Demonstrations by the self-proclaimed ‘Freedom Convoy’ “galvanized” far-right extremism worldwide, which has stoked fears in Canada and abroad. That said, this is only the latest event in a series that has motivated political action. In the wake of the Capital riot in early 2021, for example, the Canadian Parliament voted to list the Proud Boys, a far-right “neofascist militant” group, as a “terrorist entity.” In 2019, the Government also listed Blood & Honour and Combat 18, two affiliated neo-Nazi groups.

The Anti-Terrorism Act is the vehicle through which this list of terrorist entities is legally operationalized.

Being listed as a terrorist entity comes with steep penalties. Applicable restrictions include the potential forfeiture of property as well as the threat of criminal prosecution, should anyone seek to support the operations of a listed terrorist entity both “directly or indirectly.” 

There are legitimate concerns over the growing threat of far-right extremism in Canada and its intersection with “the militant incel community,”[i] but does it truly fit the bill of terrorism under the law?

In the Criminal Code, under section 83.01(b), terrorist activity is defined as “an act or omission, in or outside of Canada” that “is committed in whole or in part for a political, religious or ideological purpose, objective or cause, and with the intent to intimidate or compel “a person, a government or a domestic or an international organization to do or to refrain from doing any act.” Additionally, this act intentionally “causes death or serious bodily harm to a person,” “endangers a person’s life,” “causes a serious risk to the health or safety of the public or any segment of the public,” “causes substantial property damage,” or “causes serious inference with or serious disruption of an essential service, facility or system.” In other words, to meet the threshold of terrorist activity, the actor must cause intentional harm, in addition to meeting the criterion of motive and purpose. 

Applying this legal framework to attacks committed by members of alt-rights groups presents several challenges. The intent to cause harm as part of an extremist group may be insufficient to prove motive, for example. In 2018, Alek Minassian committed a van attack in Toronto, which resulted in the deaths of 10 people. Despite claiming he was participating in an “incel rebellion,” Justice Anne Molloy found Minassian “guilty of 10 counts of first-degree murder and 16  counts of attempted murder,” rather than of terrorism offences. While Minassian claimed he was a part of the broader incel movement, a key element is whether the intent behind this act was part of a larger agenda to engage in terrorism, or whether the harm was the desired outcome in and of itself. In this case, it was determined that the harm was the ultimate objective. Indeed, even if an act can be legally defined as terrorism, there is no guarantee it will be prosecuted as a terrorism offence. 

This nuance can cause us to question the very purpose of the law and to what extent it can be a vehicle for societal change.

Law, by its nature, is meant to remain separate from the political will. Yet, to say that the law has no impact on the conversation concerning far-right extremism is misguided.

Should an act be prosecuted as a terrorism offence, for example, even if it requires a higher threshold of evidence? Is the impact of such a pursuit worth the risk of an offender being acquitted? Such questions demonstrate that the legal definition of terrorism is not simply technical but one rooted in values. As the case of Alek Minassian shows, legal judgements are guide-posts for such conversations, and that is unlikely to change. 

Photo Credit: Pascal Walschots

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