Trial of alleged ISIS recruiter Peshdary delayed indefinitely
Ongoing problems with disclosure to defence may imperil prosecution
A high-profile trial of an alleged ISIS recruiter was postponed indefinitely today after a judge accepted the defence's argument that its job had been made impossible by late and incomplete disclosure of evidence.
Prosecutors also have abandoned plans to try Awso Peshdary of Ottawa in front of a jury.
Peshdary is accused of recruiting others to travel to Syria on jihad.
His alleged star recruit, convert John Maguire, became well-known to Canadians after he recorded a threatening video while dressed in ISIS combat garb in a ruined town in Syria. ISIS has since announced Maguire's death in combat, though that report is unconfirmed.
Peshdary also is alleged to have helped a second Ottawa man, Khadar Khalib, reach ISIS territory. His fate is unknown; like Maguire, he is the subject of an international arrest warrant.
Peshdary was arrested in February 2015 and has been in custody ever since.
Three more men allegedly close to Peshdary — Carlos and Ashton Larmond and Suliman Mohamed — have pleaded guilty to terrorism charges and been sentenced to prison.
The case against Peshdary rests heavily on evidence collected by Abdullah Milton, a New Brunswick convert who worked for both CSIS and the RCMP as an informer, collecting hundreds of thousands of dollars in return.
Psychological assessments of Milton conducted for his handlers describe a series of mental issues, including psychopathic and parasitic behaviours.
Both CSIS and the RCMP have delayed releasing relevant material to the defence, drawing the ire of the judge in the case. One 1,900-page stack of RCMP evidence was handed over in late January — but dozens of compact discs from CSIS were still outstanding.
CSIS handed over a stack of CDs in early February, but the defence team found them to be blank. CSIS subsequently handed over more discs containing the records of conversations between Peshdary and government agent Milton.
The last piece of evidence — a search warrant obtained by the RCMP against Peshdary — was only disclosed to the defence at the end of last week.
The judge in the case has been severely critical of the delays in disclosure by both CSIS and RCMP, pointing out that much of the material released recently should have been given to the defence three years ago.
A source with a CSIS 'pedigree'
Craig Forcese, an expert on national security law at the University of Ottawa, said the case is complicated by the fact that Milton had a lengthy history working as an informant for both the RCMP and the more disclosure-averse CSIS.
"It's comparatively uncommon for CSIS to flip one of its sources over to the Mounties," he said. "So the case is built around the evidence that the source will offer up, and since that source has a pedigree with CSIS as well as with the Mounties, CSIS is drawn into the orbit of this prosecution in a way that wouldn't otherwise be the case."
Forcese said CSIS normally tries to avoid that kind of situation.
"In many other cases CSIS's involvement is limited to the tip — what's called the disclosure letter — that sets the Mounties off down the path investigating someone," he said. "CSIS is very wary and keeps an arm's length away from the Mounties in order to avoid being conflated with the Mounties and drawn into the disclosure process.
"When you flip the source over, and you're going to use what the source saw and purports to have heard as evidence against the accused, then the credibility of the source is front and centre. And the ambit of information that can go to credibility is everything you can get your hands on, which includes everything the source was doing for the service, and what the service thought of the source."
The Crown had elected to try the Peshdary case in front of a jury, in spite of the defence's preference for a judge-only trial. Monday was supposed to see the beginning of jury selection.
But on Monday morning, as it became clear that any jury empanelled might have to wait many weeks for the trial to begin, prosecutors agreed to a defence motion to have a judge hear the evidence.
That change may streamline the trial. Peshdary's name and face are widely known in the city of Ottawa, where he was already implicated in a previous terrorism case (Project Samossa) that led to lengthy sentences for two men (Hiva Alizadeh and Misbahuddin Ahmed) and acquittal for a third (Dr. Khurram Sher).
Lawyers are due to return to court later this week to begin looking for new dates for the trial to begin.
Three years have elapsed since Peshdary was charged, and each additional delay increases the possibility that a Jordan application (a motion arguing for dismissal on grounds that justice delayed is justice denied) might succeed.
Forcese says it's a constant concern with terrorism cases, where disclosure issues tend to drag things out. "This is a long runway on this trial, and most of these terrorist trials have long runways, but you have to wonder if it's going to run off the rails. And in the most recent decision that the Superior Court issued they're compelling CSIS to cough up more information. So at some point, CSIS may say let's pull the case rather than risk disclosure of a crown jewel."
"There's lots of things that can go sideways in this case, and lots of things that have gone sideways."