File Number: 34013 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

PIRATHEEPAN NADARAJAH Appellant (Appellant) and

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE Respondents (Respondents) and

ATTORNEY GENERAL OF ONTARIO

Intervener

RESPONDENTS’ FACTUM

(Rule 42 of the Rules of the Supreme Court of Canada)

Attorney General of Canada Myles J. Kirvan Department of Justice Deputy Attorney General of Canada

Per Croft Michaelson Per Robert Frater M. Sean Gaudet 234 Wellington Street, Room 1161 130 King Street West, Suite 3400 Ottawa, Ontario Toronto, Ontario M5X 1K6 K1A 0H8 Telephone: 416-952-7261 Telephone: 613-957-4763 Fax: 416-973-8253 Fax: 613-954-1920 Email : [email protected] Email : [email protected]

Counsel for the Respondents Agent for the Respondents 2

Ms. Breese Davies Brian A. Crane, Q.C. Ms. Erin Dann Gowling Lafleur Henderson LLP Di Luca Copeland Davies Suite 2600 Suite 100 160 Elgin Street 116 Simcoe Street Ottawa, Ontario Toronto, Ontario K1P 1C3 M5H 4E2

Telephone : 416-868-1825 Telephone : 613-786-0107 Fax : 416-868-0269 Fax : 613-563-9869 Email : [email protected] Email : [email protected] [email protected]

Counsel for the Appellant Agent for the Appellant

Attorney General of Ontario Burke-Robertson

Per Susan Magotiaux Per Robert E. Houston, Q.C. 720, Bay Street, 10th floor 70, rue Gloucester Toronto, Ontario Ottawa, Ontario M5G 2K1 K2P 0A2 Telephone : 416-326-5238 Téléphone : 613-566-2058 Fax : 416-326-4656 Télécopieur : 613-235-4430 Email : [email protected] Email : [email protected]

Counsel for the Intervener Agent for the Intervener

i

TABLE OF CONTENTS

PART I – FACTS...... 1 A. Overview ...... 1 B. Facts ...... 2 PART II – RESPONSE TO THE QUESTIONS IN ISSUE ...... 7 PART III – ARGUMENT ...... 8 A. The Purpose Of The Anti-Terrorism Provisions ...... 8 B. Section 83.18 Is Not Overbroad And Does Not Infringe Section 7 ...... 10 1. Legislation Is Only Overbroad If It Is Arbitrary Or Grossly Disproportionate In Its Effects ...... 11 2. Section 83.18 Is A Substantive Offence Aimed At Deterring Those Who Intend To Enhance The Ability Of Terrorist Groups To Facilitate Or Commit Terrorist Acts ...... 12 3. The Offence Is Neither Arbitrary Nor Grossly Disproportionate ...... 16 C. Sections 83.03, 83.18 and 83.21 Do Not Infringe Freedom Of Expression ...... 19 1. The Harmful Acts Defined As Terrorist Activity Are Not Protected Under S. 2(b) Of The Charter ...... 20 a. Terrorist Acts, As Methods Of Expression, Are Excluded ...... 20 b. Even If Terrorist Acts Are Presumptively Protected, The Purpose Of The Legislation Is Not To Restrict Freedom Of Expression ...... 22 2. The Motive Requirement Does Not Infringe Freedom Of Expression ...... 23 D. In The Alternative, Any Infringement Is A Reasonable Limit ...... 27 1. Proscribing Non-violent Expressive Activities That Cause Serious Harms Is A Proportionate Response ...... 27 2. The Inclusion Of A Motive Requirement Is Also A Proportionate Response ...... 27 PART IV – COSTS ...... 31 PART V – ORDER SOUGHT ...... 31 PART VI – TABLE OF AUTHORITIES ...... 32 PART VII – LEGISLATION...... 35

1

PART I – FACTS A. OVERVIEW

1. The Appellant, Piratheepan Nadarajah (the “Appellant” or “Nadarajah”), is wanted in the United States of America for criminal prosecution in relation to his alleged involvement in an attempt to purchase weapons for a terrorist group, the Liberation Tigers of Tamil Eelam (“LTTE”). His extradition hearing was heard together with that of another individual, Suresh Sriskandarajah (“Sriskandarajah”), who is wanted in the United States of America for criminal prosecution in relation to allegations that he provided support and assistance to a terrorist group.

2. The Appellant and Sriskandarajah were both committed for extradition by the extradition judge, and ordered surrendered by the Minister. On appeal to this Court, they seek to avoid extradition to the United States by arguing that the corresponding Canadian offences under sections 83.03, 83.18 and 83.21 are unconstitutional. In particular, they say that s. 83.18 violates s. 7 of the Charter of Rights and Freedoms because it is overbroad, and they assert that ss. 83.03, 83.18 and 83.21 infringe the guarantee of freedom of expression in s. 2(b) of the Charter.

3. This appeal is being heard together with that of Sriskandarajah (file no. 34009) and Mahmoud Khawaja (file no. 34103). Since all of the appellants challenge the constitutional validity of sections 83.03, 83.18 and 83.21 of the Criminal Code, the respondents’ compendious response to their constitutional challenges is set forth in this factum. Simply stated, the respondents’ position is that s. 83.18 is neither arbitrary nor grossly disproportionate to the state interest it protects, and therefore is not overbroad. Furthermore, ss. 83.03, 83.18 and 83.21 do not infringe freedom of expression. Neither do they, as the appellant Khawaja asserts, infringe freedom of religion or freedom of association.

4. Nadarajah and Sriskandarajah also advance additional grounds of appeal. They argue that: (1) this Court should overturn its previous rulings in U.S.A. v. Cotroni1, U.S.A. v. Kwok2, and Lake v. Canada (Minister of Justice)3 and establish an absolute bar to extradition when a citizen can be prosecuted in Canada for the conduct underlying the extradition request; and, (2) the Minister denied them procedural fairness when, in the absence of any evidence of bad faith,

1 [1989] 1 S.C.R. 1469 2 [2001] 1 S.C.R. 532 3 [2008] 1 S.C.R. 761 2

he declined to go behind the exercise of prosecutorial discretion and obtain and disclose the reasons why the relevant prosecutorial authority had decided not to prosecute them in Canada. With respect to these additional grounds of appeal, the respondent relies on the submissions made in its factum filed in Sriskandarajah (34009).

B. FACTS

1. The United States’ Extradition Request

5. The Respondent accepts as substantially correct the facts set out in the Appellant’s factum, except for the facts stated in paragraph 10. The Respondent emphasizes the facts set out below.

6. By diplomatic note dated October 20, 2006, amended February 20, 2009, the United States requested Nadarajah’s extradition to stand trial in the United States District Court for the Eastern District of New York for terrorism-related offences.4 On November 20, 2006, the Minister of Justice issued an Authority to Proceed (ATP) under s. 15 of the Extradition Act seeking a committal order against Nadarajah. The ATP sets out the following Canadian criminal offences which correspond to the conduct alleged by American authorities against Nadarajah:

• participating in the activity of a terrorist group, contrary to s.83.18 of the Criminal Code; • conspiracy to traffic in weapons, contrary to s. 465(3) of the Criminal Code; and • attempt to traffic in weapons, contrary to s. 99(1) of the Criminal Code.5

7. The evidence supporting the request from the United States was contained in a Record of the Case certified on October 18, 2006, which was also used in support of companion requests seeking the extradition of Sriskandarajah and Ramanan Mylvaganam.6

2. The Allegations against Nadarajah

8. Nadarajah is alleged, along with three other individuals –Sathajhan Sarachandran, Sahilal Sabaratnam and Thiruthanikan Thanigasalam - to have attempted to purchase on behalf of the

4 Joint Appellants’ Record (JAR), volume II, pp. 179-180 and 188 5 JAR, vol. II, p. 181 6 JAR, vol. II, p. 153-178 3

Liberation Tigers of the Tamil Eelam (LTTE) surface to air missiles and AK-47s from an undercover officer posing as a black market arms dealer in Long Island, New York.

9. On August 14, 2006, Sarachandran described Nadarajah to the undercover officer as the “technical” expert of the group. On August 15, 2006, Sarachandran spoke with a confidential U.S. government witness and told him that he and three others would be travelling to New York on the evening of August 18, 2006 in order to meet with the undercover officer on Saturday, August 19, 2006, and that they wanted to purchase between 50 and 100 “needles”, i.e. Russian- made SA 18 surface-to-air missiles.7

10. On August 18, 2006, Nadarajah, Sarachandran, Sabaratnam and Thanigasalam attempted to enter the United States by driving across the border from Canada into New York. Nadarajah was denied entry due to a criminal history; however, his three associates were permitted entry to the United States and proceeded to New York for the planned meeting.8

11. On August 19, 2006, Nadarajah’s three alleged co-conspirators attended a meeting with undercover police officers during which they sought to complete the desired missile and weapons purchase. During the meeting, Sarachandran, Sabaratnam and Thanigasalam explained that Nadarajah, whom they described as the “scientist” and expert in technical issues, was supposed to be at the meeting with them, but he had been denied entry at the U.S.-Canadian border. They later explained to the undercover officers that Nadarajah “knows his stuff” and had “used this stuff”. All three men were arrested shortly after the meeting.9

12. U.S. law enforcement agents recovered a Blackberry device from Sabaratnam which revealed multiple communications or attempted communications from Nadarajah before and after the meeting. For example, at 1:02 a.m. on August 19, 2006, shortly after Nadarajah was turned back at the border, Nadarajah sent a text-message to Sabaratnam’s Blackberry, stating “I am home. Good luck.” The search of Sabaratnam’s Blackberry also revealed several telephone calls or attempted telephone calls with Nadarajah, including 16 calls on August 18, and three

7 Record of the Case, JAR, vol. II, pp. 158-159 8 Record of the Case, JAR, vol. II, pp. 162-163 9 Record of the Case, JAR, vol. II, pp. 159-160 4

calls on August 19, 2006 – the day of the meeting in New York. After Nadarajah’s arrest the RCMP examined Nadarajah’s Blackberry, which confirmed these calls.10

13. In January 2009, Nadarajah’s three alleged co-conspirators pled guilty in a New York Court to conspiring and attempting to provide material support to the LTTE, and conspiring and attempting to acquire guided anti-aircraft missiles. On January 22, 2010, Sarachandran, who also pled guilty to providing material support to the LTTE, was sentenced to 26 years in prison. On January 25, 2010, Sabaratnam and Thanigasalam were each sentenced to 25 years in prison and five years of supervised release.11

3. The Constitutional Challenge and the Committal Proceedings

14. Nadarajah and Sriskandarajah’s committal hearings were heard together before Justice Pattillo of the Ontario Superior Court over five days in January and February 2009.

