Canadians seem to have a love-hate relationship with their security and law enforcement agencies. They rightfully demand to be kept safe and want their spies and cops to stop terrorism and serious crime before it happens. At the same time they sometimes express horror at the methods used to guarantee that safety. I am fully in favour of having CSIS and the RCMP abide by the law and the Charter while they carry out their mandates – after all, questionable RCMP legal ‘shenanigans’ led to the creation of CSIS in the first place back in 1984 – but I do find this high dudgeon a little naive.
Such is the case in an ongoing trial in Ottawa of Awso Peshdary, accused of being a financier and recruiter for Islamic State. It is important to point out that Mr. Peshdary was first arrested back in 2010 in conjunction with the RCMP’s Operation Samosa, an investigation that led to two convictions (Hiva Alizadeh and Misbahuddin Ahmed) and an acquittal (Khurram Sher). Mr. Peshdary was released in that case and of course we must not let that instance affect the current trial, although it is quite clear to me, and should be to you, that he has a certain track record when it comes to Islamist extremism. One of his alleged ‘star recruits’ was John Maguire, a Canadian IS terrorist who was the subject of an infamous IS propaganda video back in 2015 and who is now believed to be dead.
The controversy now seems to be over a human source that CSIS used in its look at Mr. Peshdary. According to a CSIS assessment that an Ontario judge ordered disclosed to the team defending Mr. Peshdary, the source, Abdulah Milton, was deemed to be “parasitic with a psychopathic flavour”. There are other items that paint Mr. Milton in a not-so-great light. The defence will obviously use this to challenge the Crown’s case against its client, maintaining that one of the key witnesses is unreliable.
News flash! CSIS uses people that we would not see as upstanding citizens to gather intelligence! Is anyone surprised by this? Do police forces send nuns to infiltrate gangs? Are girl guides good sources in prostitution rings? Should the pope be asked to spy on the Mafia? Come on people, get real. You have to use what we sometimes called ‘shit rats’ to catch other shit rats. This is how intelligence and law enforcement work. Your source has to be seen as credible by those you are targeting. If not, that source is ineffective or, in the worst case scenario, ends up dead.
There is lot about this that stinks and the judge erred in allowing the defence to see CSIS material. I support a fair and transparent trial and agree that the defence needs full disclosure from the Crown but what CSIS knew is irrelevant on several counts. First and foremost, CSIS information was not used to bring charges against Mr. Peshdary – it is an RCMP case. The defence has every right to see everything the RCMP has on its client but that right should not extend to CSIS. Trials in this country are based on evidence, not intelligence: the RCMP collects the former while CSIS collects the latter. Intelligence is not gathered to a standard admissible in a Canadian court according to my understanding of how this system works. What CSIS had or what it thought of Mr. Milton is relevant only to its investigation into Mr.Peshdary and his Ottawa network of terrorists, nothing more and nothing less. If it felt that Mr. Milton was an unreliable source it would take that into consideration when assessing the threat that Mr. Peshdary posed.
Secondly, the way CSIS and the RCMP collaborate is well-established and firewalled. CSIS can advise the RCMP that it knows something related to national security so that the Mounties can begin their own investigative efforts: kind of ‘hey, look over here!’ Once that advisory is sent, the RCMP has to mount its own case with its own warrants and human sources, ensuring that what is collected is consistent with evidentiary standards. What CSIS knows and continues to collect is not germane to the case the Crown presents. The two agencies may engage in what are known as ‘parallel’ investigations: they do NOT do ‘joint’ investigations.
I fear that judges are bending over backwards too far to appease defence requests to get a peak behind the CSIS curtain. This is a mistake. We have decided, rightly or wrongly, that intelligence and evidence are to be kept apart in this country. Having CSIS intelligence disclosed in open court undermines the valuable service the organisation performs for Canadians, does nothing to guarantee a fair trial and on the contrary makes us less safe. Do we really want to go down that path?