Arguing that terrorism charges should be laid against van attack suspect Alek Minassian would significantly add to the burden of proof
In the days following the horrific van attack in Toronto that left 10 people dead and many injured, police and politicians were careful to avoid describing it as a terrorist act.
But as more details emerge about the possible motives of accused killer Alek Minassian – particularly his alleged connection to the misogynist movement known as incel – could he face charges under Canadian law for “misogynist terrorism?”
Police have confirmed that eight of the 10 people killed were women. Those calling for this case to be treated as terrorism might argue that the optics and symbolism of denouncing Minassian’s alleged crimes as terrorism are justified.
But there are serious policy considerations that go against expanding the legal scope of terrorism as a way to combat the very real and disturbing threats posed by dark online movements like incel.
Terrorism is considered different from ordinary crimes because it endangers national security. As stated in the report on the Air India incident, “Terrorism is an existential threat to Canadian society in a way that murder, assault, robbery and other crimes are not.” Terrorist acts challenge the shape, content and boundaries of the social order. This is why both Canadian and international law treat terrorism with particular severity.
In the aftermath of 9/11, Canada passed its own Anti-Terrorism Act. The Act amended Canada’s Criminal Code, adding a new chapter on terrorism. The amendments were mainly designed to expand the range of investigatory tools available to law enforcement and included adding a set of offences criminalizing participation in the activity of a terrorist group, as well as facilitating terrorist acts and promoting the commission of terrorist acts. The new Criminal Code provisions also extend to the dissemination of terrorist propaganda.
Ordinary crimes like murder or theft can become terrorist offences when they are committed in connection with terrorist groups or activities. With respect to sentencing, designating ordinary crimes as terrorism is considered an aggravating factor. Significantly, the maximum available sentence for terrorism crimes has been increased to life imprisonment.
In Canada, the definition of “terrorist activity” includes acts committed with two key intentional elements. First, the accused must have acted with “a political, religious or ideological purpose, objective or cause.” Second, the accused must have intended to intimidate the “public, or a segment of the public, with regard to its security” or to compel a government or organization “to do or to refrain from doing any act.”
The activity in question must also have violently caused death or serious injury, endangered life or caused a serious risk to public safety. Serious damage to property or interference with an essential services can also constitute terrorist activity.
The legal approaches to terrorism by different countries diverge on whether a political, religious or ideological – and sometimes racial – motive is required for an offence to be characterized as terrorism. Canada joined the UK, Australia, New Zealand and Pakistan in including this “motive clause” in its law. The U.S. Patriot Act leaves out a motive requirement, defining terrorism on American soil as any crime intended to either intimidate or coerce a civilian population, influence government policy by means of intimidation or coercion or influence government conduct by mass destruction, assassination or kidnapping.
The alleged connection of Minassian to incel and calls to address this case as one of terrorism comes in the midst of the #MeToo era.
These calls have a two-pronged logic. First, they reiterate the undeniable correlation between misogyny and acts of mass public violence, drawing on a spectrum of ideologies ranging from racism to radical Islam.
Second, they contend that violence against women is itself a form of terrorism, constituting nothing less than a daily war against women.
If national laws have been updated to include acts of peacetime terrorism, then surely, the argument goes, these laws should cover mass violence motivated by misogyny.
On its face, a good legal case could be made for construing the charges against Minassian as terrorist offences if it turns out he was inspired by or acted on behalf of a movement that promotes violence against women. There is nothing in Canadian law limiting terrorism to acts inspired only by radical religious ideologies.
Facebook has confirmed that moments before the alleged attack, Minassian posted about the “Incel Rebellion” and lauded Elliot Rodger, who was responsible in 2014 for killing six people in California in the name of a “war on women.”
If the suspect was indeed motivated by this, and the prosecution can prove the other elements of “terrorist activity,” it’s plausible that the charges already laid – Minassian is facing 10 counts of first-degree murder and 16 counts of attempted murder – could be construed as terrorist acts.
But there are serious practical considerations limiting the feasibility of such an approach.
Under Canadian law, first-degree murder carries a mandatory life sentence. Any killings that occur during the commission of terrorist activity are elevated to first-degree murder.
Minassian is already charged with first-degree murder and will be sentenced to life if convicted. Alleging terrorism to the charges would significantly add to the prosecution burden, requiring all the elements of terrorist activity to be proven beyond a reasonable doubt.
The idea that we should turn to the language of terrorism and the institutions of the criminal law to address misogyny is part of the general disciplinary approach of the #MeToo discourse. I worry that the logic of #MeToo, which is premised on women’s sexualized vulnerability, is likely to result in socially and sexually conservative policy proposals.
Recent calls to reform sexual assault laws to incorporate an “affirmative” or “enthusiastic” approach to consent, is an example. The punitive urge to talk about the Toronto van attack suspect as a terrorist is another.
Heidi Matthews is assistant professor at Osgoode Hall Law School, York University.
A longer version of this story appears at theconversation.com.
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