April 30, 2024 / Abroad / Page 7
“Glorification of terrorism” everywhere
France: Penalties and muzzles for public solidarity with Gaza
Hans George Hermann
For several weeks now, public displays of solidarity with the people of Gaza can lead directly to prison in France. The risk of being summoned by the judiciary, convicted in a summary procedure and arrested has grown to the point of absurdity. Even members of parliament, trade union leaders and top candidates for the EU elections are now affected. On the new political agenda: ban on pro-Palestinian protest rallies; Cancellation of…
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Glorification of Terrorist Activity
Freedom of expression is a core constitutionally guaranteed right which is central to a healthy democracy in Canada. There are occasions, however, when this freedom is abused or misused by those whose commitment to an open, pluralistic society is questionable.
Such was the case in the 1960’s when a small number of racist neo-nazi groups and individuals distributed hate propaganda in the form of leaflets, pamphlets and newspapers. This distribution targeted young people in particular. With the memory of World War II and the hatred that was promulgated by a nazi regime still fresh in the minds of Canadians, Parliament adopted amendments to the Criminal Code making the communication of hate promotion material a criminal offence. These provisions can still be found in the Code at sections 318 to 320.1. There have only been a small number of prosecutions under this part of the Code. As well, these sections have been found by the Supreme Court of Canada to be consistent with freedom of expression. This is so because they contain a number of safeguards built right into them.
A serious worry about the incitement or glorification of terrorist activity was raised by B’nai Brith Canada in its brief. In particular, it expressed concern about the impact of teachings consisting of glorification of or incitement to terrorist activity on the youth in some communities. It recommended that the Criminal Code be amended so as to make the incitement to terrorist activity an offence. This offence would be directed at those who foment, glorify, or condone terrorism. The Subcommittee agrees with this recommendation in principle, but believes it must be further developed as follows.
This type of criminal legislation is not unknown. Britain’s Terrorism Act, 2006 includes such an offence at section 1. As well, any proposed legislation in Canada to address this issue can be modelled, in part, on the hate propaganda provisions found in the Criminal Code.
The British legislation makes it an offence at section 1(1) and (3) to make statements likely to be understood by members of the public as indirectly encouraging the commission or preparation of terrorist acts. Such statements are defined as including the glorification of the commission or preparation of terrorist acts, whether current or past, and the glorification of such acts as conduct to be emulated. “Glorification” is defined at section 20(2) as “any form of praise or celebration”. This offence is punishable on indictment by imprisonment of up to seven years and/or a fine, or on summary conviction by imprisonment of up to six or twelve months and/or a fine.
As mentioned earlier, the Criminal Code contains hate propaganda offences that not only prohibit such activity, in particular at section 319(2), but also include measures intended to protect the constitutionally entrenched freedom of expression. The Code requires that the provincial attorney general consent to any hate propaganda prosecution. As well, judicial interpretation has resulted in the prosecution having to prove specific intent to promote hatred by the acts for which criminal sanction is being sought. Finally, these Code provisions make special defences available to anyone charged with these hate propaganda offences. The special defences, found at section 319(3), allow the accused to argue that the impugned statements are true; they were expressed in good faith on a religious subject or a belief in a religious text; they were expressed on a subject of public interest and there were reasonable grounds to believe they were true; or they were made in good faith and with an intention to point out matters which tend to produce feelings of hatred, for the purpose of the removal of those matters.
The hate propaganda provisions in Canada and the terrorism glorification provisions in Britain share some similarity in terms of the historical contexts within which they were adopted. They were both put into place to address abuses of freedom of expression which had as their goal the subversion, if not the outright negation, of important elements of open, inclusive societies. They are different in that the hate propaganda measures in Canada are intended to assure and protect the dignity of identifiable groups, and the British anti-glorification of terrorism provision is intended to prohibit acts that may lead to large-scale destruction to that society as a whole.
