Counting Terrorism Charges and Prosecutions in Canada Part 1: What does the data say?
This blog post is a medium for providing a series of tables that provide information on all terrorism cases and charges to date—a public release of information collected over the past five years that, I hope, will be of interest to students, lawyers, national security practitioners and academics. The tables strive to provide further information related to each of these cases, such as the specific offences charged, whether individuals were convicted or not, their sentences, and so on.
The background to the collection of this information is as follows. In 2015, I (Nesbitt) undertook a study to look at every terrorism prosecution in Canada, from the investigations and arrests through to the trials and, if necessary, sentencing (note: it was necessary). The idea was driven in part by a desire to compile information about the cases we had in Canada, in the absence of a repository of cases and data on these important, controversial, and increasingly relevant terrorism offences. But there were two other goals at that time—ones that also drive the release of this data. The first was to bring some rigour to the analysis of these prosecutions by starting at the very basics and pushing some of this general information—how we are doing on prosecutions, conviction rate, gender breakdowns, who we are targeting in terms of groups and ideologies, etc.—out into the open for policy and legal practitioners to parse, and for academics and students to consider. In other words, to get a better sense of trends in Canadian terrorism prosecutions, including more specifically, sentencing trends, how, when and why expert evidence has been used, how the elements of terrorism offences have been treated across courts, to compare our terrorism numbers and trends to those related to “hate crimes”, and so on.
The second goal, flowing from the first, was to provide some of this general information—data and overviews of sub-areas of practice—to academics, practitioners and students and see what brilliant things they might make of it and how they might build on it. The idea was always to make as much of the information publicly accessible as possible; this started with charts and numerical breakdowns in published form and continues today by releasing the full list of cases (this blog post, part 1) for public consumption and scrutiny. Later, we will release part 2 of this blog post, which offers some breakdowns of the numbers to date to see what general uses can be made of the information available in these charts—and what it tells us about prosecuting and charging terrorism in Canada.
This transparency initiative is also consistent with a push at Intrepid Blog to support, contribute to, and improve open access research, through public engagement in podcasts, reviews of case law, or support for open access data and collaborative, inter-disciplinary research from a diversity of Canadians. On a personal note, it is simply impossible to imagine Canada effectively navigating tensions between rights and security in the area of anti-terrorism law without diverse and inter-disciplinary perspectives. So please, take this data and make it better, more accurate and more useful; use it to provide more diverse, inter-disciplinary, representative scholarship from both students to academics to policy and legal practitioners.
Finally, note that the tables (below) will remain publicly available on Intrepid Blog and will be updated periodically to add new cases and information as it becomes available. One hope—and this is where we look to you, dear reader—is that we can crowd source some of the updates and modifications; so, if you see anything that needs updating and/or correcting in this table, please let us know!
With that, we now move to a brief explanation of the methodology—how cases were deemed relevant or not—before providing the tables of cases.
Methodology:
The broader methodology for how all these cases were gathered can be found in my various publications on anti-terrorism prosecutions in Canada (see SSRN page for draft versions). What is relevant here is how cases/charges were deemed relevant or irrelevant for the purposes of putting data together.
The answer is very simple: if an individual was charged with a terrorism offence as defined by the Criminal Code of Canada, then the case was included. This includes the terrorism offences laid out in the Criminal Code between sections 83.02-83.04 and 83.18 to 83.23. But for the purposes of gathering information herein it also included a look at section 83.27 of the Criminal Code, which is not a terrorism offence but rather says that where an impugned (indictable) offence other than murder “also constitutes a terrorism offence”, the offence is subject to life in prison; in other words, it requires a judicial finding that a criminal act was also a terrorist activity and, as such, could be included for the purposes of gathering information on terrorism cases in Canada. Further, cases where section 231(6.01) of the Criminal Code was charged were included. Section 231(6.01) raises second degree murder (essentially an intentional killing) to first degree, where the crime “also constitutes a terrorist activity”. In both these cases, not only must a judge make a decision on terrorist activity—surely relevant to evaluating terrorism cases in Canada—but section 2 of the Criminal Code also makes clear that an indictable offence that also constitutes terrorist activity is a terrorist activity. So, confusingly, in a roundabout way, both of these offences are terrorism offences even though there is no terrorism offence to charge per se—one charges a different indictable offence, or murder, makes the case for terrorist activity and, in so doing, bump up the sentence. (Both, I would argue, are thus better seen as sentencing provisions in that they simply exacerbate the sentence where the indictable crime also constitutes terrorist activity.) Finally, in theory I was open to—and would still tend to—include cases that contemplated section 718.2(a)(v) of the Criminal Code, which mandates that where “there is evidence that the offence was a terrorism offence”—even if terrorism was not charged at trial—then it must be considered as an aggravating factor in determining the fit sentence.
