge access requests until months after receiving them, and even then could not say when it would be able to provide a response,” Legault said in her annual report. “Another took an extension of more than three years for responding to an access request. Others failed to live up to commitment dates my office had negotiated for providing records to requesters on files that were already considerably overdue. Still others did not retrieve and analyze records before telling requesters they could not have access to them. A common refrain was that budgetary restraint is having a direct and adverse impact on the service institutions provide requesters.”
Departments and agencies were being merged and reorganized, and no one was in charge of handling old information requests. Complaints in 2012–2013 were up by 9 per cent over the previous year and were rising month by month. Legault warned there are “unmistakable signs of significant deterioration” in the federal Access to Information system, a gentle way of saying the wheels have pretty much fallen off. “What is required is leadership, most notably on the part of the government and the individual institutions that respond to access requests. Ministers and officials at the highest levels must regularly and vigorously promote the intent and spirit of the Access to Information Act, to foster a culture of openness in their organizations and to communicate the importance of meeting their obligations under the law.”11
Legault said fewer requests were being answered within thirty days in 2011–2012 than in the previous year, and about 15 per cent of them were answered late. Treasury Board secretary Tony Clement went to bat for the government, saying in a press release that “there has never been a time when Canadians have had so much access to government information.” Legault disputed that, countering: “I think that there’s lots of work to be done in order to be considered a transparent government.”12
SOME FORMER TORY staffers realize how bad the system has become. Guy Giorno used to be Harper’s chief of staff. Now, he’s one of the Conservative Party’s lawyers and a partner with the Ottawa office of the law firm Fasken Martineau DuMoulin LLP. Giorno often uses the Access to Information system, and he’s changed his tune about information control. Giorno told a Canadian Bar Association seminar in 2013 about being jerked around when he tried to get information out of the Mounties. The RCMP refused to acknowledge it had even received his information request. They wouldn’t give the application a file number that Giorno could use to check back on his request. When Giorno appealed his case to the information commissioner, her office said she couldn’t do anything unless Giorno could give her a file number. “This is actually outrageous. I’m all for giving the commissioner additional jurisdiction to issue orders but this idea that an institution would be able to set the limits on jurisdiction—is that a resource issue? Is that a training issue?” Giorno asked his fellow lawyers.
Giorno, in his new private sector career, also wants more access to cabinet ministers’ documents, especially after the Privy Council Office told the information commissioner not to show them to him. Harper’s government argues that the salaries of ministers’ staff, the titles and duties of ministers’ employees and a lot of other information about ministers’ offices should be exempt from the Access to Information law. Giorno wants the information commissioner to be given the power to issue legally enforceable orders.
“It’s got to be fixed … This is absolutely outrageous now,” Giorno said. “All sorts of information that nobody would ever think should be withheld from the public is simply inaccessible. It is indefensible that sort of basic material when it refers to a minister’s office should not be released.” When a reporter asked why he believed government officials were trying to hide information, he said: “Because I worked for ten years in government.”13
Reporters who try to cover national affairs are up against approximately 3,200 media relations staffers in the Ottawa bureaucracy, along with the communications staff of lobby firms, business associations and non-governmental organizations. These people often have a vested interest in killing stories and undermining the credibility of journalists. So when journalists have to deal with political staffers and bureaucrats who strive to please the Harper team, it becomes very tough for reporters to do their jobs. A few reporters have become experts on Access to Information. Others have hired professional information ferrets like Ken Rubin to dig out data. And, in extreme cases (such as The Canadian Press’s long campaign to see the police files on Tommy Douglas), journalists have gone to court.
There’s even secrecy about the rules of secrecy. In December 2013, The Canadian Press asked for a background briefing with an official from Library and Archives Canada to learn about the laws and regulations concerning the saving and deleting of government emails. People in the provincial Ontario Liberal Party had recently been criticized by the province’s privacy commissioner over the destruction of emails about the controversial decision to cancel the building of gas-powered electricity generating plants in Mississauga and Oakville. The leaders of Dalton McGuinty’s government had made that decision during the 2011 provincial election campaign.
