Awareness of terrorism and anti-terrorism legislation in canada

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1. amomipais82
   

   Canada’s recent legislative initiatives to combat terrorism, and their impact on Canadian charities and those who advise them. Charities may understandably ask why they should be concerned with this new area of the law. While anti-terrorism legislation may be relevant for criminal and immigration lawyers, how could this legislation be relevant to charities? This article intends to demonstrate that recent anti-terrorism legislation directly affects many Canadian charities in relation to their activities both inside and outside Canada.
   
   Charitable activities thought until recently to be commonplace and uneventful, may now lead to a charity becoming susceptible to criminal charges for having facilitated “terrorist activities” or supporting “terrorist groups.” This in turn could result in the charity losing its charitable status and the corresponding exposure of its directors to personal liability. In addition, financial transactions involving charities may lead to allegations of terrorist financing or to the surveillance and monitoring of a charity’s financial activities. Lawyers handling transactions on behalf of charitable clients or on behalf of estates dealing with charities may also find themselves in situations involving a legal duty to report under the new money-laundering legislation.
   
   While it is too early to predict with precision the long-term impact of Canada’s anti-terrorism legislation, it is clear it will have a profound impact on the charitable sector and Canadian society in general. Even if the new amendments to the Criminal Code, for example, are applied sparingly, their very existence, and the threat that they might be used against charities, will send reverberations throughout the charitable sector. In many instances, the enforcement of the law per se may not be the key issue. The concern may not be what the authorities will do in enforcing anti-terrorism legislation, rather the fact authorities may enforce such legislation. As a result, the necessary response to Canada’s anti-terrorism legislation may have as much to do with coping with fear of the law as with coping with the law itself. This “shadow of the law” effect has already created and will continue to create a chill on charitable activities in Canada, as charities hesitate to undertake programs that might violate anti-terrorism legislation and thereby bring the possible loss of their charitable status. At the same time, new charities may find it more difficult to obtain charitable status, since the Charities Directorate of Canada Revenue Agency (“CRA”, formerly Canada Customs and Revenue Agency) will likely be compelled to exercise greater scrutiny when reviewing applicants for charitable status.
   
   To counteract this implicit fear concerning the new anti-terrorism legislation, it will be important for charities and those who advise charities to understand the basics of Canada’s anti-terrorism legislation. In this way, charities can better understand what due-diligence steps should be taken in order to avoid violating the legislation.  
   
   In order to see how the various parts of Canada’s anti-terrorism legislation interact with one another, as well as how the legislation may affect charities, this article will examine some of the new anti-terrorism provisions under the amended Criminal Code, the amendments made to money-laundering legislation as well as new legislation providing for the deregistration of charities. However, given the complexities involved in the anti-terrorism legislation, the discussion that follows is by necessity neither detailed nor comprehensive. For additional comments by the author on the topic of anti-terrorism legislation and charities, as well as access to resource materials, legislation, and international conventions related to charities and anti-terrorism legislation, reference can be made to either www.antiterrorismlaw.ca or www.charitylaw.ca.
   
   B. THE CONTEXT OF ANTI-TERRORISM LEGISLATION
   
   1. Overview of Canada’s New Anti-terrorism Legislation
   
   Canada’s anti-terrorism legislation has not been enacted in a legal vacuum. Most conceivable acts of terrorism have for some time been subject to prosecution in one way or another as criminal offenses under the provisions of the Canadian Criminal Code.[1] Many other statutes, such as the Immigration Act,[2] include provisions that deal with terrorism or people suspected of terrorism. The new provisions and the legislative amendments provided for under Canada’s new anti-terrorism legislation have likely been under development for some time to supplement the legislation already in place. The events of September 11, 2001, simply galvanized these efforts, giving them a sense of added urgency and political justification.
   
   This article focuses primarily on the three pieces of Canadian legislation introduced since September 11th, 2001intended to combat terrorism: Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to Enact Measures Respecting the Registration of Charities, In Order to Combat Terrorism (hereinafter “Bill C-36” or “Anti-terrorism Act”);[3] Bill C-35, An Act to Amend the Foreign Missions and International Organizations Act (hereinafter “Bill C-35” or “Foreign Missions Act”);[4] and Bill C-7, An Act to amend certain Acts of Canada, and to Enact Measures for Implementing the Biological and Toxin Weapons Convention, In Order to Enhance Public Safety (hereinafter “Bill C-7 “or “Public Safety Act”).[5] Although other statutes deal with issues related to terrorism, for the purposes of this article these four pieces of legislation are collectively referred to as “Canada’s anti-terrorism legislation”.
   
   a) Anti-terrorism Act
   
   Bill C-36, i.e., the omnibus Anti-terrorism Act proclaimed in force on December 24, 2001, is an extremely complicated piece of legislation that involves coordinating the provisions of many federal acts, including the Criminal Code, Canadian Human Rights Act, and the Proceeds of Crime (Money Laundering) Act(hereinafter “Proceeds of Crime Act”)[6] (including regulations that were issued on May 9, 2002). Part 6 of the Anti-terrorism Actalso creates the new Charities Registration (Security Information) Act. The Anti-terrorism Act raises several concerns that innocent charities may be unwittingly caught within its provisions, which include new criminal offenses contingent on sweeping definitions of such terms as “terrorist activities,” “terrorist group,” and “facilitation of terrorist activities”; the establishment of a deregistration process for charities suspected of involvement in “terrorist activities”; and the development of broad new legislation to curtail “terrorist financing.”
   
