First published in Global Outlook 13 (Annual 2009): 62-64.
One of the Toronto 18—a youth who was just seventeen when he was arrested in June 2006, and therefore cannot be publicly named—was found guilty of terrorism by Ontario Superior Court Justice John Sproat in a Brampton courthouse on September 25, 2008. This judgment raises questions of the most urgent kind about the impact of Canada's post-9/11 anti-terrorism legislation on civil and human rights in this country.
University of Toronto law professor Kent Roach predicted in 2003 that the Anti-terrorism Act (Bill C-36), which was introduced in Parliament in October 2001 and proclaimed on Christmas Eve of that year, was bound to result in a discriminatory application of security powers. He noted that the federal government, despite its 'hollow' claims that the Anti-terrorism Act promoted human rights, “resisted calls to commit itself in the act to non-discrimination in the administration of the many new powers given to police and prosecutors.”1
Professor Roach correctly identified this act as unnecessary, since “the failure of September 11 was one of law enforcement, not of the criminal law,” and Canada's existing Criminal Code was entirely capable of dealing with terrorist attacks like those of 9/11.2 He memorably described the act as a panicked politicization of the Criminal Code, an “expansion of the criminal law” that was not principled, but rather “political, symbolic, and somewhat cynical.”3 It should be understood, Roach suggested, within a larger process of recent ad hoc and reactive additions to criminal law, in the course of which “The law of first-degree murder has been expanded through piecemeal changes driven by politics, media attention, advocacy by interest groups representing victims and the police, and a desire to denounce horrible acts of violence”—even at the expense of more basic concerns for “coherence within the code or respect for fundamental principles of criminal law.” This process of expansion turns law towards narrative, so that its judgments serve “to memorialize terrible crimes.”4
One of the more striking deficiencies of The 9/11 Commission Report is its habit of repeatedly allowing forensic analysis (or a pretence of it) to be overwhelmed by breathlessly memorializing narrative. As a result, the Report reads like a sensationalist novel—sharing with examples of that genre like Dan Brown's Da Vinci Code the related properties of being feebly researched, over-written, and palpably implausible.5 But if impulses toward narrative and memorializing can help to reduce forensic discourse to obfuscation, is there reason to fear a similarly negative impact on the discourses of criminal law?
Professor Roach thinks so. He claims that “The new narrative and memorial style in the criminal law helps explain why the Anti-terrorism Act requires the prosecutor to prove beyond a reasonable doubt that a terrorist activity was committed 'in whole or in part for a political, religious or ideological purpose, objective, or cause.'”6 This concern with the broad motive, as opposed to the specific intention to harm, goes against a long-standing principle of common-law tradition: as the Supreme Court of Canada affirmed in a 1997 decision, “it does not matter to society, in its efforts to secure social peace and order, what an accused's motive was, but only what the accused intended to do.”7
As Roach warned in 2003, the Anti-terrorism Act's emphasis on motive “undercuts the notion of a liberal criminal law that inquires only into the mind of the accused, as opposed to his or her heart. The requirement for proof of political or religious motive will make the politics and religion of suspects a fundamental issue in terrorism trials. [....] Terrorism trials in Canada will be political and religious trials.”8
While on the one hand the Anti-terrorism Act instructs police, prosecutors and judges to focus on this broad category of political or religious motive, on the other hand it systematically undercuts the traditional common-law concentration on criminal intent. This tendency is evident in the act's newly defined offences relating to the financing of terrorism: as law professor Kevin Davis suggests, these could be used to convict a restaurant owner “for serving customers who he knows are in the habit of making contributions to terrorist groups.”9
However, it is in its definition of offences of facilitating terrorism that the Anti-terrorism Act most distinctly subverts traditional Canadian legal standards. The act provides for up to ten years' imprisonment for any person who “knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity.”10 Participating in or contributing to terrorist activities can be a matter of giving or receiving 'training'—or, more loosely, any kind of association with a group labelled as terrorist. As Roach observes, the act directs Canadian courts “to consider whether a person 'frequently associated with any of the persons who constitute the terrorist group' or uses words or symbols associated with the terrorist group.” As though this drift into guilt-by-association were not loose enough, the act then specifies that it is not necessary that “any particular terrorist activity was foreseen or planned at the time it was facilitated.”11
As Professor Roach's comment makes clear, the act at this point enters the terrain of Franz Kafka:
It seems impossible to knowingly facilitate a terrorist activity when you do not know that “any particular terrorist activity was foreseen or planned at the time it was facilitated.” [....] The accused would still, however, be convicted and punished for knowing facilitation of a terrorist activity when, in fact, the person did not know about the terrorist activity.12
* * * *
The September 25th judgment of Ontario Superior Court Justice John Sproat participates fully in the Kafkaesque absurdity of the Anti-terrorism Act that it was his duty to apply.
