Abstract
This chapter examines the legislation through which obligations under the international framework for combating terrorism have been implemented in Canada. An overview and explanation of the following items of legislation is provided, as these relate to counter-terrorism in Canada: the Aeronautics Act 1985; the Anti-terrorism Act 2001; the Canada Evidence Act 1985; the Charities Registration (Security Information) Act 2001; the Criminal Code 1985; the Explosives Act 1985; the Immigration and Refugee Protection Act 2001; the Income Tax Act 1985; the Proceeds of Crime (Money Laundering) and Terrorist Financing Act 2000; the Security of Information Act 1985; the United Nations Act 1985. It should be noted that there are numerous other pieces of domestic legislation that might be seen as contributing to the countering of terrorism. This chapter restricts itself to the items of legislation just mentioned, those having been identified by Canada in its reports to the Counter-Terrorism Committee as being part of its counter-terrorist legislative regime.
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Notes
- 1.
International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly and opened for signature on 15 April 2005 under GA Res 59/290, UN GAOR, 59th Sess, 91st Plen Mtg, UN Doc A/Res/59/290 (2005) and entered into force 7 July 2007.
- 2.
Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969), articles 1 and 2.
- 3.
Convention on the Physical Protection of Nuclear Material, opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987); Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971); the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973); the Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the Montreal Protocol), opened for signature 24 February 1988, ICAO Doc 9518 (entered into force 6 August 1989); the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992); the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992); the International Convention against the Taking of Hostages, opened for signature 18 December 1979, 1316 UNTS 205 (entered into force 3 June 1983); and the Convention on the Prevention and Punishment of Crimes against International Protected Persons, including Diplomatic Agents, opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977).
- 4.
Corresponding to article 7(1)(a) of the Nuclear Material Convention (ibid).
- 5.
Corresponding to article 7(1)(b) to (e) of the Nuclear Material Convention (n 3).
- 6.
Corresponding to article 1(a) of the Hague Convention (n 3).
- 7.
Corresponding to articles 1(1) and 1(1bis) of the Montreal Convention (n 3).
- 8.
Corresponding to: article 3(1)(a) of the Rome Convention (n 3); and article 2(1)(a) of the Rome Protocol (n 3).
- 9.
Corresponding to articles 3(1)(b) to (f) of the Rome Convention (ibid), and articles 2(1)(b) to (e) of the Rome Protocol (ibid).
- 10.
Corresponding to article 3(1)(f) of the Rome Convention (ibid).
- 11.
Corresponding to article 3(2)(c) of the Rome Convention (ibid) and article 2(2)(c) of the Rome Protocol (ibid).
- 12.
Corresponding to article 1(1) of the Hostages Convention (n 3).
- 13.
The offences referred to in section 424 are offences under sections 235 (murder), 236 (manslaughter), 266 (assault), 267 (assault with a weapon or causing bodily harm), 268 (aggravated assault), 269 (unlawfully causing bodily harm), 269.1 (torture), 271 (sexual assault), 272 (sexual assault with a weapon), 273 (aggravated sexual assault), 279 (kidnapping), 279.1 (hostage taking) and 431 (attack on premises, residence or transport of an internationally protected person) of the Criminal Code.
- 14.
Corresponding to article 2(1)(c) of the Protected Persons Convention (n 3).
- 15.
Corresponding to article 2(1)(b) of the Protected Persons Convention (ibid).
- 16.
Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998).
- 17.
Report of the Government of Canada to the Counter-Terrorism Committee of the United Nations Security Council on measures taken to implement resolution 1373 (2001), UN Doc S/2001/1209 (2001), p. 3.
- 18.
On the Bill, which was 175 pages in length, see Daniels (2002, pp. 3–5).
- 19.
Department of Justice Backgrounder, ‘Highlights of Anti-terrorism Act’ (15 October 2001), online: http://canada.justice.gc.ca/en/news/nr/2001/doc_27787.html (as accessed on 1 June 2002). See further Jenkins (2003, pp. 422–424); and Gabor (2004, p. 11).
- 20.
