Richard Fadden
Richard Fadden spoke 12 times across 1 day of testimony.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Good morning again. I am a, like Ward, a lapsed lawyer. I retired a few years ago as National Security Advisor. Before then I was the Deputy of Defence, and before then, the Director of CSIS. But I spent most of my career and all of my career in the Federal Public Service. In fact, my remarks today are based on the fact that for part of my career I was in an organisation that produced intelligence, another part of my career in organisations that used intelligence. I think that's actually something that's worth thinking about a little bit. So my remarks this morning may surprise some of my colleagues, but I hope you think it's worthwhile. Having listened to testimony before the Commission, following reporting in the media, I think intelligence doesn't merit the star billing that it's getting. In the end, intelligence is information, and when we start talking about national security information we sort of have, you know, marching bands surrounding it, and it develops sort of an ethos or a quality that I don't think it entirely deserves. So I want to come back to that. So again, I think intelligence is basically information, and I think we need to remember that. So I very much hope that you will look at the definition of intelligence from the perspective of decision-makers, and not only from the perspective of collectors, lawyers, judges, and parliamentarians, because I think it gives a different construct to the whole thing. Later this morning, Professor Roach is going to ask me to take two or three minutes to talk about the more traditional view of national security, and I'll do that, but for the time being, I just want to talk about intelligence as information. And I think most decision-makers treat this -- they don't care where they get the information, they really don't. In my experience, they don't care where it comes from. As long as it's before them, it's lawful, and it makes sense they're happy. So this fixation with declaring national security intelligence as something extraordinarily special, I would argue is sometimes misplaced. Having said that, when they are given national security information, decision-makers at all levels, and I'm talking here both about Prime Minister and Ministers, and the police superintendent who is trying to manage a convoy in Lower Mandible (ph), Manitoba. And I think it's important to remember, both with respect of the Prime Minister and Cabinet, who are decision-makers, but also, everybody else in the system, when they're thinking about either invoking the Emergencies Act or collecting information, that the information comes from a whole variety of perspectives, the media, especially what you can see; policy staff; political staff; colleagues; political; professional; personal contacts. So to illustrate: is the view of a minister who happens to see something and talks about it in Cabinet, national security information if it relates to the Emergencies Act, or is a police officer on the frontline, who reports something to his inspector and that gets sent up for lying, is that national security information? Indeed, is it intelligence? And I think it's important to remember that one of the characteristics in this country of national security intelligence is when and how you can collect it is very seriously circumscribed. Professor Roach is going to talk in a few minutes, I think, about police intelligence, which is slightly different. But a lot of people think and believe that national security intelligence can be collected whenever somebody in CSIS or elsewhere believes there's a problem. That's absolutely not the case. And I think because of this, these institutions suffer a little bit in their credibility. This is not Ceaușescu's Romania where somebody just waves a hand, and you can collect anything about anyone anywhere. And I think that was one of the problems, conceivably, that developed in dealing with the road up to the invocation of the Emergencies Act. When the convoy started in British Columbia, were they a legitimate target of National Security Intelligence collection or Police Intelligence collection? I'm not entirely certain at that point. I'm being told by Professor Roach that I have a minute. So let me just say that, in the end, I want to leave with you the thought that what is intelligence, how important is it in decision making is really quite critical to doing all of this. Prime Ministers, in particular, do not decide solely on the basis of what we might characterize as national security intelligence. They have a variety of sources from everywhere and I'm not sure you can control those. But what's very important given all these sources of information is how you aggregate them, how you collect them, how you prioritise, and how you pull them together in a way that makes sense. I'll just close with the thought that given all of this information from any variety of sources, for both the Police Superintendent and the Prime Minister, it brings to bear something that we haven't talked about a great deal, which is judgment. And I think the reason we elect our political leaders is to exercise judgment. And I think when we do that, we have to give them a little bit of leeway. And I say this abstracting entirely what this current government did with respect to the Emergencies Act, so I'll stop there. Thanks very much. You're on mute.