The Subcommittee believes that the hate propaganda offences now contained in the Criminal Code are not adequate to address the glorification and encouraged emulation of terrorist activity. As well, the Code terrorist activity offences dealing with the intentional facilitation of, instruction of, or participation in such acts are also inadequate to address the situation within which the glorification or incitement is expressed to the public, and no particular individuals are encouraged to emulate any specific actions. Such expressive behaviour is diffuse and untargeted.
Not only does the Subcommittee believe that there should be a new offence added to the Code to address the glorification of terrorist activity for the purpose of emulation, it also believes that any such amendment should require the consent of the provincial attorney general to any prosecution, require the prosecution to prove that the accused specifically intended to glorify terrorist activity for the purpose of emulation, and make available to the accused special defences similar to those included in the hate propaganda provisions of the Code.
RECOMMENDATION 2
The Subcommittee recommends that the Criminal Code be amended to make it an offence to glorify terrorist activity for the purpose of emulation. Any such amendment should require the consent of the provincial attorney general to a prosecution, require the prosecution to prove that the accused intended to encourage emulation by the glorification of terrorist activity, and make available to the accused special defences similar to those included in section 319(3) of the Code.
The Facilitation Offence and Legal Services
Concern has been expressed by the legal profession about whether the provision of legal services to those accused of terrorism offences could lead to criminal charges against those providing such services. More particularly, the Canadian Bar Association in its brief said that the expansive definition of participating in or contributing to an activity of a terrorist group, set out in section 83.18 of the Criminal Code,includes providing or offering to provide a skill or expertise for the benefit of an accused terrorist or terrorist group. It said that lawyers representing those accused of terrorism offences could be seen as providing a skill or expertise for the benefit of a terrorist group. As well, the Association pointed out, the court dealing with such a prosecution is required by subsection 83.18(4) of the Code to consider association with a terrorist group as a factor in determining whether a participation or facilitation offence has been proven. They worried that this could also include defence counsel acting on behalf of a person or group charged with a terrorism offence.
Based on these observations, the Canadian Bar Association recommended that the Criminal Code be amended so as to specifically exclude counsel providing legal services to those accused of terrorism offences from the ambit of section 83.18. A similar recommendation was also made by the Federation of Law Societies of Canada.
Anyone charged with criminal offences faces serious consequences if convicted. The most serious of these is the deprivation of liberty for a definite or indefinite period. Terrorism offence charges are not only serious, but the limited experience with them so far in Canada shows that they involve complex procedural, disclosure, and other legal issues. Thus, access to legal counsel by those charged with terrorism offences is essential for the process to be fair, and to allow for full answer and defence. The rule of law requires that counsel acting on behalf of accused persons be able to carry out their functions without fear of the consequences of doing so, in conformity with the codes of ethics applicable to the legal profession.
Because the Subcommittee subscribes to the comments set out in the preceding paragraph, it agrees with the purpose underlying the recommendation made by both the Canadian Bar Association and the Federation of Law Societies of Canada.
RECOMMENDATION 3
The Subcommittee recommends that section 83.18 of the Criminal Code be amended so as to ensure that counsel providing legal services to those accused of terrorism offences can properly act on their behalf without fear of being charged themselves with terrorism offences.
OTHER RECOMMENDED AMENDMENTS
References to Government
The Subcommittee notes that certain provisions amended or enacted by the
Anti-terrorism Act refer to governments within Canada in an inconsistent manner. Sometimes, the phrase “the Government of Canada or of a province” is used, as in section 7(3.71), (3.72), (3.73) and (3.75) of the Criminal Code, which refer to an act or omission committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act. The same reference to government is used in paragraphs 3(1)(e) and 3(1)(f) of the Security of Information Act, which include, in what constitutes a purpose prejudicial to the interests of the State, endangering a person or damaging property by reason of the fact that the person is doing business with or on behalf of the Government of Canada or of a province. However, in paragraph 3(1)(d), the Security of Information Act more broadly refers to particular conduct that has a significant adverse impact on the functioning of “any government in Canada.”
