BACKGROUND

This chapter of the report deals with the new terrorism offences added to the Criminal Code by Parliament in 2001 when it adopted the Anti-terrorism Act. More particularly, it considers some of the specific offences themselves, as well as the sentences available to the courts in dealing with them.

Section 4 of the Anti-terrorism Act added a new Part II.I to the Code under the heading “Terrorism”, including sections 83.01 to 83.33. The terrorism offences themselves can be found at sections 83.02 to 83.04 and 83.18 to 83.23. To get a sense of these new offences, it is important to have an understanding of two definitions — “terrorist activity” and “terrorist group”. The more controversial of the two is the definition of “terrorist activity”.

The two-part definition of “terrorist activity” can be found in section 83.01(1) of the Code. The first part is defined in paragraph 83.01(1)(a) of the definition as any act or omission committed or threatened inside or outside of Canada with respect to terrorism offences referred to in ten anti-terrorist international conventions entered into by Canada.

The second, more general definition of “terrorist activity” can be found in paragraph 83.01(1)(b) of the definition. A terrorist activity consists of an act or omission committed inside or outside of Canada. Such act or omission must be committed in whole or in part for a political, religious, or ideological purpose, cause or objective. Such act or omission must be committed in whole or in part to intimidate the public, with regard to its security, or to compel a person, a government, or a domestic or international organization to do or refrain from doing something. Further, such act or omission must intentionally cause the death of, or serious bodily harm to, a person (by the use of violence), endanger a person’s life, cause a serious risk to health or safety, cause substantial property damage, or cause serious interference with or disruption of an essential service, facility, or system. For greater certainty, saving provisions (which exclude certain conduct from the scope of the definition) are found in the definition itself and in section 83.01(1.1) of the Code. These refer to activities related to lawful armed conflict under international law, advocacy, protest, dissent or work stoppage, and the expression of religious, political, or ideological belief.

A “terrorist group” is defined for Part II.1 of the Criminal Code in section 83.01(1) as an entity that has as one of its purposes or activities the facilitation or carrying out of terrorist activity, or a “listed entity” as determined under section 83.05.

The terrorist activity offences added to the Code by the Anti-terrorism Act are here only described in general terms. They will be discussed in greater detail as the Subcommittee sets out its findings and recommendations later in this chapter.

Section 83.02 of the Code makes the collection or provision of property for terrorist or certain other activities an indictable offence punishable by up to ten years imprisonment. Section 83.03 makes the provision or making available of property or financial or other related services for terrorist activity, or to be used by or benefit a terrorist group, an indictable offence punishable by imprisonment for up to ten years. Section 83.04 makes the direct or indirect use or possession of property for terrorist activity an indictable offence punishable by imprisonment for up to ten years.

Sections 83.18 to 83.23 deal with participating in, facilitating and instructing terrorist activities, as well as harbouring terrorists. Some of these offences deal with terrorist groups, while others deal with terrorist activity.

Section 83.18 makes participation in the activity of a terrorist group an indictable offence punishable by up to ten years imprisonment. Section 83.19 makes the facilitation of terrorist activity an indictable offence punishable by imprisonment for up to fourteen years.

Section 83.2 of the Code makes the commission of an indictable offence at the direction of, or in association with, a terrorist group an indictable offence punishable by up to life imprisonment. Section 83.21 makes instruction of the direct or indirect carrying out of an activity for the benefit of a terrorist group an indictable offence punishable by up to life imprisonment. Section 83.22 makes the direct or indirect instruction of a person to carry out terrorist activity an indictable offence punishable by up to life imprisonment. Harbouring a person who has engaged in terrorist activity is punishable under section 83.23 by indictment by up to ten years imprisonment.

Finally, section 83.26 provides that sentences for terrorism offences, other than life imprisonment, are to be served consecutively to any other sentence of imprisonment.

The consent of the Attorney General of Canada, or the attorney general or solicitor general of the province where the terrorism offence is alleged to have been committed, is required for any prosecution under the part of the Code dealing with terrorism.

