Abstract

Excerpted From: Basema Al-Alami, Manufacturing Terror: R v Nuttall and the Racialization of Islam in Canadian Terrorism Law, 41 Windsor Y.B. Access to Just. 127 (2025). (Full Document) (118 Footnotes omitted.)

On July 1, 2013, John Nuttall and Amanda Korody drove toward the British Columbia Legislature believing they were about to detonate pressure-cooker bombs during Canada Day celebrations. The plan, however, did not originate with them. Undercover RCMP officers scripted the plot, supplied the devices, provided the transportation, and repeatedly directed the couple’s actions. Nuttall and Korody lacked both the means and the capacity to carry out an attack independently. Yet the Crown charged them with terrorism--and a jury returned guilty verdicts--after a trial in which their conversion narratives, Qur’anic readings, black flags, browsing histories, and personal communications became the centre of gravity of the prosecution’s case. What ultimately anchored the terrorism charges was whether the accused could be read as inhabiting the ideological figure of the “Muslim terrorist.”

Four years later, on January 29, 2017, Alexandre Bissonnette entered the Islamic Cultural Centre of Quebec City during evening prayers and murdered six Muslim congregants, wounding nineteen others. He planned the attack alone, executed it with precision, and acted out of explicitly documented anti-Muslim and white nationalist beliefs. Yet the Crown charged him with murder--not terrorism--and his ideology remained marginal to the legal framing of his crimes. The divergence between these cases is not simply procedural. It exposes a deeper structure of meaning within Canadian counterterrorism law: a system in which ideology becomes central when it is Muslim, but peripheral when it is white and far-right. That asymmetry cannot be explained by reference to violence alone. It requires attention to how the law itself organizes threat, ideology, and identity. Since 2001, the Anti-terrorism Act [ATA] has created a distinct legal architecture for terrorism offences grounded in a statutory definition of “terrorist activity” that is unprecedented in Canadian criminal law. Unlike ordinary offences, terrorism requires proof that an act was committed “in whole or in part for a political, religious, or ideological purpose, objective or cause.” This motive requirement has generated parliamentary debate, constitutional litigation, and sustained critique from civil liberties advocates and scholars. Courts have treated it as a limiting device--one intended to preserve the criminal law’s neutrality by confining terrorism prosecutions to ideologically driven violence. What legal scholarship has examined far less closely is how this clause functions in practice: not simply as a doctrinal threshold, but as an interpretive gateway through which identity is read, organized, and given criminal meaning.

Legal critiques of Canada’s counterterrorism framework have largely proceeded within a civil liberties framework, focusing on constitutional limits, expressive freedom, and the dangers of national security overreach. These critiques matter. But they tend to treat terrorism law primarily as a problem of state overreach--as a regime that grants the state too much authority or intrudes unduly on rights. What this regulatory framing leaves largely unexamined is a more foundational problem: not how terrorism law is used, but what it is made of. It assumes that the categories of terrorism law -- “ideology,” “extremism,” “radicalization,” “threat”--are neutral tools that function properly when correctly administered. Race, on this view, enters the picture only through misapplication.

Yet Canadian terrorism law does more than authorize intrusive powers. By embedding motive into the ATA, the law structurally incentivizes the state to investigate, curate, and litigate belief as criminal evidence. It transforms what a person believes, reads, searches, or expresses into a legal problem. In this way, the harm does not arise only from misuse. It arises from the insistence that belief itself is judicially actionable. Once motive becomes an element of the offence, the courtroom is no longer tasked only with adjudicating conduct. It is tasked with deciding who the accused must be for terrorism to make sense. This design feature has racially uneven consequences. The problem is not that one’s belief and ideology become legally relevant per se, but that the legal imagination of “danger” is not distributed evenly across subjects. The figure of the terrorist has long been anchored to Muslimness in political discourse, intelligence practice, and security governance. As a result, the motive clause does not operate on a neutral field of ideological possibility. It renders some forms of belief and political violence legible as terrorism while allowing others--particularly white supremacist and far-right violence--to be absorbed into the grammar of ordinary criminality. The asymmetry between Nuttall and Bissonnette is therefore not simply a failure of prosecutorial choice, but a symptom of how terrorism law organizes whose ideology appears recognizable as “terrorist” in the first place.

Much of the existing literature on Canada’s terrorism framework has approached the motive clause as a site of potential reform. Some scholars argue for retaining the clause while tightening its administration through enhanced oversight, prosecutorial guidelines, or specialized training. Others question whether terrorism can or should be defined in ways that hinge on ideology at all, given the instability and political contingency of the category. These proposals reflect genuine efforts to discipline discretion and to make counterterrorism law more consistent with foundational commitments to fairness and restraint.

This paper does not reject those reformist impulses. But it approaches the problem from a different angle. The analysis here suggests that the motive clause is not the sole source of racialized harm in terrorism prosecutions. Islamophobia does not originate in doctrine alone, nor would it disappear if one statutory element were removed. The racialization of Muslims in national security law is anchored in wider social, political, and historical conditions that predate the ATA and exceed any single legislative provision. Courts do not invent these racial meanings from nothing; rather, they draw upon sedimented cultural narratives, security imaginaries, and political scripts that already frame Muslimness as a site of suspicion.

At the same time, doctrine matters. Legal architecture shapes how those broader social meanings are activated, stabilized, and made consequential inside the courtroom. The motive clause operates as one such conduit. It provides a doctrinal demand for belief to be rendered legible, narratable, and provable. In doing so, it gives institutional form to pre-existing racial logics, translating them into evidentiary practices and juridical common sense. What Nuttall makes visible is not simply the presence of Islamophobia in a trial, but the mechanisms through which law organizes that presence into a structure of proof. The harm, then, does not lie only in social prejudice reflected in legal space. It lies in the way legal form itself participates in producing and authorizing particular readings of identity as risk.

This is why the contribution of this paper is not framed as a set of policy prescriptions. Rather than proposing doctrinal fixes or legislative amendments, the paper offers a micro-ethnography of a terrorism trial in action. By reconstructing how meaning was made in the courtroom--how exhibits were curated, how belief was narrated, how identity was rendered evidentiary-- it seeks to surface the often-invisible processes through which racialized danger is legally assembled. The aim is diagnostic rather than prescriptive: to expose the structural conditions that make certain subjects governable through suspicion in the first place.

Seen this way, Nuttall is a window into how contemporary criminal law, under conditions of national security, reconfigures the boundaries between belief and action, identity and evidence, suspicion and proof. Attending to these dynamics is a necessary step in understanding how legal systems come to govern imagined futures--and how, in the process, they narrow the space of legal belonging for those already positioned as objects of risk.

Basema Al-Alami is an Assistant Professor at the University of Windsor Faculty of Law. Her research sits at the intersection of national security law, evidence, entrapment, and constitutional law.”