Antiterrorism Law and "Cultural" Baggage: How Terrorist Activity is Defined in Law

This weekend witnessed a small contretemps over Justice Minister MacKay's comments about the foiled mass atrocity attack in Halifax (currently an alleged attack because matters remain to be decided in criminal court).  Minister MacKay was quoted as saying "What we know of these alleged plans for a mass attack against our friends and our neighbours in the province, is that the attack does not appear to have been culturally motivated, therefore not linked to terrorism." 

This statement -- seemingly asserting that terrorism in Canadian criminal law is predicated on a "cultural" motivation -- struck many observers (myself included) as odd. My initial assumption was that the Minister was seeking to signal, however inelegantly, that this recent event was not Al-Qaeda or ISIS inspired violence.  This assumption seems belied by the Minister's spokesperson's statement, as reported in Global news: "MacKay spokesperson Clarissa Lamb, responding to a query from Global News as to why the minister had referred to cultural motivations, said MacKay 'was simply relating his understanding of what law authorities have concluded at this point.'"

The Minister, in other words, may actually believe that somewhere in Canadian law or jurisprudence, terrorism  is predicated on a "cultural" motivation.  For reasons I outline below, this misunderstanding would be of considerable concern.  But first, the law: Terrorism offences in Canadian law are almost universally predicated on a defined concept of "terrorist activity".  You may review a video "explainer" in which I lay out the elements of this definition here.

There is a "motive" aspect to the definition.  The listed motives are "political, religious or ideological purpose, objective or cause".  Culture is not mentioned. 

I am left puzzled, therefore, by the assertion made by the Minister's spokesperson.  I shall assume, therefore, that Minister MacKay was using "culture" as a shorthand for "religious".  But even then, by being underinclusive in his understanding of the true reach of terrorist activity, he would be implying that Canadian law is directed at one (and only one) motive for politicized violence: religion. 

If the press reporting is any indication, some Muslim Canadians are taking the Minister's statement as coded language for "religious violence is terrorism and nothing else".  The obvious inference, given the heated government rhetoric supporting its C-51, Antiterrorism Act, project is that religious violence means the Al Qaeda and ISIS inspired brand.

There is no doubt that AQ/ISIS inspired violence is a challenge for our democracies, as events in Europe even this past weekend clearly demonstrate.  But it is not the only form of politicized violence we should be concerned about, as Europe's largest recent mass casuality terrorist experience unequivocally demonstrate (Andres Breivik's murderous attacks in Norway).

The drafters of the 2001 Antiterrorsim Act who created the concept of "terrorist activity" were wise, because they were familiar with the many guises in which terrorism can arise.  They did not single out one type of cause and focus the law on it alone. 

The fact is, however, that since then, prosecutorial attention has been focused almost exclusively on AQ/ISIS inspired forms of terrorism.  In course of preparing our forthcoming book on Canadian antiterror law, and what the government's bill C-51 will do to it, Professor Kent Roach and I are reviewing all the reported cases in terrorism trials to date. If one excludes a single Tamil Tiger terrorism financing trial and the remnants of the Air India case, all of the terrorism trials since 9/11 we have reviewed have related to AQ (or ISIS) inspired terrorist activity.

At the same time, there have been events — such as the Bourque shooting and bombings incidents or attempts in Ottawa (Royal Bank) and Alberta (a plot against a Veterans Affairs office) that might, plausibly, meet the "motive" element of terrorist activity.  These were “political” and “ideological”, not religious act.  Yet, as best as I have been able to gather, they were not prosecuted as terrorism offences.  

In the present Halifax case, what differentiates the described events from "terrorist activity" of the sort at issue in cases like the Toronto 18 may not be the motive -- even a Columbine like motive might meet the definition or political or ideological.  Rather, it may another aspect of the definition of "terrorist activity": the so-called purpose element.  To be terrorist activity, the underlying wrongful act must be done "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, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada".  Simply killing people because your ideology demands death and mayhem may not meet this purpose requirement.  Maybe the evidence showed that Bourque simply wanted to kill because of his beliefs, not because he wished anything to come of his actions?  Maybe the Halifax plotters were of the same frame of mind?

This fine parsing of the law matters, and deserves serious treatment. We must be clear in our messaging about what terrorism is or is not under our law, and when it is not judged terrorism, why that is. We are at risk that our antiterror criminal law will be perceived, not as criminalizing politicized violence regardless of the cause, but aimed in practice at one particularly concerning and notorious form of politicized violence — the religious AQ/ISIS inspired brand.  We are not well served in this country by a practice or impression in which Muslim politicized violence (and only Muslim politicized violence) is terrorism, and everyone else's is something else.

It would be useful, therefore, for the political executive not to facilitate this impression. It would be better to underscore the reach of terrorism offences to the full range of motivations actually named in the Criminal Code.