The Ontario Court of Appeal recently further clarified Canada’s anti-terrorism laws in a ruling on a Criminal Code provision that criminalizes complicity with terrorist groups.
The case of U.S.A. v. N. (No. 1) dealt with the extradition of N. to the United States, where N. was wanted on terrorism charges for his alleged role in assisting the Tamil Liberation Tigers by attempting to purchase armaments.
N. appealed his extradition on a number of bases, including that the Criminal Code’s definition of “terrorist activity” violated his freedom of expression, guaranteed under section 2(b) of the Charter, and that the Code’s complicity provision under which he was charged was unconstitutionally overbroad and therefore violated his section 7 Charter rights (rights to life, liberty and security).
In this blog post, we will only be looking at the s. 7 challenge as it is the more novel and instructive portion of the judgement.
Section 83(18) of the Criminal Code makes it a crime for anyone to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. The section contains a number of interpretative provisions that arguably broaden the scope of the offence by settling certain ambiguities in a manner that benefits the Crown.
N. argued that the wide meaning given to the words “participating” and “contributing”, as well as its very broad definition of “terrorist activity” (which includes conspiracy, attempt and threat to commit terrorist acts), potentially leads to the imposition of criminal liability for conduct that is far removed from any physical terrorist action.
The Court observed that the principles guiding the determination of whether a criminal prohibition is so broad as to be unconstitutional are settled and have in fact already been applied to the anti-terrorism sections of the Code. Namely, the courts must enquire as to “whether the scope of a prohibition goes beyond that which is necessary to accomplish the parliamentary objective underlying the creation of the criminal prohibition [, in which case] the limitation on liberty inherent in the imposition of a criminal sanction cannot be justified and is contrary to the principles of fundamental justice.” In making this enquiry, the courts must afford “a substantial measure of deference” to Parliament’s assessment of what measures are needed to attain the objective in question. Unless the measures are “grossly disproportionate” to the State’s objective, the prohibition cannot be considered unconstitutionally overbroad.
The Court disagreed with N. that the breadth of s. 83.18 made it unconstitutional. Firstly, while it is true that the activity participated in or contributed to by the accused need not be a “terrorist activity” and could therefore potentially encompass harmless or legitimate activities, the contribution or participation must be done knowingly, that is, the accused must be aware that the activity in question is in some way tied to a terrorist group. Secondly, mere participation in or contribution to activities of a terrorist group is insufficient; only a participation or contribution with the intended purpose of improving the group’s ability to facilitate or carry out a terrorist activity (and not just any activity) can attract criminal liability. That s. 83(18) not require that the accused know the specific nature of the terrorist activity to be carried out does not deter from the fact that a “specific and high degree of moral culpability” on the part of the accused must be proven.
The Court then turned to the objective of the impugned provision, noting that it is part of a 2001 legislative package intended to further the prevention of terrorism and facilitate the prosecution of terrorism-related offences. According to the Court, “[i]t is this preventive objective that explains why Parliament took such an expansive approach to defining the scope of liability.”
Finally, the Court ruled that the reach of s. 83.18 is not grossly disproportionate with Parliament’s objective. The Court reasoned that “in light of the nature of sophisticated terrorist operations and the huge price to be paid if terrorist plots reach fruition, it was reasonably open to Parliament to treat conduct that is preparatory to and in furtherance of the ultimate goal of terrorist groups as sufficiently harmful and dangerous to the community to warrant its criminalization as a substantive offence.”
From a human rights perspective, this case further establishes the point that Canada, notwithstanding its traditional liberalism, will not indifferently harbour persons accused of terrorism in other jurisdictions. And while the Code’s political, religious or ideological motive requirement for terrorist offences was struck down in the Khawaja case, it would appear that the courts are willing to stretch the usual reservations regarding actions or omissions twice removed from a materially completed crime (such as attempting to conspire – these are known in criminal law jargon as “double-barrelled inchoate offences”) far enough that circumstances that should arguably not fall within the purview of the provision are nonetheless caught, at least hypothetically. It remains to be seen whether the Supreme Court of Canada, which has accepted to hear N.’s appeal, agrees with the two