Judge Sproat fund Mubin Shaikh “to be a truthful and generally reliable witness” whose credibility was not seriously shaken by the defence; not surprisingly, given this degree of gullibility, Sproat also concluded that evidence the Toronto 18 existed as a terrorist group was “overwhelming.”
As the Canadian Press reported,
Sproat rejected defence arguments that two camps organized by the alleged ringleaders were simply a religious retreat or recreational in nature. Sproat noted participants, including the accused, marched, played paintball games, shot a 9-mm handgun, and heard lectures on waging war on the West during a camp north of Toronto in December 2005. “It is inconceivable to me that by the end of the camp there was any doubt about its purpose,” the judge said. Sproat was adamant the young man [...] was aware of the group's murderous intentions and did his part to help by shoplifting walkie-talkies and camping supplies. “He had a full appreciation of the nature of the terrorist group.”13
But the evidence heard by the court would lead most rational people to a very different conclusion. As the New York Times reported, the camps “that the police described as terrorist training sessions” were characterized by prosecution witnesses “as recreational or religious retreats,” and Mubin Shaikh testified that he choreographed scenes in the videotapes he made of these two camps.14 The 9-mm pistol of course belonged to Shaikh, who acknowledged that he bought ammunition and fired the gun in front of participants in one of the camps,15 and the shoplifting was done at Shaikh's instigation.16
Shaikh himself was adamant that the accused ought to be acquitted: in July 2008 he insisted to reporters that the youth had no inkling of any nefarious purposes: “'I knew the purpose of the camp. I can tell you the accused was not told,' said Mr. Shaikh. [....] He said the youth believed the camp was for religious purposes.”17 Following Judge Sproat's judgment, Shaikh continued to insist to journalists, “as he did during his testimony, [that] the youth did not know what the group was up to. 'I don't believe he's a terrorist. I don't believe he should have been put through what he was put through, but that's our system.' Shaikh said.”18
We have, then, a truly bizarre legal judgment, in which the magnifying lens of police entrapment and 'war-on-terror' paranoia swells a shoplifter—whose petty crimes were instigated by a highly paid CSIS-RCMP informant—into a terrorist. The principal crown witness is accepted as “truthful and generally reliable” when his testimony supports the conclusion that a dangerous terrorist group actually existed—but that assessment appears effortlessly to coexist with the judge's bland acceptance of crown prosecutor John Neader's charge that when Mubin Shaikh's testimony exculpated the accused he was “fabricating evidence.”19 The logic of this is perhaps easier to accept once we have come to understand, thanks to the Anti-terrorism Act, that it is possible to “knowingly facilitate” a terrorist activity about which one knows nothing.
* * * *
Common-law tradition demands two things to secure a criminal conviction: a guilty deed (or actus reus), and evidence that the act was done knowingly, with criminal intention or a guilty mind (mens rea). The Anti-terrorism Act's dismissal of the mens rea requirement is a wholesale betrayal of democratic jurisprudence.
But as “national security expert” Wesley Wark of the Munk Centre for International Studies has said of the decision in this case, “so far, so good.”20 In other words, the purpose of the law is to secure convictions, at whatever cost to the principles of justice.
In Franz Kafka's haunting parable “Before the Law,” a man who has spent his life vainly seeking admission at the gate of the Law perceives, as his senses fail, a radiance streaming from the entrance that is about to be shut in his face by a brutal and tyrannical door-keeper.21 (What is the source of this radiance: the clear light of Justice? Or does it come rather from fires being lit in a new form of witch-hunt—one no less cowardly and irrational than the original?)
