The <em>Anti-terrorism Act</em>

THE ATA IN PERSPECTIVE

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III. Criminal Code

Part 1 of the ATA amended the Criminal Code. In particular, it created a new chapter of the Criminal Code dealing specifically with terrorism. Measures were created to deter, identify and prosecute those engaged in terrorist activities or supporting those activities. To some extent, the approach taken to these new offences was similar to that taken with respect to pre-existing Criminal Code offences against organized crime.

"Terrorist activity"

A core provision of the ATA is the Criminal Code definition of "terrorist activity". The definition, which has two components, applies to activities inside or outside Canada. Satisfying either component constitutes a "terrorist activity". The first component of the definition is defined in part as an act or omission committed in or outside Canada that would be an offence under the major international instruments that apply to terrorist activities, like hijacking and terrorist bombing .

In the second part, a general definition of "terrorist activity" was provided. Under this general definition, "terrorist activity" is defined as an act or omission undertaken, inside or outside Canada, for a political, religious or ideological purpose that is intended to intimidate the public with respect to its security, including its economic security, or to compel a person, government or organization (whether inside or outside Canada) from doing or refraining to do any act, and that intentionally causes one of a number of specified forms of serious harm. These harms include causing death or serious bodily harm, endangering life, causing a serious risk to health or safety, causing substantial property damage where it would also cause one of the other harms listed above, and, in certain circumstances, causing serious interference or disruption of an essential service, facility or system, whether public or private. As well, that aspect of the definition that relates to seriously interfering with or disrupting an essential service contains an exception for advocacy, protest, dissent and stoppage of work, providing this is not intended to cause most of the other forms of harm referred to in the definition. This exception recognizes that even unlawful protests and strikes that could lead to the disruption of an essential service are not the same thing as terrorist activity under the ATA.

The legislation does not target any particular ethnocultural or religious group. Further, political, religious or ideological activities are not criminalized in and of themselves. Rather, only acts or omissions of the extreme and harmful type referred to under the definition of "terrorist activity", which are undertaken specifically for political, religious or ideological purposes, fall under the definition of "terrorist activity". In effect, the reference to "political, religious or ideological purposes" is a limiting aspect of the definition that helps distinguish terrorism from other types of criminal activity, such as organized crime.

At the trial level, in R. v. Khawaja, [2006] O.J. No. 425, Mr. Justice Rutherford of the Ontario Supreme Court of Justice ruled that the political, religious or ideological purpose requirement was unconstitutional and severed it from the rest of the definition of “terrorist activity.”  Once the litigation in Khawaja has concluded, the Government may reconsider this aspect of the definition in light of judicial assessment. 

Under the extended definition, the prosecution of terrorism offences can be undertaken in Canada even if the ultimate terrorist activity takes place outside of Canada or is intended to take place elsewhere. The definition of "terrorist activity" applies to an act or omission that is committed in or outside Canada provided that certain factors exist.

Listing of Terrorist Entities

Under the Anti-terrorism Act, "terrorist group" is defined as an entity that has as one of its purposes or activities the facilitating or carrying out of terrorist activity or that is an entity set out in a list established by regulation. For listed entities, the fact of being listed establishes them as terrorists groups.

It is important to emphasize that being on the list does not itself constitute a criminal offence, although it can lead to criminal consequences. Where charges are laid, each element of the offence would have to be proven beyond a reasonable doubt, except for the issue of whether the entity constitutes a “terrorist group.”

The list supports the application of other provisions in the Act, including:

• terrorism offences;
• crimes relating to the financing of terrorism;
• requirements to freeze terrorist property and procedures for the courts to order seizure and forfeiture of that property; and
• the removal or denial of the charitable status of organizations that engage in or support terrorism.

Safeguards are built into the listing process. On the recommendation of the Minister of Public Safety, the Governor in Council may list an entity if he or she is satisfied that there are reasonable grounds to believe that the group or person has knowingly carried out, attempted to carry out, participated in, or facilitated a terrorist activity; or is knowingly acting on behalf of, at the direction of, or in association with a terrorist group. Once approved, the decision is published in the Canada Gazette. The Criminal Code also provides an explicit appeal process, including a provision that a listed entity can apply to the Minister of Public Safety to be removed from the list. The matter can also be brought for judicial review before the Federal Court. Further, the list is subject to review by the Minister every two years.

