The federal government is seeking another opportunity to convince a court that a selfradicalized attacker who acted on his own initiative is subject to the Criminal Code provisions related to committing indictable offences for the benefit of a terrorist group.
A notice of appeal has been filed by the Public Prosecution Service of Canada of the decision this spring by Ontario Superior Court Justice Ian MacDonnell to acquit Ayanle Hassan Ali of terrorism-related charges in a May 2016 knife attack at a Canadian military recruitment centre in Toronto.
Ali, who suffers from schizophrenia, was found not criminally responsible of all other charges, including attempted murder and assault with a weapon, following a joint submission by the Crown and the defence.
The federal Crown, however, is asking the Ontario Court of Appeal to order a new trial or find that Ali is not criminally responsible for the terrorism charges, rather than being acquitted.
The prosecution of Ali is the first time that a court has been required to interpret sections added to the Criminal Code after the Sept. 11, 2001 attacks in New York in the context of a “lone wolf’ who has no direct connection to a terrorist group.
Edward Prutschi, a Toronto defence lawyer, says he is not surprised the federal Crown is appealing the Superior Court ruling even though it agrees that Ali was not criminally responsible as a result of his schizophrenia.
“They are concerned that there is a decision out there that finds a ‘lone wolf’ is not covered by the existing law,” says Prutschi, a lawyer at Bytensky Prutschi Shikhman, who is not involved in the case.
The expert evidence heard by the court was that Ali had delusions about being targeted by government agents and that attacking members of the Canadian military would be a route to martyrdom.
A search of his electronic devices and his home did not uncover any connection between Ali and another person or a terrorist group.
The Crown argued that s. 83.2 of the Criminal Code covers an “entity” that carries out a terrorist act and it can consist of one person who is self-radicalized.
Defence lawyers Nader Hasan and Maureen Addie argued that the provisions do not apply to an individual acting alone for his own purpose.
MacDonnell stated that there are certain circumstances where a “solo actor” could be found to be acting for the benefit of a terrorist group.
“That is not the issue here, however. The issue is not whether the entity for whose benefit the underlying offence is committed can be a single person but rather whether a single person can be both the person committing the underlying offence and the entity for whose benefit it was committed,” he wrote.
The Superior Court judge explained that it was necessary to look at the Anti-terrorism Act provisions enacted in December 2001 as a whole, when interpreting the scope of s. 83.2.
“The inexorable conclusion is that the intention of Parliament in enacting 83.2 was to proscribe the kinds of associative conduct that support, facilitate and contribute to terrorist activity. The kind of lone-wolf criminal conduct engaged in by the defendant was not intended to be captured by s. 83.2,” wrote MacDonnell.
Hasan says he is disappointed that the Crown is appealing the decision and suggests that the non-terrorist-related sections of the Criminal Code are more than adequate to deal with a lone-wolf attacker not attached to any group.
“The notion that there is a gap is completely absurd. These provisions are aimed at terrorist groups. The thought that a single person who is not connected to any group and suffers from serious mental illness [is captured by this section] is tremendous overreach,” says Hasan, a partner at Stockwoods LLP in Toronto.
The definition of “terrorist activity” in the Criminal Code is any act or omission committed “for a political, religious or ideological purpose, objective or cause” that is “with the intention of intimidating the public.”
Any sentence for a terrorism-related offence is to be consecutive to those for “any other punishment” imposed on a defendant.
“These provisions are extremely broad, and when they are used by prosecutors, appear to be very selective,” says Hasan.
“What bothers me is the double standard. It is only when the accused is of Arab or African or Muslim descent,” he adds.
While it would not impact his ultimate punishment, the individual who pleaded guilty this spring to killing six people in a Quebec City mosque in 2017 and will be sentenced in September was not charged with any terrorism-related offences.
The reasoning in MacDonnell’s judgment is sound, suggests Prutschi.
“It makes sense. It is a narrow interpretation of the legislation, but that is what a judge is supposed to do,” he adds.
At the same time, he notes that it may be appropriate for Parliament to enact new legislation that clearly captures lone-wolf attackers.
“The nature of terrorism has changed” since the original provisions were enacted, he says.
“We are in a different environment, and Parliament might want to ensure we prosecute lone-wolf terrorism the same as capital-T terrorism,” says Prutschi.
When the terrorism sections were put into place by the government of Jean Chrétien, they were controversial and concern about overreach and the impact on civil liberties were expressed at the time by academics, including David Paciocco and Gary Trotter, both of whom are now judges on the Ontario Court of Appeal.
A commentary written by Paciocco in 2002 is cited by MacDonnell in his ruling on how to interpret the application of these provisions.
“I agree with the characterization of the offences created by the Anti-terrorism Act as association-based offences,” MacDonnell wrote. In a collection of essays about the act entitled The Security of Freedom, Trotter, in his commentary, suggested many of the amendments were unnecessary because they were already addressed in existing law.
“Thus, they are mere window dressing. Nothing has changed, except in word alone. This contributes to a false sense of security that we are now somehow safer because of the new law. In many ways, we are not . . . moreover, these expanded powers are here to stay,” he wrote.
