Is bigotry blinding CSIS and the RCMP — to disastrous effect?

“Rumours were spread, suggesting Emran (a CSIS analyst, who is Muslim) was a mole in the organization and not to be trusted. The comments, insults and innuendo were intentionally hurtful and designed to isolate and undermine Emran among his colleagues. This was not mere misguided office banter, but rather hatred based upon religious, ethnic, national and racial identity.” – from the lawsuit of five CSIS staffers against their employer, filed on July 13, 2017.

As John Phillips bustles into the beige-coloured boardroom clutching a thick wad of papers under his arm, he apologizes for the half-assembled state of his law firm’s new offices. Phillips is a burly 56-year-old litigator who – with his bushy, snow-white beard, suspenders and steel-rimmed eyeglasses – bears a certain resemblance to Saint Nicolas. He also wears the pleased-as-punch expression of someone who’s been taking victory laps of late.

As he plunks the documents down on the boardroom table, Phillips has good reason to be in high spirits: he’s one of Omar Khadr’s lawyers who negotiated the reported $10.5-million settlement over CSIS and the federal government’s Charter of Rights-abusing actions towards the youth, who spent 10 years in Guantánamo Bay where he was frequently and brutally tortured. This past winter, Phillips also won a $141,000-judgment against the government and two senior RCMP officers over the harassment of Mountie Peter Merrifield (the Department of Justice even agreed to fork over more than $800,000 to cover Merrifield’s legal bills).

Yet I'd to come to visit Phillips on this sunny morning in August, meeting in the downtown Toronto offices of Waddell Phillips PC, to discuss an even more compelling case: he’s representing five CSIS employees who are suing the spy agency for workplace discrimination based on their religion, race, ethnicity, gender and sexuality. Most of them are Muslim. Combined, the Toronto-based employees have 80 years of experience with CSIS, but claim it’s a “workplace rife with discrimination, harassment, bullying and abuse of authority... This racist, sexist, homophobic and discriminatory behavior has become the accepted culture and norm.”

Launched in July, the lawsuit is seeking $35 million in damages and paints many of CSIS’s managers as bigots and Islamophobes. The employees say they’ve suffered depression, panic attacks and ill health, while being denied promotions, with all five of them currently on sick leave.

“It does impact the operational capacity of CSIS when you have trained, skilled members of minority communities off duty or on long-term disability,” Phillips tells me.

This lawsuit, combined with the Khadr settlement, augments a growing body of evidence that strongly suggests intelligence-gathering by CSIS and the RCMP is driven, in part, by bigotry – especially towards Muslims. This, in turn, is distorting their judgment of who actually poses a real threat or not.

Bigotry and bias emerge from the shadows

This was underlined when the federal government apologized and quietly settled the lawsuits of three Muslim Canadians this past winter. They’d sued for a total of $300 million over CSIS and the RCMP’s involvement in their apprehension and torture in Syria and Egypt.

“When you’re biased towards a certain cultural group, good or bad, you’ve lost objectivity and when you lose objectivity you start to head down that path of wrongful persecution and prosecution,” says Lawrence Hay, a former First Nations police chief who spent 19 years working for the RCMP, eight of those as an intelligence officer. “They start to see things that aren’t there.”

Indeed, a four-part National Observer investigation reveals an apparent pattern of institutional biases at CSIS and RCMP that is leading to innocent people being targeted, harassed and tortured - as well as entrapped into crimes these agencies manufactured or encouraged. “There have certainly been enough documented problems to really call into question the way in which the RCMP and CSIS carry out their mandate as it relates to national security,” remarks Josh Paterson, executive director of the B.C. Civil Liberties Association.

Furthermore, the RCMP and CSIS’ focus and vast expenditure on combating Islamic terrorism appears to be at the expense of a greater danger facing the security of Canadians – namely violence from the extreme right. This was highlighted when six people were massacred and 19 injured at a Quebec City mosque last January. The accused, 27-year-old Alexandre Bissonnette, is a far-right adherent who was not even on the radar of law enforcement organizations prior to the attack. Bissonnette is charged with six counts of first-degree murder and five counts of attempted murder, and is scheduled to appear in court again in October.

Indeed, since the rise of U.S. President Donald Trump, the far right has emerged from the shadows, as seen with anti-immigrant demonstrations in Quebec, the growth (since abbreviated) of Rebel Media, along with groups such as the Soldiers and Sons of Odin, the Proud Boys, La Meute and Blood & Honour.

Barbara Perry, a social scientist at the University of Ontario Institute of Technology and expert on the far-right, believes the RCMP and CSIS have, until recently, been overlooking the threat posed by these extremists. She points out that between 1980 and 2015 there were more than 120 incidents of aggression attributed to far-right extremists – compared to only seven to Islamists during this same period.

“There are more identifiable incidents associated with the violence of hate crimes, conspiracies, murders and arsons (from the far-right) than have been associated with Islamist-inspired extremists,” says Perry, who’s identified as many as 100 far-right extremist groups in Canada. “So there really is a concentrated denial of the risk (by the RCMP and CSIS).”