Reporters wanted to know about the federal rules when they read a police document suggesting all of lawyer Benjamin Perrin’s emails had been destroyed after he resigned from Harper’s office. Perrin had possibly been in the loop when Prime Minister’s Office officials discussed the prospect of chief of staff Nigel Wright repaying Mike Duffy’s controversial housing expense claims. A few hours after receiving The Canadian Press’s request, Library and Archives Canada had found an expert on its staff who could brief the news agency’s reporters to ensure they got their story right. A media relations officer wrote to the expert: “Since you are a pro at doing interviews and understand the [Library and Archives] Act like no other … well, let’s just say yours was the first name to come up. Pending approval from [the Privy Council Office, the director general] has given her OK that you be the one to have this informal chat.”
But there would be no chat. After kicking the idea around among thirty-two bureaucrats, the Privy Council Office and the Department of Canadian Heritage nixed the plan to let the expert share his expertise. Rather than make sure the major print news service in this country knew what it was talking about, Library and Archives Canada was leaned on to tell The Canadian Press that the expert was “out of town.” (In the end, it turned out Perrin’s emails were, like those of the Ontario Liberal plotters, “frozen” and were not lost forever, and they were turned over to the police officers investigating the Wright-Duffy payment.)14
The Harper plumbers have also tried to plug leaks from the Department of National Defence. Military officers are notorious gripers and chatterboxes. Lt.-Gen. Marquis Hainse said the loose talk was killing the army’s credibility. “It is hurting the army, it is counter-productive, and it needs to stop,” he wrote. “I intend to pursue disciplinary action against any member of the army who is found complicit in the unauthorized release of information.”15
That memo, too, was leaked after an internal fight. The Conservatives created a new system that requires all media requests of “regional and national” importance—including those dealing with the Canadian Forces—to be cleared in advance through the Centre. Retired Gen. Lewis MacKenzie, who served with distinction as head of the Canadian peacekeeping mission in the Balkans in the 1990s and ran unsuccessfully for the House of Commons as a Conservative candidate, said the new information control system would hurt, not help, the reputation of the Canadian Forces. The government itself was likely to see trouble from it, too: “These things never seem to accomplish the goal, which is to control the flow of information … I can only say from a personal perspective that if I was in the public affairs branch, I’d be quite disappointed. Certainly at a most critical moment, when we are fighting a war, they’re doing a good job, from the CDS [Chief of the Defence Staff Rick Hillier] on down.”
Ottawa Citizen military analyst David Pugliese believed Harper’s office and senior executives in other government departments thought the Canadian Forces were getting too much positive media coverage—something that was usually not seen as a problem at the military’s downtown headquarters beside the Rideau Canal. Even worse, the military’s public affairs officers were not answerable to the prime minister’s media handlers. Most departments had already been hamstrung by the Prime Minister’s Office so that press communications had been limited to short email answers to reporter’s questions (if there was any response at all). The Department of National Defence was the last major part of the government to operate its own independent media relations shop.
Pugliese wrote that the last time the Canadian Forces had clamped down, during the 1993 Somalia affair, military officials were severely limited in what they could say to defend the military against charges that it had covered up the murder of a Somali teenager by members of the Airborne regiment. Critics were able to pound the military while its media relations staff was prevented from answering charge after charge. It was one of the worst public relations disasters that the military faced in modern times. Under Harper, the military dreaded another Somalia-style black eye.16
In early 2014, journalists found one unlikely hero in the Department of National Defence. Doug Drever, a civilian employee in the military’s public affairs division, had started his public service career in media relations under Prime Minister Brian Mulroney. In February 2014, he defied his bosses and insisted the military release the embarrassing email that was sent to soldiers by Lt.-Gen. Marquis Hainse, warning soldiers to keep quiet. Drever had been told to tell the media to try to get the email through Access to Information. He told his superiors to find someone else to do it. “Gotta stand for something once in a while,” Drever said in an email.
