By Emily Ruso, M.A Candidate at the Centre of Criminology at University of Toronto
While Canada is not the first country to come to mind when terrorism incidents are discussed, it would be a mistake to believe that Canada is immune to the existing terrorism threat. Canada has fallen victim to both terrorist attacks and multiple terrorist attempts, such as in the Toronto 18 case (R v Amara, R v Ahmed, R v Gaya, R v Khalid). Post 9/11 case law demonstrates that there is a judicial shift in how terrorists are sentenced, which is directly effected by the amendments made to the Criminal Code. It is through the implementation of the Anti-Terrorism Act 2001, that terrorism offences can be prosecuted under specific terrorism offences. .
Although terrorism offences in the Criminal Code did not exist prior to9/11 , Canada had experienced domestic and international terrorism. Courts had recognized terrorism as an aggravating factor at the sentencing stage, even without direction from the Code. Additionally the courts had acknowledged an
It was in 1970 that James Cross and Pierre Laporte were kidnapped by The Front de Libération du Québec (FLQ). The government’s reaction to this event was one of importance. The Canadian government declared a state of emergency by relying on the War Measures Act. Over 6000 troops were sent into Montreal after this was deemed an emergency.
In terms of the sentencing of those involved in the October Crisis, the perpetrators received what are believed to be lenient sentences. Firstly, the individuals who kidnapped and killed Pierre Laporte were convicted of multiple serious offenses under the Criminal Code, including murder. Subsequently, they were all paroled by 1982. Secondly, those who kidnapped James Cross were granted the opportunity to go to Cuba in exchange for the diplomat’s release. They received up to three years incarceration when they came back to Canada. The law as it existed before the enactment of the Anti-Terrorism Act 2001 was applied in the cases of the FLQ. An important point to note is that there were temporary measures (the War Measures Act) that were relied upon during this crisis. It was not until the ATA was implemented that permanent measures could be taken in bringing terrorists to justice.
Canada responded to the 9/11 attacks by enacting for the first time the ATA 2001. This Act created multiple terrorism crimes in the Criminal Code and laid out sentencing guidelines. Essentially, the ATA created a new class of offenders. The Toronto 18 cases will be of focus.
Fahim Ahmad was convicted of three terrorism offences: participating in the activities of a terrorist group, importing firearms for the benefits of a terrorist group, and knowingly instructing six individuals to carry out a terrorist attack. Ahmad was sentenced to 16 years imprisonment, with time served in pre-trial custody deducted at a rate of two for one.
Saad Khalid pleaded guilty, but refused to admit that he knowingly participated in a terrorist activity that would likely cause death or serious bodily harm. The trial judge laid a 14-year sentence of imprisonment down to Khalid. The Court of Appeal raised the sentence from 14 to 20 years. It was found that the sentencing judge did not impose a sentence that accurately reflected Khalid’s involvement and the severity of such crimes. Additionally, the sentence failed to reflect the essential role Khalid played as a member of the Toronto 18.
Zakaria Amara too was a mastermind and leader in the Toronto 18 bomb plot. He was driven by Jihadist ideologies, and educated himself on bomb making. He pleaded guilty to the following counts: participating in the activity of a terrorist group and intent to cause an explosion that is likely to cause bodily harm for the benefit of a terrorist group. For the first count, the appellant received a 21-month term of imprisonment. He was credited for time served pre-trial, for a total of 7 years 3 months. On the second count, Amara received a sentence of life imprisonment, with a parole ineligibility of 10 years.
Saad Gaya pleaded guilty to one count of intending to cause an explosion that is likely to cause bodily harm for the benefit of a terrorist group. He was sentenced to 4.5 years imprisonment; with a credit of 7.5 years for time-served. On appeal, the court raised the sentence from 12 to 18 years. The Court of Appeal found that the sentencing judge overemphasized rehabilitation, and underemphasized the severity of Gaya’s actions.
From an analysis of the Toronto 18 case law, it is evident that there is a norm to increase the sentences imposed by the sentencing judge. Additionally, there is a heavy reliance on denunciation and deterrence, with less emphasis on rehabilitative prospects. The post 9/11 case law demonstrates a dependence on the following sentencing principles as laid out in section 718 of the Criminal Code. First, a primary emphasis is put on denunciation of offenders. Second, just as important is the principle of deterrence. This includes deterring the offender, as well as others. Rehabilitation is a principle that has been disputed in terms of its appropriateness and applicability in terrorism cases. While courts must strive to uphold the principles of denunciation and deterrence, there could be a possibility of rehabilitation, and for that reason it should be considered at the discretion of the judge.
The issue of rehabilitation played a central role in the case of Khawaja. The Supreme Court refused to accept the Ontario Court of Appeal’s de-emphasis on rehabilitation when sentencing terrorists. The court recognized the wide breadth of the terrorist offences as they are laid out in the Criminal Code, and thus rehabilitation cannot be ruled out as a sentencing principle. Although Khawaja’s conduct was that of high severity, rehabilitation was not an inappropriate factor to consider. It is important that the Supreme Court has not ruled out rehabilitation as a sentencing principle in terrorism offences. Because of the wide variety of acts that can fall into the terrorism offences, it would be inappropriate to exclude a principle of sentencing that is laid out in the Criminal Code. It is understandable that it may not be fitting or well suited in every case involving terrorism, however it is significant that the Supreme Court has left this principle to the discretion of the judge.
A call for change was made after the events that took place on 9/11. In the pre-911 cases, Canada had a rather flawed approach to sentencing those involved. By acting quickly to create terrorism offenses, Canada made a move towards being able to successfully bring terrorists to justice for the danger, threat and harm that they cause, and may potentially cause. As Chief Justice McLachlin mentioned, the horror of 9/11placed a significant challenge on courts and the criminal justice system to balance freedom and security. Canada will continue to be faced with this challenge as long as there is a terrorist threat. However, it is important that Canada has the necessary tools in place to be able to bring terrorists to justice and hand down appropriate sentences.