The Subcommittee believes that wherever the narrower phrase “the Government of Canada or of a province” is used in the Anti-terrorism Act, it neglects other legitimate forms of government, namely territorial and municipal governments, including regional and urban authorities. Unless there is a reason to exclude certain types of governments, or the context dictates otherwise, the Subcommittee accordingly suggests that wherever the narrower phrase is used to refer to a government within Canada, it should be replaced by the broader phrase “any government in Canada.” Amendments would not be required where the Anti-terrorism Act already refers, even more broadly, to “a government,” as it does in clause (b)(i)(B) of the definition of “terrorist activity” in section 83.01 of the Criminal Code. These broadest references are already taken to include any government within Canada, and moreover, may include foreign governments.
RECOMMENDATION 4
The Subcommittee recommends that, unless the context dictates otherwise, the words “the Government of Canada or of a province” be replaced by the words “any government in Canada” throughout the provisions enacted or amended by the Anti-terrorism Act.
References to a Person
The Anti-terrorism Act added a definition for “entity” to section 83.01 of the Criminal Code. It means “a person, group, trust, partnership or fund or an unincorporated association or organization.” However, the definition of terrorist activity only refers to an intention to compel a person, a government or a domestic or international organization to do or not do something. The Subcommittee believes that the word “person” should be replaced by the broader term “entity,” in order for a terrorist activity to clearly include acts that are intended to influence other types of entities.
RECOMMENDATION 5
The Subcommittee recommends that the words “a person” and “the person” be replaced, respectively, by the words “an entity” and “the entity” in clause (b)(i)(B) of the definition of “terrorist activity” in section 83.01 of the Criminal Code.
Definition of “Terrorism Offence”
In addition to enacting a definition for “terrorist activity” in section 83.01 of the Criminal Code, the Anti-terrorism Act enacted a definition for “terrorism offence” in section 2. A terrorism offence includes, in paragraph (c), “an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.” The Subcommittee questions why terrorist activity is not in and of itself a terrorism offence, regardless of whether the act also constitutes another indictable offence.
We find it odd, for instance, that an arrest without a warrant is possible under section 83.3 of the Criminal Code to prevent a “terrorist activity” from being carried out, yet carrying out the terrorist activity is not itself an offence unless it includes the commission of another indictable offence. Another oddity is that facilitating a terrorist activity is clearly made an offence under the Code, yet the actual undertaking of the terrorist activity would not necessarily be an offence as the Code presently reads. We believe that Canadians would be very surprised to learn that the commission of a terrorist activity may not automatically be a terrorism offence. As the objective of the Anti-terrorism Act is to prevent and punish terrorist conduct generally, we believe that any terrorist activity should automatically be a terrorism offence. This would also allow investigative hearings, which are only possible under section 83.28 in relation to a “terrorism offence,” to be available for a broader range of terrorist conduct. In other words, an amendment equating a terrorism offence with a terrorist activity would allow all terrorist activity to be subject to certain preventive tools.
Accordingly, paragraph (c) of the definition of “terrorism offence” in the Criminal Code should be replaced by simply “a terrorist activity.” A comparable amendment should also be made to the definition of “terrorism offence” in subsection 2(1) of the National Defence Act.2 The Subcommittee does not believe that expanding the meaning of terrorism offence in this way will inappropriately increase the number of individuals targeted by the Anti-terrorist Act, as terrorist activity is limited to an offence under various United Nations conventions, or an act or omission that, with the requisite motive, intentionally causes certain categories of very serious harm.
The Subcommittee recommends that the words “an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2 of the Criminal Code.
RECOMMENDATION 7
The Subcommittee recommends that the words “an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2(1) of the National Defence Act.
