An Introduction:

‘Agent Provocateur’ what does this mean exactly?  No, not the lingerie brand.  Obviously it relates, somehow, to police deviance.  This is a relatively obscure term used to describe a certain type of crime. An agent provocateur is created when an undercover agent has moved from a passive involvement in crime to an active involvement. This means that such an individual might (and as often is the case) not be a police officer.  The individual could be any number of things, from a police officer working undercover, to an informant who is paid or blackmailed, to a member of The Canadian Security Intelligence Agency (CSIS) — which is not a policing agency, and is not in fact required to enforce Canadian law.

Typically, an agent provocateur is a police officer that encourages others to commit crime in order for fellow police officers to arrest said guilty parties.  These encouragements can vary depending on circumstance. They could be crimes of themselves.  And the encouragements enacted by the police officer universally stray in to that legal gray area known as entrapment – whether the act of encouraging itself is a crime or not.

A little context is, perhaps, in order.

Grant Bristow and Operation Governor:

When we speak of agents provocateur, it is important to note that agents provocateur are not a new phenomenon in Canadian legal history.

Historically, we also have the case of Grant Bristow, a former CSIS agent who worked with the Canadian chapter of the Aryan Nations.  Unfortunately, the only comprehensive resource on Grant Bristow comes from Wikipedia.  Although we do have fellow blogger, Ezra Levant‘s commentary on the matter, as well as Bristow’s interview with The Walrus to draw on. Less user-friendly is a SIRC report written in 1994 investigating CSIS and Bristow’s role in the Heritage Front Affair.

Regardless, in this case the Wiki article seems to be quite succinct on the subject of Grant Bristow according to my subsequent research.
Grant Bristow
Grant Bristow was an informant employed by CSIS who worked closely with the eventual leader of the Canadian Aryan Nations front, Wolfgang Droege in the ’80s. He has spoken to the fact that his ties with Droege allowed him to prevent various horrific acts of violence, including bombings and riots. However, further investigation has revealed that his placement as Droege’s right hand man may have been what allowed the organization to continue its operations when Droege assumed leadership. The purpose of Bristow’s infiltration was to identify the financial supporters of the Canadian Chapter of Aryan Nations. However, it was upon the impending arrest of Droege (on unrelated charges of assault) and Bristow’s subsequent departure of Aryan Nations in March 1994, that the Front disbanded.  Bristow was forced to step down, because if he had not, he would have become the de facto leader of the chapter.

In 1994, Toronto Sun reporter Bill Dunphy released an expose on Operation Governor; sadly this news article is not available on the newspaper’s website.  Without a copy, what can be said about it is this: the article negatively exposed CSIS’s role in the Heritage Front/Operation Governor Affair and ousted Grant Bristow as the agent in question.

In September 2004, Bristow sat down with the Walrus and narrated his own perspective of the operation.

Bob Lambert:

Robert Lambert

Dr. Robert Lambert is currently the co-director of the European Muslim Research Centre at the University of Exeter. He also lectures at the Centre of the Study of Terrorism and Political Violence at the University of St. Andrews. He was a former officer employed by the London Metropolitan Police from 1980-2008. He is the author of Countering Al Qaeda in London: Police and Muslims in Partnerships. He was inducted as a Member to the Most Excellent Order of the British Empire in 2008, for his work as a police officer.

Under the false identity “Bob Robinson,” Lambert infiltrated various environmental, animal rights, and anti-racist activist groups. I bring this case up not as a discussion of agents provocateur, but to highlight a similar issue found in the Kennedy case below: Lambert instigated an 18 month relationship with a London Greenpeace activist in an attempt to gain credibility in his undercover role. While police chiefs claim that undercover officers are expressly forbidden from engaging in sexual relations with activists, other undercover officers have come forward to say that sex is most definitely used as a tool to gain trust.

Although Lambert has never been accused of being an agent provocateur, he currently is under investigation by the Metropolitan Police in regards to whether or not he was prosecuted under his assumed identity, while undercover.

Robert Lambert

Montebello:

The Montebello Incident involved the Sûreté du Quebec using three undercover officers to infiltrate the anti-Security and Prosperity Partnership (SPP) of North America protests. The SPP was an open dialogue between Canada, America, and Mexico with the purpose of enhancing trade, sharing intelligence, cooperation, environmental protection, and economic stability between the three nations. The SPP was meant to exist alongside institutions such as the North American Free Trade Agreement. The SPP was cancelled in August 2009.

In the above video, peaceful demonstrators are protesting the SPP at the North American leaders’ summit in Montebello, Quebec. The above video shows Dave Coles (president of the Communications, Energy and Paper Workers Union) ordering three masked men, who were later revealed as undercover SdQ officers, to leave. In August 2007, the SdQ admitted to its involvement.