Within a few minutes, Drever’s bosses found someone to do their dirty work. Drever didn’t let the matter drop. “This approach is wrong,” Drever wrote to colleagues in an exchange released later under the Access to Information law. “It is in violation of the spirit of the Access to Information Act and in deference to the Hon. Ged Baldwin, father of access to information in this country, I won’t do it.” (Baldwin was a nine-term Progressive Conservative MP from Peace River, Alberta, who earned an Order of Canada for a decades-long campaign to make government more transparent.)17
IT’S HARD TO BELIEVE a change of government would make much of a difference. Already, MPs in all the parties with official standing in the House of Commons18 have tried to gag the staffers who work in their offices. In 2014, members of an all-party House of Commons committee tried to force Parliament Hill employees to sign an agreement with lifetime secrecy rules similar to the ones imposed on the public servants.
When staff of the House of Commons and the people who work in MPs’ offices began to mutiny over the proposed gag law, the Torydominated Board of Internal Economy, which handles most House of Commons employment issues, quietly backed down. The blanket lifetime ban on disclosure was replaced by a general confidentiality agreement that still contains “indefinite protection” for personal information like constituency files, along with data protected by secrecy laws and parliamentary privilege. Political information about the “employee’s employer” is confidential for five years. After that, staffers can talk to journalists, academic researchers or their friends and family.19
While you can’t find out much about them, the people who run this country’s government can learn an awful lot about you. Spies creep the Facebook pages and Twitter feeds of hundreds of thousands of Canadians. They monitor political blogs, not just to track the ranting of basement-dwellers but also to collect data on the often bizarre people who post comments underneath blog entries.
Political parties don’t have to worry much about anyone’s privacy. Colin Bennett, who teaches political science at the University of Victoria, told the Canadian Bar Association’s national convention in 2013: “Essentially, you have a bit of a wild west here in my view and I don’t think it is a situation that can be allowed to continue … There is no legal obligation for them to keep that information secure, no legal obligation for them to train employees, no legal obligation for them to give access … Political parties are not covered under PIPEDA [Personal Information Protection and Electronic Documents Act] or the Privacy Act.” Only B.C. has privacy laws that are broad enough to cover the activities of political parties.
The Conservative Party developed the Constituent Information Management System (CIMS) database, which is one of their most important campaign tools. Bennett said the system has been collecting information about voters for about a dozen years. The database is a foundation for the Conservative’s election campaigns. It tracks supporters, identifies potential fundraisers, tracks emerging issues—and identifies enemies.
“Everybody in the CIMS database has a number, from minus 15 to plus 15. If you’re plus 15, you’re on the right of the political spectrum. If you are minus 15 you are on the left of the political spectrum. You are a pinko, leftie, environmentalist, academic probably,” Bennett told the lawyers.20
Treasury Board president Tony Clement defended a $3 million government program to pay for round-the-clock surveillance of social media. The Department of Public Works hired people to monitor Facebook, Twitter, YouTube videos and other sites. They also watch for “top influencers” on blogs and chat rooms.21
“That is the whole point of social media, to engage in a dialogue with citizens,” Clement told the House of Commons. “That means better public policies in the end,” said Clement. “My handle is @TonyClementCPC, if anyone wants notes. It is not a state secret.”22 In the House of Commons, he told Charmaine Borg, one of the young Quebec NDP MPs elected in 2011, that she “is not a rookie when it comes to social media, so she would know anything posted on Facebook or Twitter is public information. In fact, most people are on Facebook or Twitter to be read, to be seen, to be part of the dialogue. We want to be there too.”23
In the name of protecting Canadians from cyberbullies and child pornographers, the Harper government brought in Bill C-13 in 2013. But critics say this cybercrime bill is a full-on assault on anything resembling online privacy rights. Ontario Privacy Commissioner Ann Cavoukian said the bill is overkill. “The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past,” Cavoukian said in a letter to the House of Commons committee that studied the bill.24 The Tories invoked the names of Rehtaeh Parsons and Amanda Todd, two teenagers who had been driven to suicide by cyberstalkers and bullies. Critics of the bill, which allows the federal government to expand its cybersnooping, included Amanda Todd’s mother, Carol, who told a parliamentary committee:
While I applaud the efforts of all of you in crafting the extortion, revenge, porn, and cyberbullying sections of Bill C-13, I am concerned about some of the other unrelated provisions that have been added to the bill in the name of Amanda, Rehtaeh, and all of the children lost to cyberbullying attacks. I don’t want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian’s personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety. We should not have to sacrifice our children’s privacy rights to make them safe from cyberbullying, sextortion and revenge pornography.25
But you don’t have to be in a database or on the Internet to be watched. The National Capital Commission, which has Foreign Affairs Minister John Baird as its political figurehead, spied on Occupy Ottawa protesters. It collected photographs of people, took down licence plate numbers, clipped newspaper stories, taped newscasts and recorded Facebook posts. In all, more than a thousand pages of staff memos were written by NCC staff about protesters who camped in one of its parks near Parliament Hill. No one was charged at the Occupy camp, which opened on October 15, 2011, with a speech by Brigitte DePape, a former Senate page who embarrassed the Tories by holding up a “STOP HARPER” sign during a speech from the throne. It lasted until frigid winter weather caused the last of the occupiers to decamp.
