Prof. Michael Keefer, Professor of English at the University of Guelph, has a new article on the Toronto 18, where he says,
The theatrical arrests of 18 (mostly young) Muslims in Toronto in the Summer of 2006 reinforced media-driven paranoia that homegrown terrorists were everywhere. The unraveling of the case two years later exposes to view yet again the sinister and disgraceful behavior of Canada’s security intelligence apparatus, which has formed a habit of confecting false accusations of terrorism against Canadian citizens. ‘The threat to Canadian society is not a bunch of Muslim boys playing paintball, it’s an ideologically driven government willing to curtail our civil liberties.’
He provides strong criticisms towards the media for their coverage of the case.
Two things about this article and its premise that the Toronto 18 case was in essence a case of malicious prosecution:
1. If the author is correct, then the first trial should not have ended in a conviction – which it did. So obviously, the presiding judge didn’t think it was ‘much ado about nothing’ and since we haven’t seen the evidence before him, who are we to disagree?
2. I don’t understand the distinction between the roles that CSIS and the RCMP are supposed to play in anti-terrorism efforts. If CSIS is operating in Canada – then why is the RCMP getting involved in CSIS cases? And why doesn’t either organization have a decent budget? Neither one has a ‘terrorism’ ‘tips’ line. CSIS doesn’t even have an online means of contact. Do they seriously think that potential informants are going to write them a letter?
Last, if the author is correct in at least some of the cases where charges were stayed, then the ‘victims’ can file a law-suit on grounds of malicious prosecution. That would quickly put an end to further attempts along those lines by offending agencies and individuals. But I haven’t heard of that happening.
The reality is that even if the Toronto 18 were not the moving cause behind the whole let’s-get-together-and-whack-Parliament thing, nevertheless, at least some of them weren’t agin’ the idea, either.
Marnie Tunay
Fakirs Canada
http://fakirscanada.spaces.live.com/default.aspx
Law is Cool: The fact pattern and statements of the judge appear to indicate that many of the accused did not know anything of any such plan for them to even discourage it. But the judge has indicated that they should have known. Silly them for not developing telepathy.
Yeah, uh huh, it’s a bad decision – that’s why the Supremes dismissed Khawaja’s appeal – because it was such a bad decision.
Here’s an excerpt from that ‘patently unreason-able decision’ – as Lawiscool and as Prof. Keefer make it out to be:’*
“II. The Application
[3] The applicant’s challenge to the legislation is framed in counsel’s factum as follows.
The Applicant brings this Application seeking a declaration that sections 83.01(1), 83.03(a), 83.18, 83.18(1), 83.18(3)(a), 83.19, 83.2, and 83.21(1) are of no force and effect pursuant to section 52(1) of the Constitution Act, 1982, on the basis that the provisions are vague and/or over-broad, they dilute the essential fault requirements of criminal law, and they infringe his rights to freedom of association, freedom of conscience and religion, and freedom of thought, belief, opinion, and expression pursuant to section 2 of the Charter.
“[4] The application was presented without reliance upon or reference to the facts particular to the case being brought against Khawaja, nor was any evidence tendered other than notorious historical background, of which counsel on each side suggested I should be able to take judicial notice. In addition, both sides made abundant reference to national and international public and governmental actions, proceedings and records and to published articles by legal experts, commentators and writers. No objection was taken to my reference to or reliance on any of the materials filed.
“[5] It would be disingenuous on my part not to acknowledge considerable uneasiness over this procedure whereby a single, appointed judge of a seriously under-resourced trial court is asked to review and declare provisions of federal legislation recently enacted to deal with a most pressing problem to be unconstitutional on the basis only of written opinions without a specific factual foundation or expert evidence on which to base such a finding. At least the Parliamentary bodies that considered and adopted the legislative proposals had the benefit of the many witnesses and resources and time that comprised the legislative process. Nevertheless, it is a duty that trial courts have been assigned by our constitution to undertake and I have endeavoured to deal with all the arguments raised.
