BACKGROUND

Section 4 of the Anti-terrorism Act added sections 83.05 to 83.07 to the Criminal Code dealing with the listing of “terrorist entities”. Section 83.05 provides the process by which Cabinet, on recommendation of the Minister of Public Safety and Emergency Preparedness, can list entities involved in or facilitating terrorist activities. To list such an entity by regulation, Cabinet must be satisfied that there are reasonable grounds to believe that the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorism offence, or the entity is knowingly acting on behalf of, at the direction of, or in collaboration with an entity described earlier in the provision. The Minister may only make a recommendation for listing if he or she has reasonable grounds to believe an entity meets the established criteria for inclusion.

A listed entity may apply to the Minister to be removed from the list. The Minister is to decide whether there are reasonable grounds to recommend to Cabinet that the entity no longer be listed. If the Minister does not make a decision on the application within sixty days, the applicant is deemed to remain a listed entity. The Minister is required to give notice without delay of any decision or deemed decision. Within sixty days of the decision, the applicant may apply for judicial review to the Chief Justice of the Federal Court or a judge of that court designated by the Chief Justice. Sections 83.05(6) and (6.1) and 83.06 of the Code contain special evidentiary provisions for dealing with sensitive and confidential information presented to the judge. The Minister is required to have published in the Canada Gazette notice of any final court order that an applicant no longer be a listed entity.

The Minister is to review the list two years after it was established, and every two years thereafter, to determine whether there are reasonable grounds to recommend to Cabinet whether an entity should remain on the list. Once the review has been completed, the Minister is required to publish in the Canada Gazette a notice of its completion.

Section 83.07 of the Code allows for an entity claiming not to be a listed entity to apply to the Minister for a certificate stating that it is not listed. The Minister must, within fifteen days of receiving the application, issue such a certificate if satisfied that the entity is not listed.

There are two other terrorist entity listing regimes besides the one set out in the Criminal Code. The first is established under the Regulations Implementing the United Nations Resolution on the Suppression of Terrorism (UNSTR) and the other is established under the United Nations Al Qaida and Taliban Regulations (UNAR). The UNSTR and UNAR respectively implement United Nations Security Council Resolutions 1373 and 1267. The implementation of these two terrorist entity listing regimes is the responsibility of the Minister of Foreign Affairs.

Amendments to the UNSTR in June, 2006 harmonized the two sets of regulations and the listing regime under the Criminal Code in order to abolish multiple listings, thus avoiding duplication. Consequently, individuals and organizations can only be placed on one list. The Code list now contains 40 organizations, while 36 names, both individuals and organizations, are found on the UNSTR list.

The lists differ in the tests to be applied to add names to them and in the legal consequences that flow from being listed. Insofar as the Code list is concerned, section 83.05 requires that there be reasonable grounds to believe that the entity to be listed has knowingly been involved in a terrorist activity or has knowingly assisted a terrorist group. The test for being added to the UNSTR list does not include the knowledge test, but requires that there be reasonable grounds to believe that the entity has participated in a terrorist activity. The UNAR, prohibiting dealing with Usama bin Laden, Al Qaida, and the Taliban, mirrors the list established by the United Nations Security Council Committee.

An entity included on the Code list is automatically defined as a terrorist group — this is not the case for entities included on the two other lists. If criminal charges are laid with respect to an entity listed under the Code, it is not necessary to prove that the entity is a terrorist group. Any such charges laid in relation to entities on the other two lists would require proof that the entity is a terrorist group.

ISSUES OF CONCERN

Multiple Lists

In its brief, B’nai Brith Canada addressed the existence of three lists of terrorist entities, although the ones it was referring to were those under the Code, the UNSTR, and the Charities Registration (Security Information) Act. It says that the existence of three separate listings and the fact that the lists are administered by different government departments are of concern to it.

Organizations whose charitable status has been denied or revoked under the Charities Registration (Security Information) Act, which was included as part of the Anti-terrorism Act, are not terrorist entities per se. Rather, they are organizations found to have assisted a terrorist entity. Moreover, it appears that the provisions of the Charities Registration (Security Information) Act have not been used to the Subcommittee’s knowledge. This means that a list of de-registered charities does not yet exist. The Subcommittee will deal with the de-registration of charities in the next chapter of the report.

Nonetheless, the recommendation made by B’nai Brith Canada that multiple lists be consolidated reflects a concern shared by the Subcommittee. Although steps have been taken to eliminate the multiple listing of entities, there are still other issues to be addressed. The three terrorist entity lists, under the Code, UNSTR and UNAR, are administered by two departments under the responsibility of different ministers — the Minister of Foreign Affairs and the Minister of Public Safety and Emergency Preparedness.¹ As well, the applicable tests to be added to the lists, and the legal consequences of being so added, differ among the three lists. The Subcommittee believes consideration should be given to further integrating the three terrorist entity lists, insofar as the departmental administration, applicable test for inclusion, and legal consequences flowing from such inclusion are concerned.

RECOMMENDATION 23

The Subcommittee recommends that consideration be given to further integrating the terrorist entity listing regimes established under the Criminal Code, the Regulations Implementing the United Nations Resolution on the Suppression of Terrorism, and the United Nations Al Qaida and Taliban Regulations insofar as the departmental administration, applicable test for inclusion, and legal consequences of listing are concerned.

