Combating Terrorism Act (S.C. 2013, c. 9)
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Assented to 2013-04-25
Combating Terrorism Act
S.C. 2013, c. 9
Assented to 2013-04-25
An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act
SUMMARY
This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing for the purpose of gathering information for an investigation of a terrorism offence and to allow for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. In addition, the enactment provides for those sections to cease to have effect or for the possible extension of their operation. The enactment also provides that the Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness include in their respective annual reports their opinion on whether those sections should be extended. It also amends the Criminal Code to create offences of leaving or attempting to leave Canada to commit certain terrorism offences.
The enactment also amends the Canada Evidence Act to allow the Federal Court to order that applications to it with respect to the disclosure of sensitive or potentially injurious information be made public and to allow it to order that hearings related to those applications be heard in private. In addition, the enactment provides for the annual reporting on the operation of the provisions of that Act that relate to the issuance of certificates and fiats.
The enactment also amends the Security of Information Act to increase, in certain cases, the maximum penalty for harbouring a person who committed an offence under that Act.
Lastly, it makes technical amendments in response to a parliamentary review of these Acts.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Combating Terrorism Act.
R.S., c. C-46CRIMINAL CODE
2. Paragraphs 7(2)(b) and (c) of the Criminal Code are replaced by the following:
(b) in relation to an aircraft in service, commits an act or omission outside Canada that if committed in Canada would be an offence against any of paragraphs 77(c), (d) or (g),
(c) in relation to an air navigation facility used in international air navigation, commits an act or omission outside Canada that if committed in Canada would be an offence against paragraph 77(e),
Marginal note:2001, c. 41, s. 4
3. (1) Paragraphs 83.08(1)(b) and (c) of the French version of the Act are replaced by the following:
b) de conclure ou de faciliter sciemment, directement ou non, une opération relativement à des biens visés à l’alinéa a);
c) de fournir sciemment à un groupe terroriste, pour son profit ou sur son ordre, des services financiers ou tout autre service connexe liés à des biens visés à l’alinéa a).
Marginal note:2001, c. 41, s. 4
(2) Subsection 83.08(2) of the English version of the Act is replaced by the following:
Marginal note:No civil liability
(2) A person who acts reasonably in taking, or omitting to take, measures to comply with subsection (1) shall not be liable in any civil action arising from having taken or omitted to take the measures, if they took all reasonable steps to satisfy themselves that the relevant property was owned or controlled by or on behalf of a terrorist group.
Marginal note:2001, c. 41, s. 4
4. The portion of subsection 83.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Disclosure
83.1 (1) Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service
Marginal note:2001, c. 41, s. 4
5. Subsection 83.12(2) of the Act is repealed.
6. The Act is amended by adding the following after section 83.18:
Marginal note:Leaving Canada to participate in activity of terrorist group
83.181 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 83.18(1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
7. The Act is amended by adding the following after section 83.19:
Marginal note: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) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
8. The Act is amended by adding the following after section 83.2:
Marginal note: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.
Marginal note: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.
Marginal note:2001, c. 41, s. 4
9. Section 83.23 of the Act is replaced by the following:
Marginal note:Concealing person who carried out terrorist activity
83.23 (1) Everyone who knowingly harbours or conceals any person whom they know to be a person who has carried out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment
(a) 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) 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.
Marginal note:Concealing person who is likely to carry out terrorist activity
(2) Everyone who knowingly harbours or conceals any person whom they know to be a person who is likely to carry out a terrorist activity, for the purpose of enabling the 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.
Marginal note:2001, c. 41, s. 4
10. The heading before section 83.28 and sections 83.28 to 83.3 of the Act are replaced by the following:
Investigative Hearing
Definition of “judge”
83.28 (1) In this section and section 83.29, “judge” means a provincial court judge or a judge of a superior court of criminal jurisdiction.
Marginal note:Order for gathering information
(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.
Marginal note:Attorney General’s consent
(3) A peace officer may make an application under subsection (2) only if the Attorney General’s prior consent was obtained.
Marginal note:Making of order
(4) The judge to whom the application is made may make an order for the gathering of information if they are satisfied that the Attorney General’s consent was obtained as required by subsection (3), and
(a) that there are reasonable grounds to believe that
(i) a terrorism offence has been committed,
(ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order, and
(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means; or
(b) that
(i) there are reasonable grounds to believe that a terrorism offence will be committed,
(ii) there are reasonable grounds to believe that a person has direct and material information that relates to the offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit the offence referred to in that subparagraph, and
(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.
