*** Too bad that 4 years had to pass - and for a false narrative to have taken hold by armchair pundits who pronounced verdicts even before the trial began! NOW - 4 years later - the public will start to hear more of what they should have been given the first time: the truth. MS ***
FROM: http://www.cbc.ca/canada/toronto/story/2010/06/18/toronto-18-jury.html
Toronto 18 details emerge as jury sequestered
What the jury didn't get to hear about Fahim Ahmad
A jury in Brampton, Ont., has started to deliberate in the latest trial for those accused in the Toronto 18 extremist plot case.
The jurors were sequestered Friday after the judge finished instructing them in the case presented against the two accused, Steven Chand and Asad Ansari. Both were charged with participating in a terrorist group, and Chand faces a further charge of counselling to commit fraud over $5,000 for the benefit of a terrorist group.
Until the moment the jury went out, a sweeping publication ban had prevented media from reporting any details of the case other than what was said in the courtroom in this trial. That included any details of past convictions and evidence in previous Toronto 18 trials.
One of the names that came up repeatedly in past trials was that of the self-acknowledged leader of the group, Fahim Ahmad. Admad was to have been tried along with Chand and Ansari on charges of participating in a terrorist group, instructing people to carry out activities for a terrorist group and a weapons offence.
But on May 10, he made a surprise about-turn. In the middle of his trial on terrorism charges he abruptly reversed himself and pleaded guilty. What the five-woman, seven-man jury had heard about Ahmad to that point was hair-raising enough.
Untold details of plot
In hundreds of hours of taped phone intercepts and secretly recorded conversations with police mole Mubin Sheik, Ahmad spoke enthusiastically of building an arsenal of high-powered weapons, including AK-47s and M-16s, and of attacking Canadian targets such as the Pickering nuclear power plant in Ontario and storming Parliament in Ottawa to "cut off some heads."
What the jury and the Canadian public didn't hear about was the story of Ahmad's ties to international terrorism.
Before turning his attention to building a Canadian al-Qaeda style terrorist cell, Ahmad was plotting acts of terrorism with alienated young Muslim men like himself in the United States, the United Kingdom and perhaps beyond.
One of those young men was Aabid Khan, who was an al-Qaeda supporter and recruiter living in Bradford, England. According to British security analyst Sajan Gohel, Khan was no foot solider, he was a plotter who put together terrorism cells on the internet.
Khan was arrested by British anti-terrorism police at Manchester International Airport on June 6, 2006, just four days after the RCMP busted the Toronto 18.
Khan was returning from one of his frequent trips to Pakistan. On his laptop computer and on 53 harddrives found at his home, police discovered what a British prosecutor later referred to as a library of violent Jihadi videos and Islamist propaganda tracts. Amongst the videos police discovered was an edited two-minute feature shot at a Canadian winter indoctrination and military training camp organized by Ahmad and by Toronto 18 co-leader Zakaria Amara at Washego, Ont.
U.K. police also found hundreds of hours of saved chats between Khan, Ahmad and other members of the Toronto 18.
Met in a chat room
Ahmad first met Kahn in 2003 in an internet chat room called Clear Guidance. The site was frequented by angry, young Muslim men — and by 2004 Ahmad had posted over 700 messages.
Other Clear Guidance members included Yanous Tsouli. The internet moniker Tsouli chose to give himself was Irhabi 007. Irhabi is Arabic for terrorist. The reference to 007 is an allusion to the fictional, over-sexed British secret agent James Bond.
Tsouli was the son of a Moroccan diplomat living in east London. Tsouli was an internet genius with close ties to al-Qaeda in Iraq. When a London SWAT team burst into his apartment on Oct. 21, 2005, to arrest him he was building a new website called YouBombit.com. The website was a do-it-yourself guide for wannabe terrorists that featured bomb-making recipes and instructions on how to make suicide vests.
Amongst the videos Tsouli planned to put up on the website were what the FBI alleges were surveillance videos of possible targets in Washington, D.C. The videos were shot by two of Fahim Ahmad's associates from Atlanta.
Ehasnul Islam Sadequee and Syed Haris Ahmed were also Clear Guidance regulars. In March 2005, Sadequee and Haris Ahmed travelled to Toronto to visit Fahim Ahmad and his growing band of recruits.
Over the next week, the young men talked about potential targets and the need to get paramilitary training in Pakistan. In transcripts of internet chats introduced at his trial at Blackfriars Court in London, England, Aaabid Khan told Fahim Ahmad he could arrange to get them paramilitary training with Lashkar Tayiba, the group behind the Mumbai attacks.
Aabid Khan was also in Toronto that week. At his trial, Khan insisted he had come to marry Fahim Ahmad's sister-in-law, a 19-year-old woman named Saima Mohamed, not to plot terrorism. Saima was also committed to the Jihadist cause.
In transcripts of internet chats included in the evidence at Khan's trial, Saima Mohamed tells him of her desire to become a suicide commando. In a written letter she tells him: "The more I think about my goal in life, the more vivid my goals become. Whether it's exploding prisons or freeing Muslim prisoners … Let it be a martyrdom operation."
She tells Khan that although her sister Mariyam disapproves of her ambition to become a martyr, Fahim has given her his approval. Mohamed was never arrested. She declined several interview requests from CBC News but in a letter from her lawyer Faizel Kutty, he stated that she does not espouse violent views. He also reminded the CBC being young can be a difficult and confusing period.
Aabid Khan and Fahim Ahmad's plan was to rent basements apartments in Toronto where their most-committed internet recruits could live for a month and bond before leaving for Pakistan to get paramilitary training with Lashkar.
After training they would return to Toronto, choose targets and then disperse to stage spectacular acts of terrorism in at least four countries. But as Ahmad was out searching for cheap apartments to rent, the plan began to fall apart.
Grew impatient
Ahmad began to grow impatient with Khan, who wanted to move slowly. Ahmad also had trouble getting his hands on the $5,000 he calculated he would need to go to Pakistan. After splitting with Khan, Ahmad and his friend Zakaria Amara turned their attention to Canada and building an al-Qaeda type cell in Toronto.
In August 2008, Aabid Khan was convicted on terrorism charges and sentenced to 12 years in prison.
In 2007, another Clear Guidance regular, Mersad Bektasavic, received a 15 year, four-month sentence from a Bosnian court for plotting an attack in Europe. When Bektasevic was arrested, police found a suicide vest and 18 kilograms of factory-made explosive in his apartment.
In June 2009, American Syed Haris Ahmed was found guilty of material support for terrorism in the U.S. and sentenced to 12 years. Later that year, his friend Ehsenul Mohamed Sadequee was found guilty on four terrorism charges and sentenced to 17 years followed by 30 years of supervision. In the indictments of both men, Fahim Ahmad is named as a co-conspirator.
Fahim Ahmad has pleaded guilty to four charges. He is facing a maximum sentence of life imprisonment. As a result of his guilty plea, the jury is no longer involved in Ahmad's case. He will be sentenced in Federal Court in Brampton, Ont., by Justice Fletcher Dawson later this summer.
