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Quebec City and Edmonton attacks: Why it's difficult to lay terrorism charges in Canada

Police investigate the scene after a cube van ran into pedestrians and later flipped over while being pursued by police, in Edmonton Alta, on Sept. 30, 2017.

Jason Franson/THE CANADIAN PRESS

The attacks had all the hallmarks of terrorism. In Quebec City, a man is accused of fatally shooting six worshippers at a mosque, and attempting to kill others. In Edmonton, a man is accused of driving a van into pedestrians and stabbing a police officer. Yet neither has been charged with committing an act of terrorism.

The answer may lie in a prosecutorial view that a terrorism charge is superfluous when the available penalties are already severe for murder and attempted murder. Here's a look at terrorism law in light of the two incidents.

What is the distinguishing feature of terrorism?

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The motivation. It's not just any act of violence (or other act, such as a disruption of an essential service like electrical power), but violence committed for a political, religious or ideological purpose; and violence aimed at intimidating the public (or a portion of the public), or the government.

How does terrorism differ from a hate crime?

Hate is treated as an aggravating factor in a crime, which means that it may lead a judge to give a longer sentence than if hate had not been present. It is not, generally, a crime in itself. By contrast, terrorism offences usually exist alongside Criminal Code offences such as murder or attempted murder. Prosecutors first need to prove those offences before moving on to show the terrorist motives. There are also terrorism offences aimed at filling in the gaps in law, largely after 9/11, such as stopping the raising of funds for terrorist groups, or collecting weapons or materiel, or otherwise facilitating, promoting or assisting terrorists.

So why didn't prosecutors in Quebec lay terrorism charges in last January's attack on the mosque worshippers? Wasn't that aimed at intimidation, and done for some form of political or ideological objective?

The answer may be that the penalties for mass murder are already the most severe in the Criminal Code; terrorism charges would add a layer of complexity, but not necessarily a greater punishment. Terrorism cases are handled by federal prosecutors. This week, Quebec's prosecution service declined to explain why no terrorism charges were laid. The intent to intimidate looks clear enough to University of Toronto law professor Kent Roach, an author in the area of national-security law. The political objective, he says, would depend on the evidence. Inferring one from the act may not be enough to prove a terrorist motive existed.

What are the penalties?

First-degree murder brings an automatic penalty of life in prison, with no chance at full parole for 25 years. In multiple murders, prosecutors may ask that the parole eligibility periods be stacked together. A sentence effectively of 150 years without parole in the mosque shooting is a possibility for 27-year-old Alexandre Bissonnette, even without terror charges. (There is no death penalty for terrorist offences in Canada.) "A lot of times, it's driven by the economics or the workload," John Major, a retired Supreme Court judge who headed the Air-India inquiry into Canada's worst terrorist incident, said of such prosecution decisions not to add charges. He likened it to the Robert Pickton mass-murder case, in which prosecutors obtained convictions on six charges, and stayed the remaining 20 charges. Steven Penney, a law professor at the University of Alberta, said laying terror charges in cases involving serious criminal offences can make matters more difficult: "You're adding to the level of risk that some of the charges may not be successful."

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What is so difficult about prosecuting for terrorism?

It's more complicated than a "garden-variety" Criminal Code offence, a source close to the Public Prosecution Service said. "Terrorism offences have only been in effect since 2001. We've had murder for 500 years. You have to prove someone's motivation and, generally, motive is irrelevant in criminal court." One question that could arise is whether Canada's civilian spy agency, CSIS, would have to disclose its information to the accused. And at a time when delay is a big concern, the extra time could take away from other important cases, the source said.

What about the Edmonton van incident last weekend, which looked straight out of the Islamic State playbook? And wasn't an IS flag found in the van?

The RCMP says it is still investigating, and if it finds that more charges are warranted, it will file them. So far, it has filed 11 charges against Abdulahi Hasan Sharif, a 30-year-old Somali refugee: five counts of attempted murder, five of dangerous driving causing bodily harm and one weapons offence.

What is lost by not filing terrorism charges?

Symbolic value. "Given the high penalties for attempted murder or murder, the debate is largely symbolic but symbols matter," Prof. Roach said. "We need to be even-handed with the terrorism label and not associate it with any particular religious or political grouping."

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Abdulahi Hasan Sharif charged with attempted murder after Edmonton attacks (The Canadian Press)
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