Participating in Terrorist Activity (Offence): Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
m Text replacement - "}} CCC]" to "}}"
Tags: Mobile edit Mobile web edit
m Text replacement - "|[{{CCCSec|" to "|{{CCCSec2|"
Line 70: Line 70:
{{LegHistory10s|2019, c. 25}}, s. 20.
{{LegHistory10s|2019, c. 25}}, s. 20.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.18}}
|{{CCCSec2|83.18}}
|{{NoteUp|83.18|1|2}}
|{{NoteUp|83.18|1|2}}
}}
}}
Line 81: Line 81:
{{LegHistory10s|2019, c. 25}}, s. 21.
{{LegHistory10s|2019, c. 25}}, s. 21.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.181}}
|{{CCCSec2|83.181}}
|{{NoteUp|83.181}}
|{{NoteUp|83.181}}
}}
}}
Line 96: Line 96:


{{LegHistory00s|2001, c. 41}}, s. 4.
{{LegHistory00s|2001, c. 41}}, s. 4.
|[{{CCCSec|83.19}}
|{{CCCSec2|83.19}}
|{{NoteUp|83.19|1|2}}
|{{NoteUp|83.19|1|2}}
}}
}}
Line 106: Line 106:
2013, c. 9, s. 7.
2013, c. 9, s. 7.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.191}}
|{{CCCSec2|83.191}}
|{{NoteUp|83.191}}
|{{NoteUp|83.191}}
}}
}}
Line 115: Line 115:


{{LegHistory00s|2001, c. 41}}, s. 4.
{{LegHistory00s|2001, c. 41}}, s. 4.
|[{{CCCSec|83.2}}
|{{CCCSec2|83.2}}
|{{NoteUp|83.2}}
|{{NoteUp|83.2}}
}}
}}
Line 124: Line 124:


2013, c. 9, s. 8.
2013, c. 9, s. 8.
|[{{CCCSec|83.201}}
|{{CCCSec2|83.201}}
|{{NoteUp|83.201}}
|{{NoteUp|83.201}}
}}
}}
Line 133: Line 133:


2013, c. 9, s. 8.
2013, c. 9, s. 8.
|[{{CCCSec|83.202}}
|{{CCCSec2|83.202}}
|{{NoteUp|83.202}}
|{{NoteUp|83.202}}
}}
}}
Line 153: Line 153:
{{LegHistory00s|2001, c. 41}}, s. 4.
{{LegHistory00s|2001, c. 41}}, s. 4.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.21}}
|{{CCCSec2|83.21}}
|{{NoteUp|83.21|1|2}}
|{{NoteUp|83.21|1|2}}
}}
}}
Line 170: Line 170:
{{LegHistory00s|2001, c. 41}}, s. 4.
{{LegHistory00s|2001, c. 41}}, s. 4.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.22}}
|{{CCCSec2|83.22}}
|{{NoteUp|83.22|1|2}}
|{{NoteUp|83.22|1|2}}
}}
}}
Line 184: Line 184:
{{LegHistory10s|2019, c. 13}}, s. 143.
{{LegHistory10s|2019, c. 13}}, s. 143.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.221}}
|{{CCCSec2|83.221}}
|{{NoteUp|83.221|1|2}}
|{{NoteUp|83.221|1|2}}
}}
}}
Line 201: Line 201:
{{LegHistory10s|2019, c. 25}}, s. 22.
{{LegHistory10s|2019, c. 25}}, s. 22.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.23}}
|{{CCCSec2|83.23}}
|{{NoteUp|83.23|1|2}}
|{{NoteUp|83.23|1|2}}
}}
}}
Line 338: Line 338:
{{LegHistory00s|2001, c. 41}}, s. 4;
{{LegHistory00s|2001, c. 41}}, s. 4;
{{LegHistory00s|2019, c. 25}}, s. 20.
{{LegHistory00s|2019, c. 25}}, s. 20.
|[{{CCCSec|83.18}}
|{{CCCSec2|83.18}}
|{{NoteUp|83.18|3|4}}
|{{NoteUp|83.18|3|4}}
}}
}}
Line 425: Line 425:
{{LegHistory00s|2001, c. 41}}, s. 4.
{{LegHistory00s|2001, c. 41}}, s. 4.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|83.26}}
|{{CCCSec2|83.26}}
|{{NoteUp|83.26}}
|{{NoteUp|83.26}}
}}
}}

Revision as of 21:27, 27 April 2023

This page was last substantively updated or reviewed January 2020. (Rev. # 84420)


Participating in Terrorist Activity
s. 83.19, 83.2, 83.21, and 83.22 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1) (see 742.1(d))

(* varies)
Minimum None
Maximum 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

See also: Terrorism Offences

Offences relating to participating in terrorist activity are found in Part II.1 of the Criminal Code relating to "Terrorism".

