It invoked terror - but we can’t call the Toronto van attack terrorism

Stephanie Carvin is an assistant professor at the Norman Paterson School of International Affairs, Carleton University

Hearts across Canada sank when news broke that a driver of a rental van had deliberately struck pedestrians along Yonge Street in Toronto on Monday. Images of similar events in London, Barcelona and Nice – all linked to terrorism – immediately come to mind during such incidents. But this is not the first time we have seen vehicle-based attacks in Canada – the October, 2014, attack in St.-Jean-sur-Richelieu as well as the 2017 attack in Edmonton, allegedly in the name of violent extremism, are two recent cases.

In the hours between the attack and the news conference on Monday night, speculation as to whether the attack was a terrorist incident grew on social media. Sadly, it was not so long ago that we had a similar conversation in the aftermath of the Las Vegas shooting. How could it be that someone who accumulated machine guns in order to kill innocent concertgoers was not a terrorist?

In Canada, the answer to this question is somewhat unsatisfying, but worth discussing. Section 83.01 of the Criminal Code states that any act carried out for political, ideological or religious reasons is terrorism. But not all political, ideological or religious reasons are alike.

When an act is carried out in the name of a listed terrorist entity – such as al-Qaeda or the Islamic State (IS) – prosecutors can easily point to a coherent set of ideas upon which a terrorism charge can be laid. However, when it comes to fringe movements and broad anti-government ideologies, prosecution becomes trickier.

For example, Justin Bourque, the perpetrator of the 2014 Moncton shootings that killed three RCMP officers, subscribed to an anti-government ideology. And over the past two weeks we have learned that Alexandre Bissonnette had consumed vast amounts of conspiracy theories and alt-right media that demonized Muslims and refugees. Mr. Bissonnette apparently became convinced that society was under attack and he had to do something.

The problem for prosecutors is that in these two cases, the person may have been politically motivated, but pointing to a coherent set of ideas on which their acts were carried out is not possible. So, although their attacks may have been similar, terrorism charges have not been laid.

Part of the issue is the circumstances in which our terrorism legislation was written. In the aftermath of Sept. 11, 2001, the government envisioned terrorist groups with coherent ideas, leadership and goals. It is doubtful that they could have foreseen that someone might be politically motivated because of their consumption of material produced by an internet subculture or online videos of conspiracy theorists.

Does this make our terrorism legislation inherently biased? There can be no question that the legislation does a better job of capturing certain violent extremist views and not others. The question then is, would we be better off broadening the crime of terrorism or eliminating it all together?

It is imperfect, but there are practical reasons for keeping the current definition, even when it may lead to what seems to be inconsistent results. First, it helps to set out and limit the mandate of what we want our security services to investigate as violent extremism.

Second, terrorism offences are largely geared toward augmenting the prison sentence of someone accused of plotting a terrorism offence before it is actually committed. Once the act is actually committed, the police have the evidence necessary to put someone away for a considerable period of time.

Proving that someone was motivated to act from a particular point of view is difficult and consumes resources at a time when investigative resources may already be burdened in the aftermath of an attack.

This helps to explain why Abdulahi Sharif, the accused in the Edmonton attack, has not faced terrorism charges, despite an IS flag in the vehicle that was used to assault police and civilians. And given that Mr. Bourque received one of the most severe sentences in Canadian history for murder (75 years without chance of parole), it is not clear that terrorism charges would have added anything to his punishment.

There is nothing to stop politicians from describing the attack in Toronto as a terror incident. Indeed, politicians from all parties did so in the wake of the 2017 Quebec mosque shooting. While we may never get terrorism legislation right, there is no reason why our response to any such violent incident should not be the same – to stand up for our communities, to empathize and to work toward a better Canada.