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 without security,” the former Minister of Public Defence and

Emergency Preparedness, Steven Blaney, told the House of Commons at the second

reading of Bill C-51.1 “Canadians […] understand their freedom and security go hand

in hand.”2 In response to the increased instances of terrorist acts globally, the recently

defeated Conservative Government (“the former Government”) made national security

and counter-terrorism a political priority, and responded with a wave of anti-terrorism

legislation, some of which came under scrutiny and none more so than Bill C-51. e

former Government introduced Bill C-51 as another weapon in the war on terror. In

particula r, Bill C-51 creates a new crimina l oence under section 83.221 of the Criminal

Code (“the Code”),3 which prohibits advocating and promoting terrorism oences.

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 Ministerial Mandate Letters to the new Minister of

Public Safety and Emergency Preparedness, and Minister of Justice.4 In particular, 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 denitions.”5 He does not, however, specically refer

to section 83.221 as being a “problematic element” of Bill C-51 or a provision with overly

broad denitions.

is paper argue s that the newly elected Liberal Government should revi sit and reassess

section 83.221 because the provision potentially oends section 2(b) of the Canadian

Charter of Rights and Freedoms (“Charter”),6 and may not be demonstrably justiable

under section 1. To reach this conclusion, this paper conducts a Ch arter analysis and

draws on analogous considerations from ve other landmark cases that 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 constitutionally protected expression. Part 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 Assent on June 18, 2015. Minister Blaney highlighted the threats of

terrorism in Canada du ring the second reading , and drew special attention to t wo terrorist

attacks in October 2014 as a solemn reminder that international jihadists have also

targeted Ca nada. Bill C-51 therefore reected 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 criminal oence in section 83.221, which as of January

30, 2016 reads:

83.221 (1) Every person who, by communicating statements, knowingly

advocates or promotes the commission of terrorism oences in general—

other than an oenc e under this section—while know ing that any of those

oences will be committed or being reckless as to whether any of those

oences may be committed, a s a result of such communication, is guilt y of

an indictable oence and is liable to imprisonment for a term of not more

than ve years .

(2) e following denitions 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 theConstitution Act, 1982, being Schedule B to

theCanadaAct 1982 (UK), 1982, c 11.

7 R v Khawaja, 2012 SCC 69; [2012] 3 SCR. 555; [2012] SCJ No 69 (QL) [Khawaja].

8 R v Sharpe, 2001 SCC 2; [2001] 1 SCR 45; [2001] SCJ No 3 (QL) [Sharpe].

9 R v Zundel, [1992] 2 SCR 731; [1992] SCJ No 70 (QL) [Zundel].

10R v Butler, [1992] 1 SCR 452; [1992] SCJ No 15 (QL) [Butler].

11R 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 accused must communicate

statements. Section 319(7) of the Code denes “communicating” to include

“communicating by telephone, broadcasting or other audible or visible means,” and

“statements” to include “words spoken or written or recorded electronically or electro-

magnetically or otherwise, and gestures, signs or other visible representations.”13

Secondly, the individual must advocate or promote the communicated statements. As

will be discussed in Part II, the meanings of “advocating” and “promoting” present a

problematic uncertainty because the Code does not dene them. Finally, the prohibited

subject matter is “terrorism oences in g eneral”. Section 2 of the Code denes “terrorism

oence” to mean any indict able oences committed for or in association with a terroris t

group; any indictable oence that is also “terrorist activity”, which is dened in section

83.01(1); a series of specic oences 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 oence indicates t hat an accused must knowingly advocate or promote terrorism

oences that he or she knows, or is reckless that a terrorism oence may be c arried out as

a result of the promoting or advocating.15 However, the provision only requires that an

accused know or be reckless that a terrorism oence may be committed, and does not

require an accus ed to have a terrorist purpose.16

is new oence attempts to address the increasing number of radicalized individuals

from western nations, and the role of terrorist media in the radicalization process.

However, some civil liberties groups and legal academics worry that section 83.221

infringes the Charter, and will also chill legitimate expression. On July 21, 2015, the

Canadian Civil Liberties Association and the Canadian Journalists for Free Expression

launched a constitutional c hallenge agains t Bill C-51, in which they alleg e section 83.221

violates section 2(b) and cannot 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 oence 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 criminalized limits to

free expression. erefore, draw ing analogies from cases that h ave already addressed the

constitutionality of criminally prohibited expressions may be useful 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 briey outlines ve

landmark cases in which the Supreme Court of Canada (“the Court”) considered the

constitutionality of a cr iminalized limit to freedom of expres sion.

