Federal Court says RCMP must hand over solicitor-client information in terror plot case

The Federal Court says the RCMP must hand over solicitor-client information to the country’s national security review agency — allowing a long-stalled review into whether the Mounties mishandled the case of a Canadian convicted of plotting ISIS-inspired terror attacks in the U.S. to move ahead.

The case centres on a complaint from Abdulrahman El Bahnasawy’s father Osama El Bahnasawy, who alleged the RCMP played a role entrapping his son, now serving a decades-long sentence in a U.S. maximum security prison.

The FBI, with help from the RCMP, arrested the then 18-year-old El Bahnasawy at a hotel in New York in May 2016. The Mississauga, Ont., teen, who has a history of bipolar disorder and addiction, had been chatting online with an undercover FBI officer he thought was an ISIS supporter about bombing Times Square and the New York City subway system.

The defence argued the agent encouraged El Bahnasawy to plan the attacks, while prosecutors maintained the plot was well underway before the two connected.

El Bahnasawy pleaded guilty to conspiracy-related terror charges and in 2018 was sentenced in a U.S. federal court in Manhattan to 40 years in prison.

But the family has raised concerns about the RCMP’s role. They allege the Mounties failed to intervene while El Bahnasawy was still in Canada, despite his age and mental health challenges, and allowed him to be arrested and prosecuted in the U.S. under a system with fewer protections for mentally ill defendants.

The family’s complaint landed with the National Security and Intelligence Review Agency (NSIRA) in 2020. After years of pandemic-related delays, a review led by vice-chair Craig Forcese found the RCMP acted in “good faith” based on credible evidence.

But Forcese also underscored that his findings were incomplete and the review remains open because the RCMP refused to disclose what, if any, legal advice it sought.

“This is regrettable as it will inevitably contribute to doubts the complainant has about the conduct of the RCMP,” he wrote.

NSIRA sought a summons to compel the RCMP to disclose the solicitor-client information, triggering a hearing before the Federal Court.

The RCMP and attorney general argued the NSIRA Act does not entitle Forcese’s team to solicitor-client information — an argument Justice John Norris dismissed.

“To fully understand and assess the decisions the RCMP made in relation to a national security investigation like the one concerning Abdulrahman, it is necessary to know what legal advice they sought and, if advice was provided, whether they followed that advice,” he wrote in his June 27 ruling.

The justice went on to say it is “completely counterintuitive” to think Parliament created NSIRA and intended to give it less access to relevant information than its predecessor, the Security Intelligence Review Committee.

“The [attorney general] was unable to suggest any reason why this would be the case,” wrote Norris.

“In my view, it is highly unlikely that this was Parliament’s intent.”

How a Canadian teen was caught in a FBI terrorism sting

Speaking for the family, lawyer John Phillips called the RCMP’s refusal to co-operate “shameful” and an “injustice.”

“If they had something to hide from their regulator, there’s a real problem. If they didn’t, their [lack of] co-operation is itself a problem,” he said.

He added it’s “deeply troublesome” for the family to struggle through court proceedings for years to get information NSIRA should have had from the start.

The RCMP did not respond to a CBC News request for comment by deadline.

NSIRA would not comment further on its review, saying all investigations “must be held in private.”