Walking the Tightrope Between National Security and Freedom of Expression: A Constitutional Analysis of the New Advocating and Promoting Terrorism Offence
| Author | Melissa Ku |
| Position | Is a third year JD candidate at the University of Victoria |
| Pages | 83-98 |
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ARTICLE
WALKING THE TIGHTROPE BETWEEN
NATIONAL SECURITY AND FREEDOM
OF EXPRESSION: A CONSTITUTIONAL
ANALYSIS OF THE NEW ADVOCATING AND
PROMOTING TERRORISM OFFENCE
Melissa Ku*
CITED: (2016) 21 Appeal 83
INTRODUCTION
“ere is no liberty w ithout security,” the former Minister of Public Defence and
Emergency Preparednes s, Steven Blaney, told the House of Commons at the second
reading of Bill C-51.1 “Canadians […] understand their freedom and secu rity go hand
in ha nd .”2 In re sponse to the increased i nstances of terroris t acts globally, the recently
defeated Conservat ive Government (“the former Government”) made national sec urity
and counter-terrorism a political priority, and responded with a w ave of anti-terrorism
legislation, some of which came u nder scrutiny and none more so than Bil l C-51. e
former Government introduced Bill C-51 as another weapon in t he war on terror. In
particula r, Bill C-51 creates a new crimina l oence under section 83.221 of the Criminal
Code (“the Code”), 3 which prohibits advocating a nd promoting terrorism oences.
Despite voting in favour of Bill C-51, Liberal Leader and cu rrent Prime Minister, Justin
Trudeau, promised amendments to “problematic elements” of Bill C-51 in his election
platform and in his subsequent Mi nisterial Ma ndate Letters to the new M inister of
Public Safety and E mergency Preparedness , and Minister of Justice.4 In pa rticula r, he
* Melissa Ku is a third year JD candida te at the University of Victoria . This paper was originally
submitted as an indepe ndent research project for the Adv anced Legal Research and Writing
class with Professor Tim Rich ards. Melissa would like to thank Kathy and Ale x Ku, Eunice Choi, and
Melissa Wong for their unwavering s upport, and for always agreei ng to proofread her papers.
Special thanks to the edi tors of Appeal for their invaluable h elp during the revision process.
1 Bill C-51, An Act to enact the Security of Canada Information Sh aring Act and the Secure Air Travel
Act,to amend the Criminal Code, the Canad ian Security Intelligence Servi ce Act and the Immigration
and Refugee Protection Act and to make related and consequential amendments to other Acts, 2nd
Sess, 41st Parl, 2015 (assented to 18 June 2015), SC 2015, c 20.
2 House of Commons Debates, 41st Parl, 2nd Sess, No 174 (18 February 2015) at 1535 (Hon. Steven
Blaney).
3 Criminal Code, RSC 1985, c C-46 [Criminal Code].
4 Letter from Justin Trudeau, Prime Minister of Cana da to Mr. Ralph Goodale, Minister of Public
Safety and Emergenc y Preparedness [nd] online: Prime Minis ter of Canada
.
eng/minister-public-safety-and-emergency-preparedness-mandate-letter> archived at
perma.cc/NV9Q-E9NM>;
Letter from Justin Trudeau, Prim e Minister of Canada to Ms. Wilson- Raybould, Minister of Justice
and Attorney General [nd] on line: Prime Minister of Canada
justice-and-attorney-general-c anada-mandate-letter> archived at
BZ74 >.
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promised to “narrow overly broad denitions.”5 He does not, however, specically refer
to section 83.221 as being a “problematic element” of Bill C-51 or a provision with overly
broad denitions.
is paper argue s that the newly elected Liberal Government should revi sit and reassess
section 83.221 because the provision potential ly oends section 2(b) of the Canadian
Charter of Rights and Free doms (“Charter”), 6 and may not be demonstrably justi able
under section 1. To reach this conclusion, this paper conducts a Ch arter analysis a nd
draws on analogou s considerations from ve other landm ark cases t hat addressed
criminali zed limits to free expression: R v Kha waja;7 R v Sharpe;8 R v Zundel;9 R v Butler ;10
and R v Keegstra.11 Par t I introduces section 83.221 and summarizes the ve c omparison
cases. Part I I discusses the uncerta inty around whether the activity prohibited by sec tion
83.221 may be construed as constitut ionally protected expression. Par t III outlines why
the provision, if found to violate section 2(b), may not be saved under section 1 bec ause
its limitations do not minim ally impair. Part IV discusse s possible remedies.
I. THE BILL, THE SECTION, AND THE FIVE LANDMARK CASES:
A PRIMER
A. Bill C-51 and Section 83.221
On January 30, 2015, the former Government tabled Bill C-51, which subsequently
received Royal As sent on June 18, 2015. Minister Blaney highli ghted the threats of
terrorism in Canada du ring the second reading , and drew special attention to t wo terrorist
attacks in Oc tober 2014 as a solemn reminder that international jihad ists have also
targeted Ca nada. Bill C-51 therefore reected the former Government’s commitment to
protect Canadia ns from these threats of terrorism. is paper fo cuses on an amendment
to the Code that created a new crimi nal oence in sect ion 83.221, which as of January
30, 2016 reads:
83.2 21 (1) Every person who, by communicating statements, k nowingly
advocates or promotes the commission of terrori sm oences in general—
other than an oenc e under this section—while know ing that any of those
oences will be c ommitted or being reck less as to whether any of thos e
oences may be committed, a s a result of such communication, is guilt y of
an indictable oence a nd is liable to imprisonment for a term of not more
than ve years .
(2) e following denitions apply in this s ection:
“communicating” has t he same meaning as in subsection 319(7).
“statements” has the same mea ning as in subsection 319(7).
5 “Bill C-51”, Liberal Party of Canada, online: Liberal
archived at .
6 Canadian Charter of Rights and Freedoms, Part I of theConstitution Act, 1982, being Schedule B to
theCanadaAct 1982 (UK), 1982, c 11.
10 R v Butler, [1992] 1 SCR 452; [1992] SCJ No 15 (QL) [Butler].
11 R v Keegstra, [1990] 3 SCR 697; [1990] SCJ No 131 (QL) [Keegstra].
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e prohibited act includes several elements.12 First, an a ccused must commun icate
statements. Section 319(7) of the Code denes “communicating” to include
“communicating by telephone, broadcast ing or other audible or visible means,” and
“statements” to include “words spoken or written or recorded electronica lly or electro-
magnetica lly or otherwise, a nd gestures, sig ns or other visible representations.”13
Secondly, the individual must advoc ate or promote the communicated statements. A s
will be discu ssed in Part II, t he meanings of “advocatin g” and “promoting” present a
problematic uncertaint y because the Code does not de ne them. Finally, the prohibited
subject matter is “terrorism oences in g eneral”. Section 2 of the Code denes “terrorism
oence” to mean any indict able oences committed for or in association with a terroris t
group; any indictable oence th at is also “terrorist activ ity”, which is dened in sect ion
83.01(1); a series of specic oences under Par t II.1; and conspiracy, aiding af ter the fact,
or counselling a ny of the above.14 e provision does not specify a ny exceptions.
e new oence indicates t hat an accused must knowingly advocate or promote terrorism
oences that he or she knows, or is reckless that a terrorism oence may be c arried out as
a result of the promoting or advocating.15 However, the provision only requi res that an
accused know or be reck less that a terrorism o ence may be committed, and doe s not
require an accus ed to have a terrorist purpose.16
is new oence attempts to add ress the increasin g number of radicali zed individua ls
from western nations, and t he role of terrorist media in the radic alization proce ss.