Statutes of Canada 2001, Chapter 41, Summary, un-numbered p. 2 (also available online at http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-36&parl=37&ses=1&language=E&File=11).
- 21.
On the application of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to the seizure and forfeiture of funds, see Sellathurai v Canada (Public Safety and Emergency Preparedness) [2007] FC 208.
- 22.
See, for example, Canadian Magen David Adom for Israel v Minister of National Revenue [2002] FCA 323.
- 23.
See the preamble to the Anti-terrorism Act 2001, para 4.
- 24.
International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992); and International Convention for the Suppression of Terrorist Bombing, opened for signature 12 January 1998, 2149 UNTS 286 (entered into force 23 May 2001).
- 25.
Convention on the Safety of United Nations and Associated Personnel, opened for signature 9 December 1994, 2051 UNTS 363 (entered into force 15 January 1999): see Department of Justice, “International Dimensions of the Anti-terrorism Act”, online: http://www.justice.gc.ca/eng/antiter/sheet-fiche/INTERNAT.HTML.
- 26.
Corresponding to article 2(1) of the Financing Convention (ibid); and para 1(b) of SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
- 27.
Section 2 of the Criminal Code 1985 provides that “property” includes (a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, (b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, and (c) any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person.
- 28.
Corresponding to articles 2(1) and 2(5)(c) of the Financing Convention (n 24); and para 1(b) and (d) of SC Res 1373 (n 26).
- 29.
Corresponding to article 2(1) of the Financing Convention (n 24); and para 1(c) of SC Res 1373 (n 26).
- 30.
Corresponding to para 1(c) of SC Res 1373 (n 26).
- 31.
Corresponding to para 2(d) of SC Res 1373 (n 26).
- 32.
Section 83.18(4) identifies such factors as: using a name, word, symbol or other representation that identifies, or is associated with, the terrorist group; frequently associating with any of the persons who constitute the terrorist group; receiving any benefit from the terrorist group; or repeatedly engaging in activities at the instruction of any of the persons who constitute the terrorist group.
- 33.
Corresponding to para 2(d) of SC Res 1373 (n 26).
- 34.
Corresponding to para 2(d) of SC Res 1373 (n 26).
- 35.
Corresponding to para 2(a) of SC Res 1373 (n 26).
- 36.
Corresponding to para 2(a) of SC Res 1373 (n 26).
- 37.
Corresponding to para 2(c) of SC Res 1373 (n 26).
- 38.
Corresponding to article 2(1) of the International Convention for the Suppression of Terrorist Bombing, opened for signature 12 January 1998, 2149 UNTS 286 (entered into force 23 May 2001).
- 39.
Queen v Khawaja (29 October 2008) Ontario Superior Court of Justice 04-G30282 (available online at http://multimedia.thestar.com/acrobat/c1/ab/bf9c99dc4b87b854428bc30574d8.pdf).
- 40.
See Canada (Attorney General) v Khawaja [2007] FC 490.
- 41.
This case remains in progress. See Joanna Smith, ‘Khawaja guilty of terrorism’, Thestar.com (30 October 2008), available at http://www.thestar.com/News/Canada/article/527222.
- 42.
R v Lapoleon [2007] BCPC 309.
- 43.
R v Malik and Bagri (2005) BCSC 350.
- 44.
Correct as at 1 April 2008: see Department of Justice. Human Rights Safeguards in the Anti-terrorism Act, online: http://www.justice.gc.ca/eng/antiter/sheet-fiche/SAFE-SUR.HTML.
- 45.
Note, however, that forfeiture under section 83.14(5) can be made only to the extent that the property is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to, or compensation of, persons affected by the commission of offences: see section 83.17(2) of the Criminal Code 1985.
- 46.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 4.
- 47.
Special Senate Committee on the Anti-terrorism Act, Fundamental Justice in Extraordinary Times, February 2007, online: http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/anti-e/rep-e/rep02feb07-e.pdf; and House of Commons Standing Committee on Public Safety and National Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, online: http://www2.parl.gc.ca/content/hoc/Committee/391/STER/Reports/RP2798915/sterrp07/sterrp07-e.pdf.
- 48.
