D. Terrorism Offences

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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The terrorism offences quickly enacted after 9/11 are of interest in their own right; but for the purpose of a book on the fundamental principles of criminal law, they are of special interest in the way that they create new offences for conduct that would otherwise be prosecuted as inchoate offences, such as conspiracy, attempts, and counselling a crime that is not committed, or as forms of participation, such as aiding or abetting or committing crimes as a result of common unlawful purposes. Whatever the arguments at the time that existing offences would be adequate should terrorist plots be discovered, it is now clear that such conduct, as well as additional conduct, can be prosecuted as completed crimes of terrorism under Part II.1 of the Criminal Code.

The new terrorism offences are also of interest to the extent that they built on previous and problematic extensions of criminal liability under sections 467.11 to 467.13 with respect to participation in a criminal organization or gang, instructing the commission of an offence, and committing an offence for a criminal organization. These offences have been criticized for criminalizing conduct that may only remotely be connected with organized crime but have so far been upheld by the courts as neither vague nor overbroad, according to the Supreme Court’s rather deferential approach to reviewing criminal offences on these bases.287Taken together, these offences demonstrate a reluctance

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to rely on the traditional inchoate offences and principles of party liability and a willingness to create broadly defined new crimes.

1) The Offence of Participation in a Terrorist Group

With respect to both organized crime and terrorist groups, a decision was taken not to criminalize mere membership in those groups. In this way, Parliament decided not to create pure status-based crimes but instead to create offences that provided a broadly worded prohibited act but also required intent. Section 83.18(1) provides:

Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The mens rea of this offence requires that a person both knowingly participate or contribute to the activities of a terrorist group and have the purpose of enhancing its ability to facilitate or carry out a terrorist activity. Taken by itself, the dual requirements of knowledge and purpose are high subjective fault standards that would be sufficient even if the courts determined that terrorism crimes because of their stigma and penalty should, like murder, attempted murder, and war crimes, require proof of subjective fault in relation to all elements of the prohibited act.288The more problematic aspects of this offence are found in its definition of an actus reus. The actus reus involves participation or contribution to any activity of a terrorist group and includes a long but non-exclusive list of examples of participating in section 83.18(3). As with the actus reus of attempted crime, the actus reus here may involve otherwise legal activity that is not a crime or a social mischief. In addition, the offence incorporates the broad and problematic definitions of a terrorist group and terrorist activities in section 83.01 of the Criminal Code. In addition, the reference to facilitating the carrying out of a terrorist activity in section 83.18 has been interpreted to include the broad definition of facilitation in section 83.19(2), which does not require the accused to know any particulars about a planned terrorist activity.

The Ontario Court of Appeal has upheld this offence from challenge under section 7 of the Charter. It held that "[p]utting the actus reus and mens rea together, section 83.18 applies to persons who, by their acts,

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contribute to or participate in what they know to be...

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