“Some of the crowds are anti-police,” minutes of a November 2, 2011, Ottawa City Hall conference between federal and city staff noted. “Any time there is a camera in the park, protestors are accusing.” The federal spies sniffed the air for marijuana smoke and checked out a woman who brought baskets of home-cooked food for the protesters. “She delivered 4–5 large baskets of fresh food as a donation. [Said] she was not working for any organization. She baked the food with her husband,” the snoops noted.26
New Democrat MP Dan Harris, a former information technology consultant from Scarborough, Ontario, told Parliament the surveillance was a problematic use of resources and disturbing in scope. “Keeping lists on who their friends are and who isn’t—that’s what this is all about,” Harris said in an interview with Blacklock’s Reporter. “We’re on the verge of Big Brother territory here. The more they monitor what Canadians are saying and doing online, the more that information could potentially be abused. This is taxpayers’ money that is being used to determine whether someone is popular or not,” Harris said. “Without strict rules and procedures as to what information will be gathered and what it’s going to be used for, the sky’s the limit.”
In Parliament, Harris attacked the government: “Canadians posting on social media do not expect to be monitored by their government. They imagine that perhaps the Conservatives might have better things to do than follow their tweets and Facebook posts. Social media monitoring is a problematic use of government resources. We know the Conservatives like to keep lists, so thanks to the new Twitter monitoring program, how many more Canadians are going to wind up on the Conservatives’ enemies list?”27
Outside the House of Commons, his party leader picked up on the issue. “These numbers are incredible. The very fact they put up a wall around the privacy commissioner shows that they were trying to hide this, trying to mask what they were up to,” NDP leader Thomas Mulcair told Parliament Hill reporters the day the numbers were released. “Since they’ve arrived, the Conservatives have shown a scornful lack of respect for rules regarding the rights of the public to have access to information on the government, and they’ve shown the same scornful disrespect for people’s privacy, their personal lives, their confidential information.”
The privacy commissioner said, “This information can be sensitive in nature in that it can be used to determine a person’s leanings, with whom they associate, and where they travel, among other things. What’s more, each of these pieces of information can be used to uncover further information about an individual.”28
When Liberal leader Justin Trudeau’s handlers sent out an email to supporters announcing the birth of his son at the end of February 2013, well-wishers weren’t asked for teddy bears, formula or flowers for the mom. Instead, the Liberals asked for email addresses and postal codes to feed into their database as they scrambled to catch up to the Tory organization. And when the Aga Khan visited Toronto at about the same time, the Conservatives offered, at stephenharper.ca, the prime minister’s personal political website, “exclusive access” to the Ismaili Muslim leader in return for those precious postal codes and email addresses.29
Enforcement of Canada’s fairly tame Personal Information Protection and Electronic Documents Act, passed in 2000, is so weak that privacy commissioner Jennifer Stoddart asked the government to give her some kind of power to charge and fine companies that break the law. Corporations aren’t required to disclose data breaches like the massive Target Stores credit card information heist of 2013. Harper’s government answered Stoddart’s criticism with Bill C-12, but it died in Parliament after a wave of criticism that police would be able to get information about people from the Internet and businesses without the inconvenience of a warrant, and those whose files ended up in the hands of the cops would never know the electronic search had happened.
