Terrorism Offences in Canada

Henry Waldock
Last updated: 2012-12-14

This page outlines sections of the Criminal Code which apply to terrorism. For brevity, I summarized much of the (turgid) language of the Criminal Code. If you need to know exactly what the law is, read the legislation.

Definitions relevant to terrorism offences

Treaty Obligations

Over the years, Canada agreed with many countries to legislate against hijacking, hostage-taking, and other activity popular among terrorists:

Hague 1970 - highjacking civillian aircraft
Montreal 1971 - endangering civillian aircraft
UN 1973 - attacks on heads of state and diplomats
UN 1979 - hostage taking for political purposes
UN 1980 - crimes involving nuclear materials
UN 1997 - organizing and committing terrorist bombings
UN 1999 - funding terrorism

The natural place for Canada to put its legislation against these things is the Criminal Code.

Expanded jurisdiction

Canada normally prosecutes only those crimes which occur within its borders. However, Canada takes jurisdiction over foreign crimes when they pertain to Canada. Therefore a Canadian court can hear charges involving:

Canadian ships or aircraft
by Canadians and Canadian residents and people who come to Canada afterwards
acts was done to coerce Canada's government, or harm Canada or its citizens.

Section 7 of the Criminal Code lists the kinds of offences which it prosecute, even if they occurred elsewhere:

s.7(2)	Hijacking offences
s.7(2.1) & (2.2)	Platforms in the sea
s.7(3)	Violence and harm to internationally protected persons
s.7(3.1)	Hostage taking
s.7(3.71)	Attacking UN personnel (s.431.1)
s.7(3.72)	Bombing public infrastructure
s.7(3.73)	Supplying terrorists (s.83.02)
s.7(3.74)	Funding terrorism
s.7(3.75)	Terrorist acts by Canadians or to Canadian governments

Who's a Terrorist?

Section 83.01 defines a terrorist group to be:

a person, group, trust, partnership or fund or an unincorporated association or organization

that

that has as one of its purposes or activities facilitating or carrying out any terrorist activity; or
the government named as terrorists.

Under s.83.05, if the government thinks a group is a terrorist organization, it can publish a recommendation to the Governor-General in Council. If 60 days pass, and nobody complains, then the group becomes listed as a terrorist group. But the group can apply to a judge for review of the government's opinion.

Nobody commits a crime by being a member of a terrorist group. But it is a crime to help the group move money around, even by opening a bank account for them. s.83.08

Terrorist Activity s. 83.01

The offences listed above for which Canada takes expanded jurisdiction are terrorist activity. So is life-threatening activity which intimidates the public for a political, religious or ideological purpose or cause. But warfare according to the rules of international law is not terrorism.

Expressing political, religious or ideological thought, belief or opinion is not terrorist activity.

Offences

Money for Bombs

In order to stop terrorism from succeeding worldwide, Canada outlaws behaviour which funds them.

Funding Terrorists s.83.02	Collecting for and providing money and property to terrorists to use for terrorist activity is an offence punishable by 10 years in jail.
Supplying Terrorists s.83.03	Arranging for property or financial services to support terrorist activity is an offence punishable by 10 years in jail.
Possessing and using property to help terrorism s.83.04	Possessing and using property to help terrorism is an offence punishable by 10 years in jail.
Financial transactions for terrorist groups s.83.08	Providing financial services to terrorist groups is an offence punishable by 10 years in jail, and big fines.

Canadian banks and corporations and others who do business in Canada have to check their records regularly to ensure that they aren't doing business with terrorist groups and report when they are. s. 83.11

The Attorney General can, on application to Federal Court, restrain or seize property from terrorist groups and property used for terrorist activity. s.83.13

Making Terror

Most terrorist acts are crimes already. Murder is still murder. Destruction of property is still mischief.

Enhancing terrorist group by participating or contributing to its activity. s.83.18	10 years jail consecutive
Facilitating specific terrorist activity. s.83.19	14 years consecutive
Committing an indictable offence for a terrorist group. s.83.2	Life
Instructing others to help a terrorist group commit terrorist activity. s.83.21	Life
Instructing others to commit a terrorist activity. s.83.22	Life
Harbouring someone who has or will commit terrorist activity. s.83.23	10 years

Putting the actus reus and mens rea together, s. 83.18 applies to persons who, by their acts, contribute to or participate in what they know to be activities of what they know to be a terrorist group. In addition, those acts must be done for the specific purpose of enhancing the ability of that terrorist group to facilitate or carry out activity that falls within the definition of terrorist activity. USA v. Nadarajah, 2010 ONCA 859

USA v. Nadarajah, 2010 ONCA 859
Although these sections make it a crime to take steps toward committing a terrorist act without actually committing the terrorist act, they do not offend s.7 of the Charter.

R. v. Khawaja, 2012 SCC 69
The terrorism offences do limit the freedom of expression, but only such expression which threatens violence. That kind of expression enjoys no constitutional protection. Therefore these provisions are constitutional.

Evidence

Protecting National Security - s.38 of the Canada Evidence Act

Section 7 of the Charter guarantees fair trials for people charged with offences. A trial isn't fair unless the defendant knows what evidence he must answer. R. v. Stinchcombe, [1991] 3 SCR 326.

Unfortunately, investigations of terrorists seems to require highly sensitive information from CSIS and spy agencies from other countries. Once the charges are laid, the defence may demand access to that material to determine whether the investigators respected the law, such as occurred in R. v. Ahmad, 2011 SCC 6.

To bring a killer to justice, must we endanger the spy who discovered him?

Where it appears that information might be disclosed in a court proceedings which would injure international relations, national defence or national security, participants in the hearing, other officials and the Attorney-General of Canada may give notice of the concern, and trigger a hearing in Federal Court to work out what information can be disclosed and on what conditions. s.38 - 38.16 Canada Evidence Act.

These hearings are held in private. s.38.11

The Attorney-General of Canada may take over any prosecution in which such information might be disclosed. s.38.15

If the judge who was hearing the original trial thinks the Federal Court's decision makes the trial unfair, then the judge may make orders dismissing charges orterminating the proceedings. s.38.14.