Another troubling court decision on terrorism in Canada

They don’t call BC the ‘left coast’ of Canada for nothing I suppose.  Our wonderfully beautiful Pacific side is known for its somewhat socialist views, greater tolerance of marijuana and progressive environmental positions, a lot of which is indeed admirable. It is also acquiring a reputation as the province that is ‘soft on terrorism’.

A year ago an appeals court overturned a jury verdict of guilty in the case of two ‘local yokels’, John Nuttall and Amanda Korody, who had been convicted in 2015 of planting pressure cooker bombs on the grounds of the BC Legislature timed to go off mid-afternoon on Canada Day.  The judge ruled that the RCMP had engaged in an elaborate ‘Mr. Big’ sting operation and in effect ‘created a terrorist plot where there was none’.  I disagreed strongly to this finding and still believe that the original jury decision should stand.  A further appeal may be in the works.

Now another BC court has found a man from the northern community of Fort St. John not guilty of incitement to terrorism on FaceBook.  The man, Othman Hamdan, had been arrested in 2015 and charged with four counts of terrorism for postings he made praising terrorists and suicide attacks.  The BC Supreme Court  judge, Bruce Butler, bought the man’s testimony that he was ‘doing research’ and criticised the RCMP method of collecting evidence. As a result, Mr. Hamdan is now a free man but, as he is not a Canadian citizen, may still be subject to immigration hearings.

I am not too familiar with the case or what evidence was brought to bear, but there are nevertheless a few things that really bother me about the judge’s ruling:

a) the defendant posted several things that clearly point to support for terrorism (the judge even acknowledged that “The suggestion that it is rational or acceptable for someone to kill unsuspecting non-combatants in a civil setting is repugnant”) but the judge ruled that these were not true inducements to others to carry out terrorist acts.  I see several scary implications for this.  ‘Gee, officer, I wasn’t trying to break into the ATM, I was just testing its security features’, or ‘Child pornography?  Heavens no, I am an artist’.  Is support for terrorism to now be seen in a similar light?

b) the RCMP was taken to task for cutting and pasting Mr. Hamdan’s posts and thus ‘removing context’.  I cannot see how someone who clearly expresses admiration for terrorist attacks in Canada and in effect calls for similar plots cannot be seen as a supporter of violent acts, even if the material provided was not 100% reflective of the original posts.  Mr. Hamdan also claimed that the translations of his Arabic posts were ‘inaccurate’: was an independent native speaker brought it to challenge his assertions?

c) I get the fine line between freedom of speech and thought and criminal behaviour.  I also get that saying you like terrorist acts is not the same as planning to do something violent.  But is encouragement to commit a terrorist act an offence or not in this country?  If I read the Criminal Code (see the relevant clause here) correctly it sure as hell is. I am no legal expert but….

What is really worrying me is the apparent lack of understanding, verging on ignorance, of some judges in Canada when it comes to terrorism accusations.  This of course makes sense to a certain extent as terrorism cases are extremely rare in this country (thankfully!) and we do not have a lot of case law.  Furthermore, it seems that showing terrorist motivation is subject to a higher standard of proof since it is primordial for the Crown to demonstrate that the offence was indeed driven by ideology.

Nevertheless there is a need for education for those that sit on the bench in Canada.  Happily, I have been trying to do just that at various levels and will be addressing two conferences in the coming months in the Maritimes where many judges will be in attendance. I do hope that my experience and presentations will provide context for the men and women responsible for rendering decisions in these important cases.

I do not wish to cast aspersions on the integrity of our judges.  At the same time, they must become better versed in what terrorism is and what it is not so that when cases are brought before them they can make the best choices possible.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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