'You have to make a mountain out of a molehill'

Bill Majcher was an inspector by the time he left the RCMP in 2007 after a celebrated 22-year career with the Mounties, including 13 years working undercover, often infiltrating organized crime groups. Majcher was chased out of the RCMP by his superiors for rocking too many boats. He now runs a corporate risk firm in Hong Kong where I telephoned him to ask why the RCMP and CSIS keep having so many intelligence cockups.

“(CSIS and the RCMP), their first mandate is not to serve and protect,” explains Majcher. “We’re not focused on tasks anymore, we’re not focused on outcomes, we’re focused on what does the political establishment want to see.”

“Security is a motherhood issue,” continues Majcher. “Promotions and empires are built on motherhood issues. And to keep it in the forefront, the easiest thing in the world is to say to political masters, ‘I can give you a risk assessment and it can look pretty bleak. If you don’t give me the money and tools to address it and something happens, you are going to end up wearing it because I brought this to your attention’… Well, then you’ve got to play the game, and in playing the game sometimes you have to make a mountain out of a molehill.”

Michel Juneau-Katsuya, a former CSIS manager and now a security consultant in Ottawa, agrees with Majcher: “To a certain extent those agencies want to please their political masters... the Harper government would incarnate what I’m talking about when I say that (CSIS and RCMP management) basically did what they did in order to please their political masters. Just take the case of Khadr. He was supposed to be brought back several times (from Guantánamo Bay). The Supreme Court of Canada said bring him back and Harper said, ‘Screw you’ for political reasons and ideological reasons.”

A long history of spying based on politics

The notion of the RCMP and CSIS exaggerating dangers is not new. Both forces have a long history of spying on Canadians for no other reason except they don’t like their politics, are responding to the wishes of the political class, and likely to justify their budgets. CSIS alone received $537 million last year and employs 3,200 personnel. As University of Victoria political scientist Reg Whitaker has noted: “Even in peacetime, despite being a liberal democracy, Canada has persistently spied on its own people, run undercover agents… and kept secret files that categorized people in terms of their personal beliefs.”

This has translated into spying on trade unionists and First Nations, and peace, anti-poverty, anti-globalization and environmental activists.

But in the late 1990s a new threat emerged: Islamic terrorism. And the events of 9/11, along with jihadist attacks in Europe and other parts of the world, the rise of al-Qaeda and ISIS, have clearly shown this threat was real and needed to be addressed.

"The simplest support for that belief is that clearly we have had terrorism plots like the Toronto 18... like the Via passenger (train derailment case)," says Phil Gurski, who spent 12 years working at CSIS an an analyst, leaving in 2013. "We’ve had a number of Canadians who have gone abroad and fought for groups like ISIS and groups like Al-Shabaab. We’ve had Canadians die in terrorist attacks abroad. Not as victims, although that’s happened too, but actually as perpetrators; they are the ones who have carried out the attacks. So from a CSIS perspective, as an organization which is tasked at looking at national security, looking at public safety, it’s inarguable the threat is there."

Nevertheless, evidence shows that assessing who is a real or potential Islamic terrorist has proven difficult for CSIS and the RCMP at times. “The reflex of the security service is to think of the worst, to predict or plan to prevent the worst,” observes Juneau-Katsuya. “So not necessarily to beautify the reality. They try to, with a portion of information, extrapolate and prevent the worst. That has a perverse effect. When you are thinking all of the time of the worst, it might create a distortion of the meaning of the reality because your job is to prevent that. Because if something happens on your shift, you are going to be the one to be blamed. So right there we have an issue.”

However, Annie Delisle, an RCMP spokesperson, said in a statement that the force "acts on all terrorist threats and does not focus on any single religious, ideological or political based motivation or intent. The RCMP responds to all national security threats to Canada in an un-biased manner... The RCMP continues its efforts, both as police of jurisdiction and through Federal Policing, to address ideological violence."

Tahera Mufti, a CSIS spokesperson, said in respect to the $35-million lawsuit launched by five of its employees: "CSIS does not tolerate harassment, discrimination or bullying under any circumstances... The Service prides itself on being a top employer and creating a healthy and respectful workplace of inclusion, where diversity is representative of our strength." In regards to whether the agency is treading on civil liberties, she said: "In planning and conducting an investigation, extreme care and due diligence is taken to ensure an appropriate balance between the degree of intrusiveness of an investigation and the rights and freedoms of those being investigated." And whether they are ignoring the far-right, Mufti said: "Any group or individual who sees violence as a legitimate form of political expression, including those who support right-wing extremism, is of concern to us... I can confirm that CSIS is working closely on this matter with its domestic and international partners, including the law enforcement community."

Security certificate cases reveal flimsy evidence

Critics point to the "security certificate" cases as an example of overreaching. A “security certificate” is a legal tool that allows the RCMP to arrest and detain people on grounds they pose a threat to Canada – based on intelligence reports supplied by CSIS. Between 1999 and 2003, security certificates were issued against half a dozen Muslim and Arab men (and have been issued against many other people too).

