The Elusive Motive Requirement in Canada’s Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics

Abstract

Canada distinguishes “ordinary crime” from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of “terrorist activity.” The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence, the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions “count” and which do not? Do far-right motivations picked and chosen from numerous groups count? How about someone that is motivated to act violently by a belief in QAnon, or because of their commitment to a political protest movement? In this article we explain why the motive requirement is so in need of refinement and shed light on what differentiates ordinary crime from terrorism. To do so, we offer a comprehensive study of the legislative history behind Canada’s anti-terrorism criminal regime as well as every terrorism judgment, sentencing decision, and jury instruction issued between 2001–2021. We find that neither Parliament nor the courts have defined the motive requirement, leaving others to define terrorism as something closer to “we know it when we see it.” We thus look more broadly, including inside and outside the realm of criminal law, for workable legal definitions of political, religious, and ideological; we engage in a process of statutory interpretation to narrow the definitions; and, finally, to better understand the most complex and vexing motive—that being ideology—we look outside the law entirely to terrorism studies, sociology, religious studies, and elsewhere. Drawing on these varied sources, we offer a definition for the motive requirement that is practical for the courtroom while serving to both restrict the application of Canada’s anti-terrorism regime beyond its current incarnation and also ensure that emergent extremist activity is adequately captured. Such clarity is vital to the rule of law because the motive requirement is an element of terrorism offences and, as such, must be proved by the Crown beyond a reasonable doubt; but it is also necessary to ensure that investigations, charges, and prosecutions are based on concise understandings of “terrorist activity” and not implicit understandings that tend to marginalize some (usually minority) groups while allowing others more permissive room to manoeuvre.