Section 9 of the Anti-terrorism Act amended section 231 of the Criminal Code. It created the new offence of first degree murder for a homicide resulting from the commission or attempted commission of a terrorism offence. First degree murder is punishable by a minimum sentence of life imprisonment, and a twenty-five year parole ineligibility period. Bill C-24, adopted in 2001 by Parliament to deal with criminal organizations, contained a similar provision relating to homicide resulting from the intimidation of justice system participants.

Sections 20 and 21 of the Anti-terrorism Act deal with the sentencing of those convicted of terrorism offences. Section 20 amended section 718.2 of the Criminal Code so that sentencing judges are required to take into account participation in a terrorism offence as an aggravating circumstance in determining what penalty to impose on the convicted person.

Section 21 of the Act amended section 743.6 of the Criminal Code. Where a person has been sentenced for a terrorism offence to a term in excess of two years imprisonment, the sentencing judge is required to establish a parole ineligibility period of one-half the sentence or ten years, whichever is less. The normal parole ineligibility period is one-third of the sentence or seven years, whichever is less. The Code already provided discretion to sentencing judges to increase parole ineligibility to one-half of sentence or ten years, whichever is less, in relation to designated personal harm offences or criminal organization offences. Bill C-24, referred to above, contained a provision requiring sentencing judges to increase parole ineligibility periods in relation to three new organized crime offences.

There have so far been only two known cases in Canada involving prosecutions under the terrorism offences enacted by the Anti-terrorism Act. Ottawa resident Mohammad Momin Khawaja was charged in March, 2004. The case, on which there is a publication ban, is still before the courts (there has been a judgment by the trial judge on elements of the charges — there will be some discussion of this decision in the next part of this chapter). In June and August 2006, 18 men in the Toronto area were charged with terrorism offences under the Criminal Code. These cases, on which there is also a publication ban, are still before the courts.

ISSUES OF CONCERN

Definition of “Terrorist Activity”

The briefs and submissions considered by the Subcommittee in this area related largely to the definition of terrorist activity contained in the Code. It is obvious from a reading of the definition itself, even as summarized in general terms earlier in this chapter, that it is complex and not easily fully understood on even a close reading. There is little doubt that the definition is wide-ranging. It is not surprising, however, that Parliament adopted a definition with this degree of complexity and flexibility. The phenomenon it attempts to define for criminal law purposes, terrorist activity in the early twenty-first century, is constantly changing in the forms and actions it takes. As well, to fully counter terrorism these days, it is often necessary to allow for preventive or pre-emptive action so as to effectively disrupt any emerging or nascent terrorist activity before it develops the capacity to manifest itself in concrete ways, with the damage that it may cause. It is within this context that Parliament adopted the definition of terrorist activity now contained in section 83.01(1) of the Criminal Code.

The Subcommittee did, however, consider during its deliberations other definitions of terrorist activity proposed in briefs and submissions. In particular, it reviewed the definition of terrorist activity contained in the UN International Convention for the Suppression of the Financing of Terrorism. It found that definition to be too narrow, focusing on activities involving only serious violence, for example. The Subcommittee prefers the definition adopted by Parliament in 2001.

The other issue to which the Subcommittee turned its attention was the political, religious, or ideological motive for a terrorist activity. Anti-terrorist legislation in both Britain and Australia also contain a similar motive requirement. Concerns were expressed in briefs and submissions about the impact this element of the definition has had on particular ethno-cultural groups in Canada, especially the Muslim and Arab communities. Some believe this element of motive to be an invitation to racial and religious profiling by law enforcement and intelligence agencies, due at least in part to the requirement to investigate the political, religious, or ideological motive for suspected terrorist activity. The effect has been to cause members of these minority communities to feel unjustly targeted and consequently marginalized within Canadian society.

When questioned about the practice of racial and religious profiling, law enforcement and intelligence agencies denied they engage in such activity, saying it is not useful for effective investigations and intelligence assessments. Then-Commissioner of the Royal Canadian Mounted Police (RCMP), Giuliano Zaccardelli, told the predecessor to this Subcommittee on June 1, 2005 that the force does not engage in racial profiling, but carries out criminal profiling.

