Countering Terrorism at the National Level

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 255-300

255

chaPter 7

COUNTERING

TERRORISM AT

THE NATIONAL LEVEL

As discussed in Chapter 6, terrorist acts are international crimes.

Whether by treaty or by virtue of U.N. Security Council Resolution

1373, all states are obliged to criminalize terrorist acts. The existing

multilateral piecemeal conventions on terrorism def‌ine the sorts of

acts constituting crimes. The more generic reference to “terrorist acts”

in Resolution 1373 does not, although the international community’s

understanding of the content of such acts arguably has been ref‌ined by

subsequent resolutions. States have substantial latitude, therefore, to

introduce anti-terrorism terrorist measures per their particular inclina-

tions. As noted in Chapter 6, this has sparked concern about opportun-

istic anti-terrorism; that is, the t arring by some regimes of dissident,

separatist or other politically undesirable groups as “terrorist.” Even in

countries with f‌irm democratic traditions and strong adherence to the

rule of law, the exact content of antiterrorist criminal law has proven

controversial.

Canada’s anti-terrorism cr iminal laws predate 9/11. As Kent Roach

has forcefully argued, conventional criminal law in the area of mur-

der, sabotage, bodily harm and (more recently) criminal organization

were, and remain, of direct relevance in outlawing the acts constituting

terrorism. So too, the “inchoate” offences of attempting, conspiring,

counselling, aiding and abetting, and being an accessory are broad con-

NATIONAL SECUR ITY LAW256

cepts in Canadian law, capable of outlawing most of the actions on the

periphery of an actual ter rorist act.1

Nevertheless, in the immediate aftermath of 9/11, the government

moved rapidly to create a signif‌icant new anti-terrorism criminal law

architecture. Its initial response to U.N. Security Council Resolution

1373 was the making of regulations under Canada’s United Nations Act

creating terrorism f‌inancing crimes. A more comprehensive response

followed in the form of Bill C-36 (2001),2 Canada’s Anti-terrorism Act.3

All of these sources of anti-terrorism criminal laws remain in force,

and thus merit discussion.

Part i: Pre-9/11

criminal cOde

PrOviSiOnS

As noted, many conventional criminal offences — not least, murder and/

or assault — could be committed in the course of terrorist violence. In

addition, prior to the 2001 Anti-terrorism Act (ATA), the Criminal Code

included a number of provisions implementing Canada’s international

anti-terrorism obligations; specif‌ically, those found in the piecemeal

international anti-terrorism obligations discussed in Chapter 6. The

specif‌ics of these criminal offences are outlined in Table 7.3, and gov-

ern crimes involving nuclear material and against aircraft and airports,

maritime navigation and internationally protected persons, as well as

criminalizing hostage taking.

1 See discu ssion in Kent Roach, “The New Terrorism Offence s and Criminal

Law,” in Ronald Daniels, Pat ick Macklem & Kent Roach, eds., The Secur ity

of Freedom (Toronto: University of Toronto Press, 2002) at 152 et seq. [Roach,

“New Terrorism Offence s”]. See also Kent Ro ach, September 11: Consequences for

Canada (Montrea l: McGill-Queen’s University Pre ss, 2003) [Roach, September

11]. For these and related rea sons, critics like Don St uart have character ized

the post-2001 anti-terror ism criminal la w amendments as unneces sary and un-

desirable “quick f‌i x” legislation. Don Stuart , “The Dangers of Quick Fix Legisl a-

tion in the Cri minal Law: The Anti-ter rorism Bill C-36 should be Withdra wn,”

in Daniels et a l., The Security of Freedom, ibid.; Don Stuart, “Avoiding Myths and

Challengi ng Minister of Justice Cotler t o Undo the Injustices of Our Anti-te r-

rorism Law s” (2006) 51 Crim. L .Q. 11.

2 Bill C-36, An Act to amend the Cri minal Code, the Off‌icial Secrets Act, the Can ada

Evidence Act, the Procee ds of Crime (Money Laundering ) Act and other Acts, and to

enact meas ures respecting the registration of charities , in order to combat terrorism,

1st Sess., 37th Parl., 2001.

3 S.C. 2001, c. 41.

Countering Terror ism at the National Level 257

Part ii: u.n. act regulatiOnS

By 9/11, however, Canada had not ratif‌ied the international terrorism

f‌inancing convention, and lacked a Criminal Code provision govern-

ing terrorism f‌inancing. This omission became an acute problem after

the U.N. Security Council issued Resolution 1373, obliging terrorism

f‌inancing crimes.

For exactly this reason, the federal government’s f‌irst criminal law

response to the events of 9/11 was not new statute law introduced in

and promulgated by Parliament, but rather regulations quickly issued

under the United Nations Act.4 This statute exists to expedite Canadian

compliance with U.N. Security Council resolutions imposing economic

or other sanctions under Chapter VII of the U.N. Charter. Thus, it em-

powers the governor-in-council (GIC) to make orders and regulations

that appear to it “to be necessary or expedient” as means to implement

a measure called for by the U.N. Security Council under Article 41 of

the United Nations Char ter. Put another way, it delegates authority to

the federal executive to legislate via regulations, a commonplace and

entirely constitutional practice in Canadian law. Under the Act itself, a

violation of these regulations is a crime, attracting a substantial penalty

of up to ten years’ imprisonment.5

With one exception discussed below, the existing United Nations

Act regulations all involve classic sanctions measures, often relating

to arms sales to geographically def‌ined, sanctioned regimes, groups

or persons.6 These provisions bar persons in Canada and Canadians

outside Canada from engaging in the prohibited transactions w ith the

sanctioned entity. However, the regulations motivated by terrorism

concerns have morphed considerably in their scope since 9/11. In do-

ing so, they have tracked the evolution of Security Council Resolutions

1267 and 1373. In responding to the events of 9/11, the government

embellished its approach to implementing the sanctions regime for per-

sons listed by the Secur ity Council’s 1267 Committee because of their

aff‌iliation with the Taliban or al-Qaeda (discussed in Chapter 6).

4 R.S.C. 1985, c. U-2.

5 Ibid., s. 3.

6 United Nations Iraq Regula tions (SOR/90-531 and SOR/20 04-221); United Na-

tions Liber ia Regulations (SOR/20 01-261); United Natio ns Rwanda Regulations

(SOR/94-582); United Nations Sierra Leon e Regulations (SO R/9 8-4 00); Unite d Na-

tions Sudan Reg ulations (SOR/200 4-197); United Nations Dem ocratic Republic of

the Congo Regulations (SOR /2004-222); and United Nations Côte d’Ivoire Regula-

tions (SOR/2005 -127).