A few weeks ago I found myself on a panel at a National Judicial Institute conference at the storied Algonquin resort in picturesque St. Andrews, New Brunswick along with Federal Court judge Richard Mosley and retired Ontario Superior Court judge Douglas Rutherford. The three of us were asked to discuss the challenge of trying terrorism cases in Canada. Not that we have had too many of these (thank God!) but the ones we have had have all been interesting to say the least.

The first Canadian brought to trial for terrorism offences in the post 9/11 era was Momin Khawaja, an Ottawa computer guy currently serving a life sentence for his role in a foiled fertiliser plot in the UK back in 2005. Mr Khawaja was originally given ten and a half years for his crimes and the trial judge struck down the ‘motive clause’ used to describe terrorism offences in the Canadian Criminal Code as ” it could lead to racial profiling and might chill free expression within specific religious or racial groups.” That judge was none other than Douglas Rutherford.

I remember at the time saying out loud “What is wrong with this judge? Does he not understand that terrorism is different and must be treated differently under the law?” After all, I was then a terrorism strategic analyst at CSIS and had worked on the Khawaja case. I knew that what he was contributing toward would have been a catastrophic act of violence that could have killed and maimed hundreds. How could this judge put future trials at risk by removing the crucial underlying motivation?

Momin Khawaja (second from left) is seen in this artist's rendition during federal court proceedings in Ottawa

And yet I now find myself questioning my own deep convictions on this issue and not just because I have met Douglas and had a beer with him (and he is a very nice man by the way). I think there are two very strong arguments that support the consideration of doing away with having to prove motivation.

First and foremost, motivation is really hard to prove in most cases. Unless we have the guilty party’s word for it (and that word is credible, not always a given with people like these), or a manifesto (Theodore Kaczynski – the Unabomber – or Norway’s Anders Breivik) or a cellphone statement (Michael Zehaf Bibeau – the killer of Corporal Nathan Cirillo at the National War Memorial) or a martyrdom video (Aaron Driver of Strathroy, Ontario) we are sometimes hard pressed to find out and may never know. In order to lay terrorism charges under section 83.1 of the Code the Crown has to be confident that it can show motive. If it is not, it does not lay these charges.  This is what appears to be happening so far in the case of the Somali in Edmonton who ran down a police officer and four pedestrians a month ago: he has been charged with five counts of attempted murder and NOT terrorism (so far).

Secondly if we dispense with the motive necessity we can move beyond the debate as to why some murders are classified as terrorism (e.g. when a Muslim is involved, although the Edmonton case shows that this is not always true) and others not (e.g. when the shooter is white – Dylan Roof in South Carolina or the Las Vegas shooter Stephen Paddock). This has become a divisive issue that exacerbates racial and religious tension. What if we were to call any mass shooting/attack terrorism by definition and not have to search for motive?

In any event, whether or not a person is ultimately tried on terrorist charges or not s/he is usually tried for murder, mass murder or planning to commit an act of mass violence. The penalties for all these offences are severe and, if found guilty, the perpetrator is going to be put away for a long, long time. I could be wrong here, but I do not think that in Canada a terrorist who kills is given a longer sentence than a ‘normal’ killer.

Maybe then we should put less emphasis on determining why a person decides to kill or plan to kill others. Many will criticise me for suggesting, in a post 9/11 world, that terrorism is not important. There is no truth to this of course: I would not have worked in counter terrorism for almost 20 years if I didn’t think it was important. It is just that perhaps the difficulty in proving underlying reasons in some cases may be unnecessarily complicating things and drawing out court cases too long, subjecting the families of victims to painful delays.

As I noted above, I am just coming around to this way of thinking – I am not sold on it yet. But it is worth considering if for no other reason than as a mental exercise. I would really like to hear the thoughts of others on this issue. Feel free to leave your thoughts in the comment section below.

Phil Gurski

President and CEO of Borealis Threat and Risk Consulting. Phil worked as a strategic analyst in the Canadian intelligence community for over 30 years, including 15 at CSIS, with assignments at Public Safety Canada and the Ontario Provincial Police. He specializes in radicalization and homegrown Al Qaeda/Islamic State/Islamist-inspired extremism. borealisrisk@gmail.com

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