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Okay, thank you. So I’m going to be more traditional here and start talking a bit about national security intelligence and security intelligence by just listing a few of the general characteristics which apply. First, generally speaking, national security intelligence of use to politicians is to be policy neutral. It is not to advocate a particular end, either in policy or operational terms. Ideally, it’s prepared by people who don’t - - who are not involved with policy or operations. Again, ideally, it draws on all information lawfully available, secret, confidential and open source. It’s important to remember that in this country when you can collect security intelligence and how it’s severely prescribed by law, and this has an effect sometimes on whether or not information is, in fact, collected. There are three broad categories relating to, I think, the Emergencies Act that are worth thinking about: security intelligence, which is mostly what I’m talking about; foreign intelligence, which could hear a bearing if there are foreign entities involved, and police intelligence, which Professor Roach is going to talk about in a few minutes. While security intelligence relates to threats to the security of Canada as set out in the CSIS Act, I would argue that it should be broader than that. The definition in the CSIS Act relates to what CSIS can do, not what the Government of Canada or any other institution might consider to be a national security threat. There’s a difference, I think, as between what an administration -- administrative body can do and what CSIS or another collective agency can do. I think that’s fairly important. To make sort of what may seem like an odd comment, partially in response to what I know Professor West believes, there is more to the Constitution in this country than the Charter, which we seem to forget sometimes. We’re supposed to have a Constitution similar in principle to that of the United Kingdom. We’re supposed to promote peace, order and good government, and in that general context defence of the realm and public order is an executive government function that I think we need to remember even if the very narrow descriptions contained in particular statutes are relevant or not. There’s a cycle to collecting intelligence or intelligence production, and one part is particularly important. That’s the collection strategy, when do you start collecting intelligence, against whom, with what tools. You have collection, then you have analysis and contextualization and distribution, and this varies a great deal depending upon whether you’re in a crisis or not, whether it’s long, short or medium term in its orientation. But I think one of the things that’s particularly important is collection strategy or the authority to collect. As I tried to mention in my opening remarks, in this country you just can’t start collecting intelligence because you feel like it’s a good thing. I personally think CSIS constrains itself somewhat too much in terms of what it can or can’t collect, but that’s another issue. But for the purposes of this Act, remembering that all of this collection is constrained in some shape, way or fashion I think is very, very important. The other thing that’s very important, I think, is to remember that no one intelligence agency has a monopoly on correctness or truth when it’s looking at national security intelligence. The Canadian intelligence community is usually defined as CSIS, CSE, DND and the military, GAC, PCO, ITAC, FINTRAC, and a few others. All of these could have had something to bear on what was being given to political decision- makers prior to the invocation of the Emergencies Act and how they are brought together in such a way that they can -- they form a coherent whole is really important. One of the dangers of dealing with intelligence is group think because there’s a real pressure within that community to develop a consensus. There are rules which say that you can formally disagree, but that happens very, very rarely. And one of the things that I guess worried me then and worries me now is this group think phenomenon. Somebody develops a view and you don’t want to cause too much trouble and you sort of move long and, before you know it, it becomes a consensus view when, really, it shouldn’t be. And I wonder a little bit if during the lead-up to the invocation of the Emergencies Act that might not have played a little bit in the production of intelligence. So again, I was just trying to give you a bit of a general sense of what national security intelligence is and I think two important components and then I’ll close there. It is supposed to be policy neutral. You’re not supposed to use intelligence to advocate a particular position either in respect of policy or operations, and secondly, the collection strategy respecting the acquisition of this intelligence is really, really important and it varies tremendously between the organizations that I’ve listed and then the police on the other side, so I’ll stop there. Thank you.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Thanks, Ken. A couple of things. First of all, I think we have to start from the premise that Parliament has set up various national security entities for a reason. They have different priorities, they have different objectives, they have different authorities, so we should not be surprised if in the end they produce intelligence that is not exactly the same as all the others, thus arising the issue of coordination. But there's nothing inherently wrong with various entities with national security responsibilities coming up with slightly different conclusions. So I think that's the base of a lot of this. One of my hobby horses when I was still working was that national security is no longer national. I think that is beyond dispute today. Virtually any national security issue that's arisen in the last 10 years has had international components, and it has also had subnational and civil society components. So to suggest that national governments, in this case Canada, is uniquely or specially or God-given right to define and to deal with national security alone is dreaming in technicolor. They cannot do it. Civil society entities, provinces and municipalities are much closer to the people of this country than generally speaking is the federal government. So somehow, I think, we have to change the culture that while in the end the federal government may have some special responsibility for national security, they cannot do it alone, either from an international perspective, or a subnational, or a national security perspective. The coordination of security intelligence, I agree entirely with what Wesley was saying. It's fine and dandy to give the National Security Advisor the mandate to do all of this but they need staff support. She has it on the foreign intelligence side. It does not exist on the security intelligence side. One of the questions that often came up when I was still NSA was do you need a statute