The Anti-terrorism Act

Definition of Terrorist Activity

Section 83.01(b) (ii) 

This part of the definition sets out an additional set of intentions beyond motive and intimidating the public or compelling a government to do, or refrain from doing, any act.

This section requires that 'terrorist activity' also possess an intention to do one of the following:

• cause death or serious bodily harm to a person by the use of violence;
• endanger a person's life;
• cause a serious risk to the health and safety of the public or any segment of it;
• cause substantial property damage to either public or private property if likely to cause any of the harms set out immediately above; or
• cause serious interference or disruption of an essential service with a qualification in order to protect advocacy, dissent or stoppage of work that is not intended to cause most of the above-mentioned harms.

Of particular note is subclause (E) that includes within the definition of "terrorist activity" any act or omission, in or outside Canada, that:

...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)....

This wording is intended to ensure that essential services, facilities or systems, including Canada's critical infrastructure, are protected. Public Safety Canada has identified ten sectors that make up Canada's national critical infrastructure:

1. Energy and Utilities
   (e.g. electrical power, natural gas, oil production and transmission systems)
2. Communications and Information Technology
   (e.g. telecommunications, broadcasting systems, software, hardware and networks including the Internet)
3. Finance
   (e.g. banking, securities and investment)
4. Health Care
   (e.g. hospitals, health care and blood supply facilities, laboratories and pharmaceuticals)
5. Food
   (e.g. safety, distribution, agriculture and food industry)
6. Water
   (e.g. drinking water and wastewater management)
7. Transportation
   (e.g. air, rail, marine and surface)
8. Safety
   (e.g. chemical, biological, radiological and nuclear safety, hazardous materials, search and rescue, emergency services, and dams)
9. Government
   (e.g. services, facilities, information networks, assets and key national sites and monuments)
10. Manufacturing
    (e.g. defence industrial base, chemical industry)

Subclause (E) of the definition also carves out an important exception for protest, dissent, or work stoppages, whether lawful or unlawful, unless that protest is also intended to kill, cause serious bodily harm, endanger, or cause a serious risk to the health or safety of the public.

In other words, this exception is not absolute. However, it is important to note that intention is the highest level of mens rea requirement found anywhere in the Criminal Code. In the case of Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369, the Ontario Court of Appeal defined the term "wilfully" promoting hatred to mean intentionally promoting hatred, which means having the conscious purpose to promote hatred or foreseeing that the promotion of hatred was certain or morally certain to result. This excludes recklessness. This definition of intent was approved by the Supreme Court of Canada in R. v. Keegstra, [1990] 3 S.C.R. 697.

The laws of Australia, New Zealand and South Africa contain a similar exception for protest and dissent. The UK's, however, does not.

Subsection 83.01(1.1) further clarifies that an expression of political, religious or ideological beliefs alone is not a "terrorist activity," unless it is part of a larger conduct that meets all of the requirements of the definition of "terrorist activity." (i.e., conduct that is committed for a political, religious or ideological purpose, is intended to intimidate the public or compel a person or government to do or refrain from doing any act, and intentionally causes death or serious physical harm to people or the other harms set out there.)

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Updated to April 1, 2008.