Terrorism Sentencing Decisions in Canada Since 2001: Shifting Away From the Fundamental Principle and Towards Cognitive Biases

Abstract

In this paper, we take a comprehensive and multi-disciplinary look at terrorism sentencing decisions over a 17-year period, between September 2001 when the ATA was first conceived of and September 2018. In so doing, we first offer an empirical analysis of the sentences for all terrorism offences to date, including the total number of sentences, conviction rates, charges, demographics associated with the accused and other factors. We then engage in a qualitative assessment of the sentencing decisions to date. In particular, we ask why the high sentences and one hundred percent incarceration rate for those convicted, and why even those who have pled guilty have received similar treatment – and sentences – as compared to those that were found guilty after full trials. We test the judicial reasons for sentencing in terrorism cases against the usual logic that the courts follow when applying the fundamental principle of sentencing in Canada, as elaborated by both section 718 of the Criminal Code and Supreme Court of Canada jurisprudence. We also investigate the role that section 718.2(a)(v) of the Criminal Code has had on terrorism sentences in Canada and whether it might help to explain the empirical and qualitative shifts we are seeing in terrorism sentencing decisions. Finally, we ask whether there is anything inherent to the legislative and judicial framing of terrorism as a crime, and therefore in its sentencing, that might explain the unique nature of terrorism sentences.

In the final section of this paper, we posit a cognitive behavioural theory that, when viewed in light of the way sentencing decisions are framed by the judiciary and the Criminal Code, can help explain the sentences to date and even make them seem preordained. We find that despite the Supreme Court of Canada’s detailed decision in R v Khawaja in 2012, which affirmed that the fundamental and general principles of sentencing in Canada continue to apply to terrorism offences as they do elsewhere, the reasoning found in Canadian terrorism sentencing decisions does not look much like that which obtains in sentencing decisions for any other crime. In particular, in terrorism sentencing decisions, the courts have offered a unique approach to balancing the seriousness of the crime with the moral culpability of the offender as the fundamental principle of sentencing requires.

The result is one that prioritizes long term incarceration, a repeated focus on the seriousness of terrorism in general, and a diminution of the individual. In so doing, the process is framed so as to be uniquely susceptible to cognitive biases that can serve to inflate the sentencing ranges. In addition, fears of terrorism are amplified as a persistent and uniquely deadly threat, which can in turn have a disproportionality negative impact on young and minority accused, who are then seen as the most affected by the increased presence of cognitive biases in terrorism sentencing.

Keywords: criminal law, sentencing, terrorism, national security, legal theory, cognitive biases