Justice is Served…a Mandate Letter: Terrorism Priorities
13 January 2020
The Liberal Government released its Mandate Letters to its (our) Ministers on December 13, 2019. These Letters set the government’s priorities (expectations) for the Ministers, and thus for their Federal Departments—at least so long as the minority government holds. On the one hand, these Mandate Letters signal to the Ministers (and in turn to the public and government bureaucracy) precisely what and where the focus of the various government departments should be throughout the term of government. Bureaucrats will parse them carefully, aware that they will identify the priorities and principles upon which they will be working, but also that, should the bureaucrats wish to recommend any (different) courses of action, they will be much more successful in their pleadings if they can tie those suggestions back to the Mandate Letters (or, down the road, the Speech from the Throne). On the other hand, Mandate Letters almost always go beyond what can reasonably be accomplished in a government’s term, meaning that not all the priorities will in fact be ‘delivered’ at the end of the day (before the next election). Moreover, some of the lower-level priorities will have to fall-away as urgent matters invariably arise. But, in general, the Mandate Letters nevertheless give a strong sense of the government’s priorities in each Ministry; and, usually, there will be some promises that are more clear and direct than others, meaning that we should definitely expect to see action on those priorities.
Intrepid Blog will be releasing a series of posts on the Mandate Letters over the next two weeks, starting today with the Minister of Justice and Attorney General’s Mandate Letter. The Honourable David Lametti’s Letter is a broad one; it includes twenty-one bulleted “deliverables” that the Minister is expected to work on as top priorities, though the Minister is also “encouraged…to identify additional priorities”.
Due to the broad scope of the Mandate Letter, we have decided to split our analysis into three parts (to do it Justice…) and limit our analysis to the interests of Intrepid blog readers. Part 1, discussed in this post, briefly reviews those priorities that touch on terrorism in particular, as well as a few more priorities that have incidental importance to terrorism prosecutions. Part 2 will discuss some criminal justice priorities that I have termed “national security-adjacent”. Part III, authored by Professor Emily Laidlaw, will discuss the digital-related aspects of the letter, including privacy, platform regulation, digital security, and online abuse. Stephanie Carvin will have an analysis of Public Safety’s mandate later in a few days.
Terrorism Related Priorities:
Along with the Minister of Public Safety and Emergency Preparedness, continue to invest in resources to counter the rise of ideologically motivated violent extremism and terrorist organizations.
Work with the Minister of Public Safety to coordinate efforts to prosecute terror suspects to the fullest extent of the law, including the creation of the Director of Terrorism Prosecutions.
These two explicit terrorism-related priorities really go hand-in-hand; surely the thinking is that the appointment of a Director of Terrorism Prosecutions (DTP) (priority two, above) will be one of the major investments in resources to counter the rise of (ideologically motivated) extremism (priority one, above). So let us start with a brief look at the priority creation of a DTP.
The idea of creating a DTP is not a new one, but it is a very good one. In 2010 the Air India Inquiry recommended the very same; and, for what it’s worth, I’ve recently done the same for slightly different reasons. The Air India Inquiry called for the DTP to “serve under the Attorney General of Canada and…be staffed by prosecutors with expertise in national security matters.” The Air India Inquiry focused primarily on the benefits that a DTP might offer in tacking the “intelligence-to-evidence” conundrum (well-known to Intrepid Podcast listeners). The thinking was that the DTP under the AG of Canada could help “create a pool of experienced counsel for terrorism prosecutions”, a notoriously difficult set of offences to prosecute that remain fortunately quite rare. The DTP’s team could then provide legal advice to Integrated National Security Enforcement Teams (INSETs) across the country and, of course, help coordinate the sharing of best practices, tactics and relevant research between Federal Crown offices throughout the country. They could also both build-up expertise pertaining to disclosure in the context of terrorism prosecutions and add a level of continuity to the process of giving disclosure-related advice to agencies such as the RCMP, CSIS or to other Crown attorneys. This last point is crucial: ensuring consistent advice to the RCMP and CSIS with respect to their disclosure obligations would surely be roundly applauded.
For my part, I am very much in favour of the creation of a DTP and agree wholeheartedly with the justifications offered by the Air India Inquiry. I would also add a few further justifications of my own. First, how, when and why the government is choosing to classify some attacks as terrorism and not others has become hard, if not impossible, to figure from outside government—most likely because different jurisdictions are acting on different facts, scenarios and advice in different cases without any real centralization. Why would Canada not charge Abdulahi Hasan Sharif, recently convicted of multiple counts of attempted murder in an Edmonton van attack, or Alexandre Bissonette, the Quebec Mosque shooter, with terrorism offences when by all accounts that was precisely what they intended? Why have 55 of the 56 terrorism charges to date focused on AQ/ISIS-inspired extremists, one on the financing of the LTTE in Sri Lanka, and none on far-right extremism? One could ask the same thing about the complete lack of charges for what is believed to be a fairly prevalent occurrence in Canada, that being the financing Hezbollah, a listed terrorist entity? A DTP could help centralize decision-making when it comes to the laying of charges, ensuring a consistent, principled and, one hopes, unbiased approach to different varieties of violent ideologies. In so doing, it could also provide consistency of public messaging, ensuring that the public understood better what was terrorism, what was not, and why. Finally, the DPT could centralize and coordinate lobbying for the systemic and financial support needed to tackle new or emerging threats, not just for prosecutors but for other agencies. The RCMP will struggle to investigate, and the Public Prosecution Service of Canada (PPSC) will struggle to prosecute, money laundering by Hizbollah operates if they do not have systems in place to hire the right people to focus on that task; but equally somebody has to inform the government of a blind-spot, and that could be an important (though perhaps unofficial) role for a DTP.