However, some civil liberties groups and leg al academics worr y that section 83.221
infringes t he Charter, and will a lso chill leg itimate expression. On July 21, 2015, the
Canadian Ci vil Liberties A ssociation and the C anadian Journa lists for Free Expres sion
launched a constitutional c hallenge agains t Bill C-51, in which they alleg e section 83.221
violates section 2(b) and can not be saved under section 1.17 At the time of writing , the
court has not yet heard t his challenge.
B. Criminalizing Expression: Five Landmark Cases
In addressing the potenti al for the new oence to run up against fre edom of speech, the
former Minister of Justice, Peter MacK ay told the Standing Committee on Public Safet y
and National Secur ity that the Code contains other provisions that cr iminalize expres sion
which courts have upheld.18 e Code does not include many cri minaliz ed limits to
free expression. erefore, draw ing analogies from cases that h ave already addressed the
constitutionality of cr iminally prohibited expre ssions may be usefu l in predicting what
a court may conclude in the const itutional chal lenge to section 83.221. Indeed, Keegstra
looks to Butler for comparisons, a nd Zundel to Keegstra. is section briey outlines ve
landmark ca ses in which the Supreme Cour t of Canada (“the Cour t”) considered the
constitutionality of a cr iminalized limit to freedom of expres sion.
12 See Kent Roach & Craig Forcese, “B ill C-51 Backgrounder #1: The New Advocating or Promoting
Terrorism Oence” (3 February 2015), Canada’s Proposed Anti-Terrorism Act: An Assessment (b log),
online: perma.
cc/UH9S-C8AG> at 9-16 [Roach & Forcese].
13 Criminal Code, supra note 3, s 319(7).
14 Ibid, s 2.
15 Roach & Forcese, supra note 12 at 6, 17-18.
16 Ibid at 17-18.
17 See Canadian Civil Libe rties Association, News Re lease, “CCLA and CJFE mount Charter
challenge against Bill C-51” (21 July 2015), online: Canadian Civil Liberties Associa tion
ccla.org/ccla-and-cjfe-mounting-charter-challenge -against-bill-c-51/> archived at
perma.cc/A49N-V46W>.
18 Canada, Parliament, House of Commo ns, Standing Committee on Public Saf ety and National
Secu rity, Evidence, 41st Parl, 2nd Sess, No 053 (10 March 2015) at 0935 (Hon Peter MacKay) [Public
Safety March 2015].
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i. Keegstra: Hate Propaganda
e accused in Keegstra wa s charged under section 319(2) of the Code for communicating
anti-Semitic statements to his s tudents. Section 319(2) prohibits an individual from
wilful ly promoting hatred aga inst any identiable group by communicating statements.
Although the Cou rt found section 319(2) violated the accused’s Charter protected rig hts
under section 2(b), the impugned provision could be justi ed under section 1 of the
Charter. In particu lar, during the proportionality ar m of the section 1 analysis, the Cou rt
concluded that hate propagand a was not a form of expression that touched the core of the
freedom’s underlying values, especia lly in light of evidence that hate propaganda c aused
harm to members of the tar geted group and to society as a whole.
ii. Butle r: Obscenity
In Butler, the Cour t unanimously upheld sec tion 163 of the Code, which prohibits the
publication, distribution, or circulat ion of obscene materials. Focusing specic ally on the
denition of “obscene” in section 163(8), the Court found that although t he prohibition
infringed on the ac cused’s freedom of expression, the prohibition was jus tied under
section 1. Like Keegstra, the Cour t found the subject matter of expres sion in Butler to
be outside the section 2(b) core values. It accepte d evidence that demonstrate d a causal
relationship between e xposure to obscene materia l and individual s’ desensitization to
violence and degradation of women. e Cour t also gave weight to the fact that t he Code
clearly denes the subjec t matter prohibited by section 163, and does not unnecessa rily
extend its reach to legitimate for ms of expression.19
iii. Sharpe: Possession of Child Pornography
Section 163.1 of the Code prohibits the production, d istribution, a nd posse ssion of
child pornog raphy. In Sharpe, the Court dea lt exclusively with sect ion 163.1(4), which
prohibits the possession of child pornogr aphy. e majority found that the limits in th is
provision violated section 2(b). Additionally, although the majorit y found the general
application of section 163.1(4) justied under section 1, the provision also potenti ally
captured two in stances of “possession” not intended by Parliament. In stead of striki ng
the entire provision down, the majority read in t he missing except ions to bring the
provision in line with the Charter.
iv. Khawaja: Terrorist Activities
Part of the accused ’s appeal included a claim th at the purpose and eec t of Part II.1 violated
section 2(b). e Court unanimou sly rejected this argument. Look ing purposively at the
Part as a whole, the Cour t found the conduct captured by the impugned provisions to be
acts or threats of violence , or acts intimately connec ted to violence.20 us, the conduct
here did not fall withi n the scope of expression protected under sec tion 2(b), and the
Court did not conduct a section 1 a nalysis.
v. Zundel: False News
In Zundel, the accused was char ged under section 181 of the Code for publishing a
booklet that denied t he Holocaust. In a narrow 4-3 split, t he Court struck down t he
Code oence of publishing false st atements that could cau se injury to public interest
because it was overbroad and va gue. First, section 181 caught a wide rang e of speech.
Additionally, the qualic ation that the speech b e “false” wa s unclear and potentia lly
dependant on accepted norms of the day. Finally, the requirement th at the speech cause
19 Butler, supra note 10 at paras 112-115.
20 Khawaja, supra note 7 at para 71.
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“injury” or “mischief ” could not be suciently dened. e legislat ure’s objective at the
time of its enactment in 1892 no longer addressed an e xisting social concern.21 For these
reasons, the lim its section 181 presented to freedom of expression could not be justied
under section 1 of the Charter.
II. DOES SECTION 83.221 INFRINGE SECTION 2B?
e Liberal Government should rea ssess section 83.221 because it potentially implicates
the rights and free doms protected under section 2(b), and this unc ertainty about t he
provision’s constitutionality is itself problematic. A law i nfringes sec tion 2(b) if the
prohibited activity is a form of “expression” and if Parlia ment’s purpose in enacting
the law is to limit that ex pression. One of the central issue s with section 83.221 is
the potential vague ness and overbreadth in some of the oence elements , particula rly
with the denitions of “advocati ng” and “promoting”. is potential vagueness a nd
overbreadth creates uncert ainty about whether the activitie s prohibited by section 83.221
are constitutional ly valid or if they are protected by the Charter at a ll.