In practice, we have three very recent examples of the use of 231(6.01), but none have yet made it through trial at the time of writing, so the cases are included but there is little to say on the details at this point. We now have one case using 83.27 (Veltman, London, Ontario attack), though as of writing how this will work is untested in court. Furthermore, we have zero examples of the section 718.2(a)(v) terrorism offence sentencing provision being used without a terrorism offence (or section 83.27) being formally charged, despite some opportunities to do so, perhaps most notably in the case of Alexandre Bissonnette.
The flip side of all this is that if an individual was not charged and/or tried for a terrorism offence, then the case is not counted here as a terrorism trial. This of course has the downside of removing from consideration a host of cases that may have been or almost certainly were terrorism as outlined by the Criminal Code’s definition but were not charged/argued as such. However, the benefits of this approach outweighed these drawbacks, at least for my purposes. First, it removed subjectivity in that it followed the charges as they were, not as the author thought they should have been. That also meant avoiding constant disputes about whether one case should be included or not, and the “if this case then why not this one” discussions. Second, and more importantly, it also allowed for a comparison between cases that were charged as terrorism and others that perhaps looked like terrorism but were not charged as such. Indeed, it allows us to discuss or even critique the divide between terrorism offences and “ordinary” crime, or perhaps gather insight into what these charging decisions tell us about counter-terrorism laws and practices in Canada. (As I have done, one might then compare our terrorism cases to cases that looked very much like terrorism, but were not charged as such, including Bain, Bourque, Minassian, Bissonnette and Sharif, or that of Lindsay Souvannarath.)
You will likewise not find “terrorism hoax” cases (section 83.31 of the Criminal Code) in the tables below, for a couple of reasons. First, by definition a terrorism hoax is not terrorism—that is the very foundation of the crime, that it is a hoax and not the real thing. Second, section 2 of the Criminal Code seems to contemplate this logic, for it defines terrorism offences at section 83.3, meaning terrorism hoax (again, section 83.31) falls just outside the offence definition. Nevertheless, researchers should be aware that we have several terrorism hoax cases and that surely, in some instances, it might make sense to consider these cases alongside the terrorism prosecutions noted herein.
Two other cases deserve specific mention here, for they were not included in this data, but reasonable people can disagree about whether they should have been. First, Mr. Ali Omar Ader was charged and convicted (R v. Ader) in the kidnapping of Canadian Amanda Lindhout as well as Nigel Brennan; Ader was described as the main hostage negotiator, attempting to extract money in return for the return of both captives. Mr. Ader was eventually lured to Canada by authorities on the promise of a book deal, and then arrested and charged with hostage taking (section 279.1 of the Criminal Code).
Section 83.01(1)(a)(iv) of the Criminal Code defines “terrorist activity” as “offences referred to in section 7(3.1) that implement the International Convention Against the Taking of Hostages.” Section 7(3.1) then makes clear that section 279.1—the hostage offence with which Mr. Ader was charged—exists to bring Canada into compliance with the Hostages Convention. Put simply, section 279.1 is the offence implementing the Hostages Convention, meaning a conviction in that regard should amount to terrorist activity, which would then amount to a terrorism offence, as discussed above. So, the act of hostage taking in this case and the conviction under section 279.1 would, one would think, constitute a terrorist activity under section 83.01 and in turn a terrorism offence according to section 2. How exactly that would ever be charged as a terrorism offence has never been clear to me—one cannot be charged with a definition in the absence of a specific offence provision, and the only relevant provision is simply section 279.1. But at minimum one would expect this to come up at sentencing, where section 718.2(a)(v) should be relevant. Though I remain confused about how this all might come together, the point in the case at hand is ultimately moot: the prosecution never charged this as a terrorism offence, never mentioned terrorism at trial or on sentencing, and perhaps most relevantly the sentencing decision never mentions terrorism at all. So, while this case would seem to be a fairly clear case of terrorism, at least as defined (in a rather circuitous manner) by the Criminal Code, the terrorism case has yet to be made before court. Indeed, there is some evidence to suggest the prosecution might have disagreed with this assessment, for if terrorism is a mandatory aggravating factor upon sentencing, then one would think it would be mentioned by the Crown on sentencing at least if the case was cut and dried.
Second, consider the case of R v. Ribic, which again concerned a hostage taking charge under section 279.1 for an offence committed during the 1990s hostilities in Bosnia. As in Adel, however, there is no mention of terrorism and thus, for the above reasons, the case has not been included in this study.
You can click here for the report/table of terrorism cases to date (17 June 2021)