Defining Terrorism: Is it time for a change?

Much has changed since terrorism was first defined within Canada’s Criminal Code. But, as Amarnath Amarasingam and Stephanie Carvin ask, what would it mean for the term to be broadened?

Police officers comb a street for evidence after a van struck multiple people along a major intersection in north Toronto, April 24, 2018. REUTERS/Carlo Allegri

In their seminal 1988 book Political Terrorism, Alex Schmid and Albert Jongman spend over 100 pages discussing the different definitions of terrorism debated in the study of the phenomenon.

Don’t worry, that’s not what we are going to be doing here. 

But, it might be worthwhile to revisit some of these debates, especially since the attacks we are experiencing in Canada — such as the van rampage in Toronto on April 23, the Quebec City mosque shooting on January 29, 2017, and the stabbing and vehicle attack in Edmonton on September 30, 2017 — seem to be increasingly motivated by a varied and complicated set of factors, from international terrorist organizations like the Islamic State to loosely held misogynistic or Islamophobic views on the fringes of the internet.

After every attack, the public conversation, at least if social media is any gauge, seems to immediately become polarized. On the one side, you have xenophobes and Islamophobes listening for any sign of an “Allahu Akbar” or insisting that the attacker had to be a visible minority. On the other side, there is an attempt by marginalized communities to encourage the public and law enforcement to use the word “terrorism” more evenly and fairly. It is not clear, however, what this might look like.

The debate around exactly what constitutes terrorism has revolved around every aspect of the definitions put forth: the what, the why, by whom, and to whom. If we take terrorism expert Jessica Stern’s definition, just for the sake of analysis, it may explain why this is so difficult. As she writes, terrorism is “an act or threat of violence against non-combatants, with the objective of intimidating or otherwise influencing an audience or audiences.” 

Let’s break this down: if we take the “what/to whom/by whom” part of the definition, terrorism, according to Stern, is “an act or threat of violence against non-combatants.” It is important to note that simply threatening violence is sufficient; no one has to be killed or injured. The mention of “non-combatants” is also interesting since it is unclear, under this definition, whether attacking the power grid or water systems would be seen as terrorism. Under this definition, rebel groups launching suicide attacks against government forces — i.e. combatants — may also not qualify as terrorism.

Indeed, while many other definitions make it a point to mention that terrorism is carried out by subnational or sub-state actors, some definitions leave out any mention of an actor, perhaps to account for instances of state terrorism. Linguist Noam Chomsky, for instance, defines terrorism as “the use of coercive means aimed at populations in an effort to achieve political, religious, or other aims.” He does not delimit who must use these coercive means. 

Debates about terrorism are similarly hampered by the “why” question. If we look again at Stern’s definition, she does not mention motive as it is commonly understood. It is unclear, under her definition, whether this act or threat of violence has to be grounded in politics, religion or ideology. It is expected that we will be able to arrive at motive based on stated objectives — namely, as it is an “effort to achieve” a set of aims. For most attacks, it is probably a fair assumption that stated goal will tell us something about underlying motive. But this may not always be the case.

There are several related definitional difficulties with the concept of terrorism: first, as Johns Hopkins professor William Connolly noted, it may simply be that some concepts will remain forever debated with no resolution — and terrorism is one of them. And maybe, given the consequences of labeling someone with the T-word, that’s a good thing. Second, the term suffers from boundary problems. In other words, it’s not entirely clear where terrorism ends and liberation struggles, guerilla warfare, and legitimate political violence begin. Let’s dig a little deeper into the Canadian approach. 

"Canadian terrorism legislation covers a wide range of activity; a terrorism charge in Canada requires far less than setting off a bomb."

The legal view in Canada

Although terrorism is not a new phenomenon, it does not have a long legal history in Canada as a specific crime. Certainly Canada ratified some international treaties on hijacking and hostage taking prior to the 9/11 attacks. But our current law originates with the 2001 Anti-Terrorism Act. Section 83.01 of the Criminal Code describes terrorism as an act or omission “in whole or in part for a political, religious or ideological purpose, objective or cause” and “in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada.”

