Canada is getting a failing grade when it comes to terrorism prosecutions

Phil Gurski · Borealis Threat and Risk Consulting · Posted: September 1, 2020

We have laws for good reasons but when it comes to terrorism it seems these laws do not serve us well

There is a great scene right at the beginning of Charles Dickens’ novel Bleak House where the court case of Jarndyce and Jarndyce which concerns a legal inheritance. By the time of the narrative outlined in the book the legal wranglings have been going on for generations. The phrase Jarndyce and Jarndyce is now synonymous with seemingly interminable legal proceedings.

We all know that courts can take their time and there are valid reasons for this. The defence must be allotted enough resources and space to properly defend its client. Cases can be complicated to adjudicate. Courts seem to be always busy and one proceeding gets backed up and postponed as others are jockeying for the same opportunity to be heard.

Clearly it is in the best interests of all of us that this be done well, fairly and in keeping with the traditions we have built over centuries. The Western legal system may be far from perfect but it is much better than what passes for ‘justice’ in many other nations (no juries, use of torture or other painful techniques, summary executions, no right to a defence, etc). I’ll take ours over theirs thank you very much!

Still trials do seem to last forever and this applies to terrorist ones as well. To wit:

  • Momin Khawaja was arrested in 2004 and only went to trial in 2008 (he was convicted of terrorism);
  • the infamous ‘Toronto 18’ were arrested in 2006 and the trials opened in 2008.

The latter case also demonstrated a worrying trend in Canadian terrorist trials. Of the 18 arrested only 11 were found guilty and some of those were released with ‘time served’. As of August 2020 most were free. A reminder: this gang had procured what they thought was three tonnes of ammonium nitrate to build three bombs to go off in Toronto and elsewhere. And they are now mostly walking about our cities.

And there have been other worrisome acquittals:

To this list we may soon have to add Awso Peshdary, now on trial for recruiting for ISIS, who may walk after it was determined that the Canadian Security Intelligence Service (CSIS) failed to disclose evidence favourable to the accused and that some of its intelligence used to support warrants may have been gathered illegally.

While the trial is ongoing and justice must be seen to be done, there are two worrying aspects to these developments as they relate to how CSIS and other agencies do counter terrorism investigations in Canada. Firstly, it is hard to see why CSIS needs to disclose exculpatory evidence favourable to a terrorist suspect when that agency does not collect evidence in the first place. CSIS collects intelligence, NOT evidence, and normally its information is NOT seen or used in court. So why is this even an issue?

Secondly, as I and others have noted before, CSIS works in a nasty world and has to engage with nasty characters – as human sources, say – to gather intelligence. Some of those sources may indeed have unsavoury backgrounds. You cannot catch terrorists by limiting your human sources to the Mother Theresas of this world after all. The finding that CSIS used contradictory information in warrant applications (to obtain intercepted communications) fails miserably to see that in cases such as these targets change their minds on what they want to do – a lot.

The impact of a Peshdary acquittal could be huge. He was initially arrested in conjunction with the RCMP’s Project Samossa terrorism investigation in 2010 but let go. This would be his second such release. The demand that CSIS start providing exculpatory information to the defence would change the way the organisation does its job. CSIS was split from the RCMP back in 1984 as a civilian intelligence agency, NOT a law enforcement one (which it had been as the former RCMP Security Service). Intelligence and evidence have been treated separately since that time: a requirement that CSIS ‘pony up’ in trials could mean that it will no longer serve a useful function.

The most important effect, however, is that on CSIS agents. The men and women who serve to protect Canada and Canadians from threats such as terrorism put their all into their work. They collect intelligence, share what they can with the RCMP (there are mechanisms to do so), and do what they can to prevent things from going bang in the night (or at midday). As more and more terrorist suspects are set free this will have repercussions on morale (‘why bother’?).

Yes, justice must be fair and it must be transparent. To some, even having an intelligence service that acts in the shadows flies in the face of how we do things in an open democracy. To those, we do not need – or want – a spy service.

Not surprisingly, I am not of that opinion. CSIS serves a critical function in Canada and is staffed by dedicated professionals. Are they perfect? Of course not, but they do their best. Our failure to accept that they have valuable intelligence that helps to keep us safe and the continued inability of the Crown to argue convincingly in terrorism court cases makes us less safe, not more.

Disclaimer: The views and opinions expressed in this blog post are those of the authors and do not necessarily reflect the official position of the Professional Development Institute of the University of Ottawa.

Phil Gurski is the Director of the Security Program at the University of Ottawa and a former Middle East/terrorism analyst at CSE and CSIS. 

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