Bi-Weekly Briefing- Sept 25-Oct 16, 2020
SCC accepts Crown appeal on jury selection error in Via Rail case
The Supreme Court of Canada overturned an Ontario Court of Appeal decision that ordered a new trial for Raed Jaser and Chiheb Esseghaier, the two individuals found guilty of terrorism-related offences surrounding a plot to derail a Via Rail train. The accused appealed the decision from the Ontario Superior Court of Justice on a number of grounds, including whether Esseghaier (who had displayed signs of schizophrenia) was fit to stand trial and if the judge should have denied Jaser’s application for a separate trial. One issue in particular, whether there were errors in jury selection, was severed from the others and dealt with first. This was the sole issue heard by the SCC.
Ultimately, the SCC disagreed with the lower court’s finding that an improperly constituted jury had a palpable impact on the verdict. Justice Moldaver, the most outspoken of his colleagues, strongly disagreed that Jaser had been put at a disadvantage by being deprived of rotating triers, the defendant’s preferred option for jury selection.
Given that the balance of the grounds of appeal have not been considered yet, media coverage stating that there would be no new trial is somewhat misleading. The remaining issues will now move forward at the Court of Appeal. A webcast of the SCC hearing can be viewed here.
Canadian orphan freed from camp in Syria, will return to Canada
A five-year-old Canadian girl who had been living in a detention camp in Syria was repatriated to Canada last week. The orphan girl, known as Amira, was found wandering roads in a severely war-torn region of Syria before being taken into the Al-Hawl camp. Her parents and siblings were most likely killed by an airstrike amid the ongoing war against ISIS. Amira’s parents, both Canadian citizens, are believed to have moved to Syria to join the Islamic State.
Her extended family and human rights organizations were actively engaged in getting Amira back to Canada. A statement by the Minister of Foreign Affairs says Global Affairs Canada had also been involved. Prime Minister Trudeau declared Amira’s matter an exceptional case which could indicate her return is unlikely to set precedent for other Canadians detained in North Eastern Syria.
Unlike Amira, more than 20 Canadian children in Syrian camps still have parents who may be tied to ISIS.
National Security and Intelligence Committee of Parliamentarians to review Global Affairs Canada and Government’s defence systems against cyber attacks
The National Security and Intelligence Committee of Parliamentarians (NSICOP) announced that in the coming months it will conduct two reviews of national security and intelligence activities. The first review relates to the activities of Global Affairs Canada (GAC), a government department that “collects information on security issues, liaises with allied intelligence organizations and supports the work of the security and intelligence community through its missions abroad.” The second review is on the Government of Canada’s “framework and activities to defend its systems and networks from cyber attack.”
Each review casts a wide net, seeking to cover a number of issues before it concludes in 2021. The press release sets out the primary goals of the GAC review: to survey a department that, despite being a key player in Canada’s national security matters, has not yet been subjected to review by an external and independent party. NSICOP intends for this review to benefit both Parliament and the general public by providing insight into GAC’s conduct.
In the second review, NSICOP will chart the evolution of cyber defence in Canada, examine the responsibilities of the Communications Security Establishment and the Canadian Centre for Cyber Security, and learn from case studies where government systems have been compromised by cyber attack.
It is unclear whether the review is related to the growing number of cyber security incidents reported in Canada since the Covid-19 pandemic. For example, the Treasury Board of Canada disclosed that over 48,000 Canada Revenue Agency accounts displayed suspicious activity after attacks in July and August and the Canadian Centre for Cyber Security has warned that Canadian research to find a vaccine for the novel coronavirus is being directly targeted.
Burlington man charged in terrorism hoax
The RCMP arrested and charged Shehroze Chaudhry under Canada’s terrorism hoax law. As far back as 2016, the Burlington man claimed he had travelled to Syria to join the Islamic State and took part in horrific actions such as the murder of civilians. Following an investigation, the RCMP allege that Chaudhry’s claims are, at least in part, untrue.
On the New York Times podcast, Caliphate, Chaudhry appeared to confess participating in the execution of Sunni Muslim men. That he had afterwards found his way back to Canada raised a number of questions in the House of Commons. Conservative politicians pressed Public Safety Minister Ralph Goodale on whether adequate steps were being taken to keep Canadians safe.
A news release following the RCMP’s O Division Integrated National Security Enforcement Team (OINSET) investigation states, “Hoaxes can generate fear within our communities and create the illusion there is a potential threat to Canadians, while we have determined otherwise.” This implies that Chaudhry falsely created a reasonable apprehension that terrorist activity is occurring or will occur. Terrorism hoax charges carry a term of imprisonment not exceeding five years.
Independent review finds internal culture in CSIS does not value warrant process, sees it as burdensome
Morris Rosenberg, a former federal deputy minister of justice, has completed an independent review on CSIS addressing issues in the spy agency’s actions and internal culture with regard to the investigative warrants process. The review, which began in September 2019, revolved around a series of breaches of full and frank disclosure before the Federal Court and sought to understand how CSIS employees understood and accepted reasons for court decisions on warrants. According to Rosenberg, CSIS employees see the warrant process as “burdensome” and a “necessary evil.” Many workers believe it impedes upon intelligence work.
Rosenberg found varying levels of CSIS employee comprehension regarding the agency’s duty of candour. As the SCC ruled in Ruby v Canada (Solicitor General), “In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld.” Over the past several years, the Federal Court has expressed concern that, on its investigative side, CSIS as well as lawyers from the Department of Justice appearing on its behalf in warrant applications have not met this duty of candour.
Rosenberg’s review follows a series of other inquiries on CSIS’s duty of candour, including the Segal Report and, pursuant to it, recommendations made by John Sims. Likewise, the Federal Court released a decision this summer where Justice Gleeson ruled that CSIS failed to proactively disclose information that was likely derived from illegal activities by the spy agency. Rosenberg, like Sims, found that CSIS employees will likely benefit from increased training modules and education on candour requirements.