TERRORISM SENTENCING DECISIONS IN CANADA SINCE 2001: SHIFTING AWAY FROM THE FUNDAMENTAL PRINCIPLE AND TOWARDS COGNITIVE BIASES.

• Author: Nesbitt, Michael

INTRODUCTION

Today, the spectacle of terrorist acts and terrorism trials has unfortunately become rather commonplace, with over 50 prosecutions in Canada in the last 15 years. (1) Prior to 2001, a "terrorism offence" did not exist in Canada, at least not according to the Criminal Code. (2) It was not until the 9/11 terrorist attack on the World Trade Centers that Canada passed in a matter of months, the Anti-Terrorism Act ("ATA") (3) The ground-breaking ATA included the very first of the terrorism offences that are now found in Part II. 1 of the Criminal Code. (4) It also defined the terms relied upon in the Criminal Code, including such elusive phrases as "terrorism offence", "terrorist activity", and "terrorist group", and even went so far as to provide a process for listing a number of such terrorist groups. (5)

The ATA also introduced a smaller amendment to section 718.2 of the Criminal Code, one that is often overlooked and has received no sustained interrogation, (6) yet has come to be of great import in determining the sentences for convicted terrorists in Canada (7) This amendment enshrined a uniquely circular logic to the process of sentencing crimes of terrorism: according to paragraph 718.2(a)(v), a conviction for a terrorism offence must be considered an aggravating factor in sentencing terrorism offences. (8) In practical terms, when a sentencing judge today considers the "totality of the circumstances" of a person convicted of a terrorism offence, the sentencing judge must tailor the sentence to be more serious in light of its terrorist nature.

In this paper, we take a comprehensive and multi-disciplinary look at terrorism sentencing decisions over a 17-year period, between September 2001, when the ATA was first conceived of, and September 2018. (9) In so doing, we first offer an empirical analysis of the sentences for all terrorism offences, including the total number of sentences, conviction rates, charges, demographics associated with the accused, and other factors. (10) We then engage in a qualitative assessment of the sentencing decisions. In particular, we ask why the high sentences and one hundred percent incarceration rate for those convicted, (11) and why even those who have pled guilty have received similar treatment--and sentences--as compared to those that were found guilty after full trials. We test the judicial reasons for sentencing in terrorism cases against the usual logic that the courts follow when applying the fundamental principle of sentencing in Canada, as elaborated by both section 718 of the Criminal Code and Supreme Court of Canada jurisprudence. We also investigate the role that paragraph 718.2(a)(v) of the Criminal Code has had on terrorism sentences in Canada and whether it might help to explain the empirical and qualitative shifts we are seeing in terrorism sentencing decisions. Finally, we ask whether there is anything inherent to the legislative and judicial framing of terrorism as a crime, and therefore in its sentencing, that might explain the unique nature of terrorism sentences.

In the final section of this paper, we posit a cognitive behavioural theory that, when viewed in light of the way sentencing decisions are framed by the judiciary and the Criminal Code, can help explain the sentences to date and even make them seem preordained. We find that despite the Supreme Court of Canada's detailed decision in R v Khawaja in 2012, which affirmed that the fundamental and general principles of sentencing in Canada continue to apply to terrorism offences as they do elsewhere, the reasoning found in Canadian terrorism sentencing decisions does not look much like that which obtains in sentencing decisions for any other crime. (12) In particular, in terrorism sentencing decisions, the courts have offered a unique approach to balancing the seriousness of the crime with the moral culpability of the offender as the fundamental principle of sentencing requires.

The result is one that prioritizes long-term incarceration, a repeated focus on the seriousness of terrorism as a general concept, and a diminution of the individual contextual factors relevant to assessing the seriousness of any crime. In so doing, the process is framed so as to be uniquely susceptible to cognitive biases that can serve to inflate the sentencing ranges. In addition, fears of terrorism are amplified as a persistent and uniquely deadly threat, which can in turn have a disproportionality negative impact on young and minority accused, who are then seen as the most affected by the increased presence of cognitive biases in terrorism sentencing.

