Law Times

Law Times • JuLy 9, 2018 Page 13 www.lawtimesnews.com FOCUS Federal Crown seeks new trial or NCR finding Appeal filed over acquittal of man involved in attack BY SHANNON KARI For Law Times T he federal government is seeking another op- portunity to convince a court that a self- radicalized attacker who acted on his own initiative is subject to the Criminal Code provisions related to committing indictable offences for the benefit of a ter- rorist group. A notice of appeal has been filed by the Public Prosecution Service of Canada of the decision this spring by Ontario Superior Court Justice Ian MacDonnell to acquit Ayanle Hassan Ali of terrorism-related charges in a May 2016 knife attack at a Cana- dian military recruitment centre in Toronto. Ali, who suffers from schizo- phrenia, was found not crimi- nally responsible of all other charges, including attempted murder and assault with a weap- on, following a joint submission by the Crown and the defence. The federal Crown, however, is asking the Ontario Court of Appeal to order a new trial or find that Ali is not criminally responsible for the terrorism charges, rather than being ac- quitted. The prosecution of Ali is the first time that a court has been required to interpret sections added to the Criminal Code after the Sept. 11, 2001 attacks in New York in the context of a "lone wolf ' who has no direct connection to a terrorist group. Edward Prutschi, a Toronto defence lawyer, says he is not sur- prised the federal Crown is ap- pealing the Superior Court rul- ing even though it agrees that Ali was not criminally responsible as a result of his schizophrenia. "They are concerned that there is a decision out there that finds a 'lone wolf ' is not cov- ered by the existing law," says Prutschi, a lawyer at Bytensky Prutschi Shikhman, who is not involved in the case. The expert evidence heard by the court was that Ali had delusions about being targeted by government agents and that attacking members of the Cana- dian military would be a route to martyrdom. A search of his electronic de- vices and his home did not un- cover any connection between Ali and another person or a ter- rorist group. The Crown argued that s. 83.2 of the Criminal Code covers an "entity" that carries out a terror- ist act and it can consist of one person who is self-radicalized. Defence lawyers Nader Hasan and Maureen Addie ar- gued that the provisions do not apply to an individual acting alone for his own purpose. MacDonnell stated that there are certain circumstances where a "solo actor" could be found to be acting for the benefit of a ter- rorist group. "That is not the issue here, however. The issue is not wheth- er the entity for whose benefit the underlying offence is com- mitted can be a single person but rather whether a single person can be both the person committing the underlying of- fence and the entity for whose benefit it was committed," he wrote. The Superior Court judge explained that it was necessary to look at the Anti-terrorism Act provisions enacted in December 2001 as a whole, when interpret- ing the scope of s. 83.2. "The inexorable conclusion is that the intention of Parliament in enacting 83.2 was to proscribe the kinds of associative con- duct that support, facilitate and contribute to terrorist activity. The kind of lone-wolf criminal conduct engaged in by the de- fendant was not intended to be captured by s. 83.2," wrote Mac- Donnell. Hasan says he is disappointed that the Crown is appealing the decision and suggests that the non-terrorist-related sections of the Criminal Code are more than adequate to deal with a lone-wolf attacker not attached to any group. "The notion that there is a gap is completely absurd. These provisions are aimed at terrorist groups. The thought that a sin- gle person who is not connected to any group and suffers from serious mental illness [is cap- tured by this section] is tremen- dous overreach," says Hasan, a partner at Stockwoods LLP in Toronto. The definition of "terrorist activity" in the Criminal Code is any act or omission commit- ted "for a political, religious or ideological purpose, objective or cause" that is "with the inten- tion of intimidating the public." Any sentence for a terrorism- related offence is to be consecu- tive to those for "any other pun- ishment" imposed on a defen- dant. "These provisions are ex- tremely broad, and when they are used by prosecutors, appear to be very selective," says Hasan. "What bothers me is the dou- ble standard. It is only when the accused is of Arab or African or Muslim descent," he adds. While it would not impact his ultimate punishment, the individual who pleaded guilty this spring to killing six people in a Quebec City mosque in 2017 and will be sentenced in September was not charged with any terrorism-related of- fences. The reasoning in MacDon- nell's judgment is sound, sug- gests Prutschi. "It makes sense. It is a narrow interpretation of the legislation, but that is what a judge is sup- posed to do," he adds. At the same time, he notes that it may be appropriate for Parliament to enact new legisla- tion that clearly captures lone- wolf attackers. "The nature of terrorism has changed" since the original pro- visions were enacted, he says. "We are in a different envi- ronment, and Parliament might want to ensure we prosecute lone-wolf terrorism the same as capital-T terrorism," says Pruts- chi. When the terrorism sections were put into place by the gov- ernment of Jean Chrétien, they were controversial and concern about overreach and the impact on civil liberties were expressed at the time by academics, includ- ing David Paciocco and Gary Trotter, both of whom are now judges on the Ontario Court of Appeal. A commentary written by Paciocco in 2002 is cited by MacDonnell in his ruling on how to interpret the application of these provisions. "I agree with the character- ization of the offences created by the Anti-terrorism Act as as- sociation-based offences," Mac- Donnell wrote. In a collection of essays about the act entitled The Security of Freedom, Trotter, in his commentary, suggested many of the amendments were unnecessary because they were already addressed in existing law. "Thus, they are mere window dressing. Nothing has changed, except in word alone. This con- tributes to a false sense of secu- rity that we are now somehow safer because of the new law. In many ways, we are not . . . more- over, these expanded powers are here to stay," he wrote. LT © 2018 Thomson Reuters Canada Limited 00251VP-A92267-CM Order # L7798-8630-65203 $125 Softcover June 2018 approx. 420 pages 978-0-7798-8630-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Edition The Trial of Sexual Offence Cases, Second Edition The Honourable Madam Justice Michelle Fuerst, Mona Duckett, Q.C., and The Honourable Judge Frank P. Hoskins The Trial of Sexual Offence Cases, Second Edition takes you through the entire process of a sexual offence case, from client interview to the completion of the proceedings in the criminal justice system . 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New in this edition • A new chapter on human traffi cking • Updates throughout the publication to refl ect jurisprudential developments such as: – New Supreme Court of Canada and provincial appellate level authorities clarifying the scope of consent, including vitiation of consent due to fraud (non-disclosure of HIV status), bodily harm, or incapacity, and the requisite elements to the mistaken belief in age defence – Recent provincial appellate level authorities regarding the application and scope of s. 276 of the Criminal Code, including additional and recent examples of admissible and inadmissible evidence – Decisions regarding the importance of avoiding the stereotypes and myths in assessing evidence during sexual assault trials Develop effective strategies for prosecuting or defending sexual offence cases Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Edward Prutschi says that it may be appropriate for Parliament to enact new legislation that clearly captures lone-wolf attackers. These provisions are extremely broad, and when they are used by prosecutors, appear to be very selective. Nader Hasan

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