criminal law

Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.

Twelve Points about the Khadr Saga

I have been buried in a book project, and trying to stay away from 2017. But against my better judgment, I thought I'd take a moment to distill a few thoughts on the Omar Khadr damages settlement. As most people likely know, Omar Khadr -- the boy who was captured in a firefight in Afghanistan and grew to a man in detention at the United States' infamous Guantanamo Bay prison -- has been paid $10.5 million by the Canadian government.

This is compensation for the Canadian govenments own (mis)conduct in that matter faced with a lawsuit for a much larger amount, not some sort of holiday present.  But that fact is lost on social media.

My colleague Audrey Macklin has an excellent piece in the Globe responding to the waves of outrage -- and especially the wave of outrage from Jason Kenney. (I am sure Audrey's mailbox is full of hate mail in consequence -- mine certainly was when Audrey and I and others worked with students a decade ago to help Khadr's then-military lawyer, Lt Cmdr Bill Kuebler, navigate the Canadian legal scene. Some of those students went on to produce some excellent analysis, noted below. Tragically, Bill passed away two years ago, a young man and father and victim of the disturbing cancer cluster among those who worked at the Guantanamo court complex).

But I offer a few additional thoughts to Audrey's.

First, unlike others caught in acts of tacit complicity with maltreatment by the Canadian government, Omar Khadr is not a blameless victim. He was an unprivileged belligerent when captured in 2002 in what was, by then, a non-international armed conflict between the new Afghan government and its allies and the Taliban and remnant AQ. Being an unprivileged belligerent is not, itself, a war crime -- that is reserved for more serious conduct.  But nor does an unprivileged belligerent enjoy combatant's immunity: he or she can be held accountable for their conduct.

Second, Omar Khadr was prosecuted at Guantanamo after being mistreated, in a patently delinquent process for, in some instances, crimes made up after his conduct (and thus applied retroactively).  Put another way, the United States took a clean case and screwed it up. (Being a child soldier is not and never has been an absolute bar to prosecution for crimes.  But it does matter and the US completely ignored that as well.)

Third, along the way, for transparently political reasons, the Chrétien, Martin and Harper governments refused to seek Khadr's repatriation.  And the Harper government in particular made an art of this refusal, claiming falsely Khadr could not be prosecuted in Canada. My students wrote a 150 page paper laying out how this was wrong (when they presented that brief before a parliamentary committee certain Conservative MPs derided them, just because). The Obama administration would have been happy to be rid of Khadr.

Four, but still the government stuck to its guns, and was slapped with two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations -- including under the Charter -- in using Khadr's detention in a system violating international law as an interrogation opportunity.

Five, that meant that the government now had its own legal exposure for, essentially, a form of complicity, as it did in other cases and still does for still others before the courts.

Six, the government will eventually lose such cases. For one thing, as with Arar, Almalki, Elmaati, Nureddin and (likely in the future) Abdelrazik, there were ample court or commission of inquiry findings setting out its wrongful conduct in graphic detail. The government can (and often has) engaged in procedural trench warfare in court to try to stuff Pandora back into her box -- but it takes a particularly unedifying government to dispute a meritorious case with endless legal chicanery. Plus, the ultimate legal costs will likely exceed any settlement.

Seven, even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit.  And whether your case has merit or not, it is usually not a great idea to allow the plaintiff's lawyer to get a bunch of senior government and security agency officials on the stand in open court and rip them to shreds.

Eight, and so that is why it is a very smart idea to settle cases like Omar Khadr's.

Nine, but that is not to say, again, that Khadr was a blameless victim. Whatever may have happened in that 2002 firefight, he was an obvious unprivileged belligerent. There is now no prospect of a Canadian prosecution -- the record is likely irremediably tainted by the maltreatment in Guantanamo, a prison that has become the world's largest poison pill to justice.  (And that sets aside the interesting double jeopardy issue.)

Ten, nor would prosecution now meet any of the purposes for which the criminal law serves.

But, eleven, when someone hurts another person, tort law is available to compensate for injury. Put another way, it is perfectly reasonable, in my view, that there be a civil suit in this case. I know nothing more than I have read in the media about its particulars, but the issue with the lawsuit brought by Tabatha Speer and Layne Morris may be that the default Utah judgment for $134M is also irredeemably tainted by events at Guantanamo, including the so-called confession.  What happened in that 2002 firefight has never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.