Pleadings
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)		 Preliminary Inquiry
s. 83.18 [participation in activity of terrorist group],
s. 83.181 [leaving Canada to participate in activity of terrorist group] and
s. 83.23 [concealing person who carried out terrorist activity]		 Indictable Offence(s) (under 14 years max)
s. 83.19 [facilitating terrorist activity]
s. 83.201 [leaving Canada to commit offence for terrorist group]
s. 83.202 [leaving Canada to commit offence that is terrorist activity]		 Indictable Offence(s) (14 years max)
s. 83.21 [instructing to carry out activity for terrorist group]
s. 83.22 [instructing to carry out terrorist activity]		 Indictable Offence(s) (life max)

Offences under s. 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], and 83.22 [instructing to carry out terrorist activity] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], and 83.22 [instructing to carry out terrorist activity], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

There will be a reverse onus under s. 515(6)(a)(ii) for charges under s. 83.02 to 83.04 and 83.18 to 83.23 or "otherwise is alleged to be a terrorism offence".

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 83.18 [participation in activity of terrorist group],
s. 83.19 [facilitating terrorist activity],
s. 83.2 [commission of offence for terrorist group],
s. 83.21 [instructing to carry out activity for terrorist group],
s. 83.22 [instructing to carry out terrorist activity] and
s. 83.23 [concealing person who carried out terrorist activity]

Offences under s. 83.18 [participation in activity of terrorist group], 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], 83.22 [instructing to carry out terrorist activity] and 83.23 [concealing person who carried out terrorist activity] are designated offences eligible for wiretap under s. 183.

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 require the consent of the Attorney General to prosecute.[1]

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

  1. ↑ Section 83.24 states "Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General."

Offence Wording

Participation in activity of terrorist group

83.18 (1) Every person who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Prosecution

(2) An offence may be committed under subsection (1) [participation in activity of terrorist group] whether or not

(a) a terrorist group actually facilitates or carries out a terrorist activity;
(b) the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
(c) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

[omitted (3) and (4)]
2001, c. 41, s. 4; 2019, c. 25, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.18(1) and (2)

Leaving Canada to participate in activity of terrorist group

83.181 Every person who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1) [participation in activity of terrorist group] is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

2013, c. 9, s. 6; 2019, c. 25, s. 21.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.181

Facilitating terrorist activity

83.19 (1) Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Facilitation

(2) For the purposes of this Part, a terrorist activity is facilitated whether or not

(a) the facilitator knows that a particular terrorist activity is facilitated;
(b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or
(c) any terrorist activity was actually carried out.

2001, c. 41, s. 4.

– CCC (CanLII), (DOJ)

Note up: 83.19(1) and (2)

Leaving Canada to facilitate terrorist activity

83.191 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.19(1) [facilitating terrorist activty – offence] is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
2013, c. 9, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.191

Commission of offence for terrorist group

83.2 Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.

2001, c. 41, s. 4.

– CCC (CanLII), (DOJ)

Note up: 83.2

Leaving Canada to commit offence for terrorist group

83.201 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2013, c. 9, s. 8.

– CCC (CanLII), (DOJ)

Note up: 83.201

Leaving Canada to commit offence that is terrorist activity

83.202 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2013, c. 9, s. 8.

– CCC (CanLII), (DOJ)

Note up: 83.202

Instructing to carry out activity for terrorist group

83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) An offence may be committed under subsection (1) [instructing to carry out activity for terrorist group] whether or not

(a) the activity that the accused instructs to be carried out is actually carried out;
(b) the accused instructs a particular person to carry out the activity referred to in paragraph (a);
(c) the accused knows the identity of the person whom the accused instructs to carry out the activity referred to in paragraph (a);
(d) the person whom the accused instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried out for the benefit of, at the direction of or in association with a terrorist group;
(e) a terrorist group actually facilitates or carries out a terrorist activity;
(f) the activity referred to in paragraph (a) actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
(g) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

2001, c. 41, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.21(1) and (2)

Instructing to carry out terrorist activity

83.22 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) An offence may be committed under subsection (1) [instructing to carry out terrorist activity] whether or not

(a) the terrorist activity is actually carried out;
(b) the accused instructs a particular person to carry out the terrorist activity;
(c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or
(d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.


