[First published in Global Outlook 13 (Annual 2009): 62-64.

[Index: Canadian politics, war on terror, terrorism, Toronto 18]

[Date: October 2008]

The Toronto 18: A Second Update

(October 2008)

Michael Keefer

One of the Toronto 18a youth who was just seventeen when he was arrested in
June 2006, and therefore cannot be publicly namedwas found guilty of terrorism by
Ontario Superior Court Justice John Sproat in a Brampton courthouse on September 25,
2008. This judgment raises questions of the most urgent kind about the impact of
Canada's post-9/11 anti-terrorism legislation on civil and human rights in this country.
University of Toronto law professor Kent Roach predicted in 2003 that the Antiterrorism Act (Bill C-36), which was introduced in Parliament in October 2001 and
proclaimed on Christmas Eve of that year, was bound to result in a discriminatory
application of security powers. He noted that the federal government, despite its 'hollow'
claims that the Anti-terrorism Act promoted human rights, resisted calls to commit itself
in the act to non-discrimination in the administration of the many new powers given to
police and prosecutors.1
Professor Roach correctly identified this act as unnecessary, since the failure of
September 11 was one of law enforcement, not of the criminal law, and Canada's
existing Criminal Code was entirely capable of dealing with terrorist attacks like those of
1 Kent Roach, September 11: Consequences for Canada (Toronto: University of Toronto Press, 2003), p.
17.

9/11.2 He memorably described the act as a panicked politicization of the Criminal Code,
an expansion of the criminal law that was not principled, but rather political,
symbolic, and somewhat cynical.3 It should be understood, Roach suggested, within a
larger process of recent ad hoc and reactive additions to criminal law, in the course of
which The law of first-degree murder has been expanded through piecemeal changes
driven by politics, media attention, advocacy by interest groups representing victims and
the police, and a desire to denounce horrible acts of violenceeven at the expense of
more basic concerns for coherence within the code or respect for fundamental principles
of criminal law. This process of expansion turns law towards narrative, so that its
judgments serve to memorialize terrible crimes.4
One of the more striking deficiencies of The 9/11 Commission Report is its habit
of repeatedly allowing forensic analysis (or a pretence of it) to be overwhelmed by
breathlessly memorializing narrative. As a result, the Report reads like a sensationalist
novelsharing with examples of that genre like Dan Brown's Da Vinci Code the related
properties of being feebly researched, over-written, and palpably implausible. 5 But if
impulses toward narrative and memorializing can help to reduce forensic discourse to
obfuscation, is there reason to fear a similarly negative impact on the discourses of
criminal law?
Professor Roach thinks so. He claims that The new narrative and memorial style
in the criminal law helps explain why the Anti-terrorism Act requires the prosecutor to
prove beyond a reasonable doubt that a terrorist activity was committed 'in whole or in
part for a political, religious or ideological purpose, objective, or cause.' 6 This concern
with the broad motive, as opposed to the specific intention to harm, goes against a longstanding principle of common-law tradition: as the Supreme Court of Canada affirmed in
a 1997 decision, it does not matter to society, in its efforts to secure social peace and
order, what an accused's motive was, but only what the accused intended to do.7
2 See Roach, p. 23: Had the September 11 terrorists planned their crimes in Canada and had the law
enforcement officials been aware of their activities, the existing law would have allowed them to be
charged and convicted of serious crimes before the would-be perpetrators had actually carried out a
single violent act.
3 Ibid., p. 24.
4 Ibid., p. 25.
5 For thorough assessments of the Report's substantive deficiencies, see David Ray Griffin, The 9/11
Commission Report: Omissions and Distortions (Northampton, MA: Olive Branch Press, 2005); and
Griffin, 9/11 Contradictions: An Open Letter to Congress and the Press (Northampton, MA: Olive
Branch Press, 2008).
6 Roach, September 11: Consequences for Canada, p. 25, quoting Criminal Code, s. 83.01 (1)(b)(i)(A).
7 Ibid., p. 26, quoting United States v. Dynar, [1997] 2 SCR 462 at para. 81, 115 CCC (3d) 481. In the