A. Is the Activity Caught by Section 83.221 “Expression”?
Prime Minister Trudeau has a lready identied provisions with overly broad de nitions
as one of the problematic areas in Bil l C-51 his Government will remedy. Section 83.221
should be one of those provisions because ava ilable case law do not clea rly resolve
whether the activit y caught by section 83.221 falls w ithin the scope of sect ion 2(b). If
the court does not recogn ize the impugned activity as “expression”, section 2(b) will not
protect it. A court may be persuade d to nd these acts do not qua lify as “expres sions” if
it accepts that “advocatin g” or “promoting” terrorism oences exi st on a continuum that
contributes to acts of violence, or that “advocat ing” or “promoting” terrorism oences
are akin to cou nselling an o ence. On the other hand, a cour t may decide that key
elements of the oence are too vag ue, and the activity caught by the provision fa ll within
the ambit of section 2(b) notwithsta nding these arguments.
Historically, courts h ave interpreted section 2(b) generously. If the impugned activit y
conveys or attempts to convey meani ng, courts start from a presu mption that the activity
falls under the a mbit of section 2(b), regardless of its content.22 is low t hreshold means
that section 2(b) protects even unpopu lar and oensive expres sion, as evidenced in
Sharpe, Keegstra, a nd Butler. Acts of violence are the e xception. A court may nd th at
promoting and advocating ter rorism oences are closely con nected to acts of violence,
and should not receive protection under the Charte r. In a case review of Keegstra, l aw
professor, Kathleen Mahoney, cites a social-ps ychology study that sug gests expressions
of prejudicial attitudes connec t to acts of violence on a continuum scale, a nd that each
stage of the continuum is connec ted to and dependent on preceding sta ges.23 Using
this premise, she ar gues that the Cou rt in Keegstra should not have taken a c ategorical
approach that distin guishes base d on content and form because, in the context of h ate
propaganda, content is very much rel ated to form.24 Similarly, one could argue t hat
advocating and promoting ter rorism fall on a continuum of act ions that potentially lead
to acts of terrorism, and for thi s reason, should be viewed purp osively rather than i n
dichotomous content and form distinctions. e do or may be open for a court to make
21 Zundel, supra note 9 at para 54.
22 Keegstra, supra note 11 at para 37, citing Irwin Toy Ltd v Quebec [1989] 1 SCR 927; Butler, supra note
10 at para 69.
23 Gordon Allport, The Nature of Prejudice (Cambridge, MA: Addison Wesley, 1954), cited in Kathleen
Maho ney, “R. v. Keegstra: A Rati onale for Regulating Pornograp hy?”, online: (1992) 37 McGill LJ
242 at 249 archived at
24 Ibid.
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such a conclusion. In the context of a Charter a nalysis of a Code provision that prohibits
the participation in t he activity of a terrorist g roup, the Court in Khawaja noted t hat
“there is substantive harm i nherent in all aspects of preparation for a terrori st act because
of the great harm th at ows from the completion of terrorist acts.”25 If a court agrees t hat
advocating and promoting terror ism is an early pa rticipatory stage t hat culmin ates in
the commission of terrorist act s, it may conclude that the activities prohibited by section
83.221 should not receive Charter protect ion.
At the same time a cour t may nd that the prohibition in sect ion 83.221 encroaches
too far into activities protec ted by section 2(b). Justice McLachlin, a s she then was,
wrote in her dissenting rea sons in Keegstra, and in t he unanimous Khawaja decision
that section 2(b) excluded threat s of violence because th reats of violence “take away
free choice and undermine f reedom of action.”26 Applying this premise, law profes sors
Kent Roach and Craig Forces e27 argue that advocating and promoting ter rorism oences
are disting uishable from expressions t hat threaten violence bec ause the former do not
remove agency from the receiver.28 Rat her, an individual may “advocate or promote
terrorism oences” without threate ning harm. A rguably, there is nothing inherently
violent in expressing one’s opinion in favour of terrorism.
A court may nd the act ivity prohibited by section 83.221 outside the protection of
section 2(b) by accepting the proposition th at advocating or promoting terrorism is akin
to counselling. A lthough statutory interpretation tools presume t hat three distinct terms
each have a distinc t meaning, common sen se indicates that t he verbs “to advocate”, “to
promote”, and “to counsel” bear some relation to each other. Accord ing to section 22(3)
of the Code, to “counsel” means to solicit, procure, or incite.29 Keegstra dened “promote”
to mean “active support or instig ation […] more than simple encourage ment.”30 Sharpe
noted that the “advocate or counsel ” requirement in section 163.1(2) is met if an individual
“actively induc[es] or encourag[es]” the described oence.31 e Court in R v Hamilton
said liability ows f rom counselling a n oence because it is just as objectionable to “get
someone to commit an objectionable act,” and in doing so, “incre ases the likel ihood
of harm occurring.”32 Khawaja also conrmed that thre ats of violence or oences
enumerated under section 83.01(1)(b)(ii),33 which includes counsellin g an act, fall under
the violence e xception to section 2( b) protection.34 ese activities u ndermine the law, are
unworthy of protection, and are antit hetical to the underly ing purpose for section 2(b),
which is to choose bet ween ideas or courses of conduct.35 e c ommon law denitions
of “promoting” and “advocating” sugges t a similar cu lpability as “counsell ing”. us,
one could argue that se ction 2(b) should also exclude acts of advoc ating or promoting
an oence.
25 Khawaja, supra note 7 at para 63.
26 Ibid at para 71; Keegstra, supra note 11 at para 237.
27 Professors Roach and Forcese teach in the Faculties of L aw at the University of Toronto and
University of Ott awa respectively. They are recogniz ed as experts on national se curity law, and
have written extensive ly on C-51.
28 Roac h & Forcese, supra note 12 at 21-22.
29 Criminal Code, supra note 3, s 22(3).
30 Keegstra, supra note 11 at para 115.
31 Sharpe, supra note 8 at para 56.
32 R v Hamilton, 2005 SCC 47; [2005] 2 SCR 432; [2005] SCJ No 48 (QL) at paras 25 -26.
33 S ubsections 83.01(1)(b)(ii)(A), (B), (C) and (D) denes ‘terrorist activ ity’ to mean an act or an
omission that intentionally cau ses death or serious bodily harm, e ndangers a person’s life,
causes a serious risk to the hea lth or safety of the public, or ca uses substantial propert y damage
likely to result in these bodil y harms. See Khawaja, supra note 7 at para 71.
34 Khawaja, supra note 7 at para 70.
35 Ibid at para 70-71; Keegstra, supra note 11 at para 237.
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However, Professors Roach and Forcese caution aga inst “plugging-in” judicially dened
terms and presumin g these denitions apply from one oence to anot her without
also considering t heir respective contexts .36 As will be more thorough ly discussed i n
Part III, unli ke in Sharpe or Keegstra, sect ion 83.221 likely suers from an overbroad
interpretation and application bec ause the prohibited subject matter is al so vaguely
dened, and the oence la cks statutory defenc es.37 e potentially overbroad reac h of
section 83.221 could mean that legiti mate expression could be unwit tingly caught by
this provision. us, a cour t may be disinclined to exc lude Charter protect ion because
of the potential it will c atch legitimate forms of expres sion, and may prefer to instead
consider if the limit is just ied under section 1 of the Charter. is uncerta inty is also
problematic because until a c ourt makes a deter mination on this issue , section 83.221
may eectively chi ll free speech. e Liberal Government should rea ssess section 83.221,
and amend the provision with clea rer denitions to avoid this.
