BACKGROUNDER

Highlights of Anti-Terrorism Act

The Government of Canada is determined to take steps to combat terrorism and terrorist activities at home and abroad. Tough new anti-terrorism measures strike an appropriate balance between respecting Canadian values of fairness and respect for human rights while helping to ensure that Canadians and the global community are better protected.

The package: creates measures to 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.

IDENTIFY, PROSECUTE, CONVICT AND PUNISH TERRORIST ACTIVITY

Terrorist activities in Canada have always been treated as criminal. 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 Protocols related to terrorism and has ratified 10, including those that protect against harming aircraft, civil aviation and airports, international shipping, internationally protected persons and diplomats, the safety of nuclear material; and preventing the taking of hostages and terrorist bombings.

With the proposed 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. The proposed measures fulfil Canada's obligations under this convention and allow a Federal Court judge to order the seizure and forfeiture of property used in or related to terrorist activity. Only four 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. Twenty-nine states have ratified this convention.
  
  

Canada will also be able to 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 the proposals, the Criminal Code would be amended to implement these UN conventions and, more broadly, 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 10 UN anti-terrorism conventions and protocols; or
    
    
  • is taken or threatened for political, religious or ideological purposes and threatens the public or national security by killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by interfering with or disrupting an essential service, facility or system.
    
    
  The definition is carefully circumscribed to make it clear that disrupting an essential service is not a terrorist activity if it occurs during a lawful protest or a work strike and is not intended to cause 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 will provide clear guidance to police, prosecutors, the courts and the public on what constitutes a terrorist group or activity while protecting the lawful activities of legitimate political or lobby organizations. It forms the basis for new offences in the Criminal Code that would 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 would 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 under this offence would 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 would include knowingly recruiting into the group new individuals for the purpose of enhancing the ability of the terrorist group to aid, abet or commit indictable offences. The maximum sentence for the offence of participating or contributing would be 10 years imprisonment. The maximum sentence for facilitating would be 14 years imprisonment.
  
  
• instruct anyone to carry out a terrorist act or an 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 would be 10 years.
  
  

The Criminal Code would 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 would also be ineligible for parole for half of the sentence imposed unless the accused can demonstrate that it is not in the public interest. This is similar to the approach taken in Bill C-24, the Government of Canada's organized crime bill, and reflects the serious nature of these crimes.

In addition to these Criminal Code reforms, the new definition and designation schemes would 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 proposals would allow an increase in the number of Federal Court judge positions by up to 15. Of these new positions, 13 could be added to the Trial Division, while two could be added to the Court of Appeal.

STRONGER INVESTIGATIVE TOOLS

Terrorist groups are increasingly able to take advantage of sophisticated techniques to further and conceal their activities. Law enforcement and national security agencies must have the ability to effectively investigate individuals and groups who may pose a threat to the safety and security of Canadians. The Government of Canada's proposed anti-terrorist measures would provide new investigative tools to allow security, intelligence and law enforcement agencies to more effectively gather knowledge about terrorist groups. The proposed measures also ensure that, once this information has been gathered and evidence of a crime exists, prosecution of terrorist offences can be undertaken efficiently and effectively. Measures would include:

• Electronic Surveillance. The investigatory powers currently in the Criminal Code and in Bill C-24 that make it easier to use electronic surveillance against criminal organizations would 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 would extend the period of validity of a wiretap authorization from the current sixty days to up to one year when police are investigating a terrorist group offence. A Superior Court judge would 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 could be delayed for up to three years.

  Police and intelligence agencies must have sufficient time to investigate these complex crimes, since terrorist operations can take months or years to plan.

• The Official Secrets Act would be amended to address national security concerns, including threats of espionage by foreign powers and terrorist groups, and the intimidation or coercion of communities in Canada. The Act would also have a new title, the Security of Information Act.

  New offences would be created to counter intelligence-gathering activities by foreign powers and terrorist groups. This would defend Canadian interests from threat or harm by protecting essential infrastructures from entry or sabotage. Other new offences would include the unauthorized communication of special operational information by persons permanently bound to secrecy, harbouring, threats or violence for the purpose of increasing the capacity of a foreign power or of a terrorist group to harm Canadian interests. The proposals would also create a "preparatory acts" offence, which would make it a crime to prepare to commit any of the above acts.

