From probabilities to possibilities: terrorism peace bonds, pre-emptive security, and modulations of criminal law

Abstract

Scholars have noted that pre-emptive security practices have gradually been transforming the probabilistic logics of criminal law towards increasingly possibilistic logics. Our article is focused on the terrorism peace bond regime in Canada since 2015, which provides an explicit illustration of the movement from probabilistic to possibilistic thresholds in criminal law. Documenting specific experiences of terrorism peace bond proceedings through the narratives of defence lawyers involved in recent cases, we focus on several manifestations of possibilistic practices; including the difficulties of contesting accusations about future activities, the erosion of evidentiary standards, conjectural reasoning animated by the racialized character of the ‘war on terror,’ and a reverse onus placed on accused subjects in these proceedings. Contributing to research examining the transformations of criminal law, we suggest that terrorism peace bonds are not an exceptionalist practice but a modulation that allows previously excluded legal norms into a broadened, more authoritarian umbrella of criminal law. To conclude, we position terrorism peace bonds not so much a return to the criminal justice model but as a possibilistic modulation of criminal law that accommodates pre-emptive and racialized practices in more depoliticized forms.