12See Kent Roach & Craig Forcese, “B ill C-51 Backgrounder #1: The New Advocating or Promoting

Terrorism Oence” (3 February 2015), Canada’s Proposed Anti-Terrorism Act: An Assessment (b log),

online: archived at perma.

cc/UH9S-C8AG> at 9-16 [Roach & Forcese].

13Criminal Code, supra note 3, s 319(7).

14Ibid, s 2.

15Roach & Forcese, supra note 12 at 6, 17-18.

16Ibid at 17-18.

17See 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>.

18Canada, 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 students. Section 319(2) prohibits an individual from

wilful ly promoting hatred aga inst any identiable 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. Butler: Obscenity

In Butler, the Court unanimously upheld section 163 of the Code,which prohibits the

publication, distribution, or circulat ion of obscene materials. Focusing specic ally on the

denition of “obscene” in section 163(8), the Court found that although t he prohibition

infringed on the accused’s freedom of expression, the prohibition was justied under

section 1. Like Keegstra, the Court found the subject matter of expression in Butler to

be outside the section 2(b) core values. It accepted evidence that demonstrated a causal

relationship between exposure to obscene material and individuals’ desensitization to

violence and degradation of women. e Cour t also gave weight to the fact that t he Code

clearly denes the subject matter prohibited by section 163, and does not unnecessarily

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, distribution, and possession of

child pornography. In Sharpe, the Court dealt exclusively with section 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 majority found the general

application of section 163.1(4) justied under section 1, the provision also potentially

captured two instances of “possession” not intended by Parliament. Instead of striking

the entire provision down, the majority read in the missing exceptions 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 eec 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 connected to violence.20 us, the conduct

here did not fall within the scope of expression protected under section 2(b), and the

Court did not conduct a section 1 a nalysis.

v. Zundel: False News

In Zundel, the accused was charged under section 181 of the Code for publishing a

booklet that denied the Holocaust. In a narrow 4-3 split, the Court struck down the

Code oence of publishing false statements that could cause injury to public interest

because it was overbroad and vague. First, section 181 caught a wide range of speech.

Additionally, the qualication that the speech be “false” was unclear and potentially

dependant on accepted norms of the day. Finally, the requirement th at the speech cause

19Butler, supra note 10 at paras 112-115.

20Khawaja, supra note 7 at para 71.

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“injury” or “mischief ” could not be suciently dened. 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 limits section 181 presented to freedom of expression could not be justied

under section 1 of the Charter.

II. DOES SECTION 83.221 INFRINGE SECTION 2B?

e Liberal Government should rea ssess section 83.221 because it potentially implicates

the rights and freedoms protected under section 2(b), and this uncertainty about the

provision’s constitutionality is itself problematic. A law infringes section 2(b) if the

prohibited activity is a form of “expression” and if Parliament’s purpose in enacting

the law is to limit that expression. One of the central issues with section 83.221 is

the potential vagueness and overbreadth in some of the oence elements, particularly

with the denitions of “advocating” and “promoting”. is potential vagueness and

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 already identied 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 available case law do not clearly resolve

whether the activity caught by section 83.221 falls within the scope of section 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 persuaded to nd these acts do not qualify as “expressions” if

it accepts that “advocatin g” or “promoting” terrorism oences exi st on a continuum that

contributes to acts of violence, or that “advocating” or “promoting” terrorism oences

are akin to counselling an oence. On the other hand, a court may decide that key

elements of the oence 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 have interpreted section 2(b) generously. If the impugned activity

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 unpopular and oensive expression, as evidenced in

Sharpe, Keegstra, and Butler. Acts of violence are the exception. A court may nd that

promoting and advocating terrorism oences are closely connected to acts of violence,

and should not receive protection under the Charter. In a case review of Keegstra, law

professor, Kathleen Mahoney, cites a social-psychology study that suggests expressions

of prejudicial attitudes connect to acts of violence on a continuum scale, and that each

stage of the continuum is connected to and dependent on preceding stages.23 Using

this premise, she argues that the Court in Keegstra should not have taken a categorical

approach that distinguishes based on content and form because, in the context of hate

propaganda, content is very much related to form.24 Similarly, one could argue that

advocating and promoting ter rorism fall on a continuum of act ions that potentially lead

to acts of terrorism, and for this reason, should be viewed purposively rather than in

dichotomous content and form distinctions. e door may be open for a court to make

21Zundel, supra note 9 at para 54.

22Keegstra, supra note 11 at para 37, citing Irwin Toy Ltd v Quebec[1989] 1 SCR 927; Butler, supra note

10 at para 69.