Showing posts with label terrorism in Canada. Show all posts
Showing posts with label terrorism in Canada. Show all posts
Friday, June 18, 2010
Thursday, June 17, 2010
AIR INDIA - CASCADE OF ERRORS
FROM: http://ca.news.yahoo.com/s/capress/100617/national/air_india_inquiry_3
OTTAWA - The inquiry into the 1985 Air India bombing concludes authorities should have known that Flight 182 was a likely terrorist target.
A long-awaited report released today blames a "cascading series of errors" by government, RCMP and CSIS for the failure to prevent the disaster.
Former Supreme Court justice John Major says agencies were not prepared for the threat of terror attacks in 1985 — and holes in the country's security systems still need plugging.
His report calls for ramped-up powers for the national security adviser to oversee communication between agencies and settle disputes.
The bombing killed 329 people, mostly Canadians of Indian origin.
Major spent four years investigating the matter.
OTTAWA - The inquiry into the 1985 Air India bombing concludes authorities should have known that Flight 182 was a likely terrorist target.
A long-awaited report released today blames a "cascading series of errors" by government, RCMP and CSIS for the failure to prevent the disaster.
Former Supreme Court justice John Major says agencies were not prepared for the threat of terror attacks in 1985 — and holes in the country's security systems still need plugging.
His report calls for ramped-up powers for the national security adviser to oversee communication between agencies and settle disputes.
The bombing killed 329 people, mostly Canadians of Indian origin.
Major spent four years investigating the matter.
Tuesday, January 26, 2010
PETA TERRORIST GROUP ?
*** Using violence to bring about political change is indeed understood to be the very basis of the definition of terrorism. To assault a Minister makes it even more egregious. MS ***
FROM: http://www.thestar.com/news/canada/article/755958--pie-tossing-is-terrorism-mp-says
OTTAWA—A Liberal MP says he believes the federal government should investigate whether the pieing of Fisheries Minister Gail Shea by a woman opposed to the seal hunt constitutes an act of terrorism.
Shea was delivering a speech Monday at the Canada Centre for Inland Waters in Burlington, when a woman stood up and pushed a tofu cream pie squarely into the minister’s face.
The animal-rights group PETA later took responsibility for the incident. It said in a release that it was part of its campaign “to stop the government’s ill-advised sanction of the slaughter of seals.”
MP Gerry Byrne says he thinks what happened should be reviewed under the legal definition of terrorism.
“When someone actually coaches or conducts criminal behaviour to impose a political agenda on each and every other citizen of Canada, that does seem to me to meet the test of a terrorist organization,” the member from Newfoundland and Labrador said in an interview from Ottawa with radio station VOCM in St. John’s, N.L.
“I am calling on the Government of Canada to actually investigate whether or not this organization, PETA, is acting as a terrorist organization under the test that exists under Canadian law.”
A spokesman for PETA could not immediately be reached for comment.
Shea said afterward that the incident only strengthens her resolve to defend the hunt.
Emily McCoy, 37, of New York City was taken into custody and charged with assault after the pieing.
After the tofu cream pie was pushed squarely into the minister’s face, a woman started shouting as she was led away by officials.
“Shame on you Gail Shea. ... It is a shame on Canada. It is a shame that she has not denounced this bloody seal hunt,” the woman yelled.
Shea, who represents a P.E.I. riding, didn’t require medical attention and returned to the podium after wiping the pie from her face.
Former prime minister Jean Chretien was hit in the face with a pie by a protester in Prince Edward Island in 2000. His attacker initially was given jail time but eventually received a conditional sentence.
A woman who missed Alberta Premier Ed Stelmach with a pie at the annual Calgary Stampede breakfast in 2007, and hit a security official instead, was sentenced to 30 days in jail.
So was a woman who threw a pie at Calgary Mayor Dave Bronconnier in the summer of 2007.
In 2003, a protester who hit then-Alberta premier Ralph Klein in the face with a pie at the Stampede breakfast was convicted of assault and ordered to serve a 30-day intermittent jail sentence.
Jean Charest got it in April 2003, two days before his Liberals ousted the Parti Quebecois and he was elected Quebec premier.
FROM: http://www.thestar.com/news/canada/article/755958--pie-tossing-is-terrorism-mp-says
OTTAWA—A Liberal MP says he believes the federal government should investigate whether the pieing of Fisheries Minister Gail Shea by a woman opposed to the seal hunt constitutes an act of terrorism.
Shea was delivering a speech Monday at the Canada Centre for Inland Waters in Burlington, when a woman stood up and pushed a tofu cream pie squarely into the minister’s face.
The animal-rights group PETA later took responsibility for the incident. It said in a release that it was part of its campaign “to stop the government’s ill-advised sanction of the slaughter of seals.”
MP Gerry Byrne says he thinks what happened should be reviewed under the legal definition of terrorism.
“When someone actually coaches or conducts criminal behaviour to impose a political agenda on each and every other citizen of Canada, that does seem to me to meet the test of a terrorist organization,” the member from Newfoundland and Labrador said in an interview from Ottawa with radio station VOCM in St. John’s, N.L.
“I am calling on the Government of Canada to actually investigate whether or not this organization, PETA, is acting as a terrorist organization under the test that exists under Canadian law.”
A spokesman for PETA could not immediately be reached for comment.
Shea said afterward that the incident only strengthens her resolve to defend the hunt.
Emily McCoy, 37, of New York City was taken into custody and charged with assault after the pieing.
After the tofu cream pie was pushed squarely into the minister’s face, a woman started shouting as she was led away by officials.
“Shame on you Gail Shea. ... It is a shame on Canada. It is a shame that she has not denounced this bloody seal hunt,” the woman yelled.
Shea, who represents a P.E.I. riding, didn’t require medical attention and returned to the podium after wiping the pie from her face.
Former prime minister Jean Chretien was hit in the face with a pie by a protester in Prince Edward Island in 2000. His attacker initially was given jail time but eventually received a conditional sentence.
A woman who missed Alberta Premier Ed Stelmach with a pie at the annual Calgary Stampede breakfast in 2007, and hit a security official instead, was sentenced to 30 days in jail.
So was a woman who threw a pie at Calgary Mayor Dave Bronconnier in the summer of 2007.
In 2003, a protester who hit then-Alberta premier Ralph Klein in the face with a pie at the Stampede breakfast was convicted of assault and ordered to serve a 30-day intermittent jail sentence.
Jean Charest got it in April 2003, two days before his Liberals ousted the Parti Quebecois and he was elected Quebec premier.
Friday, January 15, 2010
MONEY NOT A MOTIVATION FOR RCMP AGENT
*** Hey simple question for the naysayers and complainers: are you willing to go undercover as an agent for your country's police service in a massive investigation like this, with a real plot by (some) people with real know-how, risk it all, give it all up, cut off friends and family FOR FREE?
I didn't think so.
Canada spent over $100 million in the Air India inquiry and no one was prosecuted properly for it yet hundreds of Canadians died. 4 mil is a drop in the bucket. MS ***
FROM: http://www.nationalpost.com/news/story.html?id=2446374
The moral imperative, and not an expectation of compensation, motivated Shaher Elsohemy to go undercover as a police agent to infiltrate the now-notorious "Toronto 18" terrorism plot, a court heard on Friday.
