Is there a need for longer jail sentences in terrorism cases?

This piece appeared in The Hill Times on November 5, 2018.

For a country that is thankfully rarely touched by terrorism we in Canada sure seem to talk about it a lot.  I suppose I am partly responsible for this as I tend to write about violent extremism ad nauseum, but given my career in counter terrorism with CSIS I hope some will cut me some slack.

This attention is odd as no matter how widely you define terrorism, and that is in itself a challenge, there have been very, very few successful plots on Canadian soil since the iconic events of 9/11.   I count five – six if you include Alexandre Bissonnette’s rampage at a Quebec City mosque in January 2017 (but excluding the van ramming on Yonge Street in April of this year – not terrorism by any definition I follow).  The casualty count?  Two deaths (eight if you add in Quebec).  Now two, or eight, deaths is too many but this number is statistically insignificant in a country the size of Canada.

So why does Parliament see the need to talk about terrorism in the context of the ‘hybridisation’ of Canadian Criminal Codeoffences?  I confess I had no idea what this meant: it is a way to reduce court delays by allowing prosecutors to choose a summary conviction, meaning lower courts could handle more cases.  The Liberal government recently voted to remove clauses from a justice bill that would allow prosecutors to choose lower maximum sentences for terrorism offences, following appeals from advocacy groups and pressure from the Conservatives.

Was any of this really necessary?  Do we need a big debate over part of the Code that is applied very infrequently?  Are terrorism offences, as rare as they are in Canada, really ‘distinguishable’ from other crimes as Liberal MP Colin Fraser maintained?  All very good questions.

At its core terrorism is murder, plain and simple.  Yes, it is murder that is perpetrated for ideological, religious or political reasons, unlike ‘garden-variety’ murder I suppose.  In the end, however, the result is the same: deaths, injuries and grieving families.  So I ask again: do we need to treat it differently?

As we have seen in several recent cases in our country, incidents that appear to have ties to terrorist motivation on the surface are in fact handled as murder cases, i.e. terrorism charges under section 83.01ff of the Code are not applied.  The ramming of an Edmonton police officer in September of last year and the Quebec mosque massacre are examples of such an approach. Why did the Crown not proceed with terrorism accusations?  Probably because proving motivation is hard, a lot harder than proving that an act of killing took place.  Why would the Crown risk losing an open and shut murder case by trying to establish terrorist intent?

I believe that an analogy with hate crimes may be instructive.  My understanding of the hate provisions in the Code allow a judge to add to a conviction where it can be shown that the crime was committed with hateful intent (defined as “committed to intimidate, harm or terrify not only a person, but an entire group of people to which the victim belongs”).  In other words, if a person attacks another because of who that person is or what s/he is wearing (a yarmulke or a hijab for example) that attack could constitute a hate crime and the presiding judge could pronounce a harsher sentence.

What if we did the same thing for terrorism?  If you shot up a bunch of bystanders while yelling ‘Allahu Akbar!’ or waving an Islamic State flag or screaming ‘Death to Jews!” why could that not be seen as first degree murder with added ideological intent, giving the court the leeway to increase jail time?  I am no legal expert but this strikes me as a much easier and more efficient way to deal with the few terrorism incidents we have.  Or am I missing something?

One of the drivers of terrorism is to terrorise.  Our obsession with a truly fringe element of our society tells me that the terrorists are succeeding in their goals.  Do we really want to cede victory to a tiny bunch of murderers?

Phil Gurski is a former senior strategic analyst with CSIS and the Director of Security and Intelligence at the SecDev Group.

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