As Roach warned in 2003, the Anti-terrorism Act's emphasis on motive undercuts

the notion of a liberal criminal law that inquires only into the mind of the accused, as
opposed to his or her heart. The requirement for proof of political or religious motive will
make the politics and religion of suspects a fundamental issue in terrorism trials. [....]
Terrorism trials in Canada will be political and religious trials.8
While on the one hand the Anti-terrorism Act instructs police, prosecutors and
judges to focus on this broad category of political or religious motive, on the other hand it
systematically undercuts the traditional common-law concentration on criminal intent.
This tendency is evident in the act's newly defined offences relating to the financing of
terrorism: as law professor Kevin Davis suggests, these could be used to convict a
restaurant owner for serving customers who he knows are in the habit of making
contributions to terrorist groups.9
However, it is in its definition of offences of facilitating terrorism that the Antiterrorism Act most distinctly subverts traditional Canadian legal standards. The act
provides for up to ten years' imprisonment for any person who knowingly participates in
or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of
enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity. 10
Participating in or contributing to terrorist activities can be a matter of giving or receiving
'training'or, more loosely, any kind of association with a group labelled as terrorist. As
Roach observes, the act directs Canadian courts to consider whether a person 'frequently
associated with any of the persons who constitute the terrorist group' or uses words or
symbols associated with the terrorist group. As though this drift into guilt-by-association
were not loose enough, the act then specifies that it is not necessary that any particular
terrorist activity was foreseen or planned at the time it was facilitated.11
As Professor Roach's comment makes clear, the act at this point enters the terrain
of Franz Kafka:

8
9

10
11

same note, Roach quotes the opinion of K. Kittichaisaree that A motive is generally irrelevant in
criminal law, except at the sentencing stage (International Criminal Law [Oxford: Oxford University
Press, 2001], p. 92; see Roach, pp. 212-13).
Ibid., p. 27.
Kevin Davis. Cutting Off the Flow of Funds to Terrorists, in R. Daniels, P. Maclem, and K. Roach,
eds., The Security of Freedom (Toronto: University of Toronto Press, 2001), pp. 301, 303; quoted in
Roach, September 11, p. 39. For evidence that Islamic financial, charity and banking systems have been
both routinely misunderstood and unfairly targeted by western intelligence agencies, see economist R.
T. Naylor's brilliant study Satanic Purses: Money, Myth, and Misinformation in the War on Terror
(Montral and Kingston: McGill-Queen's University Press, 2006), pp. 137 ff.
Criminal Code, s. 83.18, quoted by Roach, September 11, p. 42.
Roach, pp. 43, 44.

It seems impossible to knowingly facilitate a terrorist activity

when you do not know that any particular terrorist activity was
foreseen or planned at the time it was facilitated. [....] The
accused would still, however, be convicted and punished for
knowing facilitation of a terrorist activity when, in fact, the
person did not know about the terrorist activity.12
*

The September 25th judgment of Ontario Superior Court Justice John Sproat
participates fully in the Kafkaesque absurdity of the Anti-terrorism Act that it was his
duty to apply.
Judge Sproat fund Mubin Shaikh to be a truthful and generally reliable witness
whose credibility was not seriously shaken by the defence; not surprisingly, given this
degree of gullibility, Sproat also concluded that evidence the Toronto 18 existed as a
terrorist group was overwhelming.
As the Canadian Press reported,
Sproat rejected defence arguments that two camps organized by
the alleged ringleaders were simply a religious retreat or
recreational in nature. Sproat noted participants, including the
accused, marched, played paintball games, shot a 9-mm
handgun, and heard lectures on waging war on the West during a
camp north of Toronto in December 2005. It is inconceivable to
me that by the end of the camp there was any doubt about its
purpose, the judge said. Sproat was adamant the young man
[...] was aware of the group's murderous intentions and did his
part to help by shoplifting walkie-talkies and camping supplies.
He had a full appreciation of the nature of the terrorist
group.13
But the evidence heard by the court would lead most rational people to a very
different conclusion. As the New York Times reported, the camps that the police
12 Ibid., p. 44.
13 Evidence of terror group 'overwhelming,' judge rules in finding youth guilty, Canadian Press (25
September 2008), http://canadianpress.google.com/article/AleqM5gWT-16g3nlt6sz3xdOyPDcfpqCMg.