Because of the impact of the motive element of the definition of terrorist activity, it has been proposed in some of the submissions the Subcommittee has reviewed that it be removed. This was recommended by Amnesty International, B’nai Brith Canada, and in the joint submission by the Canadian Arab Federation, Canadian Council on Islamic-American Relations, and the Canadian Muslim Lawyers Association.

Former RCMP Commissioner Zaccardelli told the predecessor to this Subcommittee that the motive requirement limits the ability of enforcement agencies to go after certain people, and is actually a safeguard built into the legislation. When he appeared before the Subcommittee in June 2006, then-Justice Minister Vic Toews also discussed this position, saying that removal of the motive element of the definition would likely make the jobs of investigators and prosecutors easier in relation to the nature of some of the evidence they would have to adduce to obtain convictions.

In the October 24, 2006 decision by Justice Rutherford of the Ontario Superior Court in R. v. Khawaja ¹, the motive element was severed from the definition of terrorist activity because it was in violation of the Charter-guaranteed freedoms of religion, expression, and association. In a challenge to the constitutionality of the criminal charges against the accused and an attempt to have them quashed, this was the only argument that was successful. The irony of this challenge by the accused and the outcome is that the Crown now has one less element of the criminal offence which it has to prove beyond a reasonable doubt. Undoubtedly surprised by the outcome of the constitutional challenge, the accused has applied to the Supreme Court of Canada for leave to appeal the decision by the trial judge, thus causing the beginning of the trial on the merits to be further delayed.

The ruling by Justice Rutherford in the Khawaja case demonstrates in stark terms the result of removing the motive requirement as a constituent element of the definition of terrorist activity. Although the inclusion of motive as a part of a criminal offence to be proven beyond a reasonable doubt is unusual, if not unprecedented in Canada, it constitutes a safeguard in this context. For these reasons, the Subcommittee has concluded that the political, religious, or ideological motive element of the definition of terrorist activity should be retained.  At the same time, it is acknowledged that the scope of what constitutes a terrorist activity is still before the courts and that future judgments may have a bearing on the issue.

RECOMMENDATION 1

The Subcommittee recommends that the definition of “terrorist activity” contained in section 83.01(1) of the Criminal Code not be amended.

Concerns of Minority Communities

Although the Subcommittee has recommended no amendment to the definition of “terrorist activity”, this does not end the matter. The concerns expressed by minority communities about racial and religious profiling by law enforcement and intelligence agencies must be taken seriously and addressed effectively and directly.

A number of steps have been taken by law enforcement and intelligence agencies to respond to these concerns. The Government of Canada has established a Cross-Cultural Roundtable on Security. Meeting regularly, it facilitates a broad-based range of information exchange on the impact of national security issues and actions on ethno-cultural communities across Canada.

As part of its implementation of the Government of Canada’s Action Plan against Racism, the RCMP has undertaken a number of initiatives. It has adopted a Bias Free Policing Strategy so as to address allegations of religious and racial profiling and to maintain high quality policing services for all Canadians. Part of this strategy includes outreach to visible minority and other communities. Members of the RCMP receive training throughout their careers to foster their sensitivity to the full cultural diversity of
Canada. All members of the RCMP are expected to engage in such community outreach activities as part of their regular duties. The Commissioner’s Advisory Committee on Visible Minorities meets regularly.

CSIS has also adopted a number of policies to address the issues being considered in this part of the report. Its employment practices and policies encourage the hiring of personnel from all parts of Canadian society so as to reflect its cultural diversity. Many of its Intelligence Officers have lived in and traveled to many parts of the world. This experience allows them to better understand and be sensitive to cultural differences. In carrying out their functions, CSIS investigators are aware of the concerns expressed by minority communities and are expected to follow detailed policy guidance on how to conduct interviews in a respectful way. Cross-cultural training is an integral part of the core courses taken by Intelligence Officers. CSIS has a public liaison program, primarily staffed by volunteers, who provide briefings to community groups on request. CSIS regional offices also have outreach programs which include meetings with community leaders.

This is a brief overview of some of the activities undertaken by government agencies. Although these agencies have taken important steps, concerns about racial and religious profiling are still being expressed by many community leaders and others. This must be taken seriously. While the Subcommittee makes no specific recommendations on how best to respond to concerns about racial and religious profiling, much more has to be done in consultation with the affected ethno-cultural communities to address these concerns.

