If misogyny was a factor, is Toronto rampage a terrorist act against women?

Heidi Matthews, The Conversation, April 27, 2018

In the days following the horrific van attack in Toronto
that left 10 people dead and many injured, police and politicians were careful
to avoid describing it as a terrorist act. But as more details emerge about the possible
of the accused killer, particularly his alleged connection
to the misogynist movement
known as incel
, could he face charges under Canadian law for
gender-based terrorism?
A group of women pay their respects at a memorial wall
dedicated to the victims of the Toronto van attack. Wednesday, April 25, 2018.
“Terrorism” is considered different from ordinary crimes
because it endangers national security. As stated in the report on the
Air India incident
, “terrorism is an existential threat to Canadian
society in a way that murder, assault, robbery and other crimes are not.”
In other words, terrorist acts challenge the shape,
content and boundaries of the social order. This is why both Canadian and
international law treat terrorism with particular severity.
Changes after 9/11
The phenomenon of terrorism is far from new, but there
were major reforms to terrorism laws around the world during the first years of
the 21st century.
In the aftermath of the 9/11 attacks, and
inspired by amendments to British terrorism legislation enacted the previous
year, Canada passed its own Anti-Terrorism
. Responding to the United Nations Security Council’s call for
all states to criminalize terrorist activities, the act amended Canada’s
Criminal Code, adding a new chapter on terrorism.
These amendments were mainly designed to prevent terrorist
acts by expanding the investigatory tools for law enforcement in suspected
terrorism cases and adding a set of offences criminalizing elements of the
preparatory stages of attacks.
Terrorism, as such, is not a criminal offence in Canada.
But participating in the activity of a terrorist group, or facilitating
terrorist acts and promoting the commission of terrorist acts, are crimes.
The new Criminal Code provisions also extend to the
dissemination of terrorist propaganda; they allow a court to order the removal
of speech from the internet.
Ordinary crimes like murder or theft can become terrorist
offences when they are committed in connection with terrorist groups or
activities. That means that under certain circumstances, “terrorism” is
overlaid on top of these charges to increase their severity.
With respect to sentencing, designating ordinary crimes as
terrorism is considered an aggravating factor. Significantly, the maximum
available sentence for terrorism crimes has been increased to life
Political, religious or ideological motive
In Canada, the definition of “terrorist activity” includes
acts or omissions committed with two key intentional elements.
First, the accused must have acted with “a political,
religious or ideological purpose, objective or cause.” Second, he must have
intended to intimidate the “public, or a segment of the public, with regard to
its security” or to compel a government or organization “to do or to refrain
from doing any act.”
The activity in question must also have violently caused
death or serious injury, endangered life or caused a serious risk to public
safety (including a segment of the public). Causing serious property damage or
interference with, or disruption of, an essential service can also constitute
terrorist activity if intended to cause these harms.
The legal approaches to terrorism by different countries
diverge on whether a political, religious or ideological — and sometimes racial
— motive is required for an offence to be characterized as terrorism.
Canada is joined by the U.K., Australia, New Zealand and
Pakistan in including this “motive clause” in its law.
Importantly, the U.S. Patriot
leaves out a motive requirement, defining terrorism that occurs
on American soil as any crime intended to either intimidate or coerce a
civilian population, influence government policy by means of intimidation or
coercion or influence government conduct by mass destruction, assassination or
Toronto van attack: Terrorism?
The arrest of accused van driver Alek Minassian means the
Canadian government must decide whether to pursue a terrorism case.
The alleged connection of the Toronto van suspect to
“incel” comes in the midst of the #MeToo era, so it’s unsurprising we’re seeing
to address this case as one of terrorism.
A group of women pay their respects at a memorial wall
dedicated to the victims of Monday’s van attack as a portion of Toronto’s Yonge
Street re-opens on April 25, 2018. THE CANADIAN PRESS/Chris Young


These calls have a two-pronged logic.
First, they reiterate the undeniable correlation between
misogyny and acts of mass public violence, drawing on a spectrum of ideologies
ranging from racism to radical Islam.
Second, they contend that violence
against women is itself a form of terrorism
, constituting nothing
less than a daily war against women.
If national laws have been updated to include acts of
peacetime terrorism, then surely, the argument goes, these laws should cover
mass violence motivated by misogyny.
On its face, a good legal case could be made for
construing the charges against the Toronto suspect as terrorist offences if it
turns out he was inspired by or acted on behalf of a movement that promotes
violence against women. There is nothing in Canadian law limiting terrorism to
acts inspired only, for example, by radical religious ideologies.
In fact, in a 2017 report
on terrorism
, the government explicitly recognized the increased
threat of right-wing extremism.
Serious practical considerations
Many facts are still unclear in the Toronto van case, but
Facebook has confirmed that moments before the alleged attack, Minassian posted
about the “Incel Rebellion” and lauded Elliot Rodger, who was responsible in
2014 for killing six people in California in the name of a “war on women.”
If the suspect was indeed motivated by this misogyny, and
the prosecution can prove other elements of “terrorist activity,” it’s
plausible that the charges already laid could be construed as constituting
terrorist acts. Minassian is facing 10 counts of first-degree murder and 13
counts of attempted murder.
But there are serious practical considerations limiting
the feasibility and added value of such an approach.
Under Canadian law, first-degree murder, defined as
planned and deliberate, carries a mandatory life sentence. Any killings that
occur during the commission of terror-related acts are elevated to first-degree
murder. But Minassian is already charged with first-degree murder and will be
sentenced to life if convicted.
Arguing terrorism would also significantly add to the
prosecution burden, requiring all the elements of terrorism to be proven beyond
a reasonable doubt.
Those calling for this case to be treated as terrorism
would likely argue that the optics and symbolism of denouncing Minassian’s
alleged crimes as terrorism justify this additional evidentiary burden.
But there are serious policy considerations that go
against expanding the legal scope of terrorism as a way to combat the very real
and disturbing threats posed by dark online movements like incel.
The idea that we should turn to the language of terrorism
and the institutions of the criminal law to address misogyny is part of the
general punitive approach that has permeated much of the #MeToo discourse.
I worry that
the logic
of #MeToo is likely to result in socially and sexually conservative
policy proposals. The punitive urge to talk about the Toronto van attack
suspect as a terrorist could be one such dangerous invitation.