This contribution was published on uOttawa on June 11, 2020
OTTAWA, CANADA — There is probably a good reason why the word ‘terrorism’ contains the root ‘terror’. After all, it is indeed a frightening phenomenon. Think back to 9/11 and the horrified faces of those fleeing the two towers in New York or the indelible images of people jumping from the upper floors of the buildings. We are afraid of terrorism and for good reason.
And yet ‘terror’ is not the primary element to terrorism, at least not from a legal or practitioner perspective. In criminal codes the emphasis is put on motivation, i.e. what makes terrorist crimes different from others. After all, terrorists are not the only ones who murder and wound: criminal gangs do, individuals do, states do. It would be a bad idea to decide that all these actors are terrorists.
In addition, terrorism is generally viewed as a recent phenomenon. Most analysts date its inception to the mid- to late 19th century, beginning with what US academic David Rapoport has termed the ‘anarchist wave’ of terrorism. Since that time it has ebbed and flowed and we are living in what we call the ‘post 9/11’ era. We now have ‘terrorism on the brain’.
So what, then, is terrorism? We in Canada have the Canadian Criminal Code to guide us since that is the vehicle through which (alleged) terrorists are identified, investigated, arrested, tried, convicted and incarcerated. The Code, beginning in Section 83.01, tells us that terrorism is:
[…] in whole or in part for a political, religious or ideological purpose, objective or cause and that in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security… that intentionally causes death or serious bodily harm to a person by the use of violence… causes substantial property damage… causes serious interference with or serious disruption of an essential service, facility or system […]
Canadian Criminal Code
I think you get the point. All aspects have to be satisfied: the act, the motivation and the effect. Note that there is nothing in the wording to do with terror or fear. This may be terrorism’s effect on some (most?) people but it is not a legal necessity.
When it comes to terrorism cases before the court the onus is on the prosecution to prove beyond reasonable doubt that the offence in question was planned or executed for one of the three ‘motivations’: political, ideological or religious. This requirement can be very challenging as it necessitates getting ‘into someone’s head’ in the absence of concrete evidence (such as a video or a manifesto/statement) or a confession by the perpetrator.
It is for this reason, I believe, that the Crown in Canada has opted to not lay terrorism charges in cases which appear, at first blush, to be terrorist in nature. The 2017 mosque shootings in Quebec City by a man apparently motivated by far right extremist sentiments and the van attack in Edmonton by a man who had an Islamic State flag in his vehicle are prime examples where this decision was made. Murder and attempted murder are much easier to prove beyond a reasonable doubt than is the motivation underlying the crime.
Obsession with terrorism
More recently we have witnessed brave moves by governments to expand the terrorism remit. In May, the Crown elected to charge a Toronto minor with terrorism offences for a murder he committed in February under alleged incel (involuntary celibate) motivation, despite the fact that there is little to no consensus that incel violence, which is very rare, constitutes an ideological act (and hence can be labelled terrorist in nature). The US President threatened to list Antifa, a loose anti-fascist movement as a domestic terrorist organisation, despite having no Constitutional authority to do so. Neither move has been fully worked out to date.
In our obsession with terrorism, as well as a desire to show that Western governments see a wide variety of organisations as terrorist in essence and not just Islamist extremist ones, we have now embarked on a new path whereby the label is applied much more expansively. On the one hand this is a welcome initiative since any actor which meets the legal definition of terrorism deserves to be treated as such.
On the other, it can also be said that the state is applying the term too generously, including in circumstances where it does not make sense: this is exactly what populist Philippines President Duterte is doing, albeit to an extent well beyond what we are talking about here. This over-eagerness will have resource implications for the agencies tasked with counter terrorism (in Canada the primary ones are CSIS and the RCMP).
If everything is seen as terrorism, then nothing is terrorism.
It is a legitimate question whether this constitutes a good strategy. If everything is seen as terrorism then nothing is terrorism. Do we really need to make the matter larger? We survived in Canada without a terrorism section in our Criminal Code for 134 years and were able to prosecute crimes which in hindsight could be described as terrorism using other legal tools. This should demonstrate that opting for a terrorism hammer is not the only tool we have. Perhaps it is time to lessen, not increase, the occasions on which we elect to this part of the Code.
Terrorism means many things to many people and we may be heading down an unhelpful pathway.
The small number of cases where terrorism is the optimal choice does not preclude those times where it makes sense. CSIS and the RCMP must still investigate terrorists to prevent them from succeeding: this does not imply that the Crown’s only option is to prosecute based on section 83.01.
We really need to get beyond the 9/11 mindset and see terrorism, at least in the West, as a rare offence. Expanding our use of this offence may not be warranted and may give unwanted attention to terrorist wannabes (there is already anecdotal evidence that some incels revel in being called ‘terrorists’). Why would we want to spread more fear and dread?