“III. Summary of Ruling and Disposition
[6] For the reasons that follow, I have concluded that the provisions under attack are neither void for vagueness not overbroad in their reach as they can be read, construed and applied in conformity with the principles of fundamental justice.
“[7] There is, however, in the definition of “terrorist activity,†an essential element that is not only novel in Canadian criminal law but the impact of which constitutes an infringe-ment of certain fundamental freedoms guaranteed in section 2 of the Canadian Charter of Rights and Freedoms, including those of religion, thought, belief, opinion, expression and association. The provision in question is clause 83.01(1)(b)(i)(A) of the Criminal Code. It makes proof under that part of the definition of “terrorist activity,†a concept that runs throughout Part II.1, dependent on showing that the specified activity was undertaken in whole or in part for a political, religious or ideological objective or cause.
“[8] I find further that the infringement on fundamental freedoms brought about by this provision cannot be justified in a free and democratic society and that the offending provision must, according to section 52 of the Constitution Act, 1982, be considered as of no force or effect.
[9] The appropriate remedy in dealing with this invalid provision is to sever it from the rest of the legislation, which remains in force and is to be applied as if clause 83.01(1)(b)(i)(A) did not exist.”
***The whole of the decision in PDF:
http://www.canlii.org/en/on/onsc/doc/2006/2006canlii63685/2006canlii63685.pdf
J. Rutherford doesn’t sound to me like a judge who was expecting the defendant to be ‘telepathic.’
Moreover, with respect to the factual background, as described in wikipedia re the toronto 18: “raids were carried out by an inter-agency task force, the Integrated National Security Enforcement Team (INSET), which coordinated the activities of the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), the Ontario Provincial Police (OPP), and other police forces, as the operation was spread across several different jurisdictions in southern Ontario, in the area north of Toronto. Each of the 400 police involved in the arrests was required to sign a confidentiality pledge under Canada’s Security of Information Act but news of the arrests was leaked to the Toronto Star.
The police state that one of the arrested men, 20-year-old Ali Imran, ordered three metric tonnes (6600 pounds) of ammonium nitrate fertilizer, a potentially powerful ingredient often used as quarry and mining explosives. This weight has widely been compared to the amount of ammonium nitrate used in the 1995 Oklahoma City bombing in the United States.”
Yeah, I’d say the rest of those suspects knew they weren’t going gardening in the woods.
Law is Cool: We’ll try to provide a more detailed account once this case is reported (not the Khawaja one), but let’s just say that the documents we’ve seen thus far indicate that only a few of them were present with the fertilizer scenario, and almost none of them knew about it except for a couple.
Telepathy indeed.
Marnie Tunay appears to think that the conviction of one of the Toronto 18 accused settles the question of whether the arrests and prosecutions can appropriately be described, as in the title of my article, as “fraud and fearmongering,” and as a “frame-up.” I believe she’s mistaken.
The article to which she was responding was written in May 2008; I’ve since supplemented it with two shorter pieces, “Further Reflections on the ‘Toronto 18’ Case: ‘Terror Law’ and the ‘Crimen Exceptum’,” and “The Toronto 18: A Second Update,” written in July and October 2008. The three articles are appearing together in Global Outlook 13 (2009): 52-64, and are available online at http://www.globaloutlook.ca/pdfs/Keefer%208.
In the first of those supplements I noted that in June 2008 the existence of a third government mole was revealed: Qari Kifayatullah, who claimed expertise in explosives, and who told one or more of the accused that he could provide instruction in making ammonium nitrate-fuel oil (ANFO) bombs. It’s an accepted part of the government story that he was the source of information on this subject. Mole number one, Mubin Shaikh, subsequently said that he only learned of Kifayatullah’s activities after the arrests.