Information about dissent in Canada gets analyzed by the Government Operations Centre, a section of the Privy Council Office, which is Harper’s personal ministry. Its job is to coordinate strategy against threats to the “national interest.” In June 2014, it effectively turned the entire federal public service into spies when it sent out a memo to all federal departments saying: “The Government Operations Centre is seeking your assistance in compiling a comprehensive listing of all known demonstrations which will occur either in your geographic area or that may touch on your mandate. We will compile this information and make this information available to our partners unless, of course, this information is not to be shared and not available on open sources.” Liberal public safety critic Wayne Easter warned, “Demonstrations, as long as they are peaceful, are part of a healthy democracy. These are the kinds of tactics you see in a police state.” The NDP’s Paul Dewar said, “This government is turning into Big Brother. This is clearly out of bounds from what GOC [Government Operations Centre] is supposed to do.”30
Michael Zehaf-Bibeau’s rampage on Parliament Hill on October 22, 2014, showed that this intelligent system is not perfect. Almost immediately, a debate began over whether the attack was truly politically motivated or if it was the work of one troubled man. The evidence points strongly to the latter, putting the attack into the same class of crime as shootings at Dawson College, Concordia University and École Polytechnique, along with Denis Lortie’s attack on the Quebec National Assembly in 1984 and Robert Crawford’s shooting rampage at the Alberta legislature in 1988. Large public buildings and powerful people are magnets for angry and delusional people. The President of the United States gets, on average, thirty death threats a day, and the Secret Service files on the people who have made those threats—a massive amount of data going back to 1865—are an important research tool for forensic psychiatrists.
Still, Harper quickly labelled Zehaf-Bibeau’s assault a “terrorist attack” on “our soil.” Very quickly, trial balloons were floated. Conservative media and blog sites began discussing possible new laws that would regulate hate speech—something the right in Canada was obviously prepared to flip-flop on if they were doing the prosecuting rather than the hating. Even more intrusive powers to spy on Canadians without warrants and search their online property were discussed. But nowhere in Harper’s words, nor in the actions of the government, was the issue of the thousands of untreated, impoverished, mentally ill people on the streets of the country’s cities. While Tories talked about Islamic terrorism, police looked for the source of Zehaf-Bibeau’s gun by questioning addicts and mentally ill people living in Ottawa’s homeless shelters. They didn’t go to mosques.
A few days after 9/11, Jean Chrétien did go to Ottawa’s largest mosque to make sure it was plain to Canadians that the government and the people of the country harboured no ill-will against Muslims. While Canada would go after actual terrorists, the Muslim community was a welcome part of Canada, Chrétien said. But after Zehaf-Bibeau—a convert whose aggressive talk got him banned from a Vancouver mosque—attacked Parliament Hill, the government was mute when it came to reassuring people. There would be no mosque trip by Stephen Harper, and the far-right fringe, both in mainstream media and on the Internet, would feel free to Muslimbash to its heart’s content.
MEANWHILE, the Harper government paid more for a new spy agency headquarters in Ottawa than has ever been spent on a government office building in this country. Even adjusting for inflation, the new headquarters of the mysterious Communications Security Establishment Canada cost more than the buildings on Parliament Hill. Over the past few years, people shopping at the strip mall at Blair and Ogilvie roads in the east end of Ottawa wondered what was going to be inside that big white building, the size of a domed stadium, that rose in the woods just across the road.
Was it a zoo? Another museum? Will it be a new National Library full of cool books and art? No. In fact, the building is the headquarters of the agency that intercepts phone calls and Internet communication for the federal government. It cost at least $1.2 billion, a third higher than the original price tag of $880 million. So, in a way, it’s only fitting that it resembles, at least in outward design, the Velodrome at the 1976 Montreal Olympics.