B. Parliament Intended to Limit Expression
If the activity or conduct qua lies as “expres sion” within the meaning of se ction 2(b),
the second consideration is whether t he government intended to restrict freedom of
expression.38 Here, the government’s purpose is clearly to prohibit a cert ain undesirable
kind of expression. Sect ion 83.221 specically targe ts expression by referencing sect ion
319(7)’s denition of “statements”.
III. IS SECTION 83.221 PRESCRIBED BY LAW AND
DEMONSTRABLY JUSTIFIED?
If section 83.221 violates section 2(b), the government must justif y its limits under
section 1 of the Charter. Section 1 requi res a court to determi ne whether the impugned
provision is prescribed by law and whether it is demonst rably justied in a fre e and
democratic society. e Liberal Govern ment should reassess sect ion 83.221 because if
this provision is indeed Char ter protected, a court may nd se ction 1 cannot save it.
Based on the ve comparis on cases, a cour t may not nd section 83.221 prescribed by
law because it is too vag ue. Although a court may nd th at Parliament had a pressing and
substantial object ive and that section 83.221 is rational ly connected to that objective, it
may conclude that section 83.221’s limitations are not proportionate to its eects bec ause
its limitations do not minim ally impair.
A. Section 83.221 may not be Prescribed by Law because it is Vague
Impermissibly vague law s frustrate the fund amental principle of justice that an ind ividual
should be able to know that a given act is c riminally proh ibited at the time he or she
commits the act.39 e const itutional doctrine a gainst vag ueness also dic tates that laws
be suciently clear to lim it law enforcement discretion.40 is means a legally pre scribed
limit cannot be so obscu re that it is “incapable of interpret ation with any degree of
precision” with “no intelligible standard.”41
Section 83.221 can be contrasted a gainst sec tions 163, 163.1, and 319 of the Code. e
subject matter of these prohibitions have dist inct and narrow de nitions. For example,
section 163(8) denes “obscene” to mean “any publication a dominant charac teristic of
36 Roach & Fo rcese, supra note 12 at 11.
37 Ibid.
38 Keegstra, supra note 11 at para 31.
39 R v Levkovic, 2013 SCC 25; [2013] 2 SCR 204; [2013] SCJ No. 25 (QL) at para 3, citing R v Mabior, 2012
40 Ibid at para 2, citing Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 SCR 1123.
41 Butler, supra note 10 at para 74.
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which is the undue exploitation of sex, or of sex a nd any one or more of the following […]
crime, horror, cruelty and violence.”42 Expressions that do not meet this denit ion are
not “obscene”. Similarly, section 163.1(1) species the expressive vehicle and what mus t
be depicted for an expression to come with in the denition of “child pornography”. e
requirement that the “domin ant characteri stic” of the expression depict a sexua l organ
“for a sexual pu rpose” precludes, for example, family picture s of babies in the bath.43
e courts do not always st rike down all imprecise law s, as they recognize prec ise technical
denitions may not always be po ssible.44 In such circumstance s, the judiciary mus t
interpret undened terms ba sed on Parliament’s intent. Section 319(2) criminalized wi lful
promotion of “hatred”. e Court in Keegstra interpreted the word “ hatred” in context
with Parliament’s purpose rather th an strike it down, and concluded t hat based on the
way the term was used i n the provision, “hatred” denoted a l imited range of identia ble
emotions.45 One of the critici sms of section 83.221 is that unli ke section 319(2) where
“hatred” ha d a narrow range of mea ning, the potentia l vagueness in sec tion 83.221 may
not be as easily remedied . In the context of terrorism oences, it is u nclear here what it
means to “advocate” or “promote”, and what needs to be advocated or promoted.46
As raised in Pa rt II, the provision is also vague be cause the dierence in mea ning between
“counselling”, “advocating”, and “promoting” terrorism is unclear. e modern st atutory
interpretation approach presumes Parli ament avoids redundancy.47 is then sug gests
that “advocating” and “promoting” a re not synonymous with each other, or with
“counselling”. Minister Blaney s aid section 83.221 targets the “ idea of counselli ng or
inciting,” and pointed to Sharpe and Keegstra as instr uctive to clarif y any potential
vagueness in its mea ning.48 e denitions in Sharpe and Keegstra also seem to su ggest
“advocate”, “promote”, and “counsel” have simila r meanings. How do “actively inducing
and encouraging”; “actively supportin g and instigati ng that is more than mere
encouragement”; and “procuring, soliciting, a nd inciting” dier from e ach other in
meaning? If t hey do in fact mean t he same thing, why d id Parliament enact an oence
that already e xists in the Code? W hy did Parliament include both “advocate” a nd
“promote” as the actus reus elements of the oence? I f these words do not mean the same
thing, how are the y dierent? is imprecision in a ke y element of the oence makes
section 83.221 vague.
Secondly, the nature of the subject matter c aught by this oence is a lso vague. e
prohibited content is “terrorism oences in general.” As aforementioned, sect ion 2 of
the Code denes “terrorism oences” very broadly. “Terrorism oences” include any
indictable oences in t he Code committed for or in association with a terrorist group; any
indictable oence that is a lso “terrorist activ ity”; a series of specic oences under Part
II.1; and conspiracy, aiding after the fa ct, or counselli ng any of the above. Denitions
that cite provisions with denit ions that refer to yet other provisions with de nitions
reduce the likelihoo d of nding an intelli gible standard. e Ca nadian Bar Association
(“CBA”) criticized Parliament’s decision to use “terrorism oences” as the content matter,
instead of the less broad term, “terrorist ac tivity”, which is more clearly dened in section
83. 01(1).49 “ Terrorism oences” is alrea dy vaguely and broadly dened, and t he words “in
42 Criminal Code, supra note 3, s 163(8).
43 Sharpe, supra note 8 at paras 49-51.
44 Butler, supra note 10 at para 76.
45 Keegstra, sup ra note 11 at paras 116-117.
46 Roach & Forcese, su pra note 12 at 7.
47 Ruth Sullivan, Statutory Interpretation, 2nd ed (Toronto: Irwin Law Inc, 2007) at 167.
48 Public Safet y March 2015, supra note 18 at 0935 (Hon Steven Blaney).
49 Bil l C-51, Anti-terrorism Act, 2015” (March 2015), The Canadian Bar Association, online:
iclmg.ca/wp-content/uploads/sites/37/2015/03/15-15-eng.pdf> archived at
M98C-Z6EJ> at 22 [Bill C-51].
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general” add even more unc ertainty.50 Minister MacKay’s comments suggests Parl iament
intended this vaguene ss:
[…] the focus of the proposed new oence i s to cover the situation where
the active encourag ement lacks the specic det ail that would li nk the
encouragement to the commis sion of a specic terrorism oence, although
in the circumsta nces, it is clear t hat someone is actively encourag ing to
commit any of the terrorism oence s in the Code.51
Although Parlia ment clearly intended to enact a provision that c ould adapt to the
ever changing c ounter-terrorism landscape, th is approach potentially violate s the
fundamental pr inciple of justice that individua ls must be able to know that a particular
act is a crimina l oence at the time he or she commits it.52 A law cannot prohibit an act if
that law is unclear a bout what the prohibited act is, which section 83.221 attempts to do.