23Gordon 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

.

24Ibid.

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such a conclusion. In the context of a Charter analysis of a Code provision that prohibits

the participation in the activity of a terrorist group, the Court in Khawaja noted that

“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 terrorism is an early participatory stage that culminates in

the commission of terrorist act s, it may conclude that the activities prohibited by section

83.221 should not receive Charter protection.

At the same time a court may nd that the prohibition in section 83.221 encroaches

too far into activities protected by section 2(b). Justice McLachlin, as she then was,

wrote in her dissenting reasons in Keegstra, and in the unanimous Khawaja decision

that section 2(b) excluded threats of violence because threats of violence “take away

free choice and undermine freedom of action.”26 Applying this premise, law professors

Kent Roach and Craig Forces e27 argue that advocating and promoting ter rorism oences

are distinguishable from expressions that threaten violence because the former do not

remove agency from the receiver.28 Rather, an individual may “advocate or promote

terrorism oences” without threatening harm. Arguably, there is nothing inherently

violent in expressing one’s opinion in favour of terrorism.

A court may nd the activity 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 distinct meaning, common sense indicates that the 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.29Keegstra dened “promote”

to mean “active support or instigation […] more than simple encouragement.”30Sharpe

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 oence.31 e Court in R v Hamilton

said liability ows from counselling a n oence because it is just as objectionable to “get

someone to commit an objectionable act,” and in doing so, “increases the likelihood

of harm occurring.”32Khawaja also conrmed that threats of violence or oences

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 antithetical to the underlying purpose for section 2(b),

which is to choose between ideas or courses of conduct.35 e common law denitions

of “promoting” and “advocating” suggest a similar culpability as “counselling”. us,

one could argue that section 2(b) should also exclude acts of advocating or promoting

an oence.

25Khawaja, supra note 7 at para 63.

26Ibid at para 71; Keegstra, supra note 11 at para 237.

27Professors 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.

28Roac h & Forcese, supra note 12 at 21-22.

29Criminal Code, supra note 3, s 22(3).

30Keegstra, supra note 11 at para 115.

31Sharpe, supra note 8 at para 56.

32R v Hamilton, 2005 SCC 47; [2005] 2 SCR 432; [2005] SCJ No 48 (QL) at paras 25 -26.

33S ubsections 83.01(1)(b)(ii)(A), (B), (C) and (D) denes ‘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.

34Khawaja, supra note 7 at para 70.

35Ibid 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 dened

terms and presuming these denitions apply from one oence to another without

also considering their respective contexts.36 As will be more thoroughly discussed in

Part III, unlike in Sharpe or Keegstra, section 83.221 likely suers from an overbroad

interpretation and application because the prohibited subject matter is also vaguely

dened, and the oence lacks statutory defences.37 e potentially overbroad reach of

section 83.221 could mean that legitimate expression could be unwittingly caught by

this provision. us, a court may be disinclined to exclude Charter protection because

of the potential it will catch legitimate forms of expression, and may prefer to instead

consider if the limit is justied under section 1 of the Charter. is uncertainty is also

problematic because until a court makes a determination on this issue, section 83.221

may eectively chi ll free speech. e Liberal Government should rea ssess section 83.221,

and amend the provision with clea rer denitions to avoid this.

B. Parliament Intended to Limit Expression

If the activity or conduct qualies as “expression” within the meaning of section 2(b),

the second consideration is whether the government intended to restrict freedom of

expression.38 Here, the government’s purpose is clearly to prohibit a certain undesirable

kind of expression. Section 83.221 specically targets expression by referencing section

319(7)’s denition of “statements”.

III. IS SECTION 83.221 PRESCRIBED BY LAW AND

DEMONSTRABLY JUSTIFIED?

If section 83.221 violates section 2(b), the government must justify its limits under

section 1 of the Charter. Section 1 requires a court to determine whether the impugned

provision is prescribed by law and whether it is demonstrably justied in a free and

democratic society. e Liberal Government should reassess section 83.221 because if

this provision is indeed Char ter protected, a court may nd section 1 cannot save it.

Based on the ve comparison cases, a court 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 objective 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 eects 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 criminally prohibited at the time he or she

commits the act.39 e constitutional doctrine against vagueness also dictates that laws

be suciently clear to lim it law enforcement discretion.40 is means a legally pre scribed

limit cannot be so obscure that it is “incapable of interpretation with any degree of

precision” with “no intelligible standard.”41

Section 83.221 can be contrasted against sections 163, 163.1, and 319 of the Code. e

subject matter of these prohibitions have distinct and narrow denitions. For example,

section 163(8) denes “obscene” to mean “any publication a dominant characteristic of

36Roach & Fo rcese, supra note 12 at 11.

