Separating knife attack from terrorism
Of all the “lone wolf” terrorist attacks committed in Canada — which have been few — no perpetrator has ever been brought to trial and convicted under that label.
They didn’t live to be charged, killed in the commission of the crime:
Aaron Driver, who detonated an explosive device in a cab before being shot dead by police.
Martin Couture-Rouleau, shot seven times by police after he’d rammed his vehicle into a pair of soldiers.
Michael Zehaf-Bibeau, who fatally shot Corp. Nathan Cirillo, a reservist on ceremonial duty at he Canadian National War Memorial in Ottawa, slain in a shootout with Parliament security personnel.
Rehab Dughmosh, who allegedly attacked several people with a golf club at a Canadian Tire store in Toronto, was charged with terrorism-related offences but may never come to trial, depending on courtordered mental health assessment.
Alexandre Bissonnette pleaded guilty in March to the mosque shooting in Quebec that killed six and wounded nine. Yet Bissonnette wasn’t charged with a terrorismrelated offence; first-degree murder and attempted murder, with no terrorism reference. One might well wonder why, since the atrocity had all the earmarks of a terrorisminspired crime.
Alek Minassian, the accused in last month’s van rampage along upper Yonge St., is facing 10 counts of first-degree murder and 16 counts of attempted murder. None of the charges relate to terrorism as defined in the Criminal Code.
And then there’s Ayanle Hassan Ali, who burst into a military recruitment centre in North York, wielding a knife, and attacking several soldiers.
On Monday, Superior Court Judge Ian MacDonnell acquitted Ali — a schizophrenic, psychiatrists for both the defence and Crown concurred — of all terrorism-related offences against him: three counts of attempted murder, three counts of assault with a weapon, two counts of assault causing bodily harm and one count of carrying a weapon for the purpose of committing an offence, for the benefit or at the direction of a terrorism organization.
“While it is common ground that the defendant had become radicalized, there is no evidence of any connection between him and any other person or group in relation to the attack,” said MacDonnell.
Ali’s underlying mental illness, the years-long schizophrenia from which he suffered, assuredly informed his extremist beliefs. He understood his actions to be legally wrong but believed them morally correct.
On the lesser and included charges — attempted murder, assault and weapons offences — MacDonnell found Ali not criminally responsible due to mental illness.
Ali did not react at all to the judge’s decision, which removes him from the criminal system. It also peels off the terrorist designation.
His three sisters, sitting in the front row of the courtroom, smiled with relief. Their brother’s increasingly worsened mental condition had been a burden for the family, including a mother also diagnosed with schizophrenia, an illness which can have genetic components.
The prosecution, which had accepted the psychiatric assessment and agreed to NCR — not criminally responsible — on the non-terrorism charges, nevertheless argued for convic- tion on the terrorism offences under Section 83.2 of the Criminal Code, which provides, in part, that “every one who commits an indictable offence … for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence.” The Crown’s position is that section applies even if a person acts alone — the lone wolf — in furtherance of a personal terrorist agenda; that Parliament had defined “terrorist group” to include any “entity,” be that even one single person.
Ali had no connection to any identifiable terrorist group.
While MacDonnell admitted he had “considerable difficulty” with some of the defence arguments, he agreed with their main submission: “Namely, that a person who commits an indictable offence in pursuit of a personal terrorist agenda is not captured by S. 83.2.”
It was an intriguing argument from the federal Crowns — terrorist group of one — particularly with the lone-wolf assailant becoming a too-common horror the world over. But this was not the best case in which to make it, the admitted crimes evolving from a severe mental malady.
“Today’s verdict shows that our system works,” co-counsel Nader Hasan said.
“Mr. Ali did a terrible thing when he walked into that armed forces recruiting (centre) in March 2016. But he is not a criminal and he is certainly not a terrorist. Fortunately now, as result of his honour’s ruling, he’ll be getting the treatment he needs.”
But he would have received that treatment under the NCR designation anyway, even if convicted on the terrorism charges.
“As a practical matter, there is tremendous stigma associated with terrorism,” Hasan countered. “As a point of principle, he’s not a terrorist. It is true that perhaps, even if he had been found not criminally responsible in relation to terrorism, he’d be going to a secure mental health treatment centre.” But the process can be lengthy, he said. There’s no precedent for how someone found NCR in relation to terrorism will be treated by the Ontario Review Board, which now has jurisdiction of the case. “It’s never been done before. We worried that he would be treated somewhat differently because this is a novel case.”
The extremist element, court agreed, could not be divorced from Ali’s mental illness.
It was Hasan who brought up Bissonnette and the van rampage.
“The ruling is important and I hope that it leads to a larger conversation about who is a terrorist. In recent memory, unfortunately, we had a man who walks into a mosque full of worshippers who opens fire killing a number of people and he’s not charged with terrorism. We have very recently, in this great city, a man who for ideological purposes mows down pedestrians with his van. And he is not, according to the Crown, at least thus far, a terrorist.”
Was he implying that his client, a Muslim, had been treated differently than white, Christian defendants (although the religious affiliation of Minassian hasn’t been ascertained, doesn’t appear to have any relevance, and possible motive has not been disclosed by investigators)?
“I’m not implying anything at this time,” said Hasan. “What I am implying is that the definition of terrorism and terrorist activity, in our Criminal Code, in Canadian law, is very broad. And when laws are extremely broad, the result is that it’s left almost entirely up to the Crown to decide when they get used. And the history of these terrorism provisions being used in Canada has been one where they happen to be used far more frequently where the individual, the accused, is of Arab or African or Muslim decent. And bizarrely rarely used even when heinous, heinous acts of terror are committed against civilians but where the perpetrator does not fit that demographic description.”
It is somewhat worrisome, however, if the precedent from this case were to be applied in the future where any defendant in a terrorism case can claim mental illness in pursuit of a not criminally responsible verdict.
Not so, insist both Hasan and Addie, pointing out that the schizophrenia diagnosis was firm with Ali and there are plenty of other terrorismrelated provisions in the Criminal Code to prosecute offenders.
So was Ali charged under the wrong provision?
“I think this was a case where the Crown overreached,” said Hasan. “They had someone who they thought looked the part of a terrorist. When, in reality, they had someone who committed a terrible, terrible act who was mentally ill.”
Ali was ordered returned to a forensic psychiatry unit in Hamilton until his case can be addressed by the Ontario Review Board, which will determine treatment, privileges, restrictions and whether he presents any threat to society. An initial hearing must be held within 45 days.
Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.