It is possible for section 83.221 to fail at this sta ge of the section 1 ana lysis. However,
a court may also, a s it did in Zundel,53 presume the oendi ng provision meets the low
vagueness th reshold in order to consider the matter on its merits at the nex t section 1
stage.
B. Is the Limitation of Advocating or Promotion Terrorism Oences
Demonstrably Justiable?
A limit that infr inges the Charter may be demonstrably justia ble if the government can
show Parliament had a pressing a nd substantial object ive, and that the mean s chosen
are proportionate to this object ive.54 e law is proportionate if the means chosen to
achieve it are rational ly connected, if the law i mpairs as min imally as nec essary, and if
the benets of the law are proportiona l to its deleterious eects.55 Drawing on analogous
considerations from the ve compari son cases, a cour t may conclude that although
Parliament had a pressing a nd substantial object ive that is rational ly connected to the
means adopted, section 83.221 does not minim ally impair in its limits, a nd the provision
is therefore not d emonstrably justiable .
i. Parliament had a Pressing and Substantial Objective
A court will l ikely nd that Parlia ment had a pressing and substa ntial objective in
enacting sect ion 83.221 because Parliament’s purpose in enacting s ection 83.221 is well
documented. Ministers Bla ney and MacKay m ake it very clear at va rious stages of t he
legislative process t hat Bill C-51 targets the ver y real threat of terrori sm in Canada,
and that the purpos e of the new oence is to give law enforcement more powers to
combat the concerning trend in m ilitant radica lization in Ca nadians. At t he second
reading, Min ister Blaney pointed to the international jihadis t movement and the danger
it poses to Canada. M inister MacKay said Bill C-51 was “aimed specic ally at protecting
Canadian s from the evolving th reat of terrorism.”56 e former Government was also
clear that the a mendments to the Code collectively and individua lly gave law enforcement
50 Roac h & Forcese, supra note 12 at 14.
51 Public Safety March 2015, supra note 18 at 0915 (Hon Peter MacKay).
52 Levkovic, supra no te 39.
53 Zundel, supra note 9 at para 41.
54 Carter v Canada (Attorney General), 2015 SCC 5; [2015] 1 SCR 331; [2015] SCJ No 5 (QL) at para 94,
citing R v Oakes, [1986] 1 SCR 103.
55 Ibid.
56 House of Commons Debates, 41st Parl, 2nd Sess, No 176 (20 February 2015) at 1125 (Hon Peter
MacKay).
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power to pre-empt, prevent, and thwart terror ist activities.57 Minist er Blaney compared
terrorism to the Holocaust, sayi ng, “[V]iolence begin s with words. Hatred begi ns
with words […] extremist speeches, the lang uage that u ndermines Canad ian values,
basically hate propa ganda has no place i n Canada […] we must not tolerate incitement
to violence.”58 ese statements al ign with the Government’s Counter-terrorism Strategy,
which identies prevention as a sign icant element.59
Minister Blaney’s reference to hate propag anda also remi nds us that thi s particul ar
criminali zed limit to free ex pression successfu lly withstood a cons titutional chal lenge.
e Court in Keegstra re viewed the provision’s detailed histor y, which was an essentia l
element when the Court considered Parlia ment’s objective in enacting the oence.
In 1966, with the atrocities of Nazism st ill fresh in m ind, Parliament appointed the
Cohen Commission to study the st ate of hate propaganda in Ca nada.60 e Committee
identied potential societa l harms as sociated with hate propag anda and recommended
the subsequently enacted oence s.61 is contrasts with Zundel, where the Cou rt struck
down the false st atements oence. Here, the Court’s inability to pinpoint a n objective
that addressed a n existing s ocial harm wa s fatal to the provision. Sec tion 181 did not
have well-documented histor y of debates, committee recommendations, or internationa l
obligations.
e Court in Butler and Keegstra found Canada’s international obligat ions important
when considering whether Parlia ment’s objectives were pressing and substantia l. e
specic international a greements and resolutions in which C anada par ticipates are
beyond the scope of this paper, but it is worth noting t hat Canada contributes to a variet y
of international counter-terrorism initiative s. For example, Canada helps de velop legal
instruments and i nternational stand ards with organ izations such as t he UN Counter
Terrorism Implementation Task Force and NATO.62 ese activities support t he former
Government’s contention that section 83.221 contributes to Canada’s domestic and
international counter-terrorism strategies.
A court would certa inly nd the former Government’s objective to prevent and respond
to terrorist threats pres sing and substanti al because of the g rave harm associ ated. Since
the events of 9/11, law enforcement in Canada h ave responded to a handfu l of known
terror related plots, and have succes sfully interrupted t he execution of several plots.63
However, the increased number of “lone wolf ” attacks pose a risk that is more dicu lt
for law enforcement to detect. For example, the t wo terrorist attacks that precipitated the
enactment of Bill C-51 in October 2014 included a Quebec man who drove his vehicle
into two members of the Canad ian military, killi ng one. Two days later, an Ontario man
fatally shot a reser vist ocer on Parliament Hi ll and stormed the Parlia ment building
57 House of Commons Debates, 41st Parl, 2nd Sess, No 174 (18 February 2015) at 1715 (Hon Peter
MacKay).
58 Public S afety March 2015, supra note 18 at 1000 (Hon Steven Blaney).
59 Public Safety Canada, “Countering Violent Extremism”, Government of Canada, online:
www.publicsafety.gc.ca/cnt/ntnl-s crt/cntr-trrrsm/cntrng-vlnt-xtrmsm/index-eng. aspx> archived
at .
60 Kent Roach & Davi d Schneiderman, “Freedom of Ex pression in Canada” (2013) 61 Sup Ct L Rev
(2d) 101 at 462 [Roach & Schneiderman].
61 Keegstra, supra note 11 at paras 60-62.
62 Global Aairs Canada, “Terrorism”, Government of Canada, online: <http://www.international.
gc.ca/crime/terrorism-terrorisme.aspx?view=d&lang=eng> archived at <https://perma.cc/3D7V-
BLQ G>.
63 In J une 2005, a series of police raids in Onta rio resulted in the arrest of 18 people later cha rged
with conspiring to carry o ut terrorist activity: R v A mara 2010 ONSC 441. In 2010, an individual,
after pledging alle giance to Osama Bin Laden, promise d to recruit others to coordinate att acks.
He had been making terro rism related plans at the time of his arrest : R v Alizadeh 2014 ONSC 1907.