Twelve, that will make enforcing the judgment in Canada difficult.  And it may now be too late for a proper action, given limitations periods. (Although maybe not -- limitations periods and rules differ).

But bottom line: the lesson learned, once again, is that taking off the gloves and playing footsie with some basic legal principles has blowback.

The interests of justice would have been much better served had Khadr been repatriated earlier from Guantanamo.  I wonder why that never happened?

 

 

CSIS immunity from criminal culpability for acts done in foreign fighter investigations: Observations on SIRC report

In its annual report on CSIS activities released last week, the Security Intelligence Review Committee (SIRC) included some cryptic comments about CSIS overseas foreign terrorist fighter investigations.  Specifically, it stated: “CSIS should ensure its employees fully understand the extent to which certain activities present legal risks. To this end, SIRC recommended that CSIS seek legal clarification on whether CSIS employees and CSIS human sources are afforded protection under the Common Law rule of Crown Immunity in regards to the terrorism-related offences of the Criminal Code of Canada.”

It is impossible to draw definitive conclusions about what SIRC is talking about here, but a few inferences seem reasonable:

  • This comment seems to be directed at CSIS security intelligence investigations (that is, intelligence investigations) and not CSIS’s new (post bill C-51) “threat reduction” powers (discussed in my post immediately prior to this one).
  • In Bill C-44, CSIS was given a clearer legislative basis to conduct overseas security intelligence investigations, and one assumes that is exactly what it is doing.
  • And based on SIRC’s statement, CSIS has either employees or sources who are collecting information overseas on terrorism-related matters, but doing so in a manner that may expose them to Canadian Criminal Code culpability.
  • At a guess, there are two reasons why these employees/sources may have legal liability. 
  1. First, Canada’s terrorism offences are extraterritorial – they extend to conduct by Canadian citizens overseas that if done in Canada, would be a crime. The most likely candidate is “participation with a terrorist group”.  A CSIS source in a terrorist group is almost certainly someone who, along the way, has participated in a terrorist group.  Indeed, these kind of issues came up in the Toronto 18 case. And employees may also commit such crimes, while acting undercover with a terrorist group.
  2. Second, the entire Criminal Code applies to federal employees who commit an act that is crime in both Canada and the place overseas where it happens (s. 3.73(4)).  So there is a whole lot (conceivably most of the Criminal Code) that a CSIS employee might do that triggers potential criminal exposure, while they act undercover.
  • CSIS security intelligence operations include no express statutory carve-out for this criminal culpability. (CSIS’s new threat reduction powers post-C-51 do, but only if blessed by a secret federal court warrant). (I don't think s.20 of the CSIS Act provides enough cover, since it only extends peace officer protections, which I don't believe would permit illegal conduct, absent proper application of s.25.1 of the Criminal Code. And at any rate, that s.20 only applies to CSIS employees, not sources or agents. I take it SIRC has the same concerns, or it wouldn't have raises this issue at all).
  • And so if CSIS employees or sources are to be immune from criminal exposure for their conduct in security intelligence investigations, then it will be because of classic crown immunity rules.  Now, we know that the police do not possess crown immunity for illegal conduct, done as part of their peace officer duties.  That is precisely why Parliament added the controversial s.25.1, carving out such immunity, to the Criminal Code. (Shockingly, the RCMP appears not to have employed properly the s.25.1 carve out in the Nuttall case, where officers were found to be engineering a terrorism plot. They were, therefore, exposed to potential culpability).
  • What has not been decided, as best I know, is whether CSIS enjoys crown immunity in their operations. I think they are likely in a different position than RCMP: police enjoy “police independence” and thus are legally distinguishable from the Crown in their conduct of criminal investigations. CSIS does not enjoy this independence, and so can be conflated with the Crown. (Saying more than this is a research project for which I currently have no time.)
  • But even assuming CSIS enjoys such crown immunity, it seems like the sort of thing that would extend to employees.  At a guess, it is much less likely it extends also to sources.  The prospect that sources are also covered becomes more likely (I suspect) if they are more than information sources: crown immunity seems more likely if they are actual agents acting at the direction of CSIS.  An agent is just that: someone who is not an employee but who is acting under the command and control of the government.
  • But if CSIS is directing agents (or undercover employees) to do things that break Canadian anti-terrorism law, that looks like the kind of thing that probably should be done as threat reduction, and not security intelligence. And so if it is done without the federal court warrant required for those threat reduction activities that break Canadian law, we will have an issue of whether CSIS acted legally under its legislation. Indeed, the very failure to obtain a warrant here seems likely to be precisely the excess that would strip the crown immunity from the agent/employee anyway, because it does not comply with statutory immunity provision. (See para. 37 et seq).
  • And on top of that: if a person is a CSIS agent/employee, and if they are in fact committing a criminal offence -- perhaps in some sort of agent provocateur role – then even if they were immune under crown immunity, there are legal troubles. The fact of the illegality becomes critically material if criminal charges are later brought against one of the CSIS targets.  Specifically, we could have failed prosecutions against such targets when, a la Nuttall, a court concludes there has been entrapment or some other abuse of process associated with the CSIS conduct.

