CSIS and the courts at loggerheads?

These past couple of months have not been good for Canada’s spy service.  First, the Federal Court ruled that CSIS has been negligent in informing it of a programme whereby it ‘illegally kept’ data (which it had collected legally under warrant) on Canadians.  Then there is the criticism that the Service shared questions with the Syrians on three Canadians in the early 2000s that may have contributed to their torture (and for which the Trudeau government has apologised and compensated the men).  Now a court in Ottawas has ordered CSIS to hand over to the defence its information on a former source turned RCMP agent.  The implications of this third strike are huge – as I hope to show – but there is a larger issue of relations between CSIS and the courts that is more important going forward.

But first, the demand by an Ontario Superior Court judge that CSIS disclose its records on Abdullah Milton, a human source that worked for the Service from 2011 to 2013 before heading over the RCMP as an agent as it built its case against Awso Peshdary, a man accused of being a terrorist recruiter and financier.  This is the same Peshdary that was arrested in conjunction with Operation Samossa back in 2010: charges were dropped in his case.

Mr. Peshdary’s lawyer claims that without full disclosure of all CSIS documents he is essentially “blindfolded” from meaningful cross-examination of Milton.  This is rubbish.  Mr. Milton did not collect evidence for CSIS, he collected intelligence.  In Canada, the former but not the latter is collected to a standard for use in court.  What Mr. Milton told CSIS must remain secret if we want our intelligence agency to be able to perform its duties.  Besides, the court case against Mr. Milton was prepared by the RCMP, not CSIS, and the defence will have full access to what Mr. Milton’s evidence has to say.  The contention that CSIS information is required to determine the agent’s motivation, whether he acted as ‘a neutral observer or an active participant in the terror network’, is bogus: that determination can be made from the RCMP evidence.

If the courts continue to force CSIS intelligence into the open, our spies will begin to lose human sources (in Mr. Milton’s case he was both source and agent, but his case is an exception).  Many people will work for CSIS and provide critical intelligence on threats to national security only because they have been assured that their identities will be kept secure and they will not have to testify in court.  If that assurance is not there, some will back away.  This decision changes everything and sets a dangerous precedent.  I am not a fan of ‘slippery slope’ arguments, but this may be the one occasion on which I will use that analogy.  CSIS should challenge the ruling.

But the bigger question is why the relationship between CSIS and the courts seems to have fallen on hard times.  To that I have no answer.  If I were to speculate it may come down to misunderstanding and traditional secrecy.  The courts need to acquire a better understanding of national security, intelligence and the relationship between the two (full disclosure: I have provided training on terrorism and radicalisation to court officials on many occasions) in order to better deal with what CSIS has to offer.  For its part, CSIS has to acknowledge that it needs to get beyond the reflexive, albeit understandable, mentality that secrets must remain secret.  There is much more that it can disclose and there are ways in which it can disclose even those parts that are particularly sensitive.  The Service must get better at explaining what it does and why it does it to the judiciary.  A strained relationship between CSIS and the courts is in no one’s interest.

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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