The 72,000-square-metre building is a public-private partnership with Plenary Group Canada, an Australian company that specializes in contracting for the construction of government buildings. In effect, it’s a ninety-storey building turned on its side. Some of its ultra-perks, like a grand fireplace, were cut from the design, but it’s still being called a spy palace. The headquarters was supposed to be finished by the end of 2014. The building is entirely open concept, with plenty of natural light. Outside, the woodlot will be landscaped with gardens, nature tails and duck ponds. It’s right next door to the Canadian Security Intelligence Service headquarters. CSIS looks for threats inside Canada. Right now, its focus is on terrorism, but it also tries to catch foreigners who steal Canadian technological and industrial secrets. It has also spied on labour unions, First Nations, university student activists, domestic communists and many other people.
CSEC is supposed to look for foreign spies and terrorists. It reports to the minister of defence, Rob Nicholson, while CSIS is, at least on paper, under the control of Public Safety Minister Steven Blaney. The new CSEC makes the corner the country’s ground zero of domestic and foreign spying and the focal point of the fantasy life of hundreds of paranoiacs. More than 1,700 staff, many of them stellar mathematicians, work for CSEC, which spends over $300 million a year. And they have a lot to do. CSEC goes through more data in a day than all of the combined transactions of Canada’s banks. It works closely with the National Security Agency, the United States’ signals interception network. The NSA is unfathomably vast, with spy satellites, a huge ground-based interception system, and an army of code-breakers based in Fort George Meade, Virginia, just outside Washington. It’s had its own troubles recently, with former employee Eric Snowden leaking thousands of embarrassing documents.
Snowden gave the Canadian Broadcasting Corporation data that showed CSEC spied on Canadians who used Wi-Fi hot spots at airports in this country. The NSA, like CSEC, breaks codes and taps phones, but it also engaged in cyberwarfare. Its most famous success was getting the Stuxnet worm into Iran’s nuclear research computer in 2009, probably by having a spy leave a flash drive in the parking lot of the Iranian lab and letting a curious employee do the rest.31 In fact, CSEC likes the NSA so much that it bought office equipment, including used encrypted telephones and fax machines, from the NSA, presumably trusting that the Americans had no taps on the phones or faxes.32
At CSEC, secrets are everything. A recruitment video on the CSEC website asks prospective agents, “Can you keep a secret?” Because, the agency says, being a math genius isn’t enough. You can’t go around blabbing about your work. In fact, for years, governments denied that CSEC existed and hid its budget in the money set aside for the Canadian Forces. Civil libertarians are worried about the Harper spy fetish. In February 2014, forty-five civil liberties and social justice organizations launched a campaign to try to convince MPs to oppose paying billions toward Canada’s online spying apparatus, part of an international campaign to curb cyber-spying. That’s not what CSEC is supposed to be for. Signals intelligence—snoops and code-breakers, in real-speak—are supposed to grab enemy communications and decipher them.33
CSEC has had its successes, though, of course, it rarely talks about them. But in 2010, John Adams, the Rhodes Scholar who headed the agency, told an interviewer: “If you were to ask the Canadian Forces if there is anyone that has saved Canadian lives in Afghanistan, they would point to us.” Canada routinely shares its spy data with other members of the Five Eyes group: Britain, the United States, New Zealand and Australia. In that world, you have to pay to play. In the early 2000s, according to WikiLeaks documents, then Prime Minister Paul Martin worried the Americans would cut us out of Five Eyes because we refused to send troops to Iraq and were not spending enough on agencies like CSEC.
The mailing address of CSEC is Box 1984, Station B, Ottawa.
The problem is, Canadians don’t know what the agency does or whether it’s been let loose on us. In 2014, the budget of CSEC almost doubled leading up to the opening of its new headquarters. The spy agency got $829 million in 2014–2015, up from about $444 million the previous year. That included a one-time payment of $300 million for work on the new headquarters, and $100 million for maintenance.34 CSEC has had a 32 per cent increase in its staff since 2006, according to payroll records.
