The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Monday
Jan302017

Prosecutor's Dilemma: Terrorism or Not?

We are all struggling to digest the news from Ste-Foy last night.  We will learn more, as in this case (unlike in several past incidents) the perpetrator appears to be alive, and in police custody.

I am reluctant to write on this tragic matter, but I shall dip my paddle in briefly on one thorny and highly emotive question doing the rounds on social media: "terrorism or not".

Police and prosecutors will need to decide how best to proceed.  If they bring terrorism charges, they will need to prove all the elements of "terrorist activity" as defined in the Criminal Code.  This shall require proof of motive and purpose -- the violent act is not enough. 

Police and prosecutors shall certainly have the basis for murder charges, assuming they have the perpetrator in custody.  If the Justin Bourque experience is any guide, the Crown may wish to proceed on the murder counts, without adding specific terrorism offences to the charge sheet. In 2014, twenty-four-year-old Justin Bourque shot five RCMP members in Moncton, killing three. He later outlined an ideological motive for his conduct, not tremendously different from that of so-called right wing extremists:

[H]e hated the government and the authorities because of the different rules that were made — gun regulation. He talked about foreign workers coming to work in Canada while some Canadians have no jobs. He was convinced that the police were intimidating and screwing everyone in Moncton by working for the politicians. He repeated a few times how he hated the authorities, the government and the police for working for the politicians. . . . [H]e felt oppressed by the law. . . He was rational and aware of what he was about to do. He consciously decided not to shoot civilians. His battle is with the authority.[1]

In sum, he targeted RCMP officers because he viewed them as “‘soldiers’ in the employ and propping-up of a corrupt government.”[2]

Bourque was convicted of murder and attempted murder and will likely spend the rest of his life in jail. But his conduct was not addressed using terrorism provisions, even though his conduct likely satisfied the threshold of terrorist activity and police considered terrorism charges.[3] Bourque is not a one-off. Richard Bain killed one person and injured another in 2012 in an attempt to assassinate Pauline Marois — then Quebec’s newly elected premier and leader of the Parti Québécois — on election night. His statement, “the English are waking up” reveals a political motive.

As Kent Roach and I note in False Security, there may be good reason for the evident prosecutorial parsimony, faced with these incidents.

For one thing, most terrorism offences are directed at conduct preparatory to violence and thus, are of marginal utility at this juncture. 

Moreover, a prosecutor able to secure a conviction for more conventional offences may see no purpose in also pursuing a separate terrorism offence, or seeking an augmented sentence for conventional offences done in association with a terrorist activity. A prosecutor pursuing the terrorism angle would then need to prove the complicated elements of terrorist activity beyond a reasonable doubt, and Justin Bourque could not have been sentenced to a longer term had his prosecutors made that effort. Bourque (and Bain) faced charges with mandatory minimum life sentences — meaning that there is no possibility of an increased penalty for terrorist activity.  And the same seems likely to be true in this case.

But there is a political downside: what may be good prosecution strategy may contribute to the impression that terrorism offences are confined to only certain sorts of perpetrators, motivated by AQ/ISIS-related ideology. This makes for a horrific narrative.

Nevertheless, going forward, it will be helpful that we all keep an eye on these sort of legal preoccupations in understanding what may unfold in this case.



[1]               R v Bourque, 2014 NBQB 237 at para 8.

[2]               Ibid at para 10.

[3]               Douglas Quan, “Justin Bourque: Terrorism charges were once pondered against man who shot dead three Mounties” O-Canada.com (31 October 2014), online: o.canada.com/news/justin-bourque-terrorism-charges-were-once-pondered-against-man-who-shot-dead-three-mounties.