Interference

• Author: Craig Forcese/Leah West
• Pages: 251-294

251

CHA PTER 6

INTER FERENCE

“To interfere with” something is to prevent it from “continuing or being

carr ied out properly.”1 In this chapter, we use “interference” as a catch-

all category of conduct by threat actors impeding Canadian national

security objectives, but not amounting to terror ism or aggressive use of

force. We follow the Canadian Security Intelligence Service Act in focus-

ing on (1) foreign-inf‌luenced activities, and (2) sabotage and espionage.

We begin, however, with the older concepts of treason, sedition, and

subversion.

PART I: TREA SON, SEDITION, AND

SUBV ERSION

Treason, sedition, and subversion are still par t of Canadian law, although

antiquated to the point of obsolescence. The conduct covered by these

concepts overlaps with more modern and more precise legal r ules. But

the older, more general crimes sit on the statute book, often in a form that

would create challenges of application in a modern legal environment.

In a colloquial sense, tre ason is “the crime of betray ing one’s coun-

try, especially by attempting to kill or overthrow the sovereign or gov-

ernment.”2 “Sedition” means “[c]onduct or speech inciting people to

1 Oxford English D ictionary (online): “interfere.”

2 Ibid: “t re a son .”

NATIONAL SECUR ITY LAW252

rebel against the authority of a state or monarch.”3 “Subversion” is “[t]he

undermining of the power and authority of an established system or

institution.”4 Each of these expressions al so has a legal def‌inition in

Canadian law. “Subversion,” for example, is included as a “threat to the

security of Can ada” in the CSIS Act, and is def‌ined as “activities directe d

toward undermining by covert unlawful acts, or directed toward or

intended ultimately to lead to the destruction or overthrow by violence

of, the constitutionally established system of government in Canada.”5

All three concepts implicate in f‌idelity to the state, done in a manner

that interferes wit h its functions and that may jeopard ize its persis-

tence. Thus, treason is about betrayi ng the state of nationality (or in the

older sense, the monarch of which the accused i s a subject). Likewise,

the crime of sedition penalizes disloyalty to t he state and focuses, in

the classic sense, on “writing destined to produce sentiments of hate

and enmity between the classes of His Majest y’s subjects.”6

The various oences penaliz ing crimes of disloyalty to t he state

(not discussed elsewhere in th is book) are set out in Table 6.1.

Table 6.1: Key Crimes Against the State

Of‌fence Criminalized Acts

High treason[] While in Canada (or in the case of a Can adian citizen, while in

or outside Canada):

• seriously harms, imprisons, or restrains the monarch;

• levies or prepares to lev y war on Canada; or

• assists an enemy at war with Can ada or an armed force

against whom Canadian Forces are engage d in hostilities.

Tre as on [] While in Canada (or in the case of a Canadian cit izen, while in

or outside Canada):

• uses force or violence for the purp ose of overthrowing the

government;

• discloses without authorization to a foreig n agent military

or scientif‌ic evidence that may be used for a pu rpose preju-

dicial to the safety or defence of Cana da;

• conspires to commit high treason or to use viol ence to

overthrow the government;

[] Criminal Code, RSC , c C-, s .

[] Ibid.

3 Ibid: “sedition .”

4 Ibid: “subversion.”

5 Canadian Securit y Intelligence Act, RSC 1985, c C-23, s 2 (CSIS Act).

6 See discussion in R ex v Carrier, 1951 CanLII 387 (QC CQ) at 79.

Interference 253

Of‌fence Criminalized Acts

Tre aso n

(continued)

• forms an intention to commit high treason and completes

an overt act; or

• conspires to disclose military or sci entif‌ic evidence or

forms an intention to do so and completes an over t act.

Assisting an

enemy alien to

leave Canada

or omitting

to prevent

treason[]

Assists a subject of a st ate that is at war with Canada, or a

state against whose forces Can adian Forces are engaged in

hostilities to leave Canada witho ut the consent of the Crown,

unless the accused proves they did not intend to a ssist; or

Knowing that a person is about to comm it high treason or

treason, and the accused does not , with all reasonable dis-

patch, inform a justice of the peace or other pe ace ocer.

Inciting

mutiny[]

Attempts, for a traitorous or mut inous purpose, to seduce a

member of the Canadian Forces from thei r duty and alle-

giance to Her Majesty; or

Attempts to incite or to induce a membe r of the Canadian

Forces to commit a traitorous or mutinous act .

Assisting

deserter[]

Aids, assists, harb ours, or conceals a person who is a deserter

or absentee without leave from the Can adian Forces.

Of‌fences in

relation to

military forces[]

Interferes with, impairs, o r inf‌luences the loyalty or discipline

of a member of a force;

Publishes, edits, issues , circulates, or distributes a writing

that advises, counsels, or urges insubordination, disloyalty,

mutiny, or refusal of duty by a member of a force; or

Advises, counsels, urges, o r in any manner causes insubordina-

tion, disloyalty, mutiny, or refusal of duty by a member of a force.

Foreign

enlistment[]

In the case of a Canadian national , within or outside Canada

enlists (or boards a conveyance to leave Canada in order to

enlist) in the armed forces of any foreign st ate at war with

any friendly foreign state;

In the case of anyone within Canada , induces any such enlist-

ment or attempt to leave Canada to enlist ;

Within Canada, recruits any p erson to enlist in the armed

forces of another state;

Within Canada, f‌its out any milit ary expedition against a

friendly foreign state or arms o r equips a ship for the armed

forces of a foreign state at war with a friendly fo reign state.

[] Criminal Code, s .

[] Ibid, s .

[] Ibid, s .

[] Ibid, s .

[] Foreign Enlistment Act, RSC , c F-.