Two reviews of the list have been completed since 2001.  There are currently 41 listed entities. This list may be found at www.publicsafety.gc.ca/prg/ns/le/cle-en.asp

Terrorism Offences

Comprehensive terrorism offences created in the Criminal Code include:

• knowingly participating in, contributing to, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity;
• knowingly facilitating a terrorist activity;
• commission of a serious (i.e. indictable) offence for the benefit of, at the direction of or in association with a terrorist group;
• knowingly instructing anyone to carry out a terrorist activity for a terrorist group; and
• knowingly harbouring or concealing any person who has carried out or is likely to carry out a terrorist activity for the purpose of enabling the person to facilitate or carry out any terrorist activity.

The ATA is founded primarily on the principle of the prevention of terrorist acts. Offences such as knowingly instructing the carrying out of any activity for a terrorist group or knowingly facilitating a terrorist group are specifically defined to be offences regardless of whether the ultimate terrorist activity is carried out and regardless of whether the accused knows the specific nature of the terrorist activity being contemplated. By creating such offences, the law takes into account both the manner in which terrorist groups actually operate and the fundamental need for prevention. Moreover, unlike the general concept of accessory after the fact, the harbouring or concealing can occur either before or after the commission of any terrorist activity.

It should be emphasized that membership in terrorist groups per se was not criminalized, given the long-standing practice in the criminal law against criminalizing "who one is," as opposed to "what one does".

Safeguards were built into these offences. The required proof includes specific intent or knowledge in relation to the prohibited conduct. The scope of the offences was clearly defined to target terrorist activity and terrorist groups. As well, no proceedings in respect of a terrorism offence are to be commenced without the consent of the Attorney General of Canada or of the province.

In addition, measures under the Criminal Code were added to deal with the financing of terrorism and relating to the freezing, seizure, restraint and forfeiture of terrorist property. The provisions relating to terrorist financing allowed Canada to become a party to the International Convention for the Suppression of the Financing of Terrorism, and assisted Canada in complying with UN Security Council Resolution 1373 and in broadly complying with the FATF Special Recommendations on Terrorist Financing. These measures are also subject to procedural safeguards, including;

• the "reasonable grounds to believe" standard for the seizure and restraint of property;
• protection of the interests of family members in a principal residence that is the subject of a forfeiture application;
• notice to third parties and an order declaring the nature and extent of their interest in property for which forfeiture is sought; and
• access to the property or a part of it in order to meet reasonable living, business and legal expenses.

Law enforcement agencies are constantly guided by the ATA when investigating terrorism offences. These investigations are often complex and take several years of work before criminal charges can be laid.  Various persons have been charged under the ATA in Ottawa, Toronto and  Montreal for terrorist activities, including participating in the activity of a terrorist group (s. 83.18 of the Criminal Code), facilitating a terrorist activity (s. 83.19 of the Criminal Code); the commission of offences for a terrorist group under s. 83.2 of the Criminal Code; providing property for terrorist purposes under s. 83.03 of the Criminal Code; and instructing another person to carry out an activity for the benefit of a terrorist group under s. 83.21 of the Criminal Code.  These proceedings are ongoing.

The Sunsetted Provisions:  Investigative hearing and Recognizance with conditions

The Anti-terrorism Act introduced  two important law enforcement tools to the Criminal Code: the investigative hearing and the recognizance with conditions.  Both were subject to a sunset clause that provided that they would expire in early 2007 unless a resolution to extend them was passed by both Houses of Parliament.

Investigative hearing

The ATA provided for investigative hearings under the Criminal Code to facilitate the gathering of information for the purposes of investigating a terrorism offence. Under the regime, a judge of the provincial or superior court could make an order requiring a person to provide information, or anything in his or her possession, in relation to a terrorism offence. This tool was to be used where a terrorism offence had been committed or where there were reasonable grounds to believe that such an offence would be committed.

A procedure under the Mutual Legal Assistance in Criminal Matters Act, which pre-dates the ATA, permits Canadian authorities to perform this function in Canada relating to foreign criminal investigations. However, there had been no similar procedure for domestic investigations. The United States has investigative Grand Juries that perform a similar function.

The investigative hearing provision was first enacted in 2001 to help prevent terrorist activities and to assist police and prosecutors in investigating terrorist offences, and was subject to a number of safeguards. It only applied to the investigation of terrorism offences. No answer given or thing produced -- nor any evidence derived from it -- could be used against the person in any criminal proceedings against that person, other than for perjury or for giving contradictory evidence. The consent of the Attorney General was required to initiate the process. The witness had the right to retain and instruct counsel and was afforded protection against the disclosure of information subject to privilege under Canadian law.

As well, the Attorney General of Canada and the Minister of Public Safety, and the Attorneys General of the provinces and the ministers responsible for policing in every province, have been required to publish annual reports on various aspects of the use of this tool, thereby ensuring accountability for its use.