Participating in or Facilitating Terrorist Activity
Under paragraphs 83.18(3)(c) and (e) of the Criminal Code, participating in or contributing to an activity of a terrorist group includes recruiting a person, or making oneself available, to facilitate or commit (i) “a terrorism offence,” or (ii) “an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.” For similar reasons to those discussed earlier, the Subcommittee believes that the reference to terrorism offence is too narrow and should be replaced by a reference to terrorist activity. We also note that subsections 83.18(1) and (2) refer more broadly to facilitating or carrying out a “terrorist activity.” The words “facilitate or commit a terrorism offence” in subparagraphs (3)(c)(i) and (e)(i) should therefore be changed to “facilitate or carry out a terrorist activity.” As a terrorist activity already includes acts or omissions outside Canada, subparagraphs (3)(c)(ii) and (e)(ii) may be removed altogether.
RECOMMENDATION 8
The Subcommittee recommends that the words “commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence” be replaced by “carry out a terrorist activity” in paragraphs 83.18(3)(c) and (e) of the Criminal Code.
Instructing Terrorist Activity
Sections 83.21(1) and 83.22(1) of the Criminal Code set out the offences of instructing a person to carry out an activity for a terrorist group, and instructing a person to carry out a terrorist activity. However, these sections do not make it an offence to instruct another person to facilitate a terrorist activity. As both facilitating and carrying out terrorist activity are prohibited elsewhere, the Subcommittee believes that it should be an offence to instruct a person to facilitate or carry out a terrorist activity or an activity for a terrorist group. “Instructing to facilitate” should accordingly be added to sections 83.21 and 83.22.
RECOMMENDATION 9
The Subcommittee recommends that the words “facilitate or” be added before the first instance of the words “carry out” in sections 83.21(1) and 83.22(1) of the Criminal Code.
The Subcommittee further notes that the English versions of sections 83.21 and 83.22 begin with the phrase “Every person who …” whereas sections 83.18, 83.19, 83.2 and 83.23 begin with “Every one who …” Sections 83.21 and 83.22 should be amended for consistency.
RECOMMENDATION 10
The Subcommittee recommends that the words “Every person” be replaced by the words “Every one” in the English versions of sections 83.21(1) and 83.22(1) of the Criminal Code.
Finally, the Subcommittee believes that it should be an offence to instruct an entity, the definition of which includes a person, rather than only an offence to instruct a person, to facilitate or carry out a terrorist activity or activity for a terrorist group. As discussed earlier, “entity” is a broader term. It also includes a group, partnership, association or organization, all of which may be instructed, even if no one person is specifically instructed or carries out the activity. We therefore suggest that the term “entity” be used instead of “person” throughout sections 83.21 and 83.22, unless the context dictates otherwise. For example, each of the paragraphs 2(b) in those sections should continue to state that an offence may be committed whether or not the accused instructs a particular “person,” as the context refers to a single individual.
The Subcommittee considered whether “entity” should also replace “person” in various provisions of section 83.18, which refer to “recruiting a person” and “the persons who constitute the terrorist group.” However, the contexts suggest that a reference to “person” is not under-inclusive, as at least one person will necessarily have been recruited or be part of the terrorist group.
RECOMMENDATION 11
The Subcommittee recommends that the words “any person” and “the person” be replaced, respectively, by the words “any entity” and “the entity” in sections 83.21(1), 83.21(2)(c) and (d), 83.22(1), and 83.22(2)(c) and (d) of the Criminal Code.
Harbouring or Concealing
The Anti-terrorism Act created the new offence of harbouring or concealing a person who has carried out a past terrorist activity, or is likely to carry out a future terrorist activity. In either case, as currently worded, it is only an offence to harbour or conceal a person if it is for the purpose of enabling the person to facilitate or carry out any terrorist activity. However, the Subcommittee believes that harbouring or concealing a person who has already carried out a terrorist activity should be an offence, regardless of whether the person being harboured or concealed intends to carry out a further terrorist activity. In other words, the “purpose” clause should only apply to a person accused of harbouring or concealing a person who is likely to carry out a future terrorist activity. With respect to a possible future event, which the accused cannot know for certain will occur, we also raise the possibility that, rather than “knowing,” section 83.23 should say that the person “has reason to believe and does believe” that the event will occur, although we do not make a specific recommendation in this regard.