15. At the committal hearing, Nadarajah and Sriskandarajah sought constitional declarations that (1) the definition of “terrorist activity” in s. 83.01(1)(b) of the Criminal Code violates s. 2(a) and 2(b) of the Charter, and (2) s.83.18 of the Criminal Code violates s. 7 of the Charter on the grounds of overbreadth and vagueness. Justice Patillo rejected these arguments and, on March 5, 2009, committed Nadarajah (and Sriskandarajah) on the offences set out in the ATP.12

4. The Minister’s Surrender Decision

16. Through his counsel, Nadarajah made voluminous submissions to the Minister of Justice in support of his request not to be surrendered to the United States. He also requested disclosure of the assessment made by the relevant prosecutorial authority – in this case the Public Prosecution Service of Canada (“PPSC”) - with respect to whether prosecution of Nadarajah would be equally effective in Canada. That assessment was made by the PPSC pursuant to this Court’s majority decision in United States v. Cotroni, [1989] 1 S.C.R. 1469.13

10 Record of the Case, JAR, vol. II, p. 163 11 F.B.I. Press Releases, Appeal Book, vol. II, pp. 213-216 12 Reasons for Committal of Pattillo J., JAR, vol. I, pp. 5-22 13 Submissions to the Minister, JAR, vol. II, pp. 189-201 5

17. The Minister considered all of Nadarajah’s submissions and concluded that his surrender to the United States would not unjustifiably violate his s. 6(1) Charter rights. On November 17, 2009, the Minister decided to order Nadarajah’s surrender to the United States on the offences for which his extradition was sought.14

18. The Minister provided to Nadarajah’s counsel all of the materials on which he relied in making his surrender decision, except legal advice. However he declined to provide disclosure of the Cotroni assessment prepared by the PPSC. The Minister noted that he had not been provided with a copy of the PPSC’s Cotroni assessment, and that the duty of procedural fairness did not require its disclosure in light of the limited right to disclosure in the extradition context and the essentially political nature of the Minister’s role in deciding the issue of surrender. The Minister also noted that the the decision whether to prosecute an offence is a matter of prosecutorial discretion, reviewable only on narrow grounds where bad faith attributable to the Crown had been clearly established. There was no evidence of bad faith in this case.15

19. The Minister stated that he had conducted his own independent analysis of the Cotroni factors and was satisfied that surrendering Nadarajah would not unjustifiably violate his s. 6(1) rights.16

5. The Judgments of the Court of Appeal for Ontario

20. Nadarajah appealed against Justice Patillo’s committal order and applied for judicial review of the Minister’s surrender order. These proceedings were heard concurrently with those of Sriskandarajah.

21. In reasons for judgment released on December 17, 2010, in all three cases under appeal in this Court, the Court of Appeal held that the definition of “terrorist activity” in s. 83.01(1) and its operation throughout the terrorism provisions in Part II.1 of the Criminal Code does not violate ss. 2(a), 2(b) or 2(d) of the Charter, and that the offence-creating provisions in Part II.1 of the Criminal Code, in particular s. 83.18, did not violate s. 7 of the Charter. The Court of Appeal

14 Minister’s Reasons on Surrender, JAR, vol. I, pp.60-62 15 Minister’s Reasons on Surrender, JAR, vol. I, pp.58-59 16 Minister’s Reasons on Surrender, JAR, vol. I, p.60 6

dealt with the s. 2 Charter challenge in its reasons for judgment in Khawaja and the s. 7 Charter challenge in its reasons for judgment in Nadarajah.

22. In Khawaja, the Court of Appeal held that the definition of “terrorist activity” contained in s. 83.01(1) of the Criminal Code, which requires that the act or omission be done “in whole or in part for a political, religious or ideological purpose objective or cause” (the “motive requirement”), does not violate s. 2(b) of the Charter, for two reasons. First, some, if not all, of the conduct captured by the definition involved the use of violence to convey a meaning. Second, to the extent that some of the activity captured by the definition does not involve violence, it does involve the conveying of meaning in a manner that is contrary to and destructive of the principles underlying the right to freedom of expression.17

23. The Court also rejected the argument that the definition of “terrorist activity” violated the s. 2 rights of individuals who wished to engage in conduct that is not captured by the definition of “terrorist activity” for two reasons. First, the appellants had presented no evidence that the motive provision had an indirect “chilling effect” on the exercise of s. 2 rights. Second, assuming that such an effect could be established, the appellants had failed to demonstrate any connection between the reluctance of members of certain minority communities to express themselves and the motive clause itself.18

24. In its reasons for judgment in Nadarajah, the Court of Appeal held that s. 83.18 of the Criminal Code does not violate s. 7 of the Charter, rejecting the argument that the provision was unconstitutionally overbroad. The Court described the provision as creating a substantive offence that “applies to persons who by their acts contribute to or participate in what they know to be activities of what they know to be a terrorist group”. These acts must be done for the purpose of enhancing the ability of the terrorist group to carry out a terrorist activity. The Court held that it was constitutionally permissible for Parliament to criminalize conduct that is preliminary to some other criminal conduct.19

17 R. v. Khawaja at paras101-117, JAR, vol. I, pp. 146-152 18 R. v. Khawaja at paras118-129, JAR, vol. I, pp. 153-158 19 U.S.A. v. Nadarajah at para 27-28, 32-35, JAR, vol. I, pp. 91, 93-94 7

25. Dealing with Nadarajah’s appeal from committal, the Court of Appeal saw no basis to interfere with the extradition judge’s committal ruling. In dismissing the application for judicial review, the Court of Appeal held that procedural fairness did not obligate the Minister to disclose the Cotroni assessment, noting that: (1) the Minister provided Nadarajah with all the non- privileged materials he considered in making his decision, including a copy of the document containing the conclusion of the Canadian prosecuting authorities on their Cotroni assessment; (2) the Minister had not been provided with a copy of the Cotroni assessment; (3) the Minister conducted his own independent Cotroni inquiry; and, (4) the Minister properly assessed and weighed all of the relevant factors in deciding whether to order surrender.20

PART II – RESPONSE TO THE QUESTIONS IN ISSUE

26. On November 8, 2011, the Chief Justice stated the following constitutional questions:

1. Do ss. 83.03, 83.18 or 83.21 of the Criminal Code, R.S.C. 1985, c. C-46, which incorporate the definition of “terrorist activity” in s. 83.01(1) of the Criminal Code, infringe s. 2(b) of the Canadian Charter of Rights and Freedoms?

2. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

3. Does ss. 83.18 of the Criminal Code, R. S.C. 1985, c. C-46, which incorporates the definition of “terrorist activity” in s. 83.01(1) of the Criminal Code, infringe s. 7 of the Canadian Charter of Rights and Freedoms?

4. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?21

27. The respondents submit that ss. 83.03, 83.18 or 83.21 of the Criminal Code, which incorporate the definition of “terrorist activity” in s. 83.01(b) of the Criminal Code, are constitutionally valid.

28. The respondents also submit that the Minister complied with the principles of procedural fairness in declining to disclose the underlying reasons why the PPSC determined that prosecution would be more effective in the United States. The PPSC’s reasons were not before

20 U.S.A. v. Nadarajah at paras 41-52, JAR, vol. I, pp. 98-101 21 Order of Chief Justice stating constitutional questions, JAR, vol. II, pp. 227-8 8

the Minister when he made his decision. It would have been improper for the Minister to go behind the exercise of prosecutorial discretion in the absence of evidence of bad faith. The respondents’ submissions in relation to the scope of the procedural fairness required in the context of surrender decisions, and the reasonableness of the Minister’s surrender decision, are addressed in the factum filed in Sriskandarajah. The respondents adopt and rely upon those submissions.

PART III – ARGUMENT

A. THE PURPOSE OF THE ANTI-TERRORISM PROVISIONS

29. The terrorism provisions contained in Part II.1 of the Criminal Code were introduced as part of the Anti-terrorism Act, S.C. 2001, c. 41 (Bill C-36) which came into force on December 24, 2001 as omnibus legislation that had the effect of amending about 16 statutes, including the Criminal Code, and implementing two separate United Nations Conventions concerning the financing of terrorism and the suppression of terrorist bombings.

30. The purpose and objective of the anti-terrorism provisions contained in Part II.1 of the Criminal Code have previously been considered by this Court. In Application under s. 83.28 of the Criminal Code this Court considered the language of the Anti-terrorism Act and the Parliamentary debate at the introduction of Bill C-36 and concluded that the purpose of this anti- terrorism legislation is the prosecution and prevention of terrorism offences.22

31. The legislative history of the anti-terrorism provisions, including comments made by the Minister of Justice to the Special Senate Committee considering Bill C-36, emphasizes the preventive purpose of the legislation, i.e. that it was designed to disrupt terrorist activities before the culmination of a terrorist act. In testimony before the Special Senate Committee, the Minister of Justice made the following statements respecting the harm the legislation was intended to address:

Before I speak specifically about the different elements of the bill, I would like to discuss with you the justification for a bill like this. As many honourable senators know, currently in the Criminal Code we have hijacking, sabotage and murder offences. While those remain available to us, terrorism is a special threat to our way of life, and it is with

22 Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248 at para 40 9

this in mind that Bill C-36 focuses on acts of terrorism. As the Prime Minister stated in the House: It has become clear that the scope of the threat that terror poses to our way of life has no parallel.

We, in North America, have been extraordinarily fortunate to live in peace, untouched by attack. That has changed. I believe honourable senators will agree that, when we are talking about people who would give up their own lives to kill thousands of innocent people, criminal sanctions may not be enough. However, for those who are involved in a network that assists terrorists to enable them to carry out their horrific acts, deterrence can be effective and prevention is key. We must be able to detect terrorists and their supporters early. We must be able to break up terrorist organizations early. We must be able to stop their financing early.

Honourable senators, the way I describe this, which I believe is readily understandable by most Canadians, is that we must have laws, intelligence gathering and investigative tools that stop terrorists from getting on planes. If terrorists get on the planes, it is too late. We have failed.

Therefore, the approach we have taken in this bill is directed at cutting off the terrorists from their financing and property, with a view to seriously impeding them from carrying out their intended acts. The approach we have taken in the bill is a preventive one because punishing terrorists for crimes after they occur is simply not enough. We must be able to disable organizations before they put hijackers on planes or threaten our sense of security, as we have seen in recent days with the scare of anthrax. We cannot wait for terrorists to strike before we begin investigations and make arrests where there is a reasonable suspicion that a terrorist act will take place. To wait would be irresponsible.23(emphasis added)

32. The Minister of Justice further explained the purpose of many of the new terrorism offences:

We need new Criminal Code offences that allow us to convict those who facilitate, participate in and direct terrorist activity. As we have already recognized with respect to organized crime, current Canadian law in the area of conspiracy is not sufficient to go after sophisticated criminal networks. These networks rely on cells, multi-layered leadership and the assistance of those not directly involved. Current law does not always allow us to pursue those who, without being involved directly, enable such crime. This is true for terrorist groups as well as for criminal organizations. Therefore, Bill C-36, as we intend Bill C-24 to do for organized crime, would provide new offences targeting participation, leadership and similar activities. I would underline that these offences include a vital preventive element, because the terrorist enabling activities that they address are defined as offences regardless of whether the ultimate terrorist acts are actually carried out.24 (emphasis added)

23 Proceedings of the Special Senate Committee on the Subject Matter of Bill C-36, October 22, 2001, cited in R. Ahmad (2009) 257 C.C.C. (3d) 199 (Ont. S.C.) at para. 55 24 Ibid., at para. 55 10

33. In his appearance before the Committee, Donald Piragoff, Senior General Counsel in the Criminal Law Policy Section of the Department of Justice, made the following comments about the offence of knowingly facilitating a terrorist activity (s. 83.19 of the Criminal Code):

The senator pointed out that a terrorist activity may be facilitated whether or not the facilitator knows that a particular terrorist activity is facilitated or whether the terrorist activity was actually carried out. That is meant to resolve a problem in the current Criminal Code in the existing offences of aiding and aiding and abetting where you have to actually know of the specific offence that you are aiding and abetting. This particular provision is trying to capture the situation where a person knows that he or she is assisting a terrorist group by providing false documents but does not know that on September 11 the World Trade Center will be bombed and that these documents are being providing for the purpose of getting people into the United States illegally, for example. That is the notion of facilitating. You know you are helping them. You do not know exactly what particular crime is going to be committed but you know something bad will be done. That is why the definition says that you do not have to know the particular terrorist activity that will occur.25

34. The legislative history of Bill C-36 demonstrates that the thrust of these Criminal Code provisions is to prevent terrorist acts from occurring. This objective reflects the difficulty of deterring and prosecuting those involved in terrorist activity by relying on traditional criminal law approaches, and supports Parliament’s determination that there is substantive harm inherent in all aspects of preparation of a terrorist act because of the significance of the harm caused by terrorist acts.

