US vs. Canadian judicial approaches to terrorism: night and day

In so many ways Canada and the US are very similar.  We are both largely Anglophone, former British colonies, and Western liberal democracies.  On the other hand we are also very different.  Whether we are talking about gun laws, the role of religion in society or baseball vs. hockey there are distinctions that apply at the 49th parallel.

Another important dissimilarity can be found in how the two countries’ respective courts deal with terrorism.  In the US, those charged with terrorism rarely, if ever, are found not guilty.  In Canada there is what I see as a very worrying trend to acquit cases of violent extremism.  Two decisions announced today illustrate the gulf between Canada and the US.  In the latter, a Canadian, Abdulrahman El Bahnasawy, was sentenced to 40 years in federal prison  for plotting to attack Times Square in New York and the city’s subway.  In the  former, a BC appeals court upheld a ruling by a BC Supreme Court judge who had stayed a jury verdict of guilty on John Nuttall and Amanda Korody who planned to bomb the BC Legislature in 2013.  For the record I still think the judges blew it on the BC plot but I have no intention of rehashing my views: I have blogged on this on several occasions.

Why the disparity?  Simple: 9/11.  In the wake of the single greatest terrorist attack in history the US said: never again.  The FBI and its partners were most probably told to do whatever was necessary to prevent any future plots from gaining fruition, whether they were on the scale of 9/11 or not.  As a consequence, the US government has secured hundreds of convictions and has not been disappointed very much (I don’t know how many acquittals there have been but I bet the number is tiny).  In some instances the cases brought to American courts sure look like entrapment to me, the same criticism in the BC case which led the Supreme Court judge, and the Appeals Court, to overturn the original verdict of guilty.  But the US judicial system is not falling for that defence.

We in Canada have not had our ‘9/11’ nor anything close to that.  As a result, it is worth speculating that neither the government, nor the public for that matter, has lowered the boom on CSIS and the RCMP to stop every and all plots.  In other words, there is no sense of urgency north of the border.

And that is both a reasoned and good thing.  Reasoned because we have had so few Islamist terrorist plots since 9/11 and only a handful of successful ones in 2014 that caused two deaths.  Good because we don’t want to waste the court’s time on cases that are weak at best (again, the Nuttall/Korody case was actually a strong one).  In the US, on the other hand, even with the upped investigative tempo and hundreds of prosecutions, there have been attacks that have killed dozens (Boston Marathon, San Bernardino, Orlando).  None of that has happened here.  Hah!  Another difference!

When a government feels panicked over terrorism it sometimes makes irrational decisions.  The US chose to invade Iraq in 2003 as a consequence of 9/11.  Following the 2014 Parliament Hill attack, the Harper government passed a bill called the ‘Barbaric Practices Act’ which, let’s face it, targeted Muslims.  The law was dumb and would probably never have been proposed had Michael Zehaf-Bibeau not gotten within a few  metres of the PM in the Centre Block of Parliament.

I really think that Canadian judges have a woefully inadequate understanding of terrorism, hence all the acquittals.  The mental health defence also seems to win out a lot of times, something we do not see in the US.  Again, that judges do not have to rule on many terrorist cases is indeed a blessing for Canada.  But when the rare case does come up it is crucial that they get it right, which they are not.  Either judges need to educate themselves on what is and what is not terrorism as well as the nature of the threat (psst!  I am free to provide that training) or the Crown has to decide to forgo laying terrorism charges and be satisfied with conspiracy to commit murder – in the end the sentences are probably going to be more or less the same in convictions anyway.

Terrorism is real and our protectors are doing everything in their power to stop it.  I can imagine the frustration at having all their hard work go for nought when a judge throws the case out.  We need to get better at this.  CSIS and the RCMP are doing their part.  It is time for the courts to catch up.

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.

Leave a Reply