Informants:

To further broaden our look into agents provocateur: the issue of informants is paramount.  Mother Jones offers are clear and frank exploration of the use of informants from the American perspective in its September/October 2011 article “The Informants”.  From the Canadian perspective, we have the work of Mathilde Turcotte and his study of police informants and their handlers in Quebec, in the article “Shifts in Police-Informant Negotiations.”

From the Canadian perspective we have the following: police are required to actively seek out and maintain a network of informants without much leverage.  Typically, informants are gathered through actions such as bribes, blackmail, and “flipping.” “Flipping” is where a criminal is given the opportunity to “work off” his crimes through aiding in police investigations. Blackmail is the threat of legal action before an informant is charged. This could include issues of immigration.  However, in Canada, police have no real control over the reciprocity process.  In order to prevent the abuse of power on part of the police, outside agencies have control over the reciprocity process. This creates a unique situation where the informant could gain leverage over his handler, and make demands in return for cooperation. This also puts the handler in jeopardy during the bargaining process, because he cannot be certain that any promises he makes to an informant will be carried through.

As the informant gains more power in his relationship with his handler, it is often the case that he works outside his orders and without confirmation or approval.  An example provided by Turcotte involves an informant, while wearing a wire, attempting to entrap a contact in a drug deal.  This was outside the scope of the informant’s directions, and completely illegal — any evidence he might have gathered would have been inadmissible in court.  As a civilian agent, he was not aware that his actions constituted entrapment. Fortunately, the contact did not accept the deal; if he had, the ramifications are impossible to predict, although it could be said with certainty that the Police would not have come out of it with high public opinion.

Mother Jones also brings up the issue of wires and undercover operations, in the context of terrorist sting operations.  The concern raised here is that, while technology advances further and has allowed for virtually undetectable recording devices, there are still many incidents of key interactions not being recorded. The law enforcement side of the debate offers the excuse of “technical difficulties,” while the pragmatic approach is simply one of convenience. Certain conversations are not recorded because it is “inconvenient” for the agency that they are on record.

Mark Kennedy:

Mark Kennedy

Mark Kennedy is a former London Metropolitan police officer who worked undercover for seven years, between 2003 and 2010, infiltrating various activist groups across Europe. Most recently, he was involved in the case of 20 activists convicted of conspiracy to commit aggravated trespass at the Ratcliff-on-Soar Power Station. However, this conviction was overturned on Tuesday, July 19, 2011. Three appeal court judges ruled that a grave miscarriage of justice had occurred when audio evidence Kennedy had collected during the activists’ meetings was not disclosed by prosecution. The audio evidence showed Kennedy “was involved in activities which went much further than the authorization he was given, and appeared to show him as an enthusiastic supporter of the proposed occupation of the power station and, arguably, an agent provocateur.”

Kennedy’s involvement in the planned occupation of the Power Station was not passive. He recruited, drove reconnaissance, and offered financial backing. In total, 114 individuals were arrested when they gathered for a meeting in April 2009. When Kennedy’s involvement in the group as an undercover officer was exposed, he faced harsh denouncement from the activists he had infiltrated, who had considered him a close friend and confident. They express feelings of violation and betrayal. Kennedy also faces allegations that he had used sex as a means to gain trust and information while under cover.

In response to this controversy, Kennedy claims that “he was mishandled by senior officers and has been hung out to dry.” Interesting, in that this is a technique of neutralization. In the field of sociology, we would describe this as shifting blame to a higher power – in this case Kennedy’s superiors. Although it is important to qualify that what he has to say is quite logical. And not unexpected when, often, police institutions seek to single out the blame and distance the institution itself from corruption.
http://c.brightcove.com/services/viewer/federated_f9?isVid=1
Seven inquiries have been launched in regards to Kennedy’s infiltration and the prosecution of the activists.  In total, of the 114 individuals arrested, none have been convicted.

Analysis:

Undercover officers – what do they mean for police and police deviance?  Maurice Punch (2009), in his book Police Corruption: Deviance, accountability, and reform in policing, tells us time and again to look not at the “bad apples,” but the “bad barrels” and “bad orchards” (p. 48), meaning: look at the situation, circumstance, and environment surrounding police that might lead them to corruption. Undercover officers work with, more often than not, criminals; to put it plainly, an officer is expected to infiltrate suspected criminal groups with the intent of gathering evidence (we hope) against these criminals that can be used to bring them to justice.  It is most definitely a dirty job. Getting ‘street cred’ alone usually requires some sort of criminal act.  This common theme of “credibility” or “trust” or “information” is found in the cases of Bristow, Lambert, Kennedy, and Mother Jones’s “The Informants.” In the cases of Kennedy and Lambert, we are further introduced into the idea of sexual encounters as a point of leverage. Morals are pushed and boundaries are reformed. It is natural to assume that somewhere along the line ‘the end justifies the means.’