Glorification of Terrorist Activity

Freedom of expression is a core constitutionally guaranteed right which is central to a healthy democracy in Canada. There are occasions, however, when this freedom is abused or misused by those whose commitment to an open, pluralistic society is questionable.

Such was the case in the 1960’s when a small number of racist neo-nazi groups and individuals distributed hate propaganda in the form of leaflets, pamphlets and newspapers. This distribution targeted young people in particular. With the memory of World War II and the hatred that was promulgated by a nazi regime still fresh in the minds of Canadians, Parliament adopted amendments to the Criminal Code making the communication of hate promotion material a criminal offence. These provisions can still be found in the Code at sections 318 to 320.1. There have only been a small number of prosecutions under this part of the Code. As well, these sections have been found by the Supreme Court of Canada to be consistent with freedom of expression. This is so because they contain a number of safeguards built right into them.

A serious worry about the incitement or glorification of terrorist activity was raised by B’nai Brith Canada in its brief. In particular, it expressed concern about the impact of teachings consisting of glorification of or incitement to terrorist activity on the youth in some communities. It recommended that the Criminal Code be amended so as to make the incitement to terrorist activity an offence. This offence would be directed at those who foment, glorify, or condone terrorism. The Subcommittee agrees with this recommendation in principle, but believes it must be further developed as follows.

This type of criminal legislation is not unknown. Britain’s Terrorism Act, 2006 includes such an offence at section 1. As well, any proposed legislation in Canada to address this issue can be modelled, in part, on the hate propaganda provisions found in the Criminal Code.

The British legislation makes it an offence at section 1(1) and (3) to make statements likely to be understood by members of the public as indirectly encouraging the commission or preparation of terrorist acts. Such statements are defined as including the glorification of the commission or preparation of terrorist acts, whether current or past, and the glorification of such acts as conduct to be emulated. “Glorification” is defined at section 20(2) as “any form of praise or celebration”. This offence is punishable on indictment by imprisonment of up to seven years and/or a fine, or on summary conviction by imprisonment of up to six or twelve months and/or a fine.

As mentioned earlier, the Criminal Code contains hate propaganda offences that not only prohibit such activity, in particular at section 319(2), but also include measures intended to protect the constitutionally entrenched freedom of expression. The Code requires that the provincial attorney general consent to any hate propaganda prosecution. As well, judicial interpretation has resulted in the prosecution having to prove specific intent to promote hatred by the acts for which criminal sanction is being sought. Finally, these Code provisions make special defences available to anyone charged with these hate propaganda offences. The special defences, found at section 319(3), allow the accused to argue that the impugned statements are true; they were expressed in good faith on a religious subject or a belief in a religious text; they were expressed on a subject of public interest and there were reasonable grounds to believe they were true; or they were made in good faith and with an intention to point out matters which tend to produce feelings of hatred, for the purpose of the removal of those matters.

The hate propaganda provisions in Canada and the terrorism glorification provisions in Britain share some similarity in terms of the historical contexts within which they were adopted. They were both put into place to address abuses of freedom of expression which had as their goal the subversion, if not the outright negation, of important elements of open, inclusive societies. They are different in that the hate propaganda measures in Canada are intended to assure and protect the dignity of identifiable groups, and the British anti-glorification of terrorism provision is intended to prohibit acts that may lead to large-scale destruction to that society as a whole.

The Subcommittee believes that the hate propaganda offences now contained in the Criminal Code are not adequate to address the glorification and encouraged emulation of terrorist activity. As well, the Code terrorist activity offences dealing with the intentional facilitation of, instruction of, or participation in such acts are also inadequate to address the situation within which the glorification or incitement is expressed to the public, and no particular individuals are encouraged to emulate any specific actions. Such expressive behaviour is diffuse and untargeted.

Not only does the Subcommittee believe that there should be a new offence added to the Code to address the glorification of terrorist activity for the purpose of emulation, it also believes that any such amendment should require the consent of the provincial attorney general to any prosecution, require the prosecution to prove that the accused specifically intended to glorify terrorist activity for the purpose of emulation, and make available to the accused special defences similar to those included in the hate propaganda provisions of the Code.