Senate report (ibid), recommendations 1–3; House of Commons report (ibid), recommendations 1 and 6–8.
- 49.
House of Commons report (n 47), recommendation 2.
- 50.
Senate report (n 47), recommendations 16–17; House of Commons report (n 47), recommendations 44–45.
- 51.
Senate report (n 47), recommendations 18–20.
- 52.
Senate report (n 47), recommendations 7–15; House of Commons report (n 47), recommendations 23–26, and 42.
- 53.
Senate report (n 47), recommendations 4–6.
- 54.
Senate report (n 47), recommendation 39.
- 55.
Senate report (n 47), recommendation 40. See also recommendations 59–60 of the House of Commons report (n 47).
- 56.
Parliament of Canada, The Special Senate Committee on the Subject Matter of Bill C-36, First Report, 1 November 2001, p. 3.
- 57.
Order Establishing the Text of a Resolution Providing for the Extension of the Application of Sections 83.28, 83.29 and 83.3 of the Criminal Code, SOR/2007-25.
- 58.
- 59.
Suresh v Canada (Minister of Citizenship and Immigration) [2002] SCC 1. See also: Ali v Canada (Minister of Citizenship and Immigration) [2004] FC 1174; Fuentes v Canada (Minister of Citizenship and Immigration) [2003] FCT 379; and Khan v. Canada (Minister of Citizenship and Immigration) [2005] FC 1053.
- 60.
Suresh v Canada (ibid), paras 93–98.
- 61.
SC Res 1267, UN SCOR, 4051st Mtg, UN Doc S/Res/1267 (1999); SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001); and SC Res 1624, UN SCOR, 5261st Mtg, UN Doc S/Res/1624 (2005).
- 62.
SC Res 1267, UN SCOR, 4051st Mtg, UN Doc S/Res/1267 (1999).
- 63.
SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
- 64.
See further Report of Canada to the Security Council Committee established under Security Council resolution 1267 (1999), UN Doc S/AC.37/2003/(1455)/20 (2003), pp. 8–9.
- 65.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 4.
- 66.
Report of Canada to the Security Council Committee established under Security Council resolution 1267 (n 64); first report (n 17); (second) Report of the Government of Canada to the Counter-Terrorism Committee of the Security Council in response to the letter of the Chairman of the Committee dated 7 March 2002, UN Doc S/2002/667 (2002); (third report) Letter dated 18 February 2003 from the Permanent Representative of Canada to the United Nations addressed to the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism, UN Doc S/2003/403 (2003); (fourth report) Implementation of United Nations Security Council Resolution 1373; Canada’s Fourth Report to the Counter-Terrorism Committee, UN Doc S/2004/132 (2004); and Fifth Report of the Government of Canada on the implementation of Security Council resolution 1373 (2001), UN Doc S/2006/185 (2006).
- 67.
SC Res 1624, UN SCOR, 5261st Mtg, UN Doc S/Res/1624 (2005), para 1(a).
- 68.
As at 1 October 2009.
- 69.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 4.
- 70.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 4.
- 71.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 5.
- 72.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 6.
- 73.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 6.
- 74.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 7. See also pp. 13–14 of the same report and pp. 3–4 of Canada’s fourth report to the Committee (n 66).
- 75.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), pp. 6–8.
- 76.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), p. 8.
- 77.
First report of Canada to the Security Council Counter-Terrorism Committee (n 17), pp. 9–10. See also Canada’s fifth report to the Counter-Terrorism Committee (n 66), pp. 10–12.
References
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Gabor, Thomas. 2004. The Views of Canadian Scholars on the Impact of the Anti-terrorism Act. Ottawa: University of Ottawa Research and Statistics Division.
Harrington, Joanna. 2003. Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee, and Requests for Interim Measures of Protection. 48 McGill Law Journal 55.
Jenkins, David. 2003. In Support of Canada’s Anti-Terrorism Act: A Comparison of Canadian, British, and American Anti-Terrorism Law. 66 Saskatchewan Law Review 419.
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Conte, A. (2010). Counter-Terrorism Law in Canada. In: Human Rights in the Prevention and Punishment of Terrorism. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11608-7_6
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