Prosecute

• Author: Craig Forcese/Leah West
• Pages: 641-669

641

CH AP TER 16

PROSEC U TE

Putting threat actors in ja il is one of the most powerful means of stop-

ping a national security threat, punishing them for their activities, and

potentially deterri ng others. However, in a liberal democratic state,

arbitrary detention and inca rceration are anathema. Imprisonment

depends, therefore, on the fair adjudication of an individual’s guilt, in

front of an independent court. What lawyers refer to as “criminal pro-

cedure” serves to ensure that investigations, the laying of cha rges, and

prosecutions adhere to this f air trial principle. In this book, we cannot

dive deeply into this complex area. However, in this chapter, we exam-

ine key criminal procedure issues arising in national security cases.

We begin by examining the statistical pattern of e spionage and terror-

ism prosecutions in Can ada. We then discuss the role of the police in

investigating cri mes, focusing on the concept of “police independence.”

We also identify two issue s that arise in terrorism inve stigations by law

enforcement — pretextual charging and entrapment — and describe

police arrest powers. Next, we outline the role of the prosecutor, espe-

cially the attorney general of Can ada and federal Crown Counsel in

the Public Prosecution Serv ice of Canada. Turning from investigations

to prosecutions, we address the unique diculties that arise in ter-

rorism and espionage prosecutions: disclosure and the intelligence-to-

evidence issue. Finally, we conclude this chapter with a look at

sentencing.

NATIONAL SECUR ITY LAW642

PART I: NATIONAL SECURIT Y PROSECUTIONS

IN C ANADA

In Canada, prosecutions for nationa l security oences are relatively

rare. As we discu ssed in Chapter 6, police have charged only three men

for espionage-type oences under the Security of Information Act ( SOI A).

One, Jerey Deslile, pleaded guilty i n 2012. The other two cases against

Mr Huang, charged in 2013, and Mr Ortis, charged in 2019, are pending

before the courts.

Terrorism trials occ ur more regularly, but in comparison to coun-

tries like the United States and the United Kingdom, are still uncom-

mon. At the time of writing a nd since 2001, f‌ifty-eight people have been

charged with terror ism oences resulting in nine cr iminal tri als and

fourteen g uilty plea s.1 Four individuals in unconnected case s are cur-

rently before the courts,2 and two men convicted together in 2015 will

be retried after the Ont ario Court of Appeal overturned t heir convic-

tion.3 Five others were found not guilty at tri al, and eleven more had

their charges stayed or w ithdrawn.4 Nine of the f‌ifty-seven were charged

in absentia; at least seven of those are presumed dead.5 Tak en t oget her,

1 Michael Nesbitt, “An Empir ical Study of Terrorism Charge s and Terrorism

Trials in Can ada Between September 20 01 and August 2018” (2020) 57(3)

Alberta Law Re view 595.

2 Alexandr a Mazur “Possible Guilty Plea Defer red for Kingston, Ont, Teen Ter-

rorism Susp ect” Global News (27 February 2 020) online: https: //globalnews.ca/

news/6511044/guilty-plea-deferred-ki ngston-teen-terrorism; Ci llian O’Brian &

Jonathan Foran i, “22-year-old Ontario Man Cha rged with Terror Oences” CTV

News (6 December 2019) online: www.ctvnews.ca/canada/22-year-old-ontario-

man-cha rged-with-ter ror-oences-1.4718587; Stewart Bell & Cat herine

McDonald, “Dead ly Toronto Hammer Attac k Was Terrorism, Police A llege”

Global Ne ws (27 Februar y 2020) online: http s://globalnews.ca/ne ws/6594305/

deadly-hammer-attack-terrorism; Stewart Bell, Andr ew Russell & Catherine

McDonald, “Dead ly Attack at Toronto Erotic Spa Was Incel Terrorism, Police

Al lege ,” Global News (19 May 2020) online: https://globaln ews.ca/news/6910670/

toronto-spa-t errorism-inc el.

3 R v Esseghaier, 2019 ONCA 672; Public Prosecution S ervice of Canada “PPSC

Will Procee d with New Trial in Terrorism Ca se” (last modif‌ied: 27 August 2019)

online: Public P rosecution Service of Ca nada www.ppsc-sppc.gc.ca/eng/

nws- nvs/2 019/27_08 _19.html . Leave was gra nted to hear one of the grounds

of appeal by the SCC. It’s not cle ar whether the additional g rounds of appeal

not yet decided by the ONCA (as they we re moot) would be heard should the

Crown be gra nted appeal at the SCC.

4 Nesbitt, above not e 1.

5 Ibid. See also Stew art Bell & Andrew Russ ell, “Canadian Jihadi Fa rah Shirdon

Killed in Iraq Airstrike” Global News (7 Se ptember 2017), online: http s://