Marginal note:Contents of order
(5) An order made under subsection (4) shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or by the judge designated under paragraph (b), as the case may be, for the examination and to remain in attendance until excused by the presiding judge, and may
(a) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;
(b) designate another judge as the judge before whom the examination is to take place; and
(c) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.
Marginal note:Execution of order
(6) The order may be executed anywhere in Canada.
Marginal note:Variation of order
(7) The judge who made the order, or another judge of the same court, may vary its terms and conditions.
Marginal note:Obligation to answer questions and produce things
(8) A person named in an order made under subsection (4) shall answer questions put to them by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to privilege or to disclosure of information.
Marginal note:Judge to rule
(9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.
Marginal note:No person excused from complying with subsection (8)
(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but
(a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136; and
(b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136.
Marginal note:Right to counsel
(11) A person has the right to retain and instruct counsel at any stage of the proceedings.
Marginal note:Order for custody of thing
(12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, may order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.
Marginal note:Arrest warrant
83.29 (1) The judge who made the order under subsection 83.28(4), or another judge of the same court, may issue a warrant for the arrest of the person named in the order if the judge is satisfied, on an information in writing and under oath, that the person
(a) is evading service of the order;
(b) is about to abscond; or
(c) did not attend the examination, or did not remain in attendance, as required by the order.
Marginal note:Execution of warrant
(2) The warrant may be executed at any place in Canada by any peace officer having jurisdiction in that place.
Marginal note:Person to be brought before judge
(3) A peace officer who arrests a person in the execution of the warrant shall, without delay, bring the person, or cause them to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or released on recognizance, with or without sureties.
Marginal note:Application of section 707
(4) Section 707 applies, with any necessary modifications, to persons detained in custody under this section.
Recognizance with Conditions
Marginal note:Attorney General’s consent
83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2).
Marginal note:Terrorist activity
(2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer
(a) believes on reasonable grounds that a terrorist activity will be carried out; and
(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.
Marginal note:Appearance
(3) The judge who receives the information may cause the person to appear before any provincial court judge.
Marginal note:Arrest without warrant
(4) Despite subsections (2) and (3), a peace officer may arrest a person without a warrant and cause the person to be detained in custody, in order to bring them before a provincial court judge in accordance with subsection (6), if
(a) either
(i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or
(ii) an information has been laid under subsection (2) and a summons has been issued; and
(b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity.
Marginal note:Duty of peace officer
(5) If a peace officer arrests a person without a warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),
(a) lay an information in accordance with subsection (2); or
(b) release the person.
Marginal note:When person to be taken before judge
(6) Unless a peace officer, or an officer in charge as defined in Part XVI, is satisfied that a person should be released from custody unconditionally before their appearance before a provincial court judge in accordance with the rules in paragraph (a) or (b), and so releases the person, the person detained in custody shall be taken before a provincial court judge in accordance with the following rules:
(a) if a provincial court judge is available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period; and
(b) if a provincial court judge is not available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as feasible.
Marginal note:How person dealt with
(7) When a person is taken before a provincial court judge under subsection (6),
(a) if an information has not been laid under subsection (2), the judge shall order that the person be released; or
(b) if an information has been laid under subsection (2),
(i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the person’s detention in custody is justified on one or more of the following grounds:
(A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8),
(B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including
(I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and
(II) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and
(C) the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2), and the gravity of any terrorist activity that may be carried out, and
(ii) the judge may adjourn the matter for a hearing under subsection (8) but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.
Marginal note:Hearing before judge
(8) The judge before whom the person appears in accordance with subsection (3)
(a) may, if satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed 12 months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsection (10), that the judge considers desirable for preventing the carrying out of a terrorist activity; and
(b) if the person was not released under subparagraph (7)(b)(i), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).
Marginal note:Refusal to enter into recognizance
(9) The judge may commit the person to prison for a term not exceeding 12 months if the person fails or refuses to enter into the recognizance.
Marginal note:Conditions — firearms
(10) Before making an order under paragraph (8)(a), the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.
Marginal note:Surrender, etc.
(11) If the judge adds the condition described in subsection (10) to a recognizance, they shall specify in it the manner and method by which
(a) the things referred to in that subsection that are in the person’s possession shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates that are held by the person shall be surrendered.
Marginal note:Reasons
(12) If the judge does not add the condition to a recognizance, they shall include in the record a statement of the reasons for not adding it.
Marginal note:Variance of conditions
(13) The judge, or any other judge of the same court, may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.
Marginal note:Other provisions to apply
(14) Subsections 810(4) and (5) apply, with any necessary modifications, to proceedings under this section.
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