B. SECTION 83.18 IS NOT OVERBROAD AND DOES NOT INFRINGE SECTION 7

35. The Appellants Sriskandarajah and Nadarajah do not contend that sections 83.03 or 83.21 of the Code infringe section 7 of the Charter. Rather, their complaint of overbreadth is confined to section 83.18 – the offence of participation in the activities of a terrorist group. Section 83.18, however, is not overbroad and does not infringe section 7 of the Charter. Parliament is entitled to criminalize harmful conduct at an early stage, if it considers it desirable to do so. The participation offence is neither arbitrary, nor grossly disproportionate, in light of the state interest it seeks to protect: the prevention and suppression of terrorism.

25 Ibid., at para. 59 11

1. Legislation Is Only Overbroad If It Is Arbitrary Or Grossly Disproportionate In Its Effects

36. The Appellants claim that section 83.18 of the Code is overbroad because it “extends criminal liability to conduct insufficiently proximate to any real, attempted or contemplated terrorist act”.26 That is not, however, the test for establishing overbreadth under section 7 of the Charter. Legislation is only overbroad if it is arbitrary, or grossly disproportionate, in relation to the state interest that the legislation seeks to protect.

37. In R. v. Heywood, this Court held that overbreadth analysis under section 7 is concerned with whether the state, in pursuing a legitimate objective, has used means that are clearly broader than necessary to accomplish the objective, and thereby limited the individual’s rights “for no reason”. As Cory, J. stated, “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.”27 (emphasis added)

38. Heywood recognized that legislatures must have the authority to make policy choices, and judges should not strike down legislation simply because they might have selected different means to accomplish the state objective. Cory, J., therefore, stated that “a measure of deference must be paid to the means selected by the legislature.”28 In the subsequent decision of R. v. Clay, this Court clarified that the appropriate measure of deference is reflected in a standard of gross disproportionality.29

39. The threshold for striking down legislation on the ground of overbreadth is, therefore, high, a point that was made by the Ontario Court of Appeal in R. v. Dyck:

Since gross disproportionality is the ultimate standard, the threshold for striking down legislation on the ground of overbreadth is clearly high. Thus, a law will not fail a constitutional challenge on this ground simply because it goes further than is strictly necessary or even because it is merely disproportionate to the objective at issue, as opposed to “grossly” disproportionate.30

26 Appellant Nadarajah’s Factum, para. 25 27 R. v. Heywood, [1994] 3 S.C.R. 761, per Cory J., at p. 793(a) 28 R. v. Heywood, supra at p. 793(h) 29 R. v. Clay, [2003] 3 S.C.R. 735, per Gonthier and Binnie JJ., at paras. 37-39; see also R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 143 and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para.47 30 R. v. Dyck, (2008) 232 C.C.C. (3d) 450 (Ont. C.A.) at para. 96. See also: Cochrane v. Ontario (Attorney General), (2008) 61 C.R. (6th) 374 (Ont. C.A.) at para.31, where the Court stated that the test of gross disproportionality “clearly incorporates a substantial measure of deference to the legislature’s assessment of the risk to public safety and the need for the impugned law.” 12

40. The British Columbia Court of Appeal, however, appears to have suggested that this Court subsequently abandoned the standard of gross disproportionality. In Victoria (City) v. Adams31, the Court of Appeal noted that this Court conducted an overbreadth analysis in R. v. Demers32 using the principles articulated in Heywood, without any reference to the Clay standard of gross disproportionality.33

41. Nothing in Demers signified a departure from the standard of gross disproportionality – the case itself was one where the legislation in issue was both arbitrary and grossly disproportionate. Demers was concerned with an individual who could never be made fit for trial and was permanently made subject to the criminal process, by virtue of provisions in the Code that were aimed at persons who could be made fit for trial. This Court held that the provisions in question were overbroad because they limited the liberty of permanently unfit accused “for no reason”.34 In other words, the legislation was arbitrary in its application to permanently unfit accused. Since legislation that is arbitrary is necessarily grossly disproportionate to the state objective, the legislation was also grossly disproportionate.

42. Demers was decided less than seven months after Clay. If this Court had intended to overturn its holding in Clay, it would have expressly said that it was doing so. In light of the confusion as to the applicable standard that now arises from the remarks made by the British Columbia Court of Appeal, this Court should re-affirm its holding in Clay that the standard is one of gross disproportionality.

2. Section 83.18 Is A Substantive Offence Aimed At Deterring Those Who Intend To Enhance The Ability Of Terrorist Groups To Facilitate Or Commit Terrorist Acts

43. The Appellants Sriskandarajah and Nadarajah contend that s. 83.18 expands the scope of criminal liability “for wrongs not yet committed” and complain that s. 83.18 “goes far beyond criminalizing acts that are truly preparatory to acts of terrorism”. The Appellants’ argument, however, fails to recognize that s. 83.18 establishes a substantive offence, an offence which itself defines conduct that is “wrong” and harmful when committed. Moreover, in seeking to prevent

31 Victoria (City) v. Adams, (2009) 313 D.L.R. (4th) 29 (B.C.C.A.) 32 R. v. Demers, [2004] 2 S.C.R. 489 33 Victoria (City) v. Adams, supra at paras. 113-115. See also: PHS Community Services Society v. Canada (Attorney General), (2010) 250 C.C.C. (3d) 443 (B.C.C.A.), per Rowles, J.A. at para.52. 34 R. v. Demers, supra at paras. 37-43 13 and suppress terrorism, Parliament was not limited to measures criminalizing only terrorist acts, or conduct preparatory thereto. Parliament was entitled to take a broader perspective and seek to limit the effectiveness of terrorist groups, both in Canada and abroad, by imposing criminal liability on those who seek to increase the ability of terrorist groups to pursue their terrorist objectives.

44. It is a basic principle of constitutional law that, provided that Parliament is acting in furtherance of a valid criminal law purpose, it is Parliament’s role to define when conduct should be criminal and attract the disapprobation of society.35 When the state objective is avoidance of harm, Parliament is entitled to impose a criminal prohibition so long as the harm crosses a de minimis threshold.36

45. Consistent with this broad discretion conferred on Parliament, Parliament is entitled to enact both “conduct” crimes and “result” crimes. A “conduct” crime is one in which a particular result is not required to flow from the commission of the prohibited act – the conduct itself is a wrong. A “results” crime, on the other hand, requires that a particular harm follow from the commission of an act – the infliction of the harm is a wrong.37 Properly interpreted, the participation offence in s. 83.18 is a “conduct” crime.

46. Section 83.18(1) provides that an individual who knowingly participates in, or contributes to, an activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence. The offence imposes liability regardless of whether or not the conduct of the accused actually increases or improves a terrorist group’s abilities, and regardless of whether or not the conduct actually results in the facilitation or commission of a terrorist activity. The offence establishes a “conduct” crime, an act which itself is considered harmful and wrong.

47. Although the Appellants are correct that the actus reus of the offence is complete once one participates in, or contributes to, the activities of a terrorist group, the reach of the offence is significantly narrowed by the mens rea of the offence. The mens rea requirement is not, as the Appellants’ claim, “nebulous”.38 As the court below correctly recognized, s. 83.18 imposes a

35 R. v. Hinchey, [1996] 3 S.C.R. 1128 at paras. 29-31 36 R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 133 37 R. v. Hinchey, supra at para.22 38 Appellant Nadarajah’s factum, para. 35 14

“strong and specific” mens rea requirement, limiting the offence to circumstances where an accused knowingly participates in (or contributes to) the activities of a terrorist group, and intends that such participation (or contribution) will enhance the ability of a terrorist group to facilitate or carry out terrorist activity.

48. A “terrorist group”, as defined in subsection 83.01(1) of the Code, means either an entity listed by the Governor in Council under section 83.05, or an entity that has as one of its purposes or activities the facilitation or commission of terrorist activity. The definition of “entity” in subsection 83.01(1) includes a “person, group, trust, partnership or fund or an unincorporated association or organization.” Simply stated, a person or group of persons will amount to a terrorist group if one of their aims, goals or activities is the facilitation or commission of terrorist activity. The Oxford English Dictionary (online version December 2011) defines “purpose” as: “That which a person intends to do or attain; an object in view; a determined intention or aim.” The French version of the definition refers to “l’un des objets”. “Objet” and “purpose” convey the same meaning in this context: an aim or goal.39 A listed entity, such as the LTTE, the group that the Appellants were associated with, is also a terrorist group.

49. “Terrorist activity”, in turn, is defined in two different ways in subsection 83.01(1) of the Code. Part (a) of the definition, which is not in issue on appeal, defines “terrorist activity” with reference to certain offences that implement various international conventions related to the suppression of terrorist acts.

50. Part (b) of the definition defines terrorist activity in a functional manner. To fall within the definition of terrorist activity, an act or omission must be committed inside or outside Canada for a political, religious or ideological purpose, objective or cause (the so-called “motive requirement”). It must also be committed with the intention of intimidating the public, or a segment of the public, with regard to its security (including economic security), or with the intention of compelling a person, government, or domestic or international organization (inside or outside of Canada) to do or refrain from doing any act. Finally, the act must intentionally:

(A) cause death or serious bodily harm through violence,

(B) endanger life,

39 Oxford English Dictionary (online version December 2011) “purpose” 15

(C) cause a serious risk to the health or safety of the public or any segment of the public,

(D) cause substantial property damage, if doing so is likely to result in one of the harms set out in (A) to (C), or

(E) cause serious interference with or serious disruption of an essential service, facility or system, unless such harm is the result of advocacy, protest, dissent or a work stoppage that is not intended to result in any of the harms set out in (A) to (C).

The definition of terrorist activity includes a conspiracy, attempt, threat, or counselling to commit an act or omission that is terrorist activity.

51. In short, “terrorist activity” under part (b) is confined to acts that cause serious harm, or substantial risks of serious harm, and, even then, only if the acts are committed with the requisite mental states.

52. Mere participation in, or contribution to, an activity of a terrorist group is insufficient to ground criminal liability under s. 83.18(1). An accused must know that he is dealing with a terrorist group, that is, an entity that either commits or facilitates terrorist activity, or has that as one of its aims. The accused must know that he is participating in, or contributing to, one of the terrorist group’s activities. And, the accused must also intend, by his conduct, to enhance (increase or improve40) the ability of a terrorist group to facilitate or carry out terrorist activity. This detailed and extensive mens rea requirement significantly narrows the breadth of the offence.

53. The participation offence in s. 83.18(1), therefore, only imposes criminal liability on persons who intend to enhance the ability of a terrorist group to facilitate or carry out serious social harms, and knowingly participate in, or contribute to, the activities of a terrorist group for that purpose.

