This commentary was published in the Toronto Star on September 30, 2008.
The recent conviction of a young offender in the Toronto terrorism case has raised concerns that his conviction was a form of guilt by association. The Crown's star witness, Mubin Shaikh, was quick to tell reporters that he did not believe the young man was a terrorist. That said, those who read Justice John R. Sproat's 98-page decision will know that the legal issue is not quite so simple.
The young man was charged under a new offence created by the Anti-Terrorism Act enacted in December 2001 in the wake of 9/11. It provides a broad offence of participating in the activities of a terrorist group. To be guilty of this offence, the Crown must prove that the accused knew he was participating or contributing to a terrorist group and was doing so for the purpose of enhancing the ability of the group to facilitate or carry out a terrorist activity.
In other words, one does not have to be a terrorist who is planning a specific terrorist act to be guilty under this offence.
The judge found that the young man knew that he was participating in and contributing to a terrorist group. A critical basis for this decision was that the young man continued to contribute to the group after his attendance at the first training camp in Washago. Indeed, the judge found that the young man attended a second camp and continued to steal walkie-talkies for the group.
The judge also found that the young man had the purpose of enhancing the group's ability to facilitate or carry out a terrorist act, even though he was likely kept in the dark of any details of the perhaps unrealistic plans that the group may have had.
The case is not over. The judge has still to decide whether a stay of proceeding should be entered on the basis of the state's conduct in the investigation. The defence will make much of the fact that Shaikh acting as a police agent handled a gun at the training camp. But the judge accepted in this decision that this action was mainly for safety reasons.
Finally, there is the issue of sentence. The maximum penalty even for an adult under the offence is 10 years and it has long been a principle of sentencing that judges will lower the sentence for followers on the periphery of crimes. The public may be surprised by the eventual sentence.
The conviction may have a greater impact on the pending verdict in Momin Khawaja's case than on the adults still be tried in the Toronto case. The jury in the Toronto case will have to draw their own conclusions about the credibility of Shaikh and other witnesses, and the Crown cannot rely on Justice Sproat's finding that a terrorist group existed.
An aside in the decision may, however, have an effect on the Khawaja case as it suggests that even if a person was preparing to fight in Iraq, they may not be covered by the limited armed conflict exception that only applies to acts taken in accordance with international law. Roadside bombings by non-military forces may not fall into this limited exemption.
Post-9/11 laws and practices raise real concerns about guilt by association. Maher Arar's ordeal started when he was identified as a person of interest in an RCMP terrorism investigation because he was seen in Ottawa with one of the RCMP's suspects.
Charges have been stayed by the prosecutors against three youths and four adults who were arrested and charged to worldwide publicity and alarm in June 2006. There is a danger that investigators backed by broad offences can overreach.
One potentially problematic part of the judgment is the reference to the facilitation of terrorism, which as defined in the Criminal Code does not require the accused to know whether "any particular terrorist activity" has been planned. It is one thing not to know the details and the specifics; it is another not to know that any terrorist act at all is planned.
The Supreme Court may eventually have to grapple with whether the remaining fault once knowledge of any particular terrorist activity is taken away is sufficient to label and punish a person as guilty of a terrorism offence.
That said, Justice Sproat has laid out the evidence against the young man in considerable detail and gave him the benefit of the doubt, especially with respect to attendance at the first camp. He also stated that the concerns many Muslims have about the treatment of Muslims worldwide and the work of CSIS in Canada should not be equated with "terrorist rhetoric" or intentions. This case reveals the breadth of the new offences, but it rightly stops short of guilt by association.