RECOMMENDATION 2

The Subcommittee recommends that the Criminal Code be amended to make it an offence to glorify terrorist activity for the purpose of emulation. Any such amendment should require the consent of the provincial attorney general to a prosecution, require the prosecution to prove that the accused intended to encourage emulation by the glorification of terrorist activity, and make available to the accused special defences similar to those included in section 319(3) of the Code.

The Facilitation Offence and Legal Services

Concern has been expressed by the legal profession about whether the provision of legal services to those accused of terrorism offences could lead to criminal charges against those providing such services. More particularly, the Canadian Bar Association in its brief said that the expansive definition of participating in or contributing to an activity of a terrorist group, set out in section 83.18 of the Criminal Code, includes providing or offering to provide a skill or expertise for the benefit of an accused terrorist or terrorist group. It said that lawyers representing those accused of terrorism offences could be seen as providing a skill or expertise for the benefit of a terrorist group. As well, the Association pointed out, the court dealing with such a prosecution is required by subsection 83.18(4) of the Code to consider association with a terrorist group as a factor in determining whether a participation or facilitation offence has been proven. They worried that this could also include defence counsel acting on behalf of a person or group charged with a terrorism offence.

Based on these observations, the Canadian Bar Association recommended that the Criminal Code be amended so as to specifically exclude counsel providing legal services to those accused of terrorism offences from the ambit of section 83.18. A similar recommendation was also made by the Federation of Law Societies of Canada.

Anyone charged with criminal offences faces serious consequences if convicted. The most serious of these is the deprivation of liberty for a definite or indefinite period. Terrorism offence charges are not only serious, but the limited experience with them so far in Canada shows that they involve complex procedural, disclosure, and other legal issues. Thus, access to legal counsel by those charged with terrorism offences is essential for the process to be fair, and to allow for full answer and defence. The rule of law requires that counsel acting on behalf of accused persons be able to carry out their functions without fear of the consequences of doing so, in conformity with the codes of ethics applicable to the legal profession.

Because the Subcommittee subscribes to the comments set out in the preceding paragraph, it agrees with the purpose underlying the recommendation made by both the Canadian Bar Association and the Federation of Law Societies of Canada.

RECOMMENDATION 3

The Subcommittee recommends that section 83.18 of the Criminal Code be amended so as to ensure that counsel providing legal services to those accused of terrorism offences can properly act on their behalf without fear of being charged themselves with terrorism offences.

OTHER RECOMMENDED AMENDMENTS

References to Government

The Subcommittee notes that certain provisions amended or enacted by the
Anti-terrorism Act refer to governments within Canada in an inconsistent manner. Sometimes, the phrase “the Government of Canada or of a province” is used, as in section 7(3.71), (3.72), (3.73) and (3.75) of the Criminal Code, which refer to an act or omission committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act. The same reference to government is used in paragraphs 3(1)(e) and 3(1)(f) of the Security of Information Act, which include, in what constitutes a purpose prejudicial to the interests of the State, endangering a person or damaging property by reason of the fact that the person is doing business with or on behalf of the Government of Canada or of a province. However, in paragraph 3(1)(d), the Security of Information Act more broadly refers to particular conduct that has a significant adverse impact on the functioning of “any government in Canada.”

The Subcommittee believes that wherever the narrower phrase “the Government of Canada or of a province” is used in the Anti-terrorism Act, it neglects other legitimate forms of government, namely territorial and municipal governments, including regional and urban authorities. Unless there is a reason to exclude certain types of governments, or the context dictates otherwise, the Subcommittee accordingly suggests that wherever the narrower phrase is used to refer to a government within Canada, it should be replaced by the broader phrase “any government in Canada.” Amendments would not be required where the Anti-terrorism Act already refers, even more broadly, to “a government,” as it does in clause (b)(i)(B) of the definition of “terrorist activity” in section 83.01 of the Criminal Code. These broadest references are already taken to include any government within Canada, and moreover, may include foreign governments.

