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CIJA Testifies on Bill C-59

Apr 29, 2019 | CIJA Publications

Thank you, Madame Chair, and members of the committee for inviting us to join this important conversation. I am pleased to offer reflections on behalf of the Centre for Israel and Jewish Affairs, CIJA, which is the advocacy agent of the Jewish Federations of Canada and represents more than 150,000 Jewish Canadians from coast to coast.

CIJA has been engaging parliamentarians on the issue of national security legislation for years. We had the privilege of sharing our perspective on Bill C-59 with the House of Commons Standing Committee on Public Safety and National Security, just as we did in response to predecessor legislation, Bill C-51, under a previous government. We have done so because the Jewish community has a direct interest in this matter.

Globally, the Jewish community has been disproportionately targeted by terrorists, as demonstrated in a long and painful history of such attacks. Committee members will be familiar with the experience of Israelis, who have suffered from terrorism probably more than the citizens of any other liberal democracy. Jewish communities worldwide have also been targeted, as seen in terror attacks in recent years at such sites as a synagogue in Copenhagen, a Jewish museum in Brussels, a kosher grocery store in Paris, a Jewish elementary school in Toulouse, a Jewish community centre in Mumbai, a synagogue in Pittsburgh, and – just 48 hours ago – a synagogue in San Diego County. Our community knows firsthand the imperative to ensure our laws are effective in protecting Canadians from such threats.

Our view is that Bill C-59 generally strikes the necessary balance between safeguarding individual rights and providing security agencies with the tools they need to ensure public safety. However, we are deeply concerned by one key aspect of the bill: the amendment to the Criminal Code provision outlawing what is now known as advocacy and promotion of terrorism.

Bill C-59 will redefine this offence as “counselling terrorism”. Minister Goodale, in recent testimony to this committee, made a reasonable and compelling argument in support of the term “counselling”. As the Minister noted, counselling is consistent with other Criminal Code provisions. Compared to “advocacy and promotion”, the term “counselling” enjoys greater legal clarity and broader familiarity among law enforcement and prosecutors. CIJA takes no issue whatsoever with the new term for this offence.

However, the description of the offence is sufficiently ambiguous to warrant a modest, clarifying amendment. As currently worded, the new offence would apply to “every person who counsels another person to commit a terrorism offence.”

This wording suggests that the offence exclusively pertains to one who counsels another specific individual. Criminal law experts with whom CIJA consulted shared with us the concern that this creates a potential loophole that could be exploited in court by extremists, be they jihadists, white supremacists, or others seeking to inspire terrorism. One can imagine such a defendant, after counselling social media followers to commit terrorism, arguing before a future court that they simply published rhetoric before a general audience, and did not directly counsel another specific person.

I was deeply encouraged that Minister Goodale, in his testimony before this committee, confirmed he welcomes potential amendments. Just as important, the government affirmed in the same meeting that it shares the goal of ensuring the law applies to those who issue calls for terrorism before broad audiences. It is worth recalling the testimony of Doug Breithaupt, Director and General Counsel of the Department of Justice’s Criminal Law Policy Section, who told this committee: “The words ‘another person’ indicate that one person is counselling somebody else, and that somebody else need not be limited to a specific person or one person. So the target of the accused incitement has to be a person, but it does not have to be a particular individual or group.”

This observation is vital. So much so, that it must be explicitly reflected in C-59 so that the intent of this law is never misunderstood by a future court. This is crucial given that those who seek to inspire terrorism often use technology to broadcast their message to online audiences. Canadians who have participated in radical Islamist terrorism in recent years, whether in Canada or overseas, have often done so after consuming jihadist lectures and content online. Recent acts of white supremacist terrorism against synagogues in Pittsburgh and San Diego County, as well as mosques in Christchurch, were committed by attackers who had delved deeply into online propaganda. The ability of police to intercept those who counsel others in their virtual network to commit terrorism must not be impeded by ambiguity in the law itself.

There is an existing model in the Criminal Code that offers a simple but effective formula. The offence of instructing to carry out terrorist activity explicitly applies whether the accused instructs a particular person or even knows the identity of the person being instructed. This reflects the fact that terror groups can be structured so that operatives do not know the identity of one another. The law on counselling terrorism should mirror this language to ensure it applies when perpetrators call on broad audiences to commit terrorism.

This amendment could be achieved by taking elements of the text currently included in Section 83.22 (2) of the Criminal Code (“Instructing to carry out terrorist activity”) and adding it to 83.221 (2) in Bill C-59 (“Counselling commission of terrorist offence”), inserting the following subclauses after the existing statement that “an offence may be committed under subsection 1 whether or not”:

  1. the accused counsels a particular person to carry out the terrorist activity;
  2. the accused knows the identity of the person whom the accused counsels to carry out the terrorist activity; or
  3. the person whom the accused counsels to carry out the terrorist activity knows that it is a terrorist activity.

This amendment would provide consistency in the Criminal Code as well as clarity for police, prosecutors and courts in interpreting this provision. And it would definitively secure the objective of this law, as affirmed by the government in Mr. Breithaupt’s testimony, to ensure that those who counsel large audiences to commit terrorism can be held accountable for their dangerous actions.

I thank you for your time and welcome any questions or reflections.

 

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