37Ibid.

38Keegstra, supra note 11 at para 31.

39R v Levkovic, 2013 SCC 25; [2013] 2 SCR 204; [2013] SCJ No. 25 (QL) at para 3, citing R v Mabior, 2012

SCC 47 [Levkovic].

40Ibid at para 2, citing Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 SCR 1123.

41Butler, 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 denition are

not “obscene”. Similarly, section 163.1(1) species the expressive vehicle and what must

be depicted for an expression to come with in the denition of “child pornography”. e

requirement that the “dominant characteristic” of the expression depict a sexual 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

denitions may not always be possible.44 In such circumstances, the judiciary must

interpret undened 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 than strike it down, and concluded that based on the

way the term was used in the provision, “hatred” denoted a limited range of identiable

emotions.45 One of the criticisms of section 83.221 is that unlike section 319(2) where

“hatred” had a narrow range of meaning, the potential vagueness in section 83.221 may

not be as easily remedied. In the context of terrorism oences, it is unclear 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 dierence in mea ning between

“counselling”, “advocating”, and “promoting” terrorism is unclear. e modern st atutory

interpretation approach presumes Parliament avoids redundancy.47 is then suggests

that “advocating” and “promoting” are not synonymous with each other, or with

“counselling”. Minister Blaney said section 83.221 targets the “idea of counselling or

inciting,” and pointed to Sharpe and Keegstra as instructive to clarify any potential

vagueness in its meaning.48 e denitions in Sharpe and Keegstra also seem to suggest

“advocate”, “promote”, and “counsel” have simila r meanings. How do “actively inducing

and encouraging”; “actively supporting and instigating that is more than mere

encouragement”; and “procuring, soliciting, and inciting” dier from each other in

meaning? If they do in fact mean the same thing, why did Parliament enact an oence

that already exists in the Code? Why did Parliament include both “advocate” and

“promote” as the actus reus elements of the oence? I f these words do not mean the same

thing, how are they dierent? is imprecision in a key element of the oence makes

section 83.221 vague.

Secondly, the nature of the subject matter caught by this oence is also vague. e

prohibited content is “terrorism oences in general.” As aforementioned, section 2 of

the Code denes “terrorism oences” very broadly. “Terrorism oences” include any

indictable oences in t he Code committed for or in association with a terrorist group; any

indictable oence that is also “terrorist activity”; a series of specic oences under Part

II.1; and conspiracy, aiding after the fact, or counselling any of the above. Denitions

that cite provisions with denitions that refer to yet other provisions with denitions

reduce the likelihood of nding an intelligible standard. e Ca nadian Bar Association

(“CBA”) criticized Parliament’s decision to use “terrorism oences” as the content matter,

instead of the less broad term, “terrorist ac tivity”, which is more clearly dened in section

83.01(1).49 “ Terrorism oences” is alrea dy vaguely and broadly dened, and t he words “in

42Criminal Code, supra note 3, s 163(8).

43Sharpe, supra note 8 at paras 49-51.

44Butler, supra note 10 at para 76.

45Keegstra, sup ra note 11 at paras 116-117.

46Roach & Forcese, supra note 12 at 7.

47Ruth Sullivan, Statutory Interpretation, 2nd ed (Toronto: Irwin Law Inc, 2007) at 167.

48Public Safet y March 2015, supra note 18 at 0935 (Hon Steven Blaney).

49Bil 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 /perma.cc/

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 oence is to cover the situation where

the active encouragement lacks the specic detail that would link the

encouragement to the commis sion of a specic terrorism oence, although

in the circumstances, it is clear that someone is actively encouraging to

commit any of the terrorism oence s in the Code.51

Although Parliament clearly intended to enact a provision that could adapt to the

ever changing counter-terrorism landscape, this approach potentially violates the

fundamental principle of justice that individua ls must be able to know that a particular

act is a crimina l oence 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 stage of the section 1 analysis. However,

a court may also, as it did in Zundel,53 presume the oending provision meets the low

vagueness threshold in order to consider the matter on its merits at the next section 1

stage.

B. Is the Limitation of Advocating or Promotion Terrorism Oences

Demonstrably Justiable?

