A good synopsis on how Canadian courts are doing in terrorism cases

I just read a really good paper on counter terrorism and the courts written by a Canadian scholar from the U of Calgary, Michael Nesbitt. This is a rare occurrence for me for several reasons. First, there are far too many offerings that are far too theoretical for me and don’t have any real data in them (something my Dutch friend Bart Schuurman has been writing a lot about lately). As an ex-practitioner I had (and still have) little interest in one more treatise on terrorism. More importantly, the vast majority are locked behind paywalls and I am loath to pay $50 for short access to a piece I will likely find of little use to me. So Mr. Nesbitt’s open access paper came as a pleasant surprise.

In his paper he outlines all the terrorism cases that have been brought before Canadian courts since the passing of the Anti-Terrorism Act in the immediate aftermath of 9/11. He walks the reader through each and supplies copious notes to news articles and actual legal decisions: I am not sure that anyone else has done this in Canada to date.

While I really like his effort, there are a few things to quibble over. Mr. Nesbitt points out that in all the trials so far – 54 – most defendants were male, did not have previous criminal records and were all, with the exception of one case, linked to Islamist extremism. None of this is new. All these things have been known for more than 15 years. How do I know? Because I was part of a team at CSIS that told the government this ad nauseum in briefing after briefing after briefing. I am not so sure that the officials in attendance were either listening or grasped what we were telling them. This, I think, points to a larger problem with the use of intelligence in the Canadian government (not that Mr. Nesbitt is part of this).

The second point – his claim that the focus on Islamist extremism has been ‘disproportionate’ – is inaccurate. When you work in security intelligence or law enforcement you investigate what matters most, i.e. where the threat is greatest. It is simply impossible not to conclude that over the past two decades the terrorist threat from Islamist extremists has been – and to my mind continues to be – the greatest one to Canada, hence all the court cases. Mr. Nesbitt asks where all the right wing terrorist prosecutions have been. My reply is simply: there was no need to prioritise what was not there. This may indeed change as some say and if so there will be a rejiggling of resources at CSIS and the RCMP.

I therefore reject his recommendation that we have not been taking RW extremism seriously as security intelligence and law enforcement agencies. Let me phrase it differently: if we had ignored this threat for reasons ranging from ‘confirmation bias’ (his words, not mine) to a failure to see this form of violence as terrorism, then we should have had multiple body counts from successful attacks (which we did not stop because we were not looking at these actors). So where are all these successful attacks? Nowhere (with the exception, possibly, of Quebec City, and even there terrorism charges were not laid). In this vein I do admire the work of Barbara Perry and Ryan Scrivens on the far right in Canada but their list of RW attacks strikes me as an overly generous definition of terrorism.

One last thing. As an ex-spy I never took it kindly when outsiders told me how to do my job. In my way of thinking, if you haven’t walked a kilometre in our shoes don’t tell us how to tie them. I don’t tell academics how to do their tasks: we in the ‘business’ would appreciate a quid pro quo.

None of this is to detract from Mr. Nesbitt’s effort, which I see as a valuable, DATA-DRIVEN contribution in all too small Canadian field of enquiry. I see this paper acting as a good source for future work. Well done Mr. Nesbitt!

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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