Opinion

Counter-terrorism and the evidentiary chain in Canada

Our system, whereby in terrorism trials the RCMP evidence presented at court is subject to cross examination and challenge, is the right one. The defence has every opportunity to go after the Crown’s case: there is no need to know what CSIS knew and when it knew it, writes Phil Gurski.

A RCMP vehicle parked in front of Centre Block.The Hill Times file photograph

PUBLISHED :Monday, Dec. 4, 2017 4:10 PM

We in Canada do not have a lot of experience when it comes to terrorism. That is, of course, a good thing as the opposite scenario would be tragic. No, despite the fact that the Integrated Terrorism Assessment Centre (ITAC) in Ottawa has pegged the threat level at medium, where it has been since Oct. 2014, not coincidentally the same month when two minor attacks were carried out within two days of each other (in St-Jean-sur-Richelieu and Ottawa), terrorism in this country remains possible but not necessarily probable (medium is the mid-point in a five level system).

Our relative safety and paucity of attacks means that our laws and courts are also largely untested. We have had a small number of terrorist trials, the vast majority of which have led to guilty verdicts or pleas, and there are a few outstanding ones in Toronto and Montreal. There were also two trials that led to not guilty outcomes, one an appeal of a jury finding of guilty: both in my honest opinion were incorrect decisions. In addition, we have had a number of commissions—Air India, O’Connor (Arar) and Iacobucci (El Maati, Al Malki and Nureddin)— that dealt with terrorist issues. At present there are very few Canadians behind bars for specific terrorist offences (found under Section 83.01 of the Canadian Criminal Code).

On the one hand the system seems to be working more or less fine in that it can handle the light workload submitted to it. CSIS and the RCMP get along more or less and the two now operate under what has been termed the ‘One Vision’ framework. CSIS can sent advisory and disclosure letters to the RCMP to aid in its investigations. It does not appear, at least to those of us on the outside, that the country’s counter-terrorism apparatus needs serious tweaking.

On the other hand, this has not stopped some from clamouring for changes, including the demand that CSIS start collecting intelligence to evidentiary standards so that its ‘intelligence” can be used in court, leading one assumes to more and successful prosecutions.

  

There are, however, several obstacles and objections to doing this. Recall that CSIS was created as a civilian security intelligence agency in 1984—after the McDonald Commission into activities of the then RCMP Security Service—precisely in order to separate national security from run of the mill police work. The idea was that the (then) new civilian service would have a different (broader) mandate, different (broader) powers, different (politically-directed) controls and outside review—all very different from the police and law enforcement system. The powers that be at the time saw it fit to make an entirely new organization that would not be tied to law enforcement and which would collect intelligence and not evidence. As in all things review and reconsideration is always possible, but is there a good reason now to do so with CSIS?

Aside from the general comment that if the organization is tasked with collecting evidence, we might as well fold it back into the RCMP, there are a number of other considerations:

a) Many people agree to work as human sources for CSIS because they know their identities will never be disclosed and they will never be asked to testify in public (unlike human agents employed by the RCMP). Would a new approach change this and with what effects?

b) Will CSIS become subject to other aspects of criminal law, such as full disclosure, advising persons whose communications are intercepted, only being able to use “evidence” if it was collected pursuant to a criminal law threshold/standard?

  

While I speak with a clear bias, having worked for CSIS for 15 years (and in intelligence for 32), I nevertheless believe very strongly in the need to maintain a certain distance between intelligence and evidence. The former often sets up the latter while the latter can only unnecessarily complicate the former. The intelligence collected by CSIS is vetted and corroborated and evaluated for accuracy: it has helped prevent terrorist acts from happening. Our system, whereby in terrorism trials the RCMP evidence presented at court is subject to cross examination and challenge, is the right one. The defence has every opportunity to go after the Crown’s case: there is no need to know what CSIS knew and when it knew it. Allowing the two systems to remain separate but cooperate may be the best way to ensure both can continue to do their jobs well.

We saw what happens when you mix intelligence and evidence in the infamous national security certificate cases (NB these were handled badly by the government: in many cases they could have been treated as routine immigration removal matters and CSIS should never have been involved in open court). Do we really want to duplicate that disaster by having CSIS change the way it operates? Before we change the current system, we should think very, very carefully about the implications and consequences since in this area, there are no simple quick fix answers.

Phil Gurski is president and CEO of Borealis Threat and Risk Consulting. His latest book is called The Lesser Jihads.

The Hill Times