In these cases, hearings are held in secret, with the lawyers for suspects only able to get limited access to the raw evidence against their clients. “We saw summaries of intercepted conversations, partial summaries – we wouldn’t get the whole conversation,” says Barbara Jackman, a Toronto lawyer who worked on four of these cases.

Five cases in particular became well known – Mahmoud Jaballah, Mohammad Zeki Mahjoub, Mohamed Harkat, Hassan Almrei and Adil Charkaoui. Combined, since 1999, the men spent an estimated 25 years in Canadian prisons, and as much as another 30 under different forms of house arrest. When they were in prison, it was usually in solitary confinement or isolation. Yet none of them were accused of planning or carrying out any terrorist action in Canada – and three of the five have since been cleared, where the courts found the use of security certificates unnecessary. One of the others, Mahjoub, no longer poses a threat to national security, according to CSIS.

Moreover, the men were arrested on the basis of allegations likely supplied by Middle Eastern dictatorships where torture is commonplace. At worst, the allegations were that the men belonged to terrorist organizations in those countries – but were never accused of participating in any attacks themselves.

The damage to the men’s lives and their families for the years spent in Canadian prisons was “incalculable,” says Matthew Behrens, a coordinator with Campaign to Stop Secret Trials in Canada, a group that fought for their release.

However, former CSIS analyst Gurski says that the use of security certificates in these five cases was "100 per cent" justified. "That does not mean that the security certificate process in and of itself was the best approach to do this," he adds. "But it was a tool available at the time... Whether or not it was the best tool to use is arguable but having said that, the fact that these men were investigated using that particular tool — investigations in these cases were 1,000 per cent justified... They definitely posed a threat. But, 'Did we go about investigating them in the best way possible?' is the way I would rephrase that question."

The case of Mahmoud Jaballah

The evidentiary weakness of these cases was highlighted in that of Mahmoud Jaballah.

I’ve met Jaballah twice – once in the winter of 2007 in a small cinder block room in Millhaven penitentiary near Kingston, Ont., where he was being held in a specially-built facility that was segregated from the other inmates. And then, two years later at his home in suburban Toronto, where he was under house arrest in a middle class, cookie-cutter bungalow parked on a nondescript street. Bearded, with a smudge mark on his forehead from praying, and dressed in a green tunic, Jaballah came off as a devoted Muslim and doting family man with a serious but warm personality.

At the time of my visit to his home, Jaballah was wearing an ankle bracelet which would trigger an alarm if he left the house; meanwhile, numerous security cameras kept a watchful eye on him, his wife and six kids.

Jaballah spent about seven years in Canadian prisons, despite having committed no crimes in this country – or apparently anywhere else, as far as the public record shows. Born in Egypt, he arrived in Canada with his wife and four of his children in 1996 and applied for refugee status. He began working as a teacher at a local Toronto Muslim school.

Prior to coming to Canada, Jaballah travelled and lived in various hotspots in the Middle East, and spent time in Egyptian prisons after being accused of being a member of Al-Jihad, a terrorist organization (although he was twice found innocent of this allegation in Egypt). CSIS claimed he was in contact with radical Islamists overseas and travelled on passports under different names.

Thus, in 1999, he was arrested under a security certificate, and accused of being a member of Al-Jihad. A few months later, however, Jaballah was released due to lack of evidence. In 2001, Jaballah was arrested again (and this time held for six years in various prisons).

The second time, CSIS accused Jaballah of being part of the al-Qaeda group that bombed two U.S. embassies in Africa in 1998, which killed more than 200 people – even though Jaballah was living in Canada at the time these attacks occurred.

The FBI spent vast resources tracking down anyone involved in these bombings, and brought four of them to trial in New York in 2001. The Bureau, however, showed no interest in Jaballah, despite the fact he was living in Toronto or sitting in Canadian prisons during this time. Nor did his name come up in evidence produced at the New York trial. “Had I anything to do with the bombing of the American embassies in 1998, would America be shy about asking Canada to hand me over?” Jaballah remarked to me when we met in 2009.

In the end, this allegation was eventually dropped – suggesting CSIS had conveniently invented it for its own purposes.

Jaballah was finally cleared in 2016. But his problems still persist. In the summer of last year, he and his wife flew out to Calgary for a visit. When they tried to return to Toronto, they were barred from boarding the plane – presumably because the airline had been tipped off by the security agencies. “They had to drive all the way back to Ontario,” says Behrens of the Campaign to Stop Secret Trials in Canada.

In 2007, the original security certificates were struck down as unconstitutional by the Supreme Court of Canada. They are still issued but with a slightly altered procedure.

Yet the experiences of the men who suffered under security certificates pale in comparison to the victims of CSIS and RCMP’s overseas “rendition” operation – which led to torture and interrogation in some of the worst places in the world.

Next in this National Observer four-part series: CSIS and RCMP’s “rendition” of suspects to the torture chambers.