"The money did not play any role in my motivation," Mr. Elsohemy, the Crown's star witness, told a Brampton Superior Court judge. Though he would ultimately receive a $4-million witness protection package after helping police foil the 2006 bomb plot, Mr. Elsohemy said he was driven by his "responsibility as a Canadian citizen, and nothing but that."
Financial compensation was not discussed until mid-April, Mr. Elsohemy testified, several days after he had already unravelled for police the full Toronto 18 plot, which involved detonating powerful explosives at the Toronto Stock Exchange, a downtown CSIS facility and a military base between Toronto and Ottawa.
Mr. Elsohemy gained inside access to the terrorism plot with promises of obtaining bomb-making chemicals, including three tonnes of ammonium nitrate.
He has been testifying all week at the trial of Shareef Abdelhaleem, who is charged with playing a key role in the Toronto 18 scheme.
The court heard that right up until his arrest on June 2, 2006, Mr. Abdelhaleem was unwittingly arranging illicit dealings involving several undercover police agents: Mr. Elsohemy, an officer posing as the landlord of a warehouse the group rented to store chemicals, and a third officer who drove a truck purportedly filled with nitric acid and ammonium nitrate to that warehouse.
Right up until the moment the plot fell apart, Mr. Elsohemy testified, Mr. Abdelhaleem was finetuning a myriad of small details to ensure the chemical delivery went off without a hitch. He developed a code for communicating with two accomplices manning the Newmarket warehouse -- who were to wear shirts emblazoned with the logo "student farmers" to alleviate suspicion over the large chemical shipment -- and discussed how they pair should adapt their behaviour, the court heard.
"They will dress as we told them to, and they will shave and smoke cigarettes in front of the [chemical truck] driver," he allegedly told Mr. Elsohemy.
The accused suggested coating the warehouse doors with a layer of wax so the group could determine whether there had been any unauthorized entry, the judge heard.
Mr. Abdelhaleem also requested that once the delivery was complete, Mr. Elsohemy should bring him a small sample of the chemicals for a "trial explosion," the witness testified.
After the shipment on June 2, 2006, Mr. Elsohemy says he talked to Mr. Abdelhaleem on the phone and relayed the message, "thank God," meant to indicate a successful delivery.
"That was the last time I spoke to Mr. Abdelhaleem," Mr. Elsohemy testified. The arrests followed swiftly afterward.
Defence lawyer William Naylor is scheduled to begin his cross-examination this afternoon.
I didn't think so.
Canada spent over $100 million in the Air India inquiry and no one was prosecuted properly for it yet hundreds of Canadians died. 4 mil is a drop in the bucket. MS ***
FROM: http://www.nationalpost.com/news/story.html?id=2446374
The moral imperative, and not an expectation of compensation, motivated Shaher Elsohemy to go undercover as a police agent to infiltrate the now-notorious "Toronto 18" terrorism plot, a court heard on Friday.
"The money did not play any role in my motivation," Mr. Elsohemy, the Crown's star witness, told a Brampton Superior Court judge. Though he would ultimately receive a $4-million witness protection package after helping police foil the 2006 bomb plot, Mr. Elsohemy said he was driven by his "responsibility as a Canadian citizen, and nothing but that."
Financial compensation was not discussed until mid-April, Mr. Elsohemy testified, several days after he had already unravelled for police the full Toronto 18 plot, which involved detonating powerful explosives at the Toronto Stock Exchange, a downtown CSIS facility and a military base between Toronto and Ottawa.
Mr. Elsohemy gained inside access to the terrorism plot with promises of obtaining bomb-making chemicals, including three tonnes of ammonium nitrate.
He has been testifying all week at the trial of Shareef Abdelhaleem, who is charged with playing a key role in the Toronto 18 scheme.
The court heard that right up until his arrest on June 2, 2006, Mr. Abdelhaleem was unwittingly arranging illicit dealings involving several undercover police agents: Mr. Elsohemy, an officer posing as the landlord of a warehouse the group rented to store chemicals, and a third officer who drove a truck purportedly filled with nitric acid and ammonium nitrate to that warehouse.
Right up until the moment the plot fell apart, Mr. Elsohemy testified, Mr. Abdelhaleem was finetuning a myriad of small details to ensure the chemical delivery went off without a hitch. He developed a code for communicating with two accomplices manning the Newmarket warehouse -- who were to wear shirts emblazoned with the logo "student farmers" to alleviate suspicion over the large chemical shipment -- and discussed how they pair should adapt their behaviour, the court heard.
"They will dress as we told them to, and they will shave and smoke cigarettes in front of the [chemical truck] driver," he allegedly told Mr. Elsohemy.
The accused suggested coating the warehouse doors with a layer of wax so the group could determine whether there had been any unauthorized entry, the judge heard.
Mr. Abdelhaleem also requested that once the delivery was complete, Mr. Elsohemy should bring him a small sample of the chemicals for a "trial explosion," the witness testified.
After the shipment on June 2, 2006, Mr. Elsohemy says he talked to Mr. Abdelhaleem on the phone and relayed the message, "thank God," meant to indicate a successful delivery.
"That was the last time I spoke to Mr. Abdelhaleem," Mr. Elsohemy testified. The arrests followed swiftly afterward.
Defence lawyer William Naylor is scheduled to begin his cross-examination this afternoon.
Saturday, December 26, 2009
SECURITY CERTIFICATES - PLAN B
FROM: http://cforcese.typepad.com/ns/2009/12/security-certificates-time-for-a-plan-b.html
Security Certificates: Time for a Plan B
Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.
In an October 2009 opinion editorial in the Globe and Mail, I wrote that “[t]he security certificate system as a tool of anti-terrorism is dead.” This op-ed followed the dismissal of the certificate against Adil Charkoui, upon withdrawal of much of the secret information deployed against him. The latter act, in turn, followed a court order to disclose more information than the government (and the Canadian Security Intelligence Service, in particular) believed that it could without prejudicing national security interests. (CSIS director Richard Fadden has since described this decision as follows: “the demands for disclosure in the Charkaoui security certificate case pushed us beyond what we could accept. We were faced with a pretty fundamental dilemma: to disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse. We chose the path that would cause the least long-term damage to Canada and withdrew the information.”)
In my op-ed, I noted that four other security certificate cases “continue, and the government could ‘win’ a few in the short-term. But even if it demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means that the government will inevitably need a ‘plan B’ for the future.”
It seems useful to expand on my contentions in this blog, in more than the 800 words permitted for the op-ed.
The Objectives of Security Certificates
Security certificates were (and are) supposed to about removal of security threats from Canada. Detention, or other restrictions on liberty, associated with the security certificate are supposed to be temporary, persisting only up to removal. That removal is supposed to be speedier under a security certificate than are regular inadmissibility proceedings in front of immigration adjudicators. A security certificate goes directly to a Federal Court judge (whose decision on the reasonableness of the certificate is final, and amounts to a removal order). Immigration adjudicator decisions are subject to more layers of possible review.
