Anti-terrorism legislation
| Author | Robert Hubbard; Daniel Murphy; Fergus O'Donnell; Peter De Freitas |
| Pages | 653-684 |
CHAPTER
TEN:
ANTI-TERRORISM
LEGISLATION
A.
Introduction
to the
Anti-terrorism
Act
Bill
0-36,
the
Anti-terrorism
Act,1
was the
Canadian government's response
to
the
terrorist events
in the
United
States
on
n
September
2001.
As the
par-
liamentary
secretary
to the
Minister
of
Justice
stated
in
introducing
the
third
reading
of the
Anti-terrorism
Act:
Bill
C-36
was
introduced
in the
House
to
provide needed enhancements
to
Cana-
da's
ability
to
address terrorism under
the
Criminal
Code,
to
make related changes
to
other
laws
and to
amend Canadian
law to
improve
our
ability
to
respond
to
dis-
crimination
and
hatred.
The
bill
responds
to the
events
of
September
n
and the new
face
of
terrorism that
was
revealed that day.
While
more than
two
months have passed since
the
events
of
that day,
I am
sure that none
of us can
forget
the
horror
of the
mass murder that
took place.
In
summarizing
the
aims
of the
Anti-terrorism
Act,
the
parliamentary secretary
also
stated:
I
now
turn
to the
major elements
of the
bill. Bill C-36 would implement
the
international convention
on the
suppression
of
financing
of
terrorism
and the
international convention
on the
suppression
of
terrorist bombings,
the two
remaining international conventions
on
terrorism that Canada
has not yet
imple-
mented.
The
term terrorist activity
is
defined
under this bill.
The
definition makes
reference
to
offences
that
are set out in
international conventions relevant
to
terrorism.
...
The
bill
would provide
for a
list
of
terrorist groups
and
persons
to be
made
by
order
of the
federal cabinet
on the
recommendation
of the
Solicitor General
of
Canada.
Under Bill
C-j6
comprehensive
new
terrorism
offences
under
the
Criminal
Code
would
be
created.
These include
offences
relating
to
participating
in,
facilitating
or
instructing terrorist
1
Anti-terrorism
Act,
S.C.
2001,
0.41.
2
Stephen Owen (Parliamentary Secretary
to
Minister
of
Justice
and
Attorney General
of
Canada),
Hansard,
House
of
Commons debates
for 28
November
2001,
pp.
1520—1525,
accessible
at
time
of
writing
at
28/HANi2o-E.htm#SOB-954io>.
activity
and
harbouring
others
who
carry
out
terrorist
activity.
These
offences
would
criminal-
ize
a
full
range
of
activities
related
to
terrorism....
The
bill
would
also
provide
for
investigative
hearings
under
the
Criminal
Code.
These
hearings,
permitted
under
limited
conditions,
would
be
judicially
supervised
and
would
require
the
individual
to
give evidence
to
assist
the
investigations
of
terrorist
offences.
Such
evidence
could
not be
used against that
individual
and so
protects
a
person's right
to
remain
silent
in his or her own
criminal proceeding. [Emphasis
added.]3
Impeding
the
financing
of
terrorism
and
drying
up the
sources
of
financing
of
terrorism
was an
express goal
of the
legislation.
In
introducing
the
third
reading
of the
legislation,
the
parliamentary secretary noted:
Under
Bill
C-j6
measures
would
be
added
to the
Criminal
Code
on the
financing
of
ter-
rorism.
Included
within
these
measures
are
provisions
on the
seizure,
restraint
and
forfeiture
of
terrorist
property.
In
addition,
the
bill
would
amend
the
Proceeds
of
Crime
(Money
Laundering)
Act.
The
mandate
of the
Financial Transactions
and
Reports
Analysis
Centre
of
Canada,
FINTRAC,
under this
act
would
be
expanded
to
gather, analyze
and
dis-
close information
on
terrorist
money
laundering.
Also,
as a way to
assist
in
drying
up the
source
of
funds
for
terrorist groups
and
to
prevent abuse
of
Canada's laws
on
charities, Bill
C-36
would
enact
the
charities
registration security information act.
This
act
would
allow
for the
removal
or
denial
of
charitable status from organizations
where
there
are
reasonable grounds
to
believe that
the
organizations make
their
resources available
to
terrorists.