that puts in law your mandate to coordinate and to do all these sorts of things that everybody wants to do. I always answered no because I thought this was -- would conflict with ministerial accountability. But having said that, what's lacking in order to bring about this coordination is political will. Certainly, when I was working, I suspect it was true of Ward, but he can certainly speak to himself, we spent a lot of time getting people to do what they should have wanted to do on their own without our telling them, in terms of sharing information. And I found that in a particular crisis or particular circumstances, I had more than enough umph in my job as NSA to get people to do it, coordinate things, and to do it properly. I did not have enough umph in my job to do that systemically because there was no political will to do it. Prime Ministers have to accept, I think, that national security is more important than they traditionally do accept in this country. I mean, I started working in this area under Mr. Chrétien, who was driven screaming and yelling into having to deal with 9/11 because his priorities were social and economic. They weren't national security. Mr. Harper's were economic. They weren't national security, although he had to deal with Afghanistan. And I think it's fair to say that Mr. Trudeau became Prime Minister not expecting to have to spend a lot of time, money and effort on national security. Why is this the case? I think it's because Canadians don't feel threatened, and, generally speaking, there ain't no votes in national security. That's just a statement of fact, I think. So the question I would have for you, Commissioner, is how can you in your report convince the government that what happened with the invocation of the Emergencies Act is not likely to be unique. We're going to have future disruptive events over the course of the next few decades. They're not -- there are not going to be fewer. There will be more. Some of them will be generated inside this country, some of them will be generated outside this country. So somehow, the government, the politicians have to accept that this is important and provide their officials with the wherewithal to integrate because Ministers aren't going to do it. It's an unreasonable request to expect Ministers to do this. So I don't think there are enough coordinating resources available to do security intelligence coordination. Two last thoughts. I was told once by the Director of the CIA of the day that over 96 percent of the information his agency used was open source information. By open source, he did not mean something that was readily available, but something that, if you worked at it, you could get access to, and it wasn't secret as defined by governments. I suspect that's still true today. So coming to grips with how much this open source information, sometimes hard to get at, should form part of security intelligence and I think it's something that we need to consciously address. I can remember a circumstance, this is many, many years ago now, I'd like to think it doesn't apply today, I had a security assessment to approve, and it was relating to some specific activity in Africa. And I asked why a certain event wasn't reported because I'd seen it on television. And the analyst told me that, well, he couldn't put it in because he didn't have any intelligence confirming it. I mean, it's the sort of things that drives people to distraction, this cultural difficulty of dealing with open intelligence against, you know, a hundred years of secret intelligence, of the James Bonds of -- you know, all of the people that Wesley talked about. This is a cultural issue. You don't need legislation to deal with this, I don't think, but somehow, somebody somewhere has to pull a few levers or pop a clutch and convince people, I think, that there are real threats on the national security front in this country. We should talk about them more. I hope your report will help this because we don't talk about national security in this country and we’re not going to get the politicians to move. Last thought, which probably will not endear me with a couple of my colleagues, but I would just remind, that Parliament created the national security entities in order to promote the national security, not to provide opportunities for audit, review, and oversight; these are incidental. And sometimes I wonder that we get so taken up how we’re monitoring the collection of security intelligence and how we’re dealing with it, that we forget that the initial objective was to promote the national security. Again, that’s a cultural issue and there’s a balance to be had. But I’ll stop there. Thanks, Kent.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
You’re very diplomatic.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Thank you. I mean, there are any number of things that need to be done, and Wesley has mentioned a good number of them. I think what I would suggest in terms -- you know, the note here talks about a brief suggestion. I think that there must be recognition that intelligence comes from multiple sources. I come back to my national security being above and beneath the nation state. I think in fact, to get this to change, because it’s so culturally entrenched, it probably should be in the law. And then once that’s the case, that this is part of the definition of what security intelligence can concern itself with, there would be changes in policy and operations. And I think secondarily, there need to be clear agreements across the board in this country between the Feds, the Provinces, and Municipalities about the sharing of intelligence. I disagree a little bit with what Wesley said about the capacity of municipal police forces in dealing with intelligence. I think, for example, Montreal, Toronto, and Vancouver have just as many resources and capabilities as the federal government has, should they choose to use them. So ignoring them entirely, I think would be a mistake. The coordination issue then, beginning to share all this information, what the heck are you going to do with it? The usual response in the Federal Government is, “We’ll set up a federal coordinating capacity.” I think it should be a national coordinating capacity. One