Criminalizing Terrorist Babble: The Debate
Apr 29 2019
By Craig Forcese
Part of the focus during senate hearings on bill C-59 has been on the speech crime created by bill C-51 in 2015: “the promotion and advocacy of terrorism offences in general” (Criminal Code s.83.221). Along with Kent Roach, I criticized the phrasing of the 2015 crime. It had the hallmarks of the long-standing “promotion and advocacy of hate” crime in Criminal Code s.319(2). But it lacked the features that made this hate crime offence constitutional, when that issue was decided by the Supreme Court in Keegstra.
Bill C-59 converts s.83.221 into a variation of a classic “counselling” offence. “Counselling” is a well-understood concept – in colloquial parlance, it is often called “incitement”. “Counselling” any offence is a crime because of s.22 of the Criminal Code. Bill C-59 signals in amended s.83.221 that terrorism offence counselling need not specify the actual offence. In my discussions, opinion seems to be divided on whether this addition adds much to the conventional counselling offence already available under s.22. At worst, therefore, the revised s.83.221 is redundant.
There is, in fact, a half-way house between the overbroad, uncertain and likely unconstitutional bill C-51 offence and the bill C-59 counselling offence: retaining a “promotion and advocacy” offence, but including the features that made the hate crime equivalent constitutional. I believe this would require four things: first, the intent requirement would need to be deepened, so that the pernicious outcome is the purpose of the speech; second, the offence should not reach purely private communication; third, defences modelled on s.319 should be included; four, the striking ambiguity of “terrorism offences in general” should be abandoned in favour of more precise terminology. “Terrorist activity”, defined in Criminal Code s.83.01, is an obvious candidate.
A third-way redraft of s.83.221 that incorporated both the lessons of Keegstra and concerns about breadth would produce something like:
(1) Every person who, by communicating statements, other than in private conversation, wilfully advocates or promotes acts or omissions that, if committed, would be terrorist activity, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years, if the communication is
(a) done for the purpose of encouraging terrorist activity; and,
(b) while knowing that terrorist activity is likely to be committed, as a result of such communication.
(2) No person shall be convicted of an offence under subsection (1)
(a) if the person establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, the person intended to point out, for the purpose of removal, statements that advocate or promote acts or omissions that, if committed, would be terrorist activity.
The larger question is whether we need such an offence. Keep in mind there are many other ways for a person to go to jail for speech associated with terrorist activity. In the right circumstances, these include: counselling an offence; facilitation of terrorist activity; participation with a terrorist group; instructing a terrorist activity; uttering threats; and, hate speech.
The pendulum on both ends of the political spectrum seem to be swinging against free expression. But in a liberal democracy, creating new speech crimes necessarily dances at the edge of what the state should be doing: penalizing pure speech. Such crimes may do little, other than incarcerate (and perhaps further radicalize) those expressing the wrong views. And a terrorism speech crime also serves as a justification for police wiretaps under Part VI of the Criminal Code. This means a speech crime has knock-on implications for privacy, as police investigate speech looking for the wrong sort of speech.