Interrupt

• Author: Craig Forcese/Leah West
• Pages: 608-640

608

CH AP TER 15

INTER RUPT

Of all our response categories, “interrupt” is the most unconventional,

and thus the most dicult to def‌ine. In colloqui al usage, the word

means “breaking continuity” or “stopping the seamless progress of

something.” Many measures discussed in this b ook, used alone or in

combination, could serve this pur pose in relation to a national security

threat — stopping someone from boarding a plane or imposing a peace

bond may be forms of interruption. A border stop might have the same

eect.

In this chapter, we def‌ine “interr upt” more narrowly, to distinguish

it from other measures dis cussed in th is book. Interruption measures

are those used where exigency, or unavoidable operational impediment s,

make other tools unavail able or ineective. Interruption is, moreover,

a temporary strategy — it is a way for authorities to disrupt or divert a

threat, or at least provide time to add ress it more meaningfully. Moreover,

unlike many of the other national security activities in thi s book (other

than surveillance), interruption measures may be exerci sed covertly.

In this chapter, we focus on what we call law-enforcement “inves-

tigative interruption,” CSIS “threat reduction” powers, and CSE’s new

“active” and “defensive” cyber powers. These are controversial meas-

ures — they can amount to lawful state illegality and can have sig nif‌i-

cant implications for those targeted by t hem. We have spent some time

in this chapter tracing where these measures come from, how they are

controversial, and how recent legislative changes addressed some of

those controversies.

Interrupt 609

PART I: LAW ENFORCEMENT INTERRUPT

TOOLS

A. INVESTIGATIVE INTERRUPTION

As a terrorism investigation progresses, pe ace ocers may forestall a

terrorist act by removing one of its const ituent ingredients. Financing

arrangements may be interrupted, essential information intercepted,

misinformation conveyed, or physical tools associated with the plot

denied. Perhaps the best known (public) example of (what we call)

“investigative interruption” arose in the “Toronto 18” investigation.

In June 2006, police conducted multiple arrests in southern

Ontario; in all thirteen adults and four youths were arrested. Com-

bined with charges against another man, the se people constituted

the Toronto 18. Pr ior to their arrest, member s of the group discussed

bombing prominent locations — “CSIS’s oce in downtown Toronto,

the CBC building in downtow n Toronto, Parliament, unspecif‌ied mi l-

itary base s and a nuclear power plant.”1 They also developed plans to

explode three tr uck b ombs at t he Toronto Stock Exchange, the Toronto

oces of CSIS, and a militar y base near Highway 401.2

Police arrested the accused under conventional cr iminal law r ules.

Although they knew about the plot soon after its inception, the police

did not use special preventive arrest powers (discussed in Chapter 14)

that were available at the time of the arrests. The police did, however,

make sure before the arre sts that the plotters would not have the means

to carry out their crime; that is, they performed an investigative inter-

ruption. Undercover CSIS human sources, who were ultimately tra ns-

ferred to the RCMP to work as police informants, enme shed themselves

in the group’s planning activit ie s. When the group ordered agricultural

chemicals needed to make t he bomb, police ensured that the delivered

material was i nert.3

Swapping dangerous material for benign substances is an obvious

and prudent practice in an urgent situation. In the Toronto 18 case, the

timing suggest s that the authorities d id so without breaking any cr im-

inal laws. The situation would have been more complex, however, if the

1 R v Ahmad, 2010 ONSC 5874. Some of the discussion i n this section and those

that follow adopts an d builds on that in Craig Forces e & Kent Roach, False Se c-

urity: The Radicalizati on of Canadian Anti-terroris m (Toronto: Irw in Law, 2015)

at ch 8.

2 R v Abdelhaleem, [2010] OJ No 5693 (QL) at para 2.

3 Ibid at para 47; R v Gaya, [2008] CanLII 24539 at para 51.

NATIONAL SECUR ITY LAW610

investigative interruption had implicated police or government agents

in illegal activities.

In the Toronto 18 ca se, a critical legal i ssue was at what point a

key police informant among the group became a “state agent.”4 A state

agent is someone who acts at the direction of the security s ervices and

plays an active role in the investigation or car ries out some action that,

but for the state’s direction, they would not have taken.5 As discussed

in Chapter 9, a conf‌idential informant (or source), in compa rison, is

someone who supplies information to authorities in exchange for a

promise of conf‌identiality and identity protection. The line between

the two categories is a f‌ine one, but a conf‌idential in formant’s identity

is entitled to robust protection from disclosure in court proceedings

(the so-called informer’s privilege di scussed in Chapter 9), while the

state agent’s is not.

In the Toronto 18 ca se, defence lawyers argued that the informa nt’s

leadership activities in support of the plot occurred while he was a

state agent. They argued that it would be an abuse of legal process to

prosecute co-conspirators acting in response to the state agent’s illegal

actions. The challenge failed because the court concluded that, at the

time, the individual remained a police informa nt and had not become

a state agent. At any rate, the court also concluded that the accused

would have acted in the manner they did, even w ithout the informant’s

actions.6

The situation would have been dierent had the informant become

a state agent. That state agent would have continued to participate in a

terrorist conspirac y — a crime. Moreover, the RCMP might have asked

him to perform an illegal act to interrupt the plot, such as destroy ing

the property of one of the co-conspirators. This prospect raises t he

question: can the police or their agents themselves break the law a s

part of an investigative inter ruption of a terrorist plot? For example,

had agricultura l fer tilizer necessary for the bomb-ma king already been

in possession of the plotters, could the police have broken into the

warehouse in which it was stored and destroyed it, or sw itched it with

an inert substance?

4 R v NY, 2012 ONCA 745 at pa ra 109 et seq.

5 Ibid at para 122.

6 Ibid at para 112 et seq.