CSEC has barred MPs from its new Ottawa headquarters. In a report to Parliament, interim privacy commissioner Chantal Bernier noted, “The right to privacy is fundamental in Canada. It is central to personal integrity. There are not sufficient official forums for the national security agencies to inform Canadians about how they operate, and how they protect privacy within their operations.” She wanted cabinet to clarify the roles of the country’s spy agencies and fix what she called an “accountability gap.” Bernier said, “To correspond to the reality of intelligence gathering, which is multifaceted, we should have the proper coordination of oversight for national security agencies’ activities.”35
So far, the agency is showing some frightening signs that it believes its work trumps Canadians’ rights, including those of its own employees. The CSEC investigated what it called “serious breaches” of its values and ethics code after a whistle-blower in the agency told executives there was some kind of problem (which the agency would not explain). CSEC reassured the public that it was not the victims of the wrongdoing, or that there was some sort of corruption connected to the construction of its new building. After the agency investigated itself, it found it had problems. But it would not tell members of Parliament what had happened when its ethics were seriously breached, though CSEC said it was improving its training and management and financial systems.36
CSEC has the ability to listen to anything that’s carried over wires and airwaves. Bell Canada owns a database of cellphone and Internet users’ private information the government often uses to collect information on Canadians. The federal government pays Bell for the information, and neither the government nor the telephone company inform people when the government dips into that pool of data. Word of the existence of the databank came out in early 2014 when the Competition Bureau released documents to Parliament showing it had used the Bell Canada Law Enforcement Database about twenty times between April 2012 and March 2013.
That was minimal compared to the Canada Border Services Agency, which said it used telecom customer data almost nineteen thousand times in 2013. That information may have come from Bell, but it’s possible most or all of the big telecommunications companies run similar databases. The border cops got a deal on the information, paying telephone and cellphone companies just three dollars for each data request. University of Ottawa law professor Michael Geist said it appears Bell—and possibly other telecoms—grants the government fairly open access to the files it keeps on its subscribers. “I realize technically they are allowed to do this under the law as long as this is part of an investigation,” Geist told reporter Paul McLeod of the Halifax Chronicle Herald. “But the notion that there is no real review of the legitimacy of the [data requests] and whether or not it’s appropriate to provide the information strikes me as simply wrong.”37
Three of the country’s big telecommunications firms admitted they gave authorities information about more than 785,000 customers in 2010. There are over thirty major telecommunications and Internet providers in the country.38
The Harper government came up with Bill C-30, the Lawful Access Act, in 2012, which makes it legal for government spies to monitor the digital activities of Canadians in real time. The law is aimed at cybercrime, but it allowed the government to force Internet service providers to hand over, without a warrant, information on any web surfing that’s done by Canadians. The bill was replaced with another law that makes the handover “voluntary,” but, since most Internet providers are owned by big cable and telecommunications companies that are regulated by the federal government, they really don’t have a lot of choice. Whether you’ve been watching Islamist videos or engaging in cybersex, chances are you’ve been spotted, tagged and downloaded.
ENEMIES OF THE STATE take all kinds of forms. Recently, Canada’s spies turned their attention on people protesting the disappearance of bees. The Global Operations Centre, a little-known spy group run by the prime minister’s staff, watched the Bee Die In, held the same day as the speech from the throne in October 2013. Agents took notes as people dressed as bees and flowers pretended to die on the front lawn of the Parliament Building, hoping to draw attention to the worldwide loss of pollinators. It was one of five protests that day that the operations centre spied on. The information on the dead bee people was shared with U.S. intelligence agents. The other protests were a First Nations Day of Action, an Idle No More protest in Ottawa, and two shale gas protests in New Brunswick.39
And, of course, there are the government’s own employees, who, by the nature of their work, have the data and the expertise to do serious damage to the Harper government. In March 2014, the federal cabinet imposed a lifelong gag order on bureaucrats and lawyers working in sensitive government departments. Most of the gagged public servants work, or have worked, in the Department of Justice and the Privy Council Office. They face up to fourteen years in prison if they ever talk about their work.
