Criminalizing terrorism in Canada: investigating the sentencing outcomes of terrorist offenders from 1963 to 2010.

• Author: Amirault, Joanna

Despite having endured significant terrorist incidents over the past 50 years, terrorism-specific offenses were not criminalized in Canada until the implementation of the Anti-Terrorism Act (ATA) in 2001. One of the primary goals of this legislation was to provide law enforcement with the tools necessary to proactively prevent terrorist incidents; however, the effectiveness of these new legal measures in preventing terrorist incidents, and the potential for the increased punishment of offenders sanctioned under them, remains unclear. Using a sample of convicted terrorist offenders (n = 153) from the Officially Adjudicated Terrorists in Canada (OATC) dataset, the current study investigates variability in the sentencing outcomes of offenders sanctioned in Canada between 1963 and 2010. The findings indicate that offenders were significantly less likely to successfully complete an offense following the implementation of the ATA; however, offenders previously convicted of general Criminal Code offenses were sanctioned more harshly than those convicted of terrorism-specific offenses alone. Furthermore, changes in the legal processing, and demographic structure, of terrorist offenders are uncovered as the findings highlight how changing contextual environments impact the sentencing outcomes of terrorist offenders.

TABLE OF CONTENTS INTRODUCTION 770 I. LEGAL RESPONSES TO TERRORISM IN CANADA 775 II. SENTENCING OUTCOMES OF TERRORIST OFFENDERS 780 III. THE PRESENT STUDY 782 A. Data and Methods 783 B. Measures 784 1. Dependent Variable 784 2. Main Independent Variables 785 C. Control Variables 788 D. Analytic Strategy 790 E. Results 793 DISCUSSION AND CONCLUSION 803 APPENDIX 1. CODE OF CRIMINAL CONVICTIONS 810 INTRODUCTION

When contrasted to countries such as Ireland or Spain, Canada's experience with terrorist incidents is comparatively limited. (1) Despite this, Canada has endured ongoing terrorist campaigns, (2) witnessed the first political kidnapping and execution in North America, (3) and in 1985, provided the setting where the plot to bomb Air India Flight 182 was prepared and executed. (4) Due to differences in operational definitions and inclusion criteria, estimates of the total number of terrorist incidents perpetrated in Canada varies, ranging from 326 to 500 reported incidents between 1960 and 2006. (5)

Despite enduring significant terrorist incidents, Canada's legal response to terrorist offenses has historically been cautious. (6) However, in the wake of September 11 the Canadian Government implemented the Anti-Terrorism Act (ATA), and for the first time criminalized terrorism-specific offenses. (7) The events of September 11 marked a turning point not only in how a terrorist threat is constructed globally, but also in the nature of terrorist activity in Canada. In the fifteen years following September 11, Canada has seen a proliferation in the number of terrorist offenders motivated by an Islamic extremist ideology. (8) In 2004, Momin Khawaja, the first offender to be charged under the ATA, was arrested for his involvement in a terrorist plot that was intended to be executed in the United Kingdom. (9) Khawaja was to provide the expertise that his counterparts needed to remotely detonate explosive devices. (10) Two years later, the Toronto 18 network was disrupted while plotting to detonate large-scale explosives targeting governmental offices and agencies, as well as media outlets. (11) In 2007, Said Namouh was arrested and eventually convicted for participating in an online group that was involved in the spreading of terrorist propaganda. (12)

Although some terrorist incidents that occurred in Canada during the 1980s and 1990s were motivated by imported grievances (i.e., conflicts that originated outside of Canada), (13) the interconnectedness of offenders and the accessibility of resources in today's globalized world present new challenges to law enforcement. (14) The ATA impacted all aspects of the criminal justice system; however, following the criminalization of terrorism-specific offenses, prosecutors now face increasing scrutiny to not only successfully convict terrorist offenders, but also achieve the harshest sentences possible. While one of the key goals of criminalizing terrorist related activity has been to proactively prevent terrorist incidents, the ability of these new criminal provisions to function as deterrents for terrorist activities has been questioned. It is commonly noted that the threat of long periods of incarceration would not dissuade individuals from committing terrorist offenses. (15) Akin to this sentiment, Roach cites Canadian legal scholar Douglas Schmeiser who, following the October Crisis in 1971, (16) stated that, "the ordinary criminal law adequately covers dangerous conduct by insurgents." (17) However, the extent to which this holds true in the current climate is unclear.

