The interpretation of Canada’s terrorism laws is woefully inadequate

There is an old saying ‘the law is an ass’. It refers to those times when the application of the law is asinine, obstinate and counter to common sense (the phrase dates back, apparently, to the mid-17th century).  I submit that some of Canada’ laws, the ones that pertain to terrorism, are not just an ass, they are a herd of donkeys.

Then again I am not so sure that it is the law itself that is the problem, but rather in how it is applied.  There really is no other way to put this: judges in this country have a woefully ignorant knowledge on what terrorism is, what threat it poses and how to weigh in on it.

The evidence?  A judge in Toronto just ruled in the Ayanle Hassan Ali case, he being the young Somali who attacked a Canadian Armed Forces recruiting centre in March 2016, that he was not guilty, in part because he is allegedly schizophrenic, and in part because ” anti-terror laws were not intended for ‘lone wolf acts’.  This is an abysmal decision.

I am not arguing that mental fitness should not be taken into consideration when passing judgment: of course it should.  If Mr. Ali – who by the way was found fit to stand trial – did not know right from wrong then fine.  I did find this statement interesting though: “One of the beliefs that the defendant had formed in his mentally disordered state was that killing Canadian military personnel was justified because the military was fighting in Muslim lands.”  This is actually classic Islamist extremist motivation, irrespective of Mr. Ali’s mental condition.  I am not a psychiatrist and hence will not weigh in on that, but I can tell you with 100% certainty that he was radicalised and that, in the absence of illness, he would make a great jihadi.

What bothers me much more is Judge Ian Macdonnell’s ignorance about terrorism.  Perhaps the law was not written with ‘lone actors’ in mind but is the law not subject to interpretation?  Do judges not have the flexibility to interpret the law?  Do circumstances not change? Is the current trend not towards lone actors?  For the record, I see no restriction in the Canadian Criminal Code section 83.01 ff on lone actors: the code does say that a terrorist group is an entity, and an entity is defined as “a person, group, trust, partnership or fund or an unincorporated association or organization.” So, unless Mr. Ali is not a person he can in fact constitute a terrorist group on his own.  Or am I missing something here?

We have had a number of wrong decisions (my take obviously) in terrorism trials of late: the Victoria legislature plot, the Montreal teen couple who wanted to join Islamic State…  There are a number of trials still ongoing and I am now fearing that precedents have been set for further acquittals.  We are becoming a laughing stock when it comes to prosecuting terrorism.

This is somewhat understandable.  We have so few terrorism cases to try and that is indeed a good thing.  Better too few than too many.  So I get the lack of experience in this regard.  But when we get a case we have to have the ability to arrive at the right decision.  There are Canadians who radicalise to violence and engage in, or plan, attacks.  We need to stop them, arrest them, try them, find them guilty and incarcerate them.  Canadians demand no less.

In light of this obvious gap in the Canadian legal system I want to make the following offer.  I will go anywhere in his fine land of ours to provide training on radicalisation and terrorism.  Anywhere and to any audience: Crowns, judges, defence lawyers.  Anyone in need of knowledge.  Hell, I’ll even do it pro bono!

We cannot keep going on like this. We need to treat terrorism seriously and show those who think themselves justified to stab our military officers that they will pay for their crimes.  Anything less is a joke.  I for one am tired of people pointing to my country and saying we are soft on terrorism. This has to end and end now.  Do we need a mass casualty attack for this to register with our legal system?  Let’s hope not.

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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