Should intelligence be used in court cases?

There has been an interesting development in a terrorist court case in Ottawa.  The lawyers for Awso Peshdary, accused of being a terrorism financier and recruiter, have argued that in order to defend their client properly they need all the information that the national spy service, CSIS, has collected on him.  Complicating matters somewhat (but not too much as I shall point out later) is the fact that the primary RCMP agent who infiltrated Peshdary’s alleged network started out as a CSIS human source.  Sounds complicated, doesn’t it?  All of this raises the very timely and important issue of whether lawyers should have access to intelligence and, perhaps more fundamentally, whether intelligence should be presented  in court alongside evidence.

First, a bit of background.  Mr. Peshdary is no stranger to terrorism allegations.  He was first arrested and charged back in August 2010 as part of the RCMP’s Operation Samossa – a plot to attack a Canadian military base – in which three other men were also charged (one was found guilty, one pleaded guilty and the third was acquitted).  Mr. Peshdary’s charges were dropped in that case, but he was arrested yet again in February 2015 on different alleged terrorism offences.  His trial is not due to start until 2018: the unreasonable delay is another issue that warrants some analysis, although I will leave that aside for now.

According to an Ottawa Citizen article, the RCMP apparently had a hard time convincing a judge to agree to grant a warrant on Mr. Peshdary and required help from CSIS.   In addition, the defence intends to go after and question the motives of the source turned agent, a man named Abdullah Milton.  In the defence’s mind, the agent may have crossed the line between passive intelligence gatherer to active participant in a conspiracy.

On this last point, while part of me recognises that defence lawyers will do what they can to clear their client – that is after all their job –  I also fear that in more and more terrorism cases in Canada lawyers will use the spectre of “conspiracy” or “Mr. Big operations” to fight charges, all of this in the wake of the unfortunate and wrong-headed (in my view) appeal decision in the Nuttall-Korody case in Victoria, BC (recall that the couple had been found guilty by a jury but an appeals judge threw out the verdict when she determined that the RCMP had somehow coerced them to plan to plant bombs outside the BC Legislature on Canada Day 2013).  If this is indeed a new trend we are collectively less safe and our security intelligence and law enforcement agencies are less effective.

But back to whether or not the defence should be granted access to CSIS material.  The short answer is no.  The even longer answer is still no, at least not without significant changes to how CSIS collects and uses intelligence.  Allow me to explain.

CSIS collects intelligence, not evidence.  There is a fundamental difference.  There is something called an evidentiary standard for the amassing of information to be used in a Canadian court and CSIS does not operate to that standard (we could argue whether it should but the fact is that it does not do so now) while law enforcement agencies such as the RCMP do.  Secondly, and this comes right from the CSIS Act, it is illegal to disclose the identity of a human source or any information that could be used to identify that human source.  As the Act rightly notes, human sources must remain confidential or else no one would offer to provide intelligence to the Canadian government.

In this case the defence is arguing that since the agent is now publicly identified and has apparently waived his privacy privilege the clause pertaining to source confidentiality is not applicable.  Maybe, but the information collected while he was employed by CSIS is still untouchable (CSIS rightly protects sources and methods even if in some cases the source agrees to become an RCMP agent – this happened in the Toronto 18 case as well).  Mr. Milton collected intelligence, not evidence, when he was in the pay of the Service.

There is also a fundamental principle at play here and it relates to how CSIS operates and the conditions under which it can share information with law enforcement.  If CSIS, in the course of an investigation, determines that a real threat to national security is developing, it can pass its concern on the RCMP (in the form of a disclosure).  This transfer is of a minimal nature and – this is really important – if the RCMP chooses to pursue an investigation it does so on its own grounds, with its own resources and collects its own information to an evidentiary standard.  Beyond the minimal CSIS disclosure, the Service’s intelligence is not used to further an RCMP file.

In the Peshdary case, the Crown elected to have the RCMP arrest him and lay criminal charges based solely on the law enforcement investigation of him.  The fact that CSIS told the RCMP about him is irrelevant: the merits of the case and the eventual outcome will depend on the strength of the evidence gathered and presented in court. CSIS’ role does not, and should not, enter into things and, as a result, the defence has no right to CSIS intelligence.

In the longer term, there have been discussions in Canada on “intelligence to evidence”, i.e. figuring out a way to use intelligence in criminal proceedings. There are definite up sides – CSIS collects a lot of really good information – and down sides – if sources realise they may have to appear in open court many will decline to work for CSIS and the agency’s effectiveness will suffer.  Other countries have worked this out – we in Canada are not there yet.

We  may be on the cusp of major changes in our national security architecture.  The Liberal government has promised to create parliamentary oversight, a decision I wholeheartedly support.  What I cannot support is the wholesale unmasking of intelligence sources and information into the public domain.  If we want CSIS to continue to keep us safe, a job it does very well, we have to acknowledge that some things must remain secret.

Mr. Peshdary’s legal team should not be granted access to CSIS intelligence.  They will have to defend their client based on the evidence put before the court, not whatever intelligence CSIS may have.


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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