It has been an interesting few months. A quick recap. In October I discovered the existence of a Canadian state secret, a secret wiretapping program that was run by the RCMP during the Cold War called PICNIC. The program monitored people deemed disloyal by the government or who were suspected of disloyalty and it was carried out by RCMP Commissioners issuing wiretapping orders under s. 11 of Canada’s Official Secrets Act (a search warrant section of the Act) to Bell Canada (main phone company in Canada). The program was an attempt to continue in peacetime what the government had already been secretly doing during the Korean war using an emergency order called P.C. 3486 which the government refused to confirm the existence of when I asked for it. These revelations made national headlines in Canada in December and you can read about it and read the press stories Here.
So today, I’m happy to reveal that I have acquired P.C. 3486, the secret emergency Order that led to the creation of the PICNIC wiretapping program. It was released to me by the Privy Council Office (PCO) over the holidays. They contacted me on December 16, 2016 one day after the wiretapping story made national headlines. It finally showed up (regular mail) on January 3rd. It tells us something about Access to Information in Canada when a historian needs to go to the national media to help get a historical document of significance released. I’m optimistic that the attention will lead to changes in the future.
Now what about this Order? What can we glean from it? A few things of importance. First, section 2. Note that the wording of this section bears a striking resemblance to the Official Secrets Act s. 16 which was added to the Criminal Code in the 1970s to legalize wiretapping. Why does that matter? Because we see a similar section in the National Defense Act today. The section I refer to in particular is 273.65 (1). There are obvious differences but I think what we have in section 2 of this order is an early version of this modern-day section which still permits the Minister to write an order for a wiretap involving a Canadian without judicial oversight.
Where this order gets particularly unsettling is in section 6 and on. Section 6 reads:
- Nothing in any Act of the Parliament of Canada or of a legislature or in any enactment made thereunder or in any other law shall be deemed to limit or affect the operation of this Order.
- Notwithstanding any Act of the Parliament of Canada or of a legislature or any enactment made thereunder or any other law, no person is liable in civil or criminal proceedings by reason only that he complies with this Order or an order made under this Order.
The powers in this section are as broad as any I’ve ever read. No law in Canada is able to affect this Order (which was secret too by the way) and section two made individuals immune from prosecution for anything they did as long as they were trying to carry out the order (wiretapping). The remaining sections made revealing wiretapping orders a crime, and made carrying out wiretapping mandatory if you were asked (phone company worker, officer etc). Also of interest is that the Clerk retained the information, ensuring it would never leave the government’s possession.
But we’re left with more questions after this. Why did the government need these exceptional powers? What needed to be done to carry out orders? Where are the records about the creation of this Order and discussions that went into its creation? Surely they would have had to discuss if an Order could overrule a federal statute (it can’t as far as I’m aware). The PM at the time said this was a requirement of NATO, and remember the letter from Peter Dwyer in the PICNIC documents mentioning the US and UK secretly doing wiretapping, where are the documents about these international collaborations? How many secret Orders or laws did Canada pass and where are they? Also interesting to consider, if this Order was meant to continue, what would that have meant for section 6 and 7? Were they still expected to carry on with PICNIC and how? Espionage was added to the Treason section in the Criminal Code during this period and sabotage was added to the Code too. Was this an attempt to extend the criminalizing of revealing the surveillance or the tampering with it? It’s a question we’ll never know the answer to I suspect. Why was the Order also presented to a Supreme Court judge instead of the Chief Justice of the Supreme Court? The Administrator of Canada is usually the Chief Justice (see first page of 3486).
Overall the program and 3486 have begun to change our understanding of this period. It is now too simple to regard the RCMP has having gone rogue and engaged in illegal activities solely on their own accord. We can see from early on that they were following the wishes of their political masters. It also alters how we understand wiretapping in this period. We previously thought of wiretapping as something done on an individual basis, such as a bug being planted here or there and mass surveillance we associate with post 9/11. We knew wiretapping had occurred in the Cold War but this was a larger program designed to target many people at once. It now appears that wiretapping could be done on a large scale in this early period and it was the start of mass surveillance in Canada. We can see that mass surveillance programs have been going on for a long time and with no court oversight. When the public became aware of these programs with the Snowden Affair, the public didn’t know how far behind the eight ball it was on the topic. Some form of it had been going on for at least 65 years.
It also reveals the accelerated formation of a secret state within the state, one that functions outside of Parliament and the gaze of the public and courts. Canada was also not alone in these actions. Where are the documents in places like the U.S. and U.K. which had also been doing similar things? It’s also unsettling to learn that the government was secretly using a law for a different purpose, in this case the Official Secrets Act. The Act contained an “official secret” that only the government, Bell, and the RCMP knew about. The public saw one law, but it was secretly being used in another way. We also still don’t know how long the program went on for and how large it became.
I am pleased that the PCO released the Order to me because it is a document of historical significance to Canadians and I hope that some positive changes arise from this historical moment. It’s time for this material to all come out. I wouldn’t be surprised if Canada’s Cold War era adversaries know more about our surveillance history than Canadians. More work remains.
For now this research on P.C. 3486 and PICNIC has been accepted for publication and will be published later this year in the Canadian Historical Review. I will shortly begin compiling everything I have on PICNIC into a database that I will regularly contribute to and make the contents available for everyone to download. In the meantime, download and read 3486 yourself and let me know what you think. Let’s get a discussion going in the comments.
Download P.C. 3486 Here