- includes Security Of Canada Information Sharing Act: Public Framework
- Includes the Passenger Protect Inquiries Office
Part 3 of the Act amended the Criminal Code to:
- Make it easier for peace officers to apply to a court to have reasonable conditions imposed on individuals to prevent the carrying out of terrorist activity and the commission of terrorism offences;
- Create a new offence that criminalizes the advocacy or promotion of the commission of terrorism offences in general;
- Give the courts the authority to order the seizure and forfeiture of tangible terrorist propaganda material and the removal of online terrorist propaganda from Canadian websites; and
- Provide additional protection to witnesses and other participants in national security proceedings and prosecutions.
Preventive Law Enforcement Tools (Recognizance with Conditions and Terrorism Peace Bonds)
The purpose of the recognizance with conditions is to prevent terrorist activity from occurring. The tool is flexible enough to be used for individuals who may in some way be connected to the carrying out of a terrorist activity.
The purpose of a terrorism peace bond is to prevent a specific individual from committing a terrorism offence.
- Lowered the threshold to obtain a recognizance with conditions so that it may be obtained where a peace officer believes on reasonable grounds that a terrorism activity “may be” carried out instead of the former requirement of “will be” carried out, and replaced the additional former requirement that the peace officer suspect on reasonable grounds that the recognizance is “necessary to prevent” with “is likely to prevent” the carrying out of a terrorist activity;
- Increased the period of detention before a recognizance with conditions hearing is held from 3 days to a possible total of up to 7 days, with periodic judicial review;
- Lowered the threshold to obtain a terrorism peace bond so that it may be obtained where a person believes an individual “may commit” a terrorism offence, instead of the former requirement of “will commit” a terrorism offence.
Both the recognizance with conditions and terrorism peace bond now require the judge to consider whether geographical conditions should be imposed and whether the person should be required to surrender their passports or other travel documents. The maximum duration of these measures has been increased, where the person had been previously convicted of a terrorism offence, to two years for the recognizance with conditions and to five years for the terrorism peace bond, and the maximum penalty for breaches of these court-ordered conditions has been increased from two to four years imprisonment.
As was the case before the Act, the further periods of detention in relation to the recognizance with conditions will only be allowed if the judge finds that it is necessary to ensure public safety, the attendance of the accused at the hearing or to maintain confidence in the administration of justice. In addition, for the possible two new 48-hour periods of judicially-ordered detention, it must also be demonstrated that the investigation in relation to which the person is being detained is being conducted diligently and expeditiously. If these criteria are not met, the person must be released, with or without conditions, but will be required to attend the hearing of the recognizance application.
The Act also allows for the use of video-conferencing and for the inter-provincial transfer of existing peace bonds.
The consent of the Attorney General of Canada or of a province is required for the use of the recognizance with conditions and terrorism peace bond powers and either party may apply to vary any of the conditions. The recognizance with conditions also continues to be subject to annual reporting requirements and to the five-year sunset clause that was included when the recognizance with conditions provisions were re-enacted in 2013.
Criminalizing the Advocacy or Promotion of Terrorism Offences in General
The Act created a new Criminal Code offence to criminalize the advocacy or promotion of the commission of terrorism offences in general.
It is now a criminal offence for a person, by communicating statements, to knowingly advocate or promote the commission of terrorism offences in general while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed as a result of such communication.
The offence does not criminalize the glorification or praising of terrorism. It is directed at prohibiting the active encouragement of the commission of terrorism offences and not mere expressions of opinion about the acceptability of terrorism. The offence is modelled on existing offences of counselling and the relevant jurisprudence. It extended the concept of counselling to cases where no specific terrorism offence is being counselled, but it is evident nonetheless that terrorism offences are being counselled.
The maximum penalty for the offence is five years imprisonment, which is comparable to the maximum sentence for the offence of advocating or promoting genocide against an identifiable group, which is the most serious of the three hate propaganda offences in the Criminal Code.
To ensure appropriate oversight, Attorney General consent is required to prosecute the offence.
Seizure and Forfeiture (or Removal) of Terrorist Propaganda
Two new warrants of seizure in the Criminal Code were created to apply to “terrorist propaganda” material, which is material that counsels the commission of a terrorism offence or that advocates or promotes the commission of terrorism offences in general.
The provisions allow a judge to order the seizure and forfeiture of terrorist propaganda material that is in printed form or in the form of audio recordings. A judge may also order the removal of terrorist propaganda when it is in electronic form and is made available to the public through a Canadian Internet service provider.
These tools are similar to existing provisions in the Criminal Code that allow for the seizure of material that is deemed criminal in nature, such as hate propaganda.
Attorney General consent is a pre-condition for initiating a proceeding under these warrants in order to ensure that issues of public interest are taken into account, such as protecting freedom of speech.
Related amendments to the Customs Tariff also allow Canada Border Services Agency border services officers to seize terrorist propaganda being imported into Canada without a warrant, as they would other contraband.
Witness Protection
The Act provides for the increased protection of witnesses, in particular of persons who play a role in respect of proceedings involving security information or criminal intelligence information.
The Act has brought about testimonial reforms under the Criminal Code including:
- Judges can order that witnesses testify behind a device, such as a screen, to prevent the public from seeing them while they testify;
- Judges are required to consider whether a witness has responsibilities relating to national security or criminal intelligence when deciding whether to allow that witness to testify using a pseudonym or via closed-circuit television; and,
- Judges are authorized to make any order necessary to protect the security of any witness, including those who have responsibilities relating to national security.
In addition, the Act expanded the definition of “justice system participant” in the Criminal Code to include persons who play a role in respect of proceedings that involve various types of information including security information and criminal intelligence information. This ensures that acts of intimidation that occur in the context of national security-related court proceedings, other than criminal proceedings, and which are designed to undermine the proper functioning of the justice system, are punished in a manner that is proportionate to the gravity of the conduct and its effect on the victims and, more broadly, on the proper functioning of the justice system.
The Act also removed the requirement to publish the names of federally-designated prosecutors and peace officers who have obtained authorizations to intercept private communications. The Minister of Public Safety and Emergency Preparedness will continue to report annually on the number of federally-designated prosecutors and peace officers who have obtained authorization for wiretaps, thus maintaining ministerial accountability on their use.