A limit that infr inges the Charter may be demonstrably justia ble if the government can

show Parliament had a pressing and substantial objective, and that the means chosen

are proportionate to this objective.54 e law is proportionate if the means chosen to

achieve it are rationally connected, if the law impairs as minimally as necessary, and if

the benets of the law are proportiona l to its deleterious eects.55 Drawing on analogous

considerations from the ve comparison cases, a court may conclude that although

Parliament had a pressing and substantial objective that is rationally 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 justiable .

i. Parliament had a Pressing and Substantial Objective

A court will likely nd that Parliament had a pressing and substantial objective in

enacting section 83.221 because Parliament’s purpose in enacting section 83.221 is well

documented. Ministers Blaney and MacKay make it very clear at various stages of the

legislative process that Bill C-51 targets the very real threat of terrorism in Canada,

and that the purpose of the new oence is to give law enforcement more powers to

combat the concerning trend in militant radicalization in Canadians. At the 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 specic ally at protecting

Canadians from the evolving threat of terrorism.”56 e former Government was also

clear that the a mendments to the Code collectively and individua lly gave law enforcement

50Roac h & Forcese, supra note 12 at 14.

51Public Safety March 2015, supra note 18 at 0915 (Hon Peter MacKay).

52Levkovic, supra no te 39.

53Zundel, supra note 9 at para 41.

54Carter 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.

55Ibid.

56House 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 terrorist activities.57 Minister Blaney compared

terrorism to the Holocaust, saying, “[V]iolence begins with words. Hatred begins

with words […] extremist speeches, the language that undermines Canadian values,

basically hate propaganda has no place in Canada […] we must not tolerate incitement

to violence.”58 ese statements al ign with the Government’s Counter-terrorism Strategy,

which identies prevention as a sign icant element.59

Minister Blaney’s reference to hate propaganda also reminds us that this particular

criminalized limit to free expression successfully withstood a constitutional challenge.

e Court in Keegstra reviewed the provision’s detailed history, which was an essential

element when the Court considered Parliament’s objective in enacting the oence.

In 1966, with the atrocities of Nazism still fresh in mind, Parliament appointed the

Cohen Commission to study the st ate of hate propaganda in Ca nada.60 e Committee

identied potential societal harms associated with hate propaganda and recommended

the subsequently enacted oence s.61 is contrasts with Zundel, where the Cou rt struck

down the false statements oence. Here, the Court’s inability to pinpoint an objective

that addressed an existing social harm was fatal to the provision. Section 181 did not

have well-documented histor y of debates, committee recommendations, or internationa l

obligations.

e Court in Butler andKeegstra found Canada’s international obligations important

when considering whether Parliament’s objectives were pressing and substantial. e

specic international agreements and resolutions in which Canada participates are

beyond the scope of this paper, but it is worth noting t hat Canada contributes to a variet y

of international counter-terrorism initiatives. For example, Canada helps develop legal

instruments and international standards with organizations such as the 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 pressing and substantial because of the grave harm associated. Since

the events of 9/11, law enforcement in Canada have responded to a handful of known

terror related plots, and have successfully interrupted the execution of several plots.63

However, the increased number of “lone wolf ” attacks pose a risk that is more dicult

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 reservist ocer on Parliament Hill and stormed the Parliament building

57House 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).

59Public Safety Canada, “Countering Violent Extremism”, Government of Canada, online:

www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/cntrng-vlnt-xtrmsm/index-eng. aspx> archived

at .

60Kent Roach & Davi d Schneiderman, “Freedom of Ex pression in Canada” (2013) 61 Sup Ct L Rev

(2d) 101 at 462 [Roach & Schneiderman].

61Keegstra, supra note 11 at paras 60-62.

62Global Aairs 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-

BLQG>.

63In 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 fatally shot himself. Both “lone-wolf” attacks were allegedly linked to

Islamic State of Iraq a nd al-Sham (“ISIS”) ideology.64 Further, the radicaliz ation of young

Canadians is alarming and more prevalent than before, as evidenced by the number of

individuals travelling to join terrorist groups abroad.65 Based on the available evidence

about the prevalence and graveness of terrorist threats to Canada and Canadians, and

the former Government’s clear indication that Bill 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 portion of the analysis is whether the limits posed by section

83.221 constitute a rational means to meet t he objective. Based on Keegstra, Butler, and

Sharpe, and the standard of proof the Court accepted in those cases, a court may nd a

sucient nexus betwe en the limit in section 83.221 and the objective.