54. The participation offence is not, as the Appellant suggests, an inchoate offence that allows “for liability to be imposed on a triply inchoate basis.” Inchoate offences, such as conspiracy and attempt, impose liability on an actor who intends to commit a particular crime, but has yet to commit it. The mens rea exists, but there is no actus reus that would permit the

40 The Oxford English Dictionary (online version December 2011) defines “enhance” as: “To raise in degree, heighten, intensify (qualities, states, powers, etc.).” 16

imposition of liability for the completed offence. Liability is imposed at a preliminary stage because the actor’s conduct – the conspiracy or the attempt – poses a risk that the full offence will be committed. A substantive offence, however, is a crime that is complete when the actus reus is committed with the necessary mens rea. Substantive criminal offences typically define conduct that Parliament considers harmful or offensive. As the court below correctly held, the participation offence in s. 83.18 is a substantive offence.41

3. The Offence Is Neither Arbitrary Nor Grossly Disproportionate

55. The participation offence in s. 83.18 is neither arbitrary, nor grossly disproportionate, in relation to the state objective that underpins the offence: the prevention and suppression of terrorism.

56. The participation offence is rationally connected to the preventive objective of the Act and is, therefore, not arbitrary.42 Terrorist groups pose significant risks to public health and safety. Increasing their ability to inflict harm elevates the risk that such harms will come to fruition, in Canada and elsewhere. The participation offence helps to deter those who would otherwise seek to enhance the ability of terrorist groups to perpetrate serious social harms, and thereby helps to minimize the effectiveness of terrorist groups.

57. The Appellants, however, argue that Parliament was restricted in its range of measures to criminalizing conduct that was “inherently dangerous or is preliminary to other dangerous acts”.43 They contend that the s. 83.18 offence captures “indirect and fruitless contributions to non-terrorist activities where the intention is to enhance the ability of a group to commit such preliminary acts as conspiring or counselling”.

58. The flaw in the Appellants’ argument is that, in seeking to prevent and suppress terrorism, Parliament was not restricted to criminalizing only terrorist acts and conduct preparatory to the commission of such acts. Parliament was entitled to take a broader perspective and enact measures aimed at impairing the ability of terrorist groups to perpetrate terrorist acts.

41 Judgment of the Court of Appeal, para. 31 42 R. v. Malmo-Levine, supra at para. 136: “The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm”. 43 Appellant Nadarajah’s factum, para. 45 17

59. It was for Parliament to determine whether the conduct defined in s. 83.18 warranted criminal sanction. In R. v. Malmo-Levine, this Court stated that, once the de minimis threshold is crossed, “the precise weighing and calculation of the nature and extent of the harm is Parliament’s job”.44

60. The conduct that is the subject matter of s. 83.18 easily crosses the de minimis threshold. Persons who intend to enhance the ability of terrorist groups to facilitate or carry out terrorist activity, and, for that purpose, participate in or contribute to the activities of a terrorist group pose a risk to public safety and security. Parliament was entitled to criminalize the conduct. The only question is whether criminalizing such conduct is a grossly disproportionate response to the preventive objective of the legislation.

61. The s. 83.18 offence is not a grossly disproportionate response. The fact that a conviction will follow even if an accused’s participation or contribution does not actually increase a terrorist group’s ability to facilitate or carry out terrorist activity is of no moment. Practically speaking, given the clandestine nature of terrorist groups and their cellular structure, it may often be exceedingly difficult to demonstrate that an accused’s participation or contribution actually enhanced the ability of a terrorist group. Individuals who commit the participation offence in s. 83.18 demonstrate that they pose a serious risk to society, regardless of whether or not their conduct was actually effective in enhancing a terrorist group’s ability to perpetrate harm. While their contributions may, to use the Appellants’ wording, be “fruitless” the first time they involve themselves in the activities of a terrorist group, society may not be so fortunate the next time around. Deterrence of persons who engage in such conduct is not a grossly disproportionate response to the legislative objective. Indeed, it is a wholly rational and proportionate response.

62. The Appellants attempt to bolster their argument by relying on the decision of this Court in R. v. Déry45. They contend that Déry stands for the proposition that Parliament cannot reach “further behind preliminary acts to criminalize conduct preceding those acts.” Déry, however, does not stand for that proposition at all.

63. Déry was concerned with whether the offence of attempt to conspire lay “dormant within the statutory confines of the Criminal Code, ready to be roused by a proper sounding of its

44 R. v. Malmo-Levine, supra, at para. 133 45 R. v. Déry, [2006] 2 S.C.R. 669 18

governing provisions.”46 This Court held that the offence of attempt to conspire did not exist because an attempt to conspire was merely a step preparatory to the commission of the substantive offence, and the law of attempt requires an overt act beyond mere preparation.47 The decision turned on the interpretation of the relevant statutory provisions of the Code, and did not purport to limit Parliament’s ability to define conduct as criminal. Indeed, Déry acknowledged that Parliament can define conspiracies as substantive crimes, and that in such circumstances an attempt to conspire might well be made out. Déry also observed that recognizing attempt to conspire as a crime is the kind of change in the law that is “best left to Parliament.”48

64. In R. v. Ahmad49, Dawson, J. was confronted with an argument similar to that advanced by the Appellants here, to the effect that the participation offence extends liability beyond the bounds of legitimate criminal law principles. He rejected the argument because he held that it was open to Parliament to define the conduct in s. 83.18(1) as substantively harmful and subject to criminal sanction. Dawson, J. stated:

…having regard to the preventive purpose and objective of the legislation, Parliament has determined that the type of conduct that will be caught by s. 83.18(1) is in itself substantively harmful. The case law recognizes that this is a determination that it is open to Parliament to make. For example, in Déry, at para. 46, Fish J. acknowledged that Dubin J.A. in Dungey "left the door open to a possible exception for substantive conspiracy precisely because, in that context, 'the question of remoteness would not arise'". At para. 20 of Déry, Fish J. indicated that Dubin J.A. was referring to offences such as conspiracy to commit treason or conspiracy in restraint of trade. In such crimes the substantive harm at which Parliament takes aim resides in the conspiracy.

......

Parliament has often chosen to define substantive offences using language that can be regarded as describing preparatory acts. It has been held that there is no constitutional principle that precludes Parliament from doing so. Doherty J.A. made this point in R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.), at para. 38.50

65. The Appellants further argue that the offences of attempt and conspiracy are sufficient to address the risks posed by terrorist groups, but such an argument impermissibly intrudes into the policy realm of Parliament and, if accepted, would involve this Court doing what Heywood said

46 R. v. Déry, supra at para. 9 47 R. v. Déry, supra at paras.43-46 48 R. v. Déry, supra at para. 36 49 R. v. Ahmad, supra 50 R. v. Ahmad, supra at paras.67-70 19

is inappropriate – interfering with legislation because there may be different means to accomplish the objective. The argument is fundamentally flawed, in any event, because the participation offence captures a range of blameworthy conduct that is not caught by the offences of attempt and conspiracy. The individual who attends a terrorist training camp, the terrorist recruiter who recruits new members to join a terrorist group, the bomb-maker who provides training to others, all of these may do nothing that amounts to an attempt or a conspiracy to commit an indictable offence, or that would warrant imposition of party liability under section 21 of the Criminal Code, yet they engage in conduct that is harmful and should be deterred. Parliament need not stand idly by and permit such dangerous conduct to flourish in our midst.

66. As the court below correctly held, the “scope of s. 83.18 is entirely consistent with the preventative thrust of the anti-terrorism legislation.” The offence is not overbroad.

67. It should be noted, as well, that an offence similar to s. 83.18 is also found in the context of combating organized crime. Section 467.11 of the Criminal Code makes it a crime to knowingly participate in any activity of a criminal organization for the purpose of enhancing the ability of any criminal organization to facilitate or commit an indictable offence. A constitutional challenge to that offence under section 7 of the Charter on the ground of overbreadth was dismissed.51

C. SECTIONS 83.03, 83.18 AND 83.21 DO NOT INFRINGE FREEDOM OF EXPRESSION

68. The Appellants Sriskandarajah and Nadarajah also assert that sections 83.03, 83.18 and 83.21 of the Code infringe freedom of expression, and advance two arguments in support of this assertion. First, they say that some of the acts caught by the definition of terrorist activity are expressive activities that are protected by s. 2(b) of the Charter. While they do not expressly say so, the offences presumably infringe s. 2(b) insofar as they incorporate the definition of terrorist activity into the elements of the offences. Second, they contend that the motive requirement in the definition of terrorist activity has a “chilling effect” on the freedom of expression of “individuals who are associated with groups who promote terrorism.”52

51 R. v. Beauchamp, (2009) 68 C.R. (6th) 293 (ONSC) 52 Appellant Nadarajah’s Factum, para. 65 20

69. The Appellant Khawajah also advances this latter argument, but goes further and contends that the “chilling effect” extends beyond freedom of expression to chill both freedom of religion and freedom of association.

70. The arguments are all without merit. The types of harmful conduct set out in the definition of terrorist activity are methods of expression that are not protected under s. 2(b). Furthermore, the Appellants’ theory of a “chilling effect” is without any evidentiary foundation. Even if there is a “chilling effect”, the “chill”, at best, arises from a concern as to how the police might inappropriately implement the legislation, rather than the legislation itself.

1. The Harmful Acts Defined As Terrorist Activity Are Not Protected Under S. 2(b) Of The Charter

a. Terrorist Acts, As Methods Of Expression, Are Excluded

71. At the first stage of the analysis of an alleged infringement of freedom of expression under s. 2(b) of the Charter, a court must consider whether the state has limited an activity that conveys, or attempts to convey, meaning. However, not every activity that conveys or attempts to convey meaning is sheltered under s. 2(b). This Court has recognized that the state need not resort to s. 1 of the Charter to justify every limit on expressive activity, and the location or method of expression may remove an activity from the protection of s. 2(b).53 Thus, violence as a means of expression is not protected under s. 2(b) because “the method by which the message is conveyed is not consonant with Charter protection.”54 (emphasis added)

72. As the Appellants concede, the violent acts described in parts (b)(ii) A-D of the definition of terrorist activity55 are methods of expression that find no protection under s. 2(b).

73. Threats of violence are also excluded. In the early days of the Charter, the Court was divided as to whether threats of violence were expressive activity falling within the protective embrace of s. 2(b). At that time, the Court considered whether the “form” of expression, rather than the “method”, excluded the expression from protection. Some statements in obiter said that

53 Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141 at para. 60 and 72; Baier v. Alberta, [2007] 2 S.C.R. 673 at para. 20 ; Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, [2009] 2 S.C.R. 295 at para. 28 54 Montreal (City) v. 2952-1366 Quebec Inc., supra at para. 60 55 Set out in paragraph 50 above. 21

threats of violence were not protected56; others said that they were.57 More recently, however, the Court has stated that, as a method of expression, “threats of violence fall outside the scope of the s. 2(b) guarantee.”58

74. Threats of violence as a method of expression are excluded from protection because they are inimical to the values that underlie the guarantee of freedom of expression in the Charter. As McLachlin, J. (as she then was) stated in Keegstra:

The justification for excluding violence as a protected form of expression is not just that violence is harmful to the victim, it is rather that violence is inimical to the rule of law on which all rights and freedoms depend. Threats of violence are similarly inimical. They are coercive, taking away free choice and undermining freedom of action. Most fundamentally, they undercut one of the essential justifications of free expression -- the role of free expression in enhancing the freedom to choose between ideas (the argument based on truth) or between courses of conduct (the argument based on democracy). Being antithetical to the values underlying the guarantee of free expression, it is logical and appropriate that violence and threats of violence be excluded from its scope.59

75. Similarly, although conspiring or counselling someone to commit an offence may well be “expressive” activities, they are inimical to the rule of law and the values underlying freedom of expression, and are excluded from the protection of s. 2(b).