that’s not just federal, maybe even the Federal Government can finance it. But, you know, a great deal is being made about the nature of our federation, you know, and how, you know, at one level jurisdictions don’t overlap each other, and at another level, how they entirely overlap. But I think on national security, they do overlap. And having a national coordinating capacity, not an exclusively federal one, would encourage Provinces, Municipalities, and even some parts of civil society to share information. Just to finish off -- perhaps even earlier than Kent hopes -- Wesley’s view of a review -- view on a review, I take the point that we haven’t had a great review, but if we don’t consider, in this country, national security to be important, I’m not quite sure what a high-level review is going to give us. This current government and the previous one generally didn’t like reviews. And it’s a minor miracle that they finally got out the Indo-Pacific Review after, I think, three years. So putting it into review, or as the Brits used to say, “Into commission” I’m not sure it will give us what we need. I don’t have a solution, but I think if we start a review of this it’ll never come out, because -- and it won’t be useful because it will be so high level, because we tend to lowest common denominator a lot of the things that we think about on national security in this country, or they’re so politicized that you can’t have an effective dialogue. Anyway, my main point is, in terms of improving intelligence gathering and sharing, is recognize that it just doesn’t come from the federal government, and we have to have mechanisms to make sure that we can collect it from everywhere and then make sense of it on a national basis. Thank you.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Okay. I will in fact try and deal with the two of them at the same time. So in terms of changing definitions, I mean, I just remind us that the CSIS Act was brought into place in 1985, where the main preoccupation was the Cold War. Once we got over the Cold War, by and large it was terrorism. After that, we started becoming very preoccupied with cyber threats of one sort or the other, and today, we seem to be drifting into extreme violence by one group or the other. Just listing these three or four main preoccupations suggests to me that the definition set forth in 1985 clearly needs updating, but I would argue that it should be totally decoupled from the Emergencies Act. The definition of threats to the security of Canada, either renewed or not, is appropriately very precise and very narrow for a security intelligence agency. The last thing we need is an open-ended definition that would allow CSIS more flexibility than it needs. I think security intelligence agencies, with very, very extensive powers of investigation, intrusive powers of investigation, need to be constrained. I sometimes think they're already too constrained, but that's for another time. But what this has to do with the declaration of a Public Order Emergency escapes me entirely. I think the preoccupation with the various things that Kent listed, infrastructure, cyber issues, and the economy, are quite realistic preoccupations in a Public Order Emergency context, not necessarily, if at all, in the same way under the CSIS Act. So I would totally decouple the two, and I would broaden the definition being given to a Public Order Emergency, and either perhaps expand the one given to the CSIS Act slightly, but still remember that a security intelligence agency needs more constraints than a declaration of an emergency by the federal -- by the Governor in Council. Leah raised one issue that I think is important in all of this, and that's the changing view that we have to the right to privacy, you know, the reasonable expectation of privacy. I think it's changed since 1985, and it's one of the things that preoccupies a lot of people in CSIS because they worry the instant they come up against this whether the barrier or the threshold, however you want to call it, is reasonable or not. And I would say that under the CSIS Act the right to privacy is pretty important. When you're talking about a Public Order Emergency, privacy still remains important, but I think it's less important if you're really talking about, you know, significant threats to public order. And so I would include the definitions of -- I would include somewhere in the Emergencies Act a way of addressing the right to privacy, such that it is separated for that -- in the way that that right is set out in the Privacy Act and the way how it's used by other entities in the Federal Government. So I think I'll stop there and give Kent a bit more time, but I just stress my meta-issue here is the Emergencies Act should have no reference whatsoever to the CSIS Act. They're two entirely different things, and whatever motivated Parliament at the time, since 1985 a lot of things have changed, and we should recognise that. Thanks, Kent.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Just a couple of points that either I made or have not made and my colleagues have made, one of which is the importance of judgement in all of this and the invocation of the Emergencies Act. I think the government’s judgement has already been sustained by the House of Commons, and in our system of government, that’s final. I can remember being told of a story arising out of the United Kingdom Parliament, where a Home Secretary was being harassed for some reason or other by the opposition, and he finally stood up and said, “Her Majesty’s Government is preoccupied with the defence of the realm and public order. If you do not agree with how we’re dealing with it, case us out.” I’m not advocating that position here today, nor with the U.K., but there has to be something in the political judgement that is sustained or not by Parliament not to -- I actually think, despite my criticism of reviews and what not, that this Commission is very useful. But I think in the end, the political judgement of the government has been sustained, whatever you conclude on the law. The threat definition. I just wanted to add one element that we haven’t talked about, which I take from international law, which is control the borders. You