Of course, none of these objectives have been met in relation to the five (now, four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist affiliates. Unlike in past cases involving, e.g., Russian sleeper agents, removal has been vigorously contested by these five, each of whom risks removal to a jurisdiction with (at best) a spotty record on torture. Effectively, the Canadian security certificate labels (or reveals, depending on the truth of the matter) these individuals as members of organizations whose purposes are invariably at variance with the interests of their countries of origin to which they may be removed. In these circumstances, it is to be suspected that authorities in those states will have their own agendas to pursue with these individuals, giving rise to a prospect of torture that does not exist with, e.g., the removal of Russian sleeper agents.
In the result, these individuals have been detained (or subject to strict conditions on their liberty) for very long periods of time as each dimension of the security certificate system is tested up and down the court system. For these individuals, caught between the rock of removal to torture and the hard place of limitations on liberty in Canada, security certificates have become a de facto system of “control orders”, analogous in effect to the system existing in the United Kingdom and Australia.
This scenario seems likely to recur each time a security certificate is used against an individual suspected of being a terrorist/terrorist affiliate, and removal is to a country that a) has a poor record on torture and b) whose own national security interests are engaged by the individual’s suspected acts or affiliations. Moreover, this scenario is likely to recur even if, instead of security certificate, the government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA). This may be a different system, but it creates the same incentive to contest removal, and the same constitutional issues in terms of detention and removal to torture.
The Inadequacies of Immigration Law
This raises the question of whether immigration law can ever be used as an effective tool of anti-terrorism. (There is an argument that, factually, immigration remedies just displace the security risk – fortifying the Canadian border does not reduce the playing field for terrorists elsewhere. Still, I can see how displacement may still be strongly desirable, especially if it disrupts a terrorist agenda.)
Examining the question from the narrower perspective of “legally, can immigration law ever be used as an effective tool of anti-terrorism” my answer would be: Yes, to the extent immigration law can be used to, e.g., pre-screen suspected terrorists before arrival in Canada (for example, security checks and the issuance of visas). Yes, to the extent suspected terrorists/terrorist affiliates who do arrive in Canada are subject to removal to a country that doesn’t torture. No, in other circumstances.
No Removal to Torture, Period
To expand on this last statement: the IRPA at present does permit removal where national security interests are substantial enough, even where there is a serious prospect of torture. But international law does not. As discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 3 further specifies: “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” (It is worth noting that the UN Human Rights Committee has construed the International Covenant on Civil and Political Rights, Art. 7, as containing an equivalent restriction).
Accordingly, any application of the IRPA (or the Charter of Rights and Freedoms) that would allow removal in the face of these “substantial grounds for believing” would violate our international obligations. It really is that simple.
Much ado has been made about the Supreme Court’s 2002 decision in Suresh that seemed to open the door a crack under the Charter to removal to torture where the extenuating circumstances were dire enough. I think, personally, that that crack no longer exists. Suresh wasn’t dealing squarely with the issue – the comment was obiter. Since 2002, the courts seem to have become much less sympathetic to government national security claims. Most importantly, as I argue at p.577 of NSL, the Supreme Court has also since reaffirmed its commitment to interpret the Charter in keeping with Canada’s international obligations. And, as noted, those international obligations are unambiguous.
No Guarantees from Assurances
A frequently cited solution to the conundrum of removal to torture is the concept of “diplomatic assurances”; essentially, supplementary promises from the receiving state that it won’t abuse the person upon his or her return. If credible, these assurances would vitiate the “substantial grounds to believe” the person will be tortured. As discussed in NSL, p.576, assurances are regarded as doubtful guarantees by the human rights community and attracted negative commentary by the Supreme Court in Suresh (and in subsequent Federal Court cases).
The assurance concept has been pursued most earnestly in the United Kingdom. Human Rights Watch has prepared an overview of this policy. This approach earned a conditional blessing from the House of Lords in its 2009 decision of RB v. Secretary of State. Essentially, whether the assurance displaces the reasonable grounds to believe threshold is a question of fact, dependent (among other things) on the state in question and the nature of the assurance. (See in particular, the reasoning of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242).
However, I find it hard to believe that those facts ever add up to a viable assurance in the Canadian context. The problem with assurances, of course, is that they constitute a promise not to do something that is already illegal in conventional and customary international law and, invariably, the law (and perhaps even the constitution) of the torturing country. It strains credulity that when these robust sources of obligation prove ineffectual, some supplementary memorandum of understanding will prove effective, especially if that understanding includes no on-going monitoring by the deporting country of the returnee’s status. The following are, for me, a sobering and damning indictment of assurances:
First, the assurance is not enforceable in international law. It is not a treaty obligation. The deporting state would have no standing to enforce it, even assuming that there was an international venue competent to assume jurisdiction over the dispute.
Second, a diplomatic assurance issued by one branch of government – the foreign ministry, for example – may be done completely in good faith and have no impact whatsoever over the actions of the security services. As CSIS director Fadden commented in his recent speech, “in some countries the intelligence agencies are more influential than their foreign ministries”. Whether a security service will feel bound by a diplomatic assurance entered into by some other branch of government is no sure bet.
Third, even if the security service itself agrees to the assurance, compliance depends entirely on a cost-benefit analysis: what is the cost of non-compliance against the benefits of violating the agreement. A country that views its key national security interests imperiled by the actions of the terrorist entity with which the returnee is implicated and which takes the view that extreme interrogation/intimidation is in its interests may have strong incentives to violate the agreement. The countervail is the disrepute that country would then be held in by the deporting country (assuming the latter even found out about the abuse, an uncertain possibility). That disrepute might imperil future returns and other forms of intelligence cooperation.
This may be a reasonably potent countervail where the assurance is given to, e.g., the United States or the United Kingdom – states with whom the torturing state may have important relationships. Canada’s place in the hierarchy of global power is very different, and the countervail is accordingly much weaker. Moreover, for a long time, the government has repeatedly urged (in submissions on the need to protect foreign-provided intelligence from disclosure and elsewhere) that Canada is a practical supplicant in the world of information-sharing. All told, the government’s evidence in Canada Evidence Act and security certificate cases is that we receive more intelligence from our partners than we give – we need them more than they need us. In Mr. Fadden’s words: “just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet.” It seems very unlikely indeed that we would truly imperil or curtail a relationship with a foreign state’s intelligence services over the treatment of someone we ourselves regard as a security threat.
Also of note, our record in terms of forestalling torture appears to be spotty, even where we do (presumably) have influence. The record of treatment of battlefield detainees transferred from the Canadian Forces to Afghan authorities in Afghanistan is now a matter of some controversy, but it seems very likely that some number of them have been maltreated. This is true even with the prisoner transfer arrangements concluded between Canada and Afghanistan – arrangements that while imperfect, are probably more demanding than anything likely to be found in a diplomatic assurance.
In sum, diplomatic assurances are an unsustainable solution to the inadequacies of immigration law as a tool of anti-terrorism.
