Prior to the enactment of the Anti-terrorism Act 2001, legislation concerning counter-terrorism in Canada was primarily restricted to immigration and refugee status matters, border security, and aviation security. The Anti-terrorism Act does not stand as a self-contained piece of legislation but instead brought about the amendment of various items of legislation, in particular the Criminal Code 1985, the Canada Evidence Act 1985, the Proceeds of Crime (Money Laundering) Act 2000, and other measures concerning the registration of charities.

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Prior to the enactment of the Anti-terrorism Act 2001, legislation concerning counter-terrorism in Canada was primarily restricted to immigration and refugee status matters, border security, and aviation security. The Anti-terrorism Act does not stand as a self-contained piece of legislation but instead brought about the amendment of various items of legislation, in particular the Criminal Code 1985, the Canada Evidence Act 1985, the Proceeds of Crime (Money Laundering) Act 2000, and other measures concerning the registration of charities.

Terrorism-related offences

The new section 83 series to the Criminal Code establishes terrorism-related offences such as the unlawful provision of financing of terrorist entities and provides for the confiscation and seizure of terrorist property; dealing in the assets of a listed entity; participating in the activities of a terrorist group; facilitating or instructing the carrying out of a terrorist activity.

The Security Offences Act 1985 provides the Royal Canadian Mounted Police with primary responsibility over any offence or the apprehension of the commission of an offence under any law of Canada where:

a) the alleged offence arises out of conduct constituting a threat to the security of Canada within the meaning of the Canadian Security Intelligence Service Act; or,

b) the victim of the alleged offence is an internationally protected person within the meaning of section 2 of the Criminal Code.

Financing of terrorism

The unlawful provision of financing of terrorist entities is a matter covered under the new section 83 series of the Criminal Code discussed earlier. Under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) provides law enforcement and intelligence agencies with financial intelligence on suspected money laundering, terrorist activity financing and threats to the security of Canada. In addition, the Centre may also provide information to foreign Financial Intelligence Units provided it has entered into an agreement governing such an exchange.

Through amendments to the Criminal Code, the Anti-terrorism Act created an additional power to restrain property linked to terrorist groups. Where there are reasonable grounds to believe that property is owned or controlled by or on behalf of a terrorist group or that it has been or will be used, in whole or in part, to facilitate or carry out a terrorist activity, its seizure or restraint and forfeiture may be sought.

Proscription of terrorist organisations

The new section 83 series to the Criminal Code creates the jurisdiction for the listing of terrorist and associated entities. Pursuant to Canada’s United Nations Suppression of Terrorism Regulations, which were created in response to Security Council Resolution 1373 (2001), Canada has also listed several international non-profit organizations in concert with other international partners, independent from the Al-Qaida and Taliban Sanctions Committee.

Investigation methods

Canadian law-enforcement and security agencies have access to a range of special investigative techniques in terrorism-related cases, depending on the facts of each case, the type of investigation involved, and the agency conducting the investigation. Available techniques include electronic surveillance, search and seizure, “undercover” surveillance, use of anonymous informants, and controlled delivery or other conduct by investigators that would in other circumstances constitute a criminal offence. Specific legal authorities are found in a number of statutes and in case law, but the principal provisions are the Canadian Charter of Rights and Freedoms 1982, and the Criminal Code (Part VI dealing with electronic surveillance, Part XV, dealing with search and seizure, and sections 25-25.4 dealing with justification of otherwise illegal acts for investigative purposes).

Part VI of the Criminal Code allows for electronic surveillance to investigate criminal offences listed in the legislation, provided that prior judicial authorization is obtained. The list of eligible offences includes all serious criminal offences and all of the offences designated as “terrorist activities” in the legislation. The Canadian Security Intelligence Service Act 1985 provides separate powers to conduct electronic surveillance. Warrants under the Act must also be obtained from a judge, but are obtainable on the more general basis of an investigation of threats to the security of Canada or the performance of other duties and functions described in the Act.

Section 83.28 of the Criminal Code also provides for investigative hearings, a matter which has been subject to litigation, including the 2004 Supreme Court decision in Re Application under s. 83.28 of the Criminal Code.

Prosecution

Relating to the prosecution of terrorism-related offences, amendment of the Canada Evidence Act was effected through the Anti-terrorism Act to provide for the protection of information potentially injurious to international relations, national defence, or national security.

Preventive detention

Preventive detention measures have not been provided for under Canadian law, although immigration and refugee law allows for the detention of persons constituting a threat to the security of Canada.

Deportation, extradition and transfer

Much of the case law in Canada relating to terrorism concerns the appropriateness of, or due process issues concerning, security certificates issued by the Minister of Citizenship and Immigration relating to immigrants or those applying for refugee status in Canada. There is a very useful line of decisions concerning the definition of terrorism, which came about as a result of the undefined term in section 19 of the former Immigration Act concerning persons who might pose a threat to the security of Canada. Most notable of these decisions is that of the Supreme Court of Canada in the 2002 decision Suresh v Canada (Minister of Citizenship and Immigration).

Witness protection

Canada’s Witness Protection Program Act sets out a full range of mechanisms for the protection of vulnerable persons, including witnesses, although there are no specific provisions pertaining to terrorism.

Protection and compensation of the victims of terrorism

The forfeiture of terrorism-related property under s 83.14 of the Criminal Code allow for the making of regulations to make use of the forfeiture to compensate victims of terrorism.

State of emergency

Canada has not proclaimed a state of emergency relating to any threat of terrorism against it.

Analysis provided by: dr Alex Conte (alex.conte@soton.ac.uk)

Posted: February 2008

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