I may slightly diverge from the Air India Inquiry’s recommendations in a few respects. First and foremost, I remain uncertain about the Air India Inquiry’s recommendation that the DTP should be in the office of and report to the Attorney General. Does that mean the creation of a parallel institution alongside but separate from the DTP, with the Director holding the same powers as the current top civil servant in the PPSC, the Director of Public Prosecutions (DPP)? Or does the recommendation mean simply that the DTP should ultimately report to the Attorney General, leaving open that the position could still report first to, and be directly under, the DPP? On the one hand, the AG must consent to terrorism prosecutions, so it makes sense to have a direct route from the DTP to the AG, bypassing the DPP. Moreover, if the idea is that terrorism is a highly specialized, even perhaps unique, area of criminal law, then perhaps adding another ‘non-expert’ (the DPP) with an already-broad portfolio at the top will create more problems than it will solve. On the other hand, there is good reason to place the DTP within the PPSC and under the AG, but reporting to the DPP in the first instance. First, creating two streams of prosecutors reporting directly to the AG could create the very type of walled-off, siloed practice that the creation of the DTP is intended to avoid: one where security experts become insulated from criminal justice practice, and deal only with other secretive national security agents as opposed to prosecutors accustomed to greater transparency in day-to-day court processes. In such a scenario, the broader concerns of the PPSC become divorced from those of the terrorism prosecutors and decisions made to prosecute an offence as terrorism, or importantly not to do so, starts to take place in a vacuum without the input of those that will become the prosecutors should the DTP take a pass. Second, it is not clear to me that the DTP must employ a cadre of prosecutors that will be solely responsible for tackling terrorism offences, if that is indeed the idea of the Air India Inquiry. Sure, the DTP must have a cadre of lawyers familiar with both criminal litigation and terrorism. But that does not mean that they become the terrorism prosecutors to the exclusion of other federal prosecutors. Centralizing processes wholly in Ottawa, for example, could have an effect on employee morale, where there is already a sense that the resources and most interesting work flow to those in central Canada. But perhaps more importantly, it would limit the capacity of terrorism prosecutors to respond to regional differences in terms of threats, approaches to litigation, and limit the involvement of those regional prosecutors that know their local judges and approaches the best; it could result in strategies being deployed that work in Ottawa but do not work, say, in Calgary.
One final problem exists with relying solely on a ‘home-base’—even if that is a separate department from the PPSC with some regional employees—for all terrorism prosecutors: DTP prosecutors will not be prosecuting that much, so while they may gain expertise in terrorism they will also lose it in litigation. If current trends hold, the office would work on a couple cases a year or so. As a result, those that are the most experienced (general) litigators will, over time, not be involved in terrorism prosecutions, while those within the DTP will slowly become more isolated, confined, and less experienced in litigation generally—a fundamental skill unto itself if one is seeking success in the prosecution of terrorists. In the end, those working on this file will have to think hard about whether a specialized cadre of terrorism prosecutors out of Ottawa (or Toronto) really is the way to go. (Note: I am assuming that the DTP headquarters will be placed in Toronto or Ottawa for two reasons: First, it is the federal government, so is anyone really going to argue with me here? Second, as my research has indicated, the vast majority of cases to date have come out of the Toronto the Ottawa regions, meaning that is where the bulk of the expertise lies at this time.) Alternatively, maybe DTP prosecutors should work alongside regional prosecutors. That specialized cadre from the DTP could provide tactical and research advice, could aid with aspects of prosecutions, could add consistency to charging and disclosure practices, while also ensuring that localized talent throughout the country continue to act as counsel on terrorism files. Should that local talent prove particularly adept while working alongside the DPT, such individuals might even make their way into the DTP, ensuring down the road that prosecutors do not, out of necessity, join the DTP completely bereft of experience in terrorism prosecutions
So in terms of investing resources in countering violent ideological extremism, what remains for the Justice Minister / Attorney General, if the DTP will tackle the prosecution of terrorism? Well, one could imagine a number of other initiatives—or simply support for preventative initiations—in which the government could and should invest more resources. But let me add one hope here and one (minor) complaint. My hope is that the “resources” will be spent tackling the intelligence-to-evidence conundrum and Canada’s two-court system in a more systemic way; the appointment of a DTP can help, but it is not a panacea to the problems Canada faces. Let us hope for serious consultations and movement on this topic, starting in the new year. My minor quibble is that Correctional Services Canada was not mentioned alongside the AG and Minister of Public Safety. Any legal solution to violent extremism that comes from the legal system and concerns public safety surely must take prisons, and probably the parole and reintegration process, into account. Prosecuting more people, most of whom will eventually be released, is cold comfort if there are no programs in Canadian prisons to address ideological extremism (as seems to be the case) and if parole boards lack information on reintegration programs that might be of assistance (which also seems to be the case). Let us start thinking about violent extremism more holistically, starting with countering it outside the purview of the criminal justice system, through to prosecutions, and finally to incarceration (or alternatives thereto) and release.