Jun 11, 2018

The debate on allowing CSIS data to be released in court cases

This piece appeared in The Hill Times on June 4, 2018

Carrying out a terrorism investigation is not easy.  The stakes are high since many (erroneously) see terrorism as an existential, pervasive threat and no one is willing to accept failure as an option: dead bodies in our streets are not something anyone wants to see.  Time is often of the essence as law enforcement and security intelligence agencies operate furiously in the ‘left of boom’ space to stop acts from succeeding.  A variety of means are deployed, from human sources and agents to surveillance to federal court intercept warrants (the latter are not handed out like candy by judges, contrary to what most Canadians may think).  When all goes according to plan plots are neutralised and arrests are made.  Canada’s citizens can then sleep soundly at night.

Except that arrests are not the end of the story: they are merely the beginning.  Once a suspect is in custody the next phase, and almost always a much more difficult phase, begins.  Trials have to be held, evidence has to be presented and arguments between the Crown and the defence ensue.  In our system of jurisprudence everyone, terrorists included, are presumed innocent until proven guilty.  In terrorism cases the burden of proof extends not just to the act itself but the motivation behind that act.  Under the Canadian Criminal Code a terrorist act is defined as violence carried out “in whole or in part for a political, religious or ideological purpose, objective or cause”.  The Crown has to show beyond a reasonable doubt that the accused planned (or executed) his act for any one or several of those reasons.  This is usually much more difficult than you might think.

Another complicating factor is the nature of the evidence presented in court.  The defence must have access to, and be able to challenge, every piece of information the Crown used in making its case.  This aspect is a fundamental part of our justice system and our belief in a fair and open trial.  Where this gets murky is when some of that information is derived from an intelligence service – in other words, from a CSIS investigation.

Normally, the data CSIS collects on a given individual is not used or exposed in court.  There are provisions under the Canada Evidence Act (namely section 38) to prevent CSIS information from being disclosed.  In light of an ongoing terrorism trial in Ottawa, however, this protection may be vanishing.

A Federal Court has ruled that the legal team for Awso Peshdary, accused of recruiting Canadians to join Islamic State (and also acquitted over his role in the 2010 Operation SAMOSSA plot), should be given the affidavit CSIS prepared to gain a warrant against him.  The identity of the CSIS affiant will be protected but the reasons why a warrant was granted will not be.  The judge ruled that “Without the information about Mr Peshdary derived from the CSIS Act warrant, the RCMP may not have had sufficient evidence to acquire a Criminal Code authorization, and may not have assembled the evidence relied on for the charges that were subsequently laid against Mr Peshdary.”  In other words, the Peshdary case may revolve on what CSIS knew, not what the RCMP knew.

This ruling is worrying, as  it may set a precedent.  Normally, CSIS issues an advisory letter which can be used by the RCMP to apply for its own warrant.  The two streams of information do not cross.  In Canada CSIS and the RCMP perform different, but complementary, functions.  CSIS collects intelligence: the RCMP evidence.  The latter is used to build criminal cases, not the former.  If CSIS information can now be requested by defence lawyers across the board it may have significant implications for how the spy agency functions.  To date, the criminal cases that have gone to trial have been based solely on information collected to evidentiary standards by the RCMP and other law enforcement partners.  CSIS intelligence is not gathered to that standard and it is unclear how it will stand up in court.

It is also unclear why the judge ruled  in this fashion.  The entirety of the Crown’s case against Mr. Peshdary is built on the evidence the RCMP gathered and it is that evidence that should be tested, not CSIS intelligence.  Is the judge granting Mr. Peshdary’s lawyers access to CSIS info out of a sense of fairness?  Out of “public interest” as he wrote?

In the end this ruling may force the government of Canada to rethink CSIS’ role.  It may change the rules of the road to have the intelligence agency collect to evidentiary standards (spy agencies in other countries appear to do this).  Whatever the outcome of this trial it bears watching for what it means for our ability to prosecute terrorism cases.

Phil Gurski worked as a senior strategic analyst at CSIS from 2001-2013, specializing in al-Qaeda/Islamic State-inspired violent extremism and radicalization and as a senior special adivser at Public Safety Canada from 2013 until his retirement from the civil service in May 2015.