The current study investigates variability in the sentencing outcomes of terrorist offenders sanctioned in Canada between 1963 and 2010, focusing on the potential impact that the implementation of the ATA has had on the legal processing of terrorist offenders. The 47-year observation period is divided into three periods. Period 1 (arrests between 1963 and 1982) is comprised exclusively of members of the Quebec Liberation Front (FLQ) while Period 2 (arrests between 1983 and 2001) includes offenders motivated by Sikh extremism and eco-terrorism. Finally, Period 3 (arrests between 2002 and 2010) includes offenders who were motivated by Islamic extremism and adjudicated following the enactment of the ATA. We investigate if there are discernable periods where offenders are sanctioned more punitively than others, and if offenders prosecuted after the implementation of the ATA are sanctioned more or less severely than those prosecuted prior to it. As terrorist offenders have been identified as a unique offending population in need of specialized legal designations, it is imperative to examine if the sentences issued under terrorism-specific offenses are more or less punitive than those issued under general criminal provisions.

1. LEGAL RESPONSES TO TERRORISM IN CANADA

   Similar to other countries (e.g. United Kingdom, United States), Canada has primarily adopted a legislative response to terrorism. The use of legal measures to respond to terrorist activity is referred to as the "criminal justice model," whereby terrorist activity is identified as a distinct legal category of crime. (18) While many states had experience prosecuting terrorist offenders prior to September 11, few had enacted legislative policies that codified specific terrorist offenses into their penal code. However, the past decade has seen a proliferation in the legal measures implemented to prevent and prosecute terrorist offenses. (19)

   Canada's Anti-Terrorism Act (Bill C-36) was granted Royal Assent on December 18, 2001, 98 days after the September 11th attack. Over the past 32 years, the Canadian Charter of Rights and Freedoms (established in 1982) has functioned to temper Canadian responses to terrorist incidents. This was also true during the drafting of Bill C-36. (20) For the first time the ATA legally defined terrorism, and established specific terrorism-related crimes in the Criminal Code of Canada (CCC). (21) The CCC was amended on the assumption that offense classifications that had previously been used to prosecute terrorist offenders were no longer sufficient following September 11 owing to the fact that they were predominantly reactive as opposed to proactive. (22) As such, terrorism was defined under Section 83.01 of the CCC as:

   An act or omission, in or outside Canada, that is committed (A) in whole or in part for political, religious or ideological purpose, objective or cause, and (B) 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. (23) Along with providing a definition of terrorist activity, the ATA introduced five new indictable offenses with maximum punishments ranging from ten years to life imprisonment. (24) Previously, terrorist offenders in Canada were prosecuted using existing Criminal Code offenses such as first degree murder, conspiracy, kidnapping, hostage taking, possession of explosives with the intent to discharge, possession of illegal weapons, accessory after the fact, and threatening to murder an internationally protected person. (25) The ATA established the offenses of: participating in the activities of a terrorist group, facilitating terrorist activities, instructing the carrying out of terrorist activities, instructing activities for terrorist groups to enhance their ability to carry out terrorist activities, and harboring or concealing terrorists. (26) Unique to all terrorism-specific offenses is the requirement for prosecutors to prove that their commission was motivated by either a political, religious, or ideological belief. (27)

   Furthermore, the ATA criminalized offenses related to the financing of terrorist activities, specifically either directly or indirectly providing, collecting, possessing, or making property or services available to those who wish to engage in terrorist activities. (28) As a part of these legal designations, individuals are required to report "(1) the existence of property in their possession or control that they know is owned or controlled by a terrorist group or (2) information about a proposed transaction involving such property" to law enforcement. (29) The inclusion of these offenses was done in part to ensure compliance with UN Security Council Resolution 1373 and the UN International Convention on the Suppression of Terrorist Financing...