Backgrounder

Royal Assent of Bill C-36
The Anti-Terrorism Act

The Government of Canada has taken steps to combat terrorism and terrorist activities at home and abroad through tough new anti-terrorism measures. The new package of legislation: creates measures to deter, disable, identify, prosecute, convict and punish terrorist groups; provides new investigative tools to law enforcement and national security agencies; and ensures that Canadian values of respect and fairness are preserved and the root causes of hatred are addressed through stronger laws against hate crimes and propaganda. The package also includes rigorous safeguards to ensure that the fundamental rights and freedoms of Canadians are upheld.

IDENTIFY, PROSECUTE, CONVICT AND PUNISH TERRORIST ACTIVITY

Under the Criminal Code, terrorists can already be prosecuted for hijacking, murder and other acts of violence. The Government of Canada has signed all 12 United Nations Conventions and under the new anti-terrorism measures, Canada will ratify the remaining two counter-terrorism conventions:

• The Suppression of Terrorist Financing Convention relates to the freezing of terrorist property by prohibiting dealing in any property of a person engaged in terrorist activities and prohibiting making available funds and financial or other related services to terrorists. Bill C-36 fulfils Canada's obligations under this convention and allows a Federal Court judge to order the seizure and forfeiture of property used in or related to terrorist activity. Fifteen other states have ratified this convention.
• The Suppression of Terrorist Bombings Convention contains provisions relating to the targeting of public places, government or infrastructure facilities or transportation systems with explosives or other lethal devices, including chemical or biological agents. Forty-five states have ratified this convention.

Through the Anti-Terrorism Act, Canada will also ratify the Safety of United Nations and Associated Personnel Convention, which relates to ensuring the safety of UN personnel, including peacekeepers, from attacks against their person, official premises, private accommodation and modes of transport.

Under Bill C-36, the Criminal Code will also be amended to establish provisions aimed at disabling and dismantling the activities of terrorist groups and those who support them. These include:

• defining "terrorist activity" in the Criminal Code as an action that takes place either within or outside of Canada that:
  • is an offence under one of the UN anti-terrorism conventions and protocols; or
  • is taken for political, religious or ideological purposes and intimidates the public concerning its security, or compels a government to do something, by intentionally killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by seriously interfering with or disrupting an essential service, facility or system.
    
    

  Under this definition, there is an interpretive clause that states for greater clarity 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 government, and intentionally causes death or serious physical harm to people.)

  The definition makes it clear that disrupting an essential service is not a terrorist activity if it occurs during a protest or a work strike and is not intended to cause death or serious harm to persons.

• permitting the designation of groups whose activities meet the definition of terrorist activity as "terrorist groups."

This definition and designation framework forms the basis for new offences in the Criminal Code that will make it a crime to:

• knowingly collect or provide funds, either directly or indirectly, in order to carry out terrorist crimes. Using this definition, the Crown must prove that the accused collected, provided or made available funds that he or she knew would be used to help a terrorist group. Canadian courts will be given the jurisdiction to try this offence even if it has been committed outside Canada, when the accused is found in Canada. The maximum sentence will be 10 years.
• knowingly participate in, contribute to or facilitate the activities of a terrorist group. The participation or contribution itself does not have to be a criminal offence and will include knowingly recruiting new individuals for the purpose of enhancing the ability of the terrorist group to facilitate or commit terrorist activities. The maximum sentence for participating or contributing offences will be 10 years. The maximum sentence for facilitating will be 14 years.
• instruct anyone to carry out a terrorist activity on behalf of a terrorist group (a "leadership" offence). This offence carries a maximum life sentence.
• knowingly harbour or conceal a terrorist. The maximum sentence under this offence will be 10 years.

In addition, any indictable offence under any Act of Parliament that is committed for the benefit of, at the direction of, or in association with a terrorist group carries a maximum sentence of life imprisonment. An offender convicted of any indictable offence that is also a terrorist activity will be liable to life imprisonment.

The Criminal Code will also stipulate that the sentences imposed for each of these offences are to be served consecutively to any other sentence imposed relating to the same activity or event. The offender will also be ineligible for parole for half of the sentence imposed unless the accused can demonstrate that it is not in the public interest.

In addition to these Criminal Code reforms, the new definition and designation schemes will make it easier to remove or deny charitable status to those who support terrorist groups under the Income Tax Act.

To ensure that the courts can deal with an expected increase in enforcement, appeals and reviews connected to the Government's new Anti-Terrorism Plan, the Act will increase the number of Federal Court judge positions by up to 15. Of these new positions, 13 can be added to the Trial Division, while two can be added to the Court of Appeal.

STRONGER INVESTIGATIVE TOOLS

The new anti-terrorist measures will give new investigative tools to security, intelligence and law enforcement agencies and will ensure that the prosecution of terrorist offences can be undertaken efficiently and effectively. Measures will include:

• The investigatory powers currently in the Criminal Code and in Bill C-24 that make it easier to use electronic surveillance against criminal organizations will be applied to terrorist groups. This includes eliminating the need to demonstrate that electronic surveillance is a last resort in the investigation of terrorists. The proposed legislation will extend the period of validity of a wiretap authorization from the current 60 days to up to one year when police are investigating a terrorist group offence. A Superior Court judge will still have to approve the use of electronic surveillance to ensure that these powers are used appropriately. Further, the requirement to notify a target after surveillance has taken place can be delayed for up to three years.
• The Criminal Code will be amended to require individuals with information relevant to an ongoing investigation of a terrorist crime to appear before a judge to provide that information. This will require the consent of the Attorney General. This measure will increase the ability of law enforcement to effectively investigate and obtain evidence about terrorist organizations, subject to legal safeguards to protect the witness. For example, information given by a witness cannot be used against the witness in any current or future criminal proceedings.
• The Criminal Code will be amended to create a "preventive arrest" power to impose conditions of release where appropriate on suspected terrorists. This will prevent terrorist activity and protect the lives of Canadians. This will allow a peace officer to arrest and bring a person before a judge to impose reasonable supervisory conditions if there are reasonable grounds to suspect that the person is about to commit a terrorism activity. A warrant will be required except where exigent circumstances exist, and the person will have to be brought before a judge within 24 hours of an arrest. This will require the consent of the Attorney General.
• The Official Secrets Act will be amended to address national security concerns, including threats of espionage by foreign powers and terrorist groups, and the intimidation or coercion of ethnocultural communities in Canada. The Act will also have a new title, the Security of Information Act.