Plan B
So the solution must come from a completely different body of the law. RCMP Commissioner Elliot championed a criminal law-led approach in an October 2009 speech, and it is a view I also expressed in my op-ed.
To be clear, the criminal law is no solution to the dilemmas posed by the five anti-terrorism security certificates that have proven so contentious (that is, those of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub). The alleged behaviour that has been used to implicate these individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of Information Act added by Bill C-36 in 2001. This criminal law cannot, for constitutional reasons, be applied retroactively.
Still, these individuals have been incarcerated and subject to restraints on liberty for length periods of time, and courts have now universally agreed that that fact attenuates the security threat they are alleged to pose. Put another way, if they were dangerous, they are now less dangerous and that danger can be contained by measures short of detention and even the initially very strict limitations on liberty imposed on their initial release. Plan B should not, therefore, be driven by a preoccupation with these five individuals – it risks contorting policy to fit the peculiarities of a handful of cases.
The Criminal Law’s Reach
Critically, the criminal law now reaches very far in terms of terrorist activity. As discussed in NSL chapter 7, it has a strong preemptive dimension, encompassing behaviour that once would have been unassailable in criminal law because it was “merely preparatory” to an actual offence. Indeed, it captures much – if not all – of the sorts of actions apparently at issue in the security certificate cases. Note, for example, the provisions included (rather incongruously) in the Security of Information Act:
20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done
(a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests [a very broadly defined concept, set out in section 3]; or
(b) that is reasonably likely to harm Canadian interests.
(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.
22. (1) Every person commits an offence who, for the purpose of committing an offence under … 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including
(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; …
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.
Note also this provision from the Criminal Code:
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
…
(3) Participating in or contributing to an activity of a terrorist group includes … (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group …
Under the latter provision, entering Canada to serve as a “sleeper” for a terrorist group is almost certainly a crime. Under the former provision, entering Canada for the purpose of extorting, e.g., Tamils to provide financial support to the Tamil Tigers (a terrorism financing offence) would likely be guilty of a crime.
Proving Crimes
Proving criminal offences is another story, and is the true disincentive to pursuing this Plan B. Criminal proceedings are open – much more so than the security certificate proceeding – and disclosure rules are robust (although the difference between the two bodies of rules has been narrowed by the Supreme Court’s Charkaoui II ruling).
Accordingly, if the evidence to be deployed against an individual comes from an allied security service, extreme sensitivity over its disclosure would likely terminate a prosecution – as discussed in NSL, chapter 10, the “third party rule” and “originator control” make disclosure of foreign-provided intelligence a damning sin in intelligence sharing circles. Likewise, domestic security services are extremely wary of their own sources and techniques being dragged into open court. The Canada Evidence Act does provide a means for protecting this information from disclosure. It also allows a trial judge to toss criminal charges if non-disclosure would produce an unfair trial.
This reality makes criminal trials possible in the following circumstances:
1. The information supplying state consents to the disclosure of the key inculpatory information; or,
2. In the absence of that consent, a security-sanitized summary of the evidence can be prepared that accommodates the national security preoccupation while not materially impairing the fairness of the trial; or
3. The Canadian security services have enough inculpatory evidence of their own which does not prejudice their own sources and techniques to support a conviction (note that the common law has long recognized informer privilege in criminal trials).
(There is, of course, a fourth possibility: Canada ignores the third party rule, and uses foreign-provided intelligence in criminal prosecutions without consent. Such a course of action would almost certainly destroy Canada’s relationship with foreign intelligence services, putting in great peril further information sharing of a sort that may be absolutely critical to Canada. I do not, therefore, believe that this fourth possibility merits discussion).
Option 3 appears to be in play in the “Toronto 18” proceedings. Option 2, in effect, arose in the Khawaja case (through the Canada Evidence Act). Option 1 is the most thorny issue. The bottom line is that every state faces the dilemma of the third party rule in terrorism cases – modern terrorism straddles borders and implicates a whole web of information sharing networks. To the extent each state treats the third party rule as absolute – and refuses to consent to disclosure in the court proceedings of another state – each pursues a policy that may, applied against it, imperil its own prosecutions. The result is a sort of intelligence “beggar thy neighbour” approach.
In these circumstances, states must consider requests for disclosure of their shared intelligence carefully (and not dismiss them out of hand, or demand secrecy for even the most banal information). Indeed, it seems wise to develop protocols on how and where information can be disclosed in court proceedings, perhaps concluded initially between states with similar legal systems. These protocols would vitiate CSIS’s complaint in some of the security certificate cases that even asking for permission to disclose foreign provided intelligence creates the impression that the agency is soft on secrecy, and not to be trusted.
(As an aside, I would not support the introduction of IRPA-style special advocates in criminal cases. It departs too radically from our criminal law tradition to exclude the accused from his or her own trial – I can’t see it being desirable or constitutional or (given recent successful prosecutions in Canada) necessary. That said, I think there is a role for special advocates to represent the interests of the accused in the collateral Canada Evidence Act proceedings where decisions on the disclosure of secret evidence to the accused are made).
Preventive Detention?
Objections to a Plan B focused on the criminal law also often urge that there will be instances where actions needs to be taken immediately, perhaps even precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre to support a conviction beyond a reasonable doubt has been collected.
As noted, the post-2001 terrorism provisions reach very far into once “merely preparatory” behaviour. It stands to reason that these urgent scenarios arise less often if behaviour several steps removed from actual terrorist violence is criminalized. But of course, urgent situations where the criminal law is not yet engaged will still arise, even if more rarely.
In these circumstances, the state does need a tool. As discussed in NSL, chapter 14, the United Kingdom and Australia both have tools of preventive detention and so-called “control orders” that remove or limit the liberty of action of terrorist suspects. Comparative systems of preemptive detention – or detention without charge – are described in a report by the UK human rights organization, Liberty.
Canada’s system of so-called “preventive detention” – sunsetted several years ago – is modest in comparison. The bill currently before Parliament would restore this same system. As I will describe in a supplemental blog, I believe that this system is appropriate (although the bill deserves some tightening up). I think it is enough, in the absence of a very compelling case grounded in the actual facts of the Canadian security situation that something more draconian is necessary.
Conclusion
In sum, I believe that as a legal matter, the tools for an effective system of anti-terrorism are available, even though the back of the immigration approach is broken. I defer to RCMP Commissioner Elliot on whether the sort of plan B that I support – a back to basics criminal law approach – is adequately financed. His view is that law enforcement has been the poor cousin in the post-9/11 terrorism strategy. His opinions on this point are certainly consistent with what I’ve heard from others. All of this leads to my final (and perhaps banal) conclusion: Rather than throwing more money at security certificates, we should now be better financing criminal investigations.
Security Certificates: Time for a Plan B
Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.
In an October 2009 opinion editorial in the Globe and Mail, I wrote that “[t]he security certificate system as a tool of anti-terrorism is dead.” This op-ed followed the dismissal of the certificate against Adil Charkoui, upon withdrawal of much of the secret information deployed against him. The latter act, in turn, followed a court order to disclose more information than the government (and the Canadian Security Intelligence Service, in particular) believed that it could without prejudicing national security interests. (CSIS director Richard Fadden has since described this decision as follows: “the demands for disclosure in the Charkaoui security certificate case pushed us beyond what we could accept. We were faced with a pretty fundamental dilemma: to disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse. We chose the path that would cause the least long-term damage to Canada and withdrew the information.”)
