JURIST Guest Columnist Kent Roach of the University Toronto Faculty of Law says that proceedings against the 17 Canadian men and youths recently charged with terrorism-related offenses in Ontario will put Canada's new Anti-Terrorism Act to its first real test…

The arrest of twelve adults and five youths on terrorism charges in Toronto has resulted in world-wide attention on Canada’s anti-terrorism efforts. The allegations are shocking. They include claims that the men tried to purchase three tons of ammonium nitrate to use in truck bombs and that they trained to prepare for terrorism north of Toronto.

The arrests followed an extensive two year investigation by the combined forces of the Canadian Security Intelligence Service, the Royal Canadian Mounted Police and various police services in the Toronto area. All of these organizations are represented in an Integrated National Security Enforcement Team created in 2002.

The men have been charged with a variety of crimes under the Anti-Terrorism Act that was added with considerable controversy to Canada’s Criminal Code in late 2001. Only one other person, Mohammad Momin Khawaja, has been charged under the new law. He was charged in March, 2004 and his trial has yet to be held. The result is that the new Anti-Terrorism Act remains untested.

Prior to these charges, Canada had mainly used immigration law powers against suspected terrorists, including five non-citizens suspected of terrorism. Canadian authorities had used an immigration law procedure known as a security certificate which can apply to non-citizens if there are reasonable grounds to believe they were a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism and prohibits disclosure of information to the detainee that would injure national security or the safety of any person. The seventeen persons, mainly teens and those in the early twenties, charged in Toronto, however, mainly grew up in Canada and most are Canadian citizens, so the immigration law approach was not an option that could be used.

All twelve adults face charges under s.83.18(1) of the Criminal Code which makes it a crime punishable for up to ten years to knowingly participate in or contribute to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to carry out a terrorist activity. This crime was created as an alternative to crimes of membership in a terrorist organization that exist in the United Kingdom and other jurisdictions. The fact that this crime was charged against all the suspects suggests that the participation crime might be used in Canada as the functional equivalent to the American crime of providing material support for terrorism.

The participation offence is defined broadly under s.83.18(3) of the Criminal Code to include both providing and receiving training and also recruiting a person to receive training and offering to provide training. At the same time, the prosecution has a double intent requirement that requires proof of 1) knowing participation in the terrorist group and 2) acting for the purpose of enhancing the ability of any terrorist group to carry out a terrorist activity.

Terrorist activities are defined under s.83.01 of the Criminal Code to include the intentional causing of death or serious bodily harm by violence, the intentional endangering of life and the intentional causing of substantial property damage that is likely to cause death, serious bodily harm or endanger life.

Importantly, a terrorist activity includes a conspiracy, attempt, threat or counselling of any action that if completed would constitute a terrorist activity. In this way, people can be guilty of terrorist activities that involve threats, attempts, conspiracy or counselling, but not the actual commission of an act of terrorism. In essence, the definition of terrorist activities incorporates other inchoate offences in the Criminal Code.

In addition, a terrorist activity must be committed for a political, religious or ideological purpose and done with the intention of intimidating the public with regard to its security or compelling a person, government or organization to act. This will require the prosecution to introduce and prove evidence about the religious or political motives of the accused, all of whom are Muslim. This will require the judge to admit evidence about the accused’s politics and religion regardless of the prejudicial effect it may have on the jury.

In determining whether an accused has participated or contributed to a terrorist group, the court under section 83.18(4) may also consider a variety of factors including the use of a name or symbol associated with a terrorist group, frequent association with any person in a terrorist group, receipt of a benefit from the terrorist group or repeatedly engaging in activities at the instruction of the terrorist group.

Finally, a terrorist group is defined either as an entity that has been listed by the government or as an entity that has the facilitating or carrying out of terrorist activities as one of its purposes or activities under s.83.01 of the Criminal Code. There are no reported links between the accused and listed terrorist groups so the government may have to prove the existence of a terrorist group.

Should the accused elect trial by jury, the jury charge on the participation offence will be quite complex and require the prosecutor to prove various forms of intent and participation both in relation to the offences and the included and complex concepts of a terrorist activity and a terrorist group.

