Category: Constitutional Page 26 of 71

By: Hayleigh Cudmore, Elliot Holzman, Andrea Mannell, and Sarah Miller

PDF Version: Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions

Provisions Commented on: Sections 83.02, 83.03 and 83.04, Criminal Code, RSC 1985, c C-46

Editor’s Note: This is the third in a series of three posts on Reviewing Canada’s National Security Framework.

This law reform proposal is focused on the “Financing of Terrorism” provisions in the Criminal Code of Canada, RSC 1985, c C-46. The government is currently engaged in public consultations and substantive review of the controversial aspects of Bill C-51, the Anti-terrorism Act, 2015. The purpose of this post is to consider the structural problems within the Criminal Code and the current anti-terrorism financing regime, discuss the apparent shortcomings in bringing prosecutions under this regime and provide recommendations to improve the efficacy of these provisions.

The particular provisions of the Criminal Code which prohibit terrorism financing – sections 83.02, 83.03 and 83.04 – were neither enacted nor varied by Bill C-51. These provisions came into force as part of the Anti-terrorism Act, SC 2001, c 41, in response to the terrorist attacks of September 11, 2001 and the following UN Resolution 1373 on the financing of terrorist acts. Despite the fact that the provisions are not anchored to Bill C-51, it is still a good opportunity to revisit these provisions and restructure this part of the Code.

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By: Navreet Bal, Tim Horon, Tiana Knight, Ryan Shudra, and Jessie Sunner 

PDF Version: Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants

Provisions Commented On: Sections 12 to 12.2 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23

Editor’s Note: This is the second in a series of three posts on Reviewing Canada’s National Security Framework.

A recent Federal Court ruling, which has been referred to in the media as the “Metadata Case”, has renewed questions about the secrecy of judicial warrants granted to the Canadian Security Intelligence Service (CSIS) as well as CSIS’s duty of candour to the Court (see In the Matter of an Application by [REDACTED] for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Act, RSC 1985, c C-23 and In the Presence of the Attorney General and Amici and In the Matter of [REDACTED] Threat-Related Activities,(2016) FC 1105). This post will discuss the specific difference between review and oversight in Canadian national security law, provide an overview of recent Federal Court decisions related to CSIS judicial warrants, and look to future options related to CSIS judicial warrants.

In this post, we suggest that a robust system of real-time operational oversight is needed throughout Canada’s national security agencies, including CSIS, in order to improve the coordination and effectiveness of these agencies and to ensure the protection of citizens’ civil liberties. Particularly, we will be focusing on the oversight needed in the CSIS judicial warrant architecture. We propose the return of the Office of the Inspector General – which was eliminated in 2012 – that would act as an active, expert, and full-time oversight body over CSIS and handle real time oversight of judicial warrants. We also suggest the introduction of a special advocate regime within the judicial warrant process to act for the targets of CSIS warrants.

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By: Kiran Fatima, Meagan Potier, Jordan Szoo and Stephen Armstrong

PDF Version: Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Provision Commented On: Section 83.221 of the Criminal Code, RSC 1985, c C-46

Bill C-51, the Anti-terrorism Act, 2015, sailed through Parliament and received Royal Assent on the 18th of June, 2015, amidst much political debate. One of the more controversial provisions was a new advocating terrorism offence contained in what is now s 83.221 of the Criminal Code, RSC 1985, c C-46. The provision criminalizes knowingly advocating the commission of terrorism offences in general and being reckless as to whether such offences are actually carried out. This post will address the political dynamics and constitutional issues with respect to the new advocating offence and make suggestions for how the Government of Canada should move forward.

Interestingly, our group was divided on the best approach to addressing the issues with respect to the provision. Meagan and Jordan were in favour of repeal, whereas Stephen and Kiran favoured amending the provision. We present the case for both repeal and amendment below and leave it to the reader to reach their own conclusions.

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By: Michael Nesbitt

PDF Version: Reviewing Canada’s National Security Framework

This term, the University of Calgary, Faculty of Law offered for the first time a new Criminal Law & Policy Lab: Terrorism Law & Reform. The idea behind the course was, in part, to follow along with the Government of Canada’s “National Security Framework” public consultations and consider the legal, political and social issues that arose in real-time. (For more background on the Government’s public consultations and its relationship to the course, see my earlier ABlawg post).

Students were split into three groups and asked to negotiate, amongst themselves, three different areas that they thought were of the most importance to Canada’s national security framework review. Put another way, the students chose the three topics that they agreed were most ripe for review and consideration by the government. (For an overview of the course and its broader purpose, see here).

By the end of term, students were asked to produce ABlawg posts on their findings and recommendations on these three topics. The students also submitted research memoranda to the government as part of its public consultations. Today, we release the first of these three posts, Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code.

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