know, we lost control of our border, whether we like it or not. And I just wonder if something like that shouldn’t be included in some of the definitions. Also, the element of apprehended violence, which the Prime Minister pushed a fair bit in his conversations. There’s a real difference between violence occurring and apprehension of violence, and surely one of the objectives of government, writ large, is to avoid violence, if they can. So I just have that. Next to last though, I think a lot of the issues that we’ve all talked about do not necessarily involve legislative change. They involve policy change or cultural change. And those of us who have worked in the government will know that sometimes cultural change is harder to get than is legislative change. So I would commend to you, Commissioner, the importance of emphasizing that just because the law has changed doesn’t mean things will change on the ground very quickly, if at all. And lastly, this may seem like a strange point to make, but I’m going to make it anyway. Government, by definition, is very messy. And we all try, in our different ways, to make it less messy, with definitions, and criteria, and processes, and what not. And I think, as you work your way through everything that you’ve heard, an acknowledgement that democracy requires some messiness would not necessarily be a bad thing. You can’t have a democracy with preoccupations about transparency, and rules, and different people doing different things, without some degree of messiness, which I don’t think is ever going to go away. So I think we just have to acknowledge it and try and l'encadrer, as they say in French, as much as you possibly can. So I’ll stop there. Thanks, Kent.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Can I suggest that Ward start because we're always making him last, and I don't think it's fair. (LAUGHTER)
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Thanks. I agree with what Ward was saying. The only thing I would add is the practical reality of the Prime Minister and minister listening to their political staff. I mean, public servants always say this is not a great thing because they're not subject matter experts, but inevitably, almost always the last people the ministers and prime ministers will talk to are their political staff. I tend to think that if they don't try and set themselves up as subject matter experts there's no harm in that, but what they do bring I think is the operating philosophy and values of a particular political party, and there's nothing wrong with that. I mean, if Mr. Poilievre had been prime minister as opposed to Mr. Trudeau I think some of the decisions would have been differently. There's nothing inherently wrong with that because they bring an operating construct that's different and their political staffs often push that forward. I guess lastly is I wouldn't underestimate the importance of the media in all of this. I mean, if ministers and the Prime Minister are connected to anything, it's on what the media is saying, and that has a not insignificant influence, I think. Thanks.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Well I understand, and I guess accept some of the concerns that you’ve just listed. But I have a problem with the underlying premise that provinces and municipalities are children in our system of government. I think they have challenges and difficulties, much like the Federal Government has. So if we were going down the path that I was suggesting, I think you’d need a fairly clearly articulated framework with criteria and objectives about how things were to be done. And I’m not suggesting, as well, that every municipality in Canada be instantaneously involved in this. But, you know, you start off with a pilot, the Federal Government and, I don’t know, Ontario, or in Quebec, or B.C. And then a couple of municipalities. And if it doesn’t work, you disengage. But I think one of the difficulties in the national security area generally are people are afraid to try anything new, for a whole variety of reasons. Some I would consider good; some I would consider bad. But I do think that you raise a reasonable concern, and I think that it should be taken into account if we go that route. And Mr. Elcock said in response to my comments that he wasn’t convinced that national coordination was any better than federal coordination, and he may well be right, but somehow we have to find a way of involving these other levels.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
Thank you. I don’t like the expression, not because I worked in intelligence, and as Ward said, I certainly had my fair share with my colleagues, but I would think of it more than an advance warning failure, because we -- or at least I articulated the view that government was in receipt of information from any number of sources, not just intelligence. And, seemingly, none of these sources, be they from the police or anywhere else, you know, sort of got up and rang the alarm bell. Part of this is, I think, structural; part of it is I think people just couldn’t believe this was going to happen in Canada, which is one of our problem with these issues. But also, in terms of failures, I think it’s important to distinguish between what I would characterize as operational failures; you know, something didn’t happen in the context of, you know, the public order Order, or what might be termed more strategic. I mean, did we have, as a country, a general view of where right-wing extremism was going in its opposition to the COVID mandates or not? I don’t think we did that particularly well. And for that you didn’t need the secret intelligence and the intrusive methods of collection that CSIS have to do. Any number of people cold have done this; some thinktanks could have done this better than was the case. So I think I would -- I would dilute, a bit, your question by saying; were there failures? Absolutely. I’m not sure it was exclusively intelligence; I think we could spread the blame. Also remembering that intelligence is advice; it’s not determinative, and I think sometimes people forget that. Thanks.
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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)
That’s a good point.