The Subcommittee does not believe that removing the “purpose” clause in respect of past terrorist activity will inappropriately broaden the offence, as an accused person must knowingly harbour or conceal as well as know that a past terrorist activity has been carried out. We also note that a comparable offence in section 54 of the Criminal Code, dealing with harbouring or concealing a deserter or absentee from the Canadian Forces, does not have a limiting purpose clause. The Subcommittee further believes that concerns about broadening the offence in section 83.23 may be alleviated, in part, by replacing the word “héberge” by “recèle” in the French version. “Héberger” may be taken to mean provide shelter or lodging to a person, whereas “receler” more closely corresponds to the English “harbour.” Use of the words “cache et recèle” in section 83.23 of the Criminal Code would also render it consistent with the terminology used in section 54.
RECOMMENDATION 12
The Subcommittee recommends that section 83.23 of the Criminal Code be replaced by the following:
“Every one who knowingly harbours or conceals any person whom he or she knows to be a person who
(a) has carried out a terrorist activity, or
(b) is likely to carry out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.”
Further, the word “héberge” should be replaced by the word “recèle” in the French version of the section.
Punishment for Participation in a Terrorist Activity
Section 83.18 of the Criminal Code sets out a punishment for knowingly participating in any activity of a terrorist group. Section 83.19 sets out a punishment for knowingly facilitating a terrorist activity. However, there is no punishment for participating in a terrorist activity, which conduct is not the same as participating in the activity of a terrorist group, and has distinct consequences for other purposes of the Criminal Code (e.g., the listing of an entity under section 83.05). The Subcommittee believes that a penalty should be established for the offence of participating in a terrorist activity and that it should be up to life imprisonment.
RECOMMENDATION 13
The Subcommittee recommends that the Criminal Code be amended to provide that every one who knowingly participates in a terrorist activity is guilty of an indictable offence and liable to imprisonment for up to life.
Punishment for Committing an Offence for a Terrorist Group
Section 83.2 of the Criminal Code states that every one who commits an indictable offence for the benefit of, at the direction of or in association with a terrorist group is liable to imprisonment for life. Although section 83.26 states that certain sentences are to be served consecutively where they are imposed for offences arising out of the same event, we believe that there is ambiguity as to whether or not the punishment under section 83.2 is in addition to the punishment for the underlying indictable offence. An amendment should be made for clarity.
RECOMMENDATION 14
The Subcommittee recommends that the words “in addition to any penalty imposed for the commission of the original indictable offence” be added at the end of section 83.2 of the Criminal Code.
Location of Proceedings
The Anti-terrorism Act enacted section 83.25 of the Criminal Code, which gives the Attorney General of Canada the discretion to commence proceedings anywhere in Canada against a person accused of a terrorism offence, regardless of whether the accused is in Canada, where the offence was committed, and whether proceedings have already been commenced elsewhere in Canada. The Subcommittee appreciates that, in order to bring an alleged terrorist to justice, there must be jurisdiction to hold a trial in Canada if the accused does not reside here or the offence was committed outside the country. We also understand that, even when the accused resides in Canada, there may be legitimate reasons to choose one province or territory over another, or move the location of proceedings from one jurisdiction to another. This might be warranted, for example, if the offence, co-accused persons or witnesses have a closer connection to another jurisdiction, or the trial is so complex that it must be held in a city having special court facilities to accommodate a large number of parties, language interpretation or security needs.