[Emphasis
added.]4
On
18
December
2001,
the
Anti-terrorism
Act was
proclaimed into
force.
Strictly
speaking, this legislation aimed
at
combatting terrorism
has
very little
to do
with
the
proceeds
of
crime. However,
the
Anti-terrorism
Act
contains
several
in rem
forfeiture
provisions aimed
at
terrorism that
are
very similar
to
the in rem
forfeiture
provisions
in
Part
XII.2
of the
Criminal
Code*
and in the
Controlled
Drugs
and
Substances
Act.6
As
these provisions will undoubtedly
come under
attack
as
unconstitutional,
it
seems prudent
to
consider them
here,
for the
attack
on
these provisions will have
an
impact
on the in rem
pro-
visions
generally.
3
Ibid,
at
1520—1525.
4
Owen,
above
note
2, at
1520—1525.
5
Criminal
Code,
R.S.
1985,
c.C—46,
s.i,
as
amended.
6
Controlled
Drugs
and
Substances
Act, S.C.
1996,
0.19.
TEN: ANTI-TERRORISM LEGISLATION
[654]
MONEY
LAUNDERING
AND
PROCEEDS
OF
CRIME
In
addition,
the
anti-terrorism amendments
to the
Criminal
Code
contain
seize-and-freeze
provisions that
are
very similar
to
other
Criminal
Code
pro-
visions dealing
with
proceeds
of
crime. Indeed, various sections
of the
Anti-
terrorism
Act
incorporate
by
reference many
of the
provisions
of
Part
XII.2
of
the
Criminal
Code.7
Again,
as
cases dealing
with
seizure
and
freezing
in one
area
of the
Criminal
Code
will influence
cases
in
another,
it is
important
to
detail
the
newer
anti-terrorism seize-and-freeze sections
of the
Code.
Thus,
-while
this
book
focuses
on
proceeds
of
crime
and is not
devoted
to
covering
the
anti-terrorism legislation enacted
by the
Anti-terrorism
Act in any
depth,
it
is
important
to
describe
at
least
some
of the
basic
provisions
—
especially
those dealing
with
the
seizure
and
forfeiture
of
property
and
related
provi-
sions. Some
of
these provisions enacted
by the
Anti-terrorism
Act
are,
there-
fore,
set out
below.
B.
Unlawful
Use of
Property
in Aid of
Terrorism
The
Anti-terrorism
Act
adds
a
definition
for
"terrorist offence"
to
section
2 of
the
Criminal
Code:
(a)
an
offence
under
any
of
sections
83.02
to
83.04
or
83.18
to
83.23,
(b)
an
indictable
offence
under
this
or any
other
Act of
Parliament committed
for
the
benefit
of, at the
direction
of or in
association with
a
terrorist group,
(c)
an
indictable
offence
under this
or any
other
Act of
Parliament where
the act or
omission constituting
the
offence
also constitutes
a
terrorist activity,
or
(d)
a
conspiracy
or an
attempt
to
commit,
or
being
an
accessory
after
the
fact
in
relation
to, or any
counselling
in
relation
to, an
offence
referred
to in
paragraph (a),
(b)
or
(c);
[Emphasis
added.]
The
above definition means that
the
offences
relating
to
terrorist property,
considered below,
are
terrorist
offences.
The
definition
of
"terrorist offence"
is
also important when considering whether investigative hearings
are
per-
mitted
under section
83.28
of the
Criminal
Code.
Investigative hearings
are
also
dealt
with
later
in
this chapter.
In
addition
to
defining "terrorist offence,"
the
Criminal
Code
provides
a
definition
of
"terrorist
activity." Because
some
of the
terrorist-financing
offences,
such
as
those
in
paragraph
83.02(0)
of the
Criminal
Code,
refer
to
terrorist activity,
the
extensive definition
of
"terrorist activity"
provided
in
section
83.01
of the
Criminal
Code
is
important:
7
See, e.g.,
Criminal
Code,
above
note
5,5.83.13,
dealing
with
the
freezing
and
seizing
of
assets
that
incorporates
subss.
83.13(11)—(12),
462.32(4)
and
(6),ss.
462.34
to
462.35
and
462.4
of
Part
XII.2.
See
also
3.83.15.
[655]
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