Gary T. Marx asks us to explore the origins and motives of informants, what they do in radical groups, and factors that enable their transformation into agents provocateur (n.d.).

This leads us first to look our cases of undercover officers as informants, identify some of the motives and concerns that might have lead them to become agents provocateurs.

Bristow’s case is interesting because, as an informant working for CSIS, he is in a different position than the others, who were actual police officers. Bristow had no overarching mandate to uphold the law. And he was tasked with uncovering the financial supporters of Aryan Nations. In his quest to do so he developed a strong relationship with Wolfgang Droege. The maintenance of that relationship required Bristow to act the part of a supporter of the white supremacist cause.  This was an “ends justify the means” situation. Or we could call it a type of Nobel Cause or Dirty Harry corruption.  Maurice Punch describes these types of corruption as specific types of police deviance, however in this case we can apply them to Bristow.  Bristow did not believe in the cause of white supremacy, yet he assumed the guise of such in his undercover role.

The SdQ undercover officer’s roles in the Montebello incident are most definitely Nobel Cause or Dirty Harry corruption. However, as SdQ is a police agency, with a legal mandate to uphold Canada’s law, we have the further issue of Accountability.  Attempting to provoke or incite violence for whatever purpose is illegal. In some cases it could be considered entrapment.  However, it is important to note that Entrapment is only a defense at law; it is not in itself illegal. (Robichaud’s Criminal Defence Legislation blog offers a clearly defined explanation of entrapment if you are so interested.)  The SdQ’s actions at Montebello neatly fall into the definitions of entrapment, although in this case the protesters resisted incitement.  Although no violence occurred, why were the police not held accountable for their actions? If Droege had been prosecuted for his involvement with the Aryan Nations Front, would he have been able to plead entrapment? The role of the agent provocateur is a convoluted one.

In the study of agents provocateur and their roles in undercover operations, the issue of accountability continues to raise its head. There is a certain “legal gray area” that clouds the use of informants and the use of police undercover agents. We can identify some of the motives of agents provocateur, chiefly the types of corruption Maurice Punch labels as Noble Cause, or Dirty Harry corruption.  We cannot, however identify the solution to agents provocateur, because there is so little investigation into the use of them, and there is no transparent accountability structure in place.  CSIS informants hide behind the veil of “National Security.”

Further, what are the ramifications of the agent provocateur? As eluded to above, and as found conclusively in the case of Mark Kennedy, the identification of an agent provocateur can, and will, lead to acquittal.  So what then, makes an individual decide to jeopardize any possible legal action by inciting crime? In Bristow’s case, his purpose was not to arrest Droege – or anyone for that matter. He was tasked with identifying certain individuals and he had no interest in criminal charges.  We see a similar theme in Lambert’s and Kennedy’s situations – they were tasked with gathering information, as well. Is there a distinction between “information gathering” and “nailing the bad guy for a crime”? The literature on police deviance would suggest not.  Mathilde’s and Mother Jones’s articles both allude to the situation of the informant as key to the creation of the agent provocateur.

To look at the cases of Lambert and Kennedy again: I bring them up together because they share similar themes. While Lambert’s case was not one of the agent provocateur (he was an undercover police officer and is currently under speculation for false testimony, not inciting crime), both he and Kennedy were deep undercover agents who operated for years. They created intense interpersonal relationships with the people they were tasked to observe. And they both faced harsh criticism for they duality. They are also both former police officers. Under Peel’s principles that “the police are the public and the public are the police,” we have a concern. The controversy these two individuals are involved in seriously affects the relationship between the public and the police.

Ultimately, the damage the agent provocateur does, to the public and the agency to which he or she belongs, seems to outweigh any benefit. And yet, still these instances occur. What is so very tempting in tempting others into crime?

References:

Marx, G. (n.d.). “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” American Journal of Sociology 80(2): 402-442.

Punch, Maurice. (2009). Police Corruption: Deviance, accountability, and reform in policing. Portland, Oregon: Willan Publishing.

Turcotte, Mathilde. (2008). Shifts in police-informant negotiations. Global Crime, 9(4), 291-305. doi: 10.1080/17440570802543508.

And all the electronic resources cited here-above.

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Comments
  1. meritar says:

    The Mathilde Turcotte article explores informants in Quebec, specifically identifying the issue of quotas and the police/informant interaction being governed by an board, with the financial control being outside the police officer’s hands. This often leads to informants gaining control over their police handlers.

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