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

AuthorMichael Nesbitt
ProfessionAssociate Professor, University of Calgary, Faculty of Law
Formalism and Substance in the
Domestic Implementation of Transnational
Criminal Law in Canada’s Anti-terrorism
Criminal Regimes
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, ].
 
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 Codes 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 –.

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