We have, then, a sequence of events that looks decidedly odd. I don’t believe it’s clear exactly when Kifayatullah offered his services, but we know from “secret” memos that the RCMP obligingly released to Maclean’s Magazine that, as Maclean’s journalist Michael Friscolanti put it, by mid-April 2006 “authorities had grown increasingly desperate, convinced that the group was on the brink of building a bomb.” The RCMP’s response was to contact, on April 29, 2006, mole number two, a CSIS informant and agricultural engineer whose job “was to provide suspects with credit cards and help them purchase large quantities of what they believed to be ammonium nitrate….”
Marnie Tunay wants to conflate the Toronto 18 case with the Momin Khawaja conviction. I suggested in that first supplement that the Khawaja case and the case of Omar Khadr could be understood as providing different kinds of contextual framing for the Toronto 18 case; I also proposed that in several respects a deep-historical context could prove illuminating. I remarked on analogies between the ‘War on Terror’ and the 16th and 17th-century European witch-hunts, noting a parallel relaxation of rules of evidence in the face of a “crimen exceptum,” and a parallel tendency of governing authorities to grant themselves a “sovereign exception” from the laws they shape and administer.
In the second short supplemental article, I commented on the manner in which Justice John Sproat applied the 2001 Anti-Terrorism Act in convicting one of the Toronto 18 accused (a minor). As legal scholar Kent Roach warned in 2003, that act subverts the common-law insistence that evidence of mens rea is required to secure a criminal conviction. In particular the act provides for up to ten years’ imprisonment for any person who “knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity.” The act also specifies that it is not necessary that “any particular terrorist activity was foreseen or planned at the time it was facilitated.” As Roach remarked, it thus raises the possibility that an accused could be “convicted and punished for knowing facilitation of a terrorist activity when, in fact, the person did not know about the terrorist activity.”
The New York Times reported of the trial that the camps “that the police described as terrorist training sessions” were characterized by prosecution witnesses “as recreational or religious retreats”; and the principal witness, Mubin Shaikh, insisted both on the witness stand and in interviews with reporters that the accused had no notion of any nefarious purposes in the camping, which he believed was for religious purposes. Justice Sproat accepted Shaikh’s testimony as “truthful and generally reliable”–but appears also to have accepted crown prosecutor John Neader’s charge that when Shaikh’s testimony exculpated the accused he was “fabricating evidence.”
I concluded with an allusion to Kafka’s parable “Before the Law,” and to that passage in his novel The Trial into which that parable was incorporated. The prison chaplain tells K. that the authority of the parable’s door-keeper must be accepted, not necessarily as true, but as necessary, for “to doubt his integrity is to doubt the Law itself.”
“A melancholy conclusion,” K. replies. “It turns lying into a universal principle.”
Michael Keefer, thank you for your response. I will address it in summary here, later tonight, and in detail, together with the issue of a recently surfaced secret govt memo provided by Prof. Amir Attaran, who is also a lawyer, from the U of Ottawa, concerning Abousfian Abdelrazik on a blog of mine which tends to address counter-terrorism issues:
http://fakirsca.blogspot.com/
whereat I will link to your post and comments here.
Raphael Alexander provided me with news of the doc re the intense pressure applied by the U.S. “Homeland Security Office” to the Cdn govt in the case of Abdelrazik. The connection with your article is: if the Canadian govt is deliberately violating the rights of terrorism suspects, is the U.S at the back of it?
The link to the secret memo may be found on the same National Post article in the comments thread, posted by Raphael Alexander, and also you can read Professor Attaran’s response there, to my query this morning re the authenticity of the memo:
http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/06/19/chris-selley-abousfian-abdelrazik-it-s-all-over-but-the-thousands-of-unanswered-questions.aspx
Mr. Keefer – how can you conclude that the Judge (in convicting the youth) accepted Neander’s charge of fabricating evidence? Have you read the ruling itself – in which the judge calls it a “minor inconsistency” and even then – without a judgment on the supposed fabrication of evidence?
Please do continue to take me to task on the merits of the case – I suggest you also give me credit and acknowledge that I have been CONSISTENTLY maintaining the same position and I have YET to be shown to be wrong.