In my op-ed, I noted that four other security certificate cases “continue, and the government could ‘win’ a few in the short-term. But even if it demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means that the government will inevitably need a ‘plan B’ for the future.”
It seems useful to expand on my contentions in this blog, in more than the 800 words permitted for the op-ed.
The Objectives of Security Certificates
Security certificates were (and are) supposed to about removal of security threats from Canada. Detention, or other restrictions on liberty, associated with the security certificate are supposed to be temporary, persisting only up to removal. That removal is supposed to be speedier under a security certificate than are regular inadmissibility proceedings in front of immigration adjudicators. A security certificate goes directly to a Federal Court judge (whose decision on the reasonableness of the certificate is final, and amounts to a removal order). Immigration adjudicator decisions are subject to more layers of possible review.
Of course, none of these objectives have been met in relation to the five (now, four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist affiliates. Unlike in past cases involving, e.g., Russian sleeper agents, removal has been vigorously contested by these five, each of whom risks removal to a jurisdiction with (at best) a spotty record on torture. Effectively, the Canadian security certificate labels (or reveals, depending on the truth of the matter) these individuals as members of organizations whose purposes are invariably at variance with the interests of their countries of origin to which they may be removed. In these circumstances, it is to be suspected that authorities in those states will have their own agendas to pursue with these individuals, giving rise to a prospect of torture that does not exist with, e.g., the removal of Russian sleeper agents.
In the result, these individuals have been detained (or subject to strict conditions on their liberty) for very long periods of time as each dimension of the security certificate system is tested up and down the court system. For these individuals, caught between the rock of removal to torture and the hard place of limitations on liberty in Canada, security certificates have become a de facto system of “control orders”, analogous in effect to the system existing in the United Kingdom and Australia.
This scenario seems likely to recur each time a security certificate is used against an individual suspected of being a terrorist/terrorist affiliate, and removal is to a country that a) has a poor record on torture and b) whose own national security interests are engaged by the individual’s suspected acts or affiliations. Moreover, this scenario is likely to recur even if, instead of security certificate, the government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA). This may be a different system, but it creates the same incentive to contest removal, and the same constitutional issues in terms of detention and removal to torture.
The Inadequacies of Immigration Law
This raises the question of whether immigration law can ever be used as an effective tool of anti-terrorism. (There is an argument that, factually, immigration remedies just displace the security risk – fortifying the Canadian border does not reduce the playing field for terrorists elsewhere. Still, I can see how displacement may still be strongly desirable, especially if it disrupts a terrorist agenda.)
Examining the question from the narrower perspective of “legally, can immigration law ever be used as an effective tool of anti-terrorism” my answer would be: Yes, to the extent immigration law can be used to, e.g., pre-screen suspected terrorists before arrival in Canada (for example, security checks and the issuance of visas). Yes, to the extent suspected terrorists/terrorist affiliates who do arrive in Canada are subject to removal to a country that doesn’t torture. No, in other circumstances.
No Removal to Torture, Period
To expand on this last statement: the IRPA at present does permit removal where national security interests are substantial enough, even where there is a serious prospect of torture. But international law does not. As discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 3 further specifies: “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” (It is worth noting that the UN Human Rights Committee has construed the International Covenant on Civil and Political Rights, Art. 7, as containing an equivalent restriction).
Accordingly, any application of the IRPA (or the Charter of Rights and Freedoms) that would allow removal in the face of these “substantial grounds for believing” would violate our international obligations. It really is that simple.
Much ado has been made about the Supreme Court’s 2002 decision in Suresh that seemed to open the door a crack under the Charter to removal to torture where the extenuating circumstances were dire enough. I think, personally, that that crack no longer exists. Suresh wasn’t dealing squarely with the issue – the comment was obiter. Since 2002, the courts seem to have become much less sympathetic to government national security claims. Most importantly, as I argue at p.577 of NSL, the Supreme Court has also since reaffirmed its commitment to interpret the Charter in keeping with Canada’s international obligations. And, as noted, those international obligations are unambiguous.
No Guarantees from Assurances
A frequently cited solution to the conundrum of removal to torture is the concept of “diplomatic assurances”; essentially, supplementary promises from the receiving state that it won’t abuse the person upon his or her return. If credible, these assurances would vitiate the “substantial grounds to believe” the person will be tortured. As discussed in NSL, p.576, assurances are regarded as doubtful guarantees by the human rights community and attracted negative commentary by the Supreme Court in Suresh (and in subsequent Federal Court cases).
The assurance concept has been pursued most earnestly in the United Kingdom. Human Rights Watch has prepared an overview of this policy. This approach earned a conditional blessing from the House of Lords in its 2009 decision of RB v. Secretary of State. Essentially, whether the assurance displaces the reasonable grounds to believe threshold is a question of fact, dependent (among other things) on the state in question and the nature of the assurance. (See in particular, the reasoning of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242).
However, I find it hard to believe that those facts ever add up to a viable assurance in the Canadian context. The problem with assurances, of course, is that they constitute a promise not to do something that is already illegal in conventional and customary international law and, invariably, the law (and perhaps even the constitution) of the torturing country. It strains credulity that when these robust sources of obligation prove ineffectual, some supplementary memorandum of understanding will prove effective, especially if that understanding includes no on-going monitoring by the deporting country of the returnee’s status. The following are, for me, a sobering and damning indictment of assurances:
First, the assurance is not enforceable in international law. It is not a treaty obligation. The deporting state would have no standing to enforce it, even assuming that there was an international venue competent to assume jurisdiction over the dispute.
Second, a diplomatic assurance issued by one branch of government – the foreign ministry, for example – may be done completely in good faith and have no impact whatsoever over the actions of the security services. As CSIS director Fadden commented in his recent speech, “in some countries the intelligence agencies are more influential than their foreign ministries”. Whether a security service will feel bound by a diplomatic assurance entered into by some other branch of government is no sure bet.
Third, even if the security service itself agrees to the assurance, compliance depends entirely on a cost-benefit analysis: what is the cost of non-compliance against the benefits of violating the agreement. A country that views its key national security interests imperiled by the actions of the terrorist entity with which the returnee is implicated and which takes the view that extreme interrogation/intimidation is in its interests may have strong incentives to violate the agreement. The countervail is the disrepute that country would then be held in by the deporting country (assuming the latter even found out about the abuse, an uncertain possibility). That disrepute might imperil future returns and other forms of intelligence cooperation.
