London police are looking at terrorism charges in truck attack. Here's why that's so rare

London police say they're considering laying terrorism charges against the man accused of killing members of a Muslim family out for a walk in London, Ont. on Sunday because of their faith.

But getting the evidence neededto prosecute isn't always easy under Canadian law.

"We're talking here about the legal system. Not politics or not what you or I or anyone else might view as terrorism around the dinner table," said University of Calgary law professor Michael Nesbitt.

"It's a rather complicated area ... because we don't have a definition of terrorism in Canada."

On Sunday,four people Salman Afzaal, 46, his wife Madiha Salman, 44, their 15-year-old daughter Yumna Afzaal and Salman Afzaal's 74-year-old mother were killed when a black truck rammed into them as they were walking. The youngest member of the family, Fayez, 9, survived.

WATCH |Questions about whether London suspect could face terrorism charges

Questions about whether London suspect could face terrorism charges

3 years ago

Duration 9:27

London police believe the victims were killed because of their Muslim faith and that the suspect was motivated by hatred, but will he face terrorism charges? Christian Leuprecht, Professor at the Royal Military College, and Michael Nesbitt, law professor at the University of Calgary.

On Monday,London Police charged a 20-year-old man with four counts of murder and one count of attempted murder for what they say was a "planned, premeditated act" against a family of five "because of their Muslim faith."

Det.-Insp.Paul Waight of the London police said they are talking toRCMP and prosecutors about the possibility offiling terrorism charges.

The National Council of Canadian Muslims called the incidenta terrorist attack on Canadian soil and urged that it be treated as such. Prime Minister Justin Trudeau stood in the House of Commons on Tuesday and described it as a "terrorist attack motivated by hatred." His national security adviser Vincent Rigby also called it terrorism in a public speech.

But not all acts of violence generally viewed by the public as terrorism are prosecuted as such.

The threshold is high

Trudeau and others called the 2017 Quebec City mosque shooting a terrorist attack. But no terrorism charges were laid against the shooter,who ended up pleading guilty to six charges of first-degree murder and six of attempted murder.

The van attack in Toronto in 2018 that claimed ten livesalso led to discussions about terrorism charges. Police said thekiller told them after his arrest thathe'd set out to kill as many people as possible and was inspired by the misogynistic "incel" movement, whose members blame their lack of sexual activity on women.

One of the few instances of a terrorism charge beingadded to a murder case in Canada happenedjust last year, following adeadly machete attack at a Toronto erotic massage parlour. After first charging a 17-year-old with first degree murder, police updated the charges a few months later to include terrorism after they saidthey haduncovered evidence suggestingthe attack was inspired by theincelideology. That case is still before the courts.

Nesbittsaid one of the challenges involved in pursuing terrorism chargesis that Canada's anti-terrorism laws were drafted in a "left of bang" frame of mind meaning theyweremeant to disrupt terroristactivity before it took place.

In the aftermath of 9/11, the federal government amended the Criminal Code to add new anti-terrorism offences covering acts carried out "for a political, religious or ideological purpose, objective or cause" and meant to intimidate the public. They include facilitating a terrorist activity and terrorist financing.

"It was to prevent another 9/11 from taking place. Not to criminalize what happened after the fact, because we already had that in our most serious crime, which is murder," Nesbitt said.

"Once the action has taken place, it becomes significantly less evident how you go about getting terrorism charges laid."

Little has been releasedpublicly about the London hit-and-run suspect's motivation. Police haven't revealedwhat, if anything, the accused said to officers when he was arrested, or whythey believehe hadtargeted the family over their faith.

Leah West,an assistant professor of international affairs at Carleton University, told CBC'sPower & Politics that proving motivation is key to meeting the threshold for a terrorism charge.

To secure a charge, three things are required: the intent tocausedeath or serious harm, evidence that the act was committed for "a political, religious or ideological purpose, objective or cause" and evidence that the act was committed with the intention of intimidating the public or a segment of the population.

"You're going to need a thorough investigation of this person's motivations before we would potentially see any type of terrorism charges," said West, a former national security lawyer with the Department of Justice.

Investigatorsare likelynow gathering that information and combing throughanyelectronic records for evidence ofmotivation and planning,said West.

When police searchfor evidence after an attack, however,theyalways face the risk that it has been destroyed or will be difficult to decrypt.

Christian Leuprecht, a professor at the Royal Military College of Canada and Queen's University, said it's extremely costly to monitor extremist behaviour online.

"There are very difficult choices that security agencies have to make on a daily basis about what resources they allocate to which individuals and which groups," he told Power & Politics.

"Inherently, there's always the risk that somebody is just going to slip through the cracks or there are individuals who just don't show up on the radar."

Nesbitt said the fact thata terrorism charge isn't laid immediately after an act of violencedoesn't mean it won't be later. It often takes time to gather evidence to support a terrorism charge, he said,while murder is easier to prove and comes with the harshest punishment.

Still, he believes it's worth pursuing when there's evidence.

"Law has a communicative function and I think it's important to recognize the crime in instances where it has taken place," he said.

Defining 'ideologically motivated'

Prosecuting terrorism charges in Canadahas so far turned outto be easier than laying them in the first place.

According to Nesbitt's research, close to 60 individuals have been charged with one or more terrorism offences. As of 2020, 26 people have been convicted or have pleadedguilty to terrorism charges since 2001.

Others have been charged in absentia without much hope of a conviction orhave beenacquitted. Fewer than 10 cases are still beforethe courts.

The rate of guilty verdicts is consistent with rates forother serious crimes, said Nesbitt.

Even if a terrorism offence isn't laid, it can be used in sentencing to argue fora tougher penalty, he added.

WATCH | London police liaising with RCMP on potential terrorism charges

London police liaising with RCMP on potential terrorism charges

3 years ago

Duration 9:47

Former strategic analyst with CSIS, Jessica Davis, and former national security lawyer with the Department of Justice, Leah West, weigh in on what is known so far - and the bar for potential terrorism charges.

There are two things Ottawa could doif it wants to make the law more useful to investigators in this space, said Nesbitt.

The first, he said,would beto improve law enforcement'scapacity to investigateterrorism cases especially those involving perpetrators whoseem to have actedalone and are not tied to established terrorist groups.

The federal government should also do a better job of defining"ideologically motivated" in law, he said.

"To date, we don't have a definition ineither the Criminal Code or from a court judgment defining what ideologically motivated means," he said.

"So if I was the Department of Justice, if I was a lawyer, if I was a politician, I would be looking really hard at whether we could help our investigators by giving a little more certainty as to what 'ideological' or 'political motivation' means."