Integrating this parable into his novel The Trial, Kafka made it part of a dialogue between his innocent but doomed protagonist “K.” and the prison chaplain, who tells him that the authority of the parable's door-keeper must be accepted—not necessarily as true, but as necessary: for “to doubt his integrity is to doubt the Law itself.”
“A melancholy conclusion,” K. responds. “It turns lying into a universal principle.”22
1 Kent Roach, September 11: Consequences for Canada (Toronto: University of Toronto Press, 2003), p. 17.
2 See Roach, p. 23: “Had the September 11 terrorists planned their crimes in Canada and had the law enforcement officials been aware of their activities, the existing law would have allowed them to be charged and convicted of serious crimes” before the would-be perpetrators had actually carried out a single violent act.
3 Ibid., p. 24.
4 Ibid., p. 25.
5 For thorough assessments of the Report's substantive deficiencies, see David Ray Griffin, The 9/11 Commission Report: Omissions and Distortions (Northampton, MA: Olive Branch Press, 2005); and Griffin, 9/11 Contradictions: An Open Letter to Congress and the Press (Northampton, MA: Olive Branch Press, 2008).
6 Roach, September 11: Consequences for Canada, p. 25, quoting Criminal Code, s. 83.01 (1)(b)(i)(A).
7 Ibid., p. 26, quoting United States v. Dynar,  2 SCR 462 at para. 81, 115 CCC (3d) 481. In the same note, Roach quotes the opinion of K. Kittichaisaree that “A motive is generally irrelevant in criminal law, except at the sentencing stage” (International Criminal Law [Oxford: Oxford University Press, 2001], p. 92; see Roach, pp. 212-13).
8 Ibid., p. 27.
9 Kevin Davis. “Cutting Off the Flow of Funds to Terrorists,” in R. Daniels, P. Maclem, and K. Roach, eds., The Security of Freedom (Toronto: University of Toronto Press, 2001), pp. 301, 303; quoted in Roach, September 11, p. 39. For evidence that Islamic financial, charity and banking systems have been both routinely misunderstood and unfairly targeted by western intelligence agencies, see economist R. T. Naylor's brilliant study Satanic Purses: Money, Myth, and Misinformation in the War on Terror (Montréal and Kingston: McGill-Queen's University Press, 2006), pp. 137 ff.
10 Criminal Code, s. 83.18, quoted by Roach, September 11, p. 42.
11 Roach, pp. 43, 44.
12 Ibid., p. 44.
13 “Evidence of terror group 'overwhelming,' judge rules in finding youth guilty,” Canadian Press (25 September 2008), http://canadianpress.google.com/article/AleqM5gWT-16g3nlt6sz3xdOyPDcfpqCMg.
14 Ian Austen, “Man Guilty in Canada Terror Plot,” New York Times (25 September 2008), http://www.nytimes.com/2008/09/26/world/americas/26canada.html.
15 “Evidence of terror group 'overwhelming'.”
16 See Joseph Brean, “'We weren't there picking daisies',” National Post (11 June 2008), http://www.nationalpost.com/news/story.html?id=580018. Brean quotes Shaikh as testifying that “when he discussed 'acquiring' camping gear with the group, it meant 'to quote unquote take unlawfully items in support of camping. Unlawfully. Not through legal purchases.'”
17 Shannon Kari, “Star witness says Toronto 18 youth should go free,” National Post (3 July 2008), http://www.nationalpost.com/news/canada/story.html?id=630123.
18 “Evidence of terror group 'overwhelming'.”
19 Melissa Leong, “Key witness's story changed, Crown charges,” National Post (25 June 2008), http://www.nationalpost.com/news/story.html?id=610976.
20 “Evidence of terror group 'overwhelming'.”
21 Franz Kafka, “Before the Law,” in The Penal Colony: Stories and Short Pieces, trans. Willa and Edwin Muir (1948; rpt. New York: Schocken Books, 1970), pp. 148-50.
22 Kafka, The Trial, trans. Willa and Edwin Muir (1935; rpt. Harmondsworth: Penguin, 1974), p. 243.