A limit must be rationally connected to Parliament’s pressing and substantial objective.

is means the law should be a rational means for Parliament to meet its objectives,

and the law’s eect should relate to its purpose.66 Courts do not require conclusive,

denitive, or causal evidence connecting a limit to a known social harm, because they

recognize this standard is often dicult or impossible to meet.67 Instead, the Crown’s

standard of proof for demonstrating harm is to show an activity creates a “reasoned

apprehension of harm,” based on common sense and experience.68 In the above cases,

although the socia l science evidence linking obscen ity and child pornogr aphy to a social

harm were inconclusive, available evidence and common sense su ggested a rational link

between the activity and the social harm existed. For example, the Court in Keegstra

accepted the Cohen Committee’s ndings that hate propaganda existed in Canada at a

level sucient to warrant concern.69 In Butler,the Court accepted evidence suggesting

a correlative relationship between exposures to obscene content and reinforcing gender

stereotypes.70 e Court also accepted evidence showing a link between viewing child

pornography and child sex ual abuse in Sharpe.71 e Court’s ndings in the se cases show

its willingness to nd a rational connection between the means taken and Parliament’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 Internet incitement.72 However, while one cannot conclude that advocating or

64Stewart 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 .

65Davi d Ljunggren, “Spy agency sees sha rp increase in Canadians joining Islamic St ate”

(20 April 2015), Reuters Canada, online:

idCAKBN0NB2DV 20150420> archived at .

66Canada (Attorney General) v Bedford, 2013 SCC 72; [2013] 3 SCR 1101, [2013] SCJ No. 72 (QL) at

paras 111, 126 [Bedford].

67Sharpe, supra note 8 at para 85; Butler, supra note 10 at para 103; Keegstra, supra note 11 at

para114.

68Sharpe, supra note 8 at para 85; Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC

11; [2013] 1 SCR 467, [2013] SCJ No 11 (QL) at para 132 [Whatcott].

69Keegstra, sup ra note 11 at para 60.

70Butler, supra note 10 at paras 103, 107-108.

71Sharpe, supra note 8 at para 88.

72Craig Fo rcese & Kent Roach, “Terrorist Babble and th e Limits of the Law: Assessing a Prospe ctive

Canadian Terrorism Glorication Oence” (2015) Canadian Network for Research on Terrorism,

Security and Society, online: /library.tsas.ca/media/TSASWP15-02_Forcese-Roach.pdf>

archived at at10.

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promoting terrorism causes terrorist acts, propagating terrorism may help to normalize

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 facilitate radicalization by providing forums

for communication and coordination, and instructive material. Post attack analyses

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 discussions online include an explicit call for jihad.75 Jim Berger, an expert

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 Rwandan genocide was directly attributable

to violent hate propaganda, because one of the national Rwanda n radios called for “pre-

emptive violence” which was necessary for “self-defence”.77 Radicalization 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 choose 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 this analysis asks whether the limit minimally impairs. A limit 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 consider two elements at this stage: overbreadth and alternative methods to

achieve Parliament’s objectives. An overbroad limit does not minimally impair, and a

court may nd section 83.221 overbroad because vague elements of the oence possibly

captures activities beyond those intended, and because the provision lacks reasonable

defences to restrict its applic ation. Additionally, a court may consider whether the limits

imposed by section 83.221 fall within the range of reasonable alternatives, although

it is unclear whether a court would interfere with a reasonable 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 the wording of

section 83.221 broad to cast a wider net than existing provisions in the Code. Unlike in

73Lau 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 .

74Sharpe, supra note 8 at 88 .

75Forcese & Roach, supra note 72 at 10-11.

76Canada, 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].

77David Yanagiz awa-Drott, “Propagand a and Conict: 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>.

78Yaël Ron en, “Incitement to Terrorist Acts and Inter national Law” (2010) 23 Leiden J Int’l L 645 at

655-656.

79Butler, supra note 10 at para 110, citing Irwin Toy Ltd v Quebec[1989] 1 SCR 927.

80Sharpe, supra note 8 at para 96.

81Bedford, 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 specied particular

attributes, key elements of the section 83.221 oence cannot be dened with sucient

precision. e provision, therefore, has the potentia l to catch activities Parliament never

intended to be caught. In Zundel, the Court cited overbreadth as the “fatal aw” of the

false information oence.82 An undened and overreaching provision leaves open the

possibility of the state restricting constitutional rights in circumstances t hat may not be

justiable.83 Given the social and political context in which Parliament enacted section

83.221, it was clearly intended to target militant terrorist groups, such as ISIS and al-

Qaeda. To this point, Jim Berger, reminded the Senate Committee that anything done

as a response to Islam ic extremism would have the same application to other groups and

individuals.84 Professors Roach and Forcese seconded this 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 protesters or Ukrainian rebel supporters,

would be less clear.85 Jim Berger succinctly commented that “one person’s terrorist is

another’s freedom ghter.”86 e Canadian Civil Liberties Association advances a

scenario in which a jour nalist in favour of providing resources for Uk rainian insurgents

against Russian troops could fall under the new oence.87 e CBA posed a similar

question, noting civil activists like Nelson Mandela could have also been 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 because the very purpose of section 2(b) is to protect all expression,

regardless of the popu larity of their content.