• The Canada Evidence Act would be amended to include changes to courtroom and other proceedings to ensure the protection of classified information where appropriate. Information that could be protected from disclosure might, for example, threaten another country's vital interests or jeopardize intelligence networks. The proposed anti-terrorism measures would set out a step-by-step procedure to balance the need to protect information relating to the national interest and the need to ensure a fair and open trial.
  
  
• The National Defence Act would 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 would be required to authorize any interception of private communications in order to ensure that the privacy of individual Canadians is protected.

  These measures would allow the CSE to gather foreign intelligence concerning terrorist groups in order to protect Canadians and national security from terrorist activities, as well as guard government communications networks from terrorists.

• The Criminal Code would 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 would require the consent of the Attorney General and would increase the ability of law enforcement to effectively investigate and obtain evidence about terrorist organizations, subject to legal safeguards to protect the witness.
  
  
• The Criminal Code would be amended to create a "preventive arrest" power to arrest and impose conditions of release where appropriate on suspected terrorists. This will prevent terrorist activity and protect the lives of Canadians. This would 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 would be required except where exigent circumstances exist, and the person would have to be brought before a judge within 24 hours of an arrest.
  
  
• The Proceeds of Crime (money laundering) Act would be amended in order 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).
  
  
• The DNA warrant scheme and data bank would be extended to include terrorist offences. When Parliament enacted amendments to the Criminal Code in 1995 to create the DNA warrant scheme, a number of terrorism crimes were included in the list of designated offences for which a DNA warrant could be issued during a criminal investigation. In 1998, the national DNA data bank was established. Under the proposed amendments, terrorist crimes, including those already in the Criminal Code and those created under the proposed legislative package, would be added to a list of "primary designated offences" for which DNA samples can be taken and stored.
  
  

Canada will also sign the Council of Europe Convention on Cyber-Crime. The Convention 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, fraud and forgery. Canada would ratify the convention at a later date.

COMPREHENSIVE CHECKS AND BALANCES

The legislative proposals in the Anti-Terrorism Act take aim at terrorist organisations and will assist the Government of Canada to meet the extraordinary challenges that terrorism poses. However, the package also includes checks and balances to ensure consistency with Canada's legal framework, including the Canadian Charter of Rights and Freedoms. Safeguards include:

• a Parliamentary review of the anti-terrorism legislation in three years;
  
  
• clearly defining provisions so that they are targeted at terrorists and terrorist groups. Legitimate political activism and protests are also protected through the precise definition of terrorist activities.
  
  
• placing the burden of proof on the state to establish that there was intent on the part of the accused "for the purpose of facilitating or carrying out terrorist activity."
  
  
• ensuring that the process of adding a group to the list of terrorists incorporates a number of protections including provisions for removal, judicial review and safeguards to address cases of mistaken identity. As well, the list must be reviewed every two years by the Solicitor General.
  
  
• requiring the Attorney General's consent to prosecute the financing of terrorism offences; and
  
  
• requiring the Minister of Defence's authorization for the Communications and Security Establishment to intercept foreign communications that may have a Canadian connection.
  
  

STRONGER LAWS AGAINST HATE CRIMES AND PROPAGANDA

Following the attack on September 11, Canadians have called for a renewed commitment to Canadian values of respect, equality, diversity and fairness and a strong condemnation of hate-motivated violence that has occurred in Canada and elsewhere against innocent people. This is a campaign against terrorists and not against any one community, group or faith. The Government of Canada is proposing changes to legislation that address the root causes of hatred, reaffirm Canadian values and ensure that Canada's renowned respect for justice and diversity is reinforced. Measures would include:

• amendments to the Criminal Code that would allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who posted the material would be given the opportunity to convince the court that the material is not hate propaganda. The provision would apply 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 would 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. This offence would be subject to 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.

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Department of Justice
October 15, 2001