This may be a reasonably potent countervail where the assurance is given to, e.g., the United States or the United Kingdom – states with whom the torturing state may have important relationships. Canada’s place in the hierarchy of global power is very different, and the countervail is accordingly much weaker. Moreover, for a long time, the government has repeatedly urged (in submissions on the need to protect foreign-provided intelligence from disclosure and elsewhere) that Canada is a practical supplicant in the world of information-sharing. All told, the government’s evidence in Canada Evidence Act and security certificate cases is that we receive more intelligence from our partners than we give – we need them more than they need us. In Mr. Fadden’s words: “just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet.” It seems very unlikely indeed that we would truly imperil or curtail a relationship with a foreign state’s intelligence services over the treatment of someone we ourselves regard as a security threat.
Also of note, our record in terms of forestalling torture appears to be spotty, even where we do (presumably) have influence. The record of treatment of battlefield detainees transferred from the Canadian Forces to Afghan authorities in Afghanistan is now a matter of some controversy, but it seems very likely that some number of them have been maltreated. This is true even with the prisoner transfer arrangements concluded between Canada and Afghanistan – arrangements that while imperfect, are probably more demanding than anything likely to be found in a diplomatic assurance.
In sum, diplomatic assurances are an unsustainable solution to the inadequacies of immigration law as a tool of anti-terrorism.
Plan B
So the solution must come from a completely different body of the law. RCMP Commissioner Elliot championed a criminal law-led approach in an October 2009 speech, and it is a view I also expressed in my op-ed.
To be clear, the criminal law is no solution to the dilemmas posed by the five anti-terrorism security certificates that have proven so contentious (that is, those of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub). The alleged behaviour that has been used to implicate these individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of Information Act added by Bill C-36 in 2001. This criminal law cannot, for constitutional reasons, be applied retroactively.
Still, these individuals have been incarcerated and subject to restraints on liberty for length periods of time, and courts have now universally agreed that that fact attenuates the security threat they are alleged to pose. Put another way, if they were dangerous, they are now less dangerous and that danger can be contained by measures short of detention and even the initially very strict limitations on liberty imposed on their initial release. Plan B should not, therefore, be driven by a preoccupation with these five individuals – it risks contorting policy to fit the peculiarities of a handful of cases.
The Criminal Law’s Reach
Critically, the criminal law now reaches very far in terms of terrorist activity. As discussed in NSL chapter 7, it has a strong preemptive dimension, encompassing behaviour that once would have been unassailable in criminal law because it was “merely preparatory” to an actual offence. Indeed, it captures much – if not all – of the sorts of actions apparently at issue in the security certificate cases. Note, for example, the provisions included (rather incongruously) in the Security of Information Act:
20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done
(a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests [a very broadly defined concept, set out in section 3]; or
(b) that is reasonably likely to harm Canadian interests.
(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.
22. (1) Every person commits an offence who, for the purpose of committing an offence under … 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including
(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; …
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.
Note also this provision from the Criminal Code:
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
…
(3) Participating in or contributing to an activity of a terrorist group includes … (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group …
Under the latter provision, entering Canada to serve as a “sleeper” for a terrorist group is almost certainly a crime. Under the former provision, entering Canada for the purpose of extorting, e.g., Tamils to provide financial support to the Tamil Tigers (a terrorism financing offence) would likely be guilty of a crime.
Proving Crimes
Proving criminal offences is another story, and is the true disincentive to pursuing this Plan B. Criminal proceedings are open – much more so than the security certificate proceeding – and disclosure rules are robust (although the difference between the two bodies of rules has been narrowed by the Supreme Court’s Charkaoui II ruling).
Accordingly, if the evidence to be deployed against an individual comes from an allied security service, extreme sensitivity over its disclosure would likely terminate a prosecution – as discussed in NSL, chapter 10, the “third party rule” and “originator control” make disclosure of foreign-provided intelligence a damning sin in intelligence sharing circles. Likewise, domestic security services are extremely wary of their own sources and techniques being dragged into open court. The Canada Evidence Act does provide a means for protecting this information from disclosure. It also allows a trial judge to toss criminal charges if non-disclosure would produce an unfair trial.
This reality makes criminal trials possible in the following circumstances:
1. The information supplying state consents to the disclosure of the key inculpatory information; or,
2. In the absence of that consent, a security-sanitized summary of the evidence can be prepared that accommodates the national security preoccupation while not materially impairing the fairness of the trial; or
3. The Canadian security services have enough inculpatory evidence of their own which does not prejudice their own sources and techniques to support a conviction (note that the common law has long recognized informer privilege in criminal trials).
(There is, of course, a fourth possibility: Canada ignores the third party rule, and uses foreign-provided intelligence in criminal prosecutions without consent. Such a course of action would almost certainly destroy Canada’s relationship with foreign intelligence services, putting in great peril further information sharing of a sort that may be absolutely critical to Canada. I do not, therefore, believe that this fourth possibility merits discussion).
Option 3 appears to be in play in the “Toronto 18” proceedings. Option 2, in effect, arose in the Khawaja case (through the Canada Evidence Act). Option 1 is the most thorny issue. The bottom line is that every state faces the dilemma of the third party rule in terrorism cases – modern terrorism straddles borders and implicates a whole web of information sharing networks. To the extent each state treats the third party rule as absolute – and refuses to consent to disclosure in the court proceedings of another state – each pursues a policy that may, applied against it, imperil its own prosecutions. The result is a sort of intelligence “beggar thy neighbour” approach.
In these circumstances, states must consider requests for disclosure of their shared intelligence carefully (and not dismiss them out of hand, or demand secrecy for even the most banal information). Indeed, it seems wise to develop protocols on how and where information can be disclosed in court proceedings, perhaps concluded initially between states with similar legal systems. These protocols would vitiate CSIS’s complaint in some of the security certificate cases that even asking for permission to disclose foreign provided intelligence creates the impression that the agency is soft on secrecy, and not to be trusted.
(As an aside, I would not support the introduction of IRPA-style special advocates in criminal cases. It departs too radically from our criminal law tradition to exclude the accused from his or her own trial – I can’t see it being desirable or constitutional or (given recent successful prosecutions in Canada) necessary. That said, I think there is a role for special advocates to represent the interests of the accused in the collateral Canada Evidence Act proceedings where decisions on the disclosure of secret evidence to the accused are made).
Preventive Detention?
Objections to a Plan B focused on the criminal law also often urge that there will be instances where actions needs to be taken immediately, perhaps even precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre to support a conviction beyond a reasonable doubt has been collected.
As noted, the post-2001 terrorism provisions reach very far into once “merely preparatory” behaviour. It stands to reason that these urgent scenarios arise less often if behaviour several steps removed from actual terrorist violence is criminalized. But of course, urgent situations where the criminal law is not yet engaged will still arise, even if more rarely.
In these circumstances, the state does need a tool. As discussed in NSL, chapter 14, the United Kingdom and Australia both have tools of preventive detention and so-called “control orders” that remove or limit the liberty of action of terrorist suspects. Comparative systems of preemptive detention – or detention without charge – are described in a report by the UK human rights organization, Liberty.
Canada’s system of so-called “preventive detention” – sunsetted several years ago – is modest in comparison. The bill currently before Parliament would restore this same system. As I will describe in a supplemental blog, I believe that this system is appropriate (although the bill deserves some tightening up). I think it is enough, in the absence of a very compelling case grounded in the actual facts of the Canadian security situation that something more draconian is necessary.
