Chapter 6 – Navigating National Security: The Prosecution of the Toronto 18

Abstract

Prosecutions 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.