The case of convicted Canadian spy Sub-Lt. Jeffrey Delisle has been the focus of great attention by the Canadian media for the last few days, due to the fact that Delisle's sentencing hearing was held over the course of January 31 - February 1. Delisle is a military intelligence officer who was based right here in Halifax, NS, from where he sold military data and intelligence to an old Cold War bugbear, the Russian government (quite an enthusiastic facilitator of espionage these days, it would seem).
The case has been going on for some time, and all of the major media outlets have collected their reportage on the matter (see CBC and CTV, e.g.). In October 2012, Delisle pleaded guilty to one count of breach of trust and two counts of passing information to a foreign entity. These charges were laid not under our conventional criminal law (i.e. the Criminal Code) but under the Security of Information Act, an updated version of the old Official Secrets Act, which was enacted as part of the omnibus terrorism law amendments after 9/11.
Some fairly stiff sentences are available under the Act, including life imprisonment, but at the sentencing hearing the Crown opted to request twenty years for the passing of information charges and an additional five years (to be served consecutively) for the breach of trust. The defence requested a sentence of 8-9 years.
The gap between the two positions on sentence is significant, as it reflects quite well the difficulty of the sentencing conundrum which faces Chief Judge Patrick Curran of the Provincial Court of Nova Scotia. There have never been any charges, let alone any convictions, under the Act. As a result, all parties (and the court) are singing from a blank hymn book in terms of any sentencing precedent. Canadian sentencing law does not have formal guidelines or checklists, but for typical offences it is easy enough to get within the appropriate range; the sentence imposed for a break, enter & theft for a repeat offender, for example, would be easy enough to come up with. But that is decidedly not the case here. The Crown led an earlier Canadian case under different legislation and some British cases, but none seemed particularly appropriate to this case.
Accordingly, all parties here have to fall back on the usual principles which underpin Canadian sentencing law. The Crown has, appropriately, emphasized the seriousness of the offence -- not exactly a hard task in this particular case, since Sub-Lt. Delisle had high security clearance and access to information which may have compromised not only Canada's national security but that of our NATO allies as well. Even in the abstract, these were serious crimes. The Crown is seeking a stiff sentence in the interest of applying the principle of deterrence (since it is clear that, as a society, we would want to de-motivate anyone who was inclined to take the course of action that Delisle did), and the principle of denunciation, i.e. denouncing the offence, which in some ways represents an attack on the very foundations of Canada's civil order.
The latter will be in keeping with the overall tenor of the public reaction to Delisle's crimes, which has struck me as slightly on the bloodthirsty side. On the other hand, in a country whose military has shed a great deal of blood in the name of international security, perhaps it is not surprising to see a strong reaction to crimes reasonably described as traitorous. The defence has chosen to emphasize the fact that Delisle was apparently despondent and at a difficult time in his life when he entered into the arrangement with Russian security forces. It is entirely appropriate to plead the personal circumstances of the offender at the sentencing stage, though it is difficult to imagine this particular line of argument will carry much weight.
What might carry more weight, however, was the defence attack on the Crown's witnesses who appeared at the sentencing hearing, all high-ranking Canadian military and security personnel. The defence's cross-examination of these witnesses was clearly designed to highlight a potential weakness of the Crown's argument on sentencing, which is the abstraction of the hard facts. By this, I mean that the Crown witnesses appear to have testified that Delisle's actions harmed Canada's national security and that of our allies, but fairly candidly admitted that it is very difficult to ascertain the scope of the damage. There was a suggestion that an informed interpreter of some of the information which is known to have been passed might be able to ascertain the identities of certain CSIS operatives, but (based on the media reports) that seemed to be the most concrete example of what was otherwise fairly speculative evidence. Indeed, that was the tenor of the testimony of the only defence witness, Prof. Wesley Wark, who emphasized that it would be very difficult to tell what damage was done.
The sentencing phase of an ordinary criminal case is usually shaped by the Crown proving facts and the defence proving mitigating circumstances, which all go towards helping the judge craft an appropriate sentence. This is not an ordinary case. Here, the Crown may* be treading close to the line of asking Judge Curran to essentially assume that damage was caused (called in evidence law "taking judicial notice"), or to impose a harsh sentence on the basis that damage probably was caused, and could go on being caused, though we may never know for sure. This is not how it is supposed to work; judicial outcomes are meant to be based on proven facts.
Though this is speculation on my part, one wonders that the Crown did not have more evidence to present about the amount of harm Delisle's actions caused. Presumably there have been many back channel discussions with allies, and there have been suggestions from security experts that Canada's status among its NATO allies has been weakened. There are mechanisms by which evidence can remain confidential in national security cases, but since the Crown did not choose to avail itself of these, then the case may indeed be as speculative as the defence argued. If so, it may be the government's undoing in terms of getting the 25-year sentence it is seeking. To be sure, the nature of this crime in and of itself merits a significant prison sentence, but Judge Curran may find it difficult to impose it in a partial vacuum.
One factor that has been discussed in the reporting is a desire on the part of the government to show Canada's military and security allies that we take this crime seriously and are prepared to apply a commensurate level of gravitas. That is an entirely appropriate political goal, though I am not sure if it belongs in the sentencing phase. Arguably, the government of Canada has done its job by criminalizing this kind of espionage, investigating it and prosecuting it when it happened. In my view, showing our allies we are serious and trying to repair diplomatic damage should not be part of the sentencing judge's consideration; his job is to ascertain the facts and apply Canadian sentencing law to them, albeit in an unusual context. I note in passing that, if anything reflects badly on Canada's seriousness here, it may be the rather poor security arrangements which allowed Delisle easily to smuggle the information out in the first place.
The sentencing decision has been reserved until February 8, and will no doubt attract a great deal of media attention. I do not envy Judge Curran the job he currently faces. Watch this space.
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* I say "may" because I was not at the sentencing hearing and did not read the Crown or defence briefs; I am reacting to what I was able to ascertain from media reports.
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