described as terrorist training sessions were characterized by prosecution witnesses as

recreational or religious retreats, and Mubin Shaikh testified that he choreographed
scenes in the videotapes he made of these two camps. 14 The 9-mm pistol of course
belonged to Shaikh, who acknowledged that he bought ammunition and fired the gun in
front of participants in one of the camps,15 and the shoplifting was done at Shaikh's
instigation.16
Shaikh himself was adamant that the accused ought to be acquitted: in July 2008
he insisted to reporters that the youth had no inkling of any nefarious purposes: 'I knew
the purpose of the camp. I can tell you the accused was not told,' said Mr. Shaikh. [....] He
said the youth believed the camp was for religious purposes. 17 Following Judge Sproat's
judgment, Shaikh continued to insist to journalists, as he did during his testimony, [that]
the youth did not know what the group was up to. 'I don't believe he's a terrorist. I don't
believe he should have been put through what he was put through, but that's our system.'
Shaikh said.18
We have, then, a truly bizarre legal judgment, in which the magnifying lens of
police entrapment and 'war-on-terror' paranoia swells a shoplifterwhose petty crimes
were instigated by a highly paid CSIS-RCMP informantinto a terrorist. The principal
crown witness is accepted as truthful and generally reliable when his testimony
supports the conclusion that a dangerous terrorist group actually existedbut that
assessment appears effortlessly to coexist with the judge's bland acceptance of crown
prosecutor John Neader's charge that when Mubin Shaikh's testimony exculpated the
accused he was fabricating evidence.19 The logic of this is perhaps easier to accept once
we have come to understand, thanks to the Anti-terrorism Act, that it is possible to
knowingly facilitate a terrorist activity about which one knows nothing.
*

14 Ian Austen, Man Guilty in Canada Terror Plot, New York Times (25 September 2008),
http://www.nytimes.com/2008/09/26/world/americas/26canada.html.
15 Evidence of terror group 'overwhelming'.
16 See Joseph Brean, 'We weren't there picking daisies', National Post (11 June 2008),
http://www.nationalpost.com/news/story.html?id=580018. Brean quotes Shaikh as testifying that when
he discussed 'acquiring' camping gear with the group, it meant 'to quote unquote take unlawfully items
in support of camping. Unlawfully. Not through legal purchases.'
17 Shannon Kari, Star witness says Toronto 18 youth should go free, National Post (3 July 2008),
http://www.nationalpost.com/news/canada/story.html?id=630123.
18 Evidence of terror group 'overwhelming'.
19 Melissa Leong, Key witness's story changed, Crown charges, National Post (25 June 2008),
http://www.nationalpost.com/news/story.html?id=610976.

Common-law tradition demands two things to secure a criminal conviction: a

guilty deed (or actus reus), and evidence that the act was done knowingly, with criminal
intention or a guilty mind (mens rea). The Anti-terrorism Act's dismissal of the mens rea
requirement is a wholesale betrayal of democratic jurisprudence.
But as national security expert Wesley Wark of the Munk Centre for
International Studies has said of the decision in this case, so far, so good. 20 In other
words, the purpose of the law is to secure convictions, at whatever cost to the principles
of justice.
In Franz Kafka's haunting parable Before the Law, a man who has spent his life
vainly seeking admission at the gate of the Law perceives, as his senses fail, a radiance
streaming from the entrance that is about to be shut in his face by a brutal and tyrannical
door-keeper.21 (What is the source of this radiance: the clear light of Justice? Or does it
come rather from fires being lit in a new form of witch-huntone no less cowardly and
irrational than the original?)
Integrating this parable into his novel The Trial, Kafka made it part of a dialogue
between his innocent but doomed protagonist K. and the prison chaplain, who tells him
that the authority of the parable's door-keeper must be acceptednot necessarily as true,
but as necessary: for to doubt his integrity is to doubt the Law itself.
A melancholy conclusion, K. responds. It turns lying into a universal
principle.22

20 Evidence of terror group 'overwhelming'.

21 Franz Kafka, Before the Law, in The Penal Colony: Stories and Short Pieces, trans. Willa and Edwin
Muir (1948; rpt. New York: Schocken Books, 1970), pp. 148-50.
22 Kafka, The Trial, trans. Willa and Edwin Muir (1935; rpt. Harmondsworth: Penguin, 1974), p. 243.