SECU Committee Report
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Government Response to the Seventh Report of the Standing Committee on Public Safety and National Security
Subcommittee on the Review of the Anti-Terrorism Act
Rights, Limits, Security: A Comprehensive Review
of the Anti-Terrorism Act and Related Issues
INTRODUCTION
The Parliamentary Review of the Anti-terrorism Act (ATA) provided a useful opportunity to revisit the provisions that were enacted more than five years ago, as well as to examine other more current issues. For this reason, the Government of Canada has actively supported and participated in the reviews of the ATA conducted by committees of the House of Commons and the Senate pursuant to section 145 of the Act. The Government applauds the comprehensive effort undertaken by both committees and is grateful for the wealth and variety of witness testimony.
The Government is committed to ensuring that these laws continue to meet the needs of Canadians and that is why it has been very supportive of the Review. The laws must protect national security while respecting human rights, and they must provide a solid foundation that enables the Government to respond to the threat posed by terrorism in a concerted, effective and comprehensive manner.
As a precursor to a legislative response, the Government welcomes the opportunity to submit this written response to the recommendations made by the House of Commons Subcommittee on the Review of the Anti-terrorism Act.
THE CRIMINAL CODE: DEFINITIONAL ISSUES AND TERRORIST ACTIVITY OFFENCES (Recommendations 1–15)
The Criminal Code definition of “terrorist activity”
Defining terrorism in ways which clearly focus on the essence of the problem and distinguish it from other more conventional forms of crime, for the purposes of determining the application of criminal liability and investigative and preventive measures, represents a major challenge for the international community and for legislatures around the world. In its Report, the Subcommittee observed that the Canadian statutory definition of “terrorist activity” is complex and not easily understood. However, it also noted that this is not surprising, because “the phenomenon it attempts to define for criminal law purposes, terrorist activity in the early twenty-first century, is constantly changing in the forms and actions it takes.” The Subcommittee considered other definitions proposed in briefs and submissions. In particular, it also reviewed the definition contained in the International Convention for the Suppression of the Financing of Terrorism, [1] and found that definition to be too narrow because it focused on activities involving only serious violence. It preferred the definition of “terrorist activity” adopted by Parliament in 2001.
The definition of “terrorist activity” in section 83.01 of the Criminal Code has two components. The first component incorporates a series of offences enacted to implement international legal instruments against terrorism. The second, more general, stand-alone component, states that a “terrorist activity” is an act or omission undertaken “in whole or in part for a political, religious, or ideological purpose, objective or cause” that is intended to intimidate the public or compel a person, government or organization to do or refrain from doing any act, if the act or omission intentionally causes a specified serious harm. Specified 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 above listed harms and, in certain circumstances, causing serious interference or disruption of an essential service, facility or system, whether public or private.
Some hold the view that the stand-alone definition is overbroad and that the reference to motive of political, religious or ideological purpose may invite “profiling” on the basis of politics, religion or ideology. This issue of the motive requirement is currently before the courts in R. v. Khawaja. [2] There are also some concerns that the elements which relate to seriously interfering with or disrupting an essential service might extend anti-terrorism measures to unlawful but peaceful labour strikes or other protests. These concerns were also raised in 2001 and, in response, Parliament included in the section an exception for advocacy, protest, dissent and stoppage of work, provided these activities are not intended to cause any of the other serious forms of harm referred to in the definition.
Recognizing the variety of views expressed on this important issue, the Government concurs with the Subcommittee recommendation. Within the existing formulation, the requirement that an act or omission must have been undertaken “in whole or in part for a political, religious, or ideological purpose, objective or cause” operates to narrow the scope of the definition, helping to distinguish terrorist activity from other, more conventional forms of criminal activity. It also provides an additional safeguard for an accused, since the prosecution must prove this motive beyond a reasonable doubt. Moreover, the Subcommittee’s recommendation is consistent with recent independent reviews of the definition of terrorism in Australia and the United Kingdom, which concluded that similar motive requirements in their legislation should remain unchanged. The Government may reconsider the definition in light of judicial assessments once the litigation in Khawaja has concluded.
Non-legislative measures, such as training and review requirements, designed to ensure that criteria related to politics, race, religion or ideology are not used inappropriately, were also reviewed by the Subcommittee. These measures have been in place for some time and are always subject to review and improvement to ensure that Canada’s law enforcement and security agencies perform their functions effectively while maintaining positive relationships with all communities. The Government of Canada believes that such positive relationships must be forged at the operational level and that non-legislative measures are, therefore, critical.
A number of concrete steps have been taken to develop a dialogue with Canada’s diverse communities to foster understanding, trust, and cooperation between those communities and law enforcement, border and security agencies. These activities include grassroots community outreach initiatives, specific initiatives to address the concerns of Canada’s Muslim and Arab communities, public liaison and regional outreach activities, and national initiatives to engage a dialogue on national security measures, such as the creation of the Cross-Cultural Roundtable on Security. Consisting of representatives from a cross-section of Canadian communities, the Roundtable is an important component of the Government’s national security strategy. Its mandate is to engage Canadians and the Government in an ongoing dialogue on national security in our diverse and pluralistic society. Since its inception, it has provided valuable insights regarding the impact of security measures and has been engaged in a number of outreach activities across the country such as regional symposia bringing together members of ethno-cultural groups and government and national security officials to exchange views on matters related to national security.