Additionally, Parliament set the mental fault element of the section 83.221 oence at a

lower threshold than other expression limiting oences. As discussed in Part I, section

83.221 captures those individuals who knowingly advocates or promotes, rather than a

higher mental fault element of wilful advocating or promoting. Professors Roach and

Forcese note that the Court narrowly upheld section 319(2) in Keegstra in part because

section 319(2) required “wilful” promotion of hatred.89 is mental fault element in

section 83.221 increases the potential that individuals may be caught by the oence,

even though their ac tions do not produce the harm Parlia ment intended to address with

this oence.

Further, unlike other criminalized limits to freedom of expression, section 83.221 does

not provide any statutory exceptions or defences. Keegstra noted that when considering

overbreadth, statutory exceptions show the government took steps to avoid intruding

on a protected right more than necessary.90 For example, section 163 exempts obscene

materials kept only for personal consumption. Section 319(2) allows an individual to

promote hatred against an identiable group in the context of a private conversation.

In Sharpe,the Court read in the exception of possessing child pornography created by

the possessor and kept for personal use only to section 163.1(4). For each provision,

82Zundel, supra note 9 at para 62.

83Ibid at para 58.

84Securit y and Defence April 2015, supra note 76 at 149.

85Roa ch & Forcese, supra note 12 at 13.

86Securit 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 .

88Bill C-51, supra note 49 at 23.

89 Roac h & Forcese, supra note 12 at 17.

90Keegstra, supra n ote 11 at para 107.

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the Court noted the availability of exceptions or defences as an important restraint

on potentially overbroad applications. Section 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 sense. If one interprets “advocate” and “promote” to mean

“incite” or “counsel”, this act should be limited whether one expresses it in private or

in the public sphere. ere is no “private conversation” exception for counselling an

oence, and rightly so. However, because key 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 court will nd section 83.221 minimally impairs under this

consideration is dicult because of the degree of deference c ourts accord to Parlia ment.

A court may nd that a Charter infringing limit minimally impairs if that limit falls

within the range of reasonably supportable alternatives.91 Professors Roach and Forces

believe other less impairing methods to prevent or foresta ll acts of terrorism exist,92 and

there may be some truth to this 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 oence for the benet of a terrorist group, and for counselling to commit

murder and assault by posting pro-ISIS terrorism propaganda that encouraged and

provided instructions to commit murders in the name of jihad.93 is arrest suggests

that law enforcement could use existing Code provisions to capture the same activities

targeted by sect ion 83.221, thereby making section 83.221 superuous and unnec essary.

However, courts are mindful of Parliament’s role in selecting a particular scheme to

meet its intended objectives, and a court may be more inclined to accord deference

to the method Parliament chooses, even if other less impairing schemes exist.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 infringed right.”95 us, the court’s

conclusion on the potential overbreadth of sect ion 83.221 may inuence whether it nds

the provision to be a scheme within the r ange of reasonable alternatives. Given the above

discussion about overbreadth, the Liberal Government should reassess 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

Benets of Preventing Terrorism?

At this stage of t he analysis, a court will a ssess whether the benets of employing section

83.221 as a counter-terrorism tool outweigh the deleterious eects of limiting freedom

of expression. In order to properly weigh these, the court will assess and balance all the

section 1 considerations discussed above.96 In this case, the nal balance between the

benecial and detrimental eects of section 83.221 may be greatly inuenced by the

court’s view on the potential vag ueness and overbreadth of the provision.

91Whatcott, supra note 68 at para 101.

92R oach & Forcese, supra note 12 at 23.

93Roy al Canadian Mounted Police, News Releas e, “Man Arrested by RCMP in BC for Terrorism

Oences” (10 July 2015), online: Royal Canadian Mounted Police

ViewPage.action?siteNode Id=2087&contentId=42610> archived at

JUT9>.

94Whatcott, supra note 68 at paras 78, 101.

95Butler, supra note 10 at para 110.

96Sharpe, supra note 8 at 102.

