Is it that important to lay terrorism charges for acts of terrorism?

This piece appeared in The Hill Times on June 17, 2019.

It might strike the reader as odd that someone with so much invested in counter terrorism is here making the suggestion that we need to worry less about terrorism. After all, if we stopped spending so much time talking about it, wouldn’t that put me out of a job and undermine my regular column in The Hill Times? Would I have anything meaningful to say or write anymore? Perhaps not. Then again, as a ‘glass-half-full’ kinda guy I also recognise that were this to happen I could actually retire and spend more time staring at the lake up at my Madawaska Highlands cottage!

And yet I have been thinking for some time now that perhaps we in Canada can get to a point where terrorism no longer dominates certain conversations when the topics of national security and/or public safety come up. After all, the actual incidence of terrorism is low here at least as measured by attacks, real or planned. We have the good fortune in the Great White North of having witnessed a grand total of two deaths at the hands of terrorists since 9/11. When this figure is compared to the numbers of victims of drug overdoses, domestic abuse or even throughout the MMIW tragedy it is hard not to conclude that terrorism is an insignificant blip in our country and suggests that we need to focus resources elsewhere to deal with vastly larger social ills and threats.

Note that the total number of ‘terrorism’ deaths stems from two actual terrorist attacks which occurred, as a matter of fact, two days apart in October 2014 (Warrant Officer Patrice Vincent was run down by Martin Couture-Rouleau in St-Jean-sur-Richelieu on October 20 and Corporal Nathan Cirillo was shot dead by Michael Zehaf-Bibeau on the 22nd). What I elected not to include were the deaths of six worshipers in a Quebec City mosque in January 2017 by Alexandre Bissonnette. Recall that the shooter was charged with (and eventually pleaded guilty to) first degree murder and not a terrorism offence, a decision that in itself was offensive to some who felt that a double standard was applied when it comes to terrorism.

But the Bissonnette case supports my view that we may not need to have terrorism offences on the books in any case. What was clear in this massacre was the culprit’s intent to kill and maim, hence the first degree murder charges. Recall also that the motivation behind this crime was not evident at first (murder pure and simple, a hate crime, terrorism?) which probably led to the initial decision not to lay terrorism charges. In the end the Crown elected to go with the obvious: six innocent Muslims were dead and several more wounded by a man with a gun who invaded their prayers one cold January evening. It was a classic ‘open and shut’ case which would have failed only if the defence had demonstrated that Mr. Bissonnette was not criminally responsible for his actions for mental reasons.

All terrorism is equivalent to other non-terrorist crimes already well-established in legal codices: murder, attempted murder, conspiracy to commit murder, hostage taking, acquisition of firearms or explosives, etc. Hence all terrorists are subject to charges we are more familiar with and ones we have vastly more experience with adjudicating. Does labeling these incidents as terrorism actually get us something?

To my mind there are at least two reasons not to invoke terrorism when arrests of this nature are carried out. Firstly, it removes the requirement that the Crown prove underlying terrorist motivation (described as political, ideological or religious under the Canadian Criminal Code), a task that can be devilishly hard to do. What happens if the decision to go with terrorism fails due to an inability to prove motivation beyond a reasonable doubt: acquittal? Secondly, it denies the propaganda and attention that terrorists so desperately crave (US terrorism guru Brian Jenkins once described terrorism as ‘theatre’). Terrorism invokes fear and by calling all kinds of acts terrorism – unnecessarily in my view – we feed that fear.

One area that may still necessitate the use of the terrorist activity provisions of the Code is that of traveling to join a listed terrorist entity. We have seen hundreds of Canadians deliberately and voluntarily leave our shores to hook up with foreign terrorist groups such as Al Qaeda, Islamic State and Al Shabaab, among others. I suppose it is important to state this intent in terrorist terms in order to get enough evidence to go to court, although even here proving intent is not always so straightforward. In these cases there is also the challenge of proving ‘membership’ in a terrorist organisation. Are alternatives available?

We live in a world obsessed with terrorism, mostly of the Islamist variety although the ‘rise’ of the far right is garnering a lot of attention these days. This addiction should surprise no one who has even a cursory knowledge of what transpires with alarming frequency in lands such as Afghanistan, Iraq, Somalia, Nigeria and other countries blighted by terrorism.

Canada is none of the aforementioned countries, however. Terrorism here is a blessedly tiny problem and one that will most likely remain insignificant. Furthermore, moving to underemphasise or even eliminate terrorism offences would not have that much of an impact on the agencies tasked with investigating – and thwarting – it: they could continue to collect intelligence (CSIS) and evidence (RCMP) to the same degree. The only real difference is what to do with the evidence when it comes time to lay criminal charges.

I am not naive. A government which chose to minimise terrorist offences in 2019 would face a great deal of opposition, most notably the dreaded ‘soft on terrorism’ accusation. So do not expect these recommendations to be embraced any time soon. In this light I guess I’ll have to keep penning thoughts on terrorism for the foreseeable future. Hmmm, maybe I can do so while staring at that Madawaska Highlands lake after all….

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting and a former strategic analyst at CSIS.

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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