2001, c. 41, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.22(1) and (2)

Counselling commission of terrorism offence

83.221 (1) Every person who counsels another person to commit a terrorism offence without identifying a specific terrorism offence is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

Application

(2) An offence may be committed under subsection (1) [counselling commission of terrorism offence – offence] whether or not a terrorism offence is committed by the person who is counselled.

2015, c. 20, s. 16; 2019, c. 13, s. 143.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.221(1) and (2)

Concealing person who carried out terrorist activity

83.23 (1) Every person who knowingly harbours or conceals another person whom they know to be a person who has carried out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to imprisonment for life; and
(b) an indictable offence and liable to imprisonment for a term of not more than 10 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to any other punishment.
Concealing person who is likely to carry out terrorist activity

(2) Every person who knowingly harbours or conceals another person whom they know to be a person who is likely to carry out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

2001, c. 41, s. 4; 2013, c. 9, s. 9; 2019, c. 25, s. 22.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.23(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges


Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Participation in activity of terrorist group under s. 83.18 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "participates in or contributes to, directly or indirectly, any activity";
  5. ☐ the activity was of a "terrorist group";
  6. ☐ the participation was done "knowingly";
  7. ☐ the prohibited conduct was "for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity".

Proving Leaving Canada to participate in activity of terrorist group under s. 83.181 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada"
  5. ☐ the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1)"

Proving Facilitating terrorist activity under s. 83.19 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "facilitates a terrorist activity";
  5. ☐ the prohibited conduct was done "knowingly".

Proving Leaving Canada to facilitate terrorist activity under s. 83.191 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada"; and
  5. ☐ the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.19(1)".

Proving Commission of offence for terrorist group under s. 83.2 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "commits an indictable offence under this or any other Act of Parliament"; and
  5. ☐ the prohibited conduct was "for the benefit of, at the direction of or in association with a terrorist group".

Proving Leaving Canada to commit offence for terrorist group under s. 83.201 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada";
  5. ☐ the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with" a group; and
  6. ☐ the group was a "terrorist group".

Proving Leaving Canada to commit offence that is terrorist activity under s. 83.202 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada";
  5. ☐ the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity".

Proving Instructing to carry out activity for terrorist group under s. 83.21 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with" a group;
  5. ☐ the group is a "terrorist group";
  6. ☐ the prohibited conduct was "for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity".
  7. ☐ the prohibited conduct was done "knowingly".

Proving Instructing to carry out terrorist activity under s. 83.22 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "instructs, directly or indirectly, any person to carry out" an activity;
  5. ☐ the activity is "a terrorist activity"; and
  6. ☐ the prohibited conduct was done knowingly.

Interpretation of the Offence

This section does not create inchoate liability rather it is a substantive offence in-line with conspiracy and counselling.[1]

Section 83.18 prohibits "actions that clearly pose a significant danger to the community" by "criminaliz[ing] only participation or contribution which is done for the specific purpose of improving the terrorist groups ability to facilitate or carry out terrorist activity”.[2]

The purpose of the offence is to suppress terrorist activity.[3]

Constitutionality

Section 83.18 does not violate s. 7 of the Charter. [4]

  1. ↑ Hadarajah
  2. ↑ Hadarajah
  3. ↑ R v Ansari, 2015 ONCA 575 (CanLII), 330 CCC (3d) 105, per Watt JA, at para 168
    R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA{{, at para 60
  4. ↑ United States of America v Nadarajah, 2010 ONCA 859 (CanLII), 266 CCC (3d) 447, per curiam

"Participating or Contributing"

Participation in activity of terrorist group

83.18
[omitted (1) and (2)]

Meaning of participating or contributing

(3) Participating in or contributing to an activity of a terrorist group includes

(a) providing, receiving or recruiting a person to receive training;
(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;
(c) recruiting a person in order to facilitate or commit
(i) a terrorism offence, or
(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence;
(d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and
(e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit
(i) a terrorism offence, or
(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.
Factors

(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group;
(b) frequently associates with any of the persons who constitute the terrorist group;
(c) receives any benefit from the terrorist group; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group.