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Undoubtedly, Parliament’s objective to prevent terrorism at all stages is pressing and

substantial. e failed terrorist plots and recent attacks in Canada, and the increasing

number of terrorist attacks internationally, highlight the import of this objective. e

former Government clearly articulated these concerns and explicitly pointed to section

83.221 as a response tool. Advocating or promoting terrorism alone may not cause an

individual to move to acts of violence, but may be a strong contributing factor. e

Rwandan radios’ contribution to increased violence suggests this kind of expressive

activity at least relates to the incitement of actual violence. Since the standard of proof

for rational connection is a “reasoned apprehension of harm”, a court could defer to the

government and move on to the next stage of the a nalysis.

e problem arises under minimal impairment, because as a vague and overbroad

provision, section 83.221 will likely capture more than Parliament intended. Limits on

expressions should be drafted “with the greatest precision possible”,97 and Parliament

could have drafted 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 associated with freedom of expression. Section 2(b) protects expressions

that enhance democratic participation, truth seeking functions, and self-fullment.98

On the narrowest reading 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 possibility of including other expressive

activities that are more intimately connected to these core values, particularly the

enhancement of democratic par ticipation.

In Khawaja, the Court also considered whether an impugned provision dealing 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 the objective

[of preventing devastating harm that may result from terrorist activity]” the means were

not overbroad and the impact not disproportionate.99 Specically, the Court concluded

the narrow scope of the impugned provision ensured that truly innocent individuals

would not be caught.100 e Court’s comments in K hawaja suggest its willingness to

accord a high degree of deference to Parliament’s choice of counter-terrorism schemes,

but only once it is satised that Parlia ment suciently tailored the impugned 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 justied 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 make the provision constitutionally

valid, as the C ourt did in Sharpe.

In Sharpe, the Court was hesitant to strike down the entire law because 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 hesitance may not be applicable to section 83.221. As

a newly enacted oence, section 83.221 has not yet been applied, and there can be no

comparison between va lid and invalid applications. e aforementioned example of the

97Keegstra, sup ra note 11 at para 293.

98Butler, supra note 10 at para 95.

99Khawaja, supra note 7 at para 62.

100Ibid at paras 53-54.

101Sharpe, supra note 8 at para 111.

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recent RCMP arrest suggests the possibilit y of covering the social harm without the use

of section 83.221. It is possible that a court will strike 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 ascertaining Parliament’s objective and a rational connection. Professors Roach

and Schneiderman also note a trend in section 2(b) cases where courts tend to avoid

striking down a law if possible.102 A court may choose to read in narrower denitions

to avoid striking down a provision enacted by an elected Parliament. Unlike in Sharpe,

however, reading in or down elements may not be possible for section 83.221 because

of the high level of vagueness and overbreadth. As mentioned above, Minister MacKay

indicated that Parliament intended to leave section 83.221 vague in order to cover the

broadest range of conduct necessary. A court may be disinclined 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 already indicated its intention 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

oences prescribe limits on free expression, and the Court has justied them. A deeper

analysis breaks down the smoke screen and presents a more problematic provision.

Section 83.221 potentially violates section 2(b) of the Charter and may not be justied

under section 1. A law violates section 2(b) if it limits 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 meaning, except acts or threats of violence. A court

could exclude advocating or promoting ter rorism from the scope of section 2(b) because

these activities are too intimately connected to violence, or it may choose to presume

protection under section 2(b) in order to consider the limits in a more thorough section

1 analysis. Section 83.221 is inundated with vague terms, such that the elements of the

oence cannot be interpreted with an intelligible standard. Although section 83.221

could fail at this stage, the threshold at this stage is low, and a court may choose to

weigh the advantages and disadvantages of the law in the next stage. Legislative history

clearly establishe s an unambiguous objective to prevent terrorism. e grav ity of harm to

the public makes this objective pressing and substantial. e lower threshold of nding

a reasoned apprehension of harm between advocating or promoting terrorism and the

harm of terrorist-related violence suggests a court may nd a rational connection exists

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

suers from overbreadth, which potenti ally captures more legitimate expres sive activities

than Parliament intended without exceptions to restrict its application. If a court so

nds, it may conclude that the benets of section 83.221 are not proportional to its

detrimental eect on freedom of expression, and nd section 83.221 unconstitutional.

True freedom balances bet ween competing interests – in this context, bet ween national

security concerns and a fundamental freedom. is analysis shows the answer is not

clear-cut one way or the other, with analogous precedents weighing in favour of both

sides. Parliamentary intervention on this provision could eliminate uncertainty in the

provision, and potentially avoid a successful constitutional challenge when section

83.221 appears before the Court.

102Roach & Schneiderman, supra note 60 at 520.