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before being fatal ly shot himself. Both “ lone-wolf” atta cks were alleged ly linked to
Islamic State of Iraq a nd al-Sham (“ISIS”) ideology.64 Further, the radicaliz ation of young
Canadian s is alarmi ng and more prevalent than b efore, as evidenced by the number of
individuals tr avelling to join terrorist groups abroad .65 Based on the avai lable evidence
about the prevalence and gr aveness of terrorist threat s to Canada and Ca nadians, a nd
the former Government’s clear indication that Bil l C-51 was meant to respond to these
threats, a cour t will very likely nd this a rm of the section 1 analysis is met.
ii. Limiting this Expression may be Rationally Connected to Parliament’s Objective
e key question in this por tion of the analysi s is whether the limits po sed by section
83.221 constitute a rational means to meet t he objective. Based on Keegstra, Butler, and
Sharpe, and the stand ard of proof the Court acc epted in those case s, a court may nd a
sucient nexus betwe en the limit in section 83.221 and the objective.
A limit must be rational ly connected to Parliament’s pressing and subst antial objective.
is means the law shou ld be a rational means for Parl iament to meet its objectives,
and the law’s eect should relate to its purpo se.66 Courts do not require conclusive,
denitive, or causa l evidence connecti ng a limit to a known socia l harm, becaus e they
recognize th is standard i s often dicult or impossible to meet. 67 Instead, the Crown’s
standard of proof for demonstrati ng harm is to show an ac tivity creates a “reasoned
apprehension of harm,” based on common sense and experienc e.68 In the above cases,
although the socia l science evidence linking obscen ity and child pornogr aphy to a social
harm were inconclusive, avai lable evidence and common sense su ggested a rational link
between the act ivity and the socia l harm exi sted. For example, the Cour t in Keegstra
accepted the Cohen Commit tee’s ndings that hate propaga nda existed in C anada at a
level sucient to warrant concer n.69 In Butler, the Court ac cepted evidence sugge sting
a correlative relationship bet ween exposures to obs cene content and reinforcing gender
stereotypes.70 e Cour t also accepted e vidence showing a link b etween viewi ng child
pornography and child sex ual abuse in Sharpe.71 e Court’s ndings in the se cases show
its willingne ss to nd a rational connec tion between the mea ns taken and Parli ament’s
objectives based on a reas oned apprehension of harm, and a court w ill likely do the same
when considering section 83.221.
Some studies place more weight on interpersona l relationships in the rad icalization proce ss
than on Interne t incite ment.72 However, while one cannot conclude that ad vocating or
64 Stewart Bell, “ ISIS takes credit for inspiring terror ist attacks that killed t wo Canadian soldiers”,
National Post (21 November 2014), online: National Post
canada/isis-takes-credit-for-inspiring-terrorist-attacks-that-killed-two-canadian-soldiers>
archived at .
65 Davi d Ljunggren, “Spy agency sees sha rp increase in Canadians joining Islamic St ate”
(20 April 2015), Reuters Canada, online:
idCAKBN0NB2DV 20150420> archived at .
66 Canada (Attorney General) v Bedford, 2013 SCC 72; [2013] 3 SCR 1101, [2013] SCJ No. 72 (QL) at
paras 111, 126 [Bedford].
67 Sharpe, supra note 8 at para 85; Butler, supra note 10 at para 103; Keegstra, supra note 11 at
para114.
69 Keegstra, sup ra note 11 at para 60.
70 Butler, supra note 10 at paras 103, 107-108.
71 Sharpe, supra note 8 at para 88.
72 Craig Fo rcese & Kent Roach, “Terrorist Babble and th e Limits of the Law: Assessing a Prospe ctive
Canadian Terrorism Glorication Oence” (2015) Canadian Network for Research on Terrorism,
Security and Society, online:
archived at at10.
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promoting terrorism causes terrorist acts, propagat ing terrorism may help to normali ze
terrorist driven violence.73 e Court in Sharpe ac cepted the potential for normalization
of harm as a factor in nding a rational connection betwe en the objectives and the means
chosen to meet them.74 e Internet can f acilitate radica lization by providin g forums
for communication and coordi nation, and instruct ive material. Post attack a nalyses
generally show individua ls involved in terrorist activity consu med terrorist media. is is
all the more prevalent in t he current media landscape, where terrorist org anizations, such
as ISIS and al-Qae da, employ more sophisticated propaganda tactics t han other terrorist
groups before it. A 2011 report to the US National Institute of Justice sugges ts two-thirds
of radical disc ussions online include an ex plicit call for jihad.75 Jim Berger, an ex pert
analyst on ext remism at Brookings Institute in Washington, DC, e stimated Twitter had
over 40,000 accounts promoting ISIS .76 Additionally, a Harva rd study showed about 10
percent of the violent participation in the Rwand an genocide was dire ctly attributable
to violent hate propaganda, bec ause one of the national Rwanda n radios called for “pre-
emptive violence” which was nece ssary for “self-defence”.77 Radical ization depends on
individuals propag ating and disseminati ng a violent and radical ideology, and incitement
is used as a tool of mobiliz ation.78 is suggests that incitin g terrorism is a key component
to the eventual materia lization of terrorist acts. Given the lower thre shold set in Keegstra,
Butler, and Sharpe, a court may choo se to defer to the Government’s decision to employ
this part icular lim it to meet its objective.
iii. Section 83.221 may not Minimally Impair Freedom of Expression
e third stage of t his analysi s asks whether the l imit minima lly impairs. A lim it need
not be the least restrict ive, but it must be rationally ta ilored to Parliament’s objective “in
the context of the infri nged right,”79 and impair no more than reasonably neces sary.80 A
court will c onsider two elements at this st age: overbreadth and altern ative methods to
achieve Parliament’s objectives. An overbroad li mit does not minima lly impair, and a
court may nd section 83.221 overbroad because v ague elements of the oence possibly
captures activ ities beyond those intended, and bec ause the provision lack s reasonable
defences to restrict its applic ation. Additionally, a court may consider whether the limits
imposed by section 83.221 fall with in the range of rea sonable alternatives, a lthough
it is unclear whether a cour t would interfere with a reas onable method even if other
alternatives exi st.
a. Section 83.221 may be Overbroad
A limit is overbroad when it “goes too far and inter feres with some conduct that bears no
connection to its objective.”81 In this ca se, Parliament intentionally kept t he wording of
section 83.221 broad to cast a wider net tha n existing provisions i n the Code. Unlike in
73 Lau ra Huey, “This is Not Your Mother’s Terrorism: Social Media, O nline Radicalization and the
Practice of Political Jammin g”, online: (2015) 6:2 J Terror Res at 3,
articles/10.15664/jtr.1159/> archived at .
74 Sharpe, supra note 8 at 88 .
75 Forcese & Roach, supra note 72 at 10-11.
76 Canada, Parliament, Senate, Standing Comm ittee on National Securit y and Defence, Evidence,
41st Parl, 2nd Sess, No 16 (27 April 2015) at 147 [Security and Defence April 2015].
77 David Yanagiz awa-Drott, “Propagand a and Conict: Evidence from the Rw andan Genocide”,
online: (2014) 129:4 Q J Econ 1947 at 1953, 1989 qje.oxfordjour nals.org/content/
early/2014/08/21/qje.qju020.full.pdf+html>.
78 Yaël Ron en, “Incitement to Terrorist Acts and Inter national Law” (2010) 23 Leiden J Int’l L 645 at
655-656.