All of this to say that SIRC’s cryptic statement in its recent report raises a host of immediate legal issues – and we shall never know how they are resolved even though they are elemental to the rule of law, and possibly prejudicial to our ability to prosecute foreign fighters if the legal advice and subsequent CSIS conduct is amiss.

Completed Terrorism Prosecutions in Canada: Updated Table

I keep an informal, running table of completed terrorism prosecutions under the post-9/11 terrorism offences for my own reference purposes. I post the most recent iteration of that table on this blog, showing 26 completed prosecutions resulting in guilty verdicts as of last week (although in two of those cases, there was ultimately no conviction because the cases were tossed because of police entrapment). The table may be downloaded here. (If I have missed anything, I'd be grateful for an email).

New Ottawa Terrorism Arrests: The Role of the Internet

Unusually for this blog, I am posting in response to police arrests that have just occurred.  I do so, only because these arrests come at a time when we are debating a new antiterror bill (Bill C-51) with quite concerning -- in some respects, quite radical -- legal content, including in the area of free speech.  The new arrests risk becoming fodder in the political debate.

I leave it to others to discuss the difficulties of law enforcement, administration of justice, presumption of innocence and the like in a highly politicized environment.

I make here only two points: My own view is that the new arrests are not an argument for extending those laws.  Quite the contrary -- they demonstrate the long reach of those laws.  Anyone who points to these arrests and says they justify new laws asks too much of our ability to suppress logic.

Second, I voice a note of caution about the apparent emerging narrative concering "radicalization by internet".  The Ottawa Citizen reports today: the "eventual trial could offer some critical insights into how young jihadis are radicalized, recruited and sent overseas. The RCMP said Project Servant collected evidence through witness statements, social media postings, and intercepted communications, including 'different snippets from Skype'. The RCMP said the radicalization of the three men who were charged primarily took place on the Internet."

The role of the internet in radicalization (and more particularly radicalization to violence) is a topic of both active discussion (and assumptions) and academic inquiry.  It would be foolish to suggest that it never happens.  Moreover, the past is little guide to the present and future in the cyberworld.  But the available research tends to support the view that the internet is enabler, but not cause.  See the paper Kent Roach and I prepared that deals, in part, with this topic.

It is important, also, to distinguish between the internet as broadcaster (that is, the archiving of information) and the internet as communications tool.  Does the RCMP mean that radicalization took place because the men were exposed to terrorist propaganda on the internet, or does it mean (as the examples above suggest) that the internet was a communicaiton tool?

This matters: radicalization to violence caused by internet propaganda is an argument for internet censorship.  Internet use as a tool of communication is an argument for suveillance powers.

Since both of these matters raise different issues (free speech in one, privacy in another), a careful disaggregation of the facts is necessary.  There is risk in simply saying "the internet caused it" and then using that to justify the full range of censorship, surveillance, regulation etc.  The facts actually matter.

We need that criminal trial to understand what is at issue.

Backgrounder #1: Assesing the Antiterrorism Bill's New Speech Crime

Kent Roach (University of Toronto) and I have now gone "live" on our separate website, established by our book publisher Irwin Law.  This website hosts our detailed analysis of the Bill C-51, the government's antiterrorism bill.  That website is: www.antiterrorlaw.ca.  We have now posted our first detailed "backgrounder", examining in exhaustive detail the new "advocate and promote terrorism offences" speech crime.  You may link to the website and then to the full analysis by clicking here.

Terrorist Words & The Long Arm of the Law: The Existing Record

As already noted this morning, Kent Roach and I have posted our working paper on terrorism glorification offences.  In it, we emphasize that the existing anti-terrorism offences (those enacted post-9/11 in Bill C-36) already criminalize a substantial amount of speech.  Put another way, we already have terrorist speech crimes.  We then posit that going one step further and criminalizing (in addition) "glorification" or "apologie" of terrorism (aka, "Hurray the terrorists!") would be constitutionally suspect, and likely counterproductive from a counter-radicalization and security investigation perspective.