The Subcommittee has no significant concerns about the ability of the Attorney General to choose an appropriate territorial division in Canada to commence proceedings against a person who is not in Canada, although we believe that it should generally be where the accused normally resides in Canada, if applicable, or where the offence was committed, if it occurred in Canada. We also believe that, where the accused person is already in Canada, the usual rules for selecting the appropriate jurisdiction should almost always apply. With this in mind, the Subcommittee believes that section 83.25 is too broad. It gives the Attorney General of Canada unfettered discretion to choose or switch the location without any indication of the acceptable reasons or the factors to consider. This is a particular concern, given that the location of the proceedings may have a detrimental effect on an accused person who resides in a different jurisdiction, or who has already engaged counsel there. We therefore believe that, in order to hold proceedings in a jurisdiction that would not be the one used under the normal rules of criminal procedure, or move the proceedings to a different jurisdiction after they have already been commenced elsewhere in Canada, the Attorney General should be required to make application to a court, specifying the reason for the desired location. The court would then decide whether to permit the proceedings to be held in that location, after considering the reasons of the Attorney General and the impact on the accused.
RECOMMENDATION 15
The Subcommittee recommends that section 83.25 of the Criminal Code be amended so that the Attorney General of Canada is required to make an application to a court in order to commence proceedings in a territorial division that would not be the one normally used, or continue them in a different territorial division in Canada after they have already been commenced elsewhere in Canada. Any such amendment should set out the acceptable reasons for choosing a different location for the proceedings, and the factors to be considered by the court in considering the application.
1 [2006] O.J. No. 4245 (QL).
2 Comparable amendments to those discussed in relation to the definition of “terrorist activity” do not need to be made to the National Defence Act, as subsection 2(1) of that Act incorporates by reference the definition of “terrorist activity” found in the Criminal Code.
https://www.ourcommons.ca/documentviewer/en/39-1/STER/report-7/response-8512-391-198?page=48
When terrorism strikes, its immediate destructive impact is painfully evident.
But the fear and distrust it instils also have profound and corrosive long-term
effects on society. The need to protect people against attacks is clear. Yet
while doing so we must carefully consider the impact of counter-terrorism
measures on human rights.
This report examines the EU’s main criminal law instrument in the field of
counter-terrorism, Directive (EU) 2017/541. Specifically, it considers how the
directive engages issues of fundamental rights, affecting individuals, groups
and society as a whole.
The research focuses on Belgium, Germany, Greece, Spain, France, Hungary and
Sweden. These Member States were selected to reflect diverse experiences
and ensure geographical balance. The fieldwork in these countries involved
over 100 interviews, including with judges, prosecutors, defence lawyers,
law enforcement officers, and experts from oversight institutions, non-
governmental organisations and academia. The analysis also relies on
evidence collected through desk research on the relevant legal and institutional
framework.
The results provide valuable insights into how practitioners experience the
directive’s practical application at national level with regard to fundamental
rights. They focus on three specific offences covered by the directive, all of
them preparatory in nature: public provocation to commit a terrorist offence,
travelling for the purpose of terrorism and receiving training for terrorism.
These offences often involve activity – such as travelling and consulting
reading material – that is legal when engaged in without nefarious intent.
The risk of discouraging lawful conduct and excessively restricting rights,
such as the right to access information and the freedom of movement, is
real. Precisely defining the offences is key – both to make clear what kind
of behaviour will be deemed criminal and to ensure consistency across
countries. Invasive investigative methods, such as intercepting electronic
communications, can yield important information – but must be used with
restraint to avoid undermining privacy and other rights.
Avoiding discrimination and the targeting of people for manifesting legitimate
religious or political beliefs is also a highly delicate exercise. So is making sure
that counter-terrorism provisions are not used to target controversial, but
legal, activity. This includes imposing administrative measures, which entail
fewer limits on authorities than criminal proceedings but can considerably
affect a multitude of rights.
Countering terrorism is vital to protecting our rights, freedoms and democracy.
We hope that the insights presented in this report encourage policymakers
across the EU to do so in full compliance with fundamental rights.
Michael O’Flaherty
Director
Foreword
Newsessentials Blog 
Posted on April 30, 2024
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