Failing to address questions about intelligence-sharing in courtrooms could put a number of national security court cases at risk and undermine Ottawa’s national security efforts, warns a grim briefing note prepared for the public safety minister.
At its crux, the issue pits the efforts of the Canadian Security Intelligence Service to safeguard its operational information — its tactics, methods, where its spies are located — against the Department of Justice’s mandate to secure prosecutions and a defendant’s right to a fair trial.
“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,” says a briefing note prepared ahead of a meeting between the department of Public Safety and CSIS and obtained by CBC News through an access to information request.
Leah West, a former federal lawyer who is now a lecturer on national security issues at Carleton University, said security agencies should not have to choose between protecting information and pursuing prosecutions related to terrorism and national security.
“It shouldn’t be this stark of an issue where in order to actually uphold our criminal laws for some of the most grave criminal offences, our security agencies are having to think long and hard about whether it’s worth it,” she said.
“These are activities that we would want to denounce and deter through prosecution. But our agencies are having to wrestle with the fact that, if they pursue those charges … there is a real risk that they will be unsuccessful because of all the tactics … or the national security information that is really highly valuable and simply cannot be revealed will be forced into the light. And that’s problematic.”
Intelligence vs. evidence
CSIS’s job is to collect intelligence — and to do so secretly — in order to advise the Canadian government and protect the country from threats to national security. Law enforcement agencies also gather information and evidence and make it public to secure a prosecution in court.
“So the problem of intelligence evidence is when information collected by CSIS … for one purpose — and that purpose is really not about making it ever public — ends up having to be used as evidence in a criminal trial, ” said West.
“And that makes our national security agencies very uncomfortable because in order to use it as evidence, it has to be open to be tested. The defence has to have access to it. It has to be revealed publicly and that means potentially revealing all of those secret sources, methods and techniques that they rely on and that has broader implications for national security beyond just getting one conviction in court.”