Putting the Screws to Terrorists: The Ontario Court of Appeal's Sentencing Philosophy

General Commentary

 

NSL, Ch. 7, pp. 261 et seq.

 

In December, the Ontario Court of Appeal weighed in for the first time on Canada's anti-terrorism criminal law (and indeed, is the first appellate court to consider convictions rendered under the terrorism offences created by the 2001 Anti-terrorism Act).  In a series of cases released simultaneously -- Khawaja, Khalid, Amara, and Gaya -- the Court grappled with several issues discussed either in National Security Law or on this blog.  Among these: 

 


  • holding that the "motive" aspect of the definition of "terrorist activity" is constitutional.  This strikes me as a sensible conclusion for three reasons: 

 

First, if you remove the motive clause for the current definition of "terrorist activity" without also modifying the other elements of the definition, then "terrorist activity" becomes an incredibly broad concept that could include a whole host of regular criminal conduct.  (See the discussion in NSL, at p. 271.) 

 

Second, it has never been clear how a political, religious, or ideological motive somehow rises to the level of a Charter s.2 interest, when connected to the sorts of acts of violence actually enumerated in the definition of "terrorist activity", nor has it been clear that the "chill" effect posited by the trial court in Khawaja can be used to denounce the motive provision.  While there may be a "chill" out there because of terrorism and the state's reaction to it, the inclusion of the motive provision per se cannot be assumed to be the source of it (a point made by the Court of Appeal), and (I would add), even if it was, perhaps the chill is on activity that in a free and democratic society deserves to be locked in the freezer.  Again, we're talking about activity connected to real acts of violence, to satisfy the definition of "terrorist activity".

 

Third, I have not been persuaded that the presence of the motive provision induces ethnic profiling, a matter also discussed by the Court of Appeal.  Yes, the Crown will be obliged to prove the motive, requiring evidence of it (and incidentally, this increases the burden on the Crown).  Yes, police will therefore have an investment in collecting this evidence.  But I have seen nothing persuasive suggesting that because of this, they will ethnic profile where, but for the motive clause, they would not.  (The scope of ethnic profiling in anti-terrorism investigations is an empirical question, driven at present by allegations, fairly episodic survey work and repeated denials by the security services.  I would hazard, however, that in terms of useful police work, ethnic profiling is a train wreck waiting to happen; even the best resourced security service would find investigations driven by ethnic profiling to be disproportionately consumptive of scarce resources, with virtually no value added.  Investigations triggered by more nuanced criteria, may include relevant ethnicities, religions etc -- where the focus is on, for example, criminal acts inspired by some political cause or another connected to these variables.  But from a practicality perspective they cannot reasonably be limited to these variables without coming close to an unproductive dragnet, even setting aside the legal issue of discrimination).  In the final analysis, the sort of evidence showing the motivation will be fodder for a police investigation, whether or not the motive clause exists.  If the crime you are investigating is one of political violence, you will focus on those showing propensities towards political violence.

 


  • confirming the reach of the armed conflict exception in the definition of terrorist activity.  I'm not sure I agree with every element of the Court of Appeal's reasoning, and in particular its broad construal of "during" an armed conflict, but I agree with the outcome.

  • erecting new standards for the sentencing of those convicted of terrorist offences.

 

It is this last issue that I think might prove most troublesome.  To summarize, the Ontario Court of Appeal greatly grossed up the sentences for all the offenders, including those who had pled guilty.  In so doing, it imposed lengthy prison sentences in the Khawaja case and the Toronto 18 context that reflected, among other things, the gravity of offences directed against, in essence, a democratic society, and the prospect of indiscriminate violence against the population.

 

This approach resonates at the level of principle.  But there are potentially doubtful implications.  First, and most obviously, we should expect that every terrorism case will be fought to the limits of effort -- there won't be much incentive to plead out to a lengthy criminal sentence.  This will compound the expense and difficulty of already expensive and difficult cases.

 

Second, it should be underscored that, as terrible as the plots perpetrated by these individuals were, they were just that -- plots. There was no actual act of terrorist violence.  If not intercepted and disrupted, there might have been -- maybe even probably would have been.  But there are implications in treating the plot so harshly that nothing is lost in culminating plot into act of violence.  If the Court is prepared to turn the screws almost as far as they can go on those who plot, then as soon as the plotting threshold is crossed, the criminal law has no residual deterrence for those considering whether to pursue the plot to its final end.  Yes, the criminal law has no deterrence value anyway for the suicide bomber , but I would assume that for every prospective suicide bomber there is a supporting cast of the less blinkered and more doubting -- and this supporting cast is that most likely to be deterred.  In for a penny, in for a pound is not the right way to create a criminal deterrence mechanism peeling these people away from terrorist conspiracies.