Does Canada have a problem prosecuting terrorism?

When you work in national security you do the best job you can to stop bad things from happening. If those bad things involve terrorism what you are trying to do is to prevent attacks from taking place. You identify potential terrorists, follow them, determine which ones are serious about actually doing something, run sources or get court-ordered intercept warrants to be as up to date as possible on their plans, and then arrest and charge them before anyone gets hurt. Then the whole shebang is in the hands of the courts.

It sure looks like Canadian courts are not doing a good job once the ball is in their court (hmm, that came across awkwardly!).

A jury conviction in the 2013 plot to derail a VIA train has been thrown out over a ruling that the jury in question was ‘improperly constituted.’ According to Carleton University’s law specialist Leah West, the difference between ‘static’ and ‘rotating’ triers, i.e. those who decide who eventually sits in to hear a trial, has “a huge impact on how the jury gets made up.” My understanding is that the wrong method was used in the original trial. So now convicted terrorists Chiheb Esseghaier and Raed Jaser will get a new trial and may in fact be freed on bail if their application is successful.

Let me repeat this: two convicted terrorists who planned to DERAIL A PASSENGER TRAIN may soon be free on bail on a technicality.

I cannot and will not weigh in on the specific legal issue as I have no expertise in that: I will defer to people like Ms. West on this. I do feel qualified to ask, however, whether Canadian courts are doing an adequate job at prosecuting terrorist cases. Here are some of the cases we have seen since 9/11:

I think you get my point.

Why can Canada not get this right? And yes, I am biased as I know from my time at CSIS working on terrorist cases much like these that there is intent and capability to engage in terrorism. So what is the problem? I can think of a few possibilities:

  1. Courts – judges, juries – do not understand terrorism. They are not qualified to grasp the ideology underpinning terrorist intent. Chiheb Esseghaier is a good example. Many have said he is mentally ill and that his courtroom anti-democracy rantings are proof. I am not a mental health practitioner but I know for sure that his ‘rantings’ against democracy are 100% consistent with the jihadi mindset;
  2. The Crown is not availing itself of the best witnesses and court experts to make its case or is going forward with cases that are not strong enough;
  3. The evidence put forward by the RCMP is equally non-compelling. To this I would add the conundrum of the inability (or unwillingness) to use intelligence gathered by CSIS in Canadian courts.

Beyond that I don’t know how to fix this problem. All I know is that terrorists, bona fide terrorists, are getting off. We are looking foolish on this matter. Other countries seem to have much greater success in prosecuting and incarcerating terrorists, such as the US. I am not suggesting that we follow their model, where those found guilty get multiple-decade sentences, but something is definitely amiss here.

Perhaps we in Canada do not really think terrorism is important. After all, we have not had a major successful attack to grab our attention and focus our minds. We have not had our ‘9-11’: Spain, France, Belgium and the UK have. Do we need one to shake us up ? I sincerely hope not as that would be a catastrophic price to pay to treat terrorism with the seriousness it deserves.

Still we have to get better at terrorism trials. Fair trials to be sure, but trials where the enormity of the effects of terrorism are better appreciated.

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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