Formalism and Substance in the Domestic Implementation of Transnational Criminal Law in Canada's Anti-terrorism Criminal Regimes

• Author: Michael Nesbitt
• Profession: Associate Professor, University of Calgary, Faculty of Law
• Pages: 115-140

115

five

Formalism and Substance in the

Domestic Implementation of Transnational

Criminal Law in Canada’s Anti-terrorism

Criminal Regimes

MICHAEL NESBITT*

A. INTRODUCTION

On  October , Canada enacted the (now replaced) War Measures Act

in response to the FLQ crisis and specically to the kidnappings of British

diplomat James Cross and Quebec politician Pierre LaPorte, the latter of

whom was tragically killed by his kidnappers. On  June , Air India

Flight  exploded mid-air on its way from Montreal to London, killing all

 persons on board. Both incidents were treated publicly as terrorism and

are often seen as such today — the politicall y motivated killing of innocents

to advance a group or organization’s aims. Yet, in neither case did Canada

respond with criminal terrorism charges under domestic law. e reason

for this was simple: applicable terrorism oences did not exist at the time.

e events of / and the domestic and international reaction thereto

changed that dynamic for Canada. On  September , Canada began

drafting legislation that would quickly become the Anti-terrorism Act,.

* Associate Professor, Universit y of Calgary, Faculty of Law; Senior Research Aliate

with e Canadian Network for Research on Terrorism, Security and Society (TSAS);

and Fellow with the Canadian Global Aairs Institute. e author wishes to thank

Dalal Souraya for her truly exceptional research assistance and for her impressive

capacity to maintain such a professional, positive, can-do attitude while her nal year

of law school was interrupted by COVID-. All errors are solely those of the author.

 Anti-terrorism Act, SC , c  [ATA, ].

 

116

Indeed, by  December , the ATA,  was enacted. In so doing,

Canada was able to claim that it had met the end-of-December dead-

line imposed by UNSC Resolution  to report back on the measures

Canada had taken to ght terrorism. e ATA,  introduced Part II.1

of the Criminal Code, which included what we now know as the Code’s

anti-terrorism criminal oences; it also created the power to promulgate

by way of regulation what is now known as the Code’s terrorist entity

listing regime.

Meanwhile, as Canada was working toward enacting the ATA, ,

it also took the opportunity to enact the Suppression of Terrorism Regula-

tions under the United Nations Act, also in response to Resolution .

Like the Criminal Code’s anti-terrorism provisions, the Terrorism Regu-

lations allowed for the unilateral (Canadian) listing of terrorist entities

and individuals, while similarly seeking to combat terrorist nancing.

In subsequent years, Canada also worked to renovate the Taliban, ISIL

(Da’esh) and Al-Qaida Regulations, which were rst enacted as the Taliban

Regulations in , also under the UN Act. us completed the trilogy

that is now, in essence, both Canada’s anti-terrorism criminal regime and

its three-pronged regime for listing terrorist groups and/or individuals.

Today this regime is many things, but rst and foremost it was a direct

response to international pressures and legal obligations to respond to

al-Qaida and the attacks of / with concrete action.

In Section B of this chapter, I take a broad look at the ATA, 

and the criminal oences regime it created, with a specic focus on the

 reats to International Peace and Security Caused by Terrorist Acts, SC Res ,

UNSCOR, th Year, UN Doc S/INF/ () [Res ].

 See generally Kent Roach, September : Consequences for Canada (Toronto: University

of Toronto Press, ) at  [Roach, Consequences for Canada].

 Criminal Code, RSC , c C-.

 See Regulations Establishing a List of Entities, SOR/- [Criminal Code Listings].

 Regulations Implementing the United Nations Resolutions on the Suppression of Terror-

ism, SOR/- [Suppression of Terrorism Regs].

 United Nations Act, RSC , c U- [UN Act].

 Regulations Implementing the United Nations Resolutions on Taliban, ISIL (Da’esh)

and Al-Qaida, SOR/- [ISIL Regs].

 See Report of the Government of Canada to the Counter-Terrorism Committee of the

United Nations Security Council on Measures Taken to Implement Resolution 

() [Canada’s  Report].

 For a compelling analysis demonstrating this point, see Roach, Consequences for

Canada, above note  at –.