79 Butler, supra note 10 at para 110, citing Irwin Toy Ltd v Quebec [1989] 1 SCR 927.
80 Sharpe, supra note 8 at para 96.
81 Bedford, supra note 66 at para 101.
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Butler, where the obscenity provision nar rowly restricted its application to sexu ally explicit
material, or in Sharpe, where the de nition of child pornography specie d particula r
attributes, key elements of the sec tion 83.221 oence cannot be dened with su cient
precision. e provision, therefore, has the potentia l to catch activities Pa rliament never
intended to be caught. In Zundel, t he Court cited overbreadth as t he “fatal aw” of t he
false informat ion oence.82 An undened a nd overreaching provision leaves open t he
possibility of the state res tricting const itutional rights in circ umstances t hat may not be
justi able.83 Given t he social and politica l context in which Parlia ment enacted section
83.221, it was clearly intended to target milita nt terrorist groups, such as ISIS and a l-
Qaeda. To this point, Jim Berger, reminded the Senate Comm ittee that anyt hing done
as a response to Islam ic extremism would have the same application to other groups and
individua ls.84 Professors Roac h and Forcese seconded thi s caution, noting that while
law enforcement could apply the provision strai ghtforwardly in cases of ISIS ex tremism,
application to other groups, such as pipeline protest ers or Ukrain ian rebel supporters,
would be less c lear.85 Jim Berger succinct ly commented that “one person’s terrorist is
another’s freedom ghter.”86 e Canadian Civil Libert ies Association adva nces a
scenario in which a jour nalist in favour of providing resources for Uk rainian insurgents
against Ru ssian troops could f all under the new oenc e.87 e CBA posed a simila r
question, noting civil act ivists like Nelson Ma ndela could have also b een caught by
section 83.221.88 One common theme is a reliance on prevail ing societal norms to inform
what constitutes “leg itimate” expression. e vagueness of sect ion 83.221 leaves open the
possibility for law enforcement to apply the provision arbitra rily. is level of discretion
can be troubling bec ause the very pur pose of section 2(b) is to protect all ex pression,
regardless of the popu larity of their content.
Additionally, Parliament set the menta l fault element of the section 83.221 oence at a
lower threshold than other e xpression limiting oence s. As discus sed in Part I, section
83.221 captures those individua ls who knowingly advocates or promotes, rather tha n a
higher mental fault element of wilful advocat ing or promoting. Professors Roach and
Forcese note that the Court n arrowly upheld section 319(2) in Keegstra in part because
section 319(2) required “wilf ul” promotion of hatred.89 is menta l fault element in
section 83.221 increases the potentia l that individua ls may be caught by the oence ,
even though their ac tions do not produce the harm Parlia ment intended to address with
this oence.
Further, unlike other cri minaliz ed limits to freedom of expres sion, section 83.221 does
not provide any statutory exceptions or defenc es. Keegstra noted that when considering
overbreadth, statutory except ions show the government took steps to avoid intruding
on a protected right more than nece ssary.90 For example, section 163 exempts obscene
materials kept only for persona l consumption. Section 319(2) allows an individual to
promote hatred against a n identiable group in the context of a private c onversation.
In Sharpe, the C ourt read in the exc eption of possessing chi ld pornography created by
the possessor and kept for pers onal use only to section 163.1(4). For each provision,
82 Zundel, supra note 9 at para 62.
83 Ibid at para 58.
84 Securit y and Defence April 2015, supra note 76 at 149.
85 Roa ch & Forcese, supra note 12 at 13.
86 Securit y and Defence April 2015, supra note 76 at 148.
87 “ Understanding Bill C-51: The Anti-Terrorism Act, 2015” (19 May 2015), Canadian Civil Liberties
Association, online:
archived at .
88 Bill C-51, supra note 49 at 23.
89 Roac h & Forcese, supra note 12 at 17.
90 Keegstra, supra n ote 11 at para 107.
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the Court noted the avai lability of exceptions or defenc es as an import ant restraint
on potentially overbroad applications. Sec tion 83.221 does not include a private use
exception. On one hand, the lack of a “private conversation” exception for advoc ating or
promoting terrorism makes sen se. If one interprets “advocate” and “promote” to mean
“incite” or “counsel”, this act should be li mited whether one expresses it in private or
in the public sphere. ere is no “private conversation” exception for counselli ng an
oence, and rightly so. However, because k ey elements of section 83.221 are vague and
therefore likely to capture le gitimate expressive activities, the absence of exc eptions only
compounds the overbroad nature of the provision.
b. Consideri ng Other Reasonable Alternatives
Predicting whether a cou rt will nd sec tion 83.221 minimally impa irs under this
consideration is dicu lt because of the degree of deference c ourts accord to Parlia ment.
A court may nd that a Charter infringi ng limit minima lly impairs i f that limit fal ls
within the ran ge of reasonably supportable alternat ives.91 Professors Roach and Forces
believe other less impai ring methods to prevent or foresta ll acts of terrorism exist,92 and
there may be some truth to thi s proposition. For example, on July 10, 2015, the RCMP
arrested a British Colu mbia man under section 83.2, wh ich prohibits the commission of
an indictable oence for the bene t of a terrorist group, and for counselli ng to commit
murder and assault by posti ng pro-ISIS terrorism propagand a that encouraged a nd
provided instructions to c ommit murders in the name of jihad.93 is a rrest sugges ts
that law enforcement could use e xisting Code provisions to capture the same activities
targeted by sect ion 83.221, thereby making section 83.221 superuous and unnec essary.
However, courts are mindf ul of Parliament’s role in selecting a par ticular scheme to
meet its intended objectives, and a cour t may be more inclined to accord deferenc e
to the method Parliament choose s, even if other less impai ring schemes exi st.94 e
Court in Sharpe said that a legislative scheme does not have to be “perfect”, as long as
it is “appropriately tailored in the context of the in fringed right.”95 us, the cour t’s
conclusion on the potential overbreadth of sect ion 83.221 may inuence whether it nds
the provision to be a scheme within the r ange of reasonable alternatives. Given the above
discussion about overbreadth, the L iberal Government should reas sess section 83.221
and make neces sary amendments to increase the li kelihood that this provision will meet
the minima l impairment test.
iv. Are the Potential Harms Caused by Limiting Expression Proportionate to the
Benets of Preventing Terrorism?
At this stage of t he analysis, a court will a ssess whether the benets of employing section
83.221 as a counter-terrorism tool outweigh the deleterious eec ts of limiting freedom
of expression. In order to properly weigh these, the c ourt will a ssess and bal ance all the
section 1 considerations disc ussed above.96 In this ca se, the nal ba lance betwe en the
benecial and detr imental eects of se ction 83.221 may be greatly inuenced by the
court’s view on the potential vag ueness and overbreadth of the provision.
91 Whatcott, supra note 68 at para 101.
92 R oach & Forcese, supra note 12 at 23.
93 Roy al Canadian Mounted Police, News Releas e, “Man Arrested by RCMP in BC for Terrorism
Oences” (10 July 2015), online: Royal Canadian Mounted Police
ViewPage.action?siteNode Id=2087&contentId=42610> archived at
JUT9>.
