Michael Nesbitt: How do we think about and define terrorism in Canada?

How do we think about and define terrorism in Canada? Has the laying of terror-related charges against the perpetrator of the London terrorist attack set a new precedent in how Canada prosecutes those accused of terrorist activities?

We do not actually have a definition of terrorism in Canadian criminal law. However, we do acknowledge a host of terrorist offenses, which includes financing a terrorist group, financing terrorist activity or groups, participating in a terrorist group, and facilitating a terrorist activity. We look for some connection to a group, or to a particular activity, which we would define as terrorist activity. A terrorist is then someone who plans, facilitates, or commits a terrorist activity. In Canadian law, if you are associated with a terrorist group, and then commit an offense, you can be held legally accountable. It is not just about being in a group though—there must be active participation, which is to say providing a real benefit to the group.

Terrorist activity is comprised of three predicates. One is a motive clause, which can be ideological, political, or religious in nature. Then you have a consequence clause—there must be a serious consequence. It could include infrastructure damage, property damage, or death. Finally, there is the purpose clause, which is associated with a desire to intimidate a group, in whole or in part, cause a group or individual to take a certain action, or refrain to take an action.

An individual must then commit or plan to commit some sort of violent act, which is informed by the requisite ideology and purpose. What exactly that ideology could be is unclear. Historically, in Canada, almost all our charges—fifty-nine of sixty-two—have been undertaken by ISIS or Al-Qaeda inspired extremists. This is what makes the London attack unique—it does not appear to be associated with . In the past twenty years, the vast majority of designated terrorist organizations in Canada have also been associated with entities such ISIS, Al-Qaeda, Hezbollah, Hamas, or Al Shabaab. It is only in the past few years or so that we have seen groups like the Proud Boys added to the list. Now the question for us lawyers is, what does have to look like? How do you define ideology? Well, the law does not really know. We do not exactly know what a terrorist looks like in Canadian law, because fundamentally, a terrorist must have an ideological or political motivation and we have not narrowed down precisely what that means. Legally, those words are thus extremely difficult to interpret right now.

There is no doubt that this is virtually unique for Canada, however I would say no legal precedent has been set—at least not yet. In the past twenty years, we have mostly seen of terrorist plots—those have been prosecuted. It is only within the last year or so that we have prosecuted individuals after an offense has been committed. This is only the second time we have charged someone with murder and terrorist activity—the first instance having occurred in the past year. Sixty-two individuals have been charged over the last twenty years, which means three a year on average. Relatively speaking, that is not very much. Nonetheless, terrorism is a low occurrence, high impact crime. CSIS has stated publicly that far-right, ideologically-motivated extremism is on the rise. You could certainly say terrorism is a threat to Canadians. We are talking maybe one instance a year, but even that might be too much.

Do you think that communications and information technologies have played a role in perpetuating terrorism and extremism, and are disinformation/misinformation and foreign interference forms of terrorism?

Communications and information technologies are an area of concern. The internet can be used to perpetuate these kinds of ideologies, facilitate the planning of terrorist activities, and bring groups of people together online. Whether or not misinformation should be classified as terrorism gets us into a very thorny issue. With foreign interference, what is the difference between extremist activities planned from abroad, and ones which may be planned domestically, but involve groups from abroad? Legally, unless the activity that comes about meets the definition of terrorist activity, or unless it is on behalf of a terrorist group, and an individual actively contribute to that group— won’t be considered terrorism.

There is some interesting overlap between misinformation, the spread of hate groups, and what activities those hate groups could be planning online. What happens if a QAnon adherent commits a violent act? In this age of misinformation, hate movements, political extremism, and terrorism, individuals are not necessarily associated with one particular group. You have a lot of individuals who are vaguely far-right, adopting some of the ideologies associated with QAnon, but maybe not all of them, and then committing a violent act. It is difficult to identify when and where ideology is at play in these instances. It raises a lot of difficulties if you cannot tie someone to a group, a manifesto, or something else indicating ideology and intent.

Terrorism became part of our criminal code shortly after 9/11. Are there any notable trends or insightful data to be gleaned since the Anti-terrorism Act came into assent roughly twenty years ago?

Prosecutions have been more heavily male than virtually any other serious crime, including murder. There are exceptions to that—sexual assault offences are also more heavily skewed towards males. Terrorism is up there though. As mentioned previously, fifty-nine of the sixty-two terrorism charges in Canada to date have been associated with either Al-Qaeda, ISIS, or similar groups. So far, we have successfully prosecuted those who are either influenced by or claim to be a part of groups. We have had more trouble with persecuting lone wolf attacks, such as the recent attack in London, as terrorism. The far-right have only been prosecuted within the last year. We have seen extremely long sentences for those convicted as well.