Kent and I are now working on a "report card" on the 20+ terrorism trials we have had in Canada since 9/11, in an effort to place current debates into an empirical context.

In this post, I anticipate that report by returning to the point made above on reach of the current laws.  We have had a terrorism trial in Canada in which a person was convicted of, among other things, terrorist propaganda: R. v. Namouh, 2010 QCCQ 943.

This case involved (in part) a transnational bombing plot in association with the Global Islamic Media Front, which the court found to be a terrorist group under the Criminal Code because of its activities in Europe. The accused was convicted of conspiracy to detonate explosive device (s.465(1)(c)); participating in terrorist group activities (s.83.18(1)); facilitating terrorist activity (s.83.19(1)); extortion in association with a terrorist group (ss.83.2, 346).  He was sentenced to life for the bombing plot.  But his participation and facilitation activities also attracted sentences of 4 and 8 years respectively.

What were these activities?  The accused "enthusiastically participated in most of the GIMF’s propaganda activities".  Among other things, the accused participated in conveying "a message to Austria and Germany threatening terrorist action if their soldiers are not withdrawn from Afghanistan".  The accused also participated in most of GIMF more clearly propagandistic activities, including (as described by the court):

  • analyzing the speeches of Al Qaeda leaders
  • inciting violent jihad
  • calling for support for jihadist groups
  • redistributing Al Qaeda materials
  • acting as a spokesperson for captured jihadists
  • singing the praises of jihadist leaders who died for the cause 
  • ensuring the security of online communications between jihadists
  • taking part in psychological warfare
  • providing military training with the purpose of implementing violent jihad 
  • producing a series of videos called the “Califate Voice Channel,” with the aim of transmitting news from the jihadist front
  • publishing jihadist magazines online
  • acting as an official media outlet for two groups taking part in terrorism. 

The accused was deeply invested in his cause and was not an idle apologist of things terroristic.  This undoubtedly contributed to the ultimate outcome.  But still, the behaviour cited by the Court in support of the participation and facilitation convictions ranges from outright threats to propaganda more distantly linked to violence.  Nevertheless, this propaganda style speech contributed to the convictions. 

All of this is to say that our current laws are very far reaching: terrorist propagandists may be prosecuted and convictions obtained in Canada, assuming you can find and arrest the propagandists in the first place.

Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence

Kent Roach and I have posted our working paper issued by the Canadian Network for Research on Terrorism, Security and Society and dealing with terrorism glorification offences.  The article is currently in peer review.  It can be downloaded from SSRN.  The abstract is as follows:

Since 2007, the Canadian government has repeatedly expressed interest in a terrorism ‘glorification’ offence, responding to internet materials regarded by officials as terrorist propaganda and as promoting ‘radicalization’. In the wake of the October 2014 attacks, this idea clearly remains on the government’s shortlist of responses. This article addresses the merits of such a criminal offence. It include analyses of: the sociological data concerning ‘radicalization’ and ‘radicalization to violence’; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and, the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment. This is especially true for Charter purposes, given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens or facilitates terrorism. We are also concerned that new glorification offences could have counter-productive practical public safety effects. Instead, we recommend modest amendments to the existing criminal law allowing the government to respond effectively to speech that is already criminal under existing Canadian terrorism or other criminal offences. Specifically, we favour a carefully constructed means of deleting (or at least ‘hiding’) the most dangerous forms of already criminal internet speech.

Terrorism Law’s Toolbox: What does it include and what might change after this week?

Irwin Law Books asked Kent Roach and me to prepare an FAQ on terrorism law issues in the wake of the October 22, 2014 shooting in Ottawa and the hit and run killing earlier this week in Quebec.  We have addressed questions posed by Irwin's editors and also by members of the media to various colleagues in the Canadian Network for Research on Terrorism, Security and Society.  Our discussion is posted here.

10 Minute Primer: The Predicate to Canadian Anti-terrorism Criminal Law: The Concept of "Terrorist Activity"

"10 Minute" Primers are brief overviews of Canadian national security law that I use to enhance teaching in my national security law class.  I will develop a library of such screencasts in time for the next session of my course in Fall 2013.

Click on full screen icon to see the screencast without any cropping of the margins.