Two of the men arrested, including one who is a landed immigrant from Somalia, were already in prison serving two year sentences for attempting to smuggle firearms into Canada from the United States. Some of the men also face charges of providing prohibited weapons as a form of property with the intent or knowledge that they be used to facilitate or carry out a terrorist activity or knowing that they will be used or will benefit a terrorist group. As with the participation charge, the providing property offences under s.83.03 of the Criminal Code incorporate the definition of terrorist activities and terrorist groups under s.83.01 and this offence also carries a maximum of ten years imprisonment.

Finally, some of the men, including the alleged ringleader, face explosive and importing weapons offences that have been charged under s.83.2 of the Criminal Code which provides a separate offence of committing an indictable offence for the benefit of, at the direction of or in association with a terrorist group. This offence is significant because it is subject to a maximum penalty of life imprisonment.

The prosecutors have decided to test the new Anti-Terrorism Act with these arrests and charges. Both the s
.83.03 providing property and the s. 83.18 participation offence could be challenged under the Canadian Charter of Rights and Freedoms on grounds of vagueness and overbreadth, but Canadian courts have upheld the vast majority of laws challenged on this basis. These offences should also survive Charter scrutiny because of its clear intent requirement.

The section 83.2 offence could be challenged on the basis that it does not on its face require intent beyond the intent required for the underlying explosive and weapons offence. The accused could argue that because of the stigma and punishment of this terrorism offence that the prosecutor should have to establish that the accused intentionally or knowingly committed the offence for purposes of terrorism and point to cases that have required such fault levels for murder and war crimes. The prosecutor could argue that the offence does not require such a high level of fault and point to other cases in which the courts have not required fault in relation to all elements of the offence.

It is also possible that the accused could raise an entrapment defence in relation to a reported controlled purchase of ammonium nitrate, but they would have to establish either that the police did not have a reasonable suspicion that they were engaged in criminal activity or were not conducting a bona fide inquiry when they offered the accused an opportunity to commit a crime or that the police actually induced the commission of the crime. On the known facts, an entrapment defence seems unlikely to succeed.

The case may not raise the issue of whether electronic surveillance conducted by the Canadian Security Intelligence Service or the Communications Security Establishment is admissible in a criminal trial because the RCMP was brought into the case in November 2004 and the crimes are alleged to occur in 2005 and 2006. In other words, electronic surveillance conducted in this case was likely authorized by a judge on reasonable grounds under the Criminal Code. If security intelligence intercepts were used, however, this will raise the question of whether electronic surveillance that was not obtained under a warrant issued on probable cause is admissible in a criminal trial.

It is not known whether the accused have been subject to interrogation or have made statements. Any statements provided to the police could be challenged on grounds that they were involuntary or that the accused had not been provided a reasonable opportunity to contact counsel. There are extra requirements under section 146 of the Youth Criminal Justice Act with respect to the admissibility of any statements taken from the five suspects who are under eighteen years of age. Lawyers for the accused have raised concerns about lack of access to their clients and detention conditions.

Another factor in the prosecution may be the accused’s right to disclosure of all relevant evidence in the possession of the police. In the 1990’s, one terrorism prosecution was stopped in Canada after the courts held that the accused were entitled to disclosure of the identity of a key informer.

The Attorney General of Canada who is prosecuting the case can oppose the disclosure of evidence on the basis that its disclosure would be injurious to international relations, national defence or national security. Such issues will not be decided by the trial judge but rather in the Federal Court of Canada which can balance the public interest in disclosure and non-disclosure and can prohibit or place conditions on disclosure. The Attorney General of Canada can also issue a certificate to block disclosure even if disclosure is authorized by the Federal Court.

Any restrictions on disclosure, however, will eventually return to the trial judge who under s.38.14 of the Canada Evidence Act can make any order he or she consider necessary to protect the rights of the accused to a fair trial so long as it respects the restrictions that either the Federal Court or the Attorney General has placed on disclosure. This order can include a stay of proceedings.

The prosecution process will likely be long and challenging. Canadian courts have traditionally been much more willing to issue publication bans especially on pre-trial proceedings where there may be a jury than American courts. Little is known about the one other prosecution under the Anti-Terrorism Act that was started with an arrest in March, 2004 but with no trial scheduled until January 2007, and defence lawyers have raised concerns about the adequacy of disclosure and have recently announced they will challenge the offences under the Canadian Charter of Rights and Freedoms. The resolution of the Toronto arrests are not likely to be known for some time.

Kent Roach is a professor at the University of Toronto Faculty of Law and the author of September 11: Consequences for Canada
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