This week the Counter-Terrorism Review Project is in Toronto for the Law and Society Association’s Annual Meeting. On Sunday, we will be presenting our preliminary research from the mapping phase of the project as part of a panel on Accountability for Counter-Terrorism. The panel is chaired by Professor Victor V Ramraj (University of Victoria) and includes the following papers:
Understanding Counter-Terrorism Review
What is good counter-terrorism and how do we assess it? One method, counter-terrorism review, retrospectively considers counter-terrorism law, policies, and individual activities or operations. It is intended to assess whether counter-terrorism ‘works’ and, if not, what changes can or should be made. The existence of counter-terrorism review suggests that, in important ways, counter-terrorism is a standard strand of governance, regulated and reviewed much like others. However, this impression is mistaken. Taking the UK as an example, this paper will present a large-scale empirical study establishing the scale and architecture of counter-terrorism review, identifying a typology of review mechanisms as well as the extent to which CTR gaps can be exposed. Working from that empirical base, the paper will argue that good governance in counter-terrorism requires a robust framework in effective counter-terrorism review is central.
The Changing Accountability Landscape in Canada for National Security
Professor Kent Roach (University of Toronto)
This paper will critically examine accountability for national security in Canada including an examination of the Maher Arar rendition and the recommendations that emerged from that report, their rejection by the Harper government and the Trudeau government’s new proposals for a whole of government executive reviewer and its creation of a new Parliamentary committee. The paper will reflect on the respective roles of courts, legislatures and executive watchdog with respect to accountability for whole of government and transnational national security activities.
National Security Accountability Reform: The Day After
Professor Craig Forcese (University of Ottawa)
This paper focuses on “next steps” in Canadian national security accountability reform, building on the paper presented by Kent Roach on changes to Canada’s accountability landscape created by bill C-22 and (it is expected) Bill C-59. Legal change opens the door, but the first years of the reformed system will determine its viability. Questions considered include: What steps should be taken to integrate the functions of the existing review bodies? How will the remit of the new bodies be extended in a sustainable manner to government entities that have never been reviewed? How will new expert and parliamentary review body’s work together to maximise coverage and minimise confliction? How will review bodies staff and train the large number of new personnel required, without cannibalising each other and while still remaining at sufficient arm’s length from government? What qualities should parliamentarians and members of the expert review body have to maximise the chances of success?
Canada’s Terrorism Prosecutions and the Use of Social Scientific and Expert Evidence: An empirical study
Dr Michael Nesbitt (University of Calgary)
This paper evaluates the use of social scientific and expert evidence to sustain or defend against terrorism prosecutions in Canada. The paper will draw on a collection of primary legal documents that have been collected over the past year from Canada’s approximately 40 terrorism prosecutions to date, including trial transcripts, motions, copies of all expert reports relied upon by either Crown or defence, social scientific studies relied upon or otherwise submitted to the court as exhibits, and some sentencing reports and decisions. In so doing, this paper will draw lessons from the first empirical study of terrorism prosecutions in Canada, with a particular focus on the legal and tactical controversies around the use of expert and social scientific evidence in these terrorism prosecutions. A website (www.terrorismcases.ca) will be made available to interested researchers before the conference that will house the legal documents relied upon by this study.
Accountability through the Criminal Trial
Dr Nicola McGarrity (University of New South Wales)
In spite of the militarised rhetoric of the ‘war on terror’ which has been prominent in political discourse since the 9/11 terrorist attacks, the criminal justice system has been given primacy in preventing and responding to national security threats. It is a truism that the overarching function of the criminal trial is to assess the guilt or innocence of the individual defendant. However, in so doing, it also serves as an important check upon the misuse of power by prosecutorial, intelligence and law enforcement agencies. This paper proposes to examine the extent to which modifications to the rules of procedure and evidence in the terrorism context undermine this ability of the courts to
perform this role. Such modifications include closing of the courts to the public, relaxing the prohibition on evidence obtained through cruel, inhuman and degrading conduct, and introducing upon the confidentiality of the lawyer/client relationship.
The Panel is at 10 am on Sunday 10 June in the Peel Room at the Sheraton Centre, Toronto. We look forward to seeing you there!