Manitoba Law Journal
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Chapter 7 – Curing Complexity: Moving Forward from the Toronto 18 on Intelligence-to-Evidence
No full textThis chapter addresses one aspect of Canada’s “intelligence to evidence” (I2E) problem that both featured in the Toronto 18 prosecutions and has since occupied courts (and presumably agencies): criminal trial challenges to warrants supported by intelligence and used to collect information employed either to seed a subsequent RCMP investigation (or wiretap warrant) or as evidence of guilt in a subsequent prosecution. These matters implicate so-called Garofoli applications. The awkward interface between these Garofoli applications and I2E may constitute the single most perplexing (and possibly resolvable) I2E issue. Specifically, this chapter asks whether Garofoli applications heard ex parte (that is, with only the government party before the court) and in camera (that is, in a closed court) would be constitutionally viable under section 7 of the Charter. We conclude that closed material Garofoli applications with built-in procedural protections — namely statutorily-mandated special advocates — would meet constitutional standards
Justice Côté in 2019: Great Dissenter, Voice of the Court, or Both?
No full textThis article analyzes quantitative data extracted from decisions of the Supreme Court of Canada as a way to provide a picture of the year 2019. More precisely, this paper focuses on Côté J. and her contribution to the Court. It also looks at the Court’s trends in 2019 with a gender lens and thus expands on existing literature. Guided by two hypotheses, the article divides its analysis into three parts, which each examine a specific topic: dissents and concurrences (3.1), frequency of agreement (3.2), and majority authorship (3.3). The first hypothesis suggests that Côté J. is more likely to dissent and less likely to agree with her colleagues (measured through the frequency of agreement and participation, or lack thereof, with majority reasons). The second hypothesis builds on the first one and proposes that Côté J. is less likely to author a majority opinion. The first hypothesis found validation, whereas the second did not. While it is true that Côté J.’s contribution to the Court in 2019 can be examined through her dissents, we should note the following nuances: she (1) shared the top of the dissenting chart with Brown J.; (2) dissented in only one of the oral judgments in which she took part; (3) was chosen by the Chief Justice to be the voice of the Court for half of the unanimous decisions; and (4) had a majority authorship rate akin to her colleagues’ average. Finally, given our sample size, we could not conclude that gender had a definite impact either on concurrences and dissents, frequency of agreement, or majority authorship. This does not mean that no gender-related data is discussed in this paper
Chapter 1 – Homegrown Terrorist Radicalization: The Toronto 18 in Comparative Perspectives
No full textCanadian concern with the domestic threat of religious terrorism came of age with the arrest of the members of the Toronto 18 in 2006. This chapter seeks to increase our understanding of this case by placing it in comparative perspective in three ways. First, by arguing that the Toronto 18 represents one of the purest instances of so-called “homegrown terrorism.” Second, by comparing the data available on the ten adults convicted with the data available on similar terrorists in Europe, the United Kingdom, and the United States. Findings are examined for age, ethnicity, socio-economic status, education, occupations, criminality, mental health, and family and religious background. Third, insights from two recent and comprehensive theories of the process of radicalization, Lorne Dawson’s “social ecology model” and Arie Kruglanski et al.’s “3 N model” are used to make better sense of what happened and why. In the end, however, much remains unclear because we still lack the appropriate data
Chapter 6 – Navigating National Security: The Prosecution of the Toronto 18
No full textProsecutions of terrorism cases pose unique challenges because they typically raise complex issues engaging the right of an accused person to disclosure of relevant material and the public interest in protecting national security. This chapter provides the lead prosecutor’s perspective on the Toronto 18 prosecution, some of the disclosure issues that arose in that case, and how similar issues might be handled in the future. Part II provides an overview of the Toronto 18 investigation. Part III reviews the Canadian disclosure regime in the context of terrorism prosecutions, contrasts it with disclosure regimes in the U.K. and the U.S.A., and highlights some problems associated with the current bifurcated approach when the defence seeks to compel disclosure of sensitive information. Part IV discusses how the prosecution in the Toronto 18 approached the disclosure of information in CSIS holdings. Part V concludes with a discussion of how the prosecution managed its disclosure obligations in the context of the Garofoli review of the wiretap authorizations, and how similar issues might be handled in the future given subsequent developments in the law
Chapter 9 – Financing the Toronto 18