New offences will be created to improve and modernize the "spying" provisions of the Act, taking into account new realities, including new players and new threats. These offences will focus upon those situations in which it is appropriate for Canada to protect its institutions and citizenry from information-related conduct that is harmful or likely to be harmful to Canada.

New players other than the governments of traditional states include governments-in-waiting, governments in exile and other foreign powers, as well as terrorist groups.

New threats that are being recognized include threats against ethnocultural communities in Canada, threats to trade secrets and threats to essential infrastructures, both public and private.

The bill also includes specific new offences dealing with unauthorized communication, or purported communication, of special operational information (for example, the identity of confidential sources, covert agents or targets of CSIS) by persons permanently bound to secrecy.

• The Canada Evidence Act will be amended to address the judicial balancing of interests when the disclosure of information in judicial or other proceedings would encroach upon a specified public interest or be injurious to international relations or national defence or national security. Information that could be protected from disclosure might, for example, be information that, if disclosed, would threaten another country's vital interests or jeopardize intelligence networks.
• The National Defence Act will be amended to clarify the mandate of the Communications Security Establishment (CSE), under strict controls, to:
  • intercept the communications of foreign targets abroad; and
  • undertake security checks of government computer networks to protect them from terrorist activity.
    
    

  The permission of the Minister of National Defence will be required to authorize any interception of private communications of foreign targets abroad in order to ensure that the privacy of individual Canadians is protected.

• The Proceeds of Crime (Money Laundering) Act will be amended to authorize the Financial Transactions and Reports and Analysis Centre (FINTRAC) to detect financial transactions that may constitute threats to the security of Canada and to disclose this information to the Canadian Security Intelligence Service (CSIS) and other law enforcement agencies.
• The DNA warrant scheme and data bank will be extended to include terrorist offences in the list of "primary designated offences" for which DNA samples can be taken and stored.
• On November 23, Canada signed the Council of Europe Convention on Cyber-Crime, which requires states to criminalize certain forms of abuse of computer systems and certain crimes, like hacking, when they are committed through the use of computer systems. The convention also supports international cooperation to detect, investigate and prosecute these criminal offences, as well as to collect electronic evidence of any criminal offence, including terrorist crimes, terrorist financing and money laundering offences. Some of the other prohibited activities covered by the Convention include interference of computer systems, computer fraud and forgery.

STRONGER LAWS AGAINST HATE CRIMES AND PROPAGANDA

Following the attack on September 11, Canadians have called for a renewed commitment to values of respect, equality, diversity and fairness and a strong condemnation of hate-motivated violence. Bill C-36 contains legislation that addresses the root causes of hatred, reaffirms Canadian values and ensures that Canada's respect for justice and diversity is reinforced. These measures include:

• amendments to the Criminal Code that allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who post the material will be given the opportunity to convince the court that the material is not hate propaganda. The provision applies to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified.
• Criminal Code amendments that create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property, including cemeteries. This offence carries a maximum penalty of 10 years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.
• amending the Canadian Human Rights Act to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

COMPREHENSIVE SAFEGUARDS

Canadians have expressed concerns about their security and support strong laws that deal effectively with terrorism. Canadians also want assurances that safeguards are in place to protect their rights and freedoms. Bill C-36 contains measures to protect both human security and human rights under the Canadian Charter of Rights and Freedoms. These safeguards include:

• the Attorney General and Solicitor General of Canada, provincial Attorneys General and Ministers responsible for policing will be required to report annually to Parliament on the use of preventive arrest and investigative hearing provisions in Bill C-36.
• a Parliamentary review of the anti-terrorism legislation as a whole in three years.
• provisions in the Act dealing with preventive arrest and investigative hearing powers will sunset after five years unless a resolution is passed by both the House of Commons and Senate to extend either or both of these powers for up to five more years. Proceedings that have already started prior to the sunset date will be grandfathered so that they could be completed, if the powers are not extended
• the scope of the Criminal Code provisions is clearly defined so that they are targeted at terrorists and terrorist groups. This is a campaign against terrorists and not against any one community, group or faith. Legitimate political activism and protests are also protected through the precise definition of terrorist activities.
• Attorney General certificates prohibiting the release of information will be subject to review by a judge of the Federal Court of Appeal. In addition, the existing provisions and process for the collection, use and protection of information will be preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act.
• the burden of proof is on the state to establish that there was knowledge or intent on the part of the accused "for the purpose of facilitating or carrying out terrorist activity."
• the process of adding a group to the list of terrorists incorporates a number of protections including provisions for removal from the list, judicial review and safeguards to address cases of mistaken identity. As well, the list must be reviewed every two years by the Solicitor General.
• the Attorney General's consent is required to prosecute all of the new terrorism offences.
• the Minister of Defence's authorization is required for the Communications and Security Establishment to intercept foreign communications targeted against a non-Canadian abroad that may have a Canadian connection.

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Department of Justice
December 18, 2001