The Anti-terrorism Act

B. THE CRIMINAL CODE: TERRORIST FINANCING AND TERRORISM-RELATED PROPERTY (RECOMMENDATIONS 16 - 22) 

The ATA amended the Criminal Code to create criminal offences and imposed other requirements related to the financing of terrorism, implementing international obligations under Resolution 1373 of the UN Security Council and the International Convention for the Suppression of the Financing of Terrorism.

Section 83.1 of the Criminal Code requires everyone in Canada and Canadians anywhere to disclose to the Commissioner of the Royal Canadian Mounted Police (RCMP) and the Director of the Canadian Security Intelligence Service (CSIS) the existence of property in their control or possession that they know is owned or controlled by or on behalf of a terrorist group as well as any information about transactions or proposed transactions related to that property. Representatives of the legal profession have compared the section 83.1 requirement with anti money-laundering standards and have expressed concern that it could in some circumstances be inconsistent with solicitor-client privilege. The Subcommittee recommended that an amendment be made to exempt lawyers providing legal services. Long-established international standards against money-laundering require the reporting of suspicious transactions and elements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) which implement those standards are based on reasonable grounds to suspect. The purpose of section 83.1 of the Criminal Code, on the other hand, in combination with section 83.08, is to freeze terrorism-related property and support seizure, and later forfeiture, measures. It requires reporting only where the subject actually knows that the property involved is owned or controlled by or on behalf of a terrorist group. In the area of terrorism, strong measures are needed to ensure Canadian conformity with international legal obligations and, as a matter of policy, the Government does not believe that the solicitor-client privilege should be used to conceal property or transactions if the solicitor has knowledge that they relate to terrorism. Therefore, the Government does not propose to make the recommended change.

Section 83.08 of the Criminal Code deals with freezing of terrorism-related property. Section 83.12 makes it an offence to knowingly deal in such property, engage in or facilitate transactions in respect of such property, or provide services in respect of such property for the benefit of or at the direction of a terrorist group. The Subcommittee recommended that a due diligence defence should be provided for this offence. While a due diligence defence applies in respect of strict liability offences, this is a criminal offence. In this case, the mens rea of knowledge is required. This is because for criminal offences, a subjective fault element is generally required. Thus, to establish that the accused “knowingly” dealt in terrorism-related property, for example, it would have to be proved beyond a reasonable doubt that he or she actually knew that the property was owned or controlled by a terrorist group.

The Subcommittee has also recommended that the words “wilfully and” be deleted from section 83.02 of the Criminal Code. However, the Government proposes to keep the present wording that is consistent with the wording found in the International Convention for the Suppression of the Financing of Terrorism and in UN Security Council Resolution 1373.

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Updated to April 1, 2008.