No full textThethwarted Toronto 18 terrorist plot was an early indication ofthings to come for terrorist financing in Canada and internationally.The self financed plot demonstrated how terrorist cells, even thosenot directed by a terrorist group, could obtain enough money to fullyfund a sophisticated and complex attack. In total, the main elementsof the Toronto 18 plot likely cost thousands of dollars, but theorganiz ers of the plot had accumulated far more than they needed forthe components of the attack and had enough money to rent a safehouse, pay for plane tickets to escape prosecution after the attack, anddevelop a plausible cover story for their activities. De spite thefinancial elements of the plot, no terrorist financing charges were laidin the case. This may have been due to the lack of internationalfunding of the plot and a conceptualization within Canada’s lawenforcement and security services at the tim e that terrorist financingcame from “ The lack of financing charges in this case mayhave had longstanding implications in Canada, where, to date, veryfew charges of this nature have been laid, even 15 years after the plotwas disrupted
Reconsidering Legal Pedagogy: Assessing Trigger Warnings, Evaluative Instruments, and Articling Integration in Canada’s Modern Law School Curricula
No full textLaw schools are rethinking the form of instruction and the means of delivery, a discussion now at the fore of legal education. This pedagogical picture is not complete without understanding students’ fidelity to the human and social experience of law school. To further understand student experiences, a voluntary online survey was distributed to 103 first-year law students. Our findings on the use of trigger warnings, the use of 100 percent final examinations, and the integration of articling and clinical-based skills in law school education present an opportunity for law teachers to reconsider curriculum reform and conventional legal education. Legal curricula ought to contextualize law in its social impacts and this includes recognizing student experiences of trauma and vulnerability in the law classroom. Further, this recognition develops and supports important clinical skills, including participation, group work and deployment of empathy in legal settings. By recognizing student sensitivity and by implementing multiple assessments and skills-based learning and training, we argue that educators and students can work together towards common goals which benefit both the teaching and the learning of law
Chapter 3 – Criminological Perspectives on the Toronto 18
No full textHistorically, research in terrorism studies has drawn from a variety of disciplines including, but not limited to, political science, psychology, and security studies. More recently, however, researchers have argued that criminological approaches can and should inform terrorism studies as well. In this chapter, we apply four criminological perspectives to the case of the Toronto 18: the general strain theory of terrorism, social learning theory, situational crime prevention, and situational action theory. Drawing from news media accounts and court documents as well as extensive personal and background details about the offenders, we examine what inspired members of the Toronto 18 to join the cell, as well as the internal dynamics of the cell and why they selected certain targets, all through a criminological lens. The complexities of the Toronto 18 cases clearly demonstrate why it would be unrealistic at best, and foolhardy at worst, to expect any single orientation to “explain” terrorism. But used in concert, criminological theories and perspectives clearly have a role to play in advancing our understanding of the dynamics of terrorism
Chapter 13 – The Dangers of Charter-Proofing the Toronto 18’s Prosecution
No full textThis chapter examines the many failed Charter challenges brought by the Toronto 18. Although the Charter of Rights and Freedoms was added to Canada’s Constitution in 1982 as a response to national security excess, it failed to benefit the Toronto 18 and make the prosecution longer. Charter challenges to mandatory publication bans that some of the Toronto 18 argued prevented them from responding to prejudicial pre-trial publicity failed. Charter challenges to bail conditions and harsh conditions of pre-trial detention – including solitary confinement and prosecutorial use of a direct indictment to pre-empt a preliminary inquiry – also were unsuccessful. Although the courts found that the police had violated various Charter rights in several cases, they never excluded evidence obtained as a remedy. The Toronto 18 had Charter rights, but not Charter remedies. The Supreme Court reversed a trial judge’s decision, not allowing him to decide national security secrecy claims and what evidence could not be disclosed to the accused. Finally, the courts upheld broad terrorism offences as consistent with the Charter. Although the many failed Charter challenges can be seen as producing due process excess and delay, it is argued that the conclusion that the prosecution were consistent with the Charter or “Charter-proof” can blind the public to troubling and problematic aspects of the prosecution and of our broad terrorism laws. It also confirms that even in the Charter era, the executive and the legislature play the dominant roles in the national security context