RECOMMENDATION 4

The Subcommittee recommends that, unless the context dictates otherwise, the words “the Government of Canada or of a province” be replaced by the words “any government in Canada” throughout the provisions enacted or amended by the Anti-terrorism Act.

References to a Person

The Anti-terrorism Act added a definition for “entity” to section 83.01 of the Criminal Code. It means “a person, group, trust, partnership or fund or an unincorporated association or organization.” However, the definition of terrorist activity only refers to an intention to compel a person, a government or a domestic or international organization to do or not do something. The Subcommittee believes that the word “person” should be replaced by the broader term “entity,” in order for a terrorist activity to clearly include acts that are intended to influence other types of entities.

RECOMMENDATION 5

The Subcommittee recommends that the words “a person” and “the person” be replaced, respectively, by the words “an entity” and “the entity” in clause (b)(i)(B) of the definition of “terrorist activity” in section 83.01 of the Criminal Code.

Definition of “Terrorism Offence”

In addition to enacting a definition for “terrorist activity” in section 83.01 of the Criminal Code, the Anti-terrorism Act enacted a definition for “terrorism offence” in section 2. A terrorism offence includes, in paragraph (c), “an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.” The Subcommittee questions why terrorist activity is not in and of itself a terrorism offence, regardless of whether the act also constitutes another indictable offence.

We find it odd, for instance, that an arrest without a warrant is possible under section 83.3 of the Criminal Code to prevent a “terrorist activity” from being carried out, yet carrying out the terrorist activity is not itself an offence unless it includes the commission of another indictable offence. Another oddity is that facilitating a terrorist activity is clearly made an offence under the Code, yet the actual undertaking of the terrorist activity would not necessarily be an offence as the Code presently reads. We believe that Canadians would be very surprised to learn that the commission of a terrorist activity may not automatically be a terrorism offence. As the objective of the Anti-terrorism Act is to prevent and punish terrorist conduct generally, we believe that any terrorist activity should automatically be a terrorism offence. This would also allow investigative hearings, which are only possible under section 83.28 in relation to a “terrorism offence,” to be available for a broader range of terrorist conduct. In other words, an amendment equating a terrorism offence with a terrorist activity would allow all terrorist activity to be subject to certain preventive tools.

Accordingly, paragraph (c) of the definition of “terrorism offence” in the Criminal Code should be replaced by simply “a terrorist activity.” A comparable amendment should also be made to the definition of “terrorism offence” in subsection 2(1) of the National Defence Act.² The Subcommittee does not believe that expanding the meaning of terrorism offence in this way will inappropriately increase the number of individuals targeted by the Anti-terrorist Act, as terrorist activity is limited to an offence under various United Nations conventions, or an act or omission that, with the requisite motive, intentionally causes certain categories of very serious harm.

RECOMMENDATION 6

The Subcommittee recommends that the words “an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2 of the Criminal Code.

RECOMMENDATION 7

The Subcommittee recommends that the words “an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2(1) of the National Defence Act.

Participating in or Facilitating Terrorist Activity

Under paragraphs 83.18(3)(c) and (e) of the Criminal Code, participating in or contributing to an activity of a terrorist group includes recruiting a person, or making oneself available, to facilitate or commit (i) “a terrorism offence,” or (ii) “an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.” For similar reasons to those discussed earlier, the Subcommittee believes that the reference to terrorism offence is too narrow and should be replaced by a reference to terrorist activity. We also note that subsections 83.18(1) and (2) refer more broadly to facilitating or carrying out a “terrorist activity.” The words “facilitate or commit a terrorism offence” in subparagraphs (3)(c)(i) and (e)(i) should therefore be changed to “facilitate or carry out a terrorist activity.” As a terrorist activity already includes acts or omissions outside Canada, subparagraphs (3)(c)(ii) and (e)(ii) may be removed altogether.

RECOMMENDATION 8

The Subcommittee recommends that the words “commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence” be replaced by “carry out a terrorist activity” in paragraphs 83.18(3)(c) and (e) of the Criminal Code.

