CSIS was back in court again last week fighting to keep the details of its involvement in a B.C. terror case under wraps, saying that a public examination of its behaviour would threaten national security and put lives at risk.
This is the second time this month that CSIS has requested an extraordinary closed-door session of the trial, with the media and public shut out. And this time, they went one step further:
[A] lawyer representing the Canadian Security Intelligence Service argued some of the information is sensitive enough to national security that part of the closed-door proceedings must also exclude both defence and Crown lawyers, with only intelligence agency lawyers and the judge present.
“Submissions would have to be provided on that basis or not at all,” Donaree Nygard told the judge in Vancouver.
“The circle of privilege must be maintained. … My client is willing to open up the privilege to your ladyship, but no further.”
This extremely unusual demand comes at a critical juncture of the ongoing trial of John Nuttall and Amanda Korody, who were found guilty last June of terrorist offences in relation to their plot to plant pressure cooker bombs on the grounds of the B.C. legislative building on July 1, 2013. Their convictions have not yet been entered pending a finding from B.C. Superior Court Justice Catherine Bruce on whether or not they were entrapped by the RCMP, which conducted a massive 240-officer sting operation on the pair. A finding of entrapment or of police abuse of process would nullify their convictions.
CSIS’s involvement in the case has always been somewhat murky. Last June, when Justice Bruce began addressing the question of entrapment, Nuttall’s lawyer, Marilyn Sandford, surprised observers of the case by asking the RCMP to turn over any communications they had from CSIS about her client. Nuttall and Korody were alleging that CSIS operatives or informants were active at a mosque they attended, and suggested that their connection to the sting operation might be significant, as the Vancouver Sun reported at the time:
The Canadian Security Intelligence Service had “human resources” operating in Metro Vancouver mosques between 2011 and 2013 who may have acted as Jihadi agents provocateur, the Surrey couple found guilty of terrorism are suggesting.
John Nuttall was so concerned after meeting one or more of these people while attending a local mosque that he met with the spy agency to turn them in.
In a bizarre turn to an already strange trial, the court heard that in late 2011 or early 2012 Nuttall had his landlord set up a meeting with CSIS in which he offered to inform on the Islamic extremists.
As a result of the meeting, defence lawyers implied that Nuttall became a target while the extremists he identified may have been or became “human resources” for the agency.
Suggestive, certainly, but also confusing. The allegation that CSIS operatives or sources were acting as agents provocateurs pushing violent jihadism is explosive, although it must be pointed out that it is also completely unproven. The RCMP produced the requested correspondence with CSIS, which amounted to no more than a terse single line advising them that John Nuttall may be a threat to national security.
Even the judge found this suspicious, and she demanded that the Mounties turn over any information they may have that was not put into writing, saying it was obvious that police knew more than what they had put into their notes.
Meanwhile, Sandford worked on securing the release of documents relevant to the case from CSIS itself. This process wound up being a roundabout wild goose chase, as I reported last week:
[After the RCMP’s one-line document dump], as far as the public was aware, the defence’s quest for documents seemed to go cold. But as we learned from the transcripts, they took the fight directly to CSIS itself, which necessitated a change of courts. Under Section 18.1 the CSIS Act of 2015, passed in the dying days of the last Harper Parliament, the Federal Court of Canada has exclusive jurisdiction to hear applications for disclosure from CSIS.
Sandford therefore appealed to that court in July 2015, and the proceedings there were subject to numerous delays on the part of CSIS which were egregious enough to provoke concern from the presiding judge. The proceedings also included an in-camera hearing in which the defence was not even allowed to be present, and had the process continued, CSIS would have been allowed to file their arguments to the judge on a confidential basis.
To be clear, this is apparently standard procedure for this type of case – secret one-sided court sessions and Crown arguments to which the defence has no access and no right of reply.
In November, a different judge in a separate case found that the CSIS Act did not apply retroactively, and as it was passed well after the events in question occurred, the whole process was terminated and transferred back to B.C. Superior Court for Justice Bruce to rule on.
CSIS’s lawyers appear to have grown accustomed to the more friendly environs of the Federal Court of Canada, in which they are routinely able to meet privately with judges and file arguments confidentially. Such requests are extremely unusual in most contexts.
Justice Bruce seems to have rather less patience for these requests than her colleagues in the Federal courts. She granted CSIS’s request for a closed session a few weeks ago, but after appeals from a coalition of local and national media organizations, she ordered a redacted transcript of those proceedings to be released publicly (which you can find here and here if you’re interested). This week, she denied CSIS’s application for a second closed session, conceding that the courtroom may be temporarily cleared if especially sensitive information must be raised, in which case any legal arguments made must be put in writing and released to the public with any sensitive information excluded.
One can easily see how these loose guidelines could quickly become the subject of contention, but it’s reassuring that Bruce didn’t cave in to CSIS’s alarmist rhetoric and absolutist take-it-or-leave-it demands. The type of special treatment they were asking for is, frankly, dangerous. Essentially, they want it to be impossible for their actions to be scrutinized by the public in open court, ever, and in certain circumstances they want to be able to exclude even Crown and defence attorneys from hearing their evidence or their legal justifications for their behaviour.
That’s a problem for a few reasons. First of all, open courts serve as a check against the power of the judiciary. Knowing that the public and press will scrutinize their decisions helps keep judges honest. Additionally, the absence of defence lawyers means judges miss out on a vital contrary perspective, a check against powerful organizations like CSIS overstating their cases.
Second, though situations like this are as far as I know extremely uncommon if not unprecedented, they won’t necessarily stay uncommon going forward. Given security agencies’ new powers of “disruption” (i.e. lawbreaking) under C-51, CSIS’s direct and legally questionable involvement in “terror” cases is likely to become much more frequent.
This case actually shines a light on exactly what’s at stake with C-51, albeit indirectly. CSIS stands accused of radicalizing the defendants, of promoting violent jihadist ideas and pushing the defendants to embrace these ideas. As for the RCMP, as I wrote in November, Justice Bruce has already found that “the defence have raised at least a prima facie case that the RCMP officers involved in Project Souvenir [the RCMP’s code name for the operation] were engaged in unlawful acts during the undercover operation”. Those unlawful acts were, specifically, related to facilitating terrorism.
These actions took place in a pre-C-51 legal environment. Had they occurred after that law was put into place, this entire trial would have taken a different course. Both the RCMP and CSIS would be able to point to C-51’s provisions on law-breaking disruption to justify their behaviour.
As it is, they still stand a fighting chance of winning conviction in this case, despite some extremely egregious behaviour on the part of the RCMP and the allegation of even more problematic behaviour on the part of CSIS. All of this underscores the fact that a simple repeal of Bill C-51 is insufficient to guarantee Canadians’ rights and freedoms; we must go further in making security agencies more accountable for their behaviour. And that includes accountability to open, publicly-accessible courts.