94 Whatcott, supra note 68 at paras 78, 101.
95 Butler, supra note 10 at para 110.
96 Sharpe, supra note 8 at 102.
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Undoubtedly, Parliament’s objective to prevent terrorism at all stages is pressi ng and
substantial. e f ailed terrorist plots and rec ent attacks in Ca nada, and the incre asing
number of terrorist attack s internationally, highlig ht the import of this object ive. e
former Government clearly art iculated these concer ns and explicitly pointed to sect ion
83.221 as a response tool. Advocating or promoting terrori sm alone may not cause an
individual to move to acts of violence , but may be a strong contributing factor. e
Rwandan radios’ contribution to increa sed violence suggest s this kind of ex pressive
activity at leas t relates to the incitement of actua l violence. Since the standa rd of proof
for rational connection is a “reasoned apprehension of ha rm”, a court could defer to the
government and move on to the next stage of the a nalysis.
e problem arises under mini mal impairment, bec ause as a vag ue and overbroad
provision, section 83.221 will likely captu re more than Parliament intended. L imits on
expressions should be dra fted “with the greate st precision possible”,97 and Parliament
could have draf ted section 83.221 with some more precision. In Keegstra and Sharpe,
the Court compared t he expressive activities caught by the impugned provi sions against
the core values asso ciated with freedom of expres sion. Section 2(b) protects expressions
that enhance democr atic participation, tr uth seeking f unctions, and self-fu llment.98
On the narrowest read ing of section 83.221, the expression prohibited is of low value,
and not the kind of expression societ y wants to protect. However, the potential vagueness
and overbreadth of section 83.221 invites the possibilit y of including other expressive
activities that a re more intimately connected to t hese core values, par ticularly the
enhancement of democratic par ticipation.
In Khawaja, the Court also considere d whether an impugned provision dea ling with
terrorism in the Code violated the accu sed’s section 7 Charter rights. In its proportiona lity
analysis, t he Court concluded that whi le the Code provisions at issue “captured a wide rang e
of conduct”, when the “tailored reach [of the provision] is weighed against t he objective
[of preventing devastating h arm that may resu lt from terrorist activity]” the mea ns were
not overbroad and the impact not disproportionate.99 Specica lly, the Court concluded
the narrow scope of the impug ned provision ensured that tr uly innocent individua ls
would not be caught.100 e Court’s comments in K hawaja suggest its w illingnes s to
accord a high degree of deferenc e to Parliament’s choice of counter-terrorism schemes,
but only once it is satised that Parlia ment suciently tailored the i mpugned scheme to
avoid overbreadth. If a court considerin g section 83.221 concludes the provision does not
minimal ly impair for reasons discussed above, it may dis tinguish Khawaja.
IV. POTENTIAL REMEDIES
If a court nds th at section 83.221 cannot be justied by section 1 of the Charter, it will
consider an appropriate remedy. It may choose to strike the provision entirely, as the Cour t
did in Zundel, or to read in or down elements to ma ke the provision constitutional ly
valid, as the C ourt did in Sharpe.
In Sharpe, the Cou rt was hesitant to str ike down the entire law bec ause it was valid in
most of its applications, and becau se the Code would be left with a gap u ntil Parliament
legislated a new provision.101 is hesita nce may not be applicable to section 83.221. As
a newly enacted oence, sec tion 83.221 has not yet been applied, and there can b e no
comparison between va lid and invalid applications. e aforementioned example of the
97 Keegstra, sup ra note 11 at para 293.
98 Butler, supra note 10 at para 95.
99 Khawaja, supra note 7 at para 62.
100 Ibid at paras 53-54.
101 Sharpe, supra note 8 at para 111.
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recent RCMP arrest sugg ests the possibilit y of covering the social h arm without the use
of section 83.221. It is possible that a court will str ike section 83.221 and leave it to the
government to re-enact a more constitutiona lly sound provision.
At the same time, sec tion 83.221 is not quite as egregious as section 181. e Court struck
down section 181 in Zundel because the vaguene ss and overbreadth prevented the Court
from ascerta ining Parliament’s objective and a rationa l connection. Professors Roach
and Schneiderman a lso note a trend in section 2(b) case s where courts tend to avoid
striking dow n a law if possible.102 A court may choose to re ad in narrower denitions
to avoid striking down a provision enac ted by an elected Parlia ment. Unlike in Sharpe,
however, reading in or down elements may not be possible for section 83.221 because
of the high level of vaguene ss and overbreadth. As mentioned above, M inister MacKay
indicated that Parlia ment intended to leave section 83.221 vague in order to cover the
broadest range of conduct neces sary. A court may be di sinclined to step on the toes of
the legislature by read ing in interpretations that the court ca nnot comfortably conclude
Parlia ment intended.
CONCLUSION
e Liberal Government has a lready indicated its i ntention to address problematic
elements of Bill C-51. Section 83.221 should be one of the areas addressed. At a quick
glance, sect ion 83.221 appears to address a gr ievous social evil, and thi s danger to society
alone should justify a m inor infringement on freedom of expression. Af ter all, other Code
oences prescribe limit s on free expression, and the Cour t has justied t hem. A deeper
analysis brea ks down the smoke screen a nd presents a more problematic provision.
Section 83.221 potentially violates sec tion 2(b) of the Charter and may not be justied
under section 1. A law violates section 2(b) if it limit s expression, and if the government
intended to limit expression. Cour ts broadly interpret “expression” to include all activitie s
that convey or attempt to convey meani ng, except acts or th reats of violence. A court
could exclude advocating or promoting ter rorism from the scope of section 2(b) because
these activitie s are too intimately connecte d to violence, or it may choose to presume
protection under section 2(b) in order to consider the limit s in a more thorough section
1 analysis. Se ction 83.221 is inundated with vague term s, such that the elements of the
oence cannot be interpreted w ith an intelligible sta ndard. Althoug h section 83.221
could fail at th is stage, the th reshold at this stag e is low, and a court may choose to
weigh the advantag es and disadva ntages of the law in the nex t stage. Leg islative history
clearly establishe s an unambiguous objective to prevent terrorism. e grav ity of harm to
the public makes th is objective pressing and subst antial. e lower thre shold of nding
a reasoned apprehension of harm bet ween advocating or promoting terrorism a nd the
harm of terrorist-related violence sugge sts a court may nd a rat ional connection ex ists
between Parliament’s objective and the mea ns taken to achieve it. However, a court may
not nd that the means ta ken in section 83.221 minimally impair. e provision likely
suers from overbreadth, which potenti ally captures more legitimate expres sive activities
than Parliament intended w ithout exceptions to restrict its applicat ion. If a court so
nds, it may conclude that the benets of se ction 83.221 are not proportional to its
detrimental eec t on freedom of expression, and nd sect ion 83.221 unconstitutional.
True freedom balances bet ween competing interests – in this context, bet ween national
security concerns a nd a fundamenta l freedom. is ana lysis shows the an swer is not
clear-cut one way or the other, with analogous prec edents weighing in f avour of both
sides. Parliamentar y intervention on this provision could el iminate uncert ainty in the
provision, and potentially avoid a succes sful constitutiona l challenge when se ction
83.221 appears before the Court.
102 Roach & Schneiderman, supra note 60 at 520.
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