It is also important to highlight some of the external and internal review mechanisms to which our law enforcement and security intelligence agencies are subject. These provide an avenue for the assessment of public complaints and for independent investigations into police, border and security intelligence conduct. The Security Intelligence Review Committee (SIRC) is an example of an independent civilian review body which reports to Parliament on the activities of the Canadian Security Intelligence Service (CSIS). Similar functions are performed by the Commissioner of the Communication Security Establishment (CSE). As well, Part II of the Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar recommended expanding the review of law enforcement’s national security activities. The Government is considering these recommendations and will advance a response in due course.
Other substantive issues
After considering the balance between the need for effective anti-terrorism provisions and freedom of expression, the Subcommittee also recommended the creation of a new offence of the glorification of terrorism for the purpose of emulation. The Government will carefully consider whether such an offence ought to be created, bearing in mind the Canadian Charter of Rights and Freedoms (Charter) and the policy implications.
With regard to subsection 83.22(1) of the Criminal Code, which provides that it is a crime to knowingly instruct any person to carry out a terrorist activity, the Government agrees with the recommendation that the provision should be expanded to include an instruction to a person to facilitate the carrying out of a terrorist activity. [3] However, the Government does not believe thatthe same change is needed in subsection 83.21(1), which provides that it is a crime to knowingly instruct any person to carry out any activity for the benefit of a terrorist group, because the present formulation is already broad enough to include instruction to facilitate the carrying out of such activity.
Representatives of the legal profession have expressed the view that the offence of knowingly contributing to the ability of a terrorist group to facilitate or carry out a terrorist activity, in section 83.18 of the Criminal Code, might extend to legal counsel providing legal services to those accused of terrorism offences. The Subcommittee recommended amendments to ensure that legal counsel could function without fear of prosecution. The Government believes that the existing mens rea (i.e. mental element) requirements and other safeguards, including the application of Charter rights to legal representation, are sufficient. The Government believes that the solicitor-client privilege should not be used as a shield to conceal knowing participation in or knowing contribution to a terrorist group.
The Subcommittee recommended limiting the discretion of the Attorney General of Canada to commence a terrorism prosecution anywhere in Canada. Notwithstanding this recommendation, the national security and evidentiary aspects of a major terrorism case, as well as the complexity and logistical challenges raised, may require the use of special facilities which are not available in every part of Canada. It may be essential to the interests of justice or the security of Canadians, as well as the interests of the accused, that proceedings be conducted in appropriate locations and facilities. Moreover, advances in transportation, information and communications technologies have made the transfer of cases far less prejudicial than would have been the case in previous decades. The Government believes that a trial should be held where there are appropriate facilities which are essential in such cases.
The Subcommittee also recommended that the offence of harbouring or concealing, in section 83.23 of the Criminal Code, be expanded. The offence was designed to specifically address the situation where someone knowingly harbours or conceals another person who he or she knows has carried out a terrorist activity or is likely to carry out a terrorist activity and does so for the purpose of enabling the person to facilitate or carry out a terrorist activity. The focus of the offence is on harbouring or concealing a person to enable that person to facilitate or carry out a terrorist activity. In contrast, helping someone to escape after the commission of a terrorist activity would be caught by the accessory after the fact provisions in section 23 of the Criminal Code. The Subcommittee recommended maintaining the purpose requirement in respect of harbouring or concealing a person who is likely to carry out a terrorist activity, but creating a new crime of harbouring or concealing someone who has carried out a terrorist activity in the past, but without the added purpose requirement. This formulation would be broader than the existing accessory after the fact provisions, which include a purpose requirement, namely, to provide assistance for the purpose of enabling that person to escape. The Government believes that it would be preferable to continue the focus of section 83.23 on deterring conduct relating to future terrorist activity that might otherwise be facilitated or carried out. Given the comments of the Subcommittee, however, the Government will re-examine the wording of this offence and the applicable sentencing provisions. The Subcommittee made a comparable recommendation [4] with respect to the similar harbouring and concealing offence in section 21 of the Security of Information Act and, generally speaking, the same reasoning and conclusions would apply.
Concerning punishments for multiple offences, the Subcommittee proposed to subject anyone who is convicted of knowingly participating in a terrorist activity to a maximum of life imprisonment. The Government believes that this is already addressed by sections 21 and 22 of the Criminal Code, by which anyone who aids or abets a crime, or who counsels someone else to commit a crime, is a party to the crime, and hence liable to the same punishment as the person who actually commits it. If the indictable offence constitutes a terrorist activity, section 83.27 generally substitutes life for the otherwise-applicable maximum sentence. As to the application of these sentences, the principle set out in section 83.26 of the Criminal Code is that consecutive sentences must be served in cases where there are multiple convictions for offences arising out of the same events or series of events and one of the convictions is in relation to a terrorism offence.
The Subcommittee also proposed that this principle be clarified in cases where a sentence is imposed for an indictable offence committed for the benefit of a terrorist group (section 83.2) so that in addition to the sentence imposed under section 83.2, a person can also be sentenced for the underlying indictable offence. However, the effect of section 83.2 is to create a crime that imposes a maximum punishment of life imprisonment in place of the otherwise-applicable punishment for the indictable offence, if that offence is committed for the benefit of a terrorist group. Thus, for example, fraud (section 380), which normally punishable by a maximum of 14 years, would become punishable by a maximum of life imprisonment under section 83.2 if the fraud were committed to finance a terrorist group. Section 83.26 provides that sentences imposed for certain terrorism offences, other than a sentence of life imprisonment, would have to be served consecutively to any other sentence arising out of the same event or series of events or to any other sentence to which the person is already subject.