Terrorism Offences – Mississauga & Brampton
Before the terrorist attack against the World Trade Center on September 11, 2001, the Criminal Code contained almost no specific reference to terrorism. After that event, the Canadian Parliament passed Bill C-36, the Anti-terrorism Act (S.C. 2001, c.41) which received royal assent on December 18, 2001. This statute added an entire new component to the Criminal Code. Falling between Part II and Part III is now Part II.1 – Terrorism, which contains numerous provisions regarding the financing of terrorism, the establishment of a list of terrorist entities, the freezing of property, the forfeiture of property, and participating, facilitating, instructing and harbouring of terrorism.
Bill C-36, the “omnibus” bill extends the powers of government and institutions within the Canadian security establishment to respond to the threat of terrorism. The expanded powers were highly controversial due to widely perceived incompatibility with the Canadian Charter of Rights and Freedoms, in particular for the Act’s provisions allowing for ‘secret’ trials, preemptive detention and expansive security and surveillance powers.
Some of the bill’s provisions expired on March 1, 2007 (provisions that had to do with preventative arrest and investigative hearings).
Types of Terrorism Related Offence
The Anti-terrorism Act created new offences set out in sections 83.18 – 83.23 of the Criminal Code (participation, facilitation, instructing and harbouring). These provisions make it a crime to:
- knowingly facilitate a terrorist activity;
- knowingly instruct anyone to carry out a terrorist activity or a terrorist activity in connection with a terrorist group; and
- knowingly harbour or conceal a person who has carried out or is likely to carry out a terrorist activity.
As a safeguard, these offences require the consent of the Attorney General under section 83.24 to commence proceedings. Sentences are to be served consecutively and parole eligibility can be fixed at one half of the sentence. Moreover, section 83.27 allows for the imposition of a maximum penalty of life imprisonment for any indictable offence that also constitutes terrorist activity, other than for those for which the minimum penalty is already life imprisonment.
The terrorism offences are largely modelled on the organized crime offences which were part of Bill C-24 (An Act to amend the Criminal Code (organized crime and law enforcement), C-32, S.C. 2001).
There are evidentiary limits to disclosure. A Minister of the Crown or an official (as defined in section 36.1 of the Canada Evidence Act) may object to the disclosure of information on the grounds of a specified public interest before a court, person or body with jurisdiction to compel the production of information. Once an objection is made, the court, person or body shall ensure that the information is not disclosed other than in accordance with the Act. The Federal Court and the superior court, as the case may be, will determine the objection.
The terrorist financing offences contain knowledge and intention requirements. Section 83.02, for example, provides that the collection or provision of property be “wilful”, and be undertaken with the knowledge or intention that the property will be used to carry out certain activities.
Section 83.03 requires knowledge or intention that the property or service will be used for the purpose of facilitating or carrying out a terrorist activity or benefiting any person who is facilitating or carrying out such an activity or knowing that they will be used by or benefit a terrorist group.
Section 83.04 requires that the use of property be for the purpose of facilitating or carrying out a terrorist activity, or possessing property knowing or intending that it will be used for those purposes.
Sentences for Terrorist Offences
Section 83.26 provides that sentences imposed for certain terrorism offences, other than a sentence of life imprisonment, have to be served consecutively to any other sentence arising out of the same event or series of events or to any other sentence that the person is already subject for an offence under any of these provisions. The offences involved are those under sections 83.02 to 83.04 and 83.18 to 83.23.
Section 83.27 provides that a person convicted of an indictable offence that does not have a minimum sentence of life imprisonment, can be liable to imprisonment for life where the act constituting the offence also constitutes a terrorism offence.
Section 743.6(1.2) of the Criminal Code requires that the judge impose parole ineligibility equivalent to one half of the sentence or 10 years, whichever is less, in respect of terrorism offences, unless the Court is satisfied that such a disposition is not required. The ordinary period of parole eligibility is after one third of the sentence has been served with day parole being available 6 months before such eligibility.
Proceeds of Crime & Financing
The Anti Terrorism Act (ATA) also amended the Proceeds of Crime (Money Laundering) Act, which was consequently renamed the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA).
As a result of these amendments, the mandate of FINTRAC, Canada’s financial intelligence unit, was expanded to include assisting in the detection and deterrence of terrorist activity financing. Regulations were brought into force on June 12, 2002 to require financial institutions and other intermediaries to report suspicious financial transactions relating to terrorist activity financing and terrorist property.
These changes allow Canada to guard against the abuse of its financial system by terrorist groups. Law enforcement authorities and the Canadian Security Intelligence Service (CSIS) can obtain necessary information about suspected terrorist financing activities.
Amendments to the PCMLTFA received Royal Assent on December 14, 2006. The amending Bill C-25 can be consulted on the Parliament of Canada Web site.
The ATA established the Charities Registration (Security of Information) Act (CRSIA).
The CRSIA makes possible the use of certain information in determining whether organizations can be registered as charitable under the Income Tax Act or maintain their charitable status. It allows the Minister of Public Safety and the Minister of National Revenue to deny or revoke the charitable status of an organization when they have reasonable grounds to believe that, based on the classified information before them, an organization has made, makes or will make available any resources, directly or indirectly, to a “listed entity” (as defined in section 83.01 of the Criminal Code).
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