1. BY THE NUMBERS--SUCCESSFUL TERRORISM

   PROSECUTIONS IN CANADA SINCE THE ATA, FROM DECEMBER 2001 TO SEPTEMBER 2018

   In this first part of the paper, we offer a very brief introduction into Canadian terrorism offences and the Criminal Code provisions relevant to the sentencing thereof. We then provide the first empirical overview of the number of successful prosecutions for terrorism offences in Canada, the sentences received, and the nascent trends we have observed based on the numbers. This analysis draws on a bank of all publicly available sentencing decisions in Canada as of September 2018--and some that are not public--as garnered from courthouses, reported decisions, and other sources. It provides basic numbers related to sentencing decisions and ranges in order to provide context for the subsequent qualitative analysis of sentencing of terrorism in Canada. (13)

   1. REVIEWING THE PROSECUTIONS AND SENTENCES

      The ATA created 10 new criminal terrorism offences. They are defined in section 2 of the Criminal Code as being those between sections 83.02 and 83.04 (terrorist financing offences) and also sections 83.18 to 83.23 of the Criminal Code (14) Five new offences were added after 2013, including 83.181 (leaving Canada to participate in activity of terrorist group) and 83.191 (leaving Canada to facilitate terrorist activity), which carry 10- and 14-year terms of incarceration respectively. (15) As well, each terrorism offence incorporates at least one of the following predicates: the first is "terrorist activity", (16) the second is "terrorist group", which refers to an entity listed through the process set out in section 83.05 of the Criminal Code, or to a group that has terrorist activity as one or more of its objects. (17) This alternative definition of "terrorist group" thus refers back to the first predicate.

      Terrorism offences are perceived as amongst the most serious offences in Canadian criminal law. For example, paragraph 718.2(a)(v) of the Criminal Code was amended by the ATA to require that terrorism be considered an aggravating factor in sentencing. (18) In this way, terrorism is extremely rare to the Criminal Code: it is one of only a small handful of offences that is both a substantive offence and simultaneously an aggravating factor in sentencing all crimes, including ones of the same name (terrorism). (19) Moreover, section 83.26 of the Criminal Code requires that all persons convicted of a terrorism offence "shall" serve those sentences consecutively to rather than concurrently with any other "offence arising out of the same event or series of events" (per 83.26(a)) or consecutively to any other terrorism offence for which the offender is sentenced (per 83.26(b)). (20) Finally, the seldom used section 83.27 provides that the Crown may seek a life sentence wherever "the act or omission constituting the offence"--other than one that already provides for a life sentence--"also constitutes terrorist activity", which is defined in paragraphs 83.01(1)(a) and (b) of the Criminal Code. (21)

      Despite the seriousness with which both the Criminal Code and the courts treat terrorism, none of the Criminal Code's terrorism offences are subject to mandatory minimum penalties. In theory, available sentences range from fines to custodial sentences stretching from six months to life. (22) Moreover, since the enactment of the ATA relatively few people have actually been successfully prosecuted and sentenced for discrete terrorism offences in Canada. (23) In its 2017-2018 report, the Public Prosecution Service of Canada ("PPSC") noted that in total, 55 people have been charged with discrete terrorism offences, a number that has been supported and detailed in recent academic study. (24) Our research has identified 26 cases where individuals have been prosecuted and sentenced for discrete terrorism offences in this time frame. (25) Of those, 12 individuals were sentenced after having mounted a defence at trial, meaning the remaining 14 successful prosecutions were the result of guilty pleas.

      At the time of this papers writing, only five individuals have ever been acquitted in Canada after being formally charged with a terrorism offence: Khurram Syed Sher, (52) Othman Ayed Harridan, (53) Ayanle Hassan Ali, (54) El Mahdi Jamali and Sabrine Djermane. Djermane and Jamali remain subject to a peace bond as of the time of writing, meaning that although neither has been convicted or incarcerated they must nevertheless abide by court-imposed conditions on their liberty, such as restrictions on travel or movement. (55)

      Based on publicly available information, several terrorism charges have been stayed, including in the relatively notorious Nuttall and Korody case, where the couple was found guilty of trying to bomb the Victoria parliament buildings. (56) In that case, the defence brought an application for a stay of proceedings after the verdict based on entrapment and abuse of process by the RCMP. (57) The other stays include terror charges against an Alberta teen and two sets of stayed charges for youths involved in the notorious Toronto 18 bomb plot. Charges were also stayed against Yasim Mohamed, Abdul Qayyum Jamal, Ahmad Mustafa Ghany (also of the Toronto 18), and Mouna Diab, who was alleged to have been smuggling arms to Hezbollah. (58) Based on publicly...