“The practical implication of this is that it puts a terrific chill on the possibility of drawing on practitioner expertise, particularly the retired practitioners, to contribute to any kind of debate on intelligence and security matters in Canada if people followed the letter of the law,” Wesley Wark, a University of Ottawa professor and one of Canada’s leading experts in national security and espionage, told a Toronto Star reporter. He said Canada needs “those voices more than ever” since 9/11 and the revelations of out-of-control spying, wiretapping and computer hacking revealed by Snowden and other whistle-blowers.
“Special operational information,” which can never be shared with the public, is loosely defined in this federal law as the identity of persons or groups approached as confidential sources by police or security agencies, Canada’s plans for military operations, the country’s methods for collecting intelligence, the target of any investigation, or the identity of spies. But it also includes “information or intelligence similar in nature” to those categories received by or relating to any foreign entity, such as the NSA.
“The security and intelligence community has certain operational requirements that need to be respected,” a government notice of the new rules said. “[This] order enables the Government of Canada to provide additional assurances to its international partners and allies that special operational information shared with Canada will be protected.” This suggests the regulation was made at least partly because of Canada’s intelligence commitments to the United States and other allies, especially in the wake of the 2013 sentencing of Sub-Lt. Jeffrey Paul Delisle, a former naval officer based in Halifax, and Ottawa, for selling state secrets to the Russians. He was given a twenty-year sentence.40
The government tabled documents in the House of Commons showing that in its first six years in office it made at least forty-four requests to website-hosting companies to take down content from the Internet and to wipe the material from Google’s search engine. Almost all of those requests were made between 2010 and 2012. The Department of National Defence made the largest number of these demands. Some seemed reasonable. The government asked Facebook to take a federal logo off of a page set up by supporters of a federal prisoner. It also tried to protect information about people who were applying for refugee status. Those files normally weren’t available to web surfers, but smart users of Google could extract them. Some other requests seemed more political. For example, Environment Canada demanded the removal of two Netelligent parody websites that spoofed the department’s own site. “I think what we are seeing is that the departments are becoming increasingly politicized,” New Democrat MP Charlie Angus said. “They are being run by the 20-some-year-olds who are the political shock troops of the prime minister.”41
Plumbers, ratfuckers, whatever they’re called in Ottawa these days, they’re always on the hunt for people who spill the government’s secrets or show signs of disloyalty. The Tories were big friends of whistle-blowers when the Liberals were in power. Now they’re treated as enemies of the state. Whistle-blowing has become so commonplace that there’s now an organization, FAIR, that gives aid and comfort to those who come forward from the ranks of the public service and from corporate offices to expose corruption and stupidity.
Still, some whistle-blowers fight on. In 2012, Department of Justice lawyer Edgar Schmidt challenged his own department in Federal Court. He had been a whistle-blower who revealed details about the guidelines used by federal lawyers to draft legislation. Schmidt, who had been writing parliamentary bills for a decade, said lawyers in the Justice Ministry knew some of these bills violated the Charter of Rights, but the government did not warn Parliament. Schmidt took his worries to the top lawyers and executives in his department. Unsatisfied with their responses, he filed a court case.
As soon as Schmidt came forward, he was suspended without pay. The government argued that Schmidt violated solicitor-client privilege. The suspended lawyer said in court, “It’s my position that solicitor-client privilege is never available to protect illegal instructions.”
“The day after the filing of this statement, bang: ‘You’re suspended,” Federal Court judge Simon Noël noted after each side made its case in Schmidt’s wrongful dismissal lawsuit. The judge said the federal government had stripped sixty-year-old Schmidt of his income and, probably more importantly for a lawyer, his good reputation. “It’s unbelievable,” Noël told the government’s lawyer. “Your client has done everything it can to kill this thing. The court doesn’t like that … We see that in different countries and we don’t like it … Canada is still a democracy.”43
The Harper government would soon show how it felt about courts that get in the way of its plans.