HOPE FOR CANADA’S NEW TERROR UNIT
Can it address ‘inconsistent’ record in trials?
National security and legal experts say they’re hopeful Ottawa’s plan to create a new office specializing in terrorism prosecutions will improve this country’s track record of holding accountable those who threaten public safety.
“It’s been an inconsistent track record,” said Phil Gurski, a former CSIS analyst and president of Borealis Threat and Risk Consulting Ltd. “My initial reaction is ‘yay,’ but the form this thing takes dictates whether it means anything. The devil is in the details.”
Prime Minister Justin Trudeau recently directed the ministers of justice and public safety in their mandate letters to “coordinate efforts to prosecute terror suspects to the fullest extent of the law” and create a new office of Director of Terrorism Prosecutions.
Since Canada’s adoption of the Anti-terrorism Act in 2001, 56 people have been charged with terrorism-related offences in this country, according to the Public Prosecution Service of Canada’s most recent annual report.
The outcomes have been mixed. In February, federal prosecutors announced that Rehab Dughmosh had been sentenced to seven years in prison after being found guilty of leaving Canada to participate in the activities of a terrorist group and other offences. Prosecutors said she had tried to travel to Syria to join the Islamic State in April 2016 and used a knife and a golf club to assault people at a Canadian Tire store in Scarborough, Ont., in June 2017.
When Ayanle Hassan Ali went on a knife rampage at a Canadian Forces recruiting centre in Toronto in 2016, injuring two people, federal prosecutors took the position he did so for the benefit of, at the direction of or in association with a terrorist group of which he was the only member.
But the trial judge found him not guilty of the terror charge and found him not criminally responsible for other offences, including attempted murder, on account of mental disorder.
The Crown tried to make the case on appeal that a “lone wolf” can commit an act of terror to advance his own self-constituted terrorist group. But the appeal was recently dismissed by the Ontario Court of Appeal.
Citing errors in jury selection, Ontario’s top court this past summer ordered a new trial for Raed Jaser and Chiheb Esseghaier, who were convicted of conspiracy to commit murder for the benefit of a terrorist group and for participating in terrorist activity in relation to a plot to derail a Via passenger train.
Michael Nesbitt, a law professor and fellow at the Canadian Global Affairs Institute at the University of Calgary, said terrorism cases are notoriously difficult to prosecute, which likely accounts for why the rate of acquittals is higher than for all criminal cases — 12 per cent versus 4 per cent, according to a paper he published in 2018.
Prosecutors, for instance, have to show the perpetrators not only intentionally caused death or serious harm (or risk of harm) to the public but were motivated by an ideological, political or religious purpose, he said.
They also face potential complications related to disclosure of information. The gathering of intelligence and evidence typically involves multiple agencies, such as CSIS and the RCMP, as well as foreign partners. Questions inevitably come up: how did those agencies communicate with one another? How was information obtained? What are they obligated to release?
Nesbitt agrees it would be helpful to have a director of terrorism prosecutions to standardize charging practices, help give more uniform advice to the RCMP and CSIS about their disclosure obligations, build up expertise within the prosecutorial ranks, and weed out any biases that may exist.
Nesbitt noted, for instance, that prosecutors have directed most of their terrorism charges at extremists who were inspired by alqaida and Islamic State but not far-right extremists, such as Alexandre Bissonnette, the man behind the deadly Quebec City mosque shooting in 2017, or those involved in the financing of Hezbollah.
“How, when and why the government is choosing to classify some attacks as terrorism and not others has become hard, if not impossible, to figure from outside government,” he wrote in a soonto-be-published blog post.
The idea for a director of terrorism prosecutions was first proposed in 2010 in the final report of the inquiry into the investigation of the 1985 bombing of Air India Flight 182. It recommended that “one unit should be responsible for dealing with all aspects of terrorism prosecution,” including managing the relationship between government agencies, providing legal support to law enforcement agencies and ensuring the secrecy of intelligence operations is maintained while making sure rules on disclosure of information are followed.
The report recommended the new director of terrorism prosecutions serve under the Attorney General of Canada and help “create a pool of experienced counsel for terrorism prosecutions.”
University of Toronto law professor Kent Roach, who served as research director for the inquiry, said having the new unit serve under the attorney general makes sense given the need to consult with allies and domestic agencies about secrecy claims.
“I agree it is best to integrate both those who prosecute and those who make secrecy claims because in difficult cases there may be trade-offs between keeping Canadian (and our international partners) secrets and having a prosecution go forward with enough disclosure to the accused to make the trial fair,” he wrote in an email. “The secrecy issues have been a challenging aspect of both terrorism and espionage cases so it would make sense for the office to do both.”
Nesbitt, however, suggests the new director of terrorism
THE SECRECY ISSUES HAVE BEEN A CHALLENGING ASPECT OF BOTH TERRORISM AND ESPIONAGE CASES
prosecutions should be housed within the Public Prosecution Service of Canada, so as to avoid having two streams of prosecutors — one involved in terrorism and one involved in other federal crimes — reporting separately to the attorney general.
He also advises against centralizing the new unit in Ottawa or Toronto, to allow for involvement of prosecutors elsewhere in the country who know how to respond to regional differences in terms of threats and approaches to litigation.
It is unclear where the creation of a new director of terrorism prosecutions sits in Justice Minister David Lametti’s priorities. His mandate letter from the PM asks him to lead an “immediate” process, for instance, to develop a new framework for sick people to receive medical assistance in dying.
In a statement, Lametti’s office said: “Under our government, Canada has already convicted four individuals for terrorism-related offences after their return to Canada, and another returnee has been charged . ... The creation of the Director of Terrorism Prosecutions is in line with recommendations from the Air India Commission, and would help build specialized expertise on terrorism cases — which can be quite complex.”
The office declined, however, to offer a timeline, saying only it would work “expeditiously” with the public safety minister to create the new office.