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The Anti-terrorism Act
Definition of Terrorist Activity
Section 83
The definition of "terrorist activity" is of central importance to the Anti-terrorism Act.
- It underpins several distinct terrorism offences, including knowingly facilitating a terrorist activity (section 83.19 of the Criminal Code) or knowingly instructing any person to carry out a terrorist activity (section 83.22), as well as the process for listing an entity under section 83.05.
- The definition is linked to the definition of "terrorist group" - an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity.
- It is also used in the Security of Information Act, as an alternative component of the phrase "a purpose prejudicial to the interests of the State".
The definition of "terrorist activity" set out in section 83.01(1) of the Criminal Code applies to activities inside or outside Canada and has two alternative parts. Satisfying either part constitutes a "terrorist activity".
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The First Part of the Definition of "Terrorist Activity"
Paragraph 83.01(1)(a) supports Canada's compliance with ten major United Nations counter-terrorism conventions and protocols. It accomplishes this goal by incorporating into the definition of "terrorist activity" various offences from the U.N. conventions.
"Terrorist activity" is defined here as:
(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:
(i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970,
(ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971,
(iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973,
(iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979,
(v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980,
(vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988,
(vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988,
(viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988,
(ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and
(x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999.
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The Second Part of the Definition of "Terrorist Activity"
Paragraph 83.01(1)(b) of the Code provides that a "terrorist activity" consists of:
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a person's life,
(C)causes a serious risk to the health or safety of the public or any segment of the public,
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C), and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.
In addition, s. 83.01(1.1) of the Code provides an interpretation clause:
(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition "terrorist activity" in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.
In Mohammed Momin Khawaja v. Her Majesty the Queen, [2006] O.J. No. 425, the accused was charged with various terrorism offences under the Criminal Code. He challenged the constitutionality of some of these provisions, in particular, the following motive requirement in the general definition of “terrorist activity” found in paragraph 83.01(1)(b)(i)(A) of the Code, i.e. that the act or omission be committed “in whole or in part for a political, religious or ideological purpose, objective, or cause.”
Rutherford J., of the Ontario Superior Court of Justice, held that the motive requirement infringed the freedoms of conscience and religion, thought, belief, opinion and expression and of association which are guaranteed under ss. 2(a), (b) and (d) of the Charter. He held that the appropriate remedy would be to sever clause 83.01(1)(b)(i)(A) from the rest of s. 83.01(1)(b)(i). The Government may reconsider this aspect of the definition in light of judicial assessments once the litigation in Khawaja has concluded.
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Updated to April 1, 2008.