However, not all acts are covered by this law. Section 83.01 limits the range of activities to a set of kinetic actions, for example, actions that cause death and bodily harm, that endanger a person’s life, or cause a serious risk to the health or safety of the public or any segment of the public. 

Importantly, a person doesn’t have to kill or attempt to kill in order to commit a terrorist offence. The Criminal Code outlines 15 specific terrorism offences that run from financing to facilitation and counselling. In this sense, Canadian terrorism legislation covers a wide range of activity; a terrorism charge in Canada requires far less than setting off a bomb.

What it does require, though, is that the act be motivated by a political, religious or ideological purpose. Essentially, this means that the act must be done in the name of or to further the cause of a set of beliefs — this is what legally separates terrorism from mass murder. And this is what makes the definition so controversial. 

The October 2014 Parliament Hill shooting is widely considered a terrorist act, but the January 2017 killings of six worshipers at a mosque in the Quebec City area is not. Why is this? And is this a “double standard” arising from structural or institutional racism?

There are practical issues, but the main difference is that the perpetrator of the Parliament Hill attack, Michael Zehaf-Bibeau, made a video where he explained his political motives (revenge for Canadian foreign policy in Afghanistan), cast himself as part of a worldwide resistance to Western occupation, and asked for blessings upon the mujahideen. In this sense, Zehaf-Bibeau’s actions fit the traditional understanding of terrorism in the Criminal Code, though he was killed during the attack and thus never charged.

Alexandre Bissonnette, who conducted the Quebec mosque attack, is a more difficult case. His trial reveals that he is certainly political and has a worldview. He appears to have consumed far-right and alt-right materials and believed that Canada is under imminent threat of an invasion from radical Islamist migrants. To many in the public, the attack was quite obviously terrorism. The question is whether it meets the Criminal Code threshold for a terrorist act.

Bissonnette has been formally charged with six counts of first-degree murder. His sentencing is to begin mid-June. But some, like the eminent legal scholar Kent Roach, argue that his crimes should have met the definition of terrorism: “Mr. Bissonnette’s actions clearly satisfy the Criminal Code’s legal definition of terrorist activity. He was motivated by hatred and fear of Muslims and migrants. He intentionally caused death for a “political … or ideological objective or cause” with the intent to intimidate “a segment of the public,” namely Muslims and perhaps all migrants, “with regard to its security.”

But, in general, does having an erroneous worldview, as well as hate and fear, meet the definition in the Criminal Code of a religious, political or ideological purpose, objective or cause? It is not clear that the drafters of the legislation envisioned in 2001 that an assortment of grievances and fears, driven by conspiracy theories in a leaderless collection of internet sub-forums, might constitute an ideology for the purpose of conducting a terrorist act. But, a lot has changed since 2001. 

The Islamic State and al-Qaeda have a world view, an ideology, a structure, and they are, for better or worse, organized movements that can be listed as terrorist organizations by the Canadian government. Many, (though not all) alt-right and extreme far right “movements” lack these features. Then there are the equally important practical issues to contend with. 

How a change would work in practice

Although someone may have conducted what appears to have been a terrorist act, it does not always make sense to lay a terrorism charge. Terrorism offences related to attacks are best understood as pre-emptive of violent conduct, and this is how they have been traditionally employed, in terms of how charges have been laid. If an individual carries out a violent terrorist act (or at least attempts to), authorities can arrest this person for murder or attempted murder — something relatively easy to prove under the circumstances. Adding a terrorism charge requires a great deal of additional investigation as well as a standard of proof for a judge. It may not make sense to divert resources to gather evidence for a terrorism charge when it may not practically make much of a difference for an individual who is already facing considerable prison time.