Conclusion
In sum, I believe that as a legal matter, the tools for an effective system of anti-terrorism are available, even though the back of the immigration approach is broken. I defer to RCMP Commissioner Elliot on whether the sort of plan B that I support – a back to basics criminal law approach – is adequately financed. His view is that law enforcement has been the poor cousin in the post-9/11 terrorism strategy. His opinions on this point are certainly consistent with what I’ve heard from others. All of this leads to my final (and perhaps banal) conclusion: Rather than throwing more money at security certificates, we should now be better financing criminal investigations.
Wednesday, December 23, 2009
NO ENTRAPMENT IN TORONTO 18 CASE
*** Posted as an FYI since some people still don't get it. To be fair, this only applies to the youth proceedings but the message applies broadly to the remaining accused also. MS ***
http://www.thestar.com/article/607827 (Published On Wed Mar 25 2009)
No entrapment, judge rules in terrorism case
Police mole vindicated as court clears actions with accused youth
After years of "trash talk" and criticism for infiltrating an alleged homegrown terror cell, police mole Mubin Shaikh said he felt vindicated after a judge yesterday ruled that he acted appropriately and did not entrap one of the accused youths.
"My life has revolved around this point of entrapment and a lot of people have come out to say a lot of bad things about me," said Shaikh, referring to comments that have surfaced online in the Muslim community and within mosques.
"I knew right from the beginning that I was doing the right thing. ... I didn't put my neck out for the community to trash me," Shaikh said outside the courthouse, adding he "put up with a lot of trash talk."
The 33-year-old man said he was pleased the judge noted in his ruling that he believed Shaikh was motivated by his "moral and religious convictions."
When delivering his decision in a Brampton court, Superior Court Justice John Sproat did not read his 53-page ruling, but did state, "There has not been any entrapment and there has not been any abuse of process."
Shaikh's status at a terrorist training camp in December 2005 came under unusual scrutiny, given the unprecedented nature of this landmark case involving 14 men and four youths. The suspects, known as the Toronto 18, were charged in 2006 with belonging to a cell plotting to detonate truck bombs.
To date, four adults and three youths have had their charges stayed. The remaining youth, who is now 21, was found guilty of terrorism-related offences in September, but his lawyers brought forth a motion alleging he was lured into the group by Shaikh and should have the charge stayed.
In his ruling, Sproat said the winter camp had already been planned before Shaikh infiltrated the group and that the youth was invited by the alleged ringleaders.
"The camp would have been much the same had Shaikh not attended," wrote Sproat. "The information and indoctrination presented to (the accused) was not influenced or affected by any state action."
Sproat also noted Shaikh had limited contact with the teen after the camp, which was when his involvement intensified by shoplifting for the group and attending a second camp.
Defence counsel Mitchell Chernovsky and Faisal Mirza had argued that by taking on the role of a trainer, encouraging their client to perform better and training him in the use of a firearm, Shaikh was teaching the teen how to be a criminal.
They portrayed their client at the time as an impressionable 17-year-old convert to Islam desperate for acceptance and religious guidance.
But Sproat ruled the teen's age was "not much of an impediment to understanding the simple truth that a handgun was being fired, military-style exercises were being conducted and (the alleged ringleader) was exhorting the attendees to kick off a battle in which they would kill and perhaps be killed."
Crown prosecutors John Neander and Marco Mendicino argued that at the time of the camp, Shaikh was working as a confidential informer for the RCMP and only became an agent in February 2006.
They also portrayed Shaikh as someone who tried to moderate the tone of the camp and encouraged the teen to seek appropriate religious guidance.
Lawyers are due to return to court on April 7 to argue whether the teen should be sentenced as an adult or youth. If sentenced as an adult, he could face up to 10 years in prison.
Ten adults have yet to stand trial and Shaikh is expected to be the Crown's main witness.
*** The youth was sentenced to basically, time served and was released thereafter. SIX await trial now (four plead guilty). MS ***
http://www.thestar.com/article/607827 (Published On Wed Mar 25 2009)
No entrapment, judge rules in terrorism case
Police mole vindicated as court clears actions with accused youth
After years of "trash talk" and criticism for infiltrating an alleged homegrown terror cell, police mole Mubin Shaikh said he felt vindicated after a judge yesterday ruled that he acted appropriately and did not entrap one of the accused youths.
"My life has revolved around this point of entrapment and a lot of people have come out to say a lot of bad things about me," said Shaikh, referring to comments that have surfaced online in the Muslim community and within mosques.
"I knew right from the beginning that I was doing the right thing. ... I didn't put my neck out for the community to trash me," Shaikh said outside the courthouse, adding he "put up with a lot of trash talk."
The 33-year-old man said he was pleased the judge noted in his ruling that he believed Shaikh was motivated by his "moral and religious convictions."
When delivering his decision in a Brampton court, Superior Court Justice John Sproat did not read his 53-page ruling, but did state, "There has not been any entrapment and there has not been any abuse of process."
Shaikh's status at a terrorist training camp in December 2005 came under unusual scrutiny, given the unprecedented nature of this landmark case involving 14 men and four youths. The suspects, known as the Toronto 18, were charged in 2006 with belonging to a cell plotting to detonate truck bombs.
To date, four adults and three youths have had their charges stayed. The remaining youth, who is now 21, was found guilty of terrorism-related offences in September, but his lawyers brought forth a motion alleging he was lured into the group by Shaikh and should have the charge stayed.
In his ruling, Sproat said the winter camp had already been planned before Shaikh infiltrated the group and that the youth was invited by the alleged ringleaders.
"The camp would have been much the same had Shaikh not attended," wrote Sproat. "The information and indoctrination presented to (the accused) was not influenced or affected by any state action."
Sproat also noted Shaikh had limited contact with the teen after the camp, which was when his involvement intensified by shoplifting for the group and attending a second camp.
Defence counsel Mitchell Chernovsky and Faisal Mirza had argued that by taking on the role of a trainer, encouraging their client to perform better and training him in the use of a firearm, Shaikh was teaching the teen how to be a criminal.
They portrayed their client at the time as an impressionable 17-year-old convert to Islam desperate for acceptance and religious guidance.
But Sproat ruled the teen's age was "not much of an impediment to understanding the simple truth that a handgun was being fired, military-style exercises were being conducted and (the alleged ringleader) was exhorting the attendees to kick off a battle in which they would kill and perhaps be killed."
Crown prosecutors John Neander and Marco Mendicino argued that at the time of the camp, Shaikh was working as a confidential informer for the RCMP and only became an agent in February 2006.
They also portrayed Shaikh as someone who tried to moderate the tone of the camp and encouraged the teen to seek appropriate religious guidance.
Lawyers are due to return to court on April 7 to argue whether the teen should be sentenced as an adult or youth. If sentenced as an adult, he could face up to 10 years in prison.
Ten adults have yet to stand trial and Shaikh is expected to be the Crown's main witness.
*** The youth was sentenced to basically, time served and was released thereafter. SIX await trial now (four plead guilty). MS ***
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