Being a terrorist is en vogue these days.  And even if it isn’t, seems like you might have a hard time escaping the label.

Minister MacKay claimed pirates off the coast of East Africa were “financial terrorists,” apparently a new brand or flavour of the terrorist trend.

Even the National Post, usually a publication known more for perpetuating terrorist myths than clarifying them, was quick to criticize this move in an editorial,

Oh boy. Since Sept. 11, 2001, we have watched ruefully for the inevitable debasement of the verbal coin of “terror” and “terrorism”; and here we have what seems like a lamentably clear example. Mr. MacKay has something of a point, insofar as acts of piracy are now generally classed with terrorism under Canadian law and UN conventions.

But the term “terrorism” exists precisely to distinguish ordinary thefts and kidnappings, with ordinary motives, from ones intended to undermine the international order and the legitimacy of states. It functions as a license for governments to transcend the ordinary limits and procedures of law, where to observe them would mean surrender to the political program of a minority.

That’s actually the problem with the current law.  Applying the terrorist label does not give governments a license to trample rights and transcend “ordinary limits,” although it seems that a recent decision might indicate that’s exactly what’s happening.

The first member of Canada’s only major alleged terrorist plot, the Toronto 18, was sentenced this week.  But it appears as if he was guilty without any knowledge of anything remotely related to terrorism.  The broad and vague language of the current terrorism provisions means he could be convicted for any form of material support – including shoplifting.

Thomas Walkon of the Toronto Star explains,

By any reasonable definition of the term, this young man is not a terrorist. He did not plot to blow up buildings or behead politicians. Nor, according to evidence at his trial, did he know of any such alleged plots…  He did shoplift from Canadian Tire gear that the judge determined was intended, if not necessarily used, for the ill-fated camping trips…

So why was this juvenile, whose only overtly criminal behaviour consisted of shoplifting, convicted of terrorism?

The answer lies in the wording of anti-terror legislation, rushed through Parliament after 9/11.

Under these anti-terror provisions of the Criminal Code, a person need not know anything about a specific terrorist plot – or even if a such a plot is being planned – to be guilty of terrorism.

But he is guilty if he knowingly does something – even indirectly – that is intended to further the objects of a group that, in the most general sense, has terrorist intentions.

Such as shoplifting camping gear.

Indeed, a suspect can be found guilty of terrorism even if this shoplifted camping gear is never used.

This position is an embarrassment to the Canadian legal system.  The hallmark of criminal law in the common law system is a mental element and an act element.  Someone who commits a crime without intending to do the act cannot normally be convicted (with some exceptions).

Doing an act that is never intended for a terrorist act, then being punished for it when it is retroactively labeled as material support to a terrorism conspiracy, is a miscarriage of justice.

Justice Sproat who ruled in this case had no choice but to convict the young man in this case given the wording of the statute.  The full blame of this rests on Canadian Parliament, who overreacted with xenophobia when passing this law in that it was worded so broadly that it could be abused in this manner.

Perhaps more specifically blame can be leveled at the Justice Minister at the time, Irwin Cotler, who was charged with reviewing Bill C-36 and ensuring an adequate balance was struck between civil liberties and national security concerns.

Prof. Don Stuart of the Faculty of Law at Queen’s University warned the Special Senate Committee on Bill C-36 at that time,

I see in this bill a wider pattern of quick-fix law and order legislation. This is the kind of legislation of which Canada should not be proud and should not accept…

When I look at this bill, it is something that Canada did not need. We had ample law… Those of us who have been thinking about criminal law teaching and principles for years would see absolutely no reason to create new crimes to deal with terrorism and the types of police powers and CSIS powers that have been created here. They are quite extraordinary. I do not think we need them at all. We have plenty of laws to deal with this situation…

Despite recent government amendments, I see that they do not yet meet the high standard of justification needed to support massive dragnet powers of this sort. Basic principles of a criminal justice system that deserves the name require a meaningful proof before you send someone to jail of a meaningful act and what we call fault. Also, we need to have people fairly labelled and punishment must be proportionate. Notwithstanding the amendments the government has approved – the tinkering around with the definitions – in my view, the definitions are still far too wide. I include in that a consideration of the listing section.

In my view, the devil of this bill is in the detail. I do not think there are too many people in this country who have read every provision of this bill… It is far too complicated. To suggest that we actually know or Parliament knew what they were voting on when they passed it seems to be a stretch.

If you actually look at the way these new offences have been defined, they do not achieve what they say they will. The Justice Minister stands up and says, “We have a narrow offence about knowingly participating in a terrorist group,” but when you look at the bill, the word “knowingly” is nonexistent.
[emphasis added]

Prof. Stuart elaborated further on the failings of the new Bill in a seminal paper,
The Anti-terrorism Bill (Bill C-36): An Unnecessary Law and Order Quick Fix that Permanently Stains the Canadian Criminal Justice System.

Even more to blame is a law enforcement establishment that cast a net so wide that even those peripherally involved with an alleged terrorist act can be held complicit, even if they knew nothing about it.

When Canadians re-gain their sensibility and re-examine the fairness and justice of these provisions, and the potential for abuse, it should be the first thing re-visited by Parliament.