A good example of this is the 2017 Edmonton van attack where Abdulahi Sharif ran over five individuals, including a police officer, while he had an Islamic State flag on his dashboard. At time of writing, authorities have still not brought terrorism charges against Sharif and it is likely they will not — he already faces five attempted murder charges, which have mandatory life minimums. 

Even though Sharif, a Muslim, wasn’t charged with terrorism, it is no doubt true that Muslims are more likely to face a terror charge than other attackers. Such a discrepancy fuels mistrust in the government, police and national security agencies, and works to undermine an essential relationship needed in order to help protect communities from violence.

But it is not clear that many of the remedies being called for would either improve this situation or make Canada safer from lone actors. First, it might be possible, for example, to remove the motivation clause from the terrorism offence. In other words, terrorism would not be attached to a “political, religious or ideological” cause, but instead simply constitute an act “in whole or in part with the intention of intimidating the public, or a segment of the public.” This would seriously broaden the terrorism definition and include the actions of individuals such as Bissonnette and Alek Minassian, the man charged after the April 23 attack in Toronto, more easily.

However, it seems clear that this widening might also capture a number of actions and groups that some would be less comfortable including under this umbrella. For example, certain actions by environmental groups, such as blocking trains and roads and staging large protests, might more easily be seen as “intimidating the public.” Lawful advocacy is protected, but would it be easier to see these actions as something more sinister? Counselling individuals to engage in activities to disrupt pipelines or teaching them how to do so might also fall under such acts. At a time when Indigenous groups are suggesting they are about to embark on “the largest civil disobedience in Canadian history” with the protest against Kinder Morgan, widening the definition of terrorism carries a lot of risk. 

A second approach might be to list more groups as terrorist entities. Practically, this is difficult as there is something of a paradox: in order to be listed as a terrorist entity, it has to be proven that a group engages in terrorist activity. The Canadian Charter of Rights and Freedoms makes it clear that individuals are able to hold truly terrible and noxious opinions. A security threat only emerges when individuals begin to act violently on these beliefs. National security agencies do not care what ideas an individual holds, as long as they do not decide to act on them violently. Investigations are opened not on belief, but actions. 

"Mass murder is horrific whether we can easily identify a motive or not, whether it comes accompanied by an ISIS video or vague Facebook mentions of an obscure internet fringe group."

Finally, it might be possible to require our national security institutions (such as the Canadian Security Intelligence Service, or CSIS) to take a greater role in monitoring these fringe and scattered groups, like the “Incels.” Given that the largest mass-killings in Canada (the 1989 Ecole Polytechnique massacre, the 2013 Moncton shootings, the 2017 Quebec Mosque shooting, and the 2018 Toronto attack) were carried out by individuals who appear to have held far-right and extremely misogynist views, there is merit to this argument. 

And yet, it is not clear how a greater role for CSIS would work. Our national security environment is probably the most complex it has ever been given the threat of terrorism, economic espionage, cyber threats and clandestine foreign influence. Expanding the terrorism mandate would require more resources. But given that individuals who engage in these actions are typically lone actors, how would CSIS find them? Do we want CSIS trolling internet forums, looking at offensive memes? Given that there is a lot of anxiety about government surveillance of the internet, having national security agencies spend their time and money on internet forums seems imperfect at best. Nor is it a good use of scarce resources.

As we saw in April, mass murder is horrific whether we can easily identify a motive or not, whether it comes accompanied by an ISIS video or vague Facebook mentions of an obscure internet fringe group. Whether or not these individuals are ultimately charged with terrorism should not be our only calculus in determining whether these ideologies are worth discussing and whether their grievances are worth addressing.

We shouldn’t make the mistake of assuming that elevating the problem to the level of national security is going to fix it. Instead, misogyny, the extreme right, jihadist violence and other forms of hate need to be confronted in a far more comprehensive way. And we must do it while remaining resilient and unified. That is the real challenge.