   b) Foriegn Missions Amendment Act
   
   Bill C-35, An Act to Amend the Foreign Missions and International Organizations Act, was passed by the House of Commons on December 12, 2001, as part of the Government of Canada’s legislative anti-terrorism commitment and proclaimed in force as of April 30, 2002. The purpose of this Act is to give effect to Canada’s obligation to protect diplomatic personnel and foreign representatives by granting certain privileges, immunities, and benefits to foreign diplomatic missions and consular posts, international organizations, and foreign state subdivisions. The object of the amendments is to modernize Canada’s privileges and immunities regime to comply with Canada’s existing commitments under international treaties and to respond to developments in international law. The amendments radically expand the definitions of “internationally protected person” and “international organization,” increasing the likelihood a charity pursuing its normal charitable operations might be unwittingly implicated in Criminal Code offenses.
   
   c) Public Safety Act
   
   Bill C-7, the Public Safety Act, was granted Royal Assent on May 6, 2004. Bill C-7 is the latest version of the Public Safety Act, which was first introduced in the House as Bill C-42 (22 November 2001), re-introduced as Bill C-55 (29 April 2002) and again as Bill C-17 (31 October 2002). Among other provisions, Bill C-7 includes further amendments to the Proceeds of Crime Act proposing to broaden the government's power to collect and distribute financial information considered relevant to money laundering and terrorist financing. In its latest version as Bill C-7, the Public Safety Actpurportedly removes or softens some of the more controversial provisions of the earlier versions contained in Bill C-42 and Bill C-55, such as the power to enact "controlled access military zones" and provisions allowing the Royal Canadian Mounted Police (RCMP) sweeping access to detailed personal information from airline passenger lists. These provisions would have had a significant impact on charities involved in international operations or protests at international summits, or donors giving to organizations that might be involved in activities within "controlled access military zones." Notwithstanding the changes provided for in Bill C-7, there is still reason to be concerned about the scope of the powers that remain in the current version of the Public Safety Act in Bill C-7 and continued monitoring will be needed.
   
   2. Canada’s Anti-terrorism Legislation in Perspective
   
   a) International Legislative Context
   
   Anti-terrorism legislation is not a phenomenon peculiar to North America or even Western Europe. Rather, it is a worldwide phenomenon that can be seen in countries as diverse as the United States, Australia, Singapore, the United Kingdom, and China. As each country is adopting its own unique type of anti-terrorism legislation based on international conventions, it is becoming essential for charities that transfer funds or work abroad to be aware of the proliferation of anti-terrorism laws internationally. These same charities, and lawyers who advise them, must become familiar with the legislative developments in the countries where they carry on their work, as well as the underlying international conventions that anti-terrorism legislation, in Canada and other countries, attempts to address in order that those charities do not inadvertently find themselves violating anti-terrorism laws in Canada or abroad.[7] Charities must also be concerned about who their potential international partners are with respect to exposing the Canadian charity to anti-terrorism legislation in other countries, as well as similarly exposing the same international partners to Canada’s anti-terrorism legislation.
   
   In order to understand the long-term impact of Canada’s anti-terrorism legislation, Canada’s legislative initiative must be viewed within the international context in which it has evolved. Over the last two or three decades, the international community has developed a broad range of measures that have attempted to combat terrorism. These documents range from non-binding resolutions, declarations, or recommendations of the United Nations General Assembly and various intergovernmental bodies, to binding multilateral conventions and Security Counsel Resolutions. Canada has also been involved in several other international organizations and intergovernmental policy-making bodies, such as the G-8, G-20, the Financial Action Task Force on Money Laundering, the International Monetary Fund, and the World Bank, as part of Canada’s commitment to combat terrorism. All of these bodies have taken, and continue to take, measures to curtail terrorism and terrorist financing, requiring considerably different levels of compliance from member states.
   
   The enactment of Canadian legislation is directly related to developments in the international arena. This is reflected in the preambles of the three acts making up the anti-terrorism legislation, which refer to Canada’s “commitments” to international treaties, its response to developments in international law, and its participation in a global anti-terrorism initiative. It is beyond the scope of this article to examine the international context in detail, but the main international documents are highlighted below to provide a brief overview of the international dynamics behind the recent legislative initiatives in Canada.
   
   b) United Nations Commitments
   
   The United Nations has issued a number of resolutions and declarations, as well as concluded various conventions, in an effort to combat terrorism. The Anti-terrorism Act purports to ratify or comply with 11 specific UN conventions concerning terrorism. Another significant United Nations obligation is Security Council Resolution 1373, adopted on September 28, 2001 (hereinafter “Resolution 1373”).[8] These documents explain Canada’s international obligations to limit terrorism and shed light on the extent to which Canada’s initiative is consistent with those obligations. They also provide a useful background to understanding the new legal paradigm facing charities that operate in multiple jurisdictions.

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