It is interesting to look at the offenses themselves. A primary justification for this legislation was to avoid another 9/11. Thus, we mostly enacted offenses to target the preemption of activity. For the past twenty years, that is primarily what we have done. The Toronto 18 and Via Rail plotters are prime examples as they were caught in the planning stages. We have only recently successfully prosecuted lone wolves, which is much more difficult, for the reasons I mentioned earlier.

We need to terrorist financing legislation and to make use of it. That is the key to countering terrorism and extremism. We have international obligations to do so. We have only charged two individuals with terrorist financing offences out of those sixty-two individuals charged, and one of those two was basically a throwaway charge. The other resulted in one of our most lenient sentences to date. So, you could say that we have not taken this issue seriously, which should be a concern for us, because it allows a fundamental enabler of terrorist activities to go unchecked. Foreign and even domestic intelligence agencies regularly discuss the terrorist financing happening in Canada, and yet we are not seeing the charges despite having three available terrorist financing offences on the books. We are due for a correction soon.

Do you have any recommendations about how we can more adequately counter terrorism threats in Canada?

Canada does not do reviews very well. How did you do this year in counter terrorism of various kinds? What did we do well that we should repeat? Is there anything we should institutionalize? Is there anything we failed at that needs improvement? Canada, at multiple levels, just does not engage in this process particularly well. There was no review after the Toronto 18 Ontario Terrorism Plot, no review after the Via Rail incident, and no review after the Bissonnette mosque shooting. No attempt at reflecting upon whether we could have done a better job at investigating or preventing these incidents.

We could do a lot better job of taking ourselves to task and ideally not in a political way—we do not want this becoming a partisan issue.

Legally, we need to get better at defining the ideological and political components of terrorist activity. Again—what does a terrorist look like, or perhaps better, what does a terrorist ideology look like? To an extent, the answer should be anyone. It should be applied equally. This is difficult though because there is no indication whatsoever that anyone in the world holds a fully coherent ideology or worldview, so what sort of ideological worldview short of coherence suffices to turn ordinary crime into terrorism?

We are also twenty years into rushed, reactive legislation, produced after 9/11. This is the legislation from which our terrorism offences come. These offences have resulted in a number of convictions and has thus have seemed to do its job for the most part. However, we have also seen some weaknesses. We did not address the far-right quickly enough, and it is not addressing terrorist financing at least in terms of prosecutions. We have not defined ideology either and we are not quite sure what that means. There is probably some space for a legislative review. We have passed so much reactive legislation in the aftermath of these kinds of incidents. It would appear unequal that fifty-nine of sixty-two prosecutions thus far are ISIS or Al Qaeda inspired. Conversely, we enacted legislation in 2001, in response to an Al-Qaeda attack with the hopes of preventing another Al-Qaeda attack, and we were successful in doing so. However, it was still reactive legislation passed by parliament shortly after September 11th, 2001. Big legislation in Canada almost never moves that quickly. If we are really taking these things seriously, politicians need to step up and have a look at this regime.

Going forward, we also need to focus on definitions. What constitutes terrorism? Did an act meet the purpose clause? Did it meet the ideological, political, or religious clauses? Were the consequences serious? If it looks, for all the world, that those three clauses are met, and there is no charge, then we have to start asking why some activities are charged and others are not. We cannot just make preemptive terrorism charges and then fail to charge in the aftermath of some terrorist activity. In the past, I have called this a policy of inversion: your terrorists become those who do not have a workable plan, that do not follow through, or that are preempted. However, those that are not preempted—those that commit serious violent acts like mass murders—are not labelled terrorists. A policy of inversion makes little sense in terms of the message it sends. You end up with a situation where those who have planned a terrorist attack are labelled as terrorists, while an individual who kills a number of people is not labelled as such. These labels and decisions communicate a function of law. We need consistency and coherence.


Michael teaches and researches in the areas of criminal law, national security law, and international organizations and human rights. He engages regularly with the media on his areas of research, including writing comments for the Globe & Mail and the National Post, providing TV and radio interviews for the CBC, CTV, and other local, national and international broadcasters, and interviews with local and national newspapers and legal publications. Before joining the Faculty of Law in July 2015 he practiced law and worked on Middle East policy, human rights, international sanctions and terrorism for Canada’s Department of Foreign Affairs. Previously, he completed his articles and worked for Canada’s Department of Justice, where his focus was criminal law. Michael has also worked internationally for the United Nations’ International Criminal Tribunal for the Former Yugoslavia in the Appeals Chamber.

While completing his doctorate Michael was a SSHRC Joseph-Armand Bombardier CGS Scholar, executive editorial assistant to the University of Toronto Law Journal, and taught in the legal research and writing program.

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