2001, c. 41, s. 4; 2019, c. 25, s. 20.

– CCC (CanLII), (DOJ)

Note up: 83.18(3) and (4)

"for the benefit of", "at the direction of" or "in association with"

The meaning of these three modes of commission of a prohibited act should be given their normal, natural, everyday meaning, and share the common objective.[1]

Where these modes are listed, it is only necessary that one of the three be proven.[2]

The phrase "in association with" does not require the accused to be a member of the group. However, membership is a factor to determine whether the relationship was sufficiently proximate to the group.[3]

  1. ↑ R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA{{, at para 60
  2. ↑ Ali, ibid., at para 60
    R v Venneri, 2012 SCC 33 (CanLII), [2012] 2 SCR 211, per Fish J, at para 53
  3. ↑ Venneri, ibid., at para 56

"Terrorist Activity", "terrorist group", "terrorism offence"

See Terrorism Definitions

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1) [SPIO]		 Victim Queried
for Interest in Agreement
s. 606(4.2) [5+ years]		 Victim Notice
for Restitution
s. 737.1		 Victim Notice
of Impact Statement
s. 722(2)
s. 83.18,
s. 83.19,
s. 83.2,
s. 83.21,
s. 83.22 and
s. 83.23 [concealing person who carried out terrorist activity]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
see also Terrorism Sentencing for further principles
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 83.18 [participation in activity of terrorist group]
s. 83.181 [leaving Canada to participate in activity of terrorist group]
s. 83.23 [concealing person who carried out terrorist activity]		 N/A 10 years incarceration
83.221 [advocating or promoting commission of terrorism offences] N/A 5 years incarceration
s. 83.19 [facilitating terrorist activity],
s. 83.191 [leaving Canada to facilitate terrorist activity]
s. 83.201 [leaving Canada to commit offence for terrorist group] and
s. 83.202 [leaving Canada to commit offence that is terrorist activity]		 N/A 14 years incarceration
s. 83.2 [commission of offence for terrorist group],
s. 83.21 [instructing to carry out activity for terrorist group], and
s. 83.22 [instructing to carry out terrorist activity]		 N/A life incarceration

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 are straight indictable. The maximum penalty is 5 years incarceration [s. 83.221], 10 years incarceration [s. 83.18 and 83.23], 14 years incarceration [s. 83.19, 83.191, 83.201, 83.202] or life incarceration [83.2, 83.21, or 83.22].

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 83.19 [facilitating terrorist activity],
s. 83.2 [commission of offence for terrorist group],
s. 83.21 [instructing to carry out activity for terrorist group] and
s. 83.22 [instructing to carry out terrorist activity]		 N/A
s. 83.18 [participation in activity of terrorist group] and
s. 83.23 [concealing person who carried out terrorist activity]		 N/A

If convicted under s. 83.19, 83.2, 83.21, and 83.22 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22, and 83.23 are ineligible for a conditional sentence order under s. 742.1(d), as it is a terrorism offence or criminal organization offence, when prosecuted by indictment, for which the maximum term of imprisonment is 10 years or more.

Consecutive Sentences

Under s. 83.26 sentences must be served consecutive to any other sentence.

Sentences to be served consecutively

83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 [financing of terrorism offences] and 83.18 to 83.23 [participating, facilitating, instructing and harbouring terrorist offences] shall be served consecutively to

(a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events; and
(b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.

2001, c. 41, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.26

Principles

The imposition of "life sentences should not be viewed as exceptional for terrorists who actively participate in plots that, to their knowledge, are designed to or are likely to result in the indiscriminate killing of innocent human beings".[1]

  1. ↑ R v Amara, 2010 ONCA 858 (CanLII), 266 CCC (3d) 422, at para 18

Ranges

see also: Participating in Terrorist Activity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23
  • For offences under s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23, as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
Weapons Prohibition Orders s. 83.18, 83.19, 83.2, 83.21 or 83.22
Delayed Parole Order s. 83.18, 83.19, 83.2, 83.21, or 83.22
  • Periods of imprisonment of 2 years or more for convictions under s. 83.18, 83.19, 83.2, 83.21, or 83.22 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

v • e
 
Terrorism Offences
Offences / Sentencing
Retrieved from "https://criminalnotebook.ca/index.php?title=Participating_in_Terrorist_Activity_(Offence)&oldid=84420"