Instructing Terrorist Activity

Sections 83.21(1) and 83.22(1) of the Criminal Code set out the offences of instructing a person to carry out an activity for a terrorist group, and instructing a person to carry out a terrorist activity. However, these sections do not make it an offence to instruct another person to facilitate a terrorist activity. As both facilitating and carrying out terrorist activity are prohibited elsewhere, the Subcommittee believes that it should be an offence to instruct a person to facilitate or carry out a terrorist activity or an activity for a terrorist group. “Instructing to facilitate” should accordingly be added to sections 83.21 and 83.22.

RECOMMENDATION 9

The Subcommittee recommends that the words “facilitate or” be added before the first instance of the words “carry out” in sections 83.21(1) and 83.22(1) of the Criminal Code.

The Subcommittee further notes that the English versions of sections 83.21 and 83.22 begin with the phrase “Every person who …” whereas sections 83.18, 83.19, 83.2 and 83.23 begin with “Every one who …” Sections 83.21 and 83.22 should be amended for consistency.

RECOMMENDATION 10

The Subcommittee recommends that the words “Every person” be replaced by the words “Every one” in the English versions of sections 83.21(1) and 83.22(1) of the Criminal Code.

Finally, the Subcommittee believes that it should be an offence to instruct an entity, the definition of which includes a person, rather than only an offence to instruct a person, to facilitate or carry out a terrorist activity or activity for a terrorist group. As discussed earlier, “entity” is a broader term. It also includes a group, partnership, association or organization, all of which may be instructed, even if no one person is specifically instructed or carries out the activity. We therefore suggest that the term “entity” be used instead of “person” throughout sections 83.21 and 83.22, unless the context dictates otherwise. For example, each of the paragraphs 2(b) in those sections should continue to state that an offence may be committed whether or not the accused instructs a particular “person,” as the context refers to a single individual.

The Subcommittee considered whether “entity” should also replace “person” in various provisions of section 83.18, which refer to “recruiting a person” and “the persons who constitute the terrorist group.” However, the contexts suggest that a reference to “person” is not under-inclusive, as at least one person will necessarily have been recruited or be part of the terrorist group.

RECOMMENDATION 11

The Subcommittee recommends that the words “any person” and “the person” be replaced, respectively, by the words “any entity” and “the entity” in sections 83.21(1), 83.21(2)(c) and (d), 83.22(1), and 83.22(2)(c) and (d) of the Criminal Code.

Harbouring or Concealing

The Anti-terrorism Act created the new offence of harbouring or concealing a person who has carried out a past terrorist activity, or is likely to carry out a future terrorist activity. In either case, as currently worded, it is only an offence to harbour or conceal a person if it is for the purpose of enabling the person to facilitate or carry out any terrorist activity. However, the Subcommittee believes that harbouring or concealing a person who has already carried out a terrorist activity should be an offence, regardless of whether the person being harboured or concealed intends to carry out a further terrorist activity. In other words, the “purpose” clause should only apply to a person accused of harbouring or concealing a person who is likely to carry out a future terrorist activity. With respect to a possible future event, which the accused cannot know for certain will occur, we also raise the possibility that, rather than “knowing,” section 83.23 should say that the person “has reason to believe and does believe” that the event will occur, although we do not make a specific recommendation in this regard.

The Subcommittee does not believe that removing the “purpose” clause in respect of past terrorist activity will inappropriately broaden the offence, as an accused person must knowingly harbour or conceal as well as know that a past terrorist activity has been carried out. We also note that a comparable offence in section 54 of the Criminal Code, dealing with harbouring or concealing a deserter or absentee from the Canadian Forces, does not have a limiting purpose clause. The Subcommittee further believes that concerns about broadening the offence in section 83.23 may be alleviated, in part, by replacing the word “héberge” by “recèle” in the French version. “Héberger” may be taken to mean provide shelter or lodging to a person, whereas “receler” more closely corresponds to the English “harbour.” Use of the words “cache et recèle” in section 83.23 of the Criminal Code would also render it consistent with the terminology used in section 54.