Section 83.28 (investigative hearing) of the Criminal Code was engaged once by a provincial Attorney General, in the context of the Air India investigation. The Supreme Court of Canada upheld the constitutionality of the investigative hearing in 2004 in a judgment entitled Application under section 83.28 of the Criminal Code (Re).  In this case, however, the investigative hearing was never actually convened.

Recognizance with Conditions

The ATA also provided for a recognizance with conditions provision, a measure intended to assist law enforcement officers to disrupt terrorist attacks.  

If a police officer believed, on reasonable grounds, that a terrorist activity was going to be carried out and suspected on reasonable grounds that the imposition of a recognizance with conditions on a particular person was necessary to prevent it, then that person could be issued a summons or arrested to be brought before a judge.

The object of bringing the person before the court was for the court itself to consider whether it was desirable to impose conditions on the person. The court could impose such conditions or could release the person without conditions. The burden was on the government to show why conditions should be imposed. If the person refused to accept conditions, the court could commit that person to prison for up to 12 months.

During the period of detention, criminal charges (e.g. a prosecution of a terrorism offence) or Immigration and Refugee Protection Act proceedings (e.g. for deportation) could be initiated if there were grounds to do this.

A recognizance with conditions was not a new concept in the Criminal Code. The peace bond, which continues to exist, permits a judge to impose conditions upon a person where reasonable grounds exist to believe that that person will cause personal injury to, or damage the property of another person, or will injure the spouse or child of another person. This measure is often used in domestic violence situations and is triggered by any person who fears on reasonable grounds that these consequences may ensue.

Prior to the enactment of the ATA, the Criminal Code already permitted a police officer to arrest a person without warrant on the reasonable belief that the person is about to commit a serious criminal offence. But previously, even though a police officer may have had reasonable grounds to believe that a terrorist activity will be committed, the police officer would have been unable to take action against a person where the officer would have lacked a belief on reasonable grounds in relation to that particular person. Given the grave nature of the harm posed by terrorist activity, it was thought that there was a need to act quickly to address the threat.

The use of the recognizance with conditions was only available under strictly-defined conditions and was subject to numerous procedural safeguards. Except for emergency or exigent circumstances, the consent of the Attorney General was required beforehand. Even in emergency situations, this consent was required after the fact in accordance with the delay prescribed by the ATA. In all cases, an initial judicial hearing had to be held within 24 hours, or, if a judge was not available, as soon as possible thereafter. The maximum period a person could be detained after the initial judicial hearing was 48 hours. The purpose and effect of the provision was not to allow for indefinite detention, but to permit a judge to impose reasonable conditions considered necessary, for example, to prevent a terrorist activity from being carried out (e.g. a recognizance to keep the peace and be of good behaviour).

As with the investigative hearing provision, the recognizance with conditions provision was subject to annual reporting requirements.  

Sunsetting

Two Parliamentary Committees comprehensively reviewed the Anti-terrorism Act as mandated by s. 145 of the ATA.  In an interim report released October 23, 2006, the majority of the House of Commons Subcommittee reviewing the ATA recommended that the sunsetting provisions be extended to December 31, 2011 and that there be further parliamentary review before any additional extension.  They also suggested that the investigative hearing provision be amended to make it available only when a peace officer has reason to believe there is imminent peril that a terrorist offence will be committed.

In February 2007, the Special Senate Committee for the Review of the Anti-terrorism Act recommended extending the provisions without modification for a further three years.

In February 2007, the Government tabled a motion to extend the investigative hearing and recognizance with conditions provisions for another three years.  On February 27, 2007, the House of Commons voted 159 to 124 against renewing the provisions, which led to their expiration on March 1, 2007. 

On October 23, 2007 the Government introduced in the Senate Bill S-3 that proposes amendments to the Criminal Code that would reinstate anti-terrorism provisions that expired under a sunset clause in February 2007. Substantially similar to the original provisions, which came into force with the Anti-Terrorism Act in 2001, Bill S-3 proposes provisions to bring individuals who may have information about a terrorism offence before a judge for an investigative hearing, and provisions dealing with recognizance with conditions and preventative arrest to avert a potential terrorist attack. It also contains a 5-year sunset clause, requires that the Attorney General and the Minister of Public Safety and Emergency Preparedness report annually with their opinion, together with reasons, as to whether these provisions should be maintained, and incorporates other technical amendments. 

Bill S-3 was passed by the Senate. It was in the House of Commons at Second Reading when the House of Commons recessed on June 20, 2008. The House of Commons is adjourned until September 15, 2008.

Updated to June 20, 2008.

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