TORONTO — Prosecutors are seeking a new trial for a man who attacked uniformed personnel at a Toronto military centre three years ago, arguing he should be considered a terrorist even though he acted alone and mental illness rendered him not criminally responsible for his actions.
Ayanle Hassan Ali was charged with attempted murder, assault causing bodily harm and assault with a weapon, as well as carrying a weapon, all for the benefit of a terrorist group in connection with the March 2016 knife attack.
Last year, an Ontario judge found that while Ali was motivated by his extremist beliefs, the emergence of those beliefs was linked to his mental illness. The judge also found Ali was acting alone and thus not for the benefit of a terrorist group.
Ali was therefore cleared on the terror element of the charges and found not criminally responsible on lesser included offences.
Crown attorneys argue in appeal documents that the trial judge misinterpreted the law in a way that would make it harder to stop and prosecute so-called lone wolf terrorists.
They say Ali should still be considered not criminally responsible, but on the terror charges rather than the lesser ones — and since the court cannot simply make that change, a new trial is warranted on that issue.
In documents filed ahead of Monday's hearing before the Court of Appeal for Ontario, prosecutors say the trial judge erred in rejecting their argument that someone can be both the person acting for the benefit of a terror group and the terror group itself.
"The trial judge was wrong to conclude that section 83.2 (of the Criminal Code) is directed only at associative conduct and is not intended to capture terrorist activity carried out by a 'lone wolf,'" they wrote.
"Parliament's true purpose was to prevent and punish 'terrorist activity' — acts of serious violent committed for a political, religious or ideological purpose, with the intention of intimidating the public. Terrorist activity can be committed as readily by an individual — a lone wolf — as it can be by a larger group."
The trial judge's interpretation of the law would mean that if a lone wolf has taken serious steps to carry out an attack but has not yet made an attempt, that person could not be convicted on any charges, Crown attorneys allege.
A lone wolf who has taken action could only be convicted on lesser included charges, without the terror component, they add. There would be no terror conviction on that person's criminal record, information that could be useful to law enforcement and other official agencies, they say.
"The trial judge's approach would erase the distinction between lone wolf terrorists and ordinary criminals," Crown attorneys say in the documents.
"Lone wolf terrorists are a serious problem in Canada and abroad, and their recent 'successes' may inspire others. In many ways, they are harder to detect and interdict than larger groups. By their solitary nature, lone actors tend to evade the traditional means (e.g. informants, intercepted communications) by which other terrorism plots come to police attention," they say.
"It is dangerous to deprive police and prosecutors of the full array of tools...to investigate and prosecute them."
Lawyers representing Ali, meanwhile, say the judge was correct in his interpretation of the law and deny the ruling would let lone wolves slip through the cracks.
"A single person cannot simultaneously be the person committing the indictable offence and the one-person terrorist group for whose benefit the offence was committed," they argue in documents filed with the appeal court.
A lone wolf can still be prosecuted if acting on their own for the benefit of a group, or under other charges that don't require a link to a group, such as leaving Canada to facilitate terrorist activity or advocating the commission of a terrorist activity, the defence says.
"Contrary to the Crown's assertion, the decision below does not create a lacuna for 'lone wolf' terrorists. The state has myriad ways to deter, prosecute and punish so-called lone wolves."
Ali attacked uniformed military personnel with a large knife in March 2016 and injured at least two people before he was overpowered and subdued.
Since he was found not criminally responsible, he is being detained at a secure hospital, and his case is reviewed annually by the Ontario Review Board.