Section 83.05(5) of the Code allows for judicial review by the Federal Court of a decision by the Minister of Public Safety and Emergency Preparedness not to remove an entity from the list. Subsection (6) allows the Federal Court to examine in private criminal or security intelligence reports, hear some or all of the evidence presented by the Minister of Public Safety and Emergency Preparedness in an ex parte, in camera proceeding, and provide the applicant for judicial review with a summary of the sensitive evidence adduced in that person’s absence. A similar process is in place within the context of the de-registration of charities process, proceedings under the Canada Evidence Act, and security certificates under the Immigration and Refugee Protection Act. Each of these processes is discussed separately elsewhere in our report.

A number of briefs considered by the Subcommittee have proposed that a special advocate or amicus curiae scheme be put in place in relation to each of these processes. Rather than addressing this issue within each of these contexts, the Subcommittee deals comprehensively with this subject in a separate chapter later in the report.

OTHER RECOMMENDED AMENDMENTS

Ministerial Review of a Decision to List

Under section 83.05(2) of the Criminal Code, an entity that has been listed by the Governor in Council, on recommendation of the Minister of Public Safety and Emergency Preparedness, must first apply in writing to the Minister if it believes that it should not be a listed entity. Only after a decision has been made by the Minister, or one is deemed to be made, is the listed entity entitled to apply for judicial review. The Subcommittee believes that it is unfair to require a listed entity that believes that it has been improperly listed to first make application to the person who recently recommended the listing in the first place. At most, an application to the Minister should be optional. If it wishes instead, a listed entity should be able to apply directly to a court under subsection 83.05(5) for review of the initial decision to list.

RECOMMENDATION 24

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, when a listed entity wishes to have an initial decision to list reviewed, it is not required to make an application to the Minister of Public Safety and Emergency Preparedness under subsection (2), but may instead apply directly to a court under subsection (5).

Although the Subcommittee believes that a listed entity should have immediate recourse to a court in the context of an application to have the initial decision to list reviewed, we have no concern, due to the lapse of time and possibly new information, that there must first be an application to the Minister of Public Safety and Emergency Preparedness in the context of a subsequent application under subsection 83.05(8), namely one based on a material change in circumstances or following a two-year review under subsection 83.05(9).

However, the Subcommittee notes some difficulty with the current wording of section 83.05 in that it is not clearly stated that the Governor in Council (i.e., Cabinet) makes the final decision regarding whether an entity should remain on or be removed from the list. While subsection (1) states that the initial listing of an entity is made by the Governor in Council on recommendation of the Minister, other subsections referring to ministerial recommendations do not clearly indicate that the Governor in Council considers the recommendation and either accepts or rejects it. In fact, subsection (4) appears to assume that a recommendation by the Minister becomes the final decision, which is then communicated to the applicant, who has 60 days to apply for judicial review.

To provide clarity and consistency, the Subcommittee believes that amendments should be made to indicate that a ministerial recommendation under subsections 83.05(2), (3) and (9) to retain an entity on the list, or remove it, always results in the Governor in Council making the final decision. Further, there should be timeframes for the ultimate decision, which we believe should be within 120 days of the initial application to the Minister. If the Governor in Council does not make a decision within 120 days, the listed entity should be deemed to be removed from the list.

Also in the interest of due process, subsection 83.05(3) should be amended so that if the Minister fails to make a recommendation to the Governor in Council within 60 days of the application, the Minister is deemed to have decided to recommend that the applicant no longer be a listed entity, rather than remain a listed entity. Both the 60-day and 120-day deadlines would ensure a more just and expeditious consideration of applications. It is unfair to require an entity to make an application to the government, only to have the application not considered in a timely manner, and then the entity deemed to remain on the list, obliging it to apply for judicial review if it still wants to be removed.

For similar reasons to those just stated, the Subcommittee believes that each two-year review of the list of entities, required under subsection 83.05(9) of the Code, should also result in a final decision on the part of the Governor in Council within 120 days after the commencement of the review, failing which an entity should be deemed to be removed from the list. Given the consequences of being a listed entity, the government should be obligated to make a decision within a reasonable period of time.

If the Governor in Council decides not to remove an entity from the list following an application under subsections 83.05(2) or (8), the applicant would then have 60 days from the time of receiving notice of the decision to apply for judicial review, as is already the case under subsection (5). Also as is currently the case, judicial review would not be immediately available if the Governor in Council decides to keep an entity on the list following a two-year review under subsection (9), as a listed entity should instead apply to be removed from the list in accordance with subsection (8).     

RECOMMENDATION 25

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, when a listed entity applies to no longer be a listed entity in accordance with subsections (2) or (8), the Minister of Public Safety and Emergency Preparedness must make a recommendation within 60 days, failing which he or she is deemed to have decided to recommend that the applicant be removed from the list. Further, any recommendation or deemed recommendation on the part of the Minister should expressly be referred to the Governor in Council, which is to make a final decision within 120 days of the entity’s application, failing which the entity is deemed to be removed from the list.  

RECOMMENDATION 26

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, on each two-year review of the list of entities under subsection (9), it is clear that the Governor in Council has the final decision as to whether or not an entity should remain a listed entity. Further, the decision should be made within 120 days of the commencement of the review, failing which the entity is deemed to be removed from the list.