RECOMMENDATION 12

The Subcommittee recommends that section 83.23 of the Criminal Code be replaced by the following:

     “Every one who knowingly harbours or conceals any person whom he or      she knows to be a person who

     (a)       has carried out a terrorist activity, or

     (b)       is likely to carry out a terrorist activity, for the purpose of enabling the      person to facilitate or carry out any terrorist activity,

     is guilty of an indictable offence and liable to imprisonment for a term not      exceeding ten years.”

Further, the word “héberge” should be replaced by the word “recèle” in the French version of the section.

Punishment for Participation in a Terrorist Activity

Section 83.18 of the Criminal Code sets out a punishment for knowingly participating in any activity of a terrorist group. Section 83.19 sets out a punishment for knowingly facilitating a terrorist activity. However, there is no punishment for participating in a terrorist activity, which conduct is not the same as participating in the activity of a terrorist group, and has distinct consequences for other purposes of the Criminal Code (e.g., the listing of an entity under section 83.05). The Subcommittee believes that a penalty should be established for the offence of participating in a terrorist activity and that it should be up to life imprisonment.

RECOMMENDATION 13

The Subcommittee recommends that the Criminal Code be amended to provide that every one who knowingly participates in a terrorist activity is guilty of an indictable offence and liable to imprisonment for up to life.

Punishment for Committing an Offence for a Terrorist Group

Section 83.2 of the Criminal Code states that every one who commits an indictable offence for the benefit of, at the direction of or in association with a terrorist group is liable to imprisonment for life. Although section 83.26 states that certain sentences are to be served consecutively where they are imposed for offences arising out of the same event, we believe that there is ambiguity as to whether or not the punishment under section 83.2 is in addition to the punishment for the underlying indictable offence. An amendment should be made for clarity.

RECOMMENDATION 14

The Subcommittee recommends that the words “in addition to any penalty imposed for the commission of the original indictable offence” be added at the end of section 83.2 of the Criminal Code.

Location of Proceedings

The Anti-terrorism Act enacted section 83.25 of the Criminal Code, which gives the Attorney General of Canada the discretion to commence proceedings anywhere in Canada against a person accused of a terrorism offence, regardless of whether the accused is in Canada, where the offence was committed, and whether proceedings have already been commenced elsewhere in Canada. The Subcommittee appreciates that, in order to bring an alleged terrorist to justice, there must be jurisdiction to hold a trial in Canada if the accused does not reside here or the offence was committed outside the country. We also understand that, even when the accused resides in Canada, there may be legitimate reasons to choose one province or territory over another, or move the location of proceedings from one jurisdiction to another. This might be warranted, for example, if the offence, co-accused persons or witnesses have a closer connection to another jurisdiction, or the trial is so complex that it must be held in a city having special court facilities to accommodate a large number of parties, language interpretation or security needs.

The Subcommittee has no significant concerns about the ability of the Attorney General to choose an appropriate territorial division in Canada to commence proceedings against a person who is not in Canada, although we believe that it should generally be where the accused normally resides in Canada, if applicable, or where the offence was committed, if it occurred in Canada. We also believe that, where the accused person is already in Canada, the usual rules for selecting the appropriate jurisdiction should almost always apply. With this in mind, the Subcommittee believes that section 83.25 is too broad. It gives the Attorney General of Canada unfettered discretion to choose or switch the location without any indication of the acceptable reasons or the factors to consider. This is a particular concern, given that the location of the proceedings may have a detrimental effect on an accused person who resides in a different jurisdiction, or who has already engaged counsel there. We therefore believe that, in order to hold proceedings in a jurisdiction that would not be the one used under the normal rules of criminal procedure, or move the proceedings to a different jurisdiction after they have already been commenced elsewhere in Canada, the Attorney General should be required to make application to a court, specifying the reason for the desired location. The court would then decide whether to permit the proceedings to be held in that location, after considering the reasons of the Attorney General and the impact on the accused.

RECOMMENDATION 15

The Subcommittee recommends that section 83.25 of the Criminal Code be amended so that the Attorney General of Canada is required to make an application to a court in order to commence proceedings in a territorial division that would not be the one normally used, or continue them in a different territorial division in Canada after they have already been commenced elsewhere in Canada. Any such amendment should set out the acceptable reasons for choosing a different location for the proceedings, and the factors to be considered by the court in considering the application.