Intelligence vs Evidence: A bit more detail ...

[The Bread Guy]

... via  briefing note obtained (but not shared at this point) by the CBC.  I'll share the briefing note when I can find it via ATIP archives.

As much as people want "terror travellers" nailed to the wall in every case and quickly, this seems to explain at least some of the issues at play.

A few highlights ...

... "Failing to address [intelligence and evidence] issues will severely limit the government's ability to deal with the most serious current and emerging [national security] threats and perpetuate the difficulty experienced in managing lengthy, burdensome court proceedings,"

(...)

The briefing note warned Public Safety Minster Bill Blair that security agencies are hesitant to share information with the justice system if it could put undercover agents at risk.

"This can lead to a chilling effect at the operational level, as national security (NS) agencies may be reticent to share information or collaborate to address threats to avoid the possibility of open court disclosure of sensitive information," said the briefing note, which was released with multiple portions blacked out.

"For example, it has been assessed that the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) hesitate to share information in many instances on a particular threat out of concern that intelligence sources or methods could become compromised in a potential future court proceeding, or that evidence that was collected based on an intelligence lead may need to be withdrawn in a potential prosecution if the intelligence itself cannot be protected, thereby weakening the government's capacity to prosecute, with the net result of reduced public safety."

(...)

A spokesperson for CSIS said the agency obtains information from foreign partners, human sources and "sensitive techniques including warranted intercepts and other covert methods."

"Disclosing sensitive information could affect CSIS's ability to protect and recruit human sources. Moreover, it could have a significant impact on CSIS's relationship with partners and reveal its covert methods," said John Townsend.

"Protecting CSIS information from disclosure means it cannot be relied upon to support a particular case, decision or action. In some cases, this could lead to the staying of criminal charges, settlements in civil litigation, and the reversal of administrative decisions."

(...)

The briefing note concludes that some kind of policy change needs to be made — although the intelligence agency's recommendations are also redacted.

"As an example of the challenge, absent a statutory regime that facilitates the simultaneous use and protection of sensitive information in Federal Court reviews of decisions to deny foreign investment on national security grounds under the Investment Canada Act, the government will not be able to confidently rely on intelligence when acting to counter economic-based threats," the note reads.

"Additionally, reform measures may help protect against a growing trend being employed by defendants and their counsel of seeking disclosure of intelligence that may have informed a criminal investigation and subsequent prosecution."

( ... )

The last public mandate letters to Public Safety Minisster Bill Blair and Justice Minister David Lametti (new ones are expected to be made public soon) ask both ministers to "coordinate efforts to prosecute terror suspects to the fullest extent of the law" and create a new office of the Director of Terrorism Prosecutions.

"This work is ongoing," said Mary-Liz Power, a spokesperson for Blair ...

While this is currently in play in the Cameron Ortis trial, it appears some (not all) charges have been recently dropped against someone charged after China was apparently offered RCN secrets.

 

[brihard]

Thanks, I was going to post this if you hadn't. It was an interesting article and pretty on the money form the limited bit I've seen. Notably these same considerations have also been in play in the Awso Peshdary and the Weng Manzhou cases.

The crux of this is S.38 of the Canada Evidence Act. In the normal course of things, anything the crown (meaning the police as well) are in possession of in a criminal prosecution that can possibly be relevant to the defense is presumed to be subject to disclosure, subject to certain exemptions (informant privilege, personal witness information, etc). In cases touching on national security, however - terrorism or organized crime prosecutions relying on allied intelligence; espionage prosecutions under SOIA where the evidence *is* classified material, etc - the Attorney General (through crown prosecutors/department of justice) can assert protections on certain information. This is on the grounds of national security, and/or protecting international relations.

In such a prosecution, police and crown engage in a vetting process that then goes to the National Security Group at the Department of Justice. NSG is responsible for litigating the S.38 redactions. Crown and defense in the meantime will still receive disclosures, but probably with a whole lot of black boxes drawn on it.

The S.38 hearings happen in federal court completely separate from the criminal trial (or whatever other proceedings are going on). There's a three part test, developed in the series of Ribic cases. (that was an early 2000s prosecution of a Canadian who fought overseas for the Serbs and took a CAF military observer hostage as a 'human shield' against allied bombing.)

• First, the defense needs to argue that the redacted information could be relevant. They have to do this without seeing it. The bar is quite low for the judge to find relevance. If the judge does not find relevance, the evidence is exlcuded and the test ends.
• If deemed potentially relevant, then crown has to argue the real or forseen harm to national security or international relations. If they failt o convince the judge, the evidence is admitted with redactions lifted.
• If the defense satisfies the judge as to relevance,a nd crown satisfies as to harm, the judge then needs to look at the material in its totality and determined if the national interest and the interest of transparent justice and a fair trial dictate in favour of disclosure or of maintaining the redactions. Considerable deference is given the national security, as the claim is asserted on behalf of the AG who is presumed to have a much more fulsome view than the court on what the national security implications are.

To assist the court, an Amicus Curiae is appointed. This is a security cleared lawyer who works for neither crown nor defense, but will talk to both. The amicus and the judge get to 'look under the black' at the actual documents in question in making their determinations. The amicus is there to help ensure that the interests of both sides are adequately captured and understood by the court, and to help the judge in making her or his decision.

In a mot extreme case - which happened in the Quentin Huang case the AG has an executive power to file a certificate overruling the federal court's order to disclose certain evidence; the AG gets the final say, with the 'check and balance' in this presumed to be the AG's elected status as a member of Parliament, answerable to the voters. It's a rare instance where the executive has a final and absolute trump card against the courts. I believe the Huang case is the only in in which this has been used so far.

Once this process, the S.38 hearing, is done for all of the evidence in question, the judge has a broad array of options they can make for partial or full (or no) disclosure; they can order conditions and circumstances in which the evidence can be accessed and viewed; they can allow the defense counsel but not the client to have access... All kinds of stuff. Only once this is done can the trial proceed with the reviewed evidence. The trial judge in provincial court never gets to 'look under the black'. The trial judge has to trust their federal court counterpart regarding the validity of the S.38 claims. The trial judge can still decide if they will order a stay of proceedings in order to protect the right to a fair trial in the face of inaccessible evidence.

It's a cumbersome and drawn out process, and not often is it int he context of criminal prosecutions. To my knowledge there has been little interface yet between the S.38 process and the Jordan decision regarding presumptively unreasonable delays in criminal prosecutions. The Ortis case is probably shaping up to be a considerable test of that, and I don't envy the crown the task they face there.

Other countries do this arguably 'better', and Leah West, quoted in the CBC article (and formerly of the RCD), has written extensively on 'intelligence to evidence', and how allied nations deal with it. The Brits in particular are much more adept through their court process of using security intelligence in criminal prosecutions. It will be interesting to see if we embark on legislative reform in the wake of some of the cases currently going through. The very viability of some of our laws such as the Security of Information Act could be threatened if we can't successfully navigate the conflicting demands of S.38, Jordan and the reasonable needs of the domestic and allied intelligence community.