76. The Appellants, however, contend that the type of conduct described in part (b)(ii)(-E) of the definition - disruptions of, and interfences with, essential services, facilities or systems - may include non-violent activities that are protected. The court below correctly declined to address this argument, since the conduct alleged against the Appellants did not engage this part of the definition. Should this Court decide that it is necessary to address the argument, the Respondent’s position is that the types of acts described in part b(ii) E are also methods of expression that are inimical to the values underlying s. 2(b) and are thereby excluded from protection.

56 RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at p. 588(e); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at p. 970(b)-(c); R. v. Keegstra, [1990] 3 S.C.R. 697, per McLachlin J. (as she then was) dissenting, at p. 827(c)-(f) 57 R. v. Keegstra, supra, per Dickson, C.J., at p. 733(a); Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, per Dickson, C.J., at p. 915(g) 58 Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, supra at para. 28 59 R. v. Keegstra, supra, at p. 830(h) – 831(a); see also 22

77. Acts that seriously disrupt or interfere with essential services, facilities, and systems are not caught by part b(ii) E, if they are the result of advocacy, protest, dissent or stoppage of work that is not intended to result in death, serious bodily harm, or serious risks to health and safety. Acts that do not fall within this range should be excluded from the protection of s. 2(b). First, if acts of advocacy, dissent and the like are intended to result in harm or serious risks of harm to others, then they fall within the violence exception to s. 2(b) and do not warrant protection. Second, acts that are not the result of advocacy, protest, dissent or stoppage of work, but are simply acts intended to cause serious disruptions of, or interferences with, essential services, in an effort to intimidate or coerce others for some religious, ideological or political purpose or cause, are similar to threats of violence – they are fundamentally coercive in design and effect. Such acts do not warrant the protection of the very guarantee they undermine.

78. None of the activities caught by the definition of terrorist activity are expressive activities that are protected by s. 2(b).

b. Even If Terrorist Acts Are Presumptively Protected, The Purpose Of The Legislation Is Not To Restrict Freedom Of Expression

79. Even if some of the activities caught by the definition presumptively fall within the protective embrace of s. 2(b), the legislation does not infringe freedom of expression because the purpose of the legislation is not to infringe the guarantee.

80. If, at the first stage of analysis, an activity presumptively falls within the protection of s. 2(b), the court is then required to move onto the second stage of analysis and determine whether the impugned state action infringes freedom of expression in purpose or effect. If the purpose of legislation is not to infringe freedom of expression, but that is its effect, then the legislation will not infringe s. 2(b) unless the claimant establishes that the expressive activity in question promotes one of the values underlying the guarantee.60 The acts caught by the definition of terrorist activity do not promote any of these values. The definition, therefore, does not infringe the guarantee of freedom of expression.

60 Irwin Toy Ltd., supra at p. 976(d)-(f); Baier v. Alberta, supra at para. 19; Montreal (City) v. 2952-1366 Quebec Inc., supra at para. 56 and 82-83 23

81. The purpose of the offences in sections 83.03, 83.18 and 83.21 of the Code is not to limit freedom of expression, but rather to prohibit certain activities that are intended to enhance the ability of terrorist groups to facilitate or carry out harmful acts. The purpose is to prevent terrorism. The offences operate regardless of the meaning being conveyed.61

82. The Appellants have failed to meet their burden to show that the acts caught by the definition of terrorist activity promote any one of the three values underlying freedom of expression: (1) that “seeking and attaining truth is an inherently good activity”; (2) that “participation in social and political decision-making is to be fostered and encouraged”; or, (3) that “diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment”.62

83. The terrorist activities defined in s. 83.01 do not promote these values, they negate them. As the court below correctly held, the activities fall outside of the protection of s. 2(b).

2. The Motive Requirement Does Not Infringe Freedom Of Expression

84. The Appellants all contend that the motive requirement infringes s. 2(b). They rely on the decision of Rutherford, J. in R. v. Khawaja, in support of an argument that the motive requirement inevitably “chills” the freedom of expression of those who associate with terrorist groups. The court below held that Rutherford, J. erred in finding that the motive requirement infringed s. 2(b), as has every other court that has been invited to follow his decision.63 The court below was correct: Charter decisions cannot be made in a factual vacuum and there is no evidence that the motive requirement “chills” freedom of expression.

85. Section 83.01(1.1) of the Code expressly protects freedom of expression, by providing that “the expression of a political, religious or ideological thought, belief or opinion” does not fall within paragraph (b) of the definition of terrorist activity unless it is an act or omission that otherwise satisfies the criteria of the paragraph.

86. Notwithstanding that the expression of thought, belief and opinion is exempted from the reach of the definition of terrorist activity, Rutherford J. thought that it was “inevitable” that the

61 Irwin Toy Ltd., supra at p.975(j) – 976(c); R. v. Ahmad, supra at paras. 120, 124-25 62 R. v. Keegstra, supra at p. 727(j)-728(b); Irwin Toy Ltd., supra at p. 976(g)-(i) 63 R. v. Ahmad, supra at para. 136; R. v. Namouh, [2009] Q.J. No. 6435, QCCQ 5833 (C.Q.) (QL); Reference re Marine Transportation Security Regulations, 2009 FCA 234 (F.C.A.) (CanLII) at paras. 33-35 24

motive requirement would cause investigators and prosecutors to focus scrutiny on “the political, religious and ideological beliefs, opinions and expressions of persons and groups both in Canada and abroad”, and that this would inevitably cause a “chilling effect”. He also thought that there would be “an indirect or re-bound effect…as individuals’ and authorities’ attitudes and conduct reflect the shadow of suspicion and anger falling over who appear to have any connection with the religious, political or ideological grouping identified with specific terrorist acts.”

87. The flaw in Rutherford J’s decision, as recognized by the court below, is that there was no evidentiary foundation to support his theory of the “chilling effect” or the “re-bound effect”. His decision rested on opinions expressed by a few commentators in published articles, and his own speculation as to where the motive requirement would “inevitably” lead. Moreover, other commentators disagree with the “chilling effect” theory.64

88. In Mackay v. Manitoba, a case where the claimant alleged that legislation had the effect of infringing s. 2(b), Cory J. stated for a unanimous Court that “Charter decisions should not and must not be made in a factual vacuum.” 65 He went on to state that “Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.”66 Nor can they be based on judicial speculation.

89. As Cory J. emphasized in Mackay, when a claimant alleges that legislation has the effect of infringing the Charter, it is crucial that the claimant adduce evidence that establishes the existence of the purported effect.67

90. The Appellants suggest that the Court can dispense with their need to call evidence to establish the “chilling effect”, as if it is obvious that the “chilling effect” exists. They make the observation that courts have promulgated rules concerning the disclosure of confidences that were “informed by unproven but accepted concerns of a “chilling effect””.

91. However, as this Court held in R. v. Spence, the extent to which a court will insist upon evidence to establish a fact, whether it be adjudicative, legislative or social fact, will “vary

64 Saul, Ben “The Curious Element of Motive in the Definitions of Terrorism: Essential Ingredient or Criminalizing Thought”, in Andrew Lynch, Edwina MacDonald and George Williams, eds., Law and Liberty in the War on Terror (The Federation Press, Leichhart, NSW, Australia, 2007), at pp. 34-36; Lord Carlile of Berriew Q.C. (Independent Reviewer of Terrorism Legislation) The Definition of Terrorism (March 2007) at para. 53 65 Mackay v. Manitoba, [1989] 2 S.C.R. 357 at p. 361(h) 66 Mackay v. Manitoba, supra at p. 361(j)-362(a) 67 Mackay v. Manitoba, supra at p. 366(d)-(e) 25

according to the nature of the issue under consideration” and “the particular purpose for which it is to be used”.68 The “closer the fact approaches the dispositive issue, the more the court ought to insist on compliance” with the strict requirements of judicial notice.69

92. Thus, as Binnie, J. noted in Spence, some courts, in the context of defamation proceedings, have been prepared to accept that “everybody knows” that compelling journalists to disclose sources will lead to some important sources drying up. However, when it came time to consider whether the same “legislative fact” should be entrenched as a privilege under the Charter, the Court held that it was necessary to call evidence to establish the alleged “chill”.70

93. The Appellants’ proposition here that freedom of speech will be “chilled” by the motive requirement can only be established upon a proper evidentiary foundation, a foundation that is wholly lacking.

94. In the absence of evidence establishing the existence of the “chilling effect”, it is neither logical nor obvious that expression is chilled by the motive requirement. Rational persons who are informed about the provisions of the terrorism offences will appreciate that the expression of beliefs, even extreme ones, will not result in criminal liability. As the court below recognized, persons are either aware of the existence of the motive requirement, or they are not. If the latter, their freedom of expression can hardly be infringed by something of which they are unaware. If the former, they must be deemed to be aware of the provisions in their entirety, including the specific exclusion of expressions of thought, belief and opinion from the reach of the definition of terrorist activity.

95. Even if one were to assume, as Justice Rutherford did, that individuals who express extremist beliefs may find themselves the subject of some scrutiny by the police, that does not support a conclusion that the motive requirement chills expression. Given the preventive objective of the Anti-terrorism Act, one would hope that individuals who express extremist beliefs or common cause with terrorists would attract the scrutiny of the police, regardless of whether or not the definition of terrorist activity included a motive requirement.

68 R. v. Spence, [2005] 3 S.C.R. 458 at paras. 60 and 65 69 R. v. Spence, supra at para. 61 70 R. v. Spence, supra at paras. 65-66 26

96. Rutherford J’s real concern was not with the legislation, but rather with the way that the police might conduct their investigations. He was concerned that the motive requirement might lead the police to engage in inappropriate profiling practices. But this is fundamentally a concern with the implementation of the legislation, rather than the legislation itself. This Court has emphasized the need to distinguish between legislation and its implementation. If an alleged infringement arises from the implementation of legislation, rather than the legislation itself, then the legislation is constitutional.71

97. The Appellants add an additional gloss to the decision of Rutherford, J., arguing that persons will refrain from expressing their beliefs and opinions because those beliefs and opinions may be gathered by the authorities and used against them as evidence in a prosecution. In other words, they contend that individuals who intend to commit, or may commit, terrorist offences at some future time, will refrain from saying anything that is likely to be adduced into evidence against them in a future trial.

98. Again, there is no evidence to support this proposition. The United States Supreme Court was confronted with a somewhat similar argument in Wisconsin v. Mitchell, to the effect that individuals might refrain from expressing bigoted views because those views might be used against them if they committed a crime in the future. The U.S.S.C. dismissed the hypothesis as “simply too speculative”.72

99. In any event, the Appellants’ proposition has far-reaching impacts. The words people express often play a role in establishing culpability at trial. If the Appellants are correct, a broad range of criminal offences infringe freedom of expression. Drug offences “chill” the freedom of expression of drug traffickers; conspiracy offences “chill” the speech of conspirators.

100. The answer to the Appellants’ argument is that their complaint is not directed towards the legislation, but rather again to the possible implementation of the legislation at some future point in time. Any “chill” (even if established, which it is not) arises from a fear of future arrest and prosecution – a concern about the prospective implementation of the legislation, rather than the legislation.

71 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at paras. 133-135 72 Wisconsin v. Mitchell, 508 U.S. 476 (1993) at pp.488-89 27

101. The Appellants have failed to establish that the motive requirement infringes freedom of expression. Sections 83.03, 83.18 and 83.21 are constitutional.

102. For similar reasons, the Appellant Khawaja’s bald assertion that the motive requirement infringes freedom of religion or freedom of association must be dismissed. There is a complete absence of evidence establishing any impairment of religious practices that are protected under s. 2(a), or any impairment of associational activity protected under s. 2(d).

D. IN THE ALTERNATIVE, ANY INFRINGEMENT IS A REASONABLE LIMIT

103. If this Court finds an infringement of s. 2(b) of the Charter (or 2(a) or 2(d)), the infringement is nonetheless justified as a reasonable limit under section 1. The terrorism offence provisions are a proportionate response to a pressing and substantial objective – the prevention and suppression of terrorist acts and the serious societal harms flowing therefrom.

1. Proscribing Non-violent Expressive Activities That Cause Serious Harms Is A Proportionate Response

104. If this Court decides that threats of violence, or the acts caught by part b(ii)E of the definition of terrorist activity, are protected by the guarantee of freedom of expression under s. 2(b), the offence provisions are a reasonable limit on the guarantee.

105. The conduct in question, even if non-violent, causes serious harms. Threats of violence and serious disruptions to essential services that are intended to intimidate or compel others, for some religious, political or ideological purpose, are harmful acts. The offence provisions are obviously rationally connected to the pressing and substantial objective of preventing such harms.

106. The offence provisions also minimally impair the right protected by s. 2(b). The only expressive activity that is impaired is activity that causes harm. Finally, the salutary benefits of the law easily outweigh any deleterious effects on freedom of expression.

2. The Inclusion Of A Motive Requirement Is Also A Proportionate Response

107. The inclusion of a motive requirement in the definition of terrorist activity is also a proportionate response to the pressing and substantial objective of preventing terrorism. Most 28

countries that share our common law heritage have similar motive requirements in their definitions of terrorism because terrorist acts are qualitatively different than other crimes – they are committed for a political, ideological or religious purpose, and are unique in that they attack the foundational values of pluralistic democracies. The motive requirement operates to limit the reach of the terrorism offences and operates as a safeguard. It is a reasonable response to the problems posed by terrorism, impairs freedom of expression no more than reasonably necessary, and its benefits outweigh any deleterious effects.

108. The inclusion of a motive requirement in the definition of terrorism is a common feature in the criminal law of many common law countries. The United Kingdom, in its Terrorism Act 2000, set out a definition of terrorism that included motive as a component of that definition; in fact, the UK later expanded its motive component to include “racial cause” on the recommendation of Lord Carlile of Berriew, the then independent reviewer of the U.K.’s anti- terrorism legislation. The current definition in the U.K. requires that conduct be committed “for the purpose of advancing a political, religious, racial or ideological cause”.73 Similarly, Australia74, New Zealand75, and South Africa76 include a motive requirement in the definition of terrorism found in their respective criminal legislation. Each country requires that an act be committed for a political, religious, or ideological purpose before it can be characterized as “terrorism”.

109. Canada and other countries sharing a common law heritage have adopted motive as a component of the definition of terrorism because it reflects our common understanding of what terrorism is. Terrorists commit acts of terror as a means to promote or advance a political, religious, or ideological agenda. As Lord Carlile stated in his report reviewing the definition of terrorism in the U.K., “…the true and definable characteristics of terrorism are to be found in the combination of motive and means of perpetration.”77 The Security Legislation Review Committee in Australia, in recommending that the motive requirement be retained in that

73 The Terrorism Act 2000, [United Kingdom of Great Britain and Northern Ireland], 2000 c. 11, as amended, Part I, s. 1(1)(c) 74 Criminal Code Act 1995, [Australia] s. 100.1(1) 75 Terrorism Suppression Act 2002, [New Zealand] Part I, s. 5(2) 76 Protection of Constitutional Democracy Against Terrorist And Related Activities Act, 2004, [South Africa] s.1(1)(xxv)(c) 77 Lord Carlile of Berriew Q.C. , supra, at para. 55 29

jurisdiction, concluded that the motive requirement “appropriately emphasizes a publicly understood quality of terrorism”.78

110. Inclusion of a motive requirement allows legislators to affix moral blameworthiness and criminal sanction upon those who commit acts that are consonant with the public understanding of terrorism. As Ben Saul has written, there is a powerful symbolic or moral value in condemning the motivation behind terrorist acts:

…in a sophisticated criminal justice system an element of motive can promote a more finely calibrated legal response to specific types of socially unacceptable behaviour. Where society decides that certain social, ethical, or political values are worth protecting, the requirement of a motive element can more accurately target reprehensible infringements of those values. There may be a powerful symbolic or moral value in condemning the motivation behind an act, quite separately from condemning the physical act itself.79

111. There is, therefore, a rational connection between the inclusion of a motive requirement and the pressing and substantial objective of preventing terrorism.

112. The motive component of the definition of terrorist activity is also minimally impairing. Parliament is entitled to choose from among a range of options that impair the right as little as possible, and is not required to select the perfect or least restrictive alternative to achieve its objective.80

113. Although it is often said that motive is irrelevant in establishing criminal liability81, and the trial judge appeared to accept this as a truism, the statement is, at best, misleading. Motive often plays a significant role in establishing criminal liability, either as an element of an offence or defence, or as evidence tending to establish the existence of an element.82 Glanville Williams pointed out that motive – the reason why someone commits a criminal act – is really nothing

78 Commonwealth of Australia, Report of the Security Legislation Review Committee (June 2006), para. 6.23. See also: Review of Security and Counter Terrorism Legislation, Parliamentary Joint Committee on Intelligence and Security (December 2006), at para. 5.25 79 Ben Saul, Defining Terrorism In International Law (Oxford University Press 2006) at p. 41 80 R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 96; R. v. Chaulk, [1990] 3 S.C.R. 1303 81 See, for example, Jerome Hall, General Principles of Criminal Law (2d ed, 1960) at p.88: “For hardly any part of penal law is more definitely settled than that motive is irrelevant.” 82 See Plaxton, Irruptions of Motive in the War on Terror, 11 Can. Crim. L. Rev. 233 at pp. 233-235. And see: Hitchler, Motive As An Essential Element of Crime, 35 Dickinson Law Review 105 (March 1931); Husak, Motive and Criminal Liability, 8 Crim. Just. Ethics 3 (1989); Kaufman, Motive, Intention, And Morality In The Criminal Law, 28 Crim. Just. Rev. 317 (2003) 30

more than ulterior intention under a different name83, and it is not uncommon for the legislator to require proof of an ulterior intention as an element of an offence.

114. The motive requirement, as commentators have noted, also operates as an important limit on the breadth of the terrorism offences and ensures that society’s disapprobation is applied only to those who warrant it. The House Subcommittee on the Review of the Anti-terrorism Act recommended retaining the motive requirement in Canada because it “constitutes a safeguard”.84 In Australia, the Human Rights and Equal Opportunity Commission opposed removal of the motive requirement on the basis that doing so would widen the breadth of the definition of terrorist act to such an extent that it “could be a disproportionate limitation on the rights to freedom of expression and association”85, a rather ironic position given the argument advanced by the appellants in the cases on appeal.

115. As this Court aptly observed in R .v. Sharpe, Parliament’s legislative response to a pressing and substantial objective will be sufficient if it falls within a range of reasonable solutions to the problem confronted. The law must be reasonably tailored to its objectives and impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account.86

116. Here, Parliament sought to craft a definition of terrorist activity that reflected a societal understanding of what terrorism is, yet also operated as a safeguard to avoid affixing moral blameworthiness to those who did not commit offences warranting the label “terrorism”. While it was open to Parliament to come up with a different definition, perfection in defining terrorism is, perhaps, elusive and unattainable.87 Parliament’s response was a reasonable and proportionate response to the problem of terrorism. The salutary effects of the law are clear. The only deleterious effects, if any, are minor infringements upon the freedom of expression of persons who have read the definition of terrorist activity, yet failed to understand both its import and the fact that expressions of even extreme thoughts, opinions and beliefs are excluded from its reach.

83 Glanville Williams, Criminal Law (2d ed, 1961) at pp. 48-50 84 Rights, Limits, Security: A Comprehensive Review Of The Anti-terrorism Act And Related Issues, Final Report of the Standing Committee on Public Safety and National Security (39th Parliament, 1st session, March 2007) at p. 9; see also, Cohen, Safeguards in and Justifications for Canada’s New Anti-terrorism Act, 14 N.J.C.L. 99 at pp. 121-22 85 MacDonald and Williams, “Combating Terrorism: Australia’s Criminal Code Since September 11, 2001” (2007) 16 Griffith L. Rev. 27 at p.31 86 R. v. Sharpe, supra at para. 96 87 See Lord Carlile’s comments in this regard at paras. 9-10 of his Report, supra 31

117. Any infringement is demonstrably justified as a reasonable limitation under s.1 of the Charter.

PART IV – COSTS

118. The respondent makes no submission regarding costs.

PART V – ORDER SOUGHT

119. That the appeal be dismissed, without costs.

Toronto, Ontario, this day of April 2012.

______Croft Michaelson Sean Gaudet Counsel for the respondent Counsel for the respondent 32

PART VI – TABLE OF AUTHORITIES Jurisprudence Para. Number(s)

Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, 30 [2004] 2 S.C.R. 248 Baier v. Alberta, [2007] 2 S.C.R. 673 71, 80

Canadian (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 73

Cochrane v. Ontario (Attorney General), (2008) 61 C.R. (6th) 374 (Ont. 39 C.A.)

Greater Vancouver Transportation Authority v. Canadian Federation of 71, 73 Students – British Columbia Component, [2009] 2 S.C.R. 295

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 73, 80, 81, 82

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 4

Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 96 [2000] 2 S.C.R. 1120

Mackay v. Manitoba, [1989] 2 S.C.R. 357 88, 89

Montreal (City) v. 2952-1366, [2005] 3 S.C.R. 141 71, 80

PHS Community Services Society v. Canada (Attorney General), (2010) 40 250 C.C.C. (3d) 443 (B.C.C.A.)

R. v. Ahmad, [2009] 257 C.C.C. (3d) 199 (Ont. S.C.) 31, 32, 64, 81, 84

R. v. Beauchamp, (2009) 68 C.R. (6th) 293 (ONSC) 67 R. v. Chaulk, [1990] 3 S.C.R. 1303 112

R. v. Clay, [2003] 3 S.C.R. 735 38, 40, 42

R. v. Demers, [2004] 2 S.C.R. 489 40, 41, 42

R. v. Déry, [2006] 2 S.C.R. 669 62, 63, 64

R. v. Dyck, (2008) 232 C.C.C. (3d) 450 (Ont. C.A.) 39

R. v. Heywood, [1994] 3 S.C.R. 761 37, 38, 40, 65

R. v. Hinchey, [1996] 3 S.C.R. 1128 44 33

R. v. Keegstra, [1990] 3 S.C.R. 697 73, 74, 82

R. v. Malmo-Levine, [2003] 3 S.C.R. 571 44, 56, 59

R. v. Namouh, [2009] Q.J. No. 6435, QCCQ 5833 (C.Q.) 84

R. v. Sharpe, [2001] 1 S.C.R. 45 112, 115

R. v. Spence, [2005] 3 S.C.R. 458 91, 92

Reference re Marine Transportation Security Regulations, 2009 FCA 84 234 (F.C.A.) (CanLII) at paras. 33-35

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 73

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 38 S.C.R. 3

U.S.A. v. Cotroni, [1989] 1 S.C.R. 1469 4, 16, 18, 19, 25

U.S.A. v. Kwok, [2001] 1 S.C.R. 532 4

Victoria (City) v. Adams, (2009) 313 D.L.R. (4th) 29 (B.C.C.A.) 40 Wisconsin v. Mitchell, 508 U.S. 476 (1993) 98

Other References

Cohen, Safeguards in and Justifications for Canada’s New Anti- 114 terrorism Act, 14 N.J.C.L. 99 at pp. 121-22

Hall, Jerome, General Principles of Criminal Law (2d ed, 1960) 113

Hitchler, Walter Harrison “Motive As An Essential Element of Crime” 113 (1931) 35 Dickinson Law Review 105

Husak, Douglas “Motive and Criminal Liability” (1989) 8 Crim. Just. 113 Ethics 3

Kaufman, Whitley R.P., “Motive, Intention, And Morality In The 113 Criminal Law” (2003) 28 Crim. Just. Rev. 317

MacDonald and Williams, “Combating Terrorism: Australia’s Criminal 114 Code Since September 11, 2001”, (2007) 16 Griffith L. Rev. 27

Oxford English Dictionary (online version December 2011) “enhance” 52 34

Oxford English Dictionary (online version December 2011) “purpose” 48

Plaxton, Michael “Irruptions of Motive in the War on Terror” (2007) 11 113 Can. Crim. L. Rev. 233

Saul, Ben, Defining Terrorism In International Law (Oxford: Oxford 110 University Press, 2006)

Saul, Ben “The Curious Element of Motive in the Definitions of 87 Terrorism: Essential Ingredient or Criminalizing Thought”, in Andrew Lynch, Edwina MacDonald and George Williams, eds., Law and Liberty in the War on Terror (The Federation Press, Leichhart, NSW, Australia, 2007)

Williams, Glanville, Criminal Law (2d ed, 1961) pp. 48-50 113

Criminal Code Act 1995, [Australia] s. 100.1(1) 108

Protection of Constitutional Democracy Against Terrorist And Related 108 Activities Act, 2004, [South Africa] s.1(1)(xxv)(c)

Terrorism Act 2000, [United Kingdom of Great Britain and Northern 108 Ireland] 2000 c. 11, Part I, s. 1(1)(c)

Terrorism Suppression Act 2002, [New Zealand] Part I, s. 5(2) 108

Commonwealth of Australia, Report of the Security Legislation Review 109 Committee (June 2006)

House of Commons Standing Committee on Public Safety and National 114 Security, “Rights, Limits, Security: A Comprehensive Review Of The Anti-terrorism Act And Related Issues,” (March 2007, Chair: Garry Breitkreuz) at p. 9

Lord Carlile of Berriew Q.C. (Independent Reviewer of Terrorism 87, 109, 116 Legislation) The Definition of Terrorism,(March 2007)

Review of Security and Counter Terrorism Legislation, Parliamentary 109 Joint Committee on Intelligence and Security (December 2006), at para. 5.25

35

PART VII – LEGISLATION

Code criminel Criminal Code L.R.C. (1985), ch. C-46 R.S.C., 1985, c. C-46

83.01 (1) Les définitions qui suivent 83.01 (1) The following definitions apply in this s’appliquent à la présente partie. Part. « activité terroriste » “Canadian” “terrorist activity” « Canadien » « activité terroriste » “Canadian” means a Canadian citizen, a permanent resident within the meaning of a) Soit un acte — action ou omission, commise subsection 2(1) of the Immigration and Refugee au Canada ou à l’étranger — qui, au Canada, Protection Act or a body corporate incorporated constitue une des infractions suivantes : and continued under the laws of Canada or a (i) les infractions visées au paragraphe 7(2) et province. mettant en oeuvre la Convention pour la répression de la capture illicite d’aéronefs, “entity” signée à La Haye le 16 décembre 1970, « entité » (ii) les infractions visées au paragraphe 7(2) et “entity” means a person, group, trust, partnership mettant en oeuvre la Convention pour la or fund or an unincorporated association or répression d’actes illicites dirigés contre la organization. sécurité de l’aviation civile, signée à Montréal le 23 septembre 1971, “listed entity” (iii) les infractions visées au paragraphe 7(3) et « entité inscrite » mettant en oeuvre la Convention sur la prévention et la répression des infractions “listed entity” means an entity on a list contre les personnes jouissant d’une protection established by the Governor in Council under internationale, y compris les agents section 83.05. diplomatiques, adoptée par l’Assemblée générale des Nations Unies le 14 décembre “terrorist activity” 1973, « activité terroriste » (iv) les infractions visées au paragraphe 7(3.1) “terrorist activity” means et mettant en oeuvre la Convention internationale contre la prise d’otages, (a) an act or omission that is committed in or adoptée par l’Assemblée générale des Nations outside Canada and that, if committed in Canada, Unies le 17 décembre 1979, is one of the following offences: (v) les infractions visées aux paragraphes (i) the offences referred to in subsection 7(2) that 7(3.4) ou (3.6) et mettant en oeuvre la implement the Convention for the Suppression of Convention sur la protection physique des Unlawful Seizure of Aircraft, signed at The matières nucléaires, conclue à New York et Hague on December 16, 1970, Vienne le 3 mars 1980, (ii) the offences referred to in subsection 7(2) (vi) les infractions visées au paragraphe 7(2) et that implement the Convention for the 36 mettant en oeuvre le Protocole pour la Suppression of Unlawful Acts against the Safety répression des actes illicites de violence dans of Civil Aviation, signed at Montreal on les aéroports servant à l’aviation civile September 23, 1971, internationale, complémentaire à la (iii) the offences referred to in subsection 7(3) Convention pour la répression d’actes illicites that implement the Convention on the Prevention dirigés contre la sécurité de l’aviation civile, and Punishment of Crimes against signé à Montréal le 24 février 1988, Internationally Protected Persons, including (vii) les infractions visées au paragraphe 7(2.1) Diplomatic Agents, adopted by the General et mettant en oeuvre la Convention pour la Assembly of the United Nations on December répression d’actes illicites contre la sécurité de 14, 1973, la navigation maritime, conclue à Rome le 10 (iv) the offences referred to in subsection 7(3.1) mars 1988, that implement the International Convention (viii) les infractions visées aux paragraphes against the Taking of Hostages, adopted by the 7(2.1) ou (2.2) et mettant en oeuvre le General Assembly of the United Nations on Protocole pour la répression d’actes illicites December 17, 1979, contre la sécurité des plates-formes fixes (v) the offences referred to in subsection 7(3.4) situées sur le plateau continental, conclu à or (3.6) that implement the Convention on the Rome le 10 mars 1988, Physical Protection of Nuclear Material, done at (ix) les infractions visées au paragraphe Vienna and New York on March 3, 1980, 7(3.72) et mettant en oeuvre la Convention (vi) the offences referred to in subsection 7(2) internationale pour la répression des attentats that implement the Protocol for the Suppression terroristes à l’explosif, adoptée par of Unlawful Acts of Violence at Airports Serving l’Assemblée générale des Nations Unies le 15 International Civil Aviation, supplementary to décembre 1997, the Convention for the Suppression of Unlawful (x) les infractions visées au paragraphe 7(3.73) Acts against the Safety of Civil Aviation, signed et mettant en oeuvre la Convention at Montreal on February 24, 1988, internationale pour la répression du (vii) the offences referred to in subsection 7(2.1) financement du terrorisme, adoptée par that implement the Convention for the l’Assemblée générale des Nations Unies le 9 Suppression of Unlawful Acts against the Safety décembre 1999; of Maritime Navigation, done at Rome on March b) soit un acte — action ou omission, commise 10, 1988, au Canada ou à l’étranger : (viii) the offences referred to in subsection 7(2.1) (i) d’une part, commis à la fois : or (2.2) that implement the Protocol for the (A) au nom — exclusivement ou non — d’un Suppression of Unlawful Acts against the Safety but, d’un objectif ou d’une cause de nature of Fixed Platforms Located on the Continental politique, religieuse ou idéologique, Shelf, done at Rome on March 10, 1988, (B) en vue — exclusivement ou non — (ix) the offences referred to in subsection 7(3.72) d’intimider tout ou partie de la population that implement the International Convention for quant à sa sécurité, entre autres sur le plan the Suppression of Terrorist Bombings, adopted économique, ou de contraindre une personne, by the General Assembly of the United Nations un gouvernement ou une organisation nationale on December 15, 1997, and ou internationale à accomplir un acte ou à s’en (x) the offences referred to in subsection 7(3.73) abstenir, que la personne, la population, le that implement the International Convention for gouvernement ou l’organisation soit ou non au the Suppression of the Financing of Terrorism, Canada, adopted by the General Assembly of the United (ii) d’autre part, qui intentionnellement, selon Nations on December 9, 1999, or 37

le cas : (b) an act or omission, in or outside Canada, (A) cause des blessures graves à une personne (i) that is committed ou la mort de celle-ci, par l’usage de la (A) in whole or in part for a political, religious or violence, ideological purpose, objective or cause, and (B) met en danger la vie d’une personne, (B) in whole or in part with the intention of (C) compromet gravement la santé ou la intimidating the public, or a segment of the sécurité de tout ou partie de la population, public, with regard to its security, including its (D) cause des dommages matériels economic security, or compelling a person, a considérables, que les biens visés soient government or a domestic or an international publics ou privés, dans des circonstances telles organization to do or to refrain from doing any qu’il est probable que l’une des situations act, whether the public or the person, mentionnées aux divisions (A) à (C) en government or organization is inside or outside résultera, Canada, and (E) perturbe gravement ou paralyse des (ii) that intentionally services, installations ou systèmes essentiels, (A) causes death or serious bodily harm to a publics ou privés, sauf dans le cadre de person by the use of violence, revendications, de protestations ou de (B) endangers a person’s life, manifestations d’un désaccord ou d’un arrêt de (C) causes a serious risk to the health or safety of travail qui n’ont pas pour but de provoquer the public or any segment of the public, l’une des situations mentionnées aux divisions (D) causes substantial property damage, whether (A) à (C). to public or private property, if causing such damage is likely to result in the conduct or harm Sont visés par la présente définition, referred to in any of clauses (A) to (C), or relativement à un tel acte, le complot, la (E) causes serious interference with or serious tentative, la menace, la complicité après le fait disruption of an essential service, facility or et l’encouragement à la perpétration; il est system, whether public or private, other than as a entendu que sont exclus de la présente result of advocacy, protest, dissent or stoppage définition l’acte — action ou omission — of work that is not intended to result in the commis au cours d’un conflit armé et conduct or harm referred to in any of clauses (A) conforme, au moment et au lieu de la to (C), perpétration, au droit international coutumier ou au droit international conventionnel and includes a conspiracy, attempt or threat to applicable au conflit ainsi que les activités commit any such act or omission, or being an menées par les forces armées d’un État dans accessory after the fact or counselling in relation l’exercice de leurs fonctions officielles, dans la to any such act or omission, but, for greater mesure où ces activités sont régies par d’autres certainty, does not include an act or omission règles de droit international. that is committed during an armed conflict and that, at the time and in the place of its « Canadien » commission, is in accordance with customary “Canadian” international law or conventional international law applicable to the conflict, or the activities « Canadien » Citoyen canadien, résident undertaken by military forces of a state in the permanent au sens du paragraphe 2(1) de la Loi exercise of their official duties, to the extent that sur l’immigration et la protection des réfugiés those activities are governed by other rules of ou personne morale constituée ou prorogée international law. sous le régime d’une loi fédérale ou 38

provinciale. “terrorist group” « groupe terroriste » « entité » “terrorist group” means “entity” « entité » Personne, groupe, fiducie, société de (a) an entity that has as one of its purposes or personnes ou fonds, ou organisation ou activities facilitating or carrying out any terrorist association non dotée de la personnalité activity, or morale. (b) a listed entity,

« entité inscrite » and includes an association of such entities. “listed entity” « entité inscrite » Entité inscrite sur la liste For greater certainty établie par le gouverneur en conseil en vertu de l’article 83.05. (1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of « groupe terroriste » “terrorist group” the definition “terrorist activity” in subsection (1) unless it constitutes an act or omission that « groupe terroriste » satisfies the criteria of that paragraph. a) Soit une entité dont l’un des objets ou l’une For greater certainty des activités est de se livrer à des activités terroristes ou de les faciliter; (1.2) For greater certainty, a suicide bombing is b) soit une entité inscrite. an act that comes within paragraph (a) or (b) of the definition “terrorist activity” in subsection Est assimilé à un groupe terroriste un groupe (1) if it satisfies the criteria of that paragraph. ou une association formé de groupes terroristes au sens de la présente définition. Facilitation

Interprétation (2) For the purposes of this Part, facilitation shall be construed in accordance with subsection (1.1) Il est entendu que l’expression d’une 83.19(2). pensée, d’une croyance ou d’une opinion de nature politique, religieuse ou idéologique 2001, c. 41, ss. 4, 126; n’est visée à l’alinéa b) de la définition de 2010, c. 19, s. 1. « activité terroriste » au paragraphe (1) que si elle constitue un acte — action ou omission — répondant aux critères de cet alinéa.

Interprétation

(1.2) Il est entendu que l’attentat suicide à la bombe est un acte visé aux alinéas a) ou b) de la définition de « activité terroriste » au paragraphe (1) s’il répond aux critères prévus à 39 l’alinéa en cause.

Facilitation

(2) Pour l’application de la présente partie, 83.03 Every one who, directly or indirectly, faciliter s’interprète en conformité avec le collects property, provides or invites a person to paragraphe 83.19(2). provide, or makes available property or financial or other related services 2001, ch. 41, art. 4 et 126; 2010, ch. 19, art. 1. (a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting 83.03 Est coupable d’un acte criminel passible any person who is facilitating or carrying out d’un emprisonnement maximal de dix ans such an activity, or quiconque, directement ou non, réunit des (b) knowing that, in whole or part, they will be biens ou fournit — ou invite une autre used by or will benefit a terrorist group, personne à le faire — ou rend disponibles des biens ou des services financiers ou connexes : is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 a) soit dans l’intention de les voir utiliser — ou years. en sachant qu’ils seront utilisés — , en tout ou en partie, pour une activité terroriste, pour 2001, c. 41, s. 4. faciliter une telle activité ou pour en faire bénéficier une personne qui se livre à une telle activité ou la facilite; b) soit en sachant qu’ils seront utilisés, en tout 83.18 (1) Every one who knowingly participates ou en partie, par un groupe terroriste ou qu’ils in or contributes to, directly or indirectly, any bénéficieront, en tout ou en partie, à celui-ci. activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to 2001, ch. 41, art. 4. facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. 83.18 (1) Est coupable d’un acte criminel passible d’un emprisonnement maximal de dix Prosecution ans quiconque, sciemment, participe à une activité d’un groupe terroriste, ou y contribue, (2) An offence may be committed under directement ou non, dans le but d’accroître la subsection (1) whether or not capacité de tout groupe terroriste de se livrer à une activité terroriste ou de la faciliter. (a) a terrorist group actually facilitates or carries out a terrorist activity; Poursuite (b) the participation or contribution of the accused actually enhances the ability of a (2) Pour que l’infraction visée au paragraphe terrorist group to facilitate or carry out a terrorist (1) soit commise, il n’est pas nécessaire : activity; or (c) the accused knows the specific nature of any 40

a) qu’une activité terroriste soit effectivement terrorist activity that may be facilitated or carried menée ou facilitée par un groupe terroriste; out by a terrorist group. b) que la participation ou la contribution de l’accusé accroisse effectivement la capacité Meaning of participating or contributing d’un groupe terroriste de se livrer à une activité terroriste ou de la faciliter; (3) Participating in or contributing to an activity c) que l’accusé connaisse la nature exacte de of a terrorist group includes toute activité terroriste susceptible d’être menée ou facilitée par un groupe terroriste. (a) providing, receiving or recruiting a person to receive training; Participation ou contribution (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or (3) La participation ou la contribution à une in association with a terrorist group; activité d’un groupe terroriste s’entend (c) recruiting a person in order to facilitate or notamment : commit (i) a terrorism offence, or a) du fait de donner ou d’acquérir de la (ii) an act or omission outside Canada that, if formation ou de recruter une personne à une committed in Canada, would be a terrorism telle fin; offence; b) du fait de mettre des compétences ou une (d) entering or remaining in any country for the expertise à la disposition d’un groupe benefit of, at the direction of or in association terroriste, à son profit ou sous sa direction, ou with a terrorist group; and en association avec lui, ou d’offrir de le faire; (e) making oneself, in response to instructions c) du fait de recruter une personne en vue de from any of the persons who constitute a terrorist faciliter ou de commettre une infraction de group, available to facilitate or commit terrorisme ou un acte à l’étranger qui, s’il était (i) a terrorism offence, or commis au Canada, constituerait une telle (ii) an act or omission outside Canada that, if infraction; committed in Canada, would be a terrorism d) du fait d’entrer ou de demeurer dans un pays offence. au profit ou sous la direction d’un groupe terroriste, ou en association avec lui; Factors e) du fait d’être disponible, sous les instructions de quiconque fait partie d’un (4) In determining whether an accused groupe terroriste, pour faciliter ou commettre participates in or contributes to any activity of a une infraction de terrorisme ou un acte à terrorist group, the court may consider, among l’étranger qui, s’il était commis au Canada, other factors, whether the accused constituerait une telle infraction. (a) uses a name, word, symbol or other Facteurs representation that identifies, or is associated with, the terrorist group; (4) Pour déterminer si l’accusé participe ou (b) frequently associates with any of the persons contribue à une activité d’un groupe terroriste, who constitute the terrorist group; le tribunal peut notamment prendre en compte (c) receives any benefit from the terrorist group; les faits suivants : or (d) repeatedly engages in activities at the a) l’accusé utilise un nom, un mot, un symbole instruction of any of the persons who constitute ou un autre signe qui identifie le groupe ou y 41 est associé; the terrorist group. b) il fréquente quiconque fait partie du groupe terroriste; 2001, c. 41, s. 4. c) il reçoit un avantage du groupe terroriste; d) il se livre régulièrement à des activités selon les instructions d’une personne faisant partie du groupe terroriste.

2001, ch. 41, art. 4. 83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any 83.21 (1) Est coupable d’un acte criminel activity for the benefit of, at the direction of or in passible d’un emprisonnement à perpétuité association with a terrorist group, for the purpose quiconque, sciemment, charge directement ou of enhancing the ability of any terrorist group to indirectement une personne de se livrer à une facilitate or carry out a terrorist activity, is guilty activité au profit ou sous la direction d’un of an indictable offence and liable to groupe terroriste, ou en association avec lui, imprisonment for life. dans le but d’accroître la capacité de tout groupe terroriste de se livrer à une activité Prosecution terroriste ou de la faciliter. (2) An offence may be committed under Poursuite subsection (1) whether or not

(2) Pour que l’infraction visée au paragraphe (a) the activity that the accused instructs to be (1) soit commise, il n’est pas nécessaire : carried out is actually carried out; (b) the accused instructs a particular person to a) que l’activité à laquelle l’accusé charge carry out the activity referred to in paragraph (a); quiconque de se livrer soit effectivement mise (c) the accused knows the identity of the person à exécution; whom the accused instructs to carry out the b) que l’accusé charge une personne en activity referred to in paragraph (a); particulier de se livrer à l’activité; (d) the person whom the accused instructs to c) que l’accusé connaisse l’identité de la carry out the activity referred to in paragraph (a) personne qu’il charge de se livrer à l’activité; knows that it is to be carried out for the benefit d) que la personne chargée par l’accusé de se of, at the direction of or in association with a livrer à l’activité sache que celle-ci est censée terrorist group; être menée au profit ou sous la direction d’un (e) a terrorist group actually facilitates or carries groupe terroriste, ou en association avec lui; out a terrorist activity; e) qu’une activité terroriste soit effectivement (f) the activity referred to in paragraph (a) menée ou facilitée par un groupe terroriste; actually enhances the ability of a terrorist group f) que l’activité visée à l’alinéa a) accroisse to facilitate or carry out a terrorist activity; or effectivement la capacité d’un groupe terroriste (g) the accused knows the specific nature of any de se livrer à une activité terroriste ou de la terrorist activity that may be facilitated or carried faciliter; out by a terrorist group. g) que l’accusé connaisse la nature exacte de toute activité terroriste susceptible d’être 2001, c. 41, s. 4. menée ou facilitée par un groupe terroriste. 42

2001, ch. 41, art. 4.

Code criminel Criminal Code L.R.C. (1985), ch. C-46 R.S.C., 1985, c. C-46

467.11 (1) Est coupable d’un acte criminel et 467.11 (1) Every person who, for the purpose of passible d’un emprisonnement maximal de enhancing the ability of a criminal organization cinq ans quiconque sciemment, par acte ou to facilitate or commit an indictable offence omission, participe à une activité d’une under this or any other Act of Parliament, organisation criminelle ou y contribue dans le knowingly, by act or omission, participates in or but d’accroître la capacité de l’organisation de contributes to any activity of the criminal faciliter ou de commettre un acte criminel organization is guilty of an indictable offence prévu à la présente loi ou à une autre loi and liable to imprisonment for a term not fédérale. exceeding five years.

(2) Dans une poursuite pour l’infraction (2) In a prosecution for an offence under prévue au paragraphe (1), le poursuivant n’a subsection (1), it is not necessary for the pas à établir les faits suivants : prosecutor to prove that

a) l’organisation criminelle a réellement (a) the criminal organization actually facilitated facilité ou commis un acte criminel; or committed an indictable offence; b) la participation ou la contribution de l’accusé a accru la capacité de (b) the participation or contribution of the l’organisation criminelle de faciliter ou accused actually enhanced the ability of the de commettre un acte criminel; criminal organization to facilitate or commit an indictable offence; c) l’accusé connaissait la nature exacte d’un acte criminel susceptible d’avoir (c) the accused knew the specific nature of any été facilité ou commis par indictable offence that may have been facilitated l’organisation criminelle; or committed by the criminal organization; or d) l’accusé connaissait l’identité de quiconque fait partie de l’organisation (d) the accused knew the identity of any of the criminelle. persons who constitute the criminal organization.

Note marginale :Facteurs Marginal note:Factors (3) Pour déterminer si l’accusé participe ou (3) In determining whether an accused contribue à une activité d’une organisation participates in or contributes to any activity of a criminelle, le tribunal peut notamment prendre criminal organization, the Court may consider, en compte les faits suivants : among other factors, whether the accused a) l’accusé utilise un nom, un mot, un symbole ou une autre représentation qui (a) uses a name, word, symbol or other 43

identifie l’organisation criminelle ou y representation that identifies, or is associated est associée; with, the criminal organization; b) il fréquente quiconque fait partie de l’organisation criminelle; (b) frequently associates with any of the persons who constitute the criminal organization; c) il reçoit des avantages de l’organisation criminelle; (c) receives any benefit from the criminal d) il exerce régulièrement des activités organization; or selon les instructions d’une personne faisant partie de l’organisation (d) repeatedly engages in activities at the criminelle. instruction of any of the persons who constitute the criminal organization.