Should Quebec City mosque killer Alexandre Bissonnette have been charged with terrorism

by Graeme Hamilton (feat. Michael Nesbitt)

National Post
April 17, 2018

MONTREAL – It was a carefully planned assault on a Muslim place of worship triggered — the attacker acknowledged to police — by news that Canada was prepared to accept more refugees from Muslim countries.

Evidence drawn from the assailant’s computer revealed his keen interest in right-wing commentators and conspiracy theorists and an apparent obsession with white-supremacist mass murderer Dylann Roof.

As evidence of what motivated Alexandre Bissonnette to open fire inside a Quebec City mosque on Jan. 29, 2017, killing six men, emerges at his sentencing hearing, questions are being raised about why he never faced terrorism charges.

The National Council of Canadian Muslims, though relieved Bissonnette pleaded guilty last month to six counts of first-degree murder and six of attempted murder, worries about a double standard when it comes to terrorism charges.

“The NCCM does have continuing concerns around the way in which that terrorism label is unfortunately often reserved for crimes committed by Muslims or by people of colour and by other visible minorities,” said Leila Nasr, the organization’s communications coordinator.

Michael Nesbitt, assistant professor of law at the University of Calgary, said the evidence heard so far at the sentencing hearing certainly places Bissonnette’s crimes “in the ballpark” of what is considered terrorist activity under the Criminal Code.

Bissonnette’s opposition to Muslim immigration, his view that Muslims represented a threat to his family’s safety and his admission that he had researched the mosque online make clear that his target was not random.

He told police he decided to act on Jan 29 after hearing news that the Canadian government had extended a welcome to asylum seekers barred from entering the United States under President Donald Trump’s proposed travel ban against seven Muslim-majority countries.

Add to that the evidence retrieved from his computer, with recurring themes of firearms, mass shootings and Islam, and the case that Bissonnette was acting with a political or ideological purpose appears strong.

The other aspect required to qualify a killing as terrorist activity is intent to intimidate a segment of the public, and an attack on a mosque would seem by definition an attempt at intimidation.

But even though the law allows for terrorism charges in a case like this, Nesbitt said it is not necessarily the best option.

A standard first-degree murder conviction requires proof beyond a reasonable doubt that the murder was planned and deliberate. And it carries a mandatory life sentence with no chance of parole for 25 years; the 2011 introduction of consecutive sentences for multiple murders means Bissonnette faces up to 150 years without parole.

Adding a terrorism charge would complicate the prosecution, requiring proof of another level of motive and intent without adding anything to the potential punishment, Nesbitt said.

Pursuing a standard murder conviction “is going to be faster with a more secure outcome for the prosecutor, using fewer resources and the best possible outcome in terms of punishment and time in jail. So you can see why they go this route,” he said.

“The only reason to go the other route is to send a political message, but then that’s getting into prosecutors weighing what the political interests are in a certain situation.”

Terrorism charges introduced into the Criminal Code in 2001 have so far been used to prosecute such things as financing, facilitating or advocacy of terrorism, intending to travel for a terrorist purpose, or participating in a terrorist activity that hasn’t yet been perpetrated.

Abdulahi Sharif, accused of stabbing a police officer and driving a van into pedestrians in Edmonton last fall in an attack initially labeled as terrorist by police, is charged with attempted murder, not terrorist activity.

Kent Roach, a law professor at the University of Toronto, said there might have been another option open to prosecutors in the Bissonnette case to make clear they consider the crime terrorism.

If you're going to have terrorism offences, they have to be applied even-handedly

The section of the Criminal Code dealing with murder contains a subsection that says a murder is first-degree if the death is caused during the commission of a terrorist act. Roach said if the Crown had charged under that subsection, it would not have overly complicated the trial.

“There’s an argument that it’s in the public interest to use that part of the Criminal Code which relates to first degree murder by way of terrorist activity,” he said

“If you’re going to have terrorism offences, they have to be applied even-handedly. I think that some of the controversy over this case shows that there are some concerns that people who are motivated by right-wing ideologies and who commit acts that are terrorist acts, in the sense that they are designed to intimidate a segment of the population, are not being charged with terrorist offences.”

He said that from what he has seen of the Bissonnette evidence, “you probably have a pretty strong case that it is a terrorist activity.”

Quebec’s public prosecutions office declined to elaborate on why it chose not to include terrorism in the charges. A spokesman referred to a statement last October by prosecutor Thomas Jacques, who said the indictment reflected the evidence available and “the current state of the law in Canada.”

The federal Justice Department referred all questions to Quebec.

There is still a possibility for the Crown to invoke terrorism before the case concludes. Evidence that a crime was a terrorist offence is recognized in the Criminal Code as an aggravating factor during sentencing. The detailed evidence introduced about Bissonnette’s political beliefs suggests the Crown is preparing to cite terrorism when arguing for a stiff sentence, Nesbitt said.