Our protectors need better support from the courts

There is a constant battle between what are commonly called good and evil. Good in this case consists of the men and women who toil on our behalf to keep us safe: in Canada that would be the security service (CSIS), law enforcement agencies (RCMP as well as provincial and municipal police services) and others. Evil is represented by criminals of varying stripes, terrorists, etc. Sometimes it seems as if the latter are always one step ahead of the former.

The field is indeed tilted. Good guys have to play by the rules; bad guys don’t (in fact they break those rules). After all, we have rules for a reason as a world without them is anarchy and I have seen enough dystopian films in my life to know that no one wants to live in that kind of society.

The rules are also there to keep the good guys in check since it is not unheard of for the aforementioned agencies to cut corners, seek shortcuts or willfully break the law to ‘get their man’. In the world of security intelligence allegations of massive spying on a country’s citizens have not helped maintain the image that the good guys are indeed good.

The body tasked with ensuring that the good guys keep to the rulebook is generally the court. As far as I may be from a specialist on the law I still think that our courts do a decent job. A few recent decisions are starting to make me wonder though.

Two Ottawa men were found not guilty of robbery, assault and weapons charges after the case against them fell apart when wiretaps were deemed inadmissible by the court which found that police were “lacking in reasonable and probable grounds” to get a warrant and thus ruled that the suspects’ Charter rights had been violated. Without the wiretaps the Crown’s case all but collapsed.

Similarly, a Federal Court dismissed a Canada Border Services Agency (CBSA) request to deny bail to a man alleged to be a supporter of Islamic State (IS). Despite posting pro-IS propaganda, a judge found Othman Hamdan not guilty of terrorism two years ago, but because he is a foreign citizen CBSA subsequently arrested him to be processed for deportation back to Jordan. CBSA had stated that it assessed letting Mr. Hamdan out of detention would put Canadians at risk.

In the former instance there is already a fear that many other convictions of dangerous criminals, including gangbangers and drug dealers, could be thrown out on appeal over wiretap authorisations. In the latter case the alleged IS supporter will be allowed to live, under conditions, 90 minutes away from a dam that he had noted online would make a ‘potential target for a terrorist attack’.

Am I the only Canadian who thinks this is insane??

As noted I am summarily unqualified to weigh in on the legal aspects of these rulings. I am, however, in a position to comment on what this means on two other fronts. Firstly, from a good guys perspective these events are demoralising. Whether you are CSIS investigating an IS terrorist or a police agency trying to stop gang killers or CBSA trying to punt those who do not belong here you go to work every day with one goal in mind: doing your utmost to keep Canadians safe. When all your work is thrown out on a technicality or a Charter ruling you may feel ‘why bother’? Whatever the decision, IS sympathisers and gang members are not nice people and do pose a threat to public safety. Yes of course they deserve to have fair and open trials and see that their rights are respected, but they still remain bad guys who are most probably going to re-offend once free much along the same lines that got them to court in the first place.

Secondly, no matter what the courts say there is the much more important court of public opinion. Even if I imagine that most of those who belong to that court are as ignorant of the law as I am, they are nevertheless as frustrated, if not more so, as the good guys are when they see the bad guys get off for reasons they see as inadequate. This court of course has no power and no jurisdiction but it can still leverage some influence through whom it chooses to follow and support. By this I mean that there are those out there who are very angry about a lot of things (immigrants, Muslims, ‘lax’ courts, etc.) and who are channeling that anger into creating groups and even political parties (Maxime Bernier’s PPC anyone?) that could attract voters fed up with courts that are ‘soft on crime/terrorism’. This could feed populism in our country and, God forbid, a government similar to what we see in the US and several European nations.

I am not trying to overdramatise this impatience and ire but I do think it is worth keeping an eye on. Courts have to take into consideration the greater good and not focus narrowly on the letter of the law. And the agencies we have created to try to keep us safe need a better system of support from those same courts.

I too believe in rules and the maxim ‘innocent until found